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General Committees

Debated on Wednesday 6 December 2023

Delegated Legislation Committee

Draft Equality Act 2010 (Amendment) Regulations 2023

The Committee consisted of the following Members:

Chair: Mr Philip Hollobone

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

† Caulfield, Maria (Minister for Women)

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

† Courts, Robert (Witney) (Con)

† Dixon, Samantha (City of Chester) (Lab)

† Goodwill, Sir Robert (Scarborough and Whitby) (Con)

† Green, Damian (Ashford) (Con)

† Jenkinson, Mark (Workington) (Con)

† Kearns, Alicia (Rutland and Melton) (Con)

† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)

† Madders, Justin (Ellesmere Port and Neston) (Lab)

Owen, Sarah (Luton North) (Lab)

† Quin, Jeremy (Horsham) (Con)

† Rimmer, Ms Marie (St Helens South and Whiston) (Lab)

† Shanks, Michael (Rutherglen and Hamilton West) (Lab)

† Strathern, Alistair (Mid Bedfordshire) (Lab)

† Wheeler, Mrs Heather (South Derbyshire) (Con)

Susie Smith, Committee Clerk

† attended the Committee

The following also attended (Standing Order No. 118(2)):

Cash, Sir William (Stone) (Con)

Millar, Robin (Aberconwy) (Con)

Sixth Delegated Legislation Committee

Wednesday 6 December 2023

[Mr Philip Hollobone in the Chair]

Draft Equality Act 2010 (Amendment) Regulations 2023

I beg to move,

That the Committee has considered the draft Equality Act 2010 (Amendment) Regulations 2023.

It is a pleasure to serve under your chairmanship, Mr Hollobone. This statutory instrument will reproduce select interpretive effects of retained EU law, in order to maintain equalities protections against discrimination. These protections are reproduced by making amendments to the Equality Act 2010.

It is important to make clear from the outset that the overwhelming majority of our equality law is contained in domestic legislation. The Equality Act 2010 was approved and voted on by our own Parliament, and so the interpretive effects of retained EU law have a bearing on our equality framework in only a limited number of areas.

This instrument uses the powers of the Retained EU Law (Revocation and Reform) Act 2023 to ensure that necessary protections are put into our statute. This will end the inherent uncertainty of relying on judicial interpretation of EU law and instead ensure that strong and clear equality law protections are set out in our domestic legislation. To be clear to hon. Members, this instrument applies just across Great Britain.

This statutory instrument safeguards and enshrines key rights and principles across a range of areas. First, it protects women’s rights by maintaining equal pay protection where employees’ terms are attributable to a single source but not the same employer; protecting women from less favourable treatment at work because they are breastfeeding; and protecting women from unfavourable treatment after they return from maternity leave, where that treatment is in connection with a pregnancy or a pregnancy-related illness occurring before their return. It ensures that women are protected against pregnancy and maternity discrimination where they do not have a statutory right to maternity leave, but have similar rights under alternative occupational schemes. It also ensures that women can continue to receive special treatment from their employer in relation to maternity; for example, ensuring that companies can continue to offer enhanced maternity schemes.

I am sure that all of us in the House will agree that women should not face discrimination for being pregnant or taking maternity leave, should continue to receive equal pay for work of equal value, and that they should not receive less favourable treatment in the workplace because they are breastfeeding. This instrument reproduces these principles in domestic law to ensure that women can continue to rely on these protections.

This instrument also maintains protections for disabled people in the workplace, so that they are able to participate in working life on an equal basis with other workers. It is, of course, important that disabled people have the same opportunities as everyone else to start, stay and succeed in work, and this amendment will mean that disability protections continue to apply where someone’s impairment hinders their full and effective participation in working life on an equal basis with other workers.

Finally, this instrument maintains two protections that apply more broadly. The first of these maintains the status quo whereby employers and their equivalent for other occupations may act unlawfully if they make a discriminatory public statement relating to their recruitment practices, including when there is not an active recruitment process under way. This ensures that groups that share certain protected characteristics are not unfairly deterred from applying for opportunities in an organisation. The second maintains protections against indirect discrimination for those who may be caught up and disadvantaged by indirect discrimination against others, so that they are also protected when they suffer substantively the same disadvantage.

We intend that there will be no time gap and no break in protections between this law coming into effect and the removal of the special status and EU-derived features of retained EU law at the end of this year. By maintaining these important protections, we will ensure that our domestic equality framework has continuity. Importantly, these amendments do not add any regulatory burdens on business, as the legislation reproduces the status quo, meaning that the regulatory environment will not change. I hope that colleagues will join me in supporting these draft regulations and I commend them to the Committee.

On a point of order, Mr Hollobone. I want to be quite clear, as Chairman of the European Scrutiny Committee, that, as some may know, we are having a full inquiry into the implementation of arrangements regarding the revocation and reform of retained EU law. We are actually having inquiries on a continuing footing. Am I right in saying that, while this Committee will consider the issues concerned, the ultimate decision will be taken by the House? That would be very helpful indeed.

I say this very respectfully: is it possible for those of us who were not nominated for this Committee—my Friend the Member for Aberconwy and me—to speak but not vote? We will be as brief as we can, because I suspect that our hon. Friend the Member for Penistone and Stocksbridge has something that she would like to say. We just have a few thoughts that we would like to offer to the Committee as well. Is that all right?

The answer to both your questions, Sir Bill, is yes. I am sure that the Committee will be delighted to hear from all three hon. Members, and others, in the course of the next 90 minutes.

I will not detain the Committee too long, Mr Hollobone, because, like you, I am keen to hear what other hon. Members have to say. It is a pleasure to see you in the Chair this morning, and I am grateful to the Minister for her introduction.

The Opposition consider these draft regulations to be uncontroversial. We are satisfied that, as the Minister said, they do not constitute a change of policy approach. This is, though, just one of a flurry of sets of draft regulations being laid before the House by the Government in an effort to safeguard important protections derived from EU case law and ensure that they are retained before the end of the month. As we pointed out during the passage of the Retained EU Law (Revocation and Reform) Act 2023, retaining important principles from the interpretation of retained EU law is just as important as actually retaining pieces of EU legislation. Without the restatement of certain interpretative effects, many important rights derived from the EU could be in jeopardy from 1 January 2024.

The protections being restated today underline why this process is so important and our workers cannot lose the rights that are being reasserted in these regulations. As we have heard, they are massively important to women—protecting them through and after pregnancy, against pay inequality, and from discrimination. They are also crucial in providing people who have disabilities with protection against discrimination. These vital protections need to be retained. I agree with the Minister that it is also important that we give people and the law certainty by restating these principles. However, the fact that we are getting round to restating them only a matter of weeks before they could have disappeared is a little concerning. It presents some questions about the Government’s wider approach to identifying which bits of important case law they wish to retain and then pass, through regulations, on to our statute book.

The most obvious question is how the identification process actually operates. Following the litany of failures with the original legislation, culminating in the fiasco of thousands of hitherto unknown pieces of retained EU law appearing on the dashboard, we know that there are sometimes problems in identifying exactly where EU law impacts on domestic law. Can the Minister tell us what measures the Government are taking to ensure that important decisions in terms of interpretative effects of retained EU law are being taken? Do the Government have an equivalent to the dashboard that was introduced for identifying statutory instruments for European Union judgments that have an impact on domestic law? What about actually restating these judgments in law? We have seen numerous draft regulations in recent months. Therefore, it is sometimes hard to keep up with exactly where we are up to with retained EU law. Would it not be sensible to have, in a manner similar to the dashboard, a central record of which changes have been made and where restatement is taking place, so that not just hon. Members but businesses and, indeed, individuals who would be benefiting from the restatement of rights can know exactly where they stand?

It is also worth asking what advice has been received from Government lawyers about the impact of restating certain bits of law and, most importantly, what criteria are being used to determine which judgments will be retained. How does one decide which ones will be kept and which ones will fall off the cliff at the end of the year? There is nothing controversial in what is being restated today, although there was a change of stance on the single source equal pay protections. We welcome the Government’s U-turn on that, but we need to know exactly what the thought processes were to reach that point.

Turning to the content of the regulations, as we heard, regulation 2 reproduces the effects of retained EU law regarding discrimination related to pregnancy, maternity and breastfeeding. Among other protections, it restates important principles such as rights for women to make claims for direct sex discrimination at work on the grounds of breastfeeding. It also protects women against unfavourable treatment due to pregnancy or a related illness that occurs during the protected period.

