House of Lords
Tuesday 24 July 2018
Prayers—read by the Lord Bishop of Leeds.
Oaths and Affirmations
Lord Bethell took the oath, following the by-election under Standing Order 10, and signed an undertaking to abide by the Code of Conduct.
HS2: Budget and Costs
My Lords, HS2 cost estimates and business cases are periodically updated as the scheme design is progressed to ensure that the scheme remains affordable and viable. HS2 Ltd is currently developing an updated phase 1 cost estimate, to be finalised prior to the completion of the phase 1 full business case accompanying the authorisation of notice to proceed in June 2019. The Government remain confident that the phase 1 cost estimate will remain within the SR15 funding envelope of £27.18 billion.
My Lords, I am grateful to the noble Baroness for that Answer. It is good that HS2 is regularly updating its budget, but it is a pity that no one knows about it. The last public budget given was in 2013, which is five years ago. Since then, we have had reports of the land purchase costs going £2 billion over budget and well behind, while a report in the Sunday Times last weekend by the consultant to the Infrastructure and Projects Authority using Treasury figures said that the project is up to 60% over budget and was in a “precarious” and “fundamentally flawed” position. Many other reports have also cited increased costs and delays. How can Ministers go on saying that they do not recognise the figures that are coming from all these different sources? Indeed, the Minister has almost repeated that today. Is it not time that we had a review of this project in costs and programme terms, because spending £100 billion with no budget for five years is surely not a good use of public money?
My Lords, I thank the noble Lord for his question, and I greatly respect his lifetime of experience in the rail industry. I am also grateful for the noble Lord’s continuing scrutiny of HS2. As I have said, we continually update the cost estimates, but we do not share the details of those estimates as they are commercially sensitive. However, the headline figures will inform the business case as published in 2019. I understand that the article in the Sunday Times was based on an end-of-role report from a few years ago, and of course we do not comment on leaked documents. HS2 does not recognise or agree with either the analysis or the figure it contains, while the Infrastructure and Projects Authority recently described the HS2 programme as on target to be completed on time and on budget.
My Lords, can I beg the Minister to do all she can to persuade the Government to abandon this insane vanity project? It is causing misery to thousands of people along the proposed route whose lives it is damaging. It is cutting great swathes through our environment, including damage to ancient woodlands up and down the country. All the billions it is costing would be much better spent on improving the whole of the railway network throughout England and Wales to the benefit of many people.
My Lords, what is needed is a step change in railway capacity, and HS2 will deliver this way beyond what would be delivered by improving existing lines. I am afraid to inform my noble friend that the Government are committed to delivering HS2. It remains on track, with strong cross-party support. The new railway line will bring huge economic benefits that will be felt across the country.
My Lords, I hope that the Minister will stand by HS2 as one of the great things that is happening in the country at the moment. In this dismal decade of Brexit and austerity, two of the shining lights that people will remember are the Olympic Games and HS2. One of the leading figures responsible for delivering both of them is Sir David Higgins, who will stand down as the chairman of HS2 Ltd at the end of this month. Will the Minister convey to Sir David the thanks of this House and the country for his brilliant work on our behalf in helping both to deliver the Olympic Games and to equip us with 21st century infrastructure? It is about time, after the intervening 20th century, that we started to mirror once again the great achievements of the Victorians.
My Lords, I pay tribute to the part that the noble Lord played in HS2. I will certainly pass on his good wishes to the outgoing chairman. This is one of the biggest infrastructure projects that our country has ever seen. Eventually, more than 100 million people are expected to use HS2 trains when the network is fully completed.
My Lords, Sir Terry Morgan is the new chair of HS2, following a very efficiently run spell at Crossrail. Could the Minister confirm whether Sir Terry’s remit includes a complete review and reassessment of existing HS2 plans in view of the doubts that are being expressed about the cost envelope?
My Lords, I am sure that the incoming chair will absolutely look at the details of the project very closely. As I said, HS2 is preparing a full business case, which will be the robust and comprehensive assessment of the scheme. That will inform the next phase of the project, when we assess whether it is correct to continue.
My Lords, would the Minister agree that there is a problem if you can get up north 20 minutes quicker but you cannot get anywhere once you get there, and that any business case will have to take on board massive infrastructure improvements in the north of England?
My Lords, in view of the escalating size of the HS2 costs and considering what we hope will be today’s publication of the new National Planning Policy Framework giving increased protection for ancient woodland, will the Minister commit to the minimal cost—peanuts, indeed—of the Whitmore tunnel, compared with the total scale of the project, to reduce by 60% the destruction of ancient woodland by HS2 phase 2a?
My Lords, in phase 1 we are creating nearly three times as much new woodland compared with the non-ancient woodland affected by HS2. Ancient woodland is, of course, irreplaceable. To compensate for that loss, we have committed to using best-practice measures such as enhancing linkages between woodlands, reusing the ancient woodland soils and creating new mixed deciduous woodland alongside the track.
My Lords, my noble friend has made a splendid debut in her job, but I wish that she did not have to defend the indefensible. Will she please consider the enormous cost of this cost envelope, tell the House how many jobs are being provided and spend the summer reflecting on the wisdom of this vast project?
My Lords, as I said, we are confident that phase 1 will be delivered within a funding envelope of just over £27 billion. During construction, HS2 will generate 25,000 jobs and 2,000 apprentices. It will also support growth in the wider economy, which will be worth an additional 100,000 jobs.
Domestic Abuse: Universal Credit Payments
My Lords, there are no implications on the provision of the default joint payment of universal credit to couples as a result of the domestic abuse strategy and consultation. We already provide split payments and additional support to victims of domestic abuse who request them. More broadly, the Government are currently considering stakeholder responses to the consultation on domestic abuse that closed on 31 May and will publish a response and a draft Bill later this Session.
My Lords, domestic violence, welfare rights and women’s organisations are all warning that default joint payments will undermine the new domestic abuse strategy—which rightly includes economic abuse. With all the money bundled together in UC, such payments increase the risk of economic abuse. Requiring a victim to request a split payment, as the Minister said, makes her vulnerable to retribution from a violent partner. Why are the Government not actively trying to find a way of meeting the widespread calls for default split payments?
My Lords, it is important to stress that most couples can and want to manage their finances jointly, without state intervention, so split payments should not be the default. When an individual suffering from domestic abuse and violence requests a split payment, we will support them in putting the arrangement in place—but split payments in universal credit cannot be the solution, the panacea, to what is a criminal act. They are provided to any individual who requests them as a result of domestic violence.
My Lords, to get split payments, the survivor of domestic abuse has to disclose the abuse to their work coach and provide written evidence from an official. They are eligible for split payments only when the abuse has already reached crisis point in very exceptional circumstances. Why cannot each partner nominate a bank account, enabling separate payments to be made as routine? I am sure that that is not beyond the wit of man or woman to design a better, safer and fairer system.
My Lords, as I have already said in a previous answer, most people do not want split payments. They want to be able to judge their household affairs together as one. Therefore, it is important that we and our staff work hard with Women’s Aid and ManKind to develop as much as we can our support and training facilities to help people who are subject to domestic violence. It is not necessarily the case that domestic violence has reached crisis point. We treat this carefully as a private matter. We make training for our work coaches in Jobcentres Plus a priority so that we can give the right support at the right time.
How will the department ensure that victims of domestic abuse who are in receipt of universal credit can meet their basic needs? I am thinking particularly of those who suffer such severe financial abuse that they struggle to meet their accommodation costs and provide for their children.
My Lords, we have a range of measures to ensure that a family’s basic needs are met, including housing benefit and universal credit housing support. Victims do not need a bank account to claim immediate advance payments from universal credit to cover immediate needs. Fast-track payments can be made into alternative accounts to avoid rent arrears. In addition, child maintenance fees are excepted and a parent can apply for child benefit to be paid direct to them. Work coaches may also signpost and refer domestic violence victims to organisations that can provide further support.
My Lords, I wonder whether the Minister has properly understood what Members of the House are saying to her today. The old system used to separate out payments for children, which were paid every two weeks to the main carer, and in-work benefits, which were paid directly into the bank account of the main earner. Universal credit has taken all these payments, and housing payment, and made them available only once a month, all into the bank account of one partner. What happens in practice if the relationship breaks down? The Government have been very good at recognising that financial and economic abuse are part of domestic abuse. It means that a person, often a woman, who is in that situation simply has no access to funds to protect herself and her children. Will the Government please listen? The Scottish Government consulted and decided to commit to going to split payments. Will the Government please think again?
My Lords, with regard to Scotland, the Scottish Government have discussed split payments with stakeholders and are now starting to think about developing their own policy. We will continue to watch and observe how that proceeds. But I have entirely understood what we are talking about today and I think it is really important to make clear that we want to simplify the system for everyone making claims under universal credit. It is important that we simplify the system. Noble Lords shake their heads, but we want to treat people in the normal way, whereby they have a joint approach, in most instances, to receipt of their income, to managing their household bills and to managing how they can cover their costs on a monthly basis—but with exceptions where people who are suffering abuse or any other kind of coercive action can ask for and will be given split payments as a matter of course.
My Lords, will the Minister please answer two questions? First, is this purely because of cost savings, in that it may be more costly to deliver split payments? Secondly, what about preventing abuse in the first place? If women have their own money, it quite frequently prevents abuse.
On the latter point, I have to say that the charity Refuge has made it clear that it is not convinced that split payments help. In fact, they can exacerbate violence if the perpetrator of violence knows that their partner has her own pot of money. We have to be extremely careful about this: each individual case is different. This is nothing to do with cost savings. The reality, I know, is that this is all about the legacy. Noble Lords opposite prefer the legacy—the complex, difficult system that the party opposite preferred, which kept people trapped on welfare. It was much more complicated. We are simplifying this through universal credit, which is delivering a much simpler to understand system to support people into work and support them to manage their household finances.
Brexit: Parliamentary Processes
To ask Her Majesty’s Government what assessment they made of the precedents for Parliament providing them with a mandate for international negotiations, including the effect of section 7 of the European Communities (Amendment) Act 1993 on the Maastricht Treaty negotiations, when deciding to oppose Lords Amendment 20 to the European Union (Withdrawal) Bill; and whether they consider any such precedents conclusive in supporting the view that Parliament mandating them in negotiations is not consistent with the constitutional role of Parliament in relation to the conduct of international relations.
My Lords, we are not aware of any precedent for Parliament mandating the Government in international negotiations conducted under the royal prerogative. The Government were not prepared to accept such a significant constitutional shift in the amendment the noble Lord referenced.
I thank the Minister for that reply, but on what basis do the Government claim the prerogative to decide unilaterally what the constitutional position on this is, as if they were the Vatican producing some doctrine covered by infallibility? Secondly, why are we able to pass amendments on the customs Bill, on the single market or, hypothetically, the European Economic Area, but not able to consider the trade-offs, the framework or the mandate? Albeit that we vote against, there could be a parliamentary position with the result that Parliament would be responsible for something. At the moment, Parliament is not responsible for anything coherent. It is irresponsible. Is that wise?
My Lords, it is apparent to all that the mantra of taking back control and parliamentary sovereignty has been a fig leaf for an executive power grab, as exemplified by the disrespectful publication, on the last day of Parliament, of the White Paper on implementation. I guess that, like last time, we will be lucky to see it before the Statement. Will the Government, even at this late stage, change the habits of a lifetime and emulate the arrangements in the European Parliament, which has full involvement and information on the Brexit negotiations?
We will discuss the White Paper later, and the noble Baroness will have a chance to ask further questions on it then. The Executive are accountable to Parliament. DExEU Ministers have given evidence to a broad range of committees on a total of 37 occasions, we have made 108 Written Statements in both Houses, and I think we spent about eight hours last night discussing the very issues that the noble Baroness refers to.
My Lords, it is perhaps fitting that John Major’s papers are released today. They show how he had to take on, and indeed vanquish, the Eurosceptic Rees-Mogg—that is, Rees-Mogg the elder. Can we hope that today’s Prime Minister will show the same courage with Rees-Mogg the younger, and can the Minister take seriously the need for the Government to find a negotiating mandate as to how we exit that would find favour not just within the governing party but within Parliament?
As we have said, Parliament will get a vote on the deal. We will discuss the legislation to implement that deal later, and there will be a parliamentary vote on the issue. We hope that it will find favour with Parliament, and no doubt we will extensively debate the legislation to implement it.
It is bizarre in this day and age that we hide behind the medieval doctrine of Crown prerogative in relation to treaties. In relation to future trade treaties in particular, does the Minister not accept that for the past 40 years we have had effective scrutiny by a Parliament, the European Parliament, in mandates, negotiation and outcome? We are therefore going backwards in parliamentary scrutiny terms if free trade agreements with the EU or anything else do not follow the same pattern. Of course, free trade agreements have the same pattern in the United States Congress. Will the Minister at least concede that we need a proper trade treaty scrutiny committee post Brexit?
Scrutiny committees are not a matter for the Government; they are a matter for Parliament. I think the noble Lord will find that the European Parliament gets similar arrangements. The Commission negotiates trade deals that the European Parliament votes to accept or reject, and the position will be the same for this Parliament.
My Lords, it was quite clear from the Minister’s wind-up remarks last night that the Government are still at a very early stage in negotiating the future relationship. How will it be possible to have a meaningful vote before March 2019 if all that we have is an agreement about the principles of withdrawal and the sketchiest of ideas about the nature of the future relationship in the many different and complex areas discussed in the debate yesterday?
My Lords, following the question from the noble Lord, Lord Foulkes, does the Minister not realise that, if there is no option in a parliamentary vote and a vote of the people to remain in the European Union after all that has happened and all the Government’s mistakes, there will be total uproar in this country?
I think there would be total uproar in this country if we did not implement the referendum vote. I am slightly confused about why this call for a second referendum is now being labelled a people’s vote, as if somehow the people did not get to vote in the first referendum.
Pensions: Online Dashboard
My Lords, with automatic enrolment we are delivering a complete change in the UK’s savings culture. We are currently exploring the many complex issues associated with developing a pensions dashboard. Our feasibility work is nearing completion and we will report to Parliament in due course. The Government are committed to ensuring that people are supported to plan ahead for retirement, including with automatic enrolment, existing digital services and a new single financial guidance body, launching in January next year.
My Lords, I thank the Minister for that reply. At a time when 9 million new workplace savers are being auto-enrolled and the average worker changes jobs 11 times during their working life, there is clearly a compelling public policy argument for having mechanisms to track pension pots, including the state pension, throughout life. The DWP has estimated that 50 million pension pots, with some £3 billion in savings, would be lost without a dashboard. Already one in five adults admits to having lost a pension pot.
There is widespread support for the concept of the dashboard, although there are different propositions. We believe that the Government are right to give ownership to the DWP, as a government lead is essential. Does the Minister agree that lessons from overseas show that the best way of providing a comprehensive service is to make participation compulsory? That requires legislation. Given all the work the DWP has done, why are we considering changing tack now? What can we glean when Parliament is not sitting which we cannot not glean when it is? Is there not an issue of capacity, with the universal credit debacle overwhelming the department?
My Lords, let me first say that the figure of 50 million referred to is an estimate made in 2012 of the number of dormant, not lost, pension pots by 2050. To suggest that 50 million pension pots will be lost unless a pensions dashboard is introduced is wholly inaccurate: I want to make that very clear. We are looking through the whole process and at experience overseas in order to understand more about pensions dashboards. The noble Lord knows that the whole process is very complex. We are working through the options around scheme participation in any potential pensions dashboard. The decision whether to compel participation depends on a number of issues, such as the functionality, delivery model and governance of the dashboard. We will set out the Government’s view in due course.
My Lords, can the Minister address this feet-dragging? George Osborne announced that this project would go ahead in 2016, it was meant to be up and running next year, and Guy Opperman, in his role, constantly says that he is actively supporting it. The industry is—to put it mildly—cross, having done all the work it needs to contribute towards creating a pensions dashboard. It is vital so that savers can make the best investments of their pension money, and it is key to fraud prevention. Both of those are crucial issues. Can the Minister confirm that the rumours that the scheme is in jeopardy are false, and can she please finally give us a timetable?
My Lords, the noble Baroness will know that we are talking about something quite complex. As we look at it, the more we explore and the more questions we ask ourselves and the industry. My honourable friend in another place was right to talk about what was set out in 2016. We want to be careful to ensure that we cover all the challenging issues associated with the dashboard, not least questions of governance, funding, what role the Government might have and whether legislation is necessary. The department has been working closely with stakeholders across the pensions and financial services industry, the regulators, consumer bodies and others, as part of this feasibility study.
My Lords, I welcome the potential of the pensions dashboard and I thank the Minister for her answers so far. It does not sound as if the whole project has been parked, but can my noble friend comment on the accuracy of pensions data and whether the problems of errors in pension recording have led to some concerns about a dashboard containing past pension records? Can she perhaps reassure the House that, at the very least, all auto-enrolment pension records could be put on to a dashboard funded by the industry—not by government but facilitated by her department?
First, I congratulate my noble friend on being appointed as the chair of pensionsync. I noticed that the question she has just asked was on her blog this week, suggesting that it is perhaps due to errors. I entirely refute that suggestion. The reality is that we already have, as my noble friend well knows, the online Pension Tracing Service to help people more easily locate their pension savings. We have also established the “Check Your State Pension” service, which has provided more than 9 million estimates since its introduction in 2016. We also have the development of a single financial guidance body. This department is doing a huge amount towards a revolution in the way that we support people to save in their retirement. Auto-enrolment, to which nearly 10 million people have actually signed up in the last six years, is an example of where we are working with this quiet revolution.
My Lords, the Minister will be aware that war pensions were included in the figure of 2% of GDP that is spent on defence. It is therefore a false figure. Can she assure us that this will be looked at within the ongoing modernising defence programme so that we actually have a realistic amount of money for defence to support the Armed Forces, not least to have some more ships so that when we are all away on holiday on the oceans, we see some grey funnel line around rather than anything else?
I have a personal interest. That said, I must be clear with the noble Lord that there has been growth in the budget for the Navy, which is ongoing, and for the Armed Forces overall. His point about war pensions is an important one and if I can enlighten him any further, I will certainly attempt to do so in writing. We are doing all we can at the Department for Work and Pensions to support the lives of those in our Armed Forces in every way that they impact upon our department. That is for both those who are serving and those who have served this country well.
