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Lords Chamber

Volume 817: debated on Tuesday 14 December 2021

House of Lords

Tuesday 14 December 2021

Prayers—read by the Lord Bishop of St Albans.

Maldives: Tariffs


Asked by

To ask Her Majesty’s Government what plans they have to lower the tariffs on tuna imported from the Maldives.

My Lords, the Maldives is an important trading partner for the UK and we are keen to co-operate on trade opportunities including in such areas as food, drink and sustainable development, including fishing. However, the country is rated by the World Bank as an upper-middle-income country and therefore does not qualify for reduced tariffs under the UK’s generalised system of preferences, which, of course, lowers tariffs for developing countries.

I thank the Minister for his Answer. I am aware that the Maldives has transitioned from a developing to a middle-income country and is therefore not eligible for GSP. However, it seems to me an injustice that the Maldives, one of the few countries to practise genuinely sustainable fishing where fish are caught one by one, is the only Commonwealth country with small island development status on which the UK imposes an import tariff. The UK has economic partnership agreements with Caribbean and Pacific states, the Seychelles and Mauritius, which, incidentally, has a higher per capita income than the Maldives. Given that the tuna fishing industry is vital to the Maldives economy, can my noble friend tell us when there is likely to be a change in the status of the Maldives in its access to the UK market?

My Lords, my noble friend makes a good point about the fishing practices used by fishermen in the Maldives, on which we must congratulate them. However, there are classifications that determine whether a country is a developing country. To go outside those classifications would have ramifications elsewhere.

My Lords, surely we need to be more flexible than that these days. I congratulate the Maldives Government on their sustainable practices, which the noble Baroness mentioned. The UK Government are rightly a champion of ocean conservation and biodiversity. Where there are good fishing practices, particularly for tuna, should we not give them strong trade preferences—yes or no?

Again, the noble Lord is quite right to applaud the fishermen in the Maldives but, as I said, these things are governed by rules not always set by the WTO. We hope always to take a lead on this but, at present, our tariff rates on tuna do not differentiate between production methods of the same goods, such as different ways of catching tuna.

Does my noble friend not agree that the way forward is for us to enter a bilateral economic partnership agreement with the Maldives? I believe that the Government of the Republic of Maldives would be open to that possibility. Could we initiate such discussions?

My Lords, my noble friend makes another good point. The UK currently has a busy and ambitious FTA negotiation programme with a full pipeline of negotiations. Sadly, we therefore have limited capacity to consider new FTA or EPA negotiations in the immediate term. However, the Maldives is an important trading partner to the UK and officials are exploring pragmatic options to enhance bilateral trade relationships in areas of mutual interest. I am sure that noble Lords will applaud that.

My Lords, the Government talk a lot about wanting to be a champion for the Commonwealth—and so they should—and about sustainability. We have a nation here with small island development status that, as far as we know, is fishing sustainably on a global basis, so it seems extraordinary that the Government are being so cool on the prospect of having some kind of bilateral agreement with the Maldives. Will they perhaps warm up a little and try to progress this a bit more quickly?

My Lords, no one could feel warmer towards the Maldives than I do. In a sense, it is a matter of congratulation for the Maldives that it is now an upper-middle-income country. We should congratulate it on that, but the downside is that it is no longer classified as a developing country.

My Lords, could the Minister, who has mentioned a list of countries that have a higher priority than the Maldives for a free trade agreement, tell us which African countries are on that list and when they will get an agreement negotiated?

My Lords, on many occasions the House has heard me refer to the FTA negotiations. We are hoping to finalise now with Australia and New Zealand, we are hoping to resume trade negotiations with the US and our negotiations with the Trans-Pacific Partnership and we are hoping to start negotiations with India and the GCC. I think that the House will recognise that that is a full pipeline and, frankly, we cannot do everything at once.

My Lords, I am pleased to hear my noble friend the Minister recognise the sustainable and ecologically friendly fishing practices of the Maldives. Will he recognise, at least as a medium-term objective, the desire for the UK to move to zero tariffs and zero quotas with our friends and allies in the Commonwealth?

My Lords, that is another good point made by my noble friend. The issue of a free trade agreement covering the whole of the Commonwealth is the rich diversity of nations in the Commonwealth. Some are large and some are small; some have a certain economic capacity and others have another economic capacity. A free trade agreement with the Commonwealth would of course have to be negotiated over that whole range of countries. It is a wonderful, idyllic idea but in practice it would be hard to achieve.

My Lords, we all understand why the Minister’s department cannot do everything at once, but why is Africa so often at the bottom of the list?

My Lords, I think that is a rather unfair point. I do not have the figures at my fingertips but I well remember a debate that we had just a couple of months ago on the agreements that we have reached with certain African countries. We are making progress. Of course we would all like to make more progress, but at a time of limited capacity you have to prioritise.

My Lords, bearing in mind the size of the Maldives, will my noble friend not allow his warmth to become generosity in this season of good will?

I understand that since Brexit we have joined the International Commission for the Conservation of Atlantic Tunas. With all our knowledge of sustainability and conservation, are we actually contributing to that organisation? Are we urging it to improve constantly?

My Lords, it is a long time since I did geography at school, but I am not entirely sure that what we are doing in the Atlantic necessarily applies to the Maldives. I do not have full details of the agreement that the noble Baroness refers to, so I will research it and write to her.

My Lords, the Minister will be aware—and we should be proud—of the huge maritime protection zones which we have placed around so many of our overseas territories and which cover hundreds of thousands of square miles. Does he agree that we have insufficient maritime assets to protect and look after them, particularly bearing in mind the House of Commons Defence Committee’s report that said that we have too few ships?

I congratulate the noble Lord on extending the range of this Question to talk about the important matter of the Royal Navy. Of course, I fully sympathise with him on that. Who would not want it to be one of our glorious services?

Remembering that principle not size should govern the Government’s thinking if possible—and remembering, with deep appreciation, Sir David Amess taking a great interest in this subject and inviting me to join him for a meeting with a UK Minister—surely the ability to offer zero tariffs is one of the really meaningful ways to best assist the emerging markets. Could I encourage the Minister to take that on board?

My Lords, when setting MFN tariffs and the UK global tariff, we of course have to balance various interests: UK interests, meeting strategic trade objectives and the maintenance of the Government’s commitment to developing countries. The GSP’s whole purpose is to give preference to developing countries. I repeat: it is the classification of the Maldives as no longer a developing country, which this House should congratulate it on, that means that it is not treated in the same way as developing countries in this instance.

Covid-19: Vaccine Donations


Asked by

To ask Her Majesty’s Government how many of the 100 million COVID-19 vaccines they have committed to donate to the rest of the world have been delivered and where they have been sent.

My Lords, the United Kingdom has delivered over 21.2 million doses to recipient countries. Some 16.6 million have been distributed through COVAX, a further 3.4 million doses are with COVAX for allocation and distribution and another 6.3 million will be delivered to it directly from AstraZeneca in the coming weeks. In addition, 4.6 million doses have been delivered bilaterally to 17 countries, including Jamaica, Kenya and Indonesia.

My Lords, unvaccinated populations will mean more variants and we must redouble our efforts to help to vaccinate the world. Will my noble friend agree to update the House in writing at the end of this calendar year, and at the next deadline of June next year, with details of how many vaccines the UK has shipped and indeed delivered? Responsibility for global vaccines seems to sit across multiple departments: FCDO, DHSC, BEIS, DIT and of course the Treasury. We have seen the success of our domestic vaccine efforts, thanks to a focused and dynamic Minister, so will the Government consider giving one Minister responsibility for global vaccination?

My Lords, on my noble friend’s first point, yes, of course, and I shall write to her with an update. We have already responded to the Foreign Affairs Committee’s report on this issue. I will take her suggestion of one single dynamic Minister for global vaccines back and share it with the department.

My Lords, what progress has been made so far on helping countries to provide their own capacity to build their own vaccines so that it is not left to other countries to donate but, instead, they would be able to manufacture their own?

My Lords, the noble Lord makes an important point. The UK has engaged and continues to engage thoroughly on the issues around the TRIPS waiver, which has been discussed. We have certainly seen how we can work though transferring technology, for example. Indeed, early on in the pandemic, that same working together aided the world, in bringing together India and the UK on the Serum Institute of India initiative with the University of Oxford.

My Lords, in the wake of the new omicron variant, which undermines existing vaccination efforts, will the Minister support the temporary TRIPS waiver proposed by South Africa and India to the WTO and supported by more than 100 countries, including the US? This would allow for widespread manufacturing scale-up regionally, ensure that all countries could get access to the vaccines they need to protect their populations and reduce the risk to all of us of new variants emerging.

My Lords, I share the noble Baroness’s concern. We are engaging pragmatically on the TRIPS waiver. However, when looking into some of the hurdles that developing parts of the world have faced, we see that the main issue is still a lack of skills, in terms not just of health infrastructure but physical distribution of the vaccine even once it is in country. Vaccine hesitancy is also a large barrier. As I have said, we are engaging on the TRIPS waiver, but we are very clear that any negotiation should not lead to a reduction in the quality of the vaccine.

My Lords, who decided that this country would donate 100 million Covid vaccines to the rest of the world and who chose which countries should be the beneficiaries?

On the 100 million vaccines, as my noble friend will be aware, this was very much part of our drive during our leadership at the G7 and it was announced by my right honourable friend the Prime Minister. On distribution, we are looking at key factors. Ultimately, we look at our own ability to provide vaccines, both through COVAX and bilaterally. We then make a decision on the availability of those vaccines as well as the ability to distribute them across the world. That decision is taken by the FCDO.

My Lords, as we have heard, the two key issues in reaching the target of 70% of the global population being vaccinated are delivery mechanisms and manufacture. At the Foreign Ministers meeting at the G7, Liz Truss stressed the importance of strengthening health systems, which is vital to ensuring that vaccines are administered. What she did not address is how we are going to do that. Can the Minister commit his department to giving us a strategy of implementation so that we are confident about reaching the target in June of 70% of the global population?

My Lords, the noble Lord makes a very practical point, and I share his view on the importance of having the necessary infrastructure around the world to ensure equitable and safe distribution of vaccines. We are working closely through the COVAX facility as well as the World Health Organization to ensure that we can support that principle fully. Equally, prior to our bilateral donations being made, we go through quite thoroughly the infrastructure in a given country and its ability to ensure the safe and equitable distribution of the vaccine once it arrives.

My Lords, it is not just a matter of quantity, supply and logistics but, as the Minister indicated, of vaccine hesitancy. What consideration have the Government given to working with partners such as the Anglican Communion, which is well placed at local level to work with local leaders to use the right language and to persuade local people to take the vaccines?

My Lords, the right reverend Prelate will know what a strong supporter I am of the Anglican Communion and other faith-based institutions in different countries as key partners on not just vaccine issues but civil society issues. I will certainly take back what the right reverend Prelate has said, but let me assure him that we are working with the Anglican Communion and other faith communities to tackle vaccine hesitancy. Indeed, we experienced it here in the UK as well, and the churches and faith groups played a sterling role in ensuring that it could be overcome.

My Lords, this country is in the midst of a damaging and costly response to a new variant of Covid-19. If we are to avoid a constant stream of disruptions of this sort, is it not in our country’s strategic interest that we work urgently to ensure the vaccination of the rest of the world?

My Lords, in response to my question on vaccine equity on 2 December, the Minister, the noble Lord, Lord Sharpe of Epsom, said:

“I think, actually, the first duty of a Government is to protect their own population.”—[Official Report, 2/12/21; col. 1456.]

Does the Minister recognise that omicron demonstrates that Governments cannot protect their own populations unless they first understand that, in a pandemic, acting in the global interest is the only way of protecting the national interest? If he does recognise that, why are the Government cutting support for African health services at their time of greatest need in delivering vaccines to their people?

My Lords, on the noble Lord’s second point, we allocated specific support for African nations and have continued to support them in that respect. On his first point about my noble friend’s response, it is important to secure domestic vaccinations, but I agree with what he has put forward: we are only as safe as everyone else is. Therefore, we must support other countries, but this is not a binary choice; we can do both. We can secure our own populations and help those elsewhere in the world as well.

My Lords, is it any wonder that we face a tidal wave of omicron when we have provided only one-fifth of the vaccine doses promised to countries overseas? Did the Minister hear the evidence given by an expert to the Select Committee in another place that it was very short-sighted of the Government not to support the facility at Livingston in Scotland which was ready to provide hundreds of millions of doses that could be sent overseas? Will he ask his colleagues in the departments concerned to think again about keeping that facility open?

My Lords, one thing that the challenge of Covid-19 has shown is our interdependency and the need to work together. We have certainly demonstrated that. On the noble Lord’s first point about short-sightedness, on the contrary, when my right honourable friend the Prime Minister returned from his own challenge with Covid-19, the first thing he did was to spearhead the COVAX facility. That is doing exactly what the noble Lord suggests in ensuring that the most vulnerable are supported. I shall follow up on his specific question about the Livingston facility.

My Lords, there have been reports in the press that the problems in sub-Saharan Africa relate not to supply but distribution. Which is the difficulty, supply or distribution of vaccines?

My Lords, there is a need to do more on supply to ensure equitable distribution of vaccines. However, as I have said in earlier answers, there is equally a real challenge with infrastructure in developing parts of the world to ensure that, once vaccines arrive, they can be distributed around the country.

Breast Screening


Tabled by

To ask Her Majesty’s Government what plans they have to ensure screening of the estimated 1.2 million women in England who missed breast screening during the COVID-19 pandemic; and what assessment they have made of the extent to which health disparities may have been exacerbated due to the reduction in screening attendance.

My Lords, I beg leave to ask the Question standing in the name of my noble friend Lady Morgan on the Order Paper.

Recovery of screening has been an ongoing priority and all NHS breast screening providers are now operational. We allocated £22 million towards mobile breast screening units and £50 million towards increased regional capacity, and have collaborated across cancer alliances, primary care networks and NHS England and NHS Improvement regional teams to promote uptake. We know inequalities in screening exist, exacerbated by changes to service provision during the Covid-19 pandemic. Inequalities remain key in restoration planning, and guidance was recently published on reducing inequalities in breast screening.

My Lords, I thank the Minister for his reply. He appears to be aware that it is in fact minorities and socially deprived women who have been hardest hit by the shortfall in screening take-up due to Covid. I understand from his response that the Government are issuing guidance. What action will that guidance envisage to ensure that these minorities and deprived women receive screening for breast cancer?

The noble Baroness raises a very important point; we need to tackle inequalities not just in this area but across all healthcare. One of the things we have been looking at is research into why women in certain areas do not come forward. That is why we have invested in mobile breast screening units, so that we can take screening services closer to those people who are reluctant to come forward.

My Lords, we heard the Minister’s Answer about the money that has been pledged, but the elective delivery plan promised by the end of November has not been published. Can he say when it will be published and how it will help to find and treat the just under 10,000 fewer than usual women who would have been diagnosed with breast cancer between March 2020 and October 2021?

The plan will be published in due course. When we look at the backlog for the breast screening programme, we see that all 77 NHS breast screening providers are now operational and screening women. Some have caught up, and others are not predicted to recover by the end of March 2022. That is why NHS England and NHS Improvement have comprehensive plans, including spending and investment.

My Lords, as I can testify, breast cancer screening is vital. Allied to this is the need for funding for secondary breast cancer. I know that an audit has been launched here in England, but there are no such audits for secondary breast cancer in Northern Ireland and Scotland. Will the Minister use his good offices with those appropriate Ministers to ensure that such audits are established and that this House can be furnished with ongoing reports of the audit here in England, and the results thereof, to ensure that funding can be deployed into oncology, nursing and care support?

I thank the noble Baroness for raising the importance of co-ordination and sharing information across the devolved Administrations. I have meetings scheduled with health Ministers from the devolved Administrations, and I will make sure that my office puts this on the agenda.

My Lords, following on from the question of the noble Baroness, Lady Ritchie, will the Minister tell us how the stage of presentation of breast cancer has altered over the past two years? How many women presenting with stage 3 and stage 4 cancers had never been screened?

I thank the noble Baroness for giving me advance notice of the question, and so giving me the chance to get some information. Data on cancer stages is currently published only annually, and NHS Digital is publishing the data from 2019 on Thursday 16 December. The latest data from 2018 shows that nearly 86% of breast cancers were diagnosed at stages 1 and 2, meaning that about 15% were diagnosed at stages 3 and 4, but this was pre-pandemic. I will make sure that I get the updated data as soon as possible.

My Lords, in October, when we last had a Question on this issue, the Minister was asked about the need to ensure that innovative new treatments such as Trodelvy reach patients as quickly as possible. I gather that this issue is still not resolved. As yet, there is no agreement between the drug company Gilead and the NHS, which means that access to this transformational treatment is extremely ad hoc and unfair. Will the Minister please help to expedite this issue with NICE, the MHRA and the manufacturer?

As the noble Baroness will acknowledge, the MHRA and NICE are independent, but I can, of course, raise the issue with them.

My Lords, can my noble friend confirm that the incidence of breast cancer increases with age? If I am right in that, what plans do the Government have to help older women?

The statistics we have show that four out of five breast cancers tend to develop in women over 50. Therefore, screening is really for women between 50 and 71, which will catch most of them. The 2012 review of breast cancer screening, the Marmot review, estimated that inviting women between the ages of 50 and 70 reduces mortality in the population invited by 20%. It also found concerns about screening women outside those ages and overdiagnosis.

My Lords, this issue, like many across the NHS, is exacerbated by what the Financial Times today referred to as a workforce crisis. When will the Government take urgent action to stem the large and increasing outflow of trained medical personnel that is proving so debilitating to the provision of health services across the board?

In previous debates this week I have outlined what we are doing to increase recruitment. On the specific issue in the mammography workforce, Health Education England is providing £5 million to support a new training and development programme through the National Breast Imaging Academy. That itself will increase recruitment, improve screening targets and increase early diagnosis of cancer.

My Lords, while we wait for the routine screening programme to get back to normal, is there a fast-track mechanism for women who believe they have themselves detected a lump or a worrying change in their breast tissue to be screened and seen by a specialist?

The method for booking screenings has now changed, so people can book online on demand, rather than waiting for a referral.

Does the Minister agree that it is beyond doubt now that screening is beneficial? Can he assure us that no credence is given to those arguing that screening leads to overtreatment? Can we say that that is scotched?

My Lords, the noble Baroness, Lady Masham of Ilton, wishes to speak virtually, and I think this is a convenient point for me to call her.

My Lords, as GPs are having to work in vaccination centres, would it be possible for people who think they have or may have cancer—breast cancer or other cancers—to go straight to secondary care for investigations? GPs cannot do everything at the same time. Does the Minister agree with me that it is important to have a speedy diagnosis for cancer?

I think all noble Lords would agree with the noble Baroness that it is important we have speedy diagnosis. On the specific question, I will check and get back to her.

My Lords, will the Minister accept that, at the same time as aid and assistance to the developing world is being cut in the health sector, we are increasing the recruitment of doctors and nurses, not least from Africa, while Africa is experiencing a real issue with the distribution of the Covid vaccine? Is there not something terribly wrong there?

I thank the noble Lord for raising the issue; I know he has been a strong champion of Africa over the years. The fact is that, when it comes to recruitment, we adopt ethical guidelines in line with the World Health Organization. I will give him one example. Recently, I had a discussion with the Kenyan Ministry of Health about sending Kenyan nurses. I asked whether we were depriving them of their nurses, and was told “No; we train far more nurses than our health system can absorb, and therefore we see this as a powerful way to increase earnings for our country.”

My Lords, further to the question asked by my noble and gallant friend, Lord Stirrup, the Minister’s answer related to what was happening in the recruitment of new staff. Can he say something about what the Government are doing to retain existing staff?

I have previously announced government investment in retention programmes and looking at getting back those who have retired and increasing training places in medical schools and elsewhere.

My Lords, going back to the question from the noble Baroness, Lady Fookes, could the Minister remind the House exactly what is the rationale for not including women over 70 in the screening programme, given that, as he has conceded, vulnerability to breast cancer increases with age?

The Marmot review found that screening women outside the ages of 50 to 70 could lead to overdiagnosis and to referring women for unnecessary tests and overtreatment. But women in other categories with a very high risk of breast cancer—those with a family history, for example—are often screened earlier and more frequently. Women are not automatically invited for breast cancer screening if over 71, but they can request screening themselves.

Covid-19: Entertainment and Arts Venues


Asked by

To ask Her Majesty’s Government what further support they will provide to entertainment and arts venues following the introduction of new COVID-19 regulations.

My Lords, Her Majesty’s Government are continuing to support the sector through the Culture Recovery Fund, which has provided nearly £2 billion of public support for arts and culture. To help people over the winter, we have reopened the emergency resource support strand of that programme, giving more applicants at risk of financial failure an opportunity to bid for support. We continue to work with our arm’s-length bodies and the sector to understand the pressures being felt as a result of the pandemic and the move to plan B.

My Lords, the Minister will be aware of the considerable difficulties the arts are having getting back on their feet, with many venues experiencing low ticket sales before the most immediate crisis. Will the Minister look again at the Live Events Reinsurance Scheme, which does not cover regulations that make events financially unviable or where cancellations occur because of staff contracting Covid? Will the Minister look as well at extending the Culture Recovery Fund to creative freelancers, many of whom, particularly in the music sector, did not receive help under the Self-employment Income Support Scheme?

My Lords, the noble Earl is right to point to the fact that we are doing everything we can to support the sector to return to doing what it loves and what people love to enjoy it doing. We launched the live events reinsurance scheme in September, and I will certainly look at examples where people are not able to benefit from it. Self-employed people have been able to enjoy some of the other support that has been given by the Treasury but, again, I am very happy to hear from freelancers and those representing them to make sure that the support is being given.