As we heard, regulation 3 will ensure that those without a protected characteristic who suffer from a disadvantage, together with persons with the protected characteristic as a result of a discriminatory provision, criterion or practice, can continue to bring a claim. Regulation 4 updates the recent decisions in relation to protection from discrimination in access to employment.

Regulation 5 is probably the most important one in terms of Government policy decisions because that has reproduced the effect of the single source principle. In case Members are not aware, that principle sets the standard for a body that is in a position to ensure equal treatment between employees in respect of such terms. In practical terms, that means that tribunals and courts can continue to compare the pay of men and women who work for an enterprise or organisation that can control the terms under which they are employed, including pay, even though they may technically be working for different employers. That will hopefully send a clear message to employers that outsourcing obligations in respect of equal pay for men and women is not an acceptable response to the question of equality.

As we heard, regulation 6 relates to maintaining the interpretation of disability. We should be mindful that just because these laws are being restated and we are content that there is no detrimental change in the legal outlook, it does not mean that the battle for equality is over. The earnings gap between disabled and non-disabled people has increased. It is over half a century since the Equal Pay Act 1970 was introduced and we are still to reach pay equality. The most important element of the debate today is not necessarily what is being restated because we are in agreement with that, but what regulations are being made in a way that ensures that all the protections will be retained. What is the thought process that leads us to that? Can we be confident that we have everything covered?

Monitoring the effectiveness of the process is crucial to understanding whether the Government’s objectives have been achieved. That is an important process, and possibly the Chair of the European Scrutiny Committee, the hon. Member for Stone, will have some thoughts on the Government’s approach more generally. We need to be able to understand what the Government’s principles are and then judge whether they are delivering them in practice.

I would imagine that the Department has dedicated large amounts of resource to identifying the particular elements of law that need to be retained, but we cannot be absolutely sure that everything has been picked up. Let us be clear: if something does slip through the net, the consequences could be serious for potentially millions of workers. It is important that we are clear on how the process operates and what monitoring is going on to ensure that all important elements of retained EU law will stay in place.

Ultimately, we believe that the regulations are a positive step that draws cross-party consensus. We still believe that there is more to be understood about the Government’s approach to retained EU law. We have no insight into how we have actually got here today; we just see a patchwork of instruments being presented. It does not fill us with confidence that the Government have a clear strategy or plan for how to approach EU law. We believe that the publication of a strategy on the matter is overdue, and that would approve accountability in this place. When the Minister responds, I hope that she can outline the principles that are being adopted when considering which elements of retained EU law to keep. That would give us all a useful guide about whether the Government have actually got a coherent approach to this, and whether they are actually sticking to it.

Thank you, Mr Hollobone, for the opportunity to speak in this Committee. I do understand the Government’s desire to ensure that there is no watering down of equalities law following Brexit and the retained EU law Act, but it appears to me that this statutory instrument is not only unnecessary but could have some serious and unwanted consequences by creating almost a carte blanche for individuals to bring indirect discrimination cases on almost any grounds and with unlimited potential damages. Far from protecting British citizens from discrimination, it would undermine the very idea of discrimination itself. I would be grateful to the Minister if she could answer a few questions about this legislation, particularly about regulation 3.

The explanatory memorandum and the retained EU law dashboard explain that regulation 3 reproduces the legal effect of a European Court of Justice case, which is referred to as CHEZ for short in the document. Briefly, in that case, a woman was living in a Roma-majority suburb of a Bulgarian town. She herself was not Roma. The electricity company installed electricity meters at 7 or 8 metres above ground level in the suburb—much higher than the usual 2 metres. That was deemed to be based on the fact that the population was majority Roma. The non-Roma woman alleged that she had suffered direct discrimination based on race. The Court found that she had suffered indirect discrimination on the basis of race. In that context, she herself did not have the protected characteristic of race to which the discrimination pertained. However, she was allowed to seek equivalent relief as if she did, because she had suffered the same negative impact as someone who was being discriminated against on the basis of their race.

My understanding of that CHEZ judgment is that it applies to the Equality Act now, has been applied twice by the employment tribunal and will remain domestic law by virtue of section 6 of the European Union (Withdrawal) Act 2018. There is no indication that the courts will overturn this, so my first question to the Minister is this: why do the Government believe that it needs to be enshrined in primary legislation?

The power to reproduce under section 12(8) of the Retained EU Law (Revocation and Reform) Act applies only to EU law that directly formed part of domestic UK law, without the need for implementing UK legislation. There is nothing in the CHEZ judgment that suggests it does have that direct effect, so why do the Government think that it does have that direct effect and therefore can be enshrined today in primary legislation?

My understanding is that the existing law on direct discrimination is enough to protect against this “same disadvantage” idea in cases like CHEZ. For instance, if a group of friends went to a restaurant and were refused service on the basis of the ethnicity of one of the members of the group, all of them would currently have a claim for discrimination. If that is enough to prevent that mischief in question, why are the Government proposing a new law that will put the existing law on steroids and have such disproportionate, unintended and unpredictable consequences?

My understanding is that, on the whole, UK courts have disregarded CHEZ because the existing law on direct discrimination does the job, and also because the real purpose of that CHEZ judgment was very specific: the Court wanted to address anti-Roma discrimination in central and eastern European member states. That is clearly not applicable here, so why are the Government treating this narrow, specific case-law judgment from another country as the basis for a general new law in primary legislation in the UK? I would be very grateful to the Minister if she could provide an answer to those questions.

In summary, the effect of this statutory instrument will be to undermine our understanding of discrimination rather than to strengthen it, because it will undermine our understanding of protected characteristics—which are there, obviously, to protect minorities—by gold-plating an obscure piece of foreign case law that essentially allows someone without a protected characteristic to piggyback off someone who does.

I very much regret that the Government have brought this legislation today. I have had engagement with the Secretary of State and I do believe that there is now some concern about this among Government. I understand that there is no technical case for asking for an adjournment of this debate today, but I think that that is a shame, because I do not think that it has been properly considered. I ask that the Minister urgently considers the long-term and unintended consequences of this measure, including the cost to businesses, because it will make it on to the desks of HR officials across the country and could potentially have quite a serious chilling effect.

It is good to see you in the Chair, Mr Hollobone. I want to make a couple of short points. From my party’s perspective, it is good that we are retaining important EU employment law rights in our domestic legislation and it is good that it is to be enshrined in primary legislation, although I rather object to the general rewriting of primary Acts of Parliament by statutory instrument. More fundamentally, from my party’s point of view, it does seem that a hell of a lot of effort has been put into keeping things as they are. That is, of course, the inevitable result of Brexit, of the type of Brexit that was negotiated and the Retained EU Law (Revocation and Reform) Act 2023, all of which we absolutely opposed and continue to regret.

But we are where we are, and although we are restating the law as it stands, it is important to bear in mind that divergence is going to occur in future. EU law principles and employment law will continue to develop after 1 January next year, driving up minimum standards and protections. Those developments will not take place in the UK unless we replicate them. Perhaps the way we should respond to those developments is a debate for another day.

Turning to this SI, this is quite a technical task and it is difficult to scrutinise through a Statutory Instrument Committee. I echo the comments of the Equality and Human Rights Commission about this particular issue. It welcomed the enshrining of these protections in law, but stated that

“it is desirable that Parliament and other stakeholders have sufficient opportunity to scrutinise any proposals to avoid unintended consequences, such as through primary legislation.”

But not only are we rewriting the Equality Act through a Statutory Instrument Committee, the explanatory memorandum explains that consultation was not deemed necessary by the Government. That is a wholly inadequate process and, given the limited scrutiny and the lack of consultation, how confident can the Minister be that there are no unintended consequences of these regulations in the light of these comments? Against that background, I very much welcome the work of the European Scrutiny Committee in looking at these particular statutory instruments, because I do not think an SI Committee such as this can really do that job properly.

The other point I want to make is to echo something that the shadow Minister, the hon. Member for Ellesmere Port and Neston, alluded to: there is a question about what is still missing from the Government’s SIs. An article I read about this SI noted that there still has not been any incorporation of European Court of Justice decisions on issues such as the use of 90-day rolling periods when assessing if collective redundancy consultations are required or whether contracts can be split after a TUPE transfer. Those are just two examples of things that do not appear to be in this SI or any other. Is there to be another employment-related SI to come before the deadline at the end of the year?

We support what has been done. We support this SI, but we object to the process and not just to the process—the reasons behind the process being required in the first place.

