House of Lords
Thursday 19 November 2020
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Salisbury.
Introduction: Lord Bellingham
Sir Henry Campbell Bellingham, Knight, having been created Baron Bellingham, of Congham in the County of Norfolk, was introduced and took the oath, supported by Lord Glenarthur and Lord Garnier, and signed an undertaking to abide by the Code of Conduct.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber and others are participating remotely. All Members will be treated equally. If the capacity of the Chamber is exceeded, I will immediately adjourn the House. Oral Questions will now commence. Please can those asking supplementary questions keep them to no longer than 30 seconds and confined to two points? I also ask that Ministers are brief in their answers.
Face-to-Face Medical Appointments
My Lords, face-to-face GP appointments increased from 10 million in August to 15 million in September. I should like to take this moment to thank those who have worked hard to restart primary care and serve patients in difficult circumstances. But I should also flag that the proportion of consultations by phone and video is currently running at around 40% and, for many people, this represents a safe, convenient, low-stress, low-cost and hygienic way to get the clinical engagement they need.
My Lords, I thank the Minister for his response and note that public trust in the Government is not rising at the moment, and that many people feel that the absence of effort to get medical practice back to normal is a contributory factor in this. Will the department make it a priority to get face-to-face appointments back to the level that they were before? If it cannot, the Government will find that trust declines even further.
My Lords, I thank my noble friend for his comments and reassure him that the Government are absolutely focused on the restart programme. The chief executive of the NHS has written to GPs, emphasising the absolute and primary importance of face-to-face appointments, for exactly the reasons that my noble friend knows full well. I also emphasise the enormous response that we have had from the public, and that we are meeting exacting targets for those face-to-face meetings. I also emphasise that new technologies and techniques have been very much welcomed by the public. Telemedicine, and telephone and video consultations, have proved to be extremely popular and helped to increase the number of appointments last month compared with this time last year.
My Lords, nearly three-quarters of GP consultations at the peak of the pandemic were conducted by telephone or video call. A BMA survey in June found that nine in 10 GPs want to continue to deliver consultations remotely, once the pandemic has ended. Many people are reluctant to discuss their symptoms in this way, or cannot access the necessary technology, and often diagnoses are not possible without a physical examination. Is the Minister happy with such a change? What guidance does the department intend to give on this, and will the GP contract be reviewed to reflect what is happening?
The noble Lord is entirely right. Without doubt, there are very many circumstances in which a face-to-face appointment is absolutely necessary, whether that is for a physical analysis, for the comfort of the patient or to check out other symptoms that may not be apparent from a telephone call. However, there are other people for whom telephone appointments are helpful. The Royal College of Physicians found that 20% of patients over 65 felt worse after an in-person appointment because of the stress involved. But the noble Lord is entirely right that guidelines do need to be evolved in order to reflect the changes, and there may be a moment when the GP contract needs to be revisited.
Iceland has better survival rates for strokes by using telemedicine for decisions in acute care on thrombolysis. Will the Government not take this opportunity to move primary care far more into the modern era by encouraging a far greater use of telemedicine, and not simply hark back to the past as we learn from the experiences of Covid?
The noble Lord makes an incredibly interesting parallel with Iceland. It is not one that I knew, but I will take care to look into it, because it is instructive and informative. He is right to say that Covid has demonstrated the power of telemedicine, and we are keen to learn that lesson. We do not want the elastic band of old practice to snap back to where it was before. To reflect the words of a noble Lord who spoke previously, there will be occasions when tele- medicine is right. The key is getting the blend correct and ensuring that the right format is used in the right circumstances.
I quite accept that there is a role for telemedicine, but an accurate diagnosis in cases of serious disease and illness is dependent not just on the questions that the doctor asks and the observations he makes but on the ability of the patient to give accurate information. I will give the example from my family in the past few months of antibiotics prescribed for a “lung infection” that was actually a fatal pulmonary embolism. Getting that mix right is not easy; there are very many shades of grey.
My noble friend makes a very good point. Diagnosis is phenomenally difficult and, quite often, patients who present with seemingly one condition have something altogether different. It may be that a face-to-face appointment will be the moment when that difference is spotted and caught. She is entirely right to say that we cannot omit that format for the right circumstances, but a great many patients see their GPs very regularly. Their journeys may be onerous, uncomfortable and stressful, and telemedicine might offer them an alternative opportunity. There are others for whom speed is of the essence, and having telemedicine, particularly when it is supported by apps that provide essential information about their condition, can be an important and urgent alternative.
My Lords, according to the June edition of the British Medical Journal, the biggest change for mental health services has been the rapid adoption of video and phone consultations, an approach that had rarely been used in a field where relationships and trust between clinicians and patients are vital and where body language and eye contact are often a key part of the assessment. Many in the sector have reported that virtual appointments are at best inferior, particularly with young people, those with learning disabilities and the elderly. What assurances can the Minister give that face-to-face appointments will continue to be made available for those who need them in this field?
The noble Baroness has raised an important point. I saw the BMJ article to which she has referred; it was a very interesting warning shot, whereby we should not overshoot in this area. But perhaps I can also emphasise that other interesting evidence shows that some mental health services have been better provided by online consultations. For instance, some young people do not like visiting clinics, where they feel uncomfortable, and prefer video conferences. I think it is too early to call it on this one, because we need to analyse closely the benefits and disbenefits in the area of mental health. We must ensure that we have the right format for the right occasion, but I completely take on board the warnings of the noble Baroness.
My Lords, my personal experience of online doctor appointments is that they are most satisfactory, efficient and time-saving, but I do understand that many older citizens may want and often need to have traditional face-to-face appointments. Appointments on demand are surely not practical, but does the Minister support citizens having the legal right to request one-to-one doctor appointments?
I agree with my noble friend that the terms of service should be clear, although I am not sure that we necessarily have the scope for or benefits of a legal right per se. However, perhaps I may disagree with him on one point. He said that there is a greater demand among older citizens for face-to-face contact, but that is not our experience. Older citizens are often very engaged digitally, prefer to engage with their clinicians, on occasion, from the comfort of their own homes, and can often be early adopters of such technologies.
My Lords, I agree with the Minister that, much to doctors’ surprise, many older people prefer to have virtual appointments, whether by Zoom or telephone. We can make assumptions about people, but doctors have been quite surprised by the extent to which patients prefer having an online consultation. Does the Minister agree that, in the end, this needs to be a matter for doctors to decide? Very often, they will have an initial conversation and then agree to see the patient when that is necessary. However, this is probably not a matter for government to decide on or to intervene in, and certainly not until doctors have settled down to a pattern of consultations based on their experience and understanding of their patients.
The noble Baroness makes a good point, but I would put a slightly different perspective on it. Doctors have not been the most progressive group in this area; as she says, they have been caught by surprise by patients’ views. I would actually give patients the loudest voice in this particular conversation.
My Lords, I regret that the time allotted for this Question has now elapsed.
Brain Tumour Research
My Lords, in 2018, the Government announced funding of £40 million over five years for brain tumour research as part of the Tessa Jowell Brain Cancer Mission, through the NIHR. We are relying on researchers to submit high-quality research proposals in this very difficult area. To encourage such applications, in April 2018 we released an NIHR highlight notice on brain tumour research asking research teams to submit collaborative applications, building on recent initiatives and investments.
I am grateful to my noble friend for that Answer. Nearly three years ago, this House was witness to one of the most courageous and moving speeches in its long history when Baroness Jowell argued for better support for people who, sadly, like her, die from rare cancers. We have made progress since then; fluorescent dye to aid surgical accuracy has been rolled out and new specialist brain cancer centres have been set up across the NHS. However, funding for research is lagging. Of that £40 million promised by the NIHR, only £6 million has been allocated. Can my noble friend tell the House what the department is doing to address this issue and is he prepared to meet with representatives of the brain cancer research charities in order to think of a way forward?
My Lords, the memory of Baroness Tessa Jowell has had a huge impact in this area. I remember well her testimony from these Benches and the mood of the House then. It was an extremely moving and impactful occasion and we remember her very fondly indeed.
My noble friend is entirely right that it is extremely frustrating that not more of this money has been spent. You will not catch me saying that very often at the Dispatch Box, but in this case, it is true. Managing the pipeline of research submissions through the process to the NIHR is a challenge. The NIHR has very high standards for the allocation of research grants and to date, it has struggled to find the number and quality of grants to support. That is why we will put a renewed focus on supporting the drafting of better grants, and I would be pleased to meet with the charities recommended by my noble friend in order to discuss the ways we can do that.
My Lords, I have been told that only 5% of national spend on cancer research is devoted to brain tumour research. Let us consider the collaborative work being undertaken on precision medicine by the University of Bristol and Queen’s University Belfast. What additional funding could be dedicated to this area, which provides individualised treatments to ensure better patient outcomes?
The noble Baroness is entirely right that precision medicine offers an enormous and powerful opportunity for us to tackle cancers. Brain cancers are particularly difficult to tackle, especially in adults, and we are daunted by the struggle to make further progress in this area. Since April 2018, we have spent £5.7 million on directly funded brain tumour research, but that is not enough and we would like to spend more. I am open to recommendations on how the money could be spent.
My Lords, brain tumours kill more children and adults under the age of 40 than any other cancer, and I am grateful to hear my noble friend’s acknowledgement that research funding is not yet enough. Does he agree with the proposal to change the system so that if a site-specific brain tumour grant is deemed fundable by a panel, it will automatically be funded during a highlighted brain tumour funding round such as the one announced last month?
My Lords, I am extremely grateful for a briefing given by Professor Richard Gilbertson earlier today on the specific question raised by my noble friend, which is grants for brain tumours in children. The NIHR system is a gold standard that is envied by the world and does not necessarily need to be broken and restarted. However, the point made by my noble friend is a good one and we are looking at ways of ensuring that more and better recommendations for grants go into the system in the first place so that, basically, we can spend the money more quickly.
My Lords, on 6 November this year, the Government spoke of developing quality research and funding through a successful partnership and sustainable alignment with the charity sector. When can we expect to see some results from that initiative, with work and funding to achieve those goals?
My Lords, the work of the charity sector in medical research is absolutely fundamental to national progress in this area. However, it too has been hit incredibly hard by Covid. We are having a number of dialogues with medical research sector representatives on how we can help. There will need to be a short, medium and long-term approach to getting back to where we were at the beginning of the year. How we bridge the current funding gap is a source of enormous concern to the department and the NHS. I cannot guarantee that we can necessarily embark on exactly the same framework that we envisaged at the beginning of the year, but I can reassure the noble Lord that we are very committed to the research community and we engage with it regularly on how we can help.
My Lords, several references have been made to our late and much-loved colleague Tessa Jowell, who I was proud to call a friend. Was she not prescient when in her last speech to this Chamber she said:
“I am not afraid. I am fearful that this new and important approach”—
referring to research—
“may be put into the ‘too difficult’ box”. [Official Report, 25/1/18; col. 1170]
When the Minister tells us in all sincerity that it is just too difficult to spend the £40 million that was promised, will he at least give this House an assurance that after this discussion he will take a personal and direct oversight of this matter, because it would be a great tragedy if those words of Tessa Jowell proved to be correct in the long run?
I hear the noble Lord’s words loud and clear. I reassure him that the good news is that Tessa Jowell left behind her in the Tessa Jowell Brain Cancer Mission an incredibly effective organisation that is holding the feet of Ministers firmly to the fire —not least through my noble friend Lord O’Shaughnessy, who is on my case in a very big way.
I recognise that this is one of the tricky scientific challenges of our age. We have struggled to tackle adult brain tumours for a very long time. There has to be investment in the basic science around them, in the techniques, such as the very focused radiology, and in provable therapeutics that work in the field. This is not going to happen overnight, but I reassure the noble Lord that we are committed to finding a solution.
My Lords, the noble Lord, Lord Reid, referred to Baroness Jowell’s final speech, when she told us not to give up fighting this pernicious cancer. The noble Lord, Lord O’Shaughnessy, the then Minister, gave the assurance that the Government would not cease support for research into new treatments. Can the Minister confirm how many more research programmes into brain tumour treatments and therapies have been funded by NIHR since then? Is he confident that enough is being done?
My Lords, I have a table of all the brain tumour research projects that we have backed over the last 10 years and I would be very glad to share it with the noble Baroness in correspondence. The short answer is, not enough. I would like there to be more grants and of higher value, but I recognise the challenge. When I speak to the scientists—even Richard Gilbertson, who is a very measured practitioner in this area—they recognise that more work needs to be done at an earlier stage to ensure that they are the kinds of projects that the NIHR system can back. We need to have a conversation about how we can encourage the early-stage science and the creative drafting of fresh ideas for that pipeline. That is something that I am very keen to get on with and have a dialogue about.
I, too, was privileged to be present when Baroness Jowell spoke. In 1988, a 27 year-old man whose wife was eight months pregnant and who had just completed the London Marathon, was told by a neurologist that he had a brain tumour and six months to live. My Lords, that young man was me. I thank God and the doctors and nurses at the Royal Free Hospital that I am here to tell this story.
What is being done to educate and work with families and loved ones, who take the brunt of providing support for the patient and who most likely have no medical knowledge? While the Minister will be aware that not all brain tumours are cancerous, can he explain the Government’s commitment to fighting this niche but deadly form of cancer?
My Lords, on behalf of everyone, I thank my noble friend for that powerful personal testimony. I am sure there will be many others in the Chamber or listening who have known or lived through some association with brain cancer or cancer of some kind. It is extremely gratifying that in many areas of cancer we have made enormous progress—to the extent that it is a completely treatable disease in many respects—but in the area of brain cancer, that is not true. That is not good enough and we are working on trying to find a solution. Money has been spent, but not enough. We need more focus on this.
On my noble friend’s point on supporting families, that is something that trusts work on, but it is left to the charities and support organisations to do. In all areas of illness, that is something where perhaps we could or should be doing more and I completely take on board his comments.
The time allowed for this Question has elapsed.
Fossil Fuels: Business
To ask Her Majesty’s Government, further to the report by the Transition Pathway Initiative Management Quality and Carbon Performance of Energy Companies: September 2020, published on 7 October, what steps they plan to take to encourage fossil fuel intensive businesses to accelerate their move to net zero carbon emissions.
My Lords, the Government have schemes worth nearly £2 billion operating or in development to support our vital energy-intensive industries to decarbonise. These schemes include the industrial energy transformation fund to help companies to reduce their fuel bills and transition to low-carbon technologies, and the industrial decarbonisation challenge to support industry with the development of low-carbon technologies in industrial clusters.
I thank the Minister for his Answer. There have been some welcome and notable commitments, particularly by European oil and gas companies, but overall, the sector is not moving fast enough to align with the Paris agreement. How does the Minister see the Government supporting companies to move faster and have consistent standards for reporting all emissions from scopes 1, 2 and 3 so companies demonstrate alignment clearly in their reporting? I commend to the Minister the work of the Institutional Investors Group on Climate Change working with TPI to establish a net-zero standard. It would be marvellous if the Government supported these endeavours in the context of their presidency of COP.
First, we welcome commitments from any company setting out its net-zero plans. We note the important and notable commitments from the oil and gas sector from the likes of Shell and BP. I endorse the right reverend Prelate’s comments about COP and the other matter he mentioned.
My Lords, significant investment will be required by energy-intensive industries moving to net zero. Will the Minister advise the House on efforts being made downstream to ensure that these businesses remain competitive in price-sensitive international markets where the competition might not play by the same rules?
The noble Lord makes a very good point. We recognise that currently the costs of decarbonisation technologies are very high in many industries and many businesses are unable to pass on the increased costs of decarbonisation to consumers. That is why we are working very closely with industry and addressing this is one of the key aims of our industrial decarbonisation strategy.
My Lords, I declare an interest as a pensioner of the Environment Agency pension fund, which co-chairs the transition pathway initiative. The TPI report shows that no oil and gas company can yet claim to be aligned with the Paris agreement. Does the Minister agree that accelerating the phase out of petrol and diesel cars in the UK will do little to impact the global oil and gas market in which UK-based multinational oil and gas companies operate? Will he tell the House what real leverage there is in the Prime Minister’s 10-point plan on these global companies to drive faster and better delivery by the aim of Paris in their global operations?
In the transition, the North Sea will remain a strategic asset for the UK providing high-quality jobs. We are working closely with the sector to support its transition. The noble Baroness will get more details in the upcoming energy White Paper and the North Sea transition deal.
My Lords, according to the UK extractive industries transparency initiative, between 2015 and 2017, the Treasury gave more money to oil companies than it took from them in taxes—quite shocking. Is it still the Government’s policy to extract every last drop from the North Sea, no matter what the cost to our economy and to the future of our planet?
As I just said in answer to a previous questioner, the North Sea is vital to our economy and the transition. We will work closely with those companies, and already have some world-leading commitments from many on how they are taking forward the decarbonisation agenda.
My Lords, now in its fourth year of monitoring, the Transition Pathway Initiative reports that companies make progress rather slowly and that only 18% are aligned with even the benchmark of below 2 degrees. It has also reported that climate science dictates that the pathway matters, not just the endpoint. Can the Minister explain why, in the scatter-gun 10-point environment plan, there is no mention of the oil and gas sector deal promised in the Conservative Party manifesto? It is meaningless without another of the missing strategy frameworks—the heat strategy.
My Lords, I very much welcome the Government’s 10-point green industrial revolution. What are we doing to lever private finance and what are the timescales for carbon capture and storage projects, specifically regarding Port Talbot, Teesside and Grangemouth?
My noble friend makes an extremely good point: we want to be a world leader in carbon capture usage and storage technologies. He will have noted the announcement of an extra £200 million to add to the £800 million already committed in the plan, for a total of £1 billion in this world-leading technology.
My Lords, I declare my interests as in the register. I very much welcome the Government’s ambition for London to become the global centre of green finance and the announcement by the Task Force on Climate-related Financial Disclosures last week. Have the Government considered legislating to mandate financial institutions to align portfolios to net zero, as a way to incentivise fossil-fuel-intensive businesses to accelerate their moves towards this goal?
