Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, I begin with the usual warning that if there is a Division in the Chamber while we are sitting the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Railways Bill
(1 day, 7 hours ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Moylan
“(1A) The body corporate must be a company constituted under the Companies Acts.”Member’s explanatory statement
This amendment seeks to clarify an ambiguity in this and the following Clause as to the legal character of the body corporate.
Lord Moylan (Con)
My Lords, in the course of preparing for this Committee, I have had a number of meetings with the Minister and his officials, and I thank them for making themselves available for those meetings. I say that now because I shall almost certainly forget to say it at more appropriate times later on, but if I do it is not because I do not mean quite seriously how grateful I am for the contribution and effort that they have made.
We are here on the first day of the Committee to create a Soviet-style railway in the United Kingdom and to go back—and we now know explicitly that it is the Government’s and the Prime Minister’s intention—to the warm and fuzzy 1970s. The 1970s are now the paradigm of where our nation should be. Those of us who remember the 1970s—there may be a number of us in the Room—do not have such fond memories of the standard of public services then compared with what we have today. We do not today have bodies unburied, we do not have refuse piled high in the streets as a result of government folly and we have railways that run broadly on time compared to the—I see that the noble Lord, Lord Bradshaw, is not here to be annoyed by this—relative catastrophe of British Rail in its worst days as it trundled towards its final station. Now it is to be resuscitated. We are to get Great British Railways in place of British Rail and we are going to have it on a totally nationalised basis.
There are two separate things going on here. First, the Minister makes a case that the railways would operate more efficiently if, as he puts it, track and train were united. That argument can be debated. I do not wholly accept it, but it can be debated, but it is not necessary in order for track and train to be united that they should all be owned by the Government in a single company. We know that because the Williams review, which was warmly welcomed by the Minister when he was chairman of Network Rail and was supported by the Conservative Government at the time, gave an alternative way forward, so the decision to nationalise the whole thing is particularly spiteful. The only explanation for it—because it is not necessary for the purpose of achieving the Government’s stated objectives—is that it has been done to pay off the trades unions that made such generous contributions to Labour’s victory at the polls in 2024.
We know that privatisation has been a huge success on the railways and that passenger numbers increased enormously after privatisation. It would be astonishing if the Government nationalising the railways achieved anything like that increase in passenger numbers. New operators entered the market and competition stimulated improvements.
I have four amendments in this group, but one of them is consequential, so three that I intend to speak to. My Amendment 2 addresses a particularly vicious little clause in the Bill, which says, first of all, that the body designated as Great British Railways has to be owned wholly by the Crown. In other words, a future Minister would have to pass primary legislation to redesignate or designate a different body in the private sector to carry out Great British Railways’ activities. What is the need for that? It is simply to gratify the trades unions. A second part almost seems to impose a penalty of some sort on any Minister who makes even a suggestion that Great British Railways should be transferred to the private sector. My Amendment 2 deletes that part; it does not stop Great British Railways going ahead as a nationalised body but it allows a future Secretary of State without the need for primary legislation to redesignate a different body, not necessarily owned by the Crown, to carry out the role of Great British Railways.
Amendment 1 is addressed at sloppy drafting more than anything else. The Bill talks about a body corporate being designated as Great British Railways, whereas later, in the next clause, it is implicit that the body corporate should be a company constituted under the Companies Act. But the Bill does not actually say that the body corporate has to be constituted under the Companies Act; it only says that it has to be wholly owned by the Crown. Other bodies corporate could be designated, as long as they were wholly owned by the Crown. It is simply sloppy drafting not to say at this point that it is to be a body constituted under the Companies Act.
When I mentioned this to the Minister, he said, “Oh well, everybody knows it’s going to be a company constituted under the Companies Act”. Well, they do not, if they read the Act—it needs to be written into the Act by him that that is what the intention is. It should say quite explicitly that that is what he intends to do. We will come back to this when we discuss amendments later in Committee that relate to the board of this company. There are some from the noble Baroness, Lady Pidgeon, to which I have added my name, about the board of this company and how this corporate structure works, because the Bill is very silent on that. This needs to be done.
Finally, Amendment 8 probes Great British Railways’ organisational structure. To this day we still have no idea at all—and maybe the Minister has no idea at all—how Great British Railways is going to be structured. Let me give a couple of options. It could be that it will be structured geographically, roughly mapping the existing structures, so that one division deals roughly with the south-western main line, one division deals with the east coast main line, and so forth. It could be structured like that, but you could have a totally different structure. There might be an argument for saying that we should have one division that deals with operating the railways, one that deals with managing the major stations, another division that deals with the minor stations and another again for retail. You could have an organisation that was completely functionally based rather than geographically based. These are important questions, which I think Parliament should have a chance to have a say on, yet not only is the Bill silent about them but the Government are silent as well. The effect of Amendment 8 is to require the Government to publish their organisational structure before the Bill can come into effect.
That is enough for the moment—I understand that other noble Lords have things to say. I will just say in advance—and I hope that the noble Baroness will forgive me for pre-empting her—that I have taken note of the amendments in the name of the noble Baroness, Lady Jones of Moulsecoomb. They are not wholly aligned with my view of the role of the private sector and she will not therefore, I think, be surprised if I find myself not able to support them. I beg to move.
Lord Lansley (Con)
My Lords, it is a pleasure to join this first group in Committee. I am sitting to the left of the Liberal Democrats because that is where I now find myself; I always want to be sitting behind my noble friend on the Front Bench in Committee to back him up, but I cannot do that because there is no back row in this Room, so I cannot be self-effacing in the back row. Anyway, I look forward to Committee. I do not have the experience of railways that the Minister and my noble friend speaking for the Official Opposition do—I do not pretend to that intimate knowledge of the railways—but I hope to bring something of my interest in how competition should be applied in the delivery of public services to some of the issues that we will be debating.
I turn to this group. There are a number of amendments in my name which are just about trying to find out, as I was going through the Bill, whether it works in the way described or precisely what it means. Rather in line with what my noble friend was just saying, we need to be sure that we understand that the Bill is functionally correct in the way that it works. I have just two amendments in this group.
Amendment 3 relates to the question of what must be wholly owned. As my noble friend said, Clause 1 is constructed around the proposition that Great British Railways not only must be wholly owned by the Crown but cannot be anything else. That relates to GBR itself. The purpose of Amendment 3 is to test whether that also applies to GBR companies. We do not encounter GBR companies in Clause 1, but we do subsequently as a means by which GBR will undertake its activities. This is not surprising. As my noble friend said, we do not know how GBR will be corporately structured but, by way of example, we know how Network Rail is structured. It has a significant number of wholly owned subsidiaries and quite a number of joint venture subsidiaries, including through Platform4.
For example—and here I declare my interest as chair of the Cambridgeshire Development Forum and others—Platform4 is a Network Rail subsidiary company that has just recently, happily, entered into an agreement with partners to develop at Cambridge North station as part of the Government’s proposal to develop around stations, with 450 homes around the station. It is a joint venture company; it is not wholly owned by Network Rail. So my starting proposition is that this prohibition on companies not being wholly owned must apply to GBR itself but cannot apply to GBR companies. I want to be sure that that is the case. If it is not absolutely clear in the statute then it ought to be, which would be the purpose of my amendment.
That differentiates the amendment from those in the name of the noble Baroness, Lady Jones of Moulsecoomb, to which we will no doubt turn in a minute, who wants precisely that to be the case. For the reasons I have just explained about the many joint ventures for things such as housing developments and commercial developments around stations through companies such as Platform4, if I may respectfully say so before she has put her case, I do not agree with the noble Baroness that all GBR companies should be—
Lord Lansley (Con)
Recalling Questions earlier, just because we do not agree with the noble Baroness, that does not mean she cannot sometimes be right.
The other amendment in my name is Amendment 4, which relates to shadow directors. Clause 2 tells us that Ministers are not to be construed as shadow directors under the Companies Act when they make decisions. I think it is the case that, when officials act on behalf of Ministers, exactly the same provisions would apply to them. We need to be absolutely sure that this is the case, and that it applies to the officials of Scottish and Welsh Ministers as well as to those of the Secretary of State. I am looking for a bit of reassurance on that.
Baroness Jones of Moulsecoomb (GP)
My Lords, with the permission of the Chair, I will do something I have not done in the 13 years I have been here as a Peer. The place name in my title is “Mole Skoomb”, okay? There is a railway station at Moulsecoomb, near Brighton; in fact, it is not in Moulsecoomb but in Bevendean, which is a source of great irritation to people living in Moulsecoomb; Moulsecoomb is a mile up the road. Anyway, it is pronounced “Mole Skoom”. Thank you.
I said in my speech at Second Reading that I welcome the Bill; the Green Party has long argued that our railway should be run as a public service, not for private profit, and that is exactly where my five amendments here are going: they all make basically the same point. It was very kind of the noble Lord, Lord Moylan, to point out that he did not agree with me; in fact, it sort of made me feel slightly better because, worryingly, there are times when I do agree with him, so it is good to get back on our tracks.
Baroness Jones of Moulsecoomb (GP)
Sorry, I did not mean that.
What I am trying to do with these five amendments is to make sure that public ownership of our railways really means public ownership. The Bill, as it currently stands, could allow companies within Great British Railways to have private shareholders. The Bill is, or should be, about bringing our railways back into public ownership, and we therefore should not be creating a back door that allows private ownership to creep in.
This is the worry that the Association of British Commuters, We Own It and Bring Back British Rail have brought to us. They and the others are asking a very simple question: what exactly do we mean when we say that Great British Railways will be publicly owned? At the moment, the answer is not clear in the Bill. The Government made a welcome commitment that all the shares in the parent company of Great British Railways would be publicly owned, but does that extend to the companies sitting beneath it?
The Bill defines a GBR company as a subsidiary within the meaning of the Companies Act 2006. A subsidiary does not have to be wholly publicly owned; it can be partly owned by private investors, provided that the parent company retains control. We could have a railway where the parent company is entirely publicly owned but where companies carrying out important railway functions have private shareholders. Does that not fundamentally change what public ownership means? The Passenger Railway Services (Public Ownership) Act 2024 used a much clearer definition: a public sector company had to be wholly publicly owned. The Companies Act itself provides the Government with the wording they could have used if they intended to require wholly owned subsidiaries. I think we have to ask this: why was that stronger definition not used here?
This is not helped by the Government not being clear about exactly which functions GBR companies will carry out, as the Bill gives these companies the ability to carry out potentially any GBR function. That could include train operations and infrastructure management, which leaves the door open to a very different railway in the future. In a worst-case scenario, the new definition of GBR companies as subsidiaries could even lead to the part-privatisation of rail infrastructure management—a direction of travel thought impossible in the UK since the days of Railtrack.
Railway privatisation has been a disaster: it fragmented the railways, drove up costs and put private profit ahead of passengers. We should not be creating a structure today that would enable a future Government to say, “Well, the legislation already allows private investment and we’re simply making use of the powers that Parliament has already given us”. These amendments would stop that happening. I should also say that I have not yet had the delight of meeting with the Minister, but I am sure that that is in progress.
Lord Harper (Con)
My Lords, I will speak to a number of the amendments in this group. First, I strongly support what my noble friend Lord Moylan said at the beginning about ownership. The noble Baroness, Lady Jones, just said that this Bill is about public ownership, but actually it is not. That was the other Bill to which she referred; this Bill is about setting up GBR as the guiding mind, bringing track and train together—however one wants to characterise it. It is not essential to the core purpose of the Bill; the ownership structure is not core to delivering the services. My noble friend Lord Moylan was right to make those points in his opening remarks.
Of the specific amendments, Amendment 2 is very pertinent. My noble friend Lord Moylan focused on the “owned by the Crown” piece, but Clause 1(3) talks about Great British Railways being
“wholly owned by the Crown”.
Even if we accept that GBR should largely be owned by the Minister—in effect, on behalf of the public—who is able to direct things, I am not sure that we should be in favour of it being “wholly owned”. There is a very good argument for having some private capital. It might be that you want to get that capital involved in the company. The noble Baroness, Lady Jones, referred to infrastructure, and we may wish to use it for that and people could have a shareholding. It may be, as my noble friend Lord Lansley said, that we would wish to have some joint ventures. I will give two examples.
One of the countries whose railways people generally admire is Japan. Interestingly, people involved in the railways in Japan largely admire how we do them, as well. There is an enormous amount of cross-fertilisation between experts from both countries. They have very successfully defrayed some of the costs of running their railway by using the value of the property in which the railway system operates—on top of, below or alongside —to generate some effective retail operations and other things that generate a significant amount of money. This keeps down the cost to the taxpayer from running the railway.
Network Rail does some of those sorts of joint ventures already in developing property and that seems perfectly reasonable. Even if we accepted that running the railway piece should be publicly owned—and I do not—it would seem perfectly reasonable if Network Rail, which will now become part of GBR, wished to have some joint ventures with people who develop property and people who help to maximise the returns for the taxpayer on the assets owned by GBR. The state is frankly not very good at doing those things, which are important not just to raise revenue to defray costs but to develop and energise the economy in some of our towns and cities up and down the country. Core railway assets are often where you could develop housing and other things to redevelop areas.
To give a specific example, there was a Written Answer from the Minister recently—forgive me, but I cannot remember whether it was answered yesterday or in the previous few days—about how the Government will develop Euston station. Originally, that was going to be done by HS2, but, when I was Secretary of State, we came to the conclusion that HS2 was probably not going to make a good fist of that. At that time, the Minister was the chairman of the Euston Partnership, which brought together representatives of the Mayor of London, local authorities and private sector companies involved in developing the station. We came to the conclusion that a development-led approach would be better, in order to develop a significant amount of housing for that part of London as well as private sector office and business space, as we had done around King’s Cross and St Pancras, which has had a huge impact on the economy. But that involves working in partnership with the private sector.
I do not know how in the end the Government will structure that approach, but it seems to me that it would be sensible at least to keep open the option that, at the very least, a subsidiary of GBR could potentially own a joint venture or part of the entity involved in delivering the development, either to help to run it or to share in some of the capital gain. You may or may not wish to do that, but ruling out the ability to do that does not seem to me sensible. Therefore, my noble friend Lord Moylan’s amendment, which probes that issue, is sensible and has a lot of merit.
On the issue of private shareholders, I will make the argument just briefly, since this Bill is not about nationalisation, about where the noble Baroness, Lady Jones, misunderstands the point about private companies. As my noble friend Lord Moylan said, from the point of view of the consumer and the delivery of services, privatisation was for most of its life a massive success. It brought into the railways an enormous amount of private capital, new rolling stock, new services and a hugely greater number of people using the railways than had been the case under British Rail, under which passenger numbers had, frankly, been declining since the Second World War. It was a huge success.
Now, it is absolutely true that the passenger franchise model had some issues and, in fact, was effectively destroyed by the pandemic. I am not suggesting that we necessarily would have wanted to carry on with that model, but there are other models involving the private sector. For example, the way that TfL operates in London is that TfL specifies the services but, in a number of cases, it contracts with companies to run those. also, as the then Mayor of Greater Manchester, the Prime Minister set up the bus services that he wished to procure, but it was the private sector that delivered those. Those models seem to me perfectly sensible. If you set them up properly, the company makes money only if it delivers services that passengers require. That seems to me a very sensible model. I know that the noble Baroness does not agree with it, but I just wanted to set out how it actually works, as opposed to her characterisation of it.
The last point that I want to make is on Amendment 8, also tabled by my noble friend Lord Moylan, which talks about the organisational structure of GBR. The reason why that is important—I think we will come on to this in some of our later debates—is that it is, in effect, how you set up the organisation and, therefore, how it takes decisions and who takes the decisions within the structure.
Lord Berkeley (Lab)
My Lords, I want briefly to reflect on the various amendments that noble Lords have put forward so far this afternoon. Basically, it makes me feel very concerned, because we are lacking information, as the noble Lord said on Amendment 8 but also on many of the other ones, and we do not know what is going to happen. We do not really know who will be running infrastructure or some of the train operators and, if we ever end up with any private sector involvement, I go back to what I experienced when I was on the kind of supervisory board of Railtrack a long time ago. We used to meet every three months with the board, and you could just see that the debt that Railtrack was incurring was getting bigger and bigger. In the end, I said to the chairman, “How long are the Government going to allow you to continue with this debt?” It seemed to increase by 10% or 15% every time we had a meeting. The chairman’s response was, “Well, don’t worry, I had a meeting with the Secretary of State”—none of the former Secretaries of State are here today, so I think I am safe to say this—“and he said it will be all right”. We had a nice meal and it was fine. But the sad thing was that, within a week, not only had he got the sack, but Network Rail was closed down, because the so-called shareholders did not know what they were doing. It was yet one of the many disasters that the infrastructure manager has probably suffered over the last 30 or 40 years.
It would help me and maybe other colleagues to think of some useful criteria as to whether we think all these different elements that we will be discussing in the next seven days will be beneficial or not. What I found rather interesting was a part of a speech by the Secretary of State, Heidi Alexander, on what she saw coming from the nationalisation plan. She that it,
“requires a high performing railway to … support the creation of new jobs and new homes … improve reliability, generate better usage of our trains and reduce public subsidy”.
We can spend a lot of time talking about whether this has happened in the last year or two. If it has not, what has gone wrong? It is much too soon to see what is changing. We should in mind that, in the last three or four years, most of the passenger operators have been effectively controlled by the Department for Transport, even though they are in theory in the private sector. Network Rail, of course, is funded by the Department for Transport anyway. This is something that we need to look at, in going through all the amendments and seeing whether they will meet any of those criteria. Maybe my noble friend, when he responds, will be able to say, “I have got it completely wrong and it is all going to happen anyway”. I look forward to his comments.
Baroness Pidgeon (LD)
My Lords, I thank the Minister and his officials for numerous meetings with me and many of my colleagues over the last few months; they have been very helpful for discussing how we can improve the Bill before us.
The dislike for this Bill was very apparent in the opening words from the noble Lord, Lord Moylan. The previous Government could have implemented the concession model that has been mentioned several times—it would be our preferred option—but they did not. The picture that we had painted by the noble Lord, Lord Moylan, of the privatised railway does not reflect many passengers’ experience in recent years. I say to the noble Lord, Lord Harper, that I think the service started to decline before the pandemic, but the pandemic accelerated the fact that this model was not working.
The Government have a mandate for public ownership. In fact, two years ago, we debated the Act on it. I hope that we can focus in these seven days on getting the structure right and delivering for passengers, rather than revisiting the ideology behind what the Government are doing.
The amendments in this group are quite technical in some ways, and they are about the structure rather than focused on passengers. But it is important that we hear from the Government exactly why they have chosen the model that they have. The noble Lords, Lord Moylan and Lord Lansley, in their amendments are seeking some clarity on the exact set up of Great British Railways and why this model has been chosen. It is really important to get some clarity over the status of Great British Railways’ companies, set out very clearly by the noble Lord, Lord Lansley, in some of those examples. How will these partnerships work in practice? There is also the point around civil servants and their role. The noble Baroness, Lady Jones, wants clarity on the subsidiaries of Great British Railways and their potential future ownership. Whatever happens in this Bill, there will still be a huge amount of private sector involvement, because the rolling stock will still be owned by private companies and there is no plan to change that. Even if everything else is fully publicly owned, there will still be a huge amount of private sector involvement through the rolling stock.
There are many ways that you could look at structuring Great British Railways. One could have been a co-operative model. An understanding from the Minister on why this was felt to be the best way to deliver the quality of the railway service that we all want to see would be helpful. I look forward to the Minister’s response and clarification on these structural amendments.
The Minister of State, Department for Transport (Lord Hendy of Richmond Hill) (Lab)
My Lords, I thank the noble Lords, Lord Moylan and Lord Lansley, and the noble Baroness, Lady Jones of Moulsecoomb, for their amendments, and the noble Lords, Lord Harper and Berkeley, for their contributions.
I will begin with Amendments 1 and 6, which would specify that the company designated as Great British Railways must be established under existing company law. I can reassure the noble Lord, Lord Moylan, that, as is the case with Network Rail and the train operating companies, GBR will be a private limited company under the Companies Act 2006. It will have its own articles of association. The Bill is constructed around this assumption. For example, Clause 3(6) makes it clear that GBR can carry out business activities by virtue of being a limited company under existing company law. If it were not a Companies Act company, this and other provisions of the Bill would not be appropriate. The alternative to a Companies Act company would be something like a royal charter corporation, such as the BBC, or a statutory corporation, such as the Advanced Research and Invention Agency. GBR is clearly neither of these, given that the Bill does not establish it as such. Body corporate is a general term under UK law, meaning an incorporated organisation, which is what GBR will be. Combined with the drafting in Clause 3(6), the Bill is clear that GBR will be a Companies Act company.
I turn to Amendments 2 and 3. Amendment 2 would remove from the Bill the requirement that GBR be wholly owned by the Crown. As the noble Lord will be aware, this Government were elected with a clear mandate to nationalise the railways, and that is exactly what we are doing. We are ensuring that GBR is owned by the British people and run in their interests—not in the interests of private profit. Public ownership is key to creating a more efficient railway and a better passenger experience. It shifts the focus from profit to passengers and freight, and begins to put an end to the fragmentation and waste of the franchising system, allowing the whole industry to work together in the interests of the passenger. This approach will save the taxpayer hundreds of millions of pounds in fees and allow taxpayers’ money to be spent on things that will benefit the passenger instead.
The requirement in the Bill that GBR must be publicly owned will ensure that any future Government wanting to privatise the railways would have to seek the consent of Parliament to do so. This will put the system on exactly the same footing as it was under privatisation since—as I am sure the noble Lord will acknowledge, given that he is trying to repeal it—an Act of Parliament was required to bring passenger rail services back into public hands. The latest YouGov poll shows that 76% of the public think that railways should be in the public sector and only 13% think they should be in the private sector. As the noble Baroness, Lady Pidgeon, put it so well, previous Governments could have done something about it but they did not. The railway is an asset with significant financial, economic and safety implications, so it is right that Parliament scrutinises every major change to it.
Amendment 3 would ensure that GBR’s subsidiaries do not need to be wholly owned by the Crown. I will speak more about the Government’s policy on this in a moment when I address the amendments in this group from the noble Baroness, Lady Jones, but I am pleased to confirm to the noble Lord, Lord Lansley, that the drafting of Clause 1 already facilitates what he seeks to achieve. The requirement to be wholly owned by the Crown applies only to the parent company that is designated as GBR, not to any of its subsidiaries. For clarity, GBR subsidiaries come within the term “GBR companies”, as defined in the Bill. GBR companies are not subject to the “wholly owned” requirement, so I hope the noble Lord will see that his amendment is unnecessary.
Speaking of GBR’s subsidiaries, I will now address Amendments 5, 334, 335, 337 and 345 from the noble Baroness, Lady Jones. She has said that she is a passionate supporter of public ownership, as we are. Her amendments would mean that GBR must wholly own all its subsidiaries for them to be considered GBR companies. As I have said before, we are committed to the private sector continuing to play a key role in the future rail sector, and this includes within GBR where appropriate. After all, the private sector can bring advantages that the public sector cannot, including greater risk appetite and additional investment that reduces the burden on the taxpayer. GBR will therefore leverage the best of both the public and the private sectors, working in close partnership with private companies, from freight and rolling stock to ticket retailing and the rail supply chain, to unlock benefits and drive growth.
The advantages of this approach were referred to by the noble Lord, Lord Harper, and can already be seen in Network Rail’s successful joint ventures with the private sector, including through Platform4, a subsidiary of Network Rail which uses private sector investment to support community regeneration projects and is expected to deliver up to 40,000 new homes in the next decade through public/private joint ventures. For example, Platform4’s joint venture with Bloc Group has already secured 2,000 new rental homes near major city transport links. These types of investment would simply not be possible were I to accept the noble Baroness’s amendments. In addition, the amendments would prevent GBR from pursuing joint ventures with the devolved Governments, which I hope she agrees would not be the right outcome.
However, I can reassure the noble Baroness that, although the existing Companies Act definition of a subsidiary enables these public/private partnerships, importantly, it does not enable private sector control. Any private sector interest in a GBR company must be a minority shareholding, to ensure that the railway remains owned, controlled and operated by the public. The Government are also clear that certain aspects of the Bill, such as GBR’s access decision-making process and its ticket retailer, passenger services and vital cross-industry functions, will all remain part of the wholly publicly owned and controlled part of the business. This recognises that, while private sector investment is a great enabler of infrastructure development opportunities that can support our communities, it is not always suited to railway functions that must be run in the public interest.
Lord Harper (Con)
Before the Minister moves on, this might sound a very picky point, but it is quite important. On his point about joint ventures, he talked about the Government always having a majority stake and having control. Is a 50-50 joint venture possible? If you are a private company making an investment, there is a big difference between having a 50-50 equal partnership versus one where you are a minority shareholder. Would that be possible under the model that he set out and which is structured in the Bill?
Lord Hendy of Richmond Hill (Lab)
I am grateful to the noble Lord for his intervention. I will write to him on that rather than say something I might regret.
Lord Lansley (Con)
Before we conclude, and relevant to the point that my noble friend Lord Harper was making, I am sure that the Minister will want to look at the whole structure of Platform4 and its relationship to Great British Railways, but the Mayfield Partnership, which is involved in the regeneration around Manchester Piccadilly, has one-third Network Rail or Platform4 participation in that joint venture. So, at the moment, it is not just 50:50; it can be below 50%. It would be of interest, not least to noble Lords considering the future structure of GBR, to understand precisely how some of these large-scale and really important property development issues are to be managed by GBR. The directing mind for the railways is one thing, but the directing mind for development purposes is not necessarily the same thing.
Lord Hendy of Richmond Hill (Lab)
I am grateful to the noble Lord. My experience of Network Rail’s property and Platform 4 is offset by increasing age and failure to remember the details. I will not only write to noble Lords about the 50:50 aspect, but about Mayfield, which I remember vaguely is of a different percentage, partially because much of the land is owned by somebody else rather than the railway. I will write on both those points, because I think they are germane. I appreciate the point that people need to understand how this will work in practice, particularly with those areas of activity of GBR that are not the provision of passenger railway services or the basic railway.
Lord Moylan (Con)
My Lords, before I start, may I add to the comment made by my noble friend Lord Lansley? My example is not a Network Rail example, but a TfL one, with which the Minister will be very familiar: the Earl’s Court development. The essential structure is that the initial ownership of the joint venture was based on the value of the land that each party was contributing, but that the TfL structure would fall well below 50% over the course of time, as more investment was added by the private sector partner. Structures such as that would simply not be possible for Great British Railways land under this Bill, because you could not go below the 50%. So, a site such as Earl’s Court, if it were a national Network Rail site— pari passu, mutatis mutandis—would of course remain undeveloped until the Government found the money to develop it. The Government will never find the money to develop these things.
Turning to the debate that we have just had, I must say that, whenever I speak in Committee, I always seem unwittingly and unintentionally to attract the disappointment of the noble Baroness, Lady Pidgeon. I am surprised about this, because the only reference I made to her in the course of my speech was to say something complimentary about amendments that she has tabled, which we will debate later in Committee and to which I have added my name. Obviously, I am at fault in some way, in that I am constantly giving her cause for complaint.
On the question of organisational structure, the Minister has read out some words about how Network Rail will be organised, but they do not provide a level of assurance or satisfaction that people are looking for. They are very woolly, but I will leave that and grant him that for the moment; he can stick with that level of woolliness. However, let us switch focus slightly and think about timing. When I spoke on the then passenger railway services Bill when it was in your Lordships’ House, I said that the Government were embarking on a very long multi-year transformation process. Here we are, two years later, and we still have not completed that. We are at least six months away, I should guess, from seeing the enactment of this necessary legislation. That is two and a half years on.
Transforming an organisation as complex as Network Rail and all the companies being brought into this group is something that is going to take years. So let me change the question: is the Minister able to say, before we conclude this debate, at what time he expects that structure to be in place, which he has described to us even in woolly terms?
Just to develop that a little further, it is said throughout the industry, although it is acknowledged that nobody has written this down, that the intended designation date for Great British Railways is October 2027, which is 12 months from now—say, six months after the enactment of the Bill, if it goes through in its current form, according to its current plans. Is that date valid? Does the Minister believe that the structure that he has described in whatever woolly terms will be in place in time for that designation date, or is it all going to muddle on for years afterwards, being put in place?
Finally, on the second important point that we have discussed in this short debate, I express my gratitude to—I am going to say this correctly now—the noble Baroness, Lady Jones of Moulsecoomb. Kudos! But do not minute that in Hansard. I am very grateful to her because she put her finger on one of the key issues in this group, which is the question of the justification for private ownership. She has said, effectively, that it is party policy, in her case, and she is going to stick to it, for that reason if not for others as well. But we did not get a clear answer from the Minister to my question: what is his justification for wholesale nationalisation for the purpose of achieving his objectives, which could have been achieved by a Williams report approach? It is wholly irrelevant whether the last Government did anything about it, for heaven’s sake—what is the point of making a comment like that? The last Government were all over the place; that is why they lost the election. Is that the standard that the Minister is setting for the Government, that they are just about better than Sunak? Is that it? Is that the point of making that remark?
The Minister has one further opportunity to give us a clear explanation. The only explanation that he has given is that it is in the manifesto. If that is the sole explanation, that is very helpful to us, because knowing that there is no rational basis for the decision makes it very much easier for an incoming Government to advance the argument that the necessary measures should be taken at pace to reverse it.
Lord Hendy of Richmond Hill (Lab)
My Lords, first, the operative date for Great British Railways will be sometime in 2027, but of course it depends on the passage of this Bill. Secondly, I can give a very sound explanation for being in favour of public ownership, which is that progressively, as we have taken recent train operating companies into public ownership, we have been able to put both the track and infrastructure and the operations into the management of the same person. That is delivering results that no previous arrangement for over 30 years has been able—
Lord Moylan (Con)
Why, if that is such a good thing, are there fewer and fewer services?
Lord Hendy of Richmond Hill (Lab)
I shall continue with what I was saying. It has not been possible, in any previous iteration of the railways since the early 1990s, to have both under the same control. There was such an arrangement with South Western Railway in the 2010s, and it collapsed, because the commercial arrangements were incompatible. We are making steady progress in improving the railway in some pretty difficult circumstances, in companies that had not been particularly well managed, as a consequence of being able to manage them together. To my mind, that is a very good reason for public ownership.
Lord in Waiting/Government Whip (Lord Katz) (Lab)
My Lords, before we proceed, under the chairmanship now of the noble Lord, Lord Duncan, it probably behoves me to say that this is the first group in the first of seven days in Committee. There were six minutes’ worth of summation, and I point out to all Members of the Committee that the Companion is very clear about brevity being the quality we are looking for when Members who have lead amendments are summing up, whether they are pressing or whatever else. I urge Committee Members to bear that in mind for future groups.
Lord Moylan (Con)
My Lords, I am very happy, in so far as that is directed at me, to bear it in mind. Of course, I could be quicker in challenging the Minister when I sum up. I am not summing up, of course; I am actually testing him on his response to the points I made in moving my amendment. I would be a great deal quicker if he had properly addressed them to my satisfaction in the course of his speech. When Ministers do that, I shall of course be briefer. But, if the Minister does not do that, then, with every respect to the noble Lord, I shall take exactly as long as is needed, because we are in Committee and those rules do not apply. I will not be curtailed. After all, thanks to the noble Lord and the Whips, we have five hours, not four, to play with.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
It sounds like I have missed the best bit.
Lord Moylan (Con)
The noble Lord should stop waving his hands around like that.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
Does the noble Lord wish to withdraw Amendment 1?
Lord Moylan (Con)
I beg your pardon. I beg leave to withdraw the amendment.
Lord Moylan
“Purpose of Great British Railways(1) The purpose of Great British Railways is defined by the following objectives—(a) prioritising the needs of Great British Railways passengers in decision-making,(b) delivering reliable, safe and accessible railway passenger services,(c) providing value for money for passengers and taxpayers, including consideration of the affordability of fare prices,(d) increasing passenger numbers and growing usage of the network year-on-year,(e) expanding and improving the network, including services and connectivity, and restoring or adding routes,(f) modernising working practices and innovating to improve productivity, efficiency, and passenger experience,(g) supporting economic growth and national productivity, and improving connections between towns, cities and employment centres,(h) improving the experience of disabled and vulnerable passengers and ensuring consistent access to assistance, (i) ensuring fair and transparent treatment of open access, freight and devolved operators when allocating access and charges,(j) growing rail freight, including supporting delivery of the national freight growth target,(k) strengthening the financial sustainability of the railways, reducing reliance on operating subsidy over time,(l) integrating track and train, simplifying structures, and avoiding duplication, and(m) supporting multi-modal integration with buses, trams and local transport networks.(2) The Secretary of State and Great British Railways must have regard to the purpose set out in subsection (1) in exercising their functions under this Act.”Member’s explanatory statement
This new clause defines Great British Railways’ purpose.
Lord Moylan (Con)
My Lords, I rise to speak, with my customary brevity, to Amendment 7 and to open the debate on this second group. I have a large number of amendments in this group, so I shall speak only briefly to each of them because I do not want to provoke any noble Lords to start waving their hands at me again, which is only intended to distract and does not promote debate.
Although Amendment 7 starts the group, I intend to return to it towards the end of my remarks. I will start with Amendment 9, which may appear to be pernickety, but I will explain it to noble Lords, many of whom will know that I have a background in local government. But it is not entirely a local government matter; it applies to legislation more broadly. We are well familiar with the notion of powers. Local government is given powers to do things, and so is the Secretary of State periodically. We are also familiar with the notion of duties—we are clear what the distinction is—which can be placed on local government and, similarly, on the Secretary of State. I do not claim huge experience, but I have never come across the question of functions, and I do not understand what a function is. It is sloppy drafting. Is a function a legal power? We understand what that is. Is it a duty? When does a function slip over into being a duty, and vice versa?
But then I go to a second level of refinement. Clause 3 refers to the “general functions” of Great British Railways. If I am unclear what a function is, I am doubly unclear what a general function is. It could be that this is a fuzzy notion—it is a general thing and we are not quite clear what it is—in which case it is not very satisfactory as a piece of legislation. Or it could seek to set out a hierarchy of functions, where these are the general functions and there are other more minor functions that sit under them but have to conform to, contribute to and be ancillary to the general functions. Is that what “general functions” is meant to mean, or is the word “general” simply redundant? I ask because later the Bill refers to “the functions” of Great British Railways on several occasions and the expression “general functions” never reappears.
I suspect that this is not a very complex issue. I suspect it is just sloppy drafting. But we cannot put up with that—we need to know what is meant by functions, how many duties are being imposed on Great British Railways that we can hold it to account for, how many powers are being given to it by statute that it has to explain and justify using or not, and whether “general” is creating a hierarchy with subordinate functions that must comply or not. I do not think this will necessarily be settled today; it is very likely that we will come back to this so that we really understand what the Bill is doing.
Amendment 13 would exclude rail safety advice and standards from Great British Railways. Under Clause 3(1)(g), Great British Railways will be
“publishing advice and standards on matters related to railways and railway services”.
I really do not know why it is doing this. Publishing advice and standards is normally the function of either a regulator or an independent standards board. I do not know why Great British Railways is doing this. In so far as it is doing it to itself, that is okay. I have no objection to its setting internal standards. However, my Amendment 14 says that it should not be able to create standards and issue advice to non-GBR actors on the Great British Railways network. Internal standards are no problem, but if standards are to be set then they should be set by an independent board, a regulator or the ORR.
Finally on this point, Amendment 13 would exclude safety standards entirely from that scope. I say this because safety on British railways has been at a very high standard and it is a common view that the role of the Office of Rail and Road as safety regulator has been an important contributor to that. I do not want to see its role diluted, and I do not know anybody in the industry who does. The danger here is that the power being given to GBR to set standards implicitly for other people operating on the railways, implicitly including safety standards, creates a tension with the role of the ORR that can be only destructive of and damaging to the effectiveness and reputational safety of Great British Railways.
Amendment 18 relates back to the question of functions. It would remove the Secretary of State’s power to confer additional railway-related functions on Great British Railways. If it requires an Act of Parliament to set up the general functions of Great British Railways, why should we want to give the Secretary of State the undiluted, unrestricted power to create new functions to add to them? I do not think this is the correct way of doing it. If there is a requirement for further functions in future, it should at the very least be done by statutory instrument, if the power is to be granted at all.
I turn to Amendment 80. My noble friend Lord Grayling, with his very considerable experience of the railways from being Transport Secretary, has tabled a number of amendments but unfortunately is unable to be in the House this week. But I have signed Amendment 80 in its support, so I will speak to it. It is slightly out of place in this group, but we will come back to this topic eventually.
The amendment would require that charges imposed by Great British Railways for certain railway services are “reasonable”. Who can object to that? Who would want charges that are not reasonable? But that is not the power given to Great British Railways by the Bill. The power to make these charges is relatively unconstrained— I agree that it may be constrained by competition law—and would, in effect, allow GBR to set charges as it sees fit. That is too much latitude; the power should be constrained by the necessity for charges to be reasonable.
Amendment 81 is, in fact, in my name, but is close to the previous one. It would give to an individual—it might be a company—who is aggrieved by the charge, term or conditions imposed by Great British Railways a right of appeal to the Office of Rail and Road. Again, who would think that this very modest constraint on the absolute discretion of Great British Railways could be anything other than reasonable and necessary? I beg to move.
Lord Davies of Brixton (Lab)
I am keen not to be seen as a support act to the noble Lord, Lord Moylan, although some of my remarks might echo points that he made in the previous group.
Amendment 15 would place on Great British Railways a duty to act as a single employer for the staff transferring into it from Network Rail and the train operating companies, as they move into public ownership. The starting point is that the Bill is silent on this question. It creates Great British Railways and sets out its functions, and it deals in some detail with the machinery of transfer, but says nothing about who will employ the people who run the railway. There are well over 100,000 people involved: more than 40,000 are directly employed by Network Rail and there are more than 60,000 across the train operating companies. They are no clearer today about who their employer will be than they were before the Bill was published.
This matters more than it might appear. The operators are coming into public ownership on a staggered basis, contract by contract, over several years. The uncertainty is therefore not settled by a single moment of transition; it is spread out and repeated. Staff in one company would inevitably draw conclusions from what happens in another. In the absence of a stated employment model, people will assume the least favourable one: that subsidiary companies will be retained, terms and conditions will diverge and the integrated railway will turn out to be a holding company with much of the same fragmentation underneath it. I hope that this is not what the Government plan.
The founding document here is Getting Britain Moving. Those interested in the reason for putting the railways into public ownership would find their time well served by consulting that document, which addresses the issues in contention today. That document was explicit that Great British Railways would be “a new, single employer” and that the workforce would be treated
“as an asset to be nurtured rather than a cost to be cut”.
That was a clear commitment, and these amendments asked for it to be put in the Bill or, failing that, restated from the Dispatch Box.
Lord Lansley (Con)
My Lords, I will principally refer to my Amendment 19 in this group. I apologise to the noble Lord, Lord Davies of Brixton, that I am not really in a position to comment on the points he makes, but I think the discussion we had previously about the corporate and organisational structure of Great British Railways gives force to his points about how the employment of the railways will be structured in future, so I look forward to hearing the Minister’s response on that.
I want to make a quick point on the amendment from my noble friend Lord Moylan about creating a purpose clause for the Bill. Generally speaking, I am in favour of purpose clauses where we are not principally legislating in order to change existing legislation where the purposes are already set out. This Bill will effectively get rid of the purpose set out at the front of the Railways Act 1993 and therefore I think it is a pity that there is no purpose clause at the front of this legislation to tell us what we are trying to achieve. In my view, that is distinct, as I think my noble friend was saying, from simply a description of what Great British Railways is going to do and what it should think about.
Paragraph 13 of the Explanatory Notes sets out the view that the purpose can be defined simply by what the functions of Great British Railways are and what it must have regard to under the general duties. But functions and duties are not in themselves sufficient to constitute purpose. For my money, I would have been in favour of drafting a purpose clause up front as Clause 1 that would have told us what we are trying to achieve. I think that makes for rather good drafting these days.
I will get down into the nitty-gritty now with Amendment 19 in my name. It relates to Clause 3 where, just as the functions have been set out for Great British Railways, there is an interesting moment where the functions are replaced by a little subsection that tells us what the “statutory functions” are to be. These are all the functions that we have just been told about and the ones that the Secretary of State might give Great British Railways at any time in the future, but not anything relating to service facilities or the supply of services under the 2016 regulations. That sent me off to look at the 2016 regulations to see what the service facilities and the supply of services are. I will minimise it for the purposes of this debate; essentially, on the one hand it is provision of access to freight and international traffic by an infrastructure manager under the access rights, and then supply of service facilities is essentially service providers giving, again, freight, other railway undertakings and international access to services—things from stations, depots and so on.
Interestingly, as far as I can see, those bits relating to access to the infrastructure and the provision of services in the 2016 regulations are intended to be substantially replaced by the access policies set out in Clause 59. But Regulations 5 and 6 and Schedule 2, I think, of the 2016 regulations are not to be repealed. The interesting thing is that Great British Railways will be expressly taken out of the definition of an infrastructure manager, so it will not have the requirements to provide access to infrastructure or to provide services implied by Regulations 5 and 6, even though they remain in place.
In a sense, this is a probing issue. Who will take the responsibility for the provision of infrastructure to freight and international if it is not Great British Railways? With supply of services, for things such as stations and depots, if it is not Great British Railways which has a responsibility for providing those services and the minimum access package specified in Regulation 6 of the 2016 regulations, whose responsibility is it? It is not set out in this Bill. All we know from this Bill, as a result of Clause 70, is that it is not Great British Railways. Then who is it? Who will do those things?
Lord Redwood (Con)
My Lords, I welcome these probing amendments and look forward to the Minister’s response to some very important general issues. It is right that the staff in all the operating companies that will be affected by this should have an early idea from the Government about what is planned for their future employment.
I am one of those who welcome the idea that we want a well-paid profession serving on the railways, but for the sake of taxpayers, who are putting in substantial grant in aid and capital money, and of fare-paying passengers, who often have to pay very high fares, we need a system for negotiation between staff and Great British Railways which is more likely to achieve the increase in productivity that could justify the higher pay for staff without imposing an ever-higher charge on the taxpayer and fare-paying passengers. This is more than a detail that can be left open; we need to know who the employer will be, what the status of the current contracts is and how they will be put into transition to new contracts for the staff when their employment changes.
Is there anything the Government can tell us about how they might—they hope—have better relations with the unions in future so that we can look forward to a better experience in getting that balance of better pay for better delivery, smarter working, adopting work practices and being willing to operate new capital investment in a way that delivers higher productivity and higher quality of service?
I also welcome my noble friend Lord Moylan’s draft of what the purposes should and could be, which may not entirely match all the Government’s aims. It would be interesting to hear from the Government which of his suggestions are intended or implied in the current legislation, so that we can have some early indication of what the mission statement of the new railway might be.
I think taxpayers and railway users are expecting more services, not fewer. That has not been the early experience of the last two years. They are expecting better punctuality and timeliness, which would also be welcome. What the new railway will definitely require is more feel for where more passenger movements are required or possible. As in the early days of privatisation, surely the early days of full nationalisation might want to achieve a trend of rising passenger numbers, which privatisation achieved very well, and the ability of companies to develop timetables and services more suited to modern travel needs and therefore fuel the continuing progress of providing more growth in passengers and revenue.
If a new railway management—the controlling mind of GBR—knows how to do that, it will make everything a lot easier if the background of the completion of these arrangements is rising passenger use, rising revenues, greater flexibility over timetables and thinking about growth rather than cost cutting and the elimination of less profitable routes. That can easily get you into a spiral of downturn, as with the nationalised railway experience for most of its time post war, until privatisation reversed those difficult trends.
I hope that the Minister will not rule out one of the modest successes of recent years, which is the ability to have a competitive challenge to the monopolist. There are times when people outside will see ways of harnessing people, talent and capital to provide additional and better service using the existing track, and for that they will clearly need fair terms for access, and that will provide an innovative stimulus to the nationalised monopoly. However, I fear that the Government will not want to do that, and so I think they will find it that much more difficult to innovate and improve the timetables without that stimulus or spur from others generating such ideas and providing such a challenge and opportunity for the growth of the railway.
Lord Berkeley (Lab)
My Lords, I will speak to Amendment 305 in this group. Noble Lords may think that Amendment 305 is a long way away from where we started in this group, but it is here. My amendment refers to Clause 87, which provides for a charge for removing road vehicles from railway property—let us call it that before going into too much detail. It seemed to me that, if the Government thought this was a good idea, they should extend it to dealing financially with the very many lorries these days which hit bridges and cause endless delays not just to road traffic but to passengers and freight.
Network Rail’s website on what it calls “bridge bashing” says that, in the year from April 2024 to March 2025, there were 1,666 bridge strikes. Over five years, there were 8,300. Of course, some bridges get it all the time and others do not. Network Rail says that it costs it £23 million to repair every year. That seems quite cheap, but that is not really the point. Who pays? One other statistic is that it causes the equivalent of 120 days’ delay for rail passengers or freight.
It occurs to me that either the driver or owner of the lorry or truck—it is usually a truck or bus—should be required to fund not just the cost of remedial work but some compensation for delay to the rail and road traffic. This has been going on for years, and I suppose I and many others have been saying to Network Rail that it has to do something about this. It is putting up all kinds of barriers, warning signs and everything, and it is doing a great job of it.
However, I think this amendment would be very helpful. The Government want to charge people for parking on railway property. I think it says in the Bill that a road vehicle includes a “bicycle or other conveyance”. If they are even going to charge me for parking my bicycle at the station, they can surely charge the lorries or the buses which do a great deal of damage. My noble friend will probably say that the wording in my amendment needs improvement, and I am very happy to look at improving it, but it seems to me that something needs to be done to make the status of the relationship between road vehicles and trains a bit more equitable.
Lord Harper (Con)
My Lords, I will start by referring to the amendment that the noble Lord, Lord Berkeley, talked to, because it just so happened that, as I was travelling to London yesterday, a car struck a bridge at Burnham. I see that the noble Lord, Lord Faulkner, is nodding; perhaps he was on the same train. The reason why it is important is that, although there was, I think, no significant damage to the bridge, the train was significantly late, which meant that every single person on it was entitled under the Delay Repay scheme to a significant refund of their fare. It was not the only train affected; lots of trains were. The cost to the taxpayer of that single incident was probably very significant, and it does not seem unreasonable that the insurance company of the person who struck the bridge should have to reimburse the taxpayer for the cost of that significant damage. Having had that experience yesterday, I am instinctively supportive of that amendment.
Before I talk about the other amendments in this group, I will make a teensy defence of the Sunak Administration, given what my noble friend Lord Moylan said, and since I was a member of it; I will not make an extensive one because that is not the purpose for which we are here. On this specific issue, we got the Williams review, which my noble friend referred to, and then we set in train the work that has, in effect, come to fruition with this Bill, in starting the process of setting up GBR. A lot of the preparatory work took place when we were in government, and there is a lot of agreement, I think, between how we would have done it and how the Minister is doing it today. The big difference, of course, is on the ownership of the companies but, in terms of bringing together a guiding mind—however one wishes to describe it—and a more seamless operation of track and train, that is certainly something that we intended to do and we started the process. That is my bit of a defence of what we did when we were in government.
Let me now address the amendments, starting with Amendment 7, and Clause 3. The problem with purpose clauses and a list of functions is the danger of what parliamentary draftsmen call undue specificity: as soon as you have a list, you then have a question about whether you are allowed to do the things that are not on the list. In his list, my noble friend Lord Moylan has things that are not in the Government’s list of functions, such as
“providing value for money for passengers and taxpayers”.
But in neither of the lists is what we have talked about: the work that Network Rail currently does, and GBR will continue to do, not just on operating passenger services or facilitating freight services but on maximising the benefit of its property portfolio—not only to generate revenue to offset the cost of providing rail services but to generate a significant amount of economic development and growth in significant parts of the country, as my noble friend Lord Lansley mentioned. The Government are woefully behind their housebuilding targets, but one of their priorities is developing housing around railway stations, and some of that land will be owned by Network Rail and, in due course, GBR. In relation to the amendment, I ask the Minister whether the functions set out in the Bill are sufficiently extensive to give GBR the powers it needs to do its work.
I also want to speak to Amendment 12, and the linked Amendments 80 and 81, on fair and non-discriminatory decisions, which it is important to put in the legislation. GBR will now make important decisions about access for private freight companies to the network, open access operators and—I will not labour this point here, because we will come to it in the next group—ticketing. Unlike the ORR, which did not have any skin in the game, GBR will be making decisions on, for example, freight access or open access, so it will be both a decision-maker and a provider of services, which are in competition. That is also true for ticket retailing. When it makes those decisions, it should have a legal duty to do so in a fair and non-discriminatory way, which is why I support the amendment. It would have two effects: it would govern how GBR operates and it would provide the opportunity for others to challenge it if it does not behave in that way.
Amendments 80 and 81 are linked, because they are about the charges that GBR can make for services where it is a monopoly supplier and, therefore, people do not have any choices. Amendment 81 would provide an appeal mechanism if it charges in a way that people do not think is reasonable. Both amendments would be very sensible to ensure that it behaves in a reasonable way.
There are two other amendments I want to comment on. Amendment 15, which the noble Lord, Lord Davies of Brixton, set out, sounds sensible on the face of it, but I will just flag three issues with it. First, when you move employers, there are potentially pension implications. I understand that the company that provides pensions to rail workers has flagged the time that will be required to do the pensions transition in a sensible way. We have seen in other areas of the public sector that, if you get that wrong, it can cause significant issues.
The second issue is one that we have seen, as the noble Lord, Lord Davies, touched on in his remarks. I suspect that, at the moment, because these are all separate companies, there will be a range of pay structures. We have already seen this—as have the Government, to their own cost—in what they are doing with NHS England. They originally said that they wanted to bring NHS England and all its staff into the Department of Health and Social Care. As they set out on that process, because people in NHS England are in many cases paid significantly more than people in the Department of Health and Social Care, they have discovered either that they cannot do it or that doing it would be very expensive or require the Secretary of State or the Chief Secretary to the Treasury to sign off the move of every single employee above a certain pay band. They have discovered that it is all very complicated, and they are effectively having to do the NHS England/DHSC change in a different way. If you stick everyone in a single company and you have to equalise all their pay and conditions, my concern is that if you do it in a downwards direction, it would clearly not be advantageous to those employees who lose out, but if you do it in an upwards direction then it is clearly damaging for the taxpayer, who has to pay all this increased cost without getting any productivity.
I want to flag one final thing, but will not go into it at length because we have a later group some way down where we will cover it in more detail. The noble Lord, Lord Davies of Brixton, slightly gave the game away when he referred to a letter from the RMT’s parliamentary group: the point of this is to have a single national rail employer so that the trade unions can increase their power and once again be able to deliver national rail strikes, closing down the entire railway network, which they have not been able to do with different rail operating companies, as you could not have a strike in one of them in response to a dispute at another. People should be very clear: if there is a single employer—I have some amendments to test this—we will be back in the days where we have national rail strikes and increase the bargaining power of those trade unions. The experience over history is that that power is not used for the benefit of the passenger and customer but to extract money from the taxpayer. That would be a very damaging thing. I flag that now, but will not go into it in any more detail as I will come back to it later.
Finally, very briefly, I am attracted to Amendment 20 from the noble Baroness, Lady Pidgeon. The only point I would make to her, as I think I said at Second Reading, is that the reason why, when I was Secretary of State, I set up a freight target—there is reference to a freight target in the Bill—was to try to balance the fact that all the conversations we have about railways are always about passengers. The reason for the freight target was to slightly rebalance the conversation and have more of a level playing field. My worry is that, if you put the passenger target in the Bill, you reweight it back towards being all about passengers again. I absolutely agree with her that we want to increase the number of passengers and reduce the taxpayer subsidy, but the reason for having the freight target was to slightly rebalance and have more of a level playing field.
Baroness Pidgeon (LD)
My Lords, my Amendments 20 and 110 would require Great British Railways to increase passengers on the railways and to set a passenger target, rather like the freight target, which has just been referred to. One could easily argue that this is not necessary, as any Government will want the railway to grow and passengers and freight to increase. Yet that is not necessarily the case. The Bill currently does not create a clear statutory duty to grow passenger use or to set measurable targets. The reform of the railway should not simply be to stabilise the current system as it is; it should be to actively grow demand and ensure access to the network to support the shift to sustainable modes of transport.
Lord Hendy of Richmond Hill (Lab)
My Lords, I thank noble Lords for these amendments and the noble Lords, Lord Redwood and Lord Harper, for their contributions.
I start with Amendment 7, which would introduce a purpose for GBR into the Bill. The Bill already provides a purpose for GBR, just as we promised the Liberal Democrats it would during the passage of the public ownership Act. The Bill’s purpose is set out through its functions and duties. The functions tell us what GBR must do, and the duties tell us what GBR must consider and achieve while doing it. Much like the noble Lord’s amendment, the duties provide a list of objectives for GBR, which it must bear in mind when undertaking every decision and its railway activity.
I hope the noble Lord can see that the duties are in fact similar to the breadth of outcomes his amendment is seeking. The duties already require GBR to prioritise the needs of passengers and disabled passengers; to consider value for money, high standards of performance including reliability, social and economic benefits, and the environment; to grow freight; and to advance the public interest. We do not need a new purpose clause to provide GBR with these objectives: the Bill already does so.
Unlike the proposed purpose clause, the functions and duties are supported by the Secretary of State’s long-term rail strategy, which will also provide clear long-term objectives. That strategy is how Ministers will communicate to GBR what it should consider while planning, expanding and improving the network over the next 30 years, and GBR will develop its own pipeline of projects in response to that. Rather than a static requirement in the Bill which is not set in the context of wider priorities or funding expectations, we have a system that might actually work better to make our railway better. Instead of setting out a clear purpose, the proposed new clause duplicates many of the provisions already in the Bill, making outcomes less clear and, overall, less likely to be deliverable.
Amendment 9 is seeking clarification of what “general” means. A general function is an umbrella term for an activity which a body can undertake by doing lots of different things. For example, running passenger services involves a large number of intermediate actions such as procuring and operating rolling stock, employing train drivers and other staff, and selling tickets. The Bill requires GBR to run passenger services as a general function, and it therefore does not prescribe exactly what actions it should take in which order to do that.
In comparison, a specific function would be an individual action that the Bill requires GBR to do at a certain point or in a certain way. An example of this would be the requirement on GBR to draft and issue the access and use policy in Clause 59. This is a specific requirement to kick off the access process and not a general function.
The term “general” is therefore helpful in distinguishing between a specific activity that GBR is required to perform and the continuing business of GBR in running the railways. I assure the noble Lord that functions are a standard drafting approach, used also, for example, in the Communications Act 2009, the Climate Change Act and others. I hope that this explanation provides the clarity that the noble Lord seeks and that he can withdraw his amendment.