Does my noble friend acknowledge that English choral music is particularly enriched by church music? Is the Royal School of Church Music eligible for grants from the Culture Recovery Fund?

I do not know specifically, but I will follow up on my noble friend’s request, find out whether it has bid for any of the rounds of the Culture Recovery Fund and write to him with the answer.

My Lords, I declare an interest as a director of Carlisle United Football Club. What plans do the Government have to ensure that places are available for away fans in football games which are subject to the latest Covid regulations?

I will discuss that matter with my honourable friend the Sports Minister. Of course, the Culture Recovery Fund has been helping organisations right across the wide range of things that people enjoy.

My Lords, yesterday’s newspapers reported on the new musical “Cabaret”. These five-star reviews remind us what a magnificent magnet our London theatres in particular are for inward investment and tourism. However, the Society of London Theatre is warning us that these new circumstances—and they are new; the Prime Minister had to have a special broadcast, and we have to have special legislation—mean that the theatres are now faced with entirely new threats, yet from the department it still sounds like it is business as usual, rather than action this day.

My Lords, the department, both at official level and ministerially, has been speaking to the sector throughout the pandemic. Of course, we have stepped that up since the move to plan B. I have a meeting tomorrow with our venue steering group so that I can hear from it myself. I have been to two theatres since we moved into plan B: the Young Vic on Thursday, and the Greenwich Theatre to see the pantomime at the weekend. I am pleased to report that they were full houses of people wearing masks. The most important thing we can do to support not just the cultural sector but every part of our economy is to get our boosters, wear our masks and have consideration for those around us.

My Lords, given that so many freelancers fell through the Government’s welcome support network during Covid, the noble Baroness, Lady Stedman-Scott, promised from the Dispatch Box to write to me about the rules concerning universal credit, because she accepted that there was a problem. Would the Minister be kind enough to fulfil that promise, as I have yet to hear from her? Also, the double whammy of Covid and the restrictions on touring have really hit the musical sector. Given that the Prime Minister, Boris Johnson, told us that the advantages of Brexit would outweigh the disadvantages, could the Minister enlighten me as to what advantages the creative sector has so far garnered?

My noble friend Lady Stedman-Scott has been away for a few days, so I will certainly pick that up with her office to make sure that the noble Lord gets the answer to his first question. I also have a meeting with counterparts in the DWP to take up this issue in response to a question we had in a debate recently with the noble Lord, Lord Cashman, and others. As the noble Lord, Lord Berkeley of Knighton, knows, we continue to work bilaterally on touring. We provide information on GOV.UK to make sure that the sector has clarity about the rules, and we are making progress with many other countries in ensuring that they match the welcoming access we provide to musicians who want to come to the UK.

My Lords, many venues which took out government-backed Covid loans early in the pandemic are either now starting to repay the loans or are coming up to being asked to repay them. With the continuation of the pandemic, are the Government looking at whether those repayments can be deferred? Given the contribution that live entertainment and the arts make to our well-being and that of our communities, what work is being done across government, including with the Treasury and the Department for Levelling Up, Housing & Communities, to recognise that so that this time, if needed, support measures can hit the ground running?

My Lords, the money continues to be disbursed. So far, we have helped more than 5,000 organisations around the country and the money continues to go out. As we set out in the accompanying fund guidance documents, the Government will keep the delivery of the funding under active review and will consider how best to adapt it in line with the needs of the sector. We continue to work with other departments to make sure that our response is appropriate.

My Lords, many public houses have a tradition of providing live music. That seems to have ceased since Covid. Have the Government any measures whatever to try and encourage public houses to start to open up as venues for live music?

The rules on certification vary depending on the size of establishments, their opening hours and whether they serve alcohol after certain times. The noble Lord is right that live music can be enjoyed in all sorts of settings and we want people to get back to doing that safely. The best way for them to do that is to help us by getting their boosters and wearing their masks.

My Lords, does the Minister agree that the cultural venue future for the north of England would be considerably enhanced if communications were improved—that is, if you could actually get to venues in the first place? What weight are he and his department giving to discussions about northern rail and other transport infrastructure?

The right reverend Prelate makes an important point. We want to ensure that people have access to entertainment, arts and culture wherever they live and however they get there. We work with the Department for Transport, local authorities and metro mayors to deliver that.

My Lords, I remind the House of my interests. The noble Lord has rightly focused on the enjoyment that people get from the arts and of course I would be entirely in sympathy with that, but he has not mentioned the economic benefit that comes to the country from the success of the sector. That very much includes the performing arts, particularly theatre. Have the Government made any assessment of the likely impact on our economy if there is serious damage to that sector over the next few months or years?

The noble Baroness is absolutely right. This is about not just the enjoyment that the arts bring but the contribution they make to our economy and society. The Culture Recovery Fund was testament to that—money from the Treasury to make sure that our vibrant and expanding cultural sector was still there and in good health as we emerged from the pandemic. That is why we keep that under review and are keen to ensure that it can continue to grow as quickly as it has been.

As most people get their entertainment from television and from Netflix and Amazon, is there a way that we can tax these much more severely because they take so much out of our live music, our theatres and all sorts of things? Can the Minister not start petitioning for a real tax of Amazon and all those others?

My Lords, during the pandemic thanks to the Culture Recovery Fund a lot of independent venues have been able to stream the work that they have done, bringing it to people to enjoy in their homes. A lot of the film and television production companies have been working with us, making use of apprenticeships to help get lots of people into the creative industries and taking up job opportunities. They are part of the solution. We want a thousand flowers to bloom.

Subsidy Control Bill

First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Armed Forces Bill

Commons Reasons

Motion A

Moved by

That this House do not insist on its Amendment 1B, to which the Commons have disagreed for their Reason 1C.

1C: Because a presumption in favour of the offences in question being heard in the civilian courts is not necessary or justified.

My Lords, with the leave of the House I will speak also to Motion B.

Your Lordships will understand that the Bill is essential. It must pass this week or the Armed Forces Act 2006 will cease to have effect. As my honourable friend Mr Leo Docherty, the Minister in the other place, made clear yesterday, we have been listening to the concerns of noble Lords and honourable Members and the Government have responded to them. We recognise that all Members of this House want to do the best they can for our Armed Forces and to support them in the vital role that they play.

I turn first to the views put forward by the noble Lord, Lord Thomas of Gresford. I think we all agree that criminal wrongdoing must be robustly and swiftly addressed for the sake of our service personnel and for the victims of crime. We respectfully maintain that the provisions in the Bill will meet these concerns. They will require civilian prosecutors across the United Kingdom to agree with the Director of Service Prosecutions protocols for determining in which jurisdiction cases should be heard. The Bill provides that civilian prosecutors will always have the final say on the choice of jurisdiction under those protocols.

The Government therefore agree that civilian prosecutors should be able to decide whether a case proceeds in the service or civilian jurisdiction. However, we are unable to agree that a role for the Attorney-General is needed, and we consider that it is wrong for there to be an explicit and inbuilt bias towards one system or the other. Each system is and should be capable of dealing with all types of offending, with decisions made by prosecutors on a case-by-case basis. The service justice system will be dealing with all offences when they occur overseas, and it really makes no sense to truncate our capability in this area and create the very real risk that the system could be seen as second class if serious offences such as rape and serious sexual assault can be dealt with in the service justice system overseas but not in the United Kingdom.

There was some discussion in this House last week about the implications of this amendment for Scotland and Northern Ireland. The earlier amendment applied only to England and Wales, giving the role of authorising a service justice prosecution to the Director of Public Prosecutions after consulting the Attorney-General. The latest amendment retains that feature but creates rules for Scotland and Northern Ireland, giving the authorising function to the Lord Advocate in Scotland and the Director of Public Prosecutions for Northern Ireland.

Let me be clear that this formulation remains unacceptable to the Government. As I have said, the provisions of the Bill already give the final say on jurisdiction to the civilian prosecutors: the Director of Public Prosecutions, the Lord Advocate, and the Director of Public Prosecutions for Northern Ireland. Our objection remains to any involvement of the Attorney-General or Attorney-General for Northern Ireland and to any inbuilt bias towards either system, for the reasons which I have explained.

We recognise, however, that we could increase confidence in the service justice system by being more open and transparent about the cases that the system is dealing with. This is why a specific commitment was given in the other place yesterday to improve our annual statistical update on offences contrary to the Sexual Offences Act 2003 and historic sexual offences dealt with in the service justice system to include other serious offences. Our bulletin in spring 2022, published on the GOV.UK website, will, in addition to reporting on rape statistics, now include granular data on cases of murder and manslaughter, and for sexual offending those cases involving personnel serving in the Armed Forces who are under 18 at the time of the offence. Furthermore, from January 2022, we will start to record separately information about domestic violence and child sexual abuse offences in the service justice system so that these too can be reported in our spring 2023 bulletin.

Greater reporting will enable the Government to be held to account and to transparently monitor the health of the service justice system so we can make adjustments and improvements where necessary. We know of course that the service justice system deals with a significantly lower number of cases than the civilian system and that small variances in the data can produce seemingly large swings in performance when expressed as percentages. However, low case numbers aside, the service justice system has trained police investigators, prosecutors and judges who are experienced and capable of dealing with the serious offences which are of concern here. We are strengthening and improving investigative capability through the defence serious crime unit.

I now turn to the views of the noble and gallant Lord, Lord Craig, on the need for a report to be laid within six months of this Bill receiving Royal Assent, setting out the implications of not applying a new covenant duty to central government. I appreciate the sincere desire that lies behind the original amendment. As the Minister explained in the other place yesterday, the Government have already committed to reviewing the operation of the covenant duty to indicate whether other policy areas or functions could be usefully included. We have listened carefully to the views expressed in both Houses and, recognising the strength of feeling across both, the Government have now committed to going further and have set out in clear terms how such a review will occur. I am pleased to repeat these clear terms, to share that commitment, and to set out as follows how we see such a review progressing.

The review will encompass the operation of the new duty across the UK, going further than your Lordships’ proposals, and it will consider whether it would be beneficial to exercise any of the powers conferred by this Bill to add to its scope. This will include specific consideration of whether central government and any of its functions could usefully be added. The Government will report on the review as part of the covenant annual report in 2023, 18 months after the new duty is expected to come into effect. This timescale is more realistic than the six-month timeline from Royal Assent suggested by your Lordships, which is too short a period for any meaningful review to take place.

Once the Bill is passed, elements of the new duty, such as the statutory guidance, will require further statutory consultation and parliamentary scrutiny. We expect to see the new duty standing up in law by the middle of 2022 at the earliest, which is around the time that your Lordships’ amendment would have required a report. We also need to allow for an implementation period to give local authorities time to adjust to their new responsibilities. Therefore, to conclude and publish the review at the 18-month point of the new duty having been in operation is most appropriate.

Recognising the level of interest in this new duty, we will provide an update in the covenant annual report in December 2022, some six months after the duty is expected to come into effect. We will be able to say more at this point about the scope and methodology for conducting the review, and Members of Parliament will have the opportunity to assess and comment in the 2022 covenant report debate. We are committed to ensuring that parliamentarians from both Houses can contribute and give their views as part of the review process.

I have sought to reassure this House where I have been able to do so. We are up against time, the Bill must pass, and I urge noble Lords to support the Government. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

1D: Page 4, line 27, at end insert—

“(4A) Guidance under subsection (3)(a) must provide that where offences of murder, manslaughter, domestic violence, child abuse, rape or sexual assault with penetration are alleged to have been committed in the United Kingdom, any charges brought against a person subject to service law shall normally be tried in a civilian court unless, by reason of the circumstances, including but not limited to specific naval or military complexity involving the service, trial by court martial is directed by—

(a) in England and Wales, the Director of Public Prosecutions, after consultation with the Attorney General;

(b) in Scotland, the Lord Advocate;

(c) in Northern Ireland, the Director of Public Prosecutions for Northern Ireland, after consultation with the Attorney General for Northern Ireland.””

My Lords, the Justice Minister, Dominic Raab, speaking on “Today” this morning, said:

“I’m proud of our tradition of freedom in this country. We believe in liberty under the rule of law … We want to reinforce our typical British liberties like freedom of speech, the liberty that guards all the others … trial by jury, that’s a common-law right, very much part of the British tradition.”

In another part of the thicket, the Defence Secretary, Mr Ben Wallace, is seemingly against trial by jury and is acting contrary to the advice of his advisers and the judgment of his departmental Ministers, as Johnny Mercer, the Minister for Defence People and Veterans until April of this year, told us last week. Mr Wallace refuses to accept that, where charges are brought against a person subject to service law for serious cases of murder, manslaughter, rape or serious sexual offences allegedly committed in the United Kingdom by a person subject to service law, there should be a presumption that the accused should have the “common-law right” to trial by jury. Let us spell it out clearly again. If you join the services, you lose the common-law right to trial by jury—which is very much part of the British tradition, as Mr Raab would have it.

In the Commons last week, Sarah Atherton, the Member of Parliament for Wrexham, who has made her way up from the ranks of the Intelligence Corps to the green Benches in the other place and to the chair of the defence sub-committee charged with studying this issue, voted against her own Government and in so doing lost her ministerial appointment.

Nevertheless, Leo Docherty, the Minister, said of her last night:

“I put on record our gratitude for that hugely important piece of work, which we will use as a lever to accelerate institutional change to ensure that women can thrive in military careers”.

It is rather ironic that a government Minister expresses his gratitude for Sarah Atherton’s work, which will ensure that women can thrive in military careers, while his Government reward her with the sack. What did that hugely important piece of work from Sarah Atherton reveal? Speaking on the debate on this amendment in the other place yesterday evening, she said:

“The House is aware that the Defence Committee’s inquiry into the experiences of women in the armed forces opened up a catalogue of harrowing evidence around sexual assault, rape, gang rape, poor standards of investigation, and the manipulation of power to deliberately disadvantage servicewomen in complaining or seeking justice.”—[Official Report, Commons, 13/12/21; cols. 824-827.]

She was joined in her opposition to and vote against the Government by three Conservative Members of Parliament with military experience: Tom Tugendhat, a lieutenant colonel who served in Iraq and Afghanistan; Johnny Mercer, who did three tours in Afghanistan as a commando officer attached to Special Forces; and Philip Hollobone, a territorial in the Paras for some eight years.

This amendment reflects the first recommendation of the review carried out by His Honour Shaun Lyons CBE. He achieved the rank of lieutenant commander in the Royal Navy at the age of 32. Later, he served as Chief Naval Judge Advocate for three years. Later, as a judge in the Crown Court, he was ticketed to try, with a jury of 12, all the serious cases that we are concerned with and which he said should be heard in the ordinary courts of this country.

On the Government’s side, Sir Richard Henriques in his report was content with concurrent jurisdiction. So be it. I have huge respect for Sir Richard and his career at the Bar and on the Bench, but I have not found a military element in it. I hope that all his recommendations and areas within his terms of reference will be accepted by the Government, but what were his terms of reference? They were:

“Policing, prosecutorial and other processes for addressing credible allegations emanating from overseas operations”—

nothing to do with what happens in this country.

He was required, in his first term of reference, to

“Build upon the previous Service Justice System Review”

by His Honour Shaun Lyons

“the recommendations of which MOD”

was then considering,

“and not undertake another broad review of the Service Justice System or investigate specific cases.”

His second term of reference was to

“Focus on setting the context for the future so that we can be sure that, for those complex and serious allegations of wrongdoing—against any of our forces—which occur in theatre on overseas operations, we have the most up to date and futureproof framework, skills and processes in place and can make improvements where necessary”.

His view on the jurisdiction for offences committed in the United Kingdom, is, as we lawyers say respectfully, obiter.

The minor alterations to the amendment before the House today reflect the trivial criticism advanced last time that I had omitted to refer to the other criminal jurisdictions in the UK. That is a pretty desperate argument, dreamed up, no doubt, by some intern in the Ministry of Defence.

In my previous remarks in support of my amendment last time, I dealt extensively with the problems of servicewomen reporting sexual offences up the chain of command, their treatment and their difficulties in giving evidence before a court martial panel of officers. Your Lordships will be pleased to hear that I shall not repeat it, but the evidence of the experienced social worker Paula Edwards, of the charity Forward Assist, given to the Atherton committee on 4 March, contains the essence. She was asked by the committee what support the servicewomen who came for help to her organisation received from the military. Her reply was, “None.” She said:

“They don’t get sexual assault screening. When they do make a complaint, it is often to a perpetrator or to somebody who victim-blames and makes that woman feel like she is to blame, like she was asking for it, which, of course, makes that woman have significant mental health problems, and it goes round in circles. A lot of the women do not get any support. The investigation isn’t fair or just and it has poor outcomes for women in the Military.”

That is the view of someone very experienced in dealing with the victims of sexual offences.

Last night, the current Minister of Defence People and Veterans, Leo Docherty, gave the reason for resisting this amendment:

“the Government believe very strongly that the SJS needs to retain the full complement of capability because our armed forces are expeditionary by design and our justice system also needs to be expeditionary”.—[Official Report, Commons, 13/12/2021; col. 815.]

The picture immediately springs to mind of a red-coated regiment marching through the streets packed with cheering, waving crowds to the sound of the regimental band, followed by a ragtag of lawyers, before embarking to go abroad on some colonial enterprise. We are not dealing with overseas expeditionary forces, but with serious criminal offences that occur on the soil of Great Britain and Northern Ireland.

In speaking further on this amendment, Mr Docherty’s big concession, repeated by the Minister today, was to promise improved statistics to cover all the offences listed in 2023. He said:

“We believe that this will increase the transparency of, and the confidence in, the service justice system, and we welcome this scrutiny … and it is right that data is available to hold the Government to account”.—[Official Report, Commons 13/12/2021; col. 814.]

My specific question to the Minister is whether that promised transparency will extend to publishing the precise terms of the protocol that is to be agreed between the Director of Public Prosecutions and the Director of Service Prosecutions on the question of venue, as other prosecutorial protocols are routinely published. I beg to move.

My Lords, it is with pleasure that I support the amendment in the name of the noble Lord, Lord Thomas of Gresford. It has been a long campaign since I first initiated a series of debates following the case of Sergeant Blackman for murder. I also note, as the noble Lord, Lord Thomas, has said, the proposals of the Lord Chancellor to embed the right to trial by jury in his reforms, as was referred to this morning. It would be gravely inconsistent of the Government to declare this right in statute while denying it to service men and women.

The right to trial by jury—the right to trial by one’s peers—goes back to Magna Carta, with all the protections that have been hammered out over the years for majority verdicts, announced publicly, with everyone knowing exactly what is happening and the careful directions that are given to juries. It should be the right of every serviceman and every servicewoman, too.

I rise to support Motion A1 in the name of the noble Lord, Lord Thomas of Gresford. The key issue is trial by jury. I completely accept the improvements in the service justice system—I saw them in my former role as Lord Chief Justice. However, the Minister does not grapple with the fundamental issue: why take away the right to trial by jury? It is important, because sometimes Ministers misspeak on the “Today” programme, to see what the Deputy Prime Minister wrote in this morning’s Times:

“Trial by jury is another ancient right, applied variably around the UK, that doesn’t feature in the ECHR, but will be in our bill of rights. We should be proud of our history of liberty—and preserve a human rights framework that promotes it.”

It seems inconsistent with that declared policy of Her Majesty’s Government that the Ministry of Defence opposes the fundamental right of trial by jury for those who put their lives at risk for our country. That is what this amendment has at its heart.

It seems to me that by their support of this amendment in the course of debate, the Opposition have accepted that a mistake was made in 2005 when the right to trial by jury was taken away from those in the armed services for these very serious offences. Why does the Ministry of Defence not have the courage to admit that a mistake was made and restore the fundamental right of every member of the Armed Forces to trial by jury for these most serious offences?

My Lords, I give a cautious but warm-hearted welcome to the remarks and undertakings from the Dispatch Box by the Minister about my amendment. She will recognise that the amendment last week required a report from the Secretary of State about why he, and so central government, should not have statutory authority or due regard. As the Government have stated in both Houses that they have reached the view that legislation is not necessary, it should not have been unduly onerous or difficult for them to explain why in a report to both Houses in the six-month timeframe. Now, however, I sense a changing view and the need for a longer period before making a report.

This change of view is most welcome. It has effectively been demonstrated since Report by the decision of the MoD to refer the case of the Hong Kong Military Service Corps to the Home Office, from one central department to another, dealing with a veterans issue that could not be gripped at devolved or local authority level. However, the MoD must continue to discharge its responsibilities to those veterans. It must continue to take an active interest in their plight until the Home Office responds. Will the Minister give that undertaking now? It should not need to wait for further consideration under the Nationality and Borders Bill when it comes to this House. My hope is that the Government will take “nonne” or a “ne” rather than a “num” approach in answering the request and reporting on why central government must have a legal covenant duty of due regard.

I am very conscious that time is pressing to gain Royal Assent, without which the Government have no statutory right to military forces. I was also somewhat reassured by the Minister’s statement in the other place, so I have not moved any further amendment. I thank the Government for conceding that the role of central government must be considered and reported upon to Parliament.

My Lords, let me say once again that Her Majesty’s Opposition support the Bill; we have sought only to challenge the Government to improve it. I believe that, including today, it has been a very good debate in your Lordships’ House, with important contributions from all parts of the Chamber. As we have seen, this has led to many important clarifications and further commitments from the Government. In this, the House has been helped by the approach of the Minister, who has been both engaging and constructive in the work that she has done.

