House of Lords
Monday 13 November 2017
Prayers—read by the Lord Bishop of Ely.
Brexit: Financial Settlement
To ask Her Majesty’s Government what estimates they have made of the impact on the eventual financial settlement with the European Union of those European Union assets towards which the United Kingdom made a financial contribution and which at Brexit will remain part of the European Union.
My Lords, the treatment of the European Union’s assets will need to be agreed as part of the negotiations. The Government are now performing a line-by-line analysis of our potential commitments. We recognise that the UK has obligations towards the EU and the EU has obligations towards the UK.
That fits very much with what the Prime Minister said in her Florence speech on 22 September, when she said that nothing is agreed until everything is agreed. We see this very much as a single negotiation. We want all of the elements to it agreed—and an important part of that will be the financial settlement.
There are parts of that which are related to it. We have said that we want to be fair in the exit and some elements cover, for example, pensions and liabilities for ongoing programmes. Indeed, as the Prime Minister set out in her Florence speech, no country should have pay in more during the current budget cycle and no country should receive less. That is a generous way of recognising that we have obligations, but as part of a wider negotiation.
My Lords, following on from my noble friend Lord Spicer’s question, does the Minister agree that Monsieur Barnier’s position today seems entirely contradictory to the position he set out in the negotiating guidelines published in April, which state:
“In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately”?
My noble friend has great experience in this area. He draws my attention to a significant part of the setting out of the principles which the Prime Minister’s speech of 22 September chimed with exactly. Some of the comments coming from the other side do not necessarily recognise that, so it is good to be reminded of it.
My Lords, in light of the fact that sterling has fallen yet again, does the Minister agree that EU denominated liabilities will increase the greater government uncertainty and instabilities? Is anyone in control? Is it not time for the Prime Minister to get a grip?
She has a grip. That grip was demonstrated in her Florence speech, where she set out our negotiating position, which is very strong and fair. Any settlement would of course be denominated in euros as the currency—we recognise that—but that, too, needs to be taken into account as we agree what the final settlement should be as part of the wider negotiations.
My Lords, the Prime Minister may well have a grip. That is good, but some of us are absolutely fed up to the back teeth of reading, as we did this morning, of two Cabinet Ministers publishing their attack on a third. This is appalling, and something up with which she should not put.
My Lords, the temptation to follow the noble Lord, Lord Cormack, is almost overwhelming, but on this occasion I will resist, to return to the main issue of the Question. We in the Labour Party accept the referendum result, but we will seek to remove the concept of “no deal”, which wrecks confidence as far as British business is concerned. The Minister refers to the fact that other noble Lords have had experience at the Dispatch Box on Treasury matters, but they do not last very long, do they?
I had the benefit of seeing the faces of the noble Lord’s colleagues behind him when he was asking that question, which reminds us that the negotiation is not necessarily easy for any of us, in any party. Where do the Opposition stand on free movement and the single market? The only thing they seem to agree on is that we ought to sign up to whatever is put in front of us. We are saying no—this is a negotiation and we have the right to say no.
My Lords, does my noble friend agree that these matters are very complicated, that it is very important for the United Kingdom to get the best deal it can and that in putting a date in the Bill, the Government are handing negotiating cards to the other side and making it much more difficult for them to secure their own objective?
I beg to disagree with my noble friend, although I recognise his immense experience in this area. All that has been proposed is to make explicit what has been implicit and what has been set out in the Florence speech and all the way through the process, ever since Article 50 was triggered.
My Lords, we are back to the question of finance. Can the Minister confirm that over the past 40 years, we have been huge net contributors to EU funds? Can he also confirm that we are currently being asked to pay large sums of money to depart the EU? I wonder if he could get someone from the Commission to come along and explain to the British people—who I think would find it difficult to understand— that the more we pay into the organisation, the more it costs to get out.
The noble Lord is absolutely right in pointing to the fact that there are assets of the European Union. Those are highlighted in the consolidated report and account, the difficulty with which is that it shows assets of £162 billion, but liabilities of £234 billion. In agreeing what our share of the assets is, we also have to be fair and recognise that there may be some concomitant responsibility for some of the liabilities.
My Lords, further to the point made a moment ago about the date being written into the Bill, does that not mean that on that date in March 2019, if all is not agreed at that point, nothing is agreed, and we would leave without even any semblance of a security agreement?
Road Safety: Hand-held Devices
To ask Her Majesty’s Government what assessment they have made of the impact on road safety of the increase introduced at the end of 2016 in the number of penalty points imposed under a fixed-penalty notice issued for drivers caught using a hand-held mobile phone or other similar device while driving.
My Lords, Britain has some of the safest roads in the world, but we are determined to do more to reduce casualty figures. Since the increased penalties were introduced in March 2017, over 15,000 drivers have been fined and issued with six penalty points. However, it is too soon to assess what impact the change is having on road safety. We are conducting a roadside observational survey on usage of mobile phones and expect the results in the new year.
My Lords, I welcome my noble friend the Minister to her debut at the Dispatch Box in her new role. Will she join me in congratulating Thames Valley Police on the work it has done in seeking to change driver behaviour and make driving while using handheld mobile devices socially unacceptable? A video it recently produced has been requested by companies across the UK to help raise awareness of the dangers. This Thames Valley Police campaign won a national safety award in June. Anecdotally, it says the message is starting to creep through. What assurances can my noble friend give the House and all police authorities throughout the UK that the Government will do what they can to assist in the campaign to make this dangerous behaviour socially unacceptable?
I join my noble friend in commending the Thames Valley Police for the work it is doing raising awareness of this issue. I have seen the video she mentions, which features the families of the tragic victims of the A34 crash. As well as tougher sanctions, we have been running a dedicated national THINK! campaign since March to highlight the dangers of using a mobile phone. One of the highlights of this campaign was a new film launched last month to target young drivers, which has been a great success on social media, with more than 3 million views on Facebook alone.
As a former member of the Thames Valley Police Authority and someone who specialised in road safety, I endorse what the noble Baroness, Lady Pidding, just said, but regulations on parking are ignored throughout the area. Some very dangerous parking is taking place in town centres. Does this not indicate a lack of respect for the law? What are the Government doing about it?
My Lords, I agree that everyone who uses highways has a responsibility to behave safely. A number of offences can cover cycling behaviour, such as fixed penalty notices, or officers can report the road user for prosecution. The Government announced last month their cycle safety review, which will involve a consultation on these issues. We are working with stakeholders for their input and we will publish fuller terms of reference next year.
My Lords, statistics show that young people aged between 17 and 29 are more likely to use mobile phones and other hand-held devices. What are the Government doing to take action against this, especially relating to further education for that group?
My noble friend is right to highlight the important issue of addressing young drivers. Around 20% of new drivers will have a crash within the first six months of passing their test, so any novice driver caught using a mobile phone while driving in their first two years will have their licence revoked. We have announced changes to the practical driving test that will come into force in December. I mentioned the THINK! campaign, which targets young drivers. We have also produced a provisional licence mailing insert, which is estimated to reach nearly 1.7 million new drivers annually.
The Home Secretary recently told police and crime commissioners to stop pointing out the pressing need for more money for our underresourced police and instead concentrate on those who are breaking the law. That outburst was clearly an admission by the Government that they will let down the police yet again in the forthcoming Budget by not providing the resources that PCCs and the police need to do their job. What representations, if any, have Transport Ministers made to the Treasury that on increasing numbers of occasions road traffic offences—including vehicle theft and using hand-held mobile phones while driving—cannot even be pursued by the police, let alone see perpetrators brought to justice, due to the continuing squeeze on police budgets and continuing reductions in the number of police officers? Can I take it that the Department for Transport, despite the recent publicly expressed concerns of HM Inspectorate of Constabulary, has remained utterly silent on the issue of inadequate police resources?
My Lords, we are very sensitive to the pressures which police face. We recognised the importance of wider police spending in the 2015 spending review, which protected overall police spending in real terms. It is of course up to police and crime commissioners and chief constables of each police force to decide how they deploy resources. As my noble friend Lady Pidding highlighted, as well as working closely with the police to support enforcement action, police forces across the country are doing valuable work in the campaign to reduce hand-held mobile use and we should commend them.
My Lords, is there not a problem with traceability when it comes to issuing cyclists with fixed penalty notices? There is no obvious sign, as there is with a car and its registration plate. Cyclists can give a Mickey Mouse name and address. What is the effect of the fixed penalty notice in this case?
On cycling, as I mentioned earlier, there are a number of measures which officers can use, including verbal warnings and fixed penalty notices. However, I acknowledge that there is a problem with traceability. That is something that the cycle safety review, which we will publish next year, will address.
My Lords, will the Minister join me in condemning local Conservative associations such as Kensington and Chelsea, which has written to ask me to sign a petition condemning the attempt of the police authority to live within its budget by reducing a service to local people? Does she agree that such dishonesty is giving politics a bad name?
No, I am afraid that I do not agree with the noble Baroness. Obviously I will look into the case to which she refers, but I know that Kensington and Chelsea and all local authorities work closely with the police to ensure that they are able to deliver the services which we require.
Dyslexia: Disabled Students’ Allowance
My Lords, all students are required to prove their eligibility for disabled students’ allowances. This applies to all students, including those with specific learning difficulties such as dyslexia and dyspraxia. DSA funding is not available to any student to pay for evidence to establish eligibility. DSAs continue to provide funding for eligible dyslexic higher education students to access IT equipment as well as software and other support.
I thank the Minister for that reply. However, if you have already had a diagnosis—for instance, in primary school—have received assistance for dyslexia or a SpLD condition throughout your education, including assistance in the exams that get you to university, what possible justification is there for a further assessment that you have to pay for to get the assessed help at university?
The noble Lord, Lord Addington, has great expertise in this area, both as president of the dyslexia association and in other commercial interests, so I defer to his superior knowledge. I reassure him that many universities now offer hardship funds for these tests. Perhaps I may quote from the University of East Anglia, which states:
“The cost to students for the 2017/18 academic year will be £30.00 for the screening and £70.00 for the Educational Psychologist or Psychiatrist assessment”.
My Lords, I do not think that the Minister has answered the noble Lord’s Question. I do not understand why people with dyslexia have to go through what essentially is a second assessment which they have to pay for—which, as he said, costs hundreds of pounds—when for other students with other disabilities a letter from their doctor will be enough to process them through the allowance. Why are people with dyslexia discriminated against?
My Lords, specific learning disabilities are treated separately. In a working paper in 2005, where the British Dyslexia Association was part of the consultation group, the view then was that progress into higher education represented a major transition and that more adult-based assessments should therefore be used.
My Lords, there is proof that students who use computer assistive technology do better than those who are eligible for it but do not, but it appears that the additional charge of £200 is having a detrimental effect on take-up. What measures are the Government taking to ensure that all those who need it have access to it, regardless of their means?
My Lords, once an assessment has been carried out, and there are 180 assessment centres in the country, they will produce a package that is relevant for the individual sufferer of the condition. There are four bands of assistance graded by the assessor when they meet the person needing the help.
My Lords, the Question is not about the different bands of assessment, but about why an assessment will cost some applicants money—they have to pay for the assessment—while others do not pay. A simple GP’s letter should be enough, as my noble friend suggests. Why does the Minister not answer that question?
My Lords, just to be clear, I think that the House should know that you can be charged up to £600 for this assessment, when you already have a history of being assessed. This was a very old system; I do not know exactly when it came in. Does the Minister agree that it is well overdue that we look at this again?
Overseas Aid and Defence Expenditure
My Lords, according to the latest available data, the ratio of defence expenditure to overseas aid expenditure in 2016 was more than 3:1. The UK Government spent £42.2 billion on defence and £13.3 billion on overseas aid in 2016. Both defence and overseas aid budgets are published on a calendar-year basis, in line with international standards.
My Lords, is the continuing hollowing out of our Armed Forces not a betrayal of all those veterans who proudly marched and paraded over the weekend? The defence budget is under huge pressure, our Army is below strength, we would be hard pushed to deliver 12 escort vessels and there is speculation over cuts to our amphibious capability, to our Royal Marines and to our minesweepers, to say nothing about finding money for the Joint Strike Fighter for our new carriers. While many of our aid programmes are vital and commendable, is it not time to revisit the 0.7% commitment? Is not the current ratio of overseas aid expenditure to defence expenditure now just unsustainable? Does development aid really need its own department?
Perhaps I may answer the second part of that question. If we look just at the past year, overseas aid has provided humanitarian assistance to 17 million people. Some 28.7 million people have received immunisations, saving 475,000 lives, while 7.1 million children have been provided with education and 27.2 million have been provided with access to clean water. So the answer to the second part of the noble Lord’s question is yes, it is needed, and the Department for International Development is doing good work.
On defence, I do not accept the noble Lord’s premise that the Armed Forces have been hollowed out. The defence budget is increasing in real terms year on year by 0.5% over the current spending review period. In terms of aircraft—I see that the noble Lord may wish to come in on this at some point—there is our shipbuilding strategy, the details of which I will perhaps elaborate on later.
My Lords, on the point that has been brought up, I am totally in favour of supporting crises in which defence plays a major part. No one could possibly argue with that, but we have to be able to assess how the other 85% is faring. In July the National Audit Office said the following:
“With only one of the four of the UK Aid Strategy’s objectives supported by measurable targets, it is not possible to assess progress in its implementation”.
If we take the next 15 years, this country will be spending well over £200 billion on aid. No organisation that I know of is prepared to spend without being able to judge additionality. Therefore, how long can this country truly justify spending moneys which cannot be assessed for additionality?
I agree to this extent with my noble friend: we do not want to waste money. That is one of the things we have been driving very hard on in the Department for International Development. I am very happy to meet with my noble friend to discuss how the aid budget is being used and the lives which have been saved as a result of it. I happen to think that one of the things we can be proud of in this country, particularly when we think of the act of Remembrance which took place yesterday, is that we are the only country in the world which actually meets its 2% obligation under the NATO agreement along with our 0.7% aid commitment. That is the type of global Britain which we can all be proud of.