Broadband: Full-fibre Coverage
Private Notice Question
My Lords, the Government have set out a package of measures in the future telecoms infrastructure review to meet their ambition for national full-fibre coverage by 2033. This seeks to create conditions that will support commercial investment by reducing costs through barrier busting, and create a stable regulatory environment. Additional funding will be required to make sure that all parts of the country are able to enjoy the benefits of world-class connectivity. This will be agreed as part of the forthcoming spending review.
My Lords, as the Minister knows, those of us on these Benches and the adjacent Benches who worked on the Digital Economy Act spent a lot of time putting forward amendments to bring forward a full-fibre network. We should therefore welcome the Government’s conversion to this cause and their realisation that 4% coverage is a national shame. However, to get 100% coverage in 15 years will cost many billions of pounds. Please remember that if the money is coming from commercial sources, in the end it will be the consumer who pays and reimburses those commercial concerns. Clearly the Government must have a funding plan, otherwise these promises would merely be shallow. Will the Minister tell the House what the funding plan is—how much, and who pays?
My Lords, I am glad that the noble Lord welcomes this ambitious target, because he has been one of the people who have been very critical of where we are at the moment. He is absolutely right that it will cost money. This is an ambitious target to get from where we are now, which is 4%, to nationwide coverage by 2033. We think we will get to about 50% by 2025. It is estimated that it will cost about £30 billion. We estimate that the Government will have to contribute with top-up money to the hardest-to-reach areas in the region of £3 billion to £5 billion.
Last Thursday, my noble friend Lord Stevenson of Balmacara asked the Minister’s colleague, the noble Viscount, Lord Younger of Leckie, whether he was backing the Chancellor of the Exchequer’s call to switch off every copper phone line in the UK to force telecoms firms to improve their rural broadband speeds. The noble Viscount, Lord Younger, said that he had not heard about it, but I am sure the Minister at the Dispatch Box today has had time to consider the Chancellor’s words. Does he back the Chancellor’s call to switch off every copper phone line in the UK?
I think what the Chancellor was referring to was an ambition that in due course—we are saying by 2033—there will be nationwide coverage of fibre to the premises, which I think everyone understands is superior in every way to copper wire. Therefore, if we have nationwide coverage of fibre to the premises, we will not need copper wires.
My Lords, where I live in London I have superfast broadband, something like 70 megabits a second. That is fibre to the green box in the street and old copper wire to my premises. Is that not totally adequate for nearly everybody? Would it not be a huge waste of money and very disruptive to do the last bit in fibre?
I think that it will be sensible by 2033 because there will be a long-term investment by the market in what is the technology of choice. My noble friend is fortunate to live near enough to the cabinet that he gets that sort of speed from his copper wire. Basically, the further you are from the cabinet, the worse the speed gets. I notice he did not say what speed he gets at his other home in the Isle of Wight, which I believe is slightly slower than that.
My Lords, the noble Lord makes a familiar and very valid point. The £3 billion to £5 billion that I mentioned to the noble Lord, Lord Fox, will be on the basis of outside in. We want to make sure that the areas that are hardest to reach will be the ones to receive the government money. It is largely a question of competition. In cities and urban areas, there is more competition and the market is better able to supply the required infrastructure, but in rural areas we understand that that is not the case and therefore we are absolutely cognisant of the point he made.
My Lords, some years ago, I bought a house in a remote rural part of the country. It had no supply of electricity, nor of water. I knew that when I bought it; that was the advantage of it, it was in a rural area. We cannot just say that wherever you live you get every one of the facilities as though you were living in an urban area.
Where I live, in a reasonably rural area, water was not laid on to houses until relatively recently. I think most people today think that running water in your home is a requirement. I take my noble friend’s point. He may not want superfast, let alone ultrafast broadband, but more and more people do, and it is important for the economy. More people need it, so, gradually—as we said, by 2033—it will be available. Of course, he does not have to use it or sign up for it and therefore will not have to pay for it.
My Lords, further to that question, what does the Minister have to say to people in my former constituency—in, for example, the Ettrick and Yarrow valleys—who, far from waiting for fibre broadband cannot even get email services at present? Surely the Government should be concentrating on that as well as the future.
Many people in the noble Lord’s party have castigated us for lack of ambition. On the one hand, we absolutely understand that they should be able to get superfast broadband, but we are also ensuring that the universal service obligation, which comes in in 2020, will give them a legal right to a minimum speed which will allow them to have email and watch TV at 10 megabits per second. Our ambition, which we are talking about today, is to go much beyond that, as it is an accepted rule that most people require more capacity as time goes on—there will be the internet of things and many other examples of why we need more capacity. I take his point and we are addressing it in the universal service obligation.
My Lords, I am grateful for the ambitious targets that Her Majesty’s Government are setting. I am concerned, however, because the commitment to get universal coverage for full fibre does not seem to fit with the statement on page 8 of the review:
“In areas where it may not be cost effective to get fibre all the way to the home, even with additional funding, other technologies … can also deliver gigabit connectivity. Bidders will be encouraged to explore innovative solutions”.
How does that fit with Her Majesty’s Government’s commitment?
I think, if the right reverend Prelate looks at Hansard, he will not find that I use the word “universal”. In terms of full fibre to the premises, we said that we would have nationwide coverage by 2033. As he suggested, the hardest to reach areas will not be able to get full fibre by 2033. When full fibre is established nationwide, other technologies, such as satellite, will have much more capability, so the hardest to reach places will be able to use alternative technologies. The universal service obligation will still apply and will be uprated in time. We did not say that every premises in the entire United Kingdom will be able to get full fibre by 2033.
My Lords, I fear that the Minister may have misunderstood what the Chancellor said in the other place last week. The Chancellor is widely reported as having been overheard by journalists as saying that he was considering fixing a switch-off date for copper wiring to incentivise broadband installation across the country, not what the Minister has reported to the House, which is that when it is all done, a switch-off date will be fixed. The Chancellor said that quite clearly, and it was supported subsequently by a spokesman from the Treasury, who confirmed that the Treasury was looking at options, including setting a switch-off date to incentivise the installation of broadband. That is what my noble friend was asking the Minister whether he agreed with, not what he understood that the Chancellor had said.
Of course I agree with everything the Chancellor says—unless he is contradictory, of course. I take the noble Lord’s point about the switchover. Ofcom will have an important oversight role in protecting consumer interests. The switchover could be under way in the majority of the country by 2030, but the timing will ultimately be dependent on the pace of fibre rollout and on the subsequent take-up of fibre products.
Standing Orders (Public Business)
Motion to Approve
That the standing orders relating to public business be amended as follows:
After Standing Order 70, insert new Standing Order 70A:
“70A Laying of documents under Schedule 7 to the European Union (Withdrawal) Act 2018
Where, under paragraphs 3(3) and 17(3) of Schedule 7 to the European Union (Withdrawal) Act 2018, any document is to be laid before Parliament, the deposit of a copy of the document with the Clerk of the Parliaments in accordance with this Order at any time during the existence of a Parliament when the House is not sitting for public business shall constitute the laying of it before the House.”
My Lords, on 11 July the House agreed to the fifth report from the Procedure Committee and, in doing so, agreed to new procedure for sifting arrangements for certain instruments laid under the European Union (Withdrawal) Act 2018. The report proposed a consequential amendment to the public business Standing Orders, and today’s Motion simply makes those necessary changes. I am aware that concern has been expressed to me, on and before 11 July, about the possible negative instruments which may be laid during the Recess. I refer noble Lords to the withdrawal Act, which makes it clear in specifying the scrutiny period that that means 10 sitting days from the first day back. I hope that that reassures noble Lords. I beg to move.
My Lords, I am not clear about this, and I am always slightly suspicious of things that happen on the last day before the summer. Why is the change in Standing Orders needed at all? Why is it needed now? How have we managed in the past, or is it just something that has emerged as a consequence of the European Union (Withdrawal) Bill? Can the Senior Deputy Speaker tell us, if such a change in Standing Orders is imperative now, how will Members of the House be informed that an order has been laid with the Clerk of the Parliaments? If it has no consequence for us, why does it matter at all? I do not think that the explanation satisfies me of the case for this to happen.
I thank the noble Lord for his question. First, this refers to the EU withdrawal Bill, so we need procedures appropriate to that. A new class of instrument is also being introduced, and we are applying the existing procedure to the new class of instrument. It will very much affect the Secondary Legislation Scrutiny Committee. In anticipation of the workload with increasing numbers of SIs, that committee has taken on two additional committee advisers, and another committee assistant, meaning that it is now supported by a clerk, four advisers and two committee assistants.
There will be a parallel committee established in the House of Commons, which it never had before, and which will be referred to as the European Statutory Instruments Committee. That will be sifting along with the House of Lords committee, and it is anticipated that there will be engagement with both committees to ensure the smoothest approach. It is a new procedure as a result of the EU withdrawal Bill.
If the noble Lord is looking for more reassurance, the debate on 11 July was quite clear on these issues, and I refer him back to that. If he still has problems, he can knock on my door and I will be happy to have a chat.
My Lords, I am grateful to the Minister and the Senior Deputy Speaker on this. He will recall that, when this was discussed in the Procedure Committee, assurances were sought and received. Will he discuss one point with the Government? One of the issues we raised was that, when instruments are laid during recess, they should be easily accessible to all noble Lords and to the public. I was given that assurance by the Chief Whip, which was helpful. We agree with this and it is important that, if they are laid during recess, we have that additional time to scrutinise them before the sitting days. It has become evident that, rather than all of them being available on the website for the Department for Exiting the European Union as we anticipated, they are being published on different department websites. Could he ask if they could also be published on the central website of the Department for Exiting the European Union, so there is no confusion for anybody and everyone can access them by looking at one website and not every different department’s?
I anticipated the answer to the question, but the noble Baroness is ahead of me on that issue. It will be published by the departments on their websites. She makes a good suggestion about it being on the central website. I have already heard whispers that the Government will look at that issue.
I am grateful and think it is right that we have increased the clerk capacity to help manage this process, but my understanding from earlier discussions—and perhaps I have just missed something—is that we were going to establish a further committee with additional members on it, so that the process would work for Members and speed up, or at least ensure it is given fuller consideration.
The noble Lord is correct there was talk about establishing a sub-committee. The committee has an additional member on it at the moment, but the decision about when it will form sub-committees is for the committee itself. It depends on the number and volume of the instruments laid. When it gets to that critical mass, the committee will divide into sub-committees.
Registration of Marriage Bill [HL]
A privilege amendment was made. Bill passed and sent to the Commons.
Assaults on Emergency Workers (Offences) Bill
Parental Bereavement (Leave and Pay) Bill
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Parental Bereavement (Leave and Pay) Bill, has consented to place her interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
My Lords, I thank the noble Lord, Lord Knight, for taking through this very important piece of legislation, which provides at the very least two weeks of guaranteed time away from work for those employees who have suffered the tragedy of losing a child before that child has had the opportunity to reach adulthood.
I am grateful to the noble Lord for ensuring the rapid progress of this Bill through this House. I am conscious that, in doing so, the Bill has overtaken the progress of the Government’s response to the recent consultation, which will now be published after the Bill completes its passage through Parliament. I had hoped to be able to set out in detail the response to the government consultation. However, important work is still ongoing with this. We have had a very welcome, large and detailed number of responses to the consultation —some 1,448 in total. I was pleased to see that high level of engagement on such an issue. We need to make sure that we get this right. If taking a little extra time is what is needed to achieve this, that is the right thing to do.
However, I assure the House that, once the Bill receives Royal Assent, we will work to bring forward the necessary regulations as soon as possible with a view to laying them before the House as early as possible in 2019. That would also keep us on course for our ambition for the new right to come into force in April 2020. I hope that that commitment today will reassure the House that the Government remain committed to delivering on this manifesto commitment.
I am most grateful to the Minister for that update and for his assistance and that of his officials, led by the assiduous Shelley Torey. I thank other noble Lords for their assistance and the MPs in the other place—and, finally, to Lucy Herd for her inspiration and assiduous campaigning ever since her son Jack died eight years ago.
Home Education (Duty of Local Authorities) Bill [HL]
A privilege amendment was made. Bill passed and sent to the Commons.
European Union (Definition of Treaties) (Partnership and Cooperation Agreement) (Turkmenistan) Order 2017
European Union (Definition of Treaties) (Enhanced Partnership and Cooperation Agreement) (Kazakhstan) Order 2017
European Union (Definition of Treaties) (Comprehensive and Enhanced Partnership Agreement) (Armenia) Order 2018
European Union (Definition of Treaties) (Association Agreement) (Central America) Order 2018
European Union (Definition of Treaties) (Political Dialogue and Cooperation Agreement) (Cuba) Order 2018
European Union (Definition of Treaties) (Framework Agreement) (Australia) Order 2018
European Union (Definition of Treaties) (Partnership Agreement on Relations and Cooperation) (New Zealand) Order 2018
European Union (Definition of Treaties) (Strategic Partnership Agreement) (Canada) Order 2018
Motions to Approve
Occupational Pension Schemes (Master Trusts) Regulations 2018
Motion to Approve
Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018
Motion to Approve
Financial Services and Markets Act 2000 (Ring-fenced Bodies and Core Activities) (Amendment) Order 2018
Motion to Approve
Rendition of UK Citizens
My Lords, with the leave of the House, I shall repeat in the form of a Statement the Answer to an Urgent Question in another place. The Statement is as follows:
“The Government take their responsibility to protect the public seriously. We have been consistently clear, where there is evidence that crimes have been committed, that foreign fighters, for example, should be brought to justice in accordance with due legal process, regardless of their nationality. The specific process followed will always be dependent on the individual circumstances of the case.
The case of Alexanda Kotey and El Shafee Elsheikh is ongoing and obviously sensitive. In handling this case, the Government have complied with the ECHR and due process, and we must be mindful to protect the integrity of the criminal investigation. In this instance, and after carefully considered advice, the Government took the rare decision not to require assurances in this case, and it would be inappropriate to comment further on that specific case. Foreign fighters detained in Syria could be released from detention without facing justice. We have been working closely with international partners to ensure that they face justice for any crimes they have committed.
There is little further detail I am able to provide to the House beyond what the Government have already outlined in previous Statements. However, I can reassure the House that our long-standing position on the use of the death penalty has not changed. The UK has a long-standing policy of opposing the death penalty as a matter of principle regardless of nationality, and we act compatibly with the ECHR. In accordance with the Government’s Overseas Security and Justice Assistance Guidance, we have taken into account human rights considerations. The OSJA provides that where there are strong reasons not to seek death penalty assurances,
“Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance”.
On the issue of Guantanamo Bay, again our position has not changed. The UK Government’s long-standing position is that the detention facility at Guantanamo Bay should close. Where we share evidence with the US, it must be for the express purpose of progressing a criminal prosecution, and we have made that clear to the United States. We have planned and prepared for the risk posed by British nationals returning to the UK as Daesh is defeated in Iraq and Syria, and we are using a range of tools to disrupt and diminish that threat in order to keep the public safe. Each case is considered individually to determine which action or power is most appropriate.
I cannot say more about individual cases in this circumstance. However, the Government have set out the extent to which these tools have been used in our annual transparency report. We will also be introducing new offences in the Counter-Terrorism and Border Security Bill, which is being debated by parliamentary colleagues and which will strengthen our terrorism legislation to increase our ability to prosecute returning foreign fighters in future”.
My Lords, that concludes the Statement.
I thank the Minister for repeating the Answer to the Urgent Question.
Last Friday, the Minister wrote to me, on behalf of the Government, on the Crime (Overseas Production Orders) Bill, and said:
“With regards to death penalty implications, it is the long-standing policy of the UK to oppose the death penalty as a matter of principle. We will ensure that the operation of any agreement, including with the United States, is consistent with this position”.
Why, then, are we accepting a request by the United States to share evidence on the two individuals in question under mutual legal assistance, on the basis—to quote the Home Secretary’s letter of 22 June to the US Attorney-General—that,
“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought”?
Contrary to the content of the Answer to the Urgent Question, why did the Government not come to Parliament a month ago to disclose this complete change of approach and any reasons for it on a matter of basic human rights norms, however heinous the alleged crimes—a change of approach which is also contrary to the Minister’s letter to me of just four days ago?
My Lords, I reiterate that we oppose the death penalty in all circumstances. The Crime (Overseas Production Orders) Bill is about outgoing requests. It gives UK law enforcement authorities the power to request electronic data stored abroad where an international arrangement exists for use in UK investigations and court cases. We will ensure that any future international agreement is consistent with our long-standing policy of opposing the death penalty.
Perhaps I may also comment on the change of approach. We have not changed our approach. I refer noble Lords to the Overseas Security and Justice Assistance Guidance, which incidentally is long-standing. Part a) says:
“Written assurances should be sought before agreeing to the provision of assistance that anyone found guilty would not face the death penalty”.
Part b) reads:
“Where no assurances are forthcoming or where there are strong reasons not to seek assurances, the case should automatically be deemed ‘High Risk’ and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance”.
My Lords, we are told that the UK did not want to try these people in the UK because we were concerned that we did not have enough evidence. Clearly, the Americans also thought that they did not have enough evidence—otherwise, why would they seek assistance from us? If UK and US pooled intelligence is sufficient to convict the accused, the Home Secretary could have avoided this political and moral dilemma by asking the US for its intelligence and agreeing to try the accused in the UK. Why did he not do so? Did the Home Secretary and the Prime Minister decide that the death penalty should be an option?
My party’s position is clear: we oppose the death penalty in all circumstances in accordance with the European Convention on Human Rights Article 2 and Protocol 13, to which the UK is a signatory. We take a principled position on this issue. Can the Minister please clarify the Government’s position?
My Lords, does my noble friend agree that, whatever position one might take on capital punishment, the good people of the United Kingdom will be bemused by the sensibilities being shown at the moment? Any obstruction put in the way of the prosecution of these murdering terrorists by the British Government would not be understood.
