Tuesday 22 June 2021
The Grand Committee met in a hybrid proceeding.
Arrangement of Business
My Lords, the hybrid Grand Committee will now begin. Some Members are here in person while others are participating remotely, but all Members will be treated equally. I ask Members in the Room to respect social distancing. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes. The time limit for debate on the following statutory instrument is one hour.
Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) (No. 2) Order 2021
Considered in Grand Committee
My Lords, with a bit of déjà vu and humble apologies, I beg to move that this Committee do consider the draft order. It was laid before Parliament in May and is made in exercise of the powers conferred by Section 141 of the Nationality, Immigration and Asylum Act 2002. The draft order is a technical one that corrects drafting errors in an earlier instrument; namely, the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2021, which I shall refer to as the earlier order.
The earlier order was debated and approved by both Houses. It aligns the juxtaposed controls regime at the seaports of northern France with the regime in operation at Coquelles for the Channel Tunnel shuttle service and at the Eurostar rail terminals in France, Belgium and the Netherlands. The earlier order replicated the legislative approach taken at the other juxtaposed control locations and enabled all UK immigration legislation to be applied in the UK control zones at the ports of Calais and Dunkirk.
The UK operates border controls at specified ports in France. This allows Border Force officers to conduct checks on passengers and freight destined for the UK. It is a reciprocal arrangement, with French officers completing entry checks at certain ports in the UK on passengers and freight destined for continental Europe. Currently, Border Force conducts juxtaposed immigration controls at the ports of Calais and Dunkirk, with French Police Aux Frontières undertaking Schengen entry checks at the UK port of Dover prior to travel.
The juxtaposed controls in Calais and Dunkirk are provided for at an international level by the 2003 Le Touquet treaty. This was put into effect in the UK by the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003, which I shall hereafter refer to as the 2003 order. The earlier order amended the 2003 order to grant UK Border Force officers working at the juxtaposed ports of Calais and Dunkirk the full range of immigration powers currently available to them under the immigration Acts, and made the necessary modifications to other enactments to ensure that UK immigration controls could function properly in Calais and Dunkirk.
This instrument corrects drafting errors contained in the earlier order relating to modification to Section 2 of the UK Borders Act 2007, which makes provision for the detention at ports power. I shall refer to this as the 2007 Act hereafter. For clarity, the detention at ports power allows suitably trained and designated Border Force officers to detain an individual of any nationality that the officer believes may be liable to arrest pending the arrival of the relevant law enforcement authority.
This instrument makes the necessary amendments to the earlier order and the 2003 order to do two things: first, to make it explicitly clear that the 2007 Act has been extended to the juxtaposed seaports and, as necessary, modified for the purposes of those controls. This instrument reverses a formatting error that set out the modification to the 2007 Act as a stand-alone article rather than a provision to be inserted into the 2003 order. Secondly, to account for recent legislative changes resulting from the end of the transition period reflecting the UK’s departure from the EU, this instrument corrects two further, purely technical minor errors in the modification to the 2007 Act.
To be absolutely clear to the Committee, this instrument does not change the policy content of the earlier order, nor does it make any new changes to the juxtaposed seaports regime. It simply corrects minor drafting errors contained in the earlier order to ensure that the effect of that order is explicitly clear. Again, I must apologise unreservedly to the Committee for the original errors having been made and for the imposition that the correction of these errors is making on it, but it is important they are corrected so that the law is absolutely clear.
My Lords, I thank my noble friend for setting out the simple purpose of this order and for her gracious apologies. It is a straightforward matter to correct a formatting error and to clarify the earlier order, and it is clearly necessary; of course, I support that totally. I further appreciate that this order does not alter any policy content and, like the previous order, is not Brexit-related.
I would like to take this opportunity to ask my noble friend about the state of immigration controls in the area of the Channel Tunnel, particularly in the time since the earlier order came into effect, which I believe was at the end of March this year. The earlier order was considered by your Lordships’ House on 2 March 2021.
That order was approved against a background of considerable pressure on the United Kingdom’s borders. Can my noble friend update the Committee on the current situation? Is the pressure any less than it was earlier in the year? Does she have any statistics on the number of incidents at the seaports of northern France involving UK Border Force officials? Further, what do the statistics show about the new powers that were conferred by the earlier order in relation to immigration controls at those seaports of northern France—namely, Calais and Dunkirk? This debate on the amending order provides us with the opportunity of reassurance, hopefully backed up by evidence, that the new powers that were conferred have been useful and indeed necessary in our control of immigration at those ports.
Can I ask my noble friend about the position elsewhere along the east coast of the United Kingdom? I appreciate that this is not within scope of the order, or indeed the earlier order, but to what extent is there similar pressure at Harwich, Felixstowe, Hull and so on, and Aberdeen for that matter, on our immigration controls?
Finally, and again very tangentially to this order—but I have given advance notice of this to my noble friend, which I hope she has received—perhaps I may ask about the future of the Eurostar service. To what extent is that secure? It would be good to hear from my noble friend on this important issue. If she does not have the details to hand, I would be glad to receive a written response to that question.
My Lords, this SI has been prepared by the Home Office. It clarifies a provision in the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2021 relating to the detention at ports power.
Section 141 of the Nationality, Immigration and Asylum Act 2002 permits an order to be made to provide for a law of England and Wales to have effect, with or without modification, at a juxtaposed control at an EEA port. Pursuant to this, the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003 was made. At present, the juxtaposed controls locations governed by the 2003 order are those at the ports of Calais and Dunkirk in France and, for the French authorities, at the port of Dover in the UK. These juxtaposed controls are provided for under the Le Touquet treaty of 2003.
The order in 2003 did not follow this model and, instead, stipulated a list of specific immigration enactments to be extended to the control zones in French seaports. To align the operation of controls across all juxtaposed locations in line with the operation of controls across the UK, the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2021 amended the 2003 order to extend all current immigration enactments, without specificity, to the seaports—
My Lords, I am sorry to interrupt the noble Lord, but he is simply reading the Explanatory Memorandum, which all noble Lords have. If he has some points to make or questions to ask of the Minister, if he might move on to those, that would be appreciated, I think.
My Lords, I thank the Minister for explaining the order. When we debated the substantive order that this order amends on 2 March this year, I complained about the original order’s length and complexity. In her letter dated 20 May to Peers who contributed to that debate, the Minister apologised for the mistakes in the original order. I do not wish to add to her embarrassment, but it reads:
“I am acutely aware of the pressures on Parliament over the past year as a result of the pandemic and EU Exit, and apologise unreservedly for these errors. I can assure you that the department has reviewed its internal processes and has taken proactive steps to prevent such errors from occurring in the future.”
I am acutely aware of the pressures on the Minister over the past year, but we have arrived at a situation where secondary legislation is being neither properly drafted nor properly scrutinised by Parliament.
At the end of her closing statement in the debate on 2 March, the Minister said:
“I hope that I have answered noble Lords’ questions as far as I can today. I will write to noble Lords if I have missed anything out.”
The Minister neither answered my questions at the time —I have read the Hansard of that debate—nor has she written to me as promised, as far as I can ascertain from searching my inbox, as such letters are now delivered only electronically. Specifically, I asked:
“According to the Explanatory Notes, one part of these regulations is to reconcile the regime at the juxtaposed-control seaports in northern France with that for international rail services via the Channel Tunnel. The other part, Article 2, extends all immigration enactments to control zones in France and makes the necessary modifications to other enactments to ensure that UK immigration controls are able to function properly in those control zones.”
But I asked about Belgium:
“Why not Belgium? Are there no international agreements between us and Holland? What steps are being taken to extend arrangements to Belgium and Holland?”
I further asked
“if the arrangements are entirely reciprocal, there appears to be”—
the possibility of—
“double jeopardy where a person could be committing an offence under both British and French law. For example, someone who assaults a French official in a control zone in the UK could be prosecuted both in the UK and in France, were the French to have equivalent legislation to these regulations. If that were the case, who would have precedence in terms of prosecution? Would it depend on whether it was a French national or a British national”
who was the perpetrator?
My concern is enhanced by the addition of Article 12(7) to the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003, which states:
“Any jurisdiction conferred by virtue of this article on any court is without prejudice to any jurisdiction exercisable apart from this article by any French court.”
There was no response. I then asked:
“The regulations appear to significantly expand the enactments having effect in a control zone in France from a specific and limited number of enactments in the 2002 order to all immigration control enactments; the Minister explained that the remit of Border Force officers has expanded since 2002. Even if that is necessary and proportionate, for the sake of clarity should the regulations list those immigration control enhancements so that people know exactly what they are subject to?”
There was no reply.
I also asked:
“The regulations appear to remove the protections provided by the Data Protection Act in relation to data processed in a control zone in France in connection with immigration control. Why is that necessary and proportionate?”—[Official Report, 2/3/21; cols. 1103-09.]
There was no answer.