My Lords, in the last two debates on defence, it has been made clear by speakers on all sides of the House, apart from the Government Front Bench, that defence is in crisis and that not enough money is being spent on it. Everyone has said that, and indeed the noble Earl took that message back to the department, so to say that all in defence is fine and rosy is incorrect. One wonders if the Government need to have a reality check on this. I am very proud of 0.7% being spent on aid, but can the Minister assure me that the defence budget is going to get the same protection and be looked after in the same way as the aid budget? I ask this because in the final analysis, strong defence forces help stability, make us all safer, and enable aid to actually be used in these places abroad.
As I just mentioned, the defence budget differs from the aid budget in the sense that it will increase each year in real terms by 0.5%, which is greater than is going into overseas aid. We have announced a national security capability review which is being conducted at the present time. The noble Lord will also be aware of the national shipbuilding strategy which has put in an order for five Type 31e general purpose frigates in addition to the Type 26 frigates ordered in July. We can do both, and we are.
My Lords, as I understand it, is not an increasingly large amount of the development aid budget now dispersed among other departments where the same standards of evaluation do not apply, and are certainly not as rigorous as those applied by the Department for International Development?
It is true to say that around 26% of the overseas aid budget is dispensed by other departments, and a lot of it is spent by Department for Business, Energy and Industrial Strategy. It is investing in education and research, particularly in medicine, along with development matters that will help developing countries. However, we are clear that everything has to be categorised as overseas development assistance; it must meet the primary purpose test, which is that it is for the economic development of the least well-off countries in the world. We are absolutely confident that that target is being met. If it is not met, the money is not categorised as overseas development assistance and therefore we do not meet the 0.7% target. That is why we take it very seriously.
My Lords, if the Minister believes that there is no problem with the defence budget, why at the moment are illustrative savings being looked at, for example to close out an Army brigade, do away with the Army Air Corps, and completely undermine and shred our amphibious capability?
The noble and gallant Lord will be aware that a national security capability review by the national security adviser is under way. As part of that all options are being looked at, as he would expect when a review takes place, but no decisions have been made at present and the comments on the budget remain.
I am not making the claim that everything in the garden is rosy. People are having to make tough decisions but what I have highlighted on this Question is that we are fulfilling our obligations under NATO. We are actually going beyond them, as we have spent more than 2%. In answer to the point made earlier by the noble Lord, Lord Lee, we have spent 2.1% while at the same time protecting the 0.7%. I think we can be proud of that record but how we spend on aid and defence is a matter that we should keep under close review.
Business of the House
Motion on Standing Orders
That Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Tuesday 14 November and Wednesday 15 November in respect of proceedings on any Northern Ireland Budget Bill brought from the Commons and on the Finance Bill.
This is a debatable Motion, as I understand it. Can the Leader of the House explain, since this House has agreed that we have too many Members—and since we are about to debate the report from the noble Lord, Lord Burns, and his committee—on what basis, on Thursday of this week, two new Peers are being introduced?
I am afraid that I do not think that is relevant to this Motion, which is on important legislation that we need to get through on Northern Ireland. I hope that the noble Lord will agree to the Motion.
European Union (Approvals) Bill
Order of Commitment Discharged
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Data Protection Bill [HL]
Committee (3rd Day)
Relevant documents: 6th Report from the Delegated Powers Committee, 6th Report from the Constitution Committee
Schedule 1: Special categories of personal data and criminal convictions etc data
45B: Schedule 1, page 116, line 35, leave out paragraphs 14 and 15 and insert—
“(1) This condition is met if the processing—(a) is necessary for the purposes listed in sub-paragraph (2), and(b) is necessary for reasons of substantial public interest.(2) The purposes mentioned in sub-paragraph (1)(a) are—(a) the arrangement, underwriting, performance or administration (or assisting in the arrangement, underwriting, performance or administration) of a contract of insurance or reinsurance;(b) the handling or administration (or assisting in the handling or administration) of a claim made under a contract of insurance or reinsurance.”
My Lords, I will speak also to Amendments 46A, 47A, 48A and 50A. We move to a series of probing amendments relating to insurance. I am concerned about many practical things in the Bill, and what I see as unnecessary and unwise obstacles for insurance in general, and for motor insurance and employer liability insurance in particular. I declare my interests as set out in the register of the House and, in particular, those in respect of the insurance industry.
I thank the noble Lord, Lord Clement-Jones, for his support for these amendments—indeed, he was emailing me late last night—and I thank the Minister for a generous slice of his time last week. I also thank the Association of British Insurers and the Lloyds Market Association for their help in preparing my remarks. They, in turn, have had input from the four other major insurance market associations and other bodies.
The insurance industry delivers products in the public interest. Indeed, some of the major classes, such as motor insurance and employer liability insurance, are compulsory. It is greatly to society’s benefit that there is a wide choice of good products available at a reasonable price. It is less well understood in the wider world what an important part reinsurance plays in supporting insurers by protecting insurance companies from large unexpected losses and providing temporary extra capital when it is needed. In other words, insurers, too, need a wide choice of good products available at a reasonable price. It is a complex ecosystem, and unintended consequences tend almost invariably to hurt the man in the street.
The impact assessment called for the setting of new standards in accordance with the GDPR,
“whilst preserving the existing tailored exemptions from the Data Protection Act”.
Later on in the same page of the impact assessment there is a call for,
“exercising the derogations in the best interest of the UK”.
In fact, the impact assessment has several references to business and insurance business which make it plain that the Government do not intend to place an undue extra burden on business. I am grateful to the Government and the Bill team for having gone some way to alleviating the problems—but I fear that we need to go a lot further.
Sensitive personal data under the current Data Protection Act 1998 has become special category personal data in the GDPR. The treatment of special category personal data looks similar under the GDPR and the DPA, with consent as the applicable legal ground under which data can be processed in most cases. However, what has changed is the definition of consent, with the threshold for valid consent under GDPR now being much higher.
For insurers and reinsurers, the two most common types of special category personal data are information relating to health and information relating to criminal convictions. Being able to consider health and criminal conviction data is hugely important for insurers uniformly and throughout the world. The ABI estimates that the ability to process these types of data helped in detecting around £1.3 billion in fraudulent claims in 2015 alone, and I fear that the Bill unamended would therefore potentially increase costs for millions of motor insurance policyholders. To get an idea of the size of the market where health data is required for underwriting and claims purposes, the LMA has advised me that it identifies annual Lloyd’s market premiums alone of at least £2.3 billion a year.
Processing special-category data, including health data, is fundamental to calculating levels of risk and underwriting the majority of retail insurance products. ICO draft guidance infer that consent as a precondition of accessing a service, as would be the case for a proposal for an insurance contract, would not be a legitimate basis for processing special-category personal data.
Let us take the example of a daily smoker who at retirement age tries to buy an annuity. They would be asked to provide their medical details. This health data would establish that the individual has a below-average life expectancy. The insurer is therefore able to offer an enhanced annuity that pays the individual a higher percentage of income every year.
Under the Bill and its associated draft ICO guidance, insurers would not be able to access the individual’s medical records as consent is a precondition of accessing the enhanced annuity market and therefore such consent cannot be freely given. Insurers would be unable to offer an enhanced annuity and the individual would be treated as a consumer with average life expectancy and receive a lower income from their annuity. This would be a highly undesirable state of affairs.
Take the situation where an insurer has a direct relationship with the insured—a personal motor policy, let us assume. It would seem relatively easy for them to obtain a consent for all processing. However, it is not. More than half the motor insurers in the UK make use of the Motor Insurance Bureau’s MyLicence anti-fraud facility. This third-party service, available to all insurers, allows them at the quote stage to understand a driver’s record using DVLA data. Express consent is not possible and nor, for the same ICO reasoning as my annuity example, would any consent anyway be valid. If the Bill is unamended, this would be bound to drive up premiums for motor insurers, as a principal defence against fraud would cease to exist.
I am afraid it gets worse. Much more common in insurance is an indirect relationship with the data subject. The distribution of insurance products in the UK usually involves multiple data controllers, such as insurers, brokers, cover-holders and reinsurers. The claims settlement process may involve a number of other data controllers, for example loss adjusters, lawyers and doctors. Obtaining consent is problematic because each party in the product or claims chain who is not in direct contact with the data subject will be relying on another party to obtain consent on their behalf. Each GDPR data controller must be expressly named in consent documentation. That situation therefore would become horribly complex, and be inconsistent with the admirable aims of the impact assessment, without the derogations that I am asking for.
Giving an example of the future under an unamended Bill might help. One of the most popular small-farm insurances on the market in the UK is underwritten by an agency on behalf of 10 or more insurers. Farm policies contain several liability sections. If there is an injury on the farm, express consents on behalf of the injured party will have to be provided for the original broker, the underwriting agency, each of the insurers, the loss adjusters, and potentially all the reinsurers of the original insurers and the associated reinsurance brokers. Until that consent chain is in place, the claim cannot be fully processed. Does the Minister agree with me that this would be another highly unsatisfactory state of affairs?
Yet another unsatisfactory situation arises when a policy is bought by a third party. An example would be employer liability insurance—a compulsory class— where employees’ personal data needs to be supplied to assess the risk; here, the relationship is between the insurer and the employer. In the case of a claim, how does the Bill’s consent chain work? Does the Minister agree with me that we can and must do better in this Bill?
Although it is practicable to obtain the consent of the data subject in many cases, often it is not. Aggrieved claimants, for example, may not provide their consent for the insurer processing their personal data, as they simply want the corporate insured to pay their loss. They do not care whether or not it is covered by insurance. How is the insurer meant to act in these circumstances, or rate for this? I fear it would be a recipe to reduce competition and drive up prices for employer liability insurance, which is a compulsory class. This would certainly not be in the best interests of any policyholders or data subjects. These are market-wide issues and are not specific to any one type of insurance over another.
I feel in general that trying to shoehorn insurance business into GDPR article 9(2)(a)—the consent bit—is far from being in the public interest and that the public would be best served using a derogation under article 9(2)(g): that the processing is necessary for reasons of substantial public interest.
The amendments set out two alternative ways in which the issues might be tackled, while at the same time being wholly consistent with the GDPR. Under Amendment 45B, the new insurance paragraph would continue to sit within the “Substantial public interest conditions” subheading in Schedule 1, Part 2, as do the present paragraphs (14) and (15). The language is modelled on paragraph 6 of Schedule 1: the derogation for,
“Parliamentary, statutory and government purposes”.
It is effective at curing the problems with obtaining consent that I have described—and, indeed, those of withdrawing consent. It is consistent with the impact assessment and article 9(2)(g) of the GDPR. It is clear that the special category “personal data” can be used only for a necessary purpose and not in, say, a marketing drive, and the ICO and the FCA will patrol matters with their usual thoroughness.
The other amendments, together, are an alternative. They would allow insurers to continue to access and use health and criminal conviction data in another way. Amendment 46A widens the definition of insurance to bring more classes of insurance under the regime of Schedule 1, including, for instance, motor insurance and household insurance. This not only replicates the status quo but is also consistent with article 9 of the GDPR, given the twin watchdogs that I referred to: the ICO and the FCA.
Amendment 47A removes a new provision that presents a potential administrative minefield, did not form part of the DPA and is not needed for the purposes of the GDPR. Amendment 48A is a further amendment along the same lines, which widens paragraph 14 of Schedule 1 so that it covers all insurance business and extends the scope to cover criminal convictions. Amendment 50A is, I fear, a rather hurried bit of drafting, but is intended to allow the processing of third-party joint policyholders’ data. Properly drafted, this would allow consent to be given by one policyholder on behalf of another joint policyholder. In many cases, this is simply a pragmatic necessity and, again, I feel the amendment is consistent with not only the Government’s stated aims in the impact assessment but the GDPR. I beg to move.
My Lords, the noble Earl, Lord Kinnoull, has clearly and knowledgeably introduced the amendment, which I strongly support. He made clear through his case studies the Bill’s potential impact on the insurance industry, and I very much hope that the Minister has taken them to heart. Processing special category data, including health data, is fundamental to calculating levels of risk, as the noble Earl explained, and to underwriting most retail insurance products. Such data is also needed for the administration of insurance policies, particularly claims handling.
The insurance industry has made the convincing case that if the implementation of the Bill does not provide a workable basis for insurers to process that data, it will interrupt the provision to UK consumers of retail insurance products such as health, life and travel insurance, and especially products with health-related consumer benefits, such as enhanced annuities. The noble Earl mentioned a number of impacts, but estimates suggest that, in the motor market alone, if this issue is not resolved, it could impact on about 27 million policies and see premiums rise by about 3% to 5%.
There is a need to process criminal conviction data for the purposes of underwriting insurance in, for instance, the motor insurance market. Insurers need to process data to assess risk and set the prices and terms for mainstream products such as motor, health and travel insurance.
The key issue of concern is that new GDPR standards for consent for special category data, including health, such as the right to withdraw consent without experiencing detriment, are incompatible with the uninterrupted provision of these products. As the noble Earl, Lord Kinnoull, has clearly stated, there is scope for a UK derogation represented by these amendments, which would be in the public interest, to allow processing of criminal conviction and special category data when it is necessary for arranging, underwriting and administering insurance and reinsurance policies and insurance and reinsurance policy claims. I very much hope that the Minister will take those arguments on board.
My Lords, the noble Earl, Lord Kinnoull, has done us a great favour in introducing with great skill these amendments, which get to the heart of problems with some of the language used in the Bill. We are grateful to him for going through and picking out the choices that were before the Government and the way their particular choices seem to roll back some of the advances made in the insurance industry in recent years. I look forward to the Minister’s response.
Our probing Amendment 47 in this group is on a slightly higher level. It is not quite as detailed—nor was it intended to be—as the one moved by the noble Earl. We were hoping to raise a more general question, to which I hope the Minister will be able to respond. Our concern, which meets the concerns raised by the noble Earl, Lord Kinnoull, and the noble Lord, Lord Clement-Jones, is where the Government want to get to on this. It must be true that insurance is one of the key problems facing many people in our country. It is the topic that will be discussed in the QSD in today’s dinner break as it bears heavily on financial inclusion issues. So many people in this country do not take out insurance, personal or otherwise, and suffer as a result. We have to be very careful as we take this forward as a social issue.