My Lords, hard cases never make good law, however horrific these allegations are. Despite what the Minister has said, has not the principle of not sending anyone abroad to face trial where there is a possibility of a death sentence been abandoned? How will the Government deal with the cases of other British citizens who face the death penalty? How will they ever again be able to make representations on their behalf?
My Lords, I declare my interest as co-chair of the All-Party Parliamentary Group on the Abolition of the Death Penalty. As the noble Baroness will know, the APPG has for years worked for abolition, alongside the Government, and has been proud of the Government’s commitment to seeing the end of the death penalty everywhere. Death penalty campaigners from all over the world express gratitude to the UK and are grateful for what it does to assist them in the countries in which they work. This development will be a huge blow to the death penalty abolition movement, and will be widely publicised. Is it possible that there will be some statement or reassurance or explanation—preferably an explanation—as to why this case is so different that it requires the Government to overturn a policy that has been maintained for so many years?
My Lords, eight days ago, the Human Rights and Democracy report from the Foreign and Commonwealth Office said:
“It is the long-standing policy of the UK to oppose the death penalty in all circumstances as a matter of principle”.
When agreeing to send people abroad to stand trial in a country where the Government have not given a categorical assurance that the death penalty will not be used, how can that principle be upheld?
My Lords, I want to be clear on this. Is the noble Baroness saying that Her Majesty’s Government may or will provide evidence or information to the prosecuting authorities in a case that could lead to the death penalty? If I have understood that correctly, is she not dancing on the head of a pin when she says that we oppose the use of the death penalty in all circumstances, because this is a circumstance in which the death penalty could occur as a result of the direct actions of Her Majesty’s Government?
My Lords, I absolutely refute the implication that the Government would provide information that would lead directly to someone facing the death penalty. As I have outlined, the guidance is very clear about not seeking assurances, as opposed to sending somebody to face the death penalty in certain circumstances. The Government are quite clear that justice needs to be served.
My Lords, can the Minister shed further light on reports in today’s Telegraph that death penalty assurances were also waived in a case under David Cameron’s Government? How does that fit with the assertion that the UK still has a policy of opposition to the death penalty? She said there were strong reasons for waiving the seeking of assurances in this new case. Will she undertake to publish the assessment carried out under the policy on overseas security and justice assistance that approved the Home Secretary’s position, so that we can try to probe whether this is just angels dancing on pinheads and whether the UK has any policy whatever on this?
I assure the noble Baroness that a very similar question was asked in the other place, and the Security Minister has committed to write out on matters of precedent, as she has asked. The guidance is long-standing, having been in place for eight years.
Non-Domestic Rating (Nursery Grounds) Bill
My Lords, I am grateful to noble Lords who have given up their time to discuss this Bill. I am looking forward to hearing the considered and expert views of the House. These views are always welcome as we work together to ensure that our laws are both fair and robust.
This Government are committed to supporting sustainable growth in the rural economy. Through the 2014-20 rural development programme, we are investing almost half a billion pounds in England’s rural businesses. Our support for rural enterprises includes developing farm and horticultural companies and the Government are also set to continue to commit £3 billion in funds for farm support until the end of this Parliament.
Earlier this year, the Government also launched a wide-ranging consultation on the future of farming. This Bill is an important part of our continued support for the horticultural sector in England and Wales. The agricultural exemption from business rates plays an important role in supporting agricultural productivity. This measure will support our ambitions for a more dynamic and self-reliant agricultural industry.
This Bill received cross-party support in the Commons, where it passed quickly without amendment. We want swiftly to amend the law to ensure that those ratepayers affected will not have to pay business rates. The Bill will deliver on our commitment to support the rural economy and promote this country’s rural life.
Noble Lords may be aware that, for almost 100 years, plant nursery grounds have been treated as exempt from business rates as part of the general exemption for agriculture. This practice was widely understood and accepted by the Valuation Office Agency and rating surveyors. However, in 2015 the Court of Appeal decided in Tunnel Tech v Reeves that the exemption did not apply to plant nurseries in buildings which were not occupied together with agricultural land and used solely in connection with agricultural operations on that or other agricultural land. Only at the end of 2015 was it clear that there was to be no appeal on that decision to the Supreme Court.
This did not reflect the Government’s policy nor the widespread belief among the sector. The consequence of the 2015 judgment has brought unwelcome change and uncertainty for business rate payers in the horticultural industry. It was therefore understandable that following the judgment the industry expressed concerns about the consequences that the potential imposition of business rates might have on nursery growers, and the Government have listened. We understand that to date only a small handful of nurseries have been affected by the court ruling, but there is the potential that many more would be affected if the Government did not act.
The Government made clear that they would take action. In March 2017, we set out in a Written Ministerial Statement our intention to legislate and, subject to the passage of this Bill, enable the Valuation Office Agency to return to its former practice of exempting all plant nurseries from business rates. A further Written Ministerial Statement was made in 2018 restating the Government’s commitment to legislate and for the first time confirming that the measure would have retrospective effect from 1 April 2015 in England and from 1 April 2017 in Wales.
This Bill will preserve a long-standing policy and ensure that plant nurseries solely consisting of buildings will once again benefit from the exemption of business rates for agricultural land and buildings. It will enable the Valuation Office Agency to return to its former practice of exempting plant nurseries and removing those few plant nurseries which have been assessed from the business rates list. Those plant nurseries that have been paying business rates since the 2015 decision on the basis of the Tunnel Tech decision will be eligible for a backdated refund of their business rates.
While the Bill will restore the former practice of exempting plant nurseries in buildings, I make it clear that it will not otherwise disturb the existing boundary of the agricultural exemption. Uses beyond agricultural operations, such as garden centres, will rightly continue to be subject to business rates. The Bill will also provide support and certainty to plant growers in England and Wales who would have otherwise been brought into the rating system on the basis of the Tunnel Tech decision. It ensures that these viable businesses do not become subject to a tax which could have an impact on the cost of farming and produce.
We have been able to bring forward this measure quickly and without amendment because of the support and advice—which I acknowledge—we received from the National Farmers’ Union in England and the Farmers’ Union of Wales. Their expertise has been invaluable and we are grateful for their assistance.
This Bill is about fairness for business rate payers in the agricultural sector and I commend it to the House. I beg to move.
My Lords, it is a great privilege to follow the Minister and, as it were, to open the batting order of discussion on this important Bill. Before going any further, I declare a number of interests as a landowner but not a grower, a property valuer, a one-time employee of the then Inland Revenue Valuation Office and a vice-president of the Local Government Association. That said, I welcome this Bill, which quite properly remedies the outcome of the decision in Tunnel Tech Ltd v Reeves (Valuation Officer) and I applaud the Government on finding a slot to bring this forward in times of considerable legislative congestion.
The pivotal point here is that the decision meant that the operation of Tunnel Tech would have been regarded as some sort of industrial enterprise rather than in the nature of agriculture or a horticultural nursery ground. However, the effect of rating buildings being used as nursery grounds but without other land would have put the company in very considerable contrast and at a disadvantage to an identical building occupied by, say, a market garden or a conventional farm. I am glad that the effects of this decision were not much more widespread than has in fact been the case.
I have to admit to being slightly astounded by the process whereby a court today has been asked to overturn the practice and understandings which have prevailed since 1928. I understand of course that changes in the methods of husbandry have to be taken into account, but I see this as an example of an overly literal interpretation of the present being applied to the legislation of yesteryear. This, coupled with the adversarial arts of legal practice, highlights the dangers of taking a position-based approach as against the broader consideration of intentions and public policy.
I believe that it was not Tunnel Tech which sought to have the additional burden of a business rates assessment placed on it, but the interpretation of the Valuation Office Agency, no doubt backed by the advice of the Treasury Solicitor. Much time and treasure have been expended on taking this case to the Court of Appeal and then further resource expended on the parliamentary processes necessary to reverse what I believe would have been a highly damaging outcome for an important sector of an ostensibly agricultural type of activity. At any moment the department or the Valuation Office Agency could have desisted. Can the Minister inform us as to why that did not happen?
While I welcome the Bill, I further ask the Minister to ensure, along with his departmental colleagues, that before his or any other department or agency embarks on a process of forensically dissecting bits of legislation, all concerned with agriculture and business more widely, they should make a special effort to avoid upsetting generations of established practice unless there is a very good public interest reason to do so.
In recent times, the Valuation Office Agency has been criticised about many things, not least by me in this House. In this instance, the criticism might be that it allowed the administrative role of being the government valuer to merge with and become some sort of proxy for HMRC’s role as the taxman. This of course skews the fair and consistent administration of the property valuation system. This is not the stuff of some intellectual plaything. There should be a far clearer differential between the activities of HMRC and the role of the VOA. Sadly, and here I speak from some direct experience, the ill-effects of the present arrangement continue to spread. The risk is therefore of opportunistic excursions into novel interpretations of established practice that may then have to be reversed by Parliament on public policy grounds. To my mind, that is an extremely unwelcome process causing interim uncertainty and damage to cash flow in both the private and local government sectors, and being potentially hazardous to investment and employment. This should be the subject of better oversight. I encourage the Minister to comment. I mention this because there is a potentially very rich seam of trouble to be mined in this area by anyone with disruptive feelings or tendencies. The unplanned and often unforeseen effects on business can be considerable—it would not require any of your Lordships to devote much imagination to it.
Looking forward, if I have any advice for a Government contemplating a post-Brexit Britain—this might be the only pronouncement on Brexit that your Lordships will hear from me, for which you are doubtless very grateful—it is to ensure greater simplicity, transparency, fairness and balance to all our laws and regulations governing business and commerce, in taxation especially. If we want to be internationally slick and competitive, this is where I would start. So far, the Bill represents a welcome if small attempt to roll back the tide, but one can usually be sure that any claim to provide a better, fairer and more transparent regime will, on past performance, produce precisely the opposite.
I wish the Bill well and certainly have no intention to seek to amend it in any form. It has limited application and I hope it has a speedy journey on to the statute book, but let it also be a warning to better manage affairs in our great departments of state.
My Lords, it is a great pleasure to follow the noble Earl, Lord Lytton. I will not go into the detail of his speech because he speaks with great knowledge on the valuation agency and how this instance came about.
I very much welcome the Bill. It is the smallest Bill I have ever taken part in—only one side of A4—but I am grateful to the Government for bringing it forward and getting it through Parliament so quickly with support from all sides. The case certainly raised great uncertainty in the industry. In fact, the Government’s response brings great fairness to all those in the business. When he introduced it, the Minister spoke about the need for sustainable growth. I highlight that because I believe that in the next 50 years we will see very different agricultural produce and methods of agriculture than in the past. Much may well come from having an indoor start.
In Leicestershire we have a nursery grower, James Coles. It is a very well-known company that has been going for a long while. When I spoke to it, it had not been affected by the change. It will be interesting if the Minister could tell us why some people have been affected in some places while others have not. The Minister also recorded the Government’s current commitment to £3 billion of grants for farming. That could well go towards looking at new buildings and a new way of producing food.
I record my thanks to the NFU for its briefing. If we thought that the Bill was small, its briefing of seven pages was slightly different. It went into very great detail. I think that all of us taking part in the debate will be fully aware of the various aspects of the issues that it raised. I declare a family farming interest, but, in this case, we do not have an interest in the Bill.
It is of great urgency that we propagate and raise more young plants in this country for sale to other horticultural businesses and to the wider supply trade. Anyone following the vagaries of pest or disease control will know that if we can produce more here and import less we will reduce that risk, which is real. As has been said, the general exemption for agricultural premises stood solidly from 1928 until this case in 2015. Plant nurseries have been treated as agricultural and so are exempt from non-domestic rates, but the court appeal highlighted the gap in the legislation. That is why this legislation is being brought forward today.
As I said earlier, I welcome the legislation, which will enable businesses to flourish. The UK grows excellent products. We are increasing and will continue to increase the amount of homegrown foods, trees and plants, which is important. That will give us greater export opportunities as well.
I shall end by identifying four things that I think are hugely important. The first is to recognise that the agri-food industry is worth some £108 billion. Horticulture, excluding potatoes, is worth some £3.1 billion based on the 2015 figures. The second is the importance of food security and, linked with that, the climate change that we are experiencing now. I am sure that we will need to grow many more trees. The Government have a big push in encouraging the various public bodies and individuals to plant more trees. The third is the importance of new techniques in growing and producing food. Lastly, it is extremely important that we have fairness within the industry. For all those years the industry knew where it stood but then, all of a sudden, the 2015 case gave rise to the need for this Bill.
I hope that the Bill goes through without any need for alteration. It is needed. It affects only a few people, but it could affect more people in future if they diversify in a different way.
My Lords, I draw your Lordships’ attention to my relevant interests as a councillor on Kirklees Council, a vice-president of the Local Government Association and a member of the Royal Horticultural Society.
We on these Benches fully support the purpose of this Bill, which, as other noble Lords have said, is to address an anomaly arising from a court case in 2015. I thank the noble Earl, Lord Lytton, for raising some significant questions on the process that led to the court case which I hope the Minister will be able to answer, either today or in a letter.
I have some comments and questions for the Minister in relation to this short Bill. The first is on the definition of “nursery grounds”. The Government have published a factsheet which is helpful in distinguishing between market gardens, garden centres and nursery grounds. However, it would be helpful if the Minister could clarify further, as many of these businesses straddle the various definitions.
Where a business grows plants from seed in greenhouses or polytunnels, my understanding is that they will be exempted by the Bill, but the retail element, where the plants are sold, will not be. Is that correct? What if the nursery has an online order business? Will the packing and posting buildings be exempt?
What about a garden centre where the main centre of the business is retail? Will the small section where plants have been brought in and are cared for before sale be included—if they are shrubs or trees, they might be there for a year or for several years? Will the totality of that business be classed as a garden centre and be liable to business rates, or will some element of that, too, be exempted as a consequence of the Bill?
Once the definition is clarified, it would be helpful to understand the impact of the changes this Bill will make. I noticed that when the Bill was debated in the other place there was no answer to the question about how many businesses would fall into the exemption. It would be helpful to understand the scale of the changes that the Bill will make. Will businesses that fall into this category be expected to self-identify to the valuation office, or will there be a notification as to their change in definition so that they would be exempt? I think it would be very helpful if the onus were on the valuation office to notify the businesses.
Then, there is the impact on the income of local government. No doubt this may be small in totality, but there may be a significant financial impact on some rural district councils, which may have several businesses falling into this definition of nursery grounds. As local authorities now depend for a large portion of their spending on business rates, this may have an unexpectedly significant effect on some councils. Can the Minister provide assurance on these issues?
With those questions and comments, I am totally positive. This is a constructive Bill to change the anomaly that was the result of the court case. It is right that these businesses are exempt from business rates and I support the purpose of the Bill.
My Lords, first I draw the attention of the House to my relevant interest as a vice-president of the Local Government Association. I support the Bill and its intention of providing that buildings that are, or form part of, a plant nursery ground should be exempt from non-domestic rates if they are used solely for agricultural operations at a nursery ground. We have heard from other speakers in this short debate that this issue arose as a consequence of the judgment in the Tunnel Tech Ltd v Reeves case in 2015, which highlighted how structural changes in the industry have resulted in purely horticultural operations being rated, as opposed to being exempt. It is welcome that the Government have sought the opportunity to correct this and I congratulate them on it.
We know that since 1928 Parliament has had no intention of rating the agricultural industry. That is absolutely right: I support the industry and support sustainable growth in agriculture and horticulture. We have heard from other noble Lords that there is no longer a distinction between nursery grounds and market gardens: all operators consider themselves to be growers and I agree with that. That is an important point to make here, as is the point made by the noble Baroness, Lady Byford, that the industry is worth £108 billion a year and, excluding potatoes, horticulture is worth £3.1 billion a year to our economy. I agree with the noble Baroness that we produce some wonderful food in this country: we have some wonderful farmers and growers and we need to always be supporting them, so that they can sell their produce to us and also export it. For the United Kingdom it is very much about selling high-quality produce, so we must support them in growing that high-quality produce.
I too received the briefing from the National Farmers Union. It is an excellent briefing, as the noble Baroness said: seven pages long, which is six pages longer than the Bill. It highlights how important this is—at the moment for a small number of growers, but with the potential for many more—so I think it is important to support it. I am also aware that when the Bill went through the other place, no amendments were tabled or agreed. I think that was right and, unusually for me on a government Bill, I am going to suggest that we make no amendments either. I have no intention of tabling an amendment and I hope that other noble Lords will not table amendments, so that very quickly, when we come back in September, the minister can stand up and move to discharge the commitment Motion. That would be the best thing to do, so as to quickly get the Bill on to the statute book. I have looked at it very carefully and I think it is the right thing to do: it is a good Bill and I fully support it.
My Lords, first let me say that I have lost a bet: I said that there was nothing more certain than that the noble Lord, Lord Kennedy, would put down an amendment. I owe my team and I probably owe the noble Lord a beer as well. I thank him very much for his support.
I shall deal with the points raised by noble Lords, whom I thank very much for their participation in this debate. I turn first to the noble Earl, Lord Lytton, and his point about the provenance of the decision that led to the Court of Appeal judgment in Tunnel Tech Ltd v Reeves.
We have the separation of powers in this country, and HMRC is not a government department, so the decision in this case cannot be laid at the feet of the Government. It would have been entirely wrong for us to interfere—and it would have been interference—in a wholly unconstitutional way with the valuation office procedures, the valuation tribunal decision and the Court of Appeal decision.
That said, once the decision was made, we faced having to decide whether we should seek to overturn the judgment or let it stand. I think it took everybody by surprise—everybody in the agricultural sector, surveyors. The great mass of people were caught on the hop by this decision, and that certainly included the Government; we were not expecting the decision. However, faced with letting it go through or doing something, I think we have taken the right decision, as borne out by noble Lords’ contributions, in deciding to reverse it. The alternative would have been unthinkable for our agricultural industry, and I share what other noble Lords have said about the importance of the agricultural industry and returning some certainty to it. In a way, as other noble Lords will have realised, there is a parallel with the recent legislation on the staircase tax that we have been looking at. In that case, once again, we were confronted with a decision that we did not expect. That is important.
Let me correct a particular point that I made when I said that HMRC is not a government department. It is a government department, but it is a non-ministerial department. I should have stressed that, and it is important that I correct myself on that point.