I hope that everyone in this Committee, and indeed in this House, wants to protect women. That is a very important principle as expressed, for example, in my International Development (Gender Equality) Act 2014. On the question of the charter of fundamental rights, that has now been excised from our statute book by clear and explicit words. That is the issue that I want to address and that my Committee, the European Scrutiny Committee, is examining at the moment in a series of evidence sessions.

I listened with great interest to my hon. Friend the Member for Penistone and Stocksbridge because there is a lot of law in here that I will not regale the Committee with today. I think there is time enough for that. The bottom line is that in the Supreme Court judgment last month, which by any standards was an important judgment, the case of ASM was dismissed. It did not receive much attention, but that is what happened. The Court concluded that the statutory repeal under the Retained EU Law (Revocation and Reform) Act 2023 had the effect that provisions relating to his case had been, by clear and explicit words, effectively removed, so his case had to fall and was dismissed. That is very important indeed. It was reflected by what Lord Jonathan Sumption said on the “Today” programme only a couple of hours ago: he said that if the words are explicit and clear in the case of a repeal of, in this instance, retained EU law, the courts will of course carry out the instructions of Parliament where the intention is clear, unambiguous and explicit. That is the crucial test.

The question in this instance is whether that test is something that needs to be taken into account at the time the decision is taken on the Floor of the House. The procedure of the House can be a little opaque. It can be that we end up without having a full debate on the subject. I heard what my hon. Friend the Member for Penistone and Stocksbridge said—that there are questions still in the mind of the Government over this. In that event, I would suggest that the most appropriate approach in this instance would be to make sure that there is adequate time for consideration. In other words, we should not have a rushed decision on the Floor of the House about these regulations.

It is still open to the Government because, as you rightly said when I made my point of order, Mr Hollobone, this is a matter for the Committee to consider, rather than decide on. We want to be sure that when the decision is taken, account can be taken of, for example, what the European Scrutiny Committee may want to say about this. We will obviously look at it, because it has evoked a lot of interest and some concern. Rather than repeat what my hon. Friend the Member for Penistone and Stocksbridge has said, the best thing I can say is that my objective in being here today, while I obviously do not have the right to vote, is to take this opportunity to speak—for which I am extremely grateful to you, Mr Hollobone.

The subject matter is important, and there are principles here of great significance. There are questions of interpretation by the courts that could be taken at a later date. We want to be crystal clear that if serious objections have been and can be raised—and will be—as we proceed and as the situation evolves, the House can come to the right conclusion as to what interpretation will be placed on this provision.

Is not the problem we now face as a Parliament that we have this deadline of the end of the year to get this sorted, and it is precisely because of that that we are left with pretty much no choice but to take what the Government deliver to us, or else lots of these employment protections will fall away?

The hon. Gentleman is super courteous, and he has put his finger on it, I have to say. In informal discussions with members of Government I have raised that I am concerned about the fact that this list of legislation has not yet been finalised. Some Members may recall that I took part in the ping-pong on this subject. The Government accepted an amendment that I put forward, which has also been put forward in principle in the House of Lords to ensure that the list accurately reflects what we want to remove and what we do not.

That is something the hon. Gentleman quite rightly points to; we have had to wait an awfully long time for this list to appear. If it does appear, it seems to me that there are grounds for including this provision as one that should be revoked rather than allowed to go through by way of adaptation. I will not offer more thoughts on that for the purposes of this Committee.

I would just like to put on the record that a lot more consideration could usefully be done. We are not asking for an adjournment of this Committee or anything like that, but we would like the opportunity to deal with the issue properly and fully and for the Government’s reappraisal of the position—if it is thought to be appropriate—to take place as the result of proceedings in the House. This is a very good example of the way in which this House operates compared to some foreign jurisdictions, where these matters are not properly looked into. It is tribute, if I may say, to the manner in which we conduct our procedures that these opportunities can be provided to clarify things and make sure we do not make any serious mistakes.

I thank you, Mr Hollobone, for the chance to speak in this debate, even though I too do not have a vote. Can I extend my thanks and gratitude to hon. and right hon. Members present? I know that these Delegated Legislation Committees are sometimes a bit of a chore, and as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has said, this maybe is not the best vehicle for examining some of the detailed legal considerations. Certainly it has been a challenge to me as I have looked at it. However, I do have some concerns about regulation 3 of the regulations before us.

I echo the concerns of my hon. Friend the Member for Penistone and Stocksbridge that the existing provisions will be, in her words, on steroids as a result of this. We all recognise the importance of the Equality Act 2010, and the provisions and protected characteristics within it. Likewise, we recognise the importance of provisions for addressing direct discrimination and indirect discrimination, but this seems to extend that further to be an associated indirect discrimination. I hence have this concern about a kind of gold-plating of the regulation that we have, which I would suggest works pretty well at the moment.

I have two particular concerns: one is to the direct effect and the other is to desirability. I will take direct effect first. The Minister proposes to make these regulations under section 12 of the Retained EU Law (Reform and Revocation) Act. Now, that section gives a “relevant national authority”, in this case the Minister, power through regulations to reproduce the effect of any retained EU law that has direct effect. That is, EU law that, under section 2 of the European Communities Act 1972, has legal effect without further enactment. As the explanatory notes and the REUL dashboard make clear, regulation 3 reproduces the effect of the case that we referred to as CHEZ previously, which has been described by my hon. Friend the Member for Penistone and Stocksbridge. That decision expands the scope of indirect discrimination under the Equality Act, so as to confer a right of action on claimants who suffer alongside victims of indirect discrimination, even if the claimant does not share the same protected characteristic.

It is therefore unclear to me whether this judgment has direct effect in UK domestic law, and it follows then that it is unclear whether the Minister has powers under section 12(8) of the REUL Act to reproduce the effects of CHEZ. I ask the Government to delay enactment of the regulations until such time as this question has been fully explored and satisfied or, if I might refer to my hon. Friend the Member for Stone, at least until we have had time to be regaled by him on the points of law on that matter.

I will turn to the question of desirability. Regulation 3(2) provides that persons with the “relevant protected characteristic” must suffer “particular disadvantage”, and people without it must suffer “substantively the same disadvantage”. This begs the question, what does “substantively” mean, in the Government’s view? Does it mean that the disadvantage has the same cause or that it is the same extent of disadvantage? It would be helpful to clarify this. This is important because regulation 3 does not actually safeguard the concept of discrimination, in so far as I understand it. The purpose of indirect discrimination is to protect minorities in particular, but instead of protecting minorities particularly, this new law protects anyone generally who suffers disadvantage. Why are the Government trying to protect discrimination by effectively diluting it into non-existence? I am happy to be challenged and corrected on these points but this is my understanding of it.

I will give an example. The law currently sets height requirements for police candidates, and says that those are indirect discrimination because they would put women at a particular disadvantage. The Government want to expand the law, it appears, so that short men will have the right to sue for sex discrimination because they then suffer the same disadvantage. It begs the question whether it is the purpose of equality law to protect short men or anyone who suffers a comparable disadvantage. There are important ramifications: I am concerned this new law will expose employers to unlimited damages, if they are then found liable. As somebody with an engineering, rather than legal, background, I hope my colleagues will forgive me if I have stumbled over this, but how will employers keep on the right side of the law? I am looking for practical application here.

I welcome the incorporation of this judgment and I will give the hon. Gentleman a different example. Let us say that an employer has discriminated against LGBT members of staff, and actually that discrimination includes somebody who is not, in fact, LGBT, but is perceived by an employer to be. This judgment would surely then allow that person to also seek damages. I do not think that this would be objectionable from any point of view, would it?

The hon. Gentleman has done two things: he has exposed my engineering, rather than legal, background, and he has raised a very good question, which I look forward to hearing people with a legal mind tear apart and pick apart in consequence. I thank him for that.

My understanding is that the protection already exists, as I explained in my speech, but the point of this new legislation would be to allow someone who is outside and not connected with that group of people who have been classed, perhaps incorrectly, as LGBT by the employer to claim the same discrimination. We already have that protection in our law, but this would put it on steroids, for additional people to claim who do not necessarily suffer the disadvantage at the moment.

My hon. Friend, as usual, makes a thought-provoking point. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East talked about the limitations of a Committee discussing detailed legal points.

To return to the practical application, how can a human resources officer foresee all the individuals who might suffer some disadvantage under these regulations and bring a claim in the employment tribunal? That is unworkable. In particular, how will employers satisfy themselves that the disadvantage is justified in each case, when they cannot possibly foresee each case?