This is what Parliament has been reduced to. The Government are making mistakes in the drafting of legislation, regulations are so long and complex that it is difficult for parliamentarians to properly scrutinise them, and even when we get the opportunity to hold the Government to account, our questions are ignored, as they were today on the Statement regarding the Daniel Morgan case. I will regret these regulations when they are tabled for approval on the Floor of the House, and I will tell the House why.
This order corrects errors in the earlier 2021 order of the same name, which we discussed in the House on 2 March. That earlier order extended the current immigration enactments, relating principally to detention at ports powers, including the power to use reasonable force, applicable already to the Channel Tunnel route, to the juxtaposed controls at the ports of Calais and Dunkirk. However, the earlier order set out the required modifications to the UK Borders Act 2007 as a stand-alone article rather than a provision to be inserted in a previous order from 2003, which is needed to modify relevant immigration enactments to ensure that the juxtaposed controls in Calais and Dunkirk operate correctly.
This order we are now debating rectifies the situation and incorporates two additional minor changes. I thank the Minister for her letter of 20 May 2021 explaining the background to, and necessity for, this further order. Can the Minister spell out the actual consequences to date of the earlier order being defective in its drafting? Have powers been used for which it now turns out there has been no proper statutory authority, or has it meant simply that the introduction of the powers in the original order has been delayed? If the new powers on reasonable force have been available at Calais and Dunkirk, on how many occasions have they been used since they came in?
In her letter, the Minister said that
“the department has reviewed its internal processes and has taken proactive steps to prevent such errors from occurring in future”.
Does that mean that the error that did occur was as a result of a deficient process or failure to adhere to a process, rather than being a straightforward mistake or oversight?
In our debate on the earlier order on 2 March, the noble Baroness, Lady Gardner of Parkes, said that she found herself
“perplexed that the legislation governing borders and border control is spread across such a great many statutory instruments … It is just the sort of legislation that frustrates parliamentarians—and others, presumably—because it relies on so many statutory instruments, orders and regulations, rather than the primary piece of legislation, to introduce the rules.”—[Official Report, 2/3/21; col. 1101.]
I doubt that the noble Baroness would have imagined that her point would be substantiated so powerfully and so quickly by the very fact of our being back just three and a half months later to debate yet another order rectifying an error in the original order of March.
The Explanatory Memorandum to the original order, which this order amends, said:
“Impacts will be monitored through regular collection and analysis of … force data as well as the existing internal review system.”
What exactly are the impacts that will be monitored, and how will the Government assess the impact of this change, in respect of the use of reasonable force, on national security? How many people have been refused entry to the UK coming through French northern Channel ports in the first three months of this year compared with the first three months of last year? Is it expected that this further order, amending the original order, will have any impact on the number of people entering the UK without authority through the northern French ports and any impact on the quantity of goods entering this country that should not be doing so?
What does a power to use “reasonable force” mean in practice? Where Border Force officers on Channel crossing routes already have the powers, on how many occasions per week or per month on average do they have to use these powers? Are Border Force officers who can use reasonable force also armed officers or are they ever armed officers?
Will enabling Border Force officers to use “reasonable force” at the northern French ports mean that fewer officers will need to be deployed or will the change provided for in this order have no impact on staffing levels? Have concerns been raised by the French authorities that our Border Force officers at the northern French ports not having sufficient powers in relation to “reasonable force” increases the workload and the responsibilities of the French authorities?
There are a number of issues affecting our borders and Border Force personnel that the Government have yet to get a grip on, a couple of which I want to raise briefly. Kent County Council has been warning the Home Secretary for some time of its inability to cope with the number of unaccompanied children arriving into its care. Where are the safe routes to replace both Dubs and Dublin III? The removal of safe routes, without replacement, will simply encourage more vulnerable people to seek to enter the UK by irregular routes. While the Government are correcting mistakes today, could they also give us an update on safe routes for unaccompanied children in Europe?
The Government have gone back on an election commitment by cutting their international aid provision. That will do nothing to solve the refugee crisis which leads to people being forced to leave their own homes and seek refuge elsewhere, including by arriving at our own borders. While the Government are looking again at the powers needed at our own borders, will they also take heed of the warnings, including from many Members on their own Benches, of the impact that our aid policy has around the world?
I trust the Government will address the points and questions that I and other noble Lords have raised in their response. One would like to think that this order and the original order will improve national security in a meaningful, necessary and measurable way, and that the orders are not just about either ensuring uniformity across juxtaposed control locations for the sake of it or the Government pursuing other policies which are likely to make the need to used “reasonable force” more likely than ever.
My Lords, I thank noble Lords who have spoken in this debate. My noble friend Lord Bourne asked about illegal migration at Calais and Dunkirk. He will know that the UK and France maintain a long-standing relationship in tackling illegal migration at the shared border. As he also knows, the UK and France work to a whole-of-route approach to tackling illegal migration, ensuring intervention at different stages in a migrant’s journey.
Both sides agree on the importance of a continued close dialogue to reduce migratory pressures at the shared border, and we continue to keep requirements under review as part of our ongoing partnership with France. As noble Lords will know, it is a shared problem, and the UK has committed several funding packages to support the work. The Sandhurst treaty, agreed in January 2018, represented an ongoing commitment by both the UK and France to the whole-of-route approach, and last year the Home Secretary and her counterpart agreed measures to make that route unviable. At that time, the UK committed to invest in a €31.4 million package with France as part of a joint action to address illegal migration. This package includes doubling the number of officers patrolling French beaches, bolstering security along the 150-kilometre stretch of coastline, which is regularly targeted by people-smuggling networks, and the provision of an enhanced package of cutting-edge surveillance technology, including drones, radar equipment, optronic binoculars and fixed cameras.
So far this year over 5,000 crossings have been prevented —more than two and a half times the number prevented in 2020 for the same period. The proportion of crossings intercepted in 2021 currently stands at around 52%, up from 46% recorded throughout 2020, and on average, the French have arrested more than 100 facilitators each month since the beginning of the year.
My noble friend asked about migrant numbers. It is difficult to be totally accurate but the migrant population at Grande-Synthe, currently assessed at 400 people, remains steady, although the Calais population is seeing a gradual increase from around 500 to 600 a few weeks ago to 875 more recently, despite the regular clearance operations by local law enforcement. That said, the overall numbers are massively down compared with those seen in advance of the Calais camp clearance, when the local population in Calais alone was in excess of 10,000 migrants, with 3,000 to 4,000 of them at Dunkirk.
The noble Lord, Lord Rosser, asked about the numbers refused entry. I do not have those numbers. The noble Lord, Lord Paddick, said that I had not addressed his specific points, either on the previous statutory instrument, the Question that we had earlier, or indeed the debate we had earlier. I know that I wrote to everyone who spoke in the last debate, but I will check for the noble Lord on his specific points.
On double jeopardy, matters relating to the responsible state as regards offences have been considered and are the subject of a specific set of provisions underpinning the Le Touquet agreement, and we have international arrangements underpinning the rail regime with France, Belgium and the Netherlands, which are incorporated into our domestic law by 1993, 1994 and 2020 orders.
On the point about the drafting complexity, again, I apologise to noble Lords. On the question from the noble Lord, Lord Bhatia, about whose fault it is, parliamentary draftsmen draw up our laws, and I can only apologise again. They work very hard and it is amazing the amount of stuff that gets through both Houses in impeccable condition.
As to the actual complexity, the noble Lord, Lord Paddick, was right last time that the order and instrument are technical and complex in nature; both are drafted in line with accepted government practice. The errors did not stem from the complexity of the order but were, as I have explained, the result of human error. As soon as the department was aware of the errors, swift steps were taken to correct them to ensure that the law was made clear. Since they were identified, the department has been proactive in taking steps to improve quality assurance procedures to prevent errors occurring. All I can say, again, is that I apologise for the fact that not only do noble Lords have to listen to me but I have to bring these pieces of secondary legislation for their consideration not once but twice.
On impacts, to answer the question from the noble Lord, Lord Rosser, there is no impact on the reasonable force power; it is just about the detention at ports power. As I said in my opening remarks, the order will make it explicitly clear that Section 2 of the UK Borders Act 2007 has been extended to and modified for the juxtaposed seaports. As part of the earlier order, the Explanatory Memorandum set out that an impact assessment was not conducted. That is correct—the department foresees no significant impacts resulting from the earlier order, given that the intent related to other Border Force control locations. However, it is right that we continue to monitor and analyse the use of force data to draw out and mitigate against any potential unintended impacts.
The noble Lord, Lord Bhatia, asked about unaccompanied asylum-seeking children. Sorry, no, it was the noble Lord, Lord Rosser, who asked me about that—and, yes, we want to help those who are most in need of our help and not force them to rely on unscrupulous criminals. We do not want journeys to be criminality-facilitated; we want them to be on safe, legal routes. I look forward to debating that legislation with the noble Lord in due course.
