House of Lords
Wednesday 27 April 2022
Prayers—read by the Lord Bishop of Chelmsford.
Retirement of a Member: Lord Young of Graffham
My Lords, I should like to notify the House of the retirement, with effect from today, of the noble Lord, Lord Young of Graffham, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I should like to thank the noble Lord for his much-valued service to the House.
West Coast Main Line
My Lords, the department is currently in discussions with Avanti West Coast, as per the prior information notice first issued in October 2020, about a subsequent direct award. A decision will be made later in the year.
My Lords, I thank the Minister for that not-too-helpful response. Does she regret the replacement of Virgin Trains by this particular organisation? Does she agree with me that the problem of national rail contracts is that, under the present system, they are, in effect, cost-plus contracts? There is no incentive on train operating companies either to run trains or to provide a decent service, something this particular company has taken advantage of. Will she send Avanti a short message—how about, “Arrivederci”?
I am grateful to the noble Lord for that. I also am aware that he has written to Avanti West Coast citing his concerns. It has no record of any correspondence from him; however, the managing director is very happy to speak to the noble Lord—perhaps he can say that Italian word at that meeting. It is the case that both for the ERMAs and the national rail contracts, there are very firm incentivisation elements. For example, Avanti earns a fee based on performance and, for the six months to March 2021, it was judged as getting a score of one for customer experience—that is the lowest, not the highest. Therefore, because it got the lowest, it got no fee for that element. So there is incentivisation, and we hope to make it better because we want to see excellent customer service across our railways.
My Lords, I shall ask the Minister a straight question. If she came to this Chamber 17 minutes late to answer these questions, how does she think the House would feel? If she was summoned again at 9 pm with a Statement from the other place and she was 38 minutes late, does she think that we would be impressed with that performance? Those were the train delays on my journey from Stockport to London on the Thursday before we broke for Easter. That is by no means a one-off—the timetable is fantasy island. The morale of staff is at an all-time low. Until last week, they were wearing Virgin uniforms—three years on—with the badge cut off. The morale of staff is down, the service to customers is poor and I see no reason for carrying on with this franchise.
My Lords, had I turned up late to the Dispatch Box, obviously I might have had to resign—but not today. It should be remembered that we understand that there have been various issues relating to services. We work extremely closely with all the train operating companies, as the customers come back to the railways, to make sure that they run on time. There has been an issue around cancellations regarding staff-related absence, but we are working through that and things are improving. Of course, part of having these contracts in place means that we will be able to get better service for customers.
My Lords, I have heard the same stories as my noble friend about the pretty appalling customer service from Avanti, and I reflect on the fact that the present structure seems to require the Treasury to micromanage everything—even if Network Rail wants to paint the railings on a station, it has to get Treasury approval. This is probably not a very efficient way of working. Can the Minister assure the House that, when we hear details of the Great British Railways, which is going to save us all from appalling services, that will be taken into account and somehow there will be some delegation and authority for the railways to run on their own with incentives and not too much bureaucracy?
I absolutely agree with what the noble Lord has just said. Of course, the Great British Railways transition team is already focused on delivering improved services for customers and driving revenue recovery. At the moment we know that passenger demand is about two-thirds of what it was pre-pandemic. It is looking very closely at boosting strategic freight again which is really important and developing this whole 30-year vision for how we want our railways to operate in the longer term.
I am always very happy to take the train. When I take my local train, I am actually always pleased with the service, although I look around and see that there are not as many passengers on it as I would like to see. I think that is one of the biggest challenges we face. We have the railway infrastructure and operating companies which have historically been operating at much higher passenger levels and we have to look at how we are going to adjust the railway in the future, maintaining excellent customer service but also good value for money for the taxpayer.
Will the Minister acknowledge the great importance to the Welsh economy of the Holyhead to London Euston route, acknowledging that there are not many highly skilled or well-paid jobs in north-west Wales? Can the Minister indicate when the pre-Covid rate of service might be reconstituted, particularly the hourly service that existed from Chester to Euston which has been much emaciated? Can she help?
I do not think that I would be able to stand here and commit to every single service coming in the same form as it was pre-pandemic, because life has changed and the reasons why people are travelling by rail have also changed. Avanti West Coast started off with four trains per hour plus extra peak trains. Back in February, that went up to six trains per hour—on 28 February—and then as we approach the summer timetable which comes in in May, we will be up to seven trains per hour and eight on key hours. That will improve the service to Chester and, I hope, to north Wales.
My Lords, it is always easy to complain and make comments, but yesterday I was on an Avanti train from Euston to Liverpool, where my mother was having an operation. I waited until she was conscious and therefore I missed my train, which I had booked at 2.47 pm. I would like the Minister to agree with me and call out the train manager at Liverpool Lime Street on the 3.47 pm Avanti train. When I explained my situation, that I had missed my train, he said, “Don’t you worry whatsoever. Go and sit down.” It was great customer service, and I would like to call that out.
My Lords, can we go into this Avanti contract a little more? Modern Railways magazine, which tends to be an authoritative magazine in the industry, says that Avanti will be taking over the service on a national rail contract on 16 October. Can the Minister confirm that that is true? When does she expect to actually conclude the contract with Avanti? Can she explain what revenue risk, if any, Avanti will be taking? Will she perhaps illustrate what other risk Avanti will be responsible for? The key question, I think, given that there is not going to be a competitive process, is: how do we know we are getting value for money?
Avanti already has an emergency recovery measures agreement, which was awarded to First Trenitalia, which is Avanti, in August 2019. That was initially for seven years, so the national rail contract we are currently negotiating with Avanti will replace that. It will start on 16 October if negotiations reach an appropriate point. We will not award the contract if it is not right to award the contract, because, of course, there are alternatives. As for the revenue risks, obviously these contracts operate as all rail contracts do, whereby the Government take on the revenue and the costs; however, the train operating companies do annual business planning every year, which has to be agreed with the department. On that basis, within that, there are various performance measures that have to be met, and that is how we are able to control the railway and ensure companies are delivering value for money.
My Lords, I use the Avanti West Coast every week and, frankly, the customer service is pretty good. It has introduced standard premium, which is a vast improvement, with at-seat ordering, et cetera—I think it is pretty good. But can the Minister tell me about what is laughably called TransPennine Express, which has been on strike for weeks now every Sunday? What are the Government doing to bring the strike to an end?
Amnesty International Report 2021/22
To ask Her Majesty’s Government what assessment they have made of Amnesty International’s Annual Report 2021/22, published on 29 March; and what steps they intend to take in response to the findings about human rights issues (1) globally, and (2) in the United Kingdom.
My Lords, we recognise the huge contribution that civil society, including Amnesty International, makes in promoting respect for human rights and holding Governments to account for their actions. The UK has a long-standing commitment to the promotion and protection of human rights, both internationally and domestically, and we will continue to show global leadership, encouraging all states to uphold international human rights obligations and hold those who violate human rights to account.
I am grateful to the Minister for his ever-courteous response. No country is perfect when it comes to human rights. Is there anything at all in Amnesty’s assessment of the UK position that the Government are looking to improve? Is there a particular priority for the Government in their approach to trying to encourage at least their friendlier international partners to do better on their record?
My Lords, first, I agree with the noble Baroness that the issue and the challenge of human rights is never a job done, whether we are talking globally or domestically. I often say that it is the most challenging part of my portfolio at the FCDO but also the most rewarding. Of course, the United Kingdom Government have prioritised human rights in a range of areas. We will be focusing, for example, on freedom of religion or belief in the conference in July this year. I myself will be leading in the conference on preventing sexual violence in conflict, already brought starkly to all our attention by the conflict in Ukraine. Also, domestically, I think we have a very vibrant civil society space, and I think that needs to be recognised.
On Amnesty International, as the noble Baroness knows, as Human Rights Minister I had a very strong relationship with its previous director, Kate Allen, and we continue to work actively with civil society groups, including my right honourable friend the Foreign Secretary, who has an advisory group on human rights that works directly with her on this important priority.
My Lords, in this House this week we debated and approved an order which, for the very first time, placed the UAE on a legislative list for high risk of money laundering, fraud and financing of terrorism. The Amnesty report highlighted arbitrary detentions, cruel and inhumane treatment of detainees, suppression of freedom of expression, the undermining of the right to privacy, death sentences and reported executions. I cannot see, in our £10 billion investment partnership with the UAE, any trigger clauses on human rights abuses that could limit market access to the UK. Are there any such clauses in our investment relationships with the UAE that could trigger such a mechanism?
My Lords, our relationship with UAE is very broad, and the noble Lord focused on the investment and business relationship. That is an important aspect of our bilateral engagement, but as the noble Baroness, Lady Chakrabarti, just pointed out, no country, including our own, is ever going to complete this journey of human rights. However, we have very positive discussions with the UAE; I have held discussions on various aspects of human rights, including issues of freedom of religion or belief within the context of the UAE and broader. Where there are particular concerns I will raise issues directly, candidly and privately with the UAE administration.
My Lords, can the Minister assure the House that there will be no erosion of the human right to due process, under the rule of law, in prosecutions in the United Kingdom, and particularly that there will continue to be prosecutions for killings in Northern Ireland which occurred during the Troubles where there is evidence to justify prosecution?
My Lords, the United Kingdom prides itself on being a country which upholds the rule of law, both internationally and domestically. Wherever crimes have happened, and wherever there is evidence in support of those crimes, the justice system will ensure that victims get access to justice, and one hopes that justice would be served as quickly as possible. I am proud that I represent on the world stage a country that upholds these values. As I have said before, we are not perfect—no country is—but we have proud traditions and a strong justice system, and that is something I am very proud to extend across the globe.
My Lords, at the annual session of the United Nations Human Rights Council earlier this month, the Minister welcomed the resolution on human rights defenders, who are facing unprecedented restrictions and abuse in every region of the world. The Government’s integrated review set working with human rights defenders and civil society as a priority. Could the Minister tell us what progress has been made on developing a meaningful plan of action to make this commitment a reality? Will the human rights and civil society directorate develop a strategy that addresses these key issues?
My Lords, the noble Lord is right to raise the issue of a human rights strategy, particularly on human rights defenders. I pay tribute in this context to Amnesty International, which works with us on developing key aspects of the structures and support that we provide to our network to support human rights defenders. In 2019 we launched the document UK Support for Human Rights Defenders, which sets out in detail how we will engage with human rights defenders to promote and protect human rights throughout the world. I know Amnesty has also talked about a specific government strategy on human rights, and that is something I am considering with officials in the team as part of our broad approach, which includes the international development strategy.
My Lords, I am grateful to the Minister for referencing freedom of religion and belief. Amnesty International’s latest annual report sets out the parliament of Iran’s introduction of two articles to the country’s penal code that further undermine the right to freedom of religion and belief. These articles prescribe up to five years’ imprisonment and/or a fine for insulting Iranian ethnicities, divine religions or Islamic denominations, or for engaging in
“deviant educational or proselytising activity that contradicts … Islam.”
On this basis, three Christians were sentenced to lengthy imprisonments, just last July. I declare an interest in that I am originally from Iran. Could the Minister outline what representations are being made to the Iranian authorities on the matter of freedom of religion and belief?
My Lords, I was present when the right reverend Prelate delivered her maiden speech and reflected on her experiences. She is of great value on the Benches she represents, and on this important issue. Yes, we raise the issue of human rights, and we raise quite candidly and specifically the issues of consular cases which are ongoing in Iran around the broader issue of freedom of religion or belief. I speak as a person of faith: the strongest test of your faith is when you have the ability to stand up and defend the rights and obligations of another belief or faith. That is something we pride ourselves on here in the United Kingdom. Speaking on the broad issue of human rights, it is a proud tradition we carry around the world, and long may it live on.
My Lords, I am sure my noble friend would agree that on this subject there is real concern about many areas of the world. May I single out two? One is Hong Kong and the other is India, where the Prime Minister paid a visit last week and where those who worship according to the Muslim, Christian and other faiths are constantly in a degree of difficulty and often treated abominably. Was the Prime Minister able to raise this? What have we been able to do recently in the context of Hong Kong?
My Lords, first, in Hong Kong, particularly with the introduction of the national security law, the issue is less one of freedom of religion or belief and more one of freedom full stop. The concerns we have in Hong Kong are well documented. We have an extensive support scheme through the BNO scheme, run by the Home Office, and more broadly when it comes to China’s suppression of rights. We see the abuse of freedom of religion most vividly in Xinjiang, and we have led on the Human Rights Council on that aspect. My noble friend also raises India, which is a strong democracy. I am the Minister responsible for our relations with India. As someone of Indian heritage, in part, and as a Muslim by faith, I assure my noble friend that we have very constructive engagement on a broad range of rights. India has a strong constitution and justice system and, within both those processes, the rights of every community, irrespective of faith, are fully protected.
But my Lords, we are talking about Article 18 violations for 1 million Uighur Muslims in Xinjiang and Article 19 violations in Hong Kong—the denial of media and press freedoms. What can the noble Lord say to us about the position we take in the United Nations Human Rights Council, of which China is also a member? When do we hold it to account on these violations? Which of the 30 articles in the 1948 convention—the Universal Declaration of Human Rights—is China not in breach of?
My Lords, on the noble Lord’s second question, I would hazard a guess and say that, regrettably and tragically, most if not all may have been breached when it comes to the application of human rights in China. On the earlier point about the situation of the Uighurs, as I have already said, we have led the way on the Human Rights Council. It has not been easy; it has been challenging. However, the fact is that on every vote we have had at the Human Rights Council we have had an increasing number of countries supporting the position that the United Kingdom has led on. There is an egregious abuse of human rights in Xinjiang, for not just the Muslim Uighur community but other minorities as well.
Covid-19: Global Vaccine Inequity
My Lords, the United Kingdom is at the forefront of the international response to Covid-19, spending over £2.1 billion since 2020 to address its impacts. We are keeping further support under review. Our funding has enabled COVAX to deliver over 1 billion vaccines to 86 developing countries. With supply no longer a major issue, the United Kingdom is also now focusing on tackling delivery bottlenecks and improving uptake to meet country targets, working closely with the COVAX Covid-19 vaccine delivery partnership.
My Lords, we are now just two months away from the WHO target of vaccinating 70% of the world, yet across Africa just 17% have had their first jab. The pandemic is not over—far from it. Some 700,000 Covid deaths have been recorded across the world in the last three months, and the vast majority of those were unvaccinated people. Can the Minister say when Britain will follow Germany’s example and provide 2022 funding to the global Access to Covid-19 Tools Accelerator, specifically our fair share contribution of £750 million? For wealthy countries, this is surely a small price to pay, not just to help vaccine supply but to support struggling health systems across low-income countries, and indeed to protect us all from the emergence of another variant.
My Lords, we have worked very much at the heart of the COVAX facility. We were the first country to commit over £0.5 billion to COVAX so that vaccines could reach the most vulnerable. The noble Lord is of course correct that there is more to do, and we fully support the World Health Organization’s target to fully vaccinate 70% of the world’s population. We have committed over £1.6 billion of UK aid to address the impacts of Covid-19, including £129 million to support the global development, manufacture and delivery of Covid-19 vaccines. These include projects such as in Ethiopia, where the UK leads the partner co-ordination group, and in Nigeria, where our health programme is supporting vaccine delivery in five of the poorest states. I agree with the noble Lord that there is much more to do, but we are very focused on reaching the most vulnerable and are working with the World Health Organization in pursuit of that objective.
My Lords, on 13 December, my noble friend informed your Lordships’ House in answer to a similar Question that 131,000 doses of vaccine had been donated bilaterally to Nepal. That was very gratefully received, but with a population of some 30 million, it barely touched the sides. Can my noble friend say whether there are any further plans to donate bilaterally to Nepal? I declare my interest as on the register.
My Lords, I pay tribute to my noble friend’s work in Nepal, and I am grateful for his briefings on his work there. We delivered 131,000 AstraZeneca vaccines to Nepal in October and since August, overall through the COVAX facility, we have delivered a further 2.2 million donated vaccines to Nepal. COVAX remains in our view the best way to allocate vaccines, but we are also working directly with the Nepalese Government to ensure that we focus some of our support directly on the medical, social and economic consequences of Covid-19. I hope to visit that country soon, and we will be focused on these priorities bilaterally with the Government of Nepal.
My Lords, on 12 May, the White House will co-host the second global Covid-19 summit, a gathering intended to build momentum for vaccine donations, discuss efforts to end the pandemic and prepare for future health threats. Can the Minister confirm that we will participate in that summit meeting, and if so, can he tell the House what our priorities are for the meeting and whether the Government plan to make any announcements of actions there to address the continuing global vaccine inequity challenge?
My Lords, I can confirm to the noble Lord that we will of course be actively engaged and working with the United States on that very event. In terms of priorities, as I have already said, we are very much focused on the most vulnerable. When we look at the global south there is much work still to be done. Indeed, two weeks ago during our UN presidency of the Security Council, I chaired a meeting of the Security Council specifically on Covid-19 which focused on reaching the most vulnerable, particularly those affected by conflict or humanitarian crises.
With just 15% of those in the lowest-income countries vaccinated and less than 1% having received a booster, the UK committed 100 million doses to COVAX last summer with the target of delivering 30 million by the end of 2021. I have checked on COVAX this afternoon and we have delivered just 29 million. Of the top 10 donor countries to COVAX we have delivered the lowest amount, so I point out to the Minister that we are not at the forefront but are lower than the top 10. Why is that? Why have we not delivered what we have committed to deliver?
My Lords, I have great respect for the noble Lord, but on this point, I must disagree. We have led the way, including on the COVAX facility itself. Had it not been for UK investment of more than £0.5 billion, that facility would not have got off the ground. That is fact. Secondly, we have reached over 52 million vaccines. The noble Lord shakes his head, but the fact is that we have donated. We are living up to our pledge; we have focused on the 100 million doses, which we seek to achieve. I know the noble Lord reads a lot of reports, but perhaps we can share our data and exchange notes on this and address this point directly. As I have illustrated, we are working directly—bilaterally—with countries around the world. Yes, there are certain problems, such as with the AstraZeneca vaccine, because of, for example, shelf life. There may be another vaccine which is perceived more valid because it has a longer shelf life. Supply is not the issue: the real issue at the moment is one of logistics, and we are very much focused on that priority as well.
My Lords, let us turn to that issue. It is absolutely vital. Supply is not the issue, but it is the delivery mechanisms that the Minister addressed in the first place. At a time when we need universal health coverage in Africa—the means to deliver vaccine—this Government are cutting funding to that facility. When will the Government get their priorities right?
My Lords, this is a serious matter that requires a serious response. The fact is that the Government have got their priorities right. It was entirely appropriate, when it came to vaccine delivery and vaccinations, that we ensured that our own population was prioritised, and we delivered on that. We have led the world on manufacturing. The noble Lord knows that it was our association with India—a country mentioned in the previous Question—that led to the upscaling of manufacturing when it came to the vaccines, when the world needed it most. Yes, logistics is an issue: the noble Lord and I have talked about this. That is why we are currently working in Sierra Leone, Ethiopia, Uganda and Nigeria on that very issue of logistics and structures to ensure—whether it is for this variant or the next or for any vaccine—that the structures set up, particularly in the global south, are robust enough to deal with this continuing pandemic.
My Lords, is stockpiling not one of the issues we should address? It seems to me very immoral that wealthier nations stockpile. Amnesty has pointed this out. If we had a proper human rights framework, it could not happen. Should we not do something to ensure that many of the wealthier nations do not stockpile while others are finding it very difficult to get adequate amounts of vaccines? We need to find solutions as a matter of urgency.
My Lords, the noble Baroness refers to the earlier stages of the vaccines. As vaccines were being developed, undoubtedly those countries that were first in production and manufacturing held vaccines in reserve, but the whole essence of the accelerator within the COVAX scheme was to ensure that the most vulnerable were provided with supplies of vaccines. As I said in response to the question from the noble Lord, Lord Collins, the issue within countries has been one of logistics. There have, sadly, been examples where the supply has reached a port of a given country, but where the challenge has been the duration of the shelf life of the vaccine and the logistics within country. That is where we are currently focused, particularly when it comes to second doses and booster vaccines in the global south.
My Lords, the BMJ published an article on 22 March that stated that 2.8 billion people in the world remain totally unvaccinated. In view of that, would the Minister take on board the need to reinstate the overseas aid budget to 0.7% of GNI to help address that same inequity?
My Lords, I hear what the noble Baroness says; as I said, I firmly believe in the 0.7%. However, equitable access to vaccines is not an issue of money. It is one foremost of logistics, which I have pointed to. There have also been issues of vaccine hesitancy in areas such as the Caribbean and Africa. In that regard, we talked in the previous Question about the important role of civil society at the heart of finding solutions. That is exactly what civil society has helped to do in partnership with the British Government and others, to ensure that vaccine hesitancy is addressed. In this case, I pay particular tribute to faith leaders, especially in Africa and the Caribbean, who have helped to address getting over that initial hurdle of taking the vaccine in the first place.
European Research Council
To ask Her Majesty’s Government what assessment they have made of reports that the European Research Council has written to 150 researchers based in the United Kingdom to say that they must move to institutions in the European Union within the next two months, or else give up their grants.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and update the House on my interests in the register, as I was recently elected president of the Parliamentary and Scientific Committee, which, as the House may know, is Parliament’s oldest all-party group.