Lord Moylan (Con)
My Lords, if the Minister would be so good, this really is very important. I did not think he would adopt that approach, but it is one of the two approaches I offered him, and he has chosen to adopt that which says that this is essentially hierarchical, so that the general functions set out in the Bill subsume a whole load of subsidiary and ancillary functions. I am still not clear whether these functions are powers or duties. Does GBR have some choice over whether to carry out these functions—in which case, they would be akin to powers—or is it obliged to do so?
My key question, now that we have established that, is this: to carry out a general function, there are a whole load of subsidiary and ancillary functions you may have to carry out. I understand that completely, and the Minister did not have to give examples, but he did very helpfully. Is the functionality, so to speak, of Great British Railways therefore limited to the functions set out in this clause? In other words, can it do anything else or is it limited to doing the things that are general functions here? Does it have the power to carry out any other activity? These are really important questions, which may end up being tested in court. I know he has quoted some examples but, because generally unfamiliar language is being used, it is unclear to me whether we are talking about the general functions being the full scope of GBR’s activities or not.
Lord Hendy of Richmond Hill (Lab)
I thank the noble Lord for that. I am at least clear about this. The functions are more like powers; the duties are the things that GBR must do when doing the functions, but it is not limited to those general functions. Indeed, we have already discussed quite extensively what it might do, for example, in property development and with third parties, which, because it is a Companies Act company, it can do. I think that is reasonably clear. I would be happy to discuss this with the noble Lord in more detail, because I think we are getting tied up in nomenclature. I think it is reasonably clear what GBR’s functions are, which are described in Clause 3; it describes running the railways. It is also clear that, in the process of running the railway and because of its activity, it is able to do a number of other things.
Let me carry on to Amendment 12, if I may. Amendment 12 would require GBR’s functions to facilitate the provision and use of railway services to be carried out in a fair and non-discriminatory manner. I absolutely agree that GBR should act fairly; however, the duties in the Bill already require GBR to act in the interest of the public, taxpayers, passengers and freight customers. GBR will act fairly in accordance with its duties, not only when exercising this function but across the full range of its statutory functions. We will no doubt discuss this more when we discuss ticket retailing and access. For now, suffice it to say, there are already protections in the Bill—and indeed in wider statutes, such as public law principles and the Competition Act, which applies in full to Great British Railways—that will require GBR to act in a manner that is fair, non-discriminatory and not anti-competitive. This additional requirement would duplicate only the Competition Act requirements, adding uncertainty and administrative burden without increasing protection for non-GBR operators.
Amendments 13 and 14 relate to the publishing of advice and standards for the railways. I thank the noble Lord for this probing amendment, and I reassure him that the ORR is the sole safety regulator for the railway. The Bill does not transfer the ORR’s safety regulatory functions to GBR, nor does it change the current railway safety regime at all. The ORR will continue to exercise its independent safety, regulatory and enforcement functions, including its ability to ensure that GBR and other operators comply fully with all safety legislation requirements.
Comparatively, GBR’s function to publish standards is a reference to technical standards, which GBR would publish and share with industry as a method of promoting best practice. This is similar to today; at present, Network Rail and the train operating companies develop and publish technical standards covering many aspects of their operation. These standards include operation and maintenance protocols, design specifications and engineering guidelines. This does not in any way prevent it adhering to the ORR’s safety regime, which it is required by law to comply with. This also does not give GBR any remit over safety regulation. The standards are non-binding and designed simply to support shared learning across the industry.
Lord Berkeley (Lab)
My Lords, my noble friend is talking about standards created by GBR. Can he explain the relationship between what GBR does and the Rail Safety and Standards Board?
Lord Hendy of Richmond Hill (Lab)
I thank my noble friend. I think I can. The RSSB, the Rail Safety and Standards Board, creates standards applicable across the railway generally on some subjects, whereas there are a number of more technical standards—for example, for pieces of machinery, trains and railway infrastructure—which GBR, as a successor to Network Rail, would publish. These are not subject to discussion at the RSSB. Train operating companies also do this with specific fleets of trains, so I think there is a difference. My noble friend is right to draw attention to the RSSB’s function to do that as well, but that does not exclude the current activities of Network Rail and train operating companies, which will translate into Great British Railways.
These standards include operation and maintenance protocols, design specifications and engineering guidelines. This does not in any way prevent it adhering to the ORR safety regime, which it is required by law to comply with. It also does not give GBR any remit over safety regulation. The standards are non-binding and designed simply to support shared learning across the industry.
Lord Lansley (Con)
That just begs the question of why in Clause 70—perhaps we can discuss it before we arrive at that point—Great British Railways has been taken out of the definition of being an infrastructure manager for the purposes of access rights under the 2000 regulations.
While I have the Committee’s attention for a moment, my noble friend was asking what functions Great British Railways can undertake. The clause makes it clear that the statutory functions are distinct from those things that Great British Railways can do as a company. Some of the things that we are discussing, such as property development, are things that it is doing as a company. However, we have to bear in mind, and the Minister will tell me if I am wrong about this, that we go on to hear about the Secretary of State giving directions and guidance to Great British Railways. That is in relation to its statutory functions, so, by definition, it will not extend to the actions that GBR undertakes as a company. We need to be aware that there is that territory called being a company, which is outside the scope of the Secretary of State’s directions and guidance.
Lord Hendy of Richmond Hill (Lab)
I refute that comment, for the avoidance of doubt and for the record.
The noble Lord is correct. It is an important distinction. As I said, let me meet him on that. He referred to Clause 70. I am not equipped to go into that just now, as he will appreciate, so I will talk to him further about it.
Amendment 18 removes the delegated power to add to the list of functions for GBR. While the functions listed in Clause 3 cover the breadth of activities that we expect GBR to undertake as the directing mind for the railways, it is sensible to provide the flexibility to add functions should the railways change significantly enough to warrant a new function being added—for example, due to technological development, such as in the artificial intelligence space.
This power is not expected to be used frequently, if at all, but it future-proofs the Bill in the event that new activities need to be brought within the scope of the functions. Bringing an activity within the functions in the Bill has several benefits, including that the function then becomes subject to GBR’s duties and ORR’s monitoring. This legislation is expected to govern the railways for a long time, as the 1993 Act did, so this is a responsible and sensible power. This power was also reviewed by the Delegated Powers Committee, which deemed it acceptable and did not draw it to the attention of the House in its report on the Bill—I welcome the report and look forward to responding to it formally in due course. The power cannot be used to change or remove functions and is subject to the affirmative resolution. It is also not unprecedented: the National Health Service Act 2006 allows functions to be added to special health authorities via regulations. I therefore hope that the noble Lord will feel able not to press this amendment.
Amendments 20 and 110 from the noble Baroness, Lady Pidgeon, relate to passenger growth. I very much agree with her that growing passenger numbers on the railways is vital. It supports economic growth, jobs and homes, encourages modal shift and can reduce the level of taxpayer subsidy required for the railways. However, GBR’s general duties in Clause 18 already include a duty to promote not only the interests of passengers but potential passengers. This already requires GBR to consider how best to encourage new users on to the railways. GBR’s business plan will also reflect the Government’s ambitions for passenger growth, including measurable outcomes against which GBR can be held to account.
GBR’s other duties, including promoting high performance, such as reliability and punctuality, will also contribute to making the railways more appealing to passengers. Transport Focus recently found reliability to be the single most important issue for passengers. GBR will be able to improve reliability by making better, whole-system decisions on issues such as the choreography of maintenance works.
As a commercially minded organisation, GBR will also be naturally incentivised to attract more people to travel by rail, because increasing passenger numbers will increase its own revenue. By contrast, there is no intrinsic motivation for GBR to increase rail freight when there is limited network capacity and freight services are in the clear minority of services. That is why the Bill already includes a freight duty and a freight target, to ensure that freight is given equal weight to passengers in a system where passengers may have naturally taken priority otherwise. A stronger or additional passenger equivalent duty or target could actually undermine our ambitions on freight. I therefore hope that the noble Baroness will agree that that would not be the right outcome.
Baroness Pidgeon (LD)
Before the noble Lord moves on, he has not really addressed the point that I made, which is that in Clause 18 there is a perverse incentive that somebody coming in with a different mindset from many of us in this Room could reduce the frequency of trains and hike up fares and still meet what is in this legislation. Even if the noble Lord does not agree with my amendment about a passenger target, and I accept the debate on that, can the Government agree to look at whether some other wording could be put in to strengthen this and make sure that this legislation does what we all want, which is to see more passengers on the railway?
Lord Hendy of Richmond Hill (Lab)
The obligations placed on GBR by the long-term rail strategy, and the consequent approval by the Secretary of State of the business plan, should adequately deter Great British Railways from seeking to achieve that by diminishing services. Indeed, there was an example in the franchising era of the Government being loose with their definition of train services, only to discover that the franchisee had, remarkably, reduced the subsidy by withdrawing a number of services on rural branch lines. That clearly would not be possible with a decent long-term rail strategy and a consequent business plan to which a Government should agree.
Amendments 80 and 81 relate to the Clause 13 provision allowing GBR to charge for its functions. I agree that GBR must act reasonably while setting charges, and I assure the noble Lord that there are already safeguards in the Bill to ensure that charges are reasonable. GBR has a duty to ensure that railway service providers, such as other operators, can plan, invest and make decisions about their own businesses, so GBR must set charges that are consistent with this and do not undermine other people’s ability to run viable and successful businesses.
Competition law will apply to GBR, ensuring that charges it sets are not anti-competitive. In this context, an additional reasonableness test is duplicative without delivering any material additional protection. It is also important that GBR can recover appropriate costs from those who access and benefit from the services it provides. If it were prevented from doing so, the burden would ultimately fall on the taxpayer and passengers.
Amendment 81 would provide an appeal route. All I say to the noble Lord is that an appeal route to the ORR across every possible charge that GBR could levy is disproportionate. I have already mentioned the safeguards in existing law to ensure that those charges are fair.
On the private sector growth target referred to in Amendment 114, nothing in the Bill seeks to exclude or marginalise the contribution of the private sector, but I do not agree that a statutory target is the right approach. The Bill is absolutely an opportunity for the supply chain, but in that case, we have to let the market determine its contribution.
On Amendment 305 from my noble friend Lord Berkeley, I assure him that existing legal rules already allow railway operators to seek recovery of costs and other losses through civil law. A substantial amount of cost recovery is achieved already, and the limit to it is to do not with legal powers but with the identification of perpetrators who drive off. Given what I have set out, I encourage noble Lords and noble Baronesses not to press their amendments.
Lord Moylan (Con)
My Lords, I begin with a craven apology to my noble friend Lord Harper for my comments about the Sunak Government. For the avoidance of doubt, had the last general election been fought solely on the question of his conduct of the office of Secretary of State for Transport, I am sure the result would have been very different and more favourable to the Conservative cause.
I will not refer here at any length to the question of functions, except to say that it is a mess. At the end of this debate, everybody in the Room who has thought about it can probably see that it is a mess. However, the Minister kindly offered me a meeting to discuss this, and I think my noble friend Lord Lansley is now very much included in that invitation, and possibly other noble Lords. I ask that that meeting takes place reasonably promptly as these issues will return at later stages in Committee rather than being left to the end of Committee and rushed through just ahead of Report. A sensible meeting on that could be very valuable.
I will comment about the noble Lord, Lord Davies of Brixton. I do not agree that there should be a single employer as such, although I think there will be one because I think the unions will get their way. My noble friend Lord Harper explained the danger to the public of going down that route. I fully expected—and was disappointed—that the noble Lord, given his background, would refer to the difficulty with pensions, particularly the fact that all these organisations currently have individual pension schemes within the Railway Pensions Scheme. Is the Minister satisfied that it will be possible, in the timescale he is working towards—namely, the designation of GBR in the second half of next year—for the Railway Pension Scheme trustees and Railpen to achieve a smooth and lawful transition of pension arrangements in that time? He may not be able to answer that question now, but we must find some way of coming back and discussing this because pensions are a very important aspect of the remuneration of the employees.
Baroness Harding of Winscombe (Con)
My Lords, I rise quite nervously as I am definitely not a rail expert, this group of amendments is not really about the railways and the room is full of people who are huge rail enthusiasts. There are quite a lot of amendments in this group and they all, I think, aim to do the same thing, which is to make sure that in creating Great British Railways we do not adversely affect the current competitive market for online retail ticketing services. I will speak to a series of amendments in my name, Amendments 10, 52, 53, 136 and 139, and will also speak to amendments in the name of my noble friend Lord Young, to whose Amendments 48, 117, and 211 I have added my name. I will also support some other amendments that I was just not organised enough to put my name to: Amendments 11, 31, 49, 50, 180, 181, 182, 212, and 328.
If noble Lords will humour me, I will start by trying to set a bit of context for the whole group to try to explain why I think we should be worried about this and why noble Lords not as interested in digital as I am should care about the importance of this group. First, the Competition and Markets Authority has said it is worried. In April 2025, its response to the Government’s consultation on the future of the railways was very clear that this is a problem. It is concerned that the risks of actual and perceived self-preferencing are likely to be greater the more closely ticketing is integrated with GBR’s core activities. In the Bill, ticketing is very closely integrated into GBR’s activities. The CMA was very clear that it is important to send the right signals to independent retailers and investors that this would remain an open, competitive market. The CMA is worried.
Secondly, experience in other networked markets shows that we should all be worried. My experience is, as I said at Second Reading, from the telecoms market, where we know that BT’s ownership of Openreach led to very clear self-preferencing for BT retail and a long consumer campaign to separate out Openreach to force clarity and transparency. Actually, retail competition in telecoms has been hugely helpful, while at the same time acknowledging the need for that single Openreach infrastructure organisation. That happened only because of very clear competition regulation overseen by Ofcom. We know that if you do not have that, you get bad behaviour from the integrated virtual network monopoly.
Thirdly, the other reason why we should be worried is that this is already happening. Anyone who is used to having to use Delay Repay will notice that it has only very recently been integrated, and only partially, into the Trainline app. That is because the train operating companies refused to do it, because they wanted to keep control. Only in the last two months, GWR and Transport for Wales have both announced new ticket products that cannot be sold by third-party retailers. This is not in principle—they are much cleverer than that—but in practice. There are technical reasons why those products cannot be sold by other retailers; it is because the systems integration is not quite there or the data is not gathered. In one case, it is because the independent retailers do not capture date of birth. This is not by accident. This is what vertically integrated monopolies do: they design products that are very hard for their competitors to replicate. We should worry about this as we debate the Bill, even if we are not that interested in digital retailing.
I thank the Minister for his time on this. We had a very constructive meeting yesterday, and I know that he and his team have had constructive meetings with other noble Lords. I came away from my meeting with him, as I did from his speech at Second Reading, with the impression that he agrees that competition in retail ticketing is a good thing. I think we would all welcome him putting that firmly and clearly on the record today. The question is whether there are sufficient safeguards and signals in the Bill to make that the case. I do not think that there are. Just to try to decode this quite large and complex group, I think there are three areas that the amendments are seeking to get clarity on, without which there is a real risk that what is genuine consensus—that we do not want to nationalise ticketing but to have an open, competitive market—will not happen.
The first area is getting clarity in the Bill that GBR will be required to compete on the same economic terms as independent retailers. I do not think that that is currently clear, and there are a number of amendments attempting to make that clear in this group. The second area is getting clarity that the ORR will have a competition duty as it relates to enforcing the retail code of practice, so that there are real ex ante safeguards to prevent anti-competitive behaviour from GBR. The third area is that independent retailers will be able to appeal the decisions of the ORR as it relates to the retail code of conduct. If you think about it, those are the three layers of the onion. First, is GBR required to create a level playing field? Secondly, has the ORR got an obligation to oversee that level playing field? Thirdly, have independent retailers got a means of appealing if it goes wrong?
Let us take each of those in turn, starting with whether there is a level playing field. My experience from telecoms is that by far the best way to do this is functional separation of the network from the competitive retail market. Having spent a decade trying to make that happen in telecoms, I am pretty certain that it is better than trying to design the regulations. I have considerable sympathy with Amendment 182 by my noble friend Lord Holmes, who is beside me, and, if you read in detail the CMA’s response to the consultation last year, I think it does too. But I appreciate that the Government and the Minister have consistently rejected that organisational solution. If the Government are going to reject that solution, we really do need hard and fast guarantees that the obvious risk of abuse of that vertically integrated power can be mitigated. Their refusal of functional separation makes it all the more important that we get into the Bill the requirements on GBR to create economic parity. As the CMA said, the less functionally separate they are, the more important it is that these rules are clear.
A number of amendments in this group—Amendments 10, 11, 31, 48, 49, 50, 117 and 181—all separately try to achieve this. I accept that we do not need all those amendments; it is a function of the strength of feeling across the Committee that we have so many competing amendments attempting to do the same thing. If I had to choose, Amendment 48 in the name of my noble friend Lord Young is the most important and strongest, which would put it very clearly into GBR’s licence. However, I very much hope that we can have a constructive debate with the Minister on how we do this.
I would like to ask him a few questions about this. I fear he will say that we do not need to do this because it will all be set out in the retail code of conduct, but as that has not been published, even in draft form, it is impossible to be sure. Can he confirm when the draft code of conduct will be published? Can he confirm that it will state clearly that GBR’s retail ticketing operation will be subject to the Subsidy Control Act? Can he confirm that GBR will be required to publish separate accounts for its retail operations? I understand that he has indicated it will not, but I am flabbergasted by that because, just to manage the retail operations well, GBR will surely need to know whether it is making money. Those accounts should exist; it is just a question of whether it is willing to be transparent about it.
In confirming that the retail code of conduct will state clearly that GBR’s retail ticketing operation will be subject to the Subsidy Control Act, can he explain why it is better not to be clear that Parliament’s clear intention is that GBR should not adversely affect competition in retail ticketing? I cannot understand why the Government would not put one of these amendments into the Bill if—as I am sure the Minister would agree—we want to have a competitive market. In other digital areas, we have learned to our cost—we have learned it very recently in online safety—that, even when there is real cross-party support for a position, if we do not get it in the Bill, the regulator is capable of misinterpreting it. As the Minister has said himself, this is a once-in-a-generation piece of legislation. It is really important that we get the structure of this market right.
That is the first point; I promise I will be quicker on the second two. The second set of amendments within this group, Amendments 136 and 139 in my name, aims to make sure that we are clear about the role of the ORR. They would make it clear that the ORR’s competition duty should apply to the enforcement of GBR’s licence condition as it relates to the retail code of practice and when the ORR assesses GBR’s performance to the extent that it concerns retail ticketing. I know the Government will say that this is not necessary, it will all be set out in the code of conduct and it is already clear that this is the ORR’s job. In that case, let us make it clear in the Bill. There are a number of reasons why we really need to be clear about this. This not the ORR’s job at the moment. It does not have the skills and experience needed in retail ticketing, and it will need encouragement to build them, especially when there is so much for it to do in its core area of expertise of running the railways.
I am sure that it has the best possible intentions, but we know that running these regulators is really quite hard. We need to make sure that, as we create one of the country’s largest quangos in GBR, the ORR knows that one of its jobs is to keep GBR honest. If we do not have this in the Bill, I worry that, as the retail code of conduct is amended in five, 10 or 15 years, it will gently soften the amount of focus that the ORR needs to have on this. Before we know it, we will have another monopoly market where consumers are the ones who pay the price. It seems unnecessarily risky not to make these quite simple changes.
Lord Young of Cookham (Con)
My Lords, I have added my name to five amendments in this group. I am the lead name on Amendment 31, which would require the Secretary of State to issue directions to promote fair competition, and on Amendment 48, to which my noble friend referred. It has the same objective as the other amendments, particularly those ably moved by my noble friend, but it does so by making it a condition of GBR’s licence that GBR does not distort the market in ticket sales. The advantage of that amendment is that it is upstream—it is proactive—in that GBR would not get its licence until it had satisfied not just Amendment 48 but, in conjunction with Amendment 47, the CMA had signed off the necessary precautions and provisions that my noble friend has just referred to to make sure that any competition is fair. The other amendments would place a duty on GBR to compete fairly, but they would bite only if it was alleged that it was not doing that. The advantage of Amendment 48, in conjunction with Amendments 47 and 49, is that it is upstream and hopes to avoid the problem.
I am grateful to the Minister for the meeting he held on 3 September when he confirmed that he wanted a fair and open market when it came to retailing. There was some good news at that meeting in that the Minister confirmed that GBR will not be selling tickets that only GBR can sell—a practice to which my noble friend referred. He confirmed that anything that GBR sells will be available to online retailers, and it would be helpful if we could have that on the record. The ORR has already done a review of the benefits of an active retail market, and this is what it said in 2015:
“Third party retailers play a key role in improving ticketing for passengers. They offer different ways to access information about rail fares and journeys and provide more choice in where and how to buy tickets. They also play a role in expanding the rail market (to the benefit of TOCs and taxpayers) and in putting competitive pressure on TOCs to improve their offering, including by innovating”.
A recent review by a firm called Teneo estimated that third-party retailers added an extra £450 million per year in additional revenue for the rail industry by attracting new customers, reducing friction in the rail journey and supporting revenue protection. The independent sector pioneered digital ticketing. It paid 70% of the £30 million upgrade to the new barcode infrastructure. Those benefits can carry through to GBR, but only if there is fair and open competition.
The independent retailers are used to competing with train operating companies. At the moment, they are prevented from unconstrained subsidy of their retailing by the public service obligations in transport. They are happy to continue to compete with GBR, but they are anxious that there should be a level playing field, as my noble friend has just explained. She quoted from the CMA; the following sentence adds force to her argument. About the risks, it said:
“In a more closely integrated model, additional safeguards are likely to be required in order to achieve the government’s aim to ensure the sector benefits from the effects of fair and open competition between GBR and TPRs”.
Those additional safeguards are the subject of all these amendments.
One possible solution would have been to adopt the model of SNCF, a publicly owned French railway company whose website is a separately owned company. However, the Minister has made it absolutely clear that he does not want that option; he wants an integrated GBR, so I will not pursue it in that particular form. But insisting on an integrated model does not mean that the cost of online retailing should not be identified—a point made by my noble friend. Separate and transparent financial accounting should be a cornerstone of the safeguards that the CMA and ORR want. My noble friend referred to British Telecom; there is a parallel here. Both GBR and British Telecom owned the network but sold services using that network in competition with others. As my noble friend said, the solution insisted on by the regulators was clear separation.
May I draw on my experience as a former Treasury Minister and Transport Secretary to outline the risks that I see ahead? In the next few years, there will be enormous pressure on the Department for Transport. It is an unprotected department, and the IFS has estimated that it will have to cut its budget by 3 percentage points between now and 2029. It will get a letter from the Treasury asking it to identify savings of between 5% and 10%, in cash terms, in order to keep the Government within their fiscal target. The Secretary of State will reply by thanking the Treasury in courteous terms and saying that it can meet that target only by either cutting investment, cutting the rolling stock programme, which impacts on growth, putting up ticket prices, which impacts on the CPI, or cutting branch lines that run through a whole lot of ministerial constituencies.
The Treasury will then go through the department’s budget line by line and suggest savings. It will ask why so much has been spent on first-class travel and why it has so many press officers. In relation to this debate, it will say to the GBR, “Why are you paying £200 million in commission to independent retailers when GBR has its own website?” It will suggest to the Department for Transport that it cuts the commission from 4.5% to 2%. It will say that, historically, it was 10%, but it was cut, and it was cut again by the RDG to 4.5% in 2021, I think. The Treasury will argue that the pain should be shared not just by the Department for Transport but by independent retailers, and that with AI and by seeking new markets and doing more advertising, it can reduce its costs. The online retailers will say, “This totally destroys our business model. There is no way we can survive on 2%. It will drive us out of business”. There will then be no pressure to innovate and no consumer choice, and we will be left with a GBR monopoly with no pressure to innovate or improve passenger standards.
They may actually go further and say that the website that should be taken down is actually GBR’s. They will say that there is no way that GBR could survive on 2% and may well allege that the website costs far too much to set up, that it is overstaffed and that the costs of the premises that the website occupies are not accurately reflected. I do not take sides in that great debate, but the only way that the ORR or CMA will resolve it is with some facts and figures that identify exactly what costs are involved in GBR’s exercise.
The Minister may argue that these amendments are not needed because GBR would already be bound by competition law—and it is—and there is already a statutory obligation to do what I have said, so what we are doing would simply duplicate that obligation. But how would that competition law be enforced if we do not have the data?
He may also argue that GBR is an integral entity quite different from an online retailer, that online retailing is lumped together with the ticket offices and call centres, that it is quite impractical for GBR to identify one means of selling its tickets from the others, and that it makes no sense to regulate online retailing separately from them. The Bill wants to lump it all together so that GBR’s online harm—online arm; I am sorry—can hide inside the wider retail function. That argument sits uneasily with a commitment to fair and open competition. The station ticket offices and call centres do not compete with the online market. The website does; online retailing does. Treating all retailing as one function allows GBR to claim that its online arm is merely part of a broader retail activity, enabling it to argue that competition duties do not apply to its online parts. Crucially, it allows the cross-subsidy from infrastructure budgets to be buried inside retailing and enables GBR to avoid the cost of sale parity by hiding online costs.
I noticed that these amendments are signed not just by Conservatives but by Liberal Democrats and Labour Members. So there is a real imperative on the Minister to indicate some flexibility on this matter, and some willingness to have further discussions and, crucially, to table some of the amendments or variations on them with the assurances that all those who have signed these amendments are after.
Baroness Alexander of Cleveden (Lab)
My Lords, I apologise to your Lordships for not being here at the start of proceedings. Noble Lords put me on to the Economic Affairs Committee yesterday; it had its inaugural meeting this afternoon and it demanded my presence. I am so sorry to have missed the first two groupings, but I am here for this one.
I will speak to the two amendments to which I have added my name—Amendment 117, to which the noble Lord, Lord Young, just referred, and Amendment 136, in the name of the noble Baroness, Lady Harding. My reasons for supporting them closely parallel the arguments that we have heard. I do not have the distinguished history of having been a Rail Minister, as the noble Lord, Lord Young, was—at least not in Westminster—but I had that role in the Scottish Parliament and I understand the risks of unprotected departments. Therefore, we have a duty in the Bill to consider how to protect the incredible digital innovation that we have seen in the provision of retailing services that have been widely welcomed by passengers across the country. The noble Baroness, Lady Harding, and I share a common interest in the whole area of digital regulation, as she said. The risk of leaving ambiguity surrounding the role of regulator and not putting obligations in the Bill may lead to unintended consequences down the line.
I thank the Minister and officials for the recent engagement they had with noble Lords around the intent in these areas of rail retailing. I appreciate that the retail code of practice will be published prior to Report; it will go some way to allow all parties to assess whether the code meets the Government’s stated objective of fair competition in retailing.
Lord Holmes of Richmond (Con)
My Lords, it is a pleasure to take part in day one of Committee. I declare my technology interests, as set out in the register, as adviser to the Crown Estate and Simmons and Simmons LLP and as non-executive director of Avalanche Foundation and Avalanche BVI Inc.
What a group to be part of. For anybody who thought that competition is not a good idea, the arrival of a second ex-Secretary of State for Transport has demonstrated clearly that competition is the way forward, as I am sure we will see in a moment when I sit down. Fundamentally, what is there left for me to say after my noble friend Lady Harding’s forensic introduction, which took apart all of the reasons for the current construction of these sections in the Bill, followed by my noble friend Lord Young’s intervention?
In many ways, my noble friend Lord Young inadvertently, but highly accurately, summed this up when he said “harm” rather than “arm”, because that is where we are at. He looked forward into the future and into, as he said, how this may develop, but I would go further. There is no crystal ball gazing going on here. This is not a potential, as he set out. This is an inevitability; this will happen.
How can we know this will happen? Because it has already happened in other departments in very recent history. We do not need to go into the details but, last year, there was a case in point where, when the growth pressure came along, a particular government department saw a piece of work it was involved in where, for years, it had worked collaboratively with the private sector to build particular solutions, but then it saw that there was a potential wedge that it could throw into the pot to put into its departmental contribution. Suddenly, a screeching change of direction was taken and a monopoly play was deployed. This is inevitable if we progress with the Bill as currently constructed.
What is the Minister’s response? The CMA knows competition—it does it every day—and its submission was conclusive. Why would the Government want to construct something so clearly and monstrously problematic at this stage, which will only cause them pain within such a short space of time, when it is so avoidable, either through functional separation, as I suggested, or through the eminently sensible alternatives offered by my noble friends? Why would the Government choose such a problematic path forward at this stage, when it is more than reasonably foreseeable that the problems will come? In fact, as I said, it is inevitable.
Competition is absolutely critical, and the other element within competition is innovation. This will not lead to optimal innovation. Let us imagine not just the potential plurality of ticket retail sellers but the kind of products that they could bring on stream. We could see tokenised tickets that could transform the passenger experience; they could contain so many details that there would not be a need for passengers to explain, for example, their needs, whatever they may be. They would all be contained in a tokenised ticket. That would be truly transformational, but it would require a level playing field, a crowding in of competition and, through that, a crowding in of innovation.
I move on to my second amendment, going broader and looking at the huge array of data already available to GBR. We have always had a huge volume of data across transport, not least in the railways, and it has never had the opportunity to truly drive the transformation that it could. We have talked tickets, but take the example of the rolling stock itself: imagine what innovation third-party, crowded-in businesses could bring if they had those data at their fingertips. The great news is that neither GBR nor this Committee has to imagine what that innovation could be; all that has to be done is to put those data out there on a level playing field, equally available through the technologies that exist. The innovation, transformation and improvement would simply flow.
For reasons of competition, innovation and taking all the advantage of these new technologies, I constantly mention the problematic nature of the Government flatly refusing to pass a cross-sector and cross-economy AI regulation Bill. We see it here and in the cyber Bill, for those who have been in Committee on that Bill. That could lay out a framework that could work in this rail context as it would in all other sections of our economy and society. If that will not be in place, how will the advantages of these technologies be felt by passengers, rail workers and everybody involved in the GBR entity coming into being? We need to see these changes if we are to feel, and be availed of, that transformational potential and the economic benefits that will flow. The Government would benefit from adopting changes set out in this suite of amendments. I look forward to the Minister’s response.
Lord Berkeley (Lab)
My Lords, this has been a fascinating debate and I fully support comments made by the noble Baroness, Lady Harding, from her experience in telecom. I have suffered a bit myself from them, and what she told the Committee is no surprise.
The noble Lord, Lord Holmes, is also absolutely right that we need a level playing field. The noble Lord, Lord Young of Cookham, probably hit the nail on the head when he said that the sooner we do this, the better, so I definitely support his Amendment 48.
It is worth reminding ourselves that there is not just one big private sector retailer and all the ones that retail for the TOCs at the moment, but there are lots of smaller ones as well. The ORR will have to look at making sure that the fair competition between the big ones and the little ones is kept in line with competition policy and that we do not have one of them running away with everything else. It would be no good having one private sector company becoming a private sector monopoly—you might as well have a GBR monopoly—but we do not want monopolies. That is my message.
One noble Lord who spoke was concerned about the workload that may be coming to the ORR. I have had many experiences with the ORR over the years and it tries very hard, but it needs to be prepared for an extension to its scope. However, one thing I know is that it is capable of doing it and will be interested in doing it. I am sure many noble Lords have talked to it in the last few months. I think the ORR is also quite relaxed about the involvement of the CMA, because the CMA needs to be there as well, possibly as a second line of defence. It will just not work unless the level playing fields are separated from the great work that GBR will do in running trains and making sure the infrastructure works and things like that. Having a separation, including the accounts, as some noble Lords have said, is really important. I hope my noble friend will come back with some positive views on competition, and we maybe will even have to have a meeting or two before Report.
Baroness Leaman (LD)
My Lords, I speak to Amendments 208 and 339 in my name in this group. I set out the case for automatic Delay Repay at Second Reading, so I will not repeat that ground today save to say that I doubt I am alone in having abandoned a claim because the process took longer than the journey was delayed. Instead, I will use this stage to explain what these two amendments would do.
Amendment 208 would place a duty on GBR and open access operators to pay Delay Repay compensation automatically, wherever they hold enough information to identify that a passenger’s journey was delayed by 15 minutes or more and have the means to pay them. Where an operator does not hold that information, it would still have to take reasonable steps to let the passenger know they are entitled to claim, so the burden of finding out does not fall on the passenger alone. No one would receive less under the automatic route than under operators’ existing schemes, and payment would default to digital means to reflect the way that most fares are already bought and refunded today. None of this asks GBR to invent a new right. It asks operators to use data that they already have to give effect to a right that passengers already have. I am open to a different mechanism if the Minister has one in mind but the underlying case is straightforward. Whether a passenger gets money back that they are owed should not depend on which operator runs their line or on their persistence with a claim form. A right that exists on paper but which is rarely exercised in practice is not really much of a right at all.
My proposed new clause would also leave the Secretary of State flexibility to set timescales, notification methods and exceptions by regulation. Amendment 339 follows from that. As drafted, those regulations would be subject only to the negative procedure, taking effect unless the House objected. Amendment 339 would instead require debate and approval by both Houses under the affirmative procedure. Given how much of this scheme’s substance would sit in regulations rather than in the Bill, Parliament should scrutinise and approve them properly, not simply have the chance to object afterwards.
Lord Hampton (CB)
My Lords, I added my name rather belatedly to Amendment 208 from the noble Baroness, Lady Leaman. She has put it so well that I will not detain your Lordships at all, except to say that I added my name. I am astonished that nobody else did, because it seems like such an extraordinarily good idea that I do not know why it has not been done before.
Lord Beith (LD)
My Lords, I did not add my name, but there is a limit to the number of names you can add. Many of us feel very supportive of the recommendations from my noble friend Lady Leaman in those two amendments.
I simply want to give some context to the reasons for the amendments such as those from the noble Lord, Lord Young, to be considered for the Bill, or something based on them being considered, to secure a genuinely fair and free market in the retail sales of train tickets. It is worth remembering how much difference the private operators made to the price you had to pay for many kinds of journey. We have been discussing it in theoretical terms, but there was a time when, if you wanted to travel from Edinburgh to Penzance on the cross-country train which made that journey, the cost was enormous. What changed it? It was split ticket operators demonstrating that they could get four or five different tickets—including, when I did it on one occasion, a West Yorkshire rover ticket that carried me one small piece of the journey—and that this accumulation of a handful of tickets would give you a price less than half the cost that you would have been quoted originally for that journey.
Not only did that cheapen tickets for a lot of people making difficult journeys, but it also changed the attitude of many of the operating companies. Certainly when I go to the station to buy a ticket, I am now always asked whether I want a cheaper ticket by getting the next train or the one before it. There is an alertness to the customer’s need to know what the options are for a reasonably priced ticket, which has been brought into the system by the private operators. I do not advocate these amendments because competition is a good Liberal value, but because experience has proved that to be the case.
All this has to exist in a world in which very rapid change will take place. At the moment, operators issue their own tickets. The result is that there is an invisible interaction between the person selling the ticket, the retailer, and the revenue protection officer on the train whose decision it is whether that ticket will be valid on that train. If you have missed one and are getting the next one, it may well not be; if you have chosen to change your journey pattern, it may well not be. The Minister may fondly believe—we have talked about this in a very helpful discussion—that all this will fall away, because when GBR is the only one providing the trains, there will not be these difficulties. I am not convinced of that; I think that old habits will die hard. If we are not very careful, we will still have a situation where the retailer gives you the impression that he is retailing a piece of paper or an email that will enable you to travel on one of several trains, when you are actually buying something limited by the policies and practice of the operator. It may be one operator in principle, but there will still be different regions under different regional management, so we need to have methods of ensuring that. I hope to return to that second point later in Committee, but we should understand the context and value of what we are discussing.
Lord Lansley (Con)
My Lords, I do not have my name on these amendments, but I thoroughly agree with pretty much everything that has been said. I especially support what my noble friend Lady Harding said in introducing this group and am entirely in agreement with my noble friend Lord Young of Cookham. I do not want to get into the question of appeals, because we will come on to how the appeal process should be structured later.
Amendment 47 in the name of my noble friend about the approved document is particularly important. I assume that the code of practice that we are promised, which the noble Baroness, Lady Alexander, was talking about, is the equivalent of the approved document or some part of it. At the moment, we have this ticketing and settlement agreement. We have to know how this is going to work in future. If we do not, we should expect—indeed, we should call for—the Competition and Markets Authority to step in. As things stand, the relevant aspects of the ticketing and settlement agreement constitute part of a block exemption against a Chapter 1 prohibition under the Competition Act. It is, on the face of it, potentially an anti-competitive agreement, but the block exemption exists. The question is whether the agreement satisfies the requirements of the block exemption. We have to look at the agreement to know whether that is the case, which is why Amendment 47 is right. We have to ask the Competition and Markets Authority whether the code of practice or the approved document under the Bill satisfies the requirements of the block exemption.
The fact is that GBR will be in a dominant position. Under the Competition Act, in addition to the prohibition on anti-competitive agreements there is a prohibition on abuse of a dominant position. Much of this debate is saying that, given that we know that GBR will be in a dominant position, we should be actively looking for the Office of Rail and Road, by way of market investigations in this area if necessary, or the Competition and Markets Authority to step in, as the current jurisdiction enables it to do, to counter any abuse. We know from Clause 2(1) that Great British Railways has no Crown immunity. Under Section 73 of the Competition Act, there is a Crown immunity from the constraints, remedies and directions of the Competition and Markets Authority, so GBR does not want to be in a position where the Competition and Markets Authority comes after it to prevent its abuse of a dominant position. For all those reasons, the Government would be well advised to put into the legislation measures that will prevent GBR being tempted to abuse its dominant position and to ensure that the approved document will satisfy the CMA’s requirements for a block exemption.
Lord Harper (Con)
I thank my noble friend Lady Harding of Winscombe for her excellent opening of this group, the comprehensive way in which she did it and—I think this is a powerful point—her real experience of a similar process and what actually happens in practice. One of the values of this House is having not just theoretical debates but Members who have experience of how these things work in practice. It is no good just legislating for what we think might happen; it is about what will happen. That was particularly valuable.
In this area, unlike some of the areas in the Bill, there is broad consistency among everybody who has spoken so far. At Second Reading, in other fora and in writing, the Minister set out that the Government want a competitive retail landscape and recognise the benefits of that. So what we are debating here is not the principle but how best to achieve that shared goal in practice. I will try to add to this debate.
Practically, the suggestion in my noble friend Lord Holmes’s Amendment 182 of a functional separation —which the noble Baroness, Lady Harding, also raised—is the cleanest and most sensible solution. That means that GBR is not in a position where it is tempted to abuse a dominant market position. It has a separate retailing arm, the rules can operate in a transparent way, you avoid a lot of trouble and you do not have to set up a complicated mechanism to deal with that abuse. I understand that the Government have set their face against that, but I reinforce that that would be the best solution and would solve a lot of these problems.
If the Government do not want to do that, for whatever reason, we absolutely need to make sure, first, that there is transparency. If all this is hidden away, it is very difficult for whatever mechanisms are put in place, whether it is the CMA, the ORR or whatever legal processes the independent retailers have to do. As the noble Baroness, Lady Harding, said, they are not huge companies with bottomless pits of money to be able to do this. If you do not have transparency, people do not know what is going on.
I will make a slightly different argument, bringing in our friends from the Treasury, than the one my noble friend Lord Young of Cookham made. This is one where the Treasury should be on our side. One of the important things that the Treasury wants to achieve is to reduce the subsidy paid to the rail network because, post Covid, the rail network does not send money to the Treasury; it sucks money away from the Treasury. The only way that will change on the operating side is if there is innovation and more passengers use the rail network. The ticketing retailers are one of the ways, in the innovative way they retail tickets. Importantly, if leisure travel is to be a growth area, the partnerships that they strike with providers of leisure opportunities can then be combined with travel to produce innovative packages. If you are going to do all that, you need that thriving, competitive retailing operation, so the Treasury should want that to be successful.
The other thing the Treasury should want is that the operating cost of GBR’s own ticketing operation should be as low as possible. On the cost of running that operation, I challenge what my noble friend Lord Young said. We know what the third-party retailers get because we know what the percentage commission is. If GBR’s retailing operation is not able to run its services for less money than that, it should not be in business, frankly, because it is adding no value at all and should not be running it. My hunch is it that it will not be able to, which is why, when I was Secretary of State, I said it should not really get involved in this business at all because there were lots of competing providers that were much better at it and, frankly, it should just get those to do it.
However, for reasons I do not quite understand, Ministers want GBR to be involved in this process. So, it is critical that the accounting—I declare my interest here as a chartered accountant—should be absolutely transparent so that we can see what it costs. From the Treasury’s point of view, as I said, it wants to be sure that no subsidy is going into the ticketing operation from the rest of the thing, given that there are competitive operators that can deliver this, I suspect, more cost effectively. That is an argument for the Treasury supporting some of these amendments.
On the subsidy point, I believe there is a question that is not resolved, which the independent retailers are concerned about. I understand that, in written correspondence with the Independent Rail Retailers, the department has asserted that GBR’s online retailer will not be subject to the Subsidy Control Act 2022, arguing instead that it will be governed solely by the Public Service Obligations in Transport Regulations 2023. That approach is inconsistent with the legal framework and assurances given by Ministers during the passage of the Bill so far that GBR will remain subject to public law, competition and subsidy control requirements.
Baroness Pidgeon (LD)
My Lords, this has been a strong debate on an important issue. It is about ensuring that passengers have a wide range of retailers from which to buy their tickets and other associated services, whether for leisure or onward travel and so on, and that there is a level playing field between Great British Railways’ retail arm and the third sector providers. At the start of the discussion on this group, the noble Baroness, Lady Harding, and the noble Lord, Lord Young, made a clear case about the issues, which are uniting members from across the Committee.
Throughout the discussions on all the amendments in these groups there has been a desire for genuine and fair choice for passengers. We want to promote a competitive retail market and equal access to systems, data and products so that they can be used by start-ups and others as well as established practitioners in this area. The latter point is important. It is part of Amendment 211 in the name of the noble Lord, Lord Young of Cookham, and is supported by a number of other Members, including my noble friend Lord Dixon of Jericho. I want to spell out why these issues are so important.
I was really interested to hear about the recent product launched in Wales earlier, which not all third-party retailers were able to promote. In the last week, South Western Railway has had a special discount, some kind of flash sale, on rail tickets on its services. I was not able to find these on my usual app—Trainline, though others are available—but only on the South Western Railway website, which is what I had to use to purchase these super-discounted tickets. It may well be my technological limitations failing me, but, if I had not seen an email from South Western Railway, I would not have known about these special tickets and would have ended up paying three to four times the amount for my travel.
There has to be a genuine level playing field where all retailers can sell the same tickets and discounted tickets and use their skills and innovations to drive more traffic through their sites and apps. Different people read data and information in different ways, and that is why we have such a range of apps; we all look at things differently and have different ways we want to purchase tickets. It is important that this can thrive, with the jobs and innovation that this creates.
Members from different parties are in the same area on this issue, but some go further. Amendment 17 from the noble Lord, Lord Moylan, wishes to prevent Great British Railways having any retail website or application until Parliament has had a say over its full-life cost. This sounds a little bit like what the noble Lord, Lord Harper, was talking about—when he was in the department saying, “Why is Great British Railways getting into this space at all?”
As we have already heard, if you look internationally, SNCF has a retail arm in France, but it is kept separate from the main SNCF network, so there is no conflict. In some ways, that is a bit like the regeneration and planning functions of a local authority. They are a part of the same body, but they have to be kept separate because of their distinct functions. Amendment 182 from the noble Lord, Lord Holmes of Richmond, suggests a way to do this, which may help with this concern.
My noble friend Lord Dixon of Jericho spoke eloquently at Second Reading about this area. I know he has held several meetings with officials to discuss his concerns not just about the existing third-party retailers but the ease for new entrants—start-ups—to come into this marketplace and offer the quality services that passengers desire.
Finally, I want to pick up on Amendments 208 and 339, tabled by my noble friend Lady Leaman. This is so important for passengers. It would ensure automatic Delay Repay compensation, whichever retailer you have bought your tickets with. It is about putting the passenger front and centre so that, if something does go wrong, they are compensated without having to jump through hoop after hoop. It is a basic right if we are to transform our railways into the modern, passenger-focused service that we all desire.
I look forward to the Minister’s response on this really strong debate; I hope that it is far more than simply saying that the retail code of practice, as an approved document, will deal with all these issues. I think the Minister will have heard loudly and clearly—and not just from the transport enthusiasts, though many of us are here in this Room—that noble Lords are rightly concerned about this area, and we must get this right.
Lord Moylan (Con)
My Lords, I have a number of amendments in this group, but I will not speak to them because right at the outset my noble friend Lady Harding said that there were quite a lot of amendments in this group which offered different means of achieving the same thing, and it was hard to say which were the better ones. I am not claiming that mine are better than others, and I think my noble friend Lord Harper said something along the same lines. We have put them down because we feel strongly about a very important issue, we want it debated, we want the Government to take note and to do something about it before we get to Report. Whether they do what my amendment or somebody else’s amendment says is something we might have a chance to debate and discuss privately before we get to that point—I do not know—but I am not wedded to my particular solutions and therefore will not speak directly to them.
I will say that we on our side support everything that has been said, in that we are curious about why GBR is doing this. I will come back to this point; I will make the Minister’s case for him in a moment, rather against my own interests. We are curious as to why the Minister wants to do this in the first place but, if he is going to do it, there has to be a level playing field for those who are already in the field and other new entrants, because they have demonstrated the advantages they can bring to passengers. The difficulty here—it will arise in the next group—is that GBR is effectively a huge bear sitting in your front room. That bear is both a competitor and a regulator, and its slightest twitch, even unintentionally, could do serious damage to your business. There are a lot of private sector businesses, not just in ticket retailing but those who want to have access to freight and for other purposes, which we will come to later—open access and so forth —which are very worried about what is being created.
The only assurance we are getting from the Minister is essentially, “We are decent professional people; we will do this well”. That is fine. The noble Lord is a decent and professional person. Having worked with him for many years, I am happy if it is of any value to him to give him that endorsement. However, he lacks the quality of immortality. It is necessary to give at least 30 years’ guarantee, if this is going to be the legislative background for 30 years.
Lord Moylan (Con)
He may do that. He lacks the ability in himself to give us the level of assurance that we and various aspects of the industry—not just retail—want.
I am grateful to the noble Lord for having held a meeting, which was open to all interested Peers, last week. I will say something that I raised then. I have to say that I had to slip out briefly during my noble friend Lord Holmes’s speech. He may have said something along these lines. I know he spoke about data.
Lord Moylan (Con)
It was a very good speech that I will read several times in Hansard before tomorrow is out. I just wanted to address what I would do if I were in the Minister’s position—and he and I have been in a similar position together when we were responsible for Transport for London. One of the interests you have as a business in operation is that you want the direct contact with your customers. You want direct customer contact, partly because you want the data. The noble Lord has said this—we have had some conversations, both privately and in that meeting. You want their data. This is perfectly obvious.
In my pocket now, I have a Nectar card and a BP card. I am carrying these things around, not really for my benefit but for the benefit of the companies, which want lots of data and information about me. GBR will be in no different position. Therefore, in one sense, it wants to be, like TfL, a monopoly supplier of its own tickets. The temptation to be a monopoly supplier of its own tickets will be huge, quite apart from any pressure that might come from the Treasury or anywhere else, because it wants that data.
Yet the position of the noble Lord seems to me slightly incoherent. He could step forth boldly and say, “We want that data. We need to be a monopoly supplier, and all these private companies, whatever they do, have to go, because they are getting in the way of what we want. You cannot buy your groceries from Sainsbury’s through a third-party retailer—you can only buy them from Sainsbury’s”. He could say that. That would be a coherent position, although not a politically very easy one in current circumstances, I have to say. Or he could say that he is happy to have a large amount of competition, which is what he seems to be saying.
I can be corrected if I am wrong—I have heard this figure without absolute certainty in it—but I understand that close to 90% of tickets are currently sold by third-party retailers on the railways, so when the noble Lord starts, he will be starting from a very low base. To get any useful data at all on his customers, he will have to build up a huge customer base from a very low start. Is that his intention? Does he regard that as a business goal, and if so, what does it say about his strategy for dealing with the private sector?
I do not know what the answers to these questions are. It is difficult. It is right to look at this, as noble Lords have, from the point of view of the benefits of the customer. However, it is also worth thinking about the commercial imperatives that GBR will have and whether it should be allowed to pursue those commercial imperatives, or whether it should be constrained in order to benefit a competitive field.
Lord Hendy of Richmond Hill (Lab)
My Lords, this has been a very powerful debate. I am grateful to all noble Lords who tabled amendments and for the contributions of noble Baroness, Lady Alexander, and the noble Lord, Lord Beith. About the only thing that I disagree with the noble Baroness, Lady Harding, on is that this is not railway related. I think it is, it is about selling railway travel, but I have huge respect for her experience of other markets, as I have for the noble Lord, Lord Holmes.
I reassure noble Lords that we are absolutely aligned with the intentions of these amendments. We want an open and competitive retail market, and we completely support the benefits that independent retailers can bring. I may not have time to answer the points that the noble Lord, Lord Moylan, has just made, but if I do not do so now, I will later because there are other ways in which the railway can derive data about its customers. I do not think the acquisition of data is sufficient justification for only the railway to sell its product, but I must have a railway that is able to sell its own product because I want its staff, managers and directors to care about its income and its passengers.
Once GBR is established, it will have a retail function, as provided for by Clause 3. Crucially, this will be accessible via all channels—through station ticket offices, ticket vending machines, onboard trains, access through gates, ticket inspectors and online—ensuring that it serves passengers however they buy their tickets. GBR’s future online retailer, its website and app will operate in a fair, open and competitive market. To be clear, independent retailers help drive innovation, improve passenger experience and increase choice for customers purchasing rail tickets.
We realise that the dual role as a retailer and the provider of certain cross-industry systems and services could create potential conflict of interest risks. That is why we have announced a robust package of safeguards specifically designed to address these concerns. In response to the CMA report in 2025, mentioned by noble Lords in the debate, we are proposing an industry retail code of practice owned by the Office of Rail and Road and backed with the force of a GBR licence condition ensuring that the ORR will enforce GBR’s compliance with it. For the record, paragraph 5 of Schedule 1 is the place where the ORR is required to create the code and enforce it.
I can confirm today that the draft code will require GBR to adhere to a range of principles. These include ensuring access to products, providing services and data on fair, transparent and non-discriminatory terms and supporting new market entrants. We are determined that all retailers can sell all tickets. The draft code will also require safeguards around our decision to separate decision-making between GBR’s retail activity and its cross-industry systems and services, supported by appropriate information protections. This provides more protection for third-party retailers than exist today when competing with myriad train operators.
If GBR does not comply with the code, the ORR can employ enforcement measures up to and including a legally binding mandatory order for GBR to change its actions. These enforcement measures can be employed in response to a third party raising an issue with the regulator or where ORR identifies an issue through its routine monitoring. The full draft code will be published when the ORR launches its consultation before the end the next recess. This follows extensive engagement it has already undertaken with industry. It will consider feedback from the consultation informing the final draft of the code of practice in 2027. In answer to the noble Lord, Lord Lansley, we are expecting the CMA to respond to the consultation that the ORR will launch.
As noble Lords have suggested, we want the ORR to be adequately resourced to carry out these functions. Noble Lords who came to the session we had last week, referred to by the noble Lord, Lord Young, will have heard reassurance from the senior leadership of the ORR that they intend to do this and are prepared to do so.
I should also be clear that GBR will be required to comply with competition law. The ORR and the Competition and Markets Authority will continue to oversee the market, and both already have powers to act where anti-competitive behaviour is identified. Alongside that existing framework, the code will create a framework that represents a more extensive form of regulatory assurance than is currently found in most comparable European rail markets. The Government therefore believe that the objectives of these amendments are already being delivered. The code will provide meaningful protection for independent retailers and can adapt as the market develops.
Amendments 49 and 181 were tabled by the noble Lord, Lord Moylan, and concern cross-subsidisation—
Baroness Harding of Winscombe (Con)
I am sorry to interrupt the noble Lord. Before he moves on, I may have misunderstood, but I do not think he addressed whether GBR would be subject to the Subsidy Control Act.
Lord Hendy of Richmond Hill (Lab)
I am about to get there. In turning to Amendments 49 and 181 concerning cross-subsidisation and subsidy control, I can offer further reassurance. The advantage of interventions is that you make your point; the disadvantage is that you stop hearing. As a public body, GBR is required to comply with Managing Public Money principles and relevant subsidy control legislation. The Public Service Obligations in Transport Regulations is the relevant subsidy control legislation that applies to retail specifically.
GBR’s passenger services business will therefore operate within a clear financial framework, ensuring that public funding is used appropriately and fairly. GBR will be required through its business plan to set out its activities, such as its broad retailing function, the costs of these activities and how it proposes that these costs are met. The business plan must cover everything that GBR does, so there should be no concern about transparency.
It is important to note that GBR will be operating a transport service of which retailing is a part. It will have to use all available channels to serve passengers, however they buy their tickets. If it is allocated more funding for retail than would be needed for a simple online retail platform, it is simply because it also has an obligation to provide physical ticket sales—I listed those activities before—including for people who pay cash. They are far more costly to provide, and other retailers are most unlikely to provide them.
In answer to the noble Lord, Lord Young, it will not be possible for GBR to subsidise retail from infrastructure budgets, for example, as ticket offices are not classed as infrastructure. GBR will not be overcompensated to deliver retail functions in a way that distorts the market. Funding will be allocated based on the costs of delivering those services to passengers.
It will also be subject to the oversight of the ORR as the sector specialist competition regulator, alongside the Competition and Markets Authority. In that role, the ORR will be able to take enforcement steps against GBR, should it suspect that GBR is using public funds to act in an anti-competitive way.
Lord Harper (Con)
Before the Minister moves on, can I press him on two of the things that he has said? In his opening summary, he set out the Government’s view. The problem is that if the retailers do not buy it—they do not, at the moment—whatever he thinks, they are not going to be investing, innovating and developing because they will not be able to justify that to their shareholders. Part of the problem is the need to take some steps to persuade retailers that they will be treated fairly.
Secondly, I think the Minister inadvertently made this point about accounting. I know about the ticketing and settlement agreement to my cost and about some of the ways that retailing has to be done. If GBR is, in effect, doing different things—if it has an online operation but has to do all this other stuff—it will be even more important that there is clear accounting and transparency about where the money is going. Otherwise, it will be impossible to work out whether it is subsidising its online operations, which are competing with third party retailers, by bringing in more money for its other services.
Frankly, it is really important for the taxpayer that we know how much it costs to retail through ticket offices and how cost effective that is because, at some point, Ministers will have to grasp the issue—I started to grasp it but had to ungrasp in the end—that providing things through ticket offices when hardly anyone buys tickets that way will have to change at some point in the future. There has to be some clear and transparent cost information to enable the right decisions to be taken.
Lord Hendy of Richmond Hill (Lab)
I simply say to the noble Lord, first, that there will have to be 100% transparency because, apart from anything else, GBR will have to put all the costs into its business plan. My other point about his first point is that there has been a lot of investment already, with very little protection. Part of what we are doing is to give greater protection for retailers in the future, which they need because they have invested. That is a valid point.