On asylum returns, I would say to the noble Lord that the joint political declaration between the UK and EU agreed on 24 December last year noted the intention to engage in bilateral discussions with the most concerned member states to discuss suitable practical arrangements on asylum, family reunion, unaccompanied minors and illegal migration. In accordance with the UK’s and the EU’s respective laws and regulations, we have begun bilateral negotiations, and there are a series of existing routes by which people can come. I look forward to discussing these issues further with noble Lords.
I shall leave it there and will write to noble Lords on any areas of clarification.
Customs Safety and Security Procedures (EU Exit) Regulations 2021
Considered in Grand Committee
My Lords, this statutory instrument is part of the Government’s package to extend the staging in of customs controls in Great Britain. The instrument concerns safety and security declarations and will come into force on 1 July 2021. Noble Lords will be aware that the Secondary Legislation Scrutiny Committee reported the regulations as an instrument of interest in its fourth report, published on 10 June 2021.
In June 2020 the Government announced that full customs controls would be introduced in stages in Great Britain after the end of the transition period to allow businesses affected by Covid-19 additional time to meet new customs requirements. In March, after discussion with industry stakeholders, the Government decided to extend the staging in of customs controls to allow businesses additional time to prepare to meet new customs requirements.
The measures in this instrument concern the safety and security declarations aspect of that extension and should be understood in the context of our existing safety and security regime. Safety and security declarations are a standard customs process and are used, along with intelligence from other sources, in the UK’s safety and security regime.
The UK approach to safety and security is guided by the World Customs Organization’s SAFE framework of standards, which is designed to manage the risks associated with the movement of goods between customs territories. Risks in the international supply chain are mitigated by following minimum standards for customs administrations set out in SAFE. This includes the collection and risk assessment of pre-arrival and pre-departure data.
The EU implemented safety and security requirements through the UCC, which has been retained in UK law since the transition period ended on 31 December 2020. While the UK was part of the EU’s safety and security zone, safety and security declarations were required only for goods entering or leaving the EU. Since the transition period ended on 31 December 2020, there has been a requirement for safety and security declarations for goods moved between Great Britain and the EU, as well as the rest of the world.
To give businesses additional time to prepare for new customs requirements, in November 2020 the Government introduced a six-month waiver on the requirement to submit safety and security declarations on goods imported from the EU and other territories from which such declarations were not required before the end of the transition period. This waiver is in place until 30 June 2021.
The Government also introduced a statutory instrument granting time-limited powers to issue a public notice waiving or altering the requirements for safety and security declarations on goods exported from Great Britain. These powers were put in place as a contingency option to mitigate any border disruption as a result of the introduction of the new requirements.
Since the beginning of 2021 there have been public notices in force waiving the requirement for safety and security export declarations for two categories of movements. The first category is empty pallets, containers and modes of transport, where they are being moved under a transport contract to places where such movements did not attract a safety and security requirement before the end of the transition period. The second category is all roll-on roll-off movements of goods where an exit summary declaration would otherwise have been required.
As part of the extension to the staging in of customs controls, the instrument we are discussing today will extend the current waiver on the requirement for safety and security declarations for goods imported from the EU and other territories where such declarations would not have been required before the end of the transition period. This means that safety and security entry summary declarations will not be required for these movements until 1 January 2022.
Having listened to businesses’ concerns about the impact of Covid-19 on their ability to meet new customs requirements, this extension to the waiver is being introduced to give them additional time to meet these new requirements. As was the case before the end of the transition period and has been the case during the period of the first waiver, Border Force will undertake intelligence-led risk assessments of goods movements into Great Britain. There is no change to the requirements for entry summary declarations for goods imported from the rest of the world as a result of this instrument. This waiver does not create a significant increase in the security risk to the UK.
In most cases, the data that is risk-assessed in relation to goods leaving Great Britain is contained in a customs export declaration. Where such a declaration is not submitted, a stand-alone safety and security exit summary declaration is required. In response to industry feedback, since the beginning of the year safety and security declaration requirements have been waived for the two categories of movements that I discussed earlier. This has been done by the issuing of public notices, using time-limited powers introduced in December 2020. These allow the commissioners of HMRC to waive or alter the requirement for pre-departure safety and security declarations. The public notice powers that were used to introduce this waiver can be used only with regard to requirements between 1 January 2021 and 30 June 2021. As such, the Government are introducing this instrument to extend this waiver until 30 September 2021. As with imports and exports during the current waiver, Border Force will undertake intelligence-led risk assessments of goods movements out of Great Britain. As such, there is no significant short-term security risk due to the introduction of this waiver.
The Northern Ireland protocol means that there are no safety and security requirements for goods moved between Northern Ireland and the EU, and that Northern Ireland remains aligned with EU customs rules. As such, this instrument does not affect safety and security requirements in Northern Ireland. Goods moved between Northern Ireland and the rest of the world will be subject to existing safety and security requirements. Northern Ireland businesses moving goods into Great Britain benefit from unfettered access and are not required to submit pre-arrival or pre-departure safety and security declarations. Businesses moving goods from Great Britain to Northern Ireland are not required to submit pre-departure safety and security declarations.
In conclusion, these temporary waivers from safety and security declaration requirements for goods moved between Great Britain and the EU strike an appropriate balance between supporting businesses affect by Covid-19 and maintaining safety and security. Therefore, I beg to move.
My Lords, first, I thank the Minister for his thorough explanation of what is happening. There is a problem in considering these changes because two things are muddying the water—Brexit and the Covid-19 crisis.
I am anxious to find out from the Minister how many extra customs officers or officials are being employed now who were not needed before we left the European Union. If additions have been necessary because of Covid, that can be explained as such and we would expect the numbers employed to return to a more normal level afterwards. However, we were led to expect when we were led along the Brexit path that we were going to get economies as a result, and I am most anxious to know how much more money is having to be spent by government in checking things and by the private sector in preparing documentation for examination. Those are pertinent questions that any legislature would ask of its Ministers because we must be clear that public money is being wisely spent.
My Lords, I am grateful to the Minister for introducing this statutory instrument, which follows on from several previous regulations relating to new customs procedures. As the Minister has outlined, this instrument extends waivers granted under the previous regulations for up to an extra six months. These waivers cover both imports from the EU, Norway and Switzerland and certain types of movements back to those territories.
It is fair to say that the first six months of our new relationship with the European Union have not operated as smoothly as the Government promised. The reality of new red tape, coupled with challenges resulting from the Covid-19 pandemic, had a noticeable impact on trade flows from 1 January.
Although there are signs of improvement in some areas, the data in others remains concerning. Last week, for example, analysis suggested that British food and drink exports fell by £2 billion in the first three months of the year. Sales of dairy products plummeted by a staggering 90%. The Government will be keen to label these as teething problems but those in the industry are less sure. The Food and Drink Federation, for example, argues that these figures are
“a very clear indication of the scale of losses that UK manufacturers face in the longer-term due to new trade barriers with the EU.”
It is worth reflecting on previous debates on this topic. When we debated one instrument in December, we were told that the powers in relation to exports were being granted purely as a contingency. The impression given was that the Government did not expect to use them. Indeed, the Minister said that the waiver would be applied
“only where absolutely necessary to avoid border disruption”.
At the time, I asked whether the Minister envisaged the extension we are debating today. In his response, he said:
“The Government have no plans to extend this contingency beyond the first six months of next year, as we do not anticipate that there will be any risk of disruption, as a result of the safety and security requirements on exports after that period.”—[Official Report, 10/12/20; col. GC 382.]
As the Secondary Legislation Scrutiny Committee notes in its fourth report of the Session:
“HM Revenue and Customs explains that these extensions are being introduced in response to feedback from industry that the pressures arising from the pandemic have affected their readiness for the introduction of full customs controls from 1 July 2021”.
While we have no doubt that the pandemic has had an impact on the ability of businesses to adapt, I am not convinced that HMRC’s explanation is complete. We are still hearing complaints about the Government’s new customs phone lines, for example. Ministers are also still being coy about the number of customs agents that have been recruited and whether their self-imposed target of 50,000 personnel has been met. Can the Minister provide an update on these projects? Does he believe that the required capacity will be in place by the end of the year? Is there a possibility that HMRC will decide to grant further extensions into 2022?
Finally, in that December debate we also raised concerns about safety, in light of HMRC’s admission that bringing certain contingency plans into force could have implications for border security. Can the Minister confirm that these matters have been kept under review during the operation of the customs waivers, and whether such risks have become a reality? Have any incidents occurred that the department would consider significant and, if so, will the Minister commit to sharing the details with us?
My Lords, I thank the Committee for this debate. I will seek to address the questions and observations raised, starting with those of the noble Lord, Lord Tunnicliffe.
