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House of Commons Hansard
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General Committees
09 March 2020

Delegated Legislation Committee

Draft Tax Credits, Child Benefit and Guardian’s Allowance Up-rating Regulations 2020

The Committee consisted of the following Members:

Chair: Mark Pritchard

† Afriyie, Adam (Windsor) (Con)

† Barker, Paula (Liverpool, Wavertree) (Lab)

† Bradley, Karen (Staffordshire Moorlands) (Con)

† Bruce, Fiona (Congleton) (Con)

Cooper, Rosie (West Lancashire) (Lab)

† Coutinho, Claire (East Surrey) (Con)

† Cowan, Ronnie (Inverclyde) (SNP)

Daly, James (Bury North) (Con)

Hollobone, Mr Philip (Kettering) (Con)

† Norman, Jesse (Financial Secretary to the Treasury)

Osamor, Kate (Edmonton) (Lab/Co-op)

† Phillips, Jess (Birmingham, Yardley) (Lab)

† Reynolds, Jonathan (Stalybridge and Hyde) (Lab/Co-op)

† Rutley, David (Lord Commissioner of Her Majesty's Treasury)

† Smith, Jeff (Manchester, Withington) (Lab)

† Smith, Royston (Southampton, Itchen) (Con)

† Spencer, Dr Ben (Runnymede and Weybridge) (Con)

Zoë Grünewald, Committee Clerk

† attended the Committee

First Delegated Legislation Committee

Monday 9 March 2020

[Mark pritchard in the Chair]

Draft Tax Credits, Child Benefit and Guardian’s Allowance Up-Rating Regulations 2020

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I beg to move,

That the Committee has considered the draft Tax Credits, Child Benefit and Guardian’s Allowance Up-Rating Regulations 2020.

As hon. Members will know, the Government are committed to delivering a fair welfare system for claimants and taxpayers while providing a strong safety net for those who need it the most. The regulations will ensure that tax credits, child benefit and guardian’s allowance will increase in line with the consumer price index, which set inflation at 1.7% in the year to September 2019.

The effect is to meet the Government’s manifesto commitment to end the benefits freeze, with most elements and thresholds of tax credits and both rates of child benefit being increased. The Government will spend an additional £800 million to support tax credit, child benefit and guardian’s allowance claimants. The proposed legislation increases the rates of those benefits in line with prices. I hope hon. Members will join me in supporting the regulations.

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It is a pleasure to serve with you in the Chair, Mr Pritchard. This statutory instrument will finally bring to an end, in April, the freeze on working-age benefits that has been in place for four years and in that time has caused significant hardship to families. It follows what was, in our view, a deeply politically motivated and unnecessary choice to freeze those benefits in 2015.

To offer some context, in 2017, the Joseph Rowntree Foundation said that it believed the benefits freeze was

“the single biggest policy driver behind rising poverty in the UK.”

As a result of the four-year freeze, families living in poverty have been left a total of £560 a year worse off on average—equivalent to three months’ food shopping for an average low-income family. It is no surprise that there has been a corresponding and shameful increase in the use of food banks throughout the country in that period. The cost of living has not been frozen for four years. Between 2016 and 2020, the benefits freeze will have affected more than 27 million people, including 11 million children.

The Opposition will not vote against the statutory instrument as to do so would be to oppose the uprating, but I state on the record our belief that the rise is long overdue and will not reverse the damage caused by this especially pernicious strand of austerity. That is not just our opinion. In 2019, Shelter said:

“While the Government may have finally called time on its benefits freeze, the proposed rise in support is so tiny it won’t make a dent in the damage already done.”

Have the Government have made any assessment of the overall impact of the benefits freeze over the last four years? If not, how will they help working-age families begin to recover from the last painful four-year period?

I conclude with an insight from the Resolution Foundation following research published in October last year. It said:

“the real value of basic out-of-work support in 2019-20 is lower than it was in 1991-92, despite GDP per capita having grown by more 50 per cent since then. Even more starkly, child benefit for a second child or beyond is worth less in 2019-20 than when it was (fully) introduced back in 1979.”

Those are astonishing figures and proof that, although the Government may talk of their intention to create a fair system, a rising tide no longer lifts all boats.

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The uprating is welcome, but it is too little, too late. If austerity were really over, the UK Government would restore lost value from the benefit freeze and scrap the two child limit and the rape clause. A 1.7% increase in child benefit does not make up for damage caused by the four-year freeze. If child benefit had been uprated in line with CPI, payments would have risen by 6.5% in nominal terms by 2019-20. Instead, child benefit was subjected to the four-year freeze and payments did not increase over that period.

We in the Scottish National party completely oppose the two child limit on tax credits and the associated rape clause. Some 8,500 Scottish families have already had their income cut by the two child limit, and that figure will reach 40,000 upon the full roll-out of universal credit, bringing up to 20,000 children into poverty. It is abhorrent that, to receive benefits, at least 510 women have been forced to disclose that they were raped. I ask the Minister to reconsider both those items.

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I am very grateful to the hon. Member for Inverclyde and of course I understand the concerns that he has placed on the record. They do not bear directly on this uprating, which I think he will support, but he has made his position clear and it is well understood.

May I focus on the more substantive comments made by the hon. Member for Stalybridge and Hyde? He suggested that the original benefits freeze was politically motivated. Nothing could be further from the truth. The fact is that the economy had a very long period of recovery—I am pleased to say that it has recovered under this Government and their predecessors—and the view was taken that the whole of Government spending ought to be constrained. The reason for that was that between 1997 and 2010 welfare spending had risen by 65%—£84 billion in real terms—and unfortunately, combined with the mishandling of the financial sector that caused the damage from the crisis, when it took place, to be so bad, it cast a very long and quite painful shadow.

The hon. Gentleman mentioned food banks, but may I offer two or three reminders? One is that poverty, as I am sure he would agree—he is a very thoughtful man—is a complex issue. It is not just a matter of income; it is also a matter of costs, such as fuel costs and housing costs, and of childcare. The approach that the Government have taken in many cases is to pinpoint specific concerns—childcare being an obvious example. I am pleased to see that work is being done to assess whether the correct measure of poverty has been adopted, because there is a question not just about the level but about the composition. The Government are looking quite closely at that.

On food banks, let me simply point out that Germany, which on many accounts we would regard as having not merely a much richer Exchequer and more robust economic growth over the last few years—although not at the moment—than this country, and which has a more generous benefits system, has an escalating food bank problem that is every bit as bad as the one that we find in this country.

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Will the right hon. Gentleman give way?

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Of course.

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Order. Although food banks are obviously related to poverty, I remind all hon. Members of the narrowness of the instrument we are debating. I do not want us all to be tempted into a very worthy, but probably lengthy beyond the time allocated to us, debate on poverty and the definition of it. Can we keep to the narrow confines of the regulations, please?

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Thank you, Mr Pritchard. I am delighted to give way to the hon. Lady, who I know has views on these issues.

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I do not know whether I have to declare an interest as somebody who, in the era that we are talking about, lived on tax credits. With regard to the Minister’s assertions about Germany as a comparator, does he think that the people who come to my office every single day to ask for food bank vouchers would get much comfort from hearing, “It’s worse in Germany”?

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Of course not, but the point that I was making was that there is no simple link between income, poverty and food bank usage, and Germany is the example that gives the lie to that claim.