I am grateful for your indulgence, Mr Hollobone, and that of the Committee. I think these are profound questions. I tread softly and lightly into this space, but I think it has been important to raise these issues. I urge the Government to respond to them in a timely fashion so that these regulations are not enacted in haste.

I am grateful to all hon. Members who have spoken. Britain has a proud history of justice and fairness and has some of the world’s strongest and most comprehensive equalities legislation, thanks to the Equality Act 2010. By setting out these EU-derived protections in domestic law, we will ensure that our equality framework provides clarity and continues to protect the fundamental rights and freedoms of people in this country.

I assure the shadow Minister, the hon. Member for Ellesmere Port and Neston, that there is a cross-Government approach to retained EU laws. A publication on progress on that work is planned for January as part of the statutory six-month reporting requirement. The EU law dashboard on, which was last updated on 8 November, sets out the laws that we are retaining. I take his point that more information on that would be helpful to Members across the House. I reiterate that the retained EU law powers are available until June 2026, so we can continue to review the EU laws, and even if we do not retain them now, we have the potential to do so in future.

On the comments by my hon. Friends the Members for Penistone and Stocksbridge and for Aberconwy, I reiterate that the CHEZ ruling is already the basis of law across Great Britain. Whether or not we agree with the judgment, it was made in 2015, before the implementation period, and therefore falls under section 4 of the European Union (Withdrawal) Act 2018. Because of that, it falls under section 12(8) of the Retained EU Law (Revocation and Reform) Act 2023, which enables the Government by regulation to reproduce to any extent the effect of anything that was retained EU law by virtue of section 4 of the European Union (Withdrawal) Act. That is why it comes under the Retained EU Law (Revocation and Reform) Act, and why we have been able to table these regulations.

Section 3 of the Retained EU Law (Revocation and Reform) Act gives Ministers powers not just to replicate but to amend laws as they are put on the statute book. That is not specific to this instrument. That power was voted on in Parliament.

On a point of information, regardless of what happens with these regulations, which are only for consideration in this Committee and will be subject to final approval on the Floor of the House after fuller consideration, does the Minister agree that if the argument is made as clearly and thoroughly as it can be—thanks to my hon. Friend the Member for Penistone and Stocksbridge, the case has been made more clearly and more explicitly—it could be included in the Government’s list of items for revocation in their entirety?

My hon. Friend is suggesting that we revoke the legislation that we are considering, which provides the protections that I set out in my opening speech. It is certainly the Government’s view that it is important that we retain those protections, whether they relate to discrimination against women going through pregnancy, disabled people or others with protected characteristics. To clarify, the way the instrument interprets the CHEZ ruling is not new legislation. As I set out, the CHEZ judgment was before the implementation period, so it is already a basis on which judgments are made. Because it falls under the Retained EU Law (Revocation and Reform) Act, this statutory instrument just puts that on a domestic footing.

I fully acknowledge the challenge of debating such a detailed subject in this setting, but given that the ruling exists, why do we need to enact the measure through regulations now? There is provision in place.

The reason is that the provisions currently fall under section 4 of the European Union (Withdrawal) Act 2018 and that if we do not replicate them under the Retained EU Law (Revocation and Reform) Act, they will fall. That would mean that protections for women who are pregnant or breastfeeding fall at the end of the year. That is why we need to replicate them.

Let me touch on the point about whether the measure provides expanded powers—I think “power on steroids” was the phrase that was used. The legal advice is that CHEZ can be interpreted as already giving horizontal rights, so we are not introducing such rights through this statutory instrument. Even if it did not give such rights, section 13 of the Retained EU Law (Revocation and Reform) Act, which Parliament voted on, gives Ministers powers to resolve ambiguities and remove doubt or anomalies to facilitate the improvement of the law. That is the power that that Act provides. We believe that the CHEZ ruling already gives horizontal rights, but even if it did not, the Act gives leeway to Ministers to tidy up those provisions.

Is the Minister saying that she believes that the legal probability is that the CHEZ judgment already has direct effect in UK law? On my understanding, that is the only situation in which the power can be used to reproduce the judgment in primary legislation. It is not clear to me that it did have direct effect. At the moment, there is clearly no case in the UK courts to suggest that.

The legal advice is that it is arguable that it can be interpreted as giving horizontal rights, and that is why the instrument reflects that.

The basis of this argument was that we believed that, in leaving the EU, it was fundamental that Parliament made decisions about which laws we retained, repealed or amended. That is exactly what we are doing today. We may differ over whether we believe that the protections are needed or whether they go too far, but it is now Parliament that is making that decision.

The Minister is making an interesting case, and I understand that she prepared her notes and thoughts before she came to the Committee. At the same time, questions have been raised with regard to matters of ambiguity or uncertainty in interpretation that could apply in this instance. It is possible for the Government to consider their position on the merits of the issue—on the basis of another understandably important opportunity to look at the legal implications of the instrument—after the Committee has finished its consideration. They cannot make the decision now. There is an opportunity for these matters to be looked at more carefully and with great legal analysis in a way that I am quite sure will throw up some further points, which can then be taken into account when the final decision is about to be made. I am sure that the Minister would agree with that. Otherwise, there would be very little point in the procedures.

I take my hon. Friend’s point, but if we had not left the EU, the CHEZ ruling would still be the basis of the way in which decisions are made right now on discrimination cases. Any law can be challenged in courts and precedents can be set, but that does not mean that we should not set out the law as we determine it should be interpreted. Obviously, case law can change that, but the CHEZ case was back in 2015, so it falls under the European Union (Withdrawal) Act. We have decided as a Government to retain those protections. Let me set them out for hon. Members: they are around maintaining equal pay for pregnant women; protecting women from less favourable treatment because they are breastfeeding; and helping pregnant women facing discrimination with being able to return to work.

I completely agree with the Minister about the need to protect equal pay, pregnant women and so on; I do not think there would be any disagreement on that. The problem is the unintended consequences.

I will come back to the example of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. At the moment, let us say that a group of people were thrown out of a pub because of a homophobic landlord who thought that they were all LGBT. Let us say that they were not LGBT; the people who were not would currently, under UK law, have a case for discrimination, and rightly so.

The problem is that the effect of this legislation would be that if someone else walked into the pub who was not LGBT, and the landlord did not think he was LGBT but still threw him out, he would be able to claim that he suffered the same effect of discrimination, even though he did not have the protected characteristic. That is the impact. The lady who won the CHEZ case was not Roma, and nobody thought that she was Roma. She experienced the same discrimination as Roma people, but she was still able to claim. That is the difference between existing law and what this legislation potentially puts into practice, and that is the unintended consequence.

That is open to interpretation, and that is exactly what the courts are there for: to decide how existing laws are interpreted. However, the CHEZ judgment is part of existing case law. It is the basis of how discrimination is determined right now. If we did not have this instrument and we had not left the EU, that would continue to be the case. At the end of this month, if we do not retain the law, those protections for pregnant women, disabled people and those with protected characteristics will fall completely. The CHEZ judgment is actually the basis of case law.

I am trying to be helpful to the Minister here. Putting aside all those arguments, I am not an employment lawyer, and I did not prepare on this particular case in advance. However, a more fundamental point is that that judgment is part of UK law just now. It would be outrageous if, through the statutory instrument procedure, we just decided to dump it overnight. If people have a beef with that particular case, they should promote a private Member’s Bill or encourage the Government to bring in another bit of legislation. Today is about a statutory instrument preserving the status quo. Any other course of action from the Government would be completely unacceptable.

Absolutely; I agree with the hon. Gentleman on that point. I hope that in debating the statutory instrument, colleagues will realise that whatever we think about which laws we retain or revoke, it is based on the CHEZ ruling of 2015. That will not change after the statutory instrument is approved on the Floor of the House. There is no change: it is still based on the exact same principles since the CHEZ ruling of 2015. It is really important that we retain those protections, because without them vulnerable groups will be left without protection and face discrimination. I hope that colleagues will join me in supporting the regulations, which I commend to the Committee.

Question put and agreed to.


That the Committee has considered the draft Equality Act 2010 (Amendment) Regulations 2023.

Committee rose.