I acknowledge that there have been some very dramatic movements in trade flows over the last few months, but I suggest that there have been exceptional circumstances, with some stockpiling, and it is hard to get a run rate at the moment. However, overall, we are encouraged by the process so far.
On the noble Lord’s query about the extension of waivers and assurances that we gave last year, we always wanted to have the flexibility to extend. I think the biggest event that has occurred since then which we were not aware of in December is the emergence of the much more virulent strain of Covid. This caused us to extend lockdown and restrict businesses’ ability to operate for longer than we would have hoped at the time.
In terms of the noble Lord’s concerns about the customs phone line, I am pleased to say that the customs and international trade helpline has been working well since the beginning of the year. The helpline has answered 97% of its calls since January, with an average speed of answer of 23 seconds. HMRC is offering this service over the weekend and on weekdays until 10 pm.
On customs agent capacity, the Government do not have a specific target or number of customs agents, because the sector is varied and made up of a number of different business models. For example, in the lead- up to the end of the transition period, we saw large investment in technology by a number of the larger intermediaries, which meant that their ability to handle declarations was well beyond that of simply adding more people. When thinking about readiness, it is helpful to think of the capacity to make declarations instead of the number of staff involved. We know that the intermediary sector has significantly increased this capacity to meet demand following the end of the transition period. The Government helped it to do this by making over £80 million in support available, including flexible grants that can be used for IT and training and recruitment. We are running an intermediary register on GOV.UK at the moment—for example, in the last two weeks, there have been 1,400 views of that page. There are 1,300 intermediaries listed on the register, of whom 93% say they have capacity, 92% say they are able to help small traders, 54% can support SPS checks and 309 can help with roll-on roll-off. We are improving the register all the time following feedback from traders and intermediaries.
The noble Lord asked whether we are likely to grant further extensions. The Government originally intended to introduce the full customs controls by 1 July but, given the impact of the pandemic, they are extending these facilitations to September and December. The Government do not plan to extend these waivers any further. Traders will need to comply with full safety and security declarations on exports from 1 October 2021 and on imports from 1 January 2022.
The noble Lord asked whether the customs issues have been kept under review during the current waiver period. With regard to any risks created by the waivers, Border Force has continued to undertake intelligence-led risk assessments and interventions on imports and exports since the beginning of the year, as it did before the end of the transition period. The noble Lord asked whether any of the risks have become a reality. During the period covered by the waivers, Border Force will continue to do as it has done up until now to protect the security of the UK, but I am happy to write to the noble Lord with figures expanding on the interceptions and work that it has been doing.
The noble Lord, Lord Bradshaw, asked about the cost of the safety and security process. Our EU exit is an opportunity for us to increase the amount of data we collect and thus the range and effectiveness of our interventions and the security of our borders. The collection of safety and security data on movements from the EU will allow Border Force to undertake additional targeting and checks on potentially dangerous goods movements from the UK. While we expect importers to face some increase in costs as a result of safety and security declaration requirements, these can vary depending on the businesses, how much they trade, and whether they use an intermediary. We do not know yet how importers will choose to manage declarations, which is often just one part of a wider customs process, and costs will also depend on factors such as the mode of transport and who the carrier is. Due to this uncertainty, an estimate of the administration burden costs for S&S declarations is not currently available.
Having listened to the feedback from businesses affected by Covid, we are providing them extra time to meet the requirements. This supports efficient customs arrangements and ensures that goods originating in the EU or UK are not subject to tariffs. Therefore, I commend these regulations to the Committee.
The Grand Committee stands adjourned until 4.10 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
Local Elections (Northern Ireland) (Amendment) Order 2021
Considered in Grand Committee
My Lords, this statutory instrument is about providing increased transparency in relation to the imprints on printed election campaign material. To be clear, an imprint is the information on election material which is added to show who is responsible for its production. It helps to ensure transparency about who is campaigning. Imprints underpin public trust in the democratic process and ensure that voters are informed about who is behind an electoral campaign.
I will begin by putting this order in context. It is part of a wider package of measures which will ensure that there is a comprehensive paper imprint regime for candidates and parties in all elections in Northern Ireland. The current imprint regime in Northern Ireland is slightly different and not as comprehensive as that in place in Great Britain or for referendums across the whole of the UK. We do not believe that people in Northern Ireland deserve any less transparency for elections than those in the rest of the UK.
On its own, this order will not deliver the comprehensive cover we are seeking. It is one of two SIs needed to create a coherent regime: this order and a separate commencement order, which will be timed to come into force together. Together they will ensure that the paper imprint regime in Northern Ireland covers parties and candidates in all elections.
This order will make provision in relation to material printed for a specific candidate at local elections. The commencement order will bring into force other measures already on the statute book but not yet commenced for Northern Ireland, which will cover candidates at parliamentary and Assembly elections, and material in relation to parties at all Northern Ireland elections.
I will explain why we are taking these steps now. While the existing imprint regime in Northern Ireland has never been problematic, in recent years the Electoral Commission has highlighted the discrepancy between the regimes in Northern Ireland and Great Britain. We undertook to bring forward the change when the legislative timetable allowed. The weight of legislation required for our exit from the EU has delayed these changes but I am delighted to bring them forward now.
It is important to understand that the principle underpinning this measure is ensuring greater transparency for voters. We accept that the Northern Ireland regime should be no less comprehensive than that in Great Britain. All voters, whether in Great Britain or Northern Ireland, should know the origin of election campaign material, who is printing it and on behalf of whom.
On transparency, some of your Lordships may remember that last year the Government brought forward a measure to remove private addresses from ballot papers. On the face of it, this may seem to run counter to those measures which protected the personal data of candidates. However, I reassure your Lordships that the Electoral Commission has produced advice on this matter and there is no requirement for candidates to have personal addresses printed on election material as a result of bringing Northern Ireland into line with Great Britain. A name and PO box address is sufficient for transparency purposes, while protecting personal addresses.
I will now explain what we are changing. The existing regime for Northern Ireland provides that only the name and address of the printer must be included on Northern Ireland election material for candidates. This differs from the regime for Great Britain, which covers material for both candidates and parties, and specifies that in addition to the name and address of the printer it must also include: the name and address of the promoter of the material and the name and address of any person on behalf of whom the material is being published and who is not the promoter.
The promoter of the material is whoever has caused the material to be published. This may be the candidate themselves, their agent or, in the case of a party, the party treasurer, another officer of the party or the party itself, as outlined in the Electoral Commission’s guidance on imprints. The format that imprints should take is, across the UK, subject to Electoral Commission guidelines. While the commission does not take a view on the font of the imprint, this essential information should be clear and legible so that it can be seen by potential voters.
Although the Electoral Commission provides guidance on these matters, it does not enforce the rules. Any concerns about non-compliance with the imprint regime should, as is the case currently, be reported to the police. I should mention that the penalties for non-compliance will not change and the offender is liable on summary conviction to a fine of up to £5,000.
I am happy to tell the Committee that the proposal to close the gap between the Northern Ireland and Great Britain paper imprints regime is fully supported and welcomed by the Electoral Commission. I should also say that as the measures relate in some respects to the publication of personal data, we have, as noble Lords would expect, consulted the Office of the Information Commissioner, which has approved the draft order.
Finally, it is of course the case that much of the election material now seen by voters does not take the slightly old-fashioned form of printed material. Your Lordships will rightly ask how this order address the transparency of the sources of political campaigning online and through digital media. The short answer is that it does not, nor is it intended to. The Government have consulted on the issue of digital imprints and have made clear our intention to bring forward UK-wide legislation to address the issue. This SI is a measure to bring the paper imprints regime into line with that in Great Britain. Digital imprints are a separate issue and will be the subject of separate legislation.
I therefore hope that your Lordships will agree that bringing the paper imprint regime in Northern Ireland in line with the more comprehensive one in Great Britain is a sensible and important step towards modernising elections in Northern Ireland. I hope that your Lordships will support this order. I commend it to the Committee and beg to move.
My Lords, I thank the Minister for presenting this statutory instrument so clearly and comprehensively. It is not a contentious matter, as he rightly says, although, for Liberals, anything to do with elections, constitutions and electoral processes is always a matter of enormous interest. The Alliance Party, on whose behalf I am speaking today, has been doing that kind of thing for over 50 years—and before that, the Ulster Liberal Party did so. It would be, in Liberal terms and in the Northern Ireland parlance, what one might describe as a traditional route for Liberals.
As I say, the noble Viscount is right in saying that the order is not contentious and the question that it addresses has not been particularly problematic in Northern Ireland. Of course, when we look at elections, there are two issues that we would like to try to address. One is when there has been a problem and the other is when we are able to improve things, even where there has not yet been a problem. For example, in the early days, the Alliance Party and previously the Ulster Liberals campaigned for the single transferable vote system in the polarised context of Northern Ireland. That was an improvement in the situation and has continued to be so.