My noble friend Lady Byford speaks with great knowledge and authority in this area, particularly in relation to her home county of Leicestershire and her experience there. She asked a very valid question: how is it that some have been affected by this judgment and not others? All are affected by this judgment, but so far the valuation has been done only for some. We are therefore moving fairly quickly, because valuations here apply to just a handful of cases involving the reimbursement of backdated money—the retrospective effect. If we did not act, more and more agricultural businesses would gradually be involved.
I join my noble friend and the noble Lord, Lord Kennedy, in thanking the NFU and the FUW very much for their help, their briefing and their great interest and assistance in this case.
I thank the noble Baroness, Lady Pinnock, very much for her support, and indeed for her questions. She asked about the definition of a plant nursery, which it is quite true is not in the legislation. A plant nursery ground, as I understand it, is where small plants or trees are grown in the initial stages of their life with a view to selling them later to somebody else to complete the growing process. A market garden, which would not be subject to rating, is where fruit, vegetables and flowers are produced to final crop and then sold directly or indirectly to members of the public for consumption. Sometimes businesses are both, in which case there is a split assessment. I hope that is helpful.
I very much agree with the noble Lord about the importance of support for the agricultural exemption and the sector generally, which I think, given the contributions made, is shared across the House.
I come back to the noble Earl’s point and understand how the confusion could arise, but HMRC is a non-ministerial department and it is clearly not open to us to interfere in valuation tribunal decisions, and still less, on the same basis, in the Court of Appeal.
I thank noble Lords very much for their support on this.
The Bill was read a second time.
Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018
Motion to Approve
My Lords, these draft regulations form one part of the statutory underpinning of the new EU settlement scheme for resident EU citizens and their family members to obtain UK immigration status. The other parts are the Immigration Rules for the scheme and the associated fees regulations, which were both laid before Parliament on 20 July. Together, these measures will enable the first phase of the implementation of the EU settlement scheme to begin on 28 August.
This will involve the participation on a voluntary basis of employees of 12 NHS trusts, and employees and students of three universities, in the north-west of England. By the way, I had no part in that decision. This phase will enable the Home Office to test the relevant processes and ensure that they work effectively before we begin to open the scheme more widely from later this year.
I trust that the House will welcome the early progress in bringing forward this important scheme, and I thank the 15 institutions that have agreed to take part in the initial phase. It is appropriate that the National Health Service and the higher education sector, which both benefit so greatly from the contribution of EU citizens, should be involved in helping to establish the EU settlement scheme.
On 21 June the Government published a statement of intent on the EU settlement scheme, and I repeated in this House the Oral Statement given by my right honourable friend the Minister of State for Immigration. The statement of intent set out details of how EU citizens and their family members will be able to obtain settled status in the UK. It also set out how the application process will be straightforward and streamlined.
There will be three core criteria that EU citizens will need to meet to be granted status under the EU settlement scheme: proving their identity, showing that they are resident in the UK, and declaring whether they have any criminal convictions. The draft regulations apply the existing powers to take and retain biometrics which apply across the immigration system to the new Appendix EU to the Immigration Rules, which will provide the basis for the Home Office to grant leave to EU citizens and their family members under the EU settlement scheme.
As we set out in the statement of intent, and as we currently require for applications for residence documents under EU law, the draft regulations will enable us to require EU citizens and their family members to provide a facial photograph as part of their application for status under the EU settlement scheme. We need this to help check their identity and to confirm that the passport or identity card they have provided belongs to that person. It will also help us to identify and deter fraudulent applications.
As happens now across the immigration system, the draft regulations will enable us to require non-EU citizen family members applying under the scheme to enrol their fingerprints, where they have not already done so in being issued with a biometric residence card under EU law. We will not be taking fingerprints of EU citizens applying under the scheme.
Recording biometric data and biographical information is important because it enables us to confirm and fix a person’s biographical details to their unique biometric identifiers, and establishes a reliable link between the holder and their status. It also allows us to check against existing records to make sure that the applicant is not known to us or to the police by another identity.
Under the scheme, EU citizens—and non-EU family members who already hold a biometric residence card—will be able to upload a passport-style photograph of themselves as part of the streamlined digital application process. Non-EU family members who do not already hold a biometric residence card will, as now, need to attend one of our application centres to enrol their fingerprints and facial image. Consistent with our approach across the immigration system, non-EU citizen children under the age of five will not be required to enrol fingerprint biometrics. A facial photograph will be required for security and safeguarding reasons, but their fingerprints will not be taken.
Approval of the regulations is an important step in getting the EU settlement scheme up and running, thereby enabling us to provide real certainty to resident EU citizens and their family members, and to their employers, about the basis on which they will be able to remain here permanently. I commend these regulations to the House.
I thank the Minister for setting out the purpose and content of this instrument. I also take this opportunity to thank her officials for meeting me yesterday. If I still have not understood precisely what the regulations are about then that is my fault, rather than their inability to explain it to me.
I want to make one or two points, because the meeting with officials yesterday was helpful. As I understand it—I think this is what the Minister was saying—the next stage is to go to a pilot scheme, which will begin from 28 August. As she also said, it covers certain NHS workers and students. What I want to be clear on is, first, how long will that pilot scheme last? Secondly, at the end of that scheme will a further statutory instrument be needed to extend it to other groups? In other words, will there be an opportunity in this House for a proper debate about how the pilot scheme has worked so that the Government will not simply decide, off their own bat, to extend the scheme to other groups on the basis that the Government think that the pilot has been successful? I would like an assurance on that point.
Can the Minister also say whether the intention is to extend the pilot scheme in stages to other groups or, at its conclusion, to extend it across the board? As I understand it, there will be the requirement for a facial photograph and, as I think the Minister said, in respect of non-EU citizen family members a fingerprint requirement as well. Simply to get this on the record, as much as anything, what will happen as far as the individual is concerned if the facial photograph supplied does not meet the requirements of the check against the ID photograph? Will they be told why it is not considered a facial photograph that meets the requirements? Will they be contacted or given help by Home Office officials in a positive way, bearing in mind that, as I recall, the Government have said that the approach with applications of this kind will be not “Why should it be agreed?” but “Why should it not be agreed?”, and that there would therefore be a positive approach from Home Office officials? I would like confirmation that that would apply, for example, where the facial photograph was not deemed to meet the requirements.
I would like to raise one or two other points. The Explanatory Memorandum refers to the consultation outcome and says that account was taken of those discussions. It says:
“The Home Office has not undertaken a full public consultation, but the policy has been discussed with its internal and external stakeholders”.
What points were made in those discussions of which account was taken, and what points were made that the Government did not feel it necessary to take into account? Who were the,
“groups representing EU citizens in the UK”,
with whom this policy was discussed, as referred to in paragraph 10.1 on the “Consultation outcome”?
What will the cost be to the individual of going through this process? I am sticking strictly to the statutory instrument in front of us in relation to the facial photograph and the fingerprints since, subject to what the Minister may say, for a fairly large family it could presumably add up to a not insignificant sum of money. No doubt that is something the Minister will address.
It has been very helpful to be given by officials a copy of the Statement made by the Minister of State for Immigration on 23 July, which, as I understand it, is the one that talks about, effectively, pilot arrangements, and a copy of a press release dealing with that. I do not think, although I am happy to be put right if I am wrong, that that was necessarily made clear when the matter was discussed in the Commons, which I think was on or around 16 July. Perhaps some of the issues that were raised in the Commons might not have been raised, had the intentions as far as a pilot is concerned been clear. On the basis that there is to be a pilot to see how well or otherwise it works, I hope that there will be an opportunity, perhaps through a further statutory instrument, for a proper discussion about how it has worked because there are potential concerns about this process simply because of the vast number of people involved, the time it could take, the possibility of people being wrongly rejected and matters of that kind. There are concerns about it. A pilot will be helpful if it draws attention to some of the difficulties and gives a chance for those to be put right before it is extended. I am seeking an assurance that there will be a discussion in this House about how the pilot has gone before the scheme is extended to other groups.
My Lords, I, too, thank the Minister for explaining these regulations to the House. I am not as concerned as the noble Lord, Lord Rosser, about whether this is a pilot as my understanding is that there will be a period of three years from now for EU citizens to register and overcome any of the problems that may arise during the pilot scheme, so I am slightly more relaxed on that front. Can the Minister confirm that the continued operation of these regulations will be subject to satisfactory negotiations being concluded with the European Union and each of the 27 remaining EU countries, which will decide on a country-by-country basis what conditions they will impose on UK citizens’ residence in their countries if we leave the European Union? As the Minister will know, some European Union countries already require UK workers to register while others do not.
Can the Minister confirm that the database of photographs of EU citizens applying for leave to remain in the UK will be kept not just for the purpose of initial identification to ensure that the applicant matches their national identity document, but in perpetuity? Can she also confirm that every employer in the United Kingdom is expected to carry out a check of every prospective employee against Home Office databases to ensure that the individual has the right to work in the UK, whether they are a citizen of the UK, the EU or any other country?
The Minister has already confirmed that only non-EU members of EU citizens’ families will be required to supply a set of fingerprints along with a photograph. If I understood her correctly, this is to ensure that they have not been involved in crime or that in other ways it would not be desirable for them to remain in the UK. Again, will these fingerprints be retained on a database after they have been checked against, for example, criminal records? If the answer to both those questions— about photographs and fingerprints—is yes, are this Government changing their position on having a national identity card database, because this sounds like the beginning of that process?
The regulations are about EU citizens’ status in the UK if we leave the European Union. I therefore hope that the Minister will accept that the following question is within the scope of this debate. Can she confirm whether I correctly understood from the briefing by officials that she kindly arranged that there will be free movement of EU citizens into the Republic of Ireland, even if the UK leaves the EU: that there will be no immigration checks on anyone either at the border between the Republic of Ireland and Northern Ireland or at any crossing point between Northern Ireland and the rest of the United Kingdom?
Can she therefore confirm that there will be no way that the UK could control inward immigration from the EU via the Republic of Ireland even if we leave the EU, that the only immigration controls will be those carried out by banks, landlords, the NHS and employers, and that, therefore, an unlimited number of EU nationals could live indefinitely in the UK if they came through the Republic of Ireland?
Can she also confirm that the UK’s border security will be totally reliant on the checks carried out by Republic of Ireland immigration officials who, in any event, will be unable to question any EU citizen as to their reason for entry under free movement rules? Presumably, the Irish Government have always been happy to share responsibility for guarding the EU’s external borders, but what discussions have the UK Government had with the Irish Government about their immigration officials effectively policing the UK border from the Republic?
I thank both noble Lords for their questions. The first question from the noble Lord, Lord Rosser, was about an evaluation of the private beta phase, or the pilot phase, which I can confirm will run from 28 August until October. On amendments to extend the scheme any further, we will provide further information in due course about our plans for the phased rollout of the EU settlement scheme later this year so that, in line with the draft withdrawal agreement, it is fully open by 30 March next year. Those plans will absolutely reflect the experience of the pilot phase and the learning that we draw from those who choose to apply under the scheme during that phase.
There will not be a formal report back, but any extension of the scheme will be subject to parliamentary consideration of the required changes to the Immigration Rules for the scheme, further to those for the private beta phase laid on 20 July. We will explain clearly any changes and the reasons for making them at that point.
My point was that there is to be a pilot scheme. Will there be an opportunity for a discussion in this House if it is decided, as presumably it will be, to extend the pilot scheme to other groups, or will the Government just decide that the pilot scheme has been successful and be able to extend it without any debate or discussion in this House? That was the point of my question about whether there will need to be a further statutory instrument.
I understand that any changes at all in the Immigration Rules for the scheme will be laid out, and why they will be laid out. We will need new Immigration Rules to extend the pilot to other groups, which is what I think the noble Lord was asking.
My Lords, I am now slightly confused. I am grateful to the noble Baroness for giving way. Presumably, if the pilot works perfectly with this pilot group of EU citizens, it can then be rolled out to cover all EU citizens without any further regulation. Is that the case?
My Lords, I understand that this is a specific pilot scheme for a specific purpose, so it would then have to come back for extension to other groups. It will be the same thing, but for other groups. I hope that that explains it clearly. It will come back.
On the question of the receipt and retention of the photograph, there are three reasons why we need to receive and retain them. First, as part of the basic checks required to protect the scheme from abuse, we will compare the photograph with the one in the applicant’s identity document to confirm that they are one and the same person. Secondly, by keeping a record of the photograph, we can help secure the person’s identity and the status we have granted them against any attempt by another person to use those in a fraudulent application. Thirdly, the photograph will be contained in the secure digital status they receive under the scheme and will thereby provide a convenient means by which they can, for example, evidence their right to work to an employer. I will say a bit more about that shortly.
The noble Lord, Lord Rosser, asked about the photograph not meeting requirements and being chucked out. There will be a lot of guidance on how to take a photograph that matches and meets the requirements. If an applicant submits a photograph that is not sufficient, the Home Office will proactively contact them in a positive way—which I think the noble Lord was also driving at. I will underline that we are looking for a reason to grant this status, not refuse it. If there are any problems of any sort with an application, we will contact the applicant to help them resolve the matter, rather than reject it. I think that that was at the heart of the noble Lord’s question.
The noble Lord also asked about costs to the applicant. The agreement reached with the EU allows a fee of up to the cost of an equivalent document for UK nationals. We have used the cost of a passport of £75.50 as a point of reference. A fee of £65 to apply for status under the EU settlement scheme is in line with the current costs of obtaining permanent residence documentation, and it will contribute to the overall costs of the system. The fee for a child under 16 will be half that: £32.50. Where an applicant is granted pre-settled status under the scheme, from April 2019 there will be no fee when they apply for settled status. Applications will be free of charge for those who hold valid permanent residence documentation or valid indefinite leave to enter or remain, or for the children in local authority care. To charge a lower fee than the current fee that EU citizens are charged for permanent residence documentation would disadvantage those who have already paid the £65 fee to require that documentation to confer their exercise of free movement rights. To charge a higher fee would disadvantage those who have followed our advice since the referendum that they did not generally need to apply for EU documentation.
The noble Lord, Lord Rosser, asked about the consultation. We have been engaging with stakeholders throughout the process, including the user groups we have established, involving EU citizens’ representatives, embassies, employers, and others. These groups are helping us to develop the scheme and get it right. We have engaged with EU citizens at every stage of the development process and will continue to do so. We will also continue to expand our communications to ensure that EU citizens are aware of the scheme, how it will operate and what information they will need to provide, and so that they are reassured that they will have plenty of time in which to apply for their new UK immigration status.
We have established a particular user group focusing on potentially vulnerable applicants, which has been mentioned a number of times, to help us to develop the right forms of support for them. Since the publication of the EU Settlement Scheme: Statement of Intent on 21 June, we have held more than 20 events across the country, reaching a diverse audience, including representatives of EU citizens, heads of industry, immigration lawyers, regional chambers of commerce and local authority leaders. We have also met and received feedback from the devolved Administrations. This engagement has helped us to improve the drafting of family provisions. I have a two-page list that I hope noble Lords will not mind me not reading—but I have it here for their perusal afterwards, should they want to look at it or take it away.
The noble Lord, Lord Paddick, asked about the retention of photographs. There are reasons why we need to receive and retain, and I have gone through them, but he then asked about the retention of fingerprints. The biometric information collected under the EU settlement scheme will be used and shared only in accordance with the law. It will be mainly for law-enforcement purposes or as specified in the regulations. They include the following: the exercise of a function by virtue of the immigration Acts or in relation to nationality and in connection with the prevention, investigation or prosecution of an offence, or to protect national security. They do not include sharing biometric information with commercial partners.
We will retain biometric information only for so long as its retention is necessary in connection with an immigration or nationality purpose. We will normally delete the fingerprints of individuals granted indefinite leave to remain, including those granted settled status under the scheme, 10 years after the leave has lapsed, should it do so, unless the person is considered a threat of high harm to the UK, where we will retain them indefinitely. If a person becomes a British citizen, their fingerprints are deleted at that point.
The noble Lord, Lord Paddick, asked about a no-deal situation. We have reached an agreement with the EU guaranteeing the rights of EU citizens living in the UK and vice versa, and we do not expect that to be reopened. The Prime Minister has been clear from the beginning of this process that she wants EU citizens and their families in the UK to be able to stay, and she gave a personal commitment to EU citizens in October when she said:
“I couldn’t be clearer: EU citizens living lawfully in the UK today will be able to stay”.
We have developed the EU settlement scheme as a basis for them to do so.
The noble Lord also asked about right-to-work checks. The EU citizens granted status under the scheme will be given a digital status, which will be a digital record held by the Home Office, and will control who they wish to share this with to demonstrate their status via a secure passcode. A digital status checking service is already live for some non-EU citizens and will provide the same convenient and secure way for EU citizens to demonstrate their rights. This is part of moving the UK immigration system to digital by default. EU citizens will be able to demonstrate their online digital status to employers and others during the implementation period if they choose to, but it is important to stress that, during the implementation period, EU citizens can demonstrate their right to work or to access benefits and services by showing a passport or identity card.
Finally, to the point about the common travel area and Ireland. The CTA with Ireland and, of course, the Crown dependencies predates the UK’s and Ireland’s membership of the EU. I am pleased that the EU recognises that, and recognised it early on in the negotiations, and agreed that it should be maintained after we leave. Security checks are undertaken on all passengers arriving into the CTA, and this will continue. The Government are considering a range of options for the future immigration system, and will set out details in a White Paper this autumn. However, I have to say that free movement will end.
What is important is that we control immigration in the national interest, which means being clear about who has permission to live and work in the UK. The CTA does not actually affect this. For example, currently an American can travel to Dublin and then to Belfast, but has no right to work in Belfast without a visa. This could be the case for EU citizens in future. The key point is that everyone will have undergone security checks as they enter the CTA, as is the case now, and they will then need the right permission if they want to work.
The White Paper on our future relationship with the EU makes it clear that we want travel for short-term business trips and tourism to continue. It is good for our economy and for society and, of course, lots of British people enjoy holidays in the EU. But in future we will control the number of people who come from the EU to live and work here. That is behind people’s concerns about unlimited immigration. I hope that I have satisfactorily answered all the questions that noble Lords asked. With that, I beg to move.