However, an open-ended derogation to allow those who wish to gather information to make a better insurance market surely also raises risks. If we are talking about highly personal profiling—we may not be because there are constraints in the noble Earl’s amendment—it would lead to a more efficient and cheaper insurance industry, but at what personal cost? For instance, if it is possible to pick up data from those who perhaps unadvisedly put on Facebook or Twitter how many times they get drunk—I am sure that is not unusual, particularly among the younger generation—information could be gathered for a profile that ought to be taken into account for their life, health or car insurance. I am not sure that we would be very happy with that.
Underlying our probing amendment is to ask the Minister to respond—it may be possible by letter rather than today—on protections the Government have in mind. What sort of stock points are there that we can rely on as we move forward in this area? As processing becomes more powerful and more data is available, pooled risks are beginning to look a little old-fashioned. The old traditional model under which insurance is gathered is that the more the pool is expanded, the risks are spread out more appropriately across everybody. The trouble is that the more we know, we will be including people who are perhaps more reckless and therefore skewing the pooling arrangements. We have to be careful about that.
There is obviously a social objective in having a more efficient and effective insurance market but this ought to be counterbalanced to make sure that those people who are vulnerable are not excluded or uninsurable as a result. The state could step in, obviously, and has done so, as we have been reminded already in our Committee discussions about the difficulty of getting insurance for those who build on flood plains. However that is not the point here. This is about general insurance across the range of current market opportunities being affected by the fact that we are not ensuring that the data gathered is both proportionate and correct in terms of what it provides for the individual data subjects concerned.
I want to say a couple of words on consent, because it is something I have been thinking about for a while. Consent is often seen as a great panacea to this whole thing about protecting people, but I do not think it really is. The requests that really irritate me are the ones that ask for unnecessary information such as your date of birth, when all you are trying to do is to sign up for a warranty on a bit of equipment or whatever, because firms are trying to profile their customers. Those I agree should be stopped. But other consent requests are essential to giving a good service.
There are two things to say about such requests. One is that most people do not mind, because they assume that people know everything about them anyway—particularly the Government and the big boys. They just want the thing to be done properly so that they can get their money, or whatever it is. To put blocks in the way so that they have to click on or sign lots of different consent forms does not get them any further and just irritates them more. Those provisions are very sensible.
There is another problem with consent. These days, when you go on any website, there is this great thing about cookies. The website will ask, “Do you mind that we’ve got all these cookies? And, by the way, I’m afraid the website won’t react properly if you do mind”. That is perfectly true; the cookies are necessary to drive the websites. Everyone clicks on the things or just lets them go, so the thing that is supposed to prevent websites spying on you is totally ineffective. That is a typical example of where we put consent into a Bill and all it does is irritate people—it does not do any good at all. So this may be a case where we are going too far on consent, which will just be a nuisance to everybody and will disadvantage some people.
My Lords, I am grateful to all noble Lords who have spoken and for the opportunity to speak to Schedule 1 in relation to an industry in which I spent many years. I accept many of the things that the noble Earl, Lord Kinnoull, described and completely understand many of his points—and, indeed, many of the points that other noble Lords have made. As the noble Lord, Lord Clement-Jones, said, I have taken the noble Earl’s examples to heart, and I absolutely accept the importance of the insurance industry. The Government have worked with the Association of British Insurers and others to ensure that the Bill strikes the right balance between safeguarding the rights of data subjects and processing data without consent when necessary for carrying on insurance business—and a balance it must be. The noble Lord, Lord Stevenson, alluded to some of those issues when he took us away from the technical detail of his amendment to a higher plane, as always.
The noble Earl, Lord Kinnoull, and the noble Lords, Lord Clement-Jones and Lord Stevenson, have proposed Amendments 45B, 46A, 47, 47A, 48A and 50A, which would amend or replace paragraphs 14 and 15 of Schedule 1, relating to insurance. These amendments would have the effect of providing a broad basis for processing sensitive types of personal data for insurance-related purposes. Amendment 45B, in particular, would replace the current processing conditions for insurance business set out in paragraphs 14 and 15 with a broad condition covering the arrangement, underwriting, performance or administration of a contract of insurance or reinsurance, but the amendment does not provide any safeguards for the data subject.
Amendment 47 would amend the processing condition relating to processing for insurance purposes in paragraph 14. This processing condition was imported from paragraph 5 of the 2000 order made under the Data Protection Act 1998. Removal of the term might lessen the safeguards for data subjects, because insurers could potentially rely on the provisions even where it was reasonable to obtain consent. I shall come to the opinions of the noble Earl, Lord Erroll, on consent in a minute.
Amendments 46A, 47A, 48A and 50A are less sweeping, but would also remove safeguards and widen the range of data that insurers could process to far beyond what the current law allows. The Bill already contains specific exemptions permitting the processing of family health data to underwrite the insured’s policy and data required for insurance policies on the life of another or group contract. We debated last week a third amendment to address the challenges of automatic renewals.
These processing conditions are made under the substantial public interest derogation. When setting out the grounds for such a derogation, the Government are limited—this partly addresses the point made by the noble Lord, Lord Stevenson—by the need to meet the “substantial public interest test” in the GDPR and the need to provide appropriate safeguards for the data subject. A personal or private economic or commercial benefit is insufficient: the benefits for individuals or society need to significantly outweigh the need of the data subject to have their data protected. On this basis, the Government consider it difficult to justify a single broad exemption. Taken together, the Government remain of the view that the package of targeted exemptions in the Bill is sufficient and achieves the same effect.
Nevertheless, noble Lords have raised some important matters and the Government believe that the processing necessary for compulsory insurance products must be allowed to proceed without the barriers that have been so helpfully described. The common thread in these concerns is how consent is sought and given. The noble Earl, Lord Kinnoull, referred to that and gave several examples. The Information Commissioner has published draft guidance on consent and the Government have been in discussions with her office on how the impact on business can be better managed. We will ensure that we resolve the issues raised.
I say to the noble Earl, Lord Erroll, that consent is important and the position taken by the GDPR is valid. We do not have a choice in this: the GDPR is directly applicable and when you are dealing with data, it is obviously extremely important to get consent, if you can. The GDPR makes that a first line of defence, although it provides others when consent is not possible. As I say, consent is important and it has to be meaningful consent, because we all know that you can have a pre-tick box and that is not what most people nowadays regard as consent. Going back to the noble Earl, Lord Kinnoull—
My Lords, I am sorry to interrupt. The Minister mentioned the guidance from the Information Commissioner. From what he said, I assume he knows that the insurance industry does not believe that the guidance is sufficient; it is inadequate for its purposes. Is he saying that a discussion is taking place on how that guidance might be changed to meet the purposes of the insurance industry? If it cannot be changed, will he therefore consider amendments on Report?
Following up the noble Lord’s point, I would like to say a couple of things. First, I sort of understand where the Information Commissioner’s Office is coming from. I have article 7 in my hands, which contains the definition of consent from the GDPR, and article 9(2)(a). My concern is that even if the Government are very nice to an Information Commissioner and persuade them to change the guidance, it could change at any time. It is important to ensure that the Bill will work for the ordinary man in the street. As for compulsory classes, it is not about looking after the insurers but every small business in Britain and every small person who wants to get motor insurance, especially those who have problems with either criminal convictions or their health.
I agree; I think I mentioned compulsory classes before. Going back to the guidance, we are having discussions. We have already had constructive discussions with the noble Earl, and we will have more discussions on this subject with the insurance industry, in which he has indicated that he would like to take part. I am grateful to him for coming to see me last week.
My Lords, I am sorry to interrupt the Minister again but he is dealing with important concepts. Right at the beginning of his speech he said he did not think this could be covered by the substantial public interest test. Surely the continuance of insurance in all those different areas, not just for small businesses but for the consumer, and right across the board in the retail market, is of substantial public interest. I do not quite understand why it does not meet that test.
I may have misled the noble Lord. I did not say that it does not meet the substantial test but that we had to balance the need to meet the substantial public interest test in the GDPR and the need to provide appropriate safeguards for the data subject. I am not saying that those circumstances do not exist. There is clearly substantial public interest that, as we discussed last week, compulsory classes of insurance should be able to automatically renew in certain circumstances. I am sorry if I misled the noble Lord.
We realised that there are potentially some issues surrounding consent, particularly in the British way of handling insurance where you have many intermediaries, which creates a problem. That may also take place in other countries, so the Information Commissioner will also look at how they address these issues, because there is meant to be a harmonious regime across Europe. The noble Earl has agreed to come and talk to us, and I hope that on the basis of further discussions, he will withdraw his amendment.
I followed the Minister quite well until the last exchange, where I got a bit confused. Is he saying in some sense that there may be a case for two types of derogation: that that which applies to compulsory insurance—there are strong public interest reasons why it should be continued—might be done under one derogation and the rest raised as more specific items, as suggested by the noble Earl?
We can break it down simply between compulsory and non-compulsory classes. Some classes may more easily fulfil the substantial public interest test than others. In balancing the needs, it goes too far to give a broad exemption for all insurance, so we are trying to create a balance. However, we accept that compulsory classes are important.
I am sure that the noble Earl, Lord Kinnoull, will come back at greater length on this. The issue that the Minister has outlined is difficult, partly because the Information Commissioner plays and will play such an important role in the interpretation of the Bill. When the Government consider the next steps and whether to table their own amendments or accept other amendments on Report, will they bring the Information Commissioner or her representative into the room? It seems that the guidance and the interaction of the guidance with the Bill—and, eventually, with the Act—will be of extreme importance.
I agree, which is why I mentioned the guidance that the Information Commissioner has already given. I am certainly willing to talk to her but it is not our place to order her into the room. However, we are constantly talking to her, and there is absolutely no reason why we would not do so on this important matter.
I thank all noble Lords who have taken part in this short but interesting debate. Of course, the Information Commissioner reports to Parliament, so if we held a meeting here, we probably could ask her, quite properly, to come. That might be quite helpful in this complex area. As I said, when you mess around in these areas, the person who suffers is the man in the street, not the insurance companies. The noble Lord, Lord Stevenson of Balmacara, in particular made a number of interesting points in speaking to his amendment, which need to go into the mix as regards how we sort through this difficult area.
I am very grateful to the Minister for confirming that we will continue discussions in this area. I do not think for a moment that I necessarily have all the right answers, but we have started on the journey and will continue. We will certainly be talking about the same issues again in different formats on Report and I look forward to that very much. On that basis, I beg leave to withdraw the amendment.
Amendment 45B withdrawn.
46: Schedule 1, page 116, line 36, after “on” insert “relevant”
Amendment 46 agreed.
Amendments 46A to 47A not moved.
48: Schedule 1, page 117, line 5, at beginning insert “relevant”
Amendment 48 agreed.
Amendment 48A not moved.
Amendments 49 and 50
49: Schedule 1, page 117, line 14, after “of “” insert “relevant”
50: Schedule 1, page 117, line 16, leave out “sub-paragraph” and insert “definition”
Amendments 49 and 50 agreed.
Amendment 50A not moved.
51: Schedule 1, page 117, line 35, at end insert—
“15A(1) This condition is met if—(a) the processing is necessary for the purposes of—(i) automatically renewing a pre-GDPR insurance contract, or(ii) carrying out, or managing the expiry of, an insurance contract resulting from the automatic renewal of a pre-GDPR insurance contract,(b) the controller has taken reasonable steps to obtain the data subject’s consent to the processing of personal data necessary for those purposes in accordance with sub-paragraph (2), and(c) the controller is not aware of the data subject withholding such consent. (2) The steps described in sub-paragraph (1)(b) must have been taken—(a) in the case of a contract which automatically renews after a period of less than 10 months, on at least one automatic renewal of the contract in each period of 12 months that has ended since 25 May 2018;(b) in any other case, each time the contract has automatically renewed since 25 May 2018.(3) For the purposes of this paragraph, an insurance contract is automatically renewed if—(a) a new insurance contract between the same parties is made without the insured person taking any steps, and(b) the new contract provides cover which is the same as, or substantially similar to, the cover provided by the expired contract,and references in this paragraph to the automatic renewal of a contract include both the first automatic renewal on the expiry of that contract and subsequent automatic renewal originating with that contract.(4) For the purposes of sub-paragraph (3)(a), the new contract and the expired contract are to be treated as made with the same insurer if they are made with different insurers but arranged by the same intermediary.(5) In this paragraph—“insurance contract” means a contract of general insurance or long-term insurance;“insurer” means a person carrying on business which consists of effecting or carrying out insurance contracts;“pre-GDPR”, in relation to an insurance contract, means made before 25 May 2018.(6) Terms used in the definition of “insurance contract” in sub-paragraph (5) and also in an order made under section 22 of the Financial Services and Markets Act 2000 (regulated activities) have the same meaning in that definition as they have in that order.”
Amendment 51 agreed.
Amendment 52 not moved.
53: Schedule 1, page 118, line 19, leave out first “substantial”
My Lords, as this amendment involves data provided by local authorities, I should declare my interests as a councillor of the London Borough of Southwark and as a vice-president of the Local Government Association.
Amendment 53 in my name and that of my noble friend Lord Stevenson of Balmacara would delete the first occurrence of the word “substantial” from paragraph 17(2) of Schedule 1 and Amendment 54 would delete its second occurrence from the same provision.
Healthy-functioning political parties are a vital part of our democracy. Campaigners and campaigning have moved on a long way from the days of hand writing envelopes to encompass much more sophisticated methods of contacting voters using all available mechanisms.
Political parties and their members need clarity and certainty as to what they are required to do, what they are able to do and what they are not able to do, so that they act lawfully at all times and in all respects. We cannot leave parties, campaigners and party members with law that is grey and unclear, and with rules that mean that campaigners, in good faith, make wide interpretations that are then found to be incorrect, due largely to the required clarity not having been given to them in the first place by government and Parliament.
I am also very clear that political parties are volunteer armies, with people volunteering to campaign to get members of their party elected to various positions in Parliament and in local authorities and to run various campaigns.