My Lords, the UK government guarantee means that eligible successful ERC applicants will receive the full value of their funding at a UK host institution and need not leave the UK. Therefore, this communication from the ERC does not accurately reflect the options available to UK applicants. The UK remains committed to association, but the EU is not honouring commitments made when the TCA was agreed. If the EU continues to delay, we will introduce a bold alternative package.
My Lords, I thank the Minister for his reply, but it is still disappointing. I shall put it in context for the House: €625 million-worth of grants were announced this week, with 61 grants to people based in Germany and the second highest number, 45, to people based in the UK. It is these people who have been told that they will lose their money if the Horizon Europe agreement is not reached by the deadline, which the European Research Council today told me is 19 September this year. Does the Minister accept that time is running out for an agreement to be reached between the EU and the UK on Horizon Europe? Does he accept that the problem is the Northern Ireland protocol and that, to some extent, science is being held hostage by the failure to agree the protocol arrangements between the UK and the EU? Is this a situation that we should be proud of when all of us in this Chamber want the UK to be a science superpower? Finally, the last time I raised this question, the Minister said that the money was safeguarded. Can he assure the House that the amount allocated by the Treasury will be spent on science and, if so, on what, where and by what mechanism?
I partly agree with the noble Lord. I agree that time is running out but not that the Northern Ireland protocol is the problem. The EU entered into an agreement which it is now refusing to implement; that is the long and short of the problem. As soon as some Members stop making excuses for the EU’s bad behaviour, we might succeed. We stand ready to associate with the Horizon programme as soon as the EU is prepared to sit down and implement the agreement that it signed.
My Lords, everyone agrees that UK participation in Horizon is of benefit to researchers in the UK, the EU and beyond, but also of mutual benefit is the UK’s commitment to stick to legal engagements that it has made. I am afraid that there is some pot and kettle going on from the Minister. Why are this Government again threatening to breach the Northern Ireland protocol and to take powers—we expect this in the Queen’s Speech—and undermine the trust that is essential to making other co-operation work? This is linked to the Northern Ireland protocol, but it is the Government’s failure to honour their commitments which is the problem.
I am sorry that the noble Baroness refuses to accept where the blame lies in this circumstance. The UK has not breached any agreements that we signed with the European Union. We have abided by all of them. The EU signed an agreement to say that we would associate with the Horizon programme but is refusing to implement that agreement. The Liberal Democrats and others should stop thinking that everything which the EU does is perfect and believe that there are some cases where it gets things wrong.
My Lords, despite what the Minister has just said, the problem is the Northern Ireland protocol, as the last two questioners have said. The EU Research Commissioner confirmed last September that this is why we are being shut out of Horizon Europe while other non-EU countries are being welcomed on board with open arms.
The Northern Ireland protocol is a completely separate agreement. It is different from the agreement that the EU signed. I am sorry, but we should not accept the EU’s excuses on this. The EU signed an agreement, and it should abide by it. I wish that noble Lords would sometimes be on the UK’s side rather than wanting to see fault in everything that we do. We should allocate the blame where it belongs.
We should all live by the agreements that we sign. Should the European research grants be withdrawn from the UK-based researchers, have the Government sought or received any assurances that these grants will be restored once associate membership of the Horizon Europe programme is re-achieved?
The UK has provided a guarantee to all those researchers. If the ERC continues to say that they will not be eligible for grants, as long as the EU itself refuses to agree participation in the Horizon programme, then the Government have said that we will guarantee all those researchers’ grants.
My Lords, of the world’s top 40 universities, seven or eight—depending on which ranking we use—are in the United Kingdom. None is in the European Union. Does the Minister really think that the success of our higher education sector is dependent on participation in the Horizon programme?
My noble friend makes a very good point. We think on balance that it is worth associating with the Horizon programme, which is why we agreed to participate, paying our full amount into it of course for that participation. However, if the EU refuses to stand by the agreements that it signed, we will put alternative arrangements in place, and all the sums that would have been allocated to researchers under the Horizon programme will instead be funded directly by the UK.
My Lords, we should soon be admitted to the Horizon Europe programme for funding research and innovation if the Government were to undertake not to invoke Article 16. However, what progress can the Government report in their endeavour to seek collaborative research arrangements with other countries, in particular with the Swiss, who have also not been readmitted to Horizon?
The noble Viscount makes a very good point and, of course, alludes to the previous answer that I gave to my noble friend Lord Hannan. There are many good universities around the world, not just necessarily in the EU. We have a number of different, collaborative research programmes with other parts of the world. Ironically, under the Horizon programme, it is of course possible for third countries to associate in collaborative research programmes, provided they pay their fair share of the bills. The EU is not just treating us unfairly in terms of the agreement it signed, but is actually treating us differently from other countries in the world.
My Lords, does the Minister understand that top-quality academic research is inherently an internationally co-operative effort? Oh, my phone is ringing. Pending the completion of the Horizon project, the UK’s universities—despite what his noble friend Lord Hannan might suggest—are inherently at a disadvantage, because of the complexity and the fact that they will no longer, in practice, be able to be the co-ordinator of the project, with the loss of the academic prestige and indeed funding that it involves.
Perhaps we should all have musical accompaniments to our answers and questions; I am sure they would be much improved. The noble Lord makes an important point: the leadership of these programmes is important and international collaboration is important in science, but we should not make the mistake of thinking that the EU is the repository of all knowledge and wisdom on scientific matters. There are many other parts of the world. Yes, of course we want to co-operate with EU institutions, but we also want to co-operate with others across the world.
My Lords, I am sure the whole House welcomes what the noble Lord has said about the importance to the UK Government of observing international treaties and agreements that we have signed. Does he intend to imply clearly, and would he like to clarify, that this means there is absolutely no question that the Government will go back on the Northern Ireland protocol?
The Northern Ireland protocol is built into the treaty. The exercising of the Northern Ireland protocol, if we chose to do so, would be in compliance with the treaty obligations. It is a section of that treaty. I merely make the point that the UK has not broken any of its obligations that it signed with the EU. It is the EU that is in default, and it is about time the Liberal Democrats recognised that.
My Lords, the Horizon programme is actually very complex. It would not be completely easy for us to begin the programme, say, 18 months late, without some element of further negotiation. Are the Government already dealing with that on a “what if” basis or will be a further delay, assuming that the protocol is finally sorted out?
As I said, we stand ready to commence negotiations for our association as soon as the EU is prepared to do so. In the meantime, of course, as the House would expect, we are putting in place alternative arrangements if that proves not to be possible.
My Lords, I thank my noble friend for making good the shortfall if we are not remaining part of the Horizon programme. But does he accept that universities have benefited from match funding from other universities in other member states and that that is going to be lost? Do the Government intend to replace that with other establishments from outside the European Union?
I am afraid I do not understand the point my noble friend is making; there is no shortfall as such. The UK pays its fair share for our participation in Horizon and has always done so, and a similar amount of money will be made available in the future if association proves impossible.
Arrangement of Business
My Lords, yesterday I updated the House on arrangements for consideration today of Commons amendments and reasons on the Judicial Review and Courts Bill and the Nationality and Borders Bill. In addition, we are expecting the Commons to send back a message on the Elections Bill. The House will be asked to consider amendments and/or reasons to that Bill today. The deadline for tabling amendments will be 30 minutes after the message is published. The precise deadline will be displayed on the annunciator.
Should today’s initial proceedings not resolve all outstanding questions on these three Bills, the Commons will deal with them again today. We expect that this House will then be asked to consider their amendments and/or reasons this evening. We will make further announcements throughout the day on the arrangements in this scenario. The Government Whips’ Office will continue to ensure that the latest information on how business will proceed and on deadlines for tabling amendments is circulated, and Members can, of course, speak to my office for advice.
High Speed Rail (Crewe–Manchester) Bill
Motion to Agree
That if a High Speed Rail (Crewe–Manchester) Bill is brought from the House of Commons in the next session of Parliament the Standing Orders of the House applicable to the bill, so far as complied with or dispensed with in this session, shall be deemed to have been complied with or (as the case may be) dispensed with in the next session.
My Lords, I would like to speak very briefly to this Motion. I emphasise that I am not suggesting that I oppose it; it is a normal procedure Motion, and it should in my view carry over. However, I want to raise two issues of some concern about the progress of a Bill that will start in the other place and eventually come here.
First, I detected serious disagreements between different authorities in the Midlands and the north about what is in the integrated rail plan and the present Bill, which concerns Crewe to Manchester. There were quite public disagreements, and I am not sure how they can be resolved, but they clearly do need resolving to meet the objective—which the Government have rightly followed —of prioritising east-west improvements in the Midlands and the north. I am hoping that the noble Lord, Lord McLoughlin, who has just been appointed chair of Transport for the North, will be able to help with this.
My other concern is over budgets. The integrated rail plan budget of £96 billion was designed to set out the rail improvements that need doing as well as HS2, but it includes the HS2 budget. If you deduct from that £96 billion what is already going to be spent on HS2 from London to Crewe, there is actually no money left at all for other projects. That is really serious from the point of view of the people in the north and Midlands who want improved east-west connections. One of the main questions is whether the Manchester terminal for HS2 should be a surface station or underground so that you can carry on through to other places. I think the second option is more important and modern. But that is not the point; it needs agreement between all the parties.
One of the problems with a hybrid Bill is that once Second Reading has been agreed in the other place, it is very difficult—in fact, almost impossible—to make any changes. I know that some colleagues from all parts of the House of Commons would like to kill the Bill. This would be a very great shame. I am not saying I support what they are doing. It would be a shame to kill it, because so much work has gone into it.
I think it would be useful if the progress of the Bill were paused until there were proper agreement between all these authorities and the Department for Transport about what is really wanted. Is there a sufficient budget to achieve it? If that were to delay things by a few months, so much the better. It is difficult to start a Bill in the other place at this stage when one, if not more, of the major mayors in the area is highly critical of what is being done. I hope that this can be resolved. I am sure the Minister will have some views on this and I look forward to her comments.
My Lords, I simply do not recognise many of the noble Lord’s concerns, particularly around things such as budgets. I am well aware of his feelings about the HS2 project. We have had many conversations and debates, both in your Lordships’ House and beyond, about it. His views are well known. I am not surprised that the noble Lord has raised these issues in the manner in which he has done, and I am sure that he would like to see the Bill paused—but it is not going to be.
This hybrid Bill will probably take three to four years to complete its parliamentary passage, which is perfectly normal for a hybrid Bill. The noble Lord raised important issues about getting people to agree and understand. The petitioning process is part of that process, to ensure that we make people as happy as we possibly can in the context of building a very substantial transport infrastructure project. So, no, the Bill will not be paused and I beg to move.
Pension Schemes (Conversion of Guaranteed Minimum Pensions) Bill
My Lords, I wish to emphasise again that this is a rather technical Bill, which has been made easier because some noble Lords here in the House today are very knowledgeable in this area. Those who spoke during the progress of the Bill have made it very clear that this is an important and long-awaited Bill. There cannot be many Private Members’ Bills that have been repeatedly called for in other debates over the course of several years.
This Bill was expertly presented and taken through the other place by Margaret Ferrier. I thank her, the departmental officials and my right honourable friend the Minister for Pensions for all the work that was done to get this Bill to this place. Though it might look complex as a piece of legislation, the Bill has a simple purpose of helping pension schemes meet their legal obligations. Specifically, it will help occupational pension schemes use the GMP conversion to correct the issue of men and women being treated differently in formerly contracted out defined benefit occupational pension schemes because of the impact of having a guaranteed minimum pension.
It is therefore with very great pleasure that I stand here today to present this Bill as it reaches its final stage in this House.
My Lords, I briefly pay tribute to all involved in this Bill, including Margaret Ferrier MP, who steered it through the other place, and the noble Baroness, Lady Redfern, who has done the same for us here.
As the noble Baroness said, my noble friend Lady Drake and I can now stop badgering the Minister for a Bill on GMP equalisation. Although the Government Whips never did come through with government time, I commend the DWP for its wholehearted support of a Private Member’s Bill that happened to cover just the right territory at just the right time.
I am sorry to have missed the earlier stages because of Covid, but I am very grateful to my noble friend Lady Merron, who did such a marvellous job in my place. There are a couple of outstanding issues, such as the position of pension schemes already in the Pension Protection Fund, raised by my noble friend Lady Drake, and the concerns raised by the Delegated Powers Committee, to which Ministers were only able to respond yesterday. However, we do not wish to hold up the Bill, so we will take these offline and hope to deal with them with the Minister before regulation. The key thing is that we are finally about to pass a Bill which the Government are confident will give the necessary legal certainty to schemes seeking to equalise guaranteed minimum pensions. This is good news, and we are pleased to support it.
My Lords, I must again thank my noble friend Lady Redfern for presenting this Bill so ably today. I am pleased to be to here to give my support, and that of the Government, to the Bill. It is an important step towards schemes finally laying to rest the issue of the unequal effect of guaranteed minimum pensions. I pay tribute to my noble friend for her stewardship of the Bill and to other noble Lords who have contributed their views during its passage through the House.
I pay tribute to the late Lord McKenzie of Luton. I am saddened that he is not here to see this Bill through today, and I know that many others here feel the same way.
It is also right that we acknowledge and thank Members of the other place for their contribution. Margaret Ferrier, the honourable Member for Rutherglen and Hamilton West, took the Bill through. It is down to her, and to my noble friend Lady Redfern, that we have the Bill in front of us now. I also thank the Members in the other place who contributed to the debates on the Bill. The cross-party support the Bill has achieved in both Houses shows the long-standing commitment of Members to resolve this issue. This Bill will now provide the industry with the legal clarity it has been seeking in relation to GMP conversion legislation. Once again, I thank my noble friend Lady Redfern and express my and the Government’s strong support for the Bill.
British Sign Language Bill
My Lords, before we begin consideration of the British Sign Language Bill, I would like to point out that a British Sign Language interpretation of proceedings is available to watch on parliamentlive.tv and on screens in the Chamber.
My Lords, at Second Reading we had a first in your Lordships’ House: proceedings were signed for the first time. As the Lord Speaker has pointed out, there is another first for your Lordships’ House today: signing is available for the benefit of Members and all others in the Chamber this afternoon.
The British Sign Language Bill takes a ministerial commitment in a Statement in 2003 and puts it on a statutory basis: to recognise British Sign Language as a language in England, Scotland and Wales—enabling, empowering, including. What does this mean in practice? Take, for example, hospital appointments. The news may or may not be good but, whether good or bad, it will always be personal, perhaps the most personal interaction we have with the state. As a result of this Bill, BSL signers will be able to have such appointments and/or communications with the state in an inclusive manner, rather than having to rely on parents, spouses, siblings or children to communicate such news.
I pay particular thanks to Rosie Cooper MP, who perfectly piloted this Bill through the Commons; she joins us at the Bar of your Lordships’ House today. I thank the ministerial team, my honourable friend Chloe Smith in another place, and my noble friends Lady Stedman-Scott and Lady Scott in your Lordships’ House.
I pay tribute to the Bill team and to all the officials at DWP who have worked tirelessly to get the Bill to this stage. Finally, and perhaps most importantly, I pay tribute to all those individuals and organisations who have campaigned for this change for so many years: the BDA, the RNID and David Buxton, a man who has done as much as most in this area, and who rightly joins us in the Gallery of your Lordships’ House for this historic moment.
My Lords, the British Sign Language Bill: enabling, empowering and including BSL signers, and benefiting us all.
My Lords, this is an historic day for the deaf community, who have campaigned for many years for recognition of their language. But it is also our language, and the clue is in the title: British Sign Language. It is the language of the deaf community of Scotland, Wales and England.
It is also the means by which the deaf community integrate and exchange with the hearing community. This Bill is not the end; it is the beginning of the deaf community’s ability to take their rights forward, to use their language and to develop it to advance their quality of life across the range.
I urge deaf people to take advantage of the law to demand their rights and to ensure that we get more interpreters in more situations, enabling them to communicate in every way possible—personally, privately, commercially, professionally—as the noble Lord, Lord Holmes, has said, in education, health and all the spheres which we, as hearing people, take for granted.
David Buxton is in the Gallery with other representatives of the deaf community and Rosie Cooper is here at the Bar. They have all worked so hard to make this day a historic start for the deaf community. It is a beginning, not an end, and I urge deaf people to take advantage of it.
My Lords, I too pay tribute to all those involved with the Bill, especially my honourable friend Rosie Cooper, who not only steered this Bill through another place but built such wonderful cross-party support to bring us to where we are today. The noble Lord, Lord Holmes, did a fine job carrying it through this House, so I thank and commend him too.
It is such a privilege to know that finally, the words we say here are being interpreted for BSL users at home, so I thank and congratulate all those BSL users who have campaigned to get to this point today. I encourage them to keep up the pressure.
I was sorry to miss the earlier stages of this Bill—also due to Covid—but I was very grateful to my noble friend Lady Merron, who did such a great job at the Dispatch Box that I was not missed in the slightest. Indeed, there were no calls for me to return. I am also grateful to Milton Brown from our Opposition Whips’ Office, who worked very hard on this Bill and the other DWP Bill that concluded today.
I was very moved by the stories told during the passage of this Bill of gifted BSL users being denied opportunities, and, as the noble Lord, Lord Holmes, said, of children having to interpret for their parents in situations they should never have been exposed to, simply because they could not get the interpreters they should have had a right to.
I hope that as the Bill goes through, people watching at home and in the Gallery are confident that it is one more step in making our country a better place for BSL users and their families. We are very pleased to support this Bill.
My Lords, it is indeed an historic day for our deaf community. I thank all noble Lords who have participated in the passage of this Bill through our Lordships’ House, but I also want to say a particular thank you to my noble friend Stedman-Scott, who at Second Reading set out a range of support that the Government will provide to ensure that the commitments in the Bill are taken forward.
I particularly congratulate my noble friend Lord Holmes on leading on this Bill. His plea for haste and a smooth passage was sincere in its purpose: to recognise British Sign Language in statute without delay. He has brought together noble Lords from across the House in united support on this important issue. I know he has consulted closely with noble Lords who have had a long-standing passion to promote British Sign Language and support deaf signers. I am so pleased that he, and all noble Lords who have spoken in support of this Bill, have succeeded.
By passing this Bill, we will start to remove some of the barriers to deaf BSL signers’ increased participation in work, education, culture and wider society. By increasing their participation, the richer and more inclusive all our lives will be. I extend my congratulations to the Member for West Lancashire in the other place, who introduced this Bill, and to all those involved in the BSL Act Now campaign, who have campaigned tirelessly for this important piece of legislation. Many of them have joined us today to witness what I sincerely hope will be an historic moment for deaf communities and every citizen in England, Scotland and Wales. The Government are committed to supporting all people with a disability, including deaf people, to lead fulfilled and independent lives. Supporting this Bill is part of that effort, and I am delighted that we all have played our part today.
As Lord Speaker, I welcome the BSL organisation and its members here today. I congratulate them and fellow parliamentarians who have steered this historic Bill to its successful conclusion—[Applause.] I will tolerate that disturbance.
Judicial Review and Courts Bill
Commons Amendment and Reasons
My Lords, with the leave of the House, in moving Motion A, I will also speak to Motions B and C. A number of changes were made to this Bill in the House of Commons. I will cover both those changes and the amendments tabled to the Bill today.
Turning first to the Motions on judicial review, the Government have listened to the varied concerns, and the Bill that returns to us puts forward a compromise. The presumption, which was the issue of most concern to your Lordships, is gone, making use of the new remedies entirely discretionary. However, the other changes that your Lordships made to the JR measures, such as removing the ability to limit the retrospective effect of quashing orders and addressing the judgment in the Eba and Cart cases, have been undone in the other place. I will therefore set out again the Government’s reasoning for these measures.
Starting with prospective-only quashing, the aim of Clause 1 is to provide courts with flexibility in remedies, allowing them to respond effectively to the case before them. Conventional retrospective quashing can be a blunt tool, which sometimes does not allow complex circumstances adequately to be addressed in a remedy. My noble friend Lord Wolfson of Tredegar and others have already set out persuasively circumstances where limiting or removing the retrospective effect of a quashing order would be in the interests of justice. The counter-arguments, I submit, have not really disputed this, but rather raised hypothetical circumstances where such a remedy would likely be inappropriate.
My view is that we should trust our courts to determine when these powers should and should not be used, with help from the skilled advocates who appear before them, who will no doubt address remedies when they make submissions. That there are circumstances where they would not be appropriate is an argument against this power only if you do not trust courts to use it properly.
We have substantial evidence that judges can and do use these remedies to good effect. Canada, another common-law jurisdiction, has made use of these remedies for decades. There, a court will use such a remedy if its ruling involves a substantial change in the law and if issuing a suspended or prospective order will not be unfair to the plaintiffs. Canadian jurisprudence shows a nuanced approach where fairness and harm are consistently considered alongside other factors, such as the proper remit of the court and separation of powers. For example, in the Canadian Supreme Court case of Hislop, the court said:
“The key question becomes the nature and effect of the legal change at issue in order to determine whether a prospective remedy is appropriate. The legitimacy of its use turns on the answer to this question.”