It is not that printed media have no problems at all. For example, on this side of the water there was recently concern about some newspaper advertising. Who had paid for it? How had it come about? It is always important to ensure that those who pay for any kind of advertising are doing it with appropriate and, indeed, legal funds. That has sometimes been a bit of a concern in Ireland, north and south.
However, as the Minister rightly says, it does seem a little strange at this point to be addressing the question of the printed medium. I do not know about the Minister, but I find that although I get more and more material coming to me, less and less comes through my letterbox—almost all of it is now digital. I have to search out printed material if I want to look at that—or, of course, print it out. The Minister has indicated that it is in the Government’s mind—and I know that there has been the Cabinet Office document, Transparency in Digital Campaigning; the consultation was to be finished by the end of last year, if I recall—so if he is able to say anything about that, that would be helpful.
This whole question of digital campaigning is becoming an increasingly serious issue, not just in Northern Ireland but, truth to tell, globally—not so much because it is putting out a message but because the tactic that is being used, the stratagem that has been devised, is to use social media to deepen polarisation. One can see this being done with armies of bots, directed by artificial intelligence, being employed to pick up messages, amplify them and, through that, create deeper polarisation. We have seen it in this country with referendums as well as elections, and in other countries too. Are the Government addressing this question, not just in principle—knowing who produces something and checking that it comes from appropriate funding sources—but whether the tactics are undermining the process of liberal democracy itself? This is becoming a really quite serious question. It is not an easy one. I would be encouraged if the Minister were to reassure me that the Government are actively addressing this question. It is a matter of very real concern.
I thank the Minister for what he has said. I agree that it is not contentious so far as it goes. The real matters of contention are those things that are not addressed, and I hope that in summing up he may be able to address some of them.
My Lords, we hold today’s debate against the backdrop of a global pandemic which seemingly has new variants monthly and has affected so many lives across the United Kingdom. Our councils and local government can and will play a key role in normalising things and getting this country back to work; in particular, in revitalising and renewing our town centres and shopping areas.
As we discuss local government election changes, I believe we ought first to take a moment to acknowledge those who work on the front lines for local government every day across our nation. I offer my thanks to and praise for front-line and public-facing council workers in Northern Ireland and across these isles. As a former Belfast city councillor for 25 years and former lord mayor of the city, I am all too aware of the hard-working council staff in our towns and cities.
Those council workers and others involved in delivering front-line public services, including volunteers, have done a tremendous, heroic job in supporting communities through the unprecedented and unsettling circumstances of the past year. Public-facing council workers have worked throughout the pandemic, and it is right and proper that we acknowledge their efforts.
In relation to the specifics before us, I welcome the amendments to Schedule 9 and thank the Minister for bringing these regulations before your Lordships’ Committee for consideration. I note that for many of us in Northern Ireland, this is not entirely new information. In many respects, we have been ahead of the game, as it were, specifically in terms of highlighting the relevant details; namely, the published inclusion of names and addresses of election agents and printers on leaflets, flyers, posters and various electoral communications. Even on social media in Northern Ireland local elections, you will often find the election agent’s information emblazoned on infographics and social media posts.
Many candidates and parties in Northern Ireland have carried out these practices for a number of full election cycles. Indeed, during my time on Belfast City Council, I often served as an election agent for local council elections. We always made sure to publish the relevant information on electoral communication and posters. I recall one particular election when I, alongside colleagues, had to remove a batch of recently erected, fresh council election posters and individually affix to each poster the published name and address of the printer alongside the election agent, before they were allowed to be erected once more. I believe that we have been ahead of the game; this has been long-standing practice in Northern Ireland elections. None the less, I welcome these up-to-date clarifications.
I wish to turn to one particular issue which remains a concern to many in Northern Ireland in relation to donations from abroad, using certain electoral and other loopholes. These loopholes enable some parties to bring funds in through another jurisdiction, such as the Irish Republic, without requiring the kinds of registration and thorough checking that apply to funds donated from within the United Kingdom. One example of this can be found in a very recent Times newspaper article, which revealed that a number of Sinn Féin staff in the Republic of Ireland donated part of their salaries to the party in Northern Ireland for approximately three years. The Times report highlighted the long-standing practice that exists whereby Sinn Féin party staff in the Irish Republic switched payments to a bank account belonging to the party in Northern Ireland. This policy was adopted after rules on political donations were changed in the Irish Republic, with lower thresholds imposed in 2013.
Decision-makers in that state banned foreign donations to political parties within their jurisdiction. Here in mainland Britain too, foreign donations to political parties have been banned—but in Northern Ireland there remains a significant loophole as it relates to party donations from other jurisdictions, which have been used by some to fund local elections and their party operations. For an all-island party, this has been a useful alternative route whereby donations may be made from individuals, companies and organisations in the Irish Republic to a party in Northern Ireland.
In recent years we have also seen examples of large donations to the same political organisations in Northern Ireland from Australia, Canada and the United States. The question over the need for regulation in respect of overseas donations to political parties has existed for many years. When we discuss local government electoral changes or mention election cycle donations, one cannot help but question why this particular issue has lingered for so long without a real and focused effort to address it head on. Does the Minister share my view that this is a particular issue of concern, when money from other jurisdictions can be continually used to fund the pursuits of a political entity in one part of this nation—indeed, via the only part of this nation where this loophole remains open?
In previous debates, we have heard about foreign money and, indeed, foreign election interference. I can recall a debate in your Lordships’ House some years ago in respect of American election interference. Is it not time that we addressed this issue of foreign sums of money being used within the realms of our own United Kingdom democracy? I am pleased to support the order before us today.
My Lords, I add my thanks to the Minister for the very clear articulation of what this SI says. Reading what we got from the Library and the Northern Ireland Office, I found one or two points where it did not seem quite so clear, and I think that he made a very clear run at telling us what it says. It is also quite nice to speak when the Minister is moving something on Northern Ireland with which I am totally in agreement.
I very much support this order. We should have consistency across the United Kingdom in our elections as far as possible. Sometimes that is not just one-way; of course, Northern Ireland has very sensibly and successfully had photographic ID for elections for a long time, and now the rest of Great Britain is going to follow on that. I think that is very sensible. You do not need a passport or driving licence; the local authority will give you something that shows your identity, which I think is very important. It is not just a case of Northern Ireland always catching up. As I think the noble Lord, Lord Browne, said, sometimes we are actually ahead in Northern Ireland.
The imprint issue is important, and this has clarified what will happen in the future. I was also going to raise the question of social media, Twitter and Facebook, all of which are being used much more in elections, so I am very pleased that the Minister has mentioned this. I am interested that there is going to be legislation. Could the Minister give us some timings on that? I think this will be more and more of a problem. Having said that, Twitter and Facebook have brought a lot of people into listening to and being interested in politics who maybe did not or were not before, so we have to be careful in judging social media. There are positive aspects of both Facebook and Twitter, but for elections it is important that there is the same amount of scrutiny of who is posting and promoting things. I would support that, and I would like to find out whether there is a date for legislation coming through.
Finally, could the Minister tell us what is now left? What is the not the same in Northern Ireland as in the rest of Great Britain? It would be useful to know whether we will be exactly identical in our election format, procedures and rules after both aspects he mentioned go through.
My Lords, I thank the Minister for the explanation of these regulations, which require on the document the name and address of the printer; the name and address of the promoter of the material; and the name and address of any person on behalf of whom the material is being published and who is not the promoter. I presume that this means the name of the candidate; could the Minister confirm that this is the case? We already provide the name and address of the election agent and the printer at all elections throughout the election cycle, and the candidate’s name is already there, so what is required in addition?
I am all for transparency; I want to see election fraud eliminated. As the noble Baroness, Lady Hoey, said, we were ahead of the game on this issue, but there was a very good reason for that, because there were high levels of election fraud. That is why the legislation was brought in and why we have photographic ID—which works very well now—and complete registers. In that regard, there is a concern, not necessarily that certain political parties have direct access to the electoral register but that they have additional information on voters. Therefore, the issue of the GDPR comes into play. This has been an issue in Northern Ireland which many of us, as members of political parties, have been subjected to. We have been contacted by people realising that certain parties have information about them. This has also been the case in the Republic of Ireland, and very serious issues have been raised about this matter. Are the Government contemplating any future legislation in that regard?
I do not have an issue with this secondary legislation for an imprint, because it leads to greater levels of transparency. However, like other noble Lords, I would like to know the detail of the future legislation in relation to digital imprints—the information that will be required if you are going to publish on Facebook and Twitter—because Facebook is one of the mediums used greatly by political parties, candidates and elected representatives today to communicate their messages to voters.
One of the more worrying features for me is the major threat to political stability in Northern Ireland due to the ongoing internal difficulties in the DUP. I am glad to see that Jeffrey Donaldson will be the new leader, and I wish him well in his new role. There are also the ongoing challenges presented by the exit from the European Union and, as a consequence, the protocol and those difficult relationships between Britain and Ireland. After all, the UK and Irish Governments are the co-guarantors of the Good Friday/Belfast agreement. It is important that they are seen to be working together and do work together in the interests of reconciliation, together with the Northern Ireland Executive and the political parties in Northern Ireland.