Draft Agriculture (Delinked Payments and Consequential Provisions) (England) Regulations 2023

The Committee consisted of the following Members:

Chair: Sir Robert Syms

† Anderson, Lee (Ashfield) (Con)

Clarke, Sir Simon (Middlesbrough South and East Cleveland) (Con)

† Edwards, Ruth (Rushcliffe) (Con)

† Fabricant, Michael (Lichfield) (Con)

Foy, Mary Kelly (City of Durham) (Lab)

† Hammond, Stephen (Wimbledon) (Con)

† Hussain, Imran (Bradford East) (Lab)

Khan, Afzal (Manchester, Gorton) (Lab)

† Loder, Chris (West Dorset) (Con)

† Loughton, Tim (East Worthing and Shoreham) (Con)

† Metcalfe, Stephen (South Basildon and East Thurrock) (Con)

† Mills, Nigel (Amber Valley) (Con)

Ribeiro-Addy, Bell (Streatham) (Lab)

† Spencer, Mark (Minister for Food, Farming and Fisheries)

Sultana, Zarah (Coventry South) (Lab)

† Western, Andrew (Stretford and Urmston) (Lab)

† Zeichner, Daniel (Cambridge) (Lab)

Abi Samuels, Committee Clerk

† attended the Committee

Seventh Delegated Legislation Committee

Wednesday 6 December 2023

[Sir Robert Syms in the Chair]

Draft Agriculture (Delinked Payments and Consequential Provisions) (England) Regulations 2023

I beg to move,

That the Committee has considered the draft Agriculture (Delinked Payments and Consequential Provisions) (England) Regulations 2023.

These draft regulations were laid before the House on 7 November. I will start by drawing attention to my entry in the register of Members’ financial interests.

This instrument is part of England’s transition from the common agricultural policy to our environmental land management schemes. The instrument introduces delinked payments in 2024, which will take the place of the direct payments of the basic payment scheme in England. Delinked payments are similar. However, unlike the basic payment scheme, delinked payments will not be based on the amount of land someone has. Instead, they will be based on the basic payment scheme payments made in a reference period. That will reduce administrative burden as we phase the payments out by the end of 2027.

There will be no need for an annual application form, as the Rural Payments Agency will already hold the data needed to check eligibility for those payments. That will mean farmers having to spend less time filling in forms than under the current scheme, and that will provide flexibility for farmers. We are allowing reference amounts to be transferred between businesses during a transfer window from February to May next year. That will be particularly helpful for businesses that have changed in structure since the start of the reference period; for example, if two or more businesses have merged, a reference amount could be transferred from the original business to the current business. Special rules will apply in cases of inheritance.

The Government intend to reduce the payments each year by applying percentage reductions to gradually phase them out, which will continue to free up money to be reinvested in our new farming schemes. The reduction percentages will be set out in secondary legislation, which will be debated in this House. We intend to make the payments in two instalments each year to continue to help with cash flow and ending the basic payment scheme also means ending the associated cross-compliance system. When cross compliance ends, farm standards will be maintained through domestic regulations that protect the environment, the public, animal and plant health, and animal welfare.

Those regulations will be enforced in a fair, consistent and proportionate way by our existing regulatory authorities. The cross-compliance rules that are not in underlying domestic legislation will have cover through current and forthcoming guidance, regulation or incentives. We will deliver a fair, clear and effective system to regulate agriculture. The Department for Environment, Food and Rural Affairs is working with regulators to implement a more preventive, advice-led approach to monitoring and enforcement. The introduction of delinked payments is an important step in our transition to payments that deliver better environmental outcomes.

The explanatory memorandum states that a recipient will not actually need to have any land to continue to receive payments. Could the Minister explain the logic behind giving a farm payment to someone who has no farm? Would we expect the payment to then be transferred to the person had come into ownership of the land, or could they just keep receiving it for a number of years?

To be clear, that is not the case. An individual will have to have control of the land parcels associated with that business. If those entitlements are transferred to another business, that will be the case. It should not be possible for someone to retain the payments without having ownership or control of that land parcel. They would have to pass it to another person who was operating and farming or being in control of that land parcel. I am happy to come back to my hon. Friend later in the debate.

We will deliver a fair and effective system to regulate. For example, we have used the money that has been freed up from direct payments already to establish the slurry infrastructure grant to help livestock farmers tackle pollution from slurry. That includes committing to spend over £200 million on ongoing grant support for equipment and infrastructure. We are also funding our sustainable farming incentive, which rewards farmers for farming practices that help to produce food sustainably and protect the environment. Our expanded 2023 offer has already attracted more than 4,000 applications in the two months since the application window opened. That, of course, builds on the success of our countryside stewardship scheme, which now funds more than 32,000 agreements, which is a 94% increase since 2020.

Those are just some of the ways in which we are reinvesting the money from direct payments to deliver improved environmental outcomes and to support sustainable food production. As delinked payments are in place of the basic payment scheme, this instrument revokes the law governing the basic payment scheme as it applies in England. It also makes minor changes to other domestic and retained EU legislation that applies in relation to England. Those changes ensure that the legislation continues to work effectively once the basic payment scheme ends.

In conclusion, by introducing delinked payments, this instrument enables us to pay former basic payment scheme recipients for the rest of the agricultural transition, but without the bureaucracy associated with the current scheme.

It is a pleasure to serve with you in the Chair, Sir Robert. This is a weighty instrument. In fact, it is probably three instruments. It is a shame that the three issues cannot be considered separately, because, while we support the intention of moving away from basic payments and support an environmentally friendly sustainable food system, frankly, we are deeply unimpressed by the way that the Government are doing it, and we have significant concerns about the potential environmental risk caused by the removal of cross-compliance. However, we must decide on the instrument as a whole, so we will not be opposing it today, but that should not be read as approval for the Government’s failures.

These draft regulations are familiar grounds. I have discussed many very similar statutory instruments over the past three years or so, and debated the Agriculture Act 2020 and indeed the Direct Payments to Farmers (Legislative Continuity) Act 2020 with the Minister’s predecessors. I am sure that the Minister will be delighted to know that I have at hand both his and his predecessors’ speeches, from which I can quote. This instrument marks another step in the Government’s long-drawn-out post-Brexit reforms to the farm-support system over the past five years and counting. One is tempted to ask, “Are we nearly there yet?”

It is worth repeating that we on the Opposition Benches agree that farm support should be changed to a system that uses taxpayers’ money to incentivise public goods in the form of environmental benefits. We have also repeatedly and consistently argued throughout that those public goods should include support for sustainable food production, and that a baseline of farming regulation is critical to ensuring that the environmental gains are genuine. Furthermore, the system should not end up with farmers who do not wish to take part enjoying an unfair advantage at the expense of our wildlife and landscapes. Those remain our key tests for the Government’s plans, and I am not particularly convinced that this set of regulations does enough to meet them.

Large sums of public money are at stake. Even with the reductions that have already taken effect, the National Farmers Union has estimated the amount to be paid out in 2024 alone will still amount to around £700 million. The taxpayer is entitled to ask what public value will be got from all that cash. Equally, what has happened to the money that has already been deducted from farm payments during the transition period? According to the figures in annex D of the Government’s original 2020 transition plan, in total, from 2020 to 2023, around £1.3 billion to £1.4 billion should have already been saved by the end of this year, with another £1 billion to come next year. Can the Minister confirm how much of that has actually been paid out to farmers to date under the new environmental land management scheme?

The Minister’s predecessor, the right hon. and learned Member for Banbury (Victoria Prentis) told us in 2021:

“All funding released from the reductions will be reinvested in new schemes in this Parliament.”—[Official Report, Fifth Delegated Legislation Committee, 18 March 2021; c. 3.]

And, in March 2022, she said:

“All moneys that are saved by those reductions will be invested in farming and farming businesses.”—[Official Report, Third Delegated Legislation Committee, 15 March 2022; c. 11.]

The Minister himself told me, only in February this year, that he was, “more than happy to” reassure me

“that we will deliver that cash”,

and that as

“we move into these new schemes, we will transfer all that cash from one pot into the other.”—[Official Report, Fifth Delegated Legislation Committee, 28 February 2023; c. 10.]

So, if not all of the £1 billion already saved has yet been paid out, where does that cash now sit, and what are his plans to get it out of door in the remaining few months before the election? What is the Department doing to record what has been saved, what has been paid out, and what has been delivered for that money? As I have asked before, will he explain how any underspend will be dealt with and for how many years it will be rolled forward? I am advised that underspends in the European Union schemes could be carried forward for up to three years. Has the Department agreed with the Treasury that that arrangement will be mirrored?

The Government are fond of claiming that payments under the common agricultural policy went mainly to better-off farmers. We are used to seeing the Institute for Fiscal Studies produce a detailed distributional analysis setting out the impact of Budget measures on people at various points in the income distribution. Will the Minister consider commissioning the IFS to produce a similar analysis of the success—or otherwise—of his new method of allocating funding, according to how well it supports farmers most in need of the cash, or whether, as one might suspect, the lion’s share has gone to those who are already very well-heeled?

