House of Lords
Thursday 21 January 2021
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Bristol.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally. I ask all Members to respect social distancing. 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 ask that Ministers’ answers are also brief.
My Lords, the Government have developed an ambitious agenda for the UK’s G7 presidency, which focuses on building back better for all. The Prime Minister will welcome the leaders of the world’s leading democracies in June to address shared challenges, from beating coronavirus and tackling climate change to ensuring that people everywhere can benefit from open trade, technological change and scientific discovery.
My Lords, I hope that today we are all celebrating President Biden’s decision to sign up again to the Paris Agreement on climate change. I hope that the Government recognise the critical importance of the G7 summit, building towards COP 26 in November and decisive action on climate change. Do the Government also recognise that the best global businesses are crying out for leadership on the sustainable development goals, the framework that provides us with the opportunity to genuinely build back better? Will the Government ensure that those goals are on the agenda for the G7?
My Lords, certainly, one of the key declared aims of the G7 presidency is tackling climate change and preserving the planet’s biodiversity, as I stated. I can certainly tell the noble Lord that we very much welcome the prospect of bringing the COP 26 UN climate conference to Glasgow, to Scotland, in November and will be working on the important agenda that the noble Lord outlines.
Following the question of the noble Lord, Lord McConnell, I was going to ask about the climate emergency. However, following the Minister’s answer, it is also important to ask: will the Government also focus on the social elements of our sustainable development goals, such as ending poverty and hunger, and dealing with inequality?
My Lords, obviously those objectives are encompassed in the agenda set out by the Prime Minister. Promoting future prosperity for all is vital. Incidentally, I am certain that the noble Baroness will welcome the invitation to the Government of Australia to participate.
My Lords, on Tuesday, President Biden announced the formation of a White House gender policy council and committed to restoring America as a champion of women and girls, which is welcome news. I fully support the Prime Minister’s continued focus on girls’ education but can my noble friend the Minister tell me how the UK will work with the United States and other partners to ensure that the wider issue of gender inequality, which has of course been exacerbated by Covid-19, will be properly addressed at the G7 summit?
I thank my noble friend for her important question. The Prime Minister has agreed to convene a gender equality advisory council that will report to the G7 leaders and drive an ambitious agenda to ensure that the disproportionate impact of Covid-19 on women is recognised and the importance of gender equality is at the heart of an inclusive recovery. I thank my noble friend for her work and leadership in this area. The council will be part of her legacy.
My Lords, I declare my interests and very much endorse the Minister’s reply to his noble friend Lady Sugg and his comments about her. I also welcome his response to the remarks of the noble Lord, Lord McConnell, with which I totally agree. I welcome the emphasis that the Government are putting on beating the pandemic and future pandemic planning. However, does the Minister accept that we must recognise the importance of continuing support for ongoing global health programmes—such as that on malaria, where the UK has been a world leader—not only because they save the lives of hundreds of thousands of children every year but because they provide vital health infrastructure for the fight against future diseases?
I thank the noble Baroness with her great experience for her kind comments. I can assure her that the United Kingdom remains committed to the research and development needed to fight all pandemics worldwide. One of the highest moments of my lifetime was the eradication of smallpox, and I am certain that the eradication of these great diseases, one of which the noble Baroness referred to, will remain an objective for all of us.
My Lords, I wish the Government well in their participation in the summit. What new ideas do they intend to put forward in view of the increasing awareness of climate change? Will we suggest any positive steps that President Biden could now take, having overturned Trump’s policies?
My Lords, it would be slightly impertinent of me on President Biden’s first day in office to set out an agenda for him. I think we all look forward to hearing that. I say again that we look forward to the COP 26 conference in Scotland. Within the G7 period and leading up to it, we will keep tackling climate change and preserving biodiversity will be at the heart of our efforts.
Does the Minister believe that the Government’s decision to refuse full diplomatic status to the EU ambassador to the UK will help or hinder our ability to build the consensus needed for a successful G7 summit? While he is at it, will he explain why the UK, uniquely in the world, would take such a staggeringly petty, pointless and self-harming decision?
My Lords, the Prime Minister has set a priority for the G7 to develop manufacturing capacity for treatments and vaccines to prevent future pandemics, and that is very welcome. However, there is an existing pandemic other than Covid—tuberculosis—which still kills 1.5 million people a year and for which there is no effective adult vaccine. That is why research and development investment to develop new tools is so important. Will my noble friend commit to protecting that investment, particularly that made by the Foreign, Commonwealth & Development Office, despite the regrettable cut in the ODA budget?
My Lords, having not ventured to offer an agenda to President Biden, I am certainly not going to offer one to the Chancellor. As with the answer on malaria earlier, obviously, fighting a key disease is a vital common international task. The United Kingdom has been one of the biggest donors to the World Health Organization and one of the biggest supporters of vaccine development.
My Lords, earlier this week, Theresa May said that we must bring people together in common cause, but to lead we must live up to our values. She regretted the UK abandoning its 0.7% commitment. Will the Minister detail the Government’s strategy for engaging members in the coming months to ensure that the UK summit turns the tide and brings leaders behind a common message on the post-Covid recovery?
My Lords, I know the noble Lord’s personal commitment to some of the causes set out in the G7 agenda. I think there is a wide area of agreement here. I understand the points made about overseas aid, but we will still be allocating £10,000 million to overseas aid. Based on the latest OECD data, the UK will remain the second-highest donor in the G7.
My Lords, since the UK is a world leader in setting targets, will the Prime Minister urge the G7 countries, as part of their climate agenda, to set targets for developing countries to step up investment in clean energy and green technology, and to provide technical assistance in developing their non-oil private sector?
My Lords, this follows on from what my noble friend has just said. To build better societies and economies, we need to ensure that all have the opportunity to thrive, free from persecution. In light of the United States recognition of the persecution of Uighurs in China as genocide, will my noble friend confirm that the UK will raise this as an issue for discussion and ask for a co-ordinated response at the G7?
I strongly support what my noble friend said and pay tribute to her work in fighting international injustice. Anyone who read my right honourable friend the Foreign Secretary’s Statement to the other place on 12 January in response to human rights violations in Xinjiang against the Uighur people will understand this country’s resolve. We call on other nations to show the same resolve on this deeply troubling question.
Heritage Organisations: Coal Supplies
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and remind the House of my interest as president of the Heritage Railway Association and vice-chair of the All-Party Parliamentary Group on Heritage Rail.
[Inaudible]—of the heritage sector. The legislation, which will come into force from May 2021, will end the sale of bituminous coal to households in England and lead to significant health benefits. While we acknowledge the indirect impact that this may have on the supply of coal to businesses, it is vital that the Government and the sector continue to work together to transition to cleaner alternatives.
My Lords, I know that the Minister appreciates the value of the heritage rail sector, but how does he envisage that heritage steam will continue to have access to high-quality bituminous coal if no UK-mined coal is available after next year? Transporting coal great distances from countries such as Russia or Australia adds to CO2 emissions and is expensive. Would it not make more sense for the mining of modest amounts of steam coal to continue in areas such as the north-east and south Wales?
My Lords, the legislation that Defra is bringing forward relates to households, and therefore we are working with the sector. It is important that we work with it not only through policy development but in looking at alternatives. Also, I understand that heritage rail has taken steps to improve efficiency and mitigate emissions. Therefore, as I said in my earlier reply, it is important that we work together on this, but this legislation relates to domestic consumption.
My Lords, I declare my interest as someone from whose land in Northumberland coal was being extracted until last year, including for heritage railways. The Minister will know that the Government refused permission for a further surface mine at Highthorn in Northumberland, disagreeing in the process with the county council, the planning inspector and the courts. I had no interest in that project, but I know some of the men who lost their jobs as a result. Given that this country has a continuing need for 5 million tonnes of coal a year, mostly for the cement and steel industries, as well as for the heritage rail industry, and that more of it now comes from Russia than any other country, with a far higher carbon footprint, why do the Government prefer to give jobs to people in western Siberia and take them away from people in Northumberland, and to increase emissions as a result while rewarding the persecutors of Alexei Navalny and Sergei Skripal?
My Lords, the National Planning Policy Framework is very clear that planning permission should not be granted for the extraction of coal unless the proposal is environmentally acceptable or, if it is not environmentally acceptable, provides national, local or community benefits which clearly outweigh the likely impacts. Clearly we are moving into a situation where in this country we are reducing the use of coal for the very important reason of human health.
My Lords, I declare an interest as a vice-chair of the All-Party Parliamentary Group for Craft. Craft industries have long prided themselves on their commitment to a green economy. However, coal is required for the firing of certain heritage bricks which have a unique quality. Does the Minister agree that such uses, including coal for steam, are the exceptions proving the rule for the future green economy, and are necessary if we are to preserve our industrial and architectural heritage?
My Lords, again, we are working across departments with the heritage sector, because we want to have a long-term future for it. However, we need to find alternative ways of securing the heritage sector while having a cleaner and greener economy and reducing emissions, which are making a significant impact on people’s health.
My Lords, we have heard concerns about the importation of coal, and I understand that some heritage rail organisations are currently importing coal, including from Germany. Can the Minister clarify how much coal is currently imported for this purpose, whether the amount is expected to increase, and what the impact of new border controls will be now that we have left the European Union?
My understanding is that, of the 26,000 tonnes of coal used for heritage rail, 90% comes from four British open-cast mines, and therefore any requirements will be about negotiating a suitable ongoing domestic supply. As I said, we want to work with the heritage sector on these matters. My understanding is also that coal imports are overwhelmingly not from EU countries.
My Lords, the Great Little Trains of Wales, Snowdonia, Talyllyn, Llangollen and others, are critical for the hospitality offer, yet heritage trains as a whole emit only just about half of the CO2 that people use in their domestic barbeque charcoal briquettes. The challenge is to find a solution to this problem to keep the trains running. I note that in his responses so far the Minister has not yet offered what the potential solutions might be. So will he support research into this matter and, in particular, into whether the residue steam coal in our unsafe, above-ground coal tips can be manufactured into the lump coal needed to ensure that these trains and the jobs they support survive into the future?
My Lords, I have been very clear that we are working with the heritage sector. Indeed, the legislation that relates to domestic consumption is being phased in so that we can work not only with consumers but with the heritage sector. So I reject the tone of the noble Lord’s question, because this is an area we want to work on. I remind your Lordships that we are doing this because fine particulate matter is very damaging to people whose health is vulnerable. To work on a cleaner health agenda, we need to apply our minds to how we can find alternatives.
Has the Minister ever travelled behind a steam locomotive? Has he no sense of soul about Britain’s steam heritage? Is he not aware that steam locomotives are temperamental creatures that depend on a certain supply of bituminous coal to work effectively and efficiently? Is he, as a member of a Government who have frozen fuel duties for the past 11 years and done far more damage to the environment than any steam locomotive, really trying to tell us that 35,000 tonnes of coal will damage the environment to such an extent?
My Lords, I am sure the noble Lord heard my first reply. This legislation is about domestic consumption. In people’s houses the increase in fine particulate matter from domestic consumption has caused concern, and we will not meet our legal and binding obligations unless we attend to this. I should also say that two villages away from where I am sitting is the Mid-Suffolk Light Railway, affectionally known as the “Middy”. I am well aware of it, I have travelled on it and I enjoy it very much, but we need to work across the heritage sector, not only with the rail sector, because this is a very important health issue.
My Lords, while I have genuine sympathy with heritage railways and others, such as the owners of traction engines and the like, does my noble friend agree that this should certainly not be a reason for opening any new coal mines in this country while importing the type of coal required is still possible? As my noble friend said, it is worth reminding other noble Lords that this is being done for health reasons.
Does the Minister not realise that if you go to places such as the north of England on a weekend and see thousands of people stood around, waiting, you know that a steam locomotive is going to be travelling through and people are waiting to view it? Does the Minister agree that there is no finer sight in this country than such a vision? Will he guarantee that it will be there for my grandchildren?
My Lords, that is absolutely what we are working on with the heritage sector because we want a viable future for these great heritage assets of our country. However, I go back to the fact that this is legislation reducing and changing our requirements for domestic consumption. I fear that some noble Lords are misinterpreting that. We are working with the heritage sector because we want a long-term, viable future for it.
Prohibition of Nuclear Weapons
My Lords, the Government have been clear that they will not sign the Treaty on the Prohibition of Nuclear Weapons. We do not believe that this treaty will bring us closer to a world without such weapons. The Government believe that the best way to achieve our collective goal of a world without nuclear weapons is through gradual multilateral disarmament, negotiated using a step-by-step approach. We must take account of the international security environment and work under the framework of the nuclear non-proliferation treaty.
I thank the Minister for his reply. Nevertheless, as of tomorrow the TPNW will be no less a reality for the UK than for countries that support it. It will be no less a reality for states that possess nuclear weapons than for those that do not. The UN Secretary-General has described this new treaty as
“a further pillar of the disarmament regime”
and therefore fully compatible with the NPT. I ask the Minister, since the new treaty and its underlying humanitarian motivations will loom large over any future discussion of our non-proliferation responsibilities, what preparations are being made by the Government to engage with it constructively? Will they commit to attend, as an observer state, the first meeting of states party to the treaty, as Sweden and Switzerland are doing?
My Lords, I hear what the right reverend Prelate says but, to be clear, the United Kingdom will not support, sign or ratify the TPNW. The reasons are very clear to us: it fails to offer a realistic path to global nuclear disarmament and, importantly, risks undermining the effective non-proliferation and disarmament architecture that we already have in place, in particular the work that has already been achieved with key partners on the NPT.
I declare my interest as in the register. I am compelled to repeat the question from the right reverend Prelate the Bishop of Coventry. Given the global importance of this treaty, will the Government consider sending in an observer capacity a delegation when the treaty parties convene later this year, whether in person or virtually? Clearly, in observer status the Government might learn something of interest.
My Lords, I assure the noble Baroness that we are fully aware of the challenges that currently confront us on the global stage and the importance of ensuring that we see non-proliferation. There are major challenges with this treaty, including the fact that it does not look at the existing security architecture, including our obligations to NATO. It does not look at how we deal with the threats from nations such as the DPRK. My Answer was very clear about what our belief is on the treaty. If parties to that treaty engage with us bilaterally, of course, we will continue to engage with them on wide range of matters.
The Minister is being characteristically courteous but does he not agree that every Member of this House, not least the right reverend Prelate, has a responsibility not to deceive themselves that this treaty could be an effective mechanism for achieving our shared goal of the elimination of nuclear weapons? Indeed, suggesting that it is undermines that very goal.
My Lords, I have to disagree with the noble Lord. I accept that the treaty the right reverend Prelate talks about has noble intent but there are existing mechanisms, treaties and obligations that have ensured the decline in the proliferation of nuclear weapons. Indeed, with the treaties that we are part of and the partnerships that we have forged, since the end of the Cold War we have seen a 50% reduction in our own arsenal. While respecting the right reverend Prelate—and, of course, all noble Lords in this House—on this occasion I do not hold the same view.
I welcome my noble friend’s confirmation that it has never been the policy of Her Majesty’s Government to have the indefinite retention of nuclear weapons but to seek a world free from all nuclear weapons. This is stated in the national security strategy, set out in pillar 2 of the non-proliferation treaty and stated in the first resolution of the UN General Assembly, held 75 years ago this weekend across the road in the Methodist Central Hall. How could my noble friend use this anniversary to advance our declared ambition of the complete elimination of all these weapons of mass destruction before it is too late?
My Lords, I assure my noble friend, who speaks with a great deal of insight and expertise in this area, that we remain very much committed. Our commitment to our obligations and our adherence to the rules-based system of international law and the treaties that we are part of will ensure the very objective he seeks and I seek as well.
My Lords, one of the key aspects of non-proliferation in recent years has been the JCPOA. The UK has been involved in this but under President Trump the US pulled out. What are her Majesty’s Government doing about talking to President Biden about re-engaging in the JCPOA?
Following on from that question, only this week Her Majesty’s Government stated as part of the E3 that they are deeply concerned by Iran’s announcement that is producing uranium metal. There is no credible civilian use for uranium. Will my noble friend the Minister take the earliest opportunity to discuss with his new counterpart in the Biden Administration how to strengthen any deals with Iran to ensure the disbanding of its nuclear programme in its entirety and, at the same time, stop its destabilising behaviour in the region?