Higher Education (Transparency Condition and Financial Support) (England) Regulations 2018
Motion to Approve
My Lords, my purpose here today is to speak to draft regulations that encompass two keys elements of the Higher Education and Research Act, or HERA, as I shall refer to it, which require approval. I turn first to Section 9, the transparency condition.
There has been considerable progress in widening the access and success of students from disadvantaged and underrepresented groups into higher education. University application rates for 18 year-olds to full-time study remain at record levels, according to data published by UCAS earlier this month, and the proportion of disadvantaged 18 year-olds entering full-time higher education has increased from 13.6% in 2009 to 20.4% in 2017. However, there is more that could and should be done to fulfil our aim that anyone with the talent and potential to benefit from higher education will be able to do so, particularly on the progress of students from disadvantaged backgrounds to the most selective institutions, and the outcomes, including the retention and attainment of some groups of students. We want to see progress made and have charged the new regulator, the Office for Students, to lead that.
The introduction of the transparency duty through Section 9 of the Higher Education and Research Act is a key measure that will support the OfS in making the further progress we wish to see. This duty requires certain higher education providers to publish information on application, offer, acceptance, completion and attainment rates of students, which can be broken down by ethnicity, gender and socioeconomic background. The duty will apply to all providers registered with the OfS, including both those in the approved and approved fee cap parts of the register. It will ensure that data, similar to that released by the universities of Oxford and Cambridge on admissions recently in anticipation of this duty, is available from August 2019. That greater transparency will shine a spotlight on where higher education providers need to do more to widen the access and success of students from disadvantaged and underrepresented groups.
The duty also requires that the information is provided to the OfS. That will help the OfS to assess the performance of providers in terms of access, student success and progression. To ensure that we see progress, the OfS will be able to take action if a provider does not comply with its obligations, including on the access and participation of students from disadvantaged and underrepresented groups. The OfS has access to a range of interventions and sanctions which incentivise improvements. This can include placing additional registration conditions on providers, suspending providers from the OfS register, and, if necessary, imposing monetary penalties on a provider.
I recall that the duty was broadly welcomed by noble Lords during the passage of HERA. At that time the Government gave a commitment that the OfS would be asked to undertake a consultation in respect of additional data it might request on applicants and students with additional protected characteristics, such as disability and age. I am pleased to be able to report to the House that we have asked the OfS to undertake that consultation, and it has announced that it will do so through publishing a formal consultation and holding consultation events later this year.
If the noble Lord will allow me to finish the speech, we can have the debate then, and I will certainly bear in mind the point that he made.
The consultation, which is part of a wider consultation on the OfS work on access and participation, is intended to be published at the end of August, and consultation events will be held during September, with findings available early in 2019. The implementation of the duty through these regulations will help ensure that we can make further progress on the access and success of disadvantaged students, as well as supporting informed choice for all.
On the second part of these regulations, Section 39 of HERA, these powers allow the OfS to provide financial support for higher education. These funding powers broadly replicate the funding powers conferred by Section 65 of the Further and Higher Education Act 1992 on HEFCE, but have been expanded so that the OfS can fund any eligible higher education provider. Eligible providers in this new system are those subject to a cap on the fees they can charge, and thus are in the approved fee cap part of the OfS register. Such financial support is important because it gives the OfS the ability to provide financial support to providers to support a range of different delivery models, such as part-time, and to promote student choice, competition and value for money. It also permits the OfS indirectly to fund qualified schools, colleges or other institutions that are connected to an eligible higher education provider.
Furthermore, these powers ensure that the OfS can continue to provide funding for subjects which cost more to teach than can be met solely from tuition fees, such as those science and medicine courses that are so crucial to the economic and social future of the country. These powers also make it possible for the OfS to provide funding to incentivise and support providers’ work on widening participation or to meet the unavoidable costs of small and specialist provision, such as performing arts courses.
I turn to an issue involving the Joint Committee on Statutory Instruments, which has drawn the special attention of both Houses to this statutory instrument in its 30th report. It has stated that there is doubt that there are adequate vires for the regulations. I appreciate that some of what follows may seem rather technical. However, it is important that I put the Government’s interpretation of the relevant provisions on the record, given the strength of the committee’s views.
Before turning to the detail—which is important—I want to be absolutely clear that I greatly appreciate the invaluable work the Joint Committee does in holding the Government to account for the secondary legislation that they produce. I am especially grateful for the clear way the committee has expressed its views in its recent report and, indeed, for the extensive engagement between its officials and my own during the drafting of these regulations.
The committee’s conclusion, as I understand it, is on the basis that the regulations involve subdelegation to the Office for Students and that this is not adequately authorised by the parent Act. Having carefully considered the concerns raised by the committee, and having again consulted those who drafted the provisions, the department respectfully disagrees. The Government’s view has always been that the Act was deliberately designed to enable regulations to refer specifically to named categories of registered provider, as created by the OfS.
In technical terms, that was achieved by the inclusion of a specific provision—Section 119(5)(d), which states that regulations made under HERA may,
“include provision framed by reference to matters determined or published by the OfS (whether before or after the regulations are made)”.
The division of the register into different categories is then expressed by the Act to be precisely such a matter that the OfS “determines”. That is clear if one reads the words of Section 3(2), which uses the word “determines” when it gives the OfS the power to divide the register into categories.
The net result is that regulations made under HERA, including these regulations, may lawfully include descriptions framed by reference to the registration category of a provider. There may be reservations, perhaps strongly held, about whether this was the right approach as a matter of principle, but I believe that Parliament expressly authorised it when passing HERA, as we specifically referred to an intended use of the power in the very way proposed in this instrument. This is reflected in Hansard, where I gave an example of the use of the power under Section 119(5)(d) as one that refers to part of the OfS register. I hope that that reassures the House that what we propose in these regulations is both a legitimate use of the powers given by HERA and consistent with the statutory scheme as the Government described it when we sought Parliament’s approval to enact it.
In summary, the transparency condition and financial support regulations work together to enable the Office for Students to promote access, participation and student choice across all higher education. Together, they are part of the vital foundations for the new regulatory framework that will give the Office for Students the tools to deliver sector-wide reform and ensure that higher education delivers for every student. I beg to move that these regulations are approved.
My Lords, I very much welcome these regulations. For a long time since the introduction of the higher-level fees, there has been a large expenditure by universities on trying to widen access, but to my mind it has been carried out in a most disappointing manner. Universities are mostly research institutions that understand how research works, but a lot of these expenditures have not been accompanied by evaluation, by publication of what does and does not work or by any sharing of expertise between institutions so that this common enterprise can work better.
I hope that there are some but I have not seen any examples of universities working with other elements of government or the third sector to try to tackle the underlying problems. A lot of these problems are deep, as your Lordships’ committee on seaside communities is finding out. The principal reason that some of these communities do not send many people to university is not down to what the universities do or do not do; it is down to the problems inherent in those communities. The best way for universities to tackle this problem is by working with other agencies active in those communities to try to achieve something wider and more co-ordinated. I would love to see more examples of that.
I really hope that my noble friend can assure me that this decade of bad practice is coming to an end, that we will be able to see exactly how universities are spending this money, that the Government, through the OfS, will expect publication of evaluation, that they will expect collaboration, and that they will expect a sector-wide drive towards better performance with a lot of the collaboration that that requires. I think that everybody is aiming in the same direction in terms of what we want to achieve, and it is very unsatisfactory that such huge expenditures are not being used efficiently and effectively.
My Lords, I want to comment very briefly as a member of the Joint Committee on Statutory Instruments. I would like to thank my noble friend for the detailed way in which he has responded to and commented on the committee’s 30th report. His remarks will be studied with great interest by members of the committee. I have one question to put to him. When producing its report, the Joint Committee on Statutory Instruments understood that the register may not be finalised or published by the time that Parliament is expected to approve the draft regulations. Will my noble friend tell us the current position?
My Lords, I want to focus on what the Minister told us about attempts to widen access and increase transparency, particularly through a better set of data. The noble Lord will know, because I have had this conversation with him in the past, that it is profoundly important not only to increase access for disadvantaged students and students from diverse backgrounds across the sector but to have people at the top among the academic staff and university leadership, particularly in the elite universities, who represent diversity. The figures we have seen from the regulators—there is precious little data in this regard—indicate either that data is not being compiled or that the universities are not prepared to share it with us. Will the noble Lord reassure me that there are genuine attempts on the part of our elite institutions to prepare the ground for diverse minority leadership within institutions—certainly more diverse than currently exists? I have shared with him the figures for, for example, Oxford, where women hold nine of the 44 leadership positions, and not a single ethnic minority.
My Lords, as ever with such regulations, our task is not to oppose but to seek clarification from the Government over rationale, detail or implementation. I thank my noble friend for her intervention because, although these regulations are to do with students, the point she makes is extremely valid about having diversity elsewhere in universities.
The regulations are largely uncontroversial, but I have some queries. How much resource will it take for universities to supply this information? We note that there is no impact assessment for this. Obviously, the numerical statistics received—of applications received, offers made and accepted, completions and awards made—are fairly straightforward. Gender will probably be straightforward too, although it can be more complex than the male/female of yesteryear, but ethnicity and socioeconomic background might not be straightforward. Will the Government make use of UCAS’s multiple equality measure, which records the multifaceted nature of educational disadvantage? This measure groups the UK’s 18 year-old population into five groups according to their levels of disadvantage. It incorporates sex, ethnicity, the POLAR3 quintile, school type and eligibility for free school meals.
Disadvantaged students will normally be a matter of family income. However, if students are over 18, they are officially adults and, in theory, should have responsibility for their own income rather than be dependent on parents. We can assume, however, that the socioeconomics of this depends on the family rather than on the independent student. There are many families with very limited money but who are very strong on aspiration and work ethic. Young people from these backgrounds may be less disadvantaged than those from backgrounds that a teacher friend of mine once described as, “Three Mercedes, but no books” families: money but no cultural depth nor work ethic. I doubt the statistics will take account of them, although their achievement may be harder won than some of their poorer colleagues.
I note that a review has been ruled out but the OfS will monitor the effectiveness in relation to widening participation. We welcome the advances that the Minister has already mentioned. UCAS has concluded that in universities with the highest entry requirements the entry gap is widest but has narrowed most quickly. It quotes that the most disadvantaged 18 year-olds are 65% more likely to attend an elite university in 2017 than they were in 2011. However, that was starting from a low base rate and, obviously, considerable disparities remain.
We shall be interested to hear in due course how straightforward it is for universities to comply with this data and its impact on widening participation, which I know we all support.
My Lords, I thank the Minister for introducing the first of three statutory instruments relating to the Higher Education and Research Act that we will be debating today—ending the term with a flourish in the twilight zone, which I suspect few of our respective colleagues will envy.
Notwithstanding the technical objections of the JCSI, we will not oppose these regulations. It is clearly important that higher education providers receive the necessary funding to enable them to carry out their teaching functions, and Regulation 5 does this. Provided it is delivered efficiently and fairly then we have no other comment to make in respect of this part of the regulations, although I will have more to say on fees in the debate that will follow this one.
Although higher education providers will regard that part of these regulations as being the most relevant, I have no doubt that the transparency provisions of Regulation 4 will have more long-reaching consequences. This is because the information that providers are obliged to provide under these regulations, as set out in detail in the Explanatory Note, will have a significant impact on the choices made by students—not all of whom by any means are 18 year-olds—when they decide which university and what course to apply for. I endorse paragraph 7.2 of the Explanatory Memorandum, which says that,
“greater transparency is one of the best tools available to drive social mobility”.
We know that many institutions do well in having an inclusive and diverse student population broadly reflective of the population as a whole. Equally, a considerable number do not. The Minister mentioned Oxford and Cambridge universities. A recent survey revealed that several of the most prestigious Oxford colleges each admitted only two black British students as undergraduates in the past three years. Six of Cambridge’s colleges each admitted fewer than 10 black and minority ethnic students between 2010 and 2016. Oxford’s Wadham College is an excellent example, admitting 68% state school students and sitting in the top five college rankings, while making considerable efforts to widen its participation programme with visits to schools. If it can be done at Wadham, I do not see why it cannot be done at other colleges and universities. It is perhaps, a question of priorities. I endorse the view expressed eloquently by the noble Baroness, Lady Falkner, that the need to develop diversity should be extended to management and leadership levels.
The Government regularly declare that widening participation is a key part of their agenda, and the Office for Students states that its aim is to make higher education more representative of wider society. We certainly wish them well with that. However, in nine of the Russel Group’s 24 universities, the proportion of state school students fell over the past year, so it seems that efforts to widen student participation at universities have stalled. It is to be hoped that the transparency provisions of these regulations will help to refocus the recruitment policies of the under-achievers.
There is no doubting the good intentions of both the OfS and the universities, but good intentions are without merit unless they are acted upon. One clear failing concerns the issue of unconscious bias. I repeat a point I made in an earlier debate about the most egregious example of that, which was the admissions process highlighted by UCAS’s own researchers last month when they reported that more than half of all applications flagged for possible fraud were from black applicants, even though these applicants constitute only 9% of the total. That is surely wholly unjustifiable and clearly the result of bias. Whether it is entirely unconscious bias is perhaps a moot point.
As I said, greater transparency in the process is clearly necessary, and we have reason to hope that these regulations can help to provide it. While more free school meals students are going to university than 10 years ago, the increase has not been at the same pace as the number of non-free school meals students going to university. Since 2010, the gap between students from independent schools going to the most selective universities and students from state schools going to those universities has grown substantially. To put it another way, disadvantaged pupils’ progression to university is as far behind that of their more affluent peers as it was seven years ago, which is simply unacceptable.
Of course it is no coincidence that analysis from the Institute for Fiscal Studies has shown that the ending of maintenance grants finds students from low-income families graduating with the highest debt levels, sometimes in excess of £57,000. Labour believes in the reinstatement of maintenance grants because, no matter how much effort universities put into improving their admissions policies and being transparent about the outcomes, much more remains to be done to reduce the barriers that prevent those from underrepresented groups fulfilling their potential. It will be instructive to return to this subject in three years’ time and to assess how effective these regulations have proved to be in widening access to our higher education institutions.
My Lords, I hope that the Minister will forgive me, but I am somewhat confused by the procedure. My noble friend has tabled a Motion to Regret on one of the sets of regulations even though the Minister introduced all of the regulations in his opening remarks. Perhaps I may make a few remarks now on the first of these sets of regulations concerned with transparency before we come on to the data sharing issues in a moment.
No one could have anything against these regulations. It is vital that there is transparency and the Office for Students, which got off to a terrible start in terms of its reputation, the appointments to the board and so on, is at long last starting to concentrate on some of the issues for which it was set up. One of those is to ensure fair access and to encourage universities to publish appropriate data on this. It is an important point, and the Minister’s remarks on that at the outset were well made and I support them entirely.
The essential thing to understand is that the publication of data itself will not improve access. It is a tool to that end, but the critical development is what happens university by university and community by community. My concern with the OfS is that, in setting up this new body and getting into a big exercise in establishing systems, protocols and data arrangements, it will concentrate too much in its first year or two on getting the systems in place and not on actually changing the behaviour of universities. There is some evidence for that already.
The first big announcement the OfS has made is to parade, as if it was some enormous achievement in the history of higher education, a register of providers. A register of providers in itself is an entirely neutral thing. No additional provider has been made available simply by the publication of a register. The fact that this may be the first such register is an interesting proposition but it is not a great development in the history of higher education in this country.
As a former Minister in this area, everywhere I go around the country I can see the enormous challenges involved in widening access. I want to bring the Minister’s attention to one area which I hope he might be able to write to me about after the debate. I do not expect him to be able to respond to my remarks now, but it is an issue of immense concern which does not come to the attention of this House because of devolution. I spent most of last week in Northern Ireland, where the shortage of higher education places is a very big issue. Northern Ireland exports a very large number of students to universities in the UK because there has been proportionately a much lower cap on places in Northern Ireland than has applied in Britain.
I turn to a subject that was raised with me almost everywhere I went, particularly at Queen’s University Belfast. Students and academic leaders told me in graphic detail about the brain drain from which Northern Ireland is suffering as a result of the shortage of higher education places. That in itself is a matter of concern. A large number of students in Northern Ireland are studying in Britain and then not returning home, which is very damaging to the economy and probably also to the wider society of Northern Ireland. However, there is an additional dimension that was forcefully made clear to me: this is a particular issue in the nationalist Catholic community in Northern Ireland because of a decision taken by the Stormont Parliament a generation ago not to establish a university in Londonderry. I looked into the history of the decisions that were taken in the 1960s and 1970s. It was decided to set up a new higher education institution in Coleraine rather than Londonderry which, amazingly, still does not have a proper higher education institution. That is greatly resented by the community in Londonderry and acts specifically against the interests of the Catholic community.
Normally this would be a matter for the Northern Ireland Assembly to concern itself with, and indeed part of the reason the Assembly exists is to address issues like this. However, it has now been more than a year since the Northern Ireland Assembly met. The two leading parties in Northern Ireland have conspired to keep the Assembly from sitting. There is no Government in Northern Ireland. Therefore, in this as in other areas such as equal marriage and abortion, this Parliament must surely start addressing these issues if there is no other democratic outlet for Northern Ireland to make its views heard, and for them to be addressed as they should be by Parliament.
This issue of higher education places in Northern Ireland, which goes directly to the issue of access, looks to be of fundamental importance. Will the Minister undertake to do two specific things? First, will he let me know what the powers of the Office for Students are in Northern Ireland? Does it have powers in Northern Ireland equal to the rest of the United Kingdom? Can it get into these issues of access? Secondly, will he ask the Office for Students to look, if it can, at fair access not regarding the number of places, but between different parts of the community in Northern Ireland, because it is clearly an issue that is very strongly felt there?
My Lords, I thank all noble Lords for their broad acceptance and approval of these regulations. I thank my noble friends Lord Lucas and Lord Lexden, the noble Baroness, Lady Falkner, and the noble Lord, Lord Adonis. I will cover all their questions in turn.