After considering various factors, it went on to say:
“They may include reasonable or in good faith reliance by governments … or the fairness of the limitation of the retroactivity of the remedy to the litigants.”
Finally, the court considered the effects on others, aside from the litigants, drawing on an earlier judgment in the case of Kingstreet Investments Ltd. v New Brunswick in which the court held that taxes collected pursuant to an ultra vires regulation are recoverable by the taxpayer. A similar question was raised by the noble Lord, Lord Marks, at an earlier stage of this Bill. The Supreme Court of Canada’s view was expressed trenchantly:
“Where the government has collected taxes in violation of the Constitution, there can be only one possible remedy: restitution to the taxpayer.”
I submit that we can trust our judges to follow the example of their Canadian counterparts and to use these remedies as and when they deem them to be appropriate for all parties involved, with consistent regard to interests and expectations of those who may benefit from or be disadvantaged by retrospective quashing, as set out in new subsection (8)(c) and (d), as inserted by Clause 1.
I think it also worth noting that, although separate, the removal of the presumption should reduce concern about prospective-only remedies. I remind your Lordships that the vote on this issue on Report was very narrow. I hope some of those who previously opposed giving judges this new power will now be able to remove their objection.
At this point, I should also touch on Amendment 1B by the noble Lord, Lord Marks, on the interests of other parties who may be able to claim a remedy if a retrospective instead of prospective order is used. I do not think that this amendment is necessary. New subsection (8) sets out what judges should consider when determining an appropriate remedy, and as I have set out already, that includes the interests or expectations of persons who would benefit from the quashing of the impugned act. I believe this is sufficient to include the concept that the noble Lord, Lord Marks, puts forward. The court may also set conditions on the orders it makes, which means it has the capacity to tailor the remedy further. I am also reluctant that the list of factors should direct the court in any way, which this amendment appears to do. I trust the court to decide what is appropriate in each case. Therefore, I urge the noble Lord not to press this amendment.
I turn now to the Eba case measures and to Clause 2. The judgment in the Eba case in Scotland, and the Cart case in England, made permission to appeal decisions of the Upper Tribunal subject to judicial review. The ouster clause, which will prevent this type of review in future, save for jurisdictional or procedural errors, is returned to the Bill in amendments made by the other place. This removes the alternative approach your Lordships adopted, originally proposed by the noble and learned Lord, Lord Etherton, which would have allowed judicial review of this sort to continue but made that judgment final. This effectively moved the bar one stage higher in the court system than the Government’s original proposal. I recognise that it was a thoughtful and considered attempt by the noble and learned Lord to find a middle ground. It is legitimate to argue that the bar should be set higher. As the Government set out, this is a question of where to draw the line, and there is no absolute, correct answer.
We will all, I think, agree with the principle that there has to be finality to judicial processes to ensure that the court system can serve individuals efficiently and effectively. We believe that the scrutiny offered by appeal to the First-tier Tribunal, and then the Upper Tribunal, is sufficient—a proposition which is made out by the very low success rate of Cart or Eba judicial reviews. The Government are firmly of the view that our original proposal was the correct approach and that, unlike with the presumption, we must insist on this matter.
I know that a number of noble Lords, in particular Lord Marks, have expressed more general concern about the Government using an ouster clause to give effect to their policy on Cart and Eba and that it has been suggested as a template for future potential ouster clauses. To be clear on to this, we describe this clause as a template because it is clear about Parliament’s intent, targeted at a specific and clearly identified policy mischief—in this case invoking the supervisory jurisdiction of the High Court over a refusal of permission to appeal from the First-tier Tribunal to the Upper Tribunal, itself a judicial body—and has appropriate protections in the form of the natural justice exemption. In these ways, it seeks to learn the lessons of previous failed attempts at ouster clauses that were too broad, too vague and did not offer adequate protections. Overall, I believe that removing the presumption strikes a balance on the judicial review measures. It is sensitive to the aims of the Government but also accommodates the concerns expressed in your Lordships’ House.
Noble Lords will have also seen that the other place disagreed with the amendment of the noble Baroness, Lady Chapman, on legal aid for coroners’ inquests. Although the other place formally disagreed with this amendment because it engaged financial privilege, I assure noble Lords that the Government considered it carefully and did not disagree with it on a technicality. I know that your Lordships have debated that amendment twice already, so I do not intend to go into it in great detail. However, the Government have always believed that families should be at the heart of the inquest process and that there should be a fair funding system to support them. During the debates on the Bill and elsewhere, the Government have listened to the arguments made about the nature of inquests where public bodies are represented. I also note the argument that, while the inquest process is inquisitorial, the reality for many bereaved families is that it can feel adversarial where a public body is represented and a bereaved family is not.
The Government continue to ensure that inquests put bereaved families at the centre of the process. Our legal aid means test review is currently out for consultation and proposes to make access to legal help for bereaved families at inquests non-means tested, which follows our change in January to make access to legal representation at inquests through the exceptional case funding scheme non-means tested. However, I have heard the arguments that the Government’s recent reforms to exceptional case funding do not go far enough. The means test review invites views on our proposals to remove the means test for legal help at inquests where the case relates to a potential breach of ECHR obligations or significant wider public interest. If anyone, whether a charity such as Inquest or a bereaved person, does not think that these proposals go far enough, they can of course respond to the consultation to that effect, proposing alternative solutions. The Government will consider all responses to the consultation and respond in the usual way. On that basis, therefore, I do not believe that Amendment 11B, tabled by the noble Lord, Lord Ponsonby, which calls for a further review of legal aid for inquests, is necessary.
More widely, the Government are committed to supporting bereaved families going through the inquest process. Of course, how bereaved families are supported in the wake of a major disaster and proposals for an independent public advocate have been an important part of this debate. That will require further detailed work to ensure that any new functions such as those proposed are in the wider public interest; that they properly meet a need that inquests and inquiries do not; and that they do not adversely cut across established structures and processes. The Government will consider this further as part of our work to respond to Bishop James Jones’s review of the experience of the Hillsborough families. I beg to move.
Motion A1 (as an amendment to Motion A)
1B: Page 2, line 23, at the end insert—“provided that the court should seek to avoid exercising the power under subsection (1)(b) in such a way as to deprive a remedy from any persons who would have been entitled to seek a remedy by reason of the unlawfulness of the impugned act but who had not themselves been party to the application for the quashing order.””
My Lords, I am very grateful to the Minister for the careful and comprehensive way in which he opened this debate. Nevertheless, I regret the fact that the House of Commons rejected our Amendments 1 to 3 on prospective-only quashing orders. However, I greatly welcome the acceptance by the other place of the amendment moved by the noble Lord, Lord Anderson of Ipswich, removing the presumption that the court must generally exercise the new powers unless it sees good reason not to do so.
That presumption was by far the most offensive part of the Bill. It was rightly opposed across the House by lawyer and non-lawyer Peers alike. The noble Lord, Lord Anderson, is to be congratulated on the success of the amendment and I am grateful to the Government for accepting it. What we now have is an unfettered judicial discretion, circumscribed only by the requirement to consider the factors listed in Clause 1(8).
I have made it very clear that I oppose prospective-only quashing orders in principle. I do so first on the basis that their effect is to give retrospective validation to actions or decisions previously taken or regulations passed by government that the court finds unlawful and merit a quashing order. They breach the principle that it is for Parliament, not the courts, to change the law.
The second main reason for my opposition to such orders is that they do not protect those disadvantaged by unlawful government action taken before a quashing order takes effect. Where such an order is made, therefore, persons who are not before the court to present their cases are left with no remedy in respect of the unlawful action so they lose out against the well-funded, well-represented litigant who secured the prospective-only quashing order and the Government do not have to remedy the wrong for those affected before that order takes effect. That is a serious breach of the principle that proven wrongs should carry a remedy.
I pointed out on Report that this involves us or may involve us in breaching our international obligations, in particular in environmental cases, under Article 9 of the Aarhus convention, the obligation to provide an adequate and effective remedy to all affected by a breach by public authorities in environmental law, and in ECHR cases under Article 13 to ensure provision of an effective remedy for breach of the convention. I believe those principles outweigh any possible usefulness of the availability of a tool in the judicial toolbox to relieve government of the effects of unlawfulness.
It is said that unlawfulness may have worked to the benefit of some who relied on the law as they erroneously, as it turned out, believed it to be. For such unusual cases, any unfairness can be cured by administrative action or by suspended quashing orders with conditions to which we have not taken objection and/or by changing the law if Parliament sees fit to do so.
That said, the elected House has rejected our amendments, so my amendment in lieu is tabled to bring into sharp focus only the second factor that I have outlined—the lack of a remedy for all those adversely affected by previous government unlawful action if a prospective-only quashing order is made. My amendment in lieu would require the court to seek to avoid making such an order in cases where a person who would have been entitled to seek a remedy because of the unlawfulness in question would be deprived of a remedy by the fact that the quashing order was prospective-only. The amendment would address the point I have been making and would keep us in line with our international obligations.
I would like the Minister to accept it but if he cannot do so, as he indicated from the Dispatch Box in opening, then in line with the confidence that he expressed that it is intended that the courts should exercise the discretion, now thankfully presumption-free, with a view to avoiding the deprivation of a remedy that my amendment seeks to address, I would like to hear that assurance repeated and clarified.
I should add that I have been very grateful to the Minister and to this colleague in the other place, Minister Cartlidge, for engaging with me on this issue in two meetings and to the Bill team for the helpful pack it has put together relating to the principles applied by the Canadian courts addressing the question of prospective-only quashing orders. Those cases in Canada have, of course, persuasive authority in this jurisdiction and it is clear that the Canadian courts have exercised the discretion with great care. They have worked on the basis that before a prospective-only quashing order may be justified, first, the court’s decision on unlawfulness must represent a substantial change in the law and, secondly, the interests of all litigants and potential litigants must be carefully considered and balanced. I point out that without the removal of the presumption, those principles would not be applied in this jurisdiction. They are, however, principles that I endorse and which underlie my amendment in lieu. I await the Minister’s further response with interest.
On Cart JRs, while I regret the rejection of the amendment from the noble and learned Lord, Lord Etherton, which I thought was an elegant compromise and removed what I see as a pernicious danger of this clause being used as a template for future ouster clauses, I am prepared to trust that this clause will be treated, as the noble and learned Lord assured us in his opening that it would be, as strictly limited to the circumstances it addresses.
On legal aid at inquests, I look forward to hearing the amendment to be moved by the noble Lord, Lord Ponsonby. I do not believe, as has been advanced by the Government, the proposition that there is a distinction between inquisitorial and adversarial processes which justifies the inequality of arms that is inherent in a system that allows rich and powerful bodies, public and private, to outspend and outdo bereaved families at inquests. In our view, legal aid exceptional case funding does not meet that case. I beg to move.
My Lords, the presumption in Clause 1 was a curious and misshapen thing—so much so that I did wonder when moving against it whether it was always intended to be the hunk of meat that would be thrown off the back of a sledge to distract the ravening wolves. But these things do not dispose of themselves and I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, to the Justice Minister, James Cartlidge, who is also my MP, and, before them, to the noble Lord, Lord Wolfson, for the good grace, courtesy and good sense with which they agreed to put it out of its misery.
I do not share the principled objection of the noble Lord, Lord Marks, to prospective-only quashing orders. The noble and learned Lord, Lord Brown, wrote about this in the Times and I respectfully endorse what he had to say. But I am pleased that the noble Lord agrees at least that these prospective-only orders, whose place in our law is confirmed by Clause 1, are at least mitigated by the removal of the presumption.
My Lords, may I pay tribute to the noble Lord, Lord Wolfson of Tredegar, on his resignation as Minister of Justice? He played a significant role behind the scenes in ensuring that the Government have made the welcome concession of agreeing to the amendment from the noble Lord, Lord Anderson, to remove the presumption. The noble Lord’s resignation has confirmed, if there were any doubt, his commitment to the rule of law. His resignation will be welcomed only by his senior clerk at One Essex Court Chambers in the Temple as he returns to the commercial Bar, as well as to the Back Benches.
On topics as diverse as the Cart jurisdiction and breastfeeding, the noble Lord’s contribution as a Minister was marked by his hard work, his eloquence, his ability to respond constructively to the concerns of other noble Lords, and his wit. He is an enormous loss to the Front Bench and I very much look forward to his Back-Bench contributions.
As I said in Committee, echoing the words of the noble Baroness, Lady Jones of Moulsecoomb, the only thing to be said in favour of Part 1 of this Bill, on judicial review, is that it could have been a great deal worse. I cannot work up any greater enthusiasm at this stage for these provisions. The Bill, in Part 1 on judicial review, is not quite as much of a damp squib as the efforts of a former Lord Chancellor, Chris Grayling, in his infamous Social Action, Responsibility and Heroism Act 2015—but it is a close call.
My Lords, I rise diffidently to agree wholeheartedly with the approach of the noble Lord, Lord Anderson, to this legislation. I strongly support Motion A; I cannot, I am afraid, support Motion A1 from the noble Lord, Lord Marks. I suggest that it would in fact compromise and complicate what is a valuable, new, flexible, broad power that gives a judge the ability to make whatever order he or she thinks is best calculated to do justice in the individual case, and to meet the problem that we have encountered over many years of not having any power to validate retrospectively anything that has happened in the past. I do not know whether anyone noticed the piece I wrote in the Times about my noble and learned friend Lord Hope’s Ahmed case, but that was a classic case in point which shrieked out for this new power.
So there it is: orders can now be made subject to whatever limitations or conditions the judge thinks right and appropriate, and I respectfully suggest that this is so much better than the approach of the noble Lord, Lord Marks, with whom I am almost always in agreement—but surely not on this. He prefers retrospective legislation, but how unwieldy, inflexible and incapable of being adapted to the individual case that is, and how unwelcome as a whole we consider retrospective legislation—so I support Motion A.
My Lords, I join the noble and learned Lord, Lord Brown, in all that he has said, and I say with greater confidence, albeit with some reticence, if that is not a contradiction, that I disagree with my friend, the noble Lord, Lord Marks, with whom I am a fellow member of chambers. I think it is fair to say that the Back Benches of the Conservative Party in this House are now more greatly adorned by the promotion, I would say, of the noble Lord, Lord Wolfson, to these Benches, and I look forward to his contributions from his Back-Bench seat. The noble Lord, Lord Pannick, correctly described my noble friend, but he and I need to be very careful because we now have yet another competitor for a car park space in Brick Court.
My Lords, I too would like to thank the Minister for his careful introduction to the Motions before us today. I would also like to thank all those who worked to improve this Bill during its progress through both Houses, and I single out my honourable friend the Member for Hammersmith, Andy Slaughter, and Alex Cunningham, the Member for Stockton North. I would also like to thank noble, and noble and learned, Lords from the Cross Benches who have taken an active interest, particularly in the judicial review parts of this Bill, which has led to the substantial improvements which we have just heard about.
There has been a spirit of consensus on parts of this Bill, particularly those concentrating on court procedures. I thank the noble and learned Lord’s predecessor, the noble Lord, Lord Wolfson, for numerous discussions about court procedures and how they might be monitored and improved. That is not a point of contention we are considering today.
I start with Motion A and the amendment to it, Motion A1, from the noble Lord, Lord Marks, on Clause 1 of the Bill. Yesterday the Government accepted the amendment in the name of the noble Lord, Lord Anderson, which would do away with the presumption that quashing orders would be prospective. As my honourable friend said yesterday, this
“extracts the worst of the sting in clause 1”. —[Official Report, Commons, 26/4/22; col. 604.]
I congratulate the noble Lord, Lord Anderson, on this achievement. It is in the spirit of recognising this compromise and move by the Government that, while we are sympathetic to Motion A1, in the name of the noble Lord, Lord Marks, we would not support it if it were pressed by the noble Lord.
In Motion B, on Clause 2 of the Bill, the Government propose that the House do not insist on its Amendment 5, in the name of the noble and learned Lord, Lord Etherton. The amendment would have retained Cart reviews in the High Court and Court of Session in limited circumstances. I understand the noble and learned Lord will not be revisiting this issue, and we will not oppose the Government’s Motion. For the avoidance of doubt, I should make it clear that we see no purpose in Clauses 1 and 2 of this Bill. It would be our preference to remove these clauses from the Bill in their entirety, but we recognise the votes yesterday and we will not be opposing the Government’s Motion.
I now turn to the Government’s Motion C and my amendment to it, Motion C1. The original amendment in my name ensured that bereaved people, such as family members, would be entitled to publicly funded legal representation in inquests where public bodies, such as the police or a hospital trust, are legally represented. The original amendment in this House was won with a handsome majority. The purpose of the amendment was to achieve an equality of arms at inquests between bereaved people and state bodies. This is an issue not just of access to justice, but of fairness. How can it be right that state bodies have unlimited access to public funds for the best legal teams and experts, while families are often forced to pay large sums towards legal costs, or risk representing themselves or resorting to crowd- funding? This fundamental point was acknowledged and agreed with yesterday by Sir Bob Neill, chairman of the Justice Select Committee in the other place.
The reason given by the Government for objecting to this amendment was that it would involve a charge on public funds. I acknowledge that point and the amendment now asks for a review. I also acknowledge the point that the noble and learned Lord made—that that is not the sole reason for the objection to the amendment in my name.
Five years have passed since Bishop James Jones delivered his report on the experience of the Hillsborough families. In that report, Bishop Jones made recommendations, which included publicly funded legal representation for bereaved families. In May 2021, the Justice Committee recommended that for all inquests where public authorities are legally represented, non-means-tested legal aid or other public funding for legal representation should be available for people who have been bereaved. This is a long-standing issue which, to be fair to the Government, as we have heard today, they acknowledge there is more work to be done on.
I have had a number of meetings with the Minister and his colleague Mr Cartlidge. Unfortunately, we have not reached an agreement on this matter, although I thank them for the efforts that have been made. I want to run through the arguments they advanced during our meetings. First, as the noble and learned Lord has said, there is a means test review under way. The Government’s argument is that by highlighting one particular group—namely, bereaved families—it would raise expectations for that group and that may not be fair to that group while the review is under way.
The second point which was made to me is that other groups which are being considered within this general review of legal aid may feel disadvantaged if a spotlight is shone on this particular disadvantaged group. That was the essence of the arguments that we had in our discussions. I have to say that that is a weak argument. The Ministry of Justice—indeed any government department—is well used to managing expectations, and managing competing claims for public funds. It is what it does every single day. We are suggesting to recognise the strength of feeling through a multitude of family groups, well-established pressure groups—not least Inquest—through well-established bodies and indeed through what the Government themselves have said in acknowledging that this is a real issue.
We therefore have an opportunity here today to press home the view which this House took on Report with a handsome majority, to ask the Government to think again and to put in place a review of the funding for these families so that there can be a sense of fairness in coroners’ courts, where many people feel they are not getting a fair hearing or a fair crack of the whip.
My Lords, I have listened to submissions from your Lordships in the course of this short debate at the ping-pong stage. I think the House and those who spoke were united in the warm words for my noble friend Lord Wolfson of Tredegar, who is indeed, as your Lordships said, a grievous loss to the Front Bench. That loss is offset only by his arrival on the Back Benches, where I am sure he will contribute his wisdom, his ready wit and his good sense to our debates going forward. As to the matter of car parking at the chambers of the noble Lord, Lord Pannick, and those of my noble and learned friend Lord Garnier, I regret that that matter lies outwith the power of the Government to seek to resolve.
On the point just taken from the Opposition Front Bench by the noble Lord, Lord Ponsonby, I reiterate my point. I accept all that he said about the impact of inquest proceedings on families and the well-expressed and carefully considered arguments advanced by family groups and pressure groups, and in this House and in the other place. However, I return to the central point, which is that in light of the review procedure put forward by the Government—a review published on 15 March that is to be followed by a full consultation, after which the Government hope to publish a consultation response in autumn 2022—I urge the House to take the view that the amendment the noble Lord proposed from the Front Bench is premature.
On the point taken by the noble Lord, Lord Marks, I am happy to reiterate what I said about the nature of the ouster clause in these proceedings, in the manner in which it has been formulated, in the hope that what I have said from the Dispatch Box indicates that the Government treat this as a particularly focused instrument.
I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, speaking as he does with particular knowledge of these matters, having sat in the Cart hearing itself. I accept and adopt respectfully his confidence in the ability of our judiciary properly to use the tool in the judicial toolbox—the club in the judicial golf bag—which the Bill seeks to give.
In those circumstances, I return to my invitation to the House to accept the Bill as received from the Commons. I express my gratitude to all noble Lords who have contributed today, who have courteously and thoughtfully engaged with me and, for that matter, the Minister in the other place. On behalf of my noble friend Lord Wolfson of Tredegar, who of course carried out the bulk of work on this measure, I thank noble Lords for their thoughtful engagement with him, in the course of his stewardship of the Bill in your Lordships’ House.
My Lords, I would like to say something about the proposal in relation to the coroners’ court. The problem in the coroners’ court is that well-heeled litigants are allowed to participate in the coroners’ inquest when the people with real interest, namely the relatives of the deceased whose death is being inquired into, are not able to afford any protection at all. The well-heeled litigants are able to use litigation experts—counsel, senior counsel maybe—and leave the relatives of the deceased without anything at all in the way of legal assistance.