I have a number of questions for the Minister. I do not necessarily expect to get answers today but I hope that when he responds he will agree to meet me along with other interested Peers on the matters I am raising. I know that the noble Lord, Lord Hayward, from the Minister’s Benches would certainly like to meet him, and I am sure that the noble Lord, Lord Tyler, would also wish to be involved in those discussions. I hope that the Minister will agree to that. I also think that it would be useful if any such meeting involved officials from the three parties to discuss how we can get this right; otherwise, there will be all sorts of problems for parties, party members and campaigners, and none of us wants that.
Therefore, my questions to the Minister are as follows—as I said, I shall be happy for him to write to me. Will he provide a list of the characteristics or activities that are required for a political party to conduct operations? Does he believe that the terms in relation to political activity in paragraph 17 of Schedule 1 definitively cover the required activities of UK political parties? Will he clarify what constitutes profiling with regard to the activities of political parties? What activities or operations with reference to paragraph 17(1)(c) of Schedule 1 would be considered necessary for a political party? Does he think that the procedure detailed in paragraph 17(3)(a), whereby a data subject can give written notice to require the data controller—in this case, a political party—to cease the processing of their data, is consistent with Section 13(3) of the RPA 1983, where parties hold and process data on the basis not of consent but of being supplied that data by a local authority via the electoral register? Given the regular transfer of registers to political parties, does the Minister think it is practical or enforceable for a party to cease processing the data, which will likely be resupplied by an authority?
Let me make the point this way: take elector A, who instructs the party to stop processing their data, and the party complies. But the party then gets given data from the local authority in the next round, and elector A’s information is included. As soon as the party processes that data, it will technically have infringed the law. This is very complicated and it would be useful if the Minister’s officials could meet people interested in this area and come back to us. Whatever we end up with following this process, it must be consistent and work, and it should not bring into conflict two different Acts of Parliament. I beg to move.
My Lords, the noble Lord referred to the rules as a bit grey and asked for clarity for the volunteer army. I should declare an interest as a foot soldier in that volunteer army.
The noble Lord’s request that party officials should be involved in this process is a good one—I would have thought they would have been. The Minister should be aware of my first question as I emailed him about this, over the weekend I am afraid. Has the Electoral Commission been involved in these provisions?
The noble Lord mentioned the electoral register provided by a local authority. My specific question is about the provision, acquisition and use of a marked electoral register. For those who are not foot soldiers, that document is marked up by the local authority, which administers elections, to show which electors have voted. As noble Lords will understand, this is valuable information for campaigning parties and can identify whether an individual is likely to turn out and vote and so worth concentrating a lot of effort on. I can see that this exercise could be regarded as “campaigning” under paragraph 17(4) of Schedule 1. However, it is necessary, although I do not suppose that every local party in every constituency makes use of the access it has. It is obvious to me that this information does not reveal political opinions, which is also mentioned in the provisions. I would be grateful to hear the Minister’s comments. I am happy to wait until a wider meeting takes place, but that needs to be before Report.
I want to raise a question on a paragraph that is in close geographical proximity in the Bill—I cannot see another place to raise the issue and it occurred to me only yesterday. Why are Members of the House of Lords not within the definition of “elected representatives”? We do not have the casework that MPs do, but we are often approached about individual cases and some Peers pursue those with considerable vigour. This omission—I can see a typo in the email that I sent to the Minister about this; I have typed “mission” but I meant “omission”—is obviously deliberate on the part of the Government.
My Lords, I begin by repeating, almost word-for-word, the noble Lord, Lord Kennedy: engaging voters is important in a healthy democracy. In order to do that, political parties, referendum campaigners and candidates will campaign using a variety of communication methods. However, they must comply with the law when doing so, and this includes the proper handling of the personal data they collect and hold.
Noble Lords will be aware that the Information Commissioner recently announced that she was conducting an assessment of the data protection risks arising from the use of data analytics, including for political purposes. She recognises that this is a complex and rapidly evolving area where organisations use a person’s internet or public profile to target communications or messaging. The level of awareness among the public about how data and analytics work and how their personal data is collected, shared and used through such tools is low. What is clear is that these tools have a significant potential impact on an individual’s privacy, and the Government welcome the commissioner’s focus on this issue. It is against this backdrop that we considered the amendments of the noble Lord.
The amendments seek to amend a processing condition relating to political parties in paragraph 17. The current clause permits political parties to process data revealing political opinions, provided that it does not cause substantial damage or substantial distress. This replicates the existing wording in the Data Protection Act 1998. I have said that political campaigning is a vital democratic activity but it can also generate heated debated. Removal of the word “substantial” could mean that data processing for political purposes which caused even mild offence or irritation becomes unlawful. I am sure noble Lords would agree that it is vital that the Bill, while recognising the importance of adequate data protection standards, does not unduly chill such an important aspect of the UK’s democracy. For that reason I ask the noble Lord to withdraw the amendments.
I thank the noble Lord for allowing me to reply later to his list of questions. I found it difficult to copy them down, let alone answer them all, but I take the point. In many instances we are all in the same boat on this, as far as political parties are concerned. I shall of course be happy to meet with him, and I take the point about who should attend. I am not sure it will be next week, when we have two days in Committee, but we will arrange it as soon as possible. I will have to get a big room because my office is too small for all the people who will be coming. I take the points the noble Lord made in his questions and will address them in the meeting.
The noble Baroness, Lady Hamwee, asked whether the Electoral Commission had been consulted. It did not respond to the Government’s call for views which was published earlier this year, and we have not solicited any views explicitly from it beyond that.
The noble Baroness also asked about the provision, acquisition and use of a marked electoral register within paragraph 17 of Schedule 1. As she explained, the marked register shows who has voted at an election but does not show how they voted. As such, it does not record political views and does not contain sensitive data—called special categories of data in the GDPR —and, as the protections for sensitive data in article 9 of the GDPR are not relevant, Schedule 1 does not apply.
Lastly, the noble Baroness asked why Members of the House of Lords are not within the definition of elected representatives. Speaking as an elected Member of the House of Lords—albeit with a fairly small electorate—I am obviously interested in this. I have discovered that none of us, I am afraid, are within the definition of elected representatives in the Bill. We recognise that noble Lords may raise issues on an individual’s behalf. Most issues will not concern sensitive data but, where they do, in most cases we would expect noble Lords to rely on the explicit consent of the person concerned. This arrangement has operated for the past 20 years under the current law, and that is the position at the moment.
I hope I have tackled the specific items relating to the amendments. I accept the points made by the noble Lord, Lord Kennedy, about the electoral issues that need to be raised in general.
I fully support my noble friend’s assertions and the Minister’s response. It is very important that registered political parties can operate effectively. I wonder whether, in the discussions he is proposing to undertake, the Minister will also address the issue of other organisations and political parties attempting to influence the political process. I do not think I need to spell it out, in view of recent news, but the use of social media by organisations that are not covered by our electoral law or by registration as a political party must not have the same provisions that registered political parties would have under the Bill or my noble friend’s amendments. I wonder if that could be addressed directly in these discussions.
My Lords, before the Minister replies to my noble friend Lord Whitty, I want to emphasise the importance of his arguments and ask him to reflect again on what he said about the point made by the noble Baroness, Lady Hamwee, on the Electoral Commission’s involvement. Although, as the Minister said, he wrote in general terms to the commission—or it was asked to give evidence to the Government on the matter—that may have been around the time of the general election, when perhaps it was engaged in immediate problems. It is important that it be included in discussions on the broader issues, particularly the ones just raised by my noble friend Lord Whitty. Perhaps it would be worth the Government reflecting on attempting to draw it into the conversation now.
It is easier for me to intervene now, so the Minister can answer everything in one go. In two small amendments, there is a massive issue that needs to be addressed with great seriousness. The Minister referred to the Information Commissioner’s study on the interrelationship between data and the political process. I wonder whether her findings will be available before the Bill becomes law, because that will have a great impact. The other thing we must learn, as the noble Lord, Lord Whitty, said, is that it is often wise to look across the Atlantic to find out what is coming to us. There is a massive problem coming down the road concerning how data are used during the political process. On the one hand, there is the issue, referred to by the noble Lord, Lord Kennedy, of political parties being mostly volunteers, trying their best to deal with complex laws. They must be protected as best they can. On the other side of the argument, there is a degree of sophistication in applying data to politics, which could become a threat to the democratic process. These are two small amendments, but they are an iceberg in terms of the problems that lie beneath them.
My Lords, I want to pick up on the last point of the noble Lord, Lord McNally. We are getting into a situation where political parties are addressing personal messages to individual voters and saying different things to different voters. This is not apparent; there must be ways to control it. We will have to give some considerable thought to it, so I see the virtue of the amendments.
Quickly, because I will not remember all the questions and points, I want to emphasise that they are all very good points and I will reflect on them. My main mission is to get the GDPR and law enforcement directive in place by May 2018. I absolutely accept the point made by the noble Lord, Lord McNally—that this is the tip of iceberg—but we must bear in mind that this is about data protection, both today and on Report, so I will focus on that. We have already had other avenues to raise a lot of the points the noble Lord made, but I agree that it is a huge issue. He asked when the report from the Information Commissioner will be available. I would expect it before Christmas, so it will be before the Bill becomes law.
I certainly undertake to reflect on what the noble Baroness, Lady Jay, said about the Electoral Commission. I believe that our call for views was after the election; nevertheless, I take her point. I am very sorry but I cannot remember what the point from the noble Lord, Lord Whitty, was, but I accept these things have to be taken into account. When we have our meeting—it is becoming a big meeting—it will be for people concerned specifically with the Data Protection Act, not some of the issues that lie outside that narrow area, important though they are.
I ask noble Lords not to press their amendments.
My Lords, picking up on the last point from the noble Baroness, Lady Hamwee, is this the first time the privileges of Members of this House have been reduced in relation to Members of the other House? If so, will the Government consult the Speaker of this House on whether he considers that desirable?
My Lords, I thank all noble Lords for speaking in this debate. As I think the noble Lord, Lord McNally, said, these amendments would delete just two words, but we have had a very important debate. We tabled the amendments to probe these issues, which are very important.
I am pleased that the noble Lord, Lord Ashton of Hyde, has agreed to meet us because we need to discuss this. It would be much better if we could get interested Peers from this House and officials from various parties together to sort this matter out, rather than leave it and let it go to the other place. We have a much better record of sitting down and sorting such issues out. I hope, if we need to amend the Bill, we do so on Report. Before we have our meeting—I accept it will be quite a big meeting—it would be useful if the noble Lord wrote to me, if he can, and to other interested Lords so we can have the Government’s position on paper before we sit down. That would help our discussions and move them on. There is a community of interest among noble Lords.
I certainly agree with the points made by the noble Lord, Lord McNally, and by my noble friends Lord Whitty and Lady Jay, but we need to focus on these issues, get them right and get proper amendments in place to protect parties and campaigners as they do their proper and lawful work. At this stage, I am happy to withdraw the amendment.
Amendment 53 withdrawn.
Amendment 54 not moved.
Amendments 55 and 56
55: Schedule 1, page 120, line 37, after “Commons” insert “, a member of the National Assembly for Wales”
56: Schedule 1, page 121, line 1, at end insert—
“20A_ This condition is met if the processing—(a) consists of the publication of a judgment or other decision of a court, or(b) is necessary for the purposes of publishing such a judgment or decision.”
Amendments 55 and 56 agreed.
57: Schedule 1, page 121, line 3, leave out paragraph 21 and insert—
“21(1) This condition is met if the processing is carried out—(a) in connection with measures designed to protect sport in the United Kingdom from athletes taking performance enhancing substances listed in the World Anti-Doping Code which are undertaken by UK Anti-Doping (UKAD) or any successor body mandated by the Secretary of State as a non-departmental public body responsible for such objectives, or(b) for the purposes of national governing bodies of sports, sports clubs, institutions of higher education, schools or managers of sporting events providing information about individual athletes who may be in receipt of performance enhancing substances to UKAD or its successor body.(2) The reference in sub-paragraph (1)(a) to measures designed to protect sport in the United Kingdom from athletes taking performance enhancing substances include measures designed to identify or prevent doping including, but not limited to, requesting information about the gender of the data subject if thought to be relevant to the use of banned performance enhancing substances.(3) For the purposes of this paragraph—(a) data controllers include, but are not limited to, the UK Anti-Doping Agency, medical practitioners recognised by the British Medical Association, national governing bodies of sport, sports clubs, higher education institutions, schools and managers of sporting events;(b) data processors include but are not limited to all sports bodies and individuals appointed by the controller; and(c) data subjects are athletes competing in national junior and senior teams aged 12 years and above.”
My Lords, at Second Reading, the Government described the exemption of doping in sport as a flexibility permitted within the GDPR. This is welcome. My understanding is that anti-doping in sport comes under Part 2, relating to the permissibility of collecting personal data for reasons of public interest. Therefore, biometric data, for example, may be collected and processed to prevent doping without the explicit consent of the data subject—in this case the athlete. Member states are able to pass into their domestic legislation further restrictions on the processing of special categories of data. This is what the Government do under Part 4 of Schedule 1.
The relevant data controller—a role which currently is not clear in the Bill in the case of sport—will have to produce a document that explains how its procedures comply with article 5 of the GDPR and what its policies on retention and use of personal data within its control are. It will also be under an obligation to maintain a record of the processing it or its data processors have undertaken to comply with article 30 of the GDPR. With respect to this, the data controller has to show how they comply with article 6 of the GDPR and whether they have deleted or retained the data under their control. Sport would be wise to reflect that the Government have said that what is proposed is not an exemption to the Bill but flexibility permitted within the GDPR, which will require sporting bodies to exercise a number of important responsibilities, and that ignoring such responsibilities comes with significant sanctions, some criminal in nature. I would be grateful if the Minister could confirm that my understanding is correct on that subject.