My Lords, as the right reverend Prelate and other noble Lords have pointed out, this report shows that most energy companies are not on track. This means that, to an extent, we will be dependent on fossil fuels for energy beyond 2050. Robust plans for that are essential. What is the Government’s best estimate of the scale of the emissions challenge that this continuing dependency will create? As we heard, yesterday the Prime Minister unveiled a strategy to establish four carbon capture and storage clusters. If they operate at maximum capacity, will they meet a significant proportion of that challenge?
They will contribute to that challenge, but we need a number of different technologies and methods to meet our legally binding commitment to net zero. The noble Lord is right in that respect, and the 10-point plan is a useful contribution towards that objective.
My Lords, energy-intensive industries can only go so far in getting energy efficiency right. There is therefore a risk of carbon leakage from these organisations offshoring elsewhere in the world, which does nothing for global climate change. Are the Government considering a carbon border tax, as some of our European friends are, to make sure that that offshoring does not happen?
The noble Lord is right to highlight the difficulties of potential carbon leakage. There are many problems with a carbon border tax, of which the noble Lord will be aware—difficulties with the WTO, et cetera—but I leave announcements on taxes to the Chancellor.
My Lords, I welcome the 10-point plan that the Prime Minister announced yesterday, but ask my noble friend what discussions he has had with industry, particularly the producers of electric cars, to ensure that batteries, given their diversity, are fully recyclable throughout the country. We should not take away one problem just to replace it with another.
My noble friend is right to highlight the problem of recycling batteries. We are investigating the environmental opportunities of a transition to zero-emission vehicles, and are keen to encourage a circular economy in these vehicles, particularly for batteries. We are supporting the innovation infra- structure and regulatory environment required to create a proper battery recycling scheme.
My Lords, all the supplementary questions have been asked and answered. We therefore move to the fourth Oral Question.
Union Capability: Dunlop Review
My Lords, as the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office told the House of Commons Public Administration and Constitutional Affairs Committee on 10 September, the Government intend to publish the Dunlop review before the end of the year.
My Lords, does the Minister recall that the noble Lord, Lord Dunlop, was asked to review the strengthening and sustaining of the union? Given the Prime Minister’s gaffe when speaking to northern MPs earlier this week, which fuelled the fires of nationalism, is it not time for the Dunlop report to be published now and for the Prime Minister to act on it?
My Lords, as I have said, the review will be published before the end of the year. It makes a number of recommendations, which Ministers are taking the time to consider carefully, before setting out how they will take them forward. Unfortunately, work has been delayed by a focus on the UK-wide response to Covid.
Polling carried out in September showed that the Prime Minister Boris Johnson was himself the major driver of voters in Scotland towards support for independence. Given that, does the Minister not agree that it is time for the Government to review their policies and attitudes towards Scotland?
My Lords, the Government believe in devolution. The individual devolution settlements and their effectiveness have been appraised on a range of occasions, in the last 20 years. The Prime Minister, quite rightly, drew attention to the threat posed by the SNP to the unity of our kingdom.
I have no doubt that the Dunlop review will be well informed and constructive, but I echo the comment of the noble Lord, Lord Foulkes, that the Government must address this issue urgently, given the Prime Minister’s recent remarks and the almost universal opposition expressed to almost all aspects of the UK Internal Market Bill. Does the Minister accept not only that we need clarity now to secure the devolution settlement, but that there is a case for a constitutional convention that respects devolution and achieves a collaborative approach to UK decision-making, rather than unilateral decisions by the UK Government?
My Lords, good contacts exist between the UK Government and devolved Administrations. I recently reported to the House on the positive development in the review of intergovernmental relations. I assure the House that the Government take these matters seriously. The Prime Minister has set up a Cabinet committee for union policy implementation to support the delivery of policies that sustain our union.
My Lords, does my noble friend agree that, far too often, the unionist case is framed by references to what we achieved together in the past, when we urgently need a modern compelling unionist vision for the future of our United Kingdom? This is unlikely to be the preserve of any one party; what is required is for unionists across the United Kingdom to come together and make common cause, if we are to preserve our great union and defeat those who would tear it apart.
My Lords, I very strongly agree with my noble friend, and spoke yesterday of the importance of not imputing bad intent where there is none. We are at our strongest when we work as one union, with the needs of all our citizens as the priority. The UK Government have provided billions in support of businesses and individuals in all parts of the UK during the Covid crisis. Our welfare system has been able to support people across the UK and our armed services have been invaluable. My noble friend is quite right: this is a story that unionists from all parties should tell.
The Prime Minister may choose to disparage the devolution settlement, but this House showed yesterday that it is not ready to destroy it, and we can infer that—like the noble Lord, Lord Dunlop, and Sir John Major—the House thinks that it is better to improve and use rather than abuse the intergovernmental consensus-building mechanisms which exist. Why can we not get on with that now? Why must we wait until the end of the year before we see the Dunlop report? Can the Minister answer the pertinent questions which the noble Lord, Lord Dunlop, put to him in the Chamber on 19 October? How do the Government react to Sir John Major’s lecture 10 days ago?
My Lords, I have not had the time to read Sir John’s lecture. I said that the review would be published before the end of the year. It is important that we do not denigrate the substantive progress being made in the review of intergovernmental relations. I commend the devolved Administrations and the UK Government in the work going on there. It is very risky to claim that there is no co-operative work going on in this kingdom.
My Lords, can I take the Minister back to his first Answer? He said that Michael Gove had said that the review would be published before the end of the year. In fact, Michael Gove linked this review to the UK internal market Bill, which is currently going through the House, and said that it would be published before the Bill received Royal Assent. Most of us assumed that to mean that what is in that review will be helpful to our deliberations on the Bill, which has the devolution settlement at its heart, and most of us think that the Government have got this wrong. Would the review by the noble Lord, Lord Dunlop, not be a helpful way to get to the bottom of some of these issues and have a proper informed discussion? It could help us with that, so why do the Government not publish it now, while we are discussing these very issues in legislation in your Lordships’ House?
My Lords, I have underlined the importance of the issues and said that the Government gave a Written Ministerial Statement recently about relations and transparency. The Government are determined to carry this work forward, so far as the UKIM Bill is concerned. I do not agree with the characterisation of it, and the Government will reintroduce Part 5 in the House of Commons.
Does the Minister understand the extent of the damage caused by the recent remarks of the Prime Minister, underlined by the sophistry of his subsequent attempt at explanation? He will be familiar with the old dictum that careless talk costs lives. In this case, careless talk costs votes.
My Lords, the Prime Minister told the House of Commons:
“I think what has unquestionably been a disaster is the way in which the Scottish nationalist party has taken and used devolution as a means not to improve the lives of its constituents, not to address their health concerns or to improve education in Scotland, but… constantly to campaign for the break-up of our country”.—[Official Report, Commons, 18/11/20; col. 315.]
I agree with him.
My Lords, on 10 November in Grand Committee, introducing the Common Rules for Exports (EU Exit) Regulations 2020, the noble Lord, Lord Grimstone, said that the EU Commission
“will exercise these powers in Northern Ireland.”—[Official Report, 10/11/20; col. GC 421.]
Can my noble friend explain how allowing a foreign power to exercise executive authority in a part of the United Kingdom is consistent with the Government’s commitment to taking back control and to the maintenance of the union?
Can the Minister, who throughout his career has been a powerful advocate for the union, agree that a strengthening of it is the cardinal requirement at this moment? Does he think that the recommendations of the Dunlop report will help to secure that great objective?
My Lords, I cannot anticipate the detailed response to the Dunlop report. I commend both my noble friends Lord Lexden and Lord Dunlop for their commitment to the union. I hope that the package of measures in the intergovernmental review, and in response to the Dunlop review and other work, will make very clear this Government’s commitment to sustaining our vital and precious union.
My Lords, I am a unionist but, given where we are and before the United Kingdom implodes, what workable alternatives can the Government advance beyond federalism as possibly the most equitable and pragmatic form of governance that would best serve the regions of the United Kingdom? We have divorced ourselves from the concept of EU regionalism and face challenges north of the border, the long underinvestment debate in the north of England, the current Northern Ireland complexities and, importantly, the UK’s citizenry across the regions generally feeling distanced from each other. It is all coming to roost.
My Lords, I do not agree that the United Kingdom is imploding. That is unhelpful talk. No political party in this country wishes to actively and swiftly break up the United Kingdom, except the one that I have mentioned. There is important co-operative work going on which will continue in full respect of the devolution settlement. We should all, in all parties, subscribe to that, as the noble Lord, Lord Caine, said.
My Lords, the time allowed for this Question has now elapsed.
Personal Protective Equipment: Procurement
Private Notice Question
To ask Her Majesty’s Government whether they will (1) outline the transparency and reporting requirements of the procurement of personal protective equipment, (2) detail the steps taken to register any potential conflicts of interest in that process, and (3) publish all information about any such contracts awarded, including payments for intermediaries; and if not, why not.
My Lords, the National Audit Office report on Covid-19 procurement activity, published yesterday, recognised how we needed to procure new PPE contracts with extreme urgency in order to save lives. We are committed to publishing all the information about these contracts. Robust due diligence processes were in place. The report makes clear that there were no conflict-of-interest issues in procurement decisions. We will respond to the report’s recommendations in due course.
My Lords, I am surprised by the Minister’s reply. The NAO report revealed numerous issues of concern, from lobbying by an adviser to Liz Truss for a transaction in which he had an interest to the creation of a VIP fast track which happened to assist those with connections to senior Conservatives. Some awards were made without tender; some had no written contracts. There was no documented proof of urgency, nor of how to handle conflicts of interest. Awards were made to a pest control firm and £250,000 went to a jewellery company with no PPE experience. Today, we learn of a cannabis research firm with just £6,000 in assets being handed PPE contracts of £33 million.
The Minister has helpfully tweeted that he is going to respond by saying how well people did in responding to the Covid crisis. That is no excuse for improper dealing. Will the Minister say not only that these details will be published but that I and other Members of this House will get that list soon, as the information should have been published within 30 days of the contracts being signed?
I am grateful to the noble Baroness for this opportunity. We take transparency extremely seriously. We share the same values about doing things in the proper way. I stress “the proper way”. The NAO report does not say that the way in which the pandemic was responded to was “improper”, as she suggested. In many ways, the report is supportive of the point that we were facing an unprecedented global pandemic that posed a massive challenge to the entire country. We needed to procure contracts with extreme urgency in order to secure vital supplies. The shadow Health Secretary called on the Government to “move heaven and earth” to get needed PPE to staff. The leader of the Opposition quite rightly called on the Government to get rid of blockages in the system, saying:
“The Government must act to ensure supplies are delivered.”
We did everything we could to do that and I am proud of the achievement of those involved.
My Lords, the report does not make for happy reading, to put it mildly. There is a perception that the reality is some way away from where the Minister thinks it is. That may be fanned by the press, but the image of a tawdry chumocracy is to the fore in many newspaper reports. There were five recommendations in this report, all of which would benefit from the disinfectant of sunlight. My question to the Minister is quite simple: will the Government accept, implement and investigate the five recommendations?
I ask my noble friend to look beyond newspapers for his analysis of the report. I take the five recommendations very seriously. They are encouraging and ally absolutely with the Government’s values. We will look at how to implement them in due course.
My Lords, I listened yesterday to the Minister’s response to a similar Question. I accept that Governments were under an incredible strain, but many were better positioned and prepared than we were. Does the Minister have any regrets to which he will own up about the way in which money was handed out to procure PPE?
I have to be careful about what I say because legal proceedings are in place. The noble Lord is right; I do not pretend for a moment that everything was perfect. I have spoken quite candidly—possibly more candidly than I should have—about the challenges that we faced. Not everything was perfect or ran smoothly, and no well-honed machine sprang into life. However, I am proud that we reacted with energy, skill and elan. We made the most of a very difficult and unprecedented situation. I cannot hide my gratitude to those who stood up to help. Offers of help came from all sorts of places. We should be cheering them and not in any way attacking them.
My Lords, I declare my interests as in the register. I welcome the fact that the Minister intends to publish this information. I urge him to do so as rapidly as possible, as my noble friend Lady Hayter has suggested. Perhaps we could refine what sort of information would be desirable. Will the Minister ensure that the names of each of the 144 companies that the National Audit Office says were introduced to the VIP channel by Ministers’ private offices are published? Who authorised their acceptance into that channel? Who are the ultimate beneficial owners of those companies? This is critical. Which Minister made the introduction in each case?
The noble Lord, Lord Triesman, misconstrues the nature of events. The Prime Minister made a number of public calls for help, which resulted in more than 15,000 offers. Of course, those had to be triaged. Not all were credible. Some were helpful and some were well-intentioned but not all were practical. We had to find a way of prioritising the most impactful. Anyone in our position would have done the same. This credible list included senior professional healthcare clinicians; members of former Governments of all parties; leaders of British industry; and all manner of helpful people, some of whom came from completely unexpected places. I should be happy to tell the stories of some of those unexpected offers another time. The noble Lord’s description of the prioritised channel is a misrepresentation. I regret that I cannot proceed as he asks.
My Lords, let us be clear. The issue is not that people stood up; it is what the Government then did to procure goods and services. Yesterday’s National Audit Office report states
“we cannot give assurance that government … mitigated the increased risks … or applied appropriate commercial practices”
at all times. That is technical-speak for not being able to rule out fraud or corruption. How can the Minister stand at the Dispatch Box and say with any credibility that all the rules were carried out and there were no conflicts of interest? Which should we believe, a line from the Dispatch Box or a report from the National Audit Office?
My Lords, I do not really recognise the noble Lord’s technical-speak interpretation of the NAO report. In fact, the report is crystal clear. Yesterday, I quoted from its references to Ministers and conflicts of interest, and I do not think that I need to repeat it: it was crystal clear. However, perhaps I may reassure the noble Lord. I do not pretend for a moment that every single piece of paperwork got done on time during the pandemic—quite the opposite. We rewrote the guidelines on 18 March and reissued them: there is no way that you can jump through the hoops of a normal tendering process when you are in the middle of a massive global land grab. I am not pretending that; I am saying that there were not conflicts of interest, that Ministers were not involved in the procurement decisions and that the nation should be proud of the way in which we responded to the pandemic.
My Lords, what taxpayers will really want is a list of the Covid contracts that went wrong, either because the goods and services were not delivered or because they were not up to standard. They will want to know, in each case, the value of the contract, the amount of public money paid to the contractor, the amount reclaimed by the Government because of failure and the amount recovered for the taxpayer. Will my noble friend agree to produce such a list—eventually, at least—and put it in the Library of the House so that everybody can see it?
My Lords, in a Written Answer, the Minister confirmed to me that the NHS warehouse for PPE at Daventry has masks made by Medwell Medical Products. It is estimated that a quarter of the workers at its Chinese factory are Uighurs in a facility 3,444 kilometres from Xinjiang, so it is implausible that they went there voluntarily. In his Answer, why did the Minister not name the intermediary company involved? Will he now say whether it was Meheco or another state-owned company, what the value of the deal was, whether our embassy was involved, whether the UK made the deal before or after July—when Medwell was named in reports—and what steps he is taking to ensure that the United Kingdom is not complicit in using Uighur slave labour to produce PPE for the NHS and profits for the Chinese Communist Party?
My Lords, I acknowledge the extremely good work that the noble Lord does on this issue. Of course, no one wants to see Uighur slave labour used to produce PPE for the NHS. On his specific questions, I do not have the details to hand, but I am happy to revisit the Written Answer that I gave him to see whether I can provide any further details.
My Lords, this issue and the report fill me with despair, I must say, as does the fact that it appears that the Government took action almost in a panic. Yes, horrible things happen but Governments should not panic, and there are rules, which should be followed. One could understand an individual who is ill informed and not well educated grabbing a supermarket trolley and filling it with loo rolls, but that is not how Governments should act. There are very clear ways of behaving. When I was in Whitehall and wanted to procure things, I had to go through several hoops. Civil Service rules and the law demanded it, and the fact that we had to do things quickly was not an excuse. Post all this, will we check that Civil Service rules were complied with and that the correct actions were taken that did not break any laws of the land?
My Lords, is my noble friend aware of a BBC Midlands TV news report earlier this week of a recent meeting at University Hospitals Birmingham NHS Foundation Trust regarding procurement? Those attending that meeting were informed that the DHSC had ceased funding the purchase of PPE by regional NHS trusts and that those trusts would have to purchase PPE directly from NHS Improvement. Further, is he aware that such a decision greatly affects a successful and efficient manufacturer of some 10,000 PPE gowns a week called Wearwell, based in Tamworth, Staffordshire? It will no longer be able to supply the local NHS trust, by which it is recognised and approved as a supplier, as it is not recognised and approved as such by the NHS national framework. Is that situation not completely ridiculous? Will he look into the matter urgently and perhaps write to me?
I am extremely grateful to my noble friend for giving me advance notice of his question. I am aware of the changes in procurement practices in the NHS, which I welcome. They will have a huge impact and protect us in the case of future pandemics. I am also aware of the phenomenal effort by British manufacturers, which have stepped up to the challenge of producing PPE and have, in my view, gone a lot further than anyone expected, producing around 50% of the NHS’s PPE. There have clearly been unintended consequences if this company, Wearwell, has somehow fallen off the procurement list. I would be happy to take a letter from my noble friend and look into the matter.
My Lords, I simply do not accept the assumption of that question. I think that the public see a Government who stepped up to an enormous challenge and did their best under very difficult circumstances. Many of the public individually stood up as volunteers and many professionals returned to former jobs to help out. Many businesspeople turned over their capacity, their staff or their focus to help out in the pandemic, and the Government took on a huge amount of support from members of the public. These sweeping assumptions that somehow everything was done in a negative way are very unhelpful and in fact do not chime with the mood of the public at all.
Conduct Committee Report
Motion to Agree
My Lords, as the chair of the Conduct Committee, first, I draw the House’s attention to Standing Order 68A, which states that Motions on reports resulting from investigations under the Code of Conduct are decided without debate. This is therefore not an occasion on which I can, or will, take questions.