As for an assessment, legislation is of course given an impact assessment when it is introduced, and that is the case here as elsewhere. I remind the hon. Member for Stalybridge and Hyde that more than 700,000—I think it is 730,000—fewer children are living in workless households than were in 2010, and that there are more than 1 million fewer people in workless households overall? The Government’s focus on employment and the benefits of employment has delivered that achievement, which is a very important improvement not merely to economic wellbeing, but to people’s social and emotional wellbeing.

Question put and agreed to.

Committee rose.

Health Protection (Coronavirus) Regulations 2020

The Committee consisted of the following Members:

Chair: Sir Graham Brady

† Ahmad Khan, Imran (Wakefield) (Con)

† Bacon, Mr Richard (South Norfolk) (Con)

† Baynes, Simon (Clwyd South) (Con)

† Bristow, Paul (Peterborough) (Con)

† Buck, Ms Karen (Westminster North) (Lab)

† Cadbury, Ruth (Brentford and Isleworth) (Lab)

† Carter, Andy (Warrington South) (Con)

† Churchill, Jo (Parliamentary Under-Secretary of State for Health and Social Care)

† Clarkson, Chris (Heywood and Middleton) (Con)

† Crouch, Tracey (Chatham and Aylesford) (Con)

† Double, Steve (St Austell and Newquay) (Con)

† Hodgson, Mrs Sharon (Washington and Sunderland West) (Lab)

† Johnson, Kim (Liverpool, Riverside) (Lab)

Miliband, Edward (Doncaster North) (Lab)

Murray, Ian (Edinburgh South) (Lab)

† Norris, Alex (Nottingham North) (Lab/Co-op)

† Throup, Maggie (Lord Commissioner of Her Majesty's Treasury)

Laura-Jane Tiley, Committee Clerk

† attended the Committee

Second Delegated Legislation Committee

Monday 9 March 2020

[Sir Graham Brady in the Chair]

Health Protection (Coronavirus) Regulations 2020

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I beg to move,

That the Committee has considered the Health Protection (Coronavirus) Regulations 2020 (S.I. 2020, No. 129).

In the time available to me, I will remind hon. Members of the seriousness with which we should address the threat of covid-19, and the context for the Government’s response. I will then explain the workings of the regulations and how they fit into our wider strategy for addressing the outbreak.

On 31 December 2019, Chinese authorities notified the World Health Organisation of an outbreak of pneumonia in Wuhan city, which was later classified as the new disease covid-19. Based on current evidence, the main symptoms of covid-19 are a cough, a high temperature and, in severe cases, shortness of breath. It is a new virus, so there is a lack of immunity in the general population and, as yet, no effective vaccine. This means that covid-19 has the potential to spread extensively in the population, as we are seeing.

As of 9 March, 36 further people in England have tested positive for covid-19, bringing the total cases in England to 280. The total for the United Kingdom now stands at 319, including 23 in Scotland, four in Wales and 12 in Northern Ireland. Fifteen cases have been discharged following two consecutive negative test results, and contact tracing is still under way for all cases, including where the route of transmission is not yet clear.

Although our knowledge is growing by the day, much remains unknown. The four UK chief medical officers have been clear that the disease currently presents a moderate risk to the public, but that planning and preparation for the potential of a more widespread outbreak is sensible. As the Prime Minister made clear, there could be a “very significant expansion” of the number of coronavirus cases in the UK.

Tackling covid-19 requires a robust, integrated and proportionate response. On 3 March, the Prime Minister introduced the UK’s coronavirus action plan, providing the public with information on what the Government have done and plan to do to tackle the coronavirus outbreak. The Government’s approach to tackling covid-19 can be summarised in four succinct phrases: contain, delay, research—this underpins everything—and mitigate. The Government have focused over past weeks on the containment phase, taking measures to limit the spread of the virus as much as possible. A crucial aspect of that is ensuring that people who are contacts of known cases, or who are considered to be at high risk of infection, are isolated from others for a period of time, ensuring that they cannot infect others but can readily access help if they fall ill.

However, we are acutely aware of important gaps in our public health legislation that could undermine the success of this policy. It was to address these gaps that the Secretary of State for Health and Social Care laid the instrument before Parliament on 10 February 2020 and made a statement to the House on 11 February 2020 about that action. The regulations provide the power to screen, isolate and detain those at risk of spreading covid-19 and, if necessary, to keep them isolated for a period of time.

I will explain the powers in the regulations for the benefit of the Committee. Regulation 3 places stringent requirements on when the regulations can apply. First, the Secretary of State must declare

“that the incidence or transmission of Coronavirus constitutes a serious and imminent threat to public health”.

Secondly, the incidence or transmission of the virus must be at such a point that the regulations may reasonably be considered effective in preventing further transmission.

Regulation 4 sets out that the Secretary of State or a registered public health consultant may require that someone is detained for screening and assessment, either if they reasonably believe that that person is, or may be, infected with coronavirus and may infect or contaminate others with that virus, or if that person has arrived into England from an affected area. Regulation 5 permits them to impose various restrictions to ensure that screening and assessment can take place. Regulation 6 outlines in more detail what screening may involve. Regulation 7 sets out further restrictions that may be applied, including restrictions on travel, activities and contact with others.

Regulation 8 covers the isolation of persons who are or who are suspected to be infected with coronavirus. Regulation 9 places a requirement on the Secretary of State to have regard to the wellbeing of anyone who is detained and to review any continued detention over a 14-day period. Those are important safeguards when imposing restrictions on individuals.

Regulation 10 relates to the application of the provisions to groups. Regulation 11 enables a registered public health consultant or the Secretary of State to apply for a part 2A order for powers to protect public health. Regulation 12 covers appeals, while regulations 13 and 14 enable police constables to enforce detention requirements or to initiate detention if they have reasonable grounds to suspect that someone is or may be infected with coronavirus. Regulation 15 covers offences, while regulation 16 sets out that the regulations are subject to sunsetting two years from the date of commencement.

The regulations enable the Government to take the necessary steps to minimise onward transmission by individuals who are or who may be infected with the covid-19 virus, and to ensure that those steps are proportionate and effective. I therefore commend the regulations to the Committee.

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It is an honour to serve under your chairmanship this afternoon, Sir Graham.

I thank the Minister for introducing the statutory instrument and summarising it so clearly. More generally, on behalf of the Opposition I thank the Government for their co-operation on covid-19 and for regularly updating the shadow Secretary of State for Health and Social Care, my hon. Friend the Member for Leicester South (Jonathan Ashworth). It is very important that we work together as much as we can on this issue and I know that the Minister has been leading that process.

First and foremost, our thoughts are with the loved ones of the four people in the UK with covid-19 who have sadly died and with all those who have contracted the virus. I pay tribute to all health staff, as well as to the chief medical officer and the chief scientific adviser, who have shown exceptional leadership.

Public health and safety must come first, which is why the Opposition will not push for a vote on this SI. We will support and co-operate with the Government where decisions are based on scientific and medical advice, and of course we support the strategy to contain, delay, research and mitigate the disease.

That brings me to the SI that we are considering. I agree that the transmission of covid-19 constitutes a serious and imminent threat to public health, and I know that this outbreak will already be alarming to many people across the country. The Government must therefore ensure that their response is proportionate and timely.