My Lords, Iran has incrementally violated the JCPOA. It would be delusional to return to it and to drop sanctions. Iran has achieved uranium enrichment levels of 20%. What are the Government doing to ensure that Iran halts this dangerous escalation?
My Lords, I assure the noble Baroness that Iran’s continued non-compliance with its nuclear commitments is deeply concerning and seriously undermines the non-proliferation benefits of the agreement. Iran faces a stark choice—to continue on its current path and face growing isolation or to come back to the negotiating table. We hope it will choose the latter course.
My Lords, does the Minister agree that any advance that has been made in any of the conventions on nuclear weapons so far has been achieved in the context of firm undertaking by nuclear powers, including us, to steadily reduce the number of nuclear weapons at their disposal? There seems to be quite a lot of room for doubt about the commitment of some nuclear powers at the moment. Is it not a priority for the British Government to get together with the new Administration in the United States, and indeed with the French, to discuss how we should be carrying the new situation forward?
My Lords, for the purposes of investment, this treaty puts nuclear weapons clearly in the category of controversial weapons. Does the Minister agree that investment in such weapons by responsible and ethical pension funds and other investors will quickly become completely unacceptable?
My Lords, if I may, I will respond to the noble Lord in writing once I understand the full context of his question. However, as I have already articulated, we are working with key P5 partners—including the key European partner in this respect, the French.
My Lords, I begin by extending my best wishes and those of your Lordships’ House for health and happiness to the noble Lord, who I understand is 79 years young today.
It is appalling that Alexei Navalny has been detained on arbitrary charges. We raise his case regularly and directly with the Russian Government. On 15 January, immediately prior to his return, the United Kingdom’s ambassador to Moscow raised our concerns with the Russian foreign ministry. My colleague, Minister Morton, who is responsible for our relations, also raised this issue with her Russian counterpart in November 2020. As the noble Lord will know, the Foreign Secretary issued a statement on 18 January calling for Mr Navalny’s immediate and unconditional release.
First, I thank the Minister for his very kind words. Returning to the subject, does he not agree that Alexei Navalny has shown tremendous bravery by returning to Russia after the assassination attempt? Will the Minister agree that the Government might show support for his release, backing it up by increasing sanctions against the Putin-supporting oligarchs based in London in relation to their investments, property purchases and travel to the United Kingdom? That would show some real support in trying to get Alexei Navalny out of prison.
My Lords, I assure the noble Lord that I agree with his sentiments, and I look forward to working with him in this respect. Of course, we keep further sanctions under review but, as he will know, following the poisoning of Alexei Navalny last year, we issued proscriptions against six individuals and the State Scientific-Research Institute of Organic Chemistry and Technology.
My Lords, Mr Putin constantly challenges the global risk-based order and his behaviour is erratic, whether it is attempts to kill political opponents, such as Navalny, a WMD attack on our nation’s soil, a stream of outrageous damaging global cyberattacks, provoking flights into our airspace, a build-up of nuclear submarines threatening our deterrent, or actions in Ukraine, et cetera. It is difficult to know what he hopes to achieve, but it is certain that there is an increasing risk of miscalculation, which is highly dangerous and could lead to hostilities. Is the Minister concerned about this risk, and should there not be urgent action to rejuvenate arms control agreements, military-to-military dialogue and confidence-building measures, such as New START and the open skies agreement?
My Lords, the noble Lord speaks with great expertise and insight; I agree with the thrust of what he proposes and the specifics that he mentioned. We want to work with Russia and other partners on the very objectives that he has outlined, but the detention of the main opposition leader demonstrates a continuing decrease in democracy and human rights in Russia, and we will continue to hold it accountable for that.
“Confident political leaders do not fear competing voices, nor”
see the need,
“to commit violence against or wrongfully detain political opponents.”
Those are not my words but those of Mr Mike Pompeo, the outgoing United States Secretary of State, with whom I rarely agree. Does the Minister agree?
Alexei Navalny’s latest investigation into what he has called the world’s “biggest bribe”—Putin’s sprawling palace at the Black Sea—is a reminder that corruption is endemic in autocracy and that tackling it undermines the rule of strong men such as Putin. With that in mind, will the Government continue to encourage greater transparency over Russian financial activities around the world, including in the United Kingdom, and take steps to combat money laundering? Can my noble friend the Minister update us on the progress that has been made on this since the Intelligence and Security Committee published its report last year?
My Lords, I apologise: some of my noble friend’s questions were not quite clear. However, I believe that she referred to the ISC report on Russia. As she will know, the Government’s response was published immediately after its release. Russia is a top national security priority for the Government, and we will introduce new legislation concerning the security services and law enforcement. As she will be aware, the Government are currently looking at how our sanctions regime can be further extended to deal with corruption and illicit financing.
My Lords, having worked in a Russian ministry in Moscow for three years in the early 1990s, I am hugely aware of the impact on the Russian people of the appalling treatment of the extraordinarily brave Mr Navalny. How on earth he brings himself to go back to Russia, I do not understand. Will the Government support a statement from our Parliament to the Russian Parliament expressing our strong support for the fundamental rights of Mr Navalny and the Russian people to free speech and freedom of assembly?
My Lords, the Minister said that the Government were keeping matters under review. Returning to the point made by the noble Baroness, Lady Helic, it is now 15 months since the publication of the Russia report and the Government have yet to implement even one of the 21 recommendations. There are enormous concerns that the City of London is still acting as a haven for dark money connected to human rights abuses in Russia. What steps will the Government take to ensure that UK businesses are not complicit in human rights violations in Russia?
My Lords, I believe that I have already addressed, in part, the issues of human rights and sanctions, and of course I will be talking to the noble Lord as we bring forward some of the broader sanction applications. On the report, we have acted. I have already alluded to legislation, and we continue to step up our activity, both domestically and internationally, to tackle illicit finance. The National Crime Agency has increased the number of investigations into corrupt leads and, among other things, the UK has used existing immigration powers in dozens of cases relating to hostile state activity. We will also review all tier 1 investor visas granted before 5 April 2015.
My Lords, we all recognise that the UK, as a democracy, is far more open to Russian influence than Russia is to British. Does the Minister agree that Russian interference, including finance in British politics, is at least as severe a threat to UK sovereignty as the European Court of Justice? Does he accept that the Government’s response to the ISC report is widely considered to have been “defensive and uninformative”? Can the Government assure us that they are working actively to tighten the law on foreign agents in British politics, on financial contributions from abroad to political parties and on espionage?
My Lords, I can give the noble Lord that assurance. On the question of interference in elections, he will be aware that various legal matters are already under way, so I cannot speak specifically to those. On the other matters that he raised, I have already said that we are acting, and will be responding, and have already taken steps, as our response to the ISC report has demonstrated.
My Lords, Russia, at its own request, rejoined the Council of Europe a few months ago but does not seem to have grasped the fundamental values of that council. Sanctions are really water off the duck’s back. The noble Lord, Lord Collins, came a lot nearer to the truth as to what we need to do if we are going to have an effective impact. Does the Minister agree that we need to join Berlin and Paris in encouraging Russia to follow the principles inherent in democratic societies and the underlying principles of the Council of Europe, which it was so keen to rejoin?
My Lords, the Russian Federation has failed to respond to the overwhelming evidence that it poisoned the opposition leader using Novichok, for which of course it has previous form. Addressing the EU last year, Alexei Navalny said that sanctions should target the money of the oligarchs who hold Putin’s assets. This lack of adherence to a rules-based international order has gone on for too long. Does the Minister agree now that there should be direct consequences, as suggested by Mr Navalny, for this outrageous breach of all the norms of civilised states, all of which is compounded by the subsequent arrest and jailing of Mr Navalny on his return to his own country?
My Lords, suffice to say that I agree with the noble Lord. I add that we have already taken quite specific actions, both through multilateral organisations such as the OPCW and specifically on issues of sanctions related directly to the Novichok poisoning of Mr Navalny. We will continue to work with partners and see what further steps we can take. As those come to bear, I will of course share them with your Lordships’ House.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing.
Overseas Development Aid: Covid-19 Vaccination
Private Notice Question
My Lords, the United Kingdom has committed £548 million to the COVAX Advance Market Commitment, the AMC, which is the international initiative to support global equitable access to vaccines. Through match funding the commitment was leveraged to encourage other donors to commit $1 billion in 2020. The commitment will support access to Covid-19 vaccines for up to 92 developing countries by contributing to the supply of 1 billion doses, with deliveries set to begin in the first quarter of 2021.
My Lords, while the United Kingdom has been a strong supporter of the COVAX Facility, the director-general of the WHO has raised fresh concerns about developing countries being left behind. Will Her Majesty’s Government consider approaches to supplement COVAX using our own economic development institutions? For example, could we make UK export finance easily available to countries importing the Oxford vaccine, and could we encourage the CDC to urgently support local vaccine supply chains?
My noble friend makes two very practical points, especially that on the CDC. I will certainly look at what we can do. To be absolutely clear, we remain committed to the COVAX Facility. We want to provide clarity to all that we will continue to support that facility, which we believe has the infrastructure to ensure the best, most equitable and fastest distribution to the most vulnerable around the world. However, my noble friend makes some practical points and I will certainly explore those further.
Does the Minister agree that, while priority must be given to vaccinating as many people in the United Kingdom as possible, it is also vital to help protect less developed countries, which may develop other strains of Covid-19 as we have already witnessed? Can the Minister assure the House that the UK Government will not seek any payment for vaccinations or equipment from those countries? Will the Government support them to develop and deploy the skills and expertise that have been developed by our own dedicated scientists and doctors in this country?
I assure the noble Baroness that, as vaccine distribution picks up pace and other vaccines come online, we remain committed to the COVAX Facility. The noble Baroness puts forward some practical points about British expertise and how this can be further leveraged in terms of support. Regarding specific charges that may be levied, let me assure her that the whole basis of the AMC within the COVAX Facility is to ensure that the most vulnerable are not prohibited from or limited in their access to the vaccine because of a lack of money.
My Lords, last week Dr Anthony Fauci from the US National Institutes of Health endorsed the WHO’s Covid-19 Technology Access Pool, the C-TAP. This is a key mechanism to support efforts to scale up the manufacture of vaccines for all. We are currently not supporting it. Considering the urgent need to respond to new variants of the virus, will the UK Government follow Dr Fauci’s lead?
My Lords, I understand from reports coming from the United States that Dr Fauci’s expertise will be fully leveraged within the World Health Organization, as he will be leading the United States delegation now that the US has rejoined the World Health Organization, which we welcome. As details of the Covid-19 Technology Access Pool emerge from the WHO, our Government are committed to assessing how it could add value to existing innovation and access infrastructure such as the Medicines Patent Pool, which we helped to set up 10 years ago. We are looking at it very carefully. We will work closely with the United States and, importantly, the World Health Organization in this respect.
Baroness Manningham-Buller. No? I call the most reverend Primate the Archbishop of Canterbury.
My Lords, we must welcome warmly the exceptional moral leadership in this remarkable donation to the COVAX programme, which I think is the largest of any country. However, in order to make the money work, and to follow up what the British ambassador, Julian Braithwaite, said at the WHO, we need a global vaccination campaign if we are to overcome this global pandemic. There are three particular obstructions to overcome. One relates to the use of surplus supplies of vaccine; for example, Canada has ordered more than five times what it needs for its population. The second is misinformation, mythical dangers or false stories being deliberately spread about the vaccines. Thirdly, in many parts of the countries that will need the vaccine, there are immense logistical difficulties in distributing it. To make the most of the financial leadership we have set and given our expertise, experience and success in the rollout in this country, what will the Government do to validate that gift by overcoming these three challenges?
My Lords, the most reverend Primate makes some very pertinent and important points. On the issue of countries which have oversubscribed, some countries have already announced plans for that. We are not in that position, but others have announced how they will look at distribution. We would implore them to consider that the most equitable way to support that distribution is through the COVAX Facility and the AMC, for the very reasons that have been put forward; namely, that they have the most effective infrastructure and networks to allow for equitable and fast distribution of the vaccine as it is rolled out.
I take fully the most reverend Primate’s point on misinformation. At a time when people are concerned and worried, it is highly regrettable that some in the world are putting out misinformation on vaccines which have already gone through all stages of testing and have been approved. We must come together to tackle that and provide proper information.
The most reverend Primate’s point on logistics was well made. As vaccine distribution continues, we will work through our networks within the FCDO and the UN to further strengthen NGOs; for example, with training and by ensuring that front-line healthcare workers in the field in developing parts of the world are vaccinated first.
I thank my noble friend for the assurances he has given the House about his department. Will he ensure that every effort is made to focus medical help to Africa on preventive vaccines, but not only against Covid-19? Can use be made of the Virtual Doctors organisation, which can assist in setting up a preventive system in African countries?
My Lords, I can give my noble friend that assurance. My right honourable friend the Foreign Secretary is currently on a visit to Africa, where issues concerning Covid-19 and the vaccine will be addressed directly, as they will be by the Minister for Africa. In her latter point, my noble friend also makes a practical suggestion about distribution. As more vaccines become readily available and distribution evolves, we will take this forward as part of our planning and share it with other partners as well.
My Lords, the great news from Washington this morning is that the US is joining the COVAX facility. I hope this will lead to many more opportunities. Last Friday, I met representatives of the Africa CDC who have more recent experience and expertise in conducting mass public vaccination programmes than do we in the UK. What discussions has the Minister’s department had with organisations in the global south, so that we can learn from them? They also highlighted the secondary economic impacts through healthcare and gender inequality. What preparations is the FCDO making to prevent there being a development mountain to climb after the pandemic subsides?
My Lords, on the noble Lord’s second question, he will appreciate that at the Gavi summit we saw a real commitment by the world community, led by the United Kingdom, not just to deal with the global pandemic but to ensure that the other challenges we face—particularly on vaccine distribution, including against polio and cholera—are not forgotten. These remain live challenges in many parts of the world. That underlines our commitment to ensuring that such challenges remain very much on the priority radar. Covid-19 vaccines and their distribution are our primary focus. I agree that we should be looking at the experience of all our partners. There are NGOs working throughout Africa that have real experience of dealing with the Ebola outbreak. We should learn from that. I have spoken to leading scientists in Pakistan who are still dealing with polio, both there and in Afghanistan. They were able to deploy quickly certain measures to deal with Covid-19 when it happened. This is a learning curve, and we must work together to ensure optimum outcomes not just for one country, but for us all.
The UK is rightly proud of the leadership of many Governments over many years in Gavi. It was alarming to hear on the “Today” programme yesterday that only 25 vaccine injections had been delivered into arms so far in developing countries. Can the Minister reassure the House that the UK’s extra orders for the Pfizer and AZ vaccines have not caused any delays in the urgent rollout of the Gavi orders?
I, too, heard that announcement. As Minister for South Asia, I know that there are large parts of India, for example, where the population is highly vulnerable and suffers extreme poverty. The Indian authorities are part of the rollout. I have also heard that the vaccine is now being delivered to Bangladesh. The Government are stressing to all our partners that support for the COVAX facility, particularly the AMC, is a key part of ensuring equitable distribution for all.
My Lords, I congratulate the Government on their vaccination record. I am about to have mine, so I thank them. The Big Issue works with people on the streets all over the world—and here I declare an interest. Vaccinating street dwellers against Covid is very important, but they also need nutrition and support beyond that. Can the Minister’s department indicate whether anything might be added to the Covid vaccine that could keep these people healthy?
My Lords, I pay tribute to the work of the noble Lord, helping people not just in the United Kingdom but across the world. I listened carefully to what the noble Lord said and look forward to practical suggestions from him for how we can further strengthen our work in this area. I can assure him that we are looking particularly at famine and nutrition in fragile states. This is very much part of the development elements with which the FCDO is engaged.
My Lords, given the devastating impact of Covid-19 on low and middle-income countries, the need and the demand for overseas development assistance has never been greater. This is one of many reasons why the cut to the 0.7% is so regrettable. Can the Minister reassure me that spending on health infrastructure and on, for example, data systems, cold chain storage and the training of healthcare workers will be protected from the aid cuts? It is crucial in the fight against this and future pandemics around the world.
My Lords, answering my noble friend presents me with a bit of a challenge because, not so long ago, she was leading on this area, but I hope I can provide her with practical information in every sense. I look forward to working with her further on the prioritisations within ODA. My noble friend knows better than most the challenges that this has presented. I can assure her that global health remains a top priority for the United Kingdom. We are focused on overcoming Covid-19, as well as on supporting more resilient and healthier populations in developing countries. I currently have wider responsibilities within the FCDO. We are looking specifically at country plans to ensure that the most vulnerable are protected and that other issues such as those raised by the noble Lord, Lord Bird, on famine, do not present additional problems as we challenge the pandemic. We will ensure that the principles close to my noble friend’s heart continue to guide our work within the FCDO.
My Lords, the time allowed for this Private Notice Question has elapsed. I apologise to noble Lords whom it has not been possible to call.
Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) (No. 2) Regulations 2020
Plant Health (Amendment) (EU Exit) Regulations 2020
Official Controls (Animals, Feed and Food, Plant Health etc.) (Amendment) (EU Exit) (No. 2) Regulations 2020
Customs Miscellaneous Non-fiscal Provisions and Amendments etc. (EU Exit) Regulations 2020
Airports Slot Allocation (Amendment) (EU Exit) Regulations 2021
Motions to Approve
Counter-Terrorism and Sentencing Bill
Order of Consideration Motion
That it be an instruction to the Committee of the Whole House to which the Counter-Terrorism and Sentencing Bill has been committed that they consider the Bill in the following order:
Clause 1, Schedule 1, Clause 2, Schedule 2, Clause 3, Schedule 3, Clauses 4 to 6, Schedule 4, Clauses 7 to 19, Schedule 5, Clauses 20 and 21, Schedule 6, Clauses 22 and 23, Schedule 7, Clauses 24 and 25, Schedule 8, Clauses 26 and 27, Schedule 9, Clause 28, Schedule 10, Clauses 29 to 36, Schedule 11, Clauses 37 to 45, Schedule 12, Clauses 46 to 48, Schedule 13, Clauses 49 to 53, Title.
Arrangement of Business
My Lords, I will call Members to speak in the order listed in today’s list. Interventions during speeches or “before the noble Lord sits down” are not permitted, and uncalled speakers will not be heard. Other than the mover of an amendment or the Minister, Members may speak only once on the group. Short questions of elucidation 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. We will now begin.
Medicines and Medical Devices Bill
Relevant documents: 19th and 33rd Reports from the Delegated Powers Committee, 10th Report from the Constitution Committee
Clause 17: Power to make regulations about medical devices
1: Clause 17, page 12, line 4, leave out from “subject” to end of line 8 and insert “to the super-affirmative procedure set out in section 51”
Member’s explanatory statement
This amendment is to correct the drafting.
My Lords, Amendments 1 to 8, in my name and that of my noble friend Lady Jolly, are to correct drafting. None of them, individually or collectively, alters the meaning or substance of the parts of the Bill that they would amend. I beg to move Amendment 1.
The noble Lord, Lord Sharkey, made his points cogently on Report. We do not intend to oppose the amendments on the Marshalled List, as they are technical tidying amendments, consequential on those in the name of the noble Lord, Lord Sharkey, that were passed on Report.
Amendment 1 agreed.
Clause 21: Information systems
2: Clause 21, page 14, line 21, leave out from “subject” to end of line 25 and insert “to the super-affirmative procedure set out in section 51”
Member’s explanatory statement
This amendment is to correct the drafting.
Amendment 2 agreed.
Clause 52: Super-affirmative procedure: Northern Ireland
Amendments 3 to 8
3: Clause 52, page 34, line 32, leave out “section 11(1), section 17(1) and section 21(1)” and insert “and section 11(1)”
Member’s explanatory statement
This amendment is to correct the drafting.
4: Clause 52, page 34, line 36, leave out “order” and insert “regulations”
Member’s explanatory statement
This amendment is to correct the drafting.
5: Clause 52, page 34, line 43, leave out “ an order” and insert “regulations”
Member’s explanatory statement
This amendment is to correct the drafting.
6: Clause 52, page 35, line 5, leave out “order in its initial form, or a revised draft order” and insert “regulations in their original form, or revised draft regulations”
Member’s explanatory statement
This amendment is to correct the drafting.
7: Clause 52, page 35, line 8, leave out “order”
Member’s explanatory statement
This amendment is to correct the drafting.
8: Clause 52, page 35, line 10, leave out “order”
Member’s explanatory statement
This amendment is to correct the drafting.
Amendments 3 to 8 agreed.
My Lords, the Bill before us is quite different from the one we started with, but it is no doubt much better. That is entirely because of the huge value of your Lordships’ challenge and scrutiny. We have held over 50 meetings and considered 249 amendments, and the result is a tribute to the care and patience of noble Lords, for which I give profound thanks. It is also, if I may say so, a tribute to the workings of the hybrid House, which have kept legislation moving under difficult circumstances.
We would not have reached this position without the thoughtful, collaborative and constructive input of noble Lords, to whom, I pay tribute—in particular, to the noble Baronesses, Lady Thornton and Lady Wheeler, on the Opposition Front Bench, together with the noble Lord, Lord Hunt, and the noble Baronesses, Lady Jolly and Lady Walmsley, and the noble Lord, Lord Sharkey, on the Liberal Democrat Benches. I also thank, from the Cross Benches, the noble Lords, Lord Patel and Lord Alton, and the noble Baroness, Lady Finlay. They have all brought their immense experience and wisdom to our debates, to improve this legislation. And when it comes to wisdom and experience, I must also pay tribute to those from these Benches, especially my noble friend Lord Lansley, my predecessor, my noble friend Lord O’Shaughnessy, and my noble and learned friend Lord Mackay of Clashfern, who have all been of enormous help in enabling us to arrive at a consensus across the House. My noble friend Lord Howe has been a generous mentor, and my noble friend Lady Penn is a superlative Whip, both shepherding the process charmingly, discreetly and effectively.
I thank most emphatically my noble friend Lady Cumberlege. She has spoken of the importance of compassion, of the voices she has listened to, and of the paramount importance of patient safety. I have heard her, and I support her endeavour. She has the support of the House in her efforts, and we have collectively made significant progress towards her admirable goal.
I also thank officials on the Bill team, particularly Alice Clouter, and those in my private office, particularly Tilly McEwan. They have all worked tirelessly and expertly. I cannot give thanks to all the other champions in the House who have made influential interventions, but I am definitely very grateful to them.
I cannot hide my excitement about the future. While the Bill process is near its conclusion, we are at the end of the beginning of an exciting new regulatory system—a system that protects patients and enables innovation. It is with that vision of the future, as well as my gratitude to all, that I beg to move.
My Lords, at this stage of the Bill, we take a few moments to congratulate ourselves and thank those who have made it possible to get this far. First, I thank my own Bill team, who have worked so hard, particularly Rhian Copple in the Lords Opposition office, and my noble friends Lady Wheeler and Lord Hunt—and, indeed, my noble friend Lady Andrews and others, who popped up here and there to support us.
We should all congratulate ourselves because, despite the conditions in which we have worked this autumn and winter, we have managed to build effective communications which have made it possible to make considerable progress in improving the Bill in many ways, as the Minister said. I think we can say that we did our job, as the revising Chamber.
The fact that we ended up with only three Divisions on Report is a testimony to way in which the Minister, the noble Lord, Lord Bethell, his Whip, the noble Baroness, Lady Penn, and his adviser, the noble Earl, Lord Howe, and the very hard-working Bill team led by Alice Clouter, handled the Bill. They listened, they discussed, they considered and they revised, which is really all that one can ask. This is the Minister’s first Bill, and I congratulate him on leading his team and handling what is always a baptism of fire for any Minister.
I am delighted to agree with the Minister and say that we are sending back a very different, and much improved, Bill. We have managed to address many of the big-ticket items, ranging from data sharing to human tissue, and, ultimately, patient safety. I thank participants across the House. Like the Minister, I mention in particular the noble Lord, Lord Patel, the noble Baroness, Lady Jolly, the noble Lords, Lord Freyberg and Lord Clement-Jones, and the noble Baroness, Lady Cumberlege. I also thank everybody else who has taken part in the many discussions and given us the benefit of their wisdom, particularly the noble Lords, Lord Lansley and Lord O’Shaughnessy.
First Do No Harm paved the way for the creation of an independent patient safety commissioner, and I think that changed the way in which the Bill was handled, because it is now, as it should be, a patient safety Bill. For that, I really wish to congratulate the noble Baroness, Lady Cumberlege.
Finally, I want to thank the organisations who have given us their support and expertise, which is particularly important for those of us in opposition. I am very grateful to the DPRR and Constitution Committees for their insightful scrutiny, which sometimes is painful for the Government but is almost always helpful to us; the Lords Library; and, for us, the University of Birmingham, the British Dietetic Association, Advanced Accelerator Applications, the Association of British HealthTech Industries, Cancer Research UK and, in particular, the BMA. I am very grateful for the expert briefs that they have given us.
Stakeholder engagement will remain key for many years to come, for while the Bill will soon pass—as the Minister said—the task of creating a post-Brexit medicines and medical devices regulatory regime is far from finished. I look forward to working with stakeholders and the Minister to make sure that we move forward in the best possible fashion. We have given ourselves a good start.
My Lords, Bills come and go. This Bill started its life as one to tidy up regulatory issues to do with the new post-EU world. In 10 years’ time, the Medicines and Medical Devices Bill is one I may not list as one of the most important I have worked on; I hope that the forthcoming mental health Bill will fit that spot. If remembered at all, it will be for the introduction of a commissioner for patient safety, born out of the First Do No Harm report by the noble Baroness, Lady Cumberlege.
There will need to be changes in the House of Commons to make the Bill really fit for purpose. The Minister has indicated the Government’s intention to lay amendments, and I am grateful to him for involving Peers in that process. When does he anticipate Second Reading in the Commons?
As the Minister and the noble Baroness, Lady Thornton, said, many people make a Bill, and they do not all sit in the Chamber. In particular, I thank both the Minister and the noble Baroness, Lady Penn, for giving us time to talk to the Bill team and allow them to explain new government amendments. Of course, I should not forget the noble Baroness, Lady Thornton, and her team; the noble Lord, Lord Patel; my noble friend Lord Sharkey; staff in opposition offices; and others who certainly made the Bill better, turning it into a workable piece of primary legislation.
My Lords, I could not let this opportunity pass without expressing my gratitude to all those who have played such a vital part in drafting, scrutinising and improving this important Bill. I know that it will now return to the other place. I wish it a fair wind and hope that we will soon see it enacted.
Throughout, noble Lords from all sides of the House have, quite rightly, focused on using the Bill to strengthen patient safety. Safety is now threaded throughout the Bill. I do so welcome that; it is something that the noble Baronesses, Lady Thornton and Lady Jolly, have both just mentioned. We have enshrined a very important safety recommendation in the Bill: we will now have a proper database to record the medical devices that are used and on which we and patients will be able to track their outcomes and detect safety more quickly. I cannot overstate just how important that is. Without this data, the healthcare system has been flying blind.
I have been very touched by the kind and thoughtful expressions of support from so many noble Lords in general debates and, in particular, for my amendments, which were triggered by the recommendations in First Do No Harm. The report enshrined in me that, at every opportunity, we must be reminded that the NHS is run for the people and is paid for by the people. Right now, the NHS is demonstrating a total commitment to saving lives and defeating this deadly virus—a virus that, as it sweeps around the world, devastates lives, livelihoods, education, personal budgets and a national aspiration for a better world.
In the dark days of the Second World War, Beveridge was preparing for a better Britain. In these dark days, there is a need to make plans—not just to return to what was there before but to look forward to something better. I believe that the patient safety commissioner will provide something better and will improve patient safety and healthcare as a whole. I was thrilled that so many of your Lordships lent me their support in calling for this; I know that their voices made all the difference. I thank the Minister and the noble Baronesses, Lady Thornton and Lady Jolly, for their generous remarks today.
The new commissioner will certainly have a challenging task. We continue to get a flow of calls, letters and emails recounting lives devastated by hormone pregnancy tests, the risks of sodium valproate taken by pregnant women and the insertion of surgical mesh. Only this week, a woman wrote to me saying: “I was left devastated that I was never given the truth by my consultant. I have suffered incredible, irreparable harm since 2010 and have lost my loving intimacy with my husband. I suffer constant pain and am unable to walk too far. I am not able to enjoy the interaction with nine grand- children and, most of all, I do not feel like a female at all”. The patient safety commissioner will have to respond to these sorts of concerns rapidly—more rapidly than we found during our review. In doing so, the commissioner will prevent avoidable harm and, I am sure, save lives.
In my last amendment, concerning redress for patients unavoidably harmed, I was heartened by the Minister’s response. The Minster told us:
“We are moved by the stories; I am totally and utterly sympathetic to the situation that the patients affected by these conditions find themselves in on a day-to-day basis. They are still living through it today. I would like to regard myself as a compassionate person”.
We recognise that. He went on to say that
“it is not appropriate to make policy on this kind of matter through primary legislation”;—[Official Report, 14/1/21; col. 963.]
perhaps he is right on that. He also went on to tell us that work is under way. I just ask: what work? When will it be delivered? These injured women and their families need answers. They deserve justice and some redress—and, what is more, they need it now.
Although my amendment was not carried, my noble friend knows that I am not one to give up easily. Indeed, we have established a powerful all-party parliamentary group. Its purpose is to see the remaining recommendations in my report implemented. On Tuesday, the First Do No Harm APPG will meet to hear the Minister for Safety, Nadine Dorries, address the group. Of course, everybody is welcome to join.
In summing up, I reserve special thanks for my noble friends the Minister, Lady Penn and Lord Howe. They have been a formidable trio, guiding the Bill through and designing and tabling a lot of government amendments. I know that steering through important legislation and improving it with a pandemic raging all around has been a most demanding task. The Minister has risen to that challenge. He has chosen and shown endless patience with me personally; he has listened; and, above all, he has acted. I also know that he has been truly moved by the suffering he has heard about, as he said today, and that this has motivated him to act. I thank him very much.
I also thank the officials who, behind the scenes, have worked so very hard on the Bill, with endless meetings, conversations and negotiations—not least in bringing forward a whole range of government amendments. They are warned: no doubt we shall meet again for the raft of statutory instruments that will be before the House. But, actually, I look forward to that.
I consider this Bill a reforming Bill—perhaps a small step, not a great stride, but we must look on the bright side. I congratulate all noble Lords who put forward the other important amendments on medicines and medical devices that have been accepted by the Government, as we have just witnessed. With an independent patient safety commissioner, who will listen, especially to the patient groups and campaigners, put all patients first and fight for their causes, a significant change may arise. Out of Covid darkness, with the astonishing example set by NHS staff, I believe a better system will emerge.
In a time of war, Beveridge realised the aspirations of people had changed. In the time of Covid, they are changing now, and we have to acknowledge that patients and the public voice must be heard. If private enterprise can bring forward a vaccine in under a year, Ministers, parliamentarians, the department and the healthcare system should rise to the challenge of reform towards a totally patient-oriented service. That is what I believe is essential for the future of our country and our future health and well-being.
My Lords, I am delighted to follow my noble friend Lady Cumberlege; I pay fulsome tribute to her and the team that, through her leadership, produced the report, First Do No Harm, from which we see this Bill. I would like to join her and others in paying tribute to my noble friends Lord Bethell, Lady Penn and Lord Howe, who I had the honour to work with, as a humble bag carrier, in the other place.
In recalling my interest with the Dispensing Doctors’ Association, I would like to make one plea to the Minister as this Bill proceeds to the other place. For clinical trials and patient safety, which is the focus of the Bill, which I wholeheartedly support, we need to rely on patients making their data available and giving consent for it to be used for clinical purposes. During the passage of the Bill, I raised what has now been seen in Denmark—a huge reaction against patient data having been abused and used for commercial purposes against the wishes, and without the consent, of patients. Were that to happen here, it would detract from the fundamental good of this Bill and the wider public benefit to the NHS and future patients of sharing the clinical data that permeates this Bill. I urge the Minister, therefore, to look seriously at the practical question that remains of how patient consent will be obtained and confidentiality respected, particularly in meeting the requirements of clinical need. But I am delighted to have played even a small part in the passage of this Bill, and we look forward to its passage through the other place.
My Lords, I am delighted to have this opportunity to express my thanks to the Minister—the noble Lord, Lord Bethell—the noble Baroness, Lady Penn, and all the other noble Lords who have been taking part in this legislation, in particular those who spoke to and supported my amendments from all sides of the House.
Much has already been said about what we have achieved. I know that time is running short, so I will try and be brief. Of course I congratulate, first and foremost, the noble Baroness, Lady Cumberlege, for achieving what I had tried before—getting patient safety on statute. I did not have her tenacity or clout. So, many congratulations to her and, I believe, the commissioner for patient safety, who will make patient safety stronger in the whole of the health service.
I am very grateful to the Minister, the noble Lord, Lord Bethell, to the noble Baroness, Lady Penn, and to the noble Earl, Lord Howe, for the many meetings they arranged with us to hear our concerns and find solutions. I know it is a privilege for me to speak in person, but I hope all my colleagues on the Cross Benches—more than 12 of them—who took part in the Bill will feel I can speak on their behalf to thank Ministers and all other noble Lords.
I am also grateful to members of the Bill team, who were very helpful at the many meetings that the Minister arranged. And I am grateful to outsiders, in particular the University of Birmingham faculty of law, which worked very hard to produce the details of the legislation. Thank you all.
My Lords, there is not much more to say that has not already been said by other noble Lords. I just wanted to use this opportunity to thank and pay tribute to particular groups. The Bill team and private office, which have worked so hard to produce this legislation, are amazing in what they do and often unsung. It is important we recognise them.
Secondly, I thank those patients and patient groups who have provided so much moving information and testimony that has informed our work. After all, we serve them, and I hope and believe that we have served them through improving this Bill in this House in the way we have.
Thirdly, I pay particular tribute to my noble friend Lady Cumberlege. When I was in government and we commissioned her report, I could not have dreamed that she would have done such a thorough job and carried it with her customary tenacity, to the point where we have, on statute, the commitment to a patient safety commissioner. It is such an important step forward and it will make a massive difference to the lives of hundreds of thousands of people in this country. For that, we should all be proud of this step—and she in particular should be.
Finally, I thank the Minister—my noble friend Lord Bethell—the noble Baroness, Lady Penn, and the noble Earl, Lord Howe, but particularly the Minister; he has performed with absolute aplomb in the difficult 10 months since he became a Minister. He has so much on his plate, yet throughout this process he has listened, engaged and acted in a way that does him enormous credit, and I really want to pay tribute to him for everything he has done.
I share the Minister’s optimism that, having produced this Bill, we can produce a regulatory system for the UK outside Europe that is the envy of the world, that makes sure that every company, every charity and every researcher who wants to bring a transformative therapy into a health system will come to us because of what we are able to do and how we are able to bring them through into mainstream treatment, just as we are doing with vaccines and have done with the recovery trial. That is the template, and I look forward to working with my noble friends and other noble Lords to make that happen in the months to come.
My Lords, I am extremely touched by the kind words of noble Lords and pay tribute once again to the hard work of all those concerned. I look forward to the future—to, as my noble friend Lord O’Shaughnessy said, the opportunity for patient safety and innovation to be enhanced by this Bill. In that spirit, I beg to move.
Bill passed and returned to the Commons with amendments.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing. I will call Members to speak in the order given in Today’s List. Interventions during speeches or “before the noble Lord sits down” are not permitted, and uncalled speakers will not be heard. Other than the mover of an amendment or the Minister, Members may speak only once on a group. Short questions of elucidation 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. Leave should be given to withdraw amendments. When putting the question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the question is put, they must make this clear when speaking on the group. We will now begin.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Relevant documents: 10th Report from the Joint Committee on Human Rights, 19th Report from the Constitution Committee
My Lords, I am required to inform the House that the Scottish Government informed the UK Government that they would be unable to recommend legislative consent for the devolved elements of this Bill, and we have tabled amendments in advance of this debate that remove from the Bill provisions that are within the legislative competence of the Scottish Parliament. The content of the Bill does not invoke the legislative consent process in Wales or Northern Ireland.
We have engaged closely with the Scottish Government over many months, during the drafting of the legislation and throughout its passage. Where the Scottish Government have identified concerns, we have sought to remedy them. An example of that is an agreement from operational agencies to discuss a memorandum of understanding with the Crown Office and Procurator Fiscal Service to provide the Lord Advocate with visibility of criminal conduct in Scotland.
The Scottish Government, however, required further amendments to the Bill in areas which the Government cannot support; namely, placing express limits on the face of the Bill. The Government’s position throughout this process has been based on advice from operational partners to ensure that the Bill is workable in practice and has no unintended consequences for the safety of the public, or a CHIS, and we have had clear advice from operational partners in all parts of the UK that placing limits on the face of the Bill will lead to CHIS testing and increased initiation tests. We remain open to further discussion with the Scottish Government, to ensure that operational agencies continue to have access to the tools required to keep us safe.
I call the Minister to make a Statement on legislative consent.
1: Clause 4, leave out Clause 4
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
My Lords, these amendments remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. I have just outlined why we have tabled these amendments: they are in response to the decision of the Scottish Government that they cannot recommend legislative consent. The amendments, therefore, respect the Sewel convention.
Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters, and public authorities will still be able to grant authorisations for these purposes for activity in Scotland. An authorisation necessary for preventing and detecting crime, or preventing disorder, is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime, or preventing disorder, may, therefore, relate to devolved matters, and it will be these matters to which the Bill will not apply.
In the immediate term, public authorities will need to continue to rely on existing legal bases for such authorisations in Scotland. Were these bases to change—I note the legal challenge currently before the Court of Appeal in relation to MI5’s existing legal basis for this activity—it would be for the Scottish Government to bring forward their own legislation to place this conduct on the clear and consistent statutory basis that the Bill delivers. I beg to move.
My Lords, of course, we do not intend to oppose the government amendments —the devolution settlement is to be respected. However, I have some questions, the answer to which at least one of which I can work out from the Minister’s introduction to the amendment. She has had my notes, so I will go through the points that occurred to me.
First, can the Government say anything about their assessment of the impact of what the Minister has just explained? In Committee, she referred to minimising the “immediate operational impact”. It appears to be acknowledged, therefore, that there is some impact. What happens if Scotland legislates differently? The Minister’s letter to noble Lords of 13 January explains one of the issues, which I take to be the major issue, about which the Scottish Government was concerned: an amendment to the limits to conduct that can be authorised; that is, whether specific listed crimes should be excluded. The House has debated that point and I am not seeking to reopen the matter.
In Committee, the Minister reminded us that national security and economic well-being are reserved, not devolved; she has just repeated that. In that case, could there be challenges—it seems to me that there could be—as to whether certain conduct is merely, if that is the right word, a crime? It is not merely a crime, but the House will understand that I am referring to a crime that does not fall within the other categories. The Minister also said that public authorities will continue to rely, in the immediate term, on the existing basis for an authorisation—which, I take it from what she said, is the non-statutory basis.
How, then, does Clause 8 work? That clause says that the Bill extends to Scotland and Northern Ireland, save that Acts of the Scottish Parliament are not amended. The Minister has introduced Amendment 7 —as well as Amendment 8—which amends Schedule 2, the list of consequential amendments. This provides that there may not be a criminal conduct authorisation if
“all or some of the conduct … is likely to take place in Scotland.”
If some of the conduct is in Scotland and the rest in England, Wales or Northern Ireland, does that mean there have to be parallel authorisations, one statutory and one non-statutory? Or do I understand from what the Minister said that the Government in England, Wales and Northern Ireland will proceed on the non-statutory basis so it will be aligned with the authorisation in Scotland? A criminal conduct authorisation prompted by an ordinary crime, if I can call it that, cannot extend across the border but, of course, the crime may well do so.
Finally, the Minister may or may not be able to say whether the issue is wider than the Bill. We will be in Committee next week on the Counter-Terrorism and Sentencing Bill and I gather from government amendments that there is an issue there—but is it an even wider issue on legislation? I hope the Minister can help with my questions, which I have tabled in order to understand how the Bill will operate in this circumstance.
I thank the Minister for her explanation of the purpose of these government amendments and for her letter of 13 January explaining the position in the light of the confirmation from the Scottish Government that they are unable to recommend consent for devolved provisions within the Bill. We understand why the Government have brought forward these amendments today and accept the need for them. Our key concern is whether the situation that has now been reached will have any adverse impact at all on national security and economic well-being, UK-wide, and it would be helpful if the Government could confirm, as I think the Minister has sought to indicate, that there will be no such adverse impact.
The letter from the Minister of 13 January states that the Scottish Government
“require further amendment to the Bill in relation to limits to the conduct which can be authorised under the Bill.”
As this House has now added those limits to the Bill, are the Government minded to change their stance on that issue and accept the amendment concerned?
Finally—I appreciate that this is a matter to which the Minister has also made reference—will the Government say what the impact will be, first in Scotland, to which she referred, and also in the UK as a whole, if the present legal basis for authorising criminal conduct changes, based on the outcome of the current, ongoing court case?
I thank both noble Lords for raising those points. On the final point made by the noble Lord, Lord Rosser, on what happens if the law changes in relation to the court case, clearly the court case is ongoing, we await the findings of it and, in a sense pre-empting the court case, the Government have seen fit to put on to a statutory footing that which was never on a statutory footing. So I hope that, without in any way pre-empting the court case, this will satisfy the courts.
Obviously, the Government are disappointed that we are having to bring forward these amendments. We made it clear that a UK Bill was and remains our preference, and we have worked hard to try to accommodate that. But we have to ensure the workability of the Bill as our primary consideration, and on those grounds we could not provide the amendment necessary to ensure the support of the Scottish Government. On the point made by the noble Lord, Lord Rosser, about limits, we will not accept any change to what we have put forward because it would completely undermine the operational capabilities that the Bill provides for. I have been through the arguments about the safeguards on human rights that are provided in the Bill and, of course, the Children Act when it comes to children.
The noble Baroness, Lady Hamwee, asked about the Government’s assessment of impact. She will appreciate that we do not want to provide sensitive operational detail, but operational partners are considering how to manage any impact of the decision of the Scottish Government. In the immediate term, public authorities will need to consider any existing legal basis for an authorisation, but the noble Baroness is absolutely right to acknowledge that these organisations will not be able to rely on the clear statutory basis provided by the Bill. If there is operational or legal risk in the future, it will be for the Scottish Government to bring forward legislation for devolved activity. It will be in their gift to decide on the safeguards attached to that legislation, and I would hope and expect them to be driven by the expert advice of operational partners, as we have been.
The noble Baroness, Lady Hamwee, also asked—rightly so—about cross-border operations. Operational partners will continue to work closely with their counterparts in Scotland, including Police Scotland, where operations take place across the border, to ensure that they remain able to prevent crime and harm to the public in all parts of the UK. Finally, she asked whether the issue was wider than the Bill. Clearly, if there are any legislative consent issues to which Scotland, or indeed Wales, have to consent, these will be considered on a legislation-by-legislation basis, so it is very difficult for me to answer in any theoretical way, but that is the process that goes on for LCMs, as we call them.
The noble Lord, Lord Rosser, asked me whether there would be any adverse impact on national security and economic well-being more broadly. I answered no in my first speech and I will confirm that, because they are, of course, reserved matters.
Amendment 1 agreed.
Clause 5: Oversight by the Investigatory Powers Commissioner
Amendments 2 to 4
2: Clause 5, page 7, line 36, leave out “or (g)”
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
3: Clause 5, page 7, line 39, leave out from beginning of line 39 to “(criminal conduct authorisations)” in line 40
Member’s explanatory statement
This is one of 8 drafting amendments needed because at Report stage substantive amendments were made to RIPA which were not replicated for RIP(S)A in relation to activity devolved to Scotland. These amendments make the Bill’s approach consistent by removing all provision relating to activity devolved to Scotland from the Bill.
4: Clause 5, page 8, line 4, leave out from “2000” to “(criminal conduct authorisations)” in line 5
Member’s explanatory statement
Amendments 2 to 4 agreed.
Clause 8: Extent and short title
5: Clause 8, page 8, line 25, leave out subsection (3)
Member’s explanatory statement
Amendment 5 agreed.
Schedule 1: Corresponding amendments to the Regulation of Investigatory Powers (Scotland) Act 2000
6: Schedule 1, leave out Schedule 1
Member’s explanatory statement
Amendment 6 agreed.
Schedule 2: Consequential amendments
Amendments 7 and 8
7: Schedule 2, page 13, line 11, at end insert—
“(b) after subsection (4) insert—“(5) No person may grant or renew a section 29B(5)(b) authorisation if it appears to the person that all or some of the conduct authorised by the section 29B(5)(b) authorisation is likely to take place in Scotland.(6) But subsection (5) does not apply if the grant or renewal of the section 29B(5)(b) authorisation is for a purpose relating to a reserved matter (within the meaning of the Scotland Act 1998).(7) For the purposes of subsections (5) and (6),“a section 29B(5)(b) authorisation” means an authorisation under section 29B in so far as it is granted or, as the case may be, renewed on the grounds that it is necessary on grounds falling within section 29B(5)(b).””Member’s explanatory statement
8: Schedule 2, page 14, line 27, leave out paragraph (b)
Member’s explanatory statement
Amendments 7 and 8 agreed.
“Leave out from “that” to the end and insert “this House declines to allow the bill to pass because the bill (1) grants blanket prior legal immunity for otherwise criminal conduct without sufficient safeguards or oversight, (2) provides no system of prior judicial authorisation, (3) does not recover profits obtained under a Criminal Conduct Authorisation which could include proceeds from the sale of drugs, weapons, human trafficking and slavery, (4) fails to provide compensation to victims of crimes authorised under the bill, and (5) represents a significant expansion of undercover policing despite, and without regard to, the ongoing Undercover Policing Inquiry.”
My Lords, noble Lords can imagine that there is a lot of legislation going through this House that I oppose. In the past, I have exercised restraint and have not been disruptive with procedural Motions, but there are times when we all need to make a stand, and this Bill, for me, is one of those situations. It is a terrible piece of legislation and I cannot be complicit in it, nor in future acts of state oppression that will be the result of our passing it, and I will, therefore, divide the House.
Noble Lords have spent many days trying to improve the Bill, and we have made a few positive steps, but even if the other place does not remove most of those amendments, the Bill is still so fundamentally flawed that it should not be allowed to pass. Scotland has had the sense to refuse the Bill and I wish that we would do the same. I was subject to police surveillance for more than a decade. I did not know about it, it did not affect me, and even when I found out, it really did not affect me very much—but others in your Lordships’ House were subject to similar but much worse surveillance, and many will not even know whether they were observed and under surveillance or not. The Bill does nothing to improve that situation; in fact, it will make things worse by granting total legal immunity to undercover officers, spies and informants.
There is also the fact that the Bill has been brought forward while the Undercover Policing Inquiry is still going on. Not far from here, that inquiry is hearing evidence about police infiltration of peaceful campaign groups and unions, and undercover officers forming sexual relationships with women. The Bill learns no lessons from that inquiry and does nothing to support the victims. It actually grants much broader legal immunity to the wrongdoers.
I am also concerned that I did not get a proper answer to my repeated questions about the proceeds of crimes authorised under the Bill. My conclusion is that the police will be able to authorise people to profit from criminal activities, and that there is no way for the state to recover those profits. I hope there will not be too many miscarriages of justice and abuses of power before we revisit and repeal this legislation. With all that in mind, I am sad that I am in a minority in opposing the Bill, but I cannot in conscience abstain and accept its passage. I beg to move.
My Lords, as one of the many Cross-Benchers who has applied themselves to this Bill, I record my thanks to the Minister for her explanations and for the discussions with her, which I have enjoyed—no 48-hour weeks for her—and James Brokenshire, who continues to have all our good wishes; to the Bill team; to the police and MI5; to IPCO, whose monitoring function is so vital; and to the NGOs and individuals who campaign on these issues and do their best to keep us all honest. I am particularly grateful to those who brought the Third Direction case. There are issues of great public concern which simply do not come to the attention of Parliament without the spur of litigation, and this is one of them. I have also appreciated not only the speeches of other noble Lords but my informal dialogue with them, intensive at times, which in my experience can be achieved just as easily, if not quite so pleasurably, in a virtual House as in a physical one.
This Bill was not widely consulted on and went from Committee stage to Third Reading in the other place during a single day. It needed the time we were able to give it, and I believe that after seven days of debate we have achieved significant improvement and clarification. I thank the Minister in particular for working with me on real-time notification. I hope we can achieve a satisfactory result on the other excellent amendments that we have passed, including those of the noble and learned Lord, Lord Thomas, which improve notification and the amendment of the noble Baroness, Lady Kidron, on juvenile CHIS, while still enabling the Bill to be enacted by the start of the Court of Appeal hearing on 28 January, which I know is the Government’s ambition.
I have great respect for the noble Baroness, Lady Jones of Moulsecoomb, and understand her regrets, which are underlined by the withholding of consent by the Scottish Government, but I will not be voting for her amendment to the Motion. For all its difficult and controversial features, the Bill is a clear improvement on the opaque and poorly safeguarded arrangements that preceded it, and it has my support.
My Lords, I have bled your Lordships’ ears over this Bill long enough, so I can be short. I thank the Minister for her patience and fortitude but my profound fears about this legislation will continue for a very long time, until it is amended or repealed. My concerns are about the signal that it sends but, even more, about the serious human rights abuses that it will herald. It is, quite simply, the most constitutionally dangerous legislation that I have seen presented in this country in my working life.
I am rather ashamed not to have been able to persuade more of your Lordships of the profound dangers of allowing the Executive to grant advance immunity for criminal actions to a whole raft of their agents—not just the brave security services or the hard-pressed police but many other government agencies and quangos, and the members of our communities who inform for or work for them, including even children. It will not even be with prior judicial warrant. This legislation does not put current arrangements on a statutory footing, so it does not merely respond to the litigation mentioned by the previous speaker. As for that litigation, there may be a lesson here for those of us who at times have dabbled in test-case legislation: to be careful what we wish for when provoking the might of the state in this fashion.
Just as our cousins on the other side of the Atlantic are beginning to rebuild their own bedrock of the rule of law, it will take a little longer in our own jurisdiction. A lot is said of patriotism these days. My patriotism is not the love of a flag but, in a nutshell, a love of the NHS and the rule of law. This Bill abrogates the vital principle of equality before the law, which I think all people well understand. It is a very sad day for me. For the moment, like the noble Baroness, Lady Jones, I can only bear witness for the record—but that I must do. I cannot in good conscience support the Bill being passed off as law.
My Lords, the noble Baroness, Lady Chakrabarti, always expresses herself firmly and persuasively. That said, I am afraid I could not agree with her less about this legislation. I support the passage of the Bill and want to thank the Minister, the noble Baroness, Lady Williams, who has been both consultative and a very good listener. She has also shown that she is prepared to move on important issues. Far from what the noble Baroness, Lady Chakrabarti, said, the Bill puts CHIS on a solid, statutory footing.
It has improved the way in which CHIS are to be dealt with by creating a clear process, all of which is legally enforceable and accountable. The code of practice has been mentioned less frequently in our debates than it deserved. It is absolutely required reading for all who are involved, or perhaps even interested, in how CHIS are handled in this country. One thing to be emphasised about the code of practice is that because it is a code rather than an Act of Parliament, although it has the force of law, it is a living instrument which can be changed as needs must.
The Bill will make a beneficial difference for the authorities, for the CHIS themselves and for public safety. With the changes that have been made, which have been difficult and creative at times, I commend it to the House.
My Lords, it is my particular pleasure to follow the noble Lord, Lord Carlile, although it is a particular discomfort to me to disagree with him on this occasion. The Bill proposes that the state should have the power to grant immunity for crimes committed in the future by agents on its behalf. I believe that the grant of such immunity is contrary to the rule of law, which prescribes that all are bound equally to observe the law, not least the criminal law. The fact that such immunity will derive from legislation if the Bill becomes law does not alter my belief.
Giving the state the power to exempt prospectively its agents from criminal law is the antithesis of this fundamental principle. A decision to prosecute or not should be granted only retrospectively, when all the facts and circumstances of the conduct at issue are known, including the nature of any authorisation and, above all, whether it is in the public interest to prosecute. The CPS makes such decisions all the time; that is compatible with the rule of law and equality before the law. This arrangement, as far as is known, has worked perfectly satisfactorily for the last 200 years. Instead, the Bill overturns this status quo, challenges the rule of law and gives the state unparalleled powers. I regret that on this occasion I cannot follow the advice of my noble friends on my party’s Front Bench and, as a matter of conscience, I am obliged to vote against the Bill.
My Lords, I, too, thank the Minister for all the consultation she has gone through, and the Government for their flexibility in adjusting the Bill to the stage it has reached. I am also always pleased to follow the noble Lord, Lord Carlile, and find that I think along the same lines as him, as I did when I was the Government’s Security Minister and he was outside the box, looking in to make sure that we behaved.
I am speaking against the amendment of the noble Baroness, Lady Jones, albeit that she put it eloquently. We should be proud of the Bill. Putting our covert human intelligence agents’ behaviour on a statutory basis is to be praised. As I have said, agents save lives. In working under cover, CHIS need to be trusted by those on whom they are reporting. Put simply, if they are to be believed to be a gang member, they need to act like one. If they do not, it is no exaggeration to say that they could be killed. Their handlers must be able to authorise them to break the law in certain circumstances and subject to specific safeguards. This has been strengthened in our debates and we should be proud of that. The ISC believes that there is a need for such authorisations. It also supports the Government’s decision not to place limits on criminal conduct in the Bill itself for the reasons that were debated.
I have thought long and hard about the use of children and I have to say that, initially, I was very concerned about it. As an aside, I do not consider 16 to 18 year-olds children, but that is a different issue. As regards the use of those aged below 16, I now believe that they should be used in exceptional circumstances, and appropriate safeguards are in place to ensure that that can be done to maximum gain and with minimum risk.
In summary, as I say, we should be proud that we have put this issue on a statutory basis. The Bill is a necessary and useful piece of legislation.
My Lords, in nearly 30 years in your Lordships’ House, I have never seen a piece of legislation that has made me more uneasy than this Bill. To me it is counterintuitive to give anyone the power to pre-empt the application of the criminal law .
I of course support the need to do all that is necessary to protect our national security and to detect and prevent serious crime, but it should have been possible to find other means. To choose this moment to extend in legislation the legality of law-breaking seems most unwise. This, after all, is a time when Russia is without compunction using, both at home and abroad, deadly poisons to eliminate its enemies. When it succeeds, it denies it. When it fails, its leader blithely explains that when it wants to kill, it succeeds.
I give one simple and deliberately irrelevant example. If a burglar is killed by a householder protecting himself or his family, it is unlikely that a jury will convict him of murder or even manslaughter. That does not mean, however, that we should legislate to give ex-ante immunity to householders who kill burglars.
I have one more word on journalists. I tried to persuade your Lordships to require judicial authorisation for any requirement to force journalists to reveal their sources in cases covered by the Bill. The amendment was defeated by seven votes but I was comforted by the fact that three former Cabinet Secretaries voted for it.
The Bill will now pass, and I shall vote for it, but let us agree, at least informally, that its implementation should be monitored with rigour. All societies must defend their security but open societies must take especial care of how they do so. Yesterday, President Biden told the American people that
“we’ll lead not merely by the example of our power but the power of our example.”
My Lords, the noble Baroness, Lady Jones, is absolutely right to bring forward her amendment to the Motion. I might want to criticise the details, which I do not intend to do, but she is right to do so. In fact, it would have been inconsistent with her rigid approach to the Bill for her not to do so. So, to that extent, I support her right to table the amendment; there is no question whatever about that. It gives me an opportunity to further vote for the Bill because I will not support the amendment to the Motion.
The noble Lord, Lord Marlesford, just made a point about the open society. This is a problem and there is a disquiet here. As an open society, we need to protect our openness. However, when that openness is the very thing used to undermine and smash our open society, we have to say no. We have to have a process that defends our open society and is consistent with the rule of law. The Bill is perfect for that. I have no doubt that in future the Bill will be amended, but the language that has been used about it is extravagant and misleading.
I see that on Twitter it is described as the “Spy Cops Bill”. It has nothing to do with spy cops. It is completely different and that can be misleading. If I was a CHIS in Scotland, I would be a bit concerned at the moment about becoming a whistleblower because I am not sure whether the Scottish Government are fully behind the process.
Perhaps I may briefly also express thanks. I have not been involved in the detail but I took up the Minister’s opportunity for a discussion with the Bill team and some of the advisers, which I found useful. Indeed, as a result, they published more information. The case studies, which I used extensively on Report, should have been deployed even more. There has been a communication issue regarding the Bill, which I find a fault because the Government have not defended and promoted some of its practical aspects as much as they could have.
The Bill protects covert human intelligence sources. It makes sure that they are not put at risk by being tested by the criminal gangs they may have been sucked into involuntarily, as mentioned in some of the examples used in the case studies. It is not the case that all people knowingly go down that route; they get sucked in by their employers. As a non-expert in this area, I found the newly published guidance incredibly helpful.
My final point is on the pejorative language used, such as when quangos are dismissed as not important. Most of the quangos listed in the Bill are non-ministerial government departments and should not be dismissed by saying, “Oh, it doesn’t matter”. I find that kind of language unacceptable among parliamentarians because it deliberately seeks to mislead the public regarding what the Bill is about. It should stop.
My Lords, I have a lot of respect for the noble Baroness, Lady Jones of Moulsecoomb, and we support the spirit of her amendment to the Motion to the extent that we oppose the granting of legal immunity. We believe that the Bill undermines the rule of law—that is, the principle whereby all members of a society are considered equally subject to publicly disclosed legal codes and processes. As a result of the Bill, that is called into question, as the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Hendy, have said.
Where a police officer or member of the security services tasks a covert human intelligence source to commit an act defined in law as a crime, the person tasked will no longer be subject to publicly disclosed legal codes and processes. An existing system that has worked effectively for decades, whereby informants and agents are tasked to commit crime and the decision, almost without exception, not to prosecute is taken by the relevant prosecuting authority, after considering all the facts, will be swept aside.
It is to be replaced with what we consider an unsafe and undesirable power, vested in the hands of the police, the security services and numerous other public authorities, to grant legal immunity with no prior judicial authority. The main issue is not, as the noble Baroness, Lady Jones, says in her amendment to the Motion, that there are insufficient safeguards or oversight, although this is arguably true. It is the fact that immunity can be granted at all, making the illegal legal. That is the fundamental issue for us on these Benches. I expect the legality of this aspect of the Bill to be challenged in the courts. That said, the House fully debated this aspect of the Bill, and without the support of the Labour Party leadership, we on these Benches were unable to remove it.
Contrary to the amendment to the Motion in the name of the noble Baroness, this House has clarified the existing position and improved the Bill, to ensure that innocent victims of crimes committed by those instructed to do so by state agents can seek compensation. Contrary to her amendment to the Motion, undercover policing is not being expanded by the Bill, although the Bill has shone more light on this aspect of policing. The number of public authorities that can deploy covert human intelligence sources has been reduced by the Bill. The directed criminal activity of those informants and agents has been placed on a statutory footing, rather than the Bill enabling it to increase.
From the start, we recognised the need to place the tasking of covert human intelligence sources to commit crime on a statutory basis, which this Bill does. We have improved the Bill in some important respects—the safeguards for children and vulnerable adults, for example, despite our fundamental misgivings over immunity. Therefore, with regret, we cannot support the noble Baroness’s amendment to the Motion.
I thank the Minister and the Bill team for their work on the Bill; our Labour colleagues and their staff for their assistance and co-operation on those aspects that we were able to agree on; and those on the Cross Benches who have liaised with us. I also thank my staff and colleagues for their help with what has been a very difficult Bill for me, personally, because of my previous professional experience of this difficult area of policing and because of my knowledge of the very real opportunities that the Bill presents for corruption and malpractice. The amendments that this House has introduced are the very minimum required and we will resist any attempt to remove any of them.
My Lords, we do not support the amendment to the Motion. This unelected House does not vote down Bills. Our role is that of a revising Chamber. Through making amendments to Bills, we invite the House of Commons to reconsider its position on specific aspects of legislation. That is what we have done with this Bill.
We have debated amendments to the Bill. Some have been agreed by this House, and some have not had its support. From our point of view, we have not won the support of this House for everything we wanted, but important amendments have been agreed and we want the Bill with those amendments to go back to the House of Commons for consideration. This amendment to the Motion, if carried, would thwart that objective and accordingly we shall vote against it.
This House has made important changes to the Bill. I should like to take this opportunity, along with my noble friend Lord Kennedy of Southwark and my noble and learned friend Lord Falconer of Thoroton, to thank the Minister and her ministerial colleagues, the Bill team, many other Members of this House and various security agencies and organisations for their willingness to meet us to discuss aspects of the Bill. Those meetings have been most helpful. Finally, we place on record our appreciation of the invaluable and immense support we have received from our own staff on this Bill, particularly Grace Wright.
My Lords, I thank all noble Lords who have spoken to this amendment to the Motion. I join other noble Lords in thanking the police, MI5 and other operational partners who will now, I hope, have a clear statutory framework and, as the noble Lord, Lord Carlile, says, the accompanying code of practice, which will also have the full force of law in which to operate.
I hope that the Government have put forward their case, in spite of some of the unique challenges relating to the sensitivity of this tactic and that noble Lords are reassured that I have been listening and will continue to listen to the strength of views that have been put forward on certain issues. I am happy to discuss any issue further and urge noble Lords to take that course of action if they have any remaining concerns, rather than support the amendment in the name of the noble Baroness, Lady Jones, which would cause the Bill to fall.
My noble friend Lord Marlesford talked about the implementation being monitored with rigour and I totally agree. Any legislation brought before Parliament must have that rigorous monitoring behind it. Every time the noble Lord, Lord Rooker, has spoken on the Bill, I felt like saying, “I refer noble Lords to the comments of the noble Lord, Lord Rooker”. He talked about the case studies which were much asked for at the beginning of the debates on the Bill and, once forthcoming, as the noble Lord said, almost forgotten about.
It is also worth considering that, without the power or activity that the Bill provides for, the NCA would have been unable to take almost 60 firearms off the street in 2018 alone and the Metropolitan Police would have been unable to seize more than 400 kilograms of class A drugs between November 2018 and November 2019. MI5 and CT policing would also have been impacted in their ability to thwart some 27 terror attacks since March 2017. I do not think that any noble Lord would want to prevent this criminality being stopped in future, which is what the amendment would do.
I acknowledge the important principles behind much of our debate on the Bill—Parliament needs to reassure itself that there is suitable oversight in place, and we have really interrogated that. While strong and differing opinions have been expressed on how to legislate for this activity, I pay tribute to the quality of the debate, despite fundamental differences, and the passionate and articulate way in which noble Lords have relayed their views.
I hope that, during the course of the debates, I have demonstrated the significant safeguards that exist and some of the additional ones that, as the noble Lord, Lord Paddick, and others have said, have now been inserted. Highly trained and experienced authorising officers must assess that an authorisation is necessary and proportionate. That authorisation must be compliant with the Human Rights Act, including the right to life and the prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment. The authorisation is then overseen by the independent Investigatory Powers Commissioner, who reports his findings in his annual report and, thanks to amendments supported by noble Lords, will now consider each and every authorisation within seven days of it being granted. The IPT then offers an entirely independent judicial mechanism for anyone who is concerned that they have been subjected to improper action by any user of an investigatory power.
I hope that the Division that I know the noble Baroness is going to call will not succeed, and I hope that the Bill will now go back to the other place so that it can consider the amendments that noble Lords supported on Report. The Government are committed to providing any additional reassurance to command the support of Parliament and, of course, to keep the public and CHIS safe.
I will conclude there because I realise that we have combined speeches from the debate on the amendment with the final concluding remarks, but I join the noble Lord, Lord Rosser, in thanking the Opposition Front Benches, everyone who has contributed to these debates and all the staff who support us. I hope that the noble Baroness will feel able to withdraw her amendment, but I suspect that that is not about to happen.
I thank the Minister for her response and all noble Lords who have taken part in this debate. I also thank the eight or nine Peers I passed as I came into the House, all of whom gave me the benefit of their views on this Bill and my amendment—some were positive.
It seemed to me that this Bill was the worst I had ever seen in your Lordships’ House until yesterday, when we had the overseas operations Bill, which is even worse. Luckily, there appears to be more opposition to that; I look forward to joining in. I have been in your Lordships’ House for seven and a half years, and, to the best of my recollection—which is not always the best—I have only ever pressed one vote to a Division. Today’s will be the second. I should like to test the opinion of the House.
Bill passed and returned to the Commons with amendments.
Arrangement of Business
I will call Members to speak in the order listed in the annexe to today’s list. Interventions during speeches or before the noble Lord sits down are not permitted and uncalled speakers will not be heard. Other than the mover of an amendment or the Minister, Members may speak only once on each group. Short questions of elucidation 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. It is not possible to degroup an amendment for separate debate. Participants who might wish to press an amendment other than the lead amendment in the group to a Division must give notice either in the debate or by emailing the clerk. Leave should be given to withdraw amendments. In putting the question, I will collect the voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the question is put, they must make this clear when speaking on the group.
Air Traffic Management and Unmanned Aircraft Bill [HL]
1: Before Clause 1, insert the following new Clause—
The Secretary of State must exercise his or her functions under this Part in accordance with the general duty under section 1 of the Transport Act 2000.”Member’s explanatory statement
This amendment would require the Secretary of State to exercise functions in respect of airspace change proposals under this Bill in accordance with the Secretary of State’s general duty in respect of air traffic services provided for by the Transport Act 2000.
My Lords, in moving Amendment 1, I shall speak also to the other amendments in my name in this group. Amendment 1
“would require the Secretary of State to exercise functions in respect of airspace change proposals under this Bill in accordance with the Secretary of State’s general duty in respect of air traffic services provided for by the Transport Act 2000.”
Amendment 10 is complementary to this amendment.
Amendment 2 would ensure that
“the Secretary of State must, before making a direction requiring a person to progress an airspace change, consider representations from persons involved in airspace change and be satisfied that the direction is necessary to deliver the CAA’s airspace strategy and is reasonably practicable to comply with.”
Amendment 5 would ensure that, before making direction requiring a person to co-operate in an air- space change, the Secretary of State must consider representations from persons involved in airspace change and be satisfied that it is reasonably practical for the recipient of the direction to comply with it.
Amendment 8 would align the test for the variation of the direction with that applicable to making a direction. Amendment 9 would require the Secretary of State to publish reasons for any direction to progress or co-operate in an airspace change proposal or variations or revocations of such direction made under this part. Amendment 11 would make the Secretary of State responsible for the implementation of the CAA’s airspace strategy and related reports.
Amendment 13 concerns the report on general aviation. General aviation—this was the case in my day, which is now some decades ago, but I think it still persists—particularly light general aviation, is essentially where all our airline pilots are initially trained; that is how they come into the profession and so on. It is important that it is properly facilitated with respect to airspace changes and development. Fortunately, from conversations with the Minister, I believe that she shares that view, and I hope that, in her response, she will set out the Government’s support for general aviation and how its interests will be taken account of in the developing airspace debate. Hopefully, this will leave general aviation properly provided for and, almost as important, feeling that it has been properly consulted in the development.
In summary, this group of amendments seeks to clarify the role of the Secretary of State. The Secretary of State has a role that is related to the CAA in various processes. It is not entirely clear who is in charge. The Bill as written gives the Secretary of State and the CAA the powers to achieve airspace change, but it is not clear who is actually responsible for getting it done. I would like to hear from the Minister that it is clear that the achievement of improvements and a new airspace capability is down to the Secretary of State, answerable to Parliament, and that his relationship with the CAA may be a partnership but he is the person in the partnership who is held accountable for execution and success.
The rest of the amendments are about requiring appropriate relationships between the parties and the Secretary of State. I beg to move.
My Lords, I support the Bill, but I must use this opportunity to say that it is a bit of a mess. That is not surprising, because it has such a long history: the Bill itself is the result of attempts over several years to get legislation of this nature, and of course we had the Committee stage over a year ago.
Since then, there has been a dramatic reversal in the fortunes of the aviation industry—one that we would never have foreseen at the time when we spoke about this last. The impact of coronavirus has undermined all branches of aviation. In addition, of course, since we last spoke we have left the transition period following Brexit, but we are still at the point where we have to adhere to international norms and regulations.
We certainly support the amendments. They are designed to ensure that, when aviation modernisation takes place, the change comes in a realistic and careful manner, and that where the overall cost for an airport is concerned, it receives appropriate compensation if there is a detriment to it. The Airport Operators Association has suggested that the Government need to stimulate the modernisation process by funding the first stage of modernisation, and I would be interested in hearing what the Minister thinks of that proposal. The association also remains concerned about the breadth of the powers that this Bill would give the Government in order to release controlled airspace, to ensure that controlled airspace is released by airports.
There is a clear tension here between the needs of general aviation—I fully appreciate that general aviation itself is not a neat, simple category; there are many different strands to it—and commercial aviation, which is worth many billions of pounds to our economy. That is something that concerns airport operators; they are worried about the lack of limit to the Government’s powers. I shall be listening to the Minister’s response and hoping that she will reassure us about the manner in which the Government will use those powers.
My Lords, I am grateful to the noble Lord, Lord Tunnicliffe, for tabling these amendments. I hope to set out the Government’s rationale for why we believe they are not necessary. I do not expect to speak at length on all groups, but for this group specifically it is important to put on record some commitments that the Government are willing to make and the rationale for them. I will return to the financial concerns of airports, raised by the noble Baroness, Lady Randerson, in the next group.
Amendments 1 and 10 seek to require the Secretary of State and the Civil Aviation Authority to act in accordance with the general duty set out in Sections 1 and 2 of the Transport Act 2000 respectively. These duties apply only to the provision of air traffic services and set out various matters to be considered in the exercise of the relevant functions. This includes the words
“to secure that licence holders will not find it unduly difficult to finance activities authorised by their licences”,
which in effect refers solely to NATS (En Route) plc, or NERL, as the UK’s only licence holder. I understand that NERL would like to ensure that the specific duty on the Secretary of State and the CAA is considered when directing NERL with an airspace change proposal, or ACP. It is already a requirement for the Secretary of State and the CAA to consider any licence conditions relating to NERL’s role in airspace modernisation through the lens of its statutory duties under the Transport Act 2000. As with any proposed recipient of a direction, if the licence holder has financial concerns in progressing an ACP then we expect that the CAA’s oversight team will seek to assist in finding potential solutions, such as sharing costs or expertise with other airport operators or assisting the proposed recipient in applying for funding from other sources.
The noble Lord’s amendment would extend the duties of the CAA and the Secretary of State in the Transport Act 2000 to cover other sponsors of airspace change; for example, airports. Relevant duties already apply to air navigation functions which the Secretary of State directs the CAA to carry out. Section 66 of the Transport Act 2000 enables the Secretary of State to give directions to the CAA regarding air navigation, and Section 70 sets out the CAA’s general duty in relation to its air navigation functions.
The amendment would be likely to cause a legislative conflict because, when determining whether to make directions using the powers in the Bill, the Secretary of State will consider advice from the CAA. This advice will take into account how critical the airspace change in question is in contributing to overall airspace modernisation, and the ability of the proposed recipient to progress the change, including the proposed recipient’s financial and other resources.
I turn to Amendments 2, 5, 8 and 9. The purpose of Amendments 2 and 5 is to require the Secretary of State to have regard to representations made by any person involved in airspace change before issuing a direction in order to be satisfied that the direction is necessary to deliver the CAA airspace strategy and that it is reasonably practicable to comply with. Amendments 8 and 9 would require the Secretary of State to ensure that the same considerations applied if the Secretary of State varied a direction and that the reasons for the variation were published. I reassure noble Lords that appropriate conditions are already written into the Bill.
Clause 2(3) states that, before giving a direction, the Secretary of State must consult its proposed recipient. Clause 2(4) states that the Secretary of State may give a direction only if he or she is of the view that it
“will assist in the delivery of the CAA’s airspace strategy.”
Clause 3(2) states that the Secretary of State must consult both the proposed recipient of the direction and
“the person with whom co-operation would be directed.”
On Amendments 8 and 9, Clause 4 requires that directions, and any notice of variation or revocation, given by the Secretary of State under Clauses 2 and 3 are given in writing and are published. As with directions given under Clauses 2 or 3, any variation of a direction must assist in the delivery of the airspace strategy. We also expect the Secretary of State to consider how critical the ACP is and the ability of the sponsor to progress it. Before varying a direction, prior consultation with the relevant parties would be required. The same factors considered when giving a direction would be considered before varying or revoking a direction.
The requirement to consult before giving or varying a direction would inevitably require the Secretary of State to provide reasons for giving or varying a direction and to take advice from the CAA to ensure that the direction or its variation is required to assist in the delivery of the CAA’s strategy. We would expect the reasons for the direction, or variation or revocation, to be given and published alongside the direction or notice of variation or revocation, rather than in the direction or notice of variation itself, although the Bill is not prescriptive on that point.
In the unlikely event that a direction or variation were given where it was not reasonably practicable for the sponsor to carry it out, the sponsor would be able to use its right of appeal to the Competition Appeal Tribunal, under Schedule 1, if the decision was wrong on one or more of the following grounds; namely, if it was based on an error of fact or was wrong in law, or an error was made in the exercise of a discretion.
Amendment 11 would make the Secretary of State responsible for the implementation of the CAA’s airspace strategy. It would also require the Secretary of State to lay before Parliament a Statement setting out progress towards the implementation of the strategy within 12 months of the Bill being passed, and to lay further reports covering every subsequent 12-month period within six months of those periods ending.
The Civil Aviation Authority (Air Navigation) Directions 2017, issued to the CAA under Section 66(1) of the Transport Act 2000, directs the CAA to
“prepare and maintain a co-ordinated strategy and plan for the use of UK airspace for air navigation up to 2040, including for the modernisation of the use of such airspace.”
This places responsibility on the CAA for preparing the strategy, in consultation with the Secretary of State, and to report annually on the delivery of that strategy, which the CAA does through its airspace modernisation strategy—AMS. However, although the CAA and the DfT, as co-sponsors, are jointly responsible for the programme and for setting out the framework within which modernisation happens, airspace modernisation will ultimately be delivered by aviation stakeholders. Therefore, the legislation makes it clear that the CAA is required by the Secretary of State to prepare and maintain an airspace strategy and publish an annual report on it, and that the Secretary of State will hold the CAA accountable for this.
With regard to the requirement for the Secretary of State to lay before Parliament a Statement on the CAA’s progress against the strategy, as I mentioned previously, the CAA is already required to publish an annual report on progress against the AMS through the directions made by the Transport Secretary under the air navigation directions 2017. The latest report was published on 22 December 2020. It is worth noting that an amendment of this nature would widen the scope of the Bill, which provides the Secretary of State with specific powers with regard to airspace change proposals, not responsibility for the AMS as a whole, which is covered by Section 66 of the Transport Act 2000.
Finally, Amendment 13, also tabled by the noble Lord, Lord Tunnicliffe, would require the Secretary of State to report on the impact of Parts 1 and 2 on the general aviation—GA—sector. I thank the noble Lord, Lord Tunnicliffe, for his constructive engagement on this issue since Committee; his insight and experience have been most welcome.
GA is a key part of the aviation sector and is an important source of pilots, engineers and technicians, who, in turn, contribute to the success of commercial aviation, as noted by the noble Lord, Lord Tunnicliffe. The Government support GA, and we will continue to ensure that its needs are not overlooked at both local and national level when it comes to airspace modernisation.
However, I do not believe that it would benefit the AMS to place a reporting burden on the Secretary of State within 12 months of the Bill becoming an Act, for two reasons. First, Part 1 provides the Secretary of State with powers of direction relating to ACPs. Initially, we intend to use the powers in the Bill only on ACPs that are part of the master plan which is being developed by the Airspace Change Organising Group—ACOG—and formally accepted into the AMS. However, due to the impacts of Covid-19 on the modernisation programme —notably, the financial impacts on industry—the next iteration of the master plan will now not be delivered until later in 2021. That means it is very unlikely that within the 12-month period laid out in Amendment 13 a sponsor would have been directed to undertake an airspace change. If the powers in Part 1 are not used in this timeframe, there will be no impact on GA to be assessed and reported.
Secondly, Part 2 relates to NERL’s licence. NERL is responsible for upper airspace, where GA aircraft, other than business jets, do not routinely fly. An impact assessment, relating to Part 2, of the effects on GA would be very limited in content. The Secretary of State is aware that ACPs can have both positive and negative effects on stakeholders, including the GA community. If an individual ACP were directed, the impacts on GA would be set out in the CAP1616 process and GA bodies would be consulted if there were impacts.
I will revisit some of the things that the Government already do to ensure that the GA sector is fully represented at every level of the airspace modernisation governance structure. First, the Government are grateful to the All-Party Parliamentary Group on General Aviation for sharing the findings of the inquiry into UK lower airspace led by my noble friend Lord Kirkhope. The Government will continue to consider these recommendations during future updates to the AMS.
Secondly, CAP1711b, the governance annexe of the AMS, lists all the organisations that must be engaged in airspace modernisation. For example, ACOG is required to demonstrate how it has engaged with GA bodies such as the General and Business Aviation Strategic Forum in order for the master plan to be accepted by the CAA. To further strengthen ACOG, two GA representatives now sit on its steering committee.
Additionally, and following the Kirkhope inquiry, the Secretary of State has amended the air navigation directions to require the CAA to undertake a review, in consultation with airspace users, of airspace classification. The review will identify volumes of controlled airspace where the classification could be amended to better reflect the needs of all airspace users. The Secretary of State has also directed the CAA to prioritise ACPs from GA aerodromes relating to global navigation satellite systems—GNSS—approaches.
As demonstrated, we take the contribution of GA very seriously. As a sign of this, and after discussions with the Secretary of State, I can commit to the following further actions. First, we will require that ACOG includes a general assessment of the potential impact on the GA sector in all future iterations of the master plan. The CAA will enshrine this requirement in its guidance to ACOG on what the master plan must contain from a regulatory perspective. Secondly, we will ensure that future iterations of the master plan will be drawn to the attention of both Houses when they are published by placing a copy in the Libraries of both Houses. We will also direct the CAA to include a specific chapter on GA in its annual progress report on the AMS. This will be published, and a copy placed in the Libraries of both Houses accompanied by a Written Ministerial Statement. Additionally, we will require the CAA to provide a report on the impact of Part 1 of the Bill on GA, under Sections 16 and 17 of the Civil Aviation Act 1982.
These actions that I am committing to achieve the same objective as this amendment. I hope that, based on these reassurances and the commitments I have made, the noble Lord feels able to withdraw his amendment.
My Lords, I thank the Minister for her response. In light of the assurances she has given us, I am happy to withdraw Amendment 1 and send this Bill to the other end, where they will no doubt consider her response in great depth. I shall also not be moving the rest of the amendments in my name in this group.
Amendment 1 withdrawn.
Clause 2: Direction to progress airspace change proposal
Amendment 2 not moved.
We now come to the group beginning with Amendment 3. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
3: Clause 2, page 2, line 25, at end insert—
“( ) If a direction given to a person under subsection (1) is predominantly or wholly to enable the air change proposals of a third party to be completed as part of the masterplan for airspace modernisation and not an airspace change proposal of the person itself and would lead to adverse financial impacts for that person, the Secretary of State may compensate that person and may recover the cost of compensation wholly or in part from the third party.”Member’s explanatory statement
This amendment would allow compensation for adverse financial impacts.
I move Amendment 3 and I will speak briefly to the other amendments in this group. Amendment 3 would allow compensation for adverse financial impacts. Amendment 4 would empower the Secretary of State to provide that a person who is directed to progress an airspace change is fairly compensated for doing so, and that the compensation can be recovered from another person involved in airspace change where appropriate. Amendment 6 would empower the Secretary of State to require a person involved in airspace change to compensate another person who had been directed to progress an airspace change. Amendment 7 would allow compensation for adverse financial impacts.
One of the problems of getting organisations to co-operate is that some parties are unwilling to do so and they will use the financial impact on them as their excuse, particularly if one party is required to co-ordinate the activity and invest considerable work but is not likely to gain financially from the changes it is developing. Then it will be reluctant to move. Efforts to improve airflow planning over south-east England have been going on for at least a decade. It is important that, if it is a matter of financial limitations, the Bill allows appropriate mechanisms for money to flow between parties and perhaps from government.
This is important between big players, such as the airports and NATS. It is also important in the case of small airports or airfields on the periphery of the controlled airspace, where small changes may have significant adverse effects on them and they are not equipped—particularly financially—to mount a proper representation to have their voices heard without some recognition of the financial burden on them. Clearly, the movement of monies between the parties as allowed for in this group of amendments may not be necessary, but since we are creating a Bill to address all eventualities in the development of modern airspace it is important at this stage to make sure that there are facilities for money to move about and, in extremis, for government perhaps to finance parts of that development. I beg to move.
My Lords, our airspace modernisation is a complex but necessary process. It is necessary in the modern world because it enables environmental gains in an industry increasingly under fire for its emissions and where the technological solutions are much more long term than they are in the case of, for example, road vehicles. However, as the noble Lord, Lord Tunnicliffe, has just pointed out, one person’s gain is often another person’s loss. These are useful amendments because there is a real fear of a potential conflict between airports as the modernisation process goes forward.
In Committee, I mentioned that Stansted and Luton airports, for example, are very close geographically. It is not impossible to imagine that what would help Stansted might deprive Luton; for example, a potential airspace route that would cost it money in terms of potential for new services. Since the Committee stage, airports have found themselves in great financial difficulty because of travel restrictions. These amendments are therefore designed to ensure what I assume is an even-handed approach from the Secretary of State down through the CAA and the Airspace Change Organising Group.
The Airport Operators Association remains concerned about the funding of this issue—I raised that in the last group and was delighted to hear that the Minister has agreed to deal with it in her response here. When this matter was raised previously by the Airport Operators Association, the Aviation Minister suggested three sources of funding in a situation where one airport was going to win at the expense of another. The first suggestion was that alternative sponsors might pay. I would be grateful if the Minister would explain exactly what is intended with that proposal.
The second suggestion from the Aviation Minister was that funding might come from the £10-million airspace modernisation fund. That sounds fine but it is actually a relatively small sum so I would be grateful if the Minister could explain whether that is a fixed sum or extra funding would potentially be available.
Thirdly, there was a suggestion of government funding on a case-by-case basis. If the Government have any further thoughts on this, it would be really good to hear them at this stage. I hope that the Minister can put the Government’s intentions on record today to clarify these issues.
My Lords, the purpose of this group of amendments is to enable compensation for the recipient of a direction if the airspace change is predominantly or wholly for the benefit of a third party and if issuing a direction would lead to adverse financial impacts. Amendments 3 and 7 would also allow the Secretary of State to recover the cost of the compensation from the third party.
It is important for me to be clear up front that, while we recognise the severe impact that Covid-19 is having on the aviation sector, the “user pays” policy principle is an important one: those who stand to benefit from airspace change should pay for the costs of such a change. In the light of the pandemic and its effects on the aviation industry, most airports have paused their work on airspace change. However, airspace modernisation remains critical to deliver additional capacity and improve access to airspace for different users; it also brings environmental benefits by reducing emissions.
Therefore, the Government have asked the Airspace Change Organising Group—ACOG—to revisit the master plan for airspace change in this light to ensure that the benefits of the programme are realised and that the investment already made is not lost. In July last year, ACOG published a report on remobilising airspace change. It included 10 recommendations aiming to ensure that the programme advances, while recognising the financial pressures faced by airports and the industry.
The DfT and the CAA immediately accepted recommendations 1, 2 and 4. First, we will ask ACOG to establish clear protocols for the airports that are able to resume work on airspace change, how we engage with those where work has paused and the exit process for those that decide to opt out of the programme, subject to their criticality to the programme as a whole. Secondly, we will ask NERL and ACOG to work together to re-evaluate NERL’s 2018 feasibility report into airspace modernisation to identify the core set of airport-led airspace changes that will be required in the post-Covid world. Lastly, in the short term, the CAA will work with ACOG to ensure that work on airspace change that can still progress does not conflict with or constrain the broader programme.
Officials continue to work closely with the CAA to consider the remaining seven recommendations. One of these includes funding to tackle the short-term airspace change proposal—ACP—funding gaps potentially created by Covid-19. In the light of the pandemic, we recognise that the timescales in which airspace modernisation will take place will necessarily change. ACOG therefore plans to develop the future iteration of the airspace modernisation master plan in 2021.
The powers in the Bill are tied to the airspace modernisation strategy—the AMS—and the master plan. The Secretary of State could make a direction only to persons involved in airspace change based on this strategy. Therefore, it follows that there are no plans to use these powers in the near future while the industry recovers from the pandemic. As I have said, the need to modernise the UK’s airspace has not changed. We will need these powers in future once the master plan has been developed and the modernisation programme has been restarted to ensure that the strategy can be implemented in the years to come.
The Government recognise that there may be occasions when a small airport, or another person involved in airspace change, may require financial assistance to carry out some aspects of an ACP. We expect the CAA’s oversight team to work with the potential sponsor before recommending that the Secretary of State uses the powers to direct an ACP. At this early stage, if the potential sponsor expressed concerns that it did not have sufficient funding to proceed with a particular ACP, we would expect the oversight team to work with the potential sponsor to suggest alternative solutions.
I will set out again those solutions as they currently stand for the noble Baroness, Lady Randerson. As she noted, they could include an alternative sponsor paying for the changes. The CAA oversight team could help to identify and seek support from another ACP sponsor most likely to benefit or whose own ACP plans depend on the change in question. When it comes to airspace modernisation, where the airspace of two neighbouring airports overlaps, there will necessarily have to be collaboration. There cannot be one winner and one loser. The CAA will have a key role to play in that, not only in terms of seeking redress for putting the airspace programme in place but also in considering the fairness of the proposals between those two airports.
The second source of funding is the CAA’s airspace modernisation support fund. This fund is intended to support projects that are important to the success of the AMS where there are no other appropriate mechanisms for the recovery of the costs. It should support AMS deployment, including activity that is critical to the implementation of the airspace master plan that ACOG has been commissioned to deliver under the AMS. The noble Baroness mentioned a figure of £10 million and stated that she did not feel it was enough. At the moment, the Government are working on a one-year spending review, and further consideration of the nation’s finances and the availability of funding for this programme will be considered in future spending plans.
Finally, there is potential—it is a last resort—for government funding. The Government could consider, on a case-by-case basis only, whether grant funding under Section 34(1)(b) of the Civil Aviation Act could be provided to allow the airport director sufficient funds to bring forward an ACP. This funding would be subject to Treasury approval and would be provided only if absolutely necessary. Alternative funding mechanisms would be considered in the event that the sponsor is not an airport.
Due to these steps and the considerations of the industry as a result of the pandemic and further options that may be available to us, we do not expect a situation to arise where a potential sponsor would be put in financial difficulty by being directed to progress an ACP. I hope that, on the basis of my explanation, the noble Lord will feel able to withdraw his amendment.
My Lords, I thank the Minister for her explanation and for placing it on the record. I note that the Government are not entirely closed to the idea that financial considerations may be important, and that they may have to act to ease the burden on one party against another or make some arrangement, even if it is not a direction. I found the answers useful; unfortunately, I would have found an answer where she agreed with me entirely more useful. Nevertheless, I think that this has gone far enough for me to be happy to withdraw the amendment, and I give notice that I do not intend to move the other amendments in this group.
Amendment 3 withdrawn.
Amendment 4 not moved.
Clause 3: Direction to co-operate in airspace change proposal
Amendments 5 to 7 not moved.
Clause 4: Directions under sections 2 and 3: supplemental
Amendments 8 and 9 not moved.
Clause 5: Delegation of functions to CAA
Amendment 10 not moved.
Amendment 11 not moved.
We now come to the group beginning with Amendment 12. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 10: Air traffic services licensed under Part 1 of the Transport Act 2020: enforcement
12: Clause 10, page 9, line 25, at end insert—
“(5A) In section 34 (investigations), for subsections (1) and (2) substitute—“(1) A person may make a representation to the CAA about an alleged or apprehended contravention of a section 8 duty or a licence condition.(2) Where a representation is made to the CAA, the CAA may— (a) consider the representation;(b) investigate the alleged or apprehended contravention.””Member’s explanatory statement
This amendment provides the Civil Aviation Authority with discretion over whether to investigate alleged or apprehended contraventions of section 8 duties or licence conditions by air traffic services licence holders. This discretionary power would replace the current requirement for the CAA to investigate alleged or apprehended contraventions in certain circumstances.
My Lords, I thank the noble Lord, Lord Tunnicliffe, NATS and the CAA for their very constructive engagement on this issue, which has resulted in these government amendments. In moving Amendment 12 I will speak also to Amendment 21.
Amendment 12 seeks to amend Section 34 of the Transport Act 2000 to give the CAA greater flexibility to consider representations about an alleged or apprehended contravention—or a complaint—and to ensure that resources are used effectively. Section 34 of the Transport Act 2000 currently places an obligation on the CAA to investigate a complaint if the representation is made by—or on behalf of—a person who appears to have an interest. While this obligation does not apply if the representation appears to the CAA to be frivolous or vexatious, in practice this section as currently worded gives the CAA little discretion not to commence formal investigations. As a result, the licence holder and CAA may be presented with a considerable burden when engaging with an investigation which could potentially have serious resource implications, even where the CAA then decides not to take further enforcement action.
Amendment 12 will provide clarity and flexibility for the CAA and stakeholders as to when investigations should be commenced. This will reduce the potential for unnecessary investigations which have no material effect—or which result in no enforcement action being taken—without watering down the CAA’s powers, or the ability of parties to raise a complaint. The CAA will publish updated enforcement guidance, which can refer to the application of Section 34.
Amendment 21 is a minor, consequential amendment. The Bill already makes a consequential amendment to Section 34 of the Transport Act 2000. That provision would have changed the current reference in Section 34 from “condition of a licence” to “licence condition”. As Section 34 is being amended more substantively, that consequential amendment is no longer required.
I turn briefly to Amendment 19, tabled by the noble Lord, Lord Tunnicliffe. I am grateful to the noble Lord for engaging with this. Amendment 19 seeks to ensure that the CAA would impose penalties on the licence holder, NERL, only where the contravention of the licence or Section 8 duty is serious, and it was deemed proportionate to do so. Following extensive engagement with NERL and detailed consideration, the Government are of the view that this amendment is not necessary. There are already sufficient legal checks and balances contained in the Bill, as well as through policy and guidance, to prevent disproportionate fines being levied on a licence holder.
The proposed amendment would also depart from the approach taken in the equivalent provision in the Civil Aviation Act 2012, meaning that the threshold for imposing a penalty relating to NERL would be higher than that for an airport’s economic licence. This would create a disparity in CAA enforcement across the sector. I do, however, appreciate the importance of considering the seriousness of the contravention, along with the proportionality of imposing a fine, and I will take this opportunity to reassure noble Lords of what provision has already been made.
First, the power of the CAA to impose a penalty is discretionary, and it would do so only for the most serious contraventions or as a matter of last resort. All regulators, including the CAA, are already required to consider the better regulation agenda—as well as the Macrory principles of better enforcement—in exercising their regulatory and enforcement functions. The Macrory principles explicitly state that enforcement must be proportionate to the nature of the offence and to the harm caused. In practice, proportionality will be considered at every stage of a stepped process to enforcement, which will be set out in the CAA’s enforcement guidance and statement of policy on penalties. The CAA is required to consult relevant stakeholders on the latter. The CAA will decide whether to impose a penalty, and the level of penalty, by assessing the seriousness and harm caused to users by the contravention, through the lens of its statutory duties under the Transport Act 2000.
If the CAA were to propose a penalty on the licence holder, the Bill contains procedural safeguards, in the form of consultation with the licence holder, before the penalty could be imposed. This would give the licence holder the opportunity to highlight the steps it is taking to mitigate the contravention. The CAA would consider all stakeholder representations ahead of imposing a penalty. If the licence holder were to disagree with an imposed penalty, they could appeal to the Competition Appeal Tribunal, which would have to have regard to the financeability duty imposed on the CAA under Section 2 of the Transport Act 2000. This approach is broadly aligned with equivalent provisions in the Civil Aviation Act 2012. The Government’s decision to modernise the air traffic licensing regime recognised that appropriate alignment with similar regulatory regimes would provide stakeholders with greater clarity and certainty and assist the CAA in exercising its regulatory functions and statutory duties in a more effective manner.
Turning to Amendment 20, I think we are agreed that the CAA should have a discretionary power to investigate complaints under Section 34, as set out in Amendment 12. It would therefore be inconsistent to narrow the power for the CAA to obtain information in relation to Section 34. I beg to move.
My Lords, these amendments relate to the CAA’s function to investigate complaints over breaches of licence conditions. Since the CAA has considerable powers, any limitation of those powers needs to be carefully balanced. There are concerns within various parts of the aviation industry about how the dual role of the CAA effectively operates in relation to these issues.
I regret that I am speaking before the noble Lord, Lord Tunnicliffe, because I want to listen carefully to the thoughts behind his amendments. It is important to fully understand the purpose of Amendment 20 in narrowing the power to obtain information. I believe it is in the spirit of the other limitations within this group of amendments, which seem entirely sensible.
My Lords, we fully support Amendments 12 and 21. We put forward amendments in Committee, in the light of conversations with the CAA, which we felt made some good points. We put these to the Government, who said, as Governments always do, “We don’t think much of your amendments but we agree with what you’re trying to do. Can we do it our way?” And my view is, yes, we can do it in the way they wish to draft it.
I turn to Amendment 19. In many ways, the Minister has answered the question: will the CAA behave in a responsible and proportionate way? She has basically assured us that it will, and that it is implied in general legislation.
On Amendment 20, we felt that the CAA’s powers were overly wide. I do not have a more specific reason for tabling the amendment, other than that the two concepts in Amendments 19 and 20 stood together.
I thank the noble Baroness, Lady Randerson, and the noble Lord, Lord Tunnicliffe, for a brief and constructive discussion. This is the culmination of many discussions of these issues, and we were very keen to reassure the noble Lord, Lord Tunnicliffe, that we recognised his concerns. We did—in typical government fashion—decide that our amendment was better than his, for which I apologise, but I suspect we were probably right. I am very grateful that the noble Lord is supporting the amendments. I tried very hard to set out exactly what we would expect the CAA to do in relation to his Amendment 19, and I am pleased that I have reassured him.
On Amendment 20, we felt that it would be inconsistent to narrow the power for the CAA to obtain information in relation to Section 34, because the Bill currently includes the power for the CAA
“to obtain information for … carrying out its functions under section 34 and Schedule B1”.
This covers documents or information that the person has or are under their control. It is important to note that:
“The CAA may give a notice under this paragraph only in respect of information or documents that it reasonably requires”—
I suspect that is a bit of narrowing—
“for the purpose of carrying out its functions under section 34 or Schedule B1.”
Therefore, we do not feel that it is necessary to limit the power, as we believe that the Bill is already appropriately drafted. On that basis, I commend the amendment to the House.
Amendment 12 agreed.
We now come to the group beginning with Amendment 12A. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this, or anything else in this group, to a Division must make that clear in debate.
12A: After Clause 11, insert the following new Clause—
“Airport slot allocation(1) Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at United Kingdom airports is amended as follows.(2) After Article 10a insert—“Article 10aaTemporary power to make regulations about airport slot allocation1 The Secretary of State may by regulations amend or modify this Regulation or the Airports Slot Allocation Regulations 2006 (S.I. 2006/2665) to make provision about the allocation of airport slots to air carriers in respect of specified periods.2 The Secretary of State may make regulations under this Article only if the Secretary of State considers that as a result of severe acute respiratory syndrome coronavirus 2—(a) there has been a reduction in the level of air traffic in a period compared to the corresponding period in a relevant previous year, and(b) the reduction is likely to persist.3 The power to make regulations under this Article may not be exercised—(a) after 24 August 2024, or(b) in respect of a period after the winter season following 24 August 2024.4 Regulations under this Article may, in particular, make provision—(a) requiring coordinators to consider slots allocated for a specified period as having been operated by the air carrier to which they were initially allocated, subject to any conditions as may be specified in the regulations being met;(b) modifying Articles 8(2), 10(2) and (4) and 14(6) of this Regulation to apply for a specified period as if they contained different percentage figures, subject to any conditions as may be specified in the regulations being met;(c) modifying Article 10(4) of this Regulation to apply for a specified period as if it included additional reasons on the basis of which non-utilisation of slots by an air carrier can be justified;(d) modifying Article 14 of this Regulation to apply for a specified period as if it included a power for the coordinator to withdraw slots from an air carrier for the remainder of a scheduling period where the coordinator determines that the air carrier has ceased its operations at the airport concerned and is no longer able to operate the slots allocated to it;(e) about enforcement of any provision made under this Article, including modifying for a specified period Article 14 of this Regulation or regulations 14 to 19 of the Airports Slot Allocation Regulations 2006;(f) modifying for a specified period any provision of this Regulation relating to the allocation of slots to new entrants (including the definition of new entrant);(g) modifying for a specified period any provision of this Regulation relating to coordination parameters. 5 In paragraph 2(a) “relevant previous year” means any previous year that the Secretary of State considers appropriate for the purposes of comparing levels of air traffic.”(3) In Article 13 (regulations)—(a) after paragraph 1 insert—1a A statutory instrument containing regulations under Article 10aa may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”;(b) in paragraph 2, for “Regulations” substitute “Any other regulations”.”Member’s explanatory statement
This amendment would provide the Secretary of State with a temporary power to amend the airport slot allocation provisions in Council Regulation 95/93 and the Airports Slot Allocation Regulations 2006 where, due to coronavirus, there has been a reduction in the level of air traffic that is likely to persist.
My Lords, Amendments 12A, 18A, 18B and 44 are a series of government amendments to provide temporary powers for the alleviation of airport slot usage rules. This will amend retained EU regulation 95/93, which governs the allocation of UK airport slots.
Prior to the Covid-19 pandemic, the 80:20 rule—or the so-called use it or lose it rule—encouraged the efficient use of scarce airport capacity, while allowing airlines a degree of flexibility in their operations. There are eight slot-constrained airports in the UK to which the 80:20 rule applies: Heathrow, Gatwick, London City, Luton, Stansted, Bristol, Birmingham and Manchester. The 80:20 rule mandates that, provided an airline has used its airport capacity at least 80% of the time in the preceding scheduling period—either winter or summer—it is entitled to those slots in the upcoming equivalent period.
Due to the unprecedented impact of the Covid-19 pandemic, in March last year the EU Commission took the decision to waive the 80:20 rule. Airport co-ordinators were instructed, when determining slot allocations for the upcoming summer season, to consider slots as having been operated regardless of whether they were actually used. This waiver covered the summer 2020 season and was subsequently extended to cover winter 2020-21. The UK supported the EU’s position.
Without alleviation, airlines may have incurred significant financial costs by operating flights at low load factors merely to retain their slots. Alleviation has helped to protect future connectivity and airline finances and reduced the risk of ghost flights being run to retain slots.
We anticipate that the effects of the Covid-19 pandemic on the aviation industry will continue for some time. Passenger demand is not predicted to return to 2019 levels until at least 2024-25. After we exited the UK-EU transition period on 31 December, regulation 95/93 was retained in UK law. However, when it was retained, the powers of the Commission to extend the period of alleviation from the 80:20 rule—which are being transferred to the Secretary of State—were expressly limited to 2 April 2021. As we expect disruption to air travel to continue for several years, it is therefore imperative that the UK has the necessary powers at its disposal to provide alleviation beyond the summer 2021 season should the evidence suggest that it is warranted.
Amendment 12A inserts a new clause after Clause 11 in Part 2 of the Bill. The new clause would insert a new Article 10aa into retained Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at United Kingdom airports. This would provide the Secretary of State with a power, exercisable until 24 August 2024 and not in respect of a scheduling period after winter 2024-25, to provide air carriers with alleviation from the requirement to operate airport slots allocated to them 80% of the time in order to retain the slots for the next equivalent scheduling period.
To allow for flexibility, this amendment also includes powers to modify the 80% requirement relating to slots usage. This will be an alternative to applying a full alleviation of the 80:20 rule for a specified scheduling period or season. This recognises that there could be alternative ratios, not 80:20, which could be applied to ensure the efficient use of slots. It will also allow the Secretary of State to apply conditions to an alleviation of the 80:20 rule, such as by setting a deadline for the return of slots not intended for operation, or that a waiver will not apply to a series of slots of an airline that, for example, ceases to operate at an airport.
The amendment also allows the Government to make other changes to the operation of the rules relating to the allocation of slots under this regulation for the duration of the relevant scheduling period. For example, the Government could change co-ordination parameters to reflect partial closures of airports, adopt temporary rules for the most efficient allocation of unused slots, and give the slot co-ordinator enforcement powers—for example, where unused slots are not returned with sufficient time to enable them to be effectively reallocated to other carriers. Having the powers to vary the 80:20 ratio and apply conditions to be in place on application of the rule will allow appropriate measures to support the sector’s recovery as passenger demand returns.
The use of this power will require secondary legislation, subject to the affirmative procedure, for any applicable scheduling period in which evidence supports the conclusion that relaxation of the 80:20 rule is appropriate. The nature and extent of any relaxation will be subject to targeted consultation and, of course, there will be a debate in both Houses.
This approach will allow us to use current data and evidence, as well as to consult stakeholders, to make judgments on whether alleviations are required for each period and, if so, to what extent. We will also assess other institutions’ analysis and recommendations on slots usage rules for future seasons, including the Worldwide Airport Slot Board, and proposals from other areas, such as the European Union and the United States.
Amendment 18A is a consequential amendment to Clause 19 to reflect that the new clause on airport slot allocation extends to England, Scotland and Wales but not Northern Ireland, where aerodromes are a matter reserved for the devolved Assembly. As noted, however, all slot co-ordinated airports in the United Kingdom are currently in England.
Amendment 18B is a consequential amendment to Clause 20 and provides for the new clause to come into force immediately when the Bill is passed and becomes an Act. This amendment ensures that regulations could be made under the new Clause 11A, relating to airport slot allocation, following Royal Assent, so that they are ready to come into force as soon as appropriate thereafter.
Amendment 44 amends the long title of the Bill to include reference to airport slot allocation. I beg to move.
My Lords, I thank the Minister for her introduction to these amendments and her explanation of the background. I should explain to the House that for most of my time as a Member of the other House I represented Aberdeen Airport; I say “most of my time” not because the airport relocated, but because my constituency boundaries changed. As a result of that, and of the fact that I commuted weekly by air to Parliament for decades—until lockdown last March, I continued to do so—I have taken an interest in aviation. Until lockdown I was also a frequent traveller around Europe and the rest of the world, and have experience of a variety of airlines and airports, large and small.
The allocation of airline landing slots is controversial, in terms of competition and commercial opportunity, as well as of access from feeder airports to the co-ordinated airports—a particular concern of mine. I completely understand the reason for the current waiver of the 80:20 “use it or lose it” rule, in the present climate. As the Minister said, we are following the same measures as the EU. Since she touched on this, does she foresee any circumstances in which the UK would, or should, take a different approach—for example, in how the proportions are reallocated? What would be the criteria or the conditions for that to happen?
I understand the complexity of managing slots, especially when airlines have seen their incomes decimated, and the fact that, as the Minister said, the predictions are for a long, slow period of recovery. At the same time, airport managers understandably wish to maximise traffic through their airports and resent it if airlines retain slots that they do not use, especially if other airlines are seeking additional slots with the intention of building a service. Given the need to maintain good relations with its airline clients, an airport may be unwilling to express its frustration. Clear, legally enforceable rules would be helpful, so does the Minister think that legal enforceability of the slots rules should be considered?
Access to services to and from London airports is especially critical for Scottish and Northern Ireland airports, both for access to London and for connections to Europe and the rest of the world. Of course services are driven by demand and commercial reality, but it is acknowledged that wider economic consideration for linkages is also important. That was demonstrated by the Government’s intervention on the collapse of Flybe, in relation to certain regional services.
Leaving aside the case for subsidies—I am not engaging with that in this debate, even for lifeline services, as it seems an important but separate issue—there has been a belief among many airport users that feeder routes to London may be profitable, but that the slots could be more profitably used for long-haul routes. The feeder routes were not necessarily uncommercial, but perhaps less profitable. Control and possible hoarding of slots by the larger airlines restricts competition and makes it difficult for other airlines to develop alternative services.
At the height of oil and gas activity in Aberdeen, we had daily flights to not only Heathrow but Gatwick, London City, Luton and Stansted; more recently Loganair trialled a service to Southend, but that did not last long. British Airways pulled out of providing a service to Gatwick and London City years ago. I found that hard to understand, as many of the airline’s holiday flights operate from Gatwick and transfers from Heathrow to Gatwick are not relaxing. EasyJet pulled the last Gatwick link, and Flybe and Eastern ended the City flights. Flybe and Virgin both attempted to offer a Heathrow service but neither became established, although it was Flybe’s demise that ended its Heathrow link.
As of this week, because of the pandemic, we have one or two return flights a day to Heathrow, compared with the six or seven we would expect in normal times. EasyJet will start providing daily flights to Luton from March, and—hallelujah—to Gatwick from May, Covid permitting. No doubt users of Belfast Airport will have a similar story, while Inverness has had to fight to retain links to London. Indeed, the reduction in services to London has seen business switch to Amsterdam and Paris, to which we have direct services, although those services, too, are currently limited.
As has been said, airlines’ recovery post-pandemic is likely to be slow but could also be ruthlessly competitive. Will the Government consider how the allocation of slots can be managed to ensure that it works in the best interests of all stakeholders, including the flying customers and feeder airports? Can airlines be prevented from hoarding routes they do not use, if that keeps out feeder routes or newcomers?
What steps can be taken to ensure that the allocation of slots takes into account the economic and social needs of remote communities, which are by definition more dependent on air links? Just for the record, the train journey from Aberdeen to London takes a minimum of seven hours, and at the moment we have only one direct service without changes; the others take longer. For people living in such areas, flying is not a luxury but an essential part of life.
Could the allocation of medium to long-haul slots be linked to a requirement to apportion and use a minimum allocation of slots from feeder airports to the co-ordinated airports? I repeat that this is not about subsidising those services. The suspicion is that they could be commercial, and probably are, but are just not as profitable. Does the Minister agree that the policy of slot allocation should be closely monitored to ensure that it is fit for purpose in the challenging future we face?
I understand the reason behind the amendments and accept it. But I believe that we should review the role of the allocation of slots, in a holistic way that takes into account the needs of the co-ordinated airports to optimise the use of their space, gives the feeder airports the linkages they need, and gives the passengers —who, after all, are really who the airports exist for—the choice and the services that can be achieved, rather than simply subjecting them to a decision based on the bottom line. Given the dire straits that many airlines are in, it is understandable that they should think in that way, but if the Government have a role, it should be to ensure fairness and social and economic connectivity, not just the profitability of the airlines.
My Lords, this is part two of a discussion that we started earlier this week on the SI on this subject, which gave the Government temporary powers. Since Committee stage, a year ago, we have had the impact of the pandemic and the EU has waived the usual 80:20 rules on slot usage. That was welcome because it avoids ghost flights—empty flights, just to keep slots.
In the amendments the Government are giving themselves powers until 2024 to continue to waive the rules altogether or to vary them, possibly by varying the percentages. That is a whole new issue to have entered the Bill—something that was simply not there a year ago. I wondered about the 2024 date and whether the period was a tad lengthy but time and time again in this pandemic, things have taken much longer to play out than we thought they would. On reflection, 2024 seems to allow a reasonable period ahead to give a level of certainty.
Because we did not have these substantial amendments prior to Report today, however, I have some questions for the Minister. First, Amendment 12A involves temporary powers to make regulations about slot allocation. Paragraph 4(d) of the new article it inserts would allow the co-ordinator to “withdraw slots” from a carrier where it is determined that
“the air carrier has ceased its operations at the airport concerned”.
My question to the Minister is: how would that be determined? I have in mind a question similar to the one I asked earlier in the week about Gatwick. Virgin has announced that it will not fly from Gatwick in future and will no longer have a base there. Indeed, it no longer does have a base there—but it retains its slots. Slots are a very valuable commodity, so how is such a situation likely to be approached in future?
My second question is on the same amendment. Paragraph 2(a) refers to “a relevant previous year”, which is later defined as:
“any previous year that the Secretary of State considers appropriate for … comparing levels of … traffic.”
That is an extraordinarily broad and vague definition, as levels of traffic vary dramatically according to the make-up of carriers from specific airports—with new ones coming and going—and to their commercial decisions. It also uses the term of a year, while slot waivers work in seasons to reflect the patterns of demand, which vary from season to season. Can the Minister confirm that the year as a whole will be the point of comparison?
Another point that I raised in our debate earlier this week is that the number of available slots currently greatly outweighs the capacity of the airlines to fill them, because as the pandemic has progressed they have greatly reduced their staff and the number of planes that they own or rent. How do the Government intend to approach this problem, whereby the number of slots cannot be filled by the current capacity of airlines?
Slot hoarding has to be tackled. The 80:20 rule is designed to maintain the competitiveness of the industry, which means fair ticket prices for passengers. If the waiver is exploited it will be bad for new entrants to the market, bad for passengers, and bad for airports. The powers or conditions that the Government have included here, therefore, and the potential to vary the 80:20 ratio, seem a sensible and welcome approach to the situation that we face, and I look forward to the Minister’s explanations.
My Lords, we generally support these four amendments, and we thank the Minister for tabling them for our examination. Nevertheless, one must recognise that the dilemma brought out by the noble Lord, Lord Bruce, in his contribution, is a real one. It is important to see these amendments as quite separate from the general problem. Can the Minister tell the House what examination of this problem the Government expect to conduct in the future?
I know from my own experience, which goes back to the 1980s, that slot allocation is a very difficult and challenging problem in the airline industry. One of the problems in life is that when there are many parties to finding an overall solution to the distribution of a scarce resource the solutions you get become very difficult to change: creating a level of change that would address the issues raised by the noble Lord, Lord Bruce, would be in the best “Yes Minister” category—very brave. I hope, nevertheless, that the Minister can lay out some of the plans for addressing this issue.
On the amendments as a whole, I have a few questions. The Minister may have answered them—I was slightly distracted, so I hope the House will forgive me if we go over old ground.
First, my understanding is that each season’s solution, under these amendments, will be subject to an affirmative order. I would value a simple assurance on that.
Secondly, the Heathrow authorities told us that in their view the agreements that were being developed through the Worldwide Airport Slot Board were more optimal than the solution we have had to adopt for the summer of 2021. Should, therefore, the parties—the airlines, airports and other stakeholders—come to a worldwide agreement on slot allocation? These things are co-ordinated on a worldwide basis. Certainly, when I was a senior executive the most important date of my year was the IATA timetable conference in October, which addressed the following summer’s slots. If the airlines and airports produce an overall solution, is there enough flexibility in this proposed solution to allow the Secretary of State—I stress allow, not require—to endorse such a comprehensive, multiagency agreement?