The reasons for Standing Order 68A are not only that reports such as this one can be highly sensitive and often involve vulnerable people but that the House has established a formal system of decision-making and appeals on which I hope noble Lords can be sure they can rely. Such reports are the culmination of a full investigation by the House’s independent Commissioner for Standards and very careful consideration thereafter by the Conduct Committee of any appeal. In this serious case, the appeal was considered by all nine members of the Conduct Committee, four of whom are independent lay members. The House can rest assured that it considered every aspect of this case.
The resulting report upholds the key findings of the commissioner to the effect that, first, Lord Ahmed breached the Code of Conduct by failing to act on his personal honour—in particular, by sexually assaulting a vulnerable member of the public who came to him as a parliamentarian asking for his help in relation to a complaint to the police about a faith healer’s activities. Secondly, he misled her by lying about his intentions to help her pursue that complaint, and he exploited her emotionally and sexually.
Lord Ahmed appealed to the Conduct Committee. As I have said, we heard that appeal, which included a ground suggesting significant fresh evidence. We remitted that ground to the commissioner who, after investigation, concluded in a supplementary report that there was nothing in that respect to disturb her previous conclusions. We then considered and prepared our 46-paragraph report, which noble Lords have, covering all aspects of Lord Ahmed’s appeal against the commissioner’s original and supplementary reports. We upheld the key findings, which I have set out, as well as the sanction recommended of expulsion.
We noted that the commissioner had found Lord Ahmed unco-operative and dishonest in the key areas and that he had shown no regret, remorse or understanding of the inappropriateness of his conduct or its effect on a vulnerable victim. We said in paragraph 45 of our report:
“The abuse of the privileged position of membership for a member’s own gain or gratification, at the expense of the vulnerable or less privileged, involves a fundamental breach of trust and merits the gravest sanction. Even though it is possible to think of even more serious breaches, the case in all its circumstances which we have set out crosses the threshold calling for immediate and definitive expulsion.”
The report therefore recommends that Lord Ahmed be expelled from the House. However, after Lord Ahmed was shown an embargoed copy of the report last Thursday, he gave notice of his retirement from the House on Saturday 14 November 2020 under the provisions of the House of Lords Reform Act 2014. The House is therefore not being asked to agree a separate expulsion Motion today because Lord Ahmed is no longer a Member. I know that some Members of the House have asked why his resignation was accepted. The answer is that there is no provision under the Act to refuse or delay it. The resignation takes automatic effect at the beginning of the date given for retirement.
However, I confirm to the House that Lord Ahmed will retain none of the privileges of a retired Member. If this Motion is agreed today, the House of Lords Commission has agreed that with immediate effect Lord Ahmed will not be entitled to a retired Member’s pass and will not be able to access any of the facilities of the House. I beg to move.
Northern Ireland Protocol: Implementation Proposals
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Wednesday 18 November.
“We continue our work to implement the protocol in a pragmatic and proportionate way that minimises the disruption to people’s day-to-day lives and preserves the gains of the 22 years since the Belfast/Good Friday agreement was signed. We are helping traders to prepare for the end of the transition period. We published business guidance in August and are updating it all the time as arrangements are finalised. We have established the trader support scheme, backed by £200 million of Government funding. More than 7,000 businesses have signed up, and hundreds more are joining them every day. We are considering further support measures for agri-food traders, with further details to be announced shortly.
We are getting on with the work that we need to do so that our systems and facilities are ready. We are putting in place the IT systems that are needed to process goods movements, supported by £155 million, which we announced in August. We are working with the Northern Ireland Executive on the delivery of expanded points of entry for agri-food, with the contract now awarded and work under way on arrangements on day one and thereafter.
We are getting on with putting the legislative framework in place for manufactured goods and food safety among many other issues, and our programme is well on track to be delivered in full by the end of the year. We are delivering on our unequivocal commitment to unfettered access. We have provided for robust protections in the United Kingdom Internal Market Bill for mutual recognition and a prohibition on new checks and controls. We will re-table those clauses when the Bill returns to the House.
We laid a draft statutory instrument in Parliament, which was approved on 10 November by this House and is scheduled for debate in the other place on 30 November. That will ensure that on 1 January Northern Ireland businesses can continue to move their goods as they do now. We are working with the Executive to introduce a longer-lasting second phase of that system, to focus its benefits on Northern Ireland businesses, to be introduced in the course of 2021.
We are working intensively and in good faith through the Joint Committee to pursue the solutions that we need to support our approach. We have already agreed a phased approach for medicines rules in Northern Ireland, ensuring that those critical goods can continue to flow. We have agreed an approach to scoping the application of the electricity directive in respect of Northern Ireland’s single electricity market that will ensure that the single electricity market continues to deliver for Northern Ireland.
We are working to ensure that UK internal freight is not subject to tariffs, and to remove export declarations from Northern Ireland to GB trade. We continue to pursue specific solutions for supermarket trade, noting the huge social and economic importance of avoiding disruption. That essential work will continue at pace in the coming days but, of course, I cannot give a running commentary on discussions with the European Union.”
My Lords, yesterday Northern Ireland business leaders told Members of Parliament that the Government have left them without clarity, details or time to deal with the huge change that is coming. The president of the Ulster Farmers’ Union said they are being asked to prepare with both arms tied behind their back and a blindfold on. So what are the contingency plans for business if the customs declaration service is not available by 1 January? Why have businesses had no information on how a tariff rebate system would work? As noble Lords know, businesses always need certainty, and certainty here is absolutely lacking.
My Lords, the Government are committed to ensuring that businesses and communities are ready for the end of the transition period. I am sorry to hear of the remarks reported by the noble Lord, but our intensive programme of engagement with industry continues at pace. The Business Engagement Forum has now met 20 times since May, and this month the Chancellor of the Duchy formed a UK-wide business readiness task force. We have also made considerable progress on the provision of guidance, publishing over 25 pieces of sectoral guidance for businesses moving goods between Northern Ireland and GB in recent weeks.
Yesterday’s Statement in in the House of Commons was a bravura performance, but completely out of touch with reality. Is it not the case that any small business in Northern Ireland planning for Brexit is faced with a nightmare of distraction, with few hard facts on which to base any decisions? The five essential steps on InterTradeIreland pose detailed questions on the supply chain, customs, people and data, to which answers are not available. If you ask your supply chain, they do not yet have the answers; if you ask customs, neither do they, and so on. When will the trader support service be in a position to deliver to businesses that register? Does the Minister accept that, given the continuing uncertainty, services in support of the trader support service will be needed for years to come?
My Lords, in relation to the trader support service, I can report to the House that, whereas my honourable friend in the House of Commons said that 7,000 businesses had signed up, 9,000 businesses have now signed up, with hundreds more joining every day. We will shortly set out further support for agri-food producers engaging with new SPS processes.
My Lords, does my noble friend share my concern that far too many people see this issue solely through the prism of strand 2 of the Belfast agreement and of avoiding a hard border on the island of Ireland? Will he confirm that the 1998 agreement contains three strands, while the consent principle underpins Northern Ireland’s position as an integral part of our United Kingdom? As such, is it not imperative that Northern Ireland continues to benefit from free and unfettered access to what is by far its largest single market?
My noble friend raises an important point and I can certainly reassure him that the Government remain committed to the Belfast/Good Friday agreement in its entirety, including all three strands; east-west is vital, as he says. We are delivering on our unequivocal commitment to deliver unfettered access, and I hope very much that noble Lords will reconsider their obstruction of the legislation on that subject.
My Lords, I warmly welcome the joint letter of 5 November from the First Minister and Deputy First Minister to Commissioner Šefčovič. In view of the significant concerns that they jointly expressed, what is being done to allow supermarkets to continue to service Northern Ireland from Great Britain? Can the Minister confirm reports that the UK and the EU are considering agreeing a grace period to allow supermarkets time to adapt to the protocols approach, which is still under discussion in the Joint Committee?
My Lords, the noble Earl raises an extremely important point. I cannot go into matters that are, as he implies, under active discussion, but we have certainly committed to an intensified process of engagement with the EU to resolve all outstanding issues such as this, which includes securing flexibilities for trade from GB to NI. That is particularly important for supermarkets, where we have been clear that specific solutions are required. The recent joint letter from the First Minister and Deputy First Minister reflects how important that issue is for Northern Ireland, and we will continue to work closely with the Executive to get a solution to this problem.
Agreement with the EU is key for the sustainability and implementation of the protocol. As president of the CBI, I hear from businesses on a daily basis about the urgent need for the clarity that is needed on the transfer of goods from Great Britain to Northern Ireland. Businesses want clarity, but they also want to ensure that the protocol works long-term for peace, trade and investment—and this starts with a deal. Does the Minister agree that clarity is needed to ensure the continued flow of goods between Great Britain and Northern Ireland?
I certainly agree on the importance of clarity. As I have said, certain matters are still under discussion in the joint committee, but the Government have already issued 25 documents of sectoral guidance. We are actively engaged with business in Northern Ireland and we attach the highest importance to these points.
This situation threatens the rights and equality clauses in the Belfast agreement, because European law has long been crucial to support those rights. At the time of the Belfast agreement, it was guaranteed that there would be no diminution of such rights as a result of Brexit. These rights are also threatened with regard to Britain’s future membership of the European Convention on Human Rights. In addition, the UK Government’s lack of commitment to guaranteed labour, anti-discrimination and environmental rights in Northern Ireland equal to those enjoyed during the EU membership suggests that they are also under threat.
My Lords, the Northern Ireland protocol commits to “unfettered” access for all goods, including agri-foods. Does my noble friend accept that there will be a new legal obligation for submitting a customs declaration for import and export purposes that will both take time and incur expense to fill in? How does that square with the commitment to unfettered access?
My Lords, unfettered access from Northern Ireland to GB will be sustained and there will be no customs checks. So far as GB-NI is concerned, any control will be at a very minimal level, with risk assessment and administration undertaken by UK authorities.
My Lords, would the Minister agree that we are being a little hypocritical in admonishing China over Hong Kong while preparing to renege on provisions in the EU withdrawal agreement and the Northern Ireland protocol? Would he also agree that trying to get the best of all worlds in trade could seriously affect progress under the Good Friday agreement?
No, I do not. The maintenance of the Good Friday agreement requires unfettered access, which was committed to by the EU and in the reformation of the Northern Ireland Executive. So far as comparing the actions of the UK Government with those of communist China, I indignantly reject the parallel.
My Lords, does Her Majesty’s Government consider that both sides in the negotiations regarding the protocol and the withdrawal agreement are acting in good faith? Would it not cause much greater harm to, and further undermine, the Belfast agreement if we were to separate Great Britain from Northern Ireland, contrary to the wishes, or without the consent, of all the people in Northern Ireland?
My Lords, consent—and the consent of both communities—is absolutely fundamental to this whole process. I agree with my noble friend that it would be to the benefit of all if a reasonable agreement could be reached sooner, as the UK Government hope is still possible.
My Lords, has the Minister any idea of how desperate businesses in Northern Ireland, especially those trading across the Irish Sea—as many do—are to know what their future will be in a month’s time? I say bluntly: please do not give us the same old warm waffle about how it will be all right on the night. People’s jobs and livelihoods are at stake here, and they have no idea what the future holds for them.
My Lords, to say that the Government are wholly committed to the future security and prosperity of business in Northern Ireland is not “warm waffle”; it is the truth of the matter. We are providing extensive support through the trader support service. I have referred to other measures, including the £150 million that has been put into IT systems, and we are working at pace to deliver all that is necessary. I hope that agreement can be reached in the joint committee and that any uncertainties there can be resolved.
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Wednesday 18 November.
“The towns fund is one element of this Government’s mission to spread opportunity and to level up by investing in towns and smaller cities—places to support businesses and communities so that we can help them to thrive.
Last year we announced that 101 places had been invited to develop proposals for a town deal as part of the £3.6 billion towns fund. These towns are spread across the country. Many are birthplaces of industry and centres of commerce. Others are bastions of the maritime economy or the pleasures of the English seaside. Others are great agricultural and market towns. They are all different. But what they do have in common is that they have been underinvested in and undervalued by central Government for too long as too much investment has been centred on our big cities.
Town deals are about reversing that trend. They are about providing investment and confidence at a crucial time for these communities. Through town deals, we are driving economic regeneration and growth, raising living standards and boosting productivity. We are investing in new uses for often derelict and unloved spaces. We are creating new cultural and economic assets that will benefit those communities not just today but for generations to come. We are connecting people through better infrastructure both digital and physical, such as the new walking and cycling routes planned for Torquay and the creation of the new digitech factory in Norwich.
We have already made some investments as a rapid response to the effects of Covid-19 where towns are particularly vulnerable. Up-front grants of up to £1 million are being spent in places such as Burton-on-Trent, on its new main shopping centre to allow greater access for pedestrians and cyclists, or on demolishing and rebuilding unloved buildings in places like Newcastle-under-Lyme. Many towns are repurposing empty shops into vibrant community and business spaces that will help them to bounce back when Covid is done.
Each town selected to bid for a town deal is eligible for an investment of up to £25 million. Of course, that is not guaranteed, and all proposals are rigorously assessed by officials in my Department. In exceptional circumstances, such as the nationally significant plans for the great town of Blackpool, we will invest more. I am particularly excited by Blackpool’s plans to make its illuminations even more impressive and attract more visitors when they are back next year.
Town deals are about more than simply investment. They are about the whole town coming together, to create and share a genuine vision for the future of that place. We have just offered Barrow-in-Furness a town deal that will help to address the skills gap, create better housing and support local businesses to grow and employ more people. I am hugely excited by these deals. They offer a chance to turn around the fortunes of many, many places.
This is just the start. The Government are committed to levelling up all parts of the country. We want everyone, wherever they live, to benefit from increased economic growth and prosperity. Town deals are but one way to achieve that. All Members of the House will agree that places such as Blackpool, Barrow and Darlington need and deserve investment, and they will have it under this Government. The work of the towns fund is just beginning.”
My Lords, I draw the attention of the House to my relevant registered interest as a vice-president of the Local Government Association.
I welcome the towns fund, as getting funding to communities is always welcome news, but this whole issue has arisen because of concerns about how the funding is allocated. It must be fair and based on understandable criteria and a proper assessment of the need and must have clear goals. At no point should there ever be any suggestion that funding is taking place on political terms. What assurance can the noble Lord give the House that this has not been the case with funds allocated to date? Can he provide information on the different areas where funding was allocated or refused and on the criteria used by his department to make such decisions?
My Lords, I am very happy to provide an outline of how the towns were selected. Officials ruled out 541 towns based on their lower levels of deprivation. The remaining towns were ranked as higher, medium or low priority based on an evidence-based methodology. The top 40 high-priority towns were chosen for town deals. Ministers used their local knowledge to conduct a qualitative assessment when picking the remaining 61 towns. This involved—
I am very sorry about my diction. Can you hear me better now? I hope so. I was saying that the top 40 towns were chosen for town deals and that Ministers used their local knowledge to conduct a qualitative assessment when picking the remaining 61 towns. A deals process, rather than an open competition, was used, as many previously left-behind towns lacked the capacity to bid. In that sense, the process was very clear and fair in relation to the basis for allocating the considerable amount of money involved.
My Lords, I have relevant interests, as set out in the register, and I also welcome the towns fund. however, it is not quite correct that, as the Minister has just said, the top 40 towns, as assessed by the criteria, were chosen for the money in the towns fund. There were many towns in the highest-priority category that were not selected. Can the Minister explain why they were rejected? What can I tell their local representatives about why they are failing to meet the eye of the Minister when they meet the criteria?
I want to make clear that the process was driven by officials using an evidence-based methodology. The top 40 high-priority towns were chosen for town deals. For the remaining 61 towns, there was ministerial involvement but using a process designed by officials in my department. I add that I am delighted that Dewsbury in the borough of Kirklees has been selected to develop proposals for a town deal. My department is looking forward to receiving its town investment plan early next year.
My Lords, in all the government guidance on the towns fund, there is the prospect of there being a major missed opportunity for prioritising co-investment with the private sector in sport, recreation and active-lifestyle facilities. I praise my noble friend the Minister for personally promoting the importance of sport as a catalyst for levelling up and inspiring communities, as we did in the deprived East End of London with the Olympic and Paralympic Games in 2012. I hope my noble friend the Minister will agree that we urgently need to build regeneration, inspiration and legacy into our town fund initiatives, particularly in the north of England?
My Lords, there is no greater champion of the role of sport, leisure and recreation in place-making. I point out that the towns fund guidance provides the envelope upon which towns can prioritise leisure facilities. As a department, we hope to see many towns come forward, building in leisure facilities, parks and green spaces, cycle lanes and a myriad of sports activities within their bids.
My Lords, I am also delighted that the Government have set up the towns fund, which will make a significant contribution to many poorer communities. Nevertheless, it still remains that the Public Accounts Committee has expressed concerns about why some towns were chosen and some were not. In future, will Her Majesty’s Government undertake to publish the objective criteria and evidence that will be used for selection so that everyone can be assured that there is no political influence in making these selections and choices?
In my answer to the previous question, I made it clear that this is a combination of using an evidence-based methodology and Ministers using their local knowledge. That benefited 101 towns in the first instance. There is more money to be spent on regeneration, but the foundation stone of the allocation of funds was using a clear methodology with multiple criteria, including productivity and exposure to economic shocks.
My Lords, I thank the Minister for his responses, but his last response gives rise to some concern. It certainly looks as if many of the decisions were partial and, given what was said during the election by the Secretary of State to Conservative candidates about the likelihood of the towns in their constituencies receiving consideration in the towns fund, his view that Ministers used their personal knowledge gives folk like me from the northern part of Durham real concern. Will the Minister therefore be clearer than he was with the right reverend Prelate the Bishop of St Albans and state that, in future, criteria will be published so that we can see that an independent, proper decision to allocate public money to towns that need it—and they do need it—is transparently fair?
I would point out that the National Audit Office looked into this. Its report sets out the town deal selection process in detail. The report showed that the more affluent towns were ruled out and the 40 most deprived towns were rightly favoured, with the remainder selected from a shortlist that considered a wide range of evidence. This process was developed by officials but there was political oversight, as there should be.