From the perspective of the athletes, the fact that—across the party divide, I understand—we are supportive of this flexibility does not underestimate what we are asking for. The doping regime in sport requires the athlete to be totally responsible for what is in their body at all times. I know of few spheres of activity where the onus on an individual is so severe. Our athletes are guilty before being proven innocent. It is intrusive, to say the least, to have a regime whereby a young gymnast eating beef which may have been imported from a country where the farmer used steroids to fatten his cattle for market is immediately found guilty of a doping offence in this country. It is equally important to recognise that the “whereabouts test” required of all our leading professional and amateur athletes requires them to inform the doping authorities of where they are for a given period each and every day including their holidays, where in all other forms of employment this intrusive and onerous requirement goes beyond the freedom that an employee can legitimately expect, not least under European law, as well as the freedom to have their holidays uninterrupted on a daily basis by their employers.
I appreciate that these exemptions must respect the essence of fundamental rights and freedoms, and be a necessary and proportionate measure in a democratic society for the purposes of safeguarding the doping regime in British sport, necessary for reasons of public interest and providing for suitable and specific measures to safeguard the fundamental rights and interests of data subjects. I would be grateful if the Minister could confirm that this is the case. This law, which enshrines in UK law a right to be forgotten and for an athlete not to provide a test sample, claiming protection under this Bill, would drive a coach and horses through the anti-doping regime that we have developed in this country under the aegis of UKAD, or UK Anti-Doping, if it was not treated with the flexibility permitted within the GDPR. Thus, I fully support the decision taken by the Government.
I am also in full support of the work of the governing bodies, UKAD and the world of sport in the fight against doping, which poses the greatest threat to clean sport in our generation, particularly since it was reported only two weeks ago by the World Anti-Doping Agency in publishing its 2016 anti-doping testing figures that the number of adverse analytical findings is increasing. We face a world where new technologies and pharmaceutical products, changes in doping patterns, gene editing and state-sponsored doping both within and beyond the borders of Russia are growing issues, providing not a diminishing but an increasing menace to clean sport.
The amendments that I have tabled are set against this background, probing in nature at this stage, and underline a number of important points which may require further consideration by the House. Currently, the relevant provision, paragraph 21 in Schedule 1, is broadly drawn and would lead to unintended consequences, for there is no definition of doping nor of sport, and the definition of the bodies to be covered by it is non-existent. This could become a lawyer’s paradise. If I and another noble Lord establish an organisation with the broad aims set out in paragraph 21, it seems to me that we would be deemed a “relevant body”. Indeed, there is no mention of the framework currently in place to eliminate doping—namely UKAD, the government-funded UK anti-doping body, which should be referenced in the legislation, providing it with the necessary powers. Looking further at the wording, I would like to ask the Minister whether he agrees with me that,
“doping … at a sporting event”,
covers spectators as well as competitors. If so, we need further work on the wording.
I have stated that I believe that UKAD should be named on the face of the Bill, since UKAD is the arm’s-length body, or ALB, accountable to Parliament through the Secretary of State at the DCMS and mandated to deliver the Government’s treaty commitments under the UNESCO International Convention against Doping in Sport to protect a culture of clean sport in the UK. This is achieved through the implementation and management of the UK’s national anti-doping policy, which requires funded sports bodies in the UK to comply with the World Anti-Doping Code.
By naming UKAD in the Bill we will enable it to deliver its current agenda of reforms, which it sees as essential to be a more effective body and with which I agree. This would, for example, extend the reach of UKAD across all sports in the UK covering all levels, including amateur as well as elite. Today it is restricted, given its resources, to work only through the relevant sports and numerous governing bodies and umbrella bodies that exist. It would enable it to demand information from national governing bodies of sport, the NGBs, including the records of treatment of athletes by athlete support personnel. It would enable it to require NGBs to provide UKAD with details of their members, through the provision of their full membership databases. It would enable it to demand production of communications devices, together with their password details and to reach out beyond the remit of governing bodies—for example into university gyms, renowned centres for a small minority of aspiring professional rugby players to add strength and body mass through the use of steroids and other banned performance-enhancing drugs. It would enable it to criminalise doctors who are outside the remit of governing bodies and found to be in breach of the GDPR process when they fail to provide personal data required by the GDPR regime under Clauses 21(1) and 21(2) of the Bill. Finally, it would enable it to have the tools in place to manage a regulated assurance regime that checks on compliance, not just in governing bodies but across sport in the United Kingdom. All could be determined as necessary by UKAD in undertaking its duties if it is, indeed, a controller in this context.
My noble friend may, in responding, point out that the clause should include bodies wider than just the processes conducted under measures set by UKAD, and that my wording may be deficient in that respect. I understand this opinion, which has been aired by some governing bodies of sport, but if that is the Minister’s view, and it finally proves convincing, a change to my wording could address that, as there are, indeed, other organisations that we may regard as additional to UKAD in the fight against doping. Some examples might be sports which, while working with UKAD in some capacity, have their own related doping rules, such as the FA and the RFU. While it should be pointed out that both the FA and the RFU govern Olympic sports and are therefore fully covered by the World Anti-Doping Agency, which provides the framework for all UKAD’s operations, policies and codes, I believe that UKAD should have ultimate responsibility for accrediting all British anti-doping programmes, and my amendment seeks to achieve this objective.
International federations may apply their own measures when running events in the UK. This might be UK-based federations, such as the Commonwealth Games Federation, or international federations of sport—or, indeed, the International Olympic Committee or the International Paralympic Committee—when they are running events here. Again, I believe that UKAD should have overall authority to determine whether their programmes, when operating in the UK, are to a standard that fulfils its criteria. We should not seek to bring any event to this country with public or lottery funding, nor should we support any international event on these shores, funded either through lottery funding or public money, which does not meet the standards and procedures set and agreed by UKAD, as the sole recognised body responsible for the fight against doping in sport in the UK. Otherwise, we risk allowing British or international sports organisations to hold events that could circumvent what we, as Parliament, recognise to be the minimum standards in the fight against cheating in sport.
My amendment makes reference to performance-enhancing substances listed in the World Anti-Doping Code.
I hear what my noble friend says. I recognise that the wording may need to recognise any successor body to UKAD, but the importance of putting UKAD in the legislation now arises from the fact that it is an arm’s-length body accountable to Parliament; that it is honour bound—and, indeed, legally bound, at the moment, through the Secretary of State—to deliver the requirements of the UNESCO International Convention against Doping in Sport; and it is the recognised and funded body in this country. It would be possible to add “and to any successor body” to my amendment.
My Lords, how does the noble Lord define sport? That is a major question. For instance, in snooker, which I believe is defined as a sport, it is recognised that beta blockers are a banned substance whereas in other sports they would not necessarily be banned. Dancing is not defined as a sport although it demands very much more activity than either darts or snooker, which is a sport.
The noble Lord raises an issue that could well keep the Committee late into the evening and indeed has taxed the minds of many individuals both inside and outside this Chamber. For example, if we consider sport to require physical activity and competition, gardening at the Chelsea Flower Show might well be covered by that broad definition. I hope that my noble friend in sport, and indeed the noble Lord, will forgive me if I do not pursue that path. However, I did say at the outset that there is an important issue here in that we need to define what the Government mean by sport in their amendment, because it is unclear to many people outside this Chamber—and oft debated—what exactly a sporting activity is.
I shall close by touching on the performance-enhancing substances listed in the World Anti-Doping Code and why I believe it is critical that we should cover those. I have reservations about exempting sports bodies from requiring sensitive personal data from athletes simply because they are deemed to be “contrary to the spirit of sport” or, while legal, “could cause harm to an athlete”. My objective has always been focused on tackling doping in sport and I believe that it may go too far to seek an exemption for these additional categories. However, I remain open to persuasion by the Minister on this issue and will listen carefully to both UKAD and to the UK governing bodies of sport if they feel otherwise. If so, in a future amendment we will need to be specific about exactly what we mean by the “spirit of sport” by defining it in primary legislation and being clear about who determines what does cause “harm to an athlete”, and why such protection from the GDPR rights is appropriate in that context.
On the final question of gender, this is a probing amendment since the current position in UK law is that competitive sports men and women who have undertaken a change in their gender are currently prohibited from participating in certain competitions under the Gender Recognition Act 2004. As a result, an athlete who changes their gender would be subject to the onerous sanctions in this Bill if in the process of any medical treatment to assist their change-in-gender process they used banned performance-enhancing substances. This is not unusual where testosterone is prescribed.
In conclusion, I hope that this is the beginning of a legislative path where those who knowingly cheat fellow athletes out of their careers, recognition, selection or financial gain by taking a cocktail of banned drugs are recognised for what they are doing—namely, committing fraud. We also believe that tailor-made legislation should be put in place to criminalise that activity, as it is in every other sphere of life. UK Anti-Doping has the national duty to ensure that all sports comply fully with anti-doping policies and procedures. Under its new chair, Trevor Pearce, its new director of communications, Emily Robinson, and its CEO, Nicole Sapstead, I believe that an effective team is now in place who recognise that a globally leading NADO has to be well resourced, truly independent of the governing bodies of sport and granted additional powers. My amendments to the Bill begin to provide it with the tools it needs and I believe that it is best positioned to lead the campaign. This legislation should make it unequivocally clear that that is the case because that is the best way of protecting the interests of athletes. I beg to move.
My Lords, if this amendment is agreed to, I cannot call Amendments 58 to 62 because of pre-emption.
I must say how delighted I am that on this occasion we had the noble Lord advocating his own amendment. I was nearly in the hot seat last week, but we have just avoided it. I was delighted at his powerful advocacy because of course the noble Lord is extraordinarily well informed on all matters to do with sport, and this goes to the heart of sport in terms of preventing cheats who prevent the rest of us enjoying what should be clean sport, however that may be defined. All I have to do is pick out one or two of the elements of what the noble Lord said in my supportive comments.
There is the fact that neither “doping” nor “sport” is defined in the Bill, as the noble Lord pointed out. There is no definition of the bodies to be covered by paragraph 21, which is extremely important. He also made an extraordinarily important point about UKAD. Naming UKAD in the Bill, as the amendment seeks to do, would add to its authority and allow it to carry out all the various functions that he outlined in his speech. If it is necessary to add other bodies, as he suggested, that should of course be considered.
The noble Lord’s reference to performance-enhancing substances, which again are mentioned in the amendment and included in the World Anti-Doping Code, ties the Bill together with that code and was very important as well. Finally, the point that he made about gender and the substances used in connection with gender change was bang up to the minute. That, too, must be covered by provisions such as this. So if the Minister is not already discussing these issues with the noble Lord, Lord Moynihan, I very much hope that he is about to and will certainly do so before Report.
My Lords, once again your Lordships’ House is very grateful to the noble Lord, Lord Moynihan, for raising this issue and, as the noble Lord, Lord Clement-Jones, said, for doing so in such a comprehensive way. It is in the context of the much wider range of issues that the noble Lord, Lord Moynihan, has been pursuing regarding how sport, gambling and fairness are issues that all need to be taken together. We have been supporting him on those issues, which need legislation behind them.
Noble Lords may not be aware that we have been slightly accused of taking our time over the Bill. I resist that entirely because we are doing exactly what we should be doing in your Lordships’ House: going through line-by-line scrutiny and making sure that the Bill is as good as it can be before it leaves this House. We saw the noble Lord, Lord Moynihan, at the very beginning of Committee and he then dashed off to Australia to do various things, no doubt not unrelated to sport. He has had time to come back and introduce these amendments—but, meanwhile, the noble Lord, Lord Clement-Jones, and I were debating who was going to pick the straw that would require us to introduce them. We were very lucky not to have to do so because they were introduced so well on this occasion.
Our amendment in this group is a probing amendment that picks up on some of the points already made. It raises the issue of why we are restricting this section of the Bill to “sport”—whatever that is. If we are concerned about performance enhancement, we have to look at other competitive arrangements where people gain an advantage because of a performance-enhancing activity such as taking drugs. For instance, in musical competitions, for which the prizes can be quite substantial, it is apparently possible to enhance one’s performance—perhaps in high trills on the violin or playing the piano more brilliantly—if you take performance-enhancing drugs. Is that not somehow seeking to subvert these arrangements? Since that is clearly not sport, is it not something that we ought to be thinking about having in the Bill as well? I say that because, although the narrow sections of the Bill that relate to sport are moving in the right direction, they do not go far enough. As a society, we are going to have to think more widely about this as we go forward.
I am slightly confused by what is a performance-enhancing drug. We have seen athletes and other sportsmen banned in this country for taking what I would call non-enhancing drugs: in other words, cannabis or whatever it might be. In that case they are not performance-enhancing drugs but the reverse of them—yet people can be banned even if taking them is deemed legal in the country where they do so. Even if it is legal to take cannabis, the drug can still be deemed a banned drug by the anti-drug authorities.
My noble friend is quite right. He has obviously been careful to make sure that he has no personal experience of what he talks about and I would like to make it clear that I have none, either. But it is a very tricky area and we are wrong just to dance around it with the idea that we are somehow doing something important in relation to a particular aspect of drug enforcement.
To do this properly, we need a much clearer approach. I realise that I am in danger of rising above the detail here and going back to my high plain of intellectual approach to the Bill for which I have already been criticised—but I hope that when the Minister responds we can get somewhere on this. A meeting on the particular narrow points raised by the government amendment and by the noble Lord, Lord Moynihan, is required. It would be helpful to see the context in which this might operate. I would be happy to attend such a meeting should that be the case.
My Lords, I want to reiterate what my noble friend Lord Ashton said. I think we are learning a lot about philosophy from the noble Lord, Lord Stevenson, during the passage of the Bill. It is a welcome addition as far as I am concerned.
I shall start with brief reference to the government amendments in this group. These amendments, Amendments 58 to 60 and 62 and 63, make further related provision in respect of processing undertaken to ensure the integrity of sport. This is necessary because, unusually, integrity issues in sport often relate to sensitive data, the processing of which may otherwise be prohibited under article 9 of the GDPR. I am grateful to a number of stakeholders for their help in making sure that these amendments will achieve their intended effect.
I turn now to the amendments tabled by the noble Lord, Lord Moynihan, and the noble Lord, Lord Stevenson. Amendments 57 and 61 seek to amend the processing condition in paragraph 21 on anti-doping in sport. This condition was included in the Bill following extensive engagement with sports governing bodies and UK Anti-Doping, which together implement and manage anti-doping policy in the UK. They are also responsible for eliminating the scourge of doping in sport. The paragraph as included in the Bill permits the processing of sensitive data for these purposes. UKAD is of the view that the measure as drafted will enable it to continue to perform this important function.