We accept the Government’s Motions A and B as sent back to the House today, but we remain determined to hold the Government to account as we go forward, ensuring that commitments made on the record—both in this House and in the other place—are indeed met. We remain disappointed that the Government have not agreed to Motion A1 in the name of the noble Lord, Lord Thomas of Gresford, which we have supported all along.

We will want to test the Government on the commitments that they have made on transparency. Leo Docherty MP talked about all sorts of statistics, which were now to be used by the Government to enhance transparency with respect to serious violence, serious sexual violence, the recording of sexual offences against under-18s and so on—and these will be included in the annual report. When reporting those statistics, however, what will happen if problems remain despite the Government’s belief that the service justice system, as it is to be constituted, will improve the situation? What if the situation does not change? Will that be the time, perhaps, for the Government to consider Motion A1 in the name of the noble Lord, Lord Thomas of Gresford, supported by the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Morris of Aberavon? It would be helpful if the Minister could say how the Government will judge the statistics that they are committed to publishing with respect to dealing with sexual violence and sexual offences within the criminal justice system.

I turn to the amendment in the name of the noble and gallant Lord, Lord Craig, and, much as he has done, welcome the changes and further commitments that the Government have made on reporting with respect to the covenant, its scope and its extension to government—so that government itself must have due regard to it—with the first annual report to be published in 2023, and an interim report in 2022. We welcome that, but what happens if these reports show that change is needed, and how will they be reported to Parliament?

We believe that the Government have moved forward, making concessions and additional commitments. We thank the Minister for ensuring that the debate has taken place and has been used to inform decisions in the Ministry of Defence; I am sure that all your Lordships welcome that. However, as the Minister knows, serious questions remain around the amendment of the noble Lord, Lord Thomas of Gresford. We look forward to seeing how these will be dealt with as we go forward.

It would not be appropriate for us to allow the Bill to pass today without once again praising the bravery and professionalism of our Armed Forces. As well as their duty abroad, they are once again to be called upon to help in the fight against the pandemic. Whatever discussions and debates we have, they should know that this Chamber, and all your Lordships, recognise that duty and service as we pass this Bill. We will never, and should never, take that for granted.

My Lords, I start by echoing the sentiments of the noble Lord, Lord Coaker, because throughout the Bill’s progress in this House, we have genuinely had well-informed debates which have been extremely helpful in the scrutiny of the legislation. I again pay tribute to all who have facilitated that positive review of it. I also thank the noble Lord for his kind remarks.

Let me try to deal with some of the points which have arisen. In relation to the service justice system, there was a sense of reprise of previously presented arguments. I know they were presented in good faith. Some have now been addressed by the Government, but, as your Lordships will be aware, others they reject. We have a fundamental point of principle here, which is that some of your Lordships feel that there should be a bias and an explicit tilt towards the civilian system, while the Government are not convinced that that is in the interests of the service justice system or of those who would have to use it. What matters is that the service justice system is robust, which it is, and this Bill introduces many improvements to it.

I do not want to bore your Lordships by repeating the arguments I have previously adduced as to why the Government support the approach of concurrency of jurisdiction. I simply observe that trial by jury is not a part of the service justice system, but we require a system which works both overseas and across the United Kingdom, is professional and has capability and capacity. That is what this Bill provides.

The noble Lord, Lord Thomas of Gresford, asked me specifically about publishing the detail of the protocols. I would direct him to Clause 7, creating a new Section 320A, and to subsection (8) of that, which directs that the current version of the protocol must be published in whatever manner the directors think appropriate.

I thank the noble and gallant Lord, Lord Craig of Radley, for his kind remarks and his acknowledgement of the Government’s willingness to hear his concerns and to seek to address them. I am not a position to deal with the specific point that he raised, but he will know that announcements are likely in the near future.

The noble Lord, Lord Coaker, raised two issues. He asked what would happen if the publication of the more detailed data and statistics for the service justice system caused concern. I said that we are very clear as a Government that that additional data will help to inform us as to where we may need to make adjustments or where improvements may be necessary if issues arise which occasion concern.

On the covenant, the noble Lord asked a similarly aligned question about the reports: what if they suggest that the positive progress we all want is not being made as effectively as we would hope? First, that will inform the Government, but, secondly, as his honourable friend in the other place said, it is the job of opposition to hold the Government to account and to scrutinise. I absolutely agree with that; that is what the Opposition exist to do. I know that the noble Lord, Lord Coaker, is an exemplar of holding me as a Defence Minister to account, and I am sure that formidable and tenacious approach will continue.

What this Bill and our debates are all about, and what we try to do in improving this legislation, is of course for the benefit of our Armed Forces. All of us are very conscious not only of what they have done over time, of the sacrifices they make and of the commitment they give, but, perhaps very particularly at this time, of the extraordinary support they have been giving to the country during the pandemic. I know that your Lordships will want on behalf of this Chamber to express our unqualified appreciation—

Before the Minister sits down, I would be grateful if she could write at some point saying why trial by jury is not being conceded for members of the Armed Forces. It may require some legal argument. I would be delighted to read it.

I will address the noble and learned Lord’s point in a moment, but if I may continue with my tribute, it is very important for this House to send a message to our Armed Forces that we absolutely value everything they are doing. I am particularly conscious of that at this time. Their contribution is extraordinary and invaluable to the country, and we would want them to know just how much we appreciate that.

The noble and learned Lord will be aware that the jury system is not part of the service justice system. It is the view of the Government that the service justice system is robust, that this Bill will make distinct improvements to it and that it has to operate in a manner which makes it fit for purpose both overseas and across the United Kingdom. That is what this Bill does. I beg to move.

If the Minister will allow me, will she deal with the inconsistency between the Lord Chancellor’s remarks this morning that he seeks to embed the right to trial by jury in statute and the fact that, at the same time, this is being denied to service men and women?

I think the noble and learned Lord overlooks the tradition of the service justice system and why we have such a system. That has been one of its characteristics over decades: that is the character of the system. It exists to serve a particular purpose, which most people in this Chamber acknowledge, and that is why it has different characteristics from the civilian justice system.

My Lords, I thank everybody who has contributed to this debate. Many fine words have been said and two issues have really come forward. The first is the denial of the right to trial by jury to members of the Armed Forces—they sign away that right when they join up. This issue will not go away but will rumble on and on.

The second issue relates to victims and the problems so clearly delineated to Sarah Atherton’s committee. She had representations from more than 4,000 women serving in the Armed Forces, all going the same way. Indeed, one person from an NGO which helps them said she was looking after 600 servicewomen, none of whom wanted trial by court martial; all wanted their right to have a trial in the ordinary courts so that the alleged transgressors could be brought to justice in the ordinary way.

This is absolutely fundamental to the constitution of this country. Regarding what the noble and learned Lord, Lord Morris, said a moment ago, in his press release today Mr Raab talked about the Magna Carta, the Bill of Rights, the Slave Trade Act and so on, calling them to his aid in supporting the right to trial by jury. It is a simple point.

I am very conscious that there are good things in this Bill that I have worked for for ages, such as majority verdicts in courts martial. I do not want to see this Bill fail, nor do I want the military to be let loose at this particular time by this Bill falling for lack of time. Therefore, I do not propose to press my amendment, but I hope we will come back to this issue. I hope that that will not be in five years’ time with our next Armed Forces Bill but that, once statistics emerge and show us the true situation, the Government will have the guts to admit that they were wrong.

This is not a historic thing going back decades. Jurisdiction was given to courts martial to try murder, manslaughter and rape in 2006, so this is barely 15 years old. Consequently, it is not a great military tradition— if it is being presented in that way. Up until that time, the service justice system insisted that offences committed by servicemen in the United Kingdom, on the soil of this country, should be tried in the ordinary courts. I hope we get back to that very quickly. I will not press the matter and beg leave to withdraw Motion A1.

Motion A1 withdrawn.

Motion A agreed.

Motion B

Moved by

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

2C: Because the proposed legal duty is unnecessary having regard to the Government’s existing obligations.

Motion B agreed.

Education (Environment and Sustainable Citizenship) Bill [HL]


Report received.

Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021

Motion to Approve

Moved by

That the draft Regulations laid before the House on 9 November be approved.

Relevant document: 21st Report by the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument).

My Lords, I will make a Statement on measures to make sure that our health and care system is as safe as possible in the battle against Covid-19 by making vaccination a condition of deployment for more health and social care settings.

Across the UK, the overwhelming majority of British people have played their part by getting vaccinated against Covid-19. Over 81% of people over the age of 12 have had two doses, a figure that rises to around 91% when you look at NHS staff. The impact of this outstanding vaccination effort is clear. The UK Health Security Agency estimates that at least 127,000 deaths and 24 million infections have been prevented as a result of the Covid-19 vaccination programme. In addition, around 260,000 hospitalisations have been prevented in those aged 45 years and over.

But we still need to do more. Uptake rates vary between different health and care organisations and across the country, and, despite the incredible effort to boost uptake across the country, over 94,000 NHS staff are still unvaccinated. It is important that our health and care staff get jabbed to protect the vulnerable who are in their care and to protect the NHS workforce in the wake of new variants, such as omicron. We made vaccination against Covid-19 a condition of deployment in care homes from 11 November this year. Contrary to initial fears, we are not aware of any care home closures where vaccination as a condition of deployment has been the primary cause.

Today, we are putting before your Lordships the regulations to extend this requirement to health and other social care settings, including NHS hospitals and GP and dental practices, regardless of whether a provider is publicly or privately funded. Anyone working in health or social care activities regulated by the Care Quality Commission will need to be vaccinated against Covid-19 if they are deployed to roles that have direct contact with patients or service users, apart from a few limited exemptions—for example, for medical reasons.

I hear the concerns that have been expressed or raised about the impact of these measures on the workforce, especially during these winter months. For this reason, we are allowing a 12-week grace period to give people the chance to make the positive choice to get protected. We are committing to enforcement of the requirements by 1 April next year, subject to the will of Parliament.

We are also increasing the number and diversity of opportunities to receive the Covid-19 vaccine, using the booster campaign to make the most of walk-ins, pop-ups and other ways to make sure that people are getting the vaccine as easily as possible. The NHS has already written to all providers providing early guidance, setting out what vaccination as a condition of deployment means for the system, as well as advising on next steps to boost uptake and help to ensure smooth implementation. After consulting on the policy in September, we have seen a net increase of over 55,000 NHS staff vaccinated with a first dose.

These steps complement key interventions that we have made to support services, including bolstering capacity across urgent and emergency care and the wider NHS, including with a £250 million investment in general practice, £55 million for the ambulance service and £75 million for NHS 111, and publishing an adult social care winter plan, including £388 million to support infection prevention control and £162.5 million for workforce recruitment and retention. In addition, we have invested £478 million for support services, rehabilitation and reablement care following discharge from hospital, and we are ensuring that health and social care services are joined up.

Although the Government believe that these measures are a proportionate way of protecting those at greatest risk, we recognise that some noble Lords have asked whether we should or would extend these measures even further. So let me state clearly that although we have seen plans for universal mandatory vaccinations in some countries in Europe, we do not support them here. The Government have no intention of extending condition of deployment to other workforces or introducing mandatory vaccination more widely.

At this point, I would like to address head on some of the concerns your Lordships may have regarding concerns raised by the Regulatory Policy Committee and the Secondary Legislation Scrutiny Committee about these regulations. I sympathise with noble Lords who are concerned with some of the procedural aspects of the passage of this legislation, but in unprecedented times such as these it is right that the Government do everything in their power to protect the vulnerable.

The Government have responded to the concerns raised by the Regulatory Policy Committee and the Secondary Legislation Scrutiny Committee as quickly as possible and have provided further information to your Lordships, including on the actions on workforce capacity—as I have set out—and the steps we are taking in collaboration with the NHS and adult social care sector to mitigate the risks to small business, which is of particular concern to the Regulatory Policy Committee. An updated Explanatory Memorandum has been provided to Parliament, and the department’s consideration of the RPC’s concerns has been published on the government website.

The updated Explanatory Memorandum provides further information on the scientific and clinical rationale for the policy, the exemptions that have been provided and those not provided, and the steps we have taken to further encourage uptake of vaccinations and to mitigate workforce issues. The Secretary of State also wrote to all Peers on 10 December to set this out.

In these difficult times, we have seen the very best of those who work in health and care. We have seen care, compassion and conscience. Noble Lords across the House continue to pay tribute to the heroic responses across the health and care sectors. Today’s Motion is about protecting not only health and care staff but the patients in their care. By protecting patients and staff, we protect the NHS from being overwhelmed. I commend this Statement to the House.

My Lords, I just want to make a quick adjustment: we are of course debating the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021.

Amendment to the Motion

Moved by

Leave out from “that” to the end and insert “this House declines to approve the draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021 because Her Majesty’s Government have not published a full impact assessment”.

My Lords, I thank my noble friend the Minister for introducing this order with his customary clarity. I tabled my amendment because when I read the excellent report of your Lordships’ Secondary Legislation Committee, I saw red. This was yet another set of regulations from the Department of Health and Social Care that came without an impact assessment. My amendment asks the House to decline to approve the regulations as a full impact assessment has not been published. I was informed by the Printed Paper Office yesterday afternoon that the impact assessment was in fact laid on Friday, which I had discovered online over the weekend. So, to an extent my amendment has been overtaken by events and I do not expect to press it to a Division. The Department of Health and Social Care is, however, still seriously in breach of its obligations in relation to impact assessments with this late document, and I shall move my amendment so that the issues can be debated.

The department published a so-called impact statement alongside these regulations, but noble Lords should be in no doubt that there is a big difference between an impact assessment and an impact statement. The impact statement amounted to nine pages and was in a rather large font size. The impact assessment amounts to 69 pages in a normal font size. The arrival of this impact statement so late is all the more shocking because it has been rated red and not fit for purpose by the Regulatory Policy Committee, which carries out the independent reviews of impact statements required by the Small Business, Enterprise and Employment Act 2015. It is a very unusual for the RPC to rate statements not fit for purpose, so this is a serious issue.

While my instincts are against the compulsion these regulations introduce, I was prepared to be persuaded if a good case had been made. In the absence of the analysis and evaluation accompanying the regulations, the case was not made. The very late impact assessment, together with the RPC’s views, raise many questions that cannot simply be answered by a couple of sentences from my noble friend the Minister at the Dispatch Box or, indeed, by revised papers put on websites late in the day. It suits the Government to operate in this way. They have become accustomed to making sweeping changes to our lives without meaningful challenge from Parliament.

The 21st report of the Secondary Legislation Committee is excoriating in its criticism of the regulations and the quality of the supporting material accompanying them. The noble Baroness, Lady Thornton, had tabled a regret Motion that captured many of these criticisms, and I am sorry she has pulled it, doubtless for political reasons. I agreed with it and would have supported it had she chosen to divide the House. My amendment focuses on impact assessments because this strikes at the heart of effective policy-making and, importantly, effective parliamentary oversight. On effective policy-making, it is a clear requirement on the Government that the development of policy should be subject to rigorous analysis and evaluation of options, set out in a Green Book. There is little evidence that this has taken place.

Secondly, the Government’s better regulation framework builds on that foundation and requires impact assessments to be prepared at the consultation phase for policy development, as well as at the final policy implementation stage—the stage we are now at. Regulatory impact statements at the final stage have to be independently appraised by the Regulatory Policy Committee, but it is voluntary at the earlier consultation stage. It came as no surprise to find that when the DHSC issued its consultation on this policy in September, it did not include an impact assessment, let alone have it independently assessed.

All this raises serious questions about the quality of analysis underpinning the Government’s policy formulation, which has been a concern throughout the pandemic. Some on these Benches have regularly challenged the lack of impact assessments for the policies pursued under the Covid banner. Regulatory impact assessments are required in order to evaluate burdens on business, primarily, but the bigger issue is whether the Government have considered the broader costs and benefits of their Covid policies. We have been particularly concerned about the lack of analysis of the non-Covid health harms as well as the non-health harms—in particular, to education and to the economy. Certainly, there has been little government analysis of this in the public domain.

The Government’s line has always been that they are not required to produce regulatory impact assessments for policies expected to last less than one year—an excuse not available for these regulations. That is technically correct, but it entirely misses the point, which is that good policy formulation requires a comprehensive analysis of costs and benefits, however long the policy is expected to last, and that is what the Green Book requires.

Let me now turn to the dimension of effective parliamentary oversight. Parliament cannot be expected to scrutinise legislation, whether primary or secondary, without access to full impact assessments. That means impact assessments issued on a timely basis with the related documents, not rushed out days or hours before parliamentary debate. Parliament deserves not only the assessments required by the 2015 Act but the broad analysis that should underpin good policy-making; and in the case of Department of Health and Social Care orders, that must include impacts beyond the health and social care sector.

For example, this impact assessment’s central estimate of the likely loss of staff to the health and social care sectors is 126,000. That is twice the number expected to be vaccinated as a result of the policy. So, it does the calculation but makes no real attempt to explore whether it is feasible to recruit sufficient new staff and what would actually happen if suitable staff were not available. This is more than a mere calculation of costs, because it could impact on service availability, as has been the experience in the care home sector. The Minister referred to no care home closing, but care home capacity has been cut back in many areas where it has not been possible to recruit suitable staff. All these impacts can be significant.

My amendment is, at its core, a plea for the Department of Health and Social Care to stop taking Parliament for fools. The department must respect the role of Parliament by facilitating rather than evading effective parliamentary scrutiny. That means full impact assessments for all significant policy interventions, whether of long or short duration; and, of course, it means they must be timely. At the very least, I hope the Government and, in particular, the Department of Health and Social Care will reflect on their duty to ensure that Parliament can do its job of oversight of the Executive. I beg to move.

My Lords, I did not intend to contribute, but I just want to thank the noble Baroness, Lady Noakes, for that speech. I shall get Hansard tomorrow, make my little checklist and wait for what is coming from the other place—the borders Bill; the human rights Bill; the electoral reform Bill—and I will check off her claims about parliamentary scrutiny and believing in the House to see how sincere that speech really was.

My Lords, I would not doubt for half a second that my noble friend was entirely sincere. I also believe that she made some extremely powerful points which apply right across the legislative pattern, and which apply equally to both Houses. I hate to say this of a Conservative Government, but they behave as if they treat Parliament with contempt. Whether one is talking about Christmas tree Bills, Henry VIII clauses or the lack of impact assessments—a point made so very powerfully by my noble friend—the Government are found wanting. If we were marking in Greek letters the performance of the Government, I would, as an old schoolmaster, give them “gamma double-minus.”

It really is sad that we have a Government who are treating Parliament in this manner. I sincerely hope that, when he comes to reply, my noble friend the Minister will give a firm undertaking to draw the attention of his parliamentary masters in government to this debate and to the speech of the noble Baroness, Lady Noakes, in particular. They should read, mark, learn and inwardly digest it—to quote the collect for the second Sunday in Advent.

When it comes to the substance, I always deplore anything that smacks of retrospective legislation, because that again is treating Parliament with studied contempt. I know how difficult it has been during these last 18 months or more. We all know that—and we all know that mistakes have been made, sometimes with the very best of intentions. But it is deeply disturbing that there has not been a recognition that retrospective legislation is the very antithesis of democratic parliamentary government.

I have suggested many times, including very recently, that there should be a continuing committee of both Houses looking at Covid legislation and being able to pronounce on it quickly. I made this point only recently to my noble friend. He completely, I am afraid, misunderstood it and told me quite inaccurately that this was a matter for the Lord Speaker—but anybody who knows what the Lord Speaker is able to do and not able to do knows that that is fundamentally wrong.

I know that he is new to Parliament and is serving his apprenticeship with great distinction—we all appreciate that—but it is important that the powers that be realise that in an unprecedented situation unprecedented measures are sometimes needed. They have shown that by issuing diktats; they have not shown it by creating a vehicle for continuous parliamentary monitoring—and they should.

On the subject of compulsory vaccination, my noble friend Lord Bethell knows very well that I have been on about this almost from the very beginning, urging that care home workers should receive compulsory vaccination, and I believe that it is entirely logical to extend that to those who work, because people who come into close proximity to patients at their most fragile and their most vulnerable should not themselves be a potential risk to those patients. We know that in some care homes during the early months—I appreciate that it is much better now—you could find that 30%, 40% or even 50% of care home workers, looking after the most fragile and physically feeble of people, themselves not vaccinated.

How do you solve this? It is, of course, a combination of persuasion and cajoling, but at the end there has to be a point where you say that we cannot allow this to continue indefinitely. Therefore, I think on that point the Government are right and I am grateful for it.

However, we are a Parliament and therefore I come back, as I began, to the admirable speech from my noble friend Lady Noakes. She pointed out—as many others have over the past two or three years, particularly the noble and learned Lord, Lord Judge, who I think must go to bed with an image of Henry VIII by his bedside—how cavalier has been the treatment of both Houses of Parliament by the Government. We are approaching a new year. Let it be a resolution of the Prime Minister and all his Ministers that they are accountable to Parliament; they are not the masters of Parliament.

My Lords, I wish to make some comments about the actual substance of this statutory instrument, although I will start by saying that I have a lot of sympathy with what has already been said about the lack of proper parliamentary scrutiny and indeed the lack of an impact assessment, which is extremely regrettable.

As I have said in your Lordships’ House before, I am very sympathetic to the overall principle that both front-line health and care workers should be vaccinated. However, as I have always said, it must be handled in the right way, particularly given the absolutely acute pressures that both health and social care are under and will be over the winter months. It is absolutely critical that the right amount of help and support is made available to health and care workers who are genuinely vaccine hesitant—and that means things such as one-to-one conversations during work time in which they can express what their concerns are and, I hope, get additional information.