We are not yet at the delay stage, but I understand that we are moving away from the contain stage. We have seen evidence of transmission within communities—that is, a number of people have contracted the virus who have not recently returned from an at-risk country. Given that, is the SI perhaps not already out of date? The Minister said that there will probably be further legislation in the weeks to come, and I am sure that the process will be ongoing. If the virus has already begun to spread, will quarantine alone deliver the ongoing delay that we all hope to see? If we are to move officially on to the delay stage in the coming days, can the Minister please outline what steps the Government will take in terms of emergency legislation?

The regulations mean that any patient who is deemed by a health professional to be at risk of spreading covid-19 must stay in supportive isolation before the quarantine period of 14 days is complete. Can the Minister please elaborate on how that will be enforced on a mass scale? The prospect of staying in quarantine for 14 days can understandably be alarming for some people, not least if they have a family to care for or a job that helps them to make ends meet. I will come on to that point more widely in a moment.

At what point will the regulations be enforced: when someone expresses a desire to leave quarantine, or when they actually attempt to leave quarantine? Will there be police on hand at each isolation facility to ensure that patients do not leave quarantine without permission? If so, have the Government made an assessment of what that will cost police forces? Will the Government be providing extra forces and funding to police forces to carry out that role? What guarantees can the Minister give to health professionals and police officers that they will be protected from the virus during this time?

I am grateful that the SI includes an expiry date, but can the Minister tell the House what assessment was made in choosing two years?

As has been mentioned, many people will be concerned about not only the virus, but the implications that the regulations could have for them. The gig economy, zero-hours contracts and earnings thresholds mean that around 2 million workers are ineligible for statutory sick pay. It is unacceptable that some of the lowest-paid workers who need to self-isolate will be forced to make the choice between health and avoiding financial hardship. What regulation are the Government bringing forward to guarantee statutory sick pay from day one, and will it be backdated for people who have already self-isolated due to covid-19?

The Prime Minister suggested that those not entitled to SSP would be eligible for universal credit, but the Government’s own guidance says that it takes about five weeks to get the first payment. That clearly is unacceptable. As I said during the debate on health inequalities last week:

“The Government’s inaction to improve these inequalities in our society will not only continue to hurt the poorest and most vulnerable; in turn, the rest of society will also suffer.”—[Official Report, 4 March 2020; Vol. 672, c. 945.]

I hope that the Minister can answer those questions. I urge the Government to address the question of statutory sick pay and universal credit as a matter of urgency.

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I do not know whether I caught every one of those questions, but if I have missed any, I promise I will write to the hon. Lady to fill in the gaps. I will give it my best shot.

The legislation was made to ensure that we had the means of detention there, should we need it. If we go back—I see that one of the hon. Members from the Wirral, or near the Wirral, is here—

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Liverpool.

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Liverpool. I will take this moment to put on record how brilliant not only the health service, but the local councils and everybody involved in the self-isolation of individuals at both Arrowe Park and Kents Hill Park have been. However, the need to have a deterrent was made clear during that period. That is why this statutory instrument was brought forward. It was deemed that the powers to invoke section 2A, go to the magistrates and use that route would perhaps take too much time for us to be able to effect what we may—but what, in the circumstances at that time, we did not—need to do. This piece of legislation is there so that we can invoke it.

On the sunset clause, this legislation will drop after two years. That was deemed a suitable period of time, but if during that period it is determined that coronavirus is no longer a threat, the Secretary of State has the power to revoke. The chief medical officer and chief scientific advisers have indicated that we are not totally sure of the trajectory, and it may be that we get another peak later in the year. We therefore have the flex to allow us to invoke these measures. I hope that that provides clarity.

The regulations give public health consultants, public health officers, the Secretary of State and members of the constabulary the power to detain. All appropriate safety measures would be taken if we were to use those powers. The hon. Member for Washington and Sunderland West was rightly concerned for anyone enforcing these measures. Instructions on how people are to behave at the point at which these measures are invoked is covered, with the personal equipment they may need and so on, to ensure that everyone is kept safe. Ensuring population safety and being led by scientific advice is at the heart of the Government’s response to coronavirus.

It may be that we move on from self-isolation and need the regulations for something different. As we move forward, isolation will probably be for different reasons, such as protecting the vulnerable, among others.

I totally understand the hon. Lady’s comments about statutory sick pay and so on, but the Secretary of State answered many of those points during the urgent question earlier. He said that many such challenges have been sorted out, but that some—particularly those for the self-employed—have proved trickier to deal with through the normal channels, because statutory sick pay is normally received from the employer.

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The Minister may be coming on to this, although she has moved on from the question she was asked about capacity. What are the resource implications if a small but potentially significant number of people need to be detained against their will? Even if only 0.1% of people needed to be detained, that would have significant implications in respect of where they are detained and how that is enforced, as well as for the police. Will she give us some detail on that?

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On enforcement, the police have powers to take individuals into custody and return them to designated places. Just as we invoked Arrowe Park and Kents Hill Park, we have other facilities around the country to ensure that people can be encouraged to complete their period of quarantine to protect others. That is the point of these powers. It is not envisaged that this would be used for a mass quarantining situation.

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I am sure that the Minister is coming to this point, but the hon. Member for Washington and Sunderland West asked a question that pricked up my ears, not just as a Member of Parliament but as the proud aunty of a police constable in Kent, about the advice officers will receive about maintaining their own wellbeing in the event of these powers being executed.

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I am quite happy to write to my hon. Friend on the specifics, rather than give her something that is not correct, because I do not have the exact answers to hand and that is not really in the scope of the regulations. I hope she will forgive me.

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I will be happy to receive that correspondence, as I am sure will many colleagues, but it would be reassuring for Members of Parliament—as well as proud aunties—to know that such conversations are taking place with the Home Office and with police and crime commissioners, so that chief constables are getting out to their frontline police officers what protective measures they need to take when dealing with those who may need to be detained because of coronavirus.

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I hear what my hon. Friend says and I assure her that conversations are under way with all elements of the public sector to ensure that people’s safety is paramount at all times: proud aunties, worried mums, brothers, sisters, all of them. She makes a serious point. We must have adequate information so that those whom we expect to do things feel safe. The same applies to the advice being given right through the health service. All those elements are extremely important.

However, I reiterate the point that this specific piece of legislation is to ensure that an individual can be encouraged to continue and fulfil their period in isolation if we are concerned that they might infect the broader population. The measure is for those single cases. It might not involve a police constable; it could just as likely be another individual if the powers are necessary. I stress that we have not used the regulations since they were laid on 10 February. They have been an excellent deterrent.

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I thank the Minister for her explanation of the purpose of the regulations. I absolutely understand they might not be needed, because we hope that people will comply with what is best not only for themselves, but for the population as a whole. Unfortunately, this is an instance where human rights have to temporarily take a back seat to the importance of the health of the whole population, including the person concerned.

My hon. Friend the Member for Washington and Sunderland West has raised specific questions, and the Minister has been very kind in answering them. I have one question that my hon. Friend did not raise about appeals in regulation 12, which states:

“A person in relation to whom a restriction or requirement is imposed under these Regulations may appeal to the magistrates’ court against the decision to impose that requirement or restriction.”