On the big picture, these transparency regulations are very important as part of the setting up of the OfS and its very remit. The whole point is that there should be transparency and universities should be seen to provide value for money for all students. At the end of the day, outcomes are also important: students going in, what they do when they come out and where they go. Linked into the LEO figures we can then better know who is coming in, who is coming out and how they get on. Ultimately, that helps to market our universities at home and abroad, particularly, as I said at the beginning of my speech, looking at social mobility and disadvantaged students who—for first time in some cases—have the chance to go to university and a great opportunity for a career.
The noble Baroness, Lady Falkner, made an interesting point about elite universities and sharing data. That leads into something that the noble Lord, Lord Adonis, will feel strongly about, which is transparency at vice-chancellor and senior leadership level at university. He and I agree on this. He knows, as I do, that we are putting as much pressure as we can on all universities, including the elite ones, to act with restraint. They obviously have a duty to publish certain figures relating to their salaries. I will not go into the details of that; I think that the House knows about it. That will help to lead to that restraint, but it will also help to raise the profiles of the universities abroad. People will be able to look at the figures and at what the universities do, how they operate and how they manage themselves. I hope that it will be a good story and that more people will come to university. There is a linkage there.
My noble friend Lord Lexden asked about the current position of the OfS register. I reassure him that it now exists. The OfS recently confirmed that the first 42 providers have been officially registered. The OfS register is now available for anyone on the OfS website. The OfS will continue to populate the register over the forthcoming months.
The noble Lord, Lord Adonis, asked early on in the debate about the sharing of data. Maybe I can give him a little bit more information. The information-sharing regulations enable the OfS to share information with a range of bodies as set out in the regulations, where this is for the purpose of performing the other body’s functions. The OfS will also be able to share information with third parties where it is appropriate to do so and where this is part of an OfS function. There are specific regulations laid down with restrictions for that.
My noble friend Lord Lucas, in welcoming the regulations, asked about the research and evaluation by universities and their sharing of expertise in tackling underlying problems. We have asked the Office for Students to develop an evidence and impact exchange to identify and share good practice on what works and what has the greatest impact.
The noble Lord, Lord Watson, and the noble Baroness, Lady Falkner, spoke about Oxbridge and ethnicity. Wadham was mentioned. “If Wadham can, then why can’t the others?”, one noble Lord asked. I think I said at the beginning that 18 year-olds from disadvantaged backgrounds are entering full-time higher education at record rates, including the most selective universities, which is positive news, but we have asked the OfS to challenge for and encourage more progress, particularly at our most selective institutions. The publication of transparency data by ethnicity will shine a light on where they need to go further, so I hope that provides some reassurance.
The noble Lord, Lord Adonis, asked about the powers of the OfS in Northern Ireland. I listened carefully to his latter remarks and am grateful for his observations. The OfS is a regulator of higher education in England only but, having said that, let me write to the noble Lord, because his remarks were quite expansive and extended to the difficulties that Northern Ireland is facing at the moment. I will read his remarks in Hansard and write a letter to him to clarify that.
The noble Lord also asked about the OfS concentrating too much on setting up and systems, and not on changing behaviours. I do not agree with him. Yes, a key focus this year is for the OfS to register providers, but it has a wide range of other priorities as set out in the Government’s strategic guidance to the OfS published in February, and set out in the OfS’s strategy and business plan. On the back of the Higher Education and Research Act, the OfS is very much up and running. The noble Lord mentioned certain problems that arose, but I am glad that he acknowledged that it is moving forward and making progress on a range of matters.
I hope that I have covered the questions asked. Noble Lords have a keen and understandable interest in the implementation of HERA. There is no doubt that today’s scrutiny plays a vital role in ensuring that the reform promised by that Act is achieved.
Higher Education (Fee Limits and Fee Limit Condition) (England) Regulations 2018
Motion to Approve
My Lords, I thank the noble Lords on the Secondary Legislation Scrutiny Committee for their scrutiny of the fees regulations laid before this House in July and considered in the 36th report from the committee.
My purpose here today is to speak to the fees regulations that require approval. They support our aim that anyone with the talent and potential to benefit from higher education will be able to do so.
UCAS data show that we have made good progress on this. In 2017, 18 year-olds were more likely to enter full-time higher education than ever before, with disadvantaged 18 year-olds 50% more likely to enter full-time higher education than in 2009. The most recent UCAS data on application rates for English 18 year-olds show an increase by 0.2 percentage points on last year’s deadline to 38.1%. This is a record high.
However, as I have said before, we know that there is more to do. That is why the Government are currently undertaking a major review of post-18 education and funding to ensure we have a joined-up education system that is accessible to all and encourages the development of the skills that we need as a country. We expect to conclude the review in early 2019.
Turning to fees, the Government announced on 2 July in a Written Statement that maximum fees for students undertaking undergraduate courses in the 2019-20 academic year would remain at 2018-19 levels for the second year running, saving students up to £255.
This is not the only change we have made to help students. From the tax year 2018-19 starting in April 2018, we increased the repayments threshold above which graduates are required to make repayments on their loans from £21,000 to £25,000, rising by average earnings thereafter. We have also taken the opportunity to review policy for EU students. The Written Statement of 2 July I mentioned earlier also announced that existing eligibility rules for students from the European Union, and their family members, who start their courses in England in the 2019-20 academic year will remain unchanged. This means that EU nationals will remain eligible for home fee status, undergraduate, postgraduate and advanced learner financial support from Student Finance England for the duration of their course under the current eligibility rules.
Why are these regulations important? I turn now to the details of the fees regulations being considered today. They are made under Section 10 and Schedule 2 of the Higher Education and Research Act 2017. They will ensure that the Office for Students, the new regulator for higher education since 1 January 2018, has the powers to set maximum fee limits for home students studying at providers in England that are subject to a fee limit condition in 2019-20. These regulations will also ensure that the Government can implement the new regulatory framework under HERA in full; in particular, the requirement for providers to submit access and participation plans to the OfS in order to charge fees above £6,165 for a full-time course.
The existing fee caps, made under Section 24 of the Higher Education Act 2004 will be revoked automatically on 1 August 2019, as a result of Schedule 11(30)(2) of HERA. It is therefore essential that new regulations are made under HERA to ensure that fee caps continue and that students benefit from the freeze in maximum fees. Under HERA, providers can choose to register with the OfS in one of two categories: either the Approved (Fee Cap) or Approved categories. Providers registering in the Approved (Fee Cap) category will, for 2019-20, be eligible for OfS grant funding and will also be subject to maximum fees set through the regulations being discussed today: £9,250 for a full-time course offered by a provider with a teaching excellence and student outcomes award. Students attending Approved (Fee Cap) providers will be able to access loans to cover the full costs of their fees. Providers registering in the Approved category will not be eligible for OfS grant funding or subject to maximum fees. Students attending those providers will be able to access lower rates of loans towards the costs of their fees.
Under HERA, the OfS will be able to limit fees charged by Approved (Fee Cap) providers once these regulations come into force. So without these regulations, providers would be free legally to charge whatever fees they wished. In addition to setting maximum fees for the 2019-20 academic year, these regulations also amend another set of regulations that will allow the OfS to operate under HERA. The Fee Limit Condition Regulations, which came into force on 1 April 2018, deliver the framework for the capping of student fees for qualifying students and courses at providers registering in the Approved (Fee Cap) part of the OfS register. These regulations amend the Fee Limit Condition Regulations so that persons who have a current grant of stateless leave, and their family members, who are undertaking qualifying courses in the 2019-20 academic year are defined as qualifying persons. This means that they will benefit from the same maximum fees that currently apply to other qualifying persons, such as persons who are settled in the United Kingdom.
These regulations also amend the Fee Limit Condition Regulations so that students already holding an equivalent or higher level qualification who are undertaking pre-registration, nursing, midwifery and other healthcare courses will be defined as qualifying persons and will benefit from maximum fee limits. With those explanations, I beg to move that these regulations be approved.
My Lords, I am grateful to the Minister for introducing the regulations so lucidly. He referred to the review that is taking place on student finance, which is of huge importance, of course, to students and their families and to universities. He said that the report would come in early 2019 but he said nothing more about it. I have three specific questions about the review. First, will it be publishing either an interim report or any interim statements or summaries of evidence taken? I think that could be quite useful in stimulating the public debate that needs to take place around the future of the higher education funding system.
The second point is about consultation. Which groups of students and young people are the Government consulting, because a big and controversial issue has been the failure to include young people in the review team? The one group that is not a part of the review team directly is the group of very young people and students who are directly affected by this. That is a big mistake. The right thing to do, particularly if we are to win support from the generation that is paying these fees in a reformed system, is to have some buy-in from them at the beginning. The failure to put those arrangements in place will cost the Government dear. It would be good to know what consultation is taking place with young people.
Thirdly, what polling among the public and young people is the review doing to ascertain the attitudes of the public at large to the sharing of the burdens of paying for higher education and the attitudes among young people? My view all along, having played a part in the introduction of the original scheme in 2004 but having been opposed to the trebling of tuition fees in 2010, has been that students recognise that in order to be responsible and constructive members of society, particularly in the current climate, where they are very focused on getting jobs and making their way in the world, they need to make some contribution to the higher education system, but they resent the fact that all the costs of the higher education system have been moved to the students and the graduates. Polling might bring that out and might help to establish a basis of agreement on public attitudes, which might make a burden-sharing approach possible which, to be blunt, might mean cutting the level of fees from £9,500 but not eliminating them entirely.
My party’s official position is now to eliminate fees entirely. The noble Viscount’s position is to have them at £9,500. There is quite a big space between zero and £9,500. Being, as ever, moderate and constructive, I am quite keen that we come in somewhere in the middle of that space. That might be sustainable among the public, rather than doing what I fear may happen, which is lurching from a very high level of fees by international standards to no fees at all.
Finally, when I read the debate in the House of Commons Delegated Legislation Committee on these regulations, the Minister for Higher Education said that he was conducting a listening tour around the country. I am strongly in favour of listening tours; I wish the Government would conduct them on many other issues, too, including Brexit, but that is for a later debate. However, he gives an extraordinary figure for the number of students he has met, which I am hugely impressed by. He said that on his listening tour so far he has met more than 1,500 students. I am not sure whether those 1,500 have been in the hall with him as he has been going around or whether he has personally conducted conversations with them.
I would be very grateful if the noble Viscount could tell us whether he has any findings from the Minister’s listening tour or whether the Minister might publish findings from his tour when he has finished it, because knowing that he has conducted a listening tour but not knowing what he has heard is not of great use to Parliament when we come to consider these significant student finance and funding issues after the review reports in the early part of next year.
My Lords, building on the reviews by the noble Lord, Lord Adonis, can the Minister say what progress the Government have made in appointing the independent reviewer of the teaching excellence framework? I can only apologise if I have missed the announcement somewhere along the line.
What assurances can the Government give that the independent reviewer of the teaching excellence framework will be a genuine exercise that influences the future design of the scheme? We would oppose any attempts to link tuition fee rises to the quality of teaching as determined by the TEF, which we maintain has flawed metrics, several of which have nothing to do with teaching.
Have the Government considered replacing fees with a graduate tax? This statutory instrument makes no attempt to find a solution to the position set out in the recent Economic Affairs Committee report, which estimates that in 30 years’ time the Government will have to find:
“an extra £8.4 billion to cover expected losses on the 2017/18 student loans”.
Does the Minister have any comment on the immense debt with which the current scheme is burdening future generations?
We are pleased to see in these regulations that the Erasmus year continues to be mentioned. Can the Minister give us any further assurance on government plans to ensure that we continue to be part of Erasmus, whether or not we leave the EU? It is a programme that brings great benefits to participants and to the economy, as students return with a more significant skill set to offer to employers. Does the Minister have any certainty to offer us on Erasmus?
We continue to be concerned about the changes to nursing funding, and would strongly support reinstating student bursaries. It is good to read here about the exemptions on equivalent and lower qualifications for health professionals. Might that lead to a wider exemption for ELQs in other areas? As we know, loss of ELQ funding is one of the key factors in the disastrous decline in adult education, and we would welcome some good news on that front.
Will the Government carefully monitor the effect on nurse recruitment and retention of the recent changes to funding? We note that the number of applicants to undergraduate nursing courses in the year after the abolition of bursaries was announced fell by 11,750—a reduction of 18%. This compounds the existing shortage of nurses in the UK. Almost every hospital is dangerously short of nurses, and the Royal College of Nursing estimates that there are 40,000 nursing vacancies across the health and social care sectors. That shortage will only worsen if nurses cannot be easily recruited from the EU. I hope the Minister can offer some reassurances on those various aspects.
My Lords, may I add something from a university perspective? I declare an interest as chair of the council of Lancaster University. I welcome the fact that the £9,250 maximum fee is being extended for another year—although of course that has denied to universities for the past two years the inflation increase that they were promised.
The review is necessary given the political climate surrounding fees, and the Government have to take into account the risky financial situation now facing the university sector. Any significant cut in fees would have a big impact on the excellence of our universities, unless it were wholly made up for by an increase in teaching grant. I ask the noble Viscount whether he is in any position to offer the sector any assurance that any cut in fees would be made up for by an increase in teaching grant. If it is not, there will be consequences, particularly for universities like mine, which has ambitious plans for expansion, and also, for a leading academic institution, has one of the best rates of state school pupils and people from deprived backgrounds in the country. We are good on equity as well as excellence, and the possibility is a real cloud over our financial prospects for the future.
One of the issues the Government have to address is that if there is a significant cut in fees following the review and there is no increase in teaching grant, one of the areas that universities are bound to look at is the money set aside for widening participation. At the moment we give a lot of bursaries to poor students. I have met many students at Lancaster who say that the reason why they came there was that we could offer them a £1,000 bursary. With the withdrawal of the means-tested maintenance grant, this has become very significant. I hope that the Government are considering bringing back a means-tested maintenance grant, but the real point I want to make is that these regulations give universities financial certainty for only an additional year. The future prospect is very clouded. Universities need more certainty if they are to be one of the starring sectors of the British economy, as they have been for the last 20 years.
My Lords, I thank the Minister for introducing and moving these regulations. He will not be surprised to hear me say that we accept they are necessary, because we want to ensure that higher education providers do not have the ability to charge fees in excess of the level of £9,250 set out in the regulations. I make those comments bearing in mind those just made by my noble friend Lord Liddle. We also welcome the fact that the regulations have the effect of freezing fees for a second year although, given the level at which they are set, we believe that is the bare minimum the Government could have done to alleviate the burden on students, until 2020 at least.
Of course, these regulations do not take account of the provisions of the Higher Education and Research Act 2017, which will see different levels of fees across the sector following the introduction of the teaching excellence framework. I imagine those provisions would have been brought into force via these regulations had it not been for the fact that, in the wash-up prior to the snap election, Labour forced the then Government to concede that there would be a review of the TEF. It had been one of the most controversial parts of a Bill which, it is fair to say, was no stranger to controversy.
When these regulations were discussed in another place last week, my Front-Bench colleague Gordon Marsden MP asked the Minister of State for Universities, Science, Research and Innovation—a title which, I imagine, must be challenging to fit on a business card—for a progress report on the appointment of the independent person who will be in charge of the review. That elicited the response that,
“an announcement will be made in due course”—[Official Report, Commons, Second Delegated Legislation Committee, 16/7/18; col. 8]—
the catch-all phraseology used when the Government do not really know quite what is happening or when anything actually will. I say to the Minister that if someone, somewhere within the DfE does not inject some urgency to the process then the introduction of the TEF will not fall within the planned timeframe. I think he will share my view that it was always going to be a challenge to gain the agreement of all those involved.
The TEF was intended to address the failure of the 2012 reforms to create a market among universities. The recent report by the Economic Affairs Committee of your Lordships’ House noted that there was,
“little evidence to suggest that the higher education sector is suitable or amenable to market regulation”.
The committee went on to say that the TEF,
“will not impose sufficient discipline on the sector to ensure the quality of the ever-increasing provision of undergraduate degrees”,
“Risk is borne almost entirely by students and taxpayers rather than the institutions”.
Further criticism has emanated from the Public Accounts Committee, which has characterised the student loan system as economically unsustainable and damaging to social mobility.
The Minister will know that I believe strongly that those hardest hit by the 2012 funding changes have been in the part-time and distance-learning sector. I have raised this issue on various occasions in debates, most recently last week when we considered the export value of higher education. The noble Baroness, Lady Garden, has just mentioned adult education. The numbers of part-time students in England have dropped by almost two-thirds in the last six years, while those who have been most deterred from study by the trebling of tuition fees are not 18 year-olds entering full-time higher education but older, especially disadvantaged, students. It is beyond doubt that the main factor in that decline is tuition fees because the scale of the decline in England, where fees are much higher, is 2.5 times greater than in the rest of the UK. The Sutton Trust has reported that the biggest decrease in part-time students has been in the 30 to 49 age group, which is of course prime working age. These regulations are silent on that issue.
In a debate on lifelong learning in April, the Minister said that the post-18 funding review, to which various noble Lords have referred, would look at how we can encourage flexible and part-time learning. We await the details with interest. Hopefully, they will emerge when the interim report to which he referred is published in the autumn.
The introduction of full-time equivalent maintenance loans in the coming academic year will provide some financial support to part-time students, although their family circumstances often starkly differ from those of the typical full-time student. Any changes resulting from the post-18 review will not come into effect for at least three years. Can the Minister point to any further government initiative in the interim that could encourage the reversal of the decline in part-time and distance learning?
I could have introduced the thorny topic of student debt but I think I shall leave that for another day. It is important, though, that the Minister does not gain the impression that, while we are content with these regulations, we are also content with the overall structure and distribution of funding in the post-school education sector. The report of the Economic Affairs Committee, to which I referred earlier, characterised it as “unfair and inefficient”. That is a conclusion with which we on these Benches wholeheartedly agree.
I thank noble Lords for their broad support of the regulations, but I shall pick up on the words mentioned by the noble Lord, Lord Watson. There are some issues circling around; he will be aware of that. Most of the questions focused on the future of fees and I shall spend most of my remarks focusing on the 18-plus review, which was raised initially by the noble Lord, Lord Adonis. I shall give as much information as I can on this important review.