Amendment 57, tabled by my noble friend Lord Moynihan, who has such great expertise in this area and has done so much over the years to try to combat doping in sport, seeks to narrow the doping provision so that it allows processing only where it relates to an athlete who may be in breach of UKAD’s rules. Amendment 61, tabled by the noble Lord, Lord Stevenson, instead seeks to limit the provision to rules set by a sports governing body with responsibility for a single sport. Neither position reflects the reality of split responsibility for anti-doping in UK sport today. Removing the reference to “sporting event” and “sport generally” may potentially exclude the anti-doping processing carried out by UKAD and by those bodies which set and enforce anti-doping rules in a particular sporting event rather than a particular sport, such as 6 Nations rugby, the IOC or the Commonwealth Games Federation. The Bill must not be limited to only the interventions of UKAD but must allow processing in those sports and sporting events which have their own anti-doping rules. The fact that those bodies are not governed entirely by UKAD’s rules makes their processing no less important. Equally, the provision must allow processing in relation to participants who are not themselves athletes. As noble Lords will understand, the sensitive data or criminal record of a coach or relative may be fundamental to anti-doping cases.
A narrowing of the scope of this paragraph could create loopholes for participants who cheat. For these reasons, I am confident that the original drafting suffices. Paragraph 21 of Schedule 1 was subject to significant engagement with sports governing bodies. Given that the Bill comes out of the government department that is also responsible for sport, we have been able to take extra care. The large number of relationships we have with this sector have been used to test the draft, and UKAD is content.
Several noble Lords mentioned various items which I will also refer to. My noble friend Lord Moynihan wanted me to confirm that athletes cannot rely on the right to be forgotten. That right is not unlimited, and if the personal data has been lawfully processed, and needed to be processed, then it would be there only if there was no overriding legitimate interest for the processing of that data. The controller would have to erase the personal data in these circumstances.
My noble friend also asked why we did not criminalise doping. None of those interviewed as part of the review were in favour of criminalising doping in sport. This was a unanimous view. For example, sports governing bodies expected that their internal investigations would be negatively affected by the criminalisation of doping in sport. It would remain quicker to deal with an instance using regulatory or disciplinary proceedings, which must be proved to the civil standard of the balance of probabilities rather than beyond reasonable doubt. Others noted that the current penalties were already sufficient to end a sporting career.
My noble friend also wanted to know whether doping at a sporting event covered spectators. This is a broad measure to cover processing in connection with measures designed to eliminate doping, for the purposes of providing information about doping or suspected doping. This could include processing of special categories, such as data relating to spectators or third parties providing information, but not only when necessary in connection with anti-doping measures.
The noble Lord, Lord Stevenson, brought up a good point, about why sport is unique when there are other areas that could also be included in this. Particular provision for sport is needed because sports bodies are an unusual type of regulator, where the regulation they carry out is capable of meeting a substantial public interest test yet they cannot rely on paragraph 9—there is no statutory recognition of their function nor is it beyond argument that enforcement of their rules benefits all members of the public, as opposed to the protection of their participants. Reliance on paragraph 9 for this processing would be too narrow, but important to remedy given the amount of sensitive data that might be processed by sports bodies in pursuit of their integrity functions. This is not something that we are aware would apply to other types of regulators.
I will move the government amendments for the reasons I have set out, and will of course be happy to meet noble Lords if they wish to discuss this point further.
First, I thank the noble Lords, Lord Stevenson and Lord Clement-Jones, for offering to stand in for me at the last Committee sitting. I was in my place for the first sitting, when we were expecting to reach this amendment, but regrettably had to travel to Australia on two occasions in the last month, only returning about four and a half hours ago. I apologise if I was not as lucid as I would like to have been, and I am very grateful to them for offering to assist if I had been absent again.
I will respond very briefly to a number of points raised. In response to the noble Lord, Lord Maxton, I took into consideration the question of what is a performance-enhancing drug and have suggested, in my amendment, that it should be a drug listed under the WADA—World Anti-Doping Agency—code as a performance-enhancing drug and part of the World Anti-Doping Code. I know this is a contentious issue and that there is an issue about what should or should not be in that code. Indeed, I have many reservations about a number of the drugs in it, which I do not see as performance enhancing, but it is the best international definition at the moment for sport and is used by the International Olympic Committee.
As a result of the answer given to me by my noble friend, I have looked this up. It says:
“Use of recreational or social drugs is banned in sport”,
even though they may be,
“detrimental to sporting performance and result in a positive test result weeks later”.
It is not just drugs that enhance performance that are banned but those which do not enhance performance.
I have a great deal of sympathy with and support for the noble Lord, Lord Maxton. I said towards the end of my comments that I have reservations about the Bill applying to categories such as “the spirit of sport”—that is a direct quote—and where there may be harm to an athlete from a drug. I am focused on performance-enhancing drugs, which is why I wrote that into the amendment.
Secondly, I have to say to my noble friend—I may well be wrong, and she has had the advantage of being in the United Kingdom over the past three or four days and may well have spoken to UKAD during that time—that my clear understanding is that UKAD would like to go further than what is in the Bill drafted by the Government. If I am wrong, I will be pleased to reflect on what she has said, but I suggest that it would be worth while, given that my understanding differs from hers, that we have a meeting and encourage UKAD to be present, because my clear understanding is that it would like to go further and have the powers to which I referred in the Bill.
Finally, I turn to the somewhat surprising comment that my noble friend made about spectators at a sporting event being covered. Surely when we are looking at doping in sport it is not intended to cover spectators or anybody at a sporting event. The police, St John Ambulance, stewards—where does the catch-all end? My concern derives from that reflection: this is too general. If we are to be really effective in tackling and eliminating doping in sport, let us at least make sure that the legislation that we enact through due process in both Houses is as accurate and comprehensive as possible. In that context, I echo the comments made by both the noble Lord, Lord Clement-Jones, and the noble Lord, Lord Stevenson.
With the expectation of a further meeting and returning to this at a later stage, I beg leave to withdraw the amendment.
Amendment 57 withdrawn.
Amendments 58 to 60
58: Schedule 1, page 121, line 3, leave out “carried out” and insert “necessary”
59: Schedule 1, page 121, line 4, leave out “in connection with” and insert “for the purposes of”
60: Schedule 1, page 121, line 5, leave out “supervision of a body with responsibility” and insert “responsibility of a body or association that is responsible”
Amendments 58 to 60 agreed.
Amendment 61 not moved.
Amendments 62 and 63
62: Schedule 1, page 121, line 9, at end insert “or association”
63: Schedule 1, page 121, line 11, at end insert—
“21A(1) This condition is met if the processing— (a) is necessary for the purposes of measures designed to protect the integrity of a sport or a sporting event,(b) must be carried out without the consent of the data subject so as not to prejudice those purposes, and(c) is necessary for reasons of substantial public interest.(2) In sub-paragraph (1)(a), the reference to measures designed to protect the integrity of a sport or a sporting event is a reference to measures designed to protect a sport or a sporting event against—(a) dishonesty, malpractice or other seriously improper conduct, or(b) failure by a person participating in the sport or event in any capacity to comply with standards of behaviour set by a body or association with responsibility for the sport or event.”
Amendments 62 and 63 agreed.
My Lords, with the permission of the House, I shall repeat the Answer to an Urgent Question in the other place. The Answer is as follows:
“Mr Speaker, with your permission, I should like to make a Statement on the case of Nazanin Zaghari-Ratcliffe. The whole House will join me in expressing our profound concern about the ordeal of this young mother, who has spent the past 19 months in jail in Iran, and every honourable Member will join the Government in urging the Iranian authorities to release her on humanitarian grounds.
I spoke by phone to her husband, Richard Ratcliffe, yesterday, and we agreed to meet later this week. I told Mr Ratcliffe that the whole country is behind him and that we all want to see his wife home safely.
In view of the understandable concern, I propose to describe the background to Mrs Zaghari-Ratcliffe’s case and the efforts that the Government are making to secure her release. In April last year, she was visiting her relations in Iran, along with her daughter, Gabriella, who was then only 22 months old, when she was arrested at Imam Khomeini Airport in Tehran while trying to board her flight back to the UK. The British Government have no doubt that Mrs Zaghari-Ratcliffe was in Iran on holiday, and that that was the sole purpose of her visit.
As I said in the House last week, my remarks on this subject before the Foreign Affairs Select Committee could and should have been clearer. I acknowledge that the words I used were open to being misinterpreted, and I apologise to Mrs Zaghari-Ratcliffe and her family if I have inadvertently caused them any further anguish.
The House should bear in mind that Iran’s regime—and no one else—has chosen to separate this mother from her infant daughter for reasons that even it finds difficult to explain or describe. On 9 September 2016, Mrs Zaghari-Ratcliffe was brought before a secret trial and sentenced to serve five years in prison, supposedly for plotting to overthrow the Islamic republic. The House will know that, as far as we can tell, no further charges have been brought against her and no further sentence has been imposed since that occasion over a year ago.
Eleven days after Mrs Zaghari-Ratcliffe was sentenced, my right honourable friend the Prime Minister raised her case with President Hassan Rouhani of Iran in New York on 20 September 2016. Two days later, I raised her case with my Iranian counterpart, Mr Zarif. For the sake of completeness the House should also know that the Prime Minister, the right honourable Theresa May, raised Mrs Ratcliffe’s imprisonment with President Rouhani on 9 August 2016, and my predecessor as Foreign Secretary, my right honourable friend the Member for Runnymede, wrote to the Iranian Foreign Minister about her plight and other consular cases on 29 August 2016.
At every meeting with our Iranian counterparts, my colleagues and I have taken every opportunity to raise the cases of Mrs Zaghari-Ratcliffe and other British nationals held in Iranian jails. We have expressed our concerns at every level—official, ministerial and Prime Ministerial—on every possible occasion during the 19 months that she has been in jail. In addition, Mr Ratcliffe has held regular meetings with my honourable friend the Member for Bournemouth East, formerly the Minister for the Middle East, and with the current Minister, my honourable friend the Member for North East Bedfordshire.
A situation where a British mother is held in these circumstances is bound to cast a shadow over Britain’s relations with Iran at a moment when, in the aftermath of the agreement of the nuclear deal in July 2015 and the easing of sanctions, we had all hoped to witness a genuine improvement. So I shall travel to Iran myself later this year to review the full state of our bilateral relations and drive home the strength of feeling in this House, and in the country at large, about the plight of Mrs Zaghari-Ratcliffe and other consular cases.
In order to maximise the chances of achieving progress, I would venture to say that honourable Members should place the focus of responsibility on those who are keeping Mrs Zaghari-Ratcliffe behind bars, and who have the power to release her whenever they choose. We should be united in our demand that the humanitarian reasons for releasing her are so overwhelming that, if Iran cares about its reputation in this country, its leaders should now do what is manifestly right. I commend the Statement to the House”.
My Lords, that concludes the Statement.
My Lords, like my right honourable friend in the other place, I should like to say, first, that I am sure all noble Lords will join us in sending our thoughts to those affected by yesterday’s earthquake on the Iran-lraq border.
No one who listened to Richard Ratcliffe over the weekend can be in any doubt about how urgent it is for Nazanin’s mental and physical health that she is returned to her family as soon as possible. The Foreign Secretary said that he would be meeting Mr Ratcliffe this Wednesday and that he would be explaining the position on diplomatic status. Will the Minister undertake to report to the House on these discussions and on any possible outcome and progress?
I note that in the other place, the Foreign Secretary apologised for his mistake—being very clear that she was on holiday. However, will he write to the Commons Foreign Affairs Committee correcting the record formally?
We all agree that the responsibility for Mrs Zaghari-Ratcliffe’s incarceration and mistreatment lies entirely with the Iranian authorities, and we all unite in urging them to restore her to freedom. But every single Member of the Government should speak with one voice on this subject. Sadly, that was not reflected by the Environment Secretary over the weekend.
In repeating the Statement, the Minister referred to the Prime Minister making representations at head of government level in the past. Will she urge the Prime Minister to do this again, especially in advance of the Foreign Secretary’s visit to Iran?
I, too, reiterate our thoughts for all those affected by the earthquake in Iran. The noble Lord raises a number of issues, and I hope to be able to answer them as well as I can. On diplomatic protection, we are looking at all aspects of this case, and the Foreign Secretary is looking forward to discussing the case with Richard Ratcliffe when he meets him on Wednesday. I believe that the House will be updated—to the extent that it is reasonable and proper in the light of the continuing discussions around the safe release of Nazanin, we will come back and update the House as and when we can.
On the comments of my right honourable friend the Foreign Secretary, in the other place today I think he went further than he has previously. He said that it was his mistake, and he has retracted the statement—and clearly, he has done so publicly—that Nazanin was there in any other capacity than on holiday. I am sure that those who heard his initial statement will also hear the words he went on to say today.
On the comments of my right honourable friend the Environment Secretary, what is often not reported in the press is that he actually said:
“There is no reason she should be in prison as far as anyone knows”.
I think that Her Majesty’s Government would agree with that—so he was not speaking in a different fashion.
Finally, on the role of the Prime Minister in all these discussions, the noble Lord is right that, if it is appropriate, I am sure she will want to involve herself in Nazanin’s safe return. However, it may not be—and it may be that other routes are better.
My Lords, I am glad that the right honourable Foreign Secretary has now apologised for his Statement to the Foreign Affairs Committee and for the “anguish”, as he put it, it has caused. He said in the Commons—I listened to it just now—that he got it wrong, and accepts that Nazanin Zaghari-Ratcliffe was on holiday, of course, visiting her parents. But he also says that he “could have been clearer”, rather than more accurate. Does the Minister agree that, in such sensitive situations, we always have to be immensely careful as to what we say and do?
As noble Lords know, I have raised this case repeatedly in this House—and I pay tribute here to Richard Ratcliffe. For two months now, the Foreign Office has had the legal advice of Nobel laureate lawyer, Shirin Ebadi, which concludes that the Government have the power to take legal action against the Iranian Government to protect Mrs Ratcliffe’s rights as a British citizen. Will they now take such action so that, at last, Nazanin and Gabriella can be brought home?