I, too, welcome this immense support for local towns. I am sure that the Minister will be perfectly aware of the political leadership required in any such allocations, be it locally or centrally. Despite what the noble Lord, Lord Moynihan, said about the beautiful Canary Wharf development, access is the most important thing. That has not always been meritorious or led by local demand. Can the Minster assure the House, me and local communities that he will ensure that women leaders play a vital role locally and take part in the regeneration and redevelopment of new towns?
My Lords, I declare my interest as a vice-president of the Local Government Association.
Yesterday, the Government made an announcement acknowledging both the urgency of the climate emergency and their special global responsibility in chairing COP 26. If the Government are operating in a joined-up way, you would expect the towns fund money to be used for super-policies that have environmental benefits in addition to economic ones. Can the Minister tell me what percentage of spending addresses those goals?
Arrangement of Business
These proceedings will follow guidance issued by the Procedure and Privileges Committee. When there are counterpropositions, any Member in the Chamber may speak, subject to the usual seating arrangements and capacity of the Chamber. Anyone intending to do so should email the clerk or indicate when asked. Members not intending to speak on a group should make room for Members who do. All speakers will be called by the Chair. Short questions of elucidations after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk. The groupings are binding. Leave should be given to withdraw. When putting the Question, I will collect voices in the Chamber only. Where there is no counterproposition, the Minister’s Motion may not be opposed. If a Member speaking remotely intends to trigger a Division, they should make this clear when speaking on the group. Noble Lords following proceedings remotely but not speaking may submit their voice, content or not content, to the collection of the voices by emailing the clerk during the debate. Members cannot vote by email. The way to vote will be via the remote voting system.
Private International Law (Implementation of Agreements) Bill [HL]
Motion on Amendments 1 to 1B
1: After Clause 1, insert the following new Clause—
“Implementation of other agreements on private international law
(1) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating to private international law (a “relevant international agreement”).
(2) The appropriate national authority may make regulations for the purpose of, or in connection with, applying a relevant international agreement, with or without modifications, as between different jurisdictions within the United Kingdom.
(3) The appropriate national authority may make regulations for the purpose of, or in connection with, giving effect to any arrangements made between—
(a) Her Majesty’s government in the United Kingdom, and
(b) the government of a relevant territory,
for applying a relevant international agreement, with or without modifications, as between the United Kingdom, or a jurisdiction within the United Kingdom, and that territory.
(4) Regulations under this section may make—
(a) consequential, supplementary, incidental, transitional or saving provision;
(b) different provision for different purposes or for different parts of the United Kingdom.
(5) Regulations under this section may include provision about—
(a) enforcement of obligations arising under or by virtue of the regulations;
(b) sharing of information;
(c) legal aid.
(6) Schedule (Regulations under section (Implementation of other agreements on private international law)) makes further provision about regulations under this section.
(7) In this section—
“appropriate national authority” means—
(a) in relation to England and Wales, the Secretary of State;
(b) in relation to Scotland—
(i) the Scottish Ministers, or
(ii) the Secretary of State acting with the consent of the Scottish Ministers;
(c) in relation to Northern Ireland—
(i) a Northern Ireland department, or
(ii) the Secretary of State acting with the consent of a Northern Ireland department
“international agreement” means a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party; “private international law” includes rules and other provisions about—
(a) jurisdiction and applicable law;
(b) recognition and enforcement in one country or territory of any of the following that originate in another country or territory—
(i) a judgment, order or arbitral award;
(ii) an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations;
(c) co-operation between judicial or other authorities in different countries or territories in relation to—
(i) service of documents, taking of evidence and other procedures, or
(ii) anything within paragraph (a) or (b);
“relevant international agreement” has the meaning given in subsection (1);
“relevant territory” means—
(a) the Isle of Man;
(b) any of the Channel Islands;
(c) a British overseas territory.
(8) This section and Schedule (Regulations under section (Implementation of other agreements on private international law)) have effect, with the following modifications, in relation to a model law adopted by an international organisation of which the United Kingdom is a member as it has effect in relation to an international agreement to which the United Kingdom is, or is expected to become, a party.
The modifications are—
(a) a reference in this section or that Schedule to implementing or applying a relevant international agreement is to be read as a reference to giving effect to the model law (with or without modifications);
(b) subsection (1) is to be read as if the words “as revised from time to time” were substituted for the words “as it has effect from time to time”.”
1A: After subsection (3) insert—
“(3A) Regulations under subsections (1) to (3) may only be made during the operative period.
(3B) The operative period is the period of five years beginning with the day on which this Act is passed.
(3C) The appropriate national authority in relation to a part of the United Kingdom may by regulations extend the operative period for that part of the United Kingdom by a period of five years.
(3D) The power under subsection (3C) may be exercised more than once.
(3E) The operative period may not be extended for any part of the United Kingdom after it has expired in relation to that part of the United Kingdom.”
1B: In subsection (5) leave out “this section” and insert “subsections (1) to (3)”
My Lords, I will speak to Commons Amendments 1 to 5 and Amendments 1A, 1B and 4A to 4E, which are in my name.
Private international law is a technical area of law, but it is important to people and businesses that become involved in legal disputes with a cross-border aspect. A family may need to enforce a maintenance decision when one parent moves abroad, or a small business that has been left out of pocket by a foreign supplier may need to seek redress. Agreements on private international law create reciprocal rules to enable UK businesses, families and individuals to resolve these difficult and challenging situations. They prevent multiple court cases taking place in different countries and allow for the decisions of UK courts to be recognised and enforced across borders. All of this helps to reduce costs and anxiety for the parties involved.
The House will recall that this Bill contains two substantive clauses. The first implements three key Hague conventions which currently apply as a consequence of our former membership of the European Union, allowing us to continue to co-operate on important aspects of private international law with existing partners. The second establishes a delegated power to implement further agreements on private international law now that we have regained full competence in this area from the European Union. This stood part of the Bill on its Lords introduction but was removed on Report. Commons Amendments 1, 2, 4 and 5 simply return this clause, and related provisions, to the Bill.
There is also Commons Amendment 3, which I hope will be uncontroversial and will not address in detail. It adds a permissive extent clause to the Bill allowing the implementing power to be extended to the Isle of Man; this is at the request of the Isle of Man Government. This is the standard approach to extending UK legislation to the overseas territories or Crown dependencies and in this case does not directly affect the United Kingdom. My noble and learned friend Lord Keen spoke in detail on this amendment back in May but was unable to move the amendment at the time.
The agreements implemented under Clause 1 are widely supported by interested parties in the legal and finance sectors, and indeed by Members in this House and the other place. The 1996 Hague Convention aims to improve the protection of children in cross-border disputes. It deals with issues such as residence of and contact with children whose parents live in different countries. The 2005 Hague Convention on Choice of Court Agreements aims to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. The 2007 Hague Convention provides rules for the international recovery of child support and spousal maintenance. The Government have already taken the necessary international steps to ensure our continued membership of these agreements following the end of the transition period.
It is vital that the UK’s membership of these agreements continues seamlessly from the end of the transition period. This means that Clause 1 needs to be in force within a few weeks. Although the implementation of the Hague conventions contained in Clause 1 is agreed and not subject to further amendments, the timing aspect creates an imperative for us to agree a way forward on the delegated power promptly.
Before I address the amendments, I will clarify the types of agreements that can be implemented under the delegated power. The power only covers the implementation of international agreements on a very narrowly defined area of law: agreements which are typically uncontroversial and have received widespread support in Parliament in the past. The Bill only allows implementation of private international law agreements which it defines in subsection (7) of the relevant clause. Principally, such agreements cover rules on jurisdiction to hear disputes which raise cross-border issues; which country’s law should apply to such cases; recognition and enforcement of foreign judgments; and co-operation between judicial and other authorities in different countries on these matters. It will not be possible for matters outside the areas covered by the definition of “private international law” in the clause to be implemented using the power.
I know that, in the past, debate on this Bill has touched on topics such as the Hague-Visby Rules, or the 1961 Warsaw Convention on the carriage of goods by air. Let me be clear: these conventions—bar possibly one or two provisions—are out of scope of the power, and if the UK joined these conventions today they would still need to be implemented by primary legislation. This Bill is only concerned with implementing provisions on private international law, not any international agreements on private law matters generally.
Bearing that point in mind, I turn to the amendments. This House has already discussed the delegated power at length and made its views known. However, the clause comes back from the other place with a majority of 149, so, despite the reservations many of your Lordships have and have expressed, I believe we need to accept that such a clause has a place in the Bill and think about how to make it more acceptable to this House. The amended clause will still allow private international law agreements to be implemented promptly. This is important because, following the end of the transition period, there is a need to update the United Kingdom’s private international law framework. The Government have already made clear their intention to join the Lugano Convention. This power minimises any gap in its application if we are able to rejoin that convention and allows us to respond flexibly if we are not.
Implementation of these narrow and technical private international law agreements is largely about drawing down into domestic law detailed rules that have already been agreed at an international level. There is very limited ability for Ministers to deviate from these once the UK agrees to become bound by the relevant agreement. The rules in the agreement will not be amendable, and implementation will often largely be a yes or no question, coupled with making provisions largely of a procedural or technical nature, making the affirmative statutory instrument procedure appropriate. There are well-established precedents for implementing agreements which meet our definition of private international law by secondary legislation. It is not just that much of our current private international law framework was implemented under the powers of the European Communities Act. Even before that, there were many examples of agreements of this type being implemented through secondary legislation. The most notable of these is the Foreign Judgments (Reciprocal Enforcement) Act 1933.
Without this power, each new private international law agreement or update to an existing agreement would require primary legislation. Given the need to update our private international law framework and the current busy parliamentary agenda, such a requirement would be disproportionate and damaging. The intellectual arguments about the extent to which the implementation of international agreements by secondary legislation is constitutionally appropriate are important, but the other House recognised that those arguments are not the beginning and end of this debate. We must remember that these agreements can have a real impact on the lives of the general public, and delays in implementing them and reaping their benefits could negatively impact UK businesses and families. It is my view that the power provides a proportionate solution to an important problem, while retaining a far greater role for Parliament in the scrutiny process than it has had for many years.
All that said, I recognise the many and varied concerns that have previously been raised about this power. Opinions are sincerely held and there is merit to many of the points which have been made. I have sought to familiarise myself with the views your Lordships expressed in the Chamber during earlier debates, and I have listened closely to concerns expressed by noble Lords in engagement with myself and ministerial colleagues in recent weeks. The amendments in my name are a good-faith attempt to find a way forward. Indeed, the noble Lord, Lord Pannick, described the suite of amendments that I have put before this House as “substantial and constructive”. They attempt to strike a balance, sensitive to the aims of the Government and the concerns of your Lordships’ House.
First, Amendment 4A removes from the power the ability to create criminal offences which are punishable by imprisonment. In my analysis of the debates on this Bill, it is clear that this aspect of the power has been the most widely criticised. I certainly see that this is a sensitive issue, and it is right that the Government act cautiously. Although private international law agreements do not generally require contracting parties to create criminal offences, there are exceptions. Some conventions include non-discrimination clauses that require states to apply the same enforcement methods for foreign judgments as are available in domestic cases.
In fact, our current approach to the implementation of the Lugano Convention, which the Government intend to reimplement promptly should our application to rejoin as an independent contracting party be successful, includes a criminal offence in Northern Ireland. This applies where a person obliged to pay maintenance under an incoming maintenance decision, subject to recognition and enforcement in Northern Ireland, fails to update a Northern Ireland court with changes to their address. In my view, this is a good example of the “limited” type of criminal offence with which we are concerned and highlights the value of retaining the ability to create offences punishable by, for example, fines. Although I understand the concerns that some may have about even this type of criminal offence being created by secondary legislation, there are in practice a large number of offences created by secondary legislation and retaining this aspect of the power, albeit in a more restricted form, is not out of step with other legislation.
The effect of the amendment, therefore, would be to require any provisions in a private international law agreement that entail the creation of criminal offences carrying a custodial sentence to be implemented by primary legislation. This will provide Parliament with significant additional scrutiny of this important matter. I hope that this addresses a major source of concern about the power.
Secondly, Amendments 1A and 1B, and 4C, 4D and 4E, add a five-year sunset period—extendable on a recurring basis by affirmative statutory instrument—to the regulation-making power. This is not an amendment that the Government would ideally have wanted to make to the Bill. We still consider the delegated power to be a proportionate approach that would afford the flexibility to implement future private international law agreements promptly in the years to come. The Government have already been clear about how they intend to use the power over the next few years. This amendment would ensure that if a future Government, of any colour, wanted to extend the five-year period, they would need to provide similar clarity. This approach of providing an extendable sunset period has been taken in other legislation, such as the Trade Bill. It is also, in my view, proportionate for the implementation of agreements of this nature—technical agreements, agreed at international law level, being drawn down into domestic law. This additional role for Parliament provides significant additional scrutiny and will influence how Governments use the power.
The reviewable sunset period means that the Government can still make necessary changes to the UK’s framework of PIL agreements over the next few years and maintain their ability to respond flexibly to any uncertainty following the end of the transition period. However, it would also provide the Government with an opportunity to review the use of this power in the future without the current time pressures and to take a reasoned decision on whether it should be terminated. If the Government believe at that stage that the power should be extended, they will need to make their case to Parliament and have the regulations approved in both Houses. I also remind colleagues that a statutory instrument to extend the power would still be subject to an obligation to consult—something I will come on to talk about in more detail shortly. I believe that this approach strikes the right balance between flexibility and scrutiny and offers an effective solution to many of the concerns raised. To my mind, it represents a workable compromise between the position of the Government, as set out, and the principal concerns that the House had aired.
The third amendment, Amendment 4B, puts an obligation on the Secretary of State to consult before using the implementing power or extending it for a further five-year period. My ministerial colleagues have made it clear at various stages of the Bill’s passage that they greatly value the views of experts in this area. The current Lord Chancellor reconvened the advisory committee on private international law, chaired by the noble and learned Lord, Lord Mance, and I know that both the Lord Chancellor and Minister Chalk have engaged regularly with other members of the legal sector through the Ministry of Justice’s International Law Committee. Consultation is our usual practice, and indeed the Ministry of Justice has already consulted the advisory committee on draft regulations that it may make under the power to implement the Lugano Convention 2007, should our application to rejoin be successful. However, having reflected on the views expressed to me since I took on responsibility for the Bill, I have concluded that putting on the face of the legislation an obligation to carry out such consultation, before making regulations under the delegated power, is a proportionate and appropriate step.
This obligation to consult is drafted in a general way so as not to refer specifically to any groups or bodies. This is because, while the advisory committee, for example, contains a significant wealth of expertise in the field of private international law, it is not a statutory body. Therefore, to refer specifically to it in legislation would not be appropriate. Equally, referring to specific parliamentary committees is not without risk, as interested committees may change or be renamed as time passes. Parliament would already have an opportunity to scrutinise draft affirmative statutory instruments to be made under the power and, even without naming them in the legislation, the Government would always consider most seriously any representations made by parliamentary committees. The same applies to other named consultees that some may suggest adding to the Bill. The Government will be under a duty to make sure that the consultation carried out is appropriate.
I also remind the House that a statutory obligation to consult carries with it a requirement to take due account of the representations received. I can give an undertaking that the Government will meet that requirement. We will provide a thorough and detailed explanation of the consultation that has taken place, setting out not only those with whom we have consulted, but a fair and balanced summary of the views expressed. That will be set out in the Explanatory Memorandum that must accompany any statutory instrument laid before this House. This will give parliamentarians and any relevant parliamentary committee an opportunity to scrutinise the consultation that has taken place and the way the Government have taken account of the views that have been expressed.
I am satisfied that this approach strikes the right balance between ensuring that the Government take account of the views of the relevant experts while allowing for a flexible approach to engage with the most appropriate interested parties in each specific case. I hope that your Lordships will agree that it demonstrates that the Government are sincere in their intent to engage Parliament and other stakeholders in the process. In my view, when taken as a whole, these three amendments represent a significant amount of extra scrutiny for Parliament. I hope that the House will consider them a compromise sensitive to the aims of both sides. I beg to move.
The question is that the House do agree with the Commons in their Amendment 1 and do propose Amendments 1A and 1B as amendments thereto. On Amendment 1C, I call the noble and learned Lord, Lord Falconer of Thoroton.
Amendment 1C (as an amendment to Amendment 1A)
1C: Leave out subsection (3D).
My Lords, I move my Amendment 1C as an amendment to Amendment 1A. It would leave out subsection (3D) of the Government’s proposed amendment. Leaving out the subsection would mean that the power to extend the sunset period could be exercised only once.
I start by welcoming the noble and learned Lord, Lord Stewart of Dirleton. Throughout the process of this Bill, he has been very engaged, incredibly helpful, very courteous and really engaged in the detail, and we are all incredibly grateful for that. I also compliment him on the presentation he has just made, which was persuasive and clear and addressed all the issues. So I really am glad to see him there and I completely support him—as indeed does the whole House—in relation to the bringing into UK domestic law and ratifying the three treaties referred to, and which remain referred to, in Clause 1 of the Bill.
I remain disappointed and believe it to be very much the wrong policy to give the Government the power to introduce private international law treaties by secondary legislation, as in the amendment introduced by the Commons to the Bill that was sent from the Lords. There was an almost universal view in this House when it was last here that that should not be dealt with by secondary legislation, because it would reduce the quality of private international law agreements that were given the force of law by legislation. The question of whether it was legitimate to do it by secondary legislation was considered after the consideration of evidence, both by the Constitution Committee of this House—and I am glad to see the noble Lord, Lord Pannick, here as a distinguished member of the Constitution Committee—and the Delegated Powers Committee of this House as well. Both considered, in detail, evidence put before by them by the Ministry of Justice and rejected the suggestion that secondary legislation was the appropriate way to deal with such treaties.