The Government have also claimed that reducing basic payments would have an impact on tenants and land values. When we debated this in February, the Minister told me that

“we have not seen that impact on land values, but what is more interesting is the impact that that might have on rental values going forward, and we will have to monitor that to see what impact some of these changes will have on the rented sector especially.”—[Official Report, Fifth Delegated Legislation Committee, 28 February 2023; c. 9.]

So, nine months on, what has that monitoring shown?

Frankly, after our experience of the Government’s cavalier approach to public money during covid, with some £4.3 billion written off, taxpayers might find it a little odd that the plan set out in this instrument is that farmers will get paid for the next few years whether they farm or not. That picks up on the interesting observation made by the hon. Member for Amber Valley. I must say that do not think that the Minister’s explanation is mirrored in the explanatory memorandum, because that itself makes this rather extraordinary admission, in paragraph 7.4:

“There will be no requirement for the recipient to continue to have land.”

I wonder whether the Minister can marry that up with the answer that he gave to the hon. Member earlier.

How does the Minister plan to explain to the people of this country, who have seen their tax burdens rise by £4,300 per household under the Conservatives, that he will be paying out £700 million next year with no requirement that the recipients do anything at all— not even complete an application form, according to paragraph 7.15 of the explanatory memorandum? That is a very efficient system for handing out money to people for apparently doing nothing. I would not have thought that that was necessarily the traditional Conservative approach to public money, but maybe times have changed.

Again, in our debate in February, the Minister referred to people who might “take the mickey”. Given how much the enforcement capability of his Department has already been cut, and that further cuts must now be delivered after the autumn statement, how exactly does he plan to find and deal with any delinked-payment “mickey-takers”?

I am pleased to note that the Department does seem finally to have taken on board my complaints about its habit of making baseless claims in previous explanatory memorandums and have taken out the statement that

“Direct Payments are untargeted, can inflate land rent prices and can stand in the way of new entrants to the farming industry.”

Therefore, we do have some progress after three or four years. However, we are asked to believe, yet again, the Department’s claims, in section 12 of the explanatory memorandum, that

“There is no, or no significant, impact on business,”

and that no impact assessment has been prepared because it relates to grants and is “not a regulatory provision”. So, £700 million is being paid next year, with no claim needed and no requirement to do anything, and there is no impact? That seems odd.

I explained earlier that we have consistently argued for a regulatory baseline of standards that all farmers should meet, but the instrument will remove all of the so-called cross-compliance conditions that still apply to farm payments and require recipients to meet environmental, animal-welfare and public, animal and plant-health standards. As Wildlife and Countryside Link and the House of Lords Secondary Legislation Scrutiny Committee have pointed out, while some of those requirements will continue in other legislation, with others, I am afraid, there are gaps.

In particular, from 1 January, there will no longer be legal protection in place covering hedgerows, soil cover and watercourse buffer strips that are not covered by the farming rules for water. It also risks enforcement gaps on compliance with regulations, such as domestic public rights of way, that benefit from conditionality for payments, which falls away from 1 January. The Scrutiny Committee’s report concludes:

“We note that some elements of the new compliance regime are still work in progress, while other cross-compliance requirements will be set out in guidance, codes of practice or incentive schemes. This raises questions as to whether they can be enforced as effectively as the current statutory requirements.”

Wildlife and Countryside Link has called for the Government to commit to a new system of farm regulation and conditionality to ensure genuine environmental benefits are being delivered by the new environmental land management schemes. Wildlife and Countryside Link has commented that the explanatory memorandum refers to

“generalised and outcome-focussed rules in existing regulation”,

but it points out:

“Many of these domestic standards are guidance and voluntary incentivisation frameworks that do not apply to all farmers…they are not appropriate replacements for enforceable rules under regulatory conditionality. This also creates an unlevel playing field between farmers, risking a ‘race to the bottom’ as those who comply with voluntary standards are disadvantaged commercially.”

I ask the Minister: what assessment has been made of the environmental benefits of removing cross-compliance? I will take his likely silence as confirmation that no such assessment has been made. That is hardly surprising, given that it is actually quite a hard thing to do without the proper bassline assessment that we called for at the beginning.

In conclusion, we support an agricultural transition, but the Government have never set out the destination clearly, so it is unsurprising that they are failing. We will have to pick up the pieces. We want it to work effectively in order to move to a more environmentally friendly and nature-positive food production system, but as we see in this instrument today, we remain concerned that the Government’s piecemeal and long, drawn-out approach is failing to deliver for farmers, taxpayers, or the environment.

May I start by clarifying the question asked by my hon. Friend the Member for Amber Valley. Delinked payments will only be made to farmers who claimed in the previous schemes in 2023. In the basic repayment scheme, there is not the necessity to hold that land in future, but in practice, if people take on lots of land from neighbours, those rights could be transferred if businesses are amalgamated and changed. Technically, it is possible for someone to receive payments without farming that land, but these payments are very much on a diminishing scale and will evaporate very soon, which is the whole purpose of this transition. This transition is to move away from that basic payment scheme to improve our environmental footprint, and to help farmers on that journey of improving our biodiversity and our environment as we move forward.

The hon. Member for Cambridge again asked me about the budgets, and as I have told him in the past, the budget is clear—it is ringfenced. It is £2.4 billion-worth of cash, and it is there to be invested in UK farming to get the outcomes that we want to achieve. If there is an underspend, such as if we spend £2.3 billion this year, we could spend £2.5 billion next year. That is agreed with the Treasury and we can roll that money forward and it will be invested. That is why we have been able to do some of the great schemes that we have been able to roll out to allow farmers to invest in slurry.

The Secretary of State confirmed only the other day at the Country Land and Business Association conference that only 800 sustainable farming incentive schemes are currently being paid out—that is compared to 80,000 basic payment agreements. There is a gap, and I wonder if the Minister would agree to write to me to explain where in the accounts that money is located.

Of course, I am more than happy to write the hon. Gentleman, but he fails to mention the doubling in the number of people that are receiving countryside stewardship agreements—a 93% increase. We now have slurry infrastructure grants, calf housing grants, beef housing grants, and investment in robotics and new technology. All of those were not available under the basic payment scheme, but farmers are now eligible to apply for those capital sums to invest in their own productivity going forward. Of course, I will write to the hon. Gentleman and try to reassure him again, but I fear that he may not want to be reassured, but instead wants to try to frustrate.

That leads me to the hon. Gentleman’s distrust of UK farmers and his worry that UK farmers are going to wreck our beautiful landscape following the loss of cross-compliance. I have to say that that is the environment and the landscapes that they created over generations. Let us just look at the landowners up and down the country who do not receive basic payments and who are not under obligations to meet these rules. Why is he not worried about local authorities that may cut hedgerows in May or June? Why is he not worried about the Coal Authority, which owns vast amounts of property and may go and commit those crimes, as he has indicated? Why is he not worried about golf courses, which may well go and cut their hedgerows in May and June? Why is he only worried about farmers—the people who have protected those landscapes and created them over generations? I trust those farmers. I believe in those landowners and farmers to do the right thing. They have done it for generations, and they will continue to. We are going to help and support them on that journey by investing in them and ensuring that they can do the right thing to improve biodiversity and their environmental footprint.

Question put and agreed to.

Committee rose.

Draft Representation of the People (Overseas Electors etc.) (Amendment) (Northern Ireland) Regulations 2023 Draft Representation of the People (Overseas Electors etc.) (Amendment) Regulations 2023

The Committee consisted of the following Members:

Chair: David Mundell

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

† Blackman, Bob (Harrow East) (Con)

† Britcliffe, Sara (Hyndburn) (Con)

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

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

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

† Eshalomi, Florence (Vauxhall) (Lab/Co-op)

† Freeman, George (Mid Norfolk) (Con)

† Glindon, Mary (North Tyneside) (Lab)

† Hamilton, Mrs Paulette (Birmingham, Erdington) (Lab)

† Hoare, Simon (Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities)

† Long Bailey, Rebecca (Salford and Eccles) (Lab)

† Mahmood, Mr Khalid (Birmingham, Perry Barr) (Lab)

Mishra, Navendu (Stockport) (Lab)

† Mohindra, Mr Gagan (South West Hertfordshire) (Con)

† Morrissey, Joy (Lord Commissioner of His Majesty's Treasury)

† Walker, Mr Robin (Worcester) (Con)

Leoni Kurt, Committee Clerk

† attended the Committee

Eighth Delegated Legislation Committee

Wednesday 6 December 2023

[David Mundell in the Chair]

Draft Representation of the People (Overseas Electors etc.) (Amendment) (Northern Ireland) Regulations 2023

I beg to move,

That the Committee has considered the Draft Representation of the People (Overseas Electors etc.) (Amendment) (Northern Ireland) Regulations 2023.