I am not sure that it is really the time now to go into more detail about the Foreign Secretary’s comments. We know exactly what he said and we know now what he has admitted was his mistake.
On the point about the legal advice, as with all Foreign Office policies we explore all options that will support or further our objectives. That includes, obviously, working with external lawyers where they might have an input. So I can confirm that conversations are continuing with a number of third parties, all of whom are engaging with the Foreign Office to make sure that we can ensure the safe return of Nazanin as soon as possible.
My Lords, there is a danger of creating a smokescreen to defend Cabinet Ministers on this. It is clearly a very sensitive issue. A simple question is whether the Foreign Secretary was aware of the facts when he made his statement to the Foreign Affairs Committee.
My Lords, while we welcome the strong condemnation of the cruel and arbitrary detention of Mrs Ratcliffe, would it not add strength to our protest if we were consistent in our condemnation of human rights abuses wherever they occur? I give the example of the recently departed Defence Secretary, who on two occasions very recently said that we should not talk about human rights when discussing arms deals with Saudi Arabia. Earlier he said the same thing about China. Is it not important that we should be totally consistent in condemning abuses of human rights wherever they occur?
The noble Lord is absolutely right: the human rights situation in Iran remains dire and we are determined to continue to hold the Government to account. We frequently release statements condemning the human rights situation in Iran and lead action by the international community. We regularly raise human rights issues in dialogue with Iran. However, we must be clear: there is no link, nor should there be, between consular cases and many other issues.
My Lords, the Foreign Secretary’s remarks, which the noble Baroness has repeated, sound more like a plea of mitigation than anything else, but a plea of mitigation is effective only if it is preceded by an unequivocal apology. In truth, the apology which the Foreign Secretary made when this matter was debated in the other place had to be dragged out of him after some 15 or 20 minutes. The truth of the matter is that the Foreign Secretary is not up to his responsibilities, and this is an eloquent indication of that. The Prime Minister knew what she was getting when she appointed him. It is now time for her to take personal responsibility for the case we are discussing and ensure that the Foreign Secretary is no longer able to dabble in it.
My Lords, will my noble friend please confirm that the Government are pursuing all negotiating avenues to release this person and other political prisoners, given that when I was involved in negotiations to free hostages in Iraq in 1990, many of the avenues that were worth pursuing were not governmental whatever, but involved religious and other bodies that have a power which many Governments do not?
I know that my noble friend has significant experience of negotiating the release of British nationals. He will know that every day in some part of the world a UK national or dual national is detained and another is released. Some of these cases are known only to family, some are known to family and our consular teams and others are more widely known, but in each case where we are involved, the Government give individual advice based on a judgment of what is the best interest of the person involved and the wishes of the family. The reason the Government sought private approaches to the Iranian Government in this case—the humanitarian case of a mother separated from her child—is that we believe from experience that such an approach is the right one. We have followed this persistently and regularly, informing the family at all turns. Therefore, there are many routes through which we can secure the release of Nazanin and other detainees. They may be private or public and, as I said to the noble Baroness, may involve third parties.
EU Exit Negotiations
My Lords, with the leave of the House, I will now repeat a Statement made in the other place earlier today by my right honourable friend the Secretary of State for Exiting the European Union. The Statement is as follows:
“With permission, Mr Speaker, I will update the House on negotiations between the UK and the European Union in November, reflecting our actions since the October Council. Both the UK and the EU recognised the new dynamic instilled in the talks by the Prime Minister’s Florence speech.
At the October European Council, the 27 member states responded by agreeing to start their preparations for moving the negotiations on to trade and the future relationship we want to see. The Council conclusions also called for work to continue, with a view to being able to move to the second phase of the negotiations as soon as possible.
It is, of course, inevitable that our discussions are now narrowing to the few outstanding—albeit important—issues that remain. Last week, our focus was concentrated on finding solutions to those remaining issues. As we move forward towards the December Council, we have been clear with the EU that we are willing to engage in discussions in a flexible and constructive way in order to achieve the progress needed. To this end, our teams are in continuous contact, even between the formal rounds. I now turn to the three, key, ongoing areas of discussions, and will outline progress made last week on each of these.
We have made solid progress in our ongoing discussions on Northern Ireland and Ireland. Key areas of achievement include: continued progress in technical discussions on preserving north-south co-operation; agreed joint principles on the continuation of the common travel area and associated rights; and drafting further joint principles on how best we preserve north-south co-operation under the Belfast agreement to help guide the specific solutions to the unique circumstances in Northern Ireland. Both sides also remain firmly committed to avoiding a hard border—a point we have remained clear on throughout. We also remain resolutely committed to upholding the Belfast/Good Friday agreement, in all its parts, and to finding a solution that works for the people of Northern Ireland and Ireland.
We have continued to hold frank discussions with our Commission counterparts about all these issues. But in this area we have also had to be very clear with our Commission counterparts that, while we respect their desire to protect the legal order of the single market and customs union, that cannot come at the cost of the constitutional or economic integrity of the United Kingdom. As I have said, we cannot create a ‘new border’ within the United Kingdom. This is an area where we believe we will only be able to conclude talks finally in the context of our future relationship. Until such time as we can do so, we need to approach the issues which arise with a high degree of political sensitivity, pragmatism and creativity. Discussions on these areas will continue in the run-up to the December Council.
We have continued to make good progress on citizens’ rights. Both sides are working hard towards resolution of outstanding issues. Last week, to respond to the request for reassurances by the EU, we published a detailed description of our proposed administrative procedures for EU citizens seeking settled status in the UK. As our paper demonstrates, the new procedures will be as streamlined, straightforward and low-cost as possible and will be based on simple, transparent criteria, which will be laid out in the withdrawal agreement.
While there remain differences on the issues of family reunion and the export of benefits, we have been clear that we are willing to consider what further reassurance we can provide to existing families of EU residents here, even if they are not currently living together in the UK. I believe that this paves the way to resolving the remaining issues in this area, and this was acknowledged by the Commission on Friday. There also remain some areas where we are still seeking further movement from the EU. These are voting rights, mutual recognition of qualifications, and onward movement for British citizens currently living in the EU 27. In all of these three areas, the UK’s offer goes beyond that of the EU.
Finally, the Commission has fallen short of the UK’s offer in relation to the right to stand and vote in local elections. This is a core citizen’s right, enshrined in the EU treaties. I have been disappointed that the EU has been unwilling to include voting rights in the withdrawal agreement so far. As a result, we will pursue this issue bilaterally with member states.
This week we have also sought to give further clarity on our commitment to incorporate the agreement we reach on citizens’ rights into UK law. This will ensure that EU citizens in the UK can directly enforce their rights in UK courts, providing certainty and clarity for the long term. We have made it clear that over time, our courts can take account of rulings of the European Court of Justice in this area to help to ensure consistent interpretation. However, we remain clear that, as we leave the EU, it is a key priority for the UK to preserve the sovereignty of our courts and, as such, in leaving the EU, we will bring an end to direct jurisdiction of the ECJ.
It is not my intention to pre-empt the Committee stage of the European Union (Withdrawal) Bill but what I say next will have some relevance to it. It is clear that we need to take further steps to provide clarity and certainty, both in the negotiations and at home, regarding the implementation of any agreement in UK law. I can now confirm that, once we have reached an agreement, we will bring forward a specific piece of primary legislation to implement that agreement. This will be known as the withdrawal agreement and implementation Bill. This will confirm that the major policies set out in the withdrawal agreement are directly implemented in UK law by primary legislation, not by secondary legislation under the withdrawal Bill. This also means that Parliament will be given time to debate, scrutinise and vote on the final agreement that we strike with the EU. This agreement will hold only if Parliament approves it.
We expect this Bill to cover the contents of the withdrawal agreement, including issues such as an agreement on citizens’ rights, any financial settlement and the details of an implementation period agreed between both sides. Of course, we do not yet know the exact details of this Bill and are unlikely to do so until the negotiations are near completion.
I should also tell the House that this will be over and above the undertaking that we have already made to bring forward a Motion on the final deal as soon as possible after the deal is agreed, and that we still intend and expect such a vote on the final deal to happen before the European Parliament votes on it. There cannot be any doubt that Parliament will be intimately involved at every stage.
Finally, on the financial settlement, the Prime Minister’s commitment made in her Florence speech stands: our European partners will not need to pay more or receive less over the remainder of the current budget plan as a result of our decision to leave. The UK will honour the commitments we have made during the period of our membership. This week we made substantial technical progress on the issues which underpin these commitments.
This has been a low-key but important technical set of negotiations, falling, as it has, between two European Councils. This is now about pinpointing further technical discussions that need to take place and moving forward into political discussions and decisions. We must now also look forward to moving our discussions on to our future relationship. For this to happen, both parties need to build confidence in both the process and indeed the shared outcome.
The United Kingdom will continue to engage and negotiate constructively as we have done since the start, but we need to see flexibility, imagination and willingness to make progress on both sides if these negotiations are to succeed and we are able to realise our new partnership. I commend this Statement to the House”.
I thank the Minister for repeating the Statement, and I give the warmest of welcomes to the announcement that the withdrawal agreement will now be implemented by means of primary legislation—something for which this House has long argued. However, there remain serious questions in regard to the withdrawal Bill and the current negotiations.
First, what on earth is this gimmick of an amendment to fix, down to the exact minute, the timing of our departure from the EU? Is it a panic measure for the Prime Minister to reassure doubters in her own party that she can deliver a workable Brexit—a response perhaps to the Johnson/Gove letter—rather than a serious piece of British legislation or diplomatic sensitivity, or was she jinxed by the speech of the noble Lord, Lord Kerr, or is it to undermine the opposition amendment that it should be Parliament, not a Minister, that decides the exit date?
Certainly, the government amendment would have Parliament fix the date, but it would decide it now, well before the withdrawal deal is complete, with imperfect knowledge of what will be needed by way of preparation or even whether a more suitable date, such as 5 April—the traditional start of our tax year—is available and with no thought to what might be happening at the time. It does not allow for an earlier date, nor does it give any room for manoeuvre for, for example, another foot and mouth crisis, a general election or some other national issue, let alone any decision by the 27 to extend the talks by a few days if they thought that we were on the edge of a breakthrough.
More seriously, it cuts across the Prime Minister’s Florence speech, which envisaged that should there be a “heads of agreement” on our future relationship with the EU by March 2019, we could contribute to the EU budget for a period, during which we would abide by existing EU processes, including of course the ECJ for some matters. However, Clause 6, with the Government’s new amendment, would disallow this from 11 o’clock on 29 March 2019. Will the Minister agree that it is for Parliament nearer the time to fix the date, not the Prime Minister or even Parliament now, regardless of the interests of business, consumers, the pound or any other contemporary event?
Secondly, on what basis are the Government negotiating if they are blind to the costs and benefits of each option? We thought they had done their homework but we are told now that perhaps those 58 impact assessments do not exist—they certainly have not been read by all the Ministers. Without these, on what basis are the Government taking decisions about this country’s future?
Thirdly, will the Minister say whether the Government will heed the excellent advice of his predecessor but one, the noble Lord, Lord Bridges? He has called for “honesty and clarity” and that,
“Ministers should stop pretending an implementation period will begin at the end of March 2019”.
Perhaps I should let the noble Lord, Lord Bridges, speak for himself, but it is too tempting to read out his words. He reminded the Government that implementation implies a treaty, well beyond the withdrawal deal, which will take years to negotiate and requires consent around the 27 parliaments. He urged the Government to clarify what they want to do with this supposed new-found freedom and to put some urgency—that is the word he used—into negotiations on the future framework.
Finally, on Northern Ireland, I wonder if the Government are regretting their “rash and reckless” ruling out of continued membership of the customs union. Even as the Government accept the introduction of a UK-EU border, albeit as “seamless and frictionless” as possible, they must realise that achieving this outside the customs union is a serious challenge. Had the Prime Minister not ruled out membership of the customs union, albeit from outside the European Union, then the apparently intractable conundrum in Northern Ireland might have been avoided, without David Davis having to reassert in this Statement his understandable rejection of a “new border” within the United Kingdom.
This week saw the commemoration of 11 November, a World War I date but, for my generation, with World War II resonance, and a reminder of all that the EU has done to end conflict in western Europe. We also commemorated the 9 November 1989 fall of the Berlin Wall and everything that the EU did to bed-in democracies in former Soviet territories, as earlier it had done with the former dictatorships in Spain, Greece and Portugal. I therefore ask the Minister how much the UK’s continued and future role in such developments will be ensured after Brexit, and how much this part of diplomacy features in Ministers’ thinking as they negotiate our future relationship with continental Europe.
My Lords, I am grateful to the Minister for repeating the Secretary of State’s Statement to the other place.
The Secretary of State seems to suggest that there has been a lot of activity and progress in recent weeks. That seems to be rather at odds with everything we have been hearing from Monsieur Barnier and the EU 27. One wonders who has been misled or has misunderstood what has happened in the past few weeks. The Secretary of State suggested that there has been a narrowing to only a few aspects of the remaining issues, which he then goes on to talk about: the budget and what the United Kingdom will have to pay as the divorce settlement; the rights of EU citizens; and the question of Ireland and Northern Ireland. Those are the same three issues that we have been looking at ever since the decision to leave the European Union was taken in June of last year. The idea that there has been a narrowing in these areas is interesting, but it is not yet clear what is really meant. In particular, in the context of the budget, we have heard frequently that the clock is ticking. However, while the clock is ticking, the value of sterling is falling—and every time sterling falls, the amount of money that the United Kingdom will owe in euros rises.
Instability in the Government is hugely damaging to the United Kingdom’s negotiations. What is the Prime Minister doing to ensure that her Government become more stable and secure and give a clearer sense to the 27 that they know what they are doing and that they have the same clarity of purpose as the 27? The Secretary of State suggested that it is important that both sides have confidence in the process and the shared outcome. However, the 27 have a clarity of purpose—we know what they are looking for—but do they know what the United Kingdom is looking for? It is not yet clear that they do.