I know very well from personal experience that care homes that, for example, have brought GPs in to have one-to-one conversations, taken the concerns that care workers have expressed seriously and tried to explain why it would be a good idea to have the vaccine, have had an awful lot of success, and I am concerned that there is not enough focus at the moment on that help and support. It was very regrettable—this point was raised by the Secondary Legislation Scrutiny Committee —that the draft Explanatory Memorandum made no reference to any lessons learned from the rollout of the earlier care home regulations, as well as being silent on what contingency plans the department had to cope with the expected staff losses when the regulations take effect. I know that those staffing issues will be particularly acute in London, where I live.

I recently had a helpful meeting with Healthwatch, which shared with me some very good research. It commissioned an organisation called Traverse to undertake in-depth conversations with a range of people, mainly of African, Bangladeshi, Caribbean and Pakistani ethnicity, to understand the reasons for their vaccine hesitancy and what can be done about it. Although the research was carried out with the groups I have specified, I suspect that the conclusions drawn in the report have more widespread application.

I found it interesting that the attitudes expressed were incredibly personal to the individual. One of the lessons learned is that you cannot lump all this together and say, “This is the issue for this group”; you have to think very carefully about individual concerns. There was most clearly, as we know, a lack of trust, which featured strongly in terms of the vaccine, and there was very strong distrust of those who had any possibility of standing to gain commercially from the rollout, which I thought was an important point. Probably most notable of all, people said that they trusted most of all front-line healthcare workers to talk about Covid and the vaccine and had less trust in very senior people in the NHS or Public Health England, who were perceived to have less tangible experience. That interesting document ends with very seven practical tips: ways to try to encourage health and social care workers to become less vaccine hesitant.

I end by asking the Minister whether he is aware of this document—if he is not, I am very happy to send it to him—but, more generally, what steps the Government and NHS England have taken to promulgate this sort of important and practical good practice and advice?

My Lords, I echo the words of my noble friend the Minister in introducing the regulations before us in praising the heroic efforts of the whole health service: the volunteers, nurses, doctors and pharmacists—everyone involved. The vaccination programme is essential, but I hope that GPs and practitioners will have the vaccines in time to roll them out. My noble friend is aware of my work with the Dispensing Doctors’ Association.

I want to focus on two particular aspects: the implications for the workforce of the regulations before us and the helpful questions and comments posed by the 21st report of the Secondary Legislation Scrutiny Committee in that regard. What has the impact been on the care home workforce of the compulsory vaccinations that the regulations require? I presume that the reports were accurate that a number of those who did not wish to have vaccinations left care homes to go and work in the NHS, which is now the subject of these regulations. Is that the case, and how many were involved in that regard?

I share the concern that has been expressed by the Secondary Legislation Scrutiny Committee in its report that non-care-home staff who are not in face-to-face contact with patients are exempt from the compulsory vaccinations, despite the fact that SAGE—which of course advises the Government closely on these issues—suggests that co-workers may be an important factor in transmission. I yield to no one in my admiration for my noble friend Lord Cormack in the work that he has done to ensure that care home staff are vaccinated, but it is a case of whether we should look at the wider helpers of those working in care homes.

Lastly, I have a question that follows on from a question at Oral Questions today on the retention, as well as the recruitment, of the workforce. I do not know whether I am reading paragraph 1.37 on page 63 of the impact assessment correctly, but it says:

“Given uncertainty in how provides”—

I presume that is meant to read “providers”—

“will respond to workforce shortages we have made simplifying assumption that replacement staff are available immediately from wider labour market and used band 5 wages as a proxy for all staff affected by this”.

What is the current recruitment and retention in care homes in particular, as so many in your Lordships’ House have raised concerns in that regard?

My Lords, I think many of us are grateful for the comments from the noble Baroness, Lady Noakes, about process and impact assessments, and I echo those.

I shall make one or two comments about the substantive issues. Incidentally, we have been thanking the Government and medics for the rollout, but I want to pay tribute to the people who are going to be sitting up half the night: the managers of GP practices—they are the ones who get people there to get the vaccine. Very often they are forgotten, so I want to make that point.

I want to make some points about the very real problems that there are with this way forward. I am very sympathetic and, on balance, I think this is the way forward, but for many decades we have taken very seriously those who have very real concerns about receiving a vaccination. Those are not concerns that I share personally, but there are those, for example, who are concerned about the use of aborted foetal cells or testing on animals. We—both myself and more widely in the Church of England—have always maintained the position that freedom of belief or religion should not be compromised by the introduction of any form of coercion or forced decree. This is difficult, because it is not just about someone’s right but about the effect that they have on someone else. Recently, I heard from someone who was jabbing—giving vaccinations—that someone came in without a mask on. They challenged him and he said, “I don’t get on very well with masks”, to which one of the nurses said, “Well, I hope you get on well with a ventilator.” That is the implication; we know what the medical science is.

The problem is that there is the danger of a subtle form of racial discrimination via the backdoor. Ethnic minorities comprise a much higher percentage of healthcare staff compared with the overall population. We know that they are more likely to be religious than the white British majority, and vaccine hesitancy is much higher among these communities. There is a whole range of complex issues to do with social trust and people’s position in society that I do not want to steamroller over without raising and putting on the record as we move forward with this programme. A worrying confluence of factors could leave those historically discriminated against being forced to choose between violating deeply held principles and unemployment. No one, whether white or from an ethnic-minority background, should be forced into that corner.

This raises the really important issue of how we are addressing vaccination hesitancy. I have been talking to the noble Lord, Lord Sharpe, about how can we help with that more widely across the globe. This is a reminder to those of us who are in touch with—particularly if you are in my line of business—black churches and so on that we need to up our game in addressing the reasons for vaccination hesitancy. We need to do it urgently, because the more that we can win the argument, the more we will save ourselves a lot of unintended consequences of discrimination that may result from these regulations.

My Lords, I declare an interest as a member of the Secondary Legislation Scrutiny Committee. Your Lordships will no doubt be delighted to know that, in January, I shall be leaving it—not by choice but because I have been cycled off.

At the heart of this dispute with the Department of Health and Social Care is the requirement, not option, that any department submitting secondary legislation—principally to this House, since it is almost never discussed at the other end of the Corridor in the House of Commons —should include an impact assessment. This is not an optional extra. It is not a take it or leave it. It is a requirement at the heart of the process. The committee is meeting at the moment—it may have concluded—and it has a Conservative chairman, who is very good. There is no predetermined disposition among its members to seek a confrontation with any government department. However, in this case, the Secretary of State and his department have point-blank refused to carry out an impact assessment. It is a challenge to Parliament and to the parliamentary process. That is what is taking place.

I agree with almost everything that the right reverend Prelate said about enforcing vaccination and I realise that there are some very serious problems to be resolved there. But that is not what the argument is about. It is about whether Parliament—in this case, your Lordships’ House—has the right to require any government department to produce an impact assessment about its proposals for legislation. It is quite a simple matter. It is not onerous in most cases. It is necessary for the committee to consider the impact assessment—along with other aspects of the legislation, of course—before reporting to your Lordships’ House. I did not hear in the Minister’s opening remarks a coherent explanation—and I have never received or seen one—of why that is not possible in this case.

As I said, your Lordships require their colleagues on the committee to analyse secondary legislation. That is our role and, if we do not have an impact assessment, we cannot fulfil it. That is the issue. I agree with what the right reverend Prelate said, but this is not about enforcing vaccination. It is about trying to learn to understand the impact, through an impact assessment, of this proposed secondary legislation. If committees are not allowed to take a stand on this, there is little purpose to them, because this is one of the fundamental issues of secondary legislation. That is our job and our responsibility and it is what we have been trying to do.

My Lords, I had not intended to contribute to this debate, but I will say a few words. First, I am completely against any compulsory vaccination of any kind. It goes completely against all that we should believe in and I am totally opposed to it. Secondly, I recently put down two Written Questions to the Minister’s department: one about people who had been vaccinated and one about people who had tested positive with antibodies. I wanted to know the difference between the two; I wanted to know about protection from the disease and about transmission of the disease. The Answers that I got said, “We’re looking at it, but as far as we can tell at the moment, there is no difference”—it was 84% versus 85%. There is no difference between the protection that the vaccine offers and the protection given by antibodies in the normal course of events. Surely we are not going to vaccinate people who have the antibodies. It is absolutely pointless, particularly if they are thousands of schoolchildren. Can we not test people who have the antibodies and tell them that they do not need to be vaccinated? That seems to be common sense.

My Lords, it seems that we have come down to debating two specific issues. The first is, of course, the question of mandatory vaccination for healthcare staff and whether we should support it. The second is the way in which the Government have been treating Parliament over not just this issue but the hundreds of statutory instruments that have been brought in relation to Covid, many of them by the Minister’s department.

We are entitled to a full response as to why the impact assessment was published so late. As I said, I am afraid that this is not the first occasion. I have been following the work of Big Brother Watch over the Covid experience. It has set out clearly the hundreds of SIs that have been brought here retrospectively and the impact on parliamentary democracy. We all know that we are in the middle of a crisis and that, of course, the Government have to act quickly—we all understand that. Even so, the one thing that we are entitled to say is, if they are doing that, they should be able to produce the documentation to justify the action that they are taking.

The mandatory vaccination of healthcare staff was not a decision that was suddenly reached in the last few days; it has been trailed for weeks in the consultation. I declare my interest as a member of the GMC board. I am not speaking on its behalf, but the GMC and many other organisations responded to that consultation, so there is no excuse, in this instance, for there not to be a full impact assessment published alongside the SI so that my noble friend Lord Cunningham and his committee can consider it with ample time and we can then enjoy their recommendations to us.

A couple of weeks ago, two Select Committees of your Lordships’ House, the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee, produced two important reports. That of the latter, entitled Democracy Denied?, looked at what it saw as the urgent need to rebalance power between Parliament and the Executive. Each report contained a stark warning about a shift in power towards the Executive and both expressed considerable alarm, criticising the increasing tendency of Governments to adopt procedures that effectively bypass Parliament’s role in the legislative process by enabling Ministers to make the detailed laws that govern every aspect of how we operate. As the noble Lord, Lord Cormack, said, skeleton Bills or Christmas tree Bills giving Ministers huge powers have become not an infrequent passage but typical of each Bill brought before Parliament.

The problem that we have as a House is that, in effect, the veto power on secondary legislation is so huge that we hesitate to use it. The last time we did—if I remember rightly—the Front Bench opposite threatened to abolish the House of Lords. We talk about scrutiny of secondary legislation, but the reality is that we can have these debates and we can make our contributions but the Government will take absolutely no notice. That means that we must be very careful when it comes to SIs of this kind. I support this SI, but it is draconian—there can be no doubt about it. I think that it is justified but, my goodness me, to produce it without the proper supporting documentation is a contempt of Parliament.

My Lords, before I follow up my noble friend Lady Tyler’s comments, I want to say how much I agree with the noble Lord, Lord Cormack. The way in which this has been done—I agree also with the noble Lord, Lord Hunt—is absolutely shocking; it is a contempt of Parliament. I was horrified when I read the report of the Secondary Legislation Scrutiny Committee about how bad it was and how late the sort of impact assessment—I call it a sort of impact assessment —has been produced.

Of course, we do not need an impact assessment to know what the problem at the heart of this is, apart from the compulsion element, which I understand: it is the fact that so many people are hesitant and mistrusting about having a vaccination. We also know from the work of Healthwatch, mentioned by my noble friend, that the most effective way of addressing the problems that people have with the vaccination is to have a one-to-one discussion with them so that they can say what their problems are and have them addressed. It needs to be done with a person whom they trust—somebody who they believe has some knowledge and understanding of the issues.

The difficulty with doing this at the moment is that all those people are very busy. We have the winter problems coming up; we have the omicron variant of Covid-19 increasing day by day and our NHS is on the edge of falling over. So I have a little suggestion for the Minister. There are plenty of doctors and nurses relatively recently retired who for one reason or another are reluctant to come back into the front line at the moment. However, they retain the respect of the health community. I understand from the executive summary that the total cost of replacing members of staff who are likely to leave because, whatever happens, they do not want to have a vaccine is £270 million. Could not some of that money be used to get those doctors and nurses with the knowledge and the trust of their recent fellows to have those conversations, without interrupting the staffing of hospitals, where it is bad enough at the moment, as we have lots of vacancies? We know that we cannot take all those people out to have those conversations, because it takes time and it has to be done with sensitivity and consideration. Could not some of that money be used to bring back some of those very experienced people to have those conversations and, hopefully, to reduce the number of those who absolutely will not be vaccinated and, sadly, will leave the profession?

I shall ask the Minister one more question. A few weeks ago, I asked him whether patients had the right to request that they should be treated by vaccinated staff only. Whatever the Government do, it will not all be done until April, which is months away. So there will be lots of patients treated between now and then by people who are not vaccinated. I asked the Minister whether patients had a right to request to be treated by vaccinated people only. He very kindly wrote to me, but I am afraid he was not able to give me a definitive answer. Now all the work has been done on this statutory instrument, I wonder whether things have become any clearer on that issue.

My Lords, a great deal of concern about procedure has been expressed from all sides of your Lordships’ House. I have nothing to add on that, except to say that I share those concerns.

I have two specific questions for the Minister. The first builds on the comments of the right reverend Prelate the Bishop of St Albans, who talked about how we have to win the argument on vaccination and the concern about unintended consequences and potentially discriminatory outcomes. When I look at the impact assessment, it is focused entirely on the care and health sectors. For example, paragraph 126 refers to

“the possibility of negative behaviour change resulting from the policy. For example, a German experiment found that vaccination requirements increased anger among individuals with existing negative vaccination attitudes and led to a decrease in uptake”.

As far as I can see, there does not appear to be in this impact assessment any consideration of impacts outside the health and care sectors. If we are creating this process, it will have impacts right across society, not just in the health and care sectors. We are talking about systems thinking here: not just what making a decision in the health and care sectors means for the health and care sectors, but what it means across the whole of society. What are the negative impacts of people in general deciding not to get vaccinated because of this?

The second point I draw from a very useful briefing from the Homecare Association. I do not think anyone else has asked this question, and I feel I should ask it for the Homecare Association. It said that it is extremely concerned about the intention to legislate rather than persuade. It is asking about a contingency plan if, indeed, the results are towards the worst end of the impact assessment. What are the Government doing to plan for this situation, when we have already had 1.5 million hours of commissioned care not delivered between August and October because of lack of availability? If this gets much worse, what plans do the Government have to fill the gaps?

My Lords, I declare my interest as vice-chair of the All-Party Parliamentary Group on Coronavirus and a vice-chair of the All-Party Parliamentary Group on Adult Social Care. The Minister started and ended his contribution to the House by saying this was a statement. I suspect the Minister is in no doubt now that this is actually a statutory instrument. I thank the noble Baroness, Lady Thornton, and also the noble Baroness, Lady Noakes, for her Motion, given the clear failings of the presentation of this statutory instrument. The Minister needs to hear the concern from every part of your Lordships’ House this afternoon, and it very gracious of the noble Baroness, Lady Noakes, to say that she will not press her fatal Motion, for all the reasons cited by the noble Lord, Lord Hunt.

The 21st report of the Secondary Legislation Scrutiny Committee states at paragraph 10:

“An EM … should be a freestanding, comprehensive explanation, and it should not be necessary to conduct extensive research into other documents in order to achieve an understanding of what an instrument does: we regard this EM as an example of poor practice.”

From these Benches we thank the Secondary Legislation Scrutiny Committee, including the noble Lord, Lord Cunningham, whose presence will be missed when he leaves it, for going further and collating as much other information as it could for your Lordships’ House. The committee is excoriating about the failures of the legislation, the Explanatory Memorandum and the guidance, including unclear definitions in law.

For example, what does “vaccinated to a complete course” mean? At what point does the booster jab become compulsory? Will whoever is checking check that the severely clinically extremely vulnerable have had their four doses instead of three? That would require access to very personal staff health information. There is no definition and there are no practical suggestions. The use of the term “registered person” is set out in the Health and Social Care Act 2008, but there is no explanation of who, in reality, in a hospital, has responsibility for checking that staff have had their vaccines.

This SI speaks of people with face-to-face clinical and non-clinical ancillary contact with patients and those who are directly involved in patient care having to have the vaccination. The guidance, however, is still not published to define what is and is not in scope. Does it include clerks on the wards? What about catering staff bringing meals? Does “not being vaccinated” mean that you have to stay a certain number of feet away from patients?

The Secondary Legislation Committee report also points out that non-face-to-face staff are exempt—but they can still mix with front-line staff at other times. Does the Minister think that Covid can tell the difference and that the virus will not transmit from an exempted co-worker to a front-line member of staff in the cafeteria? We know that omicron is bypassing the vaccinated, even if it is bringing possibly less serious disease—although we are waiting to see the evidence.

The government consultation document published on 10 December on vaccination says that more than 1.2 million social care workers in England have now taken up the vaccination. As of 19 August, vaccination take-up was around 87% of staff in younger-adult care homes; 81% of domiciliary care staff; and 75% of staff in other settings. In London, obviously, this is lower, as we all know. This data, however, directly contradicts the Explanatory Memorandum, which says that only 65% of care homes are meeting the 80% staff rate; so they are not even co-ordinating on their own data. The Government’s own data has shown that there has been a 3% reduction in social care staff since March. Some—not all—will have left because of compulsory vaccines. They are not just leaving the care home; they are leaving the profession. They are going into retail or hospitality, and we know that people, having left, often do not return.

I entirely agree with my noble friends Lady Tyler and Lady Walmsley that targeted help and support has worked with a large number of social care staff, as the Government’s own figures in the 10 December document demonstrate. The evidence is that the most effective way of changing the minds of vaccine-hesitant people is to give them a chance to sit down with a local doctor and their own community leaders, ask questions in their own time and listen to people that they trust. The problem with compulsion, especially short-notice compulsion, is that it removes the opportunity to take that time to listen, think, discuss and be reassured. Worse, as we are moving into another wave of the pandemic, doctors will not have the time to do this, whether it is with other NHS workers or with more social care staff.

Even more than that, the Government undermine their own arguments for urgency. At paragraphs 25 and 26, the Secondary Legislation Committee report points out that, in discussing making the flu vaccine compulsory, the department said that

“the government has considered the concerns raised in relation to introducing flu vaccination requirements. The flu programme runs between October and March, with most flu vaccinations happening October through January. Due to the need to balance this with the time necessary for health and social care to implement the regulations, the government has decided not to introduce vaccination requirements for flu at this time. The government will keep this under review following this winter and ahead of winter 2022-23.”

It seems extraordinary that, while this precedent has been set to delay one type of compulsory vaccination due to the time of year and the extreme pressures on the healthcare and social systems, the Government are insisting on doing it for another. The left hand does not know what the right hand is doing.

Finally, the noble Baroness, Lady Noakes, raises concerns about the impact statement as opposed to the impact assessment. Your Lordships’ House has already—repeatedly—had this debate and, once again, Ministers are treating Parliament with contempt. The difference between an impact statement and an impact assessment is that the latter must have third-party validation and be published on the website, while a statement may be untransparent and unaccountable. The Minister is now hearing why noble Lords are concerned, and late-notice publication really is not helpful. I believe that the noble Lord, Lord Cormack, once again spoke for all of us who have spoken in this debate.

I hope that the Minister has some answers to all these contradictions. His concern for procedure is not matched by his department’s actions. Trust about the so-called “urgent business” is being squandered, given that our first debate on this matter was in July. The Government cannot argue that this is short notice. I hope that the Minister will give the House an undertaking that, in future, an impact assessment will be published in the proper way.

My Lords, I declare an interest as a non-executive director of an NHS hospital. I thank the Minister for explaining this statutory instrument, although I have to confess that I had a moment of panic during his opening statement. I thank him also for explaining his understanding of how the Government arrived at this point. I note that the department has at last produced at least something called an impact assessment, as well as other documentation. This was the subject of my Motion to Regret, now withdrawn. That does not mean that I no longer regret the lackadaisical manner in which this Government approach their accountability to Parliament and the legislative process.

As most noble Lords, including the noble Lord, Lord Cormack, have said to the Minister in clear language, we still wish to know how the legislation will operate. We hope that the Minister will be more forthcoming about, for example, the “significant workforce capacity risk” which the Secondary Legislation Scrutiny Committee mentioned in its very critical report. We note that the committee was damning in its criticism, and I thank my noble friend Lord Cunningham for speaking about the fact that these things are not an option but a requirement.

I say to the noble Baroness, Lady Noakes, that we agree with her criticism of the Government’s handling of these issues. We absolutely agree about the procedure, the drafting and the lack of justification that supports the legislation. I have been commenting on this from this Dispatch Box since March last year. However, the noble Baroness did not say that this was necessarily the wrong way to go. I withdrew my regret Motion because, today, given the new clear threat of omicron, we need to focus on the way forward. I do not believe that that is a political reason for withdrawing the Motion. Had the noble Baroness tested the opinion of the House on her fatal Motion, we on these Benches would have supported the Government, just as we are doing right now in the Commons. The Labour Party has acted, and will always act, in the best interests of our NHS, our public health and our nation.

Of course, we want everyone working in the NHS to take up the vaccine. It is safe and effective, and the Government should be focused on driving up vaccination rates through persuasion, education and support for the vaccine-hesitant, as many noble Lords, particularly those on the Liberal Democrat Benches, have said. We know that omicron is now a clear threat. It is important that the elderly and the vulnerable, and those being cared for in healthcare settings, are protected. Vaccination also protects staff from severe disease, so we will not oppose the Government on this.