I did not find the reasons given by the noble and learned Lord convincing. But he, like his distinguished predecessor, the noble and learned Lord, Lord Keen of Elie, did not really engage on the issue of why to use secondary rather than primary legislation. He asserted that secondary legislation had been used in the past, and, like his predecessor, referred to the 1933 and 1920 Acts. What he was referring to was bringing into force the provisions on enforcement of judgments in those two Acts in relation to individual territories or countries. All that happens by that secondary legislation is that additional countries are added, whether they be Commonwealth countries for the 1920 Act, or non-Commonwealth countries for the 1933 Act. I would not have any objections whatever to something like that. But that is not the power taken in this Bill; it is the whole of the private international law agreement. It would not just be the addition of countries; it would be the whole Foreign Judgments (Reciprocal Enforcement) Act 1933 in the examples that have been given. That will lead to this country having a worse network of private international law agreements than it has had previously. That is bad for this country, because one of the things we are incredibly good at is private international law. That is what makes English law so attractive to commercial institutions. I am disappointed that no real additional arguments have been advanced.
I accept the political reality here; this House has almost universally asked the other place to think again, and the noble and learned Lord, Lord Stewart of Dirleton, is right to point out that it had the opportunity to think again and decided to go ahead. We have to accept that in a case such as this.
In relation to the sunset clause, these agreements take a long time to negotiate and introduce—with the possible exception of us adhering to Lugano, because that may have to be done in a hurry, so I can see that there is a case there. I am interested that the noble and learned Lord, Lord Stewart of Dirleton, has said that if one had Hague-Visby or Warsaw, that would not be covered by this Bill and would, therefore, have to be introduced by primary legislation. I am not sure, then, under what circumstances this is ever going to apply in substance, because the nature of these private international agreements is that they will have provisions about jurisdiction and enforcement as well as about substantive law—Hague-Visby and the Warsaw convention.
If there is anything about substantive law, such as what it would be in relation to the return of children—that comes under the Hague convention—as I understand what the noble and learned Lord is saying, although it does deal with jurisdiction and judgment issues, it also sets out a standard of law like Hague-Visby, and that would not be covered. I am grateful for that, because it means that, in significant private international law agreements, primary legislation will always be used. If that is right, although I can see the arguments in relation to Lugano, after the five years are up, the right predilection for the Government would be to say, “That is enough—let us go back to being the country that really looks at private international law agreements.” It would meet the Government’s requirement to deal with Lugano, and it would preserve our primary place in relation to the quality of the private international law agreements we make and the quality of the way we introduce them. Yes, you have to introduce what you have agreed, but there are many other things around them as well. I hope that the noble and learned Lord will be able to assure me that the starting point of the Government would be that one is enough and that there would need to be special reasons why there would be an extension for a second time.
I strongly support the amendment of the noble Lord, Lord Marks, which would place in the Bill an obligation to consult with each head of the three judiciaries of the United Kingdom, on the basis that if you put those consultees on the face of the Bill, they will ensure that the right people in the legal community are consulted. I am, at the moment, at a loss to understand how on earth that could be objectionable. I note that it is said that the Lord Chancellor’s advisory committee on private international law might change its nature. I can see that, but that could probably be dealt with by a power to change the title, to be given to the Minister under secondary legislation. However, I think it is extremely unlikely that the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland are going to have a significant name change within the next 100 years. If they did, no doubt every piece of legislation would be changed to reflect that. So why not?
The noble and learned Lord has done so much for us; the key thing from this side of the House’s point of view is that our quality as a country in this area should continue. There is no politics in this; it is just about getting the right result. I hope that he will reflect and give some assurances that might make the position easier.
My Lords, I add my welcome of the noble and learned Lord, Lord Stewart of Dirleton, to his place in taking over this technical but difficult Bill, one that raises issues of principle.
I welcome the government amendments, which have the power to act as safeguards on the power reinserted into the Bill by the Commons amendments. I agree with the summary by the noble Lord, Lord Pannick, of the Government’s amendments as sensible and constructive. But I share the disappointment of the noble and learned Lord, Lord Falconer of Thoroton, that the Commons amendments reinstate the delegated power that this House so comprehensively rejected.
I also agree with the noble and learned Lord, Lord Stewart, that outlawing the power to create offences punishable by imprisonment is of particular importance. I welcome the fact that the principle of a sunset clause has been accepted, although, for all the reasons mentioned by the noble and learned Lord, Lord Falconer, it should be meaningful and not liable to be endlessly renewed. It is also important that the Government have introduced a requirement for consultation before regulations are made. On that, in particular, I am grateful to the noble and learned Lord for the time he and the Bill team have spent with me and others discussing the government amendments to the Commons amendments and considering suggested changes.
For my part, I support the amendment on the sunset clause in the name of the noble and learned Lord, Lord Falconer, for all the reasons he gave. I understand the Government’s concern to ensure that there is sufficient time to bring new private international law agreements into UK law, and I accept that there may possibly, on occasion, be a need for more than five years to achieve that. However, I simply cannot see the need for further extensions beyond 10 years. It is in the nature of these international agreements that they take a long time to be finalised. However, the point about the first five years is that there are a number of international agreements, notably the Lugano Convention 2007, to which the Government wish to accede, which may need to be brought into law in the reasonably short term, and there are others on the horizon that may need more than five years. The problem with allowing for extensions beyond 10 years—that is, more than one extension—is that such a long sunset period may involve permitting the Government to implement in the UK international agreements that are currently unforeseen and unforeseeable. It was partly to address that issue that this House took the view that primary legislation should be required before implementing such agreements in domestic law.
I appreciate that this issue is addressed, in part at least, by the requirement for consultation before regulations are made implementing further private international law agreements. That requirement is, indeed, a welcome safeguard. My amendment to government Amendment 4B is designed to ensure that such consultations are both objective and impartial and seen to be so. The shortcoming of the present proposal is that the choice of those to be consulted lies entirely, in England and Wales, with the Secretary of State and, in Scotland and Northern Ireland, with Scottish Ministers, the relevant Northern Ireland department or the Secretary of State acting with their consent. That means that the power to choose who is to be consulted lies entirely with the Executive.
Of course, we accept that many Ministers can be confidently relied on to exercise that power dispassionately, but that confidence cannot always be assumed, and it has not always been justified by Secretaries of State. The change in the role of the Lord Chancellor may also have had an impact. I understand the Government’s concern to ensure that there is flexibility in the choice of those to be consulted. It goes without saying that, for example, a convention concerned with family law matters may call for different experts to be consulted than would a convention concerned with commercial law or contractual matters. That is why my amendment does not seek to impose on the Secretary of State a list of those who must be consulted. It lies behind what the noble and learned Lord said about the Government’s reasons for not setting out such a list, but I and others are also concerned to ensure not only that the choice of those to be consulted is clearly objective, impartial and apolitical but that the organisation, management and follow-up of the consultations are thorough and meaningful.
Accordingly, I understood the noble and learned Lord to be offering, on behalf of the Government, assurances to the House in that connection. I invite him to confirm, first, that consultation on the implementation of a private international law agreement will generally be in public, and that the Government will announce their intention to consult and invite people to offer their views. Secondly, will he confirm that if the Government decide that such a consultation will not be in public they will publicly explain that decision and the reasons behind it? Thirdly, will he confirm that the Government will report on the outcome of such consultations, if not in a separate report, then, as he envisaged, in or in a document accompanying the Explanatory Memorandum that comes with any proposed regulations made under the powers in the Bill? Finally, I understood the Minister to be offering an undertaking, which I ask him to confirm, to ensure that the explanations in or accompanying such explanatory memoranda will be thorough and detailed, setting out whom the Government have consulted and a fair and balanced summary of the views expressed in any such consultation.
Such assurances and undertakings, if confirmed in the terms I have set out, would offer reassurance to those of us who are concerned that all such consultations will be the genuine safeguards we need them to be. I beg to move.
The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Pannick and Lord Berkeley. I therefore call the noble Lord, Lord Pannick.
My Lords, I echo the words of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, in welcoming the Advocate-General for Scotland, the noble and learned Lord, Lord Stewart, to his post. I thank him and the Minister in the Commons, Alex Chalk, and their officials for taking the time to discuss with me and many other Members of this House our concerns, the House’s concerns and the concerns of the Constitution Committee about the delegated powers in the Bill and how those concerns can be accommodated by amendments. The noble and learned Lord has taken a very welcome constructive approach to these issues and I thank him sincerely for that. He has tabled amendments that go a significant way, in my view, to meeting those concerns.
Like the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, I would have liked, ideally, to see greater restrictions on the use of delegated powers in this context, but the theme tune that often—not always, but often—accompanies Lords’ consideration of Commons amendments is the Rolling Stones song “You Can’t Always Get What You Want”, and since we will not get exactly what we want today, the next best thing is for the Minister to assure noble Lords of the Government’s intentions in this context. Again, he has very helpfully gone a long way to do that this afternoon. I ask him to confirm my understanding on three topics that are raised by paragraph 1A, on consultation, as introduced by government Amendment 4B.
The first of these topics is the purpose of the consultation. There is a mandatory obligation to consult. It is not a discretion; there is a duty to consult. The amendment does not expressly say what the purpose is, but does the Minister agree that it is implicit that one of the purposes of the consultation will be to assist the Secretary of State in deciding whether it is appropriate to implement a particular international agreement by regulations, or whether primary legislation is needed?
Can the Minister confirm that the Government recognise that some international agreements, even when they are in the scope of this Bill, as explained by the Minister, may require changes that are so significant that it would not be appropriate to implement the international agreement other than by primary legislation? I suppose, also, the consultation might assist on whether the international agreement would alter substantive law, albeit incidentally, which I understood the Minister to accept would not be an appropriate subject for delegated legislation. That is the first matter: the purpose of consultation.
The second matter on which I would welcome assistance from the Minister concerns who is to be consulted. This topic was addressed by the noble Lord, Lord Marks. Does the Minister agree that it is difficult to envisage that there would ever be a case when it would not be appropriate to consult the senior judiciary? I understand that the Minister does not want to write it into the Bill, but it would be helpful if he could acknowledge that it is very difficult to envisage that it would ever be appropriate not to consult the senior judiciary. Does he also recognise that, if the Secretary of State is to be properly informed by this consultation, it will also require—other than possibly in the most exceptional cases—an invitation to the Law Society, the Bar Council and NGOs such as Liberty and Justice to express their views? I am not asking him to give a categorical assurance that this will be done in every case but, in respect of normal cases, I ask him to confirm his understanding that that is what he would expect normally to occur.
The third matter that I hope the Minister will address concerns the publication of the fruits of consultation—a topic that he helpfully mentioned in his opening remarks. Again, the noble Lord, Lord Marks, referred to this. I too understood the Minister to have confirmed that the Government intend to publish a report on the consultation responses when laying regulations before Parliament. It would give the House great reassurance if the Minister could confirm—as the noble Lord, Lord Marks, asked—that this will be a full, detailed report of who has been consulted, what they said, and what the Government’s response was if the Government disagreed with them.
The reason why this is so important is because, if regulations are laid, the House will itself want to consider whether the subject matter of the regulations makes it inappropriate for the Government to proceed by way of delegated, rather than primary, legislation. The committees of this House—particularly the Constitution Committee and the Delegated Powers Committee—and the House itself will want to take account of those consultation responses when forming their views. Again, I thank the Minister very warmly. I hope he can confirm my understanding on these issues.
My Lords, I am grateful to be able to participate in this debate. I join other noble Lords in welcoming the noble and learned Lord, Lord Stewart. I am grateful for the time he spent with me and the Commons Minister Alex Chalk MP discussing what I am about to talk about. I also congratulate my noble and learned friend Lord Falconer of Thoroton on his birthday today.
My interest is in something called the Luxembourg Rail Protocol, which we have all agreed is an item of private international law. The protocol is sponsored, along with the Cape Town convention, by the organisation UNIDROIT—I hope I have the right pronunciation. The UK is a full member of this organisation. The purpose of this rail protocol is very similar to a successful one that has existed for the air sector for many years. It is to do with moveable equipment: the financing, recognition, protection and enforcement of creditor rights in relation to equipment that can move. I spoke briefly about this in Committee on the Trade Bill, which I shall return to, but obviously, if investors want to financially support equipment that can be moved anywhere around the world, they want to have some comfort that they know where it is and will get their due money back or whatever.
I recall, from my experience in the railway industry about 20 or 30 years ago, that there was a time when rail wagons got as far as Italy and sometimes never came back. It is not like that today, but it might be like that in other parts of the world. It is really important for UK businesses—not only those that operate or own the relevant bits of equipment but also the export business that will come. I am advised that this needs to be done before the end of the year to provide continuity.
There has been quite a lot of debate here—and in our discussions with Ministers—as to whether this needs primary or secondary legislation. Other noble Lords with much greater experience than I have been discussing it this afternoon. I originally put down an amendment in Committee on the Trade Bill, and the Minister, the noble Viscount, Lord Younger, said he was very supportive of fitting the Luxembourg Rail Protocol into UK law, but thought that the Trade Bill was not really the right place for it. He said it would be much better if it were done as a statutory instrument under the scope of this Bill, assuming that the text of this Bill allows it to happen. I know that there have been planned discussions between Ministers here and Ministers in the Department for Transport, because obviously they will have to promote some secondary legislation, but the important thing now is for the Minister, when he comes to wind up, to give the strongest assurance that the Government are empowered under this Bill—or Act, as it will be—to adopt the Luxembourg Rail Protocol through secondary legislation, and that he will do all he can to encourage the Department for Transport to get this moving so that we have a statutory instrument by the end of the year. I know there is a big queue of legislation, but it would be really good if that could happen. Given that so many Ministers have said to me that they want this to happen and that it is good for businesses—I have not heard anyone saying that it should not happen—I hope that the Minister will be able to give me the strongest assurance that he can.
Does anybody else in the Chamber wish to speak? I call the noble Lord, Lord Mance.
My Lords, I declare an interest as a practitioner in the field of private international law and as joint chair of the Lord Chancellor’s advisory committee on private international law, to which reference has been made. I do not, of course, speak in that capacity and, as I mentioned on a previous occasion, that committee was not consulted about this Bill before its original introduction, although we have been very happy to be involved subsequently in relation to machinery under and related to the Bill.
I too welcome the Minister to his place and possibly, in succession to his predecessor the noble and learned Lord, Lord Keen of Elie, to a co-chairing of that committee with me. I would of course welcome that very much. I particularly welcome his measured and very careful consideration of the issues raised by the Bill. Described as “technical”, it has happily and rightly also been described as “important”. It is promoted as part of the United Kingdom’s preparation for the post-Brexit era—I will come back to that. It will certainly introduce into the UK’s legal systems three identified and very valuable Hague conventions, which have been mentioned, including the choice of court convention of 2005. As the noble and learned Lord, Lord Falconer of Thoroton, said, what has been controversial is the provision for the introduction by delegated legislative regulations of any number of further private international law measures which might be agreed at international level during an indefinite future.
I hope that I shall not be thought ungrateful in what follows for the mercies which have been granted. Certainly, the amendment relating to offences and the removal of the delegated power to create criminal offences punishable by imprisonment is highly welcome. So too is the Government’s agreement to limit the operation of Clause 2 to an operative period of five years. However, that is renewable, as has been pointed out, so that is not as large a change as the House wished —and I think would still wish—to see. The five-year period is capable of being extended by regulations and, moreover, more than once. In that respect, I support what the noble and learned Lord, Lord Falconer of Thoroton, said.
If the Bill is addressing the post-Brexit era, let us truly hope that that at least will be well and truly past within 10 years. In any event, we should be under no illusion that any great volume of instruments is likely to require attention under the Bill. Again, I echo a point that the noble and learned Lord, Lord Falconer, made. We know that the Government have, for better or worse, decided, if permitted by the European Union, to sign up to membership of the Lugano Convention 2007—that paler image of the present Brussels regime, which, as I previously remarked, is well accepted and understood, and popular in the City in particular. The signing up to the Lugano Convention 2007 will, as I have also pointed out, largely undo as regards EU states the potential benefits of signing up to the Hague choice of court convention 2005. That is because Lugano trumps the choice of court convention under the internal terms providing for their priority.
Apart from that, the 2019 Hague convention is a possibility which has been mentioned. It relates to recognition of judgments and one day, but certainly not soon, it may come into play as a possibility. At the moment it has no subscriptions of any significance at all. Then there is the Singapore mediation convention, previously much loved by government speakers here and in another place—but I am glad to see that, I think realistically, it was not mentioned by the noble and learned Lord, Lord Stewart. Its significance in promoting the enforcement of agreements reached as a result of mediation is certainly commendable but hardly earth shattering, those agreements being in any case enforceable at common law.
The reality is that as a country we do not go around the world trying to reach new ad hoc agreements regarding private international law matters, whether on jurisdiction or on recognition or enforcement of judgments. Such matters are nowadays undertaken at a regional—for example, EU—level or at an international level, such as the Hague conference level, which has produced the three conventions to which we will sign up under Clause 1. The UK is currently playing its part, and the Lord Chancellor’s advisory committee has been involved in relation to the discussions in The Hague regarding the possible supplementing of the 2019 convention by a lis pendens and/or forum conveniens convention—in other words, a convention dealing with the plague or problem of concurrent litigation in different countries. However, there never has been and there is unlikely ever to be, at least after the end of this year, any imperative to make immediate decisions about accession to or implementation of private international measures. As has been pointed out previously, they have in the past merited parliamentary consideration on the Floor of this House. Indeed, I consider that the merits or demerits of the Lugano Convention would have been such a matter. It will not get that consideration, but future measures should. Even if Clause 2 goes through as it is, that, as has been pointed out, does not preclude Ministers from bringing matters to the House in the ordinary, traditional way.
I will not go back at length on the limited number of past measures which have allowed a limited degree of delegated legislation in this field: the Administration of Justice Act 1920, a measure covering other of Her Majesty’s jurisdictions overseas, and the Foreign Judgments (Reciprocal Enforcement) Act 1933. These Acts deal with judgments which would anyway have been enforceable by action at common law and were simply given a convenient means of enforcement by statutory delegated legislation. They did not cover jurisdiction but only recognition and enforcement of judgments. I endorse what the noble and learned Lord, Lord Falconer, said on that. I see that reference was made in another place to the Mental Capacity Act 2005, but that is a wholly unpersuasive precedent which simply enabled the bringing into force by regulations of the specific Hague Convention on the International Protection of Adults 2000. In other words, it is a parallel to Clause 1, which brings into force specific Hague conventions, and not a parallel to the present Clause 2 that we are considering.