Amendments 47, 51, 52, 53, 136 and 139 concern oversight. The retail code of practice will, as I said, be administered and enforced by the ORR. It is the appropriate body to assess complaints and determine whether GBR has complied with its obligations, but GBR will also be fully subject to competition law, alongside the existing oversight of the Competition and Markets Authority. Nothing in the Bill prevents the CMA from acting on competition challenges in rail, and nothing prevents retailers from referring issues to the CMA—either competition issues relating to the code of practice or wider competition issues. So a second opinion is always available and, of course, if they wanted to appeal to the courts, they could judicially review those decisions further.
Currently, at least, additional approval requirements and further statutory appeal routes simply duplicate the existing regulatory arrangements without providing meaningful additional protections, and transparency, as I have referred to, is already baked into this framework. It is a core regulatory principle for the ORR, which has historically publicised the launching, and formal outcome, of railway licence investigations, and I would expect it to continue to do so. The Bill retains the requirement for the ORR to give notice for any decision not to issue an enforcement order following a licence breach, providing a legislative backstop for this transparency.
I move to Amendments 136 and 139. It would not be appropriate for the ORR’s general duty to promote competition to apply to rail retailing wholesale. If it did, the competition duty would conflict with the ORR’s role in fairly and objectively enforcing the safeguards that the Government have charged it to deliver via the code. Enforcement of the code should be fair and evidence-based, determined simply by whether GBR has complied with the code of practice or not. It should not be subject to other goals, which might cause the ORR to judge operators’ compliance unfairly. This is usual practice for enforcement provisions.
However, I reassure the noble Baroness, Lady Harding, that the competition duty will absolutely apply to the ORR when it is writing the code of practice, so the code itself will have competition principles embedded within it. My officials wrote to her on that subject. The noble Baroness put to the Committee a number of clear propositions that I will consider carefully as a consequence of what she said. I believe I have answered many of them, but I will look at what she said further, and of course the publication of the draft code of practice will help considerably. I will also consider what the noble Lord, Lord Young, the noble Baroness, Lady Alexander, and other noble Lords said. As I said, we expect the CMA to respond to the consultation, so we will see what it says.
On Amendment 17, the Government fully agree that appropriate oversight and scrutiny of public spending is important. However, the amendment is unnecessary. The government policy has long been that GBR will retail tickets online through a high-quality website and app, as the train operating companies do now and have done for many years, without fees to passengers.
Baroness Harding of Winscombe (Con)
My Lords, I thank everyone who has contributed to this meaty debate. They included multiple ex-Secretaries of State and Members with private sector, regional and devolved experience. I think there was real unanimity of intent. I also thank the Minister. There was an awful lot in his response, which I suspect we will all need to read carefully to understand properly. I take at face value his opening statement of being in line with the intentions of all these amendments. However, there is a lot of work to do between now and Report. It is encouraging to know that we will see the draft code before the end of Recess. I think it will require a lot of detailed thought and discussion.
I shall close by highlighting what my noble friends on the left and right of me have just said. My noble friend Lord Moylan set out exactly why I still think we are going to need to put more in the Bill, and my noble friend Lord Young of Cookham said the same thing: Governments in the future will want to protect the monopoly of the vertically integrated GBR. A good friend of mine in the tech world once told me that monopolies are like children: until you have one of your own, you do not realise how valuable they are, but once you have one, you will protect it with your life. I therefore think we need to hear the wisdom of everyone in this debate today. Without clear guardrails in the Bill and signals to investors and independent retailers that we really mean it, and that this will live beyond the current Government, I fear that the Minister’s great intent will not turn into reality. I beg leave to withdraw my amendment, but I expect that there will be much debate and discussion between now and Report.
Lord Moylan
“(2A) Decisions about access to, and use of, railway infrastructure for the operation of trains will be made by the Office of Rail and Road.”Member’s explanatory statement
This amendment seeks to ensure that the Office of Rail and Road continue to make decisions about access.
Lord Moylan (Con)
My Lords, there are two amendments in this group. I have extracted them because, if we thought that the last group dealt with private sector concerns of some significance, this group deals with much larger private sector concerns. One of the biggest fears of the private sector, particularly those who operate trains, is the question of access to the rails—access to the track. The current system is that an independent body, the Office of Rail and Road, decides on applications for access to the track. Network Rail decides what should be paid for that, but that is also supervised and approved by the Office of Rail and Road. So there is an independent balancing authority in place that makes these crucial decisions.
Who are we talking about? About 75% of the train movements on Network Rail’s track will be GBR movements. The other 25% are people who need access to that track. They need an independent body; they value an independent body deciding whether they can have that access. They are freight operators; they are what I will call regional operators, such as Transport for London with the London Overground network and Merseyrail; and they are the open access operators. Here, I also have to mention, although it will be debated separately, the heritage railway sector, which has made representations to us and no doubt to other noble Lords about its need for access to the track.
I said on the last group that Great British Railways was like a huge bear—though a friendly bear, in the shape of the noble Lord—sitting in your front room, and the slightest twitch could wipe out your business, even inadvertently. The fact is that this bear will be a regulator making regulatory decisions about access and will be a direct competitor for use of some of those tracks. I say “some” because there will be some tracks where there is sufficient capacity and everyone can have a go so there will be no problem, but a lot of the network is congested. GBR will have a powerful incentive to allocate to itself tracks that it needs for its growing passenger service. When it is not doing that, however, it will be held up by the fact that it also has an objective to increase freight. There is a number attached to that; I cannot remember the number just now, but it requires freight to be increased fairly consistently over a period in order to hit that target. Its second thought, if it is considering who is to have access to congested track, will be, “If it’s not us at GBR, perhaps we’re going to give it to freight”. But that will not be always; not all the freight people will get what they want. Then it will only be further down the line that it will be thinking about the other players that I mentioned.
Amendment 16 is straightforward. It would leave the current situation as it is and those decisions would be made by the Office of Rail and Road. Everybody would understand what was happening. Amendment 221 offers a fallback position. It says that, if the Government are going ahead with this, there must be a right of appeal to the ORR. At the moment, amazingly, having created this huge insensitivity, the Bill says that you can appeal to the ORR but its decisions will not be binding. They will, in effect, be advisory to Great British Railways. This amendment states that the process would be binding and that it would be done not simply on judicial review grounds—that is, whether GBR followed the right process—but on the merits of the case. That, I think, would be a good fallback. The Minister, in writing a very lengthy and helpful letter to noble Lords after Second Reading, said that, if we were to have an independent appeal body, it would create what he called a second directing mind, and he is not willing to have a second directing mind.
I just want to dwell on that for a second because I think it shows the difficulties that we are all going to have with this problem. It is true that you could say that the ORR in that capacity would be a second directing mind, but there are many other second directing minds. The structure being created by the Minister will not have a single directing mind; after all, the courts could make decisions about matters subject to judicial review that will be binding on the Minister. But the Minister does not say, “I wish to be excused supervision by the courts because that would be a second directing mind”. Again, of course, the Secretary of State has huge powers of direction over GBR built into the Bill, but the Minister does not say that that is impermissible because the Secretary of State would be a second directing mind. So to say that a regulator is a second directing mind—and to some extent all regulators are, where they exist—is not a defence to the claim that there must be somebody capable of giving the assurances to the open-access operators, regional government operators and freight operators that their case will be considered fairly and that the charges when set will be fair.
Then we come to another point. The Bill requires GBR to set a scale of charges for access to the track but then gives GBR the power to decide to set a higher charge for access to the tracks if it believes that an economically efficient operator can bear it. Of course, deciding what is an economically efficient operator requires a whole set of experts doing nothing but that. If you go to somewhere such as the Civil Aviation Authority, which has to make decisions about whether something is economically efficient, there is a whole suite of people working there who make these decisions. It is their expertise; they are economic utility regulators. The same thing happens with other utilities. There is no mention in the Bill, however, or anywhere else, that GBR is going to recruit that capacity, but none the less it is going to set itself up to make the decision about whether somebody is or is not an economically efficient operator and what they can bear. It will be able to set higher charges limited only by that consideration. None of this washes with the private, municipal or freight sectors. They simply do not accept this any more than the retail sector accepts what the Government are offering to it.
As with the retail sector, the private sector operating on the railway—it is very sad that the noble Baroness, Lady Jones of Moulsecoomb, is not here to disagree with me about this—has added huge amounts. The whole of the freight sector is privately owned, and nobody is suggesting that there is going to be any change to that. Open-access operators using white track spaces offer benefits. The heritage sector brings in a modest, but none the less very useful, income to this country. It is part of our tourism industry and very useful in that regard. It gives jobs, entertainment and value to people who live in the communities served by the heritage railways.
The purpose of these two amendments is to open up a debate on this very important issue, where the Government have been obdurate, despite all the representations made to them, but which I think will have to be addressed by this House. I do not think this Bill can leave this House with this structure in place. I beg to move.
Lord Berkeley (Lab)
My Lords, I am grateful to the noble Lord, Lord Moylan, for putting down these two amendments. I too have had many representations from all kinds of people and companies who already operate trains or would like to. We are not talking about the branch lines, which are on the whole private and are not covered here anyway; there are an awful lot of what some people might call excursion trains, dining trains or whatever—there is the Jacobite train going to Mallaig which, I am told, is highly successful—as well as freight, which all need access to the network. Even at the moment, there are stories of people applying to get on the network, for a pass somewhere, to be told that it is already full; then they go back to what is Network Rail at the moment and say, “Well, if you did this and that, you could get an extra train or two on”. It also covers the issue of the risks and the penalties if something goes wrong, because Network Rail at the moment will think, “We do not want this because it could muck up the service and cause delays elsewhere”.
On having the independent ORR being what you might call an appeal body, I do not look upon it as a secondary directing mind, because the first directing mind is quite often a monopoly. We spent a lot of time this afternoon talking about monopolies and how we do not want them, and the Minister said he does not like monopolies either. This kind of catch-all amendment covering all the different types of train that might want to use the network, and with an appeal body in the ORR, would be a very sensible solution. I fully support it.
Lord Young of Cookham (Con)
My Lords, I intervene briefly to support my noble friend Lord Moylan’s amendments on this. In many ways, this debate is similar in its nature to the one we have just had, in that it relates to how the GBR relates to an independent sector. In the previous debate, it was independent retailers; in this case, it is the independent operators using open access. Again, the terms of trade are being changed. If one looks at the consultation document on this, it says that:
“GBR will become the decision maker for key decisions on access terms that are currently led by the ORR: the duration and form of access rights, developing and setting the access charges framework and the design of performance incentive regimes contained in track access regimes”.
It goes on to say that:
“For GBR to have the space and authority to take access decisions on the best use of its network, the ORR’s current role must change”.
At the moment, the ORR has the last word on an open access application, and the department cannot overrule it; that is going to change. We have had representations from the open access operators. I have had also representations about the Elizabeth line and Heathrow Express, which are both anxious that they could be adversely affected by this change in responsibility.
The noble Lord may remember a debate we had in the Moses Room about 18 months ago on this particular subject, which I introduced. At that point, I referred to another debate in the other place, where there was a lot of support from Labour MPs for the principle of open access: their constituents had benefited from it, and they were concerned that it might be curtailed. My noble friend Lord Moylan referred to access charges and how changing the access charge could make it uneconomic.
I want to approach this from a slightly different point of view, which concerns the criteria that the ORR uses to decide whether to grant open access. If there is no capacity on the rail network, it is clear that the application should be refused. If there is capacity, the ORR refers to the NPA—not primarily abstractive—rate. That means that if you want to open a new service, you must add at least 30p of new revenue for every £1 you abstract from the existing ones. In other words, any new service must not rely on more than 70% of its revenue to justify its application. There is concern that that abstraction rate might be changed. One assurance that the Minister could give, which would reassure the operators of open access, is that GBR will not change the abstraction rate. The rate has been in operation for some time. It balances, on one hand, the cost to the taxpayer and, on the other, the benefit to the traveller in terms of improved connectivity and, in many cases, lower fares.
We know that the concern is justified from the letter that the Secretary of State, Heidi Alexander, wrote to the ORR back in January. The ORR is already mindful of the cost to the taxpayer—that is reflected in the abstraction rate—but the letter reminded it of that cost. There was a clear implication that not enough attention was being paid to that factor, hence the concern. I hope the Minister will be able to give assurances that, apart from the issue of the access charges addressed by my noble friend, the abstraction rate will not be altered either.
Baroness Pidgeon (LD)
My Lords, these amendments look to ensure a fairness between Great British Railways operations and open access and freight operators in terms of charges and access to the track, and concern the change to the current role of the Office of Rail and Road. Since the publication of the Bill, there has been a big debate in the sector about this over the past 18 months or more. Amendment 16 in the name of the noble Lord, Lord Moylan, seeks to change Great British Railways’ functions so that decisions about access to and the use of railway infrastructure would instead be carried out by the Office of Rail and Road, as is the case now, as he said. On the other hand, Amendment 221 approaches this differently, with a subsequent right of appeal to the ORR after going through the dispute resolution process set out in the Bill. It would leave the function with GBR but bring in more of an appeals function.
The Bill is a real change to open access operations on the railway and it is right that we scrutinise how it will work in practice. As we have heard, a number of innovative open access operators are running good services with competitive fares. With the vast majority of passenger services being in public ownership, there needs to be confidence that Great British Railways is operating in a clear and transparent way, with an appropriate mechanism for challenge set at the right bar. There is concern that removing the current function of the Office of Rail and Road with regards to access will mean that Great British Railways will always prioritise its own services and may choose to not continue open access operations in the future—some of which are very successful, but there is a fear out there.
We have some concerns over this shift in power between the Secretary of State and the Office of Rail and Road. We want to see the publication of decisions and any evidence that has supported decisions, as well as real engagement with passengers and representative bodies as timetables are developed and services are changed. Of course, freight comes in here too. Freight will be critical to help move lorries off our roads and grow our regional economies, so freight access is equally important. We need transparency and openness between Great British Railways and the other parties in this space in terms of track charges and access. I hope that the Minister will provide the assurance that industry would like to hear on this important change in legislation.
Lord Hendy of Richmond Hill (Lab)
My Lords, I thank the noble Lord, Lord Moylan, for Amendment 16 and for this short debate. In the groupings for Committee, there are some very substantial numbers of amendments about access in groups 26 to 31, so I will answer these amendments very briefly because I am sure we will have very detailed debate subsequently. Indeed, I will leave some of the points that noble Lords have made this evening in order to come back to them when we get to groups 26 and 31.
I want to be very clear that the existing access framework is, in our view, not fit for purpose. It is built on 30 years of complex legislation, regulations, contracts and codes. It requires Network Rail and the ORR to take decisions using inconsistent criteria, based on differing duties and objectives, with no common vision. Fundamentally, no single party is responsible for planning the best overall use of the network and ensuring that access decisions deliver that plan. The current system has too often been characterised by fragmentation and delay, and it is clear that nobody is in overall charge. That has led to inefficient use of capacity and decisions that serve neither passengers nor freight well.
There are clear examples of the consequences. The May 2018 timetable failure—the original catalyst for rail reform—saw punctuality and reliability plummet across large parts of the network. Keith Williams’ review highlighted how this was the result of a complex, fragmented system with no single person in charge. Timetables are often built by trying to piece together layers of past decisions and contractual rights. On the east coast main line, the current system resulted in years of decision-making paralysis, with neither Network Rail, the ORR or operators able to agree a timetable. Service improvements that were supposed to result from £4 billion-worth of taxpayers’ investment were delayed by several years. The only way this could be resolved in the end was by me, as Rail Minister, stepping in to make the decision that no one else wanted to, which is clearly not an acceptable outcome at all.
Noble Lords will recall last December, when the ORR ruled that the 0700 from Manchester Piccadilly to Euston would have to run fully staffed but with no passengers on it, against the wishes of both the operator and the network provider, which agreed that it should run. The ORR itself acknowledged that it did not have all the facts when it took that decision.
The current system has failed to unlock meaningful freight growth. Too often, the needs of freight operators and their customers have been put to the back of the queue. Paths labelled as “strategic freight” are not strategically planned at all and may not even join up, as they are often just a mixed bag of surrendered paths and leftovers.
In the current system there is no overarching strategy—no overall plan for how to make best use of the network—and where no single body has end-to-end authority, critical information can be missed, escalation is unclear and blurred accountability leads to capacity being used in ways that increase disruption, letting down both passengers and freight customers.
An integrated railway under GBR’s leadership is the only way to fix this. As the single directing mind for the railway, GBR will proactively plan how to make best use of the network. It will be empowered to ensure that access decisions take proper account of that plan, implementing an achievable and reliable timetable that makes the very best use of the limited capacity available. Better co-ordination of the timetable will minimise delays, improve reliability and reduce costs—and may well open space for new routes and services. For freight operators, the new system will provide much greater certainty about the capacity available for them to grow their services, with GBR enabled and empowered to protect that capacity. The truth is that, if we leave it as it is, the system will never change.
I will deal with the crucial distinction between Clause 60 and 63 when we get to the detailed debates, but in the meantime I do not accept Amendment 16, which would fundamentally undermine the purpose of these reforms. It is unacceptable and I urge the noble Lord to withdraw it.
Amendment 221 would require the access and use policy to set out not only a process for dealing with disputes but a right of appeal. Of course I agree that GBR’s strong leadership under the new system must be accompanied by strong accountability. That is why the ORR will act as a robust and independent appeals body for access, capacity allocation and charging decisions made by GBR on its network. The ORR’s appeals function will provide a clear, credible and accessible route to challenge those decisions.
Lord Young of Cookham (Con)
I understand that we will be having a separate debate on this, but is the Minister able to give the assurance that I asked for that the abstraction rates will not be changed?
Lord Hendy of Richmond Hill (Lab)
I thank the noble Lord for his question. I will not give it now but will come back to that in the debate. I should also say for the benefit of the Committee that Network Rail is publishing the access and use policy consultation tomorrow, which will apparently address the noble Lord’s questions on abstraction. I am sure we can debate his points further when we get to the detailed debate.
Lord Moylan (Con)
My Lords, it will not wash. The noble Lord did not give any explanation of why there should be an appeals system which cannot look at the merits of the case and cannot bind GBR. He says that we are going to come back and discuss this again. I am sure we will and I hope we will. We should be discussing it several times in Committee, and we will certainly be discussing it on Report. At the moment, I beg to withdraw my amendment, but I am absolutely clear that this will not wash.
Lord Moylan
“(e) such other body corporate as they see fit.”Member’s explanatory statement
This amendment seeks to explore why the Bill places limitations on Scottish and Welsh ministers as to the manner of their exercising their functions relating to the railways or railway services.
Lord Moylan (Con)
My Lords, Clause 4 deals with relations with the devolved authorities in Scotland and Wales. I have a number of amendments here—five, in fact. They all appear in a sense to be relatively minor but they go to the heart of the devolution settlement. They raise the question of whether the Bill is in line with the new Prime Minister’s policy—I know he has not been elected to anything but he is the new Prime Minister—of making devolution a reality. I will run through the amendments fairly straightforwardly and leave it to others to debate them and the Minister to respond.
One of the things that can be done is that any combined authority or devolved authority has a right to request. I always find this slightly offensive, because we are a free country—everyone has a right to request something from the Minister—but apparently, this valued “right to request” is going to be given. You can go along and ask GBR if it will run a service local to you, which might even be branded your way, to which you might contribute some of the costs. That is the general idea. I can understand that in relation to English combined authorities but not the devolved Administrations.
For example, I do not understand at all why Scotland should be confined by statute to running that service using Great British Railways. If the path is available and the service can be run, why should Scotland not make its own choice about who the operator of that service should be? As I understand it, that would not be possible under the Bill; it would have to be a GBR service. I think that is a bit insulting to Scottish devolution. The same applies to Wales. My Amendment 21 would correct that and allow them to exercise railway functions through a body corporate other than Great British Railways.
Amendment 145 goes hand in hand with Amendment 146, because they relate to Scotland and Wales. They relate to the fact that, under the Bill, there will have to be a memorandum of understanding between Great British Railways and the Scottish and Welsh Governments. There is a great deal of reliance on memoranda of understanding in the Bill, but we never see them and have no entitlement to do so. I am not saying that they will not be published, but I am not sure that the Government are under an obligation to publish them. They are so much a part of this Bill, but their substance is being concealed from us in Parliament and wrapped up in documents that are ancillary to the main agreement. My Amendments 145 and 146 would require those memoranda to be laid before Parliament before they could come into effect.
Finally, I have the paired Amendments 294 and 295. Again, one relates to Scotland and one to Wales. Amendment 294 relates to Clause 82. There is something fantastically cheeky in Clause 82, which reads:
“Great British Railways must consult the Scottish Ministers before making a decision within subsection (2)”—
which would be a decision about cross-border services and additions to a part of the railway network operated by Great British Railways that is situated in Scotland—
“if it appears to Great British Railways that the decision will significantly affect the interests of Scotland’s economy or of persons living in, working in or visiting”
the area. I come back to a similar question I asked in the last group: what economic capacity would Great British Railways be employing to make disinterested decisions about whether something would have a significant effect on the interests of Scotland’s economy? Secondly, is it not more likely that the Scottish Government would be the appropriate body to make a decision about whether something will have a significant effect on the interests of the Scottish economy? My amendment would put that right by reversing it. Amendment 295 would do something similar for Wales.
There is a certain arrogance in the Bill, certainly with regard to local government in England, but the arrogance towards the Scottish and Welsh Governments is beyond the pale, given what the Prime Minister has been saying and what those Governments would accept. I hope that, when the Minister replies, he will say that the matters to which I have drawn attention are slips in the drafting that he will be happy to correct, either through my amendments or amendments that he will draft and submit to us on Report. I beg to move.
Lord Lansley (Con)
My Lords, I want to talk to my Amendment 22 in this group. Before I do that, I might just say so to my noble friend that I see the point he is driving at with Amendment 21, but I think it is a little more complicated. It seems to me that this is about the circumstances that apply where the Scottish or Welsh Ministers wish to use Great British Railways or a company jointly owned by themselves and Great British Railways. In effect, they are not subsidiaries of Great British Railways: we can already see in the Bill this distinction between GBR companies and a company that is jointly owned by Scottish and Welsh Ministers and GBR.
They can use that to provide services but, as far as I can see, they are not prevented from doing the following. If you look at subsequent clauses, we have seen the whole process of designation of passenger services, which those of us who did the public ownership Bill will remember. They have to designate passenger services with a public sector company, but the definition of a public sector company in a later clause is not the same. It could be a company wholly owned by Scottish Ministers or by Welsh Ministers; they are not required to use Great British Railways. They could even do the same thing that the Secretary of State can, which is exempt services from designation, and then do the same as the Secretary of State does with TfL but in Glasgow, Cardiff and so on. So I think it is a little more complicated.
In particular, I think putting “other body corporate” in here is not necessary. More to the point, if I may say so to my noble friend, is to re-enter the question of the scope of who might provide designated services, which I know he will do with further amendments at a later stage.
Amendment 22, on my part, is just to see whether there is really a problem. At the point at which Scottish and Welsh Ministers look to change arrangements that they have made with Great British Railways to provide some services, they are required to consult with the Secretary of State and Great British Railways. However, those arrangements will necessarily lead to issues that need to be governed by the regulatory functions of the Office of Rail and Road and relate to the licensing of those operators through the ORR. It seems to me perfectly reasonable to require that Scottish and Welsh Ministers, at the point of making or changing those arrangements, should also consult the Office of Rail and Road in order to ensure that there is not a difficulty associated with what they are asking GBR to do on their behalf. The purpose of Amendment 22 is to put in that consultation with the ORR.
Lord Berkeley (Lab)
My Lords, these are interesting amendments. I have had several representations from the rail sector in Wales and Scotland, and they are clearly quite concerned.
The first question I probably need answering is on who will be owning and operating the infrastructure in Wales and Scotland. At the moment, in Scotland, it is done by Transport Scotland, and in Wales, I cannot remember but think it is different. Of course, both those organisations may, and do, operate passenger train services. Given the scope of the Bill, which we have been discussing at length today, will Transport Scotland and the Welsh Assembly be able to let their own contracts with GBR or an independent operator to run trains? Who will be responsible for managing the infrastructure if it goes wrong or needs maintenance, and for the issue in the amendment, which is about co-ordinating with the rest of the UK? To me, it is not clear at the moment, and I would be grateful if my noble friend could clarify. I am probably being stupid, but there we are.
Lord Harper (Con)
My Lords, I just want to speak briefly about three groups of amendments within this group. Amendment 145 in the name of my noble friend Lord Moylan has quite a lot to recommend it. The Bill, as set out, sensibly says that the UK Government and the Scottish Government should have a memorandum of understanding about how cross-border rail services should work. That is very sensible, but it seems to me that you would want to have the documents published at the same time; you want them on the same timeline because you want a GB rail strategy to be produced, given the way the rail network works. The whole point about GBR bringing together track and train and having some consistency means it seems very sensible that, if you are to have this memorandum of understanding between UK Ministers and Scottish and Welsh Ministers, you want them on the same timeline. Then what you publish is, in effect, a GB rail strategy with a level of consistency.
Baroness Pidgeon (LD)
My Lords, these amendments rightly question the impact of this legislation on Scotland and Wales and the role of Scottish and Welsh Ministers in decisions, including cross-border ones. The discussion we have had is about what devolution really means in this context and the democratic accountability. I look forward to hearing what the Minister has to say on these important points raised by noble Lords.
Lord Hendy of Richmond Hill (Lab)
My Lords, the first thing I should say about this group is that the Scottish and Welsh Governments have been intensely involved in drafting the Bill, and both Governments are very supportive of it.
I turn to Amendment 21. Clause 4 enables Scottish and Welsh Ministers to make arrangements for their functions to be exercised by GBR, a GBR subsidiary or a company jointly owned. The noble Lord, Lord Lansley, spotted that correctly; he is absolutely right. It is an enabling power designed to support integration where that is considered beneficial. It does not prevent devolved Ministers from continuing to exercise their functions themselves, nor is it intended to provide a general power to delegate functions to any body corporate.
Indeed, under Clause 27, Welsh Ministers will continue to designate Wales-only services and Welsh components of cross-border services. Under Clause 31, Welsh Ministers may either provide those services themselves or secure their provision through the award of public service contracts. Similar powers exist for Scottish Ministers under Clauses 26 and 31. Of course, Scottish Ministers can decide to run their services through GBR or through their own operator. The Government therefore believe that the Bill strikes an appropriate balance between preserving devolved responsibilities and enabling closer integration with GBR, where that is desired by Scottish or Welsh Ministers.
Amendment 22 in the name of the noble Lord, Lord Lansley, would require the ORR to be consulted. Clause 4 already requires consultation with both the Secretary of State and GBR before such arrangements are made, varied or revoked. That is because GBR is the body that may be responsible for carrying out the function, while the Secretary of State has an interest in the wider operation and integration of the railway system, and because GBR will be operating devolved functions alongside reserved ones. They are therefore the parties best placed to provide input on these arrangements. Although the ORR plays an important role as the railway’s independent regulator, these arrangements concern the exercise of devolved functions and national versus devolved governance, rather than regulatory matters. We therefore do not consider an additional statutory consultation requirement to be necessary.
On Amendments 145 and 146, the Government fully support transparency and effective parliamentary scrutiny. That is precisely why we have already published the agreed memorandum of understanding with Welsh Ministers and a framework for the memorandum of understanding with Scottish Ministers. That has enabled Parliament to consider the proposed arrangements alongside the Bill. The memoranda of understanding are intended to provide a basis for joint working between UK Ministers and Scottish and Welsh Ministers on matters relating to rail services and funding. They are not legislative instruments but practical agreements to support effective intergovernmental working.
The amendments would require the MoUs to be published at the same time as the rail strategy and would impose a two-month period before they could come into force. However, the rail strategy and the MoUs serve distinct and seperate purposes. The rail strategy sets out long-term priorities and objectives for the railway, while the MoU supports collaborative working between the UK and Welsh or Scottish Governments. Requiring the two documents to be published at the same time would create unnecessary friction and delay. Similarly, requiring a two-month waiting period before an MoU could take effect would add process without materially improving oversight or outcomes.
Lord Harper (Con)
Can I just check that the rail strategy that the Secretary of State will produce will be a strategy for Great Britain, and that the memorandum of understanding will be about how that interacts? If the Secretary of State’s rail strategy is for England only, that does not make sense. What the Minister just said implies that the Secretary of State will produce a rail strategy for Great Britain, in which case there would not be any friction from ensuring that those documents were published together.
Lord Lansley (Con)
Before the Minister responds to that point, I add that I am slightly confused because Clause 15, “Rail strategy”, says that the Secretary of State “may not” include provision relating to the functions of the Scottish Ministers, so it may be a rail strategy for Great Britain, but it cannot deal with the functions of the Scottish Ministers.
Lord Hendy of Richmond Hill (Lab)
I say in response to noble Lords that the long-term rail strategy is for the whole railway. The Scottish and Welsh Governments are being consulted, but Scotland will also have a strategy covering its own functions because that is the meaning of devolution. I hope that is clear.
Lord Harper (Con)
I do not want to overly labour this point, but that is not very clear. The way it works at the moment is that the Scottish Ministers have a role in helping to shape—
Lord Harper (Con)
As I was just saying before we resumed, the advantage of a break is that I had a chance to slightly firm up my question. Before we broke for the Division, I was saying that I thought that not synchronising the rail strategy publication and the memorandum of understanding potentially meant not having a clear, joined-up strategy for Great Britain. I was asking the Minister whether the strategy that the Secretary of State had to produce was for Great Britain and, if so, whether it would not make sense to synchronise that with the memorandum of understanding.
Having had a chance to look at Clause 15, it is indeed the case that the Secretary of State is producing a strategy for the rail network in Great Britain—that includes Wales and Scotland—but it specifically must not contain provisions about functions of the Scottish Ministers, because that is clearly what the memorandum of understanding is going to do. In this case, I think the amendments tabled by my noble friend Lord Moylan are very sensible. Otherwise, you will publish a rail strategy for Great Britain that has quite important functions for Scottish Ministers because they make the call on what Network Rail does on infrastructure in Scotland, for example. It does not make sense to not have that joined up.
I am very happy for the Minister take this away, because it will obviously have consequences, but synchronising those two events will drive very sensible and good behaviour in the way the department interacts with the Scottish and Welsh Governments and will be an improvement in having a better rail strategy for the whole of Great Britain.
Lord Hendy of Richmond Hill (Lab)
My Lords, I am grateful to the noble Lord, and I, too, have done a little bit of homework while we had the Division. The important thing he draws our attention to is Clause 15(3). Because
“The rail strategy may not contain provision about functions of the Scottish Ministers”,
in effect, it is the rail strategy for England and Wales. Because the rail strategy for Scotland is the function of Scottish Ministers, they will publish a strategy to cover Scotland. It will reflect the devolution funding arrangements and the responsibility for the railway in each country. We are working very closely with Scotland, and GBR will have to work very closely with Scotland, as will the Secretary of State, to ensure that the strategies make sense and, therefore, that the GBR business plan makes sense.
Having said all that, I am still not sure that I can see the connection between the MoUs and the strategies. Indeed, we have been able to strike a memorandum of understanding and publish it with Welsh Ministers—and we have a framework for that in Scotland—without a long-term rail strategy. They are intended to provide a basis for joint working between UK Ministers and Scottish and Welsh Ministers on matters related to rail services and funding, but they are not the same as a strategy, which sets out what the intentions of those Governments are and will form the basis on which GBR will write a business plan.
I think my contention is the same. The rail strategy sets out long-term priorities and objectives for the railway, and the MoUs support collaborative working between the respective UK and Welsh and Scottish Governments. I see the difference between those two instruments—the strategies and the MoUs—but I do not see the need for a waiting period between them taking effect or for them to be co-ordinated. As I have said, we have published the MoU with Wales already and the outline of that for Scotland too.
Lord Harper (Con)
Here is my final point—as the Minister will be pleased to know. He has just, perhaps inadvertently, flagged that the drafting of the Bill in Clause 15 is not correct. The Secretary of State will not be producing a long-term strategy for the development and use of the rail network in Great Britain and the railway services that she wishes to see in Great Britain. She will be doing those things for England and Wales. The Bill should really reflect that because it is inaccurate. Again, I am happy for him to take it away, but I think he has let on at the Dispatch Box that the Bill is not correctly drafted.
Lord Hendy of Richmond Hill (Lab)
The noble Lord draws my attention to something which, having read it to him, I concluded myself. This is the purpose of Committee, of course: to discover things that you have not thought about. I am as willing as the next Minister, perhaps, to decide what to do. We will take that away, and I am grateful to the noble Lord. For the avoidance of doubt, I still do not accept the contention about the connections between the MoU and the strategies, but I accept the points that the respective boundaries of the strategies could be much better placed than they are.
Amendment 146 from the noble Lord, Lord Moylan, goes further on the provisions on the allocation of ticket revenue from cross-border services operated by Transport for Wales. We do not think that is appropriate. Such operational and commercial matters are more appropriately dealt with through established industry arrangements such as public service contracts and the Wales and borders agreements rather than through an intergovernmental co-operation agreement, which is fundamentally about the governance of GBR, so I urge the noble Lord not to press the amendment.
I turn to Amendments 294 and 295 on consultation. The Government fully recognise the importance of ensuring that Scottish and Welsh Ministers are consulted on decisions that have a significant impact on their nations. That is precisely why the Bill already places a duty on GBR to consult them before making such decisions. The amendment would go further by requiring devolved Ministers to determine whether consultation was required. That would add significant delay for no practical benefit, as Scottish and Welsh Ministers would be required to review decisions that would often be irrelevant to them before steps can be taken. The approach could create uncertainty about when decisions can proceed and risk shifting the focus from effective engagement to procedural questions about whether consultation is required. Scottish and Welsh Ministers will also continue to have important mechanisms through which they can influence the railway, including their respective rail and transport strategies, their powers, which are strong, and guidance. The Government therefore consider these amendments unnecessary.
Finally, Amendment 296 from the noble Lord, Lord Berkeley, specifies that GBR should consult on access decisions where they impact Welsh Ministers. Clause 82 already requires that GBR consults Wales on issues affecting it. That requirement would also extend to access decisions. Therefore, I can reassure the noble Lord that his intent has already been achieved by the Bill but, bearing in mind what he said in support of his amendment, I will write to him, and copy it to other noble Lords, about the ownership and control of infrastructure in Scotland and Wales now and in the future so that he and other noble Lords—though I see the noble Lord is not in his place—can be clear about the present and future arrangements, since I think what he said expressed a degree of confusion about them.
I finish by saying again, as I started with, that Scotland and Wales have been intensely involved in the drafting of the Bill and that both Governments are very supportive of it. Therefore, I urge the noble Lord to withdraw his amendment.
Lord Moylan (Con)
My Lords, we see a pattern—there is always an argument as to why the bear in the front room should be able to make the decisions without constraint, and here we go with Scotland and Wales. If the Minister tells me that Scottish and Welsh Ministers are happy that Great British Railways, a largely unaccountable body that is largely concerned with English railways, should make a determination as to what is of economic significance to Scotland and Wales, and that they have had that question put to them, considered it squarely and come back and said “Yes”, then of course that is what the Bill should say. It strikes me as odd and not consistent with the general approach that the Scottish and Welsh Governments would take to these things. Beyond that, I congratulate my noble friend Lord Harper on drawing out various points. I feel a swathe of government amendments coming on Report.
Lord Moylan (Con)
I think there will have to be others as well. None the less, for the moment, I have done my best to defend the devolution settlement, keep up the policy of the Prime Minister and give Scotland and Wales a say over the future of their own economies in so far as they are affected by public transport. Having done that, I will subside and beg leave to withdraw my amendment.
House of Lords
Introduction: Lord Singh of Solihull
Introduction: Lord Stace
Data Security: UK Citizens
Lord Moraes
To ask His Majesty’s Government what steps they are taking to monitor the security and use of UK citizens’ data under agreements with third countries, including the Data Protection (Adequacy) (United States of America) Regulations 2023.
Baroness in Waiting/Government Whip (Baroness Ramsey of Wall Heath) (Lab)
The DCMS Secretary of State is required to monitor all jurisdictions with UK adequacy decisions, including the US, to ensure that all UK personal data transferred abroad continues to be protected to the UK’s high standards. DCMS works closely with our international counterparts and with UK departments to understand the implications of developments relating to our adequacy decisions for UK data subjects.
Lord Moraes (Lab)
I thank my noble friend the Minister for that Answer. She will be aware that the House expressed concerns before the Recess about UK digital sovereignty and the way that non-UK entities own much of our digital infrastructure, invest in data centres, process the data of UK citizens in key public services and, of course, transfer the data within adequacy agreements, as she has just addressed. Can she reassure the House that the Government will pay close attention to the vulnerabilities of this country in having some limitations to our tech sovereignty?
Baroness Ramsey of Wall Heath (Lab)
I note my noble friend’s point about the safety, security and sovereignty of UK citizens’ data. This Government will continue to pay close attention to how UK citizens’ data is transferred overseas and processed by non-UK data controllers. For our adequacy decisions, DCMS undertakes active ongoing monitoring processes, including the tracking of changes to relevant legislative frameworks and case law within third countries.
Lord Clement-Jones (LD)
My Lords, we welcome the return of data protection to DCMS. The Government’s own Data (Use and Access) Act replaced the “essentially equivalent” test for adequacy for international data transfers with a lower threshold of “not materially lower”. Does the Minister accept that this weaker standard leaves UK citizens’ data more exposed to the gaps in foreign countries’ protections? What monitoring of that effect are the Government carrying out to safeguard real UK sovereignty over our data?
Baroness Ramsey of Wall Heath (Lab)
Our priority is the protection of UK citizens’ personal data, and we will monitor our adequacy decisions with this in mind. The DCMS has a statutory duty to monitor all our data adequacy decisions and a duty to amend or revoke them if the Secretary of State becomes aware that the standard has fallen below that of the UK GDPR. Officials are monitoring all existing adequacy decisions on an ongoing basis and the DCMS Secretary of State must be satisfied that the level of data protection afforded to UK data subjects in a given country or territory is not materially lower than that of the UK GDPR.
Lord Markham (Con)
My Lords, given that the UK-US data bridge is estimated to be worth almost £1 billion to the UK economy and that, twice before, transatlantic data arrangements have collapsed following successful legal challenges, what are the Government doing proactively, with the US Administration, to strengthen the bridge now, rather than waiting for weaknesses to be exposed by a third legal challenge?
Baroness Ramsey of Wall Heath (Lab)
The United States is our close ally and tech partner and we are committed to ensuring that this delivers real benefits and protections for people on both sides of the Atlantic. British companies that contract with companies that have not signed up to US systems, and so are not covered by adequacy, will be obliged to ensure that there are contractual obligations for compliance with GDPR.
Baroness Berger (Lab)
My Lords, according to an Answer to a Written Question that I received last week, the Government do not centrally record how much of Government’s critical digital infrastructure relies on cloud or computing services that are headquartered overseas or under the jurisdiction of a foreign Government. Will the Government take steps now to assess that exposure? Will Ministers commit to developing a digital sovereignty strategy to ensure that our national security and resilience, and the protection of citizens’ data, are not undermined by reliance on foreign-hosted systems?
Baroness Ramsey of Wall Heath (Lab)
The Government’s approach is to ensure that the UK has the right balance between access to the benefits of international data flows and carefully protecting both personal and non-personal data. This is underpinned by data protection law, UK security standards and established commercial rules.
Baroness Gill (Lab)
My Lords, given the evolving legal landscape surrounding transatlantic data flows and potential future changes to US surveillance laws, what contingency plans do the Government have in place, should the current adequacy regulation be challenged in court? Under what specific conditions would the UK suspend the agreement in order to protect citizens’ privacy?
Baroness Ramsey of Wall Heath (Lab)
The Government take a balanced approach to this, ensuring that public sector systems are secure, resilient and effective while benefiting global innovation. The overarching point is that the Government remain committed to protecting UK citizens’ personal data and continuing to keep other countries’ obligations around personal data under careful review, with the Secretary of State for DCMS being satisfied at all times that the level of data protection afforded to the UK data subjects in a given country or territory is not materially lower than that of GDPR.
Lord Vaux of Harrowden (CB)
My Lords, what assessment have the Government made of the amount, type and usage of data transmitted to China by Chinese-manufactured cars?
Baroness Ramsey of Wall Heath (Lab)
That is a very specialist question. On my first outing on data at this particular Dispatch Box, I would like to say to the noble Lord that I would be more than happy to write to him with the details.
Baroness Jones of Whitchurch (Lab)
My Lords, what assessment has been made of the security risks associated with the use of US tech and digital suppliers, particularly given that the current US regime is focusing on protecting its technology from external regulation?
Baroness Ramsey of Wall Heath (Lab)
Risks linked to technology suppliers are managed through established security and resilience processes. Decisions in these areas are informed by evidence on security, reliability and long-term resilience. The Government seek to balance the benefits of secure international data flows with our high standards of personal data protection. We continue to monitor developments relevant to the US adequacy decision and to engage with international partners to ensure that our standards continue to be met.
Lord Mackinlay of Richborough (Con)
My Lords, I have long been concerned about the internet of things, especially the internet of things that we tend to buy on eBay or Temu or one of those predominantly Chinese importation agents. How can we be sure that there are not data flows going on, particularly with the firmware updates that are regular with many internet of things items? Do the Government have any strategy to look at this? I can only imagine that it is down to local councils to manage importation of goods at source—and I would hazard a guess that it is perhaps beyond them.
Baroness Ramsey of Wall Heath (Lab)
DCMS aims to facilitate the flow of data to places that have high data protection standards, and will continue to monitor the threats to UK personal data. On the matter of other jurisdictions, including China, in determining where UK data can flow, we consider the risk to UK data subjects rather than jurisdiction.
No. 10 North
(1 day, 7 hours ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Gascoigne
To ask His Majesty’s Government what estimate they have made of the cost of establishing No.10 North and relocating central government functions outside London.
The Parliamentary Secretary, Cabinet Office, and Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Twycross) (Lab)
My Lords, No. 10 North is central to the Prime Minister’s commitment to get good growth in every postcode, drive devolution and bring government closer to the communities it serves. It will put senior decision-makers in the same room as mayors, employers, councils and public services, so that decisions about this country’s economic future are no longer taken only in Westminster. The cost of establishing No. 10 North is covered by existing departmental budgets.
Lord Gascoigne (Con)
I am grateful to the Minister. Having known the Minister for a number of years, I congratulate her not just on rejoining the Government but on her additional responsibilities at the Cabinet Office.
As a proud northerner, from God’s own county of Lancashire, I am genuinely delighted by the Government’s emphasis on the north, but I would hazard a guess that most people care more about fixing the issues that matter to them than the postcode from where it is being done. So, first, what specific and material issue will No. 10 North fix that Whitehall has been unable to? Secondly, am I right to assume, based on the Answer I just got, that the overall cost and the size of government will increase as a result of this additional Downing Street?
Baroness Twycross (Lab)
On the second point, it will not necessarily increase but we will make sure that invoices and costs are reported in the normal way. On the noble Lord’s first point, I wrote down that he is from Pendle, just in case he went for an anti-Manchester perspective. From my perspective, I went to No. 10 North and spoke to the people working there. They are passionate about rewiring the state and making sure it works for people in every part of the country. Clearly, having the same conversations with the same people in Whitehall, in the same way, is not necessarily going to deliver anything other than the same results. No. 10 North carries the authority of the Prime Minister to drive forward his objectives, bringing decision-making long held by Ministers in Whitehall closer to the communities we all serve.
Lord Storey (LD)
My Lords, the Minister will be aware that 14 of the 15 cities with higher than average productivity are in the south; the only exception is Edinburgh. No cities in the north, no cities in the Midlands —not even Birmingham or the famed Manchester. Will the Minister ensure that, to get value for money, she reports annually on how the Downing Street of the north is making a difference to our cities in the north and the Midlands particularly?
Baroness Twycross (Lab)
We intend that No. 10 North will make a difference for every part of the country. The noble Lord rightly identifies that not every part of the country has benefited equally from economic success in the past. People will not be able to stop us shouting about the success of No. 10 North in terms of delivery once we get going, but I am very happy to come back to your Lordships’ House and talk about it in more depth over the coming months.
Baroness Linforth (Lab)
My Lords, it is an interesting Question from the noble Lord, and of course, every Government should be mindful of the costs of doing business and the return on investment. With that in mind, I wonder whether my noble friend the Minister could inform us of the benefits that will accrue to the country from establishing No. 10 North.
Baroness Twycross (Lab)
My noble friend is right, and as the Question identifies, there have clearly been some costs associated with establishing No. 10 North. However, it is important to recognise that this office is going to sit at the centre of this Government’s agenda to deliver economic growth across all our regions. As the First Secretary of State informed the other place last week, it is vital that, to do this, we rewire the state to deliver the change people up and down the country voted for.
The Earl of Kinnoull (CB)
My Lords, No. 10 North is approximately 200 miles north of where we are. Perthshire, where I am from, is more than 200 miles further north than that. The north of Scotland is another more than 200 miles north of that. I wondered whether there were any plans to rethink the name “No. 10 North”—it does not feel right to someone who lives 200 miles north of it.
Baroness Twycross (Lab)
The noble Earl makes a valid point. No. 10 North is in the north of England for the purposes of general geographic designations in this country. On the points he made about Scotland, in making sure that we recalibrate how the state works, including in respect of the devolved Administrations of Scotland, Wales and Northern Ireland, we will be taking into account the needs of all those areas. We feel that this is a project, a way forward and a way of working that should benefit every part of the country—even those for whom No. 10 North is in the south.
Lord Redwood (Con)
My Lords, I see that Ministers and senior officials will be mainly working from No. 10 North. Why does No. 10 south lack the prime ministerial authority to make good decisions?
Baroness Twycross (Lab)
It is quite clear that No. 10 just across the road does have the authority to make those decisions. As I said to noble Lords earlier, having the same conversations in the same place in the same room is not necessarily going to produce a different outcome. A number of Ministers have spent a considerable time in No. 10 North, and the Prime Minister is committed to working there on a regular basis. So far during his premiership, he has done so at least once a week.
Baroness Smith of Llanfaes (PC)
My Lords, I welcome the establishment of No. 10 in the north of England. If the Government agree that centralisation in London is a problem, should the answer not be to strengthen devolution across these islands, giving the Governments of Wales, Scotland and Northern Ireland the powers and resources to act in the best interests of their peoples, rather than simply relocating functions within England?
Baroness Twycross (Lab)
I am not sure how it would have gone down with the Governments in the devolved Administrations if we had suddenly popped up with a new central government office. It is clear that there is no way we will succeed in rewiring the state if we do not take into account the devolved nations and their needs. Collaboration with the devolved Governments will be required to ensure the benefits of regional empowerment and of doing things differently, so that people feel that growth in every area. We need to make sure that we work very closely together, and Ministers are looking forward to close collaboration with the devolved Administrations to succeed in this.
Baroness Finn (Con)
My Lords, I too welcome the Minister to her place—again. Having worked in No. 10 and having had the enjoyable task of managing a Prime Minister’s diary, I know that time is the most precious commodity. There are sudden, unexpected events and logistical pressures. Can the Minister explain how practical implications such as the convening of a high-security meeting at short notice will be managed when the centre of government is effectively split between two centres—No. 10 and No. 10 North? Will there need to be a duplication of resources so that both centres are equally well equipped?
Baroness Twycross (Lab)
I thank the noble Baroness for her kind words. I think both centres will be equally well equipped. I am very glad that I have never had to manage a Prime Minister’s diary. I would like to think that those who do and who are organising these meetings, which are often at very short notice, as the noble Baroness rightly said, are better equipped than I would be to make sure that everything is absolutely in the right place at the right time—including the Prime Minister.
Lord Woodley (Lab)
My Lords, does the Minister agree with me that, whatever the cost of No. 10 North, it pales into complete insignificance compared with the £1 billion in PPE contracts that the party opposite fraudulently gave its friends and others?
Baroness Twycross (Lab)
My noble friend’s words speak for themselves; I am not sure I have anything further to add.
Integrated Care Boards: Access to Services
(1 day, 7 hours ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Pidgeon
To ask His Majesty’s Government what assessment they have made of access to primary and community health services by integrated care boards.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, access to primary care is improving. The year June 2025 to June 2026 saw nearly 14 million more GP appointments compared with the same period in the previous year, and satisfaction when contacting a GP increased by over 14% compared with July 2024. For the first time, we have introduced a waiting time standard for community health services, and 37.6 million NHS dental treatment courses were delivered in 2025-26, which is 6.2% higher than in 2024-25.
Baroness Pidgeon (LD)
My Lords, more than 600,000 people are waiting for hospital eye appointments, yet on our high streets there are optometrists who can provide urgent and minor eye care services, ensuring faster, more convenient access for patients. Will the Government require all ICBs to commission these basic community health services?
Baroness Merron (Lab)
The requirement on ICBs now is to focus on the strategic commissioning of health services and to be responsible for all but the most specialised services. Looking particularly at improvement of access to eye care, which is extremely important, the Government recently announced some £20 million to improve digital connectivity between primary care, optometry and secondary eye care. In all these ways, people will be far better served in their eye care.
Baroness Chisholm of Owlpen (Non-Afl)
My Lords, do we think that the ICBs will have a problem? We know that they have a fragmented IT service as well as terrific work overload, and I believe that they are going to go down from 46 boards to 26. Surely this will cause them a problem in being able to get the access they need. It is a real worry for them and, I would think, even more so for the patients and their families who are trying to access primary and community services.
Baroness Merron (Lab)
I understand why change creates worry, but I reassure the noble Baroness that the 10-year health plan set out the role of ICBs and, as I mentioned, for the strategic commissioning of health services and neighbourhood providers. I believe it will help to move towards fewer integrated care boards; there are currently 36. That will mean a pooling of budgets, greater efficiency, a reduction in running costs and more resources going to the front line. In all those ways, I intend for the change to deliver a better service locally.
Baroness Finlay of Llandaff (CB)
My Lords, what are the criteria that ICBs plan to use to monitor 24/7 access to services in the community? At the moment, the pressures are on emergency departments, where ever more patients arrive, because that is where the lights are on. We have heard about the governance problems of clinical errors occurring where staff are under extreme pressure and patients are in corridors.
Baroness Merron (Lab)
One of the major shifts for the NHS now and in the future is about moving services from hospitals to communities; we had a Question on that just yesterday. It is important to say that the fundamentals of oversight, which we are improving, will be through the NHS oversight framework, which will be clear about delivery and approach. I should add that NHS England will be able to focus on helping the most challenged organisations with their performance and capabilities. If there are problems such as those that the noble Baroness described, they will be identified.
Baroness Nargund (Lab)
My Lords, access to women’s health services varies significantly across the country, with women from deprived areas and some ethnic-minority communities facing particular barriers. Therefore, what steps are the Government taking to ensure that ICBs not only commission but deliver equitable women’s health services in all regions, so that a woman’s ability to access timely diagnosis and treatment is not determined by her postcode, ethnicity or social deprivation?
Baroness Merron (Lab)
My noble friend makes an important set of observations. I can reassure your Lordships’ House that reducing inequalities is absolutely hard-wired throughout our renewed women’s health strategy. For example, we are redesigning clinical pathways for the most common women’s health conditions, and that will standardise and improve care across the country.
Lord Kamall (Con)
My Lords, when I speak to primary and community health providers, they often speak of two hierarchies that they face. At the ICB level, they say that large trusts dominate, whereas at the primary care level, they say that it is GPs who dominate, often at the cost of the voices of pharmacists, dentists and optometrists, who can take on more work, as the noble Baroness, Lady Pidgeon, said. Underneath all these clinical hierarchies sit patients, who in some ICBs struggle to be heard. Given that the Government’s plans to rewire the state include abolishing local Healthwatch organisations, how will they ensure that independent patient voices—and I mean independent, not part of DHSC or from local authorities—are listened to and acted upon at all levels?
Baroness Merron (Lab)
The patient’s voice is absolutely key, and that is why the Health Bill, which is currently in the Commons and will be introduced in your Lordships’ House tomorrow, is very focused on that. There will be much discussion in here. I can assure the noble Lord that patient safety, patient voice and patient experience are absolutely key, and that will be the case as we move forward to develop and further improve the NHS.
Baroness Watkins of Tavistock (CB)
My Lords, there is increasing evidence that access to senior nursing staff in care homes and in the community keeps people out of A&E and therefore reduces many of the problems there. What responsibility will ICBs have to ensure that they purchase district nursing and community mental health training so that we have sufficient district nurses and admiral nurses to support the elderly population?
Baroness Merron (Lab)
Getting the right staffing mix is key, and the noble Lord, Lord Kamall, just spoke about what was described as a hierarchy. I am more interested, as I know noble Lords here are, in the team. The noble Baroness raised a very correct point about the role of nursing staff. These are decisions to be made locally. However, the requirement is on ICBs, and they will be measured—as will be contained in the national guidance—on getting the right staffing mix and the right people in place to meet the move to community health services and reduce unnecessary attendance and bed occupancy within hospitals.
Baroness Barker (LD)
My Lords, in some places, the relationship between community nurses and acute hospitals is good and patients receive what they think is a care pathway. In other places, the relationship between district nurses and GPs is incredibly problematic, and instead of there being a clear care pathway there is a blockage. What are ICBs going to do to make sure that everybody gets the best distribution of services, not the worst, as happens in some places?
Baroness Merron (Lab)
That is indeed the intention, as the noble Baroness rightly points out. In all this and in the discussion today, which is legitimate, transparency is important. As we committed to in our 10-year health plan, we have already launched a new set of league tables so that every NHS trust is ranked against clear and consistent standards and that we can see what progress is or is not being made. That will raise standards, tackle variations in care and allow a focus, where extra focus needs to be applied, to make changes. Previously, it was far too generic. This will allow us to focus.
El Niño
(1 day, 7 hours ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Ritchie of Downpatrick
To ask His Majesty’s Government what assessment they have made of the potential impact of El Niño on climate patterns, flooding and food security in the UK.
Lord in Waiting/Government Whip (Lord Katz) (Lab)
My Lords, the Met Office is continually updating forecasts for the ongoing El Niño event. Work is under way across government to assess any potential direct and indirect impacts. El Niño is expected to increase the likelihood of wetter and stormier conditions this autumn and winter. The Government are therefore monitoring potential implications for flooding, international food supply chains, energy resilience and food security. El Niño highlights the importance of climate adaptation and resilience planning work that is under way across government.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I thank my noble friend the Minister for his detailed Answer. Only last week, the Secretary-General of the United Nations indicated that the El Niño effect will be more pronounced in the next few months and will have direct implications for food security. I know, and welcome the fact, that our Labour Government have been working on that multi-departmental approach to dealing with the impact of climate change. Therefore, when will the Government unveil the strategy in 2026 to bring the UK closer into line with the EU in terms of emergency preparedness, and what they are likely to recommend to protect food security and to ensure that our rural communities are more resilient to the impact of El Niño?