I can think of one previous Secretary of State, who is with us in this debate—the noble Lord, Lord Murphy of Torfaen—who, along with his colleague, the then Secretary of State Mo Mowlam, clearly engineered situations to ensure dialogue between the parties and at an intergovernmental level. I would like to find out from the Minister whether the meeting of the British-Irish Intergovernmental Conference promised for June is taking place this month. It is vital that high-level direction is given by both Governments, by the Northern Ireland Executive—I hope the difficulties can be ironed out—and by leaders of political parties in Northern Ireland, and that the north-south arrangements and the east-west arrangements operate on an equal basis.
I have concerns that there are, I am told, illegal parades taking place without notification to the Parades Commission, which could be in breach of Covid regulations. It is a time for responsible leadership, and we need to ensure that. Above all, we all need to ensure that the power-sharing arrangements are underpinned, so can the Minister indicate when that high-level British-Irish Intergovernmental Conference will take place? We need to see the commitments in New Decade, New Approach—which all parties and both Governments agreed to, and which heralded the restoration of our political institutions in January last year—implemented in full. Can the Minister indicate what work is being done with the Irish Government to ensure that this will take place?
In summary, I have no problem with this order and look forward to further measures to create greater levels of transparency in the digital area and that of recording information about electors, so that potential electors are protected from any nefarious activity that may or may not be going on.
My Lords, it is a pleasure to take part in a debate in which there is so much agreement and consensus; that is not always the case in our Northern Ireland debates in this House. I add my thanks to the Minister for such a comprehensive explanation of the context of this order, which I found enormously helpful and enlightening.
These Benches very much welcome the introduction of this order. As the Minister said, it will ensure that the imprint regime for local elections in Northern Ireland finally mirrors the regime in place for parliamentary elections in Great Britain. This will go some way to improving transparency and open democracy for elections in Northern Ireland, and this is greatly to be welcomed. As my noble friend Lord Alderdice said, Liberals are always in favour of systems that introduce greater transparency and open democracy.
Improving transparency for voters so that it is clear from the election literature who is campaigning and who is supporting candidates at local government elections is something we have long called for from these Benches over many years. It will also introduce greater accountability for political parties, as well as facilitating legal actions and remedies should these become necessary.
However, it is clear from the Explanatory Memorandum that consultations took place back in 2018—three years ago. The Minister explained that Brexit was the cause of the delay, but perhaps he could say a little more about why this has taken three years to come before us today.
These measures were also a key conclusion in the report of the Independent Commission on Referendums, published in July 2018. Can the Minister say what has happened to the associated recommendations from that report? In particular, the distinguished cross-party group that formed that commission on referendums recommended that
“a searchable repository of online political advertising should be developed, including information on when each advertisement was posted, at whom it was targeted, and how much was spent on it.”
Can the Minister say whether any progress is being made on following those recommendations?
The Minister will know that last month the head of the Electoral Commission Northern Ireland again called on the UK Government to change the law to allow it to publish information relating to political donations and loans which occurred before 1 July 2017. The commission’s most recent research in this area, published in February this year, confirms that the majority of the public agree that this information should be publicly available. I appreciate that this is a little beyond the scope of this order, but in the spirit of openness and transparency which this order promotes, it would be extremely helpful to have an update on this matter from the Government. If the Minister is unable to provide a response today, I would be grateful if he might be able to write to me at a later stage.
My Lords, I am grateful for the opportunity to take part in this very interesting short debate and to make it clear that the Opposition support this statutory instrument. We do so because it makes elections more transparent and because, obviously, it aligns Northern Ireland with Great Britain.
It is 48 years since I first had the effrontery to ask people to vote for me in an election, and in all those years, imprints have been a very important part of any candidate’s or agent’s job. However, it is worth remembering that it has not been quite that easy in Northern Ireland, and that fraud and intimidation have been features of the electoral system there over the last half a century. Of course, it is changing dramatically, and the law changes with it too. However, I can recall that when I first became a Minister in Northern Ireland in 1997, the then Chief Electoral Officer for Northern Ireland came to see me in my office in London and brought with him a suitcase in which were hundreds of ballot papers, every one of which was fraudulent. He was showing me how they were made fraudulently and how real the problem was in Northern Ireland.
An awful lot has changed since that time, but I emphasise that it has been different. There has been a similar situation with intimidation and political donations —certainly those that came from within Northern Ireland. On both sides of the political divide there, people were frightened to reveal that they had given gifts to various political parties for fear of intimidation and threats. It has not been easy, and it is good that we are catching up with the rest of the United Kingdom with regard to how we deal with elections, but it was different.
I have a couple of questions for the Minister. First, I saw from the notes that the department put out that there was a consultation in Northern Ireland on this change in electoral law and that the majority of people supported it, which I do. However, it would be interesting to know whether the minority who did not do so was substantial and what they said that they did not like about this change. Secondly, a number of noble Lords mentioned the important issue of a digital imprint regime and how the world has changed. For most of us, when we started our political lives, digital electioneering did not exist. Now it is becoming increasingly important. Can the Minister confirm that any change in the law on that, which is necessary, will also cover Northern Ireland?
A number of your Lordships have raised issues of stability. Of course, elections have to operate within political stability and I share the view of the noble Baroness, Lady Ritchie, about the need for a meeting of the BIIGC—the sooner the better—and that there should be more meetings with all the political parties in Northern Ireland, including with the new leader of the DUP.
However, I also want to point out that with regard to voter ID in the whole of the United Kingdom, which will come before us in separate legislation, it is not as simple as that. My experience over the years has been that we will have problems in getting older people in particular used to that system. There is something to be said for it and I am not suggesting that there is not, but one has to weigh it against the enormous issue of people deciding not to vote at all if a substantial obstacle is placed in front of them. We must acknowledge that, as well as the fact that Northern Ireland is still different. But that is for another day. I give notice to the Minister that we will be discussing that matter in much greater detail in the months ahead.
However, we support the order and I hope that the regime will start as soon as possible.
I start by thanking your Lordships for their broad support for these measures. As the noble Baroness, Lady Suttie, said, it is true that it is difficult to achieve a general consensus on Northern Ireland matters and, in general, we have managed to achieve that this afternoon. However, that is not to say that a number of questions were not raised and I will do my best to answer them all.
However, before I go into that, I want to say a word or two about something raised by the noble Baroness, Lady Hoey, and some more expansive comments by the noble Lord, Lord Murphy. The noble Baroness is right: she mentioned voter ID and it is true that Northern Ireland is a leader here and at the forefront of that measure, leading the way. The noble Lord related the issue to the rest of the United Kingdom and is right to say that there are some challenges. One that he mentioned was about including older people and getting them used to the system. It is good to discuss it and, no doubt, discussions will continue.
Before I go into the substantive issues raised, I want to say one thing about security or intimidation, to address any concerns that the addition of an address to election material may lead to the intimidation of a candidate, printer or promoter—something that I did not really address in my opening remarks. It is vital for our democracy that individuals are able to engage in campaigning in elections without fear of intimidation. I want to be clear that a candidate, for example, is under no obligation to print their home address on any election material. The Electoral Commission provides guidance that the address provided does not need to be a home address; it may be a business address or, as I did say in my opening remarks, even a PO box. These changes will not, therefore, risk intimidation for any candidate and the existing law provides that the printers must already include details on any election material that they produce. However, it is only right that the people of Northern Ireland have the same levels of transparency and clarity in elections as people in Great Britain. Voters have the right to understand who is publishing and promoting election material. This order, combined with the commencement order, will do just that.
This leads nicely into some points raised by the noble Lord, Lord Alderdice, who spoke about digital campaigning. I have noted his comments, which were becoming more expansive, I think, and were supported by the noble Baroness, Lady Suttie. He asked whether the tactics were undermining the liberal process. That is a very good point, and I am sure that is a subject for future debate.
On digital imprints, just to reassure the noble Lord, we have consulted, and I promise him and others who have raised this point that comprehensive measures will be included in forthcoming legislation. The noble Baroness, Lady Hoey, asked about the timings on this. I am unable to give any timings on this particular legislation at the moment, but I shall check back with officials. If there is anything more that I can add to that I shall, of course, write.
The noble Lord, Lord Alderdice, also alluded to the point that imprint offences are, mercifully, very rare. I inform him that, between 2015 and 2020, only three offences were found to have taken place within the UK, and those were for failing to include an imprint on election campaign material. This perhaps demonstrates how well the current imprint regime in the rest of Great Britain is working. We expect the updated regime in Northern Ireland to work similarly. I hope that that gives some reassurance. It plays well into the point that the noble Lord, Lord Alderdice, made, which is that we do not believe that this is particularly contentious, and I appreciate that.