This point arose in this House in connection with the Liverpool situation some years ago. The suggestion was that these well-heeled people should not be allowed to participate in the inquest, unless they were prepared to make available to the relatives legal advice and help to exactly the same limit that the well-heeled people were proposing. That applies to those well heeled by the taxpayer, and applies to those who are well heeled in other ways. It is much more general than legal aid.
Therefore, it seems to me that the inquiry that the Government are proposing would be well added to by taking account of this possibility, which we certainly advocated here. I think I am right in saying that my noble friend Lord Hailsham was also involved on that occasion. At that time, it seemed to be a Home Office responsibility, because it was the Home Office that was responding to the report from Liverpool. It was said that we would get an answer to this very obvious way of dealing with this and making it fair in due course. “Due course” is a very flexible expression. I would think it highly likely that it should be involved in this inquiry. Just restricting it to legal aid seems to make it impossible to really get adequate representation. It is much better that the representation should be equal and level on both sides.
Of course, in some of these inquests, there may be more than one well-heeled participant. Therefore, it should be made a condition of them being allowed to participate, if it is joint and several or if it is just one, that they are prepared to make resources available to the relatives of an equal standard to the resources that they wish to use. That seems abundantly fair; it is not a charge on a public interest or the public purse, except in the case where the well-heeled people are supported by the taxpayer. The taxpayer will have to pay what they seek to put out for their lawyers. I cannot see why dividing this between themselves and the other parties is not a fair way of dealing with it. It does not in any way increase the responsibility of the public purse.
My Lords, I thank everybody who has spoken in this short debate. I also thank the noble and learned Lord, Lord Mackay, and the noble Viscount, Lord Hailsham, for the spirit of what they said on the legal aid point. I thank the noble and learned Lord for his helpful suggestion. I am also grateful to the Minister for the way in which he opened this debate and for his careful response. I add my warm thanks for the contribution of the noble Lord, Lord Wolfson, during his time as Minister, and for his engagement with all of us on the Bill and on many others, going back to last year and to what is now the Domestic Abuse Act.
I will not press Motion A1 to the vote. I maintain my opposition to prospective-only quashing orders. I have read and appreciated the contribution of the noble and learned Lord, Lord Brown, to the Times newspaper on this point. I understand his point of view. He puts it as eloquently and as highly as it can be put. Nevertheless, there are two arguments.
At this stage, we should recognise the importance of the Government’s withdrawal of the presumption which would effectively have fettered the discretion of the judges. I will seek leave to withdraw this Motion on the basis of the description of the discretion as given by the Minister. I do so with confidence that the Government will apply the principles applied in the Canadian courts and develop the jurisprudence in a way that secures protection for all parties or potential parties before the courts. I beg leave to withdraw Motion A1.
Motion A1 (as an amendment to Motion A) withdrawn.
Motion A agreed.
5A: Page 4, line 2, leave out “passed without” and insert “the Bill for which would not require”
11A: Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.
11B: Insert the following new Clause—
“Independent review of publicly funded legal representation for bereaved people at inquests
(1) The Lord Chancellor must commission an independent review of the need for provision of publicly funded legal representation for bereaved people at inquests not more than six months after the passing of this Act.
(2) The review must be chaired by a person appointed by the Lord Chancellor.
(3) The review must include a consultation with interested stakeholders, whose submissions must be published.
(4) The Lord Chancellor must publish the outcome of the review and lay it before Parliament no later than one year after the passing of this Act.””
Motion C agreed.
Nationality and Borders Bill
A message was brought from the Commons, That they disagree to an amendment made by the Lords to the Nationality and Borders Bill in lieu of an amendment to which the Commons disagreed, which was in lieu to a Lords amendment to which the Commons disagreed, for which the Commons assign a reason. They disagree to certain other amendments made by the Lords in lieu of amendments so restored to the Bill by the Commons disagreement to a Lords amendment, for which the Commons assign a reason. They disagree to the remaining amendments made by the Lords to the Bill in lieu of Lords amendments made in lieu of certain other amendments in lieu to a Lords amendment to which the Commons disagree, for which they assign a reason.
5E: Because the Commons consider that the provisions of Part 2 are compliant with the Refugee Convention without the need for an interpretation provision; and that it is not appropriate to give the courts a power to make a declaration of incompatibility.
My Lords, I beg to move Motion A that this House do not insist on its Amendment 5D, to which the Commons have disagreed for their Reason 5E. With the leave of the House, I will also speak to Motions B and C.
We return again to consider the Nationality and Borders Bill, and I am grateful to noble Lords on both sides of the House for the careful consideration they have given to the issues at hand and the care with which they have scrutinised this Bill. We must now make progress to pass this on to the statute book.
I turn first to Motion A and Amendment 5F, which would require that the provisions of Part 2
“must be read and given effect in a way which is compatible with the Refugee Convention”.
The Government’s position remains that the provisions of this Bill are compliant with the refugee convention. The other place has consistently accepted this position. Ultimately, though, I cannot support this amendment as it is an attempt to copy Section 3 of the Human Rights Act 1998, the effect of which on the interpretation of the legislation is unique and far outside the ordinary rules of statutory interpretation. The amendment goes on to provide a mechanism for the courts to declare that certain provisions may be incompatible. Again, I must take issue with this for the same reasons, because we absolutely assert that the interpretations of the refugee convention which we are taking in this Bill are fully compliant. I will explain to the House why it is open to us to take this view.
The refugee convention leaves certain terms and concepts open to a degree of interpretation by contracting states. This ensures that it can stand the test of time and be applied across many jurisdictions with different legal systems. Necessarily, therefore, there is a need to define and apply such terms in domestic legislation in accordance with the principles of the Vienna convention —the noble Lord, Lord Kerr, made that point yesterday —taking a good-faith interpretation in accordance with the ordinary meaning of the language of the convention.
The provisions in Part 2 are in line with this. They are clear and unambiguous, and are a good-faith interpretation of the refugee convention. The plain fact is that there may be differences in interpretation in different contracting states—that is how international law necessarily must work to allow it to remain relevant and applicable across a range of jurisdictions—but this does not mean that the interpretation we are taking here, to which we ask Parliament to agree, is not a good-faith interpretation. We have considered carefully the compatibility of these provisions with the refugee convention, and a great deal of the Government’s position was comprehensively set out in the all-Peers letter sent by my noble friend Lord Wolfson.
We need to consider one of the primary purposes of Part 2: to provide a clear interpretation of key components of the refugee convention. This will benefit all those who interact with the asylum system, be they Home Office decision-makers, the courts, legal representatives or, most importantly, asylum seekers themselves. We have talked at length about how people seeking protection deserve a clearer, quicker and more just system. Let us not take away from the gains made by this Bill by casting doubt on what Parliament has agreed are fair interpretations of the convention.
The new amendment is not only unnecessary because the contents of Part 2 are fully compliant with our international obligation; it is also contrary to a fundamental purpose of this Bill, which is, where possible, to tightly define the nature of our obligations under the refugee convention while remaining compliant with those obligations to support consistent and accurate decision-making.
Yesterday, the noble Baroness, Lady Chakrabarti, said that her Amendment 5D, to which this amendment is similar in effect, was intended to do
“no more, but no less, than that already provided for in law by the ECHR”.—[Official Report, 26/4/22; col. 148.]
The ECHR has been given effect in domestic law through the Human Rights Act 1998 and is constitutionally different, as the ECHR has a supranational body whose judgments relating to interpretation are binding. The Human Rights Act therefore gives courts the authority, so far as it is possible to do so, to read and give effect to primary legislation and subordinate legislation in a way that is compatible with the convention rights.
However, the Act goes further and recognises the primacy of Parliament, as a declaration of incompatibility does not invalidate either the primary legislation or subordinate legislation where primary legislation prevents removal of incompatibility. The refugee convention has no supernatural court—I mean supranational court; things are getting spooky—and is not incorporated into domestic law. It is no different to other international instruments beyond the ECHR, and there is no rational reason to treat it or Part 2 of this Bill differently to other parts of the Bill in this regard. The amendment would have wider cross-government implications.
The amendment now includes a requirement for the Secretary of State to be notified when the court or tribunal is considering whether to make a declaration of incompatibility with the refugee convention, and allows the Secretary of State to join proceedings. Unfortunately, that does nothing to alleviate our objections to the amendment, as I have just outlined. Our position remains that the provisions in Part 2 are fully compliant with our international obligations, in particular those under the refugee convention.
Turning to Motion B and Amendments 6H and 6J, I must again insist that we cannot accept anything that goes against one of the absolutely fundamental aspects of this Bill: deterring people from making dangerous and unnecessary journeys. The status of Clause 11 as a deterrent is closely tied to the “first safe country” principle. Although the inadmissibility policy encourages asylum seekers to claim asylum in the first safe country they reach, it might not always result in an asylum seeker being removed to a safe third country; for example, due to some documentation or logistical issue. Consequently, the differentiation policy is required to add an extra layer of deterrent to the asylum policy framework, and we have a moral obligation to act to prevent such dangerous and unnecessary journeys. I cannot, therefore, accept this amendment.
I turn now to Amendment 6H, which again seeks to shift the burden of proof in applying Clause 11 on to the Secretary of State and seems to intend to make it more difficult for the Government to apply one of their core principles. First, I assure noble Lords that my officials are developing detailed guidance for decision-makers to assess whether the claimant qualifies for refugee status and, where they do, whether they are a group 1 or group 2 refugee. As is currently the case, we will continue to support claimants throughout the asylum process to ensure that they are able to present all evidence substantiating their asylum claim, including in relation to whether they are group 1 or group 2 refugees, for example via a substantive asylum interview with a Home Office official. As I explained, while Home Office officials will continue to provide this support, it remains necessary for the claimant, not the Secretary of State, to demonstrate whether they are group 1 or group 2. I therefore cannot accept this amendment.
I turn now to Amendment 6J, which, to be clear from the outset, is completely unnecessary. The Government, as I and my colleagues in the other place have said many times, are fully committed to complying with our international obligations. All the clauses in this Bill, the changes to the Immigration Rules which will be required to implement them, and the New Plan for Immigration more broadly will be compliant with all our international obligations. This includes our obligations under the refugee convention, the European Convention on Human Rights, and the United Nations Convention on the Rights of the Child.
In fact, there is already legislation which ensures compatibility between the Immigration Rules and our obligations under the refugee convention. Section 2 of the Asylum and Immigration Appeals Act 1993 already sets out the primacy of the refugee convention in the Immigration Rules. It states:
“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”
I remind noble Lords that it is our unwavering position that all provisions in the Bill, including Clause 11, are compliant with our obligations under the refugee convention. I also assure noble Lords that Section 2 of the 1993 Act will continue to act as an additional safeguard for policies covered in the Immigration Rules, which will include differential treatment of refugees. As such, I cannot support the amendment.
Turning lastly to Motion C, Amendments 7F and 7G would effectively create an amnesty to allow people who have claimed asylum prior to the commencement of the Bill, along with their adult dependants, the right to work after six months rather than the current 12 months, as well as removing the condition restricting jobs for people who are allowed to work to those on the shortage occupation list. The amendment would not only reward people who have in many cases arrived illegally in an attempt to undermine our economic migration system, but it would create enormous operational burdens for the Home Office to implement, very likely—as per the findings of the Government’s review into the policy —leading to a net yearly loss to the department in running costs.
I reassure noble Lords that the Government want to see all claims being settled within six months, so that people can get on with rebuilding their lives, including working. We are making every effort to ensure this is a reality under the New Plan for Immigration. I therefore advise the House that we cannot accept this amendment. I conclude my remarks there and beg to move.
Motion A1 (as an amendment to Motion A)
5F: Insert the following new Clause—
“Interpretation of Part 2
(1) So far as it is possible to do so, the provisions of this Part must be read and given effect in a way which is compatible with the Refugee Convention.
(2) If a court or tribunal determining a question which has arisen in connection with the provisions of this Part cannot read and give effect to those provisions in a way which is compatible with the Refugee Convention, it must make a declaration to that effect.
(3) Where a court or tribunal is considering whether to make a declaration of incompatibility, the Secretary of State is entitled to notice in accordance with rules of the court or tribunal.
(4) In any case to which subsection (3) applies the Secretary of State is entitled, on giving notice in accordance with rules of the court or tribunal, to be joined as a party to the proceedings.
(5) Notice under subsection (4) may be given at any time during the proceedings.””
Last night, however, her colleagues in the other place gave barely one thought, and certainly two fingers, to your Lordships’ House. The Minister there made just one argument, a shorter version of the noble Baroness the Minister’s, which I will come to. He gave just one argument against my amendment: that courts should not be able to declare laws incompatible with human rights. Therefore, the Government’s position in the other place moved from “this Bill complies with our obligations and so do we” to “and what’s more, the courts have no place at all in scrutinising our compliance.” Yet earlier today, on the Judicial Review and Courts Bill, the noble and learned Lord, Lord Stewart of Dirleton, for whom I have enormous respect, urged us to trust courts. That was in relation to prospective-only quashing orders, which generally will be more likely to suit the Government than individuals, let alone desperate, vulnerable refugees.
The Minister developed her colleague’s argument a little more just now, and I am grateful for that. She made a distinction regarding being able sometimes to declare laws incompatible with the ECHR, on the basis of the European convention having a court in Strasbourg that sits as an occasionally perhaps supernatural, but certainly supranational court. However, I am afraid that that distinction does not work for me, not least because many of her colleagues spent many years complaining about that international court and saying that our courts know better and that therefore, we should pay less attention to the court in Strasbourg and more attention to empowering our own courts. That is what the courts themselves have done in recent years in relation to the jurisprudence of the Human Rights Act. They have been more confident as domestic courts empowered to defend our rights and freedoms here. That is what our courts should be doing in relation to the refugee convention as well.
What is more, one minute, the Minister said that the refugee convention was not incorporated into our law, and the next she reminded us that it is, by way of Section 2 of the 1993 Act, which provides that Immigration Rules must comply with the refugee convention. How odd it is that Immigration Rules, which are a legislative device, should comply with the refugee convention but individual acts of discretion, whether by Home Secretaries, immigration officers or prosecutors, need not necessarily do so. That seems very odd indeed—an internally illogical and incoherent argument.
We talked about human rights all over the world at Oral Questions earlier and had the privilege of hearing from the noble Lord, Lord Ahmad of Wimbledon. Democratic states have written constitutions which entrust supreme courts with the authority to hold Governments to account and even to strike down legislation that violates fundamental rights. Here, in our system, courts can only ensure that executive discretion is lawfully exercised, including by prosecutors, immigration officers and Home Secretaries. Executive discretion is lawfully exercised and very rarely can declarations, which are only persuasive, be issued. The incompatible law remains in place and the declaration is simply, “Please think again, Government and Parliament.” That is done when a law is found to be absolutely in violation of fundamental rights. However, it now seems that even that level of judicial scrutiny is too rich for this Government’s blood.
I recognise that we may be only a revising second Chamber, but if not to defend the rule of law, what are we for?
My Lords, I rise, I hope for the last time—a hope which will be shared by every Member of this House—to support this amendment. There are not many issues that it is worth going to the stake for, but surely the rule of law is one. I have spent 60 years of my life on it and do not propose to stop here. I suggest that your Lordships support this too.
This Motion as now put fully respects the sovereignty of Parliament, just as the Human Rights Act does. It is the one simple provision that is needed to ensure that questions about the legality of this Bill can be brought before our courts and decided by an independent judge, and it is surely the least contentious way of achieving that. Indeed, it is beyond logical objection. In truth, the only objection raised is that it is unnecessary —surely the weakest objection that one can ever produce. If we never passed a provision which was unnecessary, the statute book would be a good deal lighter and the better for it. But here, it is needed, unless Parliament—your Lordships’ House and the other place—is happy to oust the courts’ jurisdiction in the whole area of what constitutes a right to refugee status, to asylum sanctuary.
It did not appear seemly yesterday to intervene during the short contribution of—if he will allow me to call him this—my noble and learned friend Lord Mackay of Clashfern. My reverence for him is boundless, not least because 30 years ago he had the sagacity to promote me to the Court of Appeal. However, he surely cannot maintain that, because the Attorney-General advises, as she may well have done, that this Bill is refugee convention compliant, that is that and we should just buy into it without thought: that this would be a sufficient basis for putting the whole Bill beyond the purview of the courts. Think about Miller 2; think about the prorogation order. We were told very plainly, and none of us doubts, that Geoffrey Cox, QC and then Attorney-General, had said that this is perfectly lawful. But that did not put it beyond the courts. If ever there was a case for not putting compliance with international law beyond the courts, this surely must be it.
I will make three short points on the speech of the noble Lord, Lord Horam, yesterday, which attracted a rather ungenerous rebuke, although that is by the way. His first point was the general one that this is merely “an enabling Bill” giving the Government “power to do something”. That is surely not so in respect of the important group of clauses we are considering here, which, under the heading “Interpretation of Refugee Convention”, redefine it. Without our amendment, the courts would have no alternative but to apply those provisions, whether or not they are regarded as compatible with the convention. There is nothing by way of this being merely an enabling Bill; it is a declaratory Bill beyond question.
Secondly, the noble Lord, Lord Horam, reminded us of the five-page letter circulated by the then excellent Minister, whose ears must be burning already from the previous debate, and quite rightly, because his loss is a terrible one for us all. The letter set out the Government’s legal arguments for contending that these definition provisions can be viewed as convention-compliant. I have the greatest regard for the noble Lord, Lord Wolfson, and certainly there is not a soul at the Bar who could have made more persuasive arguments to that effect. But they are just that: arguments. They should not therefore, of themselves, necessarily win your Lordships’ support. Included among those arguments were many that had been roundly rejected in the course of this country building up a quarter of a century’s worth of plain, authoritative jurisprudence that decided the questions of what the refugee convention required, which the noble Lord, Lord Wolfson, acknowledged are now being overturned by the Bill.
Thirdly and finally, the noble Lord, Lord Horam, at col. 157 of yesterday’s Hansard, said that he fully agreed with the noble Lord, Lord Pannick, and myself,
“about the 2001 refugee convention”.
He called it the 2001 convention; obviously there is the 1951 convention. He continued:
“I do not want this Government to step outside that in any way. It would be a tragedy if that happened. It should not be allowed to happen; I believe that it will not happen.”—[Official Report, 26/4/22; col. 157.]
But surely he must accept that there needs to be scope, therefore, for somebody to look at it independently once the statute is enacted.
Finally, if we look at the front cover of this Bill, we will see a statement, required by the Human Rights Act, by the Minister—the noble Baroness, Lady Williams —which says, under the heading of the European Convention on Human Rights, that it is her view that
“the provisions of the Nationality and Borders Bill are compatible with the Convention rights”.
She may well indeed have been so advised by the Attorney-General, but surely nobody has ever doubted that that means that it is enough in itself; it is not. What the Act says is that you should try to construe it compatibly and if you cannot you declare it—precisely the mirror image of what is now proposed for this self- same legislation.
I urge your Lordships—not at this stage because it is so late in the day and the ping-pong ball has been returned two or three times already—to consider whether we really should quit on the constitutional issue on this vital rule-of-law question. At this stage, I urge the noble Baroness to divide the House on the issue and let it be supported by all those who want this country to abide by the rule of law.
My Lords, I support what was said by the noble and learned Lord. When this matter went back to the House of Commons last night, the Minister there said that the amendment from the noble Baroness, Lady Chakrabarti, was “unnecessary, inappropriate and unconstitutional”. What the Minister failed to recognise, with great respect, is that whether there has been compliance with the refugee convention has been a matter for the courts of this jurisdiction for at least the last 40 years.
In the case of Sivakumaran, which is reported in  Appeal Cases, pages 958 and 990, Lord Keith of Kinkel said, for your Lordships’ Appellate Committee, that the provisions of the refugee convention
“have for all practical purposes been incorporated into United Kingdom law.”
That principle was recognised by Parliament in Section 2 of the Asylum and Immigration Appeals Act 1993. With the greatest respect, the noble Baroness, Lady Williams, is simply wrong to suggest that the refugee convention is not part of our law. It is distinct from most other international agreements for that reason.
I well appreciate that this Government do not like their decisions to be subject to supervision by the judiciary for legality. But, even for this Government, to present political expediency as a constitutional doctrine is a hard sell. What is inappropriate and unconstitutional—to use the Commons Minister’s words last night—is for the question of compliance with the refugee convention now to be determined not by the courts but a whipped House of Commons exercising its judgment.
There is another constitutional error, and a fundamental one, in the Government’s approach to this issue. The noble Baroness, Lady Williams, told the House yesterday that
“there may of course be more than one good faith, compatible interpretation”—[Official Report, 26/4/22; col. 170.]
of the convention. She is nodding her head. Again, with the greatest respect, that is incorrect as a matter of law. In the case of R v Secretary of State for the Home Department ex parte Adan, reported at page 477 of  2 Appeal Cases, on pages 516-17, Lord Steyn, speaking for the Appellate Committee, rejected a submission made by counsel for the Home Secretary that there was a range of acceptable interpretations of provisions of the convention. I well remember the case, because I was the counsel for the Home Secretary who made that very submission. I repeat the declaration that I made yesterday that I practise at the Bar often in immigration cases.