The questions raised by the noble Lord, Lord Adonis, focused on whether there will be an interim report, consultation and polling, which was an interesting question. I think he was asking whether it would be a good thing to poll young people to ascertain their views. That is noted, but I reassure him that part of the extensive programme of engagement with stakeholders and experts includes students and recent graduates, and that is ongoing as part of the review. I shall give a little more information on this.
Noble Lords will know that this review was announced by the Prime Minister on 19 February. It is a major review across post-18 education looking at funding. We want to ensure that there is a joined-up system that works for everyone and is accessible for all. The review will ensure, as an overarching principle, that the system gives everyone a genuine choice between high-quality technical, vocational and academic routes. Students and taxpayers must get value for money and employers must be able to access the skilled workforce they need. Above all, we are also looking at the student experience. We must have a system whereby students go to university and come out feeling that they have had a good experience and have a good degree.
The review is being informed by independent advice. I must stress the independence of this review, so I may not be able to answer some of the questions directly because the review is independent. It is chaired by Philip Augar and one of our colleagues, the noble Baroness, Lady Wolf, is on the panel. There are five leading figures from across the post-18 education and business worlds. There is extensive engagement going on. I reassure the noble Lord and the House that there will be an interim review. I do not have a particular date in mind, but my understanding is—and I will write to noble Lords if I am wrong—that the interim review will come out some time this year. The actual review will come some time early in 2019 and after that there will be a response from the Government.
Does this review cover the whole of the United Kingdom, a point that is perhaps particularly relevant in view of the earlier comments by the noble Lord, Lord Adonis, about Northern Ireland? It would be good to know whether the entire country is included.
I am sorry to interrupt the noble Viscount, but the situation of Northern Ireland is therefore very serious because there is no other means of conducting a review or introducing changes in the current climate. When the review was set up, it looked as if the Northern Ireland Executive might be re-established. That has not happened. Is he in a position to inform the House further about the Government’s attitude in respect of Northern Ireland?
I think I will add that to the letter that I will write to the noble Lord specifically about Northern Ireland. I remember what he said in the previous debate.
The noble Baroness, Lady Garden, and the noble Lord, Lord Watson, asked about progress in appointing an independent reviewer of the TEF. The recruitment of the independent reviewer is under way and an announcement will be made in due course. I have taken note of the comments the noble Baroness made about the TEF and the feelings that were expressed in this House about it last year. If they have not gone away, it is an issue that will be addressed.
I reassure the House that this is a devolved matter—this is going back to the question raised by the noble Lord, Lord Adonis. The review covers England alone, but it comes back to the point that I was making that I will write to him about matters relating to Northern Ireland.
The noble Baroness, Lady Garden, asked whether we can continue to take part in Erasmus. An announcement on the Erasmus programme will be made in due course, particularly to take account of the planning needs of students and universities.
The noble Baroness, Lady Garden, also asked about ELQ exemptions and part-time study. The ELQ rules have been relaxed to support students who already hold an honours degree qualification and who wish to retrain on a part-time basis in a STEM subject. The review of post-18 education and funding will look at how we can encourage learning that is more flexible. This takes account of comments that I made in a recent debate on this important subject, particularly relating to the Open University.
The noble Lord, Lord Watson, and the noble Baroness, Lady Garden, asked about the decrease in part-time study, particularly in the 30 to 49 age group. In this academic year, part-time students will, for the first time ever, be able to access full-time equivalent maintenance loans, as I think the House will be aware.
The noble Lord, Lord Liddle, raised some interesting points about the perspective from universities, and I took note of what he said regarding Lancaster University. It is a fair point, because if fees are capped, less money goes to universities. We are obviously aware of that and will take account of it as part of the 18-plus review. It is part of the overall view of how the future of tuition fees will pan out. That includes the points he made about the means-tested maintenance grant.
My final point is aimed to address something said by the noble Lord, Lord Adonis. He was talking about a range of where tuition fees might be from £0 to £9,250. I took it that the £0 meant that it was still Labour Party policy that, if it were ever to come into government, it would offer free education to students.
Higher Education and Research Act 2017 (Cooperation and Information Sharing) Regulations 2018
Motion to Regret
That this House regrets that the Higher Education and Research Act 2017 (Cooperation and Information Sharing) Regulations 2018 create significant powers for the Office for Students to grant access to students’ confidential data to a single commercial provider, and calls on Her Majesty’s Government to carry out a privacy impact assessment on the Regulations (SI 2018/607).
My Lords, I welcome the opportunity to draw the regulations to the attention of the House, although it is unfortunate, to say the least, that this debate is taking place five weeks after they came into force. However, there is greater cause for concern because, without consultation or public announcement, this negative statutory instrument was laid on 23 May, less than three weeks before coming into effect, with one of those weeks being taken up by the Whitsun Recess. Perhaps the noble Viscount can explain why such timing was employed by the Government, rather than exposing the regulations to proper scrutiny both in Parliament and more widely.
The regulations have caused considerable concern in respect of the significant powers that they create for the Office for Students to grant access to students’ confidential data to a single commercial provider. Further, it has to be said that the Explanatory Memorandum does not do what it says on the tin, because the purposes for which the data may be used remain open and vague.
We have a number of concerns, not least that, as I said, there has been no parliamentary debate or public consultation. It almost beggars belief that students and universities, those directly involved, were excluded from the decision to create these invasive powers. Last month, in a Written Question, my Front Bench colleague Gordon Marsden MP asked whether the Department for Education had consulted universities, student bodies or UCAS on the powers relating to confidential data conferred under the regulations. He did not receive a suitable answer, so he tried again when the regulations were debated in another place three weeks ago. This time, the Minister, Mr Gyimah, admitted:
“No specific contact was made with UCAS and the NUS”,
“but the OFS regulatory framework consultation asked the sector for views on the principles of how the OFS engages with other bodies”.—[Official Report, Commons, First Delegated Legislation Committee, 2/7/18; col. 10.]
Of 37,000 students who responded to a UCAS survey in 2015, 90% said that they did not want their data to be handed to commercial companies without their consent, yet the Government ignored that decisive view.
The Minister will recall that significant concern was raised during the passage of the Higher Education and Research Bill in another place. Indeed, Mr Marsden warned of the risk, stating that the proposal,
“would give the state access to all university applicants’ full data in perpetuity for users who would only be defined as ‘researchers’ and without ‘research’ being defined at all.—[Official Report, Commons, 2/7/18; col. 4.]
UCAS also raised the risks and concerns in evidence at that time. The then universities Minister, Jo Johnson MP, responded:
“Only named and approved individual researchers within Government and from approved bodies will have access to the data. All data will be de-identified before being received by these accredited researchers”.—[Official Report, Commons, 13/10/16; col. 457.]
I can say with some certainty that neither Members of both Houses nor the general public would have inferred from that comment by the Minister that the commercial company, Pearson, would fall into the category of accredited researchers. Yet, it is specifically named in the regulations and indeed, it provides powers for the data to be passed to an unlimited number of persons not named and approved individual researchers.
As the campaign group Defenddigitalme has argued in submissions to noble Lords and MPs, the power to shape the education sector and course content derived from the knowledge that this kind of data holds about students’ personal backgrounds, their own and their parents’ income, courses, attainment and ongoing activity, will give the holder unprecedented influence.
In January 2017, during a debate in your Lordships’ House on the Higher Education and Research Bill, the noble Lord, Lord Kerslake, highlighted his concern at the fact that,
“the Bill allows the Secretary of State to frame the guidance given to the OfS by reference to particular courses. As this House will know, that contrasts sharply with the current legislation—the 1992 Act—in which the Secretary of State is specifically forbidden from setting guidance to HEFCE in this way”.—[Official Report, 9/1/17; col. 1802.]
It is unclear in the Explanatory Memorandum why Pearson was the most prominent of the designated receiving bodies, although the debate in another place on 2 July revealed that the company was included because it awards HNC and HND qualifications. That hardly makes it unique, and there is no transparency regarding the detailed purposes for which this data will be passed to Pearson, HMRC, the Student Loans Company or indeed others.
There is no clear limitation of purpose or restriction on how the data may be used or distributed further after being handed over to Pearson. Risks include Pearson selling the data directly or as part of a company asset, as that company has done in the past in the USA, with the data of 15 million students. The knowledge gained from the data must give any single company—in this case, Pearson Ltd—a sizeable and some would say unfair commercial competitive advantage over others in the sector. Can the Minister say whether Pearson, or indeed other commercial organisations, will be allowed to sell on the student data that they are given under these regulations? I hope the answer will be in the negative, but if it is not then will the Minister explain to noble Lords why he thinks such action would be appropriate?
The General Data Protection Regulation recognises that any data that is not anonymous, including de-identified or pseudonymous data, is still personal data and falls under its obligations. But there is no assurance that no historical data would be handed over, collected without explanation to the applicants or students, or that personal data would be given to Pearson and the other new bodies in future. Such processing of historical personal data could therefore be without a lawful basis, given the failure to fairly process it during its original collection.
During the passage of the Higher Education and Research Bill, noble Lords and MPs raised concerns about the powers in the regulatory function of the Office for Students and questions of institutional autonomy. Legitimate questions arise as to the powers that these regulations confer on the relationship between the OfS and Pearson, given the former’s regulatory function. The appointment of Sir Michael Barber as the chair of the OfS was widely welcomed and there is no intention to impugn his reputation in any way. However, there exists at least the potential for a perceived conflict of interest, given that prior to taking up his new post, Sir Michael had been chief education adviser at Pearson for more than five years.
We believe that it is a significant weakness in the preparations for these regulations that the DfE has not carried out any privacy impact or human rights assessments. The department will not be accountable for the consequent impact on privacy, but the Explanatory Memorandum states that the OfS has the responsibility for any privacy impact assessment. This presumably refers to the privacy impact of individual instances of information-sharing, and that is both perfectly understandable and reasonable.
But I am referring to the bigger picture, to the whole system of data sharing. It is surely irresponsible for a government department to create powers and bring them into operation before fully understanding their likely effects. Creating rights of access to the entire student population’s personal confidential data for Pearson Ltd, as well as other listed third parties, is an act of national significance with potential long-term implications for individuals and the sector as a whole. Once personal data has been transferred to commercial bodies such as Pearson, the state and civil society lose oversight and transparency, together with the right to question policy and practice over its processing, yet the DfE does not believe it should be questioning these implications. Perhaps the Minister can explain why not.
This motion calls on the Government to carry out a privacy impact assessment of these regulations. If the Government believe that it is for the OfS to carry out such an assessment, so be it, but they must ensure that the OfS does so because, despite these regulations being in force for more than a month, there are too many unanswered questions surrounding them, and that is not acceptable. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Watson of Invergowrie, for bringing this Motion forward. I completely share his disquiet at the way in which these regulations have been framed. I am grateful to the Minister—his department has been in helpful correspondence with me since—but the fundamental problem is in the drafting. The idea that data should be given to a commercial company, one so much at the centre of education as Pearson, for purposes connected to its memorandum and articles—which are written, as you would expect, to allow Pearson to do anything; there are not even any restrictions on illegality, as is conventional—is a fundamental defect in the drafting of the regulations.
There are some good precedents that could have been followed. The one I like, because I know it best, is Schedule 1 to the Freedom of Information Act. Typical expressions might be:
“The Competition and Markets Authority, in respect of information held otherwise than as a tribunal”,
“Any person providing local pharmaceutical services … in respect of information relating to the provision of those services”.
My understanding from the Department for Education is that, actually, Pearson’s requirement to be given information is very limited. It is only in respect of a minor part of Pearson’s activities and then not regularly, but only if a problem occurs. That could easily have been set out in these regulations, so that it is clear in what circumstances Pearson could be given information, but it has been stated in the broadest possible terms and quite rightly raised a lot of alarm in people who care about the privacy of information and the privileging of a particular commercial enterprise.
The fault at the root of this is bad drafting and I very much hope that the Minister says that this will not happen again, that we will not use this wide phraseology again, and that the Government recognise that it is entirely inappropriate that they have used it. Given that they have, the Government are relying on data-sharing agreements to protect the data against misuse. Those data-sharing agreements are, naturally, not entirely public documents because, to some extent, they are commercial documents and commercial in confidence. Since they are so central in this case to the protection of public and individuals’ information, I hope that my noble friend confirms that all these data-sharing agreements will be made public, redacted if necessary to remove commercial things but so that we can see exactly how explicit and proportionate they are; that the information that is being released is clearly and fully described, so that we can understand that, in practice, the way the department is behaving is something we can live with; and that the department publishes information on what data releases have been going on, so that we can pick up that we need to take an interest in the data-sharing agreements.
This is a very unsatisfactory situation that we have got ourselves into. From my conversations with the department, I think that we will be able to put on an adequate sticking plaster in this case—but I really hope that it is something that we do not do again.
My Lords, I agree with almost every word that the noble Lord, Lord Lucas, has said. My noble friend Lord Watson is to be commended for pursuing this issue with terrier-like commitment. Having now read the debates in the House of Commons, I can say that the gravity of the issues is extremely serious. My one point of difference with the noble Lord, Lord Lucas, is that he said we should learn lessons for the future. We are a Parliament and these are regulations going through Parliament. If we are deeply unhappy with them, on something as fundamental as the sharing of individuals’ data, my view is that we should not agree the regulations. The regulations should be redrafted and the Government should be required to resubmit them, and we should not pass them until they have gone through the process again of being examined by the Delegated Powers and Regulatory Reform Committee and we are satisfied that there is no significant invasion of people’s individual liberty taking place.
I cannot think of a good reason why we would not do that, except for the fact that we are always steamrollered in these things. We are debating this in what may be—I should not give away my negotiating position—the final moments of the sitting of the House before the summer. But it need not be like that. I do not know whether my noble friend Lord Watson is thinking of pressing this to a vote, but there is a very strong case for him to do so—not just because of the gravity of the issues at stake but to send a very clear message to the Government that we are not prepared as a Parliament to be treated like this when we are representing the people on something as fundamental as data.
The issues that the noble Lord raised are extremely serious. Pearson is the largest single commercial education provider in the country, and these regulations give the Government unfettered power to share data with it. The explanation given by the Minister for Higher Education in the House of Commons was that it would be in respect of HNDs and HNCs where it was believed that illegality was taking place. But that is not codified anywhere in the regulations. As the noble Lord, Lord Lucas, said, the data-sharing agreement is not published, and I understand that it is not even finalised yet—although perhaps the Minister could tell us that in his remarks. That is a completely unsatisfactory situation.
Pearson has huge potential commercial interests in this information. What guarantees do the Government have about Chinese walls operating inside Pearson? What guarantees is he in a position to give to Parliament for us to give to students that their data will not be shared with an organisation that is then going to start trying to sell them other services or use it to target them for promotional activities—or any range of activities that could take place under this?
On sharing, the Minister for Higher Education in the other place said:
“On students’ right to know”—
this is where students will actually be informed that their data is being shared with other bodies, so it is about whether they even know, let alone consent—
“the OFS will tell them before it shares data, where appropriate”.—[Official Report, Commons, 2/7/18; col. 10.]
What does “where appropriate” mean? This is the crucial thing. Where would it conceivably be appropriate for the Office for Students not to consult students on the sharing of their data with other bodies? That includes public sector bodies. There is big concern about how the Department for Education has been sharing information with the immigration control agencies, which I am informed has apparently been part of the hostile environment. This information has been shared in respect of school governors and, indeed, children, from other databases held in the Department for Education. So it is absolutely essential that students know where their data is being shared. My own view—and I do not think that this is too demanding—is that they should be required to give their consent to the sharing of that information. I see very big scandals coming down the line if that does not take place.
I have two other points. Could the noble Viscount tell the House why these regulations took effect before they were approved by Parliament? I understand that it was because it was done under the negative procedure. However, commitments were given in debates during the passage of what the Higher Education and Research Bill, which many of us spent many hours taking part in, that because of the significance of the issues at stake here, this would be done under the affirmative procedure. I see all kinds of precedents for this on the raft of regulations that will come our way when the noble Lord, Lord Callanan, gets going on transposing the European legislation into the British statute book. If the procedures that have taken place on these three regulations are replicated elsewhere, there will be major breaches of parliamentary oversight.
It is also immensely concerning that student bodies, including the National Union of Students, were not consulted in the construction of these regulations. That became clear in the debate in the House of Commons. The Government tried to elide that fact by saying that they are in regular consultation with them—but they were not consulted. The National Union of Students has formally protested to the Government about the fact that it was not consulted on these data-sharing regulations, which will have an immense impact on students and young people.
This is a sorry tale. Every word the noble Lord, Lord Lucas, and my noble friend Lord Watson said is valid in this case. I do not believe that Parliament should consent to these regulations in their current form. A major scandal could come down the line from them, and if my noble friend is minded to push this matter to a vote, I shall certainly vote with him.
My Lords, we on these Benches share the concerns expressed by the noble Lord, Lord Watson, and so eloquently expressed by the noble Lords, Lord Adonis and Lord Lucas. Will the Minister say what data the OfS is likely to share with Pearson? We note that Pearson is the only for-profit organisation on the list; the others are public bodies or registered charities. What is the commercial value of the data that it will be sharing, and will the OfS be charging the awarding bodies for access to this commercially sensitive data?
To pick up on the concerns expressed by the noble Lord, Lord Adonis, will data by which students can be individually identified be sent to the OfS by awarding bodies, and, if so, how will the consent of students to this transfer of data be obtained? It is surely important that that should happen. In summary, how will the OfS comply with the Data Protection Act in this, and can the Minister offer us any reassurances on these very disturbing aspects?
My Lords, I thank the noble Lord, Lord Watson, for tabling this Motion. The noble Lord has raised concerns that these regulations create significant powers for the Office for Students to grant access to students’ confidential data to a single commercial provider. He also calls on Her Majesty’s Government to carry out a privacy impact assessment on the regulations. Before addressing the noble Lord’s concerns, I reassure noble Lords that these regulations are very much in the interests of students and taxpayers. They enable the OfS to work appropriately with other bodies to address any potential wrongdoing or concerns about quality, students’ experience, and the management and governance of the higher education system. These regulations are essential for the OfS to do its job well, and will be accompanied by strong safeguards around data protection and privacy.