Ditto a person with parental responsibility. I recognise that the Minister might need to get back to me, but what if a magistrate finds in favour of the state and upholds the state’s restriction on that person? Does that person have a right of appeal? If the magistrate finds in favour of the person who is restricted and says, “No, it was not necessary to impose restrictions on you,” does the state have the power of appeal against the magistrate’s decision?

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If I may, I will write to the hon. Lady with accurate clarification on that, but the move to detain somebody would be when they were known to have the virus, and therefore on the basis of public health and taking the advice of public health officials, they would be a known risk to others. I would therefore argue that what she suggests would not apply. However, I will write to confirm that.

I thank hon. Members for their contributions to the debate. We must continue to take the most appropriate and effective measures to tackle the new virus. Keeping people safe is our absolute top priority. The regulations are an important part of that work and I conclude that they are essential to support the Government’s response to the covid-19 outbreak. They are, as I have said, time-limited and include safeguards and requirements on those exercising the powers to ensure that they are used only for essential public health measures. I commend the regulations to the Committee.

Question put and agreed to.

Committee rose.

Draft Social Security (Contributions) (Rates, Limits and Thresholds Amendments and National Insurance Funds Payments) Regulations 2020

The Committee consisted of the following Members:

Chair: Stewart Hosie

† Aiken, Nickie (Cities of London and Westminster) (Con)

† Bailey, Shaun (West Bromwich West) (Con)

† Bell, Aaron (Newcastle-under-Lyme) (Con)

† Britcliffe, Sara (Hyndburn) (Con)

† Cartlidge, James (South Suffolk) (Con)

† Cates, Miriam (Penistone and Stocksbridge) (Con)

† Collins, Damian (Folkestone and Hythe) (Con)

† Day, Martyn (Linlithgow and East Falkirk) (SNP)

† Dodds, Anneliese (Oxford East) (Lab/Co-op)

† McCabe, Steve (Birmingham, Selly Oak) (Lab)

McDonagh, Siobhain (Mitcham and Morden) (Lab)

McFadden, Mr Pat (Wolverhampton South East) (Lab)

† Norman, Jesse (Financial Secretary to the Treasury)

† Rutley, David (Lord Commissioner of Her Majestys Treasury)

† Smith, Jeff (Manchester, Withington) (Lab)

Streeting, Wes (Ilford North) (Lab)

† Wragg, Mr William (Hazel Grove) (Con)

Ben Street, Committee Clerk

† attended the Committee

Third Delegated Legislation Committee

Monday 9 March 2020

[Stewart Hosie in the Chair]

Draft Social Security (Contributions) (Rates, Limits and Thresholds Amendments and National Insurance Funds Payments) Regulations 2020

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I beg to move,

That the Committee has considered the draft Social Security (Contributions) (Rates, Limits and Thresholds Amendments and National Insurance Funds Payments) Regulations 2020.

It is an honour to see you in the Chair, Mr Hosie. The regulations set the national insurance contributions rates, limits and thresholds for the 2020-21 tax year. They will allow the Government to deliver their manifesto commitment to cut national insurance contributions for 31 million people across the United Kingdom.

National insurance contributions are social security contributions. Payment of NICs determines eligibility for the state pension and other contributory benefits. NICs receipts go towards funding the NHS and those same contributory benefits.

I will first outline the changes to the class 1 primary threshold and class 4 lower profits limit. The primary threshold and lower profits limit indicate the points at which employees and the self-employed start to pay class 1 and class 4 NICs, respectively. These thresholds will rise from £8,632 to £9,500 a year. These changes, promised in the Conservative’s 2019 manifesto, underline the Government’s commitment to ensure that work pays, putting more money into the pockets of hard-working people. They will benefit about 31 million taxpayers, with a typical employee £104 better off compared with 2019-20. Legislating now ensures that taxpayers will benefit from April 2020.

Increases to the primary threshold and lower profits limit do not affect eligibility for a state pension. That is determined by the lower earnings limit for employees and payment of class 2 NICs for the self-employed. The lower earnings limit will rise in line with inflation, from £6,136 to £6,240 a year. The upper earnings limit, where employees start to pay 2% NICs, is aligned with the higher rate threshold. As announced at the 2018 Budget, it will be frozen and remain at £50,000 per year.

The self-employed pay both class 2 and class 4 NICs. The rate of class 2 NICs will rise in line with inflation, from £3 to £3.05 a week. The small profits threshold is the point above which the self-employed must pay class 2 NICs. This will rise with inflation, from £6,365 to £6,475 a year. For class 4 NICs, as already outlined, the lower profits limit will rise to £9,500. The upper profits limits is where the self-employed start to pay 2% NICs. This is also aligned with the higher rate threshold and will remain at £50,000 a year.

For employers, the secondary threshold determines where they start to pay employer NICs. This will rise with inflation, from £8,632 to £8,788 a year. The level at which employers of people under 21 and of apprentices under 25 start to pay employer NICs will remain frozen at £50,000 a year.

Finally, class 3 contributions allow people to top up their national insurance record voluntarily. The rate for class 3 NICs will increase in line with inflation, from £15 to £15.30 a week.

The regulations also make provision for a Treasury grant of up to 5% of forecasted annual benefit expenditure to be paid into the national insurance fund, if needed, during 2020-21. A similar provision will be made in respect of the Northern Ireland national insurance fund.

I trust that that is a useful overview of the changes that we are making to bring rates of support and contributions to the Exchequer in line with inflation, and I commend the draft regulations to the Committee.

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It is an honour to serve with you in the Chair, Mr Hosie. I am grateful to the Minister for his explanation of the draft regulations.

First, I want to make clear that we will not contest this measure. Anything that puts more money into struggling people’s pockets is to be welcomed. However, we are concerned about the lack of targeting of the measure and the lack of cost-benefit analysis in relation to other measures. We are concerned about the lack of a forward plan for changes to national insurance thresholds, and about the overall coverage—or otherwise—of the national insurance system in the absence of other support for the provision of social security.

I am sure that the Minister is well aware that the policy will cost about £2 billion a year, but that only 3% of the gains from raising the threshold will accrue to the poorest fifth of households. He referred to an average gain of £104, and that is correct, but on average the highest-income 30% of working households will gain much more than that—£150 per annum—and the poorest tenth of households will gain only about £30.

The reasons are fairly obvious; I am sure that they are obvious to everyone in the Committee. First, many of the worst-off working households did not earn enough to pay contributions to NI in the first place. Secondly, two-earner households tend to be further up in the income distribution anyway, but they will benefit twice over from the policy. Thirdly, many forms of social security are tested on after-tax rather than before-tax incomes. Some interesting analysis has been done by, for example, the Women’s Budget Group, indicating that almost two thirds of those in employment who will not benefit significantly from the change are women. The impact is therefore disproportionate.

There are particular issues for workers and families who need to claim universal credit. As I am sure Committee members are aware, universal credit is means-tested based on net earnings—so, after tax. Such employees, including, incidentally, the majority of national insurance-paying single parents, would have their universal credit reduced by £54 as a result of the policy, which would leave them only £32 a year better off. Have the Government conducted any cost-benefit analysis of the change compared with other income-boosting measures? For example, did they consider increasing the work allowance within universal credit? That would benefit the poorest tenth of working households 15 times as much as the policy in question.