Lord Katz (Lab)
My noble friend is right to highlight the attention that is being paid to the impact of El Niño. Indeed, the Government Office for Science is undertaking work to assess the potential impacts on the UK, including implications, as I said, for the food system. Defra is working with the Met Office and other government departments to understand this and the wider risks to our national resilience. There is no current evidence that this event will lead to food security issues for the UK, although we continue to assess emerging evidence and forecasts, as well as industry intelligence. The Government published their annual statement on national resilience on 14 July this year, in which we announced a multi-year campaign to direct the public to updated guidance on simple steps that they can take to make sure they are prepared for risks such as power cuts or storms. This campaign, which builds on existing guidance that we already publish on GOV.UK/prepare, will launch later in the year and will indeed bring the UK into line with European peers, most of which already run similar awareness activity.
Baroness McIntosh of Pickering (Con)
My Lords, with consecutive droughts followed by a flood, the consequences for the UK are severe. The Government have tools in their toolbox, such as the Cunliffe report and the forthcoming clean water Bill. For what reason has the clean water Bill been delayed until next year, if that is the case?
Lord Katz (Lab)
The noble Baroness is right to point out the importance of the Cunliffe report and the need to reform the water industry, but this is a very complex matter. As she noted, or at least implied, we are due to have a water Bill and, as was announced in the King’s Speech, it is coming. We will unveil further reforms as part of that process.
Baroness Grender (LD)
My Lords, does the Minister agree that it is faintly ironic for the Secretary of State to advise households to stockpile food when the UK has fallen to being 65% self-sufficient in what we eat? Given the UN’s warning that 50 million people worldwide face acute hunger from this super El Niño, what assessment have the Government made specifically of risks to British food security?
Lord Katz (Lab)
The comments my colleague the Secretary of State made simply called for awareness and preparedness. That is a precautionary route to take, rightly. As I said in answer to my noble friend, as it stands, the intelligence we have is that there is no evidence that the El Niño event will lead to food security issues for the UK. Of course, we work with organisations, including the UK Agriculture Market Monitoring Group, which monitors UK agriculture markets around issues of price, supply, inputs, trade and other recent developments, to keep this under review. As I said, as it stands, there is no evidence that this event will cause food security problems for our country.
Lord Sharma (Con)
My Lords, given the increasingly challenging impact of climate change on households, public services and business, have the Minister and his department given any consideration to ensuring that the UK’s national adaptation plan is a dynamic document that is regularly updated, rather than something that is static and updated every five years? Could he also update the House on any representations that he and his department have made to the new Chancellor to protect long-term funding, for instance for flooding, at future fiscal events?
Lord Katz (Lab)
We are very clear that although there is no clear evidence that climate change is making El Niño events more frequent, it is certainly the case that they are taking place against a backdrop of rising global temperatures and increasingly extreme weather, so they can indeed intensify existing risks. On the noble Lord’s point about the Treasury, we are committed to investing in improvements to water infrastructure and resilience. Indeed, I believe I am right in saying that we expect more than £100 billion in investment to come in to improve the water infrastructure system, which will go some way to help improve the country’s resilience.
Lord Harris of Haringey (Lab)
My Lords, I refer to my interest in the register as chair of the National Preparedness Commission. I recall that I asked a very similar Question to my noble friend’s a couple of months ago. I am slightly disconcerted by the assumption that this will somehow not have an impact on food supplies, because directly and indirectly it will. The most likely outcome of the enhanced El Niño—the once-in-a-millennium event that we are now being told it may be—is that far more extreme storms will affect us. My noble friend the Minister has responded very much on behalf of Defra, but I wonder what other departments are doing to prepare the sectors that they are concerned about. How will they withstand and respond to what may be extremely severe weather conditions?
Lord Katz (Lab)
I thank my noble friend for his question and for all his work on national preparedness. To be clear, I am not saying that there will not be any impact on supply chains but, on wider food security, we can at the moment have greater certainly around the evidence that there will be an impact. He raised a very important point about cross-government preparedness for the consequences of wetter weather and flooding. Activities are currently under way. The national flood response centre will be stood up for a testing exercise very shortly. The Floods Resilience Taskforce, which is across departments, government, and local, regional and devolved national Governments, is preparing an assessment of flooding risk and preparedness. It will meet in October to discuss those plans. I also note that Flood Action Week begins next month on 12 October and it coincides with national resilience week, which will help combine the importance of these messages.
Lord Stirrup (CB)
My Lords, given that we will see some effects from these weather patterns and that they will devastate parts of the country, can the Minister assure the House that, in preparing for this, proper consideration is being given to planning and training of Reserve Forces in response to local flooding and other severe weather conditions, given that the military will almost certainly be called on to support the other emergency services?
Lord Katz (Lab)
The noble and gallant Lord raises an important point. The use of both normal and Reserve Forces in these situations is important. That is exactly the sort of issue that the Floods Resilience Taskforce will look at in its preparedness.
The Earl of Effingham (Con)
My Lords, when will the Government accept that it is our own brilliant British farmers who can provide food security, but they are being punished for their efforts by the family farms tax? Why are the Government refusing to listen to the NFU and its 43,000 farming members who remain opposed to the policy as the wrong approach, or to major accountancy firms that confirm that the policy will introduce considerable challenges for those affected?
Lord Katz (Lab)
I fear I will repeat the Answer that my noble friend Lady Hayman gave from the Front Bench yesterday. We recognise the importance of our farming sector. We are finding policies that work for rural areas, which include support through rural rate relief, small business rate relief, a high VAT registration threshold and small profits corporation tax rate, as well as things such as reduced red diesel rates. We are working to support the farming sector.
Baroness Jones of Moulsecoomb (GP)
Thank you.
The worsening and more erratic behaviour of El Niño is simply because of climate change. We have a climate crisis.
Lord Hamilton of Epsom (Con)
It is not because of climate change. El Niño pre-dates climate change.
Baroness Jones of Moulsecoomb (GP)
Keep quiet, Archie.
The fact is that fossil fuel burning is a direct cause of our climate crisis, so why have the Government got the reopening of the Jackdaw and Rosebank oilfields on the menu? Why not just say that that is wrong?
Lord Katz (Lab)
It is lovely that we have had the opportunity to hear from the noble Baroness. A little bird made me think that we might get on to Jackdaw and Rosebank. I want to be very clear: both those fields are subject to a lot of regulatory processes. The public notice periods were open and closed on 10 August and 17 August respectively. We are part of that regulatory process. My colleague, Miatta Fahnbulleh, the Secretary of State, will consider the representations that have been received and will make decisions on each project in due course. I am afraid that noble Lords will not hear anything further from me on that subject.
Parliamentary Works Estimates Commission
(1 day, 7 hours ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Smith of Basildon
That Lord Ponsonby of Shulbrede be appointed a member of the Select Committee, in place of Lord Gardiner of Kimble.
Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2026
(1 day, 7 hours ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Hanson of Flint
That the draft Order laid before the House on 30 June be approved.
Considered in Grand Committee on 2 September.
Criminal Justice Reform
(1 day, 7 hours ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Wolfson of Tredegar (Con)
My Lords, the exodus that we have just seen was about as chaotic as the Government’s plans that we are about to debate. However, I thank the Minister for providing us with the opportunity to ask questions.
This latest Statement represents the fifth early release scheme that has been announced since the Prime Minister took office less than two months ago. With every new announcement, victims have been left in doubt as to which criminals will be released early. I hope that the Government recognise the impact that their lack of direction will have caused.
The Minister in the other place set out that the amended early release scheme will operate for the foreseeable future, as the Sentencing Act 2026 is the basis on which standard determinate sentences will be governed. However, given that the Act, as passed by Parliament, did not exclude any of the exemptions that were announced last week, I hope that the Minister will understand why questions remain. It is right that those convicted of the crimes set out by the Justice Secretary are exempt from the early release scheme.
If noble Lords cast their minds back to January, when the House debated the Report stage of this very Act, they may remember an amendment tabled by my noble and learned friend Lord Keen of Elie that would have achieved a very similar outcome. That amendment would have excluded a number of dangerous criminals—those serving time for some of the most serious offences—from early release.
However, the Government resisted our Conservative amendment and prevented it going into the Act. The Government were warned that the Act would reduce the time spent in prison for more than 60% of rapists and more than 80% of child sex offenders. Now, nine months later, the Government have belatedly accepted the problems with their early release scheme. Why has it taken them so long to acknowledge the warnings from my noble and learned friend? What has changed in their assessment of available prison spaces between January and September that they can now include these exemptions when they resisted them earlier this year?
There is a further important point, which I ask the Minister to consider very carefully. The statutory instrument that establishes the early exemptions says:
“The provisions listed in regulation 2 do not come into force in relation to a sentence for an offence listed in the Schedule to these Regulations”.
In other words, it is a commencement issue; it stops it coming into force. The Sentencing Act 2026 has a commencement provision. The Secretary of State has the power to commence the early release scheme on different days for different purposes. You can have a postponed commencement for offences that are subject to the early release scheme under the 2026 Act, but you can have only a postponed commencement; you cannot have no commencement.
As the Minister knows, there is case law to the effect that a permanent failure to commence the early release scheme in full would be beyond the powers of the Secretary of State because it would frustrate the will of Parliament in passing the legislation in the first place. So there is a real conflict here between government comms and government policy. Government comms are telling the media that the exempted serious offenders will remain behind bars, full stop. The mechanism that Ministers are using appears to be only temporary. Can the Minister resolve that conflict by confirming to us today that the carve-out in these regulations is, in fact, only a temporary carve-out? Will the Government therefore bring forward substantive amendments to the 2026 Act? If so, when? If he cannot confirm that today, will the Minister recognise and confirm that he has at least taken into account the real risk that this statutory instrument will be successfully overturned, following judicial review?
I turn now to IPP sentences. I acknowledge that 99% of IPP prisoners have served longer than their original tariff. Equally, of course, those prisoners were given those sentences due to the risk that they posed, so we have to consider public safety. The Minister in the other place outlined that the Government will introduce legislation on this matter. Is the Minister able to help us on whether that will be primary or secondary legislation? Is there a more specific date for its introduction than “soon”, which is one of those rather elastic words when used by Government Ministers for legislation? I ask the Minister to outline, if he can, what safeguards will remain in place to ensure that prisoners still considered too dangerous to be released are not released and that any risk to victims is, of course, taken properly into consideration.
The Minister in the other place did not share a particular target or timeline by which the Government expect to deport foreign national prisoners or to answer the question of how the Government intend to overcome the barriers posed by, in particular, Articles 2 and 3 of the European Convention on Human Rights. Will the Minister set out the Government’s plans for how they will address those barriers and provide either a date by which they expect to remove all foreign national prisoners or a target number of how many they intend to remove by the end of this year? These are pressing issues; I hope that the Minister will be able to address them.
I have one final, short point. Arising from the Statement, the Government have pledged a prison-building programme that will, we are told, create 14,000 new prison places by 2031—but the problem is now. There are currently 4,000 operational prison places not in use for reasons ranging from regulations to officer shortages. What steps are the Government taking to utilise those spaces?
These matters are all of serious concern to victims. As I say, the Government have now made five different announcements on the early release scheme. I hope for clarity’s sake—and, perhaps, for the Minister’s sake as well—that this is going to be the last one. I look forward to the Minister’s responses to my questions.
Lord Marks of Henley-on-Thames (LD)
My Lords, we agree with the Statement that the Government clearly inherited a crisis of prison spaces, and a crisis in our criminal justice system as a whole. Frankly, the crisis was clearly attributable to many years of neglect, principally under the last Government. The Sentencing Act was a timely response to that crisis of available prison space. It is unsurprising that, as events have developed, the implementation of the Sentencing Act has changed, and the response of the Government is acceptable in that regard.
We are content to see that a great deal is being done for victims and victim support but concerned to know that public confidence in tagging and the other measures that are proposed to increase confidence and security among the public are matched by an increase in concern for the welfare of victims generally and the availability of services to those victims.
The provision of probation services plays a considerable part in the Statement. Our concern is that the resources available from the welcome allocation of £700 million for probation services by the end of this Parliament will be insufficient given the increased demands of more prisoners released into the community, more tagging, more restrictions and more exclusions, which are designed to increase confidence and security among the public. What are the Government’s plans in the event that the resources for probation prove insufficient? How far are they able to say that there will be an increase in the £700 million allocation?
I turn to prison building. There is in the Statement a pride taken in the fact that more prison spaces are to be made available. However, prison building is not the whole answer. We need to move to a more humane system that prioritises reduction in reoffending, reform and rehabilitation over simply providing more space. We have overcrowded and unhealthy prisons, many of which need replacement, but new prisons take a great deal of time to build. There are delays in planning, in getting planning permission, in design and in building new prisons. Can the Minister give us details of those delays in the prisons that have been recently opened?
The Statement also talks about building more cells within existing prisons. That is well and good, but the problem may be that those new cells in existing prisons will put more pressure and more need for spaces on the rest of the facilities in those prisons. How far have the Government considered ways of mitigating that?
Finally, on a more positive note, we very much welcome the commitment to legislation to end the complete scandal of IPP sentences before the end of this Parliament. It is monstrous that a sentence that was abolished in 2013 should still be keeping prisoners behind bars when those prisoners would have been released years ago had they been given sentences that fitted their crimes.
I hear the concerns about security. Nevertheless, prisoners on determinate sentences are released into the community, and it is welcome to hear that the same is going to happen for IPP prisoners. We accept the invitation to work cross-party with the Government to work out how this can be achieved, but it would be interesting to hear from the Minister today the detail of how this is going to be achieved within the timescale and what measures that are not currently in place will be taken to that end.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Lemos) (Lab)
My Lords, I begin by declaring my interest. I was the lead non-executive director and chaired the agency board of His Majesty’s Prison and Probation Service until March 2025. Last week the Lord Chancellor set out in the other place changes to the implementation of the Sentencing Act 2026 to strike a better balance between protecting prison capacity and protecting the public from dangerous offenders. As the noble Lord, Lord Wolfson, indicated, the Government recognise the uncertainty that victims have faced over the summer. When they are told that an offender may be released earlier than they expected, I have no doubt at all that it can be extremely distressing. I will say bit more about how we propose to support, and are already supporting, victims in a moment.
Victim liaison officers will be engaging directly with victims opted in to the victim contact scheme, which this Government have expanded in recent legislation, so that they understand how their individual cases are affected. We are also attempting to trace victims who are not in the scheme. This is backed by £18.9 million for victim support, including a dedicated helpline and specialist support for victims of violence against women and girls. The Government recognise that victims’ concerns are increased by uncertainty. The whole purpose of making these changes to the exemptions is because we have listened to victims. That is the basis on which we are proposing to make these changes. It is why the Government were determined to look again at these changes, which never applied to some of the most serious violent and sexual offences or life sentences.
I say to the noble Lord, Lord Wolfson, that of course I remember the debates on the Sentencing Bill. I was here throughout. I suppose I will not be the first or the last Minister to say that we are doing something different from the things I objected to in the past. We have now, rightly, also excluded rape, serious child sex and grooming offences, manslaughter, other unlawful killing offences, and indecent assault, which had been used to prosecute historic child sex abuse. We acknowledge the public concern. That is why the Prime Minister and the Lord Chancellor have initiated these changes and that is why we have made the announcement. We have listened to victims—that is why we are doing these things—and we want to continue to do that.
On the point that the noble Lord, Lord Wolfson, made about commencement, the Act has already been commenced. Primary legislation is not needed in the short term, but we will pursue it when parliamentary time allows. We must, however, continue to be honest about why these reforms were introduced. When we took office in 2024, prisons were regularly at 99% of their capacity. Running out of places risked paralysing the criminal justice system and we acted to avert that crisis, but prisons continue to operate near their limit.
I have been involved with the subject for many years now. This is not a new problem. This goes back to 2022. I have discussed it—
Lord Lemos (Lab)
Yes, it goes back beyond that, but the intensity has not gone away. The answer cannot be a succession of emergency measures. The noble Lord, Lord Wolfson, said the Government had introduced various emergency measures. Well, we needed to, because the previous Government refused to act. Parliament legislated through the Sentencing Act for a sustainable model in which some offenders spend less of their sentence in custody, depending on their behaviour, before continuing to serve their sentence under intensive supervision in the community.
Much of the debate about the changes we are making to the Sentencing Act has simply not taken account of the changes we are making in the supervision arrangements. I am happy to say more if noble Lords want to ask me, but it is a different proposition that is now being proposed for the second third of the earned progression model by probation staff. Probation staff do an extraordinarily difficult job protecting the public, and I want to pay tribute to them. It is easy to be critical of both prison and probation staff, but I regard them as heroic and doing jobs that many of us would find almost unconscionable.
Working closely with the police, we have given them a much more robust range of measures to manage offenders outside prison, and we are building a very different Probation Service. These measures can include curfews, exclusion zones and, for the most serious sexual and violent offenders, new restriction zones, which will tightly constrain their movements, with serious breaches of these conditions potentially resulting in recall to prison. The purpose of probation, as we are now conceiving and structuring it, is about controlling people’s movement, knowing where people are and being able to take action. We are making it possible for probation officers to know where tagged offenders are in real time. That has not been possible before, so it is a really big change.
In response to the question from the noble Lord, Lord Marks, we recognise the pressure that probation already faces, and now we are asking it to do more. That is why, as he noted, we have invested an additional £700 million in probation and community services by the end of the sentencing review period. We have also hired 2,300 more trainee probation officers. The recruitment of new probation officers has gone well, and we plan to bring on board 1,300 more by March 2027.
We have made substantial progress on productivity in probation through the introduction of Justice Transcribe, and we have reduced probation officer case loads by 25%. I pay tribute to my noble friend Lord Timpson for his work in this area; he was relentless in his focus on improving probation. I think he is still in his place—yes, he is. I am delighted to have him as my guardian angel on my shoulder.
I said earlier that we cannot allow our prisons to return to the cliff edge that we faced in 2024. Changes to the implementation of the Sentencing Act inevitably have an effect on prison capacity, and we have a duty to ensure that there is enough space in prisons to meet demand. The Lord Chancellor has therefore brought forward £110 million to convert existing prison spaces into cells. We are also accelerating current builds and securing sites for future prisons. This will help us to reach our ambitious target of creating 14,000 additional prison places by 2021, of which 3,200 have already been delivered.
The noble Lord, Lord Marks, asked me about planning difficulties and so on. I am happy to give him more detail later, but we have made a good deal of progress on acquiring land and have speeded up the planning process.
In answer to the noble Lord, Lord Wolfson, we are also freeing up capacity by accelerating the removal of foreign national offenders: I am sure I will come back to that. We will shortly commence a power under the Sentencing Act allowing eligible offenders to be removed immediately after sentencing. That will not include dangerous offenders.
My time is up, but I want to address the points that were made about IPP. This is a very significant change. We can talk at greater length on noble Lords’ questions about how we are going to go about this, but taking those sentences off the statute book is an absolute priority and would still be an absolute priority even if the prisons were half empty.
Viscount Hailsham (Con)
My Lords, with regard to excluding those convicted of manslaughter from early release, should we not keep in mind that manslaughter involves varying degrees of culpability, from the very serious to those which are less serious? There are cases involving, for example, a high degree of provocation or diminished responsibility, or, for example, a common assault where a single blow fells the victim who falls, hits his head on a table and dies. These are offences which vary in culpability to a high degree and I suggest that they should not be classed in one single spectrum.
Lord Lemos (Lab)
I entirely agree with those comments from the noble Viscount. That is absolutely right. We obviously have to be consistent in the way we apply these exemptions, but the variation he points to is exactly right.
Lord Woodley (Lab)
My Lord, I warmly welcome this Statement. The Government’s commitment to end the IPP scandal, as has been mentioned, is long overdue. A transition with public protection at its heart is the right way forward, but may I suggest that we start straightaway with what I call the low-hanging fruit: the IPP prisoners who have already been found safe for release but have been recalled to custody for no further offence? That is about 80% of the recalls. Around 1,000 IPP prisoners could be released safely under supervision like this, so will the Government consider this option as a matter of urgency?
Lord Lemos (Lab)
I thank my noble friend and pay tribute to him for the work that he has done, along with many other noble Lords on all sides of the House, to move us forward on the question of IPPs and how we regularise the situation. I should reinforce this: it goes without saying that we are not going to release people the Government or Parole Board think are dangerous, and we will put in place arrangements to make sure that we do not.
On recall specifically, we are planning to consider whether we can make more use of the risk-assessed recall review. I am happy to discuss this with my noble friend and others to address some of the concerns raised, but the recall powers are there for a reason and we do not propose to get rid of them. We are proposing to make sure that they are used in a way that keeps the public safe, but does not keep people in unnecessarily.
Lord Lemos (Lab)
I know that the noble and learned Lord, Lord Garnier, wants to get up, but I want to respond quickly to the questions from the noble Lord, Lord Marks, about implementation. It is obviously very early days. The Prime Minister has made a commitment to legislate in this Parliament. That is a major step forward and I absolutely undertake to keep the House, and noble Lords who are interested in this, up to date as our thinking develops. But I am sure he understands that I cannot explain precisely how we are going to do it now.
Baroness Hamwee (LD)
My Lords, also on IPPs, we have failed so many people. So many of those prisoners were not able to access the courses that they were supposed to undertake to qualify them to apply for parole and so on. They must have been damaged by what has happened and the length of time they have had to spend in prison which they should not have done. What are we going to do to support that cohort of people?
Lord Lemos (Lab)
I thank the noble Baroness. That is exactly what we are thinking about now. As we go forward with these plans on IPPs, we are actively considering how we support them, before release and afterwards. It is absolutely shocking that 80% of the unreleased IPP prisoners—I think that the noble Lord, Lord Wolfson, mentioned this statistic—have served more than 10 years over their tariff. Of course that has had an effect on them and we must make sure that we understand and mitigate that effect, not just from the point of view of public protection but for the welfare and dignity of those people. I still believe in the welfare and dignity of prisoners; I know that is old-fashioned.
The Lord Bishop of Gloucester
My Lords, I am grateful to the Minister for this Statement, particularly the highlight on IPP prisoners. However, the approach still feels piecemeal, driven too much by ill-informed public narrative and wrongly focusing the problem on prison capacity. Does the Minister agree that the focus needs to be on reducing offending and reoffending, with the solutions being evidence-led to benefit victims, offenders, families and communities together? Will he say what progress has been made in response to recommendation 5.1 of the Independent Sentencing Review, namely, that we should:
“Launch a public awareness campaign on sentencing”,
because in recent weeks we have seen the consequences of this huge void?
Lord Lemos (Lab)
I thank the right reverend Prelate for those observations. I disagree only with the comment about the ill-informed public narrative. There is a need for us to better explain to the public what we are doing and why we are doing it, particularly, as I have said, the intensive community supervision that we are talking about in the second phase of the progression model. The Government are still committed to the progression model; it is in the legislation, and we will take it forward. I absolutely accept the challenge that we need to do better at communicating with the public.
Lord Clarke of Nottingham (Con)
My Lords, I was Justice Secretary when we abolished IPPs in 2012. Nobody in Parliament then would have believed that, 14 years later, we would still have 2,000 people being held in prison indefinitely without release. It is not the case that they had all been sentenced because they were dangerous; IPPs were beginning to be used by many courts as a routine sentence for comparatively minor criminal offences. If those 2,000 people had been given the normal determinate sentences that we now have, every one of them would have been released some time ago without further process.
It is quite certain that, when the 2,000 are released, several of them will commit quite serious offences and come back before the court. Then, of course, there will be outrage led by campaigners and, understandably, by victims and so on. There is a danger that, to guard against that, the Government will legislate for all kinds of constraints on the release of the IPP prisoners, and I fear that, in a few years’ time, we will find that 1,000 or so are still in prison on indeterminate time. Of course, the Government have to look at legislation, but will the Minister try to ensure that it is not based on ultra caution and trying to avoid some future turmoil, and that it is mainly based on the belief that all these people should be free and only in exceptional circumstances should those that are an obvious danger to the public be kept in custody?
Lord Lemos (Lab)
I pay tribute to the work that the noble Lord, Lord Clarke, did as Justice Secretary, particularly in relation to young offenders. On the specific point about IPP, I take his warning very seriously. This will be a very heated debate, and I shall appreciate the support of all noble Lords in taking this forward in the way the noble Lord, Lord Clarke, suggested. The Government do not want to be risk averse, nor guided by ill-informed public opinion, but we want to take victims into account, as I am sure the noble Lord understands. However, his warnings will be ringing in my ears as this goes forward.
Lord Phillips of Worth Matravers (CB)
My Lords, I turn to the cause of the prison problem. In my time in the law, I have seen sentences steadily increasing, so that today they are more than twice as long as when I started at the Bar, and far longer than sentences in most European countries. The cause has generally been a knee-jerk reaction to perceived demand from the public for greater punishment for particularly unpleasant instances of a crime, so sentences have been increased by the legislature. Does the Minister consider that this trend, which shows no signs of abating, ought to be examined very carefully, so that sentences are not increased without due regard to the consequences this will have?
Lord Lemos (Lab)
The observation that sentences have doubled at the hands of legislators over a few decades is at the heart of the way we are progressing with the Sentencing Act and creating a different structure for these things. I do not know what the intention was, but if it was to win public confidence in reducing crime by doubling these sentences, it has palpably failed. Of course, there are several objectives—not competing ones—that we need to take into account: seeing that justice is done, taking the views of the victims into account, and making sure the public understand why the sentences imposed are the ones being imposed. But we must proceed with all those objectives in a considered and holistic way. That is what seems to me to have been missing.
Lord Foster of Bath (LD)
My Lords, in what appears to be plucking figures out of the air, we are told that between 200 and 900 new cells are going to be created by the conversion of laundries, office spaces and storage areas. Can the Minister at least assure us that every one of those new cells will be fitted with automatic fire-detection equipment? Secondly, can he tell us where the staff are going to come from to supervise the prisoners in those cells?
Lord Lemos (Lab)
We will of course take all the standard precautions, including fire safety, in the provision of these new cells. They are not cheap—that is not a secret —and I think the Lord Chancellor said that the numbers will be in the middle of the range the noble Lord suggests. I agree that we need to make sure that these places are properly staffed. On increases in capacity, as noble Lords know, I am not generally one for blaming the previous Government, but they created 500 new places net in 14 years; we have created 374 in two years.
Lord Garnier (Con)
My Lords, I remind the noble Lord, who I believe is actually interested in this subject, that this is not a zero-sum game and year zero is not 2024. I pointed out to the then Justice Secretary Jack Straw in July 2007 in the other place that, thanks to the Blair-Brown regime creating 3,000 new criminal offences through 65 new Acts of Parliament that affected the criminal law, the prison population increased. What they forgot about was the need to create prison capacity to put all these new prisoners in. When Lord Hurd of Westwell was Home Secretary in 1990, the prison population was 40,000; it is now just short of 88,000. I am not making a party-political point, I promise, but I do find it a bit boring when Ministers in this Government say it was all the fault of the 2010 to 2024 Government and has nothing whatever to do with what happened before.
Let me give the Minister a gentle suggestion. His noble friend Lord Woodley, the noble Baroness, Lady Jones of Moulsecoomb, and I earlier this year put forward Amendment 96 to the then Sentencing Bill, which would have allowed a panel of judges to reconsider the imprisonment of those prisoners on IPP sentences. Could he have a look at it and see if he can bring it back? It would take a one-clause Bill, which we could get through this House in 20 minutes—and through the other House in God only knows how long. But we could pass that law to improve the condition of the people my noble friend Lord Clarke has mentioned, and to some small extent reduce the overcrowding of our prisons, which cannot function if they are overcrowded. We just churn people round and round and round. It is an expensive waste of human life.
Lord Lemos (Lab)
I thank the noble and learned Lord. I am interested. I hope I sound interested. I have been interested in all this for a very long time. In fact, I am starting to bore even myself, not just the noble and learned Lord. But I take what he said seriously. As I say, in general I am not one for blaming the previous Government. I absolutely recognise that this has been going on for a long time now and we have not managed to expand the prison estate. There have been successive announcements, but I think we are making some progress in that regard. We are not going to get down to the sorts of numbers that the noble and learned Lord is talking about—he knows that—but we have to make those commitments on prison building.
On IPPs, I will absolutely look at the amendment that the noble and learned Lord proposed. Obviously, at this stage, we are working our way through exactly how we do this, and I am sure I will be back before your Lordships at the Dispatch Box before long to set that out.
There is one other thing, which I should have mentioned when the noble Lord, Lord Clarke, was speaking. My noble friend Lord Blunkett, who cannot be in his place today, said to me that these sentences had not worked in the way they intended, which is a kind of confirmation of what the noble Lord, Lord Clarke, said.
Lord Faulks (Non-Afl)
My Lords, the Minister referred to the removal of foreign national offenders and how that was to be a priority. I am sure that the House welcomes that, but I did not hear an answer to the question from the noble Lord, Lord Wolfson, about the changes in the application of the relevant provisions in the European Convention on Human Rights, which would potentially make it much easier to remove foreign national offenders. Can he tell us when we can expect these changes? Also in terms of changes, one of the problems that we heard a great deal about from his predecessor was the backlog of cases, which of course meant that people were in prison for longer than necessary, often awaiting trial. Can he tell the House whether the proposed changes to trial by jury are still part of the Government’s plans or not?
Lord Lemos (Lab)
Foreign national offenders have the right to appeal their removal, but this Government are already tightening how the right to family life in the ECHR is applied to our Immigration Rules so that it is no longer abused, as part of our immigration White Paper. The Government’s view is that we do not have to withdraw from the ECHR to deliver meaningful change. On the question of trial by jury, we will be discussing the Courts and Tribunals Bill before long, I am sure.
Lord Beith (LD)
My Lords, we have more of our population in prison than most other countries. Will that situation not continue and get even worse, and promote even more crises, until the Government explain to the public that enormous resources are spent building and staffing prisons and that those resources are not being used in the way most likely to reduce reoffending?
Lord Lemos (Lab)
I need to be straightforward with the noble Lord. Prison numbers are not going to come down quickly; in fact, they are going to rise. That is why we are building new prisons. A number of noble Lords have asked about reducing reoffending. The Government have done a great deal about reducing reoffending. Indeed, HMPPS had a great deal of support from the previous Government, financially, to build up our capacity for housing and for drug treatment, and my noble friend Lord Timpson did a great deal on the employment front. But I should say that what will not reduce reoffending, in any circumstances, is overcrowded prisons with overstretched staff operating in an environment that is extremely disruptive. If we want people not to reoffend, the way to achieve it is to have highly motivated staff working in a reasonable way, with the support and the facilities that are available, in the way that my noble friend Lord Timpson sought to achieve.
Baroness Stowell of Beeston (Con)
My Lords, the Government’s early release scheme has clearly created a lot of concern among the wider public, so can the Minister provide any data on how many offenders who have been released under this scheme have since been returned to prison? Can he also commit to providing regular data updates on any prisoners who have to be returned to prison after being released early?
Lord Lemos (Lab)
Well, these arrangements are not coming in until the beginning of October.
Lord Lemos (Lab)
There have been prisoners released at the end of their sentences for a long time. We do publish data on prisoner releases and will continue to do so.
Lord Russell of Liverpool (CB)
My Lords, I have the privilege of serving on the post-legislative scrutiny committee on the Domestic Abuse Act, and I am reassured by the Minister’s focus on victims. Obviously, we are liaising closely with both the Domestic Abuse Commissioner and the Victims’ Commissioner, and I can assure him that there continues to be a very high level of concern among victims, not least because of the failures of communication in making clear to them, and, quite often, their children, what degree of harm they may be in the way of. I will ask one specific question about the response to breaches of either exclusion zones or restriction zones. Those will be only as effective as the monitoring of, and the responses to, any breaches. If an offender wants to breach, they will breach. What processes are in place to ensure that probation receives timely notification of any breach, and that the police can react swiftly? Will responses to breaches actually keep the victims safe in the moment, or will they simply be identified and acted on retrospectively?
Lord Lemos (Lab)
I pay tribute to the noble Lord for the work he has done on this; we have discussed it many times. On his specific question, I think I have already indicated that, under the way we will be managing probation data, probation officers will know the whereabouts of offenders on tags in as close as possible to real time. At the moment, that is not the case.
The key thing in relation to domestic abuse victims is, as I have said, that the way in which they feel safe, and are safe, is if the system—the Probation Service—knows where people are and what they are up to, and can keep victims safe from access by those people. The noble Lord knows that what we have rolled out in DAPOL—domestic abuse perpetrators on licence—has been very successful. We have introduced 2,000 of these and will roll them out across the country by the end of the year.
With domestic abuse, it is one thing ensuring that justice is done and getting a trial and so on, but in my experience of talking to domestic abuse victims, the primary thing is that they want to feel safe, and they want their families and their children to feel safe. The way in which we can achieve that is, in large measure, in the short term, partly through the intensive community supervision provisions that we are making.
I am out of time—I find it difficult to shut up on this subject—but may I make one final offer to your Lordships? Because we have had a number of questions about probation, I will arrange for an all-Peers presentation on the changes we are making, in particular the intensive supervision model, including in relation to domestic abuse. I want noble Lords to really feel they have understood those things, and then I will be happy to take any further questions.
Armed Forces Bill
(1 day, 7 hours ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Coaker
“Service of notices by email(1) RFA 1996 is amended as follows.(2) In section 32 (call out of persons who have entered into special arrangements)—(a) after subsection (6) insert—“(6A) A notice under this section may also be served on a person by email by sending it to—(a) the last known email address used by that person as a means for communicating with them, or(b) if there is no such address, an email address by means of which there are reasonable grounds to believe that an email sent to that address will come to the attention of the person,and such a notice is, unless the contrary is proved, to be treated as having been received on the day following the day on which the email is sent.”;(b) in subsection (7) after “subsection (6)” insert “or (6A)”.(3) In section 43 (call out of special members)—(a) after subsection (7) insert—“(7A) A notice under this section may also be served on a person by email by sending it to—(a) the last known email address used by that person as a means for communicating with them, or(b) if there is no such address, an email address by means of which there are reasonable grounds to believe that an email sent to that address will come to the attention of the person,and such a notice is, unless the contrary is proved, to be treated as having been received on the day following the day on which the email is sent.”;(b) in subsection (8) after “subsection (7)” insert “or (7A)”.(4) In section 58 (call out of members of a reserve force on authority of call-out order)—(a) after subsection (7) insert—“(7A) A notice under this section may also be served on a person by email by sending it to—(a) the last known email address used by that person as a means for communicating with them, or(b) if there is no such address, an email address by means of which there are reasonable grounds to believe that an email sent to that address will come to the attention of the person,and such a notice is, unless the contrary is proved, to be treated as having been received on the day following the day on which the email is sent.”;(b) in subsection (8) after “subsection (7)” insert “or (7A)”.(5) In section 70 (recall of persons on authority of recall order)—(a) after subsection (7) insert—“(7A) A notice under this section may also be served on a person by email by sending it to—(a) the last known email address used by that person as a means for communicating with them, or(b) if there is no such address, an email address by means of which there are reasonable grounds to believe that an email sent to that address will come to the attention of the person,and such a notice is, unless the contrary is proved, to be treated as having been received on the day following the day on which the email is sent.”; (b) in subsection (8) after “subsection (7)” insert “or (7A)”.”Member's explanatory statement
This new clause enables certain notices given under the Reserve Forces Act 1996 to be sent to persons by email in addition to the current provisions of the Act enabling service by post.
The Minister of State, Ministry of Defence (Lord Coaker) (Lab)
My Lords, government Amendments 38 and 39 in my name are needed to make improvements to the Bill.
Amendment 38 makes a simple but important modernising change. It will allow formal call-out and recall notices for reservists to be sent electronically, in addition to the existing postal route, ensuring that our legislation reflects the way people communicate today. The existing postal system will remain available where needed.
When time matters most, electronic communication can provide faster delivery, greater assurance that notices have been received, and a more responsive process for communicating with reservists.
This is not simply an administrative improvement. The strategic defence review emphasised the importance of national resilience, preparedness and the role of our strategic reserves. If we are to strengthen readiness across defence, we must also ensure that the systems underpinning mobilisation are agile and fit for purpose.
In a crisis or national emergency, speed of communication can be critical. This amendment helps ensure that we can reach reservists more effectively, supporting a force that is ready to respond when the nation requires it.
It is a practical and proportionate measure that forms part of our wider effort to update our reserves legislation. It retains existing safeguards, modernises an outdated process and demonstrates the Government’s commitment to building a more resilient, prepared and responsive Reserve Force for the future.
Finally, Amendment 39 is needed to make a drafting correction. I beg to move.
Viscount Stansgate (Lab)
My Lords, briefly, this is a very sensible amendment and I support it. In the world in which we now live, and with the way in which we communicate with one another, are there people in our Armed Forces already thinking ahead to different, more urgent ways of being in contact; for example, via WhatsApp? Email may not be the only way we can use modern technology to achieve the ends set out in Amendment 38.
Baroness Smith of Newnham (LD)
My Lords, I agree with the noble Viscount, Lord Stansgate, that these government amendments are limited and make perfect sense. Sending notices by email makes sense. I would be concerned about formal communications being sent necessarily by forms of social media, but, equally, it would be sensible for His Majesty’s Government to keep open the opportunities of using whatever modes of communication are relevant at the time.
The Earl of Minto (Con)
My Lords, I do not have too much to say on this group of two government amendments, so I will keep it brief.
I understand entirely why the Government wish to allow call-out notices to be sent by email. The Minister has given us an excellent explanation of their rationale, and we on these Benches concur. There are, however, two points which I would be grateful if the Minister could clarify. The drafting of the amendment says:
“A notice under this section may also be served”.
This could be taken to mean “instead of” or “as well as”. My point is that it must mean “as well as”. I would not be comfortable with call-out notices being sent out only by email. What if the email ends up in a junk or spam folder, the recipient misses the email, or perhaps they do not even check their email—there are probably some here who do not do that? If the call-out notice is sent only by email, there exists a relatively high possibility that it might be missed. This could of course have some quite serious ramifications. I hope the Minister can confirm that call-out notices will continue to be sent by post as well as by email. If that is the case, I have no issue.
The second point relates to the first. New subsection (6A) specifies which email will be used to send a call-out notice, that being
“the last known email address used by that person as a means of communicating with them, or … an email address by means of which there are reasonable grounds to believe that an email sent to that address will come to the attention of the person”.
What precisely does “used” mean in this context? Does it mean an address which the individual has provided to the MoD? Does it mean an address to which the MoD has previously sent communications? Does the department need evidence that the person has received or responded to communications at that address, and who makes a judgment that an email address is the last known one? Further, what are those reasonable grounds? Does this imply trying to send the email to a friend or relative, and if so, how will the third party be chosen? If this policy is to have the desired effect, information collection and recordkeeping must be paramount.
I understand that the Reserve Forces (Provision of Information by Persons Liable to be Recalled) Regulations 1997 expressly state that there is a legal obligation for those who are subject to recall to keep the MoD up to date with their residential or postal address. This seems essential. Those regulations do not currently require those liable to recall to keep the MoD updated about any changes to their email address. Obviously, that is because the legislation does not yet enable email addresses to be used for callout. Can the Minister confirm that, with this change to the process, the Government will update the 1997 regulations and any other relevant policies?
Lord Coaker (Lab)
My Lords, I thank the noble Earl, Lord Minto, the noble Baroness, Lady Smith, and the noble Viscount, Lord Stansgate, for their questions about this simple change. Of course, as with everything as we go through this Bill, I will look into all the various points that have been made.
My understanding with respect to email is that the amendment provides legal certainty by establishing that notices are deemed to have been delivered, mirroring—which is the wording—the existing approach used for the postal service. Many of the questions which the noble Earl has quite rightly asked about email and what happens in these circumstances are exactly the same sort of questions that can be asked about the postal service. There are established procedures and practices in place to deal with that. It is an important point. It mirrors the existing approach used for the postal service; it simply gives an alternative and modern way of doing it.
I say to the noble Viscount, Lord Stansgate, that it is the sort of legal certainty that we are looking for, again mirroring the postal service, which would not be available with some of the other methods and channels of communication that might be used.
To go back to what the noble Earl, Lord Minto, said, we need to communicate through a reliable and auditable channel so that we can follow it through and make sure that it has been delivered to whom it is intended for. Again, with respect to letters sent through the postal service, are we certain that this is the address for the person who we think lives there? Are we certain that they have got it? There is a trail by which we can follow that through. That is exactly the same process as will be followed with email. It provides us with the opportunity to modernise the current process and improve the speed and effectiveness of delivery. It provides us with a measured and proportionate approach. It introduces a well-established form of electronic communication while retaining the existing postal option where necessary—I make that point to the noble Earl.
As technology and communication methods continue to evolve, future Armed Forces Bills will provide opportunities to consider whether further changes are appropriate. For now, as far as the Government are concerned, email strikes the right balance between modernisation, legal clarity and ensuring that reservists can be reached quickly in support of defence readiness, mobilisation and national resilience. I again thank noble Lords for their contributions.
The Earl of Minto (Con)
Can I just confirm that we are talking about something in addition to, rather than instead of?
Lord Coaker
Member's explanatory statement
This amendment makes a drafting correction.
The Earl of Minto (Con)
My Lords, I rise to oppose the question that Clause 38 and Schedule 6 stand part of the Bill. These provisions would abolish the 13 reserve forces and cadets associations and the Council of Reserve Forces and Cadets Associations and replace them with a single, new, national, non-departmental public body.
I recognise that the Sullivan review identified genuine weaknesses in the governance of the RFCAs, but the vast majority of those recommendations have already been rectified by the previous Government. What is proposed here is not a solution. Rather, I would suggest, it is more likely than not to exacerbate the remaining problems.
Furthermore, I am aware that this proposition has been in the works in the Ministry of Defence for quite some time. My noble friend Lady Goldie was made aware of these plans surfacing in 2020, during her tenure in the department, and she was always sceptical of the idea. She was particularly concerned about the voluntary ethos of the associations being usurped by the bureaucracy of a quango. Interestingly, the proposal did not feature in the Armed Forces Bill 2021, so there was nothing to object to at that time.
Lord Craig of Radley (CB)
My Lords, I strongly support the purpose of opposing Clause 38 standing part. The PAC’s 43rd report of 2024-25 heavily criticised the MoD for inadequacies in its financial oversight of the RFCAs. The report said:
“The Department’s arrangements for monitoring and reporting on the RFCAs’ financial performance are inadequate”
and they
“fall below the standard we expect”.
I have studied this report. It is quite a shocker. The PAC even said that there was uncertainty over who was responsible when problems arise. I could go on, but I will spare officials their blushes. I hope they are preparing the progress reports that the PAC demanded, covering these shortfalls and failings.
The PAC specifically acknowledged that the Reserve Forces and cadets are increasingly important to UK defence, as is stressed in the SDR. But to take these shortcomings as specific reasons for changes, not just to financial control but to the management, structure and leadership of the RFCAs, is simply an overreaction. The drafters of this aspect of the Bill seem to ignore history or have little feeling for the long tradition of the Armed Forces’ loyalty and direct connection with the Crown—a tradition that goes back centuries, as mentioned, to Henry VIII and beyond. Such history is binding for the Armed Forces. It should never, even inadvertently, be disparaged or discarded.
Let us recall what Dr Sullivan’s review recommended. He sought to retain the regional volunteer networks, employer engagement and community links that make RFCAs so valuable, while strengthening the strategic direction, financial resilience and oversight. His broader message was to ensure that RFCAs remain a modern, effective and trusted partner for defence, while expanding their contribution to reserves, cadets, employers, veterans and the volunteer estate. What, then, are their particular strengths? I will me pick briefly on two.
First, the RFCAs’ unique voluntary nature, apart from their nil personnel cost, is the essence of the regional and collective support that they bring to the reserves and cadets. Their local, intimate knowledge of employers and of the attractions and enthusiasms of their locality are such a foundational success of the cadet concept that inspires young of different ages, sexes and backgrounds to join up and get involved. Their national coverage is a key defence requirement. All this should be valued and sustained, not badly revamped or even discarded.
There does not appear to be strong evidence of widespread problems in recruiting RFCA volunteers—particularly cadet force adult volunteers, where some regions have reported growth. The direct relationship between lords-lieutenant, personally chosen and appointed by the sovereign, and the cadets in their counties symbolises the expectation of the reserves’ and cadets’ loyalty to their monarch, who is their commander-in-chief. Why discard this without even consulting the lords-lieutenant or His Majesty the King? I subscribe to that old-fashioned notion: “If it ain’t broke, why fix it?”
Are the identified MoD failures in financial supervision to be laid entirely at the feet of the RFCA structures? The National Audit Office, in commenting on the financial weaknesses, suggested that arrangements other than a full-blown NDPB would be acceptable. The MoD’s own internal record, following consideration of Dr Sullivan’s report, seemed to indicate that the NDPB approach had been overtaken by the SDR and the key efforts to enhance the reserves’ and cadets’ contribution to overall defence needs. I strongly recommend that the Minister takes this back to his department, checks that the present financial oversight has been improved following the PAC criticisms and gives credit where credit is due to the volunteer strengths of the present structures, as well as to the importance of the symbolic relationship with the lord-lieutenant and the reserves’ and cadets’ loyalty to the Crown.
The Bill is mistaken to degrade or throw away such key elements of a long-established volunteer structure. To throw it away in hasty pursuit of progress, modernisation, accountability and transparency—or any other overworked nostrum of management speak—is pure madness. Of course, the MoD should heed the PAC’s criticism of its lack of proper financial management and ensure that the MoD’s accounting officer has regained the financial oversight expected by the PAC, but the MoD’s financial failings are no reason to discard the tried-and-tested experience that makes the reserves and cadets, with their supporting volunteer associations, of increasing value to both defence and society at large.
Baroness Fraser of Craigmaddie (Con)
My Lords, it is an honour to follow the noble and gallant Lord. I rise to support my noble friends and speak in opposition to Clause 38 standing part of the Bill.
I am always keen to champion improvements in governance. In the case of the Reserve Forces and cadets’ associations, there is a perfectly reasonable case, as highlighted by the National Audit Office, for bringing greater consistency, accountability and financial assurance to these organisations. My concern is that, in achieving that objective, Clause 38 risks losing something that is particularly valuable in Scotland: the strong regional relationship between defence and the communities it serves.
Scotland currently has two RFCAs: highland and lowland. As my noble friend Lord Minto said in his opening speech, they are not simply administrative offices of the Ministry of Defence; they are embedded in the communities in which they operate. They work with reservists, cadets, employers, schools, local authorities and civic organisations. The Lowland RFCA alone maintains more than 130 reserve and cadet centres across Scotland, and supports engagement with employers and communities across a very large, diverse geographical area. This local knowledge and connection was highlighted by Dr Sullivan’s report. He identified—the noble and gallant Lord, Lord Craig, referred to this—the
“wide breadth of expertise and community links”
as key strengths of the RFCAs.
The Government’s proposal would replace these existing 13 regional associations with a single, UK-wide statutory body. Regional councils will be created, but they will be subordinate to the national body. Many of the important questions about their membership, functions and geographical responsibilities will be left to regulations of the new board. So my concern is not simply structural; it is about accountability and voice.
Lord Stirrup (CB)
My Lords, let me start by saying that I agree with everything that has been said so far. I have put my name to some amendments in subsequent groupings that seek to ameliorate some of the worst aspects of Schedule 6, where I think the Government have got it badly wrong. I will seek to develop those arguments further when we come to those amendments.
Let me pose a question to the Minister. My understanding, like that of the noble Earl, Lord Minto, is that this move is largely driven by a desire to centralise much stronger financial control. If such central financial control is necessary for financial efficiency and propriety, how on earth will the Government carry out their agenda of decentralisation more widely across the country? Since this is a Government who seek to promote devolution, decentralisation and much greater local control, how on earth can this particular part of the Armed Forces Bill be consonant with that policy? They simply cannot have it both ways. I wonder whether the Minister, when he responds, could address that point.
Lord Moore of Etchingham (Non-Afl)
My Lords, it is a pleasure and honour to follow the several noble Lords, including two noble and gallant Lords, who have already spoken; of course, they have tremendous expertise. I also thank the noble Baroness, Lady Fraser, because she made a point that is very important for the more general argument and not just about Scotland: the reserves are not a reserved matter. That says something about how it all operates and how local it is.
I have the honour, as a Sussex man, of being a member of the Sussex Club. We have an absolute rule that we have no speeches ever but, at our annual dinners twice a year, as well as the loyal toast, of course, we have two other toasts. One says, “Prosperity to the county of Sussex”. The other is to the forces of the Crown.
The link between those two toasts says it all. This is partly why we do not have speeches. This is what we are talking about here: this is why it matters, and why it is rooted. We must remember that the origins of all our armies, unlike the origins of the Royal Navy, are not as standing armies but as regiments raised. That is how the loyalty of the people has always been bound in. It is quite a serious historical, emotional and cultural matter.
However, we should not rest our argument only on that point, central though it is. It could be argued that for some reason, these arrangements are out of date. We would then need to think about whether they would be more efficiently done if they are centralised. The noble Earl, Lord Minto, said that centralised non-departmental bodies are a majorly difficult feature of modern British government. It is all to do with the problem of answerability. What comes into rhetoric a great deal in modern government is that we need “an independent body” to do something or other. That sounds lovely, because we all want independence, but what does that independence mean? It means a person with a bureaucratic background being appointed by bureaucrats. There is almost no answerability to the public more widely, or even to Parliament. Therefore, I would be suspicious of that.
Following on from what the noble and gallant Lord, Lord Stirrup, said, this is relevant now because the Government have inherited this measure from their officials, but it is not consonant with their own policies. The so-called “Manchesterism” from the Prime Minister is, in a way, a modern and more urban version of the thing we all are praising in relation to the reserves in the counties. It is the idea that local loyalty matters, that local people understand these questions better and that power should be devolved. This measure is going in absolutely the wrong direction.
This matters particularly because this Government are trying to shift all of that. Also, we must not forget the wider picture. We live in a dramatically more dangerous world than we have done for a very long time. The loyalty we are talking about needs to be constantly cultivated. People need to understand why their service matters. This will make it harder for them to understand, at a time when we want them to volunteer.
Lord Swire (Con)
I am glad that the noble Lord, Lord Moore, thinks there is some intellectual coherence in the Government’s approach to regionalisation, given that in the last 24 hours, they have abandoned large swathes of it, including in my part of the world. However, I understand and take on board what he says.
I do not want to make a political point—having just made a political point. I strongly agree with the noble Lord in suspecting that this has the hands of officials all over it. Knowing the Minister as I do, I am not wholly convinced that this has his support. Of course, he will have to support it, as a government proposal, but I think he will get the arguments against it as well as anyone else would.
I am always nervous about any form of military reorganisation when it comes to recruitment. I bow to more distinguished military figures in this Chamber than I was, and it is very dangerous to speak about military experience, given how long ago, in my case, it was. However, I have witnessed over the years—and in the other place was a critic of—the move to change how we recruit our Armed Forces, not least through the use of Capita, which I always thought had disaster written all over it, in capitals. Indeed, that was a view shared at one point by the Public Accounts Committee and the National Audit Office. I am pleased that the Government are transitioning to the Armed Forces recruitment programme, which will come into force next year. We can only hope and pray that it will do us better service than did the Capita project.
But, of course, what we lost during all that was the whole issue of recruiting regiments from their localities, which has been enormously important over the years, not least because it engenders comradeship among those who join together from different parts of the world when they serve abroad. We have seen that throughout history. I agree that to try to centralise everything goes against the Government’s idea of localism. I can quite understand some officials sitting in the MoD on a quiet Friday afternoon thinking, “We must bring all this together. We cannot have all these independent organisations. It is much easier to have one”. But I think it would be a great mistake.
In an article in today’s Telegraph, the Parliamentary Under-Secretary of State for the Armed Forces, Louise Sandher-Jones, talked about the mobilisation of some of the 95,000 retired people who have served in the Armed Forces for an exercise next year. I know they have raised the age at which veterans can be mobilised from 55 to 65—unfortunately, that excludes me by a year or two, although I hope I might have some use somewhere along the line if they are going to do that—but my point is that, if we are talking about a mass mobilisation, it goes back to the debate we had on an earlier clause about how to contact people. We are talking about contacting people who have not been in contact for decades. They live all over the country. What better way of connecting with those people and fostering some sense of purpose and community than by doing it through the existing structure?
The whole way that we do our military, to use rather bad English, is going through a transition, with much more concentration on our Reserve Forces and mobilising them in the case of an emergency. I therefore urge extreme caution to the Government, and to stop tinkering with this at the present time. Of course, the RFCAs are not above criticism—I understand a lot of improvements have already been made—but it is senseless, and the timing is wrong, to follow what the Government are proposing to place in their wake.
Viscount Stansgate (Lab)
I begin by apologising to my noble friend the Minister, for whom I have the highest regard. I fear that what I am about to say may not be the most welcome contribution to this debate. I do not know half as much about this as the many noble and gallant Lords and other Members in the Chamber, but I do want to say this.
Last week, I went to an RAF base for an event—I declare an interest because my son-in-law is the station commander—and I was very struck by the extent to which it celebrated the local connection between the base and the community. There were representatives of local organisations and schools and others there, in addition to the lord-lieutenant, with whom I had a friendly word, and I got a sense of what lies behind the debate we are having today.
All I would say to my noble friend is that it is possible that we might lose something valuable by proceeding with this clause. But I am very grateful and interested to hear what he says in reply to this debate. I have an open mind, but I think that some valid points have been made.
Lord De Mauley (Con)
My Lords, I am chairman of the current Council of the Reserve Forces’ and Cadets’ Associations, and I am extremely grateful to my noble friends for tabling these clause stand part notices. Since the Haldane reforms of the early-20th century, most recently renewed in the Reserve Forces Act 1996, to which my noble friend Lord Minto referred, many of the functions supporting the reserves and cadets have until now been provided by autonomous regional organisations known as the Reserve Forces’ and Cadets’ Associations. Thirteen in number, with a wide membership across the UK, they are made up of former reservists, regulars and cadets—employers, politicians and representatives of universities and local government—all of whom wish actively to support the reserves and cadets from the communities in the regions.
These 13 regional RFCAs are being abolished by the Bill. Each of these RFCAs is run by an executive, overseen by a board, which is elected by the members and, as the noble and gallant Lord, Lord Craig of Radley, said, wholly unremunerated. Each board holds the executive to account for delivering against service level agreements covering estate management, support to cadet units, and carrying out employer and community engagement on behalf of the reserves, cadets and, indeed, defence generally, including running the employer recognition scheme. The unremunerated board is to be done away with by the Bill. The county lords-lieutenant are appointed as the RFCAs’ presidents and vice-presidents. The Bill removes the involvement of the lords-lieutenant.