The noble Baroness, Lady Ritchie, and the noble Lord, Lord Murphy, spoke about political stability. It is very relevant that this point has been raised. I know that the noble Baroness has spoken about this before, and how important it is to have political stability—to state the obvious perhaps—in Northern Ireland. She spoke, quite rightly, about the importance of continuing dialogue and creating agreement between all parties. On current events, I was pleased that the DUP and Sinn Féin nominated First and Deputy First Ministers last Thursday following the Secretary of State’s intensive negotiations with the parties’ leaders. I hope that the UK Government’s commitment to legislate for the balanced culture and language package agreed on in the New Decade, New Approach deal, should the Executive not do so by the end of September, now means that we can move on to much more pressing issues such as healthcare, education and jobs in Northern Ireland. This Government look forward to working with the whole of the Northern Ireland Executive to address those challenges and embrace the opportunities that lie ahead for Northern Ireland.
This brings me to a point raised by the noble Baroness, Lady Ritchie, about the BIIGC. There is a date in the diary of 24 June for that group to meet in Dublin.
The noble Baroness, Lady Suttie, asked why this order had not been implemented before—why these changes had not been forthcoming. I cannot really add to what I said in my opening remarks, but I reassure her that, because of the weight of legislation required for our exit from the EU, it really is the case that these changes were delayed. As I said earlier, I am pleased that we are at this point now. It is not that Northern Ireland was entirely without imprint rules. However, the Electoral Commission has felt and has highlighted that the law on imprints in Northern Ireland was less comprehensive than in the rest of the United Kingdom and that it was important that we addressed that properly.
The noble Lord, Lord Browne, said—and he is right—that we should give thanks to those who are in the front line of organising elections. I pay my tribute, too, to those who give so much in terms of public service in this respect. The noble Lord raised a point about foreign donations—Irish donations. Perhaps I can reassure him that all donations to registered Northern Ireland parties from all donors are subject to the rules, and Irish donations are allowed; that respects the Belfast agreement principles. I shall read Hansard but, if he has particular concerns, I shall undertake to write to him on the matter.
The noble Baroness, Lady Ritchie, asked about additional requirements in terms of what we are doing today. I reassure her that, as I think I said in my opening remarks, this includes the name of the printer and the promoter on whose behalf the leaflet is published. This is no more and no less, and I understand that this information is usually made available in Northern Ireland. It sets down the requirement in law.
The noble Baroness, Lady Suttie, spoke about transparency, which plays rather well into comments made by the noble Lord, Lord Alderdice. The question of retrospectively opening up historic records from 2014 remains genuinely difficult at a time when threats to elected representatives are all too common and various measures have been put in place to protect those elected representatives. We must be very careful that nothing we do might lead to intimidation against members of the public who donated to parties. We have always been clear that any movement on this issue must have the support of all the parties in Northern Ireland, but I am not aware that any of them have raised the issue of historic transparency with us since we changed the law to bring reporting requirements into line with the rest of the UK from July 2017.
The noble Lord, Lord Murphy, asked about fraud measures in place. I reassure him that they are more stringent in Northern Ireland than elsewhere in the UK.
I believe that we are nearing the end of the time, but I hope that I have answered all the questions. However, I am aware that the noble Lord, Lord Murphy, asked about the consultation. I think I shall write to him on that. He asked about the minority of those who responded to the consultation. I do not have information for him, but I shall endeavour to write.
Again, I appreciate the general support for these regulations, and I beg to move.
Scotland Act 2016 (Social Security) (Consequential Provision) (Miscellaneous Amendment) Regulations 2021
Considered in Grand Committee
My Lords, I am pleased to introduce this instrument, which was laid before the House on 17 May 2021. Subject to approval, the regulations will make some necessary legislative changes to prevent overlapping entitlements to the soon-to-be-introduced Scottish child disability payment and UK disability benefits. It will also permit the Department for Work and Pensions to accept the Scottish government appointee arrangements for UK government benefit purposes, thereby reducing the administrative burden for claimants and appointees in dealing with both Governments. I am satisfied that the regulations are compatible with the European Convention on Human Rights.
The UK Government are committed to making devolution work and to ensuring the safe and secure transition of powers to the Scottish Government under the Scotland Act 2016. As a result of the devolution of social security powers to the Scottish Parliament under this Act, the Department for Work and Pensions will need to update its legislation from time to time to reflect the introduction of the Scottish Government’s replacement benefits. Section 71 of this Act allows for the necessary legislative amendments, in this case as a result of benefits introduced under the Social Security (Scotland) Act 2018.
I am grateful for the opportunity to debate these regulations today. They will effect some purely technical changes and prevent overlapping entitlement to and payment of the Scottish child disability payment and UK disability benefits such as disability living allowance for children, personal independence payment and Armed Forces independence payment. It also includes some time-limited overlapping provisions for Northern Ireland. It will enable the Department for Work and Pensions to accept appointees over the age of 18 if they have already been granted appointee status by the Scottish Government. This is a positive change for claimants and staff.
Noble Lords will be aware that the Social Security (Scotland) Act 2018 established the legislative framework for the Scottish Government to introduce new forms of assistance using the social security powers devolved under Section 22 of the Scotland Act 2016. Specifically, Section 31 of the 2018 Act allows the Scottish Government to introduce legislation to provide financial support through their disability assistance for people in Scotland with long-term additional health needs. The Scottish Government have legislated for disability assistance for children and young people, which will be introduced from July 2021. They are calling this child disability payment; I will refer to it as CDP from now on.
I understand that CDP will have residency conditions attached and primarily will be paid only to claimants who live in Scotland. However, as part of their offer the Scottish Government will continue to pay CDP for a period of 13 weeks after a claimant has left Scotland and moved to another part of the UK. This will allow claimants time to sort out new benefit arrangements, should they wish to.
Our intention is to offer a similar facility for those moving to Scotland, though this will not be needed for a few years. What is needed now is a modest legislative amendment to deal with this policy, in order to both support the devolution agenda and strengthen a union that works together in the best interests of our shared citizens.
If these regulations are passed today, they will ensure that there are clear boundaries between entitlement to CDP and entitlement to a similar UK government benefit, and that there is no overlapping provision of entitlement. They will do that by making it clear that entitlement to a relevant UK government benefit will not start until the day after payment of CDP has ended and will reflect the Scottish CDP legislation, which acts in a similar way. This will not only protect the public purse by avoiding double payment but help prevent the need for complicated overpayment calculations and recovery. Furthermore, it is also in the best interests of the claimant, who will have a clear expectation of which Government is responsible for paying their benefits at which point in their claim or award.
The instrument includes provisions on behalf of the Ministry of Defence to ensure that Armed Forces independence payment will similarly not overlap with CDP. Provisions have also been introduced to prevent overlapping entitlement when a claimant moves to Northern Ireland and is in receipt of the 13-week run- on payment from the Scottish Government.
Finally, we recognise that many DWP claimants will also be claimants of the Scottish Government’s devolved provisions. This instrument will make changes to UK government legislation to allow the Department for Work and Pensions to accept that a person over the age of 18 has appointee status if they have already been granted it by the Scottish Government. This removes unnecessary burdens on the claimant, the appointee and the department through effective and proportional collaboration on information shared and used by respective Governments. I commend this instrument to the Committee and beg to move.
My Lords, I recognise the antecedents of the Smith commission, itself deriving from the 2014 Scottish independence referendum, and the following Scottish Acts in 2016 and 2018. I am no expert on the details of this particular SI or social security benefits in general, and I do not know if I am right on this, so maybe my noble friend can clarify it when she speaks at the end, but it seems to me that it does not affect social legislation in Great Britain—or, that is, it affects England and Wales but not Northern Ireland.
My key concern is about the background of the importance of the union—we all know what is happening on the ground at the moment—and a recognition of what the current SNP leadership is all about. This in itself is in contrast to the powers of the Scottish Parliament. For example, it has the power to borrow over and beyond the benefits of the Barnett formula, as I understand it, so there is a double incremental benefit to Scotland as a whole.
What will be the impact on the other three nations that make up the United Kingdom? Is this just a simple implementation agreed by all four parties, with Scotland in the lead? They are doing trials in various cities. Or is it what I would call a ratchet effect, in that they take an initiative which the rest of the union then has to follow? I do not know, and I hope my noble friend can make that absolutely clear for the record when she winds up.
I will now focus particularly on Northern Ireland, and colleagues may wonder why. This is primarily because I was PPS in Northern Ireland from 1979 to 1981 and got to know that part of the UK quite well. I have deep concerns about what is happening on the ground there; they are struggling with the protocol and the aftereffects of Brexit on top of everything else. I would have thought that to have an important part of their social security affected as well—seemingly in the autumn—is just another problem and challenge for them.