I understand that the Government want eventually to move further—towards increasing the class 1 and class 4 NICs threshold to £12,500. Is there a timeframe for that change yet, or indeed an indication of what will plug the gap resulting from it? I understand that moving up to a threshold of £12,500 by 2023-24 would cost £9 billion and that, unlike the change we are considering, it is not yet funded; there is no indication of how it would be covered. It would be helpful if the Minister could inform us whether he intends to go ahead with that change, and if so how it will be compensated for, or whether it will be paid for through further reductions in public services, beyond those we have already experienced.

Finally, attention has rightly been focused this week on eligibility for statutory sick pay. I welcome the changes that the Government are making, so that there is eligibility for sick pay from day one, but it has been concerning to learn that large numbers of people—about 2 million of them—do not qualify for statutory sick pay anyway. The cut-off is identical, from what I can see, to the lower earnings limit— £118 a week.

I am, of course, just speaking about employees, and not the self-employed. Does the Minister intend to continue raising the lower earnings limit in line with inflation? Does he feel that that is sufficient, given the slow upturn in wages since the financial crisis, and are additional measures needed to ensure that people can contribute towards the social security that they might need—such as the state pension or bereavement support allowance, and so on—which all depend on the lower earnings limit?

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I thank the shadow Minister for her remarks. She raised a range of issues, and touched first on what she described as lack of targeting. Of course it is the nature of the legislation that it is universal in its applicability. It is not designed to be a targeted benefit, and that is not its function. Its job is to improve the national insurance situation of 31 million people, which it does. The question of targeting is better addressed to many other aspects; it is not actually relevant to national insurance contributions, which for years have been legislated for on a universal basis.

I do not think that the hon. Lady is correct that this change is regressive in the way that it will operate. It is certainly not a tax cut for higher earners. All employees earning above £9,500 will benefit by the same amount, and some 1.1 million people will no longer pay NICs as a result. Those are important properties.

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I am grateful to the Minister for his generosity in giving way. I do not believe that I used the word “regressive”. I made clear that the impact on those at the higher level of the income distribution will be larger, in terms of the absolute amount that they will not pay, compared with those at the bottom of the income distribution. Surely he is not contesting that.

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If we look in full at the 31 million people affected, we will see that those in employment and earning above £9,500 will receive the same amount. The hon. Lady rightly mentions universal credit, and she understands that its effect is to smooth, via tapering, various cliff edges. That is a helpful and good property—I am sure she does not regret it—and it interacts with this measure. The broad picture, however, is the one I describe.

As the hon. Lady has acknowledged, the measure has elements of a contributory scheme, so it will have effects on people who do not have a full contributions record. On the Government’s future ambitions, she will understand that a statutory instrument debate is not the place to unveil such a strategy, and certainly not in the lee of a Budget two days away. It is the Government’s ambition to increase the threshold to £12,500, and decisions will be taken at future fiscal events. Increasing the NICs threshold to £9,500 this year is a first step towards that ambition. The hon. Lady also mentioned additional measures and statutory sick pay. It would be foolish in the extreme for me to comment on that matter two days before a fiscal event, and I therefore think we should leave it for a future discussion in the House.

Question put and agreed to.

Committee rose.

Draft Armed Forces Act (Continuation) Order 2020

The Committee consisted of the following Members:

Chair: Sir David Amess

† Aldous, Peter (Waveney) (Con)

† Baker, Duncan (North Norfolk) (Con)

† Benton, Scott (Blackpool South) (Con)

† Brereton, Jack (Stoke-on-Trent South) (Con)

† Browne, Anthony (South Cambridgeshire) (Con)

† Bryant, Chris (Rhondda) (Lab)

† Colburn, Elliot (Carshalton and Wallington) (Con)

† Davies, Gareth (Grantham and Stamford) (Con)

† Docherty, Leo (Aldershot) (Con)

† Docherty-Hughes, Martin (West Dunbartonshire) (SNP)

† Evans, Dr Luke (Bosworth) (Con)

† Jones, Gerald (Merthyr Tydfil and Rhymney) (Lab)

Kyle, Peter (Hove) (Lab)

Mahmood, Shabana (Birmingham, Ladywood) (Lab)

† Mercer, Johnny (Minister for Defence People and Veterans)

† Twist, Liz (Blaydon) (Lab)

† Whitley, Mick (Birkenhead) (Lab)

Leoni Kurt, Committee Clerk

† attended the Committee

Fourth Delegated Legislation Committee

Monday 9 March 2020

[Sir David Amess in the Chair]

Draft Armed Forces Act (Continuation) Order 2020

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I beg to move,

That the Committee has considered the draft Armed Forces Act (Continuation) Order 2020.

What a pleasure it is to serve under your chairmanship, Sir David. This is my first Delegated Legislation Committee as a Minister, and I am immensely excited to be here. I think we have a lot of time—something like two hours—so I will go through the legislation.

We have a small, but crucial piece of parliamentary business to conduct: our annual consideration of the legislation governing the armed forces, the Armed Forces Act 2006. Before I turn directly to the annual continuation of the 2006 Act, let us not forget that our armed forces are without a doubt one of this country’s foremost and precious institutions, being held in the highest regard throughout the world as a benchmark of military excellence to which other nations aspire. Let us never forget the men and women of the armed forces who serve and have served us so well, whether at home or further afield.

This nation owes much to our armed forces and the admirable qualities they espouse: bravery, discipline, professionalism, unflinching and steadfast loyalty to duty and a strong moral compass to do all that we ask of them. Those noble qualities and adherence to duty are all too frequently tested in the most challenging and varied of environments and circumstances. Our servicemen and women therefore deserve our due respect for the manner in which they continue to maintain such high standards and professionalism.

We owe a huge debt of gratitude to our armed forces, who perform exceptional feats to protect this country in incredibly difficult circumstances. To support them, we will bring forward legislation to deal with vexatious claims. We will further strengthen the basis of the armed forces covenant, because we are absolutely committed to supporting all in our armed forces community.

Today, we busy ourselves with the continuation of the armed forces themselves. The order will keep in force the Armed Forces Act 2006 for a further year, to the end of 11 May 2021. As I will explain, that reflects the constitutional requirement under the Bill of Rights 1688 that a standing army, and by extension the Royal Navy and the Royal Air Force, may not be maintained without the consent of Parliament.

Let us not forget that the armed forces cannot exist without the annual consent of Parliament. This is an opportunity for us, in this Committee, to record our thanks by permitting the armed forces to continue for another year. Yearly renewal is rooted in the Bill of Rights. That historical context forms the basis for why the legislation, which provides for the armed forces to exist as disciplined bodies, is renewed by Parliament every year.

None the less, it is important that I explain the legislation that governs the renewal. Every five years, renewal is by an Armed Forces Act of Parliament. The most recent was in 2016. There must be another before the end of 2021. Between each five-yearly Act, annual renewal is by Order in Council. The draft order we are considering is such an order. The Armed Forces Act 2016 provides for the continuation in force of the 2006 Act until the end of 11 May 2017 and for further renewal thereafter by Order in Council for up to a year at a time, but not beyond 2021.