Lord Faulks (Non-Afl)
I too support this amendment. I took part in the debate initiated by the noble Lord, Lord De Mauley, in January 2020 when it appeared that the then Government were leaning towards adopting the recommendation that now appears from the Sullivan report. All the Back-Bench speakers on that occasion were against that course of action, with the possible exception of the Labour Front Bench, which did not commit itself one way or another. The only speaker who was cautiously in favour was the noble Baroness, Lady Goldie, who is normally a formidable advocate for the Government or any other cause. On this occasion, she acknowledged all the points that were made against the Government’s suggestion but nevertheless advanced some arguments in its favour. I wonder if her heart was really in it.
I look forward to hearing from the noble Lord, Lord Coaker, who we much respect, about the real advantages that will follow from this reorganisation—advantages which are supposed to compensate for the undoubted loss of the various links that have been so eloquently described around the Committee. In particular, I ask him to clarify whether there is any legal requirement to make this change. I suspect his notes will contain words such as “governance”, “accountability”, “assurance”, “transparency” and “public confidence”, but, stripping away the language, I need to be convinced that there is any actual legal requirement for a change of this sort.
I turn to the budget, which I think in the debate in 2020 was said to be £112 million. This is not a trivial sum, but when it is compared with the £333 billion-odd we spend on welfare and social security, it is. Is it felt that there has been some financial failure generally on the part of the organisations, apart from the changes which have been implemented from the Sullivan report? Is it considered better to have paid rather than volunteer participants in the organisation? How much will this increase expenditure? As has been said a number of times, how does this fit in with the devolution agenda? At the moment, although I do not in any way challenge the sincerity of the civil servants who have no doubt advised the Government that the change is for the better, I think the Committee needs persuading that the RFCAs’ unique characteristics are worth sacrificing on the altar of tidying up or centralisation.
Lord Dannatt (CB)
My Lords, I intend to speak to further amendments in this general area later today, and I do not wish to repeat the sensible arguments that noble Lords and noble and gallant Lords have already made as far as this matter is concerned. However, it seems to me that, with this fundamental series of changes, we are taking a pretty large sledgehammer to crack a nut. That nut is the Sullivan report of 2019, which itself has been largely attended to and many of the changes already made—so the sledgehammer is being applied to the wrong nut.
My greatest concern is that if these measures were to be implemented, the local character of our reserve and cadet forces would be changed beyond recognition, and the volunteering ethos on which they currently depend would itself go. Many noble Lords will know that since Covid many of our volunteering organisations have struggled to recruit further volunteers. I believe we would be putting a stake through the heart of our reserve forces and cadets associations, and their local character and volunteering ethos, if these measures were to go through.
Lord Lancaster of Kimbolton (Non-Afl)
My Lords, this is one of those moments when it would be very easy to remain firmly in my seat. I declare my interest as Assistant Chief of the Defence Staff (Reserves and Cadets), and I therefore find myself something of a piggy in the middle of this debate, working as I do for the Government in that role. I have sought advice about speaking in this debate, and I do so strictly in a personal capacity. I am slightly worried about the very binary nature of this debate, and I sense that there are things that could perhaps be done to reassure the House. I should also declare specifically that, if this non-departmental public body is created, I will be the Ministry of Defence representative on that body, albeit ex officio, unpaid and with no voting rights.
None the less, this is not a competition for who can be the greatest advocate for the RFCAs. I am certainly in among them, and they have done tremendous work for many years. We must, as the Sullivan, PAC and NAO reports say, do everything we can to maintain that goodness. It cannot be an attack on them. In many ways, I am frustrated that we are focusing on the organisation right now, at the most crucial time, as Article 3 becomes ever more important than homeland defence. Rather than focusing on what future role the RFCAs can play in the defence of our realm and, through their local links, in generating wider awareness in society as to how much more could be done and the vital role that they can play, we are instead getting ourselves wrapped around our handles slightly through a technical change in their approach.
I do not see this as simply wiping away the regional nature of the RFCAs. There are absolutely technical matters that need to be resolved over representation. I understand the calls for voting rights, which will be discussed later, and indeed whether or not members should be paid, and that can all be discussed in detail. However, I recognise that there are elements in the Bill that pose questions which have yet to be answered.
As piggy in the middle and, I hope, someone who can draw the House together, I fully recognise the need now to implement the SDR recommendations to increase the size of the reserves by 20% when financial conditions allow. When it comes to cadets, a key element that our RFCAs deliver but which none the less has not really been mentioned much in this debate is the vital role of continuing to expand the cadets. These are all things that I see RFCAs doing and continuing to be enabled to do in future at a regional level. However, we have to recognise that in successive reports there have been criticisms over governance, recommendations for legal change and challenges about the relationship between those two—criticisms as much of the Ministry of Defence as of the RFCAs, let us be clear about that—particularly when it comes to financial matters.
I think there is a strong argument, but what I have not heard in this debate is what the proposed suggestions are—if we do not go down the NDPB route—for strengthening that financial relationship. It is public money, at the end of the day. What are the suggestions for changing the legal relationship between the MoD and RFCAs? I have not heard alternative suggestions, but perhaps we can explore that in the future.
Baroness Smith of Newnham (LD)
My Lords, I thought I was going to rise from these Benches and be able to say, “I agree with all the noble and noble and gallant Lords who have spoken so far in this debate”, because there appeared to be uniformity across the Committee. We are used to that on defence matters. Last week, on the first day in Committee, there were discussions outside the Chamber, where some of the doorkeepers were saying, “We might have to get taxis this evening”, and I said, “Are you sure we’re not going to finish by 10 pm?” They looked at me and said, “Really? Do you think so?” But, of course, with something like military precision, we finished all our groups by 9.55 pm, and people kept saying afterwards, “Of course, it was military precision. What else did you expect?”
However, it was not military precision that meant that we dealt with business expeditiously on day one in Committee. It was that, by and large, the proposals and amendments that we were debating were areas where we were probing. Broadly, we were supportive of what His Majesty’s Government were proposing. As so often on defence matters, His Majesty’s Official Opposition, the Liberal Democrat Benches and the Cross Benches were supportive of what the Government were trying to do, but this evening we have stand part debates, on Clause 38 and Schedule 6, where the House is virtually united in suggesting that the Government really need to think again.
If I were speaking from the Back Benches, I would simply ask the Government: why? Why is Clause 38 needed? But as I am speaking from the Front Bench, I feel it appropriate to outline that, on these Benches, we very much share the concerns raised, particularly about losing the local connection. I have heard mutterings from behind me saying, “I agree with Lord de Mauley”, and concerns have certainly been raised across the Chamber. In particular, early on in the debate, the noble and gallant Lord, Lord Craig of Radley, rightly pointed out the importance of the reserves but also the local connection. There is the fact that the PAC had acknowledged that reserves and cadets are increasingly important for the defence of our realm, and that the SDR also highlighted this.
The noble Lord, Lord Lancaster, was really the only dissenting voice, and even he said he wanted to be a bridge. I think he was speaking as a non-affiliated Peer, but apparently from the Conservative Benches, so I am not quite sure. He is the only noble Lord so far who has suggested that Clause 38 may be the right way forward. But he reminded the House that the SDR talked about wanting to increase the number of reserves by 20%—when resources allow, in brackets.
Surely we should not wait until resources allow; we should work with the structures that we have, through the reserve forces and cadets associations, and think of ways to ensure that we strengthen and enhance local connection and local resilience. As a country, we have not yet engaged in the national conversation that the SDR said we needed. How better to do that than to work with local people and local Reserve Forces, and particularly the cadets? The noble Lord, Lord Lancaster, rightly pointed out that we have not said much about the cadets. Surely that is an area where we need to think about strengthening—again, strengthening the local connection—and ensuring that we have a pipeline to recruitment, as well as resilience and a sense that we are beginning the national conversation.
I will conclude with a statement from Portsmouth City Council—not my local area; unlike the noble Baroness, Lady Fraser, I have not talked about my area, partly because, as a Liverpudlian, I feel that the north-west is getting quite a lot of coverage thanks to the new Prime Minister. Portsmouth City Council, in line with its geographical position and the extent of its naval commitments, has a very strong commitment to the Armed Forces covenant and the South East Reserves Forces’ and Cadets’ Association, and it made an official contribution to the call for evidence in Committee in the other place. In particular, the council reminded us—as some noble Lords have done today—that this is not just about the individual RFCAs but about working with local employers. If we accept Clause 38, there is a real danger that we lose not just the history, which is important, but significant aspects of current practice that work well and that could and should be enhanced.
Lord Coaker (Lab)
My Lords, it is a great privilege and pleasure to make the case for Clause 38 in your Lordships’ Committee.
I want to clarify something for the noble Earl, Lord Minto: the service of notice for callout will be by both post and email. I meant that by my previous remark, but I realise I did not make it clear, for which I apologise to the noble Earl and the Committee—I thought I had said it, but clearly I did not; I found out through a variety of means that I had not done so.
I will start by saying something else. Lots of people have made a lot of important points. As everybody in this Committee knows, I will consider them and how we take them forward. I cannot walk on water on these things and persuade everybody that I can do everything, but I hope your Lordships know that I will try to do as much as I can to take account of the various important points that have been made. I say to the noble Lord, Lord Faulks, that it is not a legal requirement; it is the recommendation of various reports that the Government seek to implement.
As your Lordships know, I like to make some informal remarks before I make formal remarks. Before I make the formal remarks, let me say for the sake of clarity that nobody in this Committee doubts the importance of the reserves, the cadets and the organisation, and the work of the lord-lieutenants and charities involved. Many of your Lordships do far more than even I do as a Minister to support those local organisations —the noble Lord, Lord De Mauley, is one of the best examples. Nobody seeks to undermine that or do anything that would somehow not ensure that it could carry on.
I was with the noble Lord, Lord Elliott—he was in his place a moment ago—in Enniskillen just on Saturday. The RAF show there that I went to support, with the reserves, the lord-lieutenants and the cadets, was phenomenal. It was absolutely phenomenal to see the work going on there. Nobody seeks to undermine or hinder that. This Saturday coming, I am going to Grantham for the reserves passout that is taking place there, because of its significance and importance. It does not matter whether it is the reserves; it does not matter whether it is the cadets. Ministerially, the noble Baroness, Lady Goldie, the noble Earl, Lord Minto, and the noble Baroness, Lady Smith, no doubt; the noble and gallant Lords, Lord Stirrup and Lord Craig, through their long and distinguished careers, the noble Lord, Lord Dannatt, through his, and many others—all of us have committed ourselves to pursue that purpose which is crucial to our nation. Whether it is Scotland, Wales, Northern Ireland or the regions of England, it is crucial and fundamental to us that we do that. Each of the three reports which I will mention emphasise that. However, alongside that—the noble Lord, Lord De Mauley, is right, and I will reference it, that the PAC did say either/or—each of those reports said the current framework needs to be revised and looked at.
My view of this is that the national body creates strategic oversight for a structure that would allow the regional councils to be stronger and more purposeful in what they are doing, with the financial oversight and clarity that a strategic body would give them. That is how devolution works. You do not just let the mayors of the country do exactly what they want. A national strategic framework policy is set which allows those local bodies and local government to function—and to function effectively. That is what this seeks to do.
Again, before I make the formal remarks, let me reference what is on the face of the Bill. Yes, it is the establishment of the new body, the new RFCA, but also—I have to put my glasses on; it slows the rhetoric—on page 136, and then on to page 137, the Bill puts into primary legislation regional councils and how those are set up. It states—I will just say this for the noble Baroness, Lady Fraser:
“The RFCA must establish a committee for each area of the United Kingdom as may be specified in regulations”.
That would include Scotland, Wales and all those things. That is laid out there. It then goes on to the various regulations that can be made. We will deal with the various amendments about membership, about whether people are paid or unpaid, and other matters, but all those things will be dealt with in regulations. I realise that the debate then becomes about whether it should be primary or secondary legislation, but it is on the face of the Bill that they will be dealt with by regulations. I will make my formal remarks. Those regulations are in draft form at the moment. I will share those draft regulations with Members of the Committee before Report. Noble Lords can look at them and decide whether they answer some of the points that they would make, so that we will not have a situation, which sometimes happens with Governments, where draft regulations are just presented and you either vote for them or not, without any ability for people to properly scrutinise them and agree them or not.
Baroness Fraser of Craigmaddie (Con)
Were the devolved nations assured of a seat on the national board?
Lord Coaker (Lab)
Again, those are the sorts of things that will be sorted out in the regulations to which I referred. It is laid out in primary legislation that we will be able to ensure that the regions and nations of the country are represented and have the various functions the noble Baroness would want.
The Earl of Minto (Con)
My Lords, I am most grateful to the Minister—who, as we all know, has huge respect across this House—for his reply, with his customary passion and belief in the position he takes, and to all noble Lords from all sides of the Committee, even the non-affiliated ones, who have so strongly contributed, with great consideration. There are clearly very strongly held views, contained within a lot of understanding, whether from noble and gallant Lords or people with relationships with the forces, the cadets and the reservists, either directly or through family ties. It just goes to show how important this is and how it is absolutely right and proper that we have a clear understanding of exactly what is being proposed here.
I fear I remain unpersuaded—I am sure the Minister will not be surprised. He told us, in effect, that the new body will be designed to preserve the spirit of the membership and the voluntary ethos. I do not deny that, but it is a question of how that will be carried out. I do not doubt the sincerity of the Government’s intention; what I doubt is that this spirit can survive the destruction of the structure that has, for over a century, created the conditions in which that spirit has been developed and flourished. There is no doubt that it has flourished, as anybody who has been to a county show or has seen recruiters out and about will know. The Minister has not told us how that ethos is to be guaranteed, rather than merely hoped for; nor, with respect, have the Government yet told this Committee what specific operational improvements to the cadet and Reserve Forces this reorganisation will deliver.
The Government seem to be more concerned with consistency and ensuring a clearer statutory footing. This is all bureaucratic language emanating from Whitehall and does not really reflect the wishes of those who are involved in these organisations. I remain of the view—I think that the tone in the Committee will probably support this view in the main—that I set out at the beginning of the group. This change serves the convenience of the centre rather more than it serves the volunteers, the cadets or the communities that the RFCAs have bound to our Armed Forces since before the first county associations were formed. I do not think that it is sufficient reason to abolish 13 historic, voluntary, county-based bodies and the links to the lieutenancy that they carry.
That is why I, along with my noble friend Lord De Mauley, oppose this reform. It is a solution in search of a problem. It is an attempt to fix something that is not broken and it destroys the very features of the voluntary spirit, the county identity and the link to the lieutenancy and the Crown that make the Reserve Forces and Cadets Associations the valuable and universally respected organisations that they are. However, we are in Committee and I have made my point. I will reflect carefully on what the Minister has said, but I give notice that, absent a considerably fuller response from the Government on the questions that I have put, I intend to return to the matter on Report and, if necessary, to test the opinion of the House. For now, however, I beg leave to withdraw my opposition to the Question that Clause 38 stand part of the Bill.
Lord Harlech
“Employer policies on the employment of members of the reserve forces(1) An employer to which this section applies must prepare, maintain and publish a policy on the employment of members of the reserve forces.(2) The policy must make provision about—(a) time off for reserve forces training, including any entitlement under section 50A of the Employment Rights Act 1996;(b) the treatment of a period of permanent service under a call-out order or a recall order for the purposes of pay, pension, seniority and continuity of employment;(c) reinstatement under the Reserve Forces (Safeguard of Employment) Act 1985;(d) the post responsible for the operation of the policy;(e) how an employee may make a request, or raise a complaint, under it.(3) The employer must make the policy accessible to every employee and, where it maintains a website, publish it there.(4) The employer must review the policy at least once every three years.(5) This section applies to an employer that employed, on average, 50 or more persons in the United Kingdom during the preceding financial year.(6) The Secretary of State must issue guidance for the purposes of this section, which must include a model policy, and the employer must have regard to it.(7) The Secretary of State must, each calendar year, lay before Parliament a report on compliance with this section.(8) A failure to comply with this section does not give rise to any liability in civil proceedings.(9) In this section “member of the reserve forces” has the meaning given by section 1 of RFA 1996.”Member's explanatory statement
This new clause would require employers with 50 or more employees to publish and maintain a policy on the employment of reservists. It carries no sanction and no civil liability. It puts on a statutory basis an existing requirement of Silver and Gold employers under the Defence Employer Recognition Scheme.
Lord Harlech (Con)
My Lords, it is a new day in Committee, so I declare my interest as a serving officer in the Army Reserve once again. In moving Amendment 40, I shall also speak to Amendments 41, 45, 69 and 70. I am grateful to my noble friends Lady Penn and Lord De Mauley for adding their names in support of my amendments. Let me also preface my amendments by reiterating my intent behind all of them, as I did on the first day in Committee. They are all aimed at improving the lived experience of reservists in order to boost recruiting and retention and therefore to enhance the operational effectiveness of the Armed Forces.
I begin by welcoming the Government’s Amendment 38, which allows call-out notices to be served by email. It is sensible and I support it. But it also illustrates the point behind this group. We are getting steadily better at calling reservists up, but we have said almost nothing about the civilian conditions that determine whether they are still serving and able to be serving reservists when we call. I think that there is common ground across your Lordships’ House on that objective. The noble Baroness, Lady Smith of Newnham, has amendments for consideration later today that approach the same problem from a different direction.
The Select Committee on this Bill in the other place put the point plainly. It welcomed the changes to recall liability and then noted that the measures focus on the strategic reserve and do not in themselves achieve the strategic defence review’s ambition, which in my humble opinion is too modest anyway, of an increase of 20% to make a larger active reserve. That growth will be produced by the conditions in which people serve—and those conditions are set at the reservist’s desk on a Monday morning rather than in the drill hall.
Amendment 40 would therefore require employers with 50 or more employees to publish and maintain a policy of employment of reservists. There is no sanction. There is no civil liability. The Secretary of State supplies a model policy and, under Amendment 69, this would not commence for 12 months. This is already the required standard of silver and gold employers under the defence employer recognition scheme. The difficulty with a voluntary scheme is that it reaches the converted. The employers who need a policy have never heard of it. There are roughly 38,000 medium-sized businesses in this country and that is where a great many reservists work but where there is no human resources function to absorb the question when it arises.
A reservist in a firm with no policy negotiates from nothing. Every request for time away is a personal favour rather than an entitlement, granted or refused according to the temperament of whoever is in the chair—and when that person moves on, the answer changes. A written policy would end the line manager lottery. Subsection (2)(b) requires the policy to address what happens to pay, pension, seniority and continuity of employment during mobilisation. Most reservists have no idea what happens to any of those things, because nobody has ever written it down. That is a remarkable thing to discover at the point of deployment.
My main effort is Amendment 41, which is at the heart of this group. Most reservists fund their own training out of their annual leave. They spend their holiday entitlement on annual camp and have to spread the remainder among family commitments, personal holiday and the incidentals that real life throws in their path. That is the position we are in today and I do not think that it is defensible. This amendment would give 10 working days of unpaid leave a year for annual continuous training or for promotion courses. It would become applicable only after the employee had completed 26 weeks with the civilian employer. It requires 28 days’ written notice and a certificate from the commanding officer. It excludes employers with fewer than 10 employees, it confers no right to be paid and it counts against any contractual entitlement that the employer already offers.
Section 50 of the Employment Rights Act 1996 already gives unpaid time off for public duties to magistrates, to local councillors, to school governors and to members of health bodies. Parliament has decided that sitting on a planning committee merits protected time off, but it has not yet decided that training for the defence of the realm does. I think that that is a very difficult proposition to explain to a reserve soldier. Ten days is already the gold standard under the defence employer recognition scheme, and the Civil Service has offered paid leave of this kind for well over a decade. It is a fair question why what the Government expect of themselves as an employer is too much to expect of anybody else.
Let us look at our Five Eyes counterparts. Australia’s Defence Reserve Service (Protection) Act 2001 requires employers to release reservists for training—not just for mobilisation, but for training. Our own 1985 Act protects mobilisation only. The current gap is legislative, not cultural. Let me anticipate the objections, including those on my own Front Bench. The first is that this is a burden on employers. It is unpaid, it is capped at 10 days, it requires four weeks’ notice, it excludes the smallest firms and, under Amendment 70, it would not commence for a year. If that is an unacceptable burden, we should be honest and say that we are not really serious about the whole force.
The second objection is that an absolute right is too rigid and employers must be able to refuse. A refusable right is precisely the position that reservists have now and it is exactly why they use annual leave instead. The notice period and the annual cap are what protect the employer, and they are real protections. The third objection is that this is a day one right. It is not. It arises only after the reservist has completed 26 weeks of employment with the civilian employer—the same qualifying period that this House insisted on for unfair dismissal.
Let me turn to something that has happened since these amendments were tabled. Last Friday, the BBC and the Times reported that the Army has been instructed to halt non-essential training exercises and that collective training for United Kingdom-based units has been suspended for most of this year on budgetary grounds. The Army has not denied it. It says that it is prioritising the activity that contributes most directly to readiness. I understand why it would say that, but this bears directly on the amendments before your Lordships.
A reservist books their annual continuous training months ahead, clears it with their employer and, very often, pays for it out of their own annual leave. If the exercise is then cancelled, they do not get that leave back, and the employer who has released them draws their own conclusions about how seriously the department takes its own training. Every cancellation of that kind spends employer good will that took years to accumulate.
I therefore ask the Minister three things. First, will reserve collective training and the annual continuous training period fall within the scope of the current pause? Secondly, what has been cancelled or curtailed for the reserves so far this financial year? Thirdly, £4.7 billion of the £15 billion in the defence investment plan remains to be confirmed at the Budget on 28 October. I would be grateful if the Minister could say whether reserve pay and training will be protected within that settlement, as well as undertaking to write to members of the Committee once the position is known. I put that in support of these amendments, rather than against the Government. If money is tight, the measures that cost the Exchequer nothing become more, not less, important; everything in this group is of that kind.
Amendment 45 is the mechanism that makes Amendment 40 matter. It would require the national procurement policy statement to address how contracting authorities take account of a supplier’s arrangements for employing reservists. These authorities must already have regard to that statement under the Procurement Act 2023, so this would create no new machinery and no new liability. There is one fact here that the Committee ought to have: the current statement disapplies the social value priority for the Ministry of Defence in relation to defence and security contracts. So the one department whose suppliers most obviously employ reservists is the department least required to weight it; I would be grateful if the Minister could explain how that came about.
Amendments 69 and 70 are consequential. They would provide the 12-month commencement period for the two duties.
The Bill asks reservists to be available later in life, at shorter notice and on lower thresholds. Attendance at annual continuous training is the single biggest determinant of a reserve unit’s readiness. Promotion courses generate the non-commissioned officers, without whom mobilisation at scale is not possible, whatever powers the Bill confers. These are modest amendments and would cost the Exchequer nothing. I beg to move.
Lord Swire (Con)
My Lords, before we move on—because I suspect that this is not going to detain us too long—I would like to tease out from the Government Front Bench a couple of things.
As I said in my earlier remarks, we are going through something of a sea-change, rather too late in the day, in how we look at our reserves, our responsiveness and our state of alert in this country. In that respect, we understand that it is easier for larger companies to let people go for training because they have more people, but it is the smaller companies on which we should spend a little bit more time in thinking how we can better assist them. With that in mind, in both cases—those of larger and smaller companies—what are we doing to promote the idea that it is a good thing for them to release their employees to take part in some activities involving the military? Are we actively doing that?
Secondly, on people being released from other duties, it suddenly struck me that it seems rather ridiculous that people in the reserves are not exempt from jury service; I think I am right in that. This means that, particularly if you are a small employer, you might have to let somebody go for not only their reserve training but jury service. That takes a huge whack out of somebody’s time. However we monitor these things, it is almost impossible to ensure that, ultimately, people are not being penalised in their careers for taking time off. I would like to know what the Government are doing to monitor this on an ongoing basis in order to make sure that people who are actively involved in the reserves are not being penalised further down the line.
There seems to be something of a disconnect in our thinking here. On the one hand, as I said earlier, there is talk of mobilising many more veterans—something like 69,000—in an exercise next year, just at the same time as we are telling our Reserve Forces that they cannot have money for training and equipment. What is the Government’s thinking on that? If we are going to mobilise these people, is it going to be a paper exercise or are we actually going to invite them to turn up? Are they going to be given equipment? What is the current thinking here—or is it just a catchy headline?
We have debated the whole issue of preparedness in this country and will continue to do so going forward, for obvious reasons—of that I am absolutely sure. The noble Lord, Lord Harlech, mentioned a number of issues, with which I concur. I am broadly supportive of many of the amendments that he has tabled and which we are debating this afternoon, some of which are probably probing. He talked about Australia and the difference in its approach to these matters, as compared to ours. We have lessons to learn from Australia, but why do we not also take into account what they have been doing so successfully in Switzerland for decades now, whereby almost anyone of working age and beyond is required to do service in the reserves at weekends? It is a very bonding exercise. You can be somebody’s boss in the week and that person can be your radio operator at the weekend. It engenders in a country a sense of purpose, unity and preparedness, which is what this must all be about.
Lord Empey (UUP)
My Lords, I will make just a brief point. The noble Lord, Lord Harlech, mentioned the training issues. I have raised these with the Minister and will come back to them.
In dealing with the employment issues, we have discussed people being released, but, having had the responsibility for fair employment matters, what about somebody being employed if an employer happens to know that that person is a reservist? The employer could say, “I don’t want to employ that man or woman because they will be a nuisance to me and I will have to let them go on release”; that would be one step before you get to the point of being an actual employee. The question is: is a person to be discriminated against on the basis of being a reservist by a future employer who happens to know that that person is a reservist, whether their picture appears in the local paper, through word of mouth or whatever? There is an issue there to be addressed.
Baroness Fraser of Craigmaddie (Con)
My Lords, to address the point made by the noble Lord, Lord Empey, we are going to come on to the issue of protections for employees in the next group.
At the moment, I wish to speak in support of my noble friend Lord Harlech on the need to have certainty for employers. I declare my interest as an employer in a small charity, Cerebral Palsy Scotland, and as the mother of a serving reservist. She is about to go on her captain’s course—tomorrow, I think—so she has been negotiating time off with her employer.
To me, this group of amendments goes to the heart of something that bothers me every time we talk about reservists and employers. The MoD always seems to look at this from its point of view. We get things such as the defence employer recognition scheme, demonstrating to us, “Look at all of these wonderful companies that have signed up”. That is fine if you are a silver or a gold large company, but there are not enough of them. The question asked by my noble friend Lord Swire about what we are doing to highlight the benefits of employing reservists to employers was well made; it is something that we do not do well enough.
Baroness Fraser of Craigmaddie (Con)
Yes, and the self-employed. That is because they do not have to ask for time off or negotiate with their bosses for training days. I would argue that not only does such uncertainty put people off being in and remaining in the reserves but it leads to the number of service days that active reservists can commit to. I was just trying to look it up, but I think I am right in saying that the number of service days that active reservists have served has decreased year on year. I think that measures such as this would improve that. Anything we can do to support employers to support our reservists would get my vote.
Lord De Mauley (Con)
My Lords, I support my noble friend Lord Harlech’s Amendments 40, 41 and 45, to which I have put my name.
In an era when the Secretary-General of NATO tells us that we could be at war within three to five years, while I hesitate to make life more difficult for employers, I think we have little option but to require those things which the amendments demand of them. This goes to the point made by my noble friends Lord Swire and Lady Fraser that we need to do better by employers too. As a quid pro quo, we should arrange matters so that reservist training adds more value in the civilian workplace, so that the time employers allow reservists for military training is used more efficiently.
Defence qualifications which produce skills that are significantly useful in the civilian workplace often have limited civilian recognition because no thought has been given to matching acquired skills to recognised civilian standards. Similarly, relevant civilian qualifications frequently do not transfer into the defence system, purely because no thought has been given to it, so time is wasted teaching people material they already know.
Too often, the Army assumes a baseline level of zero knowledge rather than assessing existing competence. Qualified civilian paramedics who become reservists with the intention of becoming combat medical technicians are required to complete entry-level medical technician training, which they have already done in their civilian workplaces, rather than focusing on the military application of the skills they already possess. A more intelligent approach that is pragmatic and less risk-averse is required.
Employers also need to know that reservists’ time is used well, yet the brutal truth is that a lot of training is done in a way that wastes time. Mandatory annual training consumes a disproportionate amount of the limited time available. For example, fire safety, manual handling, data protection, and similar packages are repeated every year, regardless of experience or previous completion. Rather than asking how reservists can fit into systems designed for the Regular Army, we should ask how these systems can be redesigned to maximise the value generated within the limited time that reservists—and their employers—are able to give.
Courses across the board are often shaped to fill a fortnight, rather than designed pragmatically around the time actually required to achieve competence, wasting significant amounts of the time reservists commit and creating an impression of pointless bureaucracy. This approach values conformity over efficiency. It is not helped by the fact that the system seems reluctant to open some training facilities out of hours, and to ask regular training staff to work late and at weekends, which is time reservists really need to be used to be more efficient.
Reserve training doctrine usually mirrors that of the Regular Army, with an expectation that trade training should encompass everything required to operate a capability before an individual is considered employable. Is this the right approach for the reserves? In many professions, individuals are taught the minimum required to operate safely before building competence and experience on the job. I am convinced that if employers considered that the time reservists gave up for military training was well used, and that much of the training and military experience was valuable in the workplace, they would be more comfortable employing reservists. At the same time, it would make being a reservist vastly more satisfying.
Baroness Smith of Newnham (LD)
My Lords, the amendments in the names of the noble Lords, Lord Harlech and Lord De Mauley, and the noble Baroness, Lady Penn, bring together a range of important issues. Clearly, we need to think about the impact on employers of reserves going on their training.
At Second Reading, the noble Baroness, Lady Dacres of Lewisham—who, sadly, cannot participate in Committee because she is now a Government Whip—spoke compellingly about the importance of reservists’ contribution in local government. She had seen the benefits of working with reservists and how that could contribute back into the workplace.
To pick up on the point made by the noble Lord, Lord De Mauley, there are ways in which we ought to be able to find synergies where the Armed Forces should look much more carefully at what skills the reserves are bringing to them, not simply having ticked off 10 days of repeat training. Perhaps there should be a day of repeat training and then working with the skills. Equally, there is a need to explain to employers the value of the training, because small and medium-sized enterprises might not be aware of the benefits that can accrue from employing reservists.
As the noble Baroness, Lady Fraser, said, the point made by the noble Lord, Lord Empey, will be raised in the next group. These amendments would appear to be desirable, certainly from the perspective of those in the reserves—I hope, for both recruitment and retention —but also potentially beneficial to employers, for exactly the reasons the noble Baroness, Lady Fraser, gave; that is, it is not simply a question of saying, “Please give us your time”, but one of giving clarity about the expectations. We almost need a template of what is required so that a small employer would be able to work out very quickly what was needed and individual reserves would not have to reinvent the wheel every time.
From these Benches, we support the amendments and hope that His Majesty’s Government might at least be able to listen. If they cannot accept the amendments as drafted, perhaps they might find a way of bringing amendments in lieu that would deal with some of these questions.
The Earl of Minto (Con)
My Lords, I shall also speak to Amendments 40, 41 and 45, tabled in the name of my noble friends Lord Harlech, Lord De Mauley and Lady Penn. My noble friend Lord Harlech has long been a doughty and most effective champion of our Reserve Forces. These Benches share his conviction that the reserves are indispensable to our national defence and deserve every reasonable support we can muster.
However, I am afraid that I must express some reservations about the amendments in this group and in the next. This is a genuine and very difficult balancing act. On the one side sits our duty to reservists and to employers, who already, at times, go beyond the call in supporting them. On the other sits our duty to the small and medium-sized businesses that make up the overwhelming majority of Britain’s employers and that are, right now, facing a cumulative weight of obligation that these amendments risk compounding rather than ameliorating.
Some 5.5 million businesses operate in this country, over 99% of which are small or medium-sized enterprises. Firms of the kind caught by the 50-employee threshold —or the 10-employee threshold in Amendment 41—are frequently the very smallest operations; they might be a family firm, a local manufacturer or a handful of tradesmen incorporated together. For a business of 10 employees, losing one member of staff for 10 working days a year for training could produce real strain on its workforce, potentially pushing back deadlines and damaging its ability to compete for contracts against larger rivals that can afford such absences more easily. It could also—this is quite dangerous—influence the willingness of employees and fellow workers to be generous with their attitude towards service. That is very important.
This cannot be considered in isolation from the wider climate in which small businesses currently operate. Businesses have had to suffer two years of this Government that have made their lives considerably harder, with the increases in employer national insurance contributions and the national living wage under the Employment Rights Act. That is the context in which we judge these amendments. We are not saying that reservists do not deserve support—indeed, quite the opposite—but we believe that the existing defence employer recognition scheme, built on voluntary best practice among gold and silver employers, achieves much of what these clauses seek without imposing statutory duties that might deter smaller firms from hiring reservists at all, the very outcome we all wish to avoid. I hope my noble friend will reflect on these concerns in the spirit in which they are offered, and I look forward to continuing this conversation as the Bill progresses.
Lord Coaker (Lab)
My Lords, I thank everyone who has contributed to the debate. I should have declared an interest at the beginning: my son-in-law is currently mobilised as an active reservist. I apologise; I should have made that statement before.
The noble Lord, Lord Harlech, and I have had a number of conversations, both inside and outside the Chamber. I thank him for bringing forward the amendments. I will write to him on the three questions he asked. For clarity, I will copy that to everyone who is currently in the Chamber and place a copy in the Library. I hope that is satisfactory for the noble Lord.
The noble Lord will know that the Armed Forces are not exempt from jury service. If a reservist is mobilised, they can apply for a deferral in the normal way.
We can all agree that the Reserve Forces are critical to defence, and every day reservists balance civilian careers, family commitments and military service, giving their time to train and remain ready to serve when called on. In answer to the noble Baroness, Lady Smith, I will of course consider all her various points; I always do that. I cannot answer them now to the satisfaction that everybody would wish, but I will consider them.
The noble Earl, Lord Minto, made an important point: all the way through, there is a balancing act between trying to recognise the important demands that employers of all sizes have on their businesses and, at the same time, doing all we can to promote the reserves and reservists. We have to ensure that we meet both those demands and find a way that balances all that. I agree with the noble Earl. That is not in opposition to what the noble Lord, Lord Harlech, has set out in his Amendments 40 and 41; rather, we have to ask what the correct balance is.
Defence relies on the commitment of our reservists. Their skills, experience and willingness to step forward in the service of the nation make them an indispensable part of our Armed Forces. We are deeply grateful for their dedication and for the support of their employers. The noble Lord, Lord Swire, recognised that in his comments. Of course we need to try to encourage more people to become reservists—and we will do that. I am not sure about the Swiss example; I am not an expert on Switzerland but it gets near to requiring people to do certain things. As the noble Lord will know, this Government and previous Governments have always taken the view that our reservists go through a voluntary route. We seek to encourage people to participate and to act in the service of their nation voluntarily. That is the right approach for us to continue with.
Lord Harlech (Con)
My Lords, let me start with the good. I am grateful for the support of my noble friends. My noble friends Lord Swire, Lord De Mauley and Lady Fraser all made very strong points. I am a bit disappointed by the rather gloomy view of my Front Bench of what reserve service offers to an employer. I will have to pick up this discussion outside the Chamber and try to persuade my noble friends otherwise. I cannot understand why the Government are not going for it. I am trying to generate mass for the reserve and to give them this.
I leave the Committee with this—of course, I will give way.
Lord Lancaster of Kimbolton (Non-Afl)
Since my noble friend is a bit gloomy, I would like to cheer him up slightly. The answer to the question, “What does the reserve service give to employers?” is, “Actually, quite a lot”. To answer the question asked by the noble Lord, Lord De Mauley, one of the things that defence is doing in a common skills framework is trying to ensure that, for the skills you learn in defence, both civilian qualifications will be recognised and the skills you get in defence can be transferred to civilian qualifications. Rather than having two parallel systems, there is an equal recognition so that there is mutual benefit for both employers and defence when it comes to training.
Lord Harlech (Con)
I am grateful to my noble friend for that intervention and for setting out this equivalence of the defence skills passport, which is much needed and long overdue and will be incredibly helpful. We must get better at explaining to employers the value of employing reservists and why it is good that they go to train. They will maybe go to do a course in leadership and management. They will come back upskilled, happy and motivated, and they will spread their good will and new skills throughout the rest of the civilian employer.
I just leave the Committee with this: how can it be that our Five Eyes counterparts do what I am suggesting and more—much more in some cases—and we do not? Do we think that that is the right or wrong way around? It is to be continued. With that, I beg leave to withdraw—for now.
Lord Harlech
“Refusal of employment on grounds of membership of the reserve forces(1) It is unlawful to refuse a person employment because that person is, has been, or proposes to become a member of the reserve forces, or is or may become liable to be called out or recalled for service.(2) A person is refused employment if the prospective employer—(a) refuses or deliberately omits to entertain or process an application or enquiry,(b) causes the person to withdraw or cease to pursue an application,(c) refuses or deliberately omits to offer employment,(d) makes an offer on terms which no reasonable employer wishing to fill the post would offer, and which is not accepted, or(e) withdraws an offer, or causes the person not to accept it.(3) It is unlawful for an employment agency to refuse a person any of its services for a reason falling within subsection (1).(4) A person refused employment or services in contravention of this section may complain to an employment tribunal within six months of the conduct complained of, or within such further period as the tribunal considers reasonable where it was not reasonably practicable to complain in time. (5) Where the tribunal finds the complaint well founded it must make a declaration to that effect, and may award compensation, including compensation for injury to feelings, of such amount as it considers just and equitable, and may recommend action to obviate or reduce the adverse effect of the conduct complained of.(6) Where the complainant proves facts from which the tribunal could conclude, in the absence of any other explanation, that this section was contravened, the tribunal must uphold the complaint unless the respondent shows that the conduct was in no sense whatsoever on a ground falling within subsection (1).(7) In this section “member of the reserve forces” has the meaning given by section 1 of RFA 1996 and “employment agency” has the meaning given by section 13(2) of the Employment Agencies Act 1973.”Member’s explanatory statement
This new clause would make it unlawful to refuse a person employment because they are, or may become, a reservist, with a remedy in the employment tribunal. Existing protection is confined to dismissal, so a job applicant has none. The clause follows the model used for trade union membership in Part III of the Trade Union and Labour Relations (Consolidation) Act 1992.
Lord Harlech (Con)
My Lords, we have already started to discuss some of the themes here; the noble Lord, Lord Empey, raised some of them. On Amendments 42 to 44, I am grateful to my noble friends Lady Penn and Lord De Mauley for their support. The group addresses what I believe is the largest single gap in the law protecting reservists.
We protect the reservist who is already in the job, and almost nobody else. Section 17 of the Reserve Forces (Safeguard of Employment) Act 1985 makes it a criminal offence to dismiss a reservist because of call-out liability. Section 48 of the Defence Reform Act 2014 removes the qualifying period for unfair dismissal where the reason is connected with reserve membership. Both are about dismissal. Neither touches a candidate sitting an interview. I add that where an employer is convicted under Section 17, compensation is capped by Section 18 at five weeks’ pay. That is the entire financial consequence of criminally dismissing a reservist.
Amendment 42 would make it unlawful to refuse a person employment because they have been or may become a reservist, with a remedy in the employment tribunal. Our closest ally covers this expressly. American law protects applicants as well as employees and reaches past, current and future military obligations. This House has already accepted the principle at home: Part III of the Trade Union and Labour Relations (Consolidation) Act 1992 makes it unlawful to refuse a person employment on the grounds of trade union membership. It is difficult to explain to a reservist why union membership merits statutory protection at the point of hiring and service to the Crown does not.
This matters because of what it causes. The reason reservists conceal their service from employers is the belief—frequently, a correct belief—that declaring it will cost them the job. That belief is entirely rational, because there is no remedy if they are right. The consequence is that the whole architecture of employer support rests on people hiding the very thing it exists to support. That is not a stable foundation for the whole force, and it is not a recruiting proposition either.
I expect to be told that there is no evidence of a problem. The absence of evidence is a function of the absence of a remedy. Nobody records a refusal that they have no means of challenging. I also expect to be told that subsection (6) of the proposed new clause, on the shifting burden of proof, is too onerous, but it is the standard provision used throughout discrimination law and well understood by tribunals, and it is narrower than the American test. Without it, the clause would be decorative, because no employer writes down that they declined a candidate over their reserve service.
Amendment 43 deals with what happens afterwards. Between the 1985 Act and unfair dismissal lies everything that actually occurs in practice: being passed over for promotion, taken off the client list, given the shift pattern which clashes with drill nights, or quietly moved sideways after a mobilisation. The employer who does not want reservists does not dismiss them. Dismissal is legally risky and commercially untidy. They simply make staying unattractive, and, at present, that is entirely lawful. American protection reaches promotion, retention and any benefit of employment. Ours reaches nothing until the individual is sacked.
This is settled machinery. It mirrors the detriment provisions already in Part V of the Employment Rights Act, which protects whistleblowers, health and safety representatives, and pension trustees. It falls hardest on those the reserve can least replace: the medical, legal, cyber and engineering specialists that the Regular Forces cannot recruit and could not afford to grow.
Amendment 44 concerns the reservists nobody has legislated for at all. A substantial proportion are self-employed, run small businesses or are partners in professional firms, and not one of the protections in the Bill or in existing law reaches them. For that person, the cost of annual camp is not leave; it is a fortnight of lost revenue with the overheads still running. Australia’s protections expressly reach partnerships, and its employer support payment scheme covers the self-employed. Canada operates something comparable. We pay the reservists a daily rate and give the employer a certificate. Again, to my own Front Bench, I suggest that this is very pro self-employed businesses and business owners.
Subsection (3) of the proposed new clause is deliberately a duty to review and not a spending power, so it creates no charge on public funds. I ask the Government to examine the question and report, not yet to fund the scheme. If the answer is that we cannot afford what Australia and Canada do, this House is entitled to be told the figure.
I recognise that these are not government amendments and that the Minister may have concerns about the drafting. If the principle is accepted, I am entirely content for the drafting to be the Government’s, and I would welcome a conversation with him and with colleagues from all sides of the House before Report. I beg to move.
Baroness Penn (Con)
My Lords, I rise briefly to support my noble friend Lord Harlech in Amendments 42 and 43. He has again brought before the Committee sensible, pragmatic amendments that surely must be addressed if we want reservists to continue to play a growing role in our Armed Forces. Refusal of employment, denial of promotion or withdrawal on the grounds of reserve service must be unacceptable. We are relying on reservists to balance the demands of their military service and their employment, and we must be able to say to them that they will be properly protected if their service unfairly threatens their livelihoods.
The Minister said in response to the previous group that reservists already benefit from employment protections. These amendments identify two gaps in those protections that I cannot see a reason not to fill. The Minister may, as my noble friend has anticipated, find objections to the drafting or in other areas, but it would be interesting to hear whether the Government accept the principle that these gaps exist in the employment protections for reservists. We might also hear the challenge about providing employment protection on or prior to appointment, but I think my noble friend has found a very good precedent in trade union legislation, which has solved this issue in other cases. I look forward to hearing the Minister’s response.
Baroness Smith of Newnham (LD)
My Lords, on this occasion I am going to split my remarks into separate comments, on Amendments 42 and 43. The principle has been very clearly outlined by the noble Lord, Lord Harlech. As the noble Baroness, Lady Penn, pointed out, that he has found a precedent in trade union legislation is very helpful. That people should somehow face detriment or constructive dismissal, but not direct dismissal, because of serving as a reservist is clearly something we, as a society, a Parliament and a Government, should try to avoid. If anything, we need to be finding ways to make it easier for people to be reservists, and easier for companies to understand the benefits of their being reservists.
I have some questions about the practicality of Amendment 44. The noble Lord, Lord Harlech, said, “Well, our friends and colleagues in Canada and Australia do something similar.” But if the self-employed reservist is a plumber and somebody says, “I really need your services. I have an urgent problem: there is a flood”, and the reservist is deployed or doing training, they cannot say, “Well, I’ll come back in a few months’ time and deal with your overflowing drains.” I am slightly puzzled by what the proposed new clause on refusal of employment on the grounds of membership of the service means in stating that
“it is unlawful to subject a member of the reserve forces to a detriment”.
I am just not quite sure how that would work in practice.
Although I can see that it is desirable to find ways to make it easier for self-employed people to serve in the reserves, equally, there needs to be a way of ensuring that they can be replaced in their work function, or that they can find a replacement themselves. It is not the same as somebody working for an employer, as the employer would be expected to find a temporary stop-gap. That is what we would be looking for.
The Earl of Minto (Con)
My Lords, I am again most grateful to my noble friends Lord Harlech, Lady Penn and Lord De Mauley for these amendments. As with my response to the last group, I completely share my noble friends’ desire to support the reserves wherever possible. I am absolutely not gloomy about the reserves at all; rather the opposite. I know that reserve training adds depth to any participant and, indeed, to any organisation that they might be part of. Unfortunately, I have concerns about these amendments. Between them, they would create new tribunal-enforceable duties on refusal of employment, extend protection against detriment short of dismissal, and place fresh obligations on businesses dealing with the self-employed and with partnerships. Taken together, that is a substantial new compliance burden to place on employers, many of them small businesses, at a time when they are already absorbing a great deal of regulatory change, as I have already established. I think it right to pause before adding further to that already pretty hefty burden.
Amendment 42 raises a further difficulty. It would make it unlawful to refuse employment to somebody who merely proposes to become a reservist. In practice, how is an employer to know that at the point of hiring? Unless a candidate volunteers information, there is no reliable way for an employer to be aware of an intention that exists only in someone’s plans, which makes the obligation very hard to comply with and harder still to enforce fairly. It is fundamentally my view that the commercial requirements of businesses, particularly small and medium-sized enterprises, must be our primary consideration. I hope my noble friends will reflect on these practical concerns, and I look forward to the Minister’s response.
Lord Coaker (Lab)
I again thank everyone who has participated in the debate. The noble Lord, Lord Harlech, asked if we can have a conversation before Report; of course we can. We understand the intention behind the amendments: to further build on the protections offered to our reservists in current primary legislation. However, the Government do not believe that the new clauses are proportionate; they risk creating unintended consequences for employers, reservists and the wider labour market.
As mentioned earlier, reservists already benefit from a range of statutory protections. They allow reservists to claim compensation where their military pay is lower than civilian earnings, subject to a cap, and provide support for reasonable additional costs arising from mobilisation, such as childcare or other domestic expenses. This recognises the significant commitment that reservists make in serving our Armed Forces. The Armed Forces covenant further ensures that service personnel are not disadvantaged by virtue of their military service. The Government’s approach is to foster a positive partnership between defence and employers, rather than to create new categories of employment litigation.
Membership of the Reserve Forces is a voluntary commitment that may involve specific and foreseeable periods of absence from employment due to training or mobilisations. The amendments could introduce broad new causes of action in employment tribunals. As the noble Earl, Lord Minto, pointed out, the provisions are drafted in particularly wide terms, extending not only to actual reservists but also to persons who propose to become a reservist or who may become liable for future service. That would inevitably create significant evidential difficulties for employers. In particular, recruitment decisions often involve a range of legitimate factors, and it may be challenging to later demonstrate conclusively that reserve service played no part in a decision.
These amendments may therefore have the unintended consequence of discouraging employers from discussing reserve commitments openly with applicants and employees. The Government’s objective is to encourage transparent and constructive dialogue between employers and reservists. A statutory requirement may undermine that objective and weaken the collaborative relationship that currently exists between defence and employers through, as I say, the Armed Forces covenant and the defence relationship management programme. We remain committed to supporting reservists and promoting reserve services among employers. However, the amendments would create a disproportionate and potentially burdensome new legal requirement and introduce unnecessary uncertainty into recruitment and employment without compelling evidence of necessity.
I turn to Amendment 44. The Government recognise that reservists who run their own businesses, work as contractors or practise in partnership can face particular challenges in balancing civilian livelihoods with military service—again, a point that the noble Lord, Lord Harlech, made. Their commitment is highly valued, and defence will continue to support them through a combination of legislation, financial assistance, employer engagement and practical guidance.
Although the Government fully support the objective of ensuring that reservists are not treated unfairly because of their service, we do not believe that this amendment is necessary or proportionate. It would extend protections into a wide range of commercial contracts and partnership arrangements. Decisions about contracting, allocation of work or business partnerships are often based on legitimate commercial factors. The amendment could make such routine decisions vulnerable to legal challenge where current or potential reserve service is alleged to have played a role. That would represent a significant and far-reaching change to the law in this area, and the Government are not persuaded that the case for such a change has been made in the context of this Bill.
Existing protections and support mechanisms are already in place through various pieces of legislation. Financial assistance may also be available under Part VIII of the Reserve Forces Act 1996 when a reservist is mobilised or undertakes relevant reserve force activities. Support is available to reservists and employers, including self-employed employers and business partnerships. This can include provision for loss of earnings, replacement costs and additional business costs arising from mobilisation.
The Government’s approach is therefore to maintain a balanced framework; I think that starts to answer the points that the noble Baroness, Lady Penn, made about trying to have a balanced framework and a balanced approach to some the competing demands. There is statutory protection where it is required, financial assistance where service creates identifiable costs, and strong engagement with employers and business through Defence Relationship Management. I agree with the point made by the noble Lord, Lord Lancaster, about ensuring that everyone is aware of the skill reservists bring back to industry; that is an important point. There is also the Armed Forces covenant and the employer recognition scheme.
That partnership-based approach has built substantial and growing employer support for reservists without placing legal burdens on businesses. In 2016, under 1,000 businesses and organisations were signed up to the Armed Forces covenant. Today, we have over 15,200 organisations signed up. That is a significant thing that all of us across the Committee can be proud of, although there is still much more to be done.
The review requirement in the amendment is unnecessary. Defence already keeps reservist and employer support under regular consideration, including financial assistance arrangements for mobilisation and wider measures to improve reserve utilisation, readiness and employer support.
Again, I reassure the noble Lord, Lord Harlech, that the Government will continue to consider whether existing schemes remain appropriate, but we do not believe that a statutory review tied to overseas comparisons is the right mechanism. International models can help, but arrangements in Australia and Canada operate within different reserve structures, employment markets, legal frameworks and funding systems. For those reasons, although we understand the intent, and I am perfectly happy, as always, to have a conversation with the noble Lord, Lord Harlech, we do not believe that these amendments are necessary. With that, I ask him to withdraw his amendment.
Lord Harlech (Con)
My Lords, I am grateful to all noble Lords who have participated in this balanced but brief debate. I am grateful to the Minister for setting out the Government’s position. As with the previous group, I ask: are the number of reserves going up? Not really; we have stopped the bleed, so we have stabilised things, but the numbers are going down. If we keep doing the same thing we will get the same results. That is why what I am suggesting is a big change: it is dramatic, because it is time to do things dramatically differently to get out Reserve Forces where they need to be. For now, I withdraw my amendment.
Lord De Mauley
“(aa) the chairs of the regional councils;”Member’s explanatory statement
This amendment would allow for regional chairs to sit on the RFCA board.
Lord De Mauley (Con)
My Lords, I will speak to Amendments 46, 47 and 49 in my name. To understand the importance of these amendments, one needs to appreciate the significance of the nationwide membership of the RFCAs. The 2019 Sullivan report on the RFCAs, which recommended conversion to an NDPB, itself provides an explanation at paragraph 2.2.2, where it says:
“A key strength of the RFCAs is their extensive volunteer membership (numbering around 8000), bringing with it a wide breadth of expertise and community links—without which the RFCAs would unlikely have access to the information and knowledge needed to discharge the duties … Their position as the link between Defence and the wider public, continuity of staff and expertise, and tri-Service drive enables the RFCAs to deliver across all functions, particularly community and employer engagement (the latter proven by the success on the Armed Force Covenant and Employer Recognition Scheme work strands). This is particularly valuable in cases where local knowledge and understanding may be limited in MoD customers”.
What is proposed in the Armed Forces Bill is the removal of all the regional chairs from the central board—the new decision-making arm of the RFCA. If the Armed Forces Bill proceeds as drafted, the members who currently elect those chairs will be completely disenfranchised, with the consequence of a loss of defence’s connection with society and the advocates and supporters of the reserves and cadets across the UK. The members have made it very clear that this will be sufficiently significant that it will lead to a reduction in the membership to a negligible number. Is that really what the Government want, when they state in the strategic defence review their ambitions to increase the size of the reverses, to increase the number of cadet and to create a completely new homeland and critical national infrastructure defence force, and that a whole-of-society approach to defence is essential?
In discussions with the MoD over the last 12 months, matters had developed to a point at which the MoD had agreed in writing, confirmed by a Government Minister at the RFCAs’ annual conference, that regional chairs would indeed sit as full members on the national board in order to protect the societal links and work done by the engaged and experience membership. Stepping back from that commitment, as the Bill does, is already being taken very badly by the membership.
I do not blame the Minister; I do not believe that the implications of what is proposed have been explained to him. They cannot have been, because if they had he would not be proceeding with this. This is about something more important even than the Permanent Secretary’s perception of how he will improve his oversight of what, in the context of the MoD’s overall budget, is a relatively small amount of funding that the RFCAs receive and use on maintenance of the volunteer estate. It is about the country’s ability to defend itself in time of war, because the effect of Section 38 and Schedule 6 will do irreparable damage to the Government’s ability to defend the country through the use and expansion of the Reserve Forces, of which the RFCAs are a demonstrable key enabler.
This will also have a damaging effect on the Government’s aim of growing the cadet forces, in which, again, local RFCAs are pivotal enablers. The Denny report, entitled The Impact and Value of School-Based Cadet Forces in the UK, identified that those with cadet service were statistically unlikely to be not in education, employment or training—something rather topical these days.
Turning to Amendment 49, I mentioned earlier what the Sullivan report says about a key strength of the RFCAs being their extensive volunteer membership. I will give a couple of examples of how the membership helps defence. My first example is that in the first decade of this century, the country was mobilising reservists in large numbers to go to Iraq and Afghanistan to bolster the Regular Army. The Regular Forces live on the patch: there are welfare officers, commanding officers and RSMs’ wives—a whole machine that is wheeled in action to look after the welfare of the families left behind. For the reservists, who are scattered over the area from which their unit recruits, which can be several counties or several cities, there is no such welfare machine. That is when the RFCAs’ membership comes into action, visiting and offering help and advice.
Reservists have the added complication of a civilian employer. An RFCA member who is an employer can visit them and explain what is happening and the legal position. I commanded a reserve regiment during the mobilisation of large numbers of reservists for Operation TELIC between 2003 and 2005. Without the support and influence of the RFCA, particularly with employers, the reserves would have responded less effectively. It allowed me to command and lead while employment matters could be successfully dealt with by the RFCAs. I know that other commanding officers had similar experiences. It was the RFCA that led on the work relating to employment that was subsequently woven into the Future Reserves 2020 White Paper.
My second example is that, being apolitical, the RFCAs have been extremely helpful in defence, especially in the devolved Administrations. In Scotland, when the Government announced the expansion of the cadet forces in schools, one of the nationalist papers printed a story suggesting that this was about training child soldiers. Its apolitical position allowed the RFCA, through its members and connections, to persuade the Government in Scotland that that was not a fair representation. They agreed, and the story died.