I have two implementation points to make. I note that this is to be trialled in Dundee City, Perth and Kinross, and maybe somewhere else, from 26 July. It is thought that there will then be a full national rollout in the autumn. But 26 July is, in effect, the beginning of the summer, and nothing very much will happen in August, so we will really begin to have some test of this in September or October. Normally, to do a proper test, you would do it for at least three months. You would then review it for a month, because there are bound to be some elements of it that are not quite right, particularly if you have to consult the other three nations. Maybe they are not going to consult, but they should. I suggest to my noble friend that she should have a quiet word with her colleague across the border and ask if they are absolutely sure that it should be rolled out in the autumn and why it should not be rolled out from January, when people have had time to look at it, make necessary technical amendments and then implement it accordingly.
The other technical matter I would raise is that it is all very well saying that there is a 13-week change in some of the moves from Scotland to England, Wales or wherever. It never ceases to amaze one, having been a Member of Parliament, but there are families who do move around regularly when they change jobs or if something else happens—
This SI is a small step in the long, drawn-out and complicated process of transferring responsibility for some aspects of social security from the UK Government to the Scottish Government. The Scottish Government are always vociferous in their demand for more power, despite struggling to use many of the powers they have effectively or, sometimes, at all. That is not to say there cannot be value in administering benefits to meet the needs of beneficiaries in Scotland, but only time will tell whether it delivers a net positive and an affordable outcome.
This statutory instrument is necessary to facilitate the establishment of the Scottish Government’s child disability payment as a replacement for disability living allowance. The aim is to transfer approximately 50,000 recipients of DLA to CDP over 12 months, all being well. The amount of benefit will not change, but the assessment will. There will be no upsides—no political upsides, certainly—if current recipients fall through the net or if any change disadvantages an applicant for CDP compared with the previous DLA arrangement. Concern has already been raised about the altered definition of night-time care under CDP compared with DLA and whether that might disadvantage Scottish claimants. Having said that, my understanding is that this is being jointly administered between the DWP and the Scottish Government, so that should help eliminate such complications.
One positive change that has emerged on the back of consultation is that recipients of CDP will not have to apply for PIP at 16, as is the case with DLA, but can continue on CDP until 18, and then apply for PIP. It would be interesting if the Minister could comment on whether her department considers that beneficial and something that might be applied elsewhere in the UK.
The SI does three things. It ensures that there is no overlap, as the Minister said, between CDP, DLA, PIP and the Armed Forces independence payment; it provides for the continuation of CDP for up to 13 weeks after a recipient moves to another part of the UK, to allow time to apply for the appropriate replacement for CDP; and it allows the Scottish Government’s criteria for appointing someone on behalf of a recipient to be recognised across the UK.
These are practical and sensible measures, and that explains why the Scottish Parliament’s Social Security Committee dealt with it in less than a minute. Nevertheless, if the transfer of some social security benefits from the UK to Scotland is to have purpose, there must be practical and real benefits, rather than just name changes and different administration. The PIP point looks like it might be something for the DWP to consider, so I repeat: can the Minister say whether this might lead to a rethink in her department?
Where will all this lead? Can the Minister indicate how many other Scottish social security SIs she expects in the coming months? The question is: will this lead to the Scottish Government tackling the serious problems of poverty, multiple deprivation and drug abuse that blight Scotland, or will it amount to just relatively small administrative changes that could add to the complexity for those in need without providing transformational benefit?
No doubt the SNP will claim that only independence will unlock the resources needed to turn poverty around, despite the very real risk that Scotland will lack the resources to maintain current benefit levels, let alone improve them. Indeed, if Scotland decided that it was going to pay more generous benefits than the rest of the UK, which it would be entitled to do, we could see some kind of reverse benefit tourism, which would be at the Scottish taxpayers’ expense.
The challenge is to use these social security powers to demonstrate a positive difference in shaping the system to Scotland’s needs, to take account of the different social circumstances and different geography of Scotland. If it is done in that way, it will be beneficial to both Scottish and UK citizens by delivering benefits in a fairer and more efficient way, but whether or not it does, we shall have to wait and watch with interest.
My Lords, we are here today because this statutory instrument will make consequential amendments to social security legislation in respect of Great Britain and Northern Ireland to prevent payments of DLA, PIP and AFIP overlapping with the Scottish Government’s child disability payment. The Scottish Government are introducing the CDP, which will replace the disability living allowance for children, currently delivered by the DWP. This new child disability payment will be open in pilot areas for applications from 26 July this year in Dundee City, Perth and Kinross and the Western Isles council.
This is the first application-based disability benefit to be introduced by the Scottish Government, and the pilot will be followed by a full national rollout in the autumn. Families currently getting DLA for children will be transferred automatically to the new Scottish system. People who currently get disability benefits from the DWP will have their awards transferred to the new Scottish system in stages after the new benefits are introduced. We believe that the work will be completed by 2025.
We entered the pandemic with too many people living in poverty, and this poverty is endemic in many parts of the UK, in all the nations and regions. The Scottish Labour shadow Cabinet Secretary for Social Justice and Social Security has raised several matters about this issue with the Cabinet Secretary Shona Robison MSP and has asked her to consider making progress on tackling child poverty in Scotland by doubling the Scottish child payment immediately as well as to mitigate the two-child limit in Scotland. Projections show that this would cost just 0.2% of the Scottish Government’s total budget. Further ideas expressed to reduce poverty include removing the full-time study rule in carer’s allowance and moving from the safe and secure transition of disability benefits to transforming eligibility and rate, together with using procurement to enforce the living wage and end zero-hours contracts, bringing housing costs down by capping rent rises, and requiring businesses that get public money to pay the living wage and end zero-hours contracts.
Can the Minister confirm that no one will lose money by stopping any overlap between the DLA, PIP, AFIP and the new child disability payment? Also, is the Minister confident that the 13-week CDP run-on payment will take place? What happens if it does not? Finally, when does the Minister expect the national rollout of CDP to take place? Most importantly, is the DWP ready for it?
I thank all noble Lords for their contributions today. I shall deal with some of the points that noble Lords have raised.
In answer to the noble Lord, Lord Naseby, and to some degree the noble Lord, Lord Bruce, I would say that all five parties in the Scottish Parliament accepted the Smith commission recommendations on the devolution of social security. The two Governments are now working together to implement them, and this SI is part of that process. In Wales, social security is reserved by virtue of the Wales Act 2017, although the Welsh Government have the power to make payments to people in extreme financial hardship using the discretionary assistance fund. In Northern Ireland, social security is transferred to the Northern Ireland Executive. However, in line with the Northern Ireland Act 1998, the DWP and the Department for Communities in Northern Ireland work closely together with a view to maintaining parity between the two systems.
The Barnett formula is used by the Treasury to calculate the annual block grants for the Scottish and Welsh Governments and the Northern Ireland Executive. It calculates funding for devolved public services based on what the UK Government spend on those functions in England. If the devolved Administrations want to spend more on devolved services, they must find the funding from elsewhere in their budgets.
On the evaluation of implementation, which noble Lords have raised, that is a matter for the Scottish Government. The UK Government will, of course, be interested in the iterations of the reserved benefits, given the larger number of people in Scotland receiving benefits from both Governments.
In answer to the noble Lord, Lord Bruce, the DWP currently administers benefits on behalf of the Scottish Government where they are the same as other benefits. However, replacement benefits, such as CDP, will be entirely delivered by Social Security Scotland, which is part of the Scottish Government. We will, of course, follow with interest how the Scottish Government deliver their new benefit and we can, of course, learn from their experience where we both face similar challenges.
On cross-border moves from Scotland to England, the noble Baroness, Lady Wilcox, asks what will happen if someone moving from Scotland to England and Wales does not apply to the DWP in time for their claim to be processed before their CDP runs out, and whether they will incur a break in payment. If the claimant is late in making the claim following the move, there is a greater risk that there will be a break in payment. However, arrears will be paid back to either the date of the claim or to the date the run-on ceases, depending on the circumstances. If a claimant delays making an application and their CDP stops before their claim has been made, any new claim can be paid only from the date of that claim.
The DWP and the Scottish Government both have devolution programmes to ensure that all partners are ready in delivery and ready for the implementation. We hope that that working together will continue.
The noble Lord, Lord Bruce, asked about how many more SIs on Scotland are coming. It seems that there are three more statutory instruments on devolution of Scottish Social Security to the Scottish Parliament before the Summer Recess. Further instruments will follow as the Scottish Government make further progress on the replacement of benefits.
The UK Government are working collaboratively with the Scottish Government to ensure that the two systems of social security will operate effectively alongside each other and the required legislation that underpins them is delivered successfully for the people of Scotland and, where relevant, claimants in England, Wales and Northern Ireland. This order highlights the importance that the UK Government place on the effective functioning of devolution. I commend this order to the Committee.
That completes the business before the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the Room.
Committee adjourned at 5.28 pm.