If the Armed Forces Act 2006 is not renewed by Order in Council before 11 May 2020, it will automatically expire. If the 2006 Act expires, the legislation that governs the armed forces and the provision necessary for their maintenance as disciplined bodies would cease to exist. That would have serious repercussions, as the 2006 Act sets out nearly all the provisions for the existence of a system for the armed forces of command, justice and, above all, discipline. It creates offences and provides for the investigation of alleged offences, the arrest, holding in custody and charging of individuals accused of committing an offence, and for them to be dealt with summarily by their commanding officer or tried in the court martial. Offences under the 2006 Act include any criminal offence under the law of England and Wales, and those that are peculiar to service, such as misconduct towards a superior officer and disobedience of lawful commands.

If the 2006 Act were to expire, the duty of members of the armed forces to obey lawful commands, and the powers and procedures under which that duty is enforced, would no longer have effect. Commanding officers and the court martial would have no powers of punishment for failure to obey a lawful command or other disciplinary or criminal misconduct. Members of the armed forces would still owe allegiance to Her Majesty, but Parliament would have removed the power of enforcement. After all, service personnel do not have contracts of employment, and so have no duties as employees. Their obligation is essentially a duty to obey lawful commands. The 2006 Act also provides for other important matters for the armed forces, such as their enlistment, pay and redress of complaints.

The continuation of the 2006 Act is essential for the maintenance of discipline wherever service personnel are serving in the world. Discipline in every sense is fundamental and underpins the existence of our armed forces and their success, whether at home, supporting emergency services and local communities, as demonstrated during the recent flooding in Yorkshire and other parts of the country; protecting Britain’s fishing fleet and industry—her waters, as well as her shores—actively safeguarding the world’s main waterways and escorting ships to deter the scourge of modern piracy; playing their part to counter terrorism or to combat drug smuggling and people trafficking; distributing vital humanitarian aid; continuing the war on terror by assisting and building capacity with partner nations to defeat the likes of Daesh in Iraq or Syria and Boko Haram in Nigeria; or maintaining our presence in the Baltic and northern Europe to strengthen our Euro-Atlantic security.

In short, we owe the brave men and women of our armed forces a sound legal basis for them to continue to afford us their vital protection. I hope that hon. Members will support the draft order. I am grateful to colleagues for their support.

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It is a pleasure to serve under your chairmanship, Sir David. Her Majesty’s armed forces represent this country across the world, fighting to liberate civilians from the scourge of trans-national terrorist organisations, providing vital training to other nations, serving on peacekeeping missions, and stepping in to provide humanitarian relief in the wake of hurricanes and other disasters. More importantly, they stand ready to defend our country day and night. I know that we are all, across the Committee, immensely proud of and grateful to our armed forces personnel, and the Opposition will support the draft order. I am sure that that comes as no great surprise.

I wish to press the Minister for greater detail on several matters concerning our armed forces. First, I wish to touch on some operational issues. We know about the Government’s deploying 250 troops to the United Nations peacekeeping mission in Mali, following the end of the South Sudan mission. More than 40 French personnel have lost their lives since troops were deployed to Mali in 2013 on a separate French-led mission. Some 200 soldiers from the UN mission have also died over the same period; indeed, the UN mission in Mali is often referred to as the most dangerous peacekeeping mission in the world. It is important that Parliament can scrutinise the Government on those obligations. I will not ask the Minister to update the Committee this evening, but will he at least commit to a debate in the House on this issue in the near future, so that Parliament has an opportunity to scrutinise properly the Government’s decision?

With regard to the ongoing integrated review, I wish to touch on armed forces’ numbers, and the alarming downward trend in each of the services. In 2010, there were 102,000 regulars in the Army, 40,000 in the RAF, and 35,500 in the Royal Navy. Now they are all substantially smaller. The Army and the RAF have been cut by 25% each, and the Navy is down nearly 20%. The trajectory is quite worrying—every single service has fallen over the last 10 years. It is no surprise that the Government have removed the 82,000 regular Army personnel commitment from their manifesto.

Indeed, there have been reports of further cuts to the Army in the integrated review. Perhaps the Minister could outline whether the integrated review will seek to cut the Army further. He may suggest that it is too early, given that the review is expected to be published in the autumn, but the issue is of such fundamental importance, and I know he understands that. We really must know whether such cuts are planned.

I will touch briefly on retention. The steady decline in satisfaction with service life is a significant worry. The proportion of all personnel reporting satisfaction with service life in general was 60% in 2010. In 2019, it had fallen to 46%. As well as its being wrong in principle for the majority of personnel to feel unsatisfied with service life, we simply cannot afford to have servicemen and women choosing to leave the forces because of their view of service life. Will the Minister set out what plans he has to deal with that?

The Opposition have previously expressed our concern about the future accommodation model, and the possibility that it may be used to push more personnel and their families into the private rented sector, with all the associated uncertainty and added cost. Research from the Army Families Federation has highlighted a number of flaws in the information provided on the future accommodation model. Some 48% of respondents said that they have received no information about it at all, with only 2% saying that they had received a great deal. Most of the information has come from the AFF, as opposed to the Ministry of Defence or the chain of command. Uncertainty around the future accommodation model was a feature of the AFF’s comments on previous covenant reports. Will the Minister commit to doing much more to make personnel and families aware of the changes, particularly as the future accommodation model is now in the pilot stage?

We have not been updated on progress in relation to the defence estate for more than a year. It is particularly urgent given that troops will return from Afghanistan within 14 months, following the recent deal. Our troops and local communities need to be kept updated. Again, will the Minister update the Committee on progress with regard to the defence estate? As I said, we will support the draft order, but we would be grateful for some comments on the points that I have raised.

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It is a great delight to see you in the Chair, Sir David, not least because I think you were here when the legislation was introduced. I do not mean the Bill of Rights 1688, obviously; I mean the 2006 Act. I remember it because we were both in the Chamber on Report and on Third Reading, which was quite contentious at the time, because the Act includes substantial measures on desertion and absence without leave. Those were highly contentious issues in the aftermath of the Iraq war. I remember very clearly the current Leader of the Opposition and shadow Chancellor being the most irritating people in the Chamber. I have a slight anxiety that they may go back to that position in a year’s time, when we get to the next round of legislation.

The Minister slightly understates the danger of not passing the draft order: the danger is that it would be illegal for the British Government to hold any form of armed forces—certainly an Army, because that is what is specified in the Bill of Rights, but I would have thought, by extension, any form of armed forces—for the United Kingdom. Of course it is important that the draft order is agreed.

I must say, however, that it is a slightly odd process that successive Governments have decided on to arrive at the piece of paper before us today. The 2006 Act presumed that there would be a 2011 Act, then a 2016 Act and a 2021 Act, and that they would be more or less the same as the original Act, with some bits added. However, in 2011 the Government decided that they would instead insert into the 2006 Act a first clause that said that we could keep on doing it by annual motions, by Order in Council, until the end of 2021.

Personally, I do not think that that really counts as the House of Commons granting consent to the continuation of the armed forces. The vast majority of Members will have absolutely no idea that we are in this Committee Room tonight or have any idea about the debate. I think that is a shame, not because I want to hinder the Government, but because our armed forces frankly deserve, at least once a year, a debate on the Floor of the House in which we decide, as Parliament, that we will positively affirm our support for our armed forces, rather than this kind of up-in-my-lady’s-boudoir affair. [Interruption.] The Whip woke up at that point.