The SDR proposed increases in the size of the reserves and the cadets; the creation of a new homeland defence force; that defence should become a whole-of-nation responsibility; and that resilience in the civilian community needs to be improved. Therefore, it seems quite extraordinary that the RFCA’s membership, which could do so much to enable these things, should be abolished for no good reason.
Further, as was said earlier, this is directly against the new Prime Minister’s drive on the devolution of power and influence outwards. Whereas the Reserve Forces Act 1996 included in its Schedule 4 detail on the grass-roots membership, this is completely and deliberately removed by Clause 4(2)(b) in Part 3 of Schedule 6 to the Armed Forces Bill. There would henceforth be no reference at all to membership in primary legislation, for the first time since 1908. Thousands of volunteers across the UK would immediately be disfranchised and lost.
It has been suggested that the membership might be reinvented through secondary legislation; the Minister referred to this earlier. However, we all know that this is a poor way of doing it. It relegates the voluntary concept to a secondary level of importance and makes it much easier to amend, change and delete it. I beg to move.
Lord Stirrup (CB)
My Lords, I have added my name to these amendments for the reasons that the noble Lord, Lord De Mauley, set out so clearly and cogently. I do not intend to repeat them all, as I agree with everything he said, but I want to make a couple of wider points centred on the requirement for a regional approach to our reserves and cadets.
There has been wide acknowledgment of the benefits that such an approach would bring. However, a couple of things have not been mentioned to the extent that they should be. First, there is the matter of footprint. The Reserve Forces and cadets allow us a military footprint across the United Kingdom that is no longer possible with our sadly depleted regular forces. This matters. It means that defence and defence issues can be represented locally by people who are local; the noble Lord, Lord De Mauley, pointed out one example of where this has been an inestimable benefit in Scotland. That is one very important point.
My other point concerns the matter of identity. Within military organisations, identity matters—identity of the group. In the regulars, it is perhaps identification with your ship, your regiment or your squadron but, as far as regulars are concerned, it is identity with your locality. That is fundamental to it, and that identity is fundamental to the effectiveness of any military organisation. The noble Lord, Lord Lancaster of Kimbolton, said that the Bill does not seek to destroy the regional aspect of the Reserve Forces. That may be true to an extent, but he knows as well as anyone here that the regional nature of the Reserve Forces is not just about the wiring diagram. It is about the authority that those regional forces have; that is absolutely fundamental.
In response to an earlier amendment, the Minister said that devolution is achieved through overarching strategic direction and that mayors cannot do what they like. Actually, though, that is the whole point: within certain limits, they can. The point of devolution is giving them authority along with responsibility. There is overarching strategic direction, although it will not necessarily work in the case of mayors because you could have a Conservative mayor and a Labour national Government; I am not quite sure how far the Conservative mayor would follow the national Government’s overarching strategic objectives, but we are not discussing that matter here today. So I accept that there is an overarching strategic directive, but it is strategic. It is not operational or tactical. Therefore, local authorities will have a great deal of freedom to decide things, but they will need the authority to carry through on those decisions. Authority goes along with funding in many instances, but with other things besides. That is one of the reasons why Schedule 6 is potentially so damaging for the Reserve Forces.
This speaks to what we would term “mission command” in military parlance. You give overall direction on the broad objectives that you want to see achieved, but you leave a great deal of freedom open to your subordinate organisation—in this case, the regional forces—to decide how it is to be done. Yet they must have authority along with that responsibility. If mission command is to operate effectively, at a superior level, you need to listen to your subordinates’ concerns when they tell you that something simply will not work so you must come up with a different plan. At the moment, as the legislation is framed, the link between the subordinate and superior formations will be, at best, neutered and, at worst, cut off completely.
Amendments 46 and 47 seek to ensure that the RFCAs are properly represented at a senior level and that their voices can be heard. However, that plays both ways. If their voices are not heard, they will lack authority at the local level. If they lack authority at the local level, it will have an impact on recruiting and retention, with lower morale and lower effectiveness. Nobody in this Chamber wants to see that, I know.
Equally, Amendment 49 seeks to ensure that the RFCA’s wider membership is enshrined in primary legislation and that its breadth and diversity are retained so that, again, the wider community and regional links are retained and have credibility across that regional community.
As I said earlier in Committee, I have concerns about Schedule 6 overall. If we are to retain it, I plead with the Minister to take these issues away and correct those bits of it that will restore the authority and the voice of the local Reserve Forces and cadets, in particular through the RFCAs.
Earl Howe (Con)
My Lords, I wish to intervene very briefly in support of my noble friend Lord De Mauley. I declare my interest as a former Defence Minister and as the Minister who was responsible for piloting the Reserve Forces Act 1996 through your Lordships’ House; I suspect that the noble and gallant Lord, Lord Craig, is the only person present who might remember that, having directly witnessed it. I declare a further interest in that my wife, who is the lord-lieutenant of Buckinghamshire, is the president of the South East Reserves Forces’ and Cadets’ Association.
In mentioning my part in giving birth to the 1996 Act, I do not wish the Committee to suppose that I am opposed to changing it. I am not an old reactionary—at least, not in this regard—as I am the first to recognise that the world as it was in 1996 is not the world we are confronted with today. When it comes to the Government’s stated aim of placing greater emphasis on our Reserve Forces in creating a more lethal and integrated force model for defence, I am wholly in favour.
However, in acknowledging the deficiencies of the 1996 Act against that policy backdrop, we should not at the same time downplay its strengths. One of its major strengths, as other noble Lords have emphasised and the noble and gallant Lord, Lord Stirrup, so well described, is to acknowledge the importance of ensuring the buy-in of the civil community in the delivery of well-supported, well-motivated, administratively efficient reserves and cadet units.
Lord Elliott of Ballinamallard (UUP)
My Lords, before my brief comments on this group of amendments, I want to pay tribute to the Minister for his attendance at the most westerly constituency of the United Kingdom last weekend in County Fermanagh, when he visited the two-day RAF recruitment event just outside Enniskillen. It was very successful. We had a huge number of interested organisations and a number of interested young people who clearly want to be part of the defence forces in the years to come, particularly the RAF. I thank the Minister for that.
There are reasons to support these amendments, two of which we in Northern Ireland are very cognisant of, just as they are in Scotland and Wales: regionalism and localism. If you do not have local support and those who represent you, you do not feel part of it. That is a huge issue for the reserve forces and cadets associations, because these are people who may join or may at least have sympathy for our forces in the years and generations to come. It is about encouragement and ensuring that they have representation. It is important that that regionalisation and localisation is there for them. It is there for them, not just for us, and if they do not feel part of it, they will not participate fully in that process.
It comes down to a number of issues. The reserve forces and cadets associations are hugely important not just for the future of the services but for discipline, commitment, loyalty and colleague support. Those are excellent values to give to young people, which they can promote to their peers, friends and colleagues. This is not only about the amendments; it goes much wider. RFCAs offer huge organisational support for the community and individuals. I witness so many people who do not have that discipline or commitment to their families, or, indeed, their community, but it is instilled within the reserve forces and cadets associations.
I plead to the Minister and the Government to have a look at this. Maybe there are some tweaks and options to make this better, but please allow the people who are serving—reservists and those in the cadets associations—to feel part of things through that local support.
Baroness Fraser of Craigmaddie (Con)
My Lords, I do not propose to repeat what we said in an earlier debate in Committee, but I thank my noble friend Lord De Mauley for these amendments. I want to focus on Amendment 48 and the importance of volunteering.
The Sullivan report identified that a key strength of the RFCAs was their extensive volunteer membership. In every other part of our communities, we are doing everything we can to support volunteers and volunteering, and in times of tight financial straits especially, we seek to appreciate the knowledge of volunteers. I am afraid my heart sinks when I think of replacing the volunteers who represent the voice of our local regions, nations and communities. They bring experience and institutional memory, and they do it because they want to—and we are going to replace that with board appointments made on ministerial advice.
I am sure many colleagues in this House have experience of public appointments. I currently sit on two public bodies as a board member, to which I am appointed by one Scottish Minister and one Westminster Minister. We are subject to the whims of that department. In one case, DCMS has apparently decided that public appointments should serve for only one term. I leave it to you as to how that supports institutional memory and succession planning in our public bodies. At Creative Scotland, on whose board I sit, we are currently four or five board members short, and the public appointment process is so slow that we are not able to get to the front of the queue to fill those vacancies. So the idea that the wonderful volunteers we currently have supporting our reserve forces and cadets associations are going to be replaced by some sort of NDPB board appointments fills me with horror: we will end up with the usual suspects, rather than experienced and committed volunteers who are allowed to speak impartially, freely and frankly.
Baroness Smith of Newnham (LD)
My Lords, I support these amendments, to which I have added my name. As the noble Lord, Lord De Mauley, and the noble and gallant Lord, Lord Stirrup, have pointed out, if we cannot remove Clause 38 and Schedule 6 then amending Clause 38 might at least ameliorate some of the issues. This would very much enable us to retain the local connections and, in particular, as the noble and gallant Lord pointed out, the importance of a wide footprint.
We have heard from the noble Lord, Lord Elliott, about the situation in Northern Ireland, and from the noble Baroness, Lady Fraser, about the situation in Scotland. Surely we should look for ways of ensuring that the voices of the nations and regions are all heard and not have a single centralised body that does not represent anybody. These amendments very much serve to ensure that the voices that we currently hear in the regional RFCAs can continue to play a role. In particular, Amendment 49 outlines key people who should be involved.
Will the Minister explain to the Committee whether he feels that Clause 38, as currently envisaged, and the idea of an NDPB really deal with the questions of representation? If not, and if he does not feel able to support the amendments as drafted, might he consider bringing back government amendments on these issues?
The Earl of Minto (Con)
My Lords, I have already argued at some length that I do not believe that the Government’s proposed alterations to the characters of the reserve forces and cadets associations is sound policy. Much like my noble friend Lord De Mauley and the noble Baroness, Lady Smith of Newnham, my preference, therefore, would be for those provisions to be removed from the Bill entirely. However, if that is not to happen then the second-best outcome would be for the various amendments suggested by my noble friend to be adopted, as a minimum.
Amendments 46 and 47, which my noble friend Lady Goldie has signed, would require the chairs of the currently constituted regional councils to sit as members of the new RFCA body. Amendment 49 would ensure that the wider membership of the RFCAs is not overlooked in the creation of the new body by requiring the regional councils to appoint members who are representatives of all the various organisations that work through the RFCAs.
Currently, the 13 chairs are entitled to a seat on the national board and those chairs are in turn elected by their membership. This structure ensures that the members of each RFCA are represented at the national level. However, as drafted, the Bill will remove that representation. This does not seem sound. The salutary story told by my noble friend Lord Howe of decline where local accountability is removed was poignantly salient, particularly since the Bill also provides for the establishment of regional councils. So the Government believe that there should be regional committees to help oversee and run the new body, but they do not believe that those regional councils should have any representation at the national level. This is surely a contradictory and indefensible position.
The Bill also fails to recognise the vital contribution of the voluntary membership of the RFCAs. As my noble friend Lord De Mauley pointed out, the Sullivan report itself highlighted the vitality of the voluntary membership to the organisation as a whole. However, this does not feature in the Government’s proposals. It is not as if the Government are blind to this: the strategic defence review proposed increasing the size of the reserves and the cadets and the creation of a new homeland defence force. That is not to forget the proposed move to a whole-of-society approach to defence readiness. At a time when the Government are claiming that they recognise the value of expanding the reserves and the cadets, it seems extraordinary that the RFCAs’ membership, which could do so much to assist the Government in their stated aims, should be abolished without replacement.
My noble friend has my full support in these amendments. If the Government are determined to press ahead with these negotiations then I hope that the Minister will seriously consider at least accepting these amendments before Report.
Lord Coaker (Lab)
My Lords, we do not accept any of the amendments before us as drafted. Am I going to speak to the noble Lord, Lord De Mauley, and the rest of the Committee about what we may do to take on board some of the comments that have been made around Clause 38? Of course we will have discussions about it and of course we will see whether there are changes or improvements that could be made that are acceptable to the Government and which seek to address some of the problems that the noble Lord and others have laid out. That is the commitment that I have always made.
I cannot promise what the outcome will be. This is Committee; it is not a full-on Report stage and it is not Second Reading or Third Reading. Committee is about challenging the Government on what they are doing and the Government responding by saying that they will consider how they may take things forward. Just to set the framework, this does not alter the fact that the Government believe that there should be a national strategic body and regional councils. I will say a little bit more about that as I carry on with my remarks, but do I believe that points are being made that are important for the Government to consider? Yes, I do. I cannot satisfy everybody’s demands that Clause 38 should not stand part of the Bill—that has been referred to in respect of Amendments 46, 47 and 49—but we will address all that.
I have an important comment to make to the noble Lord, Earl Howe, for the Committee to recognise. I do not see this as a debate between people who are young, thrusting and understand today’s society and what the noble Earl said—that he should not be seen as an old-fashioned reactionary. Of course he is not seen that way. He and his wife, who I think he said was the lord-lieutenant in Buckinghamshire, are doing great service and are important contributors to the fabric of our country. This is not a debate between those who are modern and those who are old-fashioned. This is a discussion between people who have at their hearts the understanding that lords-lieutenant, reserves and cadets all make a massively important contribution to our country. The discussion between us is about the most effective way of doing that.
I go back to the point that I made before: the Government’s view is that by establishing of a body that allows a strategic framework to be set and that deals with and responds to some of the criticisms that were made by the various reviews to which I referred earlier, we can establish an overall framework within which those regional councils can operate. The regional councils will be a matter for discussion, but they will retain local knowledge, local experience, local expertise, the local connection, the reserves, the cadets—all those points made by the noble Lord, Lord Elliott, for which I thank him, as well as those made by the noble and gallant Lords, Lord Stirrup and Lord Craig. Of course they are vital to our country. Nobody is seeking to abolish them. The debate between us is how we make things more effective. The Government’s view is that you have the overall strategic framework within which localism operates.
Again, there is disagreement here. It think that is perfectly compatible with the overall, overarching way in which the Government are seeking to devolve power within an overall strategic framework that allows people to make their own decisions and take their own steps forward. That is why the Bill—the primary legislation—requires that regional councils are not abolished but maintained and protected. What those regional councils should be, how they should be set up and on what area they should be based will be a matter for discussion. It will be a matter on which we will try to reach a consensus.
It goes on, on page 137, to list all the various regulations which I referred to earlier. The view of some in the Committee is that those regulations—membership of the national body and all the other things to which I have referred—should be in primary legislation. The Government’s view is that it should be done in secondary legislation. The commitment I have made to the Committee is that those regulations, which are already drafted, can be shared so that people can seek to understand whether some of the concerns—not all of them—they have about membership, et cetera, are addressed by them. It may be that they are not, but the Government are not going to go back. The draft regulations will not say we accept that Clause 38 should be abolished, but they may say we think the area should be this, the membership should be that, and this is the way forward for us. Giving draft regulations in good time to your Lordships’ House will enable a discussion to be had on Report which can take that forward and people will make their own mind up as to whether that is appropriate.
From the Government’s perspective, therefore, Amendments 46, 47 and 49 are not necessary, because the Government are seeking to deliver some of what those amendments are asking for in a different way. The noble Lord, Lord De Mauley, in a very interesting, logical and emotional way, put forward the case for the regional chairs and for many of the established ways of working to continue, supported by the noble and gallant Lord, Lord Stirrup, the noble Lord, Lord Empey, the noble Baroness, Lady Smith, and many others. The debate between us will not be about how we reach consensus, because there is a disagreement, but I have been asked whether, if Clause 38 and Schedule 6 are to remain part of the Bill, there is something we can do which may satisfy some of the concerns that your Lordships have expressed in a way which means that some of the old-fashioned reactionaries among us, as the noble Earl, Lord Howe, mentioned, can at least address some of the very important points, which are not old-fashioned or reactionary but are important considerations which any Government should make when they seek to make a significant change, to ensure that we do not throw the baby out with the bathwater. That is the commitment I make to your Lordships’ Committee and, with that, I ask the noble Lord, Lord De Mauley, not to press his amendments.
Lord De Mauley (Con)
My Lords, I thank all noble Lords who have spoken in support of these amendments. I thank the Minister for his response and for offering to meet and discuss these matters, to which of course I am open. I say to him that the way the Bill is drafted, there are to be regional councils but there are no members beneath them supporting them and they have no representation at national board level, so they are suspended in mid-air and it seems to me rather pointless. We are in Committee, so I reserve the right to return to this matter on Report, but for this evening I beg leave to withdraw the amendment.
Plant Health, Seeds, Seed Potatoes and Plant Propagating Material (Amendment) (Northern Ireland) Regulations 2026
(1 day, 7 hours ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
20:24 - Division on the amendment to the Motion - Ayes: 26 / Noes: 63 - Amendment to the Motion disagreed.
Baroness Hayman of Ullock
That the draft Regulations laid before the House on 22 June be approved.
Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee
Lord in Waiting/Government Whip (Lord Wilson of Sedgefield) (Lab)
For Back-Bench contributions, the limit is three minutes. There is no gap and we are very tight for time, so if people stick within the three minutes, everybody will be grateful and we will be able to hear from the Minister later.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)
My Lords, this instrument extends to Northern Ireland only and is being brought through Westminster, working closely with the Department of Agriculture, Environment and Rural Affairs, or DAERA. The Government note the regret amendment tabled by the noble Lord, Lord Dodds of Duncairn, which raises concerns about the implementation of EU-derived plant health and seed legislation in Northern Ireland without public consultation and about the broader implications of the Windsor Framework.
This is a necessary measure to update Northern Ireland’s domestic legislation and plant health enforcement provisions, ensuring the continued protection of Northern Ireland’s biosecurity and fulfilment of our Windsor Framework obligations. As noble Lords will be aware, under the terms of the Windsor Framework, limited parts of European Union law falling under Annex 2 to the framework continue to apply in Northern Ireland. These include the movement of goods, agri-food standards, and animal and plant health. It is important to note that this instrument makes no changes to the Windsor Framework. The instrument will amend existing Northern Ireland plant health legislation, introducing changes to six Northern Ireland statutory rules. The instrument will also update Northern Ireland legislation in line with EU legislative changes which are directly applicable in Northern Ireland. The majority of these changes update obsolete and outdated references in respect of Northern Ireland, Great Britain and EU member states following the UK’s exit from the EU.
I will now outline the changes being made by this instrument. Three of the pieces of marketing legislation being amended are: first, the Marketing of Vegetable Plant Material Regulations (Northern Ireland) 1995; secondly, the Marketing of Ornamental Plant Propagating Material Regulations (Northern Ireland) 1999; and thirdly, the Marketing of Fruit, Plant and Propagating Material Regulations (Northern Ireland) 2017. These set out conditions relating to plant varieties, documentation requirements, and plant health and quality for an array of fruit, vegetables and propagating materials. They protect buyers and growers by outlining compulsory standards for products.
Also being amended are the Forest Reproductive Material Regulations (Northern Ireland) 2002, which implement rules for marketing forest seeds, plants and cuttings, ensuring that material is from approved sustainable sources and is identifiable from seed to the final user, protecting Northern Ireland’s biosecurity traders and growers.
The fifth piece of legislation being amended is the Seed Potatoes Regulations (Northern Ireland) 2016. As you will possibly be aware, seed potatoes are one of the notable good news stories resulting from the introduction of the Windsor Framework. The Windsor Framework permitted the movement of seed potatoes from Great Britain to Northern Ireland and their growing on, which had been prohibited during EU exit.
The final piece of domestic legislation for Northern Ireland that this instrument will amend is the Plant Health (Official Controls and Miscellaneous Provisions) Regulations (Northern Ireland) 2020. This is a central piece in setting out the overarching rules and requirements for plant health. These amendments are primarily technical in nature to update references and terms that are related to Northern Ireland, the UK and the EU.
The amendments will also update domestic legislation to include EU biosecurity legislative changes that are already applicable and implemented, including some relating to disease control. A number of the pests and diseases covered in these technical updates pose similar risks to us here in Great Britain, and controls have already been introduced in legislation here. This instrument ensures that similar control measures to protect against these pests and diseases that are already in place in Northern Ireland will be fully enforceable.
The instrument moves beyond the existing ability of rejecting consignments and provides for full enforcement of non-compliance, including pursuing penalties and prosecution where necessary. While no formal public consultation was undertaken for the instrument, we have worked closely with stakeholders through webinars, publication of guidance, roundtables and the Horticultural Working Group as well as one-to-one meetings, particularly on the implementation of the Windsor Framework. From these ongoing stakeholder engagement mechanisms and the technical nature of this instrument, we determined that a consultation was not required.
In conclusion, I emphasise that it is essential that the amendments in this instrument update the Northern Ireland statute book and enable effective compliance with plant health requirements to uphold our commitment to full and faithful implementation of the Windsor Framework. The instrument does not impede Northern Ireland’s constitutional position or grant any additional powers to the European Union, nor does it introduce any additional impositions for stakeholders. So, by approving it, we reaffirm our solid commitment to protect our agrifood, forestry and horticultural sectors and deliver on our international obligations. I beg to move.
Amendment to the Motion
Lord Dodds of Duncairn
As an amendment to the above motion, at end insert “but that this House regrets that the Plant Health, Seeds, Seed Potatoes and Plant Propagating Material (Amendment) (Northern Ireland) Regulations 2026 implement provisions of EU law on part of the United Kingdom without public consultation; and do not help resolve the fundamental problems created by the Northern Ireland Protocol and Windsor Framework”.
Lord Dodds of Duncairn (DUP)
My Lords, I thank the Minister for introducing the regulations. Once again, we are debating regulations which may appear on the surface to be technical and limited in scope, but, as we know, such regulations raise issues of real constitutional and democratic significance and importance. No one here tonight is going to argue against high standards of plant health or biosecurity. Of course we need effective protection against pests and disease, and Northern Ireland farmers and growers deserve robust safeguards. The question is not whether we should have these high standards; it is who decides those standards and what they should be. In a democracy, the answer should be straightforward. The laws applying to citizens of the United Kingdom should be made by legislators people elect and can remove. Yet here we are passing regulations because, as the Explanatory Memorandum says, they are necessary to implement obligations arising under the Windsor Framework and to reflect EU legislation which continues to apply to Northern Ireland. Such legislation is not made here at Westminster, nor at Stormont by the Northern Ireland Assembly, yet UK businesses and UK citizens in Northern Ireland are required to obey it. Parliament is being asked to amend domestic law as a consequence of a regulatory regime imposed on part of the United Kingdom by the European Union.
These regulations permit the authorities to enforce laws. That is what these regulations give: the power of enforcement. They do not actually set the laws people are having to abide by in Northern Ireland. That has already been decided. It has been decided by the European Union and imposed on Northern Ireland. So tonight, whatever noble Lords’ views are on the merits of the issues before us in these regulations, we cannot debate those. That has already been decided. We are debating the enforcement mechanisms. That is the constitutional reality that Ministers and others continually try to avoid with words such as “technical”, “pragmatic” and “necessary”.
When you look at some of the wording of the regulations, you can see that these are not mere technical tidy-ups of wording, updating the statute book in some small way. I refer to some of the clauses in the regulations. New paragraph (4C) in the Forest Reproductive Material Regulations (Northern Ireland) 2002 states:
“A reference to a member State is to be read as if Northern Ireland were a member State of the European Union”.
New paragraph (1A) in the Plant Health (Official Controls and Miscellaneous Provisions) Regulations (Northern Ireland) 2020 says that
“(a) any reference to a member State is to be read as if Northern Ireland were a member State of the European Union
(b) any reference to the Union or Union territory”—
that is, European Union territory—
“is to be read so as to include Northern Ireland”.
These are hardly technical changes. They are not small matters. Instead of removing the regulatory border within our country, government policy amounts to managing that border by accommodating the EU rules that created the need for it in the first place. It is an acceptance and entrenchment of the problem, not a solution to the problem.
We hear much about protecting the Northern Ireland internal market, and we have heard it again tonight. In a genuine internal market, goods move freely from one part of the country to another without an international customs border—without the special schemes we have in Northern Ireland, with their crushing bureaucracy, enormous costs and compliance requirements that are having a chilling effect on companies doing business with Northern Ireland consumers and, in some cases, banning it altogether.
The problem with the way in which the Windsor Framework is discussed by the Government and others who support it is that each individual regulation is presented as some small technical measure. Each individual change is said to be limited in scope and not burdensome; but, taken together as part of the Windsor Framework in their totality, they amount to something constitutionally enormous: the subjection of Northern Ireland to laws made by an authority outside the United Kingdom and the creation of barriers to trade between one part of our country and another.
As the Minister has just tried to explain, the Government are not even bothering about public consultation any more. They say it is unnecessary. If legislation affecting England, Scotland or Wales were being amended because laws made by a foreign legislature continued automatically to apply in certain respects, would Ministers really regard consultation as an unnecessary formality? The absence of consultation is particularly striking because these regulations concern enforcement. The Government are not simply tidying up references in legislation. They are assuring that the requirements flowing from the EU regime can be effectively enforced in part of the United Kingdom. Surely that deserves proper scrutiny and engagement with those who will be affected in Northern Ireland. The absence of a full impact assessment is similarly concerning. A key assessment should be what the cumulative impact is of all these arrangements on trade within the United Kingdom.
The reality is that the Windsor Framework, of which this is part, fundamentally alters Northern Ireland’s constitutional position without the cross-community consent that has been the foundation of political stability in Northern Ireland for decades. It is simply nonsense to say that the only choices are the present arrangements or some kind of hard border on the island of Ireland. That has been comprehensively debunked and shown to be false. The Government need to be working towards fundamental solutions to the problem, rather than continuing to legislate to administer the consequences of the protocol and to entrench it even further. For those reasons, I beg to move.
Lord Lilley (Con)
My Lords, I am grateful to the noble Lord, Lord Dodds, for securing this debate and ensuring that we have three whole minutes to discuss the dismemberment of the United Kingdom.
I began by trying to find out what this was about by reading the Explanatory Memorandum. I want to make a complaint to those who write these things—if any of them are listening. It is completely opaque. It gives no indication of the actual consequences of what we are doing on real people and real lives, or on the constitution of this country. In future, I hope they write them more informatively.
Following from that, if we were to reject this statutory instrument, what would happen? Would it mean that European laws no longer applied in Northern Ireland? No, they would still apply. They would probably not be enforced by the British Government. I do not know what would happen. Perhaps the European Union would send in officials to do the enforcement for us. We should find out what the actual consequences are of passing or not passing this legislation before we decide whether it should go ahead.
Next, do these regulations actually fulfil the promises of the Windsor Framework, as it is so called? I looked up what the promises were. It was said, re plant health and so on:
“Instead of full EU certification, all plants and seeds will move under the existing UK-wide plant passport scheme, in line with traders throughout the UK”,
and:
“Previously banned seed potatoes will once again be available from other parts of the UK while remaining prohibited in Ireland”.
Is that the case? Is it exactly the same as in the rest of the UK or not? The honourable Member in the other place, Sammy Wilson, said that he finds it difficult to get seed potatoes in Northern Ireland, that consignments above 2 kilograms have to go through complex procedures, and that lots of producers and suppliers no longer get them from GB. Is that or is that not the case? Will these regulations alter that in any way?
I share the disgust which the noble Lord, Lord Dodds, mentioned at the inclusion in this document of statements that Northern Ireland is to be treated as part of the EU. What that is saying, in effect, is that the constitutional relationship between Northern Ireland and the rest of the United Kingdom is to be the same as between Donbass and Luhansk, and the rest of Ukraine. Legally, they are part of Ukraine, but the laws are made by Russia. Here, legally, Northern Ireland is part of—
Lord Wilson of Sedgefield (Lab)
Order. I ask the noble Lord to bring his comments to an end.
Lord Bew (CB)
My Lords, it is already apparent that this SI is connected to a wider ideological political debate. We learn from the text of this statutory instrument—we will come back to the text later—that it has virtually no impact, it is already operative in Northern Ireland, and so on.
The Minister has said that seed potatoes are one area of great success for the Windsor Framework. I wish that Ministers would make more of those areas of success for the Windsor Framework because the most important thing that it does, for all its many defects, is that it returns to the fundamental negotiating point which led to the Good Friday agreement—that point being that the British Government were not committed in any way to developing an all-island economy, which they were committed to by some of the documents before the Windsor Framework was agreed with the European Union. That is the most important thing.
On the current expansion and growth of Northern Ireland, I have recently seen figures which suggest that the Greater Belfast region is doing better than the Greater Manchester region, heaven forfend. That is linked to the fact that the UK as an economy still operates fundamentally as a viable internal single market.
Having made that point, I just want to say one thing because the noble Lord, Lord Dodds, has a point: there was no consultation on this document. Looking at the correspondence in and around our own Secondary Legislation Scrutiny Committee, it is very difficult to get a handle on it. You leave with the feeling that because this is small beer and does not affect many people in a significant way, officials do not put the work into it. We should not be coming to this House and saying, “No consultation”. We should be coming to this House to hear an explanation of what the consultation said, and the noble Lord, Lord Dodds, has a point there.
Baroness Ritchie of Downpatrick (Lab)
My Lords, another week and yet another regret amendment in respect of the Windsor Framework, this one regarding plant health seeds, seed potatoes and plant propagating material. I ask the simple question: what does this achieve? I agree with the noble Lord, Lord Bew, that this is more about the constitutional debate in Northern Ireland. Who benefits from these repetitive debates in the House of Lords?
As someone who supports the Windsor Framework, and does not support the regret amendment, I say that we should be looking at areas of collaboration and co-operation with the wider business community on the benefits to be obtained from the Windsor Framework, and from the dual access to the UK internal market and the EU single market. That is what many businesses are saying to me and that is where the benefits lie. We must not forget that the Windsor Framework is a direct result of Brexit, which many of those who are opposed to the special arrangements for Northern Ireland supported. The bottom line is that we would have been better to remain within the EU. My personal hope is for that to come about over the next few years.
Obviously, this SI is to ensure that EU legislation governing plant health, seeds, seed potatoes and plant propagating materials continues to operate effectively in Northern Ireland. It also includes full enforcement powers to ensure compliance with plant health requirements and biosecurity in Northern Ireland, and states that there is an ongoing programme of work to ensure that all regulations covered by the Windsor Framework are fully operable and enforceable in Northern Ireland. Obviously, this information should have been in the explanatory document, as the Secondary Legislation Scrutiny Committee stated. Can my noble friend the Minister indicate why this did not happen? She may not have that information to hand this evening so perhaps she could write to me.
Undoubtedly, the potato industry is significant to the agri-food industry in Northern Ireland. I have family involved in it and they do not talk about the inability to get seed potatoes or the regulations that they face. Their main concern centres on the weather conditions as a result of climate change, because they face wet springs and autumns, which make planting and harvesting extremely difficult.
Undoubtedly, the Windsor Framework has presented administrative challenges. In conclusion, can my noble friend the Minister provide us, either tonight or in writing, with a copy in the Library, with an update on the full implementation of the report by my noble friend Lord Murphy, whose recommendations were accepted by the Government, and the ones from our committee as well? Can she also provide further details in relation to the SPS agreement?
Lord Redwood (Con)
This is no way to legislate for Northern Ireland. It is not right to annex part of our country to the European Union. At the time of the Windsor Framework, I and some colleagues in the Commons opposed it and pointed out that there were much easier ways of organising the trade and border arrangements between Great Britain, Northern Ireland and the Republic of Ireland. The Government should go back to that work and understand that we do not have here a system of handling Northern Ireland’s law and trade which meets the requirements of the loyalist community, and maybe others in Northern Ireland as well.
The Government should be ashamed of how undemocratic this process is. As the noble Lord, Lord Dodds, has rightly identified, there is no point in consulting all the people who are to be affected by regulations in these areas in Northern Ireland because the Government cannot change them—and the Government cannot be bothered to work out the impact costs, or even the impact benefits, of the regulations because they rightly understand that they are a spectator. They are not in charge of any of these things.
Then we are told in the documents that there is going to be no review of how this works out. All the other examples that come to the Commons and the Lords from government for consideration go through a proper process. There is consultation with the people they are going to affect. Both Houses expect a proper assessment of costs and benefits. We expect a proper debate and if the Government have got it wrong, we expect them to go away and change or amend it. We certainly expect there to be a review after the process, so that we can see whether it has worked out in the way that the Government wanted.
The fact that none of these things can happen on any of these SIs means that we are going to spend a lot of time, on SI after SI, complaining about the process, so I have this suggestion for the Government. They have embarked on negotiations for something they call the EU reset. So far, all I have seen is a list of things that the EU wants, with the Government indicating that they would like to give those away in order to purchase some greater friendship or influence. It is always very odd that they think you get influence by giving in to what the other party wants. That is not the way most people negotiate.
Would it not be a good idea for the Government to put to the EU that this is doing damage to relations between communities in Northern Ireland and to the way in which they are governed; that it is undemocratic; and that we surely need a new settlement over how Northern Ireland legislation and trade are conducted? I very much recommend the mutual enforcement model, where we say that we will not send anything that is non-compliant from Northern Ireland to the EU and that we do not want to impose any new barriers on the Republic of Ireland/Northern Ireland border—indeed, that we would dismantle all barriers between GB and Northern Ireland.
Baroness Chapman of Darlington (Lab)
My Lords, it is a real pleasure to support my noble friend the Minister and oppose the amendment in the name of the noble Lord, Lord Dodds.
I respect and have heard many times—as has everybody else present, I think—the constitutional concerns that have been raised, but it is right that we focus on the practical reality facing farmers, growers and businesses in Northern Ireland on these occasions. It is probably worth reminding the House that, under the Northern Ireland protocol, there were difficulties with the movement of seed potatoes into Northern Ireland, and that the Windsor Framework was negotiated by the previous Government to attempt to resolve some of these difficulties.
I do not think that anybody would argue that we are in a perfect situation. There are issues and constitutional concerns, and there is a problem with concerns from the unionist community; that is absolutely understood and legitimate. What you do about that is an open question and something to which nobody, whatever noble Lords might imply in these sorts of debate, has a simple solution. Today’s measure is about allowing the movement of high-quality seed potatoes into a market, and it is necessary. The measure means that the appropriate agencies will have the powers they need to protect biosecurity—that is it. That is what this measure does, and that is why my noble friend is right to propose it to the House.
On consultation, it is my observation that Defra in particular needs no encouragement to consult on any issue at any given time, but this instrument does not introduce a new policy or new burdens. I heard what the noble Lord, Lord Bew, said about this. Sometimes, for other reasons, there is a need to engage the community in a very visible way. Perhaps that is a point worth reflecting on for the future, but, in the narrow sense of what would ordinarily trigger a consultation, this would not meet that threshold. It is a decision not to consult; no one was forced not to consult.
By rejecting these regulations, we would not solve the concerns of the noble Lord, Lord Dodds, or anybody else. This is an imperfect situation—we recognise that—but, tonight, for the benefit of businesses and growers in Northern Ireland, it is important that we pass these regulations to give the legal certainty and clarity that that important industry needs.
Finally, at a time when free trade faces growing threats from protectionism and geopolitical instability in many areas of the world, securing a stable and frictionless internal market here is more important now than ever.
Lord Frost (Non-Afl)
My Lords, we are in the second of what will be three discussions of statutory instruments on the Windsor Framework before we go into the Recess. One of the advantages of this rapid sequence of debates is that we can check the consistency of what is said in one debate, as compared to another. With that in mind, I note that the Minister, when winding up last week, said:
“The noble Lord, Lord Frost, implied that the UK has ceded biosecurity responsibilities for Northern Ireland to the EU”.
She went on to say:
“We retain complete autonomy to make our own regulatory decisions”.—[Official Report, 2/9/26; col. 201.]
For a few reasons, I gently ask the Minister whether she entirely stands by that statement in the light of the discussion that we are having.
First, as we have heard, the Explanatory Memorandum says that the EU amendments, as they are called, are
“already operational in Northern Ireland”.
Further, in discussion on this, Defra told the Secondary Legislation Scrutiny Committee that, if necessary, DAERA—the Northern Ireland equivalent—
“could in practice have relied on the EU regulations as a basis for enforcement action”.
One wonders what the point of this SI is, given the powers that are already in place. It certainly feels rather irrelevant.
Secondly, in case this was not obvious enough, the Government are clear—as we have heard—that these amendments are required of us by the Windsor Framework. Again, the Explanatory Memorandum says:
“The purpose of this Statutory Instrument is to ensure that relevant domestic legislation … operates in accordance with the Windsor Framework”.
In other words, that is the justification, not the substantive purpose.
Thirdly—again, as we have heard—if that were not enough, paragraph 7.1 of the Explanatory Memorandum washes its hands of it and says, “If you have concerns about any of this, go to Brussels and talk to them about it”. I wonder whether, when this great reset and the new SPS rules are in place, thus imposing this regime on the whole of the UK, that will also be the Government’s position; and whether farmers will be told to go to Brussels and beg if they do not like the new SPS reset arrangement. That seems the logical consequence of the position that is taken here.
It could not be clearer that the British Government have no say at all in these matters; today’s legislation makes that abundantly clear. So I ask the Minister: in what sense does she think the Government have autonomy in these areas? I suggest to her that today’s discussion is disconnected from the real power relationships in Northern Ireland and is entirely performative. Therefore, the regret amendment from the noble Lord, Lord Dodds, is entirely justified.
Baroness Lawlor (Con)
My Lords, this is another statutory instrument to update EU law enforcement on plant health, seeds, seed potatoes and plant propagating material so that it operates effectively in Northern Ireland. It therefore aligns the operation of Northern Ireland’s agri-food sector with EU laws. The measures do not take account of the geographical, climatic and agricultural conditions of Northern Ireland, which are different from those of mainland Europe. The House of Commons Environment, Food and Rural Affairs Committee concluded in its assessment of the SPS for GB that the
“full adoption of EU rules in this area would risk embedding regulatory decisions that are inappropriate for GB production systems”.
I ask the Minister: is it right that we should have statutory instruments to enforce regulatory decisions that may not suit the very different conditions in Northern Ireland?
Worse, the regulations violate the constitutional integrity of the United Kingdom and rupture our internal market. They mean divergent laws to govern the agri-food sectors under the Windsor Framework. That framework, as we know, accepted as permanent the EU’s power to regulate goods in Ireland, including the agri-food sector, whereas the settlement under the Northern Ireland protocol of the withdrawal agreement was recognised by the parties at the time as temporary, pending “best endeavours” to find a more lasting solution. As long as we have the current arrangements, Northern Ireland will thus be an economic vassal of Brussels, governed autocratically with laws made for the people but not by the people.
Lord Weir of Ballyholme (DUP)
My Lords, given the time constraints, I will not reiterate some of the wider constitutional issues that have already been raised. But first I have a question: why is the SI even needed? By Defra’s own admission, the current regulations are fully complied with by everybody in the industry. That admission has been highlighted by the Secondary Legislation Scrutiny Committee. It does not even get a mention in the Explanatory Memorandum, no matter how opaque it is—indeed, it was criticised by the committee for its omission.
I want to concentrate in particular on consultation, or the lack thereof. It seems to be part of a wider pattern on these SIs, on which no consultation takes place. There are two conclusions that one can draw in relation to that. First, there is an approach that is both arrogant and ignorant. Indeed, one of the rationales given by the Government in the Explanatory Memorandum for a lack of consultation is that impacted stakeholders and businesses
“have had many opportunities to feed into the development of the EU regulations through various formal EU consultations”.
So the expectation is, if you are a small business, that you are supposed both to be aware of what is coming down the pipeline from the EU and to feed in and make your representations directly to the EU. The Government appear to be completely washing their hands of that.
We have seen that ignorance on previous occasions whenever, for example, legislation was put through on seed potatoes. I know one particular example of the impact of that where a business would have gone out of business because it was not able to source, even from another source. It took a considerable amount of work with the then Agriculture Minister in Northern Ireland to find a technical solution to enable it to remain in business. That was because the legislation was simply imposed with an ignorance to the direct impact on the individual.
The second reason why consultation clearly has not taken place is because, effectively, this is a fait accompli. In many ways, it does not matter, on the substance of this, whether stakeholders would say, “Fair enough, we think this is perfectly fine”, or whether they would be utterly up in arms. In either case, the Government are in the position where they are simply allowing it to be imposed. It does not matter what reaction there is in a consultation, so why go through a consultation in the first place? That, I suggest, is no way to do laws in this country—to impose them on people. It suggests, whether it is with this Government with the reset or a future Government with a very different reset, that simply banking the current status quo and building on it is not acceptable. That is the wider lesson that we need to draw from this SI.
Lord Davies of Brixton (Lab)
I welcome the opportunity to take part in this interesting debate. It is the second time that I have intervened in what appears to be a series of debates on this issue. The last time I was guilty of a degree of naivety. It turned out that it was not a debate about tumble dryers; it was really a debate about Brexit and the Windsor Framework, just as today’s debate—although quite a few references have been made to plant health, seeds and potatoes—is really at heart a debate about where we are with Brexit and the associated Windsor Framework. Why are we here?
Given the time available, I want to make just three points about Brexit. First, it was sold on a false prospectus, of which “take back control” was one of the most egregious. It was a lie. We do not have control in an interconnected world to the extent we were told. Secondly, the terms of exit were negotiated, in my view, incompetently—not least of which was the failure to appreciate until too late the implications of a land border between the UK and the European Union. Thirdly, it is worth making the point that a majority of people in the United Kingdom now regard Brexit as a mistake. These are all thoughts that need to be borne in mind when undertaking this debate.
Finally, given the nature of this debate and why it is happening, it is relevant to point out that, in the Brexit referendum, a clear majority of the people of Northern Ireland were against leaving the European Union. In fact, the majority in favour of staying in Europe was somewhat greater than the majority across the UK as a whole who wished to leave.
Baroness Hoey (Non-Afl)
My Lords, noble Lords should be clear that these regulations, which allow the law in Northern Ireland to diverge from that of Great Britain, violate Article 1(2) of the Windsor Framework, which clearly states that the purpose of the Windsor Framework is to protect
“the essential State functions … of the United Kingdom”.
Surely the most basic function of the state is to ensure the nation’s security. A critical component of that is biosecurity. What the Government have not admitted is that this legislation applies different biosecurity standards to Northern Ireland and Great Britain because of the EU diktat, is set in the context of an SPS border dividing one part of the UK from another, and steps beyond the bounds of the Windsor Framework.
Last week, the noble Baroness sought to dismiss concerns of this kind by arguing that the island of Ireland has long been treated as a single area for epidemiology. This argument does not work, because there is a distinct difference between being treated as a single area for epidemiology in a context where we set our own common UK biosecurity standards and what happens now. Today, we are being divided in two by international SPS border control posts at Belfast, Larne, Warrenpoint and Foyle, supposedly to protect Northern Ireland from the threat from our own country—what a ridiculous thing to say. Those control posts have cost £152 million so far of taxpayers’ money to construct.
The truth is that although we have ceased being a member of the EU, we have still not left the EU. While the Windsor Framework is in existence, the United Kingdom will never experience a true departure from the European Union. This point is so eloquently demonstrated by the regulations, which, as mentioned by many noble Peers, state:
“A reference to a member State is to be read as if Northern Ireland were a member State of the European Union”.
How dare His Majesty’s Government write out Northern Ireland from its own country and into the EU’s regulatory territory? They also refer to GB as a third country, which is also really outrageous. Even worse, any future changes that Brussels wants to bring in will simply be nodded through and business will have to comply or be sanctioned: changes to all things—passports, farm machinery et cetera—with no public consultation and not a single farmer, garden centre or grower asked for their view. How dare the Government again say that these are just technical changes?
I say to the noble Baroness, Lady Ritchie, that we will keep having these SI regret debates because they are the only way that we in this Chamber get the chance to discuss the constitutional outrage of what is happening and the drip-by-drip moving Northern Ireland away from the rest of the United Kingdom. This is not going to go away. I will very much support the noble Lord, Lord Dodds, if he decides to go for a vote on this, to show, as a matter of principle, that we object to this kind of treatment.
Baroness Suttie (LD)
My Lords, I thank the Minister for introducing these regulations, as well as the noble Lord, Lord Dodds, for allowing us to have this short debate through his regret amendment. As I said in last week’s debate, the concerns about these regulations are much less about the substance of the regulations themselves and more about the democratic oversight, parliamentary scrutiny and very legitimate fears that Northern Ireland feels that it is being treated differently from the rest of the UK.
On the regulations themselves, can the Minister say what the Government’s assessment is of the impact on the sector, if any, of the eight-year gap between the introduction of the EU regulations in 2018 and these enforcement regulations we are debating this evening? Will she also say a little more about how “businesses and stakeholders” were able to
“feed into the development of the EU Regulations through various formal EU consultations”,
as stated in the Explanatory Memorandum, and how the Government ensured that this happened in practice?
In last week’s debate, as well as this evening, the noble Baroness, Lady Chapman, talked about the need to be pragmatic and practical. In general terms, I agree that the agricultural sector is looking for stability, biosecurity and mechanisms to protect our ecosystems from invasive pests and crop diseases. On these Benches, we recognise that aligning with the EU reduces barriers to trade. The reality of dynamic alignment, however, is that we are usually dealing with very small, technical changes which are probably truly understood only by a small group of experts—including the Minister, who follows these matters very closely. However, in the absence of formal representation in the European Union institutions, it is vital that this Parliament plays a full and proper scrutiny role, and I still firmly hope that the Government will set out a strategy in this regard.
Finally, it is deeply to be regretted that the House of Commons no longer has a European Scrutiny Committee. It previously played a vital role in carrying out necessary scrutiny of these regulations. This function is increasingly being carried out only by the European Affairs Committee of your Lordships’ House and through regret amendments such as today’s. The Government need to bring forward proposals to improve this.
Lord Blencathra (Con)
My Lords, I thank the Minister for bringing this secondary legislation before your Lordships’ House tonight. Once again, noble Lords and Baronesses from Northern Ireland and some of my noble friends have, in my opinion, made a very powerful, unanswerable case regarding the undemocratic way these regulations have been imposed in Northern Ireland without any input from Northern Ireland politicians or the United Kingdom Government. Of course, these regulations have already taken effect across the EU and add operational and enforcement measures. However, like other noble Lords, I have questions and concerns about the process.
I share the concerns of the noble Lord, Lord Dodds, whose amendment formally regrets that these regulations were made “without public consultation”. The Explanatory Memorandum states that the Government have “engaged with key stakeholders” to notify them of “the main changes”, but that is not the same as consultation, so will the Minister provide more detail on how the department and the Northern Ireland Department of Agriculture, Environment and Rural Affairs, DAERA, select stakeholders to engage with and ensure that those impacted are aware of the changes? What exactly was the scope and scale of this engagement? Furthermore, while the Government have said that businesses and stakeholders can participate in formal EU consultations, how do the Government ensure that businesses and stakeholders are aware of these EU consultations? What assessment have the Government made of current participation levels and do they think that EU consultations are adequate in acting on concerns raised? We should not be complacent but proactive in ensuring that the needs and concerns of businesses and key stakeholders in Northern Ireland are heard and acted upon.
The Windsor Framework itself, despite its inherent flaws, is a great improvement on the awful Northern Ireland protocol negotiated in October 2019. That is not to say that it is perfect, nor was it ever our view that the Windsor Framework is beyond improvement. As the Official Opposition, we remain open to constructive discussions with all interested parties on how we can best protect the economic and constitutional integrity of the United Kingdom, so I thank the noble Lord, Lord Dodds, for his amendment and his valuable insights tonight. As noble Lords have said, while individually these SIs are small, technical and not significant, collectively, slowly and surely, they give the impression that Northern Ireland is being leveraged out of the United Kingdom. That situation is not sustainable and, sooner rather than later, it needs to be addressed by this Parliament. I look forward to the noble Baroness’s response.
Baroness Hayman of Ullock (Lab)
My Lords, first, I thank noble Lords from all sides of the House for their contributions to the debate today and for the valuable points made in respect of the instrument. I will rattle through—I do not have very long, I am afraid—because a broad range of issues has been covered during the debate, some clearly beyond the scope of the instrument but important none the less. I will do my best to cover the issues raised in the time I have.
The noble Lord, Lord Dodds, talked about Northern Ireland’s status, as did other noble Lords. This is a technical amendment. I get the point that the noble Lord, Lord Blencathra, has just made, but this is not about making Northern Ireland a member state or changing Northern Ireland’s status; it is about protecting the unique opportunity that we have secured for Northern Ireland. What we have done is ensure that Northern Ireland operators maintain seamless access to the EU single market while at the same time firmly remaining within the UK’s internal market.
A number of noble Lords raised the issue of the constitution and the Windsor Framework. As I said at the beginning, this does not change the Windsor Framework. I appreciate the strength of feeling around constitutional issues, but I assure noble Lords that this instrument respects Northern Ireland’s position and integral place within the United Kingdom. It is UK-made, UK-scrutinised and operates within the scope of the UK’s international commitments. Introducing and applying domestic legislation to Northern Ireland upholds the UK Government’s commitment to implementing the Windsor Framework, which, as we have heard, is a clear improvement on the Northern Ireland protocol and is the best workable solution we have.
Some noble Lords suggested, or at least implied, that the United Kingdom is being governed by the European Union. This is not the case. Northern Ireland, as I said, is fully part of the UK internal market. It has unfettered access for Northern Ireland goods moving to GB, and EU law applies only in limited, defined areas necessary to preserve island of Ireland biosecurity and Northern Ireland’s access to the EU single market. The framework enables Northern Ireland’s unique dual market access, supporting its agri-food sector and its rural economy. There are no constitutional changes made by this instrument; it simply provides for full enforcement of biosecurity controls at domestic level.
Some noble Lords—the noble Lord, Lord Lilley, for example—talked about enforcement. DAERA and GB competent authorities work closely to achieve compliance with biosecurity controls and minimise any disruption or delay on trade. However, DAERA must also be able to ensure it has adequate means of taking appropriate action on the small number of operators that may not comply with plant health requirements, in order to ensure a level playing field for those following the rules. The amendments included in this instrument will ensure that DAERA has the powers to maintain a legal regime that can be effectively enforced, so that penalties can be imposed for non-compliance that puts Northern Ireland’s biosecurity at risk. However, it is DAERA’s intention to maintain a proportionate approach.
The noble Lord, Lord Bew, mentioned the positive impacts of the Windsor Framework. I mentioned seed potatoes in my speech, but I would like to give another example. Goods moved under the Northern Ireland plant health label scheme, which was introduced as part of the Windsor Framework, increased from 1,708 in 2024 to 4,090 in 2025. This is extremely positive and clearly demonstrates that goods are moving across the United Kingdom and that the flow of trade is good.
I was asked why there was not an impact assessment. A full impact assessment was not prepared as it is not required under the Better Regulation Framework, and this will not impact on businesses and stakeholders; in fact it provides DAERA with more effective enforcement against non-compliant operators. There was a lot of discussion around the lack of public consultation. The main reason is that there is no statutory duty to consult, because this makes consequential changes relating to plant health legislation that already applies in Northern Ireland under the Windsor Framework.
I have talked about the engagement with stakeholders leading to the development of the instrument. I mentioned the UK horticultural working group. The noble Baroness, Lady Hoey, said that we had not spoken to any farmers, but that group includes the UFU—the Ulster Farmers Union—and the Horticultural Trades Association. I would also like to assure the noble Lord, Lord Redwood, that we talked to the EU during our discussions about Northern Ireland and the concerns that are raised and the particular ways in which we have to manage Northern Ireland trade. The noble Lord, Lord Frost, may be interested to know that I met a number of farmers today who are very supportive of our SPS negotiations because they see the benefits to trade.
The noble Lord, Lord Frost, and the noble Baroness, Lady Chapman, talked about the necessity of the SI at opposite ends of the scales. The legislation gives DAERA the necessary powers. That is why we need it: we need to protect Northern Ireland’s biosecurity and high plant health status. My noble friend Baroness Ritchie asked about the Murphy report. The Government accepted all the recommendations made by the noble Lord, Lord Murphy, in his independent review of the Windsor Framework. Among other measures, we will sharpen and improve our engagement with a range of stakeholders across different sectors and businesses that implement the Windsor Framework. We will also continue our work to smooth the flow of goods moving from GB to Northern Ireland, including the future SPS agreement.
The noble Baroness, Lady Hoey, mentioned divergence, and I completely appreciate her points in respect of regulatory divergence, and concerns that this could complicate trade. However, the Government’s view is that the Windsor Framework promotes a careful and pragmatic balance between maintaining Northern Ireland’s access to the EU single market and safeguarding its place within the UK internal market. It reduces unnecessary checks on goods, which is why many businesses support this approach.
The noble Baroness, Lady Lawlor, may be interested to know that DAERA officials in Northern Ireland actually drafted the legislation, and have worked to ensure that the instrument is drafted with what is necessary and proportionate for Northern Ireland at its core. That approach reflects the fact that the Windsor Framework obligations arise from an agreement reached by the UK Government and ultimately fall to the UK Government to uphold. It is not appropriate to leave them solely to the Northern Ireland Executive to discharge, which is why we work on direction and control with DAERA.
I return to the specifics of the statutory instrument at hand today. It serves only to update Northern Ireland’s plant health legislation, ensuring that it is clear, operable and accurate. This gives not only clarity to DAERA in the vital roles it delivers in protecting Northern Ireland’s biosecurity, but clarity and stability to Northern Ireland’s stakeholders, ensuring that all parties play their part in doing what is necessary to maintain plant health in Northern Ireland. Making the requirements clear and correct in this instrument will ensure that there are no legislative gaps and no room for confusion in dealing with a complex plant health environment. It thus contributes to safeguarding Northern Ireland’s trade and economic success in the agri-food, horticulture, forestry and woodland sectors. It also, as I have said, ensures that the United Kingdom meets its international obligations under the Windsor Framework, serving to ensure that the high biosecurity standards that Northern Ireland is privileged to observe are continued.
I want to give the noble Lord, Lord Dodds, time to respond, so I will finish there. I will write on the details of the consultation, raised by the noble Lord, Lord Blencathra, and the noble Baroness, Lady Suttie, because there is quite a lot there.
Lord Dodds of Duncairn (DUP)
My Lords, I am grateful to all those who took part in the debate, especially those who have indicated support for my regret amendment. One noble Baroness questioned what is achieved by these debates and who benefits. Well, I suppose when the Government do not bother about a consultation or an impact assessment, the next logical step is to forget about parliamentary debate as well—why bother having any of this?
The purpose of these debates is to bring scrutiny to legislation which would otherwise pass without any examination, made by a foreign political body for the citizens of the UK. That is why it is important—that is why these debates are significant. When people ask why we are not dealing with the practicalities instead of the constitutionalities, the fact is that the practicalities are decided not here, but elsewhere. We cannot debate tumble dryers, as the noble Lord mentioned, or these other issues, because the policy and the legislation are not decided here. We are debating enforcement and other peripheral matters; the substance is being decided elsewhere.
The Minister said that this respects Northern Ireland’s place in the United Kingdom. How does a regulation which states in terms that any reference to the European Union or union territory is to be read so as to include Northern Ireland? That is in black and white in these regulations. That is a scandalous proposition for any Government to put in legislation before this House, and for that reason, I wish to test the opinion of the House and to seek where people stand on issues of such importance.