The United Kingdom has been given two weeks to sort out our budget offer. What plans have Her Majesty’s Government put in place to ensure a solution so that, by December, progress can be made in phase 2? At present we have heard nothing at all from the Secretary of State. Is the Chancellor of the Exchequer in the loop? Is his input being asked for, or is the “flexible and constructive” approach that the Secretary of State is looking for required only of the Prime Minister, with the back-seat drivers of Gove and Johnson telling her what she should say or think?
As the noble Baroness, Lady Hayter, suggested, some thought is being given to putting 29 March 2019 in the Bill. Is that perhaps to do with the Brexiteers trying to pull the Prime Minister’s strings? Putting the date in the Bill is surely one of the worst things the Government could do. It would tie the Prime Minister’s hands and we should not support it.
In June, when we had the unnecessary general election that was supposed to be a Brexit election, the idea was that we would have a strong and stable Government leading the negotiations. How fanciful that now seems. Can the Minister assure us that the Prime Minister, the Secretary of State and the whole Cabinet are united in pushing, with one voice, for the best outcome for the United Kingdom? Do they have clarity of purpose? In getting the best deal for the United Kingdom, can they reassure in particular the citizens of Northern Ireland that the deal will be for the whole of the United Kingdom, and that our kingdom will remain united? It is not the European Commission that is jeopardising the integrity of the United Kingdom but Her Majesty’s Government’s unwillingness to have an agreement that will allow Ireland to remain without a closed border.
It is hugely important that the future relationship is clarified. That can be done only if Her Majesty’s Government have their own view of what that relationship should be. Can the Minister tell the House what the Government’s view is? Is there any clarity of purpose?
Finally, on citizens’ rights, many of us will welcome the idea that Her Majesty’s Government would like EU citizens to be able to vote in local elections. However, the Secretary of State points out that this is one of the rights of EU citizens that is enshrined in the treaties. Yes, it is—many of us passionately believe that we wanted to keep, still want to keep and do not want to throw away the rights of EU citizens. Does David Davis agree with us? Is he reluctant to see British citizens lose their citizenship rights? Would he prefer that the United Kingdom should remain part of the EU treaties? Have we made a huge mistake? Should we retain citizens’ rights by simply not leaving the European Union?
I thank the noble Baronesses, Lady Hayter and Lady Smith, for their questions. I will deal with them all in turn. Both noble Baronesses asked me about the amendment on the date, tabled in another place. The amendment was in response to amendments tabled by Members of the House of Commons—led by a Labour Member of Parliament, I think—saying that the Government should clarify the exact leaving date. That date was triggered also by the submission of the Article 50 notification letter—approved by both Houses—and will be two years from then. The noble Baroness, Lady Smith, is very keen to abide by EU treaties; as she well knows, the two-year date is set down in them, unless it is extended by the unanimous vote of the other 27 EU members. We are leaving the EU on 29 March 2019, implementing the result of the referendum that was also approved in both Houses.
We recognise the need for specific solutions to the unique circumstances of Northern Ireland and we have made good progress in the negotiations. We have proposed that the UK and EU seek to agree text for the withdrawal agreement that recognises the ongoing status of the common travel area and associated reciprocal arrangements. We have developed joint principles on this, and are drafting joint principles and commitments that will guide the solutions drawn up in the second phase. Both sides agree that the Good Friday agreement on citizenship rights must be upheld, and we are committed to working together on how that is best codified.
The noble Baroness, Lady Smith, asked me a number of questions. We have a good record: we have compromised in all the areas that the EU has thought to negotiate on. Now it is about time we saw some compromise from the EU side. We have compromised on both our budget offer and citizens’ rights. It would be nice to see some support from the parties opposite for the UK position. In terms of the budget, billions of pounds of taxpayers’ money are involved. Are the Opposition saying that we should just hand over a cheque and agree to whatever the European Commission demands? Of course we have to negotiate. The Prime Minister made a very generous offer in her Florence speech, involving considerable amounts of money. Now it is for the EU side to reciprocate with a budget offer of its own. We are very clear that, in all these areas, as set down in the EU negotiations, nothing is agreed until everything is agreed. These areas cannot all be sorted until there is a final agreement on the shape of the agreement and future customs arrangements, which will also help to enlighten our discussion on the border in Northern Ireland.
I thank my noble friend for the Statement. I welcome in particular what he said about the European Court of Justice. Can he clarify what exactly is meant in the Statement? He says that we will bring to an end the direct jurisdiction of the European Court of Justice but at the same time he says that our courts can take account of the rulings of the ECJ in this area to help to ensure consistent interpretation. Can he expand on that and explain how the Government think that will work? Secondly, can he say something about the timing of the withdrawal Bill: when does he expect it to be available to Parliament; when will the vote take place; and will that be closely linked to the vote on withdrawal, which I think is a separate matter?
On the issue of the ECJ, I do not want to go any further than the Statement. We will end the direct application of the European Court of Justice in the UK. That is entirely right—we would not expect a foreign court in any other country or organisation to have effect on UK citizens or the UK judicial process. We expect the debate and vote on the withdrawal Motion to take place before the withdrawal Bill—but of course we cannot have a withdrawal Bill until we have an agreement to withdraw from.
My Lords, I agree that the offer made by the Prime Minister in her Florence speech on the financial settlement was generous. Will the Minister confirm that any such settlement will be paid over a number of years, not as a capital sum, and must be contingent on satisfactory progress on other aspects of our future relationship?
My Lords, I very much welcome the Statement. Will my noble friend clarify one small point on one word, “implementation”? My understanding is that we will not be able to negotiate the new relationship with the EU under Article 50. Therefore, when it comes to implementing measures via the Bill, those measures would refer solely to the transition.
My Lords, at present, European citizens resident in this country have their basic rights protected by the European Court of Justice. The Government intend to take that basic right away and, as I understand it, substitute our own courts, with a rather vague and difficult to understand obligation relating to the Luxembourg court. Will the Government accept that in doing all that, they are making the rights of European citizens in this country less well protected than at present?
My Lords, no, I would not accept that. We have one of the finest judicial and court systems in the world. I, along with many other citizens, am perfectly happy for our rights to be guaranteed by our ancient and well-respected judicial system. We do not need to have the ECJ telling us how to do that.
My Lords, will the Minister clarify a point concerning the new primary legislation, which, if I understand correctly, will represent the entry into our domestic law of the commitments we reach on withdrawal? Would that have to be completed before the date the Government wish to put in for our exit? Otherwise, we would not be capable of ratifying the withdrawal agreement. Will he also clarify a point on the jurisdiction of the Court of Justice? Is he quite sure that what the Prime Minister wisely proposed in Florence for what was effectively close to a standstill for about two years will, in the eyes of our 27 negotiating partners, require us to accept the jurisdiction of the Court of Justice during that period?
My Lords, we cannot have a withdrawal Bill until we have a withdrawal agreement, so the date of the Bill will depend on when we can make a withdrawal agreement. As to the noble Lord’s second question, I cannot speak for what our partners expect us to want to do.
The Minister said we had given many concessions to the European Union. He is right, we have, but that is because we went into this ill-prepared and without a strategy. Listening him, it is very hard to be convinced that we have a strategy even now, because I cannot see how this process will lead to a successful outcome for the United Kingdom unless we are much clearer about money and the transition arrangements.
I think we have made excellent progress on all those issues so far in the negotiation. We have made very generous offers on the three issues the EU said it wanted to talk about first: Ireland, citizens’ rights and the budget. We are waiting for our partners to reciprocate with the generous proposal we have made.
My Lords, I ask my noble friend the Minister to comment on the ruling of the Supreme Court in this matter:
“The 2016 referendum is of great political significance. However, its legal significance is determined by what Parliament included in the statute authorising it, and that statute simply provided for the referendum to be held without specifying the consequences. The change in the law required to implement the referendum’s outcome must be made in the only way permitted by the UK constitution, namely by legislation”.
Does that not mean that, while we obviously wish the Government well in the negotiations, the final outcome will be judged by Parliament?
Of course, we have said that Parliament will get a final vote on the withdrawal agreement, and we have just announced that there will be legislation to implement that. Parliament also voted for Article 50 to be implemented and the EU notified that we are leaving the organisation on 29 March 2019.
My Lords, the Statement refers to the negotiations regarding the right to stand and vote in local elections. Given that European Union citizens can also stand and vote in Scottish Parliament elections, and the franchise for Scottish Parliament and Scottish local government elections is wholly devolved to the Scottish Parliament, can the Minister clarify the Government’s position with regard to standing and voting in the devolved elections and whether the Scottish Government have been involved in this particular part of the negotiations?
My Lords, further to what my noble friend said about fixing the date of withdrawal and to what the noble Lord, Lord Garel-Jones, said, can he confirm that the judgment of the Supreme Court in the case brought by Gina Miller confirms in precise terms that Article 50 is irreversible, in contrast to what the noble Lord, Lord Kerr, has said?
My Lords, does the Minister agree that the notice given in March this year in relation to Article 50 was not a notice of withdrawal but a notice of intention to withdraw? Does he appreciate that our distinguished colleague, the noble Lord, Lord Kerr, and the vast mass of distinguished legal authority are of the opinion, therefore, that such a notice can be withdrawn unilaterally? Will the Government, especially in the light of today’s Statement, no longer hide behind any artifice to try to delude the public into believing that they have no view on that matter? Will they come clean and state that they accept totally that that is the situation?
My Lords, no, I will not confirm that, because it has been stated by legal opinion on this side of the water and in the EU that Article 50 is not revocable. It all flies in the face of the results of the referendum. It is fine for Members of this House to say that we should just ignore the result, but 17.4 million people voted to leave the European Union in one of the largest democratic exercises that we have ever held. If we think that democracy is at a low ebb in this country, let us imagine what would happen if we ignored what happened in that referendum.
My Lords, my noble friend will of course acknowledge that 48% of people did not vote that way, but perhaps I may ask him one specific question. He has several times said today that good progress has been, or is being, made. If that is so, that is very good, but can he tell us one single thing on which there is now agreement?
My Lords, to the question asked earlier by the noble Lord, Lord Lamont, about the impact of leaving on our relationship with the European court—although the noble Lord could perhaps have altered his emphasis a little—the Statement says that we intend to bring an end to the “direct jurisdiction” of the European court. I presume that we will therefore have to find some way of having a court of arbitration which will mediate between the EU and the UK—incidentally, it will impact on the sovereignty and integrity of the British judicial system, because that is what courts of arbitration unavoidably do across a whole range of issues. Are the Government confident that they can square that circle, or do they think that taking ourselves out of the European Union and out of the European court, where we currently have a judge, will leave us stronger rather than weaker in our obedience to international law and our ability to negotiate it to our advantage? The US Commerce Secretary has suggested that when we leave the European Union, the Americans will simply expect us to accept US regulations without any say on a range of problems. Is that the sort of situation we will be in?
My Lords, of course, if our manufacturers export to the United States, they have to accept American legislation; if they export to China, they have to accept Chinese legislation. Once the agreement is made, there will have to be some form of arbitration, but that is to be negotiated.
My Lords, if we reach a successful accommodation, as we all must hope, in phase 1, we have to move phase 2—a negotiation of unparalleled complexity. The Prime Minister will have heard today a clamour from British and European business for clarity about what the endgame is, yet we understand that the Cabinet has yet to meet to discuss what it wants to achieve from this second-phase negotiation. When will the Cabinet meet, unite and decide?
My Lords, does my noble friend think that the behaviour of the EU negotiators and the rather arrogant attitude of people such as Michel Barnier and Jean-Claude Juncker have led to a feeling among the population who voted to remain in the EU that they should perhaps leave instead? My impression is, and most commentators seem to think, that the British population is moving much more towards a position of leave rather than of remain. Perhaps people in this House should accept the decision of the British people and not try to revisit it.
I would certainly agree with that, although I do not hold out hope that they might. Yes, of course, there has to be compromise on both sides. We have made very reasonable proposals, including moving on some very sensitive issues. We are waiting for a reciprocal response from the other side of the negotiations.
My Lords, the Minister offered to read out a list of points where agreement has been reached. For UK citizens living abroad and EU citizens living here, it would be immensely useful if he did so, because they have serious planning to do.
Rather than detain the House, I would be happy to write to the noble Baroness and publish the response. We have been very open about the areas on which we have reached agreement. They have been well publicised, but I will write to her with further details.
A number of proposals have been flying around and I am sure that the noble Lord would not expect me to comment on the basis of leaked documents, but we have been very clear about our objectives. Those objectives are shared by us, by the Irish Government and by the European Commission; we just need to find a practical and realistic way to bring that into effect.
My Lords, does my noble friend agree that CETA is not a “perfectly good starting point” for any trade agreement with the EU—to quote the words of the Secretary of State, David Davis? CETA has no chapter on services, which represent 80% of our GDP, and our trade with the EU is eight times larger than Canada’s. Surely we need to be much more ambitious in protecting the UK economy and jobs in any Brexit trade deal.
We have been very open that we do not want to copy any existing agreement. We want a bespoke, made-to-measure agreement that is suitable for both ourselves and the EU, because free trade benefits both sides. We think that an agreement is achievable. If both sides show commitment and willingness, we can work towards it and we should be able to achieve it.
My Lords, how many delegated powers, and indeed clauses, will now be removed from the existing withdrawal Bill to satisfy the indication given today that powers which should be in primary legislation will be in primary legislation under the Government’s revised approach?
My Lords, the Minister led with the discussions in Ireland. As the noble Lord, Lord Hylton, said, there was a paper floating around using a parallel with Hong Kong and Macau, as if we are some kind of colony. May I say to the Minister that I do not agree with his assessment that there is agreement between the UK Government and the Irish Government? The Irish Government are contradicting the position of the UK Government by saying that we need to remain in the single market and the customs union. Mr Verhofstadt, the European Parliament’s rapporteur, is saying the same thing. They are both wrong, and if that is where we are today, we have a lot of work to do. Will the Minister please confirm that our UK Government will make it absolutely clear that we will not allow an internal border to be created within the United Kingdom? If our time and effort, at this stage, is still being spent arguing about that fundamental point, we have a very long way to go.