With this, it will be convenient to consider the draft Representation of the People (Overseas Electors etc.) (Amendment) Regulations 2023.

It is a pleasant surprise to be serving under your chairmanship, Mr Mundell. In their manifesto, the Government committed to removing the 15-year limit on voting rights for overseas electors. That proposition was tested at the ballot box, and I remind Opposition parties of who won at the ballot box. We are delivering on that promise.

Last year, Parliament passed the Elections Act 2022, resolving to extend the franchise to all British citizens living overseas, including eligible Irish citizens, who were either previously registered to vote in the UK or were previously resident in the UK. I am delighted to bring forward two statutory instruments that flow from that Act and make good on that manifesto pledge. If approved by Parliament, these instruments will together make necessary changes and improvements to electoral registration processes across the United Kingdom from 16 January 2024 to coincide with the commencement of the franchise change.

To ensure that registration processes are workable for applicants and for administrators—to whom all who stand for election owe such a huge debt of thanks—we have worked closely with our delivery partners and stakeholders across the electoral sector and have engaged with representatives of British citizens overseas on the design of the process. We have created a process that ensures that our democracy remains secure and fair, and is modernised and transparent. Nothing in anything that I am proposing undermines, weakens, frustrates or challenges our electoral process. I believe the proposals will make it more resilient and more robust.

Let me say a few words on registration by outlining the changes these instruments will make to the registration application process to enable overseas electors to apply, and to enable electoral registration officers in Great Britain and the chief electoral officer in Northern Ireland to determine their eligibility under these new criteria. These instruments ensure that there are robust processes to verify an applicant’s identity and establish their eligibility to register at their qualifying United Kingdom address.

The Elections Act 2022 established two conditions for registering to vote as an overseas elector. Going forward, an individual can apply under the previous registration condition or, if they have never registered, the previous residence condition. Applicants who have previously registered to vote in the UK should apply in respect of the address where they were last registered under the previous registration condition. For the first time, applicants who have been previously resident in the UK but have never registered to vote can apply in respect of the address where they were last resident under the previous residence condition. That is an important point: the new or renewed voter will need to be able to demonstrate clearly and conclusively a link to the register to which they are applying to be a member. They will not just be able to choose at random somewhere where they either wish they had lived, hoped that they had lived or would have lived because the political party that they choose to support has a particularly marginal seat in that immediate geography.

Applicants will, as now, be required to complete a declaration as part of their application. That is important. These instruments update the declaration requirements to reflect the new eligibility criteria. When determining an application, electoral registration officers must check—no “might check” or “should check”—the applicant’s identity and connection to their qualifying previous UK address.

To check the applicant’s identity, as now, the applicant’s national insurance number will be data-matched by the Department for Work and Pensions. Digital improvements mean that this process will be quicker than the current identity checks. Where an applicant cannot provide a national insurance number or this cannot be matched, they will now be able to provide documentary evidence. This new step, introduced by the instrument for Great Britain, brings the process into alignment with existing practice, maintains integrity and eases the administrative burden on applicants and administrators by reducing recourse to attestations.

As now, an attestation from a qualified elector—that is, a statement from a UK-registered elector who is not a close relative—may be used to verify an applicant’s identity where verification by documentary evidence is not possible. To verify an applicant’s connection to their qualifying address, as now, in most cases electoral registration officers will be able to rely on checks against previous electoral registers in most cases. Registers are currently typically held for 15 years and we expect that they will be retained for longer in the future.

Where registered checks are not possible, the instrument enables several ways to verify an applicant’s connection to their qualifying address, including a DWP data match and checks against local records where available. The instrument also gives registration officers the power to request several types of documentary evidence originating from reputable sources, such as the UK Government, local authorities and banks; these are to be provided by the applicant. We have considered stakeholder feedback on documentary evidence available to overseas applicants and have provided flexibility in these measures while retaining integrity. I pause for a moment to say that, where there has been the need for a balanced judgment between interpretive ease and the need to maintain integrity, integrity has won through on every occasion. That is so important.

An attestation from a qualified elector can also be used for qualifying address verification where the use of documentary evidence is not possible. This is in close alignment with the process for verifying the identity of both overseas and domestic electors.

I now turn to the renewal process and absent voting arrangements. Currently, to stay registered, an overseas elector must reapply annually. This instrument implements a new fixed-point renewal process that enables overseas electors to remain registered for up to three years. In Great Britain, overseas electors’ absent vote arrangements will also be tied to the registration renewal process, meaning that an overseas elector will be able to renew their registration and their absent vote arrangement at the same time.

These changes will benefit the elector. Enabling that elector to maintain their registration and absent vote in this way means that, when a parliamentary election is called, the elector’s absent ballot can be issued without delay. That is helpful to those administering the elections in order to ensure the smooth delivery of relevant paperwork. This improved process will also maintain the accuracy of registers, minimise time-consuming processes and reduce workload.

Registered overseas electors will be able to renew their declaration within the last six months of their current registration period. The instruments will ensure that overseas electors are made aware in good time when they need to renew. Electoral registration officers will be required to send a first renewal reminder after 1 July during the year that an elector’s current registration period is due to expire, with a second reminder to follow a reasonable time thereafter, enabling registration officers to manage the process alongside their other diverse and onerous responsibilities. The instrument applying to Northern Ireland does not amend absent voting arrangements, as electors registered in Northern Ireland are automatically entitled to use proxy voting as part of the existing process.

These instruments maintain integrity of registration processes, including by setting requirements for attestors and applying a limit to the number of individuals an attestor can attest. Within an electoral year, an attestor may provide identity attestations for a maximum of two individuals and, separately, address attestations for, again, up to two individuals. We believe this to be a necessary and proportionate measure that maintains integrity whilst ensuring accessibility for overseas applicants who can now be attested by any qualified UK-registered elector, not just an overseas one.

In addition to the changes I have just outlined, these instruments make further improvements to the registration process. They make it easier and quicker for overseas applicants by enabling electronic submission of information, including copies of documentary evidence. In some cases, these can be provided at point of application to speed up the process. Overseas electors registering in Great Britain are also now able to apply for a postal or proxy vote online, following the introduction of the new online application services as of 31 October this year.

We continue to work closely with the sector, including the Association for Electoral Administrators and the Electoral Commission, in preparation for implementation; and we will provide funding for additional costs incurred in line with the new burdens doctrine. We are also working closely with the Electoral Commission—I am due to have my first meeting with it next week—because as we know, it has the statutory responsibility to promote democratic engagement.

The commission is undertaking a targeted communications campaign to both engage with British citizens overseas and to promote awareness through their friends and family. My Department will be working alongside other Government Departments, including the Foreign, Commonwealth and Development Office, to facilitate the commission’s plans for awareness-raising, and to amplify its activity through Government communications channels where value can be added. That is a sensible use of our consulates and embassies overseas.

I hope in setting out the details of these two statutory instruments that the Committee will appreciate the thinking that sits behind them, and the firm commitment to robust integrity and resilience. I know that hon. Members will consider them carefully, and I commend them to the Committee.

It is a pleasure to serve under your chairship, Mr Mundell. I thank the Minister for his opening remarks. He is right to highlight some of the areas where the Government feel they have been robust on this matter.

We should celebrate Britain as a country with strong and historical international links, and that millions of British citizens call another country their home. Overseas voting provides an important link for British citizens abroad, across the world. We on this side of the Committee are clear that those who have a strong connection to this country and their community should still have a say in how it is run. We do not oppose the principle of overseas voting and giving citizens who still have a strong connection to the UK a voice in our elections, and that includes people who still have a strong connection to our local services and communities, but we need to consider it carefully—[Interruption.] Is that my timer?

Like many hon. and right hon. Members in this House, I am proud to represent the community that I grew up in. I know how important it is that those who live in our area, who pay their taxes and are part of the community, feel represented. As much as we support the rights of overseas voters, it would be wrong if people with little connection to this country, who may have moved a long time ago and not used any services or paid any taxes in decades, diminished the voice of my constituents and others across the country. We do not think that is right, and it is not in line with the principles of a representative democracy.