Armed Forces Bill
(1 day, 7 hours ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Lord De Mauley
Member's explanatory statement
This amendment would ensure non executive board members remain unpaid and therefore genuinely committed to the reserves and cadets.
Lord De Mauley (Con)
My Lords, I will speak to Amendments 48, 50, 51 and 52 in my name.
Amendment 48 is about payment to the new non-executive board members. The members of the RFCAs and all their forebear organisations, commencing with the county territorial associations in 1908, whether acting locally or nationally, have never been paid. The volunteer ethos is of very considerable significance, especially in the world of reserves and cadets. Imagine how it will look to the reservists, who volunteer and put their lives on the line, and to the cadet forces, if the non-executives are to be paid. It is a really bad look and unlikely to attract the best of society who are absolutely committed to the reserves and cadets.
Furthermore, we are living in a time of scarce resources, especially in the field of defence. Yet here is the MoD deliberately adding cost, when it knows there is a ready supply of volunteers who will do, and indeed are doing, this work for no financial reward. One can guess the reaction of those who have shown, over many years, their dedicated and unpaid commitment to the reserves and cadets, to the appointment of paid non-executives with no apparent commitment to the reserves or cadets. It is a mistake to offer money to entice people to apply for these roles.
I turn now to Amendment 50, which seeks to reinstate lords-lieutenant. Lords-lieutenant are the sovereign’s representatives in their respective lieutenancies or counties. It is their foremost duty to uphold the dignity of the Crown. Historically, each lord-lieutenant was responsible for organising the county’s militia. The Territorial and Reserve Forces Act 1907 established county territorial associations, with the lord-lieutenant as the president of the county association. The relationship of lords-lieutenant with the military today is maintained via their presidency of their county RFCAs. All lords-lieutenant are affiliated to one of the 13 regional RFCAs; one of them is president and they rotate the presidency among them.
This is constituted in primary legislation, most recently in Schedule 4 to the Reserve Forces Act 1996. Removing that would remove the final vestiges of a military role and an important part of the symbolic relationship of the lords-lieutenant to the Crown. Service personnel hold the sovereign in the highest regard. To cut off this link between reservists and the Crown seems, to say the least, inappropriate. Lords-lieutenant have evidenced considerable concern over the review’s proposals and the consequences of breaking this important link. Under the Armed Forces Bill, the involvement of the lords-lieutenant, which was established under paragraphs 2, 3 and 4 of Schedule 4 to the Reserve Forces Act 1996, is to be abolished. Paragraph 4(2)(b) of Schedule 6 to this Bill will omit
“section 111 and Schedule 4 (provisions of schemes for the constitution of associations)”.
It has been suggested, as an afterthought, that the continued involvement of the lords-lieutenant might be achieved through secondary legislation or regulation. The involvement of the lords-lieutenant is currently in primary legislation and to relegate it to regulations is nothing short of insulting. It also makes it much easier to amend, change and delete it. If it is proposed to amend the law in a way that affects a class of persons, it is customary to consult them. Even if there is no statutory duty to do so, there have been cases where the courts have held that failure to consult is a reason for upholding judicial review of the Government. I understand that the Association of Lord-Lieutenants has not been consulted. I urge the Minister to consider the amendment carefully.
Amendment 51 addresses the establishment of a national council. The strength of the RFCAs lies in their embeddedness across the regions. This was not accidental; it reflects the original Haldane model from 1908—a decentralised, citizen-based structure designed to mirror national diversity and ensure societal ownership of the territorial Reserve Forces. It has endured and worked for over a century. What is today described as “connecting defence with the nation” is rooted in this model, so it is right that Schedule 6 of the Bill establishes regional councils through paragraph 14 of proposed new Schedule 4A. What is extremely odd, though, is that the drafters have not understood that the regional councils are irrelevant if their views are not brought together and debated centrally, so that a single considered professional message can be delivered to Ministers.
Abolition of the membership, discussed in the debate on the last group, also presents a conundrum as to where the regional council members will be elected from. When we questioned this, we were told, “Don’t worry, it’ll be dealt with in secondary legislation”. This is a quite extraordinary response. Without a national council, the regional councils are completely irrelevant, and without a membership they will be ineffective. This seems to be an attempt to pay lip service to devolution, while in fact cutting it off at the roots. A national council is fundamental to the functioning of the new structure, and the amendment would establish one.
Amendment 52 addresses the external scrutiny team. The Council of Reserve Forces and Cadets Associations external scrutiny team provides an independent annual assessment to Parliament of the state, capabilities and health of the United Kingdom’s Reserve Forces, identified as fundamental to advising Ministers and the single services on the effectiveness of training, fighting efficiency and leadership of the reserve, thus meeting the FR 2020 proposition to reservists. It was established following the Future Reserves 2020 review and operates with statutory duties mandated by the Reserve Forces Act 1996.
The Armed Forces Bill, in paragraph 5(b) of Schedule 6, introduces the concept that the Defence Council can remove responsibility for producing the annual assessment or report and award it to someone else at stroke of a pen. This is not the case in the current legislation. Will the Minister therefore explain what lies behind this change? To whom might the responsibility for producing the independent assessment be transferred? What would be considered appropriate grounds for transferring it? When might this happen? How will Ministers ensure the assessment continues in future to be conducted properly and truly independently of the MoD? I beg to move.
Lord Stirrup (CB)
My Lords, I added my name to these amendments, and I agree with the points that have been so well made by the noble Lord, Lord De Mauley. I will start my brief remarks by making just a couple of general points. First, while there have been some criticisms of the arrangements of reserves and cadet forces, particularly in fairly recent reviews, most of these have been attended to subsequently. The general opinion was that, in the round, the Reserve Forces and cadets operated extremely well and were extremely valuable, and the arrangements that had been set in place had served this country extremely well for a very long time. There is, therefore, a burden of proof on anyone seeking to change the current arrangements to show why any proposed alterations will be better than the arrangements that are already in place. I fear that the Government fail on this count in many instances in this particular part of the Armed Forces Bill.
Secondly, the Minister has previously indicated to the Committee that some of the shortcomings might be attended to in secondary legislation, and the noble Lord, Lord De Mauley, just referred to this. That is all very well, but as everybody in this Chamber knows, we cannot amend secondary legislation; we take it or leave it, and usually, we have to take it. Of course, there must be secondary legislation for the detailed implementation of an Act and the measures in it; but issues of principle should be settled in primary legislation, not in secondary legislation, for some of the reasons that the Lord, Lord De Mauley, just pointed out. Quite a number of the issues covered by the amendments this evening are issues of principle and, therefore, belong in primary legislation, not in secondary legislation.
Earl Howe (Con)
My Lords, again, I should like to say a few words in support of my noble friend Lord De Mauley, and in particular to reinforce everything he said about Amendments 50 and 51. On Amendment 51, I will say no more than that it plays into the issues I was trying to highlight in the previous group—to which the noble and gallant Lord, Lord Stirrup, referred to just now—about the need to retain a representative and coherent voice for the individual RFCA memberships. My noble friend argued the case for a national voluntary body very well, and I do not intend to repeat the arguments he put forward.
I will, however, make a couple of points on Amendment 50. I mentioned earlier that my wife has the honour of being His Majesty’s Lord-Lieutenant of Buckinghamshire. In that role, she is ex officio president of SERFCA. We can easily talk about tradition in the context of supporting the work of the Reserve Forces and cadets. However, while I am a great one for wanting to preserve such traditions, I do not regard tradition on its own as the most important reason for maintaining a statutorily based role for lords-lieutenant in the regional councils.
The main argument is that the involvement of lords-lieutenant as honorary presidents or vice-presidents is highly valued by the RFCAs and by the reservists and cadets. Every year, my wife presents meritorious service awards to reservists in Buckinghamshire who have displayed outstanding achievement and commitment to the volunteer ethos. The significance of these awards to the recipients is without question enhanced by the fact that they are presented by the King’s representative. I would go further by saying that the lord-lieutenant’s role in such presentations plays no small part in maintaining the motivation of our reservists and cadets. Exactly the same point can be made in relation to employer recognition scheme awards and how they are perceived by those in receipt of them. The appointment of lord-lieutenant’s cadets is another example. It is an honour that cadets aspire to.
The Minister has said that there will be nothing to prevent lords-lieutenant fulfilling the same kind of honorary function once the Bill has been enacted. However, I for one do not feel that a loose arrangement of that kind would do justice to the well-defined function that lords-lieutenant fulfil in upholding the dignity of the Crown. It is a function that is born of tradition over many centuries, but, much more importantly, it is one that reflects the direct relationship between the Armed Forces and the Crown. Every time the King’s representative meets a reservist on a public stage to recognise his or her outstanding service, it is a reminder that service men and women across the country owe their loyalty, first and foremost, to the sovereign. It is not satisfactory for a statute of this kind to remain silent on that key constitutional point.
Lord Dannatt (CB)
My Lords, I support Amendment 50 in the name of the noble Lord, Lord De Mauley, and other noble Lords, which seeks to ensure that lords-lieutenants’ involvement as presidents of regional RFCA councils remains enshrined in primary legislation. I support the comments just made by the noble Earl, Lord Howe.
I should declare two interests. First, I was a deputy lieutenant for Greater London and for Norfolk for over 10 years, supporting the lords-lieutenant in those counties. Secondly, my wife is the current Lord-Lieutenant of Norfolk and president of the East Anglia Reserve Forces and Cadets Association.
I do not wish to repeat the arguments already made in support of Amendment 50 nor dwell on the historic links, as important as they are, between the Crown and the Reserve Forces and cadets in each county through the role of the lord-lieutenant, but instead to emphasise the leadership role that the lords-lieutenant play in their respective counties—the noble Earl, Lord Howe, has just referred to that. In Norfolk recently, as in many other parts of the country, we had a lot of fires during the drought period. Norfolk was particularly affected by that. My wife required a number of her deputy lieutenants to visit all the volunteer fire stations with letters of thanks from the county on behalf of His Majesty for their service. Therefore, it is not just Reserve Forces and cadets but the emergency services in the round.
This role is currently enshrined in primary legislation. That is where it should remain. Reducing it to secondary legislation seems unnecessary. As the noble Lord, Lord De Mauley, said, it is perhaps even insulting to the Crown and to lords-lieutenant. I understand that, perhaps not surprisingly, neither Buckingham Palace nor, more worryingly, the Association of Lord-Lieutenants have been formally consulted on this proposed change. Perhaps the Minister could comment on that.
At a time of increased threats to our national security, every effort should be made to promote our Reserve Forces and those, such as lords-lieutenant, who support them. That support is, of course, freely given and at no cost to the nation. Moreover, our cadet forces are the largest youth movement in the country and provide great character training and personal development for those involved. That many cadets go on to join our Regular or Reserve Forces is a most welcome by-product, and, as has already been mentioned, initiatives such as the annual appointment of the lord-lieutenant’s cadet is a much-cherished accolade in most counties and an incentive to excellence.
The Bill as it stands serves to weaken the hugely important links between the Crown, through His Majesty’s lords-lieutenants, and communities throughout the nation at a time of great insecurity. I strongly urge His Majesty’s Government to think again. I firmly support Amendment 50.
Lord Harlech (Con)
My Lords, I too support the amendments in the name of my noble friend Lord De Mauley. I say from the outset that I do not oppose reform in principle and I did not put my name to the notices to oppose Clause 38 or Schedule 6 standing part, which the Committee discussed earlier. However, there are two further things in this reorganisation that we must not lose, as other noble Lords have already outlined. I am not persuaded that the Bill as drafted protects either of them.
The first is independent reporting, which is the subject of Amendment 52. The associations provide annual advice to defence by two formal means. One of them is the external scrutiny team report on the state of the Reserve Forces. That report is at present the only genuinely independent annual assessment of the reserves that this House receives. If responsibility for it passes to a body sponsored by, funded by and accountable to the Ministry of Defence, we do not merely change who writes it; we lose the thing that made it worth reading. We would be losing it in the very Bill that increases our reliance on the reserves. A department expanding its call on a force that it also grades is not a comfortable arrangement and Parliament will need that independent view more in the coming decade, not less.
The second is the standing of the regional structure, which Amendments 50 and 51 address. These associations were established in 1908 precisely to root the reserve in the county. As other noble Lords have said, the lords-lieutenant have presided over them ever since.
Amendment 51 would provide a national council of the regional chairs, so that the volunteer structure has a collective voice rather than 13 separate ones. This is not just sentiment and ceremony, important though they are; the office of lord-lieutenant is what gives the reserve unit in a market town its standing within the county, and it costs the public purse nothing at all. My concern is that efficiency reforms have a habit of removing precisely the parts that look inefficient on a spreadsheet because they are voluntary and unpaid.
That is also the point behind Amendment 48. Non-executive members who serve without payment serve because they care about the reserves and cadets. I would be sorry to see that ethos priced.
I recognise the governance case that the Ministry of Defence has made, and everything in this group and the previous one is offered as an attempt to improve the new body rather than obstruct it. I ask the Minister to tell the Committee specifically what safeguards will preserve the independence of the external scrutiny team report and how the role of the lords-lieutenant will be maintained under the new body. If those assurances can be given from the Dispatch Box, a good deal of the anxiety expressed in these two groups of amendments would fall away.
Lord Empey (UUP)
I am pleased to add my name to this suite of amendments that cover a broad area. On Amendment 48, I am sure that any of us who have served as Ministers or council leaders will have appointed loads of people to different bodies over the years. One thing I have noticed in recent times is that a cohort has emerged of people who apply for a lot of different bodies, whether or not they have qualifications for or experience in any of them.
I understand that people are not necessarily expected to do things for nothing, or to be paying out money, and I would be more than content for people to get perfectly fair and reasonable expenses, whether that is for travel or whatever is required. I have no issue with that, but once you move from that level to somebody who, perhaps, almost has a career in sitting on public bodies, that changes the entire ethos and atmosphere around the establishment of these boards.
Therefore, I have not been convinced by what is in the Bill as drafted. Unless there is a complete absence of people applying, or unless there is an obvious shortage of people who are willing to sit on these boards, I cannot understand why we would want to engage in expense to do this. Noble and gallant Lords have far more experience than I have, but if you have an organisation that is working and staffed, what incentive are you giving those who do the grunt work on the ground if board members are being paid? I just think it upsets the balance.
The noble and gallant Lord, Lord Stirrup, mentioned national resilience and, of course, the Reserve Forces—whether it is a weather catastrophe or something else—will inevitably be part of that. We all know that the Minister could sell snow to the Eskimos if he was put to it, but we have a situation where in the press, even yesterday, there were reports of our training budgets for soldiers apparently being reduced for public expenditure reasons.
We can imagine how, if you were sitting in the Kremlin, you would be looking at that. It sounds so preposterous. The Minister’s right honourable colleague in the other place, the Environment Secretary, is urging us all to stock up on baked beans and candles and to be prepared for an emergency, and in the same breath we are apparently reducing basic training. You are preparing the country for an emergency, urging people to stock up on basics—what is the connection between these two things? I cannot make it out; it seems completely counterintuitive. The Minister knows that I tried to get a PNQ yesterday on that subject but the Falklands won out, quite properly. Still, it is a serious question.
The rhetoric coming from the Government, and from successive Prime Ministers, is that the defence of the nation is the number one priority of government. I do not necessarily want to bring this into it but I gently remind the Minister, if we are trying to save £30 million on training, that we are not trying to save any of the billions that we are spending on the asylum industry, which is just making a mockery of our country. We have to get serious here about what our priorities as a nation really are. This is sending out the wrong message.
With regard to the lords-lieutenant, I remember back home seeing our lord-lieutenant with a cadet, and the cadet was as proud as punch. This was a wonderful opportunity for a young person to take that role. You could see the enthusiasm; that young person was committed to serving as a cadet and it gave that person a wonderful opportunity of a career path moving forward. We would potentially take that away—for what? I do not know.
I ask the Minister seriously to consider that. I hope that, between now and Report, he will talk about these things with the noble Lord, Lord De Mauley, and colleagues. I am sure that his door will be open. It would be most helpful to the House if that were to happen. I doubt that there is a huge amount of difference between all of us. We all want to see the same thing. I accept that you cannot go for ever without looking at change and so on; it is part of life.
On the issue of the report, we all know how local government works. If you are doing an in-house report, people will say to you in the corridor, “Maybe you should be a wee bit careful about that”, or, “Go a bit easier”. We want an accurate, independent report without any strings attached and without any ability to be pressurised financially or in any other way. I would have thought that that is fairly basic. We are not asking for anything that is not sensible or reasonable. This suite of amendments goes a long way to correcting some of the flaws. The drafting may need to be changed—fair enough—but I hope that, in the discussions between now and Report, some of these anomalies can be resolved.
Baroness Smith of Newnham (LD)
My Lords, I will speak to the amendments to which I have attached my name. As the noble Lord, Lord Empey, pointed out, this is a reasonable set of amendments. Again, they speak to issues around the Reserve Forces’ and Cadets’ Associations; in many ways, they could have been part of a previous group because they are trying to deal with issues associated with Clause 38.
We have already heard articulately this evening that, at the moment, we have reserves, cadet forces and councils that are not paid. Why have His Majesty’s Government thought it necessary or appropriate to bring forward the suggestion of non-executive directors being paid and even, potentially, having pensionable incomes? Is there a reason for it that is eluding the Chamber? At the moment, why that would be necessary or desirable does not seem clear.
On the role of the lords-lieutenant, as other noble Lords have pointed out, it seems wholly inappropriate that that should be consigned to secondary legislation. If it is the case that the Palace and the Association of Lord-Lieutenants have not been consulted, what does the Minister propose to do to rectify that? Pending any consultation, would it not be appropriate to consider removing those parts of the Bill?
On Amendment 52, as the noble Lord, Lord Empey, just pointed out, if we want an independent report, we need clarity that it is going to be produced by people independent of the MoD so that they cannot be subject to any sort of informal pressure to produce a report containing what the MoD or Ministers want to hear. This is a suite of reasonable amendments. Can the Minister give us some suggestion of areas in which the Government might be willing to move?
The Earl of Minto (Con)
My Lords, much has been said by noble Lords, noble and gallant Lords, me and my noble friend Lord De Mauley about the importance of the continuation of the voluntary nature of the RFCAs. This is not because I wish to sound like a stuck record; it is out of a genuine desire to preserve all that has made the reserves and cadets so successful.
Of those factors, the voluntary ethos is paramount, as the noble Lord, Lord Empey, expressed so clearly. These are organisations that, despite being established by statute, do not operate as traditional government bodies. They are more akin to civil society organisations; that is their brilliance. The voluntary nature of the membership brings together such a wide array of people, from ex-regulars who do not want to give up on their military life to those who want to give back to society and those who simply want to help young people step up and get on in life. They are not forced into this. It is not their career. They do it because they want to. This is how we attract the best and most dedicated people.
The new structure envisaged by the Government, however, would create a professional board of independent people with, potentially, no relevant experience, as several noble Lords have mentioned, or links to either the cadets or the reserves. This is why I support my noble friend’s Amendments 48 and 51 to prevent non-executive board members being paid and to enshrine a national voluntary body in statute. Only then can we ensure that those who are involved with the RFCAs remain genuinely committed to, and passionate about, the cadets and reserves whom they put themselves forward to serve.
I have spoken already about my desire to conserve the traditional link to the Crown through the involvement of the lieutenancy in the associations. The severance of that link would be a deeply regrettable consequence of this policy and one that was entirely unnecessary. It is for that reason that I strongly support Amendment 50, which would, in essence, preserve an element of the status quo by ensuring that the lords-lieutenant were appointed as presidents of the regional councils. This would not cost the Ministry of Defence a penny or interfere with its bureaucratic restructuring, but it would help to preserve those traditions that have kept our nation going for so long and which might just make our lives a little more enjoyable.
The Minister of State, Ministry of Defence (Lord Coaker) (Lab)
I thank the noble Lord, Lord De Mauley, for the amendments whose presentation to us he led on.
I say to the noble Lord, Lord Empey, as I have said on a number of occasions both to the noble Lord, Lord De Mauley, and to the Committee as a whole, that I will continue to have conversations between now and Report about what we may or may not do with some of the amendments before us. That commitment has already been made. On the points that he made about spending, I am perfectly willing to answer another Private Notice Question or whatever if he is successful at another time, but perhaps not this evening.
I thank the noble Lord, Lord De Mauley, the noble Earl, Lord Minto, and the noble Baroness, Lady Goldie, for their view that the non-executive members of the new RFCA board should be unpaid. That view assumes that unpaid service better demonstrates commitment. I do not accept that. Commitment is not determined by whether a member is remunerated. There is no evidence, in my view, that remuneration reduces dedication to the Reserve Forces or cadet organisations. I take the point that has been made about their voluntary ethos, but, in terms of the board’s membership—
Lord De Mauley (Con)
I suggest, in answer to that point from the Minister, that what it does is call into question their independence from their MoD masters.
Lord Coaker (Lab)
That might be a matter for us to consider in the conversation that we have. I do not want to go on for too long, but I understand many of the comments that different people have made this evening; I agree with some of them to a larger or lesser extent. I have never thought, generally speaking, that, in certain circumstances, unpaid work is the way forward. This is one of those situations, in respect of the board: I do not think it undermines the voluntary ethos as a whole because, here, it is related to board membership. In that circumstance, it is perfectly reasonable, given the new board that we wish to set up, that the position should be remunerated, although I accept the point that, in the broader establishment of lords-lieutenant and others across the wider—
Lord Stirrup (CB)
The Minister has said that he does not believe that having paid non-executive directors will lessen their commitment. That is not the question, though. Surely the question is: does having unpaid representatives lessen their commitment? It does not. So why do we want to change it?
Lord Coaker (Lab)
That is the difference. I understand the whole point about the voluntary ethos generally across the reserves and cadet associations; I absolutely accept that. I am saying, with respect to the board members, that, where you are creating a national board that wants to take on certain statutory functions, that position should be remunerated. That is the difference between us. In the end, personally, I think that that is not inconsistent with the belief that you can have a voluntary ethos.
Look—we have voluntary organisations all over the country that display a voluntary ethos of which we are all proud. At the top of those organisations are people, including board members, who are remunerated. We would not expect them to be able to do that job of work without that remuneration. That is the principle and the point that I am making.
We are committed to equality of opportunity and to breaking down barriers that prevent people contributing to public life, so we want public appointments to be open to all those who have the skills, experience and commitment, not only to those with the financial means to do so without compensation. The Government’s objective is to attract the best candidates from the widest possible range of backgrounds, and retaining the option to remunerate supports that aim. I hope that explains the Government’s position while accepting, again, that many noble Lords will disagree with it. That is my point about payments for the strategic oversight board while respecting the voluntary ethos more widely within the reserves and cadets associations.
Lord De Mauley (Con)
My Lords, I thank those noble Lords who have spoken in support of the amendments. I also thank the Minister. He said that voluntary bodies all over the country have paid people at their heads. Of course they do. I am a trustee or president of, I think, seven charities. Outside the Government, those paid are universally the executives, not the non-executives.
My concern on the point about the amendability of regulations is different from the one that the Minister addressed. My concern is that the Government can amend them—not that we cannot—and that they can do so much more easily than with primary legislation. I am sure we will return to these issues on Report, but for this evening, I beg leave to withdraw my amendment.
Baroness Brinton
“Visiting forces agreements(1) The Secretary of State must publish in unredacted form any part of a treaty, memorandum of understanding or agreement between the United Kingdom and any sending country relating to visiting forces containing a decision about a jurisdictional question, including in relation to the Visiting Forces Act 1952.(2) Alongside the material published under subsection (1), the Secretary of State must publish a document setting out the reasons behind any decision about a jurisdictional question contained in the relevant treaty, memorandum of understanding or agreement.”Member’s explanatory statement
This amendment probes the nature of any agreements reached between the UK and a sending country in relation to jurisdiction over visiting forces, and requires the Secretary of State to set out the reasons behind such a decision.
Baroness Brinton (LD)
My Lords, my noble friend Lord Thomas of Gresford cannot be in his place today as he is recovering at home after an operation. We hope that he will be back with us by Report. I have signed his amendment and I will speak to it. I have tabled Amendments 54 and 68, and I have also signed Amendment 55 from the noble Baroness, Lady Bennett. To protect their identities, the victims’ names that I will use are not their own.
I am sure noble Lords will recall the disgraceful case of US spy Anne Sacoolas, who in 2019 was driving on the wrong side of the road in Northamptonshire when she hit and killed Harry Dunn, aged 19. The US authorities then managed to spirit her out of the country to evade justice. We then became aware that the US authorities do not respect our policing and justice systems. She was eventually brought to justice, but only because of Harry’s family’s campaign and then public and governmental pressure.
In recent months, following the brave disclosures made by a victim of rape and sexual assault by a US serviceman on UK soil—not on his USAF base—many more shocking cases have emerged. At Second Reading, my noble friend Lord Thomas and I spoke of this case. In 2023, Jacob Wulfson, a US Air Force pilot, sexually attacked a Cambridge resident in his own Cambridge property, so not at the Lakenheath base where he worked. His victim, whom I have talked to, was very clear that she was alleging rape and sexual assault.
Under the terms of the Visiting Forces Act 1952, it is clear that, where an offence by an off-duty American serviceman against a British civilian takes place off an American base, the investigation and any subsequent court case should usually be in the UK Crown Court; the rest of the Bill goes on to talk about exceptions to that. What happened in this case was that the Cambridgeshire police waived jurisdiction—and, as I understand it, not at a senior level. The trial took place via a court martial before a US military judge and a panel at the Lakenheath base. All the UK protections that are offered to victims of alleged rape and serious sexual attacks disappeared at that moment. Worse, because the victim is not American, she was not entitled to the minimal victim support that is available to US citizens in US courts, as compared to the victim’s rights here in the UK. Worse still, since the victim was brave enough to talk to the Guardian newspaper, many more similar cases have been reported. So this is now, we understand, not a rare occurrence.
I can see why our beleaguered police forces would welcome the removal of cases from their very heavy workloads, but these decisions are not being made at the right level and it is not clear at all that the CPS is involved. I was astonished to discover that many of the specific agreements between us and other countries on such justice systems are made as secret and confidential between the UK and the country. We in Parliament, the press or even the victims cannot find out the details.
The Guardian exposed another case in July. Rebecca fled the house of an American airman in Suffolk, going to the police to report that he had raped and violently attacked her. She saw specialist health and police staff. They looked after her. She was given an ISVA—an independent sexual violence adviser—to support her in the legal UK process. Then, the USAF at RAF Lakenheath did exactly the same as in the previous case I described and persuaded Suffolk Police to transfer the case to it because justice would be quicker. Then Emily, the wife of the accused—Tyrion Davis—also came forward to say that she had been raped and sexually assaulted by him on a number of occasions. At the subsequent Lakenheath trial, he was convicted of sexually assaulting both Rebecca and Emily. On discovering that the jury panel at Lakenheath would be composed of Davis’s military peers from a small base, by our jury pool for civil court cases standards, Rebecca said:
“It’s like, if I did something wrong outside of work, having all of my nursing colleagues being on the jury … It doesn’t make sense”.
In another case, Hannes Marschalek boasted to his friends that he had exposed himself from his house in the small town of Littleport, near RAF Lakenheath, to a 16 year-old girl and four young women as they went past. When asked why US Air Force authorities had taken over the case, a spokesperson said that they had
“negotiated jurisdiction over this case with the local police using all available facts at the time”.
The accused was able to negotiate a plea bargain in his case and was convicted on a much lesser charge. He later won an appeal in a US military court this year, which quashed his conviction on technical grounds even though the court papers showed that he had texted two friends to say he had
“definitely just flashed a couple [of] ladies walking from the train, LOL”
and later texted:
“I took all of my clothes off when I walked in. I went to go open a window and I was standing right in front of it when they walked by”.
He also admitted in court that he had done this twice before. The US military court sentenced him to two months. If it had been in a UK court, he would probably have received two years. Then, astonishingly, a US military appeal court dismissed the guilty verdict against him, ruling that prosecutors had made an error by charging him under the wrong offence; I suspect that they realised that it should have been a more serious one.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Baroness, Lady Brinton, and to thank her for supporting my Amendment 55. I am going to concentrate on that amendment, because this is a carefully worked attempt to deal with an issue that the noble Baroness has already clearly outlined—criminal behaviour by US service people in the UK that is not being appropriately dealt with. There are more than 12,000 US military personnel stationed in the United Kingdom, operating from at least 15 bases and facilities. These are people living, working and socialising in communities across the UK. They will and do commit offences.
My amendment is focused particularly on sexual offences, but of course the noble Baroness referred to the disgraceful, awful death of Harry Dunn, and the fact that his family had to campaign against the entire US Government to try to achieve some kind of justice. However, that is not the focus of my amendment. I also note that, given the current state of the US today, these bases are coming under increasing public attention. However, that is not the subject of this amendment either.
I spoke on Second Reading and said that I was going to table this amendment. In doing so, I have to thank the Guardian journalists—and, indeed, editors—who have put a great deal of resources into uncovering this situation. I should perhaps declare my former position as editor of the Guardian Weekly, but I am not influenced by that. I also want to thank the Centre for Military Justice for its advice and assistance in developing the amendment that I put before your Lordships’ Committee today. The noble Baroness, Lady Brinton, chose not to name any of the people concerned, but—given that she bravely chose to waive her own anonymity and speak to the Guardian—I am going to put forward the name of Sarah Steele, because she wanted to speak publicly about what she went through.
Ms Steele went through an ordeal that was a result of the failure of UK processes. This was an incident, an attack, that took place on UK soil away from a US military base and while the service member was off duty. Yet the US military police quickly took over the investigation and the whole proceeding subsequently took place through the US military justice system, as the noble Baroness said. Indeed, it was held at RAF Lakenheath, the largest US military base in the UK. Ms Steele described this as “confronting … frustrating and distressing”. The procedures she found were “archaic and bizarre”. Think about what she experienced: the procedure was held before a military courtroom, and at points during her testimony fighter jets were taking off just a few hundred metres from where she was speaking. She described the experience as feeling as if she was in an alternative world.
In Ms Steele’s case the US court martial ultimately convicted the defendant of strangling an intimate partner but acquitted him of the sexual assault charge. He received a sentence of six months in a corrections facility, and the conviction was subject to automatic appeal. You might have views about that—I certainly do—but that is not directly what this amendment is about.
As the noble Baroness said, this is one case on which we have a great deal of detail. I will not go through the others she has already outlined. But I will just mention one of the cases in which the victim recounted that the court martial process took two years, she was forced to drop out of a midwifery degree as a result, and she had to give evidence in the same room as the man she had accused, without the protections that victims would normally have in a UK court.
What is the current legal position here? How have we got to this point? My understanding is that the NATO Status of Forces Agreement provides a framework for determining which country has the primary right to exercise jurisdiction. Where the offence is punishable under the laws of both countries, the sending state has the primary right in certain specified circumstances. These include where the offence is solely against the security or property of the sending state, where it is solely against another member of the force or their civilian component or dependant, or where it arises out of an act done in performance of official duty.
However, where an alleged sexual offence is committed against a civilian who has no connection with the visiting force, and the alleged offence does not arise out of an act done in the performance of official duty, the receiving state, i.e. the UK, has the primary right and jurisdiction. So, the question is not about that; the question is who decides that the UK does not use that jurisdiction, which is where this amendment comes in.
In the UK, we have no process for how the decision should be made, what criteria should apply or what role the victim should have; nor, according to the Centre for Military Justice, is there an equivalent statutory framework governing the transfer of jurisdiction to a foreign military justice system. I want to highlight that we have recognised within our own justice arrangements that decisions about serious sexual offences require appropriate safeguards. Where there is a question of whether a serious offence should be dealt with by a civilian or service justice within the UK, there is now a protocol between the DPP and the Director of Service Prosecutions. It provides for senior level consideration of jurisdiction in rape and sexual assault cases, ordinarily treats offences against civilians as matters for the civilian courts, and provides for the victim’s views to be sought. But there is no equivalent safeguard where a foreign military person is involved.
This amendment fixes that situation. It adds a new Section 3A to the Visiting Forces Act 1952, which would create a clear presumption that where a member of the visiting forces is accused of a qualifying sexual offence against someone with no connection to that force, the case should be investigated by UK police and heard in a UK court. It provides for exceptions—though I find it hard to imagine where there would be exceptions, but that is the way the law works. It also provides what specific matters the prosecutor should consider:
“The gravity of the alleged offence … the connection of the alleged victim and of the offence with the United Kingdom … the capacity of the sending country’s arrangements”—
that is particularly important, given what we have heard about all of this—
“including its treatment of victims … any matters relied on in support of a request for a waiver, and … any representations … made … by the alleged victim”.
Furthermore,
“the decision and the reasons for it”
would have to be recorded
“in writing and, so far as reasonably practicable”,
notified to the victim. It would make a huge difference to all the cases we have been talking about tonight, and it would mean that a person who has already taken the difficult step of reporting an alleged sexual offence would not have to adjust to a justice system they never expected to encounter.
Here, I will put a direct question to the Minister. In the current arrangements, there is an exception to question of duty offences. I hope the Minister agrees with me that a qualifying sexual offence would never be capable of being characterised as arising out of and in the course of official military duty. This and the previous Government have had a very good record of addressing issues of sexual violence in conflict, and it is important that that is made clear, perhaps in writing if not now.
I have another question for the Minister. As a starting point, surely the argument has been made, but do the Government accept that there is currently a gap in the process for deciding whether the United Kingdom should relinquish its primary jurisdiction in serious sexual offence cases involving visiting forces?
This amendment is ultimately about confidence in our justice system and the public’s trust in having visiting military forces on our soil. In closing, I stress that this is not an issue I will allow to slip lightly. We owe it to all the victims we have already heard from—and others we do not know about, but who almost certainly exist—that this be dealt with in the Bill. This is clearly the Bill to deal with this situation now that it has come to light. We will discuss the details and the ways in which we might combine the amendments in this group, or look at how they fit in detail, but something has to be done about this utterly unacceptable current situation.
Baroness Smith of Newnham (LD)
My Lords, I do not think I need to wind up from these Benches. My noble friend Lady Brinton has said everything that needs to be said.
The Earl of Minto (Con)
My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, and to the noble Baronesses, Lady Brinton and Lady Bennett of Manor Castle, for tabling these amendments. This group gives us an opportunity to discuss a complex but very important area of the law. I am also grateful to the noble Baroness, Lady Brinton, for standing in for the noble Lord, Lord Thomas of Gresford. I wish him a very speedy recovery. He is a nice guy.
The Visiting Forces Act 1952 establishes the legal framework that governs the relationship between the United Kingdom and those states that send members of their armed forces to our territory. The issue sits at the very intersection of national sovereignty, the rights of victims and this country’s long-standing alliance relationships. It is right that this House probes how this balance is struck.
I turn first to Amendment 53, tabled by the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Brinton. It would require publication, in unredacted form, of any part of a visiting force’s agreement touching on jurisdiction, together with the reasoning behind it. I merely observe that a statutory duty to publish in unredacted form is a very blunt instrument to apply to what are, in many cases, live diplomatic and security arrangements with partner nations. It may be useful if the Minister could explain what mechanisms already exist for Parliament to scrutinise these matters without compelling wholesale publication.
Regardless of the amendment’s fate, I hope the Minister will take away from this debate that, whatever one’s view on publication, in any case where a jurisdictional dispute arises between the United Kingdom and a sending state it must be beyond doubt exactly how that dispute is to be resolved, who takes the decision and on what criteria. Ambiguity at that point serves no one.
On Amendment 55, the noble Baroness, Lady Bennett of Manor Castle, is right to press the Government on how such cases are handled. Where I part company with her is on the question of necessity, because the outcome she seeks already exists in law. The Visiting Forces Act 1952 does not hand jurisdiction wholesale to sending states. Section 3 of the Act states that the sending state’s military authorities have the primary right of jurisdiction only where the offence arises out of official duty, is against another member of the visiting force or corresponding civilian component, or is against property belonging to the force, its members or dependants. In any case where a member of a visiting force commits a criminal offence against a dependent British citizen, the jurisdiction lies with British authorities. Thus, such an offence would be investigated by the territorial police force for the area and prosecuted by the Crown Prosecution Service, and the case would be heard in a British court. This is the case for all offences, however serious, including sexual offences. This position is unambiguously clarified in the Crown Prosecution Service’s published guidance.
Furthermore, where the NATO status of forces agreement is also engaged the position is, if anything, even stronger. The CPS guidance notes that, taken together with the 1951 NATO agreement, this produces dual jurisdiction in any case where the victim is a dependant who is either a UK national or habitually resident here. A dependant, rather than a fellow service member, is precisely the category of victim that I believe the noble Baroness’s amendment is designed to protect.
Where cases have an international dimension going wider than the visiting forces framework—as, for example, in dealings with the United States—the mechanism for resolving concurrent jurisdiction is also already in place. The guidance governing such cases between our two countries commits prosecutors to weighing each case on its individual merits, guided throughout by a commitment to fairness and objectivity.
I will not detain the Committee further on the remaining amendment in this group concerning the list of countries in Section 1(1)(a) of the 1952 Act, save to say that I believe that the United States is counted as a visiting force. The Visiting Forces (Designation) Order 1954 exercises the power in Section 1(2) of the 1952 Act to designate Belgium, France, the Netherlands, Norway and the United States of America as visiting forces. The US is also covered under the NATO SOFA. I would be very grateful if the Minister could confirm whether this interpretation is correct.
Lord Coaker (Lab)
My Lords, I thank the noble Baronesses, Lady Brinton and Bennett, and the noble Earl, Lord Minto, for their important contributions on an incredibly important area of law, in relation to which a number of matters have been raised, recently and not so recently, that cause us all concern. For legal reasons, I will read verbatim the information I have before me; this is such an important area, and I do not want to be misquoted as that would not help the various people we wish to see being helped. Noble Lords will notice that when I get towards the end of my remarks, I will make one or two important comments that I hope will offer some, if not total, reassurance to your Lordships and to those who read our proceedings about how we are trying to move forward.
The legal framework governing the allocation of jurisdiction between the UK and a visiting force is set out in UK domestic law through Section 3 of the Visiting Forces Act 1952, with further reference to Section 12. This framework applies both to states that are party to the NATO status of forces agreement and to non-NATO states that have bilateral arrangements with the UK and are designated under Section 1 of the Visiting Forces Act 1952. In all such cases, visiting forces remain subject to the provisions of the Act. Any other agreements or arrangements are modelled on the provisions of the NATO status of forces agreement and reflect the provisions of the Visiting Forces Act 1952. The Visiting Forces Act is already publicly available and the principles within it are applied by UK prosecuting authorities on a case-by-case basis when questions of jurisdiction occur. I hope that provides some reassurance to the noble Baroness, Lady Brinton, as well as the noble Lord, Lord Thomas.
I thank the noble Baroness, Lady Brinton, for her views on the Bill and acknowledge her concerns, and those of others, about the Visiting Forces Act 1952 and why the United States is not explicitly referenced as being subject to the legislation. I reassure her and others that the United States is already included as subject to the Visiting Forces Act by virtue of Section (1)(1)(b). This specifically explains that, along with the countries individually named in Section 1(1)(a), a country will be subject to the Act’s provisions if it is designated by Order in Council. The United States, along with Belgium, France, the Netherlands and Norway, were included in the Visiting Forces (Designation) Order 1954, Statutory Instrument 634/1954, and so fall under the Visiting Forces Act 1952.
On Amendment 55, I thank the noble Baronesses, Lady Bennett and Lady Brinton, for their views on the Bill and acknowledge their interest in the Visiting Forces Act 1952 and the proposal to restrict and regulate how requests for transferring jurisdiction are determined in cases involving qualifying sexual offences. I begin by reassuring them that the Government are fully committed to ensuring that alleged sexual offences perpetrated by visiting forces are treated with the utmost seriousness and that jurisdiction for such cases is decided in accordance with the extant legislation.
I am aware of recent cases highlighted in the media, most notably the case concerning US airman Jacob Wulfson, which raised concerns regarding the extent to which the right decisions regarding jurisdiction for prosecution had been made. Section 3 of the Visiting Forces Act 1952 already sets out the limited circumstances in which jurisdictions should be transferred from the UK to a visiting force. The decisions on whether or not to do so are made independently by the relevant police force or the Crown Prosecution Service in response to any request from a visiting force. The Government are committed to identifying and applying the lessons arising from the issues raised in these cases. This includes the application and operation of jurisdictional arrangements under the Visiting Forces Act 1952 and how these are implemented across the criminal justice system.
In particular, I welcome the action taken by the chair of the National Police Chiefs’ Council, who has written to all chief constables in England and Wales to remind forces of their responsibilities under the Visiting Forces Act 1952. I understand that the National Police Chiefs’ Council is also considering whether further formal guidance for police forces is required to reinforce the principles of the existing legislation.
As I said, I am deeply concerned by the reports of how jurisdiction was handled in the Wulfson case. Victims of such serious offences need to be supported, and their cases treated with the seriousness, dignity and compassion that they deserve. This includes ensuring that jurisdiction for alleged offences is only ceded to a visiting force where absolutely appropriate under UK law and the Crown Prosecution Service’s guidance. I have directed my officials to work with the Home Office, the National Police Chiefs’ Council and any other government departments as required to ensure that the Ministry of Defence is assisting in that outcome. I hope that provides some assurance to the noble Baronesses, Lady Brinton and Lady Bennett, and the noble Earl, Lord Minto. I have no doubt that these discussions will continue, but we understand the seriousness of the topics that have been raised and the need for us to consider how we can deal with this.
Baroness Brinton (LD)
I wonder if I could ask a brief question, because it is relevant to my response to the Minister’s contribution. Is there currently an agreement between the UK and the USA, as is described in the Visiting Forces Act and referred to elsewhere? Other countries have it. Is there already such an agreement about protocols for the sort of case we have been discussing this evening, along with other details that are not relevant? I will leave my question at that.
Lord Coaker (Lab)
I am concerned about misinforming your Lordships on legal matters. When I take legal advice, I will write as to the correct answer to that. I will copy in other Members of your Lordships’ House and place a copy in the Library.
Baroness Bennett of Manor Castle (GP)
I understand if the Minister will want to write in answer to this question as well. He referred to the National Police Chiefs’ Council considering further formal guidance and writing to forces. What will that be based on? What is the legal basis of this? Where is it coming from? Surely, it is a matter for Parliament and not just for the police chiefs to work out the way forward. Where is the framework coming from?
Lord Coaker (Lab)
I am not sure if I totally understand what the noble Baroness means. I thought it was a pretty important step that the National Police Chiefs’ Council was taking in looking at whether the current guidance was appropriate or further guidance was needed to ensure that some of the issues that have arisen and some of the concerns that have been rightly expressed were avoided in the future. That is the normal practice of the National Police Chiefs’ Council on a whole range of very difficult issues. It reflects on the law and the guidance with respect to the law when considering whether any of its guidance needs to be changed or adapted. That is my understanding of the guidance to be issued to the various police forces: it is to ensure that questions of jurisdiction are properly answered within the context of the law as it stands.
Baroness Brinton (LD)
My Lords, I thank everyone who spoke in this debate. Earlier, I should also have thanked the Centre for Military Justice, the Guardian and the women I spoke to. I was glad to hear the speech by the noble Baroness, Lady Bennett. Unsurprisingly, we agree almost entirely on the problems. I also agree with her that we will not let this go, whether it goes beyond the passage of this Bill or not. I am grateful too, to the noble Earl, Lord Minto, for his comments. I am particularly pleased that he agreed with the noble Baroness, Lady Bennett, and me that it is clear that sexual attacks on UK soil are not part of Section 3 of the Visiting Forces Act, where the exceptions might be. That is extremely helpful and I am very grateful to him.
I particularly want to thank the Minister for his extremely well-constructed and considered speech. What is really important is that we find a solution. I agree with the Minister that there is provision in the Visiting Forces Act, so his exposition of that was really important. Our problem, as a Parliament, is that we need to resolve the problem that the victims faced. That is why I am very grateful for his comments about the Police Chiefs’ Council and the guidance it is looking at offering. The one organisation that does not seemed to have a role in any of this at the moment is the CPS. It clearly needs to, as there are issues other than taking the statement of the victim, making sure they seek medical help, and all the other issues I outlined in that specific case. There is also the question of charging levels, which would then affect what happens and whether there might be a reason why the case should be considered elsewhere.
I will conclude, because these were only probing amendments on my behalf and that of the noble Lord, Lord Thomas. I wonder whether it would be helpful to have a meeting between Committee and Report with the Minister, somebody from the Home Office who can talk about the policing side and the Police Chiefs’ Council, and somebody from the CPS. What both the noble Baroness, Lady Bennett, and I are trying to achieve is a formal framework that means that one police force cannot do something different from another, and that, as the decision goes up the CPS, the more serious it gets, it should not necessarily stand with a junior prosecutor at the CPS in a particular area. That is how it becomes easy to say, “Yes, okay, take over this case because it will decrease our workload”. That is clearly the argument the US Air Force at Lakenheath were using. On that basis, and given the hour and the number of groups we still have to go through, I will withdraw my amendment.
“(8) After section 230(1) of the Merchant Shipping Act 1995 (salvage claims against the Crown and Crown rights of salvage and regulation thereof) insert—“(1A) Subsection (1) does not apply to any vessel, including Royal Fleet Auxiliary vessels, cargo or equipment which has sunk or been stranded while in military service.””Member's explanatory statement
This amendment amends section 230 of the Merchant Shipping Act 1995, so that subsection (1) does not apply to military or Royal Auxiliary Fleet vessels.
Lord Parkinson of Whitley Bay (Con)
My Lords, Amendment 55A stands in my name. It is rather a late amendment, and this is the first time I have spoken on the Bill. I apologise to the noble Lord, Lord Dannatt, for inadvertently gazumping his amendment on Clause 48 standing part of the Bill. I look forward to hearing his contribution on that in a moment. I read with interest his comments on that issue at Second Reading, and I am glad to have the chance to take part in this debate on that issue as well, since I do believe that Clause 48 should be in this Bill.
At Second Reading the noble Lord, Lord Dannatt, mentioned the “Gloucester”—not HMS “Gloucester”, for she was built and launched in that dark period of our history when we temporarily cast aside the monarchy. The “Gloucester” was lost off the Norfolk coast on 6 May 1682. On board, and thankfully not lost with her, were James, Duke of York, who went on to become King James II, and John Churchill, who went on to become the first Duke of Marlborough. As the noble Lord rightly said, had they been lost, the course of not just British but global history would have been changed. Such is the power of our maritime heritage.
I had a solemn and more recent reminder of this over the Summer Recess, when I had the privilege of visiting the Falkland Islands with the Armed Forces Parliamentary Scheme. I found it profoundly moving to see the buoy in San Carlos Water, which marks the resting place of HMS “Antelope”, one of the Royal Navy warships that was lost in that conflict—along with HMS “Ardent”, HMS “Coventry” and HMS “Sheffield”, as well as RFA “Sir Galahad”, SS “Atlantic Conveyor” and the landing craft Foxtrot 4.
The Falklands War and those who gave their lives in waging it were among the spurs for the Protection of Military Remains Act 1986, which Clause 48 seeks to amend. I support the ways in which it proposes to do so. While the 1986 Act gave immediate and automatic protection to wrecked aircraft, it requires wrecked ships to be individually designated in order for them to be protected. This means that shipwrecks remain vulnerable to disturbance, souvenir hunting, salvage activity or archaeological interference before formal designation has occurred. That process requires secondary legislation. Noble Lords across the Committee know how long it can take to obtain legislative slots. Indeed, it took 16 years—until 2002—for the first designations under the 1986 Act to come into force. Those who have been lost at sea in the service of our nation should not have to wait for secondary legislation to deliver the protection that they deserve.
Clause 48 also seeks to remove the restrictive time constraints which apply to protected places and controlled sites—broadly since the First World War for the former or within 200 years for the latter—to ensure that historic military shipwrecks from before these rather arbitrary cut-off points can also be protected. There should be no temporal limit to our gratitude to those who have died to preserve the freedoms that we enjoy today.
Clause 48 will not change the system which has been well understood by responsible divers for many years. Diving in protected places will continue to be permitted on a “look but don’t touch” basis and diving in a controlled site will continue to require a licence. However, the changes in Clause 48 will help to deter unauthorised salvage, damage to our shared underwater heritage and the desecration of the final resting places of brave service personnel.
I hope, therefore, that Clause 48 will remain part of the Bill—also because I seek to amend it. My Amendment 55A seeks to add to Clause 48 and clarify a worrying confusion in the law which pertains to military shipwrecks. The UK has long asserted that sunken state vessels enjoy protection through the principle of sovereign immunity. This means that they cannot be subject to the jurisdiction of another state. Crucially, the ships cannot have salvage services conferred on them without the permission of His Majesty’s Government.
As a proud seafaring nation with a history as long as ours, the UK has a considerable number of sunken state vessels—currently estimated to be over 5,000—lying at the bottom of seas and oceans across the globe. The principle of sovereign immunity is used to protect these vessels, their heritage significance and the last known resting place of the sailors who went down with them. Without the principle of sovereign immunity, our underwater cultural heritage would be extremely vulnerable to salvage, since consent to salvage sunken vessels is not required in law except in very limited circumstances.
It ought to be as simple as that, but it may not be. The Crown Proceedings Act first muddied the waters in 1947, modifying the application of sovereign immunity to His Majesty’s vessels by stating that the civil law of salvage would apply to them. In effect, this removed the protection of sovereign immunity from sunken state vessels. This provision was subsequently restated in Section 230(1) of the Merchant Shipping Act 1995, which brought the 1989 International Convention on Salvage into force in the United Kingdom.
In the decades since, the Ministry of Defence has taken the view that Section 231 of the Merchant Shipping Act applies only in UK territorial waters—out to 12 nautical miles—and that sunken state wrecks beyond our territorial waters remain protected under the principle of sovereign immunity from unauthorised salvage. That is certainly the interpretation reflected in the most recent guidance published in 2014 by the MoD and DCMS. Although it pre-dated my time as Heritage Minister, that was the guidance in place when I served at DCMS in the last Parliament.
Since then, I have been alerted by the Joint Nautical Archaeology Policy Committee to legal research conducted by academics at Plymouth University’s law school, which suggests that this interpretation may not be correct. Their finding is that the effect of Section 230(1) of the 1995 Act is to remove the protection of sovereign immunity from all state vessels wherever they are located, leaving sunken ships from the Royal Navy and other state vessels vulnerable to salvage without the permission of the United Kingdom.
The academics who conducted that research are naturally concerned to have reached that conclusion, but they are convinced of it and very keen that action should be taken to remedy it. Even if their conclusions are debatable, as points of law often are, I hope the Minister will agree that this is not the sort of matter where there ought to be any doubt or scope for unseemly legal disputes.
The remedy I have suggested in Amendment 55A is not the perfect one—I am limited somewhat by the scope of the Bill—but I ask the Minister whether he will look into this matter carefully, consider the legal research that has been conducted and see whether there is the possibility of using the Bill to put the matter entirely beyond doubt. I would certainly be very glad to discuss this further with him, in concert with the legal experts who have looked at this in greater detail. I beg to move.
Lord Dannatt (CB)
I oppose Clause 48 standing part of the Bill. There are two issues here. One relates to the wrecks that contain military remains; the other relates to diving activities related to those wrecks, which the Bill will describe as protected places. My contention is that insufficient detail has been provided in relation to the nature and definition of the wrecks themselves, and that there has been a lack of consultation with the diving community, whose hitherto legitimate activities could be constrained or rendered illegal by Clause 48 as it stands.
With regard to the wrecks themselves, which the noble Lord, Lord Parkinson of Whitley Bay, spoke about at length, there can be no issue with the principle that warships that contain the human remains of service men and women who lost their lives carrying out their naval duties should remain undisturbed, as is the case with aircraft or bodies recovered from battlefields. However, there is an issue about which wrecks qualify to be covered by Clause 48.
The Minister will be aware, from correspondence that he has received and which I have seen, that many believe there is considerable ambiguity on what is proposed to be covered under Clause 48 and what is not. Many believe the definition of “military service” is too vague. The noble Lord, Lord Parkinson of Whitley Bay, has proposed one alternative. There are many other alternatives, one such being, “A commissioned military vessel or vessel under direct Admiralty command at the time of loss”. My point is that there are several definitions that could apply and that the “military service” definition is too vague.
Fortunately, time precludes a detailed scrutiny of the concerns raised, but my request on this aspect is that further consideration is given to the ships to be covered by this clause and that clarification is provided, ideally by Report—or, indeed, that this clause does not stand part of the Bill pending further consideration and fresh legislation proposed on another occasion.
With regard to diving activities in and around designated wrecks, I declare an interest as chair of the Gloucester 1682 Trust, although I am not a diver myself. The Minister knows, as do the noble Baroness, Lady Goldie, and the noble Earl, Lord Minto, as former Ministers, that I have been raising the issue of the wreck of the “Gloucester”, lost off Norfolk on 6 May 1682, for several years. I will not detain the Committee now with the otherwise fascinating story of the “Gloucester”—the noble Lord, Lord Parkinson, referred to it and its history is now a matter of interesting public record—but it has drawn me into an understanding of diving and the problems that Clause 48, as drafted, creates for the hobby diving community, which has tens of thousands of participants in this country. I touched on some of those issues at Second Reading.
I will try to be brief. The diving community has a number of concerns. Among the issues is that the prohibition on the use of grapnels, anchors or shots should be removed, as their use is essential on health and safety grounds to protect scuba divers, particularly in the uncertain waters of the North Sea. The grounds for rejection of this objection pose a situation which, in practice, does not really exist. The damage that could be caused by such grapnels and anchors is absolutely minimal and not going to be of a major nature as the Bill rather suggests.
Baroness Smith of Newnham (LD)
My Lords, we have had two fascinating speeches from noble Lords who have considerable expertise and interest in the questions of military remains. I will be interested in the Minister’s responses, particularly to the suggestion of the noble Lord, Lord Dannatt, that further work be done on this clause. Again, as with the previous group of amendments, it would be helpful to know what consultation His Majesty’s Government have undertaken on the implications of the clause for divers.
Baroness Goldie (Con)
My Lords, I am probably about to provide a less fascinating speech. I endorse everything said by my noble friend Lord Parkinson and, as such, I am pleased to support his amendment. Clause 48 will automatically expand the protection provided by the Protection of Military Remains Act 1986 to every vessel lost in military service, rather than requiring each one to go through a separate designation order. That is a welcome and overdue reform.
However, the issue that my noble friend has raised, while related, pertains to a slightly different problem. The Merchant Shipping Act 1995 currently applies the ordinary civil law of salvage to His Majesty’s ships in much the same way as it would to a vessel in private ownership, subject only to a narrow procedural safeguard on how any claim may be brought. In practice, that treats the wreck of a Royal Navy vessel, which very often will be the final resting place of Royal Navy sailors, as well as the property of the Crown, as though it were, to be honest, fair game for private salvage.