Compulsory vaccination for NHS staff is a difficult question—of course it is—as the right reverend Prelate the Bishop of St Albans and my noble friend Lord Hunt explained to the House. We would all much prefer that all front-line NHS staff voluntarily agree to have the vaccine. The latest SAGE advice, however, suggests that omicron may increase the risk of hospital-acquired infections. Vaccination will not eliminate all transmission, but it will reduce the risks and protect both patients and staff in the NHS from severe disease. It may also reduce staff absences caused by Covid.

Of course, there is a precedent for certain NHS staff having to be vaccinated, for example against hepatitis, and given the evidence that being vaccinated reduces the risk of transmission, it is reasonable to ask whether those who are looking after our loved ones should themselves have taken every step possible to reduce the risk that they may pass the virus on to those whom they are caring for, many of whom may be elderly and vulnerable.

However, ahead of any rollout, the Government must ensure that this change does not make the staffing crisis in the NHS any worse and must work with the royal colleges, NHS Providers and the trade unions to agree a framework for how this change is rolled out. The trade unions and royal colleges have been critical of the proposals for compulsory vaccination, ahead of what will be, and is becoming, a very difficult and challenging winter for the NHS because of the implications this could have for staffing. So we welcome the fact that the Government have pushed the date back to April 2022, but we continue to be concerned about the implications that mandatory vaccination for NHS workers will have on staff shortages. We have asked the Government to set out a plan for this.

For the record, on the separate issue of mandatory vaccination for the public, the Prime Minister probably puzzled the whole nation—he certainly puzzled me—when he floated this idea. We are opposed to this—as is the Minister’s boss, I expect. We are opposed to the use of Covid status certification for access to essential services. Forcing the general population to have the vaccine would not only be wrong but impractical. The Government have not brought forward any measures to introduce this, and we would not support any future attempt to do so.

Finally, all of us want to enjoy Christmas safely this year. We all want to protect our NHS, which has been suffering from staff shortages and record waiting lists and has been performing miracles for the last 18 months. Our best defence against all variants of the virus, including omicron, is that we all get vaccinated.

My Lords, I thank all noble Lords for taking part in this debate. I apologise to noble Lords for getting the terminology wrong at the beginning. I will make sure that that is corrected in future.

I thank my noble friend Lady Noakes for raising this important issue, and for challenging us and rightly holding the Government to account on many procedural issues. I accept that your Lordships perform an essential role in scrutinising the measures that we have put forward today. That is one of the things that makes me very proud to be a Member of this House. I recognise the strength of feeling of your Lordships for and against what we are proposing and about the procedures thus far. I know that these feelings are sincere and heartfelt.

I now turn to some of the point raised by noble Lords. My noble friends Lady Noakes and Lord Cormack and the noble Baroness, Lady Brinton, raised questions about the red-rated impact assessment from the Regulatory Policy Committee. I hear the concerns of this House, and I acknowledge that, due to the necessity to move as quickly as possible and minimise the risk to those who are vulnerable, we were unable to publish the full impact assessment alongside the regulations being laid. We set out a statement of impacts, and the full impact assessment has now been published on GOV.UK, but I accept the argument made by noble Lords that this is rather late. We have also now published additional consideration of the points raised by the RPC in relation to private businesses.

My noble friend Lady Noakes also asked what the Government have done in response to the criticisms of regulations from the Secondary Legislation Scrutiny Committee. I reassure noble Lords that we have published the updated Explanatory Memorandum to provide additional information on the specific concerns raised. I also accept the criticisms that this could have been more timely. This includes more information on the scientific and clinical rationale for the policy, the exemptions that have been provided for, those not included, and the steps that we have taken to further encourage uptake of vaccinations and to mitigate work- force risks.

The SLSC also raised concerns about the impact assessment on process. We have worked hard and as quickly as possible to finalise the impact assessment that we feel best captures the likely impact of this novel policy in the uncertain circumstances that we are still living through and the need sometimes to react quickly. As my noble friend Lady Noakes rightly said, this impact assessment was laid before the House in advance of this debate.

My noble friend Lady Noakes also raised the question of whether a cost of £270 million is value for money, considering the impact assessment. While it is not possible to model the non-monetised benefits that this policy would have due to the limited data available, the health benefits through reduced infections and deaths among health and care users—as well as the wider community—from the workforce being vaccinated are likely to be large and should be considered when focusing on costs.

A key benefit is the impact of reassurance to patients and care users that they are being looked after by staff who are vaccinated. This avoids the very dangerous situation of people feeling wary of going to the NHS and other health and care providers, which can have dangerous long-term implications regarding health outcomes for our society. This is non-monetised, yet it remains a highly significant factor.

My noble friend Lady Noakes also asked about the workforce impact of this legislative instrument. As of 5 December, 521,000 staff in all care homes, or nearly 96%, have been vaccinated with the first dose, and 511,000 staff, or 94%, are reported to have received a second dose based on responses from 99% of providers. Although NHS workforce figures are dynamic as people join and leave, since the Government consulted on the policy in September, the latest published figures show an overall net increase of NHS staff vaccinated with a first dose of over 55,000.

My noble friend Lady McIntosh also raised valid questions about the impact on the social care workforce. We are not aware of any care homes where VCOD is the primary reason for closure, but we continue to work with our regional assurance team, which works closely with regions across the country to understand the local and regional pressures, and offer support and advice as appropriate.

In social care, we have already put in place a range of measures to help local authorities and providers to address workforce capacity pressures; indeed, I have announced some of those in this House. As in healthcare, there will be a 12-week grace period for workers in the wider social care sector before requirements come into force, which will give all unvaccinated staff time to get their jab. We are focusing every effort on promoting and encouraging vaccine take-up across social care, and £300 million was announced for the workforce on Friday 10 December to support the care sector over winter.

My noble friend Lord Cormack, the noble Lords, Lord Cunningham and Lord Hunt, and several other noble Lords have eloquently raised points about the use of retrospective legislation and emphasised the importance of parliamentary processes. I sympathise with noble Lords who are concerned about some of the procedural aspects of the passage of this legislation.

As my noble friend Lord Cormack rightly said, in unprecedented times such as these it is right that the Government do everything in their power to protect the vulnerable. Vaccination is our best defence against Covid. It reduces the likelihood of infection and therefore helps to break chains of transmission, as the noble Baroness, Lady Thornton, rightly acknowledged. It is safe and effective. The legislation will protect those receiving care in all health and social care settings as well as our valuable health and social care workforce themselves.

I agree with my noble friend on the point about reviewing the use of such legislation. I assure noble Lords that Regulation 5 sets out the requirement for the Secretary of State to carry out an annual review of these regulations, taking into account clinical advice and accessibility and availability of authorised vaccines, and to publish a report setting out the conclusions of this review.

On my noble friend Lord Cormack’s suggestion of an ongoing Joint Committee, I apologise if the response I suggested was inaccurate. I suggest that I discuss it with him so that I can learn from his experience of parliamentary procedures.

The noble Baroness, Lady Tyler, referenced the importance of encouraging the hesitant. I completely agree. We both come from the same part of London; indeed, she informed me that we went to the same school. We come from an incredibly diverse area, and we understand the different concerns and pressures in many of these communities; as noble Lords will recognise, I myself come from one of these communities. But as she will know, the NHS has focused in recent months on a targeted approach to improve uptake in hesitant groups by undertaking campaigns not only based on function, such as at midwifery staff, but directed at different communities, such as ethnic-minority groups and students, as well as using the booster campaign as an opportunity to re-engage staff. I repeat my gratitude to noble Lords across the House who have suggested to me ways that we can address many of these communities, including working with interfaith communities and networks which really understand these communities and have the trust of many individuals.

To maximise uptake over the winter months, the NHS’s plan includes a range of strategies. We have increased the number and diversity of opportunities to receive the vaccine. Many noble Lords will be aware of pop-up centres, pharmacies and mobile units available. It has come to this: we have to go out and take services as close to those communities and individuals as possible.

The right reverend Prelate the Bishop of St Albans echoed the vital importance of engaging with faith groups throughout; I recognise that. That is why, to maximise uptake over the winter months, the NHS is planning further increases in engagement, targeted at the communities where uptake is the lowest. We will look to have those one-on-one conversations, and to recognise and identify people who are trusted and who can help those conversations.

The noble Baroness, Lady Walmsley, spoke about the importance of encouraging uptake, noting the challenge with the winter months ahead. This is why we are ensuring one-to-one conversations for all unvaccinated NHS staff with their line manager, which take place with clear guidance. On her point on funding, the Government are making key interventions to support NHS services over the winter. This includes £478 million for support services, rehabilitation and reablement care following discharge from hospital, and ensuring that health and social care services are joined up. She also asked whether patients can ask whether staff treating them are vaccinated, prior to enforcement. I assure the House that there is no specific entitlement for patients in NHS facilities to ask whether the staff treating them are vaccinated but, once the regulations come into force, patients and service users will have confidence that all staff interacting with them as part of a CQC-regulated activity are either vaccinated or exempt.

The noble Lord, Lord Framlingham, noted recent data on the effectiveness of vaccinations against the new omicron variant and asked about the difference in protection between vaccination and infection antibodies. I emphasise to noble Lords that vaccination remains the best defence against Covid-19. There is also significant evidence that vaccines are effective at preventing infection and will therefore reduce transmission. We have not yet identified similar strength of evidence for natural immunity. The uncertainty around natural immunity and protection makes it difficult to consider this as an alternative to vaccination at the moment.

The noble Baroness, Lady Brinton, asked an important question about which health and care workers are in scope of policy. Those in scope include staff who have direct face-to-face contact with patients and service users in either secondary or primary care, community settings and wider care settings. This includes, for example, doctors, dentists, midwives, nurses, paramedics and social care workers. Also in scope are ancillary staff who may have social contact with patients but are not directly involved in patient care. This group includes receptionists, ward clerks, porters and cleaners. She also asked about the definition of a complete course of vaccination. The current definition is two doses, but we will keep this under active review and, in light of the omicron variant, will not hesitate to act if necessary to update that guidance at a suitable time to refer to three doses. All health and social care staff providers and staff are encouraged to follow national guidance.

The noble Baroness, Lady Thornton, asked what is meant by “registered provider”. A registered person is defined in Regulation 2 of the 2014 regulations as a person registered with the Care Quality Commission who is, in respect of a regulated activity,

“the service provider or registered manager in respect of that activity”.

She spoke of the threat that omicron poses, and I thank her for those comments. She also raised concerns about the workforce impacts. NHS workforce figures are constantly updated as people join and leave, but we can see that, since the Government consulted on the policy in September, the latest published figures show an overall net increase of staff vaccinated with a first dose of over 55,000. Our best mitigation, as identified in the advice of many noble Lords, is to encourage people to have that positive choice and take up the vaccine.

While vaccination has been and remains our best line of defence, I recognise that this is an emotive issue on many fronts. I also recognise concerns over civil liberties and parliamentary procedures. Whether in our care homes, our hospitals or any other health or care setting, it is an important duty of everyone working in health and social care to avoid preventable harm to the people they care for. People working in health and social care are often in close contact with some of the most vulnerable people in our society. That is the nature of the job and much of the reason behind our heartfelt gratitude and respect for the work they do. However, we know that those vulnerable people are more likely to suffer serious health consequences if they catch Covid-19.

The Government hear and recognise the concerns that have been raised about the impact of these measures on the workforce, especially during these winter months, but we continue to insist that mitigation against these risks is to keep driving uptake. We continue to encourage health and care workers to protect themselves and protect the people they care for before the deadline. The 12-week grace period allows time for both workforce planning and for more colleagues to come forward and get the jab. I recognise the concerns raised by noble Lords on a number of issues.

I am grateful for noble Lords’ contributions, for their passion and sincerity, and for the advice given to me to take back to my department. In the face of this virus that has harmed countless lives and livelihoods, we must do what we can to keep the British people safe. The measures before us will help us to do that and I hope in future that we will be able to improve on the procedures that we have adopted. I take on board the legitimate concerns about the procedures and I will take these back to the department.

I commend these regulations to the House.

My Lords, I thank all noble Lords who supported the points I made about needing better information for parliamentary scrutiny of government policy. This was very ably led by my noble friend Lord Cormack who put it very well when he talked about treating Parliament with contempt. That was echoed by a number of noble Lords. It was very good to hear from the noble Lord, Lord Cunningham, from his perspective on the Secondary Legislation Scrutiny Committee, which has served this House very well, particularly in relation to this order.

I am sorry that the noble Lord, Lord Rooker, questioned my sincerity in bringing these points to the House. I am a mere Back-Bencher; I was trying to make the kind of points that Back-Benchers should be making about effective parliamentary scrutiny. I cannot be held accountable for what the Government do in bringing legislation in the future, so I would encourage him not to try to use my speech as a checklist against future primary legislation brought to your Lordships’ House. This will not be my fault.

I am grateful for what my noble friend the Minister said. He accepted my criticisms with good grace and did not seek to defend the indefensible. As to the future, I would have hoped to have something a little more encouraging than that he hoped they would do better in the future and that he would take the matters back to his department. I hope he will take the matters raised back to his department but with a stern resolve to get them dealt with better next time. With that, I beg leave to withdraw my amendment.

Amendment withdrawn.

Motion agreed.

Metropolitan Police: Stephen Port Murders Inquest

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Monday 13 December.

“I am sure the thoughts of the whole House are with the families and friends of Anthony Walgate, Gabriel Kovari, Daniel Whitworth and Jack Taylor. The stories we have all read, of their lives and terrible deaths, have moved and horrified the country.

The Government and the people we serve expect the highest standards from the police as they carry out their vital work protecting the public and investigating serious crimes. The conclusions of the inquest have shown that those standards were not met and that investigative failures probably contributed to the deaths of three of the young men. The Metropolitan Police has accepted as much. There are now serious questions for it to answer. It is profoundly important that the force takes responsibility for past failings and makes sure they are not repeated.

The primarily accountability body for the Met is the Mayor of London and the London Assembly, but the Metropolitan Police Service has assured us that it is putting in place significant improvements, including: more and better trained investigators; new structures so that intelligence teams, specialists and officers on the ground can work more closely to identify and link crimes much earlier; and work to develop a greater understanding of the drug GHB and its use as a weapon in sexual assaults. It is also essential that the police build trust with all London’s communities and that includes the LGBT+ community. I know that the commissioner and her team are committed to doing so, at a time when the trust the public have in them has been seriously shaken by recent events.

It is, of course, right that the police handling of cases such as these is subject to independent scrutiny. Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has been asked by the deputy Mayor of London and the commissioner to conduct an inspection into the standard of the Metropolitan Police Service’s investigations, and the Independent Office for Police Conduct is now assessing whether to reopen, either in full or in part, the investigation into the way that the Metropolitan Police Service handled the inquiries into the deaths of these young men.

The police perform an enormously important function in our society. It is a job that, on the whole, they do with skill, courage and professionalism. Only last Thursday, I attended the police bravery awards and heard stories of selfless heroism, but when things go wrong it is profoundly important that lessons are learned and applied. We will continue to hold the Metropolitan Police Service and the Mayor’s Office for Policing and Crime to account in making sure that the failures highlighted by these truly awful cases are addressed.”

My Lords, this an incredibly serious inquiry that we are discussing in this Urgent Question. Four men were vilely murdered by a man who targeted young, gay men. They were failed by the police and the system. The jurors’ verdict that fundamental failings in the police investigation probably contributed to three deaths is serious in itself, but equally, the families and partners have raised concerns about homophobia blighting the investigation and the way they were treated. They have accused the Metropolitan Police of being prejudiced and institutionally homophobic.

Given how serious this is, is there not a need for an independent inquiry which, unlike the other inquiries already announced, including that of the noble Baroness, Lady Casey, will look specifically at whether homophobia was involved in this investigation, and lessons learned for the police not only in London but, crucially, across the country, rather than trying to keep it under review, as the policing Minister said in the other place just yesterday? We cannot change the past, but we must do all we can to ensure it does not happen again. The victims of this horrific crime need to at least know that.

I join the noble Lord in lamenting the deaths of Anthony Walgate, Gabriel Kovari, Daniel Whitworth, and Jack Taylor, three of whom might not have died. The inquest’s conclusions provide very serious lessons for policing to consider and act upon. It is also right that independent and professional bodies have the opportunity to review the case. HMICFRS has been asked to conduct an inspection into the standard of the Metropolitan Police Service’s investigations. The IOPC will also assess whether to reopen, either in full or in part, its investigation.

I understand that the coroner ruled that on the basis of the evidence, it would not have been possible for a conclusion to be reached on whether homophobia was an overriding factor in mistakes made, but the MPS has already announced an independent review, headed by the noble Baroness, Lady Casey of Blackstock, into its culture. I will, of course, take a very close interest in her findings and any recommendations she makes.

My Lords, I speak as a gay former senior police officer whose former partner died, as these men died, of the drug GHB. There is an expectation that the Commissioner will front press briefings when the reputation of the Metropolitan Police is in jeopardy, as she did over the death of Sarah Everard and the photographing of murdered sisters Nicole Smallman and Bibaa Henry. When the jury in this case concluded that the deaths of three young gay men could have been prevented had the police done their job properly, she was nowhere to be seen. Can the Minister explain why? Did the Commissioner think this was not important enough? Is this further evidence of institutional homophobia? There may be an innocent explanation, but I hope the Minister understands how this looks.

In response to the noble Lord’s question about why the Commissioner was not publicly fronting any statements or comments, one thing we can say is that attitudes in the police have changed since the time of those young men’s murders, which is not to diminish this in any way. The Commissioner is, of course, a member of the LGBT community. I do not know the answer. I do not think it diminishes in any way the horror and the feelings of the Metropolitan Police about what has happened. I will say that, since the time of those murders, diversity within the police has improved—it has a long way to go, but it has improved—and there is more training in place to improve that diversity and the culture in which the police operate.

My Lords, we all take extremely seriously the findings of this inquest, but could the noble Baroness tell us what steps are in place within the Metropolitan Police, or any other police service in the country, to ensure that when there are adverse findings, as there were in the case of this inquest, or when there are issues raised through reviews by the inspectorate or, indeed, by an independent review, whether commissioned by the police themselves or by the Government, the lessons from those reviews are taken on board, acted upon and continue to be acted upon?

The noble Lord makes a very good point. We can pay lip service to inquiries and investigations or we can actually try to make sure that there is a shift in the way that we operate. I know the Metropolitan Police is committed to a series of actions, including providing further training to officers, which is clearly needed. With more training and support, response team officers now investigate all but the most serious and complex crimes and victims are not passed between different units, and the quality of each investigation is improving. The College of Policing is regularly reviewing the training offered to police forces, and the NPCC is delivering a series of programmes to support forces in securing the trust of the public. The public need to have more faith in the police and that trust desperately needs rebuilding, certainly in the light of recent events such as the terrible murder of Sarah Everard. The noble Lord will probably know that the NPCC appointed Maggie Blyth as the national police lead for violence against women and girls, and a police plan of action on inclusion and race is also being led by the NPCC. Some things have been done, but there is a long way to go.

Sitting suspended.

Advanced Research and Invention Agency Bill


Clause 2: ARIA’s functions

Amendment 1

Moved by

1: Clause 2, page 2, line 6, at end insert—

“(ba) financial support provided by ARIA may be treated as convertible to equity interest in the business entity which has received such support; (bb) for a period of ten years after ARIA has provided financial support, or made property available, the business entity which has received such support must obtain the consent of ARIA before—(i) transferring specified intellectual property rights from the United Kingdom to any territory outside the United Kingdom, or(ii) selling or otherwise transferring a controlling interest in that entity to another entity not resident in the United Kingdom;”Member’s explanatory statement

This amendment would enable ARIA to make it a condition of the provision of financial support to a business that it is convertible into an equity interest in the business and that, for 10 years after ARIA has provided financial support, or made property available, the business requires the consent of ARIA either to transfer abroad intellectual property rights or to sell or transfer a controlling interest in that business to another business not resident in the United Kingdom.

My Lords, Amendment 1 would enable ARIA to make it a condition of the provision of financial support to a business that it is convertible to an equity interest in the business and that for 10 years after ARIA has provided that financial support, or made property available, the business requires the consent of ARIA either to transfer abroad intellectual property rights or to sell or transfer a controlling interest in that business to another business not resident in the United Kingdom. I am grateful for the support from my noble friend Lady Chapman of Darlington and the noble Lords, Lord Morse and Lord Clement-Jones, who have added their names as supporters of the amendment. I am especially grateful to the noble Lord, Lord Morse, who prepared the first draft of the amendment—although, anticipating that its drafting may be criticised, I make it clear that I take full responsibility for its revised form.

In moving Amendment 1, I support the other five amendments in the group in the name of the noble Lord, Lord Lansley, and have added my name to Amendments 2 and 8. I am pleased that these amendments have been grouped, as they are a response to the same concern. The House will be pleased to hear that I do not intend to rehearse the arguments that I advanced in Committee. I am grateful for the support that I received then from the noble Lords, Lord Fox, Lord Lansley and Lord Broers, and my noble friends Lady Chapman and Lord Stansgate.

Yesterday, I and other noble Lords received a letter from the Minister, which I will come back to later. First, I will explain exactly what the amendment would do, because it is relevant to the letter, which was extremely welcome; it covers the issues that have been raised and shows that those who have amendments in this group have common concerns with the Government —we are broadly on the same page. The degree to which we differ is marginal now, and much less than it was at the beginning of these issues being raised in Committee. So that is progress, but I do not think we are yet where we want to be.