We must consider how we strike a balance in our rules. There are voters who still feel a connection to the UK despite living away from it for 30, 40 or many more years, but the policy of removing the cap on this important principle will undermine the balance between enfranchising those people and maintaining integrity in our democracy. Removing the cap will reduce the voice of people who live here, work hard here and contribute to their community, and open up our system to abuse. That is why the Opposition will oppose the regulations. Although I do not think that there is a moral disagreement about some of the issues with votes for life, I fear that the risk of abuse of the system proposed by the Government is far too great.

First, the registration rules proposed by regulation 26H mean that some overseas voters require only the attestation of the identity and past location of another overseas voter. I hear the Minister outlining that there will be additional data material to help to prove an identity. We understand that it may be difficult for legitimate overseas voters to verify their identity, but there seems to be a risk of manipulation of the system to allow those eligible for the scheme to have their pick of which seats they want to vote in.

We have to consider the fact that under our first-past-the-post system, every single vote has a massive influence. Some 30 seats were decided by fewer than 1,000 votes at the last general election. While I am sure that very few will attempt to abuse the system in that way, it could have a large impact on marginal seats when votes are added up around the world. When we think about those seats, we think about many colleagues in this room, although my majority is higher than 1,000. Can the Minister assure me that there will be additional safeguards to prevent fraud? I understand that there is a tight limit on attestation, and that those attesting for another voter will need to sign a declaration of their truthfulness, which is right; but those measures may not be enough to prevent people from trying to abuse the system in a way that could impact the next general election.

The new rules also create a huge loophole in our donation laws. The current rules on UK donations mean that those who donate more than £500 must be on the electoral register. We have to be honest and say that we cannot pretend that the current system is perfect, but it is an important safeguard against money flooding into our political system from foreign and hostile states. Our current system is one where those who are on the register have a clear and recent link to the UK. We think that opening the electoral register as widely as the Government are doing today goes far beyond what our current donation rules were set up to do. It will allow those with tenuous links to the UK, who have spent most of their lives in states that may even be openly hostile to our aims, the right to massively influence our system. The reality is that it will be impossible to ensure that the huge numbers of potential donors in our system are not vulnerable to manipulation by hostile actors. There is already clear evidence of attempts by these actors to influence UK democracy. It will also make enforcement of our rules much harder, given the difficulties that we may face in challenging those who fall foul of donation laws while in another jurisdiction.

The Government know the risk that those hostile actors pose to the UK and our allies. Just this year, we have seen the attack on Britain’s Electoral Commission, although I am happy to hear that the Minister will be meeting the Electoral Commission soon. We have also seen it clearly happen in Ukraine. Therefore, it is beyond belief that the Government are seeking to risk opening up our system at such a critical time for our world.

I know that there are British citizens who still feel a connection to the UK, and they will welcome this rule change, but this rule will also be welcomed by those who want to undermine our democracy and funnel money into our politics. We must not allow that to happen. We must strike the right balance to empower voters without enabling undue influence, but I am afraid that these regulations go nowhere far enough to doing that. I hope that the Minister will think again and that everyone will oppose the regulations today.

Thank you, Mr Mundell. I cannot help but contrast the different situations in these islands. Through voter ID, we are actually making it harder for domestic voters to vote, while we are expanding the ability of millions of others abroad to vote. I have no direct opposition to making it easier for people to vote—I think it should be made easier for them all to vote—but my concern about this measure relates to the risk of overseas influence and foreign money, particularly the potential for unincorporated associations to be used by registered electors overseas and thereby disproportionately skew politics in this country. On that basis, I will be happy to support the Opposition in a vote.

I shall deal first, if the shadow Minister will forgive me, to the comments made by the hon. Member for Linlithgow and East Falkirk. On the basis of the data compiled after a very thorough assessment of the May local elections, I dispute fundamentally that there is any evidence that it has been made harder for people to vote. Our system has been made more robust and more resilient to meet the challenges of the time. That the Government have some sort of malign intent to suppress turnout or legislation is a trope that has been trotted out by several people involved in politics in recent times. The hon. Gentleman is smiling. I would call him a friend—we were in the same 2015 intake—but such a mindset is entirely alien to our history and to our processes in all the reforms to widen representation, going back to 1832, 1867 and other Acts. We need to ensure that our democracy is robust and resilient to challenge and that it meets the purpose of modern times, and I refute wholeheartedly any idea of suppression, gerrymandering or falsification, or the sorts of things that sit alongside that.

I thank my shadow, the hon. Member for Vauxhall for—I hope she will not take this the wrong way—the gentle and considered way that she approached this debate. I very much welcome her and her party’s support for the broad principles that underpin the regulations. She is absolutely right to ask the questions that she has, and I will endeavour to, if not answer, then certainly address them.

I am tempted to say, on the broader of question whether this will work, the answer is, in essence, this: we believe that it will. A huge amount of resource, time and engagement has been spent to arrive at this position. This is not a “back of a fag packet” piece of legislation. I know the hon. Lady knows that, and she was not suggesting that it was. However, the proof of the pudding will be in the eating. As we saw in the May elections, quite a lot of the things that people were concerned about with regard to voter ID did not come to pass. Some issues have manifested themselves, however, and work needs to be done. This is an iterative and organic process; it will be reviewed and it is able to be tweaked and changed. I am grateful that any future tweaks and changes by this Government or a subsequent Government will be done from the starting point that the broad principle of democratic inclusion is enshrined.

I think it is worth remembering that what we are doing here is not particularly novel. The 15-year qualification is an entirely arbitrary figure. Other democracies have all sorts of conditions, and Canada, France, Estonia and the USA have no limits in their voting rights. We are not breaking new ground here as a point of democratic principle.

False attestation is a criminal offence. People will need to know that, and the full weight of the law will be brought to bear on people who falsely attest. Let us be absolutely honest: we fool our constituents if we maintain that by the passing of a statutory instrument or piece of legislation, we, with a stroke of a pen, remove human instinct and human nature. Is somebody going to do a false attestation? A pound to a penny, somebody will. If we discover them, the full weight of the law will be deployed against them. Tweaks and changes can be made in order to respond to that, but fear of the bad should not stop us trying to do some good. I would argue that what we are trying to do this afternoon is some good.

The hon. Member for Vauxhall raised a really important question when she asked whether somebody can pick a seat: “I support party X, and this seat is particularly marginal, so I’m going to pretend that I live there.” Well, they could try to pretend to live there, but they would not get on the register and would not get a ballot, because they would have no proof at all of being a resident there at any time or of having any connection to the place. That will have to be monitored. I make the pledge that those who are involved in our electoral processes, including the Government from a policy point of view, will look at that. The impact on marginal seats—though I do not think the seat of the hon. Member for Vauxhall is marginal—

I do not think my seat is marginal—I add the caveat of “currently”—but we shall see what happens.

With regard to fraud, the hon. Lady makes an important point. We want our elections to be clean. Why do we want that? These are important principles. We want elections to be clean because we want the victors to understand that their victory is legitimate. More importantly, we need the defeated to understand—[Interruption.] That was a very peculiar noise of support, but I am grateful to the hon. Member for Birmingham, Erdington for it. I am not quite sure if there are any tablets for that, but she was a nurse, so she may have better news on that than I do.

Marginality is an important issue, and as I say, proof of residence and connection will be important. Party donations are exactly the same. Illegal and proxy donations are illegal now. The parties that receive donations have to go through due diligence and checks, and the Electoral Commission provides overview. The National Security Act 2023 is very welcome because it addresses in great part the point that the hon. Member for Vauxhall rightly made. That Act and the Economic Crime and Corporate Transparency Act 2023 create data-sharing opportunities between a raft of organisations, including Companies House and the Electoral Commission. They are hugely important in trying to minimise—we hope to obliterate, though I make the point again about human nature—this problem. The levers and buttons to push to tell against this sort of behaviour and bring serious offence charges against perpetrators are there. The Electoral Commission itself publishes quarterly returns.

Having addressed the points that the hon. Lady rightly, sensibly and properly asked, I hope I have been able to persuade her and her not to divide the Committee, but that is entirely up to her. A lot of work and thought by officials and others has gone into the instrument to make it, as I say, resilient, fair and robust. I believe we have achieved that, and I commend the regulations to the Committee.

Question put.


That the Committee has considered the draft Representation of the People (Overseas Electors etc.) (Amendment) (Northern Ireland) Regulations 2023.


Motion made, and Question put,

That the Committee has considered the draft Representation of the People (Overseas Electors etc.) (Amendment) Regulations 2023.—(Simon Hoare.)

Committee rose.