Amendment 55A is an attempt to rectify that situation by restoring the principle of sovereign immunity and aligning the law on salvage with the spirit of what I think Clause 48 is trying to achieve. In setting out the case for his amendments, my noble friend has referenced a group of academics who have highlighted this issue with the application of civil salvage law in relation to Section 230(1) of the Merchant Shipping Act 1995. I would also be grateful to the Minister if he could confirm the Ministry of Defence’s interpretation of that position.
The Government may very well believe there to be no problem and the Minister may not agree with the interpretation of the law by the academics mentioned by my noble friend but, whether or not the Government agree, is not the key issue that the law can even be questioned in the first place? The fact that there exists sufficient legal ambiguity to allow academics to come to this view means that there is a risk of people attempting to salvage and recover military wrecks, believing that they are allowed to do so. I hope that the Government will agree to meet my noble friend and those others who are concerned so that the legal position can be clarified.
The noble Lord, Lord Dannatt, proposes to remove the clause entirely. I remember with pleasure our extensive exchanges on the “Gloucester”, but I most respectfully do not entirely agree with that proposal. It is my interpretation that divers will remain free to visit sites on the same “Look but don’t touch” basis that already applies to protected places. I remember numerous letters as a Minister in that context. What becomes unlawful is the disturbance, damage or entry into enclosed parts of a wreck without Ministry of Defence authorisation. I believe that the intention is to prevent poor behaviour by the minority who treat these sites as a source of souvenirs, which is not the ordinary conduct of responsible divers. We have a duty to prevent the desecration of the final resting places of all our war dead. They gave their lives and service to our nation. That is the least they deserve. If these measures can prevent such desecration by unlicensed diving, I suggest that they deserve our support.
Lord Coaker (Lab)
My Lords, I thank everyone who has contributed to the debate. I will start with Amendment 55A from the noble Lord, Lord Parkinson. I thank him for bringing that forward in relation to salvage claims against military and Royal Fleet Auxiliary vessels via the Merchant Shipping Act 1995, which is the principal piece of primary legislation in the UK that governs maritime law, ship registration and safety standards. We will investigate the noble Lord’s concerns and comments about Section 230(1) of the Merchant Shipping Act 1995 before Report and come back with appropriate comments with respect to that. I hope that that is a reassurance to him about all the various comments he helpfully made for your Lordships’ House.
Moving to Clause 48 and the debate on that, I thank the noble Lord, Lord Dannatt, for his views on the Bill and acknowledge his concerns about Clause 48 and the Protection of Military Remains Act 1986. Clause 48 of the Bill addresses the existing disparity between the protection of military aircraft and vessels under the Protection of Military Remains Act 1986. The 1986 Act secures the protection from unauthorised interference of the remains of military aircraft and vessels that have crashed, sunk or been stranded, and of associated human remains, making it an offence to enter or interfere with a military wreck site without an authorised licence.
The Act provides for two types of protection: protected places and controlled sites, as designated through a statutory instrument in tranches. To date, a total of 129 wrecked vessels have been designated in eight tranches, the last coming into force on 30 March 2026. However, the Act does not currently allow designation of a vessel that was sunk or stranded on or before 4 August 1914 as a protected place, or designation of a site as a controlled site if over 200 years have elapsed since the crash, sinking or stranding of the vessel or aircraft. As a result of these time limits, older military shipwrecks lack protection. For example, the “Gloucester”, which sank in 1682, carrying the future James II and with a loss of around 200 lives, which I know from our discussions and correspondence is of particular interest to the noble Lord, is currently unprotected.
Clause 48 amends Section 1 of the 1986 Act so that all military shipwrecks which are the last resting places of serving personnel are automatically designated as protected places. This ensures alignment with the protection already afforded to military aircraft. The clause also removes the restrictive time constraints that apply to both protected places and controlled sites, ensuring that the nation’s historic military shipwrecks, which are currently excluded from inclusion by virtue of the time limits specified, can be protected. By providing automatic protection to all military shipwrecks, the MoD will enable a significant improvement in the way our maritime military graves and underwater cultural heritage are protected.
Significant advances in underwater technology and technical diving are leading to more of our military wrecks being discovered. That is good news, of course, but it also requires us to do all we can to protect them. The noble Baroness alluded to the reasons why we are doing this; those advances in technology are one of them. We need to do all we can to protect them once they have been discovered and identified in order to prevent them being disturbed or damaged and to prevent interference with military remains.
The recent discovery of HMS “Tiger” off the Isle of Wight is a prime example of why the amendments are being sought—again, this goes to the point made by the noble Baroness, Lady Goldie. HMS “Tiger” was discovered 118 years after she collided with HMS “Berwick” during a training exercise and was cut clean in two. Currently, she can be designated only as a controlled site simply due to the fact that she sank in 1908, effectively restricting access to divers. Through the changes in the Bill, HMS “Tiger” will become a protected place, permitting non-intrusive activities such as diving without a licence. It is important that we protect UK military shipwrecks in UK territorial waters and international waters. I hope that there is no doubt that our intention is to do all we can to offer better protection in order to prevent the unauthorised desecration of these historically important sites, which are often the last resting places of our serving personnel.
I draw your Lordships’ attention to the fact that many of the provisions already contained in the current Act will remain. Clause 48 simply seeks to strengthen it. Diving in protected places will continue to be permitted—again, to the point made by the noble Baroness, Lady Goldie—on a “look but don’t touch” basis, while a licence will still be required to dive on a controlled site. Giving all military wrecks “protected place” status will help deter unauthorised salvage and the desecration of the wrecks of military remains of service personnel; where appropriate, it will enable the MoD to prosecute those who flout the law in this respect.
I assure the Committee that there are already provisions in the Act to permit diving on UK military shipwrecks in UK territorial and international waters. However, to assist divers in navigating their way around the changes proposed, the MoD will be updating and publishing its policies on underwater cultural heritage, should the Bill be passed. I also assure the Committee—it may have been the noble Baroness, Lady Smith, who asked about this—that the MoD, in consultation with the British Sub-Aqua Club, which is the UK governing body for sub-aqua diving, has produced a set of questions and answers designed to inform its members and the diving community of the proposed changes, which were published on 2 September 2026.
With those necessary reassurances, I hope that the Committee will see the need for Clause 48 and that the amendment will be withdrawn.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to the Minister for his reply. As he rightly says, the technology and its increased availability to many more people is the reason why the broader changes that the Government are seeking to make through the Bill are so timely and needed.
On my Amendment 55A, I am grateful to the Minister for undertaking to investigate the position in detail before Report. I understand why, before that investigation takes place, he does not want to say any more about it now, but I reiterate my offer to speak to him further if I can be of assistance or put him in touch with those who have conducted the research that led me to table this amendment. If, as he mentioned at the end, his department and DCMS are going to update their guidance documents in the light of it, that will be necessary so that there can be absolute legal certainty for those who wish to dive and enjoy the investigations and the sport that they do, but also for those, including divers, who care deeply about the sanctity of these sites and their heritage significance.
With gratitude, for now, I beg leave to withdraw my amendment.
Lord Craig of Radley
“Waived fees for indefinite leave to remain for spouses or children of serving or discharged members of the armed forces(1) The Immigration and Nationality (Fees) Regulations 2018 (S.I. 2018/330) are amended as follows.(2) In paragraph 2 of Schedule 2 (applications for leave to remain in the United Kingdom), in 9.18 of table 9 (fees for applications for limited leave to remain in the United Kingdom and connected applications)—(a) after (b), insert— “(c) in a case where the application is made by a person who is a spouse or child of a member or previously serving member of the armed forces who has served for four or more years”(b) in the closing words, leave out “and (b)” and insert “, (b), and (c)”.”Member’s explanatory statement
This new clause would amend the Immigration and Nationality (Fees) Regulations 2018 to waive the fee for indefinite leave to remain applications for the spouses or children of any current or previously serving members of the armed forces who have served for four or more years.
Lord Craig of Radley (CB)
My Lords, in moving Amendment 56, I thank the noble Lord, Lord Harlech, for adding his name in support of it. I also thank the Royal British Legion for its guidance in drafting this amendment.
Amendment 56 proposes amending the nationality fees regulations of 2018 to waive fees for certain Armed Forces veterans who have been granted indefinite leave to remain in the United Kingdom. Noble Lords may be interested to learn that the terms of my amendment featured in all three major party manifestos for the 2024 election. Let me quote them briefly. Labour said:
“We will … scrap visa fees for non-UK veterans who have served for four or more years, and their dependents”.
The Conservatives said:
“We will extend the visa fees waiver introduced to cover Commonwealth personnel, to include their direct dependants”.
The Liberal Democrats said that they would:
“Secure a fair deal for the armed forces community … by … Waiving application fees for indefinite leave for members of the armed forces on discharge, and their families”.
Nothing has happened since except that, in response to follow-up Written Questions last year, a Home Office Minister said this on 13 March:
“We continue to keep this policy under review in the context of our wider considerations of various aspects of the immigration system”.
The Ministry of Defence responded a week later, saying that it was
“actively working with the Home Office to take this forward”.
In short, prevarications apart, nothing has happened. To have a reply saying:
“We continue to keep this policy under review in … our wider considerations of various aspects of the immigration system”
is surely classic Sir Humphrey-speak. The Home Office should be ashamed of itself.
The immigration system must be under constant study, not a one-off difficulty. What wider considerations are implied? The Government have recently been priding themselves on their reduction in illegal arrivals of over 40% and an increase in repatriations. There seems to be no crisis or wider aspect so great that the Government cannot immediately introduce this universally manifesto-promised arrangement.
Families of service personnel who have qualified for indefinite leave to remain are faced with visa fees that were £155 in 2003 but have risen to no less than £3,226 per person as of 8 April—a staggering increase. So a spouse, their partner and two children applying for ILR now have to find almost £13,000, on top of their fares and relocation costs, to move to the UK. This is no way to treat veterans and their families.
Such prevarication and inertia does not seem to be even related to the present Government. For more than 10 years, I and others pressed the Home Office to grant ILR to members of the Armed Forces who had been recruited and served in Hong Kong. All were members of the Hong Kong Military Service Corps. Repeated Home Office answers were varied ways of saying, “It is under active consideration”, or, “A decision will be made as soon as possible”. I once christened this Home Office foot-dragging as repetitive inactivity syndrome. The Hong Kong Military Service Corps veterans had to wait over a decade for their approval.
Of course the Home Office faces pressures over immigration arrangements, but it flies in the face of the Government’s commitment to the Armed Forces covenant and to treating veterans fairly to have not yet honoured their manifesto pledge. It has cross-party support. Will the Minister take this back and quickly resolve it with the Home Office? I beg to move.
Baroness Penn (Con)
My Lords, I support Amendment 56 from the noble and gallant Lord, Lord Craig of Radley, which would waive fees for indefinite leave to remain applications for spouses and immediate family members of serving personnel and veterans. I have tabled Amendment 66, which seeks to achieve the same outcome through a slightly different route: by requiring the Government to bring forward secondary legislation within a specified timeframe. My amendment is designed to address some of the concerns raised by Ministers in the other place around specific approaches and wording.
Frankly, I do not mind what legislative approach is taken provided the issue is resolved. I do not need to add to the noble and gallant Lord’s exposition of the issue, but I say to the Minister that, typically, the Immigration Rules are changed twice yearly, with the next set expected in October. Can he provide greater clarity on the Government’s timetable for action? Can he reassure military families that this commitment—by all three major parties—will finally be delivered in the forthcoming changes this autumn?
I turn to Amendment 57 in my name and that of the noble Baronesses, Lady Smith of Newnham and Lady Bennett, and my noble friend Lord Harlech, to whom I am grateful for their support. At the heart of this is how we support military families, but it is also about military capability. The strategic defence review identified a workforce crisis. When our Armed Forces depend so heavily on experience and invest so much in their personnel, retention matters as much as recruitment. That is why I welcome the many provisions in the Bill designed to strengthen service life. Amendment 57 proposes a relatively small change, but one that could make a meaningful difference to military families and retention.
The recently published Tri-Service Families Continuous Attitude Survey underlines the reality for families. Some 78% of service families have children, and one in five have children who are under two years old, yet a quarter of service families live apart during the working week, rising to almost 40% in the Royal Navy and the Royal Marines. Nearly three in 10 families experienced separation of three months or more during the past year.
At present, serving fathers receive two weeks of paternity leave at full pay. However, for military families, returning to work after two weeks is not a return to a normal commute; it means returning to a posting many hours away, or to months of separation. That is why this issue matters so deeply to those who serve. One serving soldier told the Dad Shift:
“Being posted 4 hours away from my child when she was born was tough, only having 2 weeks to bond before I was back to being 200 miles away with limited time to travel back and see her was tough and has definitely caused irreparable damage to our relationship, ultimately leading to the collapse of my relationship with her mother too”.
These challenges are reflected further in the Tri-Service Families Continuous Attitude Survey: 52% of spouses disagree that they feel valued by the service, 34% say they would feel happier if their partner left the military, while 44% have at some time in the past year encouraged their partner to leave.
The factors driving dissatisfaction are revealing. The impact on careers, the amount of separation from spouses and the effect on children are the top three reasons. Improving paternity leave is not a silver bullet, but the evidence consistently shows that it supports maternal employment, strengthens family relationships and improves outcomes for children. At a time when retention is a strategic issue, we should take seriously reforms that strengthen the family life of those who serve. The experiences of serving personnel illustrate why. One RAF officer recalled:
“Both children saw us remain in hospital with our newborn for 3-4 days due to challenges with feeding and jaundice ... With only two weeks available, time spent dealing with complications or hospital stays can consume a significant proportion of the leave itself”.
The Minister may point to shared parental leave or the possibility of additional compassionate leave as options to resolve this. However, service families often describe those options as difficult to access and inconsistently applied. One army officer reported:
“I pushed and took Shared Parental Leave but I had to threaten a Service Complaint to do so with my work at the time”.
He added that if the process was difficult for a senior officer, it would likely be much harder for more junior personnel. Likewise, a RAF corporal told the Dad Shift:
“I’ve had my paternity leave handled three different ways for my three children; it does come down to that reoccurring line manager lottery issue unfortunately”.
That inconsistency in itself is part of the problem. Families should not have to rely on confidence, rank or managerial discretion to receive adequate support at such a significant moment in their lives. Soldiers, sailors and aviators should not have to worry about explaining to their commanding officer that their wife and baby are struggling with breastfeeding and need more support, or that their wife’s stitches are infected, or that they are worried that she might be suffering from postnatal depression but cannot even be sure because they are not home enough to tell.
Of course, the impact of leave on operational readiness must be taken into account. Unlike maternity leave, paternity leave is not exempt from the provision in JSP 760 that
“the granting and timing of all forms of absence … is to be at the discretion of the Service and is subject to operational requirements and the general exigencies of the service”.
Nothing in my amendment changes this.
The sacrifices made by those serving in our Armed Forces are shared by their families. When a child is born, those pressures are felt even more acutely. Two weeks of paternity leave is increasingly out of step with the realities of modern family life, the practices of leading employers, and the approach taken by many of our closest allies, with Australia offering eight weeks of paid paternity leave and the United States offering 12 weeks to its military personnel. When Congress extended that entitlement, bipartisan supporters from both Houses described it as a matter of military readiness and national security.
I hope, therefore, in responding to this group, that the Minister will recognise not only the family case for reform but the strategic one. Supporting military families at the moment they need it most is the right thing to do, but it would also be an investment in retention, morale and the long-term strength of our Armed Forces.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Baroness, Lady Penn, and to attach my name to Amendment 57, which would provide for six weeks of fully paid paternity leave for servicepeople. The Committee will see that this is perhaps not the broadest alliance across the political spectrum that you might find, but it is certainly up there in the spread that you will typically see in your Lordships’ House.
As the noble Baroness, Lady Penn, has powerfully outlined, the arguments for the amendment, which I will not repeat, are twofold. First, it is about the welfare of children. It is about children being able to establish a proper relationship and foundation for family life—something that will be with them through their lives. It is also, of course, a big issue for retention and recruitment of servicepeople, so it is an issue for the effectiveness of our Armed Forces.
At Second Reading, I addressed this issue with a number of quotes from the survey. I will just add one here. Think about what two weeks is like. This is an RAF officer from the Dad Shift survey:
“Both children saw us remain in hospital with our newborn for 3-4 days due to challenges with feeding and jaundice … even low-level complications might result in the first week of paternity leave being spent in hospital”.
Those are not circumstances in which, for one week, you will establish a stable relationship—they are extremely stressful, extremely difficult, extremely unnatural circumstances. Then maybe you will have one week or no weeks after that. I know that the Minister said at Second Reading that there is a broader government review of paternity leave, but I do not think, given that we have this Bill before us, that there is any need or any argument for waiting. Action can be taken—and clearly needs to be taken—now.
Amendment 67 in this group is in my name. It is a fairly simple amendment which would put into the Bill that the Government must establish a concessionary travel scheme for veterans’ bus travel. The amendment does not specify the exact detail of what concessionary bus travel might be provided, how it might be set out or what level it might be set at; that is clearly the sort of thing that is appropriate for a statutory instrument. If we think about the situation of veterans, some may qualify for concessionary travel because they are older or because they have a qualifying disability, but what about the veteran at the age of 30, 40 or 50 who has no qualifying disability but who returns to the UK, perhaps after many years of service, not having a stable base here in the UK?
Lord Harlech (Con)
My Lords, I shall speak very briefly in support of the amendment in the name of the noble and gallant Lord, Lord Craig of Radley, and that in the name of my noble friend Lady Penn. The shared aim of these amendments is to improve morale among our Armed Forces and, as we have heard, to improve recruitment, but also, crucially, to improve retention, which has really suffered over a long period.
It is important to recognise that service personnel understand that operational need will come first. When they sign up, when they swear that oath, they accept that there will be times when they will be away on a deployment. They will miss birthdays, christenings, weddings—it comes with the territory. They might not always like it, but they accept it. What this gets at is not having that parental time in the crucial early stages of a new life when you are not at home, when you are on base. That is the difference, and we should be doing something to bring ourselves in line—I remember saying this earlier today—with our Five Eyes counterparts. I think there is a trend here, across the different groups and amendments, whereby we are way behind what the rest of our allies are doing in these categories. With that, I will sit down.
Baroness Smith of Newnham (LD)
My Lords, the noble and gallant Lord, Lord Craig of Radley, has held His Majesty’s Governments, of whichever complexion, to account over the years, particularly, as he mentioned earlier, over the rights of the Hong Kong military. He rightly reminds us that all the main parties gave commitments to waive fees for the families of service veterans who served with our Armed Forces. Will the Minister commit to look into this? My suspicion is that when he was on the Opposition Benches, he would have been speaking quite loudly in favour of reducing the fees; it is clearly something we should be doing.
The noble Baroness, Lady Penn, eloquently explained the importance of extending paternity leave and the reasons for that. I will not go any further. There is no need to rehearse that at this time of night, other than to express the views of these Benches in support of the proposals and to ask His Majesty’s Government to think carefully about the importance of extending paternity leave, especially for reasons of retention.
The Earl of Minto (Con)
My Lords, I turn first to Amendment 56, tabled by the noble and gallant Lord, Lord Craig of Radley, and supported by my noble friend Lord Harlech. I am pleased to be able to say that we on these Benches support this amendment. We have already waived the fees for indefinite leave to remain for Commonwealth citizens who have served in our Armed Forces, in recognition of the sacrifice for our nation that that service represents. It is difficult to see any principled basis for stopping short of extending that same waiver to their spouses and children. These are, after all, the families who have supported that service, often at real personal cost to themselves. As has already been said, extending fee waivers of this kind to service families was a manifesto commitment at the last election made by my party, the Labour Party and the Liberal Democrats. Given that shared commitment, I hope the Minister will explain today why it has not yet been implemented, and when the Government intend to act.
I now turn to Amendment 57, in the name of my noble friend Baroness Penn among others. I hope she will understand why, unfortunately, I am not able to support this. The current scheme already provides two weeks of paid paternity leave with the ability to agree further paid leave on a unit-by-unit basis where circumstances allow. We believe that flexibility matters. Operational necessity varies enormously from unit to unit and deployment to deployment. Decisions about what additional leave is achievable are, in our view, best worked out between the individual serviceman and his commanding officer. It is that commanding officer who understands the operational picture on the ground best.
I am aware of the obvious drawback to this policy of flexibility—that it will create unequal and disparate outcomes. Some units may be more generous than others. However, I think that that is an unfortunate fact of life, and is eminently preferable to a centrally set period, fixed in statute at six weeks regardless of circumstance and operational necessity. I look forward to hearing the Minister’s response to both amendments.
Lord Coaker (Lab)
My Lords, given the hour, let me deal with this head on. I shall start with Amendment 56, tabled by the noble and gallant Lord, Lord Craig. The Government, the Opposition and all of us, it seems to me, are committed to scrapping visa fees for non-UK veterans who have served for four years or more and their dependants, building on the existing fee waiver in place. Home Office and Ministry of Defence Ministers are working closely together to deliver this commitment in a way that is fair, comprehensive and achievable. I understand that the noble and gallant Lord will have heard that language before. He asked me to have an urgent conversation with the Home Office to see what progress has been made, and I will certainly do that. That is the important commitment to make. Indeed, the noble Earl, Lord Minto, asked for that as well, so let me follow that up, and I will certainly talk to the Home Office. Those there, too, will have heard the well-constructed speech by the noble and gallant Lord, Lord Craig, asking when this will happen—and it is about time it did. I hope that, with that reassurance, he can see the importance of putting amendments at Committee stage.
I turn to the powerful speech made by the noble Baroness, Lady Penn, on her Amendment 57 and the various points that she so eloquently made about childcare, family life, parental leave and all those various topics. She will know that there is a government review going on around parental leave, pay and many other issues. The review is considering costs, benefits and potential reforms across the system as a whole and principally covers civilian parental leave and pay entitlements. The MoD will consider the outcome of that review and its applicability to the Armed Forces. It would be premature to prescribe a specific six-week model for the Armed Forces, for example, before the wider review concludes. But the review is expected to conclude in early 2027, which may be of interest to the noble Baroness, so that might start to give us some reassurance about where we are going to with regard to the various points she has raised.
These are extremely important points that need to be heard. But as well as being heard, they need to be acted upon. All I can say to the noble Baroness is that her continued tabling of these amendments and continued challenges to the system to ask what more is going to be done to ensure that people get the entitlements that are needed are important. She will know that when it comes to paternity leave for all eligible personnel within the Armed Forces, there are the concerns about its impact on operational effectiveness. But surely, as we move forward, there ought to be a way of matching the desire for better family arrangements with maintaining the operational effectiveness and particular needs of the Armed Forces. We have to find a way of better balancing all those demands that she quite rightly made through her amendment, and I will certainly do that within the department as well.
The noble Baroness, Lady Bennett, raised an important point through her Amendment 67, that is continually made, about the need for subsidised travel for veterans. A number of years ago, there were very few concessions, but gradually, concession after concession was made, quite rightly, with respect to children, family tickets and all those sorts of things. We need to see what more we can do with respect to our Armed Forces and whether there are additional concessions that can be made which will be of benefit to them, to reflect the service they have given. For example, in London there is a veterans Oyster photocard, which entitles people to free travel on a range of transport services, including buses. That demonstrates to us that progress can be made, whether on transport, various family entitlements or the point made by the noble and gallant Lord on the fee waiver for leave to remain. Even to my own Government, I sometimes say, “Can we get a move on?”
Lord Craig of Radley (CB)
My Lords, very briefly, the Minister answering my question in such a positive way is very encouraging. It certainly made my day—or perhaps I should say it has made my night. I also thank the noble Baronesses and the two noble Lords who spoke in favour of my amendment, which I thoroughly accept as very supportive.
Baroness Goldie
“Overseas operations and the European Convention on Human Rights(1) The Human Rights Act 1998 is amended as follows.(2) For section 7A (limitation: overseas forces proceedings) substitute—“7A No proceedings for overseas operations(1) No proceedings may be brought under section 7(1)(a) in respect of any overseas operations by His Majesty’s forces.(2) “Overseas operations” means any operations outside the British Islands, including peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public disorder, in the course of which members of His Majesty's forces come under attack or face the threat of attack or violent resistance.(3) “His Majesty’s forces” has the same meaning as in the Armed Forces Act 2006 (see section 374 of that Act).(4) A member of the regular or reserve forces who has been deployed on an overseas operation under this Act may not be subject to the provisions of the European Convention on Human Rights for the duration of that deployment.”(3) After section 14 (derogations), insert—“14A Overseas operations and the European Convention on Human Rights(1) Where the Secretary of State considers that any overseas operation is, or is likely to be, significant, the Secretary of State must authorise for the United Kingdom to make a derogation under Article 15(1) of the Convention.(2) In this section “overseas operations” has the same meaning as in section 7A.””Member’s explanatory statement
This new clause seeks to make provision for the members of the regular or reserve forces who have been deployed under this Act to be exempt from the European Convention on Human Rights for that period of deployment.
Baroness Goldie (Con)
My Lords, there may be some among your Lordships who looked at this amendment in my name and had a flash of déjà vu. That is because, of course, we have in some manner been here before, except that I was the one facing a grilling from noble Lords, rather than the Minister.
During the passage of the Overseas Operations (Service Personnel and Veterans) Act 2021, this House voiced its strong opposition to what was Clause 12 of the Bill, which stated that where the Secretary of State considers an overseas operation to be significant, they must keep under consideration the appropriateness of making a derogation under Article 15(1) of the European Convention on Human Rights.
Lord Faulks (Non-Afl)
My Lords, I think we generally agree that our country needs our Armed Forces, including the reserves and the cadets, more than ever. We need to encourage people to join, and we need to look after them when they do. We ask them to risk their lives on our behalf. If we do that, we should ensure that they have the appropriate legal protection.
There used to be a common-law principle of so-called combat immunity. That meant that the courts did not get involved in measuring the responsibility for what occurs in the heat of battle. Aggression that may, with the benefit of hindsight, be seen to be excessive should not be analysed, many years later, in the studied calm of a courtroom, with lawyers employing slippery words such as “proportionality”. This is to say nothing of so-called blue-on-blue or friendly-fire incidents, which are inevitable from time to time.
I would not want to give our Armed Forces a free pass legally; they would not want one. The law of armed conflict is necessary and well established. The Geneva conventions and the accumulation of international conventions and treaties are generally described as international humanitarian law, which is generally respected. What worries me, as it does the noble Baroness, Lady Goldie, is the ECHR and its incorporation into our law by the Human Rights Act 1998. It has brought the law into places where it has no business.
The Strasbourg jurisdiction in this area has become exorbitant. It has held, for example, as the noble Baroness said, that the European—yes, European—Convention on Human Rights applies to theatres of war in Afghanistan and Iraq. Reference was made to Al-Skeini. There is also a case called Al-Jedda. These cases brought about, among other things, the persecution of our troops by lawyers such as Phil Shiner, a lawyer eventually imprisoned for his deeds but not without causing immense damage expense before his imprisonment. The causation, I fear, is clearly established by the decisions of human rights lawyers to rely on the convention in an inappropriate way.
The rights embodied in the convention are in themselves wholly unexceptionable, but the living instrument approach has meant that judges have approached its application in what might be described as an open-textured way, resulting in real uncertainty as to what our troops are entitled to do legally. Article 2, on the right to life, has, for example, been held to justify a claim against the Ministry of Defence in connection with the supply of Land Rovers: it is the case of Smith v Ministry of Defence.
For some time now, the think tank Policy Exchange has focused on the so-called problems of lawfare. Tom Tugendhat MP, now shadow Foreign Secretary, wrote a paper some time ago, entitled The Fog of Law. It remarked on all these facets, which are causing such a difficulty for our troops.
We have now reached a position where our troops are embarrassed in front of allies, and we are accused by our allies of legal freeloading when lawyers try to explain our legal position. Lawyers are conservative in the advice that they give, if not in their politics. The result is that our troops are vulnerable to legal attack, and their leaders may well become inappropriately circumspect in their approach, in the light of the legal advice that they receive.
The amendment attempts to give our reserves and all our troops proper protection from the incursions of the ECHR. I ask the Minister, for whom we all have great respect, to explain whether the Government consider that the current state of the law is justifiable and whether it is truly in the interests of our servicemen and servicewomen or, indeed, in the public interest.
Baroness Brinton (LD)
My Lords, I am very grateful to both the noble Baroness, Lady Goldie, and the noble Lord, Lord Faulks, for their introduction to the amendment and for explaining it in detail. I am not a lawyer, so forgive me for not being able to respond to some of the cases that the noble Lord raised. From these Benches, we have complete sympathy with the principles of sorting out this lawfare issue, because it is clearly a problem.
Having listened particularly to the noble Baroness, Lady Goldie, our concern is whether, under the terms of Article 15 of the ECHR, even this level of derogation is permissible. She quoted from paragraph 1 of Article 15 but not from paragraph 2, which says:
“No derogation from Article 2”—
the right to life—
“except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7”—
torture, slavery and retrospective criminal penalties—
“shall be made under this provision”.
That paragraph means that it is not possible for the UK to derogate.
I just wondered whether, when the noble Baroness was Minister, there were any discussions with the Council of Europe on this issue, rather than a particular court case. We cannot be the only country affected. It may be that it is particularly bad in the UK. I understand that—not just from Article 15 of the ECHR itself, but from the Government’s independent review of the Human Rights Act in 2021, which referred to the progress of the Overseas Operations (Service Personnel and Veterans) Bill, which the noble Baroness, Lady Goldie, referred to. It is explained that the amendment was withdrawn partly because of the very strong feelings in your Lordships’ House. It referred specifically to this point in Article 15 of the ECHR, and the then Government decided that they could not continue with the amendment. Having asked the noble Baroness, Lady Goldie, the question, which is perhaps slightly unfair because she is no longer a Minister, I ask the Minister whether any further discussions have been had with the Council of Europe on this problem. As we know, the ECHR is a living document, and if there are issues it is quite probable that the members would agree to some changes—perhaps expanding the level of articles that can be covered by a derogation.
Lord Coaker (Lab)
My Lords, I thank noble Baroness, Lady Goldie, for introducing her amendments, and acknowledge the points she has made. I also thank the noble Lord, Lord Faulks, for his contribution to the debate. I say to him that clearly—not only in the context of this Bill but also within a whole range of other Bills, debates and topics—many of the cases that he mentions will be raised. There will be a more extensive debate on a whole range of those issues, and we need them to be discussed.
On the point made by the noble Baroness, Lady Brinton, about the Council of Europe, the debate about the ECHR goes on continuously. Whether anyone has raised the specifics of this amendment with it, I am simply unaware.
The ECHR provides for legally enforceable rights within the jurisdiction of the state. In some circumstances, that jurisdiction can extend beyond the territory of the state—namely, extraterritorial jurisdiction. Extraterritorial jurisdiction does not apply uniformly in relation to the various ECHR obligations, and the position has evolved over time through the case law of the UK courts and the European Court of Human Rights in Strasbourg. I understand the concerns about how extraterritorial jurisdiction of the ECHR has been interpreted, but I want to make this very important point, which gets to the heart of why this amendment should not be made. Amending the Human Rights Act directly does not change the UK’s international law obligations under the ECHR, to which this Government wish to adhere.
For instance, new Section 7A seeks to restrict the territorial extent of the Human Rights Act in relation to overseas operations. However, Article 13 of the ECHR requires the UK to provide an effective domestic remedy for anyone with an arguable claim that their convention rights have been violated. In other words, if the extraterritorial application of the Human Rights Act is removed, the UK will still need to ensure that there is a domestic remedy in respect of arguable ECHR breaches occurring in an overseas operation. Additionally, the existence of a domestic remedy separate from that provided for by the Human Rights Act would not prevent the European Court of Human Rights hearing a case where an applicant had exhausted that domestic remedy.
Lord Faulks (Non-Afl)
I thank the noble Lord for allowing me to intervene. He is right up to a point, in the sense that it is true that, provided we remain a member of the European convention, there is potentially a remedy if there is considered to be a breach of the convention right, at Strasbourg. But we chose, in 1996, to incorporate the convention in our domestic law. What this amendment is doing—the noble Baroness, Lady Goldie, may correct me if I am wrong—is amending our domestic law to restrict the remedy. Of course, ultimately, it might be possible to go to Strasbourg to pursue a remedy, but what this is concerned with doing is limiting the possibility of anybody relying on a statute passed by this Government—that is, the Human Rights Act—and seeking a remedy in our courts relying on that.
Lord Coaker (Lab)
I understand the point, very well made, by the noble Lord, Lord Faulks—but that is the debate we are having. The argument the Government put forward is that the disapplication of the Human Rights Act does not prevent the application of the ECHR. That is the point that is being made, and that is the point of difference between us.
Lord Faulks (Non-Afl)
May I simply say this one thing? Until we had the Human Rights Act, we were a member of the European convention. We did not initially even have the right to go to Strasbourg. We then allowed those who wanted to bring an action to go to the Strasbourg court, but it was completely unnecessary. It was thought by the then Government—the Labour Government in fact—to incorporate the convention. So, this is considerably diluting the right, and it is an important difference. The Government may say that we need this right incorporated into our law in the United Kingdom, and that is a different point. If the Minister is simply saying yes, we are a member of the convention, and there is always a right to go to Strasbourg, then I agree with that. But that is not quite what the amendment is focusing on.
Lord Coaker (Lab)
The Government would make both points; I am just speaking to the amendment. If I was not responding to the amendment but putting the whole point around the Human Rights Act and the ECHR, I would say that the Government are proud to have the Human Rights Act, which a Labour Government passed, and the consequent ability to go to the ECHR. However, I am speaking to the amendment that the noble Baroness, Lady Goldie, has moved. In doing so, we see that the disapplication of the Human Rights Act does not work as the noble Baroness wants because you can still go to the ECHR. That is the point that I am making.
For example, before derogating, an assessment must be made of whether the circumstances amount to a
“war or other public emergency threatening the life of the nation”;
whether derogation is necessary; which convention obligations require limitation, noting that some rights are absolute and cannot be departed from; and whether any measures adopted are
“strictly required by the exigencies of the situation”.
These assessments are inherently context specific. By seeking to make derogation mandatory whenever an overseas operation is deemed significant, the amendment risks replacing the individualised assessment that is required by Article 15 with a blanket statutory presumption of derogation. On the basis of this, I ask the noble Baroness to withdraw her amendment.
Lord Faulks (Non-Afl)
I promise the Minister that this is the last intervention that I will make. It is to deal with the point made by the noble Baroness, Lady Brinton. Her understanding was that the Government cannot derogate. I understand the Minister’s answer to the noble Baroness, Lady Goldie, that we want to consider the position and whether it is appropriate. However, from what I understand from the Minister, it is accepted that the Government have the right to derogate but they do not want it to be mandatory for it to be exercised in overseas operations because it will be context specific. Is that the position?
Lord Coaker (Lab)
In all the time that I have been in this House, that is the first time that I have not understood what the noble Lord means. I have said what I have said and I will leave it there.
Lord Faulks (Non-Afl)
I will give it one more go; it is probably my lack of clarity. Do the Government have the right to derogate at all? That was the issue that was being raised; maybe I have misunderstood it. The Minister’s understandable answer is that the Government have the right to derogate but do not feel that this ought to be automatic because they need to consider the circumstances to decide whether it is appropriate to derogate.
Lord Coaker (Lab)
The Government can make the laws and derogate should they wish to do so. I have pointed out the inconsistency of the amendment moved by the noble Baroness, Lady Gouldie, which would require us to derogate from the Human Rights Act but would not achieve her objective because it still leaves us liable to the ECHR, which would allow people to pursue it in that way.
Baroness Goldie (Con)
My Lords, I think that the Minister understands fully what it is like to be grilled at the Dispatch Box in relation to the European Convention on Human Rights and the Human Rights Act.
I thank the noble Lord, Lord Faulks, and the noble Baroness, Lady Brinton, for their contributions. I am particularly grateful to the noble Lord, Lord Faulks, for his elucidation of the legal aspects of this. It is complex. There are interwoven components. I was following his interrogation of the Minister with a rather selfish interest as the Minister nobly endeavoured to respond. I am intrigued by what is emerging. I gleaned from the contributions that there is a subject here that merits debate. The conundrum is that the noble Lord, Lord Faulks, has articulated what the problem is, particularly for our troops in conflict. The noble Baroness, Lady Brinton, said that there is a problem; there is. The Minister himself conceded that this whole issue needs a more extensive debate.
Herein lies the conundrum. We all, I think, now recognise it as a problem and acknowledge that, however we have arrived this situation, the combined effect of the ECHR and the Human Rights Act is creating a challenge for our troops in conflict, which, in 2026, is a much more foreseeable prospect than perhaps it was even five years ago. I am encouraged that there seems to be a willingness to engage in this debate. This is a serious matter; I suggest to the Minister that it is not one about which either his department or his colleagues can remain passive or inert.
I am very grateful to all who have contributed, and I appreciate the Minister’s response. In the circumstances, I beg leave to withdraw the amendment.
The Lord Bishop of Norwich
“Impersonation of service police(1) Section 90 of the Police Act 1996 (impersonation, etc.) is amended as follows.(2) In subsection (1), after “force” insert “including service police”.(3) In subsection (2), after “force” insert “including service police”.(4) In subsection (3), after “force” insert “including service police”.(5) In subsection (4), at end insert—“(c) “service police” has the same meaning as in section 375 of the Armed Forces Act 2006 (definitions relating to the service police and other police forces).””Member’s explanatory statement
The amendment seeks to amend section 90 of the Police Act 1996 to make impersonating a service police officer a specific offence and afford service police the same protections against impersonation given to their civilian counterparts.
The Lord Bishop of Norwich
My Lords, in moving Amendment 59, I will also speak to Amendment 60 in my name; I thank the noble Baroness, Lady Smith of Newnham, and the noble Earl, Lord Minto, for their support. I declare an interest as the father of a soldier.
The amendments that I am proposing aim to give the same protections to service police in the conduct of their duties as those afforded to their civilian counterparts. Amendment 59 would include service police in the offence of impersonating a police officer in the Police Act 1996. Amendment 60 would give service police the status of “emergency worker” within the meaning in the Assaults on Emergency Workers (Offences) Act 2018. Both amendments are structured to amend the existing civilian criminal legislation, rather than to create additional service offences. The purpose of this is to ensure that these protections apply to both military and civilian offenders.
Service police operate both behind the wire and on the streets of Britain, where they respond to incidents involving both the military and civilians. They police high-profile events such as significant military funerals, large-scale ceremonial occasions and, for example, the Edinburgh Military Tattoo, as well as Friday nights in garrison towns, when things can get quite lively. They do not have a choice as to what incidents they come across on their patrol and must be prepared to act, including using lawful force, to prevent crime and harm to others, no matter who is involved. This inevitably puts service police at risk of being assaulted when on duty.
Few service police officers know colleagues, if not themselves, who have not been assaulted while on duty. Currently, if a member of the service police is assaulted on duty, there are none of the enhanced sentencing powers afforded through the Assaults on Emergency Workers (Offences) Act 2018, which would be used if a civilian police officer had a similar assault. Service police are asked to face similar risks as civilian police and other emergency workers, yet they are not protected in the same way. That strikes me as unjust.
Amendment 60 would add service police to the definition of “emergency worker”. The adoption of this amendment would act as a deterrent against assaulting service police, and, where assaults do occur, would give enhanced sentencing powers to deal with offenders to the same standard as if the assault were against a civilian police officer.
Similarly, Amendment 59 aims to give service police protection against impersonation by both military personnel and civilians. At present, it is not a specific offence to impersonate a service police officer. Service personnel who do so are currently prosecuted under the military offence of “conduct prejudicial to good order and discipline”, while there is no equivalent legislation to deal with civilians who impersonate service police officers.
For both military and civilian offenders, this is a gap in legislation that could allow—and does allow—for the abuse of service police powers by impersonation without appropriate consequences. In recent years, offenders have avoided prosecution due to this gap in legislation, which I believe needs to be closed through an amendment to the civilian criminal legislation in the Police Act 1996, rather than through additional service offences. I beg to move.
Baroness Smith of Newnham (LD)
My Lords, I support the amendments in the name of the right reverend Prelate, to which I have appended my name. As the right reverend Prelate rightly pointed out, there are disparities in the provisions for service police versus civilian police, which seems wholly wrong. For the reason of expediting business this evening, I do not propose to speak any longer other than to say that we on these Benches wholly support these amendments.
The Earl of Minto (Con)
My Lords, I, too, have signed both of the amendments tabled by the right reverend Prelate the Bishop of Norwich because I believe that they have identified two important gaps in the law.
Section 90 of the Police Act 1996 creates the offence of impersonating
“a member of a police force or special constable”.
The Act is concerned with civilian police forces in England and Wales established under it and related legislation. The definition of “special constable” is limited to one appointed for a police area. Members of the service police forces are not members of the territorial police force and are not special constables; they are members of the service police under the Armed Forces Act 2006. As a result, the person pretending to be a service police officer would not obviously fall under the wording
“members of a police force or special constable”
in Section 90. I believe that this is clearly an omission and needs to be rectified.
On Amendment 60, I believe that I am correct in saying that the definition in Section 3 of the Assaults on Emergency Workers (Offences) Act 2018 could include service police officers. Subsection 1(b) states that
“a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes”
is included within that definition. Service police officers are clearly engaged to provide services for police purposes; it might be useful for the Minister to confirm whether that is the Government’s position.
However, more importantly, that Act applies only to England and Wales, not to Scotland and Northern Ireland. Scotland has a corresponding law: the Emergency Workers (Scotland) Act 2005, which creates specific offences of assaulting, obstructing or hindering emergency workers and those assisting them. The protected categories include constables, fire and ambulance personnel, and, in certain circumstances, prison officers, coastguard personnel, RNLI crews, social workers executing child protection orders and mental health officers. Like the English and Welsh equivalent, the Scottish Act does not expressly mention service police officers. However, service police can sometimes be treated as constables when exercising powers conferred by service law or civilian legislation. Whether the 2005 Act applies to a particular service police officer will depend on the precise capacity in which they were acting at the time, thus the position regarding service police is not clear.
Northern Ireland does not have a direct equivalent of the Assaults on Emergency Workers (Offences) Act 2018 that creates a single overarching offence of assaulting emergency workers. Instead, it has a mixture of general assault offences and occupation-specific offences. A member of the Royal Military Police, Royal Navy Police or Royal Air Force Police would not automatically fall under any general “emergency worker” definition in Northern Ireland because there is no equivalent statutory definition. The problem here is that the service police work across the United Kingdom, so the differential treatment under the law of the different jurisdictions causes confusion and uncertainty.
This, coupled with the fact that service police officers are not expressly covered by the relevant treaties of legislation, means that service police are not treated as equivalent to civilian police. I think that this requires some thought from the Government; I welcome an opinion on these matters from the Minister.
Lord Coaker (Lab)
I thank the noble Earl, Lord Minto, and I particularly thank the right reverend Prelate the Bishop of Norwich. I have had a number of conversations with him about this outside the Chamber. I have asked my officials to look at his Amendment 59, with respect to the impersonation of a member of the service police, and at Amendment 60, which would add service police to the list of emergency workers regarding assault. I will take those forward but to be clear, I cannot promise what the outcome will be. I personally think there is a problem with these two issues, and I look forward to continuing the discussion with him to see whether we can come forward with something at Report to plug what appear to be two gaps in the legislation.
The Lord Bishop of Norwich
My Lords, I am very grateful to the noble Baroness, Lady Smith, for her brevity at this late hour when many of us want to be tucked up in bed. It was worth staying up to hear the analysis of the noble Earl, Lord Minto. That was particularly helpful regarding the different jurisdictions around these islands, especially the potential for amending laws in Scotland and Northern Ireland. I am immensely grateful to the Minister for all his hard work on this Bill and for giving the commitment that he has to your Lordships’ House to look at this in further detail. My understanding is that the Service Protection Authority has given legal advice that it does not believe that service police fall under the definition of emergency workers. That is all part of the conversation to go on as this Bill progresses towards Report. I therefore beg leave to withdraw my amendment.
Baroness Smith of Newnham
“Independent review of Armed Forces recruitment and retention(1) The Secretary of State must commission an independent review of the processes for recruitment and retention across His Majesty’s forces.(2) The review under subsection (1) must, in particular, consider—(a) the efficiency and consistency of recruitment processes across the Royal Navy, the regular army, the Royal Air Force and the reserve forces,(b) the effectiveness of steps being taken to improve diversity and inclusion within His Majesty’s forces,(c) the impact of the quality of defence housing (including single living accommodation) on the retention of service personnel, and(d) the impact of the medical discharge process on retention and transition to civilian life.(3) A report of the review must be laid before each House of Parliament no later than 12 months after the day on which this Act is passed.”Member’s explanatory statement
This new clause requires the Government to commission an independent review into recruitment and retention in the Armed Forces and lay the report of the review before Parliament.
Baroness Smith of Newnham (LD)
My Lords, I will speak to the first three amendments in my name, which are in group 12: Amendments 61, 62 and 63. I am not going to do them justice at this time of night, because the first amendment is calling for an independent review of Armed Forces recruitment and retention and in order to do that justice, I need to rehearse the difficulties we have seen in Armed Forces recruitment. Capita was mentioned earlier in proceedings today. Issues of retention have also been raised.
Given the lateness of the hour and the hope that noble Lords, Hansard, doorkeepers and officials in the box will get home at some point in the wee small hours, I will simply express the view that it is important for His Majesty’s Government to have an independent review of recruitment and retention. Each time there is an SDR, we hear that we need to look at the size of our Armed Forces and the size of the reserves, yet there is very little clarity on the recruitment process and retention. We have heard proposals this evening from the noble Baroness, Lady Penn, about increasing paternity leave entitlement precisely as a way of enhancing retention. The country needs clarity on recruitment and retention. As Parliament, we need to be able to scrutinise the current provisions and perhaps give suggestions to His Majesty’s Government about ways in which we could be improving the system. I am raising that issue, but I am not going to go into any further detail this evening.
I hope that Amendment 62 will be seen as uncontroversial, even by someone sitting where the Minister is—even though it is an amendment. It suggests a duty to provide medical records on discharge, simply to ensure that anyone leaving the services is able to go straight away to register with their GP. In particular, if they have issues—perhaps they had a medical discharge or, even if not, they might be at risk of undiagnosed PTSD—then having those medical records will be crucial for them, and it seems only right that their record should be provided as soon as practicable.
Amendment 63 ought to be self-evident, although I realise that the Minister may feel that it is not purely an MoD matter but is perhaps more for the DWP. It would insert a clause introducing a personal independence payment assessment exemption for amputees. The logic is that it seems odd to keep requiring PIP assessments and reassessments when, if someone has had a limb amputated, that is not going to change between assessments. It may be that robotics or other medical innovations change someone’s capacity to work; but given that we are talking about someone who may have had a limb amputated as a result of their service, relieving them of PIP reassessments would appear to be a more appropriate way of acknowledging the reasons why they have lost the limb, while ensuring that we do not put them through unnecessary repeat medical assessments. I beg to move.
Lord De Mauley (Con)
I support Amendment 61 in the name of the noble Baroness, Lady Smith, requiring an independent review of Armed Forces recruitment and retention. At this late hour, I will just say that, at a time when there are nearly a million young people not in education, employment or training, we cannot even recruit 10,000 a year, and our Armed Forces are well below the relatively tiny strength at which they are funded to be. This suggests that something is seriously wrong with the recruiting process, and the report needs to be done.
Baroness Brinton (LD)
My Lords, I shall briefly speak to Amendment 62. My noble friend raised the point about it being important for veterans to be able to have their details in their hands. The NHS guidance for veterans specifically notes that it takes several months for the full records to follow the veterans, and if veterans have complex health issues but no information, the GPs that they see are in deep trouble.
On amputees, importantly, unlike many amputees in the civilian world, most amputees in the military world also have a significant number of other injuries. There is already an issue about amputees in the civilian world having to have repeat PIP tests, but it seems sensible to look at this area.
The Earl of Minto (Con)
Briefly, my Lords, the noble Baroness, Lady Smith, has raised some important issues in these amendments. Between 1999 and 2025 there were only seven years in which more people joined the regular forces than left them, and the strategic defence review was blunt enough to call the result a workforce crisis.
I might add one further point on retention. Retention in the Armed Forces will not be improved by prosecuting veterans who served in Northern Ireland fighting the IRA. My noble friend Lady Goldie has already mentioned the adverse impact that the Government’s policy is having. Retention will also surely be improved by delivering the investment in the forces housing that the Government have promised. These are two actions that the Government could take immediately to improve retention and recruitment: drop the widely despised Troubles Bill and deliver the housing investment now, rather than pushing the funding further back, as they have done in the defence investment plan.
I completely concur with the noble Baroness, Lady Brinton, about medical records. That needs tidying up pretty quickly and would definitely help. I look forward to hearing the Minister’s response.
Lord Coaker (Lab)
My Lords, let me just say this: none of us is going to do justice to the amendments that the noble Baroness, Lady Smith, has brought forward. She made a couple of important points, as did the noble Baroness, Lady Brinton, and the noble Lord, Lord De Mauley. I also need to respond in positively to some of what the noble Earl, Lord Minto, said; on other points, perhaps not. The important thing is that, to do this justice, I need to write a letter which looks at some of the issues raised on retention, at the transfer of health records and at the point that was made on PIP. They are important points and for me to say just two sentences on this and two sentences on that would be inadequate. With the Committee’s permission I will write a letter, copy it to Members of the Committee and place a copy in the Library. With that reassurance, I hope that the noble Baroness will see fit to withdraw her amendment.
Baroness Smith of Newnham (LD)
I am grateful to all noble Lords who have contributed, particularly the noble Lord, Lord De Mauley, who cosigned Amendment 61, and my noble friend Lady Brinton. We look forward to the letter from the Minister and with that, I beg leave to withdraw the amendment.
Baroness Smith of Newnham
“Reporting on the Defence Investment Plan(1) Every six months after the day on which this Act is passed for the duration of this Parliament, and every year thereafter, the Secretary of State must publish a report on the implementation of the Defence Investment Plan. (2) The Secretary of State must lay a copy of each report under subsection (1) before each House of Parliament.”Member’s explanatory statement
This new clause would compel the Government to publish and lay before Parliament a regular report on the implementation of the Defence Investment Plan every six months during this Parliament, and annually thereafter.
Baroness Smith of Newnham (LD)
My Lords, this very small group, unfortunately numbered group 13, is about the defence investment plan. In particular, it felt appropriate to bring forward amendments that had been laid in the other place by my honourable friends; I think it was James MacCleary who tabled them. Essentially, they suggest that Parliament has an interest in ensuring that we hold His Majesty’s Government accountable on the defence investment plan.
In particular, I noted that, in his earlier response to the noble Baroness, Lady Penn, the Minister said that continued challenges are important. I suggest that Amendment 64 is by way of a continued challenge: that it would be beneficial to His Majesty’s Armed Forces and to the country to have a report on the defence investment plan. Clearly, this is not something where one needs the Minister to respond in any detail today, because we are calling for it to be six months after this Act has been passed. The key thing is that the defence investment plan took a long time. It is still unclear whether the funding will be forthcoming, so accountability and scrutiny seem appropriate.
The final amendment, Amendment 65, calls for a
“Report on the impact of Defence Investment Plan delays”.
The suggestion here, or the request, is that we have a report within six months of the Act being passed. Again, this is very much about accountability. The defence investment plan was hugely important; it was also significantly delayed. Even for the primes the delays have been significant, but for the smaller defence companies, particularly dual-use companies, there are significant questions about the impact of the delays. Therefore, we have specified clearly what we would want to see in a report.
I do not think I need to go into any more detail, other than to ask the Minister whether the Government might indeed provide the reports—in particular, the annual reports requested in Amendment 64, because earlier on the noble Lord, Lord Coaker, pointed out on another part of the Bill that there is no greater accountability than an annual report to Parliament. Please may we have one? I beg to move.
The Earl of Minto (Con)
My Lords, the noble Baroness, Lady Smith of Newnham, is once again highlighting an issue that we have spent a significant amount of time debating in your Lordships’ House. The glaring hole in the funding of the DIP has to be addressed. The funding issues have not yet been resolved. Can the Minister please confirm that his former boss, now the Chancellor, will find the necessary funds in the upcoming Budget to fill that budgetary hole? Further, we have also recently heard that the Government will not set out the plan to hit 3% of GDP on defence spending until the spending review next year, so another six months of preparation will be lost—another six months of stasis. It is not acceptable. I hope that the Government rethink.
Lord Coaker (Lab)
I will finish with an upbeat message: I have never felt that I have lacked scrutiny on the defence investment plan or on accountability with respect to defence spending. I have answered numerous questions from the noble Baronesses, Lady Smith and Lady Goldie, and the noble Earl, Lord Minto. I have not felt at all that there has been a lack of scrutiny. That is as it should be, so I am perfectly happy to stand here. The amendments are completely unnecessary in terms of holding me and the Government to account. The noble Baronesses, Lady Smith and Lady Goldie, the noble Earl, Lord Minto, and most Members of this House find it extraordinarily easy to bring me to this Dispatch Box to tell me how bad the Government are, and to get me to say how hard I am working to ensure that we deliver the defence that this country needs. These amendments are completely unnecessary; there is absolutely no need for them. At this late hour, that is my answer to the noble Baroness’s amendments.
I have a couple of serious points. On the annual report, in the DIP we have committed to an annual update to Parliament before the Summer Recess each year on progress against the DIP and any changes to financial investments. The first report, which the noble Baroness, Lady Smith, asked about, will be audited by the National Audit Office and published by July 2027. I say to the noble Earl, Lord Minto—I have a fresh burst of energy now—that, unlike when we were talking about the establishment of the national reserve forces and cadets associations, where the noble Earl did not take too much notice of what the National Audit Office said because it did not fit his argument, if the National Audit Office comes forward and says that the Government’s defence investment plan is not going according to plan and that what the Government are doing is an outrage, I bet that the noble Earl will quote that report at length. That is the nature of politics; I understand that. In answer to the noble Baroness, Lady Smith, the first annual report will be published by July 2027.
Finally, the Chancellor will lay out in the Autumn Budget how the remaining £4.7 billion announced in the DIP will be found. Noble Lords will also have heard the Chancellor say that further plans will be set out in the 2027 spending review. I will finish with this: I do not know why it is a surprise to everyone in this Committee that that was said, because, if they check Hansard, they will see that I have stood at this Dispatch Box and said exactly the same thing in answer to the noble Baroness, Lady Goldie, on a number of different occasions. With that, I hope the noble Baroness sees fit to withdraw her amendment. If not, she should bring it back on Report so that we can have another debate on defence spending.
Baroness Smith of Newnham (LD)
My Lords, I am grateful to the noble Earl, Lord Minto, for his support in challenging His Majesty’s Government and to the Minister for his ever-ready presence to respond at the Dispatch Box. We may well come back to the impact of DIP delays, particularly in terms of supply chains, because there are some very significant issues there, but whether they are appropriate for an amendment to this particular Bill is another question. With that, I beg leave to withdraw my amendment.