This amendment is to Clause 2, headed “ARIA’s functions”. It would amend Clause 2(4) to add to the conditions that in particular, in exercising its functions, ARIA may attach to financial support or making property available to other parties. It would do this in the context of a clause which has six subsections, five of which are permissive, including that being amended. They are permissive to the extent that they set out what ARIA may do and are designed to give ARIA the flexibility needed for it to carry out the challenging function it is charged with.

However, Clause 2(6) is instructive. It requires ARIA to have regard in exercising its functions to the desirability of doing so in a way which, as the Minister summarises it in his letter, ensures that

“public investment in research and innovation should drive long-term socioeconomic benefit and deliver overall value to UK taxpayers”.

That is a very good summary of what is required, and it is demanded of ARIA by this section of the Bill.

By going to the permissive elements of ARIA’s function, these amendments go beyond willing the end; they help ARIA by willing the means, specifically in relation to intellectual property. This amendment would do so by ensuring that the successes of ARIA stay for a sufficiently long time in the hands of those who have the UK’s best interests at heart.

I thank the Minister for his letter, and I welcome the invitation to a meeting with the Minister for Science, Research and Innovation, George Freeman, and himself to discuss further the concerns that underlie these amendments. I accept, as the letter says, that these concerns are broader than just this Bill, but we only have this Bill to deal with today and they are very significant in the context of what we are asking ARIA to do.

I thank the Minister not only for that invitation but for the all-Peers session that he arranged on 1 December to brief noble Lords on the devolved Administration agreement and ARIA’s governance. Those who attended were delighted that George Freeman turned up unexpectedly and generously shared with us, candidly, his views about several matters relevant to the establishment of ARIA and the policy implications of setting it up.

I was very pleased that, in response to a question about ownership of intellectual property posed by the noble Lord, Lord Lansley, the Science Minister shared his concern about the risk that publicly funded research and innovation may lead to foreign, as opposed to British, private or public gain—the issue at the heart of these amendments and mine in particular. We all now know that the Science Minister shares the concern that lies behind this problem. In fact, he shares it so much that he deflected the specific question about intellectual property and said, “I am much more worried about a very successful ARIA development falling into the hands of foreigners”.

In Committee, I pointed out that twice before the Committee stage I had tried to engage the Minister on this very issue—what is happening in the United Kingdom and has been happening for some time to some of our best and brightest businesses, and the effect it is having on our ability to apply these developments to the benefit of the United Kingdom. I even quoted on one occasion the concerns of the Bank of England about the way in which those businesses are funded and the damage this leveraged debt might do to the UK economy in the long term, but I could not engage the Minister on these issues. I was repeatedly told that we are an open economy that welcomes this investment, when in fact, in most cases, it is not investment at all

Since receiving the letter yesterday, I began to wonder what had caused this apparent change of tack by the Government and this Minister in particular: the debate that we had in Committee, or the Science Minister who is responsible for this Bill expressing the view at that meeting that he shares the objective we have set ourselves by tabling these amendments, and that it is a matter of concern that needs to be addressed.

On the content of the letter, as the noble Lord, Lord Lansley, pointed out when he responded to it, there is a lot in common between those who support these amendments and the Government. The concerns have been identified; we know that they are serious; we know that they sit in a broader set of circumstances that will need to be addressed. But we still think it important that they be addressed in this particular case and that, in meeting the objective which the Government have set for ARIA in exercising its functions and later, in Schedule 1, in the supplementary powers it is given, it is advised and helped by us, protecting its ability, if necessary, to take equity in businesses in which it invests and to insist that, over a period of time, those businesses stay in the hands of those who have the UK’s economy in their interests.

That is essentially what the letter sets out. However, it does not go as far—nobody would expect it to—as we seek to do in this Bill, for reasons which are articulated. The first of them is that the Minister does not

“think it is appropriate to mandate a particular ‘one size fits all’ approach through the Bill”—

that is why I explained what Clause 2 did in the first place. In this particular subsection, nothing is mandated; it only facilitates ARIA including these conditions if it thinks that is appropriate—a power which the Government, as they set out in the letter, are willing to give ARIA and wish it to have.

Secondly, the letter states:

“The type of obligations referenced in the amendment should not be applied inconsistently. The approach taken by ARIA to IP ownership must reflect the approach taken by other public R&D funding bodies in equivalent situations, or it would create an unlevel playing field. If funding from ARIA comes with strings attached, or fewer IP rights compared to funding from IUK—

that is, Innovate UK—

“or elsewhere, it would act as a further disincentive to the most innovative businesses choosing to participate in ARIA programmes. This discussion should therefore encompass our wider public R&D funding system.”

I agree that there may be a problem in the wider R&D funding system, but we are dealing with this Bill. The Bill cannot keep a level playing field for this reason. It is interesting that Innovate UK was the example the Minister chose to put in the letter. If this Bill is passed in its present form, there will be an unlevel playing field for this reason.

Innovate UK helpfully publishes on its website a brochure for those whom it wishes to engage. It states on page 3 that

“we do not take any equity in the business or make any claim on the intellectual property created in the innovation”.

That is its stated position. Therefore, to get a level playing field, according to the Government’s ambitions, it will mandate ARIA not to hold equity or intellectual property, because otherwise, there cannot be a level playing field. If the Government get their way, there will not be a level playing field.

We recognise that that level playing field does not exist; we recognise that ARIA needs these powers to prevent what has happened to far too many British businesses happening to the businesses it supports during their developmental stage or when they begin to produce significant profits. It has happened to too many British businesses; the Government were slow to wake up to it. Substantial potential income for the United Kingdom based on government R&D has gone abroad, and this should not happen to ARIA.

The Minister, I think, wrote in the hope that I might accept the generous offer of a meeting instead of taking this amendment to a vote. This is my position: I gratefully accept, as I am sure other Members will, the invitation to have a meeting with the Science Minister so that these concerns can be addressed. I do not accept, however, that in accepting that offer, I give up the right to ask your Lordships’ House to vote on this amendment. Clearly, the Science Minister wishes to explain how he is going to deal with these concerns in the way set out in the letter. He ought, of course, to do that for us. But much more importantly, he ought to do it from the Dispatch Box in the House of Commons, and I hope that this House will give him the opportunity to do so by agreeing to this amendment.

My Lords, as the noble Lord, Lord Browne of Ladyton, said, there are six amendments in this group, five of which have my name. I am grateful to noble Lords who have also put their names to those amendments, including the noble Lords, Lord Browne, Lord Ravensdale and Lord Broers, and the noble Viscount, Lord Stansgate. I am particularly grateful to the noble Lord, Lord Broers, not least because of the impetus I derive from his contributions in our Committee debates—about the centrality of the acquisition, use and deployment of intellectual property to ARIA’s activities being central to its task. If I may be so presumptuous, I am looking forward to hearing some of the noble Lord’s arguments again, if he has the opportunity, because I am sure he will convey the arguments behind a number of my amendments better than I could. If it is not impertinent on my part, let me say that we will miss his counsel and advice when he retires from the House at the end of this week, and I am glad that we have the opportunity of hearing his advice today before that happens.

I draw noble Lords’ attention to one simple fact: at present, nothing at any place in the Bill refers to intellectual property. It refers to property and rights, and I suppose Ministers might say, entirely correctly, that they are within that thought. But intellectual property is the essence of what ARIA will be doing. As the noble Lord, Lord Browne of Ladyton, said, the Minister most helpfully sent us a letter explaining the centrality of intellectual property activities. Ministers wish for ARIA to devise its own strategy for the intellectual property it creates. For that to happen, as the noble Lord, Lord Browne, said, we want the Bill to make it clear to ARIA, in law, what its powers and responsibilities are. The powers it needs in relation to intellectual property need to be specified.

There are other ways in which Ministers have decided to say that ARIA can set conditions for its financial support, but it does not refer to the conditions relating to intellectual property. Ministers can attach conditions to the grants and funding they give to ARIA, but those do not refer to intellectual property; listed in the schedule are the supplementary powers that will be available to ARIA to do various things, including create partnerships and join ventures and companies, but they do not refer to intellectual property.

The purpose of five amendments in this group is to fill those gaps; Amendments 2 and 3 propose that when ARIA is providing financial support to its research projects, among the conditions it can apply are those relating to the acquisition, disposal, retention and assignment of intellectual property. It clearly ought to be able to do those things. Ministers may say that of course it can because it has the necessary powers. So why are other things specified but not this, since it is central to its activity?

When we look, for example, at the supplementary powers in the schedule given to ARIA, various things are mentioned. It can

“borrow money … acquire and dispose of land … accept gifts … form and participate in partnerships … and … form companies;”

but the schedule does not refer to the ability to acquire, retain, assign, license or dispose of intellectual property and related rights. Indeed, even where it refers to acquisition and disposal of land, as we discussed in Committee, it does not refer to land or other property. These, it seems to me, are all the ways we should better define, in legislation, what ARIA’s powers are.

I have left out one amendment. Amendment 8 relates to the Secretary of State providing grant funding to ARIA. Clause 4 says that this may be subject to conditions, and the only condition which is then referenced is the provision under which sums paid by the Secretary of State to ARIA may be repaid with or without payment of interest.

We have not been provided with, is the framework document that will establish the relationship between the Treasury and ARIA as a publicly funded body. That being the case, if we regard something as important enough, should we put it in the legislation so that it has to be addressed in the framework document? When ARIA, as a result of its funding, has rights relating to intellectual property, can it retain the revenue derived from that investment, or does it have to give that revenue back to the Secretary of State? The frame- work document will, I suspect, provide a reference to this; we know this is important.

In my former constituency, the Laboratory of Molecular Biology, which the Medical Research Council provided funding to, had major research projects, including with highly talented individuals who created immense value. They were enabled to participate in those projects and retain some rights in that intellectual property, and the LMB itself retained revenues which then, by way of negotiation, served to enhance and sometimes substitute for the grant funding received from the Government. If ARIA is to have a strategy for the funding it receives from the Government, it needs to know in advance whether it can retain revenue derived from investment. Can it retain it, or does it have to give it back to the Government? All Amendment 8 does, essentially, is require the Government, when they provide such grants, to set out under what circumstances that revenue can be retained by ARIA for further investment in additional projects to meet its functions or whether it has to pay it back to the Government.

That is where I want the most specific assurances from my noble friend that the Government will provide that opportunity to ARIA. In the absence of that, at a later stage, when we reach Clause 4, depending on the nature of the assurances I receive from my noble friend, I may wish to test the opinion of the House. But we will leave that for a later moment.

For the moment, I am very glad to express my support for what the noble Lord, Lord Browne, said. There is a wider issue, of course there is, but we do not really know the extent, for example, to which the National Security and Investment Act is enabling Ministers to intervene and to protect intellectual property in this country. In any case, that is in relation only to national security issues, and the intellectual property that we are concerned about here will inevitably go much wider.

Finally, I hope that, in this context, my friend, the noble Lord, Lord Broers, will be able to amplify the question of adding technological advance into the benefits that ARIA should be aiming for. At the moment, we have a reference in the Bill to “scientific innovation and invention”, but by its nature what we are looking for is often wide-ranging technological advances that will be derived from the nature of the scientific research that is undertaken. At the moment, the interpretations in the Bill define scientific research but not scientific innovation, and they do not specifically reference technological advances as a benefit that ARIA should be aiming for.

I hope that explains these five amendments, and that we will take this opportunity to put intellectual property right at the heart of ARIA’s functions and the Bill, as it should be.

My Lords, I thank the noble Lord, Lord Lansley, for his kind remarks. I have spent most of my life in this environment working on very complicated projects, and I feel very strongly about this issue. I therefore support Amendments 2, 3, 21 and 22, which would secure ARIA’s rights to retain and exploit the intellectual property generated by its research and to obtain intellectual property from elsewhere in order to advance its projects. As I have mentioned before, the projects that ARIA will be working on will draw upon knowledge from all over the world. It is unlikely—almost impossible—that it can generate all its own intellectual property. The world has changed; that is not the way high technology develops today.

It is also of prime importance to the creative engineers and scientists working on ARIA projects that they feel that their creativity is recognised. There are various ways in which this recognition can be granted, but the most straightforward is for them to receive financial benefit, usually through shared ownership of the intellectual property. High-technology companies and universities have found it effective to have a fraction of the income from patents and other intellectual property go to those who create the intellectual property. This creates a sense of fairness and generates loyalty. The result is highly motivated employees who are not tempted to keep their ideas to themselves and go elsewhere where they can be more fairly treated. This is essential. There is massive competition for the top technological brains in this country. We will not get them into ARIA if they think that they will be entangled in a whole lot of bureaucratic government regulations that prevent them from getting the benefits of being entrepreneurs who are free in the world.

I notice that Amendment 17 seems designed to deal with such errant behaviour—how dare they consider doing such things?—but this sort of thing has its dangers, in that its very existence shows that the organisation does not trust its employees, even encouraging them to take their talents elsewhere. It happens with everybody. When you are working on a project, you suddenly have a brilliant idea. You know that you have cracked the nut and really opened up a way for progress, and your first thought is, “My God, I could be rich if I took this off and formed my own company”.

This happens with big companies. I spent a lot of time in IBM, which had to be terribly careful because it provided huge resources for people to make immense progress, but at the same time we did not want people, when they made that progress, to be immediately motivated to leave and exercise that somewhere else, and make more money; I am afraid that money is a motivation. In IBM, in essence you got points towards quite a lot of money when you invented something. You also got a very large award if you did something that opened new pathways in a technology, over and above your salary.

That is the way a company such as IBM in the great days, and Bell Labs subsequently, kept their brilliant people working there. ARPA has that reputation. You will be treated fairly, do well and get paid a lot if you work in ARPA or DARPA; they are prestigious places to work. I imagine that ARIA will be just like that; it will be a prestigious place to work and there will be lots of reasons for that. At times, there has been concern in the UK about the brain drain out of the country. Of course, this has been largely because the incomes offered to creative engineers and scientists have been higher elsewhere, but it is also because it has been perceived that their creativity will receive more recognition.

Those are my remarks on intellectual property for the noble Lord, Lord Lansley. That is the core of what we are doing; it is the intellectual output. It is a very familiar feeling among academics.

I also support Amendment 1, because I believe that it should help to arrest the flow of technology businesses that originate in ARIA being acquired by overseas businesses, which is a concern that everybody has. I just wonder whether 10 years is sufficient time for this to be effective. There are two very important examples of our losing, or potentially losing, outstandingly successful companies originating entirely in the UK.

The first is Arm, which designs the microelectronic chips for the majority of the world’s portable information and communications equipment. Founded in 1990, it went public in 1998, and was then acquired financially by Japan’s SoftBank for about $32 billion in 2016, 26 years after it was founded. If conditions similar to those in this amendment had been in place in the UK, it would have had little or no effect, and its effect would have been even smaller today in preventing the threatened takeover by the US company Nvidia, which began in 2020. Fortunately—as an aside—the American Federal Trade Commission looks as though it may prevent that takeover anyway because of the threat it presents to world competition in the semiconductor business.

The second company is Solexa, which was based on the fundamental research of Balasubramanian and Klenerman in Cambridge that enables the high-speed decoding of DNA. They obtained their initial seed funding to form Solexa in 1998, and in 2000 Solexa’s corporate facilities were established. Solexa was then acquired by Illumina in early 2007, and now generates billions of dollars of revenue. The conditions of this amendment might have slowed if not stopped this takeover. The amendment would help to retain businesses emerging from ARIA in the UK, but it is also important to enhance the activities of the Competition and Markets Authority, which is looking at that, to solve this problem much more widely in the UK. The loss of Solexa was a laughable mistake— one of the most exciting companies in the most exciting scientific field being pursued, and we just wave it goodbye.

We have to fix these problems. I will vote for these amendments if they are put to a Division.

My Lords, I rise to speak in support of Amendment 2, to which I have added my name, and the other amendments in this initial grouping. I begin by paying tribute to my noble friend Lord Broers, who, as the House now knows, will leave this House at the end of this week. He is president of the Parliamentary and Scientific Committee and, as noble Lords can see for themselves, he has carried on, to the very end, making excellent arguments for science. I thank the Minister very much for the letter and the offer of further discussions and a meeting with the Minister for Science, which I welcome.

In view of the points that others have made, I will be very brief. As has been said more than once in its passage through your Lordships’ House, the Bill is more about an idea or experiment than it is about anything concrete—at least at this stage. No one, including the Government, can be entirely sure what will happen after we establish ARIA and it sets out to fulfil its mission. We can probably all agree that this is what makes it an exciting venture. But one thing that we can be sure of is that, if it all goes well, ARIA will amass a great deal of intellectual property over the next 10 years, and it will certainly be dealing with successful ideas about which we know nothing as yet.

So these amendments—Amendment 2 in particular—are essential to enable ARIA to benefit from the intellectual property that it creates, and we must ensure that, whatever it comes up with, its intellectual property cannot be sold off or acquired by others without its agreement. Not to agree this amendment would run a risk that I do not think we should run.

I too will speak to support the amendment advanced by the noble Lord, Lord Browne, who has explained it very clearly. It is worth getting back to basics on it—if I may use that expression—for a second. The ARIA scheme is about driving our national research frontiers forward by publicly funded risk taking, if I can summarise it as simply as that. It is a good idea that is widely supported.

But this is the reverse of what will happen if foreign-owned companies are allowed to acquire companies that own intellectual property derived from ARIA or to take that intellectual property offshore. If this happens, the reverse of the objective of the scheme will be achieved. This possibility is not far-fetched. I spent 10 years as Comptroller and Auditor-General at the National Audit Office, and, during that time, I saw cases relating to a series of companies where exchange of control provisions in the hands of government were not exercised properly or the scheme was administered rather feebly. As a result, these things became faits accomplis and the property went offshore. Sometimes, you would be told, “Well, we believe in the market operations, so we really don’t like to interfere with this sort of thing”.

Actually, we need strong, clear decision-making about this now. We need to make it clear in this amendment that we are not prepared to see intellectual property that has been paid for by British taxpayers go offshore. It makes mugs of British taxpayers.

My Lords, I rise to cast some doubt on Amendment 1. It is very well intentioned, but I fear that it may be mistaken. The background to my concern is my regret that ARIA is modest: some £200 million a year is being provided, which is a pinprick compared with the vast sums spent on other things, such as Covid and bailing out the banks.

The Bill is meant to set up an agency that can take risks free from bureaucracy and the day-to-day constraint of politics—a latter-day Manhattan Project, if you like. Bureaucratic and other constraints are being applied to the R&D budgets of many billions in the hands of UKRI. That is fine, but I do not think that they have a place in ARIA, which should be run leanly and efficiently and not encumbered by expensive experts—on IP, for example—and large legal departments. It should be able to think and act outside the box.

So I object to the provision in paragraph (bb)(ii) in Amendment 1, and I am slightly surprised that the noble Lord, Lord Clement-Jones, has signed the amendment, because we generally agree on these IP issues. However, I agree with my noble friend Lord Lansley that we need to know whether ARIA can keep the income that it receives from IP and rights. To answer his question, I see IP and rights as being in the same box—but no doubt the Minister will clarify that when he speaks.

ARIA should be able to choose what to do about the IP that it creates. It should not have to be involved in monitoring et cetera for another 10 years, as the amendment implies. Sometimes it will want to hold on to the IP; on other occasions, it will want to grant all IP rights, or a share of them, up front, to provide a greater incentive to a supplier, especially perhaps a small supplier. Having been IP Minister, I know that practice will vary from sector to sector, and of course we do not know where ARIA will place its firepower. That is the whole point: it is meant to be able to look ahead independently. So we want to avoid a situation where the possible loss of, or constraint on, IP rights acts as a dampener on the involvement in ARIA’s work of the most innovative partners, businesses or suppliers.

Some noble Lords will know that I have been both an IP Minister and a Business Minister, and of course I served on the board of some creative companies, such as ITV and Tesco. I have two brief tales of woe that illustrate my concern. First, I came across a firm providing fancy and efficient legal systems and software to the Ministry of Justice. It wanted to provide consultancy doing a similar thing in export markets around the world. However, it had been required to agree to a contract some years earlier, under which the MoJ owned all the IP. So it was frustrated and UK plc suffered because it could not establish an export trade.

Secondly, when I was on the board of ITV, we invested through our Studios business in the United States. We found that the treatment of IP and rights was different in some of the vehicles that we wanted to buy: the broadcasting company owned the IP and did not share it with the creative supplier of original programmes. So, in time, the latter could fail, having insufficient income from past hits to keep going independently. In the UK, the creators shared or even owned the IP rights completely, so a vibrant and creative film and programme industry built up in our country. Strangely, this helped our creative companies, some of which are quite small. The result was that the many companies that have become the backbone of our success grew and flourished. I do not know what the situation is now, but I am doubtful about the proposed amendment, because I fear that it would have a perverse effect, and without evidence to the contrary—which I have not heard—we should be very careful about agreeing to it.

On equity sales, which are also the subject of Amendment 1, I doubt whether we should have special arrangements for ARIA. We now have a new law dealing with sales of sensitive businesses overseas—the National Security and Investment Act—and perhaps the Minister could confirm that it applies to ARIA and would deal with the risk, which the noble Lord, Lord Browne of Ladyton, mentioned, of ARIA falling into the hands of foreign players. I believe that the Arm deal, which I opposed at the time because of its effect on IP, would have been caught by the Bill—and I am not sure that we need to duplicate that.

So, finally, I agree with what was said by the noble Viscount, Lord Stansgate, about the record of the noble Lord, Lord Broers. We will miss him from today and on future occasions.