What Lord Steyn emphasised in rejecting the submission that there were a range of possible acceptable interpretations was that:
“The subject of the Refugee Convention is fundamental rights”.
Noble Lords will forgive me if I again quote, because it is such a fundamental point, but he also said, on behalf of the Appellate Committee of this House, that:
“In principle … there can only be one true interpretation of a treaty … In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning.”
That is why the views of the United Nations High Commissioner for Refugees—who is so critical of the provisions of the Bill—are so important.
So the suggestion by the Minister, on behalf of the Government, that the Bill is a good-faith and therefore permissible interpretation of the convention is wide of the mark. The question is whether the Bill is a correct interpretation of the refugee convention—to which the answer is plainly no. To return to the phrase used by the Minister in the Commons last night, what is inappropriate and unconstitutional is for the Government, by the Bill, to try to prevent the judiciary of this country giving the correct answer to the question of whether the application of the provisions in the Bill would breach this country’s international obligations under the convention. I think we all know what answer the judiciary would give if that question were put to them—and we all know why the Government are so determined to resist the Motion from the noble Baroness, Lady Chakrabarti.
So why are we pursuing this; why should we pursue it? The reason is very simple, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just said—because the Government are inviting Parliament to act in breach of this country’s international obligations and to prevent the judiciary from passing judgment on that question, contrary to the views of UNHCR, the Joint Committee on Human Rights, your Lordships’ Constitution Committee, the Bingham Centre for the Rule of Law, Amnesty International and so many other informed bodies. As your Lordships’ Constitution Committee said at paragraph 59 of its report on the Bill, published on 26 January:
“Compliance with the UK’s international obligations is a constitutional issue.”
When the Government’s position is based, as it is, on fundamental misunderstandings of our constitution and breaches of our international obligations, this House should exercise its power to invite the other place to think yet again. If, as I hope, the noble Baroness, Lady Chakrabarti, wishes to test the opinion of the House, she shall have my support.
My Lords, I attended throughout the debate on the Bill yesterday and remained completely silent, and I arrived today intending to follow that good advice again, because I was actually unable to attend the earlier stages of the Bill at any scale and thought it would be quite wrong for me to join so late. But this is an important issue, which I have listened to very carefully, and I would quite like to register my views.
Yesterday, I voted with the Government against all the amendments to the Bill, because I think we have reached the stage where the opinion of the Commons should prevail, and I am not fundamentally against them trying this new innovation of offshoring illegal immigrants. I very much doubt that it will work, but I think they are allowed to have their way and see what happens. But I did vote yesterday in favour of the amendment from the noble Baroness, Lady Chakrabarti, and the more I listen to the debate, the more it seems to me that there are hugely important constitutional issues here. We are not getting a satisfactory reply, and we are not even getting, in the House of Commons, any very considered response from the Ministers available.
We all know that the present Government particularly dislike their important subjects being subject to judicial review: they were very upset when their Prorogation was overturned. Many other Governments have rather regretted it, but I think it is a vital protection. The Government’s view that what they are doing complies with our international legal obligations and with our own unwritten constitution—which has no force if the courts could not sometimes apply it—is very unwise. I think we should just defend that essential protection. The idea that the opinion of the Attorney-General, whoever he or she may be, in a Government of whatever complexion, if accepted by the Government, should not be a matter that goes any further or be a subject either for Parliament or for the courts, is sweeping and, with the greatest respect, slightly absurd, because no Attorney-General, however distinguished, has ever been infallible on these matters. So I do believe that, among the many important provisions of the Bill, this is the most important of all because of its wider constitutional questions.
I congratulate the parliamentary draftsmen on their ingenuity in producing terms that exclude the jurisdiction of the courts entirely on such matters. I am sure that, if it were done this time, we would find it happening with ever more regularity, in Bill after Bill presented by future Governments to this House. We should make one last attempt to stop that and I am afraid that I have not been persuaded to turn away from my support for the noble Baroness, Lady Chakrabarti, if she presses her amendment again.
My Lords, it is a great challenge as well as a great honour to speak after the noble and learned Lord, Lord Clarke. I shall speak to Motion B1, which again seeks to bring the Bill into line with our international commitments. I believe there is a very important point of principle at stake here. There may actually be two points of principle—I am not sure about the second one—but the key one is pacta sunt servanda. The rules-based system works only if the rules are respected by all. We have just heard again—and we could hardly have heard more authoritatively —that this Bill is in breach of our commitments under the refugee convention.
The noble Lord, Lord Coaker, reminded us yesterday that UNHCR, to which we gave the job of supervising the interpretation of the convention, has confirmed yet again, authoritatively, in the strongest possible terms, that the Bill breaches that convention. We have heard from the Government Front Bench chop logic about how the Vienna Convention on the Law of Treaties allows conflicting national interpretations—but that really will not wash, as the noble Lord, Lord Pannick, has reminded us. We agreed to UNHCR’s supervising role: it is in the convention. We can complain from the stands when the referee rules our man offside, but we are not allowed to send on a substitute referee, and the referee’s ruling stands. So, it is not surprising that this House has voted three times to remove or improve Clause 11, which is where the breach of the convention is crystallised.
Yesterday, we heard from the Conservative Back Benches suggestions—I think it was just one suggestion—that all this was foreshadowed, and so legitimised, in the 2019 Conservative manifesto. Not so. I have checked. What the manifesto says is:
“We will continue to grant asylum and support to refugees fleeing persecution”—
and, later on:
“We will ensure, no matter where you come from, your rights will be respected and you will be treated with fairness and dignity.”
“Fairness” and “dignity” are fine words, but how can they be reconciled with depriving desperate people of their convention rights and their access to public funds, condemning them to destitution without even the miserable £5 a day subsistence that we pay to those stuck for years in the asylum process queue? Can we honestly say that those to whom we would in future be giving nothing at all would be being treated with fairness and dignity? No: Clause 11 is wrong in principle—pacta sunt servanda—and it would be shaming in practice.
My second point I put much more tentatively. Again, it is one the noble Lord, Lord Coaker, touched on yesterday. I put it tentatively because I have never served in the other place, but he has, with some distinction. It seems to me that this House is being treated with contempt. Of course, the elected Chamber must have the last word, but its view must surely be informed by an understanding of the considerations that led the revising Chamber to propose the changes it did. If I am right, are the Government, with all due respect, not cheating when they blandly assert no incompatibility the convention, when they make no attempt to refute—but simply ignore—this House’s demonstration that there is clear incompatibility, and when they allow minimal time to discuss an issue that is so important to our reputation as a law-abiding country?
A revising Chamber surely has the right to have its revisions properly considered. That is why I would have wished us to give the other place a last chance to reconsider Clause 11 and the case for putting respect for international obligations plainly on the face of the Bill. But I have been advised by those whose judgment I respect that there is a limit to the number of issues that can be kept in play at this stage of the game; and I have been advised that, after three successful votes, I have reached that limit. Three strikes, and I am out, it seems. So, I will not be putting Motion B1 to the vote. I am very grateful to all those who have supported it three times. The record will show that this House believes in pacta sunt servanda. I am grateful to the Minister for the courtesy she showed in dealing with obstreperous points from me. I urge all those who would have voted for Motion B1 to vote, as I will, for Motion A1 from the noble Baroness, Lady Chakrabarti, if she puts it to the vote, as I very much hope she will.
My Lords, like the noble Lord, Lord Kerr of Kinlochard, whom I have the greatest respect for, I am not a lawyer, so it is with some trepidation that I enter the arena. But that is my role. As far as my common sense tells me, international agreements such as the 1951 refugee convention mean nothing if each and every signatory to the convention can reinterpret the agreement to suit its own political ends. The whole point of the refugee convention, like the European Convention on Human Rights, is to prevent rogue states passing domestic legislation that overrules the rights of refugees or the basic human rights of their own citizens in the wake of what was then the recent history of the Second World War.
On the back of their attempts to reinterpret the 1951 refugee convention, this Government appear to be about to remove the United Kingdom from the European Convention on Human Rights, judging by the comments of the Deputy Prime Minister on BBC Radio 4’s “Today” programme this morning. In the context of those convicted of terrorism offences challenging their segregation in prison, Dominic Raab said, at two hours and 21 minutes into the programme,
“it shows you why our Bill of Rights is so important to replace the Human Rights Act.”
So much for the Minister relying on the Human Rights Act in her arguments. I am reminded of “First they came” by the German Lutheran pastor, Martin Niemöller. If we do not speak out about this Government eroding the rights of refugees, as they seek to do in this Bill, the next step will be to erode the rights of each and every one of us.
Motion A1 is a final attempt to at least make the Government honest. As the noble Lord, Lord Kerr, said yesterday, if the Government were to say, “We know this Bill does not comply with the refugee convention, but we are going to enact it anyway”, they would at least be being honest. Motion A1, as I understand it, simply allows the courts to make a declaration that any parts of the provisions in Part 2 of the Bill are incompatible with the refugee convention and require the Government to take note of the finding—the Government having been given the opportunity to be joined as a party to the proceedings. If the noble Baroness, Lady Chakrabarti, divides the House, we will support her. I understand why she may not want to divide the House, but if this were our amendment, we would. This time, it is refugees’ rights; next time, it could be our rights that are in danger if the Lord Chancellor, the Secretary of State for Justice, the Deputy Prime Minister, gets his way.
We also strongly support Motion B1 for similar reasons. It should be for the Secretary of State to prove why a genuine refugee is to be categorised as a class 1 or class 2 refugee. In any event, any Immigration Rules that are applied to whichever group a genuine refugee is categorised by the Secretary of State as falling into must not permit any practice that would be contrary to the Government’s international obligations. If this were our amendment, we would be dividing the House, but we respect the noble Lord’s decision.
On Motion C, I can understand why the noble Baroness, Lady Lister of Burtersett, having won the argument yesterday by one vote, has chosen not to pursue the right to work for refugees, despite the Government being unable to produce a shred of evidence to counter the comprehensive and compelling evidence provided yesterday by the noble Baroness, Lady Stroud, which clearly demonstrated that the right to work is not a so-called pull factor. The arguments made by the Minister about costs, devoid of any facts based on real-world experience unlike those of the noble Baroness, Lady Stroud, were speculative and, never having been presented before during the passage of the Bill from my recollection, smacked of last-gasp desperation.
Liberal Democrats have long campaigned and will continue to campaign for the right of asylum seekers to pay their own way, to secure the dignity that comes from being able to support themselves and to integrate more effectively in society by being able to work. In case this is my last opportunity to speak on this Bill, may I say how appalled and disgusted I am by it? There is only one political party to blame for this shameful legislation, and that is the Conservative Party.
My Lords, let me start by saying that I totally agree with my noble friend Lady Chakrabarti; I totally agree with the noble Lord, Lord Kerr; I totally agree with the noble Lord, Lord Paddick, and I totally agree with the noble and learned Lord, Lord Brown. Along with many noble Lords and Baronesses in this House, I have argued time and again against a Bill that most of us think is wrong and unethical. We have argued against the Government time after time on these issues, and I am going to spend a couple of minutes saying why I support the amendments from the noble Lord, Lord Kerr, and my noble friend Lady Chakrabarti.
I wanted to put that on record to start with because I do not want the position that we have taken—thinking that we have come to the end of the parliamentary political process with this—to be misunderstood to mean that we do not agree with my noble friend Lady Chakrabarti or with the noble Lords, Lord Kerr, Lord Pannick and Lord Paddick, or with any other Member who supports these amendments, because I do, and we do. But there comes a point—even I accept this, after what I said yesterday—where you have to recognise that this would be the fourth time that we would have sent this back.
The noble Lord, Lord Kerr, was kind enough to say what he did about me in the Commons, but I think that the Commons currently guillotines legislation far too quickly, which means that things are not properly considered. Frankly, that causes resentment—as happened the other day when we sent 12 amendments back and they were discussed in an hour—and people to ask why we should not send things back more often.
That is the root of the problem. But as someone who has stood for election on many of these issue and, like others, lost, fighting for this out in the community, I accept that the battle or argument now has to go beyond Parliament and out into the country. This is what elections are about. The Government get their way in the end because they won the 2019 general election and can pursue their agenda in Parliament. I can be angry, and this House can send a Bill back 10 or 12 times, but if the Conservative Government have a majority in the Commons, they will simply reject it. Of course we have a right to ask the Commons to think again, and in some cases it has done. I accept that there is a debate around how many times we should send Bills back, and whether we should send this one back once more; there is a legitimate question as to whether three times is enough or whether it should be four. But the position we have come to is that we think we are now at the end of the line. That is clearly not a view that everyone agrees with, but let it not be said that the disagreement is about the content of the Bill or the worth of the amendments; it is not. It is just about the best way to take this forward. That is the point I wanted to make.
It is worth reiterating that, as much as any other, the amendment from the noble Lord, Lord Kerr, goes to the heart of the Bill. Essentially, it was trying to say that the differential treatment of refugees would mean that vast numbers of people who come and claim asylum in this country would be criminalised. I cannot believe that that is acceptable, and that is what the amendment is getting at. We had the almost farcical situation where we were trying to imagine how someone could actually get here legitimately to claim asylum. We are an island, so what country can you come through unless you fly? But you cannot fly, because of the database checks that are carried out when you get on a plane, and so by definition you must come through a safe country to get here. According to the Bill we have before us, anybody doing that is coming illegally and should be stopped—unless they have come on one of the safe routes, but these are unavailable to large numbers of people.
The amendment from the noble Lord, Lord Kerr, goes absolutely to the heart of the matter. He and other noble Lords pointed out that this would have criminalised Ukrainians fleeing at the beginning of the conflict, and Afghans who had helped the British Army. That is why the noble Lord’s amendment is crucial, but these arguments have to be won not only in this Chamber but out in the country. But instead, to be frank, the Government say that we have a real problem with illegal immigration in this country and they are the only ones who will fix it—ignoring the fact that they have been in power for 12 years and have not managed to sort it out in that time.
The noble Lord, Lord Kerr, will appreciate that this is not a debate as to whether the amendment is right but about where we go to now. That is a position that noble Lords will have to consider for themselves, but we have considered it very carefully and come to the view that we have.
I have not always agreed with my noble friend Lady Chakrabarti, but on this she is absolutely right and I totally agree with the points she has made. Other noble Lords have joined in: the noble Lord, Lord Pannick, made his usual excellent contribution, as did the noble and learned Lord, Lord Brown, supported by the noble and learned Lord, Lord Clarke, who pointed out the importance of obeying international law and respecting our international obligations.
I will read out the UNHCR’s observation, because it is so damning of our country and our global reputation. In talking about this Bill and the importance of my noble friend Lady Chakrabarti’s amendment, it said that
“the United Kingdom’s international obligations under the Refugee Convention and with the country’s long-standing role as a global champion for the refugee cause”
are at risk because of the Nationality and Borders Bill.
That is absolutely tragic. It is not the Government’s intention, but that is what the UNHCR is saying would be the consequence of passing the Bill as it stands. I support absolutely what my noble friend Lady Chakrabarti is trying to do around the refugee convention.
As the noble and learned Lord, Lord Clarke, says, that is why it is so important. If the Government say that they are complying then they should put it in the Bill, so there is no doubt about it. But the Government refuse to do that and use words such as “compatible”. You then get into semantics. Is “compatible” the same as “complying”? I do not know, but as a non-lawyer I would think that it would carry more weight if it was on the face of the Bill than if it was not.
Again, it comes down to this point: which is the best way forward? From our perspective, my noble friend Lady Chakrabarti is absolutely right and the noble Lord, Lord Kerr, is absolutely right, but we are at the point in the parliamentary process where sending it back a fourth time would not be the appropriate way forward. Noble Lords will have to make their own judgment, but that is the judgment we have made. The battle will carry on and the campaign for a proper refugee system will carry on. That campaign will take place not only in this Parliament but in the various communities up and down the country, as we fight to remain the global champion that we have always been, and to offer asylum to those who deserve it and need it.
My Lords, I thank all noble Lords who have spoken in this debate. I made the point yesterday about the time we have spent on this; I do not think your Lordships have ever felt that we in any way have tried to rush this or any other legislation. We have gone many days in Committee, for 12 hours or more, discussing at length all the concerns and issues at hand. Many of the points have been remade today in a very articulate way.
I think my noble and learned friend Lord Mackay feels that he has been slightly misrepresented by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I wonder if he might check Hansard and come back to my noble and learned friend.
In response to the concern of the noble Baroness, Lady Chakrabarti, this has been clearly set out, as I have said before. These provisions are clear and unambiguous and a good faith interpretation of the refugee convention. The courts of course have an important role in ensuring that legislation is applied correctly, but it is for Parliament to make that legislation. That is the rule of law and is the result of our dualist system.
Turning to the noble Lord, Lord Pannick, we maintain that the general rule of interpretation in Article 31(1) of the Vienna convention requires a treaty to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. On that basis, as the noble Lord, Lord Pannick has quoted, we have taken a wide-reaching exercise to understand this and considered relevant factors, such as the law in other jurisdictions, case law and the words of academics. We believe that all provisions reflect a good faith, compatible interpretation of the refugee convention.
With those words, and echoing the words of the noble Lord, Lord Coaker, I think that it is time to pass this Bill.
I thank all noble Lords once more. It is often a huge privilege to hear debates from all sides in this Chamber, but sometimes that privilege comes with an awesome burden, as the Minister knows all too well. I am referring not just to this Chamber but to noble Lords in other places in this building where they beaver away at their work.
I have had the privilege in recent months to serve on the new and important Justice and Home Affairs Committee, chaired by the noble Baroness, Lady Hamwee, which had the privilege of hearing not so long ago from the Home Secretary. While I will repeat my admiration for the Minister and the way in which we can disagree well, this is not the case with everyone.
I want to say a word about good faith, which has been cited a few times. Before that committee, the Home Secretary gave evidence about the pushback policy. The committee has members far more august than me, including my noble friend Lord Blunkett, who quizzed the Home Secretary about the legal basis for pushing back boats in the channel and the controversy that had raged. She assured us that there was a legal basis and that the purpose of the policy was to deter refugees and the evil trade. The purpose was to deter asylum seekers and we were assured that there was a legal basis, as was Parliament and the public. When that policy was judicially reviewed, the Home Office sought public interest immunity over provisions in the policy document that revealed that the Home Office knew that it would be contrary to the refugee convention to ever repel a boat with a person who said, “I need asylum. I am a refugee”. It was only because the courts were able to say no to the public interest immunity that the Government and the Home Secretary were exposed and that policy is now over. That is how important the rule of law is.
I have been torn in making my mind up about this Division right now. I have been so grateful for the support of my noble friends—my noble friend Lord Coaker in particular— but when the noble and learned Lord, Lord Brown of Eaton-under-Heywood says he will go to the stake for the rule of law, I will go with him. I have moved the Motion and would like your Lordships’ House to agree it.
Motion A agreed.
6G: Because the provision in Lords Amendments 6D and 6E conflicts with clause 36; and because the provision in Lords Amendment 6F is unnecessary.
Motion B1 (as an amendment to Motion B) not moved.
Motion B agreed.
7H: Because the Commons consider that asylum-seekers (save in limited circumstances) and their adult dependants should not be permitted to work while a decision on their claim for asylum is pending, even for a trial period of 3 years.
Energy Security Strategy
The following Statement was made in the House of Commons on Tuesday 19 April.
“With permission, Mr Speaker, I will make a Statement on the British energy security strategy.
Our strategy provides a clear, long-term plan to accelerate our transition away from expensive fossil fuel prices set by global markets we cannot control. It builds on our success over the past decade in which we gave the go-ahead to the first nuclear power plant in a generation and achieved a fivefold increase in renewables. The British Energy Security Strategy marks a significant acceleration in our ambition. It is confirmation of three mutually reinforcing goals of our energy policy and, indeed, of any well-constituted energy policy: security, affordability and sustainability.
We recognise the pressures that many people across our country are facing with the cost of living. This has been greatly influenced, as we all know, by global factors. That is why my right honourable friend the Chancellor of the Exchequer announced a £9 billion package of support, including a £150 council tax rebate this month and a £200 energy bill discount in October to cut energy bills quickly for the vast majority of households. We are also expanding the eligibility for the warm home discount, which will provide around 3 million low-income and vulnerable households across England and Wales with a £150 rebate on their energy bills this winter. As I speak, our energy price cap is still protecting millions of consumers from even higher wholesale spot gas prices. Furthermore, we are investing over £6 billion in decarbonising the nation’s homes and buildings—set out very clearly in last year’s Heat and Buildings Strategy—which saves the lowest-income families around £300 a year on their bills. I want to reassure the House that the Chancellor has promised to review his package of support before October and will decide on an appropriate course of action at that time.
Cheap renewables are our best defence against fluctuations in global gas prices. By 2030, 95% of our electricity will be produced by low-carbon means. By 2035, we aim to have fully decarbonised our electricity system. We will double down on every available technology. The strategy sets out a new ambition to propel our offshore wind industry. It will increase the pace of deployment to deliver 50 gigawatts by 2030, instead of the 40 gigawatts committed to in the manifesto. Of that 50 gigawatts, up to 5 gigawatts will be floating offshore wind. The strategy also commits us to slash approval times for new offshore wind farms from four years to one year. We also feel—this is reflected in the strategy—that our solar capacity can grow by up to five times by 2035.