The appropriate course in private international matters which are important is that wherever possible they should receive full parliamentary attention before international ratification. Looking back over the history of legislation, there is the Civil Jurisdiction and Judgments Act 1982, but it also occurred in relation to legislation which has been mentioned previously: the Carriage by Air Act 1961 and the Carriage of Goods by Road Act 1965, which are hybrid—they have provisions extending outside private international law.
Three committees had no doubt about the inappropriateness of the reinstated clause—two of them have been mentioned—and the Constitution Committee noted the inadequacy of CRaG as a means of scrutiny of matters proceeding at international level. One hopes that will be addressed at some point, but it is a fact at the moment. So my message would be that if Clause 2 is to stay in the Bill, we should welcome the concessions which have very helpfully been made, but we should do all we can still further to limit its presence as an intruder. I therefore support the amendment of the noble and learned Lord, Lord Falconer, in that respect.
The amendment to Amendment 4B tabled by the noble Lord, Lord Marks, which I also support, arises again from another small governmental step, for which I express gratitude. However, it is not a very large one. Under it, before making regulations, the Secretary of State must
“consult such persons as the Secretary of State thinks appropriate.”
Well, no doubt that means that he cannot simply consult his own conscience or go into the next room, but I suppose he might go out into Petty France. It is completely open, and of a generality and subjectivity which is not very helpful. Therefore, I welcome the suggestions that have been made and the assurances which the Minister has given today about actual intentions.
The background, as I have said, is that there was no consultation with the Lord Chancellor’s advisory committee about the original Bill, so any assurances now are valuable. Those proposed by the noble Lords, Lord Marks of Henley-on-Thames and Lord Pannick, are welcome in the interests of, first, public consultation, which will generally be appropriate; it may not be appropriate in every case but it is generally important. Family and commercial issues arouse great interest around the country. Secondly, there should be an objective process, and thirdly, it should be transparent.
The amendment in the name of the noble Lord, Lord Marks, selects three persons whom he suggests—and I endorse—should be introduced as consultees, at least to identify other consultees. One could, as has been suggested and as the noble Lord, Lord Pannick, mentioned, identify the presence of the Law Society and the Bar as invaluable contributors, as well as the senior judiciary. One way or another, such persons would have the independent task of identifying relevant stakeholders, which would ensure objectivity and completeness in consultation.
The present phrase has a certain bathetic quality about it, which the Minister has done a considerable amount to dispel. I repeat my welcome for that but I ask him to give the assurances requested by the noble Lords, Lord Marks and Lord Pannick. On that basis, the Bill would be on a sounder footing and those of us who had understandable concerns about it would, I hope, find them considerably alleviated.
My Lords, it is indeed a privilege to follow the magisterial and extensive exposition of the noble and learned Lord, Lord Mance, whose depth of experience and knowledge I defer to. He referred to the Bill as an intruder, which was an interesting description.
The Second Reading took place on 17 March, just at the beginning of lockdown. The noble and learned Lord, Lord Keen of Elie, outlined the wide scope of the issues raised by the Bill. He said:
“Without private international law agreements, UK businesses, individuals and families would struggle to resolve the challenges they face when dealing with cross-border legal disputes.”—[Official Report, 17/3/20; col. 1439.]
The Minister echoed that opening today but I was surprised when he suggested that the area of law was narrow. As we have heard from the noble Lord, Lord Berkeley, it may encompass disappearing railway carriages in Italy, which has an Agatha Christie ring about it.
The new clause inserted by the other place reflects that width. The Westminster Government or a devolved Government may, by regulation, implement any international agreement so far as it relates to private international law. Further, the appropriate national authority may, by regulation, apply any agreement between the different jurisdictions within the United Kingdom or give effect to any arrangements between the UK Government and the British Overseas Territories, the Isle of Man or the Channel Islands. The emphasis throughout is on any future agreement of whatever nature that involves private international law anywhere in the world or internally within the United Kingdom.
It would appear that the Government have listened to the many voices suggesting that these clauses are excessively wide. Consequently, in response, the Minister today introduced the outline of a sunset clause, limited in the first instance to five years. He said that the urgent need is “ to update the framework” lost by our leaving the EU. The principle that there should be a temporal limit to the exercise of these wide powers in the uncertainties of the present time is clearly a good one. Unfortunately, the Government have decided that, like the British Empire, the sun shall never set upon these provisions. That is the effect of granting power to extend the operative period, not just for a further period of five years but, under proposed new subsection (3D), to renew the power to extend the period indefinitely. It just keeps rolling along. That makes a mockery of a sunset clause; consequently, I am delighted to support the amendment in the name of the noble and learned Lord, Lord Falconer.
As I said at earlier stages of the Bill, our hugely unsatisfactory procedures for passing secondary legislation by resolution, whether affirmative or negative, may be tempered in the interests of democracy by consultation with interested parties. Amendment 4 pays lip service to that concept but, in effect, gives power to the Minister to choose whomsoever he thinks appropriate to consult. The wording is loose, such that although there is a duty to consult if the Minister thinks subjectively that there is nobody appropriate—as the noble Lord, Lord Pannick, said—he does not have to exercise that choice; or, as the noble and learned Lord, Lord Mance, said a moment ago, he could walk out into the street and consult someone.
The purpose of the amendment in the name of my noble friend Lord Marks of Henley-on-Thames is to bring some objectivity to the exercise. The Minister may be surprised to know that the shelf life of a Minister in this and the previous Government tends to be no more than two years, and that Secretaries of State come and go through the various offices of state without necessarily knowing anything at all about their work. As WS Gilbert put it over 100 years ago, the way to advancement may well be to polish up the brasses on the big front door of No. 10.
Consequently, it is only sensible to have the guiding hand of the head of the judiciary in the various jurisdictions. No doubt the Sir Humphreys of this world can suggest that the Secretary of State rounds up the usual suspects, but that is no substitute for the Lord Chief Justice and his peers, who have a lifetime of experience of the legal world and the whole of the judiciary to draw on for advice as to who the suspects should be. As the noble Lord, Lord Pannick, said, it is inconceivable that they should not be consulted in any event.
I support the amendment in the name of my noble friend Lord Marks and, in particular, his call for a full and transparent report on the fruits of the consultation.
My Lords, I begin by thanking noble Lords for their thoughtful and erudite contributions. I thank them also for their courteous and warm words of welcome to me at the Dispatch Box. I echo the words of the noble and learned Lord, Lord Falconer of Thoroton, in a phrase that I think will resonate with the entire House and with which none of us would disagree: our imperative is the preservation of this country’s good name and its standing in private international law matters.
The matters raised in the course of our discussions overlapped to some extent but I will, if I may, do my best to treat the contributions to the debate in the order in which they were made. First, I shall address the comments of the noble and learned Lord, Lord Falconer of Thoroton, in relation to Amendment 1C, which omits some text from my Amendment 1A, the effect of which would be to allow the sunset period—which my amendment allows to be extended for five years by affirmative statutory instrument—to be extended only once.
The Government have been clear about how we wish to use this power over the next few years. As your Lordships have heard, this includes Lugano or alternatives with Norway, Iceland and Switzerland, should our application be unsuccessful, as well, potentially, as the Singapore convention on mediation and the 2019 Hague judgments project, following consultation. If the Government ask Parliament to extend the power in five years, we will need to make our case again and have regulations approved in both Houses. To make a persuasive case, the Government will provide similar clarity on how we intend to use the power over the next five years and for every five-year period thereafter, should we pursue further extensions. Clearly, I cannot provide that detail now but, by the time such an extension is requested, it will be available and Parliament will be able to consider how the power has previously been used.
Essentially, this reviewable sunset requires the Government to consult on, and obtain parliamentary approval for, our strategy in this area of law every five years. I submit that this gives Parliament more oversight of government policy in private international law than it has ever had before. The need to come back to Parliament at five-year intervals with a plan for how the power will be used will act as a powerful regulator.
I mention the words of the noble and learned Lord, Lord Mance, on the ability of our procedures to properly scrutinise statutory instruments brought before this House and the other place. I respectfully submit that the Bill is not an occasion for a referendum on those powers generally, irrespective of the views that Members of this House have of their efficacy.
I do not know what the situation will be like in nine years. If this power is deemed to have been necessary only in the years following our departure from the European Union, the Government could decide not to extend the power any further or Parliament could refuse to approve such an extension. By then, this power may be widely accepted as proportionate and appropriate. If that is the case, requiring Parliament to pass new primary legislation to extend an existing uncontroversial power seems highly undesirable, especially if the delay while parliamentary time is found for primary legislation leaves, for example, a family who would benefit from a new agreement about child maintenance or custody across borders in a worse position than they would be in if the Government could move quickly to implement such an agreement by secondary legislation.
My view is that the power represents a balanced and proportionate approach to implementing these uncontroversial and technical agreements. The sunset amendment in my name represents a significant concession by the Government to take account of the concerns of this House, while still retaining some aspect of the flexible approach that we originally sought, so that we balance constitutional concerns with the needs of those who depend on these agreements. I urge the noble and learned Lord to consider withdrawing his amendment.
I turn to the views of the noble Lord, Lord Marks, who tabled Amendment 4F, which adds a requirement for the Secretary of State to consult specified persons. This overlaps with matters raised by the noble Lord, Lord Pannick. It specifies that the Secretary of State should consult the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland ahead of using the main delegated powers in the Bill. I recognise that the intent behind this is to ensure that the consultation process is robust, and that is clearly important. We consider that the Government would greatly value the opinions of these persons on these matters, but we believe it unnecessary to stipulate in the Bill that they should be consulted. I am concerned, because there are a number of reasons why this may not work in practice.
It is worth making the point that there may be specific subject areas within private international law, such as disputes around child abduction, in which not only the legal profession would have a stake. I fully appreciate this—I see the noble and learned Lord across the Table nodding. To echo the point of the noble Lord, Lord Pannick, it may be difficult to conceive of a situation in which the views of those specified senior judges would not be considered important, so that they were not consulted. But it may be more appropriate for the Lord Chancellor to take the views of third-sector organisations. The original drafting of the amendment allows for flexibility when this is the case.
While private international law is not ordinarily a subject on which the Government undertake a full public consultation, such as was mooted, there could be situations in future where that would be proportionate. There may also be situations when the power is used to bring forward a minor technical statutory instrument to update the terms of an agreement. My colleague Minister Chalk, in his speech in the other place, referred to an Order in Council that the previous Labour Government had made in 2003, simply updating the names of courts captured by an agreement between the United Kingdom and Israel. If such an instrument were brought forth under this power, we would anticipate the level of consultation on it being proportionate, compared to situations when we are implementing a new agreement. It would not require the views of the senior judges specified by the noble Lord, Lord Pannick, and other noble Lords. It remains important that the Lord Chancellor can retain the flexibility to consider whom it is appropriate to consult on a case-by-case basis.
In addition, this amendment would require us to consult the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland in every case. As the delegated power is currently drafted to respect the devolution position and allow for the devolved Administrations to bring forward their own implementing legislation should they wish to, it may be that, in some circumstances, this Parliament and the Secretary of State are concerned only with implementation for England and Wales. In those circumstances, I am not sure that consultation with the judiciary of Scotland and Northern Ireland would be appropriate. In the exercise of their devolved competence, I am not sure that the Scottish Parliament or the Northern Ireland Assembly ought to be bound to consult the judiciary of England and Wales—enlightening and important as such consultation may be.
Further, since the start of this process, the Government have been clear that this power would be used to implement the Lugano Convention. The importance of this has come up several times during debates on the Bill. There is widespread agreement that it needs to be implemented promptly if the United Kingdom’s application is to be successful. To that end, we have already discussed the matter at length with the Ministry of Justice’s international law committee and have shared a draft of the proposed implementing regulations with, and received views on them from, the Lord Chancellor’s advisory committee on private international law, which includes representatives from both Scotland and Northern Ireland, and sitting and former members of the judiciary. This has provided useful feedback. A requirement to go back to these judges would cause unnecessary delay, increasing the gap when the Lugano Convention is not in force—a situation that we all want to avoid. What would happen if, for instance, a consultee suggested by the Lord Chief Justice failed to respond? It is not beyond the realms of conjecture for that to be the case with third-sector organisations or specific learned individuals. Any of that could result in delay.
While I acknowledge that the intent behind the noble Lord’s amendment is to ensure that any consultation is robust, and is therefore entirely reasonable, for the reasons I have outlined, I am concerned about how it would work in practice. I consider it to be unnecessary if the objective is simply to ensure that the Government consult in an effective manner, and I therefore respectfully ask him to withdraw his amendment.
I thank the noble Lord, Lord Berkeley, for his comments and for meeting to discuss these issues with me and my ministerial colleague Minister Chalk last week. I endorse the noble Lord’s views on the importance of the rail industry and of the Luxembourg protocol. I suggest that the analogy he drew of disappearing railway carriages was an example of him speaking figuratively. The application of the protocol is narrower than that. The Government consider this to be an important issue and are thinking about how best to implement the protocol in the United Kingdom. As we discussed last week, we consider that the power in this Bill is too narrow to fully implement the protocol, although the provisions in applicable law would be within its scope. I acknowledge once again his excellent work in championing this important issue and assure him that the Government are fully seized of his views and of the importance of the matter he has raised. It would provide, as it is intended, things to assist the smooth and seamless flow of trade across borders.
The noble Lord, Lord Pannick, raised a number of issues, and if I overlap in the comments I am making, I apologise to the House. I confirm that the obligation to consult will require us to take account of all the views expressed, including where people might express a view that primary legislation is appropriate to deal with a particular issue. The Government’s approach throughout on the delegated power has sought to be pragmatic and not dogmatic. We want to be proportionate in our implementation of PIL agreements but, where consultees make strong arguments about the appropriateness of primary legislation for a particular agreement, we would listen and consider them in the proper manner.
I shall go back to a matter raised by the noble Lord that I may have already touched on, which is the identity of consultees. As he does—I think it is universal across the Chambers—I envisage that the views of the senior judiciary would be sought on these matters. We have already shared the draft of a statutory instrument to implement Lugano with the Lord Chancellor’s advisory committee on private international law and have discussed the issue at length with the international law committee at the Ministry of Justice, both of which contain representatives of the judiciary. The matter of whether concerns were raised at that stage by those representatives is perhaps neither here nor there, but the consultations took place and in neither case were concerns raised about the use of secondary legislation for the matter. As I think I said earlier, I can envisage a situation where there may be very technical procedural updates to a convention that do not require a senior judicial view on their implementation, such as updating the name of a foreign court that is referred to in an existing agreement. However, where a statutory instrument under the power implements a new agreement or makes material changes to an existing one, I agree that the views of the senior judiciary would be sought. To put the noble Lord’s point shortly: why not then simply stipulate in gremio of the Bill that the judiciary should be consulted? I reiterate my point that that might add extra bureaucratic weight to the burdens of its office and would not promote the flexibility in this exercise which the Government seek to accomplish.
The noble Lord, Lord Pannick, also asked about the terms of a report that would be issued at the conclusion of the consultation process. This matter was raised by other noble Lords as well. While it is not the Government’s intention to publish a separate report summarising the consultation responses, we intend to provide Parliament with a detailed explanation of the persons with whom we have consulted and a fair and balanced summary of the views they have expressed within the Explanatory Memorandum that accompanies any statutory instrument made under the power. Of course, were that summary of those views to misrepresent them to any extent, that could immediately be brought to the attention of this House and the other place. That is the right approach. It will give Parliament the opportunity properly to consider the exercise which the Government have undertaken and to scrutinise and hold to account where appropriate. Those remarks also echo the views of the noble Lord, Lord Thomas of Gresford, in his point relating to the effectiveness of the consultation procedure. I respectfully disagree with the proposal that this would permit the Government to make a mockery of the sunset clause. As I have stated, the procedures that I have outlined provide Parliament as a whole with a greater opportunity to scrutinise such measures than has been afforded for many a year.
In spite of my initial remarks, I appreciate that I have taken speakers out of order. I turn finally to the views of the noble and learned Lord, Lord Mance, and the valuable tour of the private international law horizon that he gave, which were most welcome. On the matter of the period of five years, the approach that the Government seek to take and urge on the House will take into account the fact that, notwithstanding that tour of the horizon of private international law, we cannot know precisely what lies ahead. The five-year periods permit the Government to see measures as they arise, to see the approach of conventions as they arise and to act accordingly in relation to formulating what the country’s policy ought to be. In those circumstances, we take the view that the five-year sunset period with the renewable extension permitted would give the Government the opportunity to give full and careful consideration to private international law agreements which they may decide would be beneficial for the United Kingdom to join. It would also provide ample time to fulfil our obligation in statute to consult relevant stakeholders.
The Ministry of Justice is in the process of formulating a 10-year strategy for private international law. The five-year renewable sunset would align more closely with our long-term strategy and enable the Government to be more agile in negotiations with our partners around the world. That sunset clause which the Government need to bring back to Parliament every five years would, as I have said, act as a good regulator to ensure that they are achieving their aims of re-establishing an effective framework of private international law agreements in the years to come. It is important that the Government can do this without the current pressures, but it is right that Parliament also has the opportunity to hold the Government to account, should they fall short.
Before I conclude, I remind the House that we need to agree a version of the Bill so that Clause 1 can be enforced before the end of the transition period. This clause provides a clear and simple approach to the implementation of three vital Hague conventions which affect the lives of people in the United Kingdom. Because of this, the Government’s priority is to avoid an extended back and forth between here and the other place. That does not mean, however, that we are trying to avoid the valuable scrutiny that the ping-pong process can offer.