My Lords, I will speak to the centrality of intellectual property to the Bill and, in particular, on two themes, very briefly. First, on the protection of intellectual property, the noble Lord, Lord Browne, spoke very movingly and interestingly about the concerns that were brought up by George Freeman in the meeting that we had. It was reassuring to hear George Freeman speak so clearly and emphatically. That is why Amendment 2 is very interesting and worth a really good look.

I am very concerned that, in our efforts to build Britain into a science and research superpower, all that we will be is a laboratory for others to borrow from and that we will simply supply the unicorns of the future from overseas. Somehow, we have to capture that value here in the UK.

The second point, which the noble Lord, Lord Broers, spoke so movingly about and selected such a good example of, is about how we encourage the breed of entrepreneurs that I hope will come out of ARIA. We must encourage this. We should not have something like Amendment 17, which somehow suppresses the entrepreneurialism of our researchers and scientists. I have been to Kendall Square on the MIT campus, next to the Harvard campus, which is buzzing with excitement, with start-ups and major new enterprises feeding off the intellectual energy of those great universities. That is what we need to have here in the UK.

On Clause 1, I am torn between my noble friends Lord Lansley and Lady Neville-Rolfe, who both put their arguments so well. I would like to split the difference and agree with the noble Lord, Lord Browne, that these are things that I would like to hear about from George Freeman from the Dispatch Box. That argument has merit.

My Lords, I am largely going to speak to and support Amendment 1. I commend the noble Lord, Lord Browne, for raising these important issues on the question of ARIA’s ability to impose investment conditions. Unlike the noble Baroness, Lady Neville-Rolfe, I do not see those as bureaucratic constraints.

One key issue in delivering technology into the market in this country is the commercialisation and translation of that technology. We have seen report after report telling us about that. The UK is a top nation for the global impact of its R&D but not so effective at innovation, where it ranks 11th in the world for knowledge diffusion and 27th for knowledge absorption, according to an October 2021 report by our own BEIS department. The greater risk averseness of the VC and private equity market for technology start-ups in the UK compared to that of the US is common ground in the investment community itself; we need to hang on to our unicorns. As a result, outside fintech, we have seen too many high-technology companies sold to overseas companies at too early a stage. We have heard examples from the noble Lords, Lord Broers and Lord Morse—and, in Committee, the noble Lord, Lord Browne, took the risk of quoting the Daily Telegraph.

The National Security and Investment Act will impact on that to some extent, but in a limited number of sectors involving national security. Without this kind of scale-up support we cannot become—to coin the phrase so often used by this Government—a science and tech superpower by 2030. This excellent amendment will, I hope, ensure that those making decisions about future financing at least have some friction in the system to ensure that they have to think twice about where and how to raise capital for the future; at the same time, it gives ARIA skin in the game to help it do so. The Minister has said in correspondence that he shares the objectives of this amendment, so I hope that he will agree at the last stage to accept it.

As regards the other amendments by the noble Lord, Lord Lansley, in this group, I agree in principle with many of the issues that he has raised and the support for intellectual property rights that should be retained by ARIA in certain circumstances. He had powerful support from the noble Lord, Lord Broers, whose expertise we are certainly going to miss when he retires from the House.

As the noble Lord, Lord Browne, says, we have only this Bill today. We cannot solve all the problems relating to the taking of stakes by companies or our research institutions, but we can put this into ARIA’s terms; I very much hope that we will do so today.

My Lords, I find myself listening to some excellent speeches and frantically scratching sections from my own contribution as I do not see the point in repeating the points that have already been made. I put on record my thanks to my noble friend Lord Browne, in particular, for his generosity with his expertise and time in working so collaboratively on this issue, which has support on all sides. The principle is very simple: the state is taking a big risk by granting funds to speculative research projects. In cases where that risk pays off—we hope that is not an infrequent event, but we understand that this is about high-risk ventures—ARIA should have the ability to protect the potentially significant benefits that will arise from initial taxpayer support. It seems equally appropriate that ARIA has a say in potential takeovers or transfers of intellectual property. We know that there is a big market for speculative purchases of new technology. While ARIA may decide that there is no public interest in preventing certain events from taking place, there might be other investments that should be safeguarded.

It is clear from the debates that we have had in Committee and this evening that there is a shared desire on all sides—including, to be fair, from the Minister—to deal with this issue. He has correctly observed previously that the problem we are trying to fix is not limited to ARIA; that is understood and agreed with. However, while the amendment by the noble Lord, Lord Browne, does not fix everything, that does not mean we should not try to fix the thing that is in front of us now. It moves us in the right direction and is appropriate given the specific activity of ARIA; the Opposition are solidly in support of Amendment 1.

I thank noble Lords for what has been an excellent and very well thought-through debate. While the noble Baroness, Lady Chapman, was lucky enough to be scratching bits from her contribution, I found that I was adding lots more to mine to take account of some of the excellent contributions. The debate showed the House at its finest, even if I do not necessarily agree with all the points raised, as I will outline.

Amendment 1, introduced by the noble Lord, Lord Browne, imposes a number of conditions on ARIA’s financial support. He made his case well, raising a number of important issues regarding the UK’s approach to capturing value from public investment in R&D, the role of public IP retention within that, the Government’s powers to intervene in acquisitions and our approach in so doing. I have listened carefully to all the contributions made by noble Lords on this matter, and I think that there is some measure of common agreement. We are all agreed that public investment in R&D should indeed drive long-term socioeconomic benefit and ultimately drive value to UK taxpayers who are funding it. We are clear across this House that exploitation of IP will play an integral role in creating these benefits, and that our paramount concern should therefore be generating the maximum public value from that exploitation; I will return to that specific issue shortly.

The debate that we have had today on the benefits derived from public investment in R&D speaks to a much wider issue, which extends beyond intellectual property, ARIA and this piece of legislation. I respectfully say that I do not think that Report on the Bill is the most effective forum for setting precedents to this very expansive and wide-ranging area of government policy. While I will do my best to address the range of points raised this evening, the Government’s approach to foreign investment and how IP rights are treated within the public funding disbursed across the entirety of our considerable R&D system are indeed extensive areas of policy.

I recognise that there is some common ground, as the noble Lord, Lord Browne, has set out—although perhaps not as much as he might have indicated. As he said, I offered to facilitate a meeting with the Minister for Science, Research and Innovation, who came along to our all-Peers meetings to discuss these issues in the round. I still believe that this is the correct forum to discuss this issue in sufficient breadth—something that I do not think could be provided through this amendment to the proposed arrangements for ARIA alone. I suspect that the noble Lord will not be satisfied with my offer but nevertheless I repeat it here.

I have welcomed the insightful contributions of noble Lords in the scrutiny of the Bill so far, and I recognise the importance of Amendment 1 in providing a vehicle for this debate, but I hope that the noble Lord, Lord Browne, will recognise that this represents an unusual and strong restriction and we would have serious concerns as to its proposed workability.

To respond directly to the noble Lord’s amendment, let me set out the Government’s current position. The UK is a premier destination for foreign direct investment. I recognise the concerns the noble Lord has expressed about the current context and the issue of leveraged loans highlighted by the Bank of England, but, in general, I think we all have to recognise that this investment brings tangible economic benefits and the Government are rightly cautious about introducing wider powers to act on the grounds of public or economic interest, as such an approach could destabilise investment into the UK, reduce economic growth and ultimately, therefore, risk jobs and prosperity.

Of course, it is worth saying that, where necessary, the Government have statutory grounds for making interventions. The Enterprise Act 2002 enables the Government to intervene in mergers or acquisitions on media plurality and financial stability grounds and, recently, in relation to public health emergency. I say to my noble friends Lady Neville-Rolfe and Lord Lansley, for the sake of clarity, that the National Security and Investment Act 2021, shortly to commence on 4 January, gives further powers to scrutinise and to intervene in acquisitions of control of entities and assets that may pose a risk to national security. This includes areas of emerging technologies, such as quantum and artificial intelligence, which draw on significant previous public investment. I add, again for clarification, that the powers and provisions of the NSI Act will apply to ARIA and that it does cover intangible property.

Today, as outlined by the noble Lord, Lord Clement-Jones, and in Committee, we have heard desire to increase the scale of investment available to our most innovative businesses from within the UK to support their growth in this country. This is not an issue that the Bill alone can solve, and I do not believe that acting in isolation to curtail the access of these businesses to investment from elsewhere would be to our long-term advantage. I hope the noble Lord will recognise that this is a genuine concern.

I return to the issues of intellectual property more closely connected to the Bill. It is a clear ambition of the Government to become world-class at securing economic and social benefits from the research. I thank my noble friend Lady Neville-Rolfe for her contributions and I agree with many of the points she made. In the case of ARIA, we wish to equip it to take a case-by-case view of the most appropriate IP arrangements for individual programmes by varying its contracting and granting arrangements. I think we have some common ground across the House for this approach.

Depending on the route to market for the innovation or technology in question, on some occasions ARIA may retain IP generated through its programmes to reap the greatest public value. For example, if a programme is fully funded by ARIA and creates IP with commercial application but strategic importance from a security perspective, it may be appropriate for the IP to be retained directly by ARIA. In such circumstances, ARIA would draw on the new strategy outlined in the Mackintosh report as part of a concerted government effort to identify how to get greater value from public sector knowledge assets. ARIA would be responsible for developing its own knowledge assets strategy, taking into account the draft guidance in that report. It would also be able to utilise specialist support of the new government office for technology transfer to get advice on the best way to protect or to exploit public sector IP.

However, most often, we expect that the businesses or universities that ARIA has funded or contracted to conduct research will be best placed to exploit the IP generated. ARIA, seeking to take a greater role, would likely then disincentivise the very people that we most want to draw in to participate. For many SMEs, ownership of IP is critical to their businesses. Restricting their IP access and ownership would likely deter them from engaging in any collaborative ARIA programmes. ARIA acting as a powerful convener of multiple, disparate collaborators in pursuit of a single, ambitious, programme-level objective is an integral feature of the agency’s design.

As attested to by the noble Lord, Lord Broers, in Grand Committee, when he spoke about DARPA’s development of GPS, ARPA-like agencies play an important convening and co-ordinating role in drawing in technologies and IP. Done effectively, these agencies can drive progress and can pull through a novel idea to a prototype or to the market.

Let me take a moment at this stage to pay tribute to the noble Lord, Lord Broers, for the contribution he has made to this House in scrutinising this Bill and many others, and in sharing his immense expertise. I totally associate myself with the remarks of my noble friend Lord Lansley and others—he will be greatly missed and we will be poorer for not having his contribution to many of these debates. I place that on record.

Any restriction on ARIA’s IP arrangements that would deter broad participation in its activities would be detrimental to its collaboration and ultimately to ARIA’s potential achievements. More broadly, I would also argue that we should be very cautious about introducing additional obligations on ARIA’s IP arrangements which would place it at a disadvantage to other R&D funders. As the noble Lord, Lord Browne, reminded us, Innovate UK, for example, generally does not retain IP generated through grants and loans, on the grounds that the business closest to the innovation and the research will be best placed to exploit it and to generate value from it, which will, in the end, of course, benefit the public finances.

Our exact concern is that if funding from ARIA has additional conditions attached, or if the agency can make available fewer IP rights compared to funding from Innovate UK or others, there is a risk that the most innovative businesses will be disincentivised from participating in ARIA’s programmes. Where IP generated through ARIA programmes was vested in private entities, there would remain a variety of mechanisms to ensure that public value was generated as a result. I have previously highlighted existing initiatives aimed at retaining public investment in R&D within the UK, such as the patent box tax, which supports the retention and exploitation of IP rights by UK businesses by allowing them to pay a reduced rate of tax on profits arising from exploiting patents and other qualifying products. In addition, we expect that ARIA may use clauses that enable it to claw back funding provided to entities that do not then exploit the outputs of projects in the UK, as Innovate UK routinely does.

I believe that these points lead on well to Amendment 2, in the name of my noble friend Lord Lansley, which seeks to explicitly include in the Bill ARIA’s ability to retain IP rights and specify that rights held by beneficiaries should not be sold or assigned without ARIA’s approval. As I have just outlined, these things are important but they are not unique. There are many other conditions that ARIA may need to attach to the funding it provides: they cannot, and should not, all be listed in the Bill.

As I have stressed previously, the legislation as drafted already enables ARIA to acquire, retain, share, license or dispose of IP. ARIA can, and will, use this full suite of IP options. No amendment is needed for it to negotiate and tailor its IP arrangements to suit each project or programme.

The noble Lord, Lord Browne, has suggested that his amendment is not intended to impose a particular approach on ARIA but rather signal what it may do. If that is the case, I can assure him that ARIA may already attach conditions on its funding through its contractual arrangements, if that is agreeable to its research partners and helps it to achieve its objectives. I believe that the decisions ARIA takes on IP should ultimately be a matter determined and detailed in its contracting and granting arrangements within individual programmes, not in its founding legislation. As drafted, the Bill enables ARIA to have the greatest flexibility in its IP arrangements.

Amendments 21 and 22, in the name of my noble friend Lord Lansley, would add explicit reference to ARIA’s ability to own, acquire, retain, assign, license and dispose of intellectual property into its supplementary powers. I thank my noble friend for his consistent engagement and challenge on this issue but, as I have assured him, we have discussed this drafting very closely with lawyers. We are in clear agreement that IP will be a central consideration for all of ARIA’s activities, and IP arrangements and rights will be considered, tailored and embedded in the contractual arrangements for every project that ARIA funds. I am certain that the activities covered in these two amendments are entirely possible through the Bill as currently drafted, and that adding these references in ARIA’s supplementary powers would not enable the agency to do anything that it cannot already do currently. It is my view, therefore, that such legislative changes are unnecessary, but I thank my noble friend for continuing to champion the centrality of IP and the integral role it will play in ARIA fulfilling its functions.

Moving to Amendment 8 to Clause 4 from my noble friend Lord Lansley, this extends the arrangements in place for where ARIA retains IP and relates to ARIA’s ability to retain income generated through the exploitation of intellectual property. On the point made by my noble friend Lord Lansley, the framework document is a governance document between BEIS and ARIA and does not primarily involve the Treasury, although obviously Her Majesty’s Treasury will review it and will be required to approve it. The power in Clause 4 to attach conditions to grants reflects the usual process for allocating budgets to public bodies. Such conditions are usually attached through letters of allocation and delegation and would usually set requirements for resources to be managed in line with the principles of Her Majesty’s Treasury’s Managing Public Money.

I assure my noble friend that the Bill as drafted and the provisions of Clause 4 are already entirely compatible with ARIA retaining income. However, as was set out in Committee by my noble friend Lady Bloomfield, these arrangements are not dealt with in legislation. The 2020-21 consolidated budgeting guidance states that income generated by the exploitation of IP would be retained within a public body as standard, but Her Majesty’s Treasury would need to consent to the precise arrangements for ARIA and the implications of retaining such income. This is a live matter of discussion between my department and Her Majesty’s Treasury and, while I very much appreciate my noble friend’s support on the matter, I do not believe that it would be appropriate to introduce a legislative commitment on this issue at this stage.

Finally, Amendment 3, from my noble friend Lord Lansley, would add reference to ARIA having regard to technological advances in the UK as one of the benefits which it should seek to promote. Similarly, I believe that this is perhaps more a difference of opinion on drafting than a difference in policy intent. Driving and promoting technological advancement in the UK is indeed intrinsic to ARIA exercising its functions. I hope this is already evident from the existing drafting of Clause 2, and again I do not think that the amendment adds to or clarifies ARIA’s purpose. For those reasons, I am unable to accept it.

I apologise for the length of my contribution, but it brings me to the end of this very important group. I hope that the detailed explanations of the Government’s approach, the further assurances on the robustness of the existing drafting in permitting the full suite of options that ARIA might need, and my offer of a meeting with the Science Minister for the noble Lord, Lord Browne, and others will be sufficient to enable the noble Lord to withdraw his amendment.

My Lords, I thank the Minister for the care he has taken in responding to this debate and I thank all noble Lords who have contributed to it. I find myself in the position—other than in the Minister’s case—of saying that I agree with everything everyone else said, and I include in that the noble Baroness, Lady Neville-Rolfe. I agree with everything that she said, other than that she has, with respect to both her and the Minister, made the same mistake in that they characterise this amendment as imposing or mandating behaviour on the part of ARIA. With respect to both of them—I pointed this out in my opening remarks to the Minister—this is a misreading of the Bill.

The amendment is placed in a position which does not mandate or impose anything. It enables ARIA to choose what it wants to do but directs its attention to what all contributors to this debate have made clear is an issue of necessity as far as they are concerned if we are to achieve what this letter I have received from the Minister expresses as our common objective—that is, to generate the greatest public value from ARIA’s exploitation activities which will be publicly funded. There is a common understanding that if these exploitation activities fall into the hands of businesses that are based abroad, large amounts of money and great improvements in our society and our socioeconomic affairs will be denied to the people of the United Kingdom. There is no doubt about that.

With respect to the Minister, I think he is complacent about the degree and the extent to which that has been happening over the past decade. I repeat that it has been happening so much over the past decade that the Bank of England expressed concern about it because of the financing mechanism that is used, which is not investment. It is leveraged debt that is imposed on our economy to such an extent that it undermines our economic performance. I have in the past endeavoured, as have others, to have the Government engage on this. The success of these amendments, in this context, in this Bill, is that the Government have engaged more at the Dispatch Box and in debate than they ever have before, and I am delighted at the opportunity to have a meeting with others and with an important Minister in the Government who is now willing to discuss extensively how the Government intend to deal with this issue.

In thanking all noble Lords for their contributions, I repeat that my intention is to use this important amendment—it is not perfect in the sense that it does not solve this problem extensively, but it does here and it draws ARIA’s attention to the danger of this and concentrates its mind on it—to get the Minister, who shares the concerns we all have because we heard them in an earlier meeting with him, to share them where he should share them, which is at the Dispatch Box in the House of Commons.

Finally, I echo noble Lords’ words on the contribution that the noble Lord, Lord Broers, has made to your Lordships’ deliberations and the insight and wisdom he has brought to the House. I am proud—in fact, I am honoured—that one of his last acts in this House has been to support my amendment. If he could persuade the Government that perhaps they should draw to ARIA’s attention the opportunity it has to extend the period in which it can protect its intellectual property and its exploitation of it for the people of the United Kingdom, I would be happy that he did so. This amendment has not yet served its whole purpose, and it will not unless it is supported by your Lordships’ House. I wish to test the opinion of the House.

Amendments 2 and 3 not moved.

Amendment 4

Moved by

4: Clause 2, page 2, line 18, at end insert—

“(7) In exercising its functions ARIA must give due consideration to the following—(a) compliance with the duty imposed by section 1 of the Climate Change Act 2008 (UK net zero emissions target),(b) adaptation to climate change, or(c) meeting other environmental goals (such as restoration or enhancement of the natural environment).”Member’s explanatory statement

This amendment seeks to include the UK’s net zero target and environmental goals as matters which ARIA must give due consideration to when exercising its functions.

My Lords, in moving Amendment 4 I will speak to Amendment 19, in my name. I declare my interest as a director of Peers for the Planet and as an engineer and project director with Atkins.

I thank my supporters who have signed these amendments, the noble Baroness, Lady Chapman, and the noble Lords, Lord Browne and Lord Oates. Alongside them, I thank the noble Baroness, Lady Brown, and the noble Lords, Lord Lansley and Lord Broers, for their invaluable support and advice throughout this process. Like others, I pay tribute to the noble Lord, Lord Broers. His will be a huge loss to the House; we will much miss his expertise. I particularly pay tribute to his work leading the All-Party Parliamentary Engineering Group, which is all about getting schoolchildren excited about engineering and exposing them to the latest ideas. It has made a huge difference, as I know from the involvement of a school that is local to me. Maybe one day we will see some of those children pushing new frontiers with ARIA—who knows?

I spoke at Second Reading and in Committee on the progenitor organisation for ARIA, DARPA. In 2013, DARPA took the gamble of awarding a small firm called Moderna $25 million to develop the idea of using messenger RNA to make vaccines. So I had reason to be personally thankful for the work of DARPA at the weekend, having received my Moderna booster on Saturday. I could also mention the GPS technology that guided me to the vaccination clinic, and the internet that I used to book the appointment—innovations that were both seeded by DARPA. DARPA has literally changed the world in so many ways, creating trillions of dollars of value. We all look forward to ARIA doing the same within the UK.

Starting with Amendment 4, I thank the Minister for taking the time to meet me to discuss the amendment, and for all the work that he and his team have done to investigate its implementation. As I stated at that meeting, I want to clarify a potential misconception about my amendments. I am not seeking to implement a mission or purpose for ARIA. I listened carefully to what the Minister said in Committee. It is clear that the Government want to maintain flexibility for ARIA, and so I have withdrawn my original Committee amendment, which attempted to implement one. Instead, I am looking to put a “have regard to” statement in the UK’s primary strategic goal of climate and the environment, similar to the other statements in Clause 2(6) of the Bill on ARIA’s functions, which talk about economic growth, promoting scientific innovation and improving quality of life. ARIA would still be free to choose whatever missions it likes within the constraints of Clause 2(6) and this proposed new subsection, as the Government intend.

Part of the argument for this amendment is consistency. The Government have sought to implement similar climate and environmental amendments across a whole range of recent legislation—the Skills and Post-16 Education Bill, the Pension Schemes Act and the Financial Services Act—and these are all “have regard to” amendments. My amendment uses the same wording as these amendments, specifically using wording from government amendments to the skills Bill.