As is well known, most of Britain’s nuclear fleet will be decommissioned this decade. We need to replace what we are losing, but we also need to go further. From large-scale plants to small nuclear modular reactors, we aspire to provide a steady baseload of power that will complement renewable technology. Obviously, the right time to take those decisions would have been 20 years ago, but of course the Labour party all but killed off the British nuclear industry. That is why we will be reversing decades of underinvestment and building back British nuclear. We aim to deliver up to 24 gigawatts of nuclear power by 2050, approximately three times more than today, which will represent 25% of our projected energy demand.
We are also doubling our ambition for low-carbon hydrogen production. The capacity we aim to reach by 2030 is 10 gigawatts, with at least half of that total coming from green, electrolyser-produced hydrogen. This fuel will not only provide cleaner energy for vital British industries to move away from fossil fuels but will be used for storage, trains, heavy equipment and generating heat. The transition to cheap, clean power cannot happen overnight. Those calling for an immediate end to domestic oil and gas ignore the fact that it would simply make the UK more reliant on foreign imports. It would not, in fact, lead to greater decarbonisation globally.
Producing more of our own energy will protect us into the future. We feel that this historic change, this decarbonisation challenge, represents a huge opportunity for the United Kingdom: more wind, more solar and more nuclear, while also using North Sea gas to transition to cheaper and cleaner power. This is a long-term plan to ensure greater energy independence and to attract hundreds of billions of private investment to back new industries that can create hundreds of thousands of high-quality jobs and stimulate business across the UK. This is not only a matter of reaching net zero, vital as that is, but an issue of national security. These are all objectives that everyone across the House, I am sure, shares. We all wish to see a homegrown clean energy system that will protect our people into the future, create good clean jobs, attract private investment and, above all, drive down bills for the British people. I commend this Statement to the House.”
My Lords, I thank the Minister for coming here to answer our questions. However, I am disappointed that we only have this opportunity 20 days after the publication of the strategy, due to the Government’s decision to publish it while the other place was not sitting and thereby avoid immediate scrutiny.
On the Statement itself, I will begin with the aspects that we welcome. The last Labour Government gave the go-ahead for new nuclear sites in 2009, which have seen little-to-no progress. It now time for the pace to pick up on Sizewell C and the development of small modular reactors. The establishment of Great British Nuclear, if it achieves its goals, should be welcome, but, frankly, what is needed is action rather than additional bureaucracy and figures plucked out of the air without regard to cost, speed or deliverability. Can the Minister set out a timetable for the establishment of this body and, more importantly, the delivery of the eight reactors the Statement suggests could be set up at a rate of one per year?
We also welcome the Government’s target for offshore wind of up to 50 gigawatts by 2030. We need to ensure that developments of this kind lead to creating British jobs, which is not always the case under schemes from this Government. Can the Minister offer assurances that this will be addressed as the strategy is implemented and that other necessary steps to achieve it, such as grid investment in the North Sea network, will be taken?
However, the main issue with the strategy is what is missing. In short, these steps, while welcome, will not provide for households struggling with the cost of living crisis. They do not constitute the green-energy sprint that is needed to cut household bills, reduce reliance on Russian imports and cut emissions this decade. Measures that could have made an immediate difference to households and businesses have been ignored. On the cheapest, quickest, cleanest renewables such as onshore wind and solar, the Government have caved to Back-Bench pressure.
Onshore wind is four times cheaper than gas and overwhelmingly popular, but hundreds of projects that communities want, and are ready and waiting for, have been blocked. Earlier versions of the strategy showed that the Government were well aware of this, yet this strategy contains little beyond vague platitudes, and nothing to reverse the results of their ban on onshore wind projects in 2015, which destroyed the market, with only 20 new turbines granted planning permission between 2016 and 2021. Doubling onshore wind capacity to 30 gigawatts by 2030 could power an extra 10 million homes, add £45 billion to the UK economy and create 27,000 high-quality jobs. Does the Minister accept that bills will be significantly higher as a result of this failure?
The story with solar is not much different. Slashing solar subsidies in 2015 crashed the market, and many projects that could have been enabled are waiting in abeyance. Why have the Government watered down their ambition, rather than properly committing to tripling solar power by 2030?
The main hole in the Statement, for all those millions of people paying at least an extra £170 per year on energy bills, concerns energy efficiency. Energy efficiency is the best, quickest, most effective way to reduce energy bills, but there is no new money for it. Vulnerable people in this country need a national emergency plan to insulate homes, which could cut bills for the millions of pensioners and low-income households who need it most. At the same time, it would create new, skilled jobs. Instead, vulnerable people are being condemned to live in cold, draughty homes and paying more than they need to. The Minister previously admitted that the Government were keen to go further. So, who stopped them, the Secretary of State or the Chancellor?
The Government have missed another opportunity to close the door to fracking and continue to float the idea of a new coal mine in Cumbria. They have also failed to adopt Labour’s proposal of a windfall tax on oil and gas firms that are making record profits while bills skyrocket. Overall, it is fair to say that the energy strategy is disappointing and underwhelming. We can only ask how the Minister expects to reassure your Lordships’ House of the Government’s commitment to net zero if they continue to act to the contrary.
My Lords, there are things to welcome in this Statement but unfortunately, there are also many missed opportunities. Energy security is obviously critical at this time, but we must understand that it is about not just security of supply to the United Kingdom but the fact that millions of households right now feel a complete lack of security regarding their ability to pay their energy bills going forward, and particularly as we go into the next cold period.
The Government had an opportunity to take up my right honourable friend Edward Davey’s proposal: a windfall tax on the super-profits of the oil and gas industry, which the Labour Party has also argued for. That could have unlocked finances to give further support to people who will be desperately vulnerable this winter.
As the Liberal Democrats and many others in this House have repeatedly stated, curtailing the wasted energy that leaks out of our buildings should be the No. 1 priority in the hierarchy of measures we take to improve our energy security, reduce carbon emissions and cut costs for households. But there was nothing new in the Statement on this front. I asked the Minister at Questions yesterday why the number of insulation measures installed annually in the UK had fallen from a high of 2.3 million during the coalition to an average of less than 10% of that peak since then. He did not really give me an answer, to be honest, but I do not blame him for that. If he was unconstrained by collective responsibility, he would be able to be clear that it was down to the myopic foolishness of the Treasury, which has kyboshed many of the schemes that have been brought forward in the past. Not least of these is the green homes grant, which was destroyed by its lack of understanding that this has to be a long-term project, not a short-term stimulus measure. I hope the Minister will not be deterred, however, by that myopia, and will continue to urge his government colleagues to take a more creative approach to this issue, including fiscal measures such stamp duty discounts and council tax rebates for homes that improve their energy performance certificate ratings.
Can the Minister also tell us when the new ECO4 regime, which he mentioned yesterday, comes into effect? Am I correct in thinking that there is gap between ECO3 and ECO4 coming into effect? If so, why is that being allowed to happen?
Like the noble Baroness speaking for the Labour Benches, I welcome the extra commitments on offshore wind, but I also share her view that this is a massive missed opportunity for onshore wind. Onshore wind, as has been said, is one of the cheapest ways of powering green energy, and it is absolutely reckless that we are putting it aside.
On oil and gas, I hope the Government are really thinking about the danger of stranded assets on any new exploration. That is a dangerous thing.
I should declare my interest as a member of the UK Hydrogen Policy Commission in saying that I very much welcome the Government’s commitment to doubling their ambition to 10 gigawatts by 2030, and that for the first time, at least half of that will be green or electrolytic hydrogen.
Our ambitions are now similar to those of many of our international competitors, which is welcome, but the funding allocation behind them is completely different. We are not putting in anything like the money that our competitors are. Could the Minister look at that issue in particular?
Finally, will the Minister also look at the support that will be needed by local authority planning departments and councillors, which will have to deal with an increasing number of hydrogen-related planning applications? Currently, most do not have the necessary skills or resources to deal with them or to address the inevitable concerns. Will he also look at the regulatory environment that will be required? The hydrogen strategy suggests that regulations will be made on a piecemeal basis as hydrogen is scaled up, but this misses the point that regulatory certainty is absolutely required if the scale-up is to happen at all. I hope he can address a few of those questions.
I thank the noble Baroness, Lady Blake, and the noble Lord, Lord Oates, for their relatively constructive comments. I know they do not necessarily agree with everything we are doing and would like us to go further in some respects, but I know that in general, their hearts are in the right place. The strategy is of course a long-term plan to accelerate the transition away from expensive fossil fuel prices that, obviously, are set by global markets we cannot control. I know that both the noble Baroness and the noble Lord will support us on that.
Starting with the vital issue of concerns about energy prices, correctly raised by the noble Lord, the strategy reconfirms that the Government are committed to helping with the cost of living. That includes over £9 billion of help for families struggling with their bills. We are aware, of course, that Ofgem will set the next price cap in August, and we will want to review the current support arrangements at that point, well in advance of them taking effect in October.
The noble Lord also raised issues concerning energy efficiency. I know that he and I agree on the critical role that energy efficiency plays in both our energy security and in helping consumers to manage their energy bills. I disagree with him, however, in that this Government have gone further than any other in setting out an ambitious energy efficiency strategy, including through our landmark heat and buildings strategy. I know he will want to push us to go further but, in essence, we are heading towards the same destination—although apparently, we have different rates of getting there.
In response to the noble Lord’s question about ECO, there is no gap between ECO3 and ECO4. There is a delay due to legal considerations in tabling the SIs to implement ECO4, but we are certainly in touch with the industry bodies to explain that, and there is no gap in the implementation. The increased budget associated with it, at £1 billion a year, takes effect.
The noble Baroness, Lady Blake, raised the subject of onshore wind—I am sure there will be further questions on this as we proceed through the Statement—and also solar. Noble Lords are correct: onshore wind and photovoltaic solar are the cheapest forms of renewable energy. We are fortunate to have more onshore wind that pretty much any other country in northern Europe, and we continue to promote it passionately.
That said, both onshore wind and large solar projects —which can be controversial in some circumstances—should be pursued on the basis of local community support. Clearly, where that local backing exists, the strategy includes support for new projects and the enabling national network infrastructure.
Offshore wind is an area in which we have been hugely successful, and it has had a transformative effect compared to other renewables. Offshore wind is especially suited to the UK’s geography, and we truly are leading the world in its technology and capacity. It rightly forms one of the centrepieces of the strategy. As the noble Lord, Lord Oates, referred to, we are increasing our ambition to deliver up to 50 gigawatts by 2030, including up to five gigawatts of innovative floating wind capacity. By 2030 we will have more than enough wind capacity to power every home in the United Kingdom.
In response to the question by the noble Baroness, Lady Blake, I say that this is all bringing vital investment into the UK, particularly to our coastal communities. It will support 90,000 direct and indirect jobs by 2030. I met the Mayor of Tees Valley last night, who was telling me about some of the enormous projects being built on his patch, entirely to benefit from this expansion of offshore wind capacity.
I also welcome the support of Labour—if not the Liberal Democrats—from the noble Baroness, Lady Blake, for nuclear. It is very welcome. Energy security means being able to meet demand even on the coldest days of winter when there is neither sun nor wind. We need a baseload of decarbonised power to complement the renewables we are installing and while most of the current nuclear fleet is reaching the end of its lifespan and will be decommissioned this decade. We will be reversing decades of underinvestment and we will build back British nuclear.
In response to the question from the noble Baroness, Lady Blake, about the new body, I say that this will be set up immediately to bring forward new projects backed by substantial funding. We will launch the £120 million future nuclear enabling fund this month. We intend to take one project to a final investment decision in this Parliament and two in the next—subject to value for money and the appropriate approvals, as always.
On the subject of fracking, which the noble Baroness, Lady Blake, also asked about, it is right and sensible that, with wholesale gas prices around 10 times their level at the end of 2019, we review the science and evidence picture around fracking. The strategy commits to assess whether the previous conclusion against licensing has shifted or if scientific developments have changed, and we will do that.
I welcome the support of the noble Lord, Lord Oates, for hydrogen. I am happy to look at the comments he made about support for local authorities in terms of progressing hydrogen applications. I am sure we want to provide as much technical support as necessary and I agree with his comments about the importance of regulatory certainty in this area.
My Lords, I declare my interests in energy as in the register. Can I couple that with a plea that we have a full debate in the new Parliament on all these issues? There are things here which affect both the immediate situation for all of us—certainly most of the households in this country—and the long-term condition of this country facing its energy needs in the future. We have heard some very unchallengeable and sensible ideas on this, but I am not sure they meet the immediate crisis effectively.
Can I draw the Minister’s attention to the section in the energy security policy paper which points out that there is “no contradiction” at all between short-term concerns to boost oil and gas production, referring to the North Sea, and the long-term climate aims? On the contrary, the two are linked together; that is what it rightly says in the paper. Can the Minister extend that thought to say that there is no contradiction in now seeking major oil producers in the Middle East to produce a lot more oil and gas to cause prices to tumble and partly replace Russian exports? It would really help bring down electricity, petrol and gas prices, and begin to meet the further huge increase coming our way like a rolling wave in October.
Can I plead that we go back to the great oil producers and press them hard that, unless they do this, they are financing Putin’s child murder in Ukraine? If they do it, we will begin to see a much greater easing of prices than any of the present well-intentioned short-term subsidies and additions we have had so far. That is the aim. Anything else is splendid, but it does not help the huge crisis in energy which will affect 70% of households of this country. I have heard nothing from either opposition party which will do that.
As usual, given his experience of the subject, my noble friend makes important points. On the subject of a debate, regrettably that is above my pay grade, but I will pass on his comments to the Chief Whip. Obviously, I stand ready to assist the House in any debates that it wishes to have. Regarding my noble friend’s comments about North Sea oil and gas, I say that he is completely correct. We are clear that oil and gas will continue to have a role as a transition fuel in the medium term. In carbon footprint and security terms, it makes eminent good sense to source these from the North Sea. That has to be preferable to importing them either from Russia or as LNG. That is why we will ensure a future for the North Sea, making use of our great reserves as we transition. We are holding a new licensing round in the autumn subject to the climate compatibility checkpoint.
My Lords, I am going to ignore the quagmire of nuclear, which cannot come on stream for decades, and the quagmire of fracking, which is a ridiculously expensive and disruptive process, and all the other ridiculous ideas about more oilfields in the North Sea. I will talk specifically about biomass companies like Drax, which in fact produce more carbon than burning fossil fuels, yet the Government choose to give them renewable subsidies. Will the Minister meet me and one or two scientists who can explain the whole process to him, and possibly take that back to his department?
I am sorry that the noble Baroness has ignored the quagmire, as she puts it, of some very important subjects. I am sure we will want to debate them in future. She raised this matter with me yesterday. In principle, I understand the point she is making, but I point her to the website of Ofgem, which does the appropriate sustainability checks on the biomass used in Drax. It is from waste sources, and it is renewable. The Greens are shaking their heads, but I am afraid there is a case for it. It is sustainable and renewable, which is why it qualifies, but it is subject to strict sustainability criteria. They are checked and published.
There is much in the Statement to welcome about the long term but, as Keynes said, in the long term we are all dead. What worries me is that there is not a word in the Statement about how we are going to help people deal with the very real household energy crisis we are in now that will vastly increase in October. The reference period that will decide by how much the cap goes up ends in July. We know now that there is going to be a big increase again; there is no reason for us to wait. It is not very reassuring to be told that
“the Chancellor has promised to review his package of support before October”.—[Official Report, Commons, 19/4/22; col. 75.]
Why is he not doing it now? I suggest that, when he looks at it, he looks not just at little packets of money here and there, but at the possibility of indexing the energy element in universal credit to the energy component in the household expenditure of the people on universal credit. That is the most efficient way of targeting it. It is sad to see a long-term strategy which tells us nothing about onshore wind, storage or the improvements to the grid which are badly needed. The more we invest in wind, the more we will need grid improvements.
The noble Lord’s question was somewhat contradictory. He complained that the strategy did not address some of the short-term problems but in the end, he referred to it as what it is: a long-term strategy. The clue is in the title. The reality is that it takes many years to put in place energy infrastructure, and it is right that the Government address these factors and look to the long term to make sure that we are putting in place the appropriate steps, such as the nuclear RAB Bill, to provide the long-term security of supply and power that the country needs. That does not obviate the difficulties that we have in the short term. As I suspect the noble Lord knows very well, I cannot comment on what the Chancellor may do in response before any future fiscal event, before the next price cap comes in. However, I can assure the noble Lord that the problems the nation faces with high energy prices are at the forefront of the Government’s consideration.
I will make two brief points to the Minister, but as an aside on Drax, if memory serves me correct, when it started using the pellets, they were from trees in north America that had been grown for the printing industry, and the paper industry completely collapsed. Communities had been destroyed, and the fact that they could use this wood seemed a positive benefit. However, that may not currently be the case—it has been many years since I paid a visit.
On the nuclear issue, my noble friend is right in the sense that in 2009 the Labour Government left half a dozen sites for nuclear power stations, but the Statement is correct in that we lost 20 years. The Labour Government Cabinet was discussing this issue in late 2002 and early 2003. I was a simple Minister of State—I was not involved in that—but I remember writing a note for my Cabinet colleague, my senior. That is the kind of thing I remember because it was Christmas Day and I was sitting in Charing Cross Hospital at the time, as a visitor. The issue had been discussed but it was flattened by two or three members of the Cabinet. I will not name anybody, but that was a lost period.
The central issue I want to ask the Minister about was not referred to: batteries. The International Energy Agency has said that because of the use and storage of batteries for transport, propulsion and homes, the world will need a sixfold increase in lithium, cobalt and rare earths. Where are they processed? Some 60% of the world’s lithium is processed in China, as is 65% of the world’s cobalt, although it is mined in the Congo, where 40,000 children are involved in mining it. Some 87% of the world’s rare earths are processed in China. Therefore, the issue has to be, what do we do with colleagues and friendly countries—we cannot do it ourselves—to avoid in 20 years’ time being in the same position we are in now with gas and oil from Russia: being hooked to China for the metals we need for batteries? It is a grip that has enormous potential, and it needs dealing with now. I used the word “processing”; China is not mining it all but is controlling the process from the mining. A huge amount of cobalt comes from the Congo but it ends up being processed in China. China has a grip on this and I know people are trying to deal with it—I think the EU is—but the Government have to be part of a plan. They will not be able to do it on their own; they have to work with others. We need to cease dependence on such a large scale on metals that will be vital for our industries and our energy security.
The noble Lord raises a number of important points. On the biomass supplying Drax, he is right that it is mainly produced from waste-wood sources that would otherwise not be utilised. I think he was agreeing that that was a mistake on the part of the Labour Government, who got elected in 1997 on a manifesto that said there was no case for new nuclear. It is easy for us to look back at mistakes made in the past but in retrospect, that was a mistake. This comes back to the point made by the noble Lord, Lord Kerr: that in an advanced industrial country, this infrastructure takes many years to put in place. We let the UK nuclear industry wither on the vine because, of course, at the time we had ample supplies of clean gas and not so much concentration on climate change.
The noble Lord is in essence right about rare earths, but the Government are very well aware of this. A number of innovative battery technologies are also being developed but we are looking very closely at the necessity of various rare earths for existing battery technology, such as cobalt and lithium, and at where alternative supplies can be procured.
My Lords, I declare my interest as both a Church Commissioner and a board member of a housing association. As things stand, a community with local renewable generation is not allowed to sell the energy it generates directly to local people. Instead, it has to sell it to a utility, which sells it on to customers, creating disproportionate costs. Moreover, community-level generation could be further promoted by ensuring that new housing developments include green energy or even a requirement that they place no increased demand on the grid by generating more of their energy needs. The Bible assures us that the sun shines on both the righteous and the unrighteous. Indeed, I can assure the Minister that it does so even in my notoriously rainy city of Manchester. Can he outline what will be done to promote greater take-up of community energy generation programmes?
I thank the right reverend Prelate for saying that the sun shines on all of us—I am delighted to hear that. Community energy is important and we are supporting a number of community projects within Ofgem. I realise that there is a campaign to increase the take-up of community energy and we are in principle supportive of that. However, if those community energy projects also wish to be connected to the national grid and take advantage of other forms of energy and supply, it is right that they pay a proportionate share of costs for that. They are not insulating themselves from the national grid and from other forms of energy production and supply. Nevertheless, we want to see what we can do to support community energy, Ofgem is engaged in it, and we will look at what more we can do to help.
My Lords, reference was made in the Statement to low-carbon hydrogen production. Does the Statement mean that the Government have in effect taken a long-term strategic decision—by which I mean well beyond 2030—that the hydrogen they intend this country to produce will be green and not blue?
Ultimately, yes, but in the short term we will want to support both forms of hydrogen production to get the market started and we will look towards providing something similar to the contracts for difference scheme for hydrogen production. As the noble Viscount is aware, we announced an expansion of hydrogen production in the strategy.
I do not think so—I do not think it would be that specific. We will not have one person vetoing an application. However, we would want to make sure that there was general community support for further onshore wind capacity before development proceeded.