I am grateful once again to your Lordships for your time and consideration of the Government’s proposals. The approach we have taken in these amendments reflects this. We have engaged with a number of your Lordships ahead of the Bill returning to this Chamber. We have sought to listen and have tabled the suite of amendments that has been considered today. We submit that this is not a paltry offer of the bare minimum which would address on any level at all the principal concerns your Lordships have raised. The amendments are a genuine attempt to reach a meaningful compromise in the areas that have raised most concern. I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, and to others for their acknowledgement of the importance of removing matter relating to the criminalisation of offences punishable by periods of imprisonment.
The amendments seek to address the particular concerns around appropriate scrutiny, while protecting the Government’s core policy objective. We could send this Bill back to the Commons, only to have it come back to us once more to make final tweaks to these amendments, but I urge your Lordships to see the bigger picture. This package of amendments is balanced and proportionate. We must consider not just the constitutional issues but the impact these agreements have on families and businesses. We need to pass this Bill, and time is moving on. This is an opportunity for us to send the Bill back to the other place with a clear signal that this House has balanced pragmatism with principle and found an effective compromise that it should support. I beg to move.
May I express the gratitude of the whole House for the care with which the noble and learned Lord, Lord Stewart of Dirleton, dealt with every single issue that was raised? That I disagree with some of the answers is not the same as saying that he did not deal with them. For a Bill like this, it was an absolute model of going through every issue and putting the Government’s argument; I am incredibly grateful for that. There is nobody more disdainful than me when questions are not answered but, my goodness, the noble and learned Lord did a very good job and the whole House is grateful for that.
I will focus on my amendment, which concerns not being able to extend and extend the provision. My reading of what the noble and learned Lord said is that the sunset clause was intended in part to deal with the objections raised by this House. As he knows, the reason for those objections is that we do not consider secondary legislation appropriate. He replied, in effect, that there are good reasons for it—Lugano, primarily. As I read it, he is saying that unless there are good reasons, the sun will set on this Bill. If that is the right approach and what he is indeed saying, my view is that the Lugano provisions that currently apply—we may be only four or five weeks away from wanting them to come into force—mean that it is very unlikely that future circumstances will arise that would justify using secondary legislation. I hope that is what he means.
The noble and learned Lord has acknowledged the reasons why this House did not want the secondary power. In those circumstances, mindful of the need to get the three conventions in Clause 1 on to the statute book 1, I will not be moving my amendment—but only on the basis that I earnestly expect that the Government will not need one, let alone two extensions to the sunset clause. I beg leave to withdraw the amendment standing in my name.
Amendment 1C withdrawn.
Motion on Amendments 1 to 1B agreed.
Motion on Amendments 2 and 3
2: Clause 2, page 2, line 28, at end insert—
“(2) Regulations under section (Implementation of other agreements on private international law) may make provision binding the Crown.
(3) The reference to the Crown in subsection (2) does not include—
(a) Her Majesty in Her private capacity,
(b) Her Majesty in right of the Duchy of Lancaster, or
(c) the Duke of Cornwall.”
3: Clause 3, page 2, line 30, at end insert—
“(2) Her Majesty may by Order in Council provide for section (Implementation of other agreements on private international law) (including Schedule (Regulations under section (Implementation of other agreements on private international law))) and section 2(2) and (3) to extend, with or without modifications, to the Isle of Man.”
Motion on Amendments 2 and 3 agreed.
Motion on Amendments 4 to 4E
4: After Schedule 5, insert the following new Schedule—
Regulations under section (Implementation of other agreements on private international law)
Restrictions on power to make regulations
1 (1) Regulations under section (Implementation of other agreements on private international law) may not include—
(a) provision that confers power to legislate by means of regulations, orders, rules or other subordinate instrument (other than rules of procedure for courts or tribunals);
(b) provision that creates an offence for which an individual who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) is capable of being sentenced to imprisonment for a term of more than two years (ignoring any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions).
(2) Sub-paragraph (1)(a) does not prevent the modification of a power to legislate conferred otherwise than under section (Implementation of other agreements on private international law), or the extension of any such power to purposes of a similar kind to those for which it was conferred.
(3) A power to give practice directions or other directions regarding matters of administration is not a power to legislate for the purposes of sub- paragraph (1)(a).
Regulations to be made by statutory instrument or statutory rule
2 The power to make regulations under section (Implementation of other agreements on private international law)—
(a) is exercisable by statutory instrument, in the case of regulations made by the Secretary of State;
(b) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)), in the case of regulations made by a Northern Ireland department.
Parliamentary or assembly procedure
3 (1) This paragraph applies to a statutory instrument containing regulations made by the Secretary of State under section (Implementation of other agreements on private international law).
(2) If the instrument contains (whether alone or with other provision)—
(a) provision made for the purpose of implementing or applying, in relation to the United Kingdom or a particular part of the United Kingdom, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law) or otherwise),
(b) provision made for the purpose of giving effect, in relation to the United Kingdom or a particular part of the United Kingdom, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),
(c) provision that creates or extends, or increases the penalty for, a criminal offence, or
(d) provision that amends primary legislation,
it may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House.
(3) In this Schedule “relevant arrangements” means arrangements of the kind mentioned in section (Implementation of other agreements on private international law) (3).
(4) If sub-paragraph (2) does not apply to the instrument, it is subject to annulment in pursuance of a resolution of either House of Parliament.
4 (1) This paragraph applies to regulations made by the Scottish Ministers under section (Implementation of other agreements on private international law).
(2) The regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010) (asp 10)) if they contain (whether alone or with other provision)—
(a) provision made for the purpose of implementing or applying, in relation to Scotland, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law) or otherwise),
(b) provision made for the purpose of giving effect, in relation to Scotland, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),
(c) provision that creates or extends, or increases the penalty for, a criminal offence, or
(d) provision that amends primary legislation.
(3) If sub-paragraph (2) does not apply to the regulations, they are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010).
5 (1) A Northern Ireland department may not make regulations under section (Implementation of other agreements on private international law) that contain (whether alone or with other provision)—
(a) provision made for the purpose of implementing or applying, in relation to Northern Ireland, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law) or otherwise),
(b) provision made for the purpose of giving effect, in relation to Northern Ireland, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),
(c) provision that creates or extends, or increases the penalty for, a criminal offence, or
(d) provision that amends primary legislation,
unless a draft of the regulations has been laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.
(2) Regulations under section (Implementation of other agreements on private international law) made by a Northern Ireland department are subject to negative resolution, within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954, if a draft of the regulations was not required to be laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.
(3) Section 41(3) of that Act applies for the purposes of sub-paragraph (1) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.
6 In this Schedule—
“amend” includes repeal or revoke;
“primary legislation” means any provision of—
(a) an Act of Parliament,
(b) an Act of the Scottish Parliament,
(c) an Act or Measure of Senedd Cymru, or
(d) Northern Ireland legislation;
“relevant arrangements” has the meaning given in paragraph 3(3); “relevant international agreement” has the same meaning as in section (Implementation of other agreements on private international
4A: In paragraph 1(1), in paragraph (b), leave out from “offence” to end of paragraph
(b) and insert “punishable by imprisonment.”
4B: After paragraph 1 insert—
1A Before the Secretary of State makes regulations under section (Implementation of other agreements on private international law) the Secretary of State must consult such persons as the Secretary of State thinks appropriate.”
4C: In paragraph 3(2), after paragraph (d) insert “, or
(e) provision made under section (Implementation of other agreements on private international law) (3C),”
4D: In paragraph 4(2), after paragraph (d) insert “, or
(e) provision made under section (Implementation of other agreements on private international law) (3C).”
4E: In paragraph 5(1), after paragraph (d) insert “, or
(e) provision made under section (Implementation of other agreements on private international law) (3C),”
Amendment 4F not moved.
Motion on Amendments 4 to 4E agreed.
Motion on Amendment 5
5: In the Title, line 1, at end insert “and to provide for the implementation of other international agreements on private international law.”
Motion on Amendment 5 agreed.
Law Enforcement and Security (Amendment) (EU Exit) Regulations 2020
Motion to Approve
My Lords, these regulations relate only to the niche areas of explosives precursors and firearms. First, the provisions on explosives precursors have no impact on business. They will affect only a small number of members of the public based in Great Britain who also wish to acquire, import, possess or use explosives precursors in Northern Ireland. These are hobbyists who wish to make use of certain substances in both Great Britain and Northern Ireland, largely for leisure pursuits such as fuelling model cars or planes. Secondly, the provisions on firearms impact only on members of the public based in Great Britain who wish to travel to EU countries with their legally owned firearm.
These provisions make no changes to the legal requirements in the application process for the civilian possession of firearms in Northern Ireland or Great Britain, or to the movement of legally owned firearms between Great Britain and Northern Ireland. They do not have any effect on businesses.
I will set out the background as to why this SI is required. Last year, in preparation for the UK’s departure from the EU on 31 January 2020, the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 were laid by the Home Office. These regulations covered a wide range of security-related topics. Their purpose was to ensure that a number of existing regulatory regimes continued to operate in substantially the same manner as before exit day.
Your Lordships will be aware that the Northern Ireland protocol was agreed in October 2019. It was designed as a vehicle for implementing the UK’s exit from the EU in a way that worked for Northern Ireland—particularly and importantly as a means of maintaining the Belfast/Good Friday agreement, the gains of the peace process and the delicate balance within the community. It sets out arrangements necessary to address the unique circumstances on the island of Ireland, to maintain the conditions necessary for continued north-south co-operation, to avoid a hard land border and to protect the 1998 agreement in all its dimensions. Above all, it seeks to preserve Northern Ireland’s place within the UK.
The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2020 are needed in order to implement niche aspects of the protocol. They cover only explosives precursors and firearms and ensure that Northern Ireland continues to implement EU law on these two matters, as required by the protocol. They represent the necessary legislative building blocks to ensure readiness at the end of the transition period.
I turn first to the provisions on explosives precursors. The changes made by these regulations will ensure that domestic law does not contradict the EU regulations to which the Northern Ireland explosives precursors licensing regime will continue to be aligned. In Great Britain, the Home Office issues licences to members of the public to acquire, import, possess or use explosives precursors. This allows them to use these substances for specific hobbies such as propelling a model car or plane. These licences are currently recognised in Northern Ireland.
As a result of these regulations, the licences issued by the Home Office will no longer be valid in Northern Ireland. If a member of the public with a licence issued by the Home Office wishes to acquire, import, possess or use explosives precursors in Northern Ireland, they will require a separate licence, issued by the Northern Ireland Office. I understand that the Home Office intends to write to current Great Britain-based licence holders to make them aware of this change. Public guidance on the www.GOV.UK website will also be updated.
I turn now to explaining the changes brought about by these regulations in relation to firearms. Firearms are largely a devolved matter, responsibility for which sits with the Northern Ireland Department of Justice. Given that the UK Government’s priority is to ensure readiness for the end of the transition period, this matter has been included in the regulations. Northern Ireland Office officials have worked closely with officials from the Northern Ireland Department of Justice on the development of the regulations. The Northern Ireland Justice Minister has consented to the devolved aspects being legislated for at Westminster.
The regulations will ensure that Northern Ireland remains aligned with the EU weapons directive, which sets minimum standards for civilian firearms acquisition and possession. The specific impact of the regulations is that Northern Ireland will continue to issue and recognise the European firearms pass—a form of passport allowing lawful travel with a legal firearm across the EU and Northern Ireland. At the end of the transition period, Great Britain will no longer issue or be able to use the European firearms pass. The Home Office has engaged with relevant stakeholders across the UK, making it clear that residents of Great Britain will no longer be able to use or apply for the European firearms pass to travel with their legal firearm. Residents of Northern Ireland will, however, still be able to request a European firearms pass and use it to take a lawfully owned firearm to an EU country, including Ireland, from 1 January 2021.
The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2020 do not introduce any new concept or policy. I therefore trust that the House will view them as uncontroversial. They are required in order to implement the protocol in the already highly regulated areas of explosives precursors and firearms. They are a technical consequence of EU exit and of the protocol, and their introduction will contribute to the UK’s readiness for the end of the transition period. I beg to move.
My Lords, I thank the noble Viscount for introducing this legislation. I was initially thrown by the language. I shudder to think how much time I spent trying to figure out exactly what an explosives precursor was. Basically, it is a chemical compound that can be used in explosives.
Given that, in the history of Northern Ireland, virtually all terrorists seem, at times, to have resorted to home-made explosives, these regulations seem extremely sensible and I can see no real objection to them. However, it would be good to know how the fertiliser bomb fits into the regulations. Are such chemicals trigger mechanisms or accelerants? A little more detail would be helpful, if the noble Viscount has it. If not, perhaps he would write to me.
The noble Viscount may already have answered my next question—what do you do about weapons such as target rifles, which can be carried around? These weapons are potentially lethal, even if they are not the most efficient way of hurting someone. They fire a projectile at great pace and with great accuracy over a long distance.
I am trying to extract a little more information, which, having listened to what the noble Viscount said, is not quite fair. Nevertheless, how can we make sure that it will be possible to travel with such a weapon between Great Britain and the continent or Ireland? Are there any legal barriers or other stages that have to be gone through if you are competing across the whole of Great Britain and in Europe, for instance, and not just in Ireland? It would be interesting to know that, because it will affect people, especially at the elite end of that sport. The same can be said of sporting guns—shotguns et cetera—that are used for shooting game. How do they fit in, and what hurdles does one have to jump through? I do not dispute the fact that there should be some but it would be nice to hear what they are.
Perhaps I might be allowed to put my toe into slightly more controversial water. Would these weapons be affected if, for instance, the amendments that we passed to the internal market Bill were kept, or would the situation change if we went back to the original Bill? It might be interesting to hear that when the noble Viscount sums up. With that caveat, I give moderate approval to the regulations.
My Lords, we now have a plethora of legislation on which the protocol on Ireland/Northern Ireland has an effect. Today’s regulations are some of the most important ones covered by the protocol, in that they govern the marketing and use of explosive precursors, and control the acquisition and possession of civil firearms.
Previously, when we were a member of the European Union, it was far more straightforward to gain a licence to circulate explosive precursors or firearms between the various European countries, as there was a need to apply in only one country. I understand that it is necessary for someone residing in Great Britain to obtain a separate licence for Northern Ireland, but now, as we take back control, it is becoming more complex for people to understand what is and is not permitted, and how to go about ensuring that they stay within the parameters of the law.
With these regulations, we find that the existing EU regulations regarding explosive precursors and firearms have been amended ahead of the end of the transition period, only for them to become outdated before they come into force due to the later protocol agreement between the UK and the EU. Thus, we have legislation before us today which needs amending once more to ensure that the correct laws apply to Northern Ireland and, crucially, to avoid a so-called hard border between Ireland and Northern Ireland.
It is possible that an individual or business will have a licence for the mainland but not realise that things have changed regarding the circulation of explosive precursors or civil firearms between Northern Ireland and the rest of the UK. Although in the past, one licence was sufficient for the movement of these firearms from one part of the UK to another, now it is not. So, not fully realising the extent of the change, a person might transport items unaware of the conditions that now prevail. In such an act of inadvertence, what would the outcome be and how would people be treated?
Also, it is not clear from the regulations how the governance and issuing of licences relating to either side will be covered so that there are no loopholes and no way in which individuals will be able to carry out nefarious acts due to one licensing authority issuing a licence while another does not. How will both authorities ensure consistency in the issuing of licences and maintain good communication to reassure the public and maintain public safety?
The amendments to the regulations serve only to make the law inaccessible and incomprehensible to ordinary people. It is undeniable that at some point in the future we will need to amend them once more as they become outdated due to some event or another, or due to a change in direction. Does the Minister agree that it would have been better to start afresh with new legislation on these vital rules governing explosive precursors and firearms, instead of having a mish-mash of regulations such as these, which omit provisions of the lens regulations in Northern Ireland but will be in force for the rest of the UK?
My Lords, I want to ask the Minister a few practical questions before dealing with some of the points that he made in his introduction.
Firearms are of course used for sport, which is quite a significant industry both in Great Britain and in Northern Ireland, and indeed in the Irish Republic. They are also used, for instance, in the Olympics and the Commonwealth Games. What impact would these measures have on the movement of weapons for sport and recreation, such as shooting parties? Would there be an implication for people in possession of personal protection weapons, given that the legal position vis-à-vis Great Britain changes under these regulations?
I want to draw attention to some of the remarks that the Minister made in his introduction. He referred to the requirement to ensure that there was no border on the island of Ireland and said that this was necessary to protect the Belfast/Good Friday agreement. Of course, nobody wants a trade border on the island of Ireland, but nor do we want a border in the Irish Sea. However, that is exactly what we have not only with these but with other regulations.
Earlier today, I drew the attention of the House to the common rules for exports regulations, which were considered in Grand Committee on 10 November. The noble Lord, Lord Grimstone, announced that that law would be implemented in Northern Ireland by the European Commission, thereby establishing that a foreign power would exercise Executive authority in Northern Ireland, despite the fact that we are supposed to have taken back control and are supposed to be maintaining the union. I remind the House that a border in the Irish Sea is anathema to the Belfast/Good Friday agreement just as much as a border on the island of Ireland. However, that seems to have been largely set aside and ignored, not only in this but in other legislation. In case noble Lords think that it is just me who sees that as the situation, perhaps I may refer the House to the Library note that accompanies these regulations. Under the heading “What would the 2020 regulations do?”, there is a section on firearms that says:
“The European Commission has stated that the ‘movements of firearms between Northern Ireland and the EU are not considered as imports or exports’. This is because Northern Ireland is generally treated as an EU member state under the Protocol.”
That comes from our own Library.
The issue is twofold. There are the practical questions that I put to the Minister, but there is a wider issue of what these regulations and the protocol are doing. The protocol is a disaster for the union; it divides the union between Great Britain and Northern Ireland. Since 2 October last year, the Government have maintained complete denial of the implications of what they are proposing, and these are the downstream consequences of that. When our own Library is printing that in black and white, it gets the point across that what we are seeing here is not a mere technical point. Every one of these regulations—and this pattern is repeated in a number of them—illustrates a significant constitutional and economic change. The economic centre of gravity of Northern Ireland moves from the rest of the United Kingdom to the European Union.