I know that the Government want to ensure that they are taking a systems view of net zero, with climate as a golden thread through all relevant legislation. This certainly is relevant, given that we know how important R&D is to our net-zero and environmental targets and how important ARIA could be to those. As we know, the International Energy Agency stated that almost half of the needed emissions reductions for 2050 are expected to rely on technologies that have not yet reached the market. This is a great opportunity for the Government, given the focus on delivery post COP. It is a minor but beneficial amendment which would ensure that the organisation has regard to the primary strategic goal of the UK, but which does not detract from what the Government want from ARIA overall.

Amendment 19 simply calls for ARIA to develop its own environmental and social governance, or ESG, strategy, to consider the impacts of the exercise of its functions and the projects which it funds. It would allow the board of ARIA to consider their own strategy for alignment with the environmental and climate goals, and so is consistent with the other amendment. I note that other government-created bodies are also developing ESG strategies. For example, the FCA recently published an ESG strategy, and the national infrastructure bank has a requirement to develop an ESG strategy in its framework document. Bringing ARIA in line with other government organisations would again ensure consistency and that it is playing its part in the principal strategic goal of the nation.

Finally, these points relate to a substantive proposal that the Minister has offered relating to both amendments, so I look forward to hearing his proposal in detail when he sums up. I beg to move.

Amendment 5 (to Amendment 4)

Moved by

5: At end insert—

“(d) meeting Sustainable Development Goals 1 (no poverty), 2 (zero hunger) and 3 (good health and wellbeing).”

In moving Amendment 5 in my name, I will briefly comment on Amendments 4 and 19. Had there been space in our procedures, I would have attached my name to Amendment 4; I note that it has broad cross-party support. It addresses the Climate Change Act and imposes a legal requirement to comply with the duty of Section 1 of that Act, which concerns net-zero emissions. That is an important and good way of expressing it, and I hope that we will see that eventual outcome.

Amendment 19 talks about ARIA having an ESG strategy. This would not be my preferred way forward. In a way, it is better than nothing, and I see the point that was made by the noble Lord, Lord Ravensdale, about lining up with other vaguely similar institutions. However, we have seen a great deal of criticism of ESG as not always being a very strong or effective tool.

My Amendment 5 calls for ARIA to include sustainable development goals 1, on poverty, 2, on zero hunger, and 3, on health and well-being. These are internationally recognised and accepted goals, with targets within them to which the UK, like every country on this earth, is signed up. Surely these should be the goals of every element of the Government, both direct and arm’s-length parts.

I thank the Minister and his staff for engaging with me in discussions on this, but before I get to that I want to address why it is so important to talk about poverty, health and hunger in this ARIA Bill. When people talk about what ARIA will achieve, very often it sounds as if we are talking about Silicon Fen, often known as the “Cambridge cluster”—the region around Cambridge which has so many high-tech business, including software, electronics and biotechnology. But if you look at the reality of life in Cambridge, the top 6% of earners take home 19% of the wealth generated in the city, and the bottom 20% of earners get 2% of the wealth generated in the city.

I encourage noble Lords, if they have not yet seen it, to have a look at an article in the Guardian by Aditya Chakrabarti, who visited a foodbank in Cambridge recently. In his reflections there, he noted that this is a tiny city with a population half the size of a single London borough, yet in one postcode in Cambridge you can expect to live until 87. In a postcode just down the road, it is 78. This is the kind of development that has delivered a miserable life for many, many people. This is why I tabled this amendment.

In the discussions that I mentioned with the Minister and his staff, which raised some very interesting issues, they pointed me to Clause 2(6) of the Bill, which states that, in exercising its functions,

“ARIA must have regard to the desirability”

of various things. Clause 2(6)(c) states that one of those is

“improving the quality of life in the United Kingdom”.

I would be very interested to hear from any noble and learned Lords who might be able to assist me. I am not a lawyer and I am not quite sure what the legal definition is of “quality of life”. I suggest that it is open to political contention and discussion. More than that, in the context of what I was saying about Cambridge, whose quality of life are we talking about? That is a very important question to ask. In your Lordships’ House, I often comment on the Government’s pursuit of GDP as a goal in itself, but here we are talking about quality of life, which surely has to include a distributional element.

That was my purpose in tabling this amendment. I was asked whether I intended to put it to a vote. Given that I called a Division yesterday, and given that I have not had as much time as I would have liked to devote to thinking it through and finding a form of words that really works, it is not my intention to put it to a vote. However, I would be very interested to hear from the Minister what the Government mean by “quality of life” in Clause 2(6)(c). Do the Government acknowledge that that has to address distribution as well as GDP growth? I cannot see any way that it could not. If the Minister is looking for a way of measuring this, I point him to the Living Standards Framework used in New Zealand, which directs the New Zealand Treasury and the actions of the New Zealand Government. That is a good measure of the quality of life. I beg to move.

My Lords, I rise to support Amendments 4 and 19 in the names of the noble Lords, Lord Ravensdale and Lord Browne of Ladyton, the noble Baroness, Lady Chapman of Darlington, and myself. I commend the noble Lord, Lord Ravensdale, in particular for his tireless work on this issue. I too join in the tributes to the noble Lord, Lord Broers, and wish him well in his retirement. I also have some sympathy with the intention behind the amendment of the noble Baroness, Lady Bennett, which raises very important and wider questions, but I am going to focus on Amendment 4.

As the noble Lord, Lord Ravensdale, has said, a number of Acts of Parliament that have gone through this House have had “have regard” amendments relating to climate change made to them. I was pleased to be a signatory to the cross-party amendment to the Financial Services Bill, which the Government substantially accepted in this regard. This point of consistency is extremely important. However, I would have preferred it if the Government had been willing to accept a stronger amendment on the purpose of the organisation, but I recognise that political pragmatism is wise on occasion.

In Committee, we had a very useful discussion about whether the agency would benefit from the sort of mission and focus that helped the Defence Advanced Research Projects Agency in the United States—mentioned by the noble Lord, Lord Ravensdale—achieve its success. The noble Lord, Lord Lansley, told us that DARPA’s mission had been to not be taken by surprise by new technology and, perhaps by implication, to surprise others with the advanced technology of the United States. That may well have been the mission, but the purpose of the mission was surely what drove DARPA’s success: to maintain the national security of the United States against the threat of Soviet communism. It is that purpose which provided DARPA with its edge, its sense of urgency and an understanding of the stakes of the mission on which it was engaged.

While Soviet communism posed an existential threat to our freedom then, today the threat we face from climate change and ecological destruction is even more acute: an existential threat to life itself. Surely, there can be no more profound purpose to drive our new advanced research agency, no greater focus to inspire research, innovation and the practical application of science, than that of tackling a threat to humanity itself.

Personally, I would have liked that to have been ARIA’s explicit purpose; nonetheless, I am heartened by indications that the Government might be prepared to move on this issue. I am very pleased to support this amendment because I think it would represent important advances to some degree on this issue. I very much commend the noble Lord, Lord Ravensdale, for—hopefully—his persuasive powers in getting the Government to the right place. I will listen carefully to what the Minister has to say, but I still suspect that future generations will look back with a degree of surprise that at this time, and in the knowledge of the climate and ecological threat we face, our advanced research agency was not more clearly harnessed to this, the gravest and most important task at hand.

My Lords, it is a great delight to hear from the noble Lord, Lord Ravensdale, who brings his business acumen and passion for both innovation and climate change to the feast. We have discussed these together often in Peers for the Planet.

We have the climate change Acts, and a huge amount of attention is paid to climate change in every part of government life and in their multi-billion-pound R&D budget. ARIA is a small, independent body and should be left to decide what is most important to our future and to the inventive opportunities that it is set up to create. That might include climate change, health, poverty or the quality of life. Technology, for example, improves our lives, but it also brings risks. ARIA should be left to decide what is most important. It should be able to think completely outside the box and make its own choices, and not be bound by precedent. I am afraid that I am therefore sceptical about these amendments.

My Lords, the noble Lord, Lord Ravensdale, the noble Baroness, Lady Bennett, and my noble friend have made a compelling case for supporting this amendment, based on the climate and ecological emergency that we face. Tackling those challenges will require massive innovation and ingenuity and the development of practical applications from that. If ARIA has the bold, independent, innovative culture that the Minister emphasised throughout Committee, then it must be the ideal vehicle for this research, and we should spell it out. We should make ARIA an essential component of the net-zero strategy.

My Lords, I am grateful to the noble Lord, Lord Ravensdale, for bringing back his amendment on these important issues. It has been a real pleasure working with him and hearing from him throughout the debates on this Bill. In Grand Committee, Labour proposed making addressing climate change a core purpose for the first two years of ARIA’s existence. It is, after all, one of the greatest challenges, if not the greatest, that we face, and it is science and technology that we look to for new tools and solutions. We were disappointed by the Minister’s response to that suggestion and to the proposals put forward by other noble Lords. We feel this is of critical importance, so we would be prepared to support Amendment 4—depending, of course, on what the Minister has to say.

The noble Baroness, Lady Bennett of Manor Castle, has tabled Amendment 5, which seeks to promote three of the UN sustainable development goals, which Labour supports. My noble friend Lord Collins of Highbury looks for any opportunity to press the Government to secure progress on them, domestically and overseas. Without wanting to soften the Minister’s cough—as I think we say where we are both from—I am sure he will say that the Bill is not the correct vehicle. However, whether or not there is a vote, the Government should understand that amendments such as this, which embed climate as a golden thread in legislation, will be put forward by noble Lords and Members in the other place at every opportunity.

My Lords, I thank the noble Lord, Lord Ravensdale, for his productive engagement on the amendments in his name, as well as others for contributing to this important debate. Clearly, this issue matters to us all. I will start by exploring the intention behind the amendment. If it is to signal the importance of climate action, of course there is no disagreement between us on that. It is clearly an issue of the utmost strategic importance to this country, and that is reflected in the Climate Change Act, which marks the UK as the first major economy to pass laws to end our contribution to global warming by 2050. Our statutory obligations and ambition on this issue could not be clearer, and they do not need to be marked elsewhere. I do not believe that we should add to this legislation to signal our general intent. It is not appropriate for any provision to be added to a Bill unless it has an actual effect.

The alternative is a statutory duty that seeks to influence—and therefore constrain—ARIA’s activity in some way and, as drafted, the amendment would do so in a very sharp sense. I am grateful to the noble Lord, Lord Ravensdale, for his willingness to engage with the concerns that I put to him and explore alternative ways to achieve his objectives. I have raised these points with him directly, so for the benefit of others I will outline my position—with apologies to the noble Lord, who has heard all this before.

There are well-rehearsed arguments that I have put forward against a defined climate mission. I remind noble Lords that UKRI, through which the overwhelming majority of our public R&D funding is delivered, funds a full portfolio of projects focused on tackling climate change. Where there are specific research and innovation needs to support the Government’s strategic priorities in this area, UKRI delivers across: adaptation and resilience; clean energy; and sustainable industry, agriculture and transport. I think we are all aligned behind the idea that ARIA should complement, not duplicate, our existing capabilities. That is why this amendment is rightly presented now as a more general obligation. The excitement and support that ARIA has generated within the research community has been based on its different model of funding, with agility and risk appetite absolutely central to all the recommendations of how and why ARIA should be created.

ARIA should not be focusing on the scale-up and exploitation of known technologies, for climate change or indeed any other government priorities; noble Lords with expertise in this area will know well that the extent of its funding, at £800 million over five years, makes it completely unsuitable to play such a role. ARIA will contribute by focusing its programmes on the most ambitious objectives, and funding high-risk research and innovation to achieve them. When ARIA finds solutions to these hard problems or gathers learnings along the way, they will be adapted and applied to other fields in different contexts: that is where the benefits to our climate ambitions are likely to be felt.

Breakthroughs in materials science led to huge progress in what is possible in terms of battery storage or fusion. Those technologies are now critical to the energy transition, but much of the original research was not done with that goal in mind. Being prescriptive limits the scope to take completely novel approaches, as we hope and expect ARIA will do. Placing this obligation on ARIA requires us to answer the question: who will assess whether the radical breakthrough targeted by an ARIA programme might—in future, in some way—contribute to our climate goals?

The National Audit Office will assess the regularity of ARIA’s spending each year, which would include this addition to its funding. Is it well placed to make this assessment? That is not intended as any slight at all on the NAO—I am sure the noble Lord, Lord Morse, will be glad to hear that. However, I submit that even the researchers and innovators steeped in a technology cannot predict how it might evolve or be applied in the years to come. That is the nature of innovation and high-risk research. Essentially, it is unknowable. Adding this provision to the Bill asks us to make that essential assessment not only knowable but justiciable. Whoever performed the assessment of whether ARIA’s activities fell within the scope of this obligation would have their judgment subject to judicial review.

I strongly suggest that the actual effect of this amendment would be to push ARIA towards objectives where the assessment would be clear cut. It would disincentivise risk-taking, new approaches or exploring the application of technologies in unusual or unprecedented contexts. I submit that it would work against the grain of everything we are seeking to achieve with this organisation—

Is it not a fact that, although the Minister believes that we cannot make concrete commitments on method, we now have some very concrete commitments on outcomes? Glasgow is the best example of medium-term commitments. Unless we monitor those against the metric—the Minister will know that he used that word some months ago—how do we get around the following dilemma? We have concrete commitments on outcomes in a lot of areas but are now putting quite serious dilemmas—I am not saying it is nit-picking—before ourselves as to how we can make sure that we are on track to go where we are trying to get to.

I thank the noble Lord for his contribution. I am not 100% sure of the point that he is making. I agree with him that we have concrete commitments, but we have a well-defined track of a number of strategies heading towards those commitments. In the Bill we are talking about funnelling one small part of our R&D funding into a separate agency, while seeking to take novel, innovative approaches to research and development.

I have cautioned against placing this obligation in the Bill but that does not mean that it is unimportant for ARIA to have an awareness of these issues, as the noble Lord, Lord Ravensdale, articulated so forcefully. I am pleased that many noble Lords attended the briefing we held where my colleague George Freeman, the Minister for Science, Research and Innovation, discussed this. It is not plausible that any appropriate CEO candidate for ARIA would be ignorant of the opportunities connected to net zero within research and innovation. There is a similar situation with regard to Amendment 5 and the sustainable development goals, raised by the noble Baroness, Lady Bennett of Manor Castle.

As a result of the ongoing discussions that we have had on this issue during the passage of the Bill, I am able to commit now that, as an alternative, ARIA will evaluate itself against the pillar of the 2021-25 greening government commitments most relevant to this amendment on mitigating climate change by working towards achieving our net-zero environmental goal. This would be included within the framework document; ARIA would therefore be required to consider this objective from its very first cycle of reporting and evaluation.

I also agree that it is through its projects, and its funding, that ARIA’s greatest contribution to our net-zero objectives will be made. I can therefore also commit that ARIA would have regard to its projects contributing to our climate change targets and environmental goals. This is distinct from the sustainability reporting framework and should sit alongside it as a broader obligation, rather than being part of that evaluation process. That consideration would again be included in ARIA’s framework document. In my view, that is the appropriate place for such requirements, which relate to the effective governance of the organisation and its alignment to wider public sector objectives, as it can be more readily updated to reflect changing circumstances or priorities.

The existing reporting requirements, as set out in Her Majesty’s Treasury’s sustainability reporting guidance, mean that environmental and social considerations are well catered for within existing public sector authority obligations. I hope that will reassure noble Lords that the statutory requirement for a specific ESG strategy, as introduced by Amendment 19 in the name of the noble Lord, Lord Ravensdale, is unnecessary.

There are a huge number of possibilities here that I would be happy to discuss further, but I strongly believe that the effect of this amendment would not be productive for ARIA or our climate ambitions. I am grateful to all noble Lords for their contributions and thank the noble Lord, Lord Ravensdale, in particular for his engagement and correspondence on the subject and for acknowledging in a reasonable and productive way the concerns I have set out and the alternative I have proposed. I hope this outcome is productive and acceptable to all and that it will enable noble Lords to withdraw or not move their amendments.

I apologise; the procedure is a little different and more complicated because I put down an amendment to an amendment. It is not my intention to respond substantively to the Minister’s response to Amendment 4. The noble Lord, Lord Ravensdale, has consistently championed Amendment 4 and variations of it, so it is most appropriate that he responds on that one. I should just say that I failed to declare earlier that I am a member of the committee for Peers for the Planet. On Amendment 5 and my side of this, I do not think the Minister responded to my question about defining quality of life. I realise this may be a legally complicated matter, so will he commit to write to me about this and lay a copy of the correspondence in the Library?

Regarding the noble Baroness’s question on the definition of the quality of life—we are getting into a very esoteric debate for this time of night—I do not think there is a technical definition specific to her suggestions that I can point towards. It is not in such common usage but, if I can find an appropriate definition, I will of course send it to her.

I thank the Minister for his answer. I want to make one other point very quickly. He talked a lot about the hard sciences. It is interesting that, when we had a private discussion with a number of his colleagues, there was also a lot of focus on what might be described as the softer biological sciences and issues such as plant health and the human microbiome. I hope those will be considered within ARIA’s remit. I beg leave to withdraw my amendment.

Amendment 5 (to Amendment 4) withdrawn.

My Lords, I am most grateful to the Minister for his proposal and for ensuring that ARIA will be asked to demonstrate through integrated reporting how sustainability is an essential characteristic within its strategic objectives, operations and policy-making. I believe that this proposal meets the intent of my original amendments through implementation in the framework document. It will ensure that ARIA has regard to the areas set out in my original amendment; it will be asked to consider and demonstrate how it has met them. In particular, as he said, it will ensure that ARIA has regard to its projects contributing to our climate change targets and environmental goals. Through working together with the Government, we have reached a good compromise on this issue. I again thank the Minister, his team and my supporters and beg leave to withdraw my amendment.

Amendment 4 withdrawn.

Amendment 6

Moved by

6: Clause 2, page 2, line 18, at end insert—

“(7) ARIA is a public authority within the meaning of section 3 of the Freedom of Information Act 2000, and Schedule 1 to that Act is amended accordingly.”Member’s explanatory statement

This amendment would subject ARIA to Freedom of Information requests.

My Lords, Amendment 6 is in my name and that of my noble friend Lord Fox, the noble Baroness, Lady Chapman, and the noble Viscount, Lord Stansgate. As my noble friend said in Committee, without the FOI amendments, ARIA would follow in the footsteps of a very small number of institutions that currently do not have Freedom of Information Act obligations. I will not extensively rehearse all the arguments, but suggest that the organisations involved, which include the Royal Family and security and intelligence bodies, are not natural bedfellows to ARIA. The Minister complained about the burdens for ARIA of responding to FOI requests but nowhere, not even in Dominic Cummings’s evidence to the Commons Science and Technology Committee last February, was the FoIA identified as an obstacle to ARIA’s success.

The Minister has continually highlighted that ARIA is modelled on DARPA. ARPA was subject to the US Freedom of Information Act and DARPA is subject to it as well. This has not prevented them achieving the successes which the Government wish ARIA to emulate. We talked in Committee about the equivalent number of requests received before the restructuring of the research bodies, which were exactly equivalent to those of DARPA. The argument that DARPA charges fees falls away too. The main classes of requester—the news media and educational staff—and requests in the public interest are not charged. In practice, only commercial requesters have to pay.

As I said in Committee, there is no question that, under the FoIA, ARIA’s research programme could be prejudiced, given the clear exemptions under the Act for research interests. In Committee, the Minister gave away the real reason for the Government’s refusal to include ARIA under the FoIA. He illustrated his general contempt for freedom of information legislation, saying:

“From my point of view, it is a truly malign piece of legislation”,

and that

“there must be many hundreds of civil servants engaged in doing nothing other than responding to these fishing expeditions”.

It looks like this is personal—or is the truth that the Government find the daylight shed on them by the FoIA truly inconvenient, and ARIA is just the start of an erosion of FoIA rights?

Transparency is crucial for all our public institutions. ARIA will be in receipt of a substantial amount of public funding—£500 million over the next three years—so there are compelling grounds for its inclusion. Coming under the FoIA is an essential part of retaining public trust.

As regards Amendment 7, which relates to procurement, the Minister said in Committee that:

“When ARIA is commissioning and contracting others to do research for it, it will be operating in a fundamentally different way from traditional R&D grant-making where procurement rules do not apply.

In my view, it is therefore appropriate for ARIA to be given freedom from procurement rules to ensure that the agency has greater flexibility in its contractual arrangements.”—[Official Report, 22/11/21; cols. GC 147-49.]

If ever I heard a circular argument, that was it.

Why are the Government having to perform drafting contortions to exclude ARIA from these procurement requirements in the Bill? Why on earth should ARIA not be subject to exactly the same procurement regime as other public bodies? UKRI is subject to rules and procures and commissions services, including research services. What makes ARIA so different? I beg to move.

My Lords, I rise to speak to Amendment 6, to which I added my name. This is a subject I raised at Second Reading, but I reassure the noble Baroness acting as the Whip that, on this occasion, she can relax; there is unlikely to be any need to interrupt me on the grounds that I have gone on too long, because I want to be very brief.

There are two reasons why ARIA should be subject to the Freedom of Information Act. The first is one of principle. Public bodies set up in statute should be subjected to the same FOI requirements as apply elsewhere. In this country, I submit that FOI legislation is an essential safeguard in the political world in which we now live. To reject this amendment will send a bad signal and set a bad precedent. I even suggest to the Minister that he may reconsider his view as and when he sits on these Benches in the future.

The second reason is practical. We do not want to allow ARIA to come to be viewed with public suspicion and distrust, especially as it has the right to fail, so being open about its work will be beneficial. If it turns out tha