Ukraine has certainly focused all our minds and minds in all countries, particularly across Europe. In particular I welcome the Government’s policy on expanding our nuclear energy programme and that they have now agreed to acknowledge that shale gas extraction should be considered. Notwithstanding that the shale gas extraction programme was halted, the initial work has been done. The technology has improved and horizontal extraction techniques take up a much smaller land area. This could come on stream as soon as 18 months’ to two years’ time, given the work that has already being done, albeit that it will be a long-term programme. Will my noble friend assure the House that the Government will crack on with this programme, as it is vital that we become energy self-sufficient as soon as possible?
I know that my noble friend feels strongly about this subject but it is important that we take account of the recent scientific consensus, and we will do that. We have always been clear that the development of shale gas must be safe and cause minimum disruption and damage to those living and working near sites, and that is not a new position. However, my right honourable friend the Secretary of State has asked the British Geological Survey to look again at this process. I think my noble friend is wrong in thinking that we could get large amounts of fracking on stream within 18 months. So far, we have had maybe two wells; to get significant amounts of fracked gas you would need many hundreds if not thousands of such wells, so it is quite a disruptive process and can take quite a long time. Nevertheless, we will be guided by the science and will look again to see whether it is possible to do it, with the consent of local communities.
My Lords, I declare my interest as co-chair of Peers for the Planet. I return the Minister to his answer to the noble Lord, Lord Teverson: he said that he would not want one person to be able to veto an onshore wind development. Is that not precisely what is implied by the ministerial Statement that now governs these issues? Is that not why we have had a complete standstill on onshore developments? In an earlier answer, the Minister said that community support was important; it is in all planning applications, but why should these planning applications have a far higher standard, which requires unanimity from the local community? I ask why the Statement said that we would double down on every available technology, yet did not look at that issue, and why it makes a very limited proposal for developments that would support local communities in terms of cheaper electricity. That is fine but it does not give the volume that we need. May I ask specifically about the part of the Statement that says that we will look at arrangements to support the repowering of existing onshore wind sites? This is a real issue: we will not only not expand but contract because of the difficulties of repowering. What is the nature and timescale of the inquiries that will be made?
I know that the noble Baroness is a passionate supporter of onshore wind. She brought her Bill on it recently and we debated the subject at great length. I know she will continue to probe and push me, as is correct, on this subject about which she feels so strongly. The Government are clear: we want to see an expansion of onshore wind and we would like to see the communities that host this new Bill’s infrastructure benefit from developments in their areas. We hope that will drive greater levels of community consent, which will allow more of the procedures to come forward. I will write to the noble Baroness with details of repowering existing onshore wind infrastructure.
Will my noble friend look closely at the possibilities for energy from waste and distance warming that are tried and tested and work so successfully, not just in this country but across most of Europe? Will he also ensure that many of these projects could be fed into the local grid rather than into the national grid, as happens currently?
Energy from waste is an important topic, both in generating electricity but also for heat networks. I have visited a number of very innovative energy from waste plants; there is one in particular in east London that is extremely successful and powers and heats thousands of local homes in the community. By the very nature of a heat network, under an energy from waste plant, it does of course benefit and help the local community.
Commons Amendments and Reason
A message was brought from the Commons, That they agree to certain of the amendments made by the Lords to the Elections Bill. They disagree to another amendment made by the Lords but propose amendments to the words so restored to the Bill, to which they desire the agreement of the Lords. They disagree to a further Lords amendment but have made amendments in lieu thereof to which they desire the agreement of the Lords and they disagree to the remaining amendment for which they assign a reason.
That this House do not insist on its Amendments 22 and 23 and do agree with the Commons in their Amendments 22A to 22I to the words restored to the Bill by the Commons disagreement to Lords Amendment 22 and in their Amendments 23A to 23K in lieu of Lords Amendments 22 and 23.
22A: Page 21, line 13, at end insert—
“(3A) The statement must not include provision in relation to elections, referendums and other matters so far as the provision would relate to the Commission’s devolved Scottish functions or the Commission’s devolved Welsh functions.”
22B: Page 21, line 15, at end insert—
“(5) For the purposes of subsection (3A)—
(a) the Commission’s “devolved Scottish functions” are the Commission’s functions in relation to—
(i) Scottish Parliamentary general elections, elections held under section 9 of the Scotland Act 1998 (constituency vacancies), and local government elections in Scotland, so far as those functions do not relate to reserved matters within the meaning of the Scotland Act 1998, and
(ii) referendums held throughout Scotland in pursuance of provision made by or under an Act of the Scottish Parliament;
(b) the Commission’s “devolved Welsh functions” are the Commission’s functions in relation to—
(i) general elections of members of Senedd Cymru,
(ii) elections held under section 10 of the Government of Wales Act 2006 (elections for Senedd constituency vacancies),
(iii) local government elections in Wales, and
(iv) referendums held under Part 2 of the Local Government Act 2000 or Part 4 of the Local Government (Wales) Measure 2011 (referendums relating to local authority executive arrangements), so far as those functions do not relate to reserved matters within the meaning of the Government of Wales Act 2006.”
22C: Page 22, line 14, leave out “Public Administration and Constitutional Affairs” and insert “Levelling Up, Housing and Communities”
22D: Page 22, leave out lines 15 to 18 Page 22, leave out lines 15 to 18
22E: Page 22, line 34, leave out from beginning to end of line 16 on page 23
22F: Page 23, line 21, leave out “Public Administration and Constitutional Affairs” and insert “Levelling Up, Housing and Communities”
22G: Page 23, line 25, leave out “Public Administration and Constitutional Affairs” and insert “Levelling Up, Housing and Communities”
22H: Page 25, line 16, leave out “Public Administration and Constitutional Affairs” and insert “Levelling Up, Housing and Communities”
22I: Page 25, leave out lines 17 to 22
23A: Page 21, line 13, at end insert—
“(3A) In preparing the statement, the Secretary of State must have regard to the duties imposed on the Commission by section 145(1) (duties with respect to compliance with controls imposed by this Act).
23B: Page 22, line 23, at end insert—
“(aa) must prepare a report containing the Secretary of State’s response to the consultation.”
23C: Page 22, leave out line 24 and insert—
“(3A) If, after complying with subsection (3), the Secretary of State proposes to designate the statement, the Secretary of State must lay before Parliament a document that—
(a) explains the Secretary of State’s proposals,
(b) sets them out in the form of a draft statement, and
(c) contains the report prepared under subsection (3)(aa).
(3B) Where a document is laid before Parliament under subsection (3A), no draft of the statement that the Secretary of State proposes to designate is to be laid before Parliament before the end of the 60-day period.
(3C) In preparing a draft statement for laying before Parliament, the Secretary of State must consider any representations made during the 60-day period in relation to anything in the document laid under subsection (3A).
(3D) If, after the end of the 60-day period, the Secretary of State wishes to proceed with designating the statement, the Secretary of State must lay before Parliament—
(a) the draft statement (incorporating any changes made in light of any representations made as mentioned in subsection (3C)), and
(b) a report containing the Secretary of State’s response to any such representations.”
23D: Page 22, line 25, leave out “(3)(b)” and insert “(3D)”
23E: Page 22, line 33, at end insert—
“(aa) “the 60-day period” means the period of 60 days beginning on the day on which the document mentioned in subsection (3A) is laid before Parliament (or, if it is not laid before each House of Parliament on the same day, the later of the days on which it is laid);”
23F: Page 23, line 17, leave out “for the purposes of subsection (5)(a)” and insert “or the 60-day period for the purposes of subsection (5)(a) or (aa) respectively”
23G: Page 23, line 42, after “consultation” insert “and other pre-designation”
23H: Page 24, line 18, leave out “9 months” and insert “12 months”
23I: Page 24, line 32, at end insert “, or
(c) at the request of the Speaker’s Committee, where the request—
(i) is made by notice given to the Secretary of State, and
(ii) gives details of the changes to the statement that the Speaker’s Committee propose should be made.
(2A) Where a request is made in accordance with subsection (2)(b) or (c), the Secretary of State must inform the Commission or the Speaker’s Committee (as the case may be) how the Secretary of State proposes to deal with the request.”
23J: Page 25, line 2, leave out “4C(2) (consultation requirements)” and insert “4C(2) to (3C) (consultation and pre-designation requirements)”
23K: Page 25, line 29, leave out “4C(3)(b)” and insert “4C(3D)(a)”
My Lords, with the leave of the House, I will also speak to Motion B.
On Motion A, the Government have listened with respect to your Lordships’ concerns but they consider the measures in these clauses necessary and to take a reasonable approach to reforming the accountability of the Electoral Commission, while respecting their operational independence. Much concern has been expressed about the duty to have regard. The Government’s firm view is that this duty will not allow the Government to direct the commission’s decision-making, nor will it undermine the commission’s other statutory duties. However, while the other place has by a large majority reinstated Clauses 14 and 15, we have listened carefully and respectfully to the concerns expressed. I have also had the pleasure of meeting the noble and learned Lord, Lord Judge, and others, and consulted colleagues in government. As a result of these conversations, and in a sincere effort to address the concerns raised by your Lordships, my colleague in the other place, Minister Badenoch, also tabled government Amendments 23A to 23K in lieu, which were accepted by the House of Commons. I will briefly outline them.
Amendment 23 underscores the independence of the commission by requiring the Secretary of State, when preparing a statement, to have regard to the duty placed on the commission by Section 145(1) of the Political Parties, Elections and Referendums Act 2000, to monitor and ensure compliance with the rules set out in that Act. Further, this amendment would prohibit the statement from including any provision about specific investigatory or enforcement activity.
Amendments 23C to 23H, 23J and 23K provide for enhanced parliamentary scrutiny of a statement—another thing your Lordships have asked for—that has been subject to statutory consultation by providing both Houses with a supplementary opportunity to consider the draft statement and make representations before it is laid for approval. The amendments also make consequential changes to Clause 14.
Furthermore, Amendments 23B and 23I would require the Secretary of State to publish a response to the statutory consultation on the statement, and to respond publicly to a request for the statement to be revised that comes from the Speaker’s Committee on the Electoral Commission.
Taken together, the Government believe that our amendments, in addition to provisions already built into Clause 14—but which I accept failed totally to persuade your Lordships—should now put beyond doubt the question of whether the Statement could be used to unduly influence the commission to take a particular course of action in its investigatory or enforcement activity.
Turning to the amendments tabled by the noble Lord, Lord Judge, the Government do not, respectfully, share the view that it is necessary to clarify in the law how the duty to have regard to the statement will be interpreted. I was pleased to have the opportunity to hear the noble and learned Lord’s views, and I know he has discussed those also with officials. The Government do not agree with the proposal to amend the provisions to expressly state that the commission would not be bound to follow the statement when carrying out its duty to have regard to it. The duty to have regard works in similar ways to other existing statutory duties without the need for such language as proposed in the noble and learned Lord’s amendment to be included. Any further elaboration of this duty might have unwanted implications for how the many other duties to have regard that appear on our statute book should be interpreted. For these reasons, it is simply not a proposal that the Government can accept and I urge the House to reject it.
The Government do not agree either with the proposals from noble Lords which would require Ministers on the Speaker’s Committee on the Electoral Commission to recuse themselves when the committee considers how the commission has discharged its duty to have regard to the statement. Executive representatives have always had a role in the parliamentary oversight of the commission via the committee, which, set in the context of the overall framework, is entirely appropriate. Furthermore, the Speaker’s Committee, not the Government, determines its own procedures. Therefore, it would not be appropriate to impose legislative constraints on the operation of the committee in this way. This is rightly left to Members of the other place to consider. For these reasons, the Government also oppose this amendment and respectfully urge the House to reject it.
I turn to Motion B on voter identification. I bring to the attention of noble Lords their Amendment 86, to which the other place has disagreed by way of Reason 86A, and to Amendment 86B in lieu, tabled by the noble Lord, Lord Rennard. The Government’s policy on voter identification has been clear and consistent. In the pilots undertaken by the Government in 2018 and 2019, the Electoral Commission found that photo identification was the best approach to pursue, which gave the public the greatest confidence. The experience in Northern Ireland has shown that photo identification does not present a barrier to people voting. In the first parliamentary election after the introduction of photographic identification in 2005, turnout was higher in Northern Ireland than in Great Britain. For these reasons, I urge the House to support the Government’s decision to disagree with Amendment 86 and to reject Amendment 86B in lieu.
I have heard and appreciate the concerns raised. I hope that noble Lords will understand the earnestness with which I and the Government have listened to and sought to answer many of the concerns about the Bill raised by noble Lords on all sides. This is an important matter, but I firmly believe that the policy is strong. To reassure your Lordships, I will say that this is not a static position. Should further forms of photographic identification become available and sufficiently secure, the Bill already makes provision to enable the list to be amended so that additional identification can be added by secondary legislation.
We have accepted responsibility for post-legislative scrutiny. We will ensure that the list of documents is regularly reviewed so that it remains up to date and fit for purpose. We are already considering potential future additions. For example, we are aware that the Office for Veterans’ Affairs is developing a veteran’s card, which may be appropriate. Furthermore, we will monitor existing forms of identification. For example, should rail cards, such as those proposed previously in the amendment from my noble friend Lord Willetts, become more secure, we will of course look to consider them, along with any other secure forms of identification. Our work will take into account technological advances, too, and we will carefully monitor the development of digital forms of identification.
I repeat that the Bill includes provision for the evaluation of the effect of voter identification to be completed following the first three sets of elections where the requirements apply. This will provide further opportunity to review the specific practicalities of this policy. This is in addition to the statutory post-legislative scrutiny review of the whole Act that will take place, as provided by the amendment that I tabled after discussions with your Lordships at previous stages.
Finally, a list of existing identification types in the Bill is one element of this policy. To ensure that the implementation of the requirement is as accessible and effective as possible, a voter card will be freely available to electors who do not have one of the other forms of photo identification. There will be an extensive national communication campaign, conducted by the Electoral Commission, to complement the local efforts of electoral registration and returning officers. As I have said from the outset, we are determined that every eligible voter will continue to have the opportunity to vote. The Government are confident that our plans will ensure that photo identification works for all voters.
We have developed the debate on these topics at length, and more than once. The hour is late. The other place has considered these matters. In relation to Motion A, my colleague Minister Badenoch has laid before your Lordships genuine and significant changes which the other place has approved and which bring into legislation safeguards that your Lordships felt might be necessary. The Government have made concerted efforts in a range of areas to address the concerns raised by noble Lords throughout the passage of the Bill, and I respectfully submit that now is the time to put it on the statute book. I beg to move.
Motion A1 (as an amendment to Motion A)
23L: Clause 14, page 21, line 19, after “to” insert “, but is not bound by,”
23M: Clause 15, page 25, line 40, at end insert—
“(1A) When the Speaker’s Committee carries out the function in subsection (1), members who are Ministers of the Crown must recuse themselves.””
My Lords, I must get this right. I beg to move Motion A1, as an amendment to Motion A, to insert the words at the end as printed on the Marshalled List. So we are all very much wiser, are we not?
What I am actually talking about is the words in one amendment,
“but is not bound by”.
In the other amendment, the text is much lengthier:
“When the Speaker’s Committee carries out the function in subsection (1)—
to which I shall come—
“members who are Ministers of the Crown must recuse themselves.”
So now I hope we know what we are talking about.
On Monday, we had a very interesting debate. A substantial majority of your Lordships’ House—cross-party, I hasten to add—thought it right to remove the two clauses from the Bill. These two clauses have been renumbered, upnumbered and their numbers changed, so I will go back to the original numbers, 14 and 15. We are dealing with the power given to the Secretary of State by this Bill to issue a strategy statement setting out his or her priorities and the guidance to which the commission would have to have regard. This House took the view that that provision would have left the commission exposed and would have been inconsistent with the need for the commission to be—and to be seen to be—independent of the Government and indeed of all political parties.
Perhaps it is just worth looking at the way in which the Electoral Commission came to be founded. The Fifth Report of the Committee on Standards in Public Life used these simple words:
“Those who have advocated the establishment of an Electoral Commission have been emphatic that it should be independent both of the government of the day and of the political parties. We agree. An Election Commission in a democracy like ours could not function properly, or indeed at all, unless it were scrupulously impartial and believed to be so by everyone seriously involved and by the public at large.”
Today, the other place has considered the amendments that this House suggested, and it has restored the original Clauses 14 and 15, with some amendments. I welcome the amendments; they are a step forward. But they are a step forward on a ladder on which we had not reached the first rung in the original legislation.
On a separate matter, I am very grateful to the Minister for the conversations we have had. If I may say so, we had a robust exchange of views. I am pleased that there have been improvements, but they do not add very much. What they amount to is this: they make it absolutely clear that the Secretary of State must not issue a statement that might lead the commission to act inconsistently with its statutory duties. Well, that is important, but nobody ever thought that anybody would be able to issue instructions to be unlawful. Well, I suppose somebody might have thought, “We’ll issue instructions to be unlawful”—but I do not think we will consider that in this particular situation. I am perfectly happy to accept that these amendments increase parliamentary supervision of the processes, but I respectfully suggest to the House that, although there is an improvement, it does not address the independence and the perception of independence of the commission.
I respect the decision of the other place—and that is it. I am not seeking to restore the original decision of this House. However, I am proposing that there should be these small amendments to ensure that the independence is established. I also propose to ask the other place to think again about these two amendments; I am not being critical in any way about this because it did not have this material to consider. I will deal with these amendments very briefly, including the words “not bound by”.
I will refer back to the letter which the Minister kindly sent today to all Peers, which includes this passage in relation to “must have regard to”: “The Government’s view is that this duty will not allow the Government to direct the commission’s decision-making, nor will it undermine the commission’s other statutory duties or displace the commission’s need to carry out these other duties. It simply means that, when carrying out their functions, the commission will be required to consider the statement and weigh it up against any other relevant considerations. Therefore, the commission will remain operationally independent and governed by its commissioners”.
I do not understand the words “operationally independent”; the commission is either independent or not. That is at the foundation of the argument against this amendment. Even if it were correct, it does not address this crucial question: the issuing of the statement must mean that the Secretary of State will have an influence on the decisions of the commission. Self-evidently, the commission cannot say, “Aha, here’s the statement, yippee”, and chuck it out the window or put it in the bin. It will influence the decision; that is the point of it and exactly its purpose. On this issue, my amendment is very simple. As I have discussed, I recognise the argument that “must have regard to” also carries this implication of “not bound by”—I do not think that it does, but I recognise the argument. Assuming that I am wrong, and assuming that it does carry that implication, in the context of an elections Bill and the sensitivities which surround all electoral questions, surely it is so much simpler to express plainly and unequivocally in the Bill that the Electoral Commission will not be bound by the statement issued by the Secretary of State. That is what I am seeking with this amendment.
As to the other amendment, your Lordships will remember that I suggested that having two Ministers of the Crown on the commission would ultimately mean that the judge—that is the way in which the commission would do its work—would include two Members of the Government whose Government had issued the statement. In my old life, we called that “judge in his own cause”; that is what it amounts to. Whereas I understand the need for an examination—I am not happy about it, but I understand the argument—it would be much more appropriate and consistent with an independent commission that Ministers of the Crown should not be judging whether or not the commission had followed and had proper regard to the statement given to it by the Secretary of State.
I am asking this House to send back the amendments I have put forward on the basis that the other place could have a chance to look at them for the first time and make up its own mind about whether they are sensible. I urge that they be accepted, that they would make the improvements necessary to the Bill, and that they would make it possible to look everyone in the eye and say, “This is an independent body exercising an independent function”. I beg to move.
I support the noble and learned Lord’s amendments. I will be as brief as humanly possible, first because of his brilliant and forensic analysis of where we are and the importance of the amendments and, secondly, because there has been a tendency over recent times for noble Lords to filibuster their own amendments—I have seen it again and again. Therefore, I just want to comment on the second part of the amendments before us, the recusing of Ministers in dealing with the statement drawn up by the Secretary of State.
The Minister, in dealing with this element, talked about elected Members having traditionally been on the commission. I do not dispute that for a minute, but we are back to where we were when debating this earlier in the week: there seems to be a sad misunderstanding of the difference between Government and Parliament, and the role of Ministers representing a Government dominated by a political party and the role of elected Members, and therefore the commission, in carrying out their duties independently. This is a substantial constitutional matter; I am sorry that there are not more Members in the Chamber to hear it because, obviously, the troops outside will be rallied at the appropriate moment. Given that this is so fundamental to the way in which we conduct our democracy, election processes, and therefore the transparency and trust that people should expect, I believe that we should vote on this tonight. I am surprised that the Minister has not been able to convince his colleagues in the other place that they have got this very badly wrong. I promise them that it will come back to bite them.
I speak to Motion B1. We have already agreed in this House that compulsory photo ID at polling stations is not necessary. At no stage in any of our debates have the Government presented any evidence that compulsory photo ID is necessary, or proportionate, to what they try to claim is a risk of impersonation. In fact, there is proof that impersonation at the polling station is not a significant problem. The number of replacement ballot papers issued in the last general election, mostly because of a clerical error in crossing off the wrong name, was just 1,341 out of over 32 million ballot papers issued. That is an average of two replacement ballot papers in each constituency, or just one for every 30 polling stations. Mostly, they were issued due to clerical error, not fraud. Therefore, spending £180 million over the next 10 years to make photo ID a requirement to be allowed to vote is wholly disproportionate and unnecessary.