This also means that the European Union can amend regulations and produce new ones. As citizens in Northern Ireland, we will have no say or influence over what those might be, because we have no representation. The Minister might address the question of what somebody is supposed to do. The principle being established in these regulations is that the European Union will make law for us and we have no alternative but to implement it. In pretending that they have not made changes to the constitution, the Government are therefore certainly doing grave damage to the Belfast agreement, which makes it clear that there can be no change in the status of Northern Ireland without the consent of its people. When a Minister of the Crown stands up and tells a Grand Committee on 10 November that the European Commission will exercise those powers in Northern Ireland, that can mean only one thing to any sensible person: that our status has changed. Will the Minister address those points, as well as the practical ones that I made at the beginning of my remarks?
My Lords, I agree with what has been said by my noble friend Lord Addington. I realise that there are all sorts of complications, to which the noble Lord, Lord Empey, has referred, which flow from the protocol and the decision to exit the European Union. Those problems are on the Government’s head; this Parliament decided to leave the European Union. In so doing, there will be all sorts of problems that they have to sort out. However, the specific matters under consideration today appear to be fairly peripheral and I do not need to detain the House any longer.
My Lords, this legislation is intended to reflect the different regulatory regimes for explosive precursors and acquiring firearms in Northern Ireland and Great Britain from 1 January. As the Minister said, it makes changes on the basis of the list of legislation in annexe 2 of the Northern Ireland protocol, which ties Northern Ireland to EU rules. It is another example of laws being applied to Northern Ireland after 1 January. Although these regulations are, as the Minister described, “niche” and “technical”, it is legislation and they are being applied to Northern Ireland without any of its elected representatives at Stormont or Westminster having any say or input. This is clearly contrary to the most basic concepts of democracy and undermines the political agreements reached over many years in Northern Ireland.
I have listened recently to many eloquent, sincere and passionate speeches about the need to protect the Belfast agreement and the peace process in Northern Ireland, but the agreement is three-stranded. It is about Northern Ireland’s internal arrangements, about north-south arrangements on the island of Ireland, and about the east-west arrangements between Northern Ireland, the Irish Republic and the rest of the United Kingdom. The emphasis is on north-south borders, but it seems that anything goes as far as the one between Northern Ireland and Great Britain is concerned. That is not acceptable; it is not the basis of the Belfast agreement. I urge noble Lords to read carefully that agreement, not a synopsis of it, and to not reinforce what they think is in it. There must be consent of both unionists and nationalists, which is very important. No matter how technical law may be, it is still legislation and it should be made in the democratically elected bodies—devolved matters at Stormont and reserved ones at Westminster—not in Brussels, to which no one in Northern Ireland sends any elected representatives.
The Government’s message on this specific statutory instrument is that these changes will simply reflect the legal position of the protocol, and there is no significant divergence between Great Britain, Northern Ireland and the EU on 1 January 2021. This may well be the case but there is, of course, as in all these situations, the prospect that this will not be a standstill position. The potential for differing standards risks adding complexity and cost for suppliers, gun holders and licensing bodies. In his response, will the Minister set out how these regulations will add to or change, for instance, the workload of the Police Service of Northern Ireland and businesses involved in firearms licensing, and set out clearly, in detail, what consultation there has been with the police and the Department of Justice in Northern Ireland and the Northern Ireland Office?
Has any assessment been made of how the loss of recognition for Great Britain tier 2 explosive precursor licences in Northern Ireland will affect trade with the rest of the United Kingdom? Has any work been done to assess whether the removal of this recognition will add cost and delay to supply chains operating on a UK-wide basis? Will the Home Office retain any authority for, or functional role in, approving some explosive licences for Northern Ireland? How will the changes be communicated to those affected? Finally, is there scope to pursue mutual recognition for Great Britain licences, as part of the joint committee negotiations, and indeed to agree overarching mutual recognition agreements between the UK and the European Union?
My Lords, these regulations have been prepared by the Northern Ireland Office and laid before Parliament. They will ensure that Northern Ireland will continue to implement EU law required by the protocol to the withdrawal agreement on Ireland/Northern Ireland relating to explosive precursors and firearms enforcement. These amendments are being made to address deficiencies resulting from EU exit. In relation to explosive precursors, the regulatory regime continues to operate in substantially the same manner as before exit day. The regulation ensures that the UK has a functioning statute book on exit day. This ends the supremacy of EU law in domestic law and preserves laws made in the UK to implement EU obligations.
The purpose of this instrument is to ensure that the UK has a proper law to control firearms and explosives, and I support it. We must never forget the deaths and harm caused in Northern Ireland many years ago. This SI will ensure that such attacks never take place again. Will it also deal with terrorists in the UK or those coming from abroad?
“Uncontroversial” and “niche”, the Minister said. I do not think so—more like unclear and opaque. Like my noble friend Lord Addington, I confess that having studied the Explanatory Memorandum for these regulations I am not very much the wiser. I thought the control of firearms and explosives was a devolved matter but since the European firearms directive and the precursors regulation are listed in annexe 2 of the protocol, they will continue to apply in Northern Ireland as at present.
Further, paragraph 7.1 of the Explanatory Memorandum says that the protocol requires continuing compliance with
“EU law in and in relation to Northern Ireland.”
The result is that licences issued in Great Britain will not be recognised in Northern Ireland, although presumably the European firearms pass will be recognised in Great Britain. This gives rise to a number of questions and I seek clarification.
First, from the end of the transition period, who will control the licensing and regulation of explosives and firearms in Northern Ireland? Is it the Northern Ireland Office or its officials? Who will issue the European firearms pass? Secondly, how is that control to be exercised? Will it be by the Northern Ireland Executive or by legislation in the Northern Ireland Assembly? The noble Lord, Lord Empey, referred to the European Commission having a role. Is that right? If so, how is its control to be exercised? Thirdly, if changes to the European firearms directive or the precursors regulation are made in Europe—where, as the noble Lord, Lord Dodds, pointed out, we do not have a presence or a role in legislating—would these amended or rewritten regulations apply under the protocol in Northern Ireland? If so, from what point? The noble Lord, Lord Empey, regards that possibility as a breach of the Belfast agreement and the noble Lord, Lord Dodds, agrees. Who am I to disagree? Fourthly, paragraph 7.2 of the Explanatory Memorandum refers to a licensing regime under the precursors regulations
“allowing for explosives precursors to be acquired, imported, possessed or used by the public”.
Does this licensing regime exist? Will it exist? If so, how will it operate after the end of the transition period? Fifthly, if licences are issued to manufacturers in Great Britain, under British legislation, to manufacture explosives in Great Britain, will Northern Ireland allow them to be imported? It is clear that these extremely abstruse regulations give rise to points of principle and I hope that the Minister can enlighten us on these issues.
My Lords, I rather agree with the noble Lord, Lord Thomas, that this is not an easy regulation to deal with but it is an important one because the order shows that EU law on firearms and explosive precursors will continue to apply in Northern Ireland after the transition period. The Opposition support this as it is required by the Northern Ireland protocol, but I have a question for the Minister: after transition, will there be any greater level of divergence between Great Britain and Northern Ireland once British law no longer reflects the EU directive? I would be grateful for a comment on that.
In more general terms, this debate has been interesting. By the way, it is good to see the noble Lord, Lord Dodds. I have not been in a debate with him since he has become a Member of the House. He and the noble Lord, Lord Empey, both made some interesting points, looking back on the rather unhappy history of firearms in Northern Ireland. We must bear in mind that there are and were personal protection weapons—something that never existed in Britain but did in Northern Ireland—and that the police force in Northern Ireland carry arms. Whatever the technicalities of this statutory instrument, it is important that post-transition discussions should continue with the European Union on firearms in particular, because of the possible supply of illegal firearms into Northern Ireland. The European Scrutiny Committee raised issues such as this, including on sharing information between the EU and Northern Ireland about organised crime across the Irish border. When we talk about discussions and consultations with the EU, we particularly mean discussions with the Irish Government too. After 1 January, there will be no European arrest warrant and no guarantee that we will have data sharing as we had previously. It is so important for there to be proper collaboration between the Governments in the north and south of the island of Ireland.
I take the point made by the noble Lords, Lord Dodds of Duncairn and Lord Empey, about strand three of the Good Friday agreement. I jointly chaired the talks with the Irish Government that led to the recognition of strand three and its inclusion in the Good Friday agreement document. It deals with east-west relations and is a matter of particular importance to the unionist community in Northern Ireland, in the way that the nationalist community regard strand two—relations between Northern and southern Ireland—as equally important. We must not forget that the protocol and everything surrounding it, including the detail in this statutory instrument, affect how people perceive what is technically called strand three but what we would refer to as east-west relations between Britain and Ireland.
While we must and do support this, there are issues that the Minster needs to address. The European firearms issue is a significant one to pass and we must see how that fits with the post-transition regime. This statutory instrument is complicated but it illustrates the complexity of what will happen in Northern Ireland after 1 January. I look forward to what the Minister has to say about the important issues raised by your Lordships.
My Lords, I was going to start by saying I was pleased that the order had been broadly welcomed by the House today. While I think it has, I recognise many of the comments that have been made. The noble Lord, Lord Murphy, pointed out, I think accurately, that while it is to be welcomed, there are complications. Perhaps I should not be too surprised, given all the issues that run alongside and are focused on Northern Ireland. Many questions were raised and I suspect I will be writing quite a detailed letter to all Peers who have taken part in this debate. I will do my best to have a stab at answering some of them at the Dispatch Box today.
This order is reasonably straightforward. I recognise the comments made but I would not go as far as agreeing with the noble Lord, Lord Bradshaw, who described them, I believe, as peripheral.
I say to the noble Lord, Lord Loomba, that the preceding regulations were laid by the Home Office in February 2019. They contain provisions on a wide range of security-related matters in preparation for the UK’s departure from the EU, which was then due to take place in March 2019. The protocol was agreed in October 2019 and contains detail in annexe 2 on areas where EU law would continue to apply in Northern Ireland. The regulations before us today are representative of the Government fulfilling their obligations under the protocol in these niche areas relating to explosive precursors. I hope that helps to answer the noble Lord’s question about whether the regulations might have been rethought or started from scratch.
Picking up on some points raised by the noble Lord, Lord Addington, on any changes to the UKIM Bill—on which I will touch later—I reassure him and other noble Lords that there are no changes I can mention today. But what I will do is take account of the issues that were raised; I will be sure to check Hansard and write a comprehensive letter answering the detailed questions.
The noble Lord, Lord Addington, asked some questions about shooting sports. The noble Lord, Lord Loomba, raised this regarding licences, and the noble Lord, Lord Empey, alluded to it as well. I shall add to what I said earlier. Residents of Great Britain wishing to travel to EU countries to participate in shooting sports with their legal firearm will need to comply with the licensing requirements of all countries they will be in. The Home Office has written to shooting associations to make them aware of this. The EFP will continue to be valid for travel between Northern Ireland and the Republic of Ireland. Those travelling from the Republic of Ireland through Northern Ireland to Great Britain with a legally-owned firearm will not be able to rely on the EFP in Great Britain and will have to comply with the guidance set out, as I mentioned in my opening speech, on GOV.UK. A question was raised earlier about the licence in the UK. To reiterate, it is recognised in Northern Ireland.
I listened carefully to the points raised about the protocol by the noble Lord, Lord Empey—I think a letter is in order for the noble Lord. For the moment, the protocol does not create, nor does it include any provision for creating, any kind of international border in the Irish Sea between Great Britain and Northern Ireland. That is the answer I give today, but I also pick up on the points raised by the noble Lord, Lord Murphy. Again, I owe it to him and the noble Lord, Lord Empey, to write in more detail about that.
To round up, I remind the House—as if the House needed reminding—that the threat from Northern Ireland-related terrorism remains severe. However, this SI makes no changes to the checks and balances already in place to regulate the possession of explosive precursors and firearms in both Great Britain and Northern Ireland. Perhaps this helps to answer a point raised by the noble Lord, Lord Addington.
I was particularly pleased to hear the remarks of the noble Lord, Lord Dodds, and I welcome him to the House—I have not had a chance to do that. I should set out in more detail answers to the points he has raised, but for the moment, I reassure the noble Lord that these regulations have very little impact on business. They relate to very few members of the public, as I said at the beginning. The implications for businesses, trade and the Police Service of Northern Ireland, in terms of resources and costs, are minimal. But let me put some meat on the bones of that answer in a letter to him.
The noble Lord, Lord Dodds, raised a question concerning the Home Office. The Home Office will continue to issue licences in Great Britain; the NIO will continue to issue licences in Northern Ireland. The NIO can expect to receive a small number of further applications.
I know there were some other questions, in particular from the noble Lord, Lord Thomas of Gresford, and I would wish to address these. They came fast and furious from him today. For the moment, though, I say that the changes in this SI will affect only the small number of Great Britain-based licence holders who wish to acquire, import, possess or use explosive precursors in Northern Ireland. The SI has no impact on current Northern Ireland-based licence holders. I know that the noble Lord’s questions went wider than this, and that is why I need to add to the letter that I have pledged to write.
Customs Safety, Security and Economic Operators Registration and Identification (Amendment etc.) (EU Exit) Regulations 2020
Motion to Approve
My Lords, we are here to talk about a statutory instrument that is part of the Government’s package to prepare for the end of the transition period. The instrument relates to safety and security declarations as well as the process for registering for an economic operators registration and identification number, or EORI number. The instrument supports businesses’ preparations for the end of the transition period and corrects a deficiency in retained EU law. Noble Lords will be aware that the Secondary Legislation Scrutiny Committee reported the regulations as an instrument of interest in its 32nd report, published on 29 October.
First, I shall set out the context of the amendment that we wish to introduce for managing the safety and security risk of goods entering and leaving the UK. The UK subscribes to the World Customs Organization’s SAFE framework of standards, which sets out minimum requirements for participating customs administrations to regulate, monitor and secure the international supply chain. Customs authorities are required to collect and risk assess data on every consignment of imported and exported goods. The UK does this through safety and security declarations, which goods carriers are required to submit. These declarations are currently implemented through the Union customs code and are retained in law in the UK after the end of the transition period by the European Union (Withdrawal) Act 2018.
While part of the EU, the UK required safety and security declarations only for goods leaving or entering the EU. From the end of the transition period, the default position is that carriers will be required to complete safety and security declarations for goods moved into and out of Great Britain where those goods are moving to or from the EU as well as the rest of the world. This SI deals with a temporary waiver for safety and security requirements for imports. The Government are introducing additional secondary legislation—laid this Monday, 16 November—to introduce contingency powers relating to safety and security requirements for exports, should they be needed.
In June, the Government announced the “staging-in” approach to controls at the border after the end of the transition period. As part of this approach, the Government are introducing this SI to waive safety and security entry summary declarations for six months on goods from the EU from 1 January 2021. The temporary waiver is necessary to address the adverse impact of Covid on businesses’ ability to prepare for new safety and security requirements. During the waiver period, there will be no requirement for entry summary declarations for goods imported into GB from territories where the UK does not currently require such declarations. Declarations will be required only from 1 July 2021. The waiver introduced by this instrument applies only to imports on which the UK does not currently receive declarations. Border Force will continue to undertake intelligence-led risk assessments of goods movements into this country from the EU, as it does now. Entry summary declarations will continue to be required for goods imported from the rest of the world. As a result, there is no increased security risk to the UK from this approach in the short term.
Secondly, the instrument amends a list of locations currently in the retained legislation that are granted shorter timing requirements for the submission of safety and security declarations for maritime movements. Safety and security declarations are required to be submitted within certain time limits before arrival or departure. These time limits vary by mode of transport.
Within the retained legislation, drafted with the geography of the EU in mind, there is a list of territories for which safety and security declarations can be submitted within a shorter time limit for movements by sea. This is to account for the practicalities of these shorter journeys, where the default time limits are unnecessarily onerous and challenging for carriers to meet. This list currently includes places such as Morocco, with very lengthy timings for journeys to Great Britain. Given the length of journeys from these places to Great Britain, there is no need for these movements to be offered the shorter time limits.
Conversely, this list currently does not include some of our closest neighbours and trading partners. For these journeys, which include channel crossings and goods moved to and from the Atlantic coast of Spain and Portugal, the default timing requirements are impractical for these well-established trade routes. This instrument updates the territory list in the retained legislation, removing territories that border the EU and no longer need the shorter timing requirement and adding to the list those territories that now require this consideration. This change will prevent industry being unnecessarily burdened for the shortest crossings and helps to update retained legislation to reflect our new status as an independent customs regime.
Thirdly, the instrument updates the governance of the economic operators registration identification in retained law. An EORI is a unique registration number given to businesses to interact with customs authorities, so that HMRC can identify them effectively. EORIs are necessary when applying for customs simplifications or facilitations, when making customs declarations or in any other interactions with the customs authority. All existing EORIs issued by the UK, known as UK EORIs, will continue to remain valid for use in Great Britain after 31 December 2020 and will continue to be prefixed with the letters “GB”. From 1 January 2021, individuals or businesses established in Great Britain or other territories outside the EU who want to trade with the EU and do not already have a UK EORI will need to obtain one. Persons that are not established in Great Britain but wish to lodge a declaration or request a customs decision in Great Britain will also require a UK EORI.
This instrument ensures that Great Britain has a functioning EORI system by replacing references and terminology in the retained EU law that will no longer apply to Great Britain. It will also maintain a registration requirement on those where such a requirement is set down in national law. This instrument does not impose any additional requirements to those already imposed under EU law.
The safety and security aspects of this instrument do not apply to movements of goods between Northern Ireland and Great Britain, or Northern Ireland and the rest of the world. Under the Northern Ireland protocol, goods moved between Northern Ireland and the EU will not be subject to safety and security requirements. Goods moved between Northern Ireland and the rest of the world will be subject to safety and security requirements. The EORI aspects of this instrument will not apply to traders in Northern Ireland, who will continue to register under the UCC.
By introducing a temporary entry summary declarations waiver and amending the declaration submission deadlines, this instrument strikes the right balance between giving traders time to prepare for new arrangements with the EU while still maintaining the safety and security of the UK. It also makes technical amendments to allow businesses that will require an EORI to continue to register as they currently do. I beg to move.