We have a strange system to explain to any ordinary member of the armed forces. I am sure that when the Minister was informed that this was the process that he would have to explain tonight, he was slightly flummoxed by it. The 2006 Act did important things. For a start, it meant that all the services were treated in the same way in legislation from the beginning. It brought in, as I said, measures to do with desertion and absence without leave, but more importantly it made sure that no member of the armed forces could suffer double jeopardy, which was always a danger under the previous law. A member of the armed forces could sometimes be tried in a court martial and then also in the common courts of the land.

There is one other issue, and there is a sadness about the fact that we are dealing with it in this way. Like many other Members, I worry about vexatious claims being brought against members of the British armed forces long after the events took place. This is not an easy issue to resolve. I remember that when I was a Minister in the Foreign and Commonwealth Office for about five minutes, we faced the tough problem of trying to bring back serious war criminals from countries in the Balkans and make sure that they saw justice. Just having allowed years to pass was not a good enough reason for us not to want to bring them to justice.

The obvious danger is that if we as a country end up effectively outlawing any kind of claim against the British armed forces, we are saying to other armed forces in other parts of the world that are much less pernickety about these matters that they can do whatever they want. In a sense, the fact that we still deal with this issue in this way is a lost opportunity. However, I of course support some of the Minister’s endeavours, and particularly his endeavour tonight. I add that I am still waiting for my meeting with him about acquired brain injury.

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It has been mentioned that there would be no armed forces if we did not have this discussion and debate tonight. I think we would still have the Atholl Highlanders, which—as the Minister will know—happens to be the oldest private army in Europe. As a Scottish constituency Member, I think it is important to say that while the Bill of Rights did not cover Scotland until 1707, I agree with the principle of civilian oversight of the armed forces and the role of civilian parliamentarians in maintaining that oversight through the parliamentary process. As the son, uncle and brother of people in the armed forces, I am happy to say that.

There are a couple of issues regarding culture within the armed forces that the Minister may want to touch on—issues that I consistently raised when he and I were both on the Select Committee on Defence—which relate to recruitment and why younger people may or may not be joining the armed forces. The Opposition spokesperson has already mentioned accommodation, and I would also look to the Danish model, where all parties have made common cause to support long-term funding for the armed forces over a six-year period. That gets full support in the Danish Parliament as a model for funding the armed forces and creating an improved culture within them.

Finally, I say one thing with which the Minister probably will not agree. One way to change that culture may be to treat members of the armed forces as the equals of other employees across this country by giving them an armed forces representative body. However, I will certainly support the motion.

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If it is not out of order to answer the points in reverse, I will do so. Some really interesting points have been made, which I will speak to in turn.

First, the hon. Member for West Dunbartonshire will know that I am as much of a cheerleader for civilian oversight of the military as he is. In any functioning democracy, it is important for that to be enforced, as Obama did in 2012 when I was serving in Afghanistan: he re-emphasised the control of civilian oversight over the military, which is pivotal to everything we do. It will not be news to the hon. Gentleman that I am not a huge fan of having some sort of union within the armed forces. That is not because I do not believe in the rights of individuals who serve; we work very hard to try to understand how to improve their lives and the offer that we make them. However, I think serving is fundamentally different, but I am always open to a conversation about these things. A modern armed forces should reflect a modern Britain.

I have yet to meet the hon. Member for Rhondda about traumatic brain injury, for which I apologise; I confirm that we will be meeting within the next couple of weeks. It is an important subject, and I pay tribute to him for his work in bringing it to people’s attention.

On vexatious claims, the line is very clear: if someone commits a criminal offence in uniform, they will be prosecuted. Nobody will want to prosecute them more than I will, as the Minister for Defence People who has been charged with ending the ridiculous process of vexatious claims. The inability to hold ourselves to account in every battlefield that we have faced over the past 15, 20 or 50 years has led to a mass market of claims and investigations into people who, most of the time, have done absolutely nothing wrong except for, in the eyes of prosecutors, serving their country. The Government have made it absolutely clear that we will put an end to the industry of claims.

I can confirm that, on 18 March, I will present a Bill that fulfils the Prime Minister’s manifesto commitment to act within 100 days. It is designed to tackle the vexatious nature of the claims system that has sprung up in recent years and continues to blight the lives of some of our most special people, but there will never be a blank cheque or a diminution of standards in the way the UK military behave on operations, or in the opportunities to hold the Government to account. It is simply a question of narrowing the aperture through which human rights lawyers, who go on to commit fraud, exploit the situation and build business empires off the back of operations that the British Army and military conduct. The Bill will be presented on 18 March, and I look forward to it.

To someone who has never done this before, it seems odd that we just sit here and read out a bit of paper, and then the armed forces continue for another year. We anticipate a Bill later this year. The Government have made it clear that some reforms need to take place within the armed forces, and we have also talked about how we will legislate on the armed forces covenant so that no person in this country can be disadvantaged because of their military service. That will be part of the Bill, and I anticipate its being introduced later this year.

I will address in turn the comments of the hon. Member for Merthyr Tydfil and Rhymney. Mali is another operation that the UK military look forward to taking part in in our global fight to empower nations in that part of the world to defeat terrorism and keep this country safe. There will be plenty of opportunities to engage with and debate, both in public and in the House, the UK’s foreign policy, but I will not go into further detail at the moment, for obvious reasons.

On the number of people who serve, we in this country have to get away from a numbers argument. As a Minister, I will always advocate more people coming to serve, because it is the best thing that young people can do. The thing that defines the military, however, is not the number of people or the proportion of GDP we spend on it, but whether it can meet the threat that we are up against in defending this nation and the way of life that we are so lucky to enjoy. As war becomes more automated, as we develop unmanned vehicles and as our ability to keep people safe and defend this nation continues to improve, it will inevitably lead to a requirement for fewer personnel in modern warfare.

I can assure hon. Members that, on this watch and under this Government, our military’s capabilities will never decrease, but only continue to improve. Depending on how many people we need to do that, our military will be manned accordingly. There was no intention to drop the 82,000 target from the manifesto. We just need to get away from talking about the strength of our military purely in numbers of personnel.

Retention is a huge challenge, possibly our biggest at the moment. We are doing much better on recruitment; we have met our targets two months early for this year through to April, which is a significant achievement by the team, to whom I pay tribute. That is an extraordinary achievement in a time of peace. There is undoubtedly a challenge in retention. The Secretary of State, the Prime Minister and I have made it clear that we will not tolerate any more denuding of the offer to people who are serving, including on pay, welfare, accommodation and families. We face a challenge, but we are well aware that retention is an issue and are working hard on it every day.

The future accommodation model is a big opportunity for those in the military to own their own home earlier and have a degree of independence that people serving 20 years ago did not want. We are currently running a pilot that has been extremely popular where it has been available. We have more work to do to communicate what FAM is and what it means for families.

At the moment, there is a narrative about veterans and we are up against the clock to get the legislation through, but a family member is as important as any other person in the defence family. The armed forces covenant says clearly that no servicemen or their families should be disadvantaged by their military service, and the Government are absolutely committed to following through on that.

I hope that I have answered the questions that were raised. I anticipate and look forward to an armed forces Bill later this year. We have a lot of work to do, but I encourage hon. Members to look at 18 March as a seminal moment when we can finally start to put an end to the ridiculous process of vexatious claims, and build on everything else that we are doing.