In an earlier debate, it was stated by a Minister that if someone claimed your vote, they had stolen it and you could not get it back. However, the replacement ballot paper system means that this is not the case. Unlike someone stealing a parcel of yours at the Post Office, you can get a replacement ballot paper if one has already been issued in your name and an investigation is made, if necessary.
The Minister referred to Northern Ireland and the recent increase in turnout, which I am sure is not due to the popularity of photo ID. If we look back to when photo ID first came in for the 2003 Northern Ireland Assembly election, we see that estimates were that around 25,000 voters did not vote because they did not have the required ID, and almost 3,500 people—2.3% of the electorate—were initially turned away for not possessing the required ID. There are 20 times as many people in Great Britain, so you can do the maths.
However, there is a sensible alternative to the Government’s proposals. It should be seen as a sensible compromise. It would safely address any legitimate concern that the Government claim to have about impersonation at the polling station. Perhaps significantly, it would also fulfil what was in the Conservative Party’s manifesto in 2019.
In addition to the documents considered acceptable to the Government as proof of identity, there is a document already issued to every voter by the official electoral registration officer. That document is the official polling card. In the local election pilots conducted under the Government’s own rules, the poll card was deemed an acceptable form of voter ID in some council areas and was chosen by 93% of voters where it was an option. This compares with 5% choosing to use their driving licence and 1% choosing their passport. Most significantly, the number of voters turned away from polling stations was half the level of that in areas requiring photo ID. That is the real point of the Electoral Commission’s analysis of those pilots.
Every voter on the electoral register is issued with a polling card. There is therefore no additional cost in making it an acceptable form of ID. A fraudster would have not just to impersonate someone at a polling station but to have stolen their poll card in advance. In the unlikely event of it being stolen, it could be replaced, and someone using the original could be arrested at the polling station for using it. So let us offer this compromise from this House. It offers greater security but no discrimination and no great expensive additional bureaucracy.
I believe that we do not require substantial further debate on this issue tonight, but we do need to act to prevent abuse of a majority in the other place.
My Lords, I will not say very much about the amendment in the name of the noble Lord, Lord Rennard, because I wish to concentrate on that in the name of the noble and learned Lord, Lord Judge. All I will say is that I think we need identity cards in this country, full stop.
I feel very troubled tonight. At Second Reading, I made it quite plain that I was strongly opposed to Clauses 14 and 15. I made a similar comment in Committee. On Monday, I was glad to be able to support the noble and learned Lord, Lord Judge, the noble Lords, Lord Blunkett and Lord Wallace of Saltaire, and my noble friend Lord Young of Cookham, when, along with nine or 10 Conservative colleagues, I voted for the amendments in the name of the noble and learned Lord to delete those two clauses.
I am troubled because, frankly, although I accept the good intentions of the Minister, my noble friend Lord True—his integrity is not in any doubt whatever—I do not think that tinkering will really meet the points that were made by those of us who wanted to delete the clauses. It is not for me to say that we should insist, because it is very much the noble and learned Lord’s amendment and he has made his decision, which, again, I respect totally. However, faced with a choice between tinkering and tinkering, I personally think that we have missed the opportunity to put this Bill in order by deleting two clauses that are fraught with danger to our constitution and election system.
The best we can hope for now is really scrupulous post-legislative scrutiny to see how this works out—it is essential that that happens—but we are put under a degree of pressure. Although this is the first stage of ping-pong on this Bill, when I came in this morning, all the robes for Prorogation were hanging up. The Government are clearly determined to prorogue Parliament tomorrow and not to use time later this week—which could have been used—or next week for a battle. I therefore find myself very much in the position of the noble Lord, Lord Coaker, at an earlier stage today, when he praised the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Kerr of Kinlochard, but said, “Really, the time has come”. I believe it is quite clear that the time has come for the end of this Session of Parliament. It is not one that will go down in the history books as a Session of glory or a Session that has enhanced the democratic credentials of government. It will not go down in history as a Session that has seen our country maintain its staunch defence of the rule of law, as it has done in the past, but that is where we are.
Frankly, the most honourable thing I can do tonight is not to vote. I believe that we should have deleted the clauses, but we have not done so. We gave the Commons an opportunity to delete the clauses, but they completely spurned us. They are entitled to do that, but I do not necessarily think that they were wise in taking the line they took. However, that is the line they took, and it is the line they will take if the amendments in the name of the noble and learned Lord, Lord Judge, are passed tonight.
We should just mark this as a pretty sad episode and, as I say, scrutinise the legislation once it is on the statute book. We will need to come back to these issues. We must make absolutely sure that the Electoral Commission is not trammelled in its work and is able, as similar bodies in other democratic countries are, to ensure that our elections are scrupulously controlled, totally impartial and never subject to the whims of any political party—right, left or centre. This is a sad day for me, but that is the conclusion I have reached.
My Lords, I want briefly to refer to Motions B and B1. In this House, we moved and passed an amendment that would have significantly added to the list of possible identifications that could be used by voters. I continue to believe that that would have reduced the risk of genuinely eligible voters finding themselves unable to vote. Nevertheless, that amendment has been substantially rejected in the other place and, as we have just heard from my noble friend Lord Cormack, we are drawing to the end of this Session.
I take some comfort from the words we have just heard from the Minister; I thank him for his engagement with this issue. He assured the House that it will be perfectly possible through secondary legislation to add to the list of identifications that can be accepted. He also assured the House that the Government will monitor the potential for new forms of ID to be used and improvements to the security of IDs, which appeared in our original amendment but have now been rejected. I hope that the evaluation he has promised will show that it is possible to add to the list of further IDs that can be used; that would be desirable. I very much hope that the Minister and the Government will be as flexible as he has said. In the light of his assurances and the clear rejection from the other place, I do not think that it is now our role to pursue this issue further.
My Lords, I support Motion A1, but I want to speak briefly to motion B1, which I also support. My primary concern throughout our debates has been the impact on the ability of people experiencing poverty to exercise their right to vote. I am not going to repeat the arguments, but I hope I can get a couple of assurances on the record from the Minister.
First, I thank him, as I understand he has asked officials to include organisations led by people in poverty— such as Poverty2Solutions and, I would add, the APLE Collective—in their ongoing consultations about the implementation of the Bill, so as to get their expertise on the experience of poverty. I would welcome it if the Minister could place that commitment on the record.
Secondly, I welcome the commitment he has made today to post-legislative scrutiny for evaluation and to keep under review the list of documents that will be acceptable as identification. Ideally, I would like to see a review immediately after the next general election, and I ask that the review looks explicitly at the impact on the ability of people experiencing poverty to exercise their right to vote.
A point I have made consistently is that, yes, while we have looked at groups protected under the Equality Act—although that does not seem to have made much difference to the outcome—it has been quite clear to me that there has been no attempt to look at the impact on people experiencing poverty who are not in a protected group. Given the evidence from the Joseph Rowntree Foundation and others, there is a real danger that their ability to exercise their right to vote will be seriously affected.
So that is all I am asking—those two assurances on the record.
My Lords, in relation to my noble and learned friend’s amendment, I have a short but I believe very important question to ask of your Lordships. What is your Lordships’ House here for if it is not this? My noble and learned friend has demonstrated beyond doubt that there is a risk—a measurable risk, not a fanciful risk—that the Electoral Commission might have its independence damaged and impugned if these amendments are not introduced into the Bill. What would the Government lose by accepting these amendments?
I therefore suggest to your Lordships that we have not yet heard any good reason why these amendments should not be sent back. I am unpersuaded by the argument that because some robes are hanging on hangers somewhere in the building, no doubt losing their creases—which is as good an argument as anything I have heard against my noble and learned friend’s amendments—we should not delay matters for another day, which is available. There is an option: the Minister can go and consult his ministerial colleagues and come back to the House in a matter of minutes and say, “I have listened to the noble and learned Lord, Lord Judge; he has argued a brilliant case and it may well be that he is right”. And if there is a risk that he is right—which is what I believe—we should not let this pass just because it is inconvenient to delay the end of the parliamentary Session.
My Lords, I had not intended to speak, but the fact is that, following what we have just heard, the Order Paper for Tuesday and Wednesday next week has Questions down from noble Lords. It is not as though we are slicing off tomorrow: the Order Paper is there, and it is there for a reason. Somebody worked out, in terms of the management of this place, that the House would sit. People put bids in for Questions, and they are sitting there on the Order Paper. The Minister —to whom I pay tribute for the way in which he has dealt with this Bill—did leave a gap open, which is not completely closed.
On what the noble and learned Lord, Lord Judge, said, we are certainly going to find out what the mettle of the electoral commissioners is made of, as a result of this kind of legislation. This is going to test those individuals—both the officers and the commissioners—in a way that they never contemplated when they applied for or were appointed to their posts.
I do not want to delay the House, but the other day I was reading—and I have not finished it—David Runciman’s How Democracy Ends. I came across this page where he quoted an American political scientist Nancy Bermeo, who had identified six different varieties—David Runciman called them “coups”—of ways in which things get manipulated. These are two of them. I would just like the Minister to explain how this Bill differs from these two examples:
“‘Executive aggrandisement’, when those already in power chip away at democratic institutions without ever overturning them. ‘Strategic election manipulation’, when elections fall short of being free and fair but also fall short of being stolen outright.”
Now where does this Bill differ from those two definitions?
My Lords, I was not going to speak in this debate, but, having listened very carefully, I am deeply troubled at the idea that we would not try to see whether we can persuade the Minister and Conservative colleagues in the other place, right-thinking Conservatives, that there is a significant risk here of gerrymandering elections—something one would think was impossible to imagine in this country.
I think the House has been done a great service by the noble and learned Lord, Lord Judge, who has challenged us to stand up for what we can see is a significant risk. Indeed, when we think about what happens in the other place with the amendments that we are trying to point out are really important to insert in the Bills that are coming through in these final days, we see that they are not even being sufficiently debated. With a significant majority there is a risk that a Government can try to gather for themselves permanent or long-lasting powers that are not designed for the kinds of constitutional arrangements that we have in this country.
I therefore am finding myself deeply conflicted and troubled as to—in the words of the noble Lord, Lord Carlile—what we are here for if it is not consider, and ask the other place to consider, these matters.
My Lords, briefly, we on these Benches will vote for both amendments on matters of principle, because we believe in constitutional democracy and citizens’ rights. Sadly, throughout our discussions on this Bill, the Minister has resisted attempts to discuss this as a constitutional issue and as a matter of principle. Indeed, as the Bill has gone through the Government have removed this area from the Cabinet Office and put it in with housing and local government under the Department for Levelling Up, so that the Commons committee on constitutional affairs will no longer cover such things as this. I regret that, too; it seems to me entirely improper.
I recall the noble Lord, Lord Hannan, making a very powerful speech some while ago on the importance of process in politics. By “process” I take him to mean the way in which we conduct ourselves in the political world, including the rule of law and institutional checks and balances Those conventions of political life are a fundamental part of democracy. That is what this Bill has failed to reinforce. I think we all recognise that a future Prime Minister or a future Government will have to return to this issue and produce a much better Bill that can command more cross-party support.
The amendment in the name of the noble and learned Lord, Lord Judge, addresses the question of parliamentary sovereignty—not Executive sovereignty. My noble friend Lord Rennard’s amendment addresses the question of the right of every citizen to take part in the political life of the country and not to face unnecessary barriers. One of the many adverse effects of the Bill is that it makes it much easier and without barriers for overseas citizens to vote but more difficult for domestic citizens to vote. That is very odd, not entirely democratic and undesirable.
For those and other reasons, and on matters of constitutional principle, which the revising House should have particular concern for, we will vote for both amendments.
My Lords, in his opening remarks, the Minister talked about the post-legislative scrutiny that is going to be on the face of the Bill and said that this would include reviewing and monitoring further forms of acceptable ID. He mentioned that the Bill includes the provision to add further acceptable forms. We welcome that. I hold the noble Lord, Lord Willetts, in the highest regard and thank him for pressing the Government in his previous amendment on the importance of furthering the number of IDs that can be used.
Having said all that, we believe, as the noble Lord, Lord Rennard, said in introducing his amendment, that the Government have simply got it wrong on requiring voter ID to be presented at polling stations. We are disappointed and unhappy that there has been absolutely no movement whatever from the Government on this and that they have not wished to include any further accepted forms of ID in the Bill. If the Bill moves forward on ID as it stands, will the Minister provide assurances as to how the requirements for photo voter ID will be introduced, how local government will be supported, and what mitigations will be put in place to ensure that no elector will be disfranchised as a result of the Bill?
We very much welcome the amendments in the name of the noble and learned Lord, Lord Judge, on the Electoral Commission. There is clear concern, right across this House, about the undermining of the independence of the Electoral Commission. I will not go into any detail because we need to move on. The noble and learned Lord clearly laid out why there are still deep concerns in this House. The small amendments that he has offered would resolve these issues and greatly strengthen the Bill before it reaches the statute book. We agree wholeheartedly with what the noble and learned Lord, Lord Judge, is trying to achieve and support his decision to ask the other place to think once again on what is a matter of extreme constitutional importance.
My Lords, for the convenience of the House—I know it is late and I have made my arguments and placed them before your Lordships—but I was asked a couple of specific questions.
In response to the queries of the noble Baroness, Lady Lister, there has been correspondence with her and officials through the list of organisations that we consulted. We have affirmed that there is and will be ongoing consultation as part of the implementation programme. I can certainly say in the House that we will undertake to continue to consult the organisations that have been discussed as we go forward. I can give her that assurance.
One thing raised in the debate was that the noble Lord, Lord Carlile of Berriew, said that we were doing this because of Prorogation. That was something injected into the debate by another Member of your Lordships’ House. I remain at the disposal of your Lordships. If noble Lords wish to be here again and again on this matter, I will rise to respond. The matter referred to is immaterial.
However, the noble Lord, Lord Carlile, also asked whether I could go and consult colleagues in the other place. Because of the exquisite courtesy of the noble and learned Lord, Lord Judge, the Government had been advised of what he was proposing. When I said to your Lordships that these proposals would not be acceptable to the Government, and potentially, perhaps your Lordships might consider, to the other place, that was not off the cuff; it was an advised response. That is the advised position from me at the Dispatch Box, and should these additional amendments be sent back, I would not anticipate that the short passage of time would alter that advised position.
It is a matter for your Lordships to decide whether you wish to pursue things further. I believe, in all humility, that with the amendments laid by my colleagues in the other place—which the noble and learned Lord has, with his utter civility, accepted—improvements have been made to the position in the Bill. On balance, given what I have said about the Government’s position on this proposition and given the offer on the table, in effect, from the Government in the Commons’ proposals, and given the many changes and improvements that have been made—to the noble Baroness opposite I say that we will of course keep the House informed on the vital measures that we need to take to ensure that people are fully informed—and having listened carefully to another brilliant speech of advocacy by the noble and learned Lord, Lord Judge, the judgment ultimately to be made by your Lordships’ House is whether it is appropriate to continue pursuing these matters for a further stage. I respectfully submit that, given that the Government are not likely to—indeed will not—accept the proposals that have been put forward, it may be to the convenience of all that that is accepted. It is of course absolutely within the right of your Lordships to vote and decide as you wish, but I thought it was important that the House should understand the likely position and the Government’s view of these proposals.
My Lords, I had no doubt whatever that I would ask the House to consider its views and to agree to the Motion in my name. I regret to say this but, having heard the last few observations by the Minister, I am encouraged to make sure that, if this becomes part of the law without the amendments that are included in this Motion, it will be the responsibility of those in the other place who voted for it. Therefore, I respectfully ask the House to agree to my Motion.
Motion A agreed.
86A: Because the Commons consider the requirement to provide adequate photographic identification to be the most effective means of securing the integrity of the electoral system.
86B: Page 79, line 44, at end insert—
“(1HA) In this rule a “specified document” also means an official poll card issued by the returning officer for the election at which the voter intends to vote.””
Motion B agreed.
The following Statement was made in the House of Commons on Monday 25 April.
“It is 61 days since Russia invaded Ukraine, and 74 days since my Russian counterpart assured me that the Russian army would not be invading. As the invasion approaches its ninth week, I want to update the House on the current situation and the steps that we are taking to further our support for the Ukrainian people.
It is our assessment that approximately 15,000 Russian personnel have been killed during their offensive. Alongside the death toll are the equipment losses. A number of sources suggest that, to date, over 2,000 armoured vehicles have been destroyed or captured. That includes at least 530 tanks, 530 armoured personnel carriers, and 560 infantry fighting vehicles. Russia has also lost more than 60 helicopters and fighter jets. The offensive that was supposed to take a maximum of a week has now taken weeks. Last week Russia admitted that the Slava-class cruiser “Moskva” had sunk. That is the second key naval asset that the Russians have lost since invading, and its loss has significantly weakened their ability to bring their maritime assets to bear from the Black Sea.
As I said in my last Statement, Russia has so far failed in nearly every one of its objectives. In recognition of that failure, the Russian high command has regrouped, reinforced and changed its focus to securing the Donetsk and Luhansk oblasts. A failure of the Russia Ministry of Defence command and control at all levels has meant that it has now appointed one overall commander, General Dvornikov. At the start of this conflict, Russia had committed more than 120 battalion tactical groups, approximately 65% of its entire ground combat strength. According to our current assessment, about 25% of those have been rendered not combat-effective.
Ukraine is an inspiration to us all. Its brave people have never stopped fighting for their lands. They have endured indiscriminate bombardment, war crimes and overwhelming military aggression, but they have stood firm, galvanised the international community, and beaten back the army of Russia in the north and the north-east.
We anticipate that this next phase of the invasion will be an attempt by Russia to occupy further the Donbass and connect with Crimea via Mariupol. It is therefore urgent that we in the international community ensure that Ukraine gets the aid and weapons that it needs so much.
As Defence Secretary, I have ensured that at each step of the way the UK’s support is tailored to the anticipated actions of Russia. To date we have provided more than 5,000 anti-tank missiles, five air defence systems with more than 100 missiles, 1,360 anti-structure munitions, and 4.5 tonnes of plastic explosive. On 9 March, in response to indiscriminate bombing from the air and escalation by President Putin’s forces, I announced that the UK would supply Starstreak high-velocity and low-velocity anti-air missiles. I am now able to report that these have been in theatre for more than three weeks, and have been deployed and used by Ukrainian forces to defend themselves and their territory.
Over the recess, my ministerial team hosted a Ukrainian Government delegation at Salisbury plain training area to explore further equipment options. That was quickly followed by the Prime Minister’s announcement of a further £100 million-worth of high-grade military equipment, 120 armoured vehicles, sourcing anti-ship missile systems, and high-tech loitering munitions for precision strikes.
However, as we can see from Ukrainian requests, more still needs to be done. For that reason, I can now announce to the House that we shall be gifting a small number of armoured vehicles fitted with launchers for those anti-air missiles. Those Stormer vehicles will give Ukrainian forces enhanced short-range anti-air capabilities, day and night. Since my last Statement, more countries have answered the call and more have stepped up to support. The Czech Republic has supplied T-72 tanks and BMP fighting vehicles, and Poland has also pledged T-72 tanks.
The quickest route to help Ukraine is with equipment and ammunition similar to what they already use. The UK Government obviously do not hold Russian equipment, but in order to help where we do not have such stock, we have enabled others to donate. Alongside Canada and Poland, the Royal Air Force has been busy moving equipment from donor countries to Ukraine. At the same time, if no donor can be found, we are purchasing equipment from the open market. On 31 March, I held my second international donor conference, with an increase in the number of countries involved to 35, including representatives from the European Union and NATO. So far these efforts have yielded some 2.5 million items of equipment, worth more than £1.5 billion.
The next three weeks are key. Ukraine needs more long-range artillery and ammunition, and both Russian and NATO calibre types to accompany them. It also seeks anti-ship missiles to counter Russian ships that are able to bombard Ukrainian cities. It is therefore important to say that, if possible, the UK will seek to enable or supply such weapons. I shall keep the House and Members on each Front Bench up to date as we proceed.
The MoD is working day and night, alongside the US, Canada and the EU, to support continued logistical supplies, but not all the aid is lethal. We have also sent significant quantities of non-lethal equipment to Ukraine. To date, we have sent more than 90,000 ration packs, more than 10 pallets of medical equipment, more than 3,000 pieces of body armour, nearly 77,000 helmets, 3,000 pairs of boots and much more, including communications equipment and ear defence.
On top of our military aid to Ukraine, we contribute to strengthening NATO’s collective security, both for the immediate challenge and for the long term. We have temporarily doubled the number of defensive personnel in Estonia. We have sent military personnel to support Lithuanian intelligence, resilience and reconnaissance efforts. We have deployed hundreds of Royal Marines to Poland, and sent offshore vessels and Navy destroyers to the eastern Mediterranean. We have also increased our presence in the skies over south-eastern Europe with four additional Typhoons based in Romania. That means that we now have a full squadron of RAF fighter jets in southern Europe, ready to support NATO tasking. As the Prime Minister announced on Friday, we are also offering a deployment of British Challenger 2 tanks to Poland, to bridge the gap between Poland donating tanks to Ukraine and their replacements arriving from a third country.
Looking further ahead, NATO is reassessing its posture and the UK is lea