The noble Lord, Lord Watson, asked about the timing of the laying of these regulations and proper scrutiny. I reassure him that these regulations are absolutely subject to proper scrutiny, as is any other statutory instrument laid under the negative procedure. They are important to the OfS being able to operate effectively as a regulator.
I thank the Minister for that answer, but it does not get to the root of the problem. He talks of scrutiny, but the point is that these regulations came into force some five weeks ago. How does that square with scrutiny? It does not with me.
They have gone through the scrutiny procedure, as mentioned.
Let me continue. These regulations and the enabling primary legislation provide greater protection, scrutiny and control over information sharing than before. The regulations replicate, and in some cases improve on, the arrangements that HEFCE, OFFA and the DfE had in place for sharing information with other bodies. As HEFCE’s and OFFA’s enabling legislation did not place controls around co-operation and information sharing in the same way as the Higher Education and Research Act 2017 does for the OfS, the legal framework around information sharing has actually been strengthened. The parliamentary process for the regulations, including this very debate, also means that there is more scrutiny and oversight of the information sharing than before.
I should now like to address the concerns raised by the noble Lord, Lord Watson, in turn, starting with his question about the consultation with UCAS and universities, and, in particular, students’ concerns regarding access to their data. As the noble Lord may know, officials and Ministers have regular meetings and interactions with universities, and they work closely with UCAS. On student concerns regarding access to their data, I reiterate that personal data would be shared only if there were serious concerns and if it were necessary to share that data.
I think that it would be wise if I continued with my remarks and then, if there are further concerns, I shall be happy to listen.
First, the noble Lord, Lord Watson, referred to the “single commercial provider” within the regulations, which is Pearson Education Ltd. To reassure him and the noble Baroness, Lady Garden, I emphasise that Pearson is included in these regulations solely in its capacity as the awarding body for HND and HNC qualifications. This is in the same way as other awarding bodies have been included in the regulations—namely, the Scottish Qualifications Authority, Gateway Qualifications Company Ltd and the Vocational Training Charitable Trust.
The OfS would share with Pearson only information that related to the provision of HNDs and HNCs. For example, as happens now between the DfE and Pearson, the OfS might wish to alert Pearson to an issue around the quality of this provision or suspicions of wrongdoing relating to HND or HNC provision. This sharing would be done in the interests of students and the taxpayer. Any data sharing would be underpinned by a data-sharing agreement stating that Pearson could not use that data for any other purposes. This is just one of a range of strong safeguards and protections that will be in place, as I will set out shortly.
The noble Lord, Lord Watson, raised a question about Sir Michael Barber and his potential conflict of interest. There are already information-sharing agreements between the DfE and Pearson. Sir Michael Barber no longer works for Pearson and, in any case, he was not involved in the drafting of the regulations. Therefore, I reassure the noble Lord that there really is no conflict of interest. In addition, if it emerged in the future that the OfS wished to share information or co-operate with any other organisation not currently included in these regulations, and this was to fulfil a function of that other body, I make it clear that this would be possible only by amending the regulations.
The noble Lord, Lord Watson, and my noble friend Lord Lucas asked why Pearson is included and whether awarding the HNC and HND makes it unique. They also asked about transparency surrounding what they can do with the data. I reiterate that Pearson is included only because it owns, designs and awards HNDs and HNCs. The collaboration agreement with Pearson will be published—there is transparency. Data-sharing agreements will not be published, as they may contain commercially confidential information about the circumstances that have led to the concerns that are being shared with the other party.
The noble Lord, Lord Watson, asked whether Pearson can sell on data. The answer is: absolutely not. The information sharing will be underpinned by data-sharing agreements which will specify the purposes of the data sharing, and these purposes will not include selling data. If Pearson did so, it would be in breach of the data-sharing agreement and subject to sanctions by the Information Commissioner—a serious matter.
The noble Lord, Lord Watson, asked about parliamentary scrutiny, and I would like to add to the words that I used. The regulations were scrutinised by the JCSI before they came into force, and there was a debate in the Commons in Committee on this very matter. The inclusion of any new body in the regulations would therefore be subject to the same parliamentary scrutiny and oversight as these regulations have received.
Secondly, the noble Lord, Lord Watson, was concerned about the sharing of students’ confidential data. Data privacy is a particularly pertinent topic in the current climate, and this is precisely why the Government have strengthened the legal framework underpinning data sharing by the OfS compared to the previous regime. I emphasise, however, that the main purpose of these regulations is to enable information sharing at a provider or course level. Personal data would be shared only if there were serious concerns—for example, around fraud or malpractice—and there was a specific need to share personal data to investigate a specific issue.
The noble Lord, Lord Watson, also raised concerns that students’ confidential information will be shared without the consent of those to whom it refers. I reassure noble Lords that any data sharing will be subject to data protection legislation. While consent is one lawful basis on which information may be shared, there are other bases for data sharing; the circumstances will dictate which is most appropriate. The OfS will always seek consent where it is appropriate to do so. However, where data sharing is to investigate wrongdoing or fraud, for example, and seeking consent would jeopardise the investigation, the OfS may rely on another lawful basis for information sharing.
In addition, I reassure noble Lords that these regulations do not oblige the OfS to share any information or to co-operate with any of the bodies in the regulations, including Pearson. They simply make this possible where appropriate. It will be for the OfS, or in some cases the Secretary of State, to decide when to do this, and this will be decided in the context of the general duties and functions of the OfS as set out in primary legislation.
I would like to go further. I reassure all noble Lords that there will be strong safeguards for any data sharing that is carried out with all bodies included in the regulations, including Pearson. For example, any information sharing will be subject to strict data protection laws governing its use, as stipulated by the primary legislation. These regulations do nothing to undermine data protection law. The OfS will also publish its collaboration agreements with other bodies online, including stating where data sharing agreements are in place.
It might happen, for example, that the OfS needs to share information with another body as part of a joint investigation. In this case, the OfS would also create a bespoke data sharing agreement. This agreement would state what data will be shared, with whom and why, on what legal basis, and how it will be processed and kept secure. This would also set out individuals’ rights in relation to their data. The OfS would only ever share data with precisely who needed to see it and only ever precisely what they needed to see to resolve the issue. A data sharing agreement is binding: if any organisation breaches this, the OfS as the data controller would stop this arrangement and, where appropriate, inform the Information Commissioner, who could then take action. Make no mistake: this would apply to every organisation in the regulations, and Pearson would be no exception to this.
I now turn to the final point from the noble Lord, Lord Watson, in which he called on Her Majesty’s Government to carry out a privacy impact assessment on the regulations. I thank the noble Lord for raising this point, because data privacy impact assessments are indeed a useful tool. Under GDPR, however, the Government are not obliged to conduct such an assessment. Furthermore, it would not be appropriate to do so. While the Government, in writing these enabling regulations, have identified the overall situations and reasons where the OfS may wish to share information, the need for a data privacy impact assessment should properly be considered by the organisation that will be sharing the data, once the specifics are known. Much of the data sharing would be in response to emerging concerns: for example, where there are suspicions of wrongdoing. It is only at this point that the nature and extent of privacy risks can be properly assessed and fully effective solutions put in place. The OfS is aware of the sensitivities around the sharing of personal data and takes its responsibilities to safeguard personal data extremely seriously. It will consider whether a data privacy impact assessment is needed, and will carry this out where appropriate, before sharing information that could impact on personal privacy.
I hope that, having put a lot of emphasis on these safeguards, I have reassured the House that data sharing—in particular with non-government bodies, including Pearson—will be undertaken in an appropriate way and for the right purpose, with strong protections in place.
My Lords, I do not believe my noble friend has answered either of the questions I posed. If the Government are content with drawing a wide power in regulations for a narrow use of personal data, we as a House should react to that by greatly strengthening our scrutiny of such secondary legislation. This got through our scrutiny without being picked up. If this is to be regular practice—if the Government do not say, “Sorry, we will not do it again”—then we must take it seriously. It is entirely inappropriate that we should draw such wide powers for such a narrow purpose when it concerns a sensitive matter.
Secondly, I heard my noble friend say that data-sharing agreements would not be published. I would be grateful if he could write to me to say how in that case we, as Parliament, can exercise proper scrutiny of the way in which data sharing is being carried out; and, secondly, how that attitude fits with the Freedom of Information Act, which I understand requires the reduction of the commercially sensitive elements of a data-sharing agreement. Surely a great deal of what is in there—particularly the detail of what kind of information is being shared and what sort of terms and conditions have been placed on it—cannot be commercially confidential in any real sense.
I take note of my noble friend’s broader points about the scrutiny of secondary legislation—I am simply taking note of that—and I will write to him on his points about data-sharing agreements and their publication. I hope that that will satisfy him.
My Lords, I thank all noble Lords who have participated in the debate. I thank the noble Lord, Lord Lucas, for his support, which I welcome, and for sharing our concern about the privacy of the information which is to be shared. I noticed that while he was characterising the fact that the Government have got this wrong he referred, I think, to the Minister saying, “Sorry, we will not do it again”. I did not hear those words, or anything that approximated to them, and there is a great likelihood that the Government will, in another setting, do something similar again. That is why we felt it appropriate to table this Motion to Regret.
The noble Lord, Lord Lucas, also referred to the bad drafting and wide phraseology. I concur with him—it is a part of the hole that the Government have dug for themselves.
I appreciate the support of my noble friend Lord Adonis, who spoke about the significant invasion of people’s liberty, which we believe this is. Our doubts are not assuaged by the Minister’s comments that these regulations will be in the interests of students. He mentioned the issue of quality—we will give him that—but that is not what we are talking about today; we are talking about privacy. I welcome two points made by the Minister. He said that the collaboration agreement with Pearson will be published and that Pearson will be prohibited from selling data that students have given it, as we know it did in the USA.
I have to come back to the Minister on the question of scrutiny. He maintains that this SI has been scrutinised adequately. However, it is all about timing. Yes, the JCSI looked at it, as it does, and the noble Viscount mentioned a debate in the House of Commons. However, that debate took place on 2 July and these regulations came into force on 18 June. I do not call that scrutiny by any standards and it is disingenuous to suggest that these regulations have been scrutinised.
The Minister also said that data sharing would conform to the data protection law. Only weeks after the Government made quite a bit about the new Data Protection Act which is supposed to give people more control over how their data is used, they are passing—I would say pushing through—regulations into law that could ride roughshod over students’ data rights, a point we have heard being made by many noble Lords. There is an inconsistency and a disconnect in this which I do not think the noble Viscount has dealt with.
I was rather surprised when the Minister went on to say that the OfS is not obliged to share data. I do not think that any suggestion was made that it is obliged to do so, but the fact that it is merely possible when appropriate is the issue. The sharing of information, including personal details, will clearly take place at some point, but of course the unknown is how often, in what circumstances and what information will be involved. I suggest that many students and their families will be uneasy and I doubt whether their fears will be assuaged by the statement made by the noble Viscount that the regulations will provide greater protection with more security control and transparency than has been the case in the past. That is certainly not the impression which noble Lords have gained in this debate.
It is interesting to note that the Benches opposite have filled up in the past 10 minutes or so, perhaps in anticipation of the denouement of this debate. I have to disappoint them because while I would like to press this issue, given how the debate has unfolded, and although we remain concerned about the lack of adequate assessment of the impact on privacy for those whose data will be made available under these regulations, at this point we will monitor their effect in the immediate period following. I am sure that noble Lords can read between the lines and for now I beg leave to withdraw the Motion standing in my name.
Brexit: Legislating for the Withdrawal Agreement
My Lords, I shall now repeat a Statement made in the other place. The Statement is as follows:
“With permission, Mr Speaker, I would like to make a Statement on the White Paper which has been published today, setting out the Government’s plans for legislating for the withdrawal agreement and implementation period.
On Friday 29 March 2019, the UK will leave the European Union, giving effect to the historic decision taken by the British people in the 2016 referendum. The Government are committed to delivering a smooth and orderly Brexit. That is why we have already passed the EU withdrawal Act through Parliament to ensure that our statute book functions after exit, whatever the outcome of the negotiations. I am grateful to this House and the other place for the many hours of scrutiny devoted to that vital piece of legislation. We are now embarking on the next step in the process of delivering a smooth Brexit for people and businesses.
Since June last year, the UK has been negotiating with the EU to decide on the terms of our withdrawal. We have made substantial progress: protecting the rights of EU citizens in the UK and UK citizens in the EU; deciding the terms of the financial settlement; and agreeing a strictly time-limited implementation period. Most of the withdrawal agreement, around 80%, has now been agreed with our EU partners, and we have isolated the outstanding issues for further focused negotiation. I will be meeting Michel Barnier again on Thursday to take forward the negotiations at this critical time. We have already agreed a financial settlement, estimated at £35 billion to £39 billion, well below the figures being bandied around by some when we started this negotiation.
The implementation period agreed is finite and allows for the negotiation and conclusion of free trade deals. Many of these arrangements will require new domestic legislation to deliver them in UK law. That is why, last November, we announced our intention to bring forward a new piece of primary legislation to implement the withdrawal agreement in UK law. Today, we are publishing a White Paper setting out our proposals for this important legislation, which will be introduced once the negotiations have concluded and Parliament has approved the final deal. Our expectation is to reach agreement in October. Under the terms of the EU withdrawal Act, Parliament will then have its say on the final deal. If approved, we will bring forward this legislation so that it can be in place for when we leave the EU on 29 March 2019.
In setting out our proposals today, we are giving Parliament the opportunity to scrutinise the plans well ahead of the Bill’s introduction, given the need to enact the legislation in the time available and mindful of the importance of maximum scrutiny in this House. By publishing the White Paper today, the Government are providing further certainty to people and businesses here in the UK and across the EU. It also sends a clear signal to the European Union that the United Kingdom is a reliable and dependable negotiating partner, delivering on the commitments that it has made across the negotiating table.
Of course, while we are making good progress, discussions are still ongoing in various areas. This means that some parts of the Bill will become clearer only as we settle the remaining parts of the withdrawal agreement. In the light of that, the White Paper we have published today focuses on those parts of the withdrawal agreement where the text has already been agreed. Let me take them in turn.
The UK’s first priority in negotiating its withdrawal from the EU was to reach agreement on the rights of our citizens. That includes the 3.5 million EU citizens who live in the UK, who are valued members of their communities and play an integral part in the life of this country. Likewise, the approximately 1 million UK nationals who currently live in the EU are equally valued by their host countries and communities”.
Excuse me, my Lords. I have a Theresa May cough.
“The agreement reached on citizens’ rights will allow EU citizens in the UK, and UK nationals in the EU, to live their lives broadly as they do now and will enable families who have built their lives in the EU and the UK to stay together. The most important next step will be to provide a continued right of residence for those citizens. EU citizens lawfully residing in the UK on 31 December 2020 will be able to stay.
This month, the Home Office published further details about how EU citizens and their families can obtain settled status in the UK. That statement confirms that the settlement scheme will be simple and straightforward for EU citizens and their families to secure their long-term status in the United Kingdom. This Bill will ensure that EU citizens can rely on the rights set out in the withdrawal agreement and enforce them in UK courts. It will also establish an independent monitoring authority to oversee the UK’s implementation of the deal on citizens’ rights, providing further reassurance to citizens.
All EU member states must implement the agreement in full and provide certainty to UK nationals on the continent. As the Home Secretary recently stated, we now need to know more details on how each member state will fulfil their obligations and implement their side of the agreement. We will be further pressing for those details over the summer.
The next chapter of the paper deals with the strictly time-limited implementation period that the UK agreed with the EU in March. The UK will leave the EU on 29 March 2019. After this, we have agreed an implementation period that will ensure that people and businesses will have to plan for only one set of changes as we move towards our future relationship.
From 30 March 2019 until 31 December 2020, common rules will remain in place, with EU law continuing to apply, and businesses will be able to trade on the same terms as they do now. During this period we will not be a member state and we will have the flexibility we need to strike new trade deals around the world, something many argued we would not be able to achieve in the negotiations.
To legislate for the implementation period, we must ensure that the UK statute book continues to reflect the relevant provisions of EU law as they apply to the UK during this time-limited period. As the House will know, the current mechanism for bringing EU law into UK law is the European Communities Act 1972. Under the EU withdrawal Act, that Act will be repealed on 29 March 2019. Therefore, as set out in the White Paper, the EU withdrawal agreement Bill will contain a time-limited provision so that parts of the ECA are saved until 31 December 2020. These changes will ensure that our statute book functions properly throughout the implementation period, according with the agreement that we have made with the EU.
I turn to the financial settlement, the structure of which was agreed in December on the basis that it would sit alongside our future partnership.
As we have said from the start, nothing is agreed until everything is agreed. That is in keeping with Article 50 and with the guidelines given to the EU for the negotiation.
We will have a framework for our future relationship with the EU alongside the withdrawal agreement. Our approach to that future partnership is set out in our White Paper published earlier this month. There must be a firm commitment in the withdrawal agreement requiring the framework for the future relationship to be translated into legal text as soon as possible. It is one part of the whole deal that we are doing with our EU partners. Of course, if one party fails to honour its side of the overall bargain, there will be consequences for the deal as a whole, including the financial settlement. In addition, we have agreed an obligation for both parties to act in good faith throughout the application of the withdrawal agreement.
The White Paper published today explains that the EU withdrawal agreement Bill will include a standing service provision to allow the Government to meet the commitments of the financial settlement. In the interest of transparency and oversight, it also includes proposals to enhance the existing scrutiny arrangements for the payments made to the EU.
This White Paper sets out our approach to delivering the withdrawal agreement and implementation period into law. I look forward to discussing all the proposals with honourable Members across the House. It is a necessary part of our leaving the European Union and ensuring a smooth and orderly departure. It provides clarity and certainty to EU citizens living here and UK nationals abroad that their rights will be properly protected. It will enact the time-limited implementation period, giving businesses greater certainty and giving the public greater finality with respect to our relationship with the EU. It provides for the appropriate means of paying for the financial settlement.
Above all, with 80% of the withdrawal agreement settled with our EU friends, this White Paper is another key milestone on the United Kingdom’s path to leaving the EU. I commend this Statement to the House”.
My Lords, that concludes the Statement.