Question put and agreed to.

Committee rose.

Draft Justices of the Peace and Authorised Court and Tribunal Staff (Costs) Regulations 2020

The Committee consisted of the following Members:

Chair: James Gray

† Anderson, Lee (Ashfield) (Con)

† Baillie, Siobhan (Stroud) (Con)

† Baker, Mr Steve (Wycombe) (Con)

† Begum, Apsana (Poplar and Limehouse) (Lab)

Betts, Mr Clive (Sheffield South East) (Lab)

† Blunt, Crispin (Reigate) (Con)

† Buchan, Felicity (Kensington) (Con)

† Charalambous, Bambos (Enfield, Southgate) (Lab)

† Clarke-Smith, Brendan (Bassetlaw) (Con)

† Davison, Dehenna (Bishop Auckland) (Con)

† Everitt, Ben (Milton Keynes North) (Con)

† Hollern, Kate (Blackburn) (Lab)

† Howarth, Sir George (Knowsley) (Lab)

Kendall, Liz (Leicester West) (Lab)

† Philp, Chris (Parliamentary Under-Secretary of State for the Home Department)

† Pursglove, Tom (Corby) (Con)

† Qureshi, Yasmin (Bolton South East) (Lab)

Kevin Candy, Committee Clerk

† attended the Committee

Fifth Delegated Legislation Committee

Monday 9 March 2020

[James Gray in the Chair]

Draft Justices of the Peace and Authorised Court and Tribunal Staff (Costs) Regulations 2020

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I beg to move,

That the Committee has considered the draft Justices of the Peace and Authorised Court and Tribunal Staff (Costs) Regulations 2020.

Mr Gray, it is, as always, a great pleasure to serve under your chairmanship. I intend to be extremely brief, because these are technical regulations, which form part of the Government’s implementation of the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018. I can confirm that, in accordance with the requirements of that Act, the Lord Chief Justice and the Senior President of Tribunals, Sir Ernest Ryder, have been consulted, and both have indicated their approval of the regulations.

The regulations are rather technical, but they have the important purpose of underpinning the protection the Act gives authorised court and tribunal officers. It gives them an indemnity against liability for actions they carry out in good faith in the performance of their judicial duties. The regulations specifically outline the procedure to be followed when an order for costs is sought against one of these authorised officers. It is worth mentioning that the Act provides for court officers authorised by the Lord Chief Justice to perform functions that were previously undertaken by a justices’ clerk or an assistant justices’ clerk.

The regulations specify the procedure to be followed when an order for costs is sought against a justices’ clerk. They specify the circumstances in which those costs may be sought and that it is not the justices’ clerk but the Lord Chancellor who will pay those costs—I do not, of course, mean the Lord Chancellor personally, but the Ministry of Justice, although we say it is the Lord Chancellor. The regulations also specify when such a cost order can be made and how the amount to be paid shall be determined. The answer to that latter question is that it is determined by a costs judge—formerly known as a taxing master.

Very simply, therefore, the regulations make provision for the Lord Chancellor to pick up the costs if any cost order is made against a justices’ clerk—now called a court officer—in the discharge of their duties.

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The Minister has made clear what this measure does, but it would be interesting to know what prompted its introduction.

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Very simply, this measure was first introduced in this form in the Courts Act 2003—of course, the practice predated that, but it was most recently legislated for in 2003, when it applied to justices’ clerks and assistant justices’ clerks. However, in the 2018 Act, those positions were replaced by court-authorised officers, who perform essentially the same function but under a different name. When we say “court-authorised”, it is ultimately the Lord Chief Justice who authorises those officers. This is really a technical change that continues a practice that has been going on for many years. It is really a change of nomenclature more than anything.

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The Minister is being admirably clear, but I do not think he has completely answered my question. What prompted me to ask was that I am not clear why these provisions were not incorporated in the 2018 Act.

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Often when we legislate in this House, some of the more technical matters are not put on the face of the Bill. The Government are given regulation-making power the activate or implement powers at a subsequent time—otherwise the Bill would be enormously long. This is one of the many examples where the technical implication of a measure is done via a statutory instrument—in this case, an affirmative statutory instrument—rather than on the face of the Bill. In fact, we were in this very room just a few days ago implementing a similar measure in relation to alcohol abstinence and monitoring requirements. This is just one of those measures that are activated by an SI, rather than being on the face of the Bill, to keep the Bill a little smaller.

I hope I have outlined the substance of the matter before us. If colleagues have questions, I would be delighted to answer them—

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In that case, will the Minister allow me before he sits down?

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I cannot possibly resist my hon. Friend.

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I am grateful to my hon. Friend. These are obviously necessary procedural regulations, but I draw his attention to paragraph 7.2 of the explanatory memorandum, which refers to

“provisions in relation to costs in (the very rare) proceedings against justices’ clerks and justices of the peace.”

Could he give us some indication of how frequently these very rare proceedings have taken place, and what the cost to the taxpayer has been?

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Yes. Saying “very rare” may be a masterstroke of understatement. We have been unable to find any examples of legal action against justices’ clerks as individuals since 2003. However, each year there have been, on average, about 100 court cases where a decision by justices’ clerks has been challenged, although the justices’ clerk themself has not been named in the action. In those 100 cases a year, as far as we can find, there has not been a single example where a costs order has been made against a justices’ clerk that the Lord Chancellor has had to pick up the tab for. As far as we can tell, the answer is that, since 2003, the cost to the Exchequer has been nothing, but it is important to have the procedures in place, in case the need ever arises.

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As always, it is a pleasure to serve under your chairmanship, Mr Gray. I thank the Minister for his explanation of the statutory instrument. He will be pleased to know that we are not seeking to divide the Committee on this matter.

I will just touch on a couple of matters that colleagues have raised. First, to answer the question by the hon. Member for Wycombe, I must say that not once in all the years I have practised law did we have a wasted costs order against a justices’ clerk, so I agree with the Minister that it is rare, but it is necessary to have these provisions, just in case errors do occur.

Secondly, the Minister is correct that part of this statutory instrument is just about changing the terminology. Two years ago, the 2018 Act, which I led on for the Opposition, abolished justices’ clerks and replaced them with what are called authorised court officers. That new breed of people was created by the Ministry of Justice to deal with some simple, straightforward, semi-judicial functions.

We objected to the qualification requirements for authorised court officers, but we lost on every single amendment we tabled regarding who these people should be and what their qualifications should be. However, the legislation exists, and to answer the question from my right hon. Friend the Member for Knowsley about why we need this statutory instrument, it is because authorised court officers were created two years ago and now need to be covered.

The discussion on wasted costs orders was never had at that point, but it is now being addressed in this statutory instrument, and it makes sense to do that so that these people, and any other person operating in the court system, are given cover. We do not object, and we understand the necessity for this statutory instrument.

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I am grateful for the hon. Lady’s support in the matter before us. Very briefly, on the question of qualifications—I am sure that this assurance was given two years ago, but I will repeat it—before anyone can be a court officer, the Lord Chief Justice has to give authorisation and must be satisfied that the person is appropriately qualified for the task given to them. I am grateful for the support of the Opposition this evening.

Question put and agreed to.

Committee rose.