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Lords Chamber

Volume 828: debated on Tuesday 21 March 2023

House of Lords

Tuesday 21 March 2023

Prayers—read by the Lord Bishop of Worcester.

Retirement of a Member: Viscount Falkland


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

European Structural and Investment Funds and the European Agricultural Guarantee Fund


Asked by

To ask His Majesty’s Government whether they have matched the funding previously provided by the European Union to the United Kingdom for the European Structural and Investment Funds and the European Agricultural Guarantee Fund in 2014–20; and if not, what is the extent of the shortfall.

The 2021 spending review announced the £2.6 billion UK shared prosperity fund, which improves on the European structural funds by empowering local places. The Government have also introduced farming and rural support worth a cumulative £3.7 billion annually over this Parliament and £33 million annually to support fisheries. This meets our 2019 manifesto commitments to maintain the levels of funding for farmers, fisheries and local economic growth in ways that are less bureaucratic and better targeted at local priorities.

I thank my noble friend for that partial reassurance, but I ask her to consider very carefully two elements. One is the farmers and members of agricultural communities, who are seeing an erosion of direct payments right now against a future sustainable farming incentive, and their deep concern to keep food production at a high level. The other is structural funding; many local authorities and regions in our country have had expectations for the new UK shared prosperity fund, but that is not coming in for some time. Can my noble friend give us further reassurances that these gaps will be filled?

My noble friend is right that, in both schemes, as the EU funding falls away, the UK funding comes in to replace it. We are seeking to do that in as smooth a way as possible. When it comes to support for farmers, we will continue to set out next steps on our environmental land management schemes, including the sustainable farming initiative, Countryside Stewardship and landscape recovery. On the shared prosperity fund, I reassure my noble friend that that fund is ramping up as EU funding falls away; its profile is faster than the way in which previous EU funding had been distributed.

My Lords, is the Minister aware that, when Wales first received structural funds from the European Union in 2000, that money was accepted by the Treasury in the UK and was not initially passed over to the beneficiaries, on the basis that they were already getting adequate money from the Treasury? It needed the intervention of Michel Barnier, the regional commissioner at that time, to get the Treasury to pass that money over. Will she give a guarantee that all money that is supposed to be equivalent to structural funds will be additional to the base spending for the areas that need it?

My Lords, the commitment that the Government have made is that the replacement of EU funding in each nation will meet the levels that they previously received. That is the commitment that we are delivering through the shared prosperity fund.

My Lords, Wales was a beneficiary of EU funding, as one of the poorest parts of the EU. The Welsh Government used a big slice of that funding to support university support partnerships across Wales and beyond. Because the new shared prosperity fund is administered by the UK Government and local authorities, there is no scope for universities to benefit in the same way, leaving a big hole in the amount available for university research, which is of course essential for levelling up. Will the Minister undertake that she will, with her colleagues, examine this problem and amend the UK’s funding mechanisms in order to solve the big hole that is appearing in university research funding? I declare an interest as chancellor of Cardiff University.

My Lords, the UK shared prosperity fund was designed to give local areas more discretion about how they spend that funding, aligned with local priorities. The UK Government provide significant support to our research sector, including through universities, but I am happy to take the noble Baroness’s feedback back to the Treasury.

My Lords, many social economy projects in Northern Ireland have relied on the European Social Fund for many years. Because that funding is due to end next week, they face a cliff edge, and they have not received any communication about funding allocations from the UK prosperity fund. To enable such social economy projects to continue with their good work, right across the communities, will the Minister ensure that this funding is made available to such projects that do such good work for the benefit of all?

I am aware that there are elements of funding from the European Social Fund in Northern Ireland that are due to come to an end at the end of this month. The Department for Levelling Up, Housing and Communities is administering a competition to replace that funding, and it received strong and positive responses from organisations across Northern Ireland seeking to deliver the aims of that programme. It is working very hard to make the final selection decisions as quickly as possible.

My Lords, does my noble friend accept that, for two categories of farmers—particularly hill farmers and tenant farmers—the level of income from the European funds is falling faster than initially expected? Will she work with Defra to ensure that their incomes are protected, and that they continue to produce the excellent food that they do for this country?

My Lords, I am sure that Defra will want to support the work of all farmers in our economy. My noble friend referred to two different categories of farmer: I know that my noble friend Lady Rock did an excellent review into tenant farmers, and a number of her recommendations have been taken forward. As Defra develops its programmes for the sustainable farming incentive and other replacements for EU funds, it will want to take into account the needs of different farmers across the UK.

My Lords, the Government made a very simple promise to the nations and regions of the UK, as well as to farmers: European funding would be matched pound for pound, and the mechanisms used to allocate funds would be simpler and fairer. Several years on, we are still waiting for the shared prosperity fund, environmental land management schemes and the UK Infrastructure Bank to get fully up and running and to hit the targets they have been set. How have the Government managed to get this so badly wrong? Why is progress so slow? Does she acknowledge that this is a difficult time for farmers and that the Government really need to crack on with it?

My Lords, as I have explained to the House, as European funding tails away, UK funding ramps up. For example, the shared prosperity fund will reach £1.5 billion a year by the end of the spending review period. For each of the sectors that the noble Baroness mentioned, we have provided clarity around the funding available for the full three years of the spending review and the mechanisms by which it will be distributed. I know that my colleagues in Defra continue to work hard with farmers to ensure the successful rollout of the replacement schemes.

My Lords, will the Minister acknowledge that, in recent times, Wales has lost a great foundation industry, which was mining? It provided tens of thousands of jobs and created some prosperity. In recent times, the once mighty steel industry of Wales has also all but disappeared—it has shrunk. We are more and more in need of investment. It was from the privy counsellors’ Bench over there that former Prime Minister Harold Macmillan, Viscount Macmillan, paid tribute to the miners and steelworkers who, in two world wars, defeated first the Kaiser and then Adolf Hitler. Wales now needs more and more government funding. In the lovely heartland of Wales—cefn gwlad—there is great distress among the farming communities. We are in need of investment.

My Lords, we had a discussion last week about the needs of Wales when it came to government funding. I told noble Lords then that we took into account the greater needs of Wales as calculated by the Holtham commission. Indeed, the funding that goes to Wales is over and above the assessed needs of Wales at the present time.

My Lords, will my noble friend the Minister confirm that we now have the advantage of being able to start with an identified need and then look for how to fund it rather than, as necessarily happened under the European funds, to start with a figure of money and then cast around for ways to spend it?

My noble friend is right that one of the opportunities that we have, having left the EU, is to look at programmes and make sure that they deliver against our policy priorities in the UK. That is exactly what we are seeking to do with our agricultural support schemes, for example, and we will continue to look for opportunities to do that.

International Higher Education Students


Asked by

To ask His Majesty’s Government what steps they have taken to arrest the decline in the United Kingdom’s global market share in international higher education students, which fell from 11 per cent in 2008 to eight per cent in 2019.

My Lords, in 2019 we published the International Education Strategy, which commits to hosting at least 600,000 international students per year by 2030. We have met that for two consecutive years, with nearly 680,000 studying here in 2021-22—a 37% increase on 2019 and almost double the number in 2008. While the international student market is becoming more competitive, the absolute number continues to grow, which is testament to the global reputation of our higher education sector.

My Lords, I thank the Minister for that reply. Three years ago, after the Government had removed all post-study work opportunities and rolled out the then Home Secretary’s policies of an unwelcoming environment, the UK slipped from second to third among English-speaking destinations for international students, with Australia overtaking us. The international education strategy to which she has referred was a response to the failure of those policies. While it has indeed reversed the deadline, Universities UK is now saying that new government proposals will restrict its ability to recruit international students. International students make a huge contribution to the economy, and surely the Government need to make more of promoting the UK as a welcoming and accessible destination for study and post study. Is it not the case that the Minister cannot deny that the Government’s policy of restricting student visas will have the opposite effect?

I really do not recognise what the noble Lord is saying. In 2019, we had 496,000 international students coming to this country; last year, there were 679,000. We have introduced a graduate route, which allows international students who are graduates to work in this country. We have increased our educational exports from this area from £19 billion to £25.6 billion and are heading to our target of £35 billion.

My Lords, does the Minister agree that we should have a diverse international student population in our universities, and is she not concerned that, of the 590,000 non-EU students, those from China, India and Nigeria dominate? Is she concerned about the 120,000 Chinese students and maybe their effect on security?

The Government absolutely agree that we need a diverse population of international students. The noble Lord mentions India and Nigeria; those were two of the countries that were specifically targeted in our International Education Strategy, and we are delighted to see how successful it has been.

My Lords, it is not just international students who are important to our universities but international research funding. In this context, does the Minister agree with the analysis that shows that, in the two oldest universities in this country, Oxford and Cambridge—I declare an interest as a retired Oxford professor—funding from the European Union has fallen from £130 million a year to £1 million a year? What is the Government’s assessment of the impact of this loss of £129 million a year, and what are the Government going to do about it?

I cannot argue with the noble Lord’s figures; I do not have them directly in front of me. Obviously, the balance in the relationship between government and universities, as autonomous institutions, is a delicate one, which both sides respect. He will be aware that we are delighted at the EU’s recent openness to working with us on the Horizon programme.

My Lords, would my noble friend care to reflect on the fact that in Scotland, which has St Andrews as the oldest university, the failure of the Scottish Government to have tuition fees for Scottish students has meant that there are no places for Scottish students, and the universities are having to raise the money by having more international students, at the expense of youngsters in Scotland?

I cannot really comment on the experience of youngsters in Scotland. I can say that, from our perspective in England, we believe that the presence of international students is a great source of soft power for the nation—both those in our universities here and the more than 500,000 students who study in British universities overseas.

I am deeply grateful to the House for its delayed courtesy.

It is surely lamentable that the number of university students from, particularly, European universities, has declined in department after department. I know from my experience how enormously enriching the Erasmus scheme, for example, was. It was invented by a fellow Welshman, Hywel Ceri Jones, and we are deeply grateful for it. Furthermore, as has been said, university students from elsewhere contribute enormously to the local economy in a variety of ways. Can we not try to reverse this trend by a very much more European-focused policy in our universities, in the hope of restoring what has been lost, perhaps never to return?

I am not sