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Lords Chamber

Volume 811: debated on Monday 26 April 2021

House of Lords

Monday 26 April 2021

The House met in a hybrid proceeding.

Prayers—read by the Lord Bishop of Rochester.

Death of a Member: Baroness O’Cathain

My Lords, I regret to inform the House of the death of our very good and valued friend the noble Baroness, Lady O’Cathain—Detta O’Cathain—on 23 April. On behalf of the House, I extend our condolences to the noble Baroness’s family and all her friends.

Retirement of a Member: Lord Denham

My Lords, I should like to notify the House of the retirement, with effect from today, of another good friend, the noble Lord, Lord Denham, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I thank the noble Lord for his long and much-valued service to the House.

My Lords, with the leave of the House, I want briefly to acknowledge what the Lord Speaker has just announced and pay tribute to my noble friend Lord Denham on the notification of his retirement from this House.

Lord Denham became a Member of this House in 1949 and has served with us for over 71 years. On his retirement, he was the longest-serving Member of the House. My noble friend had an admirable career, serving in the Governments of Harold Macmillan, Alec Douglas-Home, Ted Heath, Margaret Thatcher and John Major, and culminating in an impressive 12-year term as Government Chief Whip. He was devoted to this House, knew it backwards and served it well. I know your Lordships will join me in thanking him again for his long and distinguished service to the House and to the country.

Arrangement of Business


My Lords, some Members are here in the Chamber while others are participating remotely, but all Members will be treated equally. Oral Questions will now commence. Please can those asking supplementary questions keep them brief and confined to two points. I ask that Ministers’ answers are also brief.

Industrial Strategy: Local Growth


Asked by

To ask Her Majesty’s Government what assessment they have made of the Annual Report by the Industrial Strategy Council, published on 23 March, which recommended the development of local strategies to deliver sustainable local growth.

The work of the Industrial Strategy Council to date has been pivotal for the success of the industrial strategy. As we begin to transition into our plan for growth, the work of the council, including reflections in its annual report, will be taken into account. We are working with local enterprise partnerships, mayoral combined authorities and other local partners to build on the priorities identified through local industrial strategies. We will also address new issues which have arisen since their publication.

I thank the Minister for that reply. One wonders why, if it was so pivotal, the council is being disbanded. The report is critical of the Government’s proposed approach to levelling up, which it argues is over-reliant on big infrastructure projects and centrally controlled pots of funding spread far too thinly over too short a time. Does the Minister agree with significant historical and international research that such a centralised approach rarely works? Can he confirm whether the forthcoming, much awaited devolution White Paper will provide an opportunity to reverse this trend and provide a far more effective way forward?

We will continue to work on the levelling-up agenda, building on the strength of many places. We encourage those places to consider key sectors, assets and clusters that they want to support to foster their long-term growth ambitions, building on the strong evidence base and the brilliant work done to date by many places across the country.

My Lords, following on from that question, can I ask the Minister to set out the ways in which the innovation, productivity and wealth-creation capacity of sectors of the economy that are not the direct responsibility of BEIS, such as the creative industries, will be engaged at a local level in the delivery of the plan for growth?

I know that the noble Lord has been a long-term champion of the creative industries, and I agree with him. We recognise the importance of the creative sectors. In Build Back Better: Our Plan for Growth, creative industries are highlighted as one of the sectors that we expect to shape the UK’s economic future. Upgrading and creating new cultural and creative spaces represents a core element of the £4.8 billion levelling-up fund.

The Industrial Strategy Council’s annual report points out that the Government’s plans

“are not yet a practical roadmap for delivering Net Zero, with several areas at present lacking the required scale to make progress at the required speed”.

Housing retrofit is one such area. Will the Government accept the recommendation of the House of Commons Environmental Audit Committee’s recent report on energy efficiency to open up the proposed £3.8 billion social housing upgrades? It is estimated that green home upgrades could support 77,000 jobs across the north alone. That is levelling up.

The noble Lord makes a good point. The £62 million social housing decarbonisation fund demonstrator is currently delivering 19 projects across England and Scotland. In the autumn 2020 spending review we committed a further £60 million towards funding the main elements of the social housing decarbonisation fund to ensure some early progress and, of course, we are still committed to the manifesto commitment of £3.8 billion for the funding total.

My Lords, the report by the Industrial Strategy Council, which was appointed by the Government and consists of a number of distinguished businesspeople, points out that, whether it is called an industrial strategy or a plan for growth, the basic premise is the same: a programme of supply-side policies to drive prosperity in and across the economy. Does my noble friend agree, and, if so, what are those supply-side policies?

In the new plan for growth that the noble Lord refers to, we have decided that the Industrial Strategy Council in its current form will no longer be needed to monitor and evaluate the impact of the industrial strategy. The Prime Minister and the Chancellor have convened a build back better business council to act as a sounding board and to provide help, advice and support on the way forward.

My Lords, the ISC report urges the Government to develop a comprehensive and ambitious labour market strategy, co-ordinated across government, employers and the education sector. What plans do the Government have for such an overarching strategy and for overseeing how their various skills-related initiatives mesh together to deliver a skilled and resilient workforce across the UK as needed by the plan for growth, and to close the future skills gap highlighted by the ISC?

The noble Lord is right that skills are one of our key priorities for investment, along with infrastructure and innovation. The Prime Minister and the Cabinet Secretary have asked Sir Michael Barber to conduct a rapid review of government delivery, including in the skills system, to ensure that it remains focused, effective and efficient and to suggest how it could be strengthened.

My Lords, the Industrial Strategy Council’s most recent annual report suggested that, for levelling up to succeed, it needed to include consideration of devolution. How much thought have the Government given to further devolution in their industrial strategy? Will the Minister tell the House what progress has been made in convening the build back better business council and who will lead its work? Is it always the case that pivotal councils, such as the Industrial Strategy Council, get abolished?

Of course it is not always the case. Many councils do good work. We think that the local Industrial Strategy Council did some good work, but we are building on that, extending and taking it forward. The Build Back Better Council, to which the noble Lord refers, will take forward that work.

My Lords, why is the Industrial Strategy Council to be abolished? A number of other noble Lords have asked this question and I want to press the Minister on it. How do the Government intend to fill the gap that will be created to hold government Ministers to account on the plan for growth overall?

Many of the elements of the work of the Industrial Strategy Council have been superseded. There are now new challenges—we had the Covid epidemic. The Government, of course, are still being held to account in this House and elsewhere. The purpose of the Build Back Better Council will be to provide help and advice on the way forward.

My Lords, although I was once a voluntary sector member of a regional assembly, I do not hanker after a return to that particular bit of structure. However, are Her Majesty’s Government contemplating any new local structures as part of the response to the questions raised, or do they trust local authorities, executive mayors and existing bodies, such as the LEPs, to deliver on this agenda? I notice that the Minister did not mention local authorities in his original response.

That was not a deliberate omission. Local authorities are still key to the development and delivery of these strategies and policies, along with the LEPs, the mayoral combined authorities and, of course, local businesses themselves that need to be involved in the way forward.

My Lords, I refer to the paragraph from Build Back Better headed “Changing the way we invest in places”. For a town such as Eastbourne, what will be the empowered local institution and with whom will it cohere and co-ordinate?

I refer the noble Lord to the answer I just gave to the right reverend Prelate. We will work with local enterprise partnerships, mayoral combined authorities and other local partners. The key to that is local businesses in areas such as Eastbourne, and we will look at the geography and structure of these partnerships going forward.

My Lords, if developing skills across the country is to be part of the levelling-up agenda, will the Minister recognise the importance of design, which gets no mention at all in the Build Back Better plan? Does the Minister agree that education and design starting in schools will be crucial in developing creative ideas and innovation, one of the Government’s three pillars of growth?

I agree that design and innovation are going to be key and crucial. We have a history in this country of taking good design and innovation and then not developing them into viable products led by British businesses. That is something that we need to correct, and our forthcoming innovation strategy will address many of these issues.

My Lords, in the earlier report, the council said that we should keep the spotlight on places whose productivity levels and growth rates were well below the national average. I know that the Minister shares my view and agrees particularly with this recommendation. What are the Government are doing to try to bring this idea into reality?

I agree with the noble Lord that productivity will be key to our success going forward. He and I come from part of the UK that needs to expand its productivity and key to that will be developing the skills agenda, which I set out in the previous answer.

My Lords, all supplementary questions have been asked—a compliment to the Minister, who consistently manages to answer them all in the time allotted.

Folic Acid


Asked by

To ask Her Majesty’s Government, further to the reply from Lord Bethell on 23 March (HL Deb, cols 717-20), whether they have reached a conclusion on the findings of their consultation on the proposal to add folic acid to flour which closed on 9 September 2019.

My Lords, I thank the noble Lord, Lord Rooker, for keeping this issue live. Noble Lords will appreciate that we are in the pre-election period for the Welsh and Scottish parliamentary elections and, as this is a UK-wide consultation, we cannot make any policy announcements at this time. But I can advise that, since my last reply, Ministers have looked at this extremely closely and hope to discuss it promptly with the devolved Administrations after 6 May.

For my 16th Oral Question, may I ask about value for money? Why can the UK Government not use their own estimate in the impact statement for the consultation, which said:

“Preventing an NTD carries a lifetime benefit of up to £3m”

per person with spina bifida? It said that fortification presents

“a significant reduction in NTDs, possibly … equivalent to 150-200 NTDs per year”.

This is every year, not a one-off, so the savings from fortification amount to hundreds of millions of pounds. The work in the United States on the CDC website confirms massive financial savings. Why are the Government so reluctant to save this money?

My Lords, I would be glad to take the noble Lord’s recommendation back to the department; he puts it extremely persuasively. As I said, we have looked at the substantial point closely and it is extremely persuasive, as the noble Lord rightly put it. We hope to come forward with recommendations as soon as the elections are over.

I reinforce what my noble friend Lord Rooker said. I may be addressing this with my third or fourth Minister. I am not certain whether the noble Earl, Lord Howe, dealt with it when I was opposite, but he may have done, which would make the noble Lord my fourth Minister on this issue. It is even more irritating that it was research in the UK that led the United States and other parts of the world to adopt this policy. I think The Minister has run out of road on this one, and I would like to hear what the timetable to implement this policy is.

I completely endorse the tribute of the noble Baroness to those who have worked on this policy. She is right: the science that has gone into this has been persuasive around the world. I thank those in industry who worked with us on our pilot, which proved extremely successful. We are in good shape when it comes to thinking through the implementation of such a policy. My hands are tied at the moment, because of purdah, but I hope to return and fulfil the noble Baroness’s wishes.

I congratulate the noble Lord, Lord Rooker, and other noble Lords on their tireless work on this issue. As former co-chair of the all-party group on folic acid fortification of flour in the other place, I remember the campaign to bring about the consultation well. As the parent of a son born with a neural tube defect, I am keen to see the Government act as quickly as possible to prevent avoidable births of children with such a condition. For the sake of the unborn and their families, can the Minister give a categoric guarantee that, after 6 May, when the elections are out the way, we will finally get definitive action and definite proposals?

My Lords, I join the noble Lord in paying tribute to all those who have worked so hard, particularly the noble Lord, Lord Rooker, who has delivered a playbook campaign on this. Being on the receiving end, I pay tribute to the grace, persuasiveness and energy with which he has conducted that campaign. He is not the only one, and I pay tribute to the personal testimony of the noble Lord, Lord Dodds— what a moving story he has just told. All who have been involved in these sorts of conditions would have been touched by that. I cannot deliver the categoric guarantee that he asks for but, as I said, we are looking at it extremely carefully and I hope to return soon.

I join my noble friend in paying tribute to the noble Lord, Lord Rooker, for his campaign. I urge him to keep up the pace. While the Government are looking at that, we surely need more creative public information campaigns to raise awareness of the importance of folic acid, particularly when communications around health have, under- standably, focused on the pandemic. What work have the Government done with HCPs, in practice, to make sure that women are fully informed?

My noble friend is right: with half of pregnancies unplanned or unexpected, it is entirely right that we should seek to raise issues such as folic acid. The Government are committed to the preventive agenda, and folic acid is just one among many examples where we hope to mobilise public interest in looking after their own health to avoid these kinds of conditions. Her point is extremely well made.

My Lords, the department’s website states:

“More than 60 countries worldwide now add folic acid to their flour, including Australia, Canada and the US.”

It goes on to say:

“In Australia, neural tube defects fell 14%”.

This would save 400 babies a year in the UK. The department has spent the last year making Covid-related decisions in our best interests. Given the Minister’s comments, can we expect an announcement by the end of June?

The noble Baroness puts the statistics persuasively. The numbers I have are slightly different, but her gist is right. I hope to return after purdah to revisit this important subject.

As the noble Baroness, Lady Jolly, just said, does the Minister agree that it is high time that we followed Australia, which mandated the addition of folic acid to wheat flour for making bread? As long ago as 1988, folic acid fortification of all enriched grain product flour was fully implemented in the United States and Canada. It is time to say yes to the long-running campaign of the noble Lord, Lord Rooker; it should be a departmental priority on 7 May.

I reassure the noble Lord and others who have pressed this point that it is a departmental priority. There has of course been a pandemic and that has slowed things down. I cannot avoid that fact, but we are very much returning to the prevention agenda in the round and the issue of folic acid in particular.

My Lords, the Minister will understand the frustration in the House at the repeated delays in implementing a policy that has the opportunity substantially to reduce the scale of suffering that goes on, because of our failure to implement the implications of research that, I remember and as has been said, showed the benefits of fortification in the 1980s. It is desperately dispiriting to know that that research has been taken up by other countries, but not the UK. I press the Minister and suggest that it would be extremely helpful if the meetings that he has said need to take place with the devolved Administrations could be arranged now. Perhaps he could write to the noble Lord, Lord Rooker, copying the letter to other noble Lords, to tell us exactly when the meetings that he has described are scheduled.

I hear the frustration loud and clear and reassure the noble Baroness that we are working on this at pace.

My Lords, in response to numerous questions and debates on this subject over the years, no Minister has ever produced a satisfactory explanation of why we do not add folic acid to flour. Would it have made any difference if the folic acid suppliers had had the Prime Minister’s mobile phone number?

My Lords, I too congratulate the noble Lord, Lord Rooker, on his relentless campaigning on this issue and join others in encouraging my noble friend to, as soon as possible, ensure that manufacturers are mandated to add folic acid, so that we can prevent the misery and heartache of dealing with neural tube defects. I also ask my noble friend whether we can make sure that this applies to all kinds of flour, including gluten-free flour, for those mothers-to-be who are not able to have normal bread.

My Lords, I understand that considerable efforts have gone into ensuring that folic acid is put into flours of all kinds, and I pay tribute to the industry for trying to deliver a comprehensive service. I am happy to write to the noble Baroness to confirm that.

My Lords, as fluoride has been added to drinking water to reduce dental caries, surely the Minister agrees that preventing spina bifida is more important, as a former colleague of mine, Professor Richard Smithells, pointed out nearly 60 years ago. Is it not time to act?

My Lords, I take on board the point that it is time to act. That is why we are working hard on the matter. As I said, I hope to return to the House on this soon.

My Lords, all supplementary questions have been asked; congratulations to the Minister. We now move to the third Oral Question.

Natural Habitats: Infrastructure Projects


Asked by

To ask Her Majesty’s Government what plans they have to review the legislation that implemented the European Union Habitats Directive in regard to the protection of natural habitats during the construction of major infrastructure projects.

My Lords, protecting and improving the environment while delivering vital infrastructure is a top government priority. This includes the development of a more strategic approach to the protection of habitats and species, allowing for more dynamic and pragmatic planning while benefiting biodiversity. The Environment Bill will provide a statutory basis for species conservation and protected site strategies to encourage the design and delivery of broadly based solutions, in partnership with planning authorities, local communities and others.

My Lords, I declare my interests as shown in the register. This Question is not intended to provoke a binary debate between construction versus wildlife but it is an opportunity to consider the delay, risk and cost imposed on nationally significant infrastructure projects by what has become an intricate, bureaucratic and box-ticking regime. Now that we are free of the EU, will my noble friend at least consider using the forthcoming Bill to amend the definition of what counts as an IROPI—an imperative reason of overriding public interest—in the Conservation of Habitats and Species Regulations 2017 to include critical national infrastructure?

My Lords, the regulations do not currently define which projects count as IROPI. However, nationally significant infrastructure projects will most likely always meet the public interest test, providing the project meets the environmental safeguards that no feasible alternatives exist for delivering it without impacting upon a protected site and that the necessary compensatory measures from any damage to habitats or wildlife have been taken. If my noble friend has any particular example he is concerned about, I would be very happy to meet him to discuss it, including the scope for clarifying whatever guidance we have on this.

My Lords, may I take this opportunity to express my regret at the death of my noble friend Lady O’Cathain, who, with her years of experience, would have contributed so perceptively to this complex matter? In general, I support the thrust of my noble friend Lord Moylan’s Question. Now that we have left the EU, can we interpret the provisions of the directive in a less batty fashion, and more in accordance with common sense?

My Lords, the Government are looking for opportunities to break down the binary choice that my noble friend Lord Moylan hinted at in his question, and we are finding a number of ways in which we can provide a simplification, while maintaining standards. Bat licensing is a good example; Natural England is developing a new streamlined bat licensing process which involves accrediting and assessing an ecologist’s competence in undertaking survey work. By using that system, developers will benefit from a more streamlined licensing process for their project, and licence applications no longer require up-front assessment. We believe that this will save developers £2.6 million per year, £13 million and 40,000 business days over five years, and on wider rollout, an estimated 90% of bat licence applications could be assessed in this way. There are many other examples of that kind of approach working.

My Lords, what enforcement powers will the office for environmental protection have against government departments which are judged to have breached our laws when it is established via the Environment Bill? Is the Minister confident that these powers will ensure parity with the environmental protection we enjoyed while we were a member of the EU?

My Lords, we will set legally binding targets through the Environment Bill and an environmental improvement plan, which will be reviewed every five years. The Government will have to report on progress towards achieving those targets every year. The OEP will hold the Government to account on progress and every year can recommend how we can make better progress, to which the Government must respond. The OEP will have the ability, if necessary, to take the Government to court, although of course we hope that that will be unnecessary. In many respects, the scrutiny that this Government and future Governments can expect to receive will exceed greatly the scrutiny that existed before we left the European Union.

My Lords, habitat loss comes in many forms, and often because of human activity, as in the loss of ancient woodland due to the construction of HS2. However, it can also occur because of climate change, as in the large landslide on the Jurassic Coast between Seatown and Eype in Dorset. Does the Minister acknowledge that this may require the intervention of infrastructure to provide protection for the remaining coastline?

There will be moments when such interventions are of course justified, and there will be others when nature-based solutions might be better applied to the kind of problems that the noble Baroness has cited. We know, for example, that flood prevention can be achieved much more effectively and cheaply in some circumstances by planting trees rather than building concrete defences, and the same is true of a range of other problems that the Government are required to address.

I know that my noble friend the Minister will be aware of the bats and newts conservation Bill 2008, which was my Private Member’s Bill in the Commons on exactly this issue. I am ridiculously pleased when I see bats, or, indeed, newts, and I certainly like newts as much as Ken Livingstone does—I am currently having two newt ponds built on my farm in Leicestershire, helped by the Leicestershire and Rutland Wildlife Trust. Great crested newts are not uncommon in this country; indeed, they are pretty common. They may not be common in Spain or Greece, but that is another matter. We should not be spending millions on an industry of ecologists who will admit that newts, for instance, can travel hundreds of yards each night. Will my noble friend listen to the pleas from this side and review the absurd EU habitats directive, bringing some common sense to bear on this issue?

My Lords, I too share my noble friend’s fascination with newts, but perhaps not quite to the extent that Ken Livingstone does. I mentioned in an answer to a previous question that we are streamlining the process, and that is true across the board, in relation to both bats and great crested newts. District level licensing, for instance, has reduced the average time to issue a licence to 23 days compared to 101 days previously. The estimated national annual time saving is around 2,500 weeks. Schemes are now available in over 150 local authorities, and in March, the thousandth pond was created in Natural England-led schemes. Early monitoring data tells us that 34% of new ponds being colonised are colonised in the first year, which is double the normal rate, so we have achieved better environmental outcomes—better newt outcomes—while at the same time streamlining and speeding up the process of development.

My Lords, one clear lesson of the success of the UK’s vaccine development is surely that the removal of overly bureaucratic and risk-averse regulations frees up creativity and speeds up innovation. In that context, and in light of the Government’s commendable priority of levelling up and building back better, will the Minister look at how we can cut the expensive, cumbersome red tape created by the habitats directive for infrastructure and construction projects? Will he look at more efficient and flexible means of conservation, without creating barriers to human development, job creation and productive industrial growth, which are more important than newts in my opinion?

I do not think, and the Government, likewise, do not believe, that there is a binary choice between biodiversity and human development; our challenge is to reconcile the two, as we must. In the last 20 to 30 years we have seen dramatic biodiversity collapse in this country of all types of species, from insects to predators. This Government have announced their high ambitions for the environment, including protecting 30% of our land and seas. However, where we have an opportunity to simplify and improve the rules protecting wildlife and habitats, as the noble Baroness suggests, then yes of course we should explore that, and indeed we are.

My Lords, I was a member of the Select Committee on HS2—Euston to West Midlands; natural habitats are a very big issue with the project. Will the Minister make sure that HS2 is completely open about its activities, to reassure people living near the line’s route? In particular, will it publish unredacted results of all tests carried out near and under the mid-Chilterns aquifer?

My Lords, I cannot unilaterally commit HS2 to doing so, but it should. I will convey that message back to colleagues in Government. HS2 is a nature-positive programme, which has been overlooked too much by some of its opponents. The amount of land being planted with trees, for instance, greatly exceeds the amount of land that will be damaged by the process, and HS2 would do well to tell its story more effectively than it has been doing.

My Lords, even though we have left the European Union, can the Minister confirm that we will still be bound by the Council of Europe’s Berne convention, which was the base of the EU habitats, but that the Government will take a more sensible and pragmatic approach under that convention?

My Lords, the Government are completely committed to ensuring that our environmental protections are not only maintained, but enhanced. We have said so at every opportunity. EU exit gives us the opportunity to improve our existing domestic and legacy EU laws to support those high environmental ambitions and, where appropriate, we should keep all those regulations under review, which we do.

Creative Industries: Covid-19


Asked by

To ask Her Majesty’s Government what assessment they have made of the impact of COVID-19 on the levelling up agenda in relation to the creative industries sector.

My Lords, our creative industries are a global success story, growing at four times the UK average before the pandemic struck. While the pandemic has had a heavy impact, particularly on audience-facing subsectors, the Government have provided them with unprecedented levels of support through the £1.57 billion cultural recovery fund and the £500 million TV and film production restart scheme. Both these schemes have supported businesses across the UK and will help to ensure that the sector can return to growth as soon as public health conditions permit.

I thank the Minister for her reply. The Budget included the levelling-up fund, which drew attention to the importance of the creative sector in this endeavour, so why are the Government so resistant to working with the industry to create a scheme for insurance cover for festivals and live events? Without this, and as long as the threat of the pandemic continues, events that are so important to local economies and local jobs will not happen this summer. Does the Minister agree that in preventing such an insurance scheme the Government are taking a backwards step in their bid to level up the country?

The Government absolutely do not accept that we are taking any backwards step, either in support of the creative industries or in relation to levelling up. We have offered substantial practical help through setting out a very clear road map and identifying an events research programme to get those events going. We are aware of the wider concerns about securing indemnity for live events and are continuing to explore what further support we can offer.

My Lords, I draw attention to my registered interests. Many creative industry venues, which are important dimensions in the tourist economy, have been devastated by Covid. Can the Minister confirm that the levelling-up fund may consider projects aimed at making these venues more secure against Covid while maintaining their audience capacity and giving audiences the confidence that they need to attend such venues, and that it will be in order for local authorities throughout the UK to submit applications to the fund in support of such projects?

The levelling-up fund has very explicitly focused on the importance of cultural and creative spaces in regenerating those areas and includes new and upgraded community hubs of the very type to which the noble Lord refers.

I declare my interest as a former member of the Advisory Committee on Pop Festivals and my other interests as set out in the register. As the Minister knows, festivals are often a major foundation of artistic activity outside our great cities, but many of those planned for this summer are already being cancelled because of uncertainty over Covid. Do Her Majesty’s Government have plans to assist?

The Government recognise the importance of the live music sector more broadly, and music festivals in particular, which is why more than £34 million from our cultural recovery fund has supported festivals, including Boomtown, Shambala, Glastonbury and Deer Shed. As I said in response to the noble Baroness, Lady Bonham-Carter, we are aware of the wider concerns around indemnity for live events and are trying to understand the market failure and how it impacts on different forms of live events.

I declare an interest as a freelance TV producer making content for Netflix and the Sony Channel. Organisations representing freelancers have called for a freelance commissioner to be established, as many are not covered by the Small Business Commissioner. During the past year, 45% of freelancers have fallen into debt or used up their savings. Millions of others in the creative industries are struggling to find work. Does the Minister agree that it is essential to set up a commissioner dedicated to supporting employment rights and employment obligations for freelancers?

I agree with the noble Viscount that freelancers are a critical part of our creative industries and that we should explore many ways of ensuring their success in future. That is why we recently extended the pan-economy self-employment income support scheme with individuals now able to qualify for grants based on their 2019-29 tax return, meaning that more than 600,000 self-employed individuals will be newly eligible for the scheme.

My Lords, I draw attention to my interests in the register, which include my membership of two trusts involved in cultural activities. In many of our most deprived communities, the cultural industries have taken a severe hit. Given that they are closely aligned with the hospitality sector, what plans do the Government have to develop a national plan to help the hard-pressed cultural sector recover as we emerge from lockdown? Can the Minister say some more about the support the Government are likely to give to freelancers, who have been frozen out of many of the schemes supporting workers in the cultural sector?

I just commented on the expansion of the scheme, which we think will include many new freelancers who are self-employed. The Government share the noble Lord’s concerns about support for our deprived communities and see cultural assets as critical in their revival. That is why more than two-thirds of the Culture Recovery Fund has been spent outside London and why we have a major series of funds, including the levelling-up fund, the community renewal fund and, in future, the shared prosperity fund, all of which have a creative industries strand within them.

My Lords, a number of groups in the creative industries are falling between the cracks in government support. For example, recent BECTU figures show that the overall number of black and minority-ethnic workers employed in the theatre industry has fallen by 19% over the last year, compared with a 3% overall reduction in the number of white workers. Does the Minister agree that levelling up must be about disadvantaged groups as well as geography? What can the levelling-up fund do for the creative industries in this respect?

The noble Lord is right to raise these points. Absolutely, levelling up should cut across a number of axes, including the one the noble Lord raises. We are working to improve this area. At Budget the Chancellor announced a new approach to apprenticeships in the creative industries, with £7 million of pilot funding to test flexi-job apprenticeships that might suit better the working practices of the creative industries. Over 1,300 creative industry placements are now available via the Department for Work and Pensions Kickstart scheme.

My Lords, I recognise the substantial support the Government have given the creative industries and pay tribute to my noble friend the Minister and her officials for all their hard work. When she mentioned apprentices, it reminded me that the BBC has announced that it will employ 1,000 apprentices. Will she join me in recognising the crucial role the BBC and other public service broadcasters play in levelling up, given their increased regional presence? For example, the BBC now makes 60% of its programmes outside London.

As my noble friend is well aware, the BBC is operationally and editorially independent from government, but I share his warm welcome for the BBC’s recent announcement that it plans to move 60% of network TV commissioning spend and 50% of network radio and music spend outside London.

Does the Minister agree that, while levelling-up action must give priority to investment in creative and cultural enterprises across all regions, investment in arts and humanities education is equally important and crucial for innovation and creativity? This aspect is not often valued. What are the Government doing to ensure that this significant area is not overlooked?

The noble Baroness makes a good point. She will be aware that much of the work we are doing today stems from the creative industries sector deal, which includes an important plank focusing on skills, just as the noble Baroness suggests.

Sitting suspended.

Commonwealth War Graves Commission: Historical Inequalities Report


The following Statement was made in the House of Commons on Thursday 22 April.

“With permission, Mr Speaker, I would like to make a Statement on the special committee review into the historical actions of the Commonwealth War Graves Commission, when it was the Imperial War Graves Commission and subsequently.

I start by placing on the record my thanks and gratitude to the committee that compiled this comprehensive report, especially its chair, Sir Tim Hitchens, and contributing academics Dr George Hay, Dr John Burke and Professor Michèle Barrett. I am also grateful to the right honourable Member for Tottenham (Mr Lammy) who, alongside the makers of the Channel 4 documentary on this subject, provided the impetus for the establishment of the independent committee.

Today the committee’s findings are published. They make for sober reading. The First World War was a horrendous loss of life. People of all class and race from all nations suffered a great tragedy, which we rightly remember every year on Remembrance Sunday. Just over 100 years ago, what emerged from that atrocity was a belief by the survivors that all those who lost their lives deserved to be commemorated.

When the Imperial War Graves Commission was established, its founding principle was the equality of treatment in death. Whatever an individual’s rank in social or military life and whatever their religion, they would be commemorated identically. Unfortunately, the work of this report shows that it fell short in delivering on that principle. The IWGC relied on others to seek out the bodies of the dead, and where it could not find them, it worked with the offices of state to produce lists of those who did not return and remained unaccounted for.

Given the pressures and confusion spun by such a war, in many ways it is hardly surprising that mistakes were made at both stages. What is surprising and disappointing, however, is the number of mistakes—the number of casualties commemorated unequally, the number commemorated without names, and the number otherwise entirely unaccounted for. That is not excusable. In some circumstances, there was little the IWGC could do. With neither bodies nor names, general memorials were the only way in which some groups might be commemorated at the time.

None the less, there are examples where the organisation also deliberately overlooked the evidence that might have allowed it to find those names. In others, commission officials in the 1920s were happy to work with local administrations on projects across the empire that ran contrary to the principles of equality in death. Elsewhere, it is clear that commission officials pursued agendas and sought evidence or support locally to endorse 67 courses of action that jeopardised those same principles. In the small number of cases where commission officials had greater say in the recovery and marking of graves, overarching imperial ideology connected to racial and religious differences was used to divide the dead and treat them unequally in ways that were impossible in Europe.

The report concludes that post-World War 1, in parts of Africa, the Middle East and India, the commission often compromised its principles and failed to commemorate the war dead equally. Unlike their European counterparts, the graves of up to 54,000 mostly Indian, east African, west African, Egyptian and Somali casualties were not marked by individual headstones. Some were remembered through inscriptions on memorials. The names of others were only recorded in registers, rather than memorialised in stone. A further 116,000 personnel, mostly east African and Egyptian, were not named or possibly not commemorated at all.

There can be no doubt that prejudice played a part in some of the commission’s decisions. In some cases, the IWGC assumed that the communities of forgotten personnel would not recognise or value individual forms of commemoration. In other cases, it was simply not provided with the names or burial locations.

On behalf of the Commonwealth War Graves Commission and the Government of the time and today, I want to apologise for the failures to live up to the founding principles all those years ago and express deep regret that it has taken so long to rectify the situation. While we cannot change the past, we can make amends and take action.

As part of that, the commission has accepted all the recommendations of the special committee. In the interests of time I will group these into three themes. First, the commission will geographically and chronologically extend the search in the historical record for inequalities in commemoration and act on what is found. Secondly, the commission will renew its commitment to equality in commemoration through the building of physical or digital commemorative structures. Finally, the commission will use its own online presence and wider education activities to reach out to all the communities of the former British Empire touched by the two world wars to make sure that their hidden history is brought to life. Over the coming six months, the commission will be assembling a global and diverse community of external experts who can help make that happen.

There is also more the Government specifically can do. The Ministry of Defence I lead will be determinedly proactive in standing for the values of equality, supporting diversity and investing in all our people. There is always more to be done, and that is why I welcome the Wigston review into inappropriate behaviours and recently took the rare decision to let service personnel give evidence as part of the inquiry into women in the armed forces led by my honourable friend the Member for Wrexham (Sarah Atherton) through the Defence Committee.

Furthermore, to honour the contribution to our Armed Forces by our friends from the Commonwealth and Nepal, the Home Secretary and I will shortly be launching a public consultation on proposals to remove the visa settlement fees for non-UK service personnel who choose to settle in the UK.

The historical failings identified in the report must be acknowledged and acted upon, and they will be. However, recognising the mistakes of the past should not diminish the Commonwealth War Graves Commission’s ground-breaking achievements today. The recommendations of the special committee should be welcomed by us all. They are not just an opportunity for the commission to complete its task and right historical wrongs; they point out what an amazing thing it is to serve our country and our allies.

The amazing thing I know from being a soldier is the relationships that are forged on operations. True soldiers are agnostic to class, race and gender, because the bond that holds us together is a bond forged in war. When on operations, we share the risk, share the sorrow and rely on each other to get through the toughest of times. The friendships I made in my service are still strong.

It was those common bonds that lay behind the Imperial War Graves Commission’s principles, and it is truly sad that on the occasions identified by the report those principles were not followed. I feel it is my duty as a former soldier to do right by those who gave their lives in the First World War across the Commonwealth and to take what necessary steps we can to rectify the situation. The publication of this report is the beginning, not the end, and I look forward to working with my colleagues across the House to ensure that the CWGC receives the support and resources it needs to take forward this important piece of work.”

My Lords, I thank the Secretary of State for his apology on behalf of both the Government of the time and the commission. This is an important moment for the commission and the country in coming to terms with past injustices and dedicating ourselves to future action. The report is a credit to the commission of today, but its content is a great discredit to the commission and the Britain of a century ago.

It is estimated that up to 54,000 casualties—predominantly Indian, east African, west African, Egyptian and Somali personnel—were commemorated unequally. As many as 350,000 were not commemorated by name or not commemorated at all. The report found that the failure to memorialise these casualties adequately was rooted in

“the entrenched prejudices, preconceptions and pervasive racism of contemporary imperial attitudes.”

Today, belatedly, we aim to commemorate in full the sacrifice of the many thousands who died for our country in the First World War and have not yet been fully honoured. We will remember them.

In response to the report’s recommendations, I want to ask a few questions. Does the commission have sufficient resources to undertake the next stages of the work and continue the search for these men and women? What role will transparency play in order for today’s commission to be up front about former mistakes? How will Britain’s embassy staff, including our defence attachés, communicate this public apology widely? When can we expect the completion of the investigation into the way in which the commission commemorated the dead from these countries during the Second World War? No apology can atone for the injustice, indignity and suffering set out in this report. While we need an apology today, we need continued action tomorrow.

My Lords, like the noble Lord, Lord Tunnicliffe, I have a few questions.

This report is clearly very serious and raises issues that need to be explored, perhaps in a wider context. The work of the Commonwealth War Graves Commission in the 2020s is hugely important and valuable. I have visited certain Commonwealth war graves that are exclusively linked to World War II in Europe, so I suspect that the memorialisation I saw was a fairly accurate reflection of what had happened. However, if the intention of the Commonwealth War Graves Commission is to reflect everybody’s contribution equally, regardless of rank, nationality or faith, it is absolutely crucial that the war graves actually do that. In particular, if one visits war graves and assumes that what one is seeing gives a full picture of the loss of life that was incurred during the First or Second World War but we then find that that is not the case, it is a problem not just for those who were lost and their families but for everybody seeking to understand the contribution made, particularly in the First World War, by citizens of the Empire.

There is often a tendency to talk about the United Kingdom, or Britain, winning the war; that is, a tendency to talk about British history as if it is about servicemen—it was essentially men in those days—who came from the United Kingdom or mainland Britain losing their lives. However, many hundreds of thousands from across the Empire and the countries that are now part of the Commonwealth gave their lives. It is crucial that they are remembered.

Like the noble Lord, Lord Tunnicliffe, I welcome the Secretary of State’s apology and this report. However, I also want to know what the Government are planning to do to ensure that the Commonwealth War Graves Commission has the resources to try to rectify some of these inequalities. It goes beyond simply saying, “Have we managed to identify people or are we just going to put up another plaque saying ‘Plus 10,000 others, identities unknown’?” Will the Government help the commission to look for ways of being more creative about how we understand the past, how we acknowledge the gaps in our history and our understanding of history, and how we understand the debt that we owe to so many Commonwealth countries?

The reasons why so many people were not named and not commemorated are particularly shocking. As the noble Lord, Lord Tunnicliffe, pointed out, when you get into the depths of the report, it is not 54,000 or 170,000: it is potentially another 350,000 people. If we did not know who they were—if people had been buried in mass graves, for example—that is one thing, but if there was simply a sense that, somehow, some lives mattered less, that is another. Perhaps that was the view 100 years ago but it absolutely should not be the view now.

We need to look for ways to ensure that history, as it is taught in 2021, can be understood in its global context. Can the Minister tell us what the MoD plans to do? There are 10 recommendations, including going beyond statues and stone memorials to film and other things. Have the Government begun to think about how we can look again at our history and ensure that we pay honour to all those who gave their lives, regardless of their creed, colour, country of origin or rank in society? All those lives—all the fallen—matter equally.

My Lords, I am standing in for my noble friend Lady Goldie, who is busy with the next piece of business; as noble Lords can imagine, it is taking up quite a bit of time. I am very pleased to answer the questions raised by the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Smith. I acknowledge and note that they both accepted the apology that the Government have made. They are both right; this is an important report which makes for sober reading. The report of the Commonwealth War Graves Commission special committee makes clear that in the aftermath of World War 1, in certain parts of the world, the Imperial War Graves Commission failed to live up to its core founding principle of equality in death for all, as was mentioned earlier, regardless of status, religious belief or ethnicity. Moreover, while the IWGC itself was at fault, the British Government at that time, together with colonial Administrations, also failed in their duties and were complicit in the decision-making that led to the outcome described in the report.

Both the noble Baroness and the noble Lord mentioned the numbers involved. It is worth my reflecting as well that a further 45,000 to 54,000 casualties, predominantly Indian, east African, west African, Egyptian and Somali personnel, were commemorated unequally, usually in registers or collectively on memorials but not by individual name. At least a further 116,000 casualties—and potentially as many as 350,000—predominantly but not exclusively east African and Egyptian personnel, were not commemorated by name or possibly not commemorated at all. This is sobering and absolutely needs to be addressed, as both the noble Lord and the noble Baroness said. As she also said, we must remember all those who fell fighting for our country in World War 1.

The noble Lord, Lord Tunnicliffe, asked about funding. I reassure him that the £52 million per year given by the UK Government via the MoD to the CWGC is in place. The Secretary of State will keep a very close eye on funding; if further funding is required, he will look at that with great care. On the role of transparency, which the noble Lord raised, I reassure him that there is a programme for regular reporting, as the Secretary of State for Defence outlined the other day when he made the Statement in the Commons. There will be quarterly updates to Parliament on progress and, as the chair of the commissioners, he will hold the CWGC to account on delivery.

As we may come on to later, many of the 10 recommendations laid out have specific timelines. This is an important piece of work; each of the 10 recommendations—all of which the Government have accepted, by the way—are rolled out with sunsets and timelines for work to be completed. I do not have an answer to the question on communication and embassy staff, but it is important. I am absolutely certain that those from our country who are based in countries where there is much work to be done, including in Egypt, Sierra Leone, west Africa and Nigeria, will be called on to help with this work and complete the investigations.

The noble Baroness, Lady Smith, spoke about the wider context and she is absolutely right. Going back to the point about equality in death for all, it is important that we remember each individual. This will be done through addressing the 10 recommendations, where there will be openness towards creativity; communities should engage in the areas that we want to look at, and countries themselves should engage with the war graves commission and the special committee to see what can be done to honour those who have fallen in defence of their country. That could be in the form of a physical memorial or—we are looking at this very carefully—a digital means. It is important to say this, and to be sure that we identify these means. One further thing is that certainly schools need to be included in this. Young people must recognise the importance of remembering their ancestors who have fallen in battle.

We now come to the 20 minutes allocated for Back-Bench questions. I ask that questions and answers be brief so that I can call the maximum number of speakers.

My Lords, I would like to address an equal injustice. It is over 100 years since the death of Lieutenant Walter Tull. He is remembered with great affection by professional footballers and with enormous pride locally in Northamptonshire; he is also now a renowned figure throughout the Commonwealth. He broke through prejudice and precedent by becoming the first person of colour to command white troops. Such was his leadership and gallantry that Lieutenant Tull was recommended for a Military Cross. Through a combination of precedent and racial prejudice, he was denied that award. Will my noble friend address this ancient wrong with a view to awarding Lieutenant Tull a posthumous and well-deserved Military Cross?

I have taken note of my noble friend’s comments. The actions of Walter Tull in the First World War were no doubt very brave, and the Government have received many representations requesting that he be awarded an honour for his bravery along the lines of what my noble friend has said. However, it is a general principle of our national honours and awards system not to make retrospective awards. This policy dates back to the end of the First World War, when in 1919 an army order was published stating that no further awards would be given for services in that war. That principle remains in force today.

My Lords, only after my comparatively recent criticism on radio that millions of Hindus, Muslims and Sikhs had fought and died in the two world wars was it agreed by the Blair Government to invite other faiths to join Christians and Jews at the Cenotaph observance. Ignorance and prejudice pervade all societies. Does the Minister agree that, rather than showing periodic righteous indignation when racism hits the headlines, the Government and faith leaders should lead in ensuring that the dignity and equality of all human beings is made central to the teachings of both history and religion?

I certainly agree with the noble Lord, who makes an extremely good point. As we have said, it is important that we roll out solutions to the 10 recommendations. We must put right the wrongs from these historic failings.

My Lords, I associate myself with the comments just made by the noble Lord, Lord Singh. Like many others, I have stood in places such as the Menin Gate and been overawed by the reading of the names there. In seeing the names of the fallen from many parts of the then Empire, I had assumed that all such were indeed properly commemorated. I know now of course that I and many others were wrong in that assumption. I have present and past diocesan connections with Papua New Guinea, Zimbabwe and Tanzania. I have also visited memorials and cemeteries in those places where I have seen the names of some local nationals. I am now asking myself how many names were not there when I visited those places. Is the Minister able to give me confidence to assure my colleagues in those places that their fallen compatriots will be as fully commemorated as possible, as soon as possible? Is there anything they can do to help this process?

Indeed, one of the points made in the recommendations concerned looking at the evidence and having flexibility in the evidence criteria used. All new proposed commemorations must meet certain specific criteria, but the commission has for some time been working on new policies concerning the evidence required to prove status, allowing for flexibility where it is known that documentation is wanting, for example. It is very important to bear this in mind because we want to use every opportunity and every evidence that we can find to commemorate those who have fallen.

My Lords, I received the report we are discussing with great sadness and echo some of the disappointment—to say the very least—at its findings, but I want to move in a slightly different direction. I have visited a war cemetery in Kariokor in the outskirts of Nairobi, and found that all the graves of those who had fought in the Second World War were appropriately commemorated. Similarly, the 40,000 carriers and porters who were essential to the supplying of the troops are commemorated adequately in a scattering of cemeteries, from Mombasa up to the ridge in the highlands of Kenya.

I have also visited cemeteries in Karen and Asmara in Eritrea. It was most touching to see that the fallen in February and March 1941 saw Indians, Sikhs, Muslims, British Christians and whoever buried in the same yard and, as it says in the record, “According to the rites and ceremonies of their particular religion”. Could it be that this was general practice, the improvement that had been made by the time of the Second World War? Could the Minister give us some indication of when that picture will be fleshed out, so that we have a more adequate understanding of the process?

The noble Lord makes a very good point in focusing particularly on the Second World War. Of course the report focuses only on the First World War. I reassure him that, as the rollout of these recommendations continues—and we are making sure that we do roll them out—we will be looking at the Second World War later as part of an expanded plan, but that is some way down the line. The noble Lord is right: in the First World War, those who perhaps were not honoured were indeed combatants or perhaps carriers, those who carried the supplies that were needed to support the troops engaged in fighting. It is those individuals in the First World War who we want to focus on.

My Lords, two of my uncles died fighting for Britain. It is scandalous that it took a Channel 4 documentary to draw attention to the blatant failure to commemorate the brave, loyal black and Asian soldiers who lost their lives fighting for Britain in World War I. Shamefully, films, television programmes and history books on both world wars have also neglected to portray this massive contribution accurately. Can the Minister assure us that this new determination to right wrongs and recognise the contribution of black and Asian soldiers, and to show them the respect and dignity that they deserve, will be robust and thorough, so that our children and future generations learn our true and accurate history?

Indeed. The noble Baroness makes several passionate points there, and she is absolutely right. I take this opportunity to pay my tribute to David Lammy, whose programme it was, linked with the history professor Michèle Barrett, that led to the setting up of the special committee with 14 members. I also reassure the noble Baroness that, as I said earlier, 10 recommendations have come out of that special committee and we have pledged to take them all forward. I hope that reassures her.

As honorary war graves commissioner for Iraq, I welcome the report, which has shone a spotlight on the Commonwealth War Graves Commission’s wonderful work. I am naturally particularly concerned that, despite the difficulties of working even in today’s Iraq, the war graves commission should be tasked and supported in its efforts to ensure that all the war graves in Iraq are properly recognised. I had the honour of visiting a number of these war graves, particularly the enormous ones in al-Amarah and Basra, which arrived because of the battles of Ctesiphon and Kut and the defence of Shatt al-Arab, and there is no doubt that those graves need further attention. Could the war graves commission be encouraged to do more in Iraq, with all the wonderful work that it has already done?

My noble friend is right to raise that issue. Our current policy in Iraq is to clear and secure our sites when it is safe and practical to do so as we await an opportunity for a more sustainable return. The Commonwealth War Graves Commission will slowly and steadily begin to rehabilitate the sites in Basra and al-Amarah, as my noble friend has mentioned, as it has done in other parts of the country such as Kut and Habbaniya. We reassure those connected to all the Commonwealth casualties buried and commemorated across all our sites in Iraq that our commitment to the fallen remains in perpetuity, and when we are able to we will restore them to a standard befitting the sacrifice of all those who lie there.

My Lords, I welcome the apology by the Government. In life, hundreds of thousands of African and Asian soldiers, many of whom were coerced into the British Army, were treated with little or no respect during the Great War. In death, those brave soldiers were treated with utter contempt. Professor Michèle Barrett, who worked with David Lammy on uncovering this monumental scandal, found documentation from the Imperial War Graves Commission in 1920 stating that

“Most of the natives”


“who have died are of a semi-savage nature and do not attach any sentiment to the graves of their dead.”

“Shocking”, “appalling” and “shameful” are just a few of the adjectives that you would put to that statement. You can see why our British history and curriculum need to be honestly reviewed and revamped.

What is also shocking is that it is a clear fact that in 2010, nearly 100 years later, with officials in full knowledge of the facts, nothing was done. We need to know why. Given the Windrush scandal and the outrage following the Sewell report, trust from black, Asian and minority-ethnic communities desperately needs rebuilding. Will the Minister therefore agree to meet me, along with senior Army officials, the Commonwealth War Graves Commission and interested parties, to find a proportionate and decent response to put right this monstrous wrong?

The noble Lord makes some very important points and I agree with him. The words “appalling” and “shameful” came from the noble Lord, and I totally agree with that. As he alluded to, we are of course looking at what happened a long time ago, over 100 years ago, under the old IWGC, but now we have the Commonwealth War Graves Commission. He is absolutely right, and I will certainly pass on to the MoD and my noble friend Lady Goldie his request for a meeting. I think it is appropriate to say that, even though it is over 100 years ago, good praise needs to be given to the Commonwealth War Graves Commission now, along with the Government —linking into DCMS, I should say—when it comes to looking really seriously at these past injustices and putting them right.

My Lords, Regimental Sergeant-Major Alhaji Grunshi, DCM, MM, of the Gold Coast Regiment, fired the first shot in World War I. His name is important and it is remembered. He lived—but many of his fellow regimental soldiers died and were buried in known graves on the Gold Coast. Their names in those cemeteries were obliterated in an appalling act of imperial racism, on the basis that to do otherwise would be

“a waste of public money”

and not “appreciated” by the native tribes. Direct descendants of those native tribes—and I am one of them—now sit on both sides of your Lordships’ House. This House is entitled, as are the descendants of those who fell in the First World War on the Gold Coast, in west Africa and throughout the Commonwealth, to a categorical assurance from this Government that money will be found to conduct the research and erect headstones on those graves that are known on the Gold Coast. We want not a promise to look at it with favour but a categorical assurance that it will be done. Without that, frankly, apologies do not count for much—or would that too be regarded as a potential waste of public money?

I was very moved by what I heard from the noble Lord. He is absolutely right to point to the people who have died and the person who fired the first shot of the war on the Gold Coast, who I think lived. That is indelibly on my mind. I reassure him that it is not just the Gold Coast but other parts outside Europe, all over the world. I mentioned some earlier: Mesopotamia, east Africa, west Africa, and so on. I could go on. It is very important that we look at each of these areas. Recommendation 4—which we have agreed with—in the special report is to establish a consultative committee. What is very important, and perhaps is the best reassurance I can give the noble Lord, is that we should be liaising with the local communities out in the Gold Coast to work out what we should do, how we should it and by when. This consultative committee has been pledged to be set up within the next six months.

My Lords, I declare an interest as a descendant of an Army officer who was at one time seconded to the King’s African Rifles. During World War I the regiment suffered over 5,000 casualties, with a further 3,000 dying from disease—more than 20% of the complement. It is thought that the regiment was supported in the First World War by some 400,000 native porters of the Carrier Corps. The information on the number who lost their lives and on their burial places is apparently unknown. In the commission’s search for historical inequalities will the Government press for the inclusion of the King’s African Rifles, together with the Carrier Corps, particularly at local village level? Will they prioritise engaging with the King’s African Rifles & East African Forces Association, whose regimental historian said:

“No regiment has ever been more intimately connected with the territory through which it marched and fought, or with the peoples from which it was recruited”?

Again, the numbers are sobering—I have picked up the figures of 5,000 and 3,000. I have taken very seriously what the noble Lord has said. One of the 10 recommendations is on the importance of engagement and education. The commission will develop a broader and more far-reaching range of relationships, working in partnership on projects, including, I would like to think, on the King’s African Rifles, to remember the sacrifices of all those who served and died in the First World War.

My Lords, I served for 10 years, some years ago now, on the Commonwealth War Graves Commission and I am deeply shocked—indeed, scandalised—that I was totally unaware of this petition. I believed the mantra that everybody was treated equally in death. I ask my noble friend: has any estimate been made of the cost of giving full restitution? I suspect it will be pretty heavy and I do not want to see this fall away as time goes on.

I alluded to this point earlier during the Statement. I reassure my noble friend that the UK currently contributes £52 million of the overall budget of £66 million a year. This new piece of work we have pledged to do is very important and the Secretary of State has not ruled out additional funding if it were to be required in the future.

My Lords, I declare two interests. First, I once had the honour and pleasure of serving with the King’s African Rifles and, secondly, as Adjutant-General I was an ex officio member of the council of the Commonwealth War Graves Commission. When I was Chief Inspector of Prisons, I once noted in the chapel of a prison on the Isle of Wight a memorial to four people killed in the Great War. They were identified only by their prison numbers. In accordance with the motto of the Commonwealth War Graves Commission—

“I will make you a name”—

I set about discovering their names, which I succeeded in doing. Will the Minister please assure me that these forgotten casualties will soon, like them, be made names?

Indeed, and so they should be. I am sure that this is an important part of the ongoing work. One thing is very clear and it is the first recommendation of the report—which we have accepted, as we have accepted them all—that there is ongoing commitment to search for those who fell and to recognise the dead and find the names of those who died.

My Lords, the time allowed for this business has now elapsed. I apologise to the five noble Lords whom I have not been able to call.

Sitting suspended.

Arrangement of Business


Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) (Amendment) Regulations 2021

Civil Proceedings Fees (Amendment) Order 2021

Motions to Approve

Moved by

That the Regulations and Order laid before the House on 8 and 22 March be approved.

Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 19 April.

My Lords, on behalf of my noble friend Lord Wolfson of Tredegar and with the leave of the House, I beg to move the two Motions standing in his name on the Order Paper en bloc.

Motions agreed.

Single Use Carrier Bags Charges (England) (Amendment) Order 2021

Motion to Approve

Moved by

That the draft Order laid before the House on 4 March be approved.

Relevant document: 46th Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument). Considered in Grand Committee on 19 April.

On behalf of my noble friend Lord Goldsmith of Richmond Park I beg to move the Motion standing in his name on the Order Paper.

Motion agreed.

British Library Board (Power to Borrow) Bill

Third Reading


Moved by

My Lords, this is a small and perfectly formed Bill, which attracted very little controversy and corrects a long-standing anomaly in the ability of the British Library to fund itself. It has been ignored by the mainstream press but, such was the obsequious nature with which I approached these proceedings and the praise I lavished on so many of your Lordships, it received a full write-up in Private Eye. I beg to move.

Bill passed.

Education and Training (Welfare of Children) Bill

Third Reading


Moved by

My Lords, I offer my thanks to the Minister for her help in securing the passage of the Bill. I also thank all noble Lords who spoke on this small but equally perfectly formed Bill, which is important although it covers very few words. I beg to move.

Bill passed.

Overseas Operations (Service Personnel and Veterans) Bill

Commons Reasons and Amendments

We now come to the consideration of Commons reasons and amendments on the Overseas Operations (Service Personnel and Veterans) Bill. I will call Members to speak in the order listed. When there are no counterpropositions, as for Motions C and D, the only speakers are those listed, who may be in the Chamber or remote. When there are counterpropositions, any Member in the Chamber may speak subject to usual seating arrangements and the capacity of the Chamber. Any Members intending to do so should email the clerk or indicate when asked. Members not intending to speak should make room for those who are. All speakers will be called by the Chair. Short questions of elucidation after the Minister’s response are discouraged. A Member wishing to ask such a question must email the clerk.

Leave should be given to withdraw Motions and when putting the question, I will collect voices in the Chamber only. When there is no counterproposition, the Minister’s Motion may not be opposed. 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. Noble Lords following the proceedings remotely, but not speaking, may submit their voice—content or not content—to the collection of voices by emailing the clerk during the debate. Members cannot vote by email; the way to vote will be via the remote voting system. We will now begin.

Motion A

Moved by

That this House do not insist on its Amendment 1 and do agree with the Commons in their Amendments 1A to 1Q in lieu.

1A: Page 4, line 19, at end insert—

“(5A) An offence is not a “relevant offence” if it is an excluded offence by virtue of Part 3A of Schedule 1.”

1B: Page 4, line 20, leave out subsections (6) to (8)

1C: Page 11, line 9, at end insert “, 31A and 31B”

1D: Page 11, line 18, at end insert—

“3A An offence under section 1(1) of the Genocide Act 1969 (genocide).”

1E: Page 12, line 7, after “Schedule” insert “or paragraphs 31A and 31B”

1F: Page 12, line 39, leave out “of committing—” and insert “on account of an act constituting—

(za) genocide as defined in article 6,”

1G: Page 12, line 40, leave out “within article 7.1(g)” and insert “as defined in article 7”

1H: Page 12, line 40, at end insert— “(aa) torture within—

(i) article 8.2(a)(ii)-1 (which relates to grave breaches of the Geneva Conventions of 12 August 1949), or

(ii) article 8.2(c)(i)-4 (which relates to armed conflicts not of an international character), or”

1J: Page 13, line 13, leave out “of committing—” and insert “on account of an act constituting—

(za) genocide as defined in article 6,”

1K: Page 13, line 14, leave out “within article 7.1(g)” and insert “as defined in article 7”

1L: Page 13, line 14, at end insert— “

(aa) torture within—

(i) article 8.2(a)(ii)-1 (which relates to grave breaches of the Geneva Conventions of 12 August 1949), or

(ii) article 8.2(c)(i)-4 (which relates to armed conflicts not of an international character), or”

1M: Page 14, line 6, leave out “of committing—” and insert “on account of an act constituting—

(za) genocide as defined in article 6,”

1N: Page 14, line 8, leave out “within article 7.1(g)” and insert “as defined in article 7”

1P: Page 14, line 8, at end insert— “

(aa)torture within—

(i) article 8.2(a)(ii)-1 (which relates to grave breaches of the Geneva Conventions of 12 August 1949), or

(ii) article 8.2(c)(i)-4 (which relates to armed conflicts not of an international character), or”

1Q: Page 14, line 34, at end insert—

My Lords, in proposing their amendments in lieu, the Government have listened to the very real concerns expressed by many in both Houses. I wholeheartedly concur with the thanks expressed by the Minister for Defence People and Veterans in the other place last week to my friend—I call him my “friend” in the most healthy and familial sense of the word—the noble Lord, Lord Robertson, for his constructive approach to this issue.

The Government have recognised the strength of concern that, by excluding only sexual offences and not other serious offences, the Bill risks damaging not only the UK’s reputation for upholding international humanitarian and human rights law, including the United Nations convention against torture, but also the reputation of our Armed Forces.

While the other place rejected the amendment proposed by the noble Lord, Lord Robertson, they accepted the Government's amendments in lieu to add genocide, crimes against humanity and torture to the excluded offences in Schedule 1, and to remove the delegated power in Clause 6(6), which allows the Secretary of State to amend Schedule 1.

Although we can be absolutely reassured that our Armed Forces would never resort to acts of genocide or crimes against humanity, and that it would be extremely unlikely for individual members of the services to be charged with such offences, the Government accepted, with the support of the other place, that not explicitly excluding these offences from the Bill was a clear omission that needed to be rectified. In addition, the Government recognised, with the support of the other place, that, to prevent any further perceived damage to the UK’s reputation in respect of our ongoing commitment to upholding the rule of law and our international obligations—particularly the United Nations convention against torture—torture offences should also be added to the list of excluded offences in Schedule 1.

Although the Government were not supportive of excluding further offences at that stage, they have continued to reflect on the very real concerns in both Houses that all offences that fall within the jurisdiction of the International Criminal Court, including war crimes, should be excluded from the measures in Part 1. I can confirm to the House that the Government will therefore table an amendment in lieu of Motion A1 in the name of the noble Lord, Lord Robertson, to exclude war crimes also.

I am also aware that many continue to have concerns that the International Criminal Court can step in to investigate and prosecute United Kingdom Armed Forces personnel. I am happy to reassure on the perceived risk of ICC intervention. I invite your Lordships to consider the criteria that might surround an allegation that the complainant maintains is a war crime. The prosecutor would have to consider the case evidence referred by the service police and if, in the opinion of the prosecutor, the evidence was sufficient to indicate that a war crime had been committed and that there was a reasonable prospect of conviction, the prosecutor would consider the public interest in the case being prosecuted, including whether the accused was fit to stand trial. With the strong likelihood that a prosecutor would determine that the case should be prosecuted, subject to the consent of the Attorney-General, this could all proceed well within five years.

However, if, for some reason, the allegation did not arise until after five years but sufficient evidence still existed that a war crime had been committed, the prosecutor could still determine that the public interest in prosecuting such a serious offence would rebut the measures in Part 1 of the Bill. A prosecution would therefore proceed, again subject to the consent of the Attorney-General.

It is important to be clear that there are already many instances where a prosecutor could exercise discretion not to prosecute a case and the ICC would not intervene—for example, if the evidence was not deemed sufficient because it was not robust, or the recollections of the witnesses were unclear or in conflict with each other. In such circumstances, the prosecutor might likely conclude, understandably, that there was not a justiciable case, and the case would not proceed to prosecution. In this case, the prosecutor would not have to consider the public interest or the Bill’s measures. However, in this circumstance, although the International Criminal Court could theoretically seek to intervene, it is inconceivable to me that it would.

Similarly, if the prosecutor exercising the discretion he or she has under the existing prosecutorial guidance took the view that the accused was not fit to stand trial, and that a prosecution was not sustainable or not in the public interest for some other valid reason, I think it again inconceivable that the ICC would intervene. As such, we have to be very careful with the distinction between “could” and “would”. I am illustrating how, if a prosecutor decides for valid reasons not to prosecute, there is no reasonable basis to conclude that the ICC would consider that the UK is unwilling or unable to prosecute a particular case and would then intervene.

Furthermore, I also make clear that, in accordance with the International Criminal Court’s procedures, a preliminary examination would first need to be initiated by the Office of the Prosecutor to decide whether it would be necessary for the ICC to seek to intervene in a state investigation or prosecution. In practice, if the Office of the Prosecutor were to raise issues with us, this would trigger a long and detailed preliminary examination of the situation, within which we would be consulted each step of the way. This would mean that we would have many opportunities to prevent UK service personnel being prosecuted at the International Criminal Court. We are confident that we would be able to show that the UK national system is both willing and able to conduct investigations and prosecutions, thus excluding the ICC’s jurisdiction over UK service personnel.

I have given that rather lengthy analysis and explanation because I seek to provide further reassurance to your Lordships on this particular issue. I believe that Commons Amendments 1A to 1Q go a very long way to addressing the concerns of this House in respect of relevant offences. I therefore urge that the House agrees to them, in lieu of Lords Amendment 1. I can confirm that the Government will not oppose Amendments 1R to 1U in the name of the noble Lord, Lord Robertson, noting that they will table a further amendment in lieu tomorrow. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

Leave out “1A to 1Q in lieu” and insert “1A to 1G, 1J, 1K, 1M and 1N, do agree with the Commons in their Amendment 1Q and do propose Amendment 1R as an amendment thereto, and do disagree with the Commons in their Amendments 1H, 1L and 1P and do propose Amendments 1S to 1U in lieu thereof—

1R: In paragraph 31B(1), leave out from “1957” to end of sub-paragraph (3) and insert “(grave breaches of the Geneva Conventions) is an excluded offence.”

1S: Schedule 1, page 12, line 41, leave out from “crime” to end of line 2 on page 13, and insert “as defined in article 8.2”

1T: Schedule 1, page 13, line 15, leave out from “crime” to end of line 18 and insert “as defined in article 8.2”

1U: Schedule 1, page 14, line 9, leave out from “crime” to end of line 12 and insert “as defined in article 8.2””

My Lords, I welcome the Minister’s opening statement today. I, and many others, have a genuine sense of relief that the voice of this Chamber last week, so overwhelmingly expressed in the debate that took place, has been listened to with such clarity. There was a feeling then, before the Bill was amended, that it would have produced a situation that is profoundly embarrassing to the nation we live in, is unhelpful to the troops we send abroad and generally does no good for anyone at all.

The Government have now recognised the strength of the argument. By including genocide, torture and crimes against humanity in the excluded areas of the presumption against prosecution, they have rescued their own reputation. Of course, until today, they had excluded war crimes from those exclusions; at that point, we faced the ludicrous contradiction that meant that we would have seen a presumption against prosecution for some of the most heinous crimes that come under the definition of war crimes yet no limitation for torture or genocide—in contradiction, therefore, to international humanitarian law, which recognises no form of limitation of time or jurisdiction on such crimes. This is why I tabled the amendment that would include war crimes in those exclusions: so that there would not be a presumption against prosecution for some of the most terrible crimes that still could be committed—though they are unlikely to be—by British troops.

The Government listened to the chorus of criticism that took place. Why was it so widespread and deep? Why did so many of the military veterans of senior rank in this House vote for the amendment last week? It was principally because they believed that the reputation of our Armed Forces would be damaged by singling them out for what the Law Society called a “quasi-statute of limitations”. Importantly, it was also because, had we passed the Bill unamended, our troops would have been subject to the jurisdiction of the International Criminal Court.

At the weekend, the chief prosecutor of the ICC, Fatou Bensouda, wrote to the right honourable David Davis on this very subject. She repeated what she had said previously:

“If the effect of applying a statutory presumption was to impede further investigations and prosecution of the Rome statute crimes allegedly committed by British service members in Iraq—because such allegations would not overcome the statutory presumption—the result would be to render such cases admissible before the ICC.”

She made it clear that, even if there were to be any finessing of the definitions in Article 8.2 of the Rome statute,

any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk the persistence of the prospect I articulated earlier, that of rendering relevant cases concerning such conduct admissible before the ICC.”

I therefore genuinely welcome the Minister, who has listened at all times to reasoned arguments, telling the House that the Government would accept Amendment 1 and the thrust of it when it comes to tidying up in the other place because she accepts the validity of the argument. She made the argument strongly that our troops would not, in normal circumstances, ever come near the International Criminal Court.

When I was Defence Secretary in 1997, Robin Cook and I had some lengthy discussions on whether this country should sign up to the International Criminal Court. At that time, we had no doubts because the ICC was set up to deal with some of the most grievous breaches of the laws of war in the world today. However, because of the integrity of the UK’s robust legal system, we felt that there was no possibility whatever that any case or allegation made against British troops would end up in the International Criminal Court. I have held that view right up to today, and I am therefore glad that we are now ensuring that that is unlikely to be the prospect.

There was a chorus of this view and that, at the end of the day, the Government have accepted that argument. As I have said, I believe it will protect the good name of British forces serving overseas and the reputation of this country and our legal system. I am, therefore, delighted that the Government will not oppose this amendment at the end of this debate. I beg to move.

My Lords, the following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Campbell of Pittenweem, Lord Anderson of Ipswich and Lord Lansley. I call the noble Lord, Lord Campbell of Pittenweem.

My Lords, I begin by congratulating my noble friend Lord Robertson of Port Ellen on leading the opposition to the original proposals contained in the Bill. He did so with great skill and persuasion. At the same time, I thank the Minister, who clearly listened avidly throughout the proceedings in connection with these matters. I think it is fair to say that she did not always give the impression of being enthusiastically in favour of the provisions of the Bill. The noble Baroness was brought up in the Roman law traditions of Scots law. In those circumstances, the expression “pacta sunt servanda”—promises have to be kept—will come as no surprise. I suggest that this remark should be reproduced above the desk of every policymaker in government. I am at some pains to understand who in the Government endorses proposals which are, prima facie, contrary to law. I say that not only in relation to the topics the House is discussing today but also drawing your Lordships’ attention to Part 5 of the internal market Bill in which this House and the other place were encouraged by the Government to create circumstances in which the Government could break the law without any adverse reaction. It seems to me that there is a unit of opinion—or, perhaps, some powerful policymaker—somewhere in the Government which does not appear to have sufficient understanding of the important fact that, for a country which argues as frequently as it can for the rules-based system, our ability to do so is substantially undermined if we are not shown to be adhering to that very system. If you want to preserve your reputation, you cannot play ducks and drakes with the law.

The Government may have been saved the consequences of the original provisions, but it is important to remember that, as the Minister and the noble Lord, Lord Robertson, made clear, they had excited the concerned interest of the United Nations and the International Criminal Court. The UK is a permanent member of the Security Council of the United Nations. How embarrassing would it be if it was thought that this country had departed from the provisions of the United Nations charter and conventions made under and in respect of it? As the noble Lord, Lord Robertson, pointed out, there was a discussion about whether the United Kingdom should join the International Criminal Court—I remember it. The balance of opinion was that it should and, if my recollection is correct, the United Kingdom was a founder member. How equally embarrassing it would be if, as a former original member of the International Criminal Court, the United Kingdom had to be brought before it.

There is a benevolent outcome in this matter, but it will take some time. We may have saved the Government from the consequences of the original provisions, but we will not save ourselves from damage to the reputation of this country. We should be very sure that, from now on, we will do everything in our power to make certain that that reputation is justified and, in particular, that our legitimate claim that we embrace the rules-based system on all occasions can be shown to be endorsed, not just in principle, but in practice as well.

It is a pleasure to follow the noble Lord, who speaks with such great authority in this area. I spoke about war crimes at Second Reading and again in Committee, and supported, though did not sign, the amendment in the name of the noble Lord, Lord Robertson, that was carried on Report. I came in today because I thought it was important to emphasise that the omission of war crimes from the list of exclusions, which I understand to have been the Government’s position until just now, was not some minor footnote to the noble Lord’s amendment. It tore the heart out of it because it destroyed its objective of protecting our troops from prosecution in the ICC. For that reason, I was delighted to hear just a few minutes ago that the Government have finally agreed not to oppose Motion A1.

It was of course right in principle to exclude genocide and crimes against humanity from the presumption against prosecution, but the practical implications of doing that were, frankly, negligible. After all, the crime of genocide requires,

“intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Crimes against humanity qualify as such only when they are

“part of a widespread or systematic attack directed against any civilian population”.

Not even in the extravagant imagination of Mr Phil Shiner could British forces be accused of these most serious of crimes. Of course, the original concession also extended to torture. That could have practical effects because British servicemen are, unfortunately, sometimes accused of that crime. It is right that the presumption against prosecution should not apply after five years to that very serious crime.

However, torture is only one war crime among the dozens listed in Article 8(2) of the Rome statute. Let me remind noble Lords of just some of the others: wilful killing; inhuman treatment; causing great suffering; the destruction and taking of property; unlawful confinement; attacking civilians; excessive incidental death, injury or damage; attacking undefended places; killing or wounding a person hors de combat; and outrages upon personal dignity.

In contrast to genocide and crimes against humanity, it is, I am afraid, quite possible to imagine such crimes being alleged—perhaps credibly—against British service personnel. The noble Lord, Lord Robertson, mentioned the letter sent last Friday from the ICC chief prosecutor to David Davis MP, in which she said:

“Some of the most serious cases pending before the competent investigating and prosecuting authorities in the UK, including those examining pattern evidence and command responsibility, concern such alleged crimes.”

If this Bill were to result in a decision not to prosecute after five years had passed, this latest letter puts it beyond doubt that such cases would be considered admissible before the ICC on the basis that the UK was unable or unwilling to prosecute. I respectfully suggest to the Minister that prosecutors could well take on cases of this kind that were deemed sufficiently strong, not least because the prosecution of British service personnel would be a firm warning to other states within the jurisdiction of the ICC that might be toying with the idea of following the dismal international lead set by the original version of this Bill.

For these reasons, I congratulate the noble Lord, Lord Robertson, and his supporters on holding their ground, the Minister on her efforts and the Government on finally agreeing to do the right thing.

My Lords, I am pleased to follow the noble Lords, Lord Anderson and Lord Campbell of Pittenweem. I, too, thank the noble Lord, Lord Robertson of Port Ellen, for bringing forward his amendment both on Report and now. I also thank my noble friend for the way in which she has responded. As she will recall, I did not participate on Report but I listened with care; we had subsequent conversations about this. I read with great interest the contributions made by a number of my former colleagues in the other place when our amendments were considered there last week.

First, while I agree with my noble friend and welcome the concessions that the Government have made, it is important for us to understand the nature of this further substantial shift. I am grateful to the noble Lord, Lord Anderson, who, in quoting part of Article 8(2) of the ICC statute, illustrated the wide range of potential crimes listed there. This gives rise to the concern that the chance of a vexatious allegation in relation to such a wide range of potential crimes is far greater than it is for crimes of genocide and crimes against humanity. However, as my right honourable friend Jeremy Wright, the former Attorney-General, helpfully said in the debate last Wednesday in the other place, by virtue of the exclusions that the Government have introduced, there is an increasing inconsistency as to which offences are relevant and which are excluded.

The truth of the matter is this: if we could be certain that the decisions made by prosecuting authorities on a relevant offence would exclude the potential of a further prosecution by the International Criminal Court—and that the decisions made by UK prosecutors would be sufficient for everybody’s acceptance—the UK would be able and willing to undertake a prosecution, even of a relevant offence, and this would be accepted by the ICC; my noble friend the Minister made this point in introducing the debate. The court could then proceed only if we were unable and unwilling, which we evidently would not be. I fear that there is uncertainty about this.

We have to balance, on the one hand, the uncertainty about exposing our potential servicepeople to the International Criminal Court—especially after the five-year period—against, on the other hand, not being able to reassure them that these offences have been brought within the scope of relevant offences for the higher prosecution threshold. The iteration between this House and the other House has helped enormously to understand that there is a balance to be struck.

As Jeremy Wright mentioned in the other place, for reasons not least of consistency, it is important now to bring war crimes within the list of excluded offences to give us that sense of consistency. It is equally important to reassure our service personnel by demonstrating that we are absolutely willing to investigate but will not allow vexatious allegations to proceed. We have attempted to do this in the past, for example where the Iraqi Historic Allegations Team, to which Jeremy Wright referred, was concerned. If we do not give our service personnel that reassurance, they will feel that these exchanges have led to a lesser reassurance on their part than they originally expected when the Bill was introduced.

That said, I very much welcome what my noble friend had to say. I will be glad to support her.

My Lords, it may be presumptuous of me spontaneously to offer, on behalf of all gallant Lords, a sincere thank you to the Minister for the good news she has brought today. I can probably extend that to all those who are involved on operations, who are in command of those on operations or who train them beforehand. Frankly, the idea that we might have sent soldiers, sailors and airmen to depart on operations with even an inkling that, in certain circumstances, they might have enjoyed some sort of exemption from prosecution for war crimes is fundamentally opposed to what makes us what we are and gives our Armed Forces moral authority. It is absolutely fundamental to our sense of service. The concession in the other place that the Minister has reported is fundamental to our ability to retain the moral authority of that service.

My Lords, like noble and gallant and noble and learned Lords, I welcome the Minister’s further concession. One of the most welcome things in the final stages of this Bill is that we are gradually beginning to see its most egregious bits removed. We have lost Clause 12; this was most welcome. A very welcome amendment was tabled in the Commons, although it did not go far enough. However, it began to pave the way for the amendment brought again by the noble Lord, Lord Robertson, which the Minister has agreed to accept. This is extremely welcome.

I will not rehearse the arguments made by other noble Lords about the International Criminal Court. I merely want to say that we on these Benches support Amendment A1 in the name of the noble Lord, Lord Robertson. We also look forward to the government amendment in lieu and to seeing that war crimes—as well as genocide, torture and crimes against humanity—are excluded from the presumption against prosecution. This will tidy up the Bill in a most welcome way and, hopefully, will lead us to a piece of legislation that does what we need it to do and what our service personnel and veterans need it to do.

My Lords, following the overwhelming defeat in this House a couple of weeks ago, the Government’s decision to accept parts of the amendment of the noble Lord, Lord Robertson, to exclude torture, genocide and crimes against humanity from the presumption against prosecution was a welcome step forward. This was testament to the efforts of the noble Lord and the vast coalition of supporters inside and outside this House. I pay tribute to them all today.

We should not forget that these serious offences are illegal and immoral. Under all circumstances, they must be investigated, and if there are grounds for the allegations, there must be prosecutions and punishment. Not including them in Schedule 1 from the beginning was a mistake, and one that could have led to British personnel and veterans being dragged before the ICC, as the ICC’s chief prosecutor herself said. Now, she has written another letter about the current government concessions, saying:

“I remain concerned that many war crimes within the Court’s jurisdiction would still be subject to the envisaged statutory presumption … any gap between the scope of coverage in the excludable offences under the proposed legislation and conduct which might otherwise constitute a crime within the jurisdiction of the Court would risk the persistence of … rendering relevant cases concerning such conduct admissible before the ICC.”

Therefore, it was clear that there remained a serious problem and that the Government were still picking and choosing some crimes that are covered by the Geneva conventions.

We still believe that war crimes must be excluded and strongly support Motion A1 to exclude everything covered by Article 8.2 of the Rome treaty. We are therefore delighted with the Minister’s speech. Essentially, I believe the Government accept the essence of Motion A1, and we will see that in the new amendment from the Commons. I thank the Minister for her efforts and her willingness to talk to many interested parties. We have got to the right place.

It might be useful to lay out what I expect to happen now. As I understand it, Motion A1 will be pressed by the noble Lord, Lord Robertson, and the Government will accept it on the voices. It will then go back to the Commons, and an amendment in lieu will be moved by the Government. It will have substantially the same effect as Motion A1, and it will be approved in the Commons. The new amendment will then be returned to us, where we will unreservedly welcome and approve it. That will be a happy outcome to this complex debate.

I join other Members in celebrating that there have been a variety of speeches looking at this subject in this session, in previous sessions and outside the House. I accept that getting the balance right is a matter of some subtlety, but I believe we have got to the right place, and I look forward to the amendment in lieu coming back to us.

My Lords, first, I thank all noble Lords for their contributions. Again, I thank and pay tribute to the noble Lord, Lord Robertson, for his assiduous attention and perseverance in respect of this issue. I endeavoured to engage widely, and I thank noble Lords for the recognition of that engagement. I was anxious to do my level best to understand where the concerns really lay.

I thank noble Lords for the welcome they have extended to the Government’s change of position on this. As indicated by the last speaker, the noble Lord, Lord Tunnicliffe, I welcome the recognition that there was a balance to be struck. I now detect, quite clearly, I think, that your Lordships are seeing the Bill reach a shape whereby it is a positive advance, providing clarity and greater certainty to our Armed Forces personnel. As I said in my opening speech, the Government will not oppose the amendment of the noble Lord, Lord Robertson, and they will table an amendment in lieu to ensure drafting accuracy.

I am delighted with what the Government have said and with the support that has been given to this amendment in this House. We are doing absolutely the right thing by our troops. The noble and gallant Lord, Lord Houghton, makes the strong point, which I have heard from a number of military officers, that to have left any vestige of possibility that our troops might have appeared before the International Criminal Court would have been a disgrace, entirely wrong and very damaging to the morale of those who are still deployed to defend this country and its interests.

The offences under Article 8.2 of the Rome statute are protected in international law as being without limit of time. To have invoked any presumption against prosecution for those offences would have been to be in breach of international law and international humanitarian law. If that had happened, it would have been a stain on our country, or, as one of the senior military representatives said, a national embarrassment.

This country has also been saved from the use of this legislation by every dictator and warlord in the world, who would have used it as a precedent for their own illegal actions. Even in the last few weeks, we have seen a number of countries subject to the ICC jurisdiction praying in aid this draft of the legislation. We have been saved from that as well.

I, of course, admire and respect those who serve in our name in conflicts overseas. They do so bravely, tenaciously and professionally. As Defence Secretary and then Secretary-General of NATO, I often had to make decisions about the deployment of these individuals and place them in harm’s way. These were never easy decisions to make, but I was comforted by the fact that our Armed Forces always act within the law. To single them out as being somehow above these laws would have done a disservice to them and to their purpose.

I thank the Minister for her consideration and for listening, the Secretary of State, who listened to the voices that have come from such a wide range of opinion, and all those who have helped in this particular argument. I look forward to seeing, before they are tabled, the drafting amendments that the Minister promises will be brought forward for the amendment in lieu in the other place. As a matter of form, I beg to move Motion A1.

Motion A1 agreed.

Motion B

Moved by

That this House do not insist on its Amendment 2 to which the Commons have disagreed for their Reason 2A.

2A: Because it would not be appropriate to restrict the investigation of alleged offences as proposed in the Lords Amendment.

My Lords, it is the Government’s view that the timescales included in the amendment are operationally unrealistic, do not take account of the nature of investigations on overseas operations and could put us in breach of our international obligations under the European Convention on Human Rights to effectively investigate serious crimes. Where the service police have reason to believe that an offence may have been committed, they have a legal duty to investigate it. Artificial timelines and restrictions placed on them in respect of the conduct of investigations would clearly prevent them carrying out effective investigations and would impinge on their statutory independence.

Subsection (2) seeks to include a requirement for referral of investigations to the Service Prosecuting Authority and sets an arbitrary timeline for this. However, a referral threshold—the evidence sufficiency test—already exists in the Armed Forces Act 2006. Furthermore, there is a statutory obligation in Section 116(4A) of that Act on the service police to consult the Service Prosecuting Authority before deciding not to refer certain serious cases.

Closing down or restricting the investigative timeline —as subsection (3) appears to do—raises the risk of contravening our ECHR obligation to effectively investigate allegations of serious crimes, as I have already said. It also presents the very serious risk that the ICC would determine that we are unwilling or unable to properly investigate alleged offences on overseas operations.

An effective investigation is one that has the flexibility to be led by the evidence wherever it goes, on a case-by-case basis, not one that must be carried out under the shadow of arbitrary timescales. Following that course, if investigations are curtailed in this way, we may fail to exonerate our own forces or provide much-needed closure to the families of deceased personnel. Also, the Government remain strongly of the view that it would be premature to propose any changes to the investigative process while Sir Richard Henriques’s review of investigative processes in relation to overseas operations is still in progress. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by

At end insert “but do propose Amendment 2B in lieu—

2B: After Clause 7, insert the following new Clause—

“Investigation of allegations related to overseas operations

(1) In deciding whether to commence criminal proceedings for allegations against a member of Her Majesty’s Forces arising out of overseas operations, the relevant prosecutor must take into account whether the investigation has been timely and comprehensively conducted.

(2) Where an investigator of allegations arising out of overseas operations is satisfied that there is sufficient evidence of criminal conduct to continue the investigation, the investigator must within 21 days refer the investigation to the Service Prosecuting Authority with any initial findings and accompanying case papers.

(3) An investigation may not proceed after the period of 6 months beginning with the day on which the allegation was first reported without the reference required in subsection (2).

(4) On receiving a referral under subsection (2), the Service Prosecuting Authority must either—

(a) order the investigation to cease if it considers it unlikely that charges will be brought, or

(b) give appropriate advice and directions to the investigator about avenues of inquiry to pursue and not pursue.

(5) On the conclusion of the investigation, the investigator must send a final report with accompanying case papers to the Service Prosecuting Authority for the consideration of criminal proceedings.

(6) After receipt of the final report, the facts and circumstances of the allegations may not be further investigated or reinvestigated without the direction of the Director of Service Prosecutions acting on the ground that there is new compelling evidence or information.

(7) For the purposes of this section—

“case papers” includes summaries of interviews or other accounts given by the suspect, previous convictions and disciplinary record, available witness statements, scenes of crime photographs, CCTV recordings, medical and forensic science reports;

“investigator” means a member of the service police or a civil police force.””

My Lords, I would like to quote some wise words on this Bill with which I entirely agree:

“those who commit criminal acts … must face justice and must expect to be called to account. However, that should be done without undue delay: periods of delay stretching over years are simply not acceptable.”—[Official Report, 20/1/21; col. 1170.]

That was the opening statement at Second Reading of the noble Baroness, Lady Goldie. A moment ago, as I understood it, she suggested that the current status quo was perfectly flexible and reasonable and that there should be no change. I do not agree. She has considered this Bill with remarkable fortitude and dealt trenchantly with her colleagues on some of these issues. I admire her very much for that. Having been present in person on the only occasion that a conviction of a war crime has been recorded in a British court, I am relieved that war crimes have now been removed from the presumption against prosecution. Clearly under her influence the Government can think again. I thank her. I also thank the noble Lord, Lord Robertson of Port Ellen, for his leadership on this.

No one has suggested throughout the whole passage of the Bill that there has been unacceptable delay by the Service Prosecuting Authority or the office of the Director of Service Prosecutions in bringing prosecutions, and nor has there been any complaint of delay in the listing of cases for trial or in the time taken in the courts martial process.

I referred at previous stages to the difficulties faced in investigations in theatre: the fact that investigations by victims in a hostile country may be made late, the likelihood of a lack of co-operation, the need for security for the investigators themselves, the problems of language and culture and, importantly, the lack of the range of forensic scientific facilities which would be readily available to investigators of domestic crime within the UK. All these pose considerable difficulties. However, the Bill still does not directly address the problem of delayed, shoddy and repeated investigations, which has very much been the concern of many members of the Armed Forces.

The Bill still introduces the novel idea of a presumption against prosecution for murder and for lesser charges to terminate proceedings arbitrarily; that has thankfully been truncated today but is still just about hanging in there on the serious offences of murder and likewise. This anomaly—this presumption against prosecution—may be the subject of law lectures in future, perhaps for a lengthy period until it is reversed, as I am convinced it will be, but will the presumption of prosecution still in this Bill be extended to other categories of public servants? Will there be a presumption against the prosecution of policemen after a number of years, or soldiers who have served in Northern Ireland? We have recently seen senior police officers tried for decisions made, under stress, more than 30 years ago. Have the memories of witnesses to those tragic events faded? Should retired police officers have the threat of prosecution held over them? Today a trial starts in Northern Ireland dealing with the events of 50 years ago. When the promised Bill to protect veterans of Northern Ireland operations is produced, will there be a presumption against prosecution in that? If so, I predict serious riots in Derry.

I return to my amendment, which sets out a practical and principled way of monitoring investigations and stopping them if, in the opinion of the Director of Service Prosecutions, there is insufficient evidence and no prospect of further investigations succeeding. Only if there is new and compelling evidence which satisfies the DSP could such investigations be resumed. It would not be, as at present, at the inclination or judgment of the investigator himself.

I am aware that the government response to my amendments in both this House and the other place, as we heard just now, has been to argue that its time limits are too restrictive. However, flexibility is built into the system I propose: no arbitrary cut-off applicable to all, regardless of the circumstances, but with each case considered individually on its merits. The insertion of time limits to control and monitor the investigation is precisely the point.

The alternative argument advanced by the Government is that Sir Richard Henriques is carrying out a review of the process of investigations. If that is so, it is not I who am premature with my amendment but the Government, who are pushing this Bill forward before he has reported. I know Sir Richard well from the days of my youth when I trespassed on the northern circuit; he is a judge of outstanding ability and integrity. If I were assured that my amendment and the speeches on it would be put before him, and that he could report in time for the Armed Forces Bill—the Second Reading of which we expect in this House perhaps in June—it would materially affect my decision as to whether to press this Motion. I beg to move, but look forward very much to the reply of the noble Baroness.

My Lords, we continue to accept and recognise the problem of baseless allegations and legal claims arising from Iraq and Afghanistan under both Labour and Conservative Governments. But the Bill, unamended, just does not do what was promised—that is, to protect British personnel serving overseas from vexatious legal claims and shoddy investigations. This is the gaping hole in this Bill, and it could be neatly fixed in the way that was proposed by the noble Lord, Lord Thomas.

I remind the Minister that the conditions set on investigations in the amendment are not arbitrary, nor are they time limited. The proposal ensures timely, not time-limited, investigations. This is not unrealistic, because it has been tried and tested in civilian law, and that is one of the reasons why the former Judge Advocate-General is so keen on such a proposal. We have worked hard with the Government and across the House to try to build a consensus on this. While we believe this has been achieved with colleagues from all sides, the Government remain extremely resistant to proposals, so we are forced to recognise the restraints and realities of ping-pong. Therefore, we support the calls by the noble Lord, Lord Thomas, for the amendment to be referred to Sir Richard Henriques, and reported on in time for it to be considered in the Armed Forces Bill, to ensure that we return to the issue.

I thank the noble Lord, Lord Thomas of Gresford, for his Motion B1. He referred to my remarks at Second Reading relating to trying to address protracted and repeated investigations, and I stand by these remarks which, within the context of the Bill, seek to provide greater clarity and certainty to our Armed Forces personnel, but not by imposing artificial time limits on investigatory processes. That is implicit within the noble Lord’s amendment.

I accept that the noble Lord, Lord Thomas of Gresford, is well intentioned. He suggests that his amendment should be referred to Sir Richard Henriques, and the Government certainly have no objection to that. Indeed, Sir Richard Henriques may already have been closely following debates in this Chamber on the Bill. The noble Lord’s amendment may be a fruitful subject on which Sir Richard may wish to reflect. I cannot commit, of course, to saying that the report from Sir Richard will be concurrent with the Armed Forces Bill. Its Second Reading may reach this Chamber in June, and I understand that Sir Richard hopes to produce his report in the early summer. Again, while we will all be very interested in learning what Sir Richard has to say, the noble Lord, Lord Thomas of Gresford, will understand that I cannot commit the Government to whatever he may produce in his ultimate report. I certainly believe in having a wide field of material available for consideration of complex issues. If that reassures the noble Lord, Lord Thomas of Gresford, I hope he will be minded not to move Motion B1 to a division.

I have received no requests to ask any short questions of elucidation, and accordingly call the noble Lord, Lord Thomas of Gresford.

My Lords, I am grateful to the noble Baroness, Lady Goldie, for that reply. I note that she is prepared to refer this issue to Sir Richard Henriques. It would be sensible to see what he has to say. I am sure that he will take on board all the submissions that have been made, and will produce a way forward to ensure that delays are monitored and controlled, and not left to hang about for ever, as has happened in the past. On that basis, I beg leave to withdraw Motion B1.

Motion B1 withdrawn.

Motion B agreed.

Motions C and D

Moved by

3A: Title, line 1, leave out from “proceedings” to “in” in line 2.

That this House do not insist on its Amendment 4 to which the Commons have disagreed for their Reason 4A.

4A: Because the limitation periods proposed in Part 2 of the Bill allow reasonable time for the bringing of claims, and it would be incompatible with the European Convention on Human Rights for different periods to apply in respect of different types of claimant.

My Lords, I beg to move Motions C and D.

Amendment 3A in Motion C is simply a consequential amendment to the title of the Bill as a result of moving the duty to consider derogation provision.

Commons Reason 4A in Motion D reflects the representations I made to this House previously, that the absolute limitation periods proposed in Part 2 of the Bill allow reasonable time for the bringing of claims, and that it is incompatible with our obligations under the European Convention on Human Rights for different periods to apply in respect of different types of claimant.

As previously stated, we consider that six years is a reasonable and sufficient period to bring a claim, while also providing much-needed legal certainty. We also consider that a six-year absolute time limit is compatible with our ECHR obligations. Importantly, an absolute time limit of six years for bringing claims already has precedent in English and Welsh law. Section 2 of the Limitation Act 1980 has an absolute six-year time limit for bringing claims for intentional torts. In Stubbings v UK, the European Court of Human Rights confirmed that this absolute time limit is compatible with the UK’s ECHR obligations.

The figures previously cited, which indicate that around 94% of claims from service personnel and veterans arising from operations in Iraq and Afghanistan were brought within six years of the date of the incident or the date of knowledge, are important. They show that, even when there was no longstop in place, the vast majority of claims from service personnel and veterans were brought in a timely manner, and would not have been timed out by the measures in this Bill. It can be reasonably assumed that in the future claims would be brought forward sooner to avoid being timed out by the longstops. As a responsible employer, the MoD will communicate with and educate its people at relevant points of their careers so that they are aware of the impact of these new provisions when Armed Forces personnel are being considered for deployment on overseas operations.

Finally, the incentive to bring claims in a timely manner is very much in the interests of claimants, as it is much more likely that the facts of the situation can be determined more accurately, thus offering a greater chance to achieve justice. Moving on to the other part of the Reason, and as I have previously stated, Lords Amendment 4 renders the longstop measures in Part 2 of this Bill incompatible with our obligations under the European Convention on Human Rights. This is because in disapplying the longstops to claims by service personnel connected with overseas operations, we would be discriminating, with no justifiable reason, against non-service personnel who also bring claims connected with overseas operations. It is also our view that personnel deployed on overseas operations are not in an analogous situation with those who are not so deployed. We therefore consider that the difference in treatmentbetween their claims is justified. This is because the circumstances in which claims connected with overseas operations arise are specific and unusual. Additionally, all the difficulties that arise in claims connected with historic overseas operations relating to the lack of accurate contemporaneous records and increased reliance on the fading memories of personnel do not arise in the same way with claims not connected with historic overseas operations.

My Lords, I have nothing to say on Motion C, which is purely technical.

The original amendment behind Motion D proposed that the ordinary rules of the Limitation Act should continue to apply to members of Her Majesty's Forces serving in overseas operations. The Government’s objection is that this is discriminatory and contrary to the European Convention on Human Rights. Of course, the whole Bill is discriminatory, not least on the criminal side. It discriminates between personnel serving in overseas operations and personnel serving within the United Kingdom who do not have the protection of the so-called presumption against prosecution, for example, nor the protection against civil suit which these provisions seek to give.

Discrimination is not the problem here, the real issue is discretion: the discretion of a judge, in appropriate circumstances where it is equitable to do so, to extend or disregard the limitation period in actions in tort or, for example, for unlawful detention, or for breach of the articles of the human rights convention—for example, torture—or, in the case of our troops, for negligence, either in the provision of equipment or in training. The law has recognised over the centuries that the imposition of an absolute cut-off may in the circumstances of a particular case be entirely unjust.

Our system has operated quite successfully in cases arising out of operations in Iraq and Afghanistan. Vexatious claims or claims which were so delayed as to make it impossible to try the issues fairly have been struck out in their hundreds. That is the system that we have got, and it is a system that works.

Your Lordships will recall that, at Report, I argued that the clauses which created a blank wall for all litigants, whether foreign nationals, civilian victims or members of the Armed Forces, should be removed from the Bill and that the tried and trusted system that we have—allowing judges to do their job in the particular circumstances of the case—should continue. The Government persist in removing the judges’ discretion, even in the narrow class of service personnel on overseas operations. We shall see how this works out, but I expect that veterans’ organisations will be clamouring at the door of the Ministry of Defence to reverse the decision as soon as possible.

My Lords, we are very disappointed that the Government have rejected our amendment to Part 2 of the Bill. We still believe that it is simply wrong for those who put their life on the line serving Britain overseas to have less access to compensation and justice than the UK civilians whom they defend, or indeed than their colleagues whose service is largely UK based. The amendment was designed to ensure that claims by troops or former service personnel were not blocked in all circumstances after six years, as they would otherwise be under the Bill.

This provision also directly breaches the Armed Forces covenant, as the director-general of the Royal British Legion confirmed. He argued: “I think it”—by implication, the Bill—

“is protecting the MOD, rather than the service personnel”.—[Official Report, Commons, Overseas Operations (Service Personnel and Veterans) Bill Committee, 8/10/20; col. 86.]

While our concerns have not gone away, we recognise that the Government have shown absolutely no desire to change this, so we will not ask the other place to think again with another vote. However, we strongly urge the Government to think further on this matter, and we will return to it as soon as possible.

For now, I want to thank colleagues for their unwavering support for our amendment, especially the noble and gallant Lords, Lord Stirrup and Lord Boyce. Having created such a widely based coalition against this part of the Bill, the Government should think long and hard and use the opportunity of the Armed Forces Bill to correct this deeply unwise feature of this one.

My Lords, I thank both the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Tunnicliffe, for their contributions. I think that what emerges is a simple divergence of opinion. I say to both noble Lords that the problem with Amendment 4 is discrimination between different personnel engaged in the same activity on which the Bill is predicated, an overseas operation. These differences of opinion are unlikely to be reconciled, but I thank the noble Lords for their contributions.

Motions C and D agreed.

Motion E

Moved by

That this House do not insist on its Amendment 5 to which the Commons have disagreed for their Reason 5A.

5A: Because it is not necessary, and would not be practicable, to define a legally binding standard of care in relation to the matters referred to in the Lords Amendment.

My Lords, I have said before, and I say again, that the MoD takes seriously its duty of care for service personnel and veterans. There already exists a comprehensive range of legal, pastoral, welfare and mental health support for them. I have previously spoken at length to your Lordships about the nature of this support and do not propose to repeat my comments in full, but I wish to highlight a couple of the key points.

First, service personnel are entitled to receive legal support where they face criminal allegations or civil claims that relate to actions taken during their service and where they were performing their duties. Legal advice and support is also available whenever people are required to give evidence at inquests and inquiries and in litigation.

Secondly, a range of welfare support and mental health support is routinely offered to all our people. The potential impact of operations on a service person’s mental health is well recognised, and policies and procedures are in place to help manage and mitigate these impacts as far as possible. Additionally, the Office for Veterans’ Affairs works closely with the MoD and departments across government, the devolved Administrations, charities and academia to ensure the needs of veterans are met.

As your Lordships would have noted from the Secretary of State’s Written Ministerial Statement, significant progress has been made to ensure that our service personnel and veterans have access to a comprehensive package of legal, pastoral and mental health support. We therefore believe that it is unnecessary to establish a statutory duty of care.

Not only is Amendment 5 unnecessary but it could result in unintended and undesirable consequences. Whether an individual wants or needs pastoral, welfare and mental health support is a personal issue. A duty of care “standard” could, if not carefully drafted, end up as a one-size-fits-all approach, not being flexible enough to cope with the needs and wishes of individuals as they arise and are identified. It could even engender an approach whereby support is provided only in accordance with the “standard”, which may leave personnel without the right support at the right time for them.

We are also deeply concerned about the potentially negative effect of the amendment if it is included in this legislation. It is clear that it is likely to lead to an increase in litigation, which will mean more of our people being subject to potentially lengthy and stressful court proceedings. That is profoundly undesirable and contrary to the objectives of this Bill. I think that many of your Lordships will recognise that pastoral and moral duties are extremely difficult adequately to define, and there is a real risk that attempting to do so will lead to more, rather than less, litigation and greater uncertainty.

We are also concerned that, as investigations and allegations arise and often occur in the operational theatre during conflict, involving the commanding officer, the Royal Military Police and service personnel, the amendment may have unintended consequences which impact on the operational theatre and, again, lead to an increase in litigation. That is not some draconian concoction or lurid speculation; it is the simple practical fact of introducing a legal standard which, despite the efforts to exclude from the doctrine of combat immunity, could well encroach into the operational theatre.

The MoD is clear about its responsibilities to provide the right support to our personnel, both serving and veterans, and to seek to improve and build on this wherever necessary. Setting a standard for a duty of care in this Bill is neither necessary nor desirable. I urge the noble Lord not to press his amendment. I beg to move.

Motion E1 (as an amendment to Motion E)

Moved by

5B: After Clause 12, insert the following new Clause—

“Duty of care to service personnel

(1) The Secretary of State must establish a duty of care standard in relation to legal, pastoral and mental health support provided to service personnel involved in investigations or litigation arising from overseas operations, as defined in subsection (6) of section 1.

(2) The Secretary of State must lay a copy of this standard before Parliament within six months of the date on which this Act is passed.

(3) The Secretary of State must thereafter in each calendar year—

(a) prepare a duty of care update, and

(b) include the update in the Armed Forces Covenant annual report when it is laid before Parliament.

(4) The duty of care update is a review about the continuous process and improvement to meet the duty of care standard established in subsection (1), in particular in relation to incidents arising from overseas operations of—

(a) litigation and investigations brought against service personnel for allegations of criminal misconduct and wrongdoing;

(b) judicial reviews and inquiries into allegations of misconduct by service personnel;

(c) such other related fields as the Secretary of State may determine.

(5) In subsection (1) “service personnel” means—

(a) members of the regular forces and the reserve forces;

(b) members of British overseas territory forces who are subject to service law;

(c) former members of any of Her Majesty’s forces who are ordinarily resident in the United Kingdom; and

(d) where relevant, family members of any person meeting the definition within paragraph (a), (b) or (c).

(6) In subsection (1) “duty of care” means both the legal and moral obligation of the Ministry of Defence to ensure the wellbeing of service personnel.

(7) None of the provisions of this section may be used to alter the principle of combat immunity.””

My Lords, it is with predictable disappointment, but no less determination, that I return to commending to your Lordships the amendment in my name to establish a duty of care standard. I draw your Lordships’ attention to the fact that in Committee and on Report this amendment stood in the names of the noble and gallant Lords, Lord Boyce and Lord Stirrup, thus reflecting support from former Chiefs of Staff of all three armed services.

It is fair to say that this overseas operations Bill has had something of a troubled passage through Parliament. It is extraordinary to note that the Minister piloting the Bill in the other place has now left his appointment as the Minister for Defence People and Veterans. What that says about smooth, joined-up government is a matter for speculation.

Notwithstanding the welcome concessions made by the Government this afternoon pertaining to our obligations under international law and Britain’s reputation as an upholder of a rules-based international community, the Bill is also about the wider interests of the people Mr Mercer in the other place sought to champion—namely, our defence people and veterans. The serving and veteran communities have been looking to the Bill to provide better protection from repeated, extended and vexatious investigations and possible prosecutions following their service overseas on deployed operations.

No one suggests for a moment that anyone is above the law. Indeed, soldiers take up arms only to protect the law, but when this new Bill passes into law it will singularly fail to provide the protection that serving and veteran members of the Armed Forces believe it should provide. For this reason, the duty of care standard amendment has been tabled to improve this Bill and enable it to achieve one of its original objectives. That it has been consistently opposed by government Ministers and the government majority in the other place is both puzzling and disappointing.

If the Government argue that the Bill as drafted would give serving and veteran members of the Armed Forces the protection that they seek and do not accept my amendment, will they commit to issuing a clear statement down the chain of command and out to the various veterans’ organisations as to how the Bill benefits and protects them? Those who are serving or have served have the right to believe that their employer will protect their interests. The Government have brought forward or implied various reasons why they will not support this duty of care standard amendment. It has been suggested that such an amendment is not necessary, in which case I repeat my request for a clear statement of benefit to be briefed to serving and veteran members of the Armed Forces.

It has been suggested that setting out a duty of care standard will invite further litigation from Armed Forces personnel. As I have argued previously, this is an empty argument, as in the amendment the Ministry of Defence has the opportunity to draw up its own statement of a duty of care standard, then act within it. That sounds to me like sensible, good practice to me—not something to be fearful of.

It has also been suggested to me that setting out a duty of care standard would create an unfortunate precedent. That argument misses the point as well. The inclusion of an Armed Forces covenant in the Armed Forces Act 2011 illustrates that the Armed Forces are acknowledged to be in a different category of employment from civilian occupations. The Armed Forces covenant was crafted and designed to recognise and protect that difference, so the argument of creating a precedent is also an empty one. The Armed Forces are in an employment category of their own.

Finally, I believe I have every right to be fearful. If the Government are failing to protect their employees from repeated, extended and vexatious investigations arising from overseas operations, what chance do Northern Ireland veterans have of gaining similar protection? I am not holding my breath, despite often-repeated statements that legislation would be introduced to address that problem too. I beg to move Motion E1 as an amendment to Motion E.

I have not received any requests from unlisted speakers. Does anyone in the Chamber wish to speak? No. I call the noble Baroness, Lady Smith of Newnham.

My Lords, this amendment from the noble Lord, Lord Dannatt, raises an important issue. Although we did indeed receive the Written Ministerial Statement, it did not go far enough. It is absolutely clear that the Government wish to make commitments to service men and women—the Bill was intended to do so—yet, when we get down to the details and requests to support the Armed Forces covenant and to ensure that the rights of service men and women and veterans are respected, the detail seems to disappear.

This amendment from the noble Lord, Lord Dannatt, perhaps does not go far enough. Such a duty of care should arguably be for all service personnel, whether overseas or at home, and for all activities. Had the noble Lord tabled such an amendment, he would almost certainly have been told it was out of scope of the Bill. Therefore, this is in many ways a modest amendment but a very important one. If the purpose of the Bill, as the Minister has pointed out—and pointed out so many times in the earlier stages of the Bill—is to stop vexatious claims, investigations and so on that are deleterious to the health and well-being of service personnel and veterans, the least the MoD can do is to commit to supporting service personnel and veterans going through the difficulties of investigations and prosecutions.

It is a limited but very important amendment. I am sure the Minister has been listening, because she has done a fantastic job of listening to us over many hours of debate. But if she has been listening, she has not yet yielded any ground whatever. Might she feel able to move at all? Otherwise, I suspect I will follow the noble Lord, Lord Dannatt, through the virtual Lobby to support this amendment.

My Lords, we remain four-square behind the important amendment from the noble Lord, Lord Dannatt, to provide a duty of care standard for personnel and veterans who face investigations and litigations. It remains unclear why the Government will not accept this limited proposal. If it is simply because they fear being sued for not fulfilling their responsibilities, I simply say to the Minister that all the Government need to do is to make sure their duty is fulfilled in the first place.

It has been suggested that it is unreasonable to single out the Armed Forces for this protection but, as the noble Baroness just pointed out, the covenant shows that the law recognises that being a soldier or serviceman in a combat situation is special and different. In no other job can you require somebody to go into a potentially lethal situation and, in the final analysis, die for their country. This amendment recognises that there needs to be something special when people have worked under conditions that those of us who have never been in that level of tension, responsibility and fear probably cannot understand. We can at least partly understand how difficult it must be. Surely, there should be a reciprocal movement by government, the command and the MoD to support those in such danger when they come under the aegis of the law and have the difficult job of defending themselves. This amendment merely makes sure that they are properly looked after and that anybody making decisions about how they are looked after recognises that, at the end of the day, there is hard legislation.

Since we last debated this amendment in this House, we have had a change of Minister for Defence People and Veterans—the ministerial lead for this legislation. While there are certainly mixed opinions about him, no one can fault Johnny Mercer’s passion or sense of mission. His resignation letter to the Prime Minister lays bare the failings of the Government on veterans’ concerns by saying that

“we continue to say all the right things”


“fail to match that with what we deliver”.

Clearly, there is an issue and we believe that having this duty of care on the face of the Bill will allow the Government to deliver while being reminded how Ministers come and go but statutory protection remains in place. We have heard how troops and their families who have been through the trauma of these long-running investigations have felt cut adrift from the Ministry of Defence. When Major Campbell was asked what support the MoD gave him, he replied simply: “There was none”.

We believe that the Government should think long and hard about this amendment. It is an unlikely coalition of three former Chiefs of Staff of their respective parts of the Armed Forces, politicians from around this Chamber, and many outside, who recognise the value of looking after our troops when they are in difficult times. This has to change and we believe that legislative change is the right way. We therefore support the noble Lord, Lord Dannatt, in asking the Government to think again. If the noble Lord feels that he has had an unsatisfactory response and wishes to divide the House, we will support him.

I thank the noble Lord, Lord Dannatt, the noble Baroness, Lady Smith, and the noble Lord, Lord Tunnicliffe, for their contributions. I realise that this is an important debate. It is an issue which, as I have recognised in previous contributions, elicits very strong and sincerely held views and feelings.

The noble Lord, Lord Dannatt, referred to my former ministerial colleague, Johnny Mercer. I pay tribute to him and recognise his commitment to veterans, as I pay tribute to his successor, my honourable friend Leo Docherty, himself a former soldier, who has a deep and abiding interest in veterans.

I listened carefully to the contributions across the Chamber. What I have not heard in response to my attempt to describe the wide range of support which is offered to our Armed Forces personnel and veterans—through a range of directly provided services, likely to be the case, for example, with serving personnel; or in conjunction and co-operation with veterans’ charities; or through consultation with the devolved Administrations, many of whom are responsible for delivering the essential services and support which our veterans require; or through the Armed Forces Covenant and how we propose to develop that further in the Armed Forces Bill—is a detailed indication of where the MoD is falling short. I certainly feel it would be helpful to have greater clarity about what noble Lords think are the deficiencies of the MoD in this context.

I have also not heard a response to the Government’s legitimate concerns about the unintended consequences and the potential legal implications of creating a statutory duty of care. As I pointed out, this has to exist alongside the common-law doctrine of combat immunity and the very real concerns that this well-intended amendment could stray into and inhibit activity in the operational theatre. None of the contributions addressed these legal concerns or provided any alternative legal view. If one is available, it would be helpful to the discussion to hear what it is.

The noble Lord, Lord Dannatt, made an important point about being sure that our Armed Forces personnel understand what this Bill means for them when it is passed. I acknowledge the significance of that observation. It is very important that there is an information and education process. I will certainly take that back and will attempt to reassure the noble Lord as to how we might make progress with that.

I have paid tribute to the noble Lord, Lord Dannatt, because his interest in this has been enduring and his pursuit of his objective resolute and determined, but I am afraid that the Government are not persuaded by his arguments. I therefore ask the noble Lord to withdraw his Motion.

My Lords, first, I thank the Minister for her thoughtful and measured response to this short debate. She made a number of entirely legitimate and fair points. She asked whether there could be a statement of detail on the concerns that a duty of care standard would meet, but I do not think that this Chamber is the place to get into a detailed drafting session. The purpose of the amendment is a purpose in principle to establish the desirability of a statement on a duty of care standard; this should stand on its own.

Going beyond that, the drafting of the amendment is such that the initiative remains with the Ministry of Defence to draft the duty of care standard in the way that it wishes. This also addresses the legal question that the Minister posed. The answer is that, if the Ministry of Defence draws up its duty of care standard in a careful and thoughtful way then continues to operate within it, the unintended consequences of serving or former servicepeople litigating against the Ministry of Defence represent an empty argument, as I argued before.

However, I am grateful to the Minister for picking up the point that, if there are beneficial aspects to the Bill, they are extracted and put in an information format so that they can be briefed down the chain of command, as I asked, and to veterans’ organisations. As much as I welcome that move, why would the Ministry of Defence not do that at the conclusion of the Bill? Anyway, I am glad that the concession has been made and that that will happen.

Nevertheless, I believe that the case for setting out a clear duty of care standard remains extremely strong. There have been several references to the former Minister for Defence People and Veterans; as I understand it, he is currently sitting in the public gallery of a court in Belfast to show solidarity with two former servicemen who are being tried some 40 or 50 years after events took place. I salute Mr Mercer for doing that and continuing to champion veterans’ causes. Veterans look to him for leadership; they also look to a number of us former service chiefs for leadership.

I rise to that challenge to continue to provide leadership to the veteran community. I am therefore disappointed that the Government do not accept the need for the setting out of a detailed duty of care standard. I continue to press this issue, and therefore wish once again to test the opinion of the House and divide on this matter.

The Bill was returned to the Commons with amendments.

Sitting suspended.

National Health Service (Charges and Pharmaceutical and Local Pharmaceutical Services) (Coronavirus) (Amendment) Regulations 2021

Motion to Regret

Moved by

That this House regrets that the National Health Service (Charges and Pharmaceutical and Local Pharmaceutical Services) (Coronavirus) (Amendment) Regulations 2021 (SI 2021/169) do not address the underlying funding problems faced by the pharmaceutical sector, which may affect the capacity of local pharmaceutical services to respond to future emergencies.

Relevant document: 47th Report from the Secondary Legislation Scrutiny Committee

My Lords, I welcome and support this statutory instrument. In fact, it is an excellent example of the contribution and innovation that community pharmacies make. Disappointingly, this has not always been recognised by the NHS, nor financially supported by the Government. As the Pharmaceutical Services Negotiating Committee has pointed out, community pharmacies have remained open throughout the Covid-19 pandemic; they have adapted to provide services in a Covid-secure way for their local communities, and they are offering face-to-face advice and healthcare on a walk-in basis. As well as delivering more than 1 billion prescription items a year, they have delivered healthcare advice at the rate of more than 48 million consultations a year. They have been a buffer for the NHS, helping their local communities and reducing pressure on other NHS healthcare providers.

The PSNC audit earlier this year, to be published this week, is fascinating. It says that 1.1 million informal consultations are taking place in community pharmacies in England every week. That comes to more than 58 million consultations a year. Every week, pharmacies provide advice on symptoms to more than 730,000 people. Nearly 38 million people per year—76% of pharmacy advice consultations—are people who have self-referred into the community, and 8.6% of those people seeking such advice said that they had been unable to access another part of the healthcare system. One in four informal consultations in pharmacies also involves advice and support relating to Covid-19. That means that 270,000 patients every week are seeking advice from pharmacies on Covid. Pharmacies giving advice save more than 2 million GP appointments every month, or 24 million every year. An additional 70,000 people would go to A&E or an NHS walk-in centre every week if they could not get advice from their local pharmacy.

Pharmacies, therefore, make a huge contribution. They can also make a contribution to the national Covid-19 vaccination effort. Some community pharmacies are already doing so, but all of this impressive work is at risk if they are not given adequate financial support. They cannot be expected to subsidise the NHS.

Work by the Company Chemists’ Association has shown that the community pharmacy sector is facing a real-terms cut in funding of more than 25% during the period 2014 to 2024. In 2016-17, funding for pharmacies was cut by more than £200 million a year, and, as a direct consequence, community pharmacies of all sizes have closed. We are now two years into the current five-year community pharmacy contractual framework, which was due for an annual review last year but which did not take place due to Covid. So the sector has been left, after those cuts, with a flat funding position for five years in a row, when the cost of service delivery continues to rise and the NHS prescribes more medicines year after year. We know that the additional cost of providing Covid-safe care has been significant. The sector has spent more than £400 million extra—out-of-pocket expenses—to sustain the service. The Government have provided some extra funding, but this falls way short of covering the full costs incurred.

The systematic underfunding of the community pharmacy sector, combined with the pressures to which I have referred, is putting many pharmacy businesses in a critical position. Many pharmacy owners are having to reduce services, opening hours or staff levels to cut down on costs. Large pharmacy chains have also announced significant cost-cutting and reorganisation measures over the past year. A study of independent community pharmacies found that 28% to 38% were in financial deficit already, and that this would rise to 64% to 85% without a funding uplift.

Already, we have also seen more than 400 net closures of pharmacies since funding cuts were introduced in 2016; 327 of them have been in the 30% most deprived areas. This has a knock-on effect on local high streets and potentially contributes to growing health inequalities. It is surely counterintuitive that we should have pharmacies closing in the middle of a pandemic—but without funding support, we expect more closures, which means more communities losing their primary link to the NHS.

The Government did provide £370 million in emergency funding loans to help pharmacies to stay open during the pandemic, in 2020. As I have explained, that money has been spent on covering the more than £400 million of NHS costs. Cash-flow modelling suggests many pharmacies cannot afford to pay back these emergency moneys. In summer 2020, HM Treasury made an initial offer on reimbursing pharmacy costs throughout the pandemic, but this was very constrained. Will the Minister tell us today whether the Government will write off the £370 million in advance payments that were made to pharmacies at the beginning of the crisis? I hope that he can bring a positive message. This would go some way to bridging the cost gap. Importantly, any shift to claw back this advance money from an already underfunded network will lead to further financial difficulties and potential closures.

I opened by describing some of the fantastic work done by community pharmacies. They are a critical part of the NHS and they have much more to offer to benefit patients, local communities and local healthcare systems. They are working with local GPs to roll out referrals from general practice, so that patients can get quick and convenient access to advice on minor illness, but they could do so much more. Over the coming months and years, pharmacies could really help on prevention, on levelling-up health inequalities, on identifying people with undiagnosed high blood pressure and other cardiovascular diseases, and on helping to tackle obesity and other health factors that have contributed to the UK Covid-19 death rate. They could provide enhanced community and public healthcare. I have already said that they could boost our vaccination effort and provide a first port of call to support GPs to return to pre-Covid activities. The new community pharmacy consultation service has the potential to enable pharmacies to meet the currently unmet need in urgent care, but it is currently failing due to a lack of engagement by, and referrals from, GPs and NHS 111.

It is very important that, in addition to providing financial support to the sector, the NHS trusts patients to know when their pharmacy is the right place for them to receive their care. Patients should be allowed to choose pharmacy as a place to receive their urgent NHS care. Part of the problem is that community pharmacy does not have a place around the table when it comes to the decision-making bodies at local level. I give notice to the Minister that I expect the NHS Bill, which we will see in the next Session, to put this right. We argued when the Bill went through that removing pharmacy from the boards of CCGs was a mistake. My goodness me, it has been a mistake.

Surely we should all come together to unlock the potential of community pharmacies and help the NHS get back on its feet as quickly as possible. I come back to funding: the current funding envelope for the community pharmacy network is unsustainable. We need to do better. The NHS could learn and benefit hugely from the pharmaceutical sector. I hope that this debate will encourage the Minister to take a much more positive look at what the sector can provide. I beg to move.

My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for introducing this debate. It is a most timely and important one. As I sat down to prepare my speech for today, I thought back to a year ago, and two places. One was the relatively affluent suburb of south London where I live. It is very fortunate. It has a major teaching hospital, a number of excellent primary care facilities and, if anything, an oversupply of pharmacies, both chain and independent. Contrast that to a small place up in Lancashire, where there is a district general hospital but where the GP services have not had any permanent staff for the whole population of a small town in over 15 years. The high street chain pharmacies there have bailed out and just one or two community pharmacies remain, and they are struggling.

From watching people at that time when it was not possible either to go to hospital or to a GP, I saw people visiting their local pharmacy services and relying on them. In south London they were very well served; up in Lancashire they were not. That is the important thing for the Government to recognise. We are talking about a sector that is both a key part of the front-line delivery of healthcare services but also, in part, part of the retail sector, which we know was under severe stress even before the events of the last year. It behoves the Government to take a strategic view of services for the public and to begin to work out exactly how we make sure that the population as a whole has access to this most important of services.

I am no Pollyanna about the pandemic. I do not take the view that there are any great silver linings. It was terrible. However, the pandemic has highlighted those things that are contributing factors to health inequalities as well as new ways of working for the NHS which we need to—and have shown in the last year that sometimes we can—adapt and accelerate at pace.

The important thing to understand is the unique role of high street pharmacies. They are not on the web. They are physical presences where people can go as a walk-in and talk to trained professionals. That, I believe, makes pharmacies a very significant part of the overall pattern of health provision, which I think may change. I think the way in which people will access GP services in future may change. However, we have to have some consistency and some understanding on the part of the public, who, by now, after a year, are very well versed in understanding how we best use the resources of the NHS and do not waste them but who really want to be sure that they can use pharmacy services and can rely on them to be there.

The all-party parliamentary group held an inquiry in 2020. We have known since 2016 that we have lost about 400 pharmacies, disproportionately in those poorest communities. In 2020 we found that the cost of staying open and offering services when other NHS services were under the cosh has had a disproportionate effect on pharmacies. Some 95% of independent pharmacies believe that they are under financial pressure. We really should not allow that to continue.

I also want to talk about the distinction between community pharmacies and the chains. Chain pharmacies have a difference that arises from their ability to operate at scale and that is very valuable. It is now the case that the majority of people with eye problems go to their opticians. I know that in this last year GPs were signposting people to go to opticians if they had minor eye problems; so, too, with audiology services and other services which are primarily being done in pharmacies rather than in the NHS. If that works effectively and efficiently for people, we should make sure that it remains.

I am the co-chair of the All-Party Parliamentary Group on Sexual and Reproductive Health. One of the biggest changes that we have witnessed during the pandemic is the change to telemedicine for women seeking abortion and access to contraceptive services. Data that has been subject to two different reviews—in Scotland and England—shows that that move has been extremely beneficial to patients. It has cut waiting times. It has enabled women to be seen much more quickly than they would otherwise have been. It has beneficial health outcomes. I know the Government are in the middle of a consultation but I hope that they will make that move permanent simply because it is in the best interests of the health of women and girls. I also hope that the Government will come through on the suggestion that we should make access to contraception much easier and allow young women to go to pharmacists and for that to be the primary route for accessing oral contraception but that the oral contraception should be free. We should not be cost shifting as we do that.

I want to make one other point. It has always seemed to me that one of the biggest barriers to integrated healthcare care at whatever level—acute, primary, community—is that of information and data sharing. I believe that if we are to make more progress on that—as I think has been hinted at or has been mentioned in passing in the White Paper—we need to come back to how data is shared responsibly across different providers so that we can enable people to have access to services without any leaking of their private data. I believe it is safer for people to have their data shared with NHS-approved pharmacists than it would be for them to seek other services on the web from unlicensed providers.

I want to echo the views of the noble Lord, Lord Hunt of Kings Heath: pharmacies have played a tremendous role this last year, but they cannot sustain it and continue to provide the services that they have. If we imagine that, this time next year, the NHS is again having to deliver a vaccination programme on the scale that it is now, it is impossible to think that pharmacies could continue to bring up the slack. So in the meantime, I back the noble Lord, Lord Hunt, in his request that pharmacies are not asked to return the £370 million that was put in on an emergency basis, and that, secondly, as a matter of urgency, we have a plan for integrating pharmacy services in a clear and thought-out way, proactively taking part in prevention and also enabling people to deliver emergency front-line telemedicine services to people who need acute access.

My Lords, I start by declaring my interest with the Dispensing Doctors’ Association, as in the register of Members’ interests.

I welcome the regulations before us this afternoon; the instrument makes a permanent change to broaden the existing arrangements for the supply of prescription items for pandemic disease or in other serious emergencies. As indicated by the Secondary Legislation Scrutiny Committee, there really are no downsides to this. The instrument

“allows specified medicines to be issued free of charge either on prescription or in response to a patient group direction (PGD), a pandemic treatment protocol (PTP) or serious shortage protocol (SSP) authorised by the Department for Health and Social Care.”

I welcome the opportunity to discuss the regulations before us. I also pay tribute to the role that community pharmacies have played in this regard—both generally and particularly during the pandemic. I would link to the role of community pharmacies the particular role that dispensing doctors have played. I once again ask my noble friend the Minister if, in the course of the afternoon, we could focus particularly on delivering medical care and pharmaceuticals in a rural setting, and ensuring that all aspects of rural life, including health policy, are delivered in a way which has clearly been rural-proofed.

I am delighted to join the noble Lord, Lord Hunt, and the noble Baroness, Lady Barker, in paying tribute to the role that community pharmacies play. But I would also like to pause for a moment and set out, as is referred to in the Explanatory Memorandum, the role that dispensing doctors have played. This is something of a lifelong interest for me because my late father was a dispensing doctor and my brother is a retired dispensing doctor. Dispensing doctors exist in rural areas because a pharmacy is not commercially viable. They date back to the time of Lloyd George and the National Insurance Act 1911.

It is important to appreciate that the income from dispensing cross-subsidises the medical service. Dispensing doctors do not have access to EPS—electronic prescription services—for their dispensing patients, over a decade since the system was introduced. That would seem to be a sign that perhaps rural-proofing in England is not working as well as it is in Wales, where they will be included for dispensing patients. Pharmaceutical needs assessment can place a dispensary under threat if a pharmacy application is made, unlike in Wales, where dispensing doctors are a full part of the pharmaceutical service, thanks to the Welsh department listening to the actions requested by the Dispensing Doctors’ Association.

Dispensing doctors are buying drugs in the same marketplace as pharmacies, yet their system of reimbursement and fees are different from community pharmacy. Despite this, as I understand it, NHS England and the department exclude dispensing doctors—in particular the DDA—from discussions on these matters. I ask my noble friend: why is that the case? The noble Lord, Lord Hunt, also mentioned that community pharmacies are excluded from these decisions as well. It strikes me that, immediately, the DDA, representing dispensing doctors and community pharmacies, should be at the table when these matters are discussed.

Most dispensing practices have vaccinated their patients against Covid as there is no scope for large centres in remote and rural communities. It is extremely difficult in areas such as sparsely populated parts of north Yorkshire for patients to access any such urban remote centre. Also, a lack of rural proofing harms rural communities. Primary care networks are being set up yet most dispensing practices are, in effect, their own primary care network given the large practice areas and dispersed populations that they serve.

As I mentioned previously, dispensing doctors are NHS GPs who are permitted to dispense medicines in designated rural areas where a community pharmacy is not economically viable. As I also said previously, dispensing practices use any profits that they make from the purchase of the drugs that they dispense to cross-subsidise the provision of the medical practice. That is often overlooked. There has never been any formal acknowledgement of this in England, although I understand that Scottish officials have done so before the Scottish Parliament.

In making the specific request to have regard the role of dispensing practices as well as community pharmacies in the dispensing of drugs under the regulations before us this afternoon, may I make a more general request to my noble friend that his department practise proper rural proofing? This will ensure that the work of, and reimbursement of, dispensing doctors in dispensing to their patients—often in rural, remote and sparsely populated areas—is properly addressed in the terms I have set out.

In that regard, I shall support the Motion to Regret before us this afternoon if the noble Lord, Lord Hunt, presses it to a vote. I hope that my noble friend the Minister will look sympathetically on the arguments I have made in favour of dispensing doctors specifically and the rural proofing of health policy more generally.

My Lords, as others have said, community pharmacies make a huge contribution to life in the UK. I support this narrow statutory instrument but I deplore the position in which so many pharmacies have been left.

Let us look at what community pharmacies do and what they could do. They already take a huge weight off GPs and the accident and emergency services, effectively providing a triage service in many cases but often dealing with the problem all the way through. They provide emergency out-of-hours services, particularly for those who are terminally ill and need special medication, perhaps at night when other services are shut. They provide screening services, which are essential if we are to keep our population on the right side of healthy. They deal with minor ailments. They provide obesity management, which we all know is absolutely crucial for the future. They also provide phlebotomy, taking quite a lot of the effort of blood tests out of hospitals, which are so overstretched at the moment. They can provide stop smoking clinics; again, these are essential for modern life, where we need to kill tobacco before it kills people.

As we have seen in the past 18 months, pharmacies can also provide vaccination services. This is going to be increasingly important because it appears that vaccination is going to be not a matter of getting through this particular Covid epidemic but an annual event. We will need all the vaccinators we can find. How much more could our community pharmacies do?

If ever we are to see the combination of health and social care that has long been seen as the holy grail for a healthy, comfortable and happy society, community pharmacies must be a crucial part of it. They can straddle the ground where local government and the NHS meet. They can broker understanding and they can broker solutions, to make it sensible, convenient and comfortable for people to live in the community, rather than being sidelined in homes. But what is happening to those pharmacies? The EY report published last September, commissioned by the National Pharmacy Association, found that the current network in England is

“unsustainable under the current financial framework”.

EY projected that by 2024, 72% of pharmacies will be in deficit, with an overall shortfall to the sector of £43,000 on average to each pharmacy and concluded that no industry is sustainable with so many operators in default. Already 28% to 30% are in default and, according to the survey, 52% are planning to sell their businesses. If the businesses are in deficit, there will not be people queueing up to buy them, yet a hit of 52% to our network of community pharmacies would be completely disastrous. The National Pharmacy Association, which commissioned the survey, called on the Government to take a “public interest focused safeguards” approach against the pharmacy network collapsing. Can the Minister commit to re-examining the funding model with that public interest safeguard central to the thinking?

Pharmacists undergo long training and bring vast medical expertise to their dispensing role, but they dispense far more than just medicines. They are there to provide advice and they offer humanity. For many elderly people, the visit to the pharmacy is one of the major points of contact with human beings during their week. They provide centres for communities. In many cases, they are core to the continued survival of a viable high street.

We have seen so many shops closing due to Covid and not reopening. The trend was already under way with internet shopping, but it has been exacerbated by the virus. In many cases, however, the community pharmacy continues to draw people into an area and therefore provide footfall to sustain the other shops and cafés which bring life to an area. They do not have the type of footfall that appeals to the major chains. In many cases, the major chains have a business model that depends on large sales of make-up, toiletries, photographic equipment—you name it. That is what keeps them trading, while the pharmacy just draws a few extra customers into the business. However, the pharmacies that are hubs to so many communities have only minor add-on sales. They are at the heart of the communities because they provide an essential service to the people who live locally. If those streets are to survive, they need the pharmacies to survive.

Therefore, while I support this statutory instrument, I also support the call from the noble Lord, Lord Hunt, for the Government to re-examine the funding and to make a short-term £350 million improvement to the way these pharmacies survive; otherwise they will simply die in front of us, and we cannot afford to see that happen. Already, the Government have indicated that they would prefer to use a firm such as Greensill to provide these pharmacies with the speedy payments that they need, rather than speeding up the payment itself. So many pharmacies had to opt to use that service because they needed the cash flow immediately and could not wait for the Government to pay their bills. Those who have tried to sign up since the middle of March have been unable to. Therefore, my final question not the Minister is: can he undertake to ensure that the Government pay pharmacies promptly for the service that they provide, so that they do not have to resort to external factors to get their money on time?

My Lords, I thank the noble Lord, Lord Hunt, for tabling this regret Motion. I echo his opening remarks about supporting the principles set out in the regulations, but proper resources are needed.

We on these Benches thank the All-Party Pharmacy Group, the Company Chemists’ Association, the Pharmaceutical Services Negotiating Committee and the Library for their excellent briefings. I personally want to thank my local community pharmacy for the wise advice that it provides for my community and its ability to provide excellent services over the last 14 months, since the start of the pandemic.

A bit of housekeeping first: I note with regret that this instrument breaches the 21-day rule and its provisions came into force on 1 March 2021. The noble Baroness, Lady Thornton, and I often say to the Minister: when will this urgency rule change? I understand that there are some issues about really urgent statutory instruments coming in on time, but this one should have been advertised in advance and ready for us to debate before it came into effect. Is it so inconceivable to think that, a year into the pandemic, we might have wanted to plan for a place to redistribute new medicines urgently? The Government are far too reactive, and they really need to plan. So how have the Government been working with pharmacies throughout the last year on this issue?

It is interesting to note that the Explanatory Memorandum says that the 2021 regulations also make changes to existing legislation on the obligations of different types of pharmacy. As a result, certain types of providers of community pharmacy services will be required to provide a home delivery option for patients with specific prescription items in a pandemic situation free of charge. We have heard from a lot of community pharmacies that are struggling financially, and they may not have the ability or finances to set up a delivery system of that kind. So how are the Government working with pharmacies to ensure that they have the proper resources to deliver medicines to vulnerable patients?

I believe we all recognise that community pharmacies play a vital role in their local areas—often extremely local—which gives them the ability to reach right into the communities, something that is much harder for many other healthcare providers to do. Whether they are in a town centre, a member of a large pharmacy chain or a family-owned pharmacy at the heart of their village or ward community, our pharmacies are an essential tool in reaching everyone. However, we need to note that since 2016 we have lost 400 pharmacies —perhaps not surprisingly, disproportionately from the poorest communities with the largest health inequalities, as my noble friend Lady Barker so movingly described. Thinking about the Government’s focus on health inequalities, community pharmacies in those areas absolutely need the right resources.

The All-Party Pharmacy Group ran an inquiry last November that included a survey of just over 1,600 pharmacy professionals in England and called for written and oral evidence. It found that the cost of staying open throughout the pandemic and offering services when other NHS services were reduced or halted resulted in staff burnout and rising debts. We hear a lot about nurses, doctors and front-line hospital staff but we need to recognise that other healthcare professionals have faced that same burnout.

Nearly half of pharmacy contractors think that their pharmacy is at risk of closing within the year. More than nine out of 10 feel that their place of work is under financial pressure, and over nine out of 10 feel that the Government do not appreciate the role of pharmacies in front-line healthcare. Pharmacies dispense 1 billion prescriptions a year and gave more than 2 million flu vaccinations last winter. Pharmacists are highly trained healthcare professionals, and their pharmacies are the front door of the NHS for many people who may be too scared or just do not know where to take their health issue.

Pharmacists deliver advice via 48 million consultations a year, taking vital pressure off our GP surgeries, urgent care centres and accident and emergency services, as outlined by the noble Baroness, Lady Wheatcroft. They have also moved with the digital times with a confidence and ease that some other parts of the NHS might perhaps envy—for example, with electronic prescriptions sent from surgery to pharmacy and digital notifications letting the patient know when they can collect their prescriptions. During lockdown, they have worked with volunteers to deliver prescriptions to people who cannot leave home, whether they are shielding, self-isolating or quarantining. More importantly, their Pinnacle database was used by the NHS to record Covid vaccines delivered, and then linked back to NHS records. It is very welcome that our pharmacists had an effective system, and that the Government, for once, recognised that it would be faster and more effective to use an existing system. I hope that joint working is symbolic of the esteem in which the Government and the NHS hold our pharmacies.

They have done all this without complaining, repeatedly finding ways to make things happen, especially in the last year, and we know that they are trusted by their customers. However, overwhelming financial pressures are causing them serious concern. As we have heard, many pharmacies are being pushed to the brink of closure. An EY report published last September made it absolutely plain that the community pharmacy network is unsustainable under the current financial framework, predicting that, without any change, 72% of pharmacies will be in deficit by 2024, with a network-wide deficit of just under £500 million.

These financial projections were based on figures that predated the pandemic, which has undoubtedly put further pressure on pharmacies. This extra pressure means that nearly half our community pharmacists believe that their pharmacy is at risk of closing within the year. The problem is that the regulations take no account of these circumstances. Can the Minister tell us when the Government and the NHS will consult with pharmacists so that they have a clear picture of what is happening? When will the Government and the NHS turn that into urgent recommendations for structural financial change? Enhanced resources would make sure that pharmacies are able to be at the heart of any health reforms that the Government wish to announce following their White Paper. Will the Government look specifically at providing resources for training pharmacists to deliver the new community health services that Ministers refer to so frequently?

At this difficult time, pharmacies are also being asked to pay back the advanced funding provided by the Government to help deal with the extra demands relating to Covid-19, but we know that much of this funding did not even cover the extra costs that pharmacies have had to bear. With their other financial problems, as already outlined, plus extra costs not supported by government, many pharmacists will not even be able to make these repayments. If the Government do not relax the repayment timing—or, better still, turn these loans into grants—forcing repayments now may force pharmacies into closure. That would be catastrophic, and a heavy burden for any Government to bear, especially one that has dished out billions of non-repayable grants to many other small businesses, which is what most of our community pharmacies are.

The pharmacy sector is willing and able to step up and help transform health services. The Company Chemists’ Association said on publication today of the Government’s White Paper:

“We hope the proposed changes in this White Paper will create an environment that allows the community pharmacy sector to do more to help relieve pressure within the rest of the NHS. With waiting times for hospital treatment at their highest for ten years, community pharmacies are needed now more than ever to provide patients with clinical care, close to home.”

It went on:

“However, to deliver on this, pharmacies need fair funding for both the services they currently provide and for any additional workload they are ready and willing to deliver.”

Along with the noble Lord, Lord Hunt, I welcome the principles behind these regulations but, without appropriate support and resources, the Government are setting our pharmacies up to fail—something no one in Parliament or government wants to happen. I look forward to the Minister’s response.

Like my noble friend Lord Hunt, I welcome the purpose of the 2021 regulations, as community pharmacies are contracted and commissioned in England under the national community pharmacy contractual framework, which sets out the services that need to be provided, how quality is assured and other expectations, such as safety.

As has been said, the CPCF is negotiated nationally between NHS England and NHS Improvement, the Department of Health and Social Care, and the Pharmaceutical Services Negotiating Committee. As has also been said, the latest CPCF runs from 2019-20 to 2023-24, but it has not been able to be reviewed, due to Covid. It makes it easier for pharmacies to dispense certain medicines under specific circumstances. If those medications to help treat coronavirus outside hospitals are found, the regulations aim to allow them to be dispensed in such a way as to maximise take-up—this must be the right thing to do.

Community pharmacies makes up one of the four pillars of our primary care system in England, along with general practice, optical services and dentistry. They must often feel that they are the poor relation—the wonky leg on this particular table, perhaps. I will not list all the contributions that they make to our primary healthcare system because that has been adequately covered by many speakers—in fact, all of them, in different ways—in this debate. They are an important feature and fixture on our high streets, in our rural communities and, often, in our supermarkets.

When Covid struck, community pharmacies did not close; they stayed open and served their communities. They continued to deliver medication to people who could not leave their homes. They have been a huge asset to our NHS throughout this whole period; they have been vital. We depend on them at a local level, in both rural and inner-city communities; as people have said, their expertise saves hundreds of thousands of GP and hospital visits. Indeed, the Government have encouraged people to go to their pharmacy before they do anything else—quite rightly.

I support the housekeeping point made by the noble Baroness, Lady Brinton, about the instrument breaching the 21-day rule, with its provisions coming into place before that. The noble Lord knows that a bit of forward planning would be appreciated, but I do not deny it is clear that, because of the rollout of the vaccine, it was necessary to ensure that no one paid for their vaccine, or any treatment in another pandemic situation, to support the maximum take-up of treatment.

However, why would the Government underfund and behave in such a fashion as to undermine and put at risk these businesses? That is the basis for my noble friend’s regret Motion. I have a further question about the uncertainty over the hub and spoke proposals that were in the recent MMD Act: does the Minister have an update on how implementation work is progressing and when we can expect the consultation process to commence?

I finish by asking three questions. Can the Minister advise the House when community pharmacies can expect a final decision on the reimbursement of their extra Covid costs? Like the noble Baroness, Lady Wheatcroft, I agree that the likes of Greensill are not an answer to this. Can the Minister explain why the NHS is refusing to increase investment in community pharmacies to support the NHS? Given the vital role they play, as everybody has acknowledged in this debate, they need certainty about their ability to play their full part in tackling the Covid healthcare backlog, for example. Finally, would the Minister willing to meet me, my noble friend Lord Hunt, other noble Lords, and representatives of pharmacy associations, for instance the Company Chemists’ Association, to discuss long-term funding for this sector?

My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for tabling the Motion on this topic. I also take this opportunity to express our profound thanks to community pharmacies. The noble Lord, Lord Hunt, put it extremely well. They are an absolutely key part of our NHS family, and they have risen monumentally to the many challenges brought by this pandemic. Community pharmacies adapted early to working in a Covid-secure way. As has been noted earlier, they stayed open and continued to serve their communities by providing vital pharmaceutical services, typically one billion prescriptions per year. My noble friend Lady McIntosh put it very well; they absolutely stepped up when needed, including by opening on bank holidays, implementing a medicines delivery service and, more recently, as part of the Covid-19 vaccination programme and the lateral flow distribution service Pharmacy Collect.

Pharmacies are a trusted resource at the heart of our communities, an easily accessible part of the NHS, and are highly rated by the public. I am saddened by the Motion which expresses regret that the National Health Service (Charges and Pharmaceutical and Local Pharmaceutical Services)(Coronavirus)(Amendment) Regulations 2021 do not address the funding problems faced by community pharmacies. This statutory instrument amends existing legislation to ensure that if a treatment for Covid-19 or another pandemic disease is identified as suitable for use outside hospitals, it can be accessed easily and by as many people as possible without needing to pay a prescription charge or to go to a pharmacy. I assure the noble Baroness, Lady Brinton, that pharmacy contractors will be remunerated for the services in question. Fees for these services, as always, are subject to negotiations with the Pharmaceutical Services Negotiating Committee.

Noble Lord will recall, I hope, that in July 2019 a landmark five-year deal was agreed with the sector—the community pharmacy contractual framework. This deal commits almost £2.6 billion each year to community pharmacy. It is a joint vision of the Government, NHS England and the PSNC for how community pharmacy will support delivery of the NHS long-term plan. Over the period of the five-year deal, community pharmacy will be more integrated into the NHS, deliver more clinical services and become the first port of call for many minor illnesses. This will take pressure off other parts of the NHS, as has been noted by noble Lords. Good progress is already being made on this journey. For example, since 2019 NHS 111 has been able to refer patients to a community pharmacist for minor illness or for the urgent supply of a prescribed medicine. At the end of last year, we extended the service to GP surgeries, which can now also formally refer patients to community pharmacy for consultation. We are exploring extending this service to other parts of the NHS. We also recently introduced the discharge medicine service, enabling hospitals to refer discharged patients to a community pharmacist for support with their medicines. I expect more services to be introduced in the new financial year.

I am very well aware of the pressure that community pharmacists are under, like much of the NHS, particularly during the pandemic. Throughout the pandemic, the Government have worked with community pharmacy, putting in place a comprehensive package of support for the sector. Most community pharmacies have been able to access general Covid-19 business support, including business rate relief, and retail, leisure, and hospitality grants. We estimate that community pharmacies have had access to some £82 million in grants.

We have provided extra funding for bank holiday openings and the medicines delivery service for shielded patients and a contribution towards pharmacies adopting social distancing measures. We have provided personal protective equipment free of charge; this provision has just been extended to March 2022. We have also reimbursed community pharmacies for PPE purchased previously. We have provided non-monetary support, such as the removal of some administrative tasks, flexibility in opening hours, support through the pharmacy quality scheme for the sector’s response to Covid-19 and the delayed start of new services.

Between April and July 2020, a total of £370 million in extra advance payments was made to support community pharmacies with cash-flow pressures due to Covid-19. These cash-flow pressures were caused by several issues, including a sharp increase in prescription items in March and April 2020, higher drug prices, delayed payments from the pharmacy quality scheme and extra Covid-19-related costs incurred by the sector.

Acting quickly and providing the sector with £370 million in extra advance payments helped alleviate immediate cash-flow concerns. It also gave the Government time to address the causes of the cash-flow pressures. I hear the calls from the noble Lord, Lord Hunt, for the Government to write off this money and for further financial support for this valued sector, but our healthcare system is under huge financial pressure. We do not have a limitless supply of funds, so I cannot make the commitments he asks for.

I reassure my noble friend Lady Wheatcroft that community pharmacies have been paid for the increased items they dispensed. Reimbursement prices have been increased to reflect higher drug prices, and payments have been made under the pharmacy quality scheme. However, the department is still in ongoing discussions with the PSNC. To reassure the noble Baroness, Lady Thornton, these will cover the reimbursement of Covid-19 costs incurred by community pharmacies. I reassure noble Lords that the Government will take a pragmatic approach. I expect any agreed Covid-19 funding to be deducted from the £370 million of advance payments to be recovered from community pharmacists.

As my noble friend Lady Wheatcroft put so well, in England the 11,192 community pharmacies have played and continue to play a vital role in the response to the pandemic. We need community pharmacies to be financially sustainable to continue to do so, whether for everyday care or in emergencies. I am aware of concerns that the current funding is not enough. The department wants to work with the sector to look at this in more detail.

I have absolutely heard the concerns of the noble Lord, Lord Hunt, about pharmacy closures. I reassure noble Lords that we are monitoring the market very closely. Our data shows that, despite the number of pharmacies reducing since 2016, it must be recognised that there are still more pharmacies active today than there were 10 years ago. Proportionally, the closures reflect the spread of pharmacies across England, with closures tending to be where pharmacies have clustered. We monitor these closures closely. In the most recent 12 months we have data for, we saw that three-quarters of the closures were of pharmacies that were part of large chains. This data aligns with the consolidation announcements by those large chains before the Covid-19 pandemic.

Government data also shows that the increase in homeworking during the pandemic has led to a change in the pattern of pharmacy use, with more people making use of community pharmacies local to where they live. It is important that we protect this access to pharmaceutical services. Therefore, our pharmacy access scheme protects access in areas where there are fewer pharmacies and higher health needs so that no area is left without access to local, physical NHS pharmacy services.

We are about to begin negotiations with the PSNC over service developments for this financial year, having recently shared our proposals. They are confidential negotiations; I will update Parliament once they conclude.

The past year has been extraordinarily challenging for the NHS, including for community pharmacies. They have risen splendidly to the many challenges brought by the pandemic and have shown great resilience. We expect 2021-22 to be the year in which we recover from the pandemic and build on the work already achieved in the previous two years of the five-year deal. Our plans and proposals take the impact of Covid-19 on the sector into account, in terms of both the challenges and the opportunities the pandemic has presented.

In response to the questions from the noble Baroness, Lady Brinton, on the current negotiations, I reassure her that the upcoming negotiations between the department, supported by the NHS, and the PSNC are the opportunity for the sector to raise concerns and discuss what can realistically be achieved. When we talk about the funding of community pharmacy, it is important to recognise that Covid-19 is also an opportunity for it. I completely agree with the noble Baroness, Lady Barker, on the new ways of working. The pandemic has shown us the value of our incredibly highly skilled community pharmacy teams, and how they can contribute more and receive more funding as a result.

For instance, we commissioned community pharmacies to operate the medicine delivery service for shielded patients. This has been vital to help ensure that the vulnerable in our communities continue to receive their medicines safely. This has since been extended to people who are self-isolating. Another example is that we have delivered our biggest vaccination programme ever because of Covid-19; community pharmacies have vaccinated more people than ever before. Some 300 pharmacy-led Covid-19 vaccination sites are currently live and we are, of course, considering the important role that community pharmacy can play in future phases of the programme. In addition, community pharmacies are now offering a lateral flow distribution service, Pharmacy Collect, making those tests readily available at pharmacists across the country. It is proving extremely popular. These are examples of how community pharmacy is supporting the fight against Covid and how the Government are making better use of the clinical skills of pharmacists, while giving community pharmacies an opportunity to generate more income above the £2.6 billion per year in the five-year deal.

In conclusion, this Government completely understand the value of community pharmacies and this Minister most definitely does. With four children, I am utterly dependent on the Nashi Pharmacy on Westbourne Grove by day and the Bliss Pharmacy at Marble Arch by night. I pay personal tribute to the thoughtfulness and clinical insight of those important resources.

I understand the noble Lord wanting to use every opportunity to raise this important issue and to ensure that community pharmacies are adequately funded. This issue was debated in the House of Commons only last month. I can reassure noble Lords that the Government have heard the concerns expressed today. We are committed to working with the sector on a sustainable funding model for all community pharmacies. We are about to enter negotiations with the sector about what it can deliver this year. I hope that this reassurance is sufficient for the noble Lord to withdraw his Motion.

My Lords, this has been a very good debate. I am grateful to all noble Lords, and the Minister, for their interesting contributions. Although this was essentially about the funding of community pharmacy, the huge contribution that it makes—and can make in the future—became very apparent in this debate. I hope that this is what will draw us together.

The noble Baroness, Lady Barker, drew an interesting distinction between provision in south London and that in south Lancashire. The irony is that it looks as though community pharmacies are most vulnerable in the most deprived areas and we really have to deal with this.

I was interested in what the noble Baroness, Lady McIntosh, had to say about dispensing doctors. When I was the Minister responsible for community pharmacy 20 years ago, we established a joint committee, between the PSNC and the BMA, of community pharmacists and dispensing doctors, to try to resolve some of the tensions. I am not sure whether we succeeded in doing that, but I echo the noble Baroness’s comments about the role of dispensing doctors.

I also thought that the noble Baroness, Lady Wheatcroft, gave an interesting analysis of the financial challenge facing the sector. She and the noble Baroness, Lady Brinton, referred to the EY report. What she said about the general impact that community pharmacy has on high streets was very important and we should not forget it.

We should also not forget what the noble Baroness, Lady Brinton, said about the unsustainable financial framework for many community pharmacies at the moment and the Government’s consultation and recommendations for structural financial change. I also echo what she said about resources for training pharmacists in new services.

In her winding, my noble friend Lady Thornton made the important point that community pharmacies did not close; they carried on and were of huge benefit to us. That is why it is so frustrating that there are so many local examples of where the NHS does not see the potential of community pharmacy. I come back to what I said earlier about the need to ensure some kind of statutory provision for community pharmacy representation around board tables, at local level. You could say the same for opticians and dentists; all too often, they are neglected by the decision-making bodies. When we no doubt come to debate these matters on the Queen’s Speech, in a couple of weeks, I hope we come back to the structure of the future NHS that the noble Lord wishes to bring us.

The noble Lord, Lord Bethell, chided me a little, I think, about using this SI as a way of raising general issues, but what are we to do? We have largely been deprived of Questions for Short Debate over the last year, and I am afraid that this SI is an excellent vehicle to raise more general issues. I have no problem whatever with the SI before us. I am grateful to the Minister for saying that he has heard my concerns and that there are discussions and negotiations going on, and that he will report back to us. But—and it is a big “but”—there is a tremendous risk that we will undermine the very fabric of community pharmacy unless we take action, which is what I urge on the Government. Having said that, I beg leave to withdraw my Motion.

Motion withdrawn.

House adjourned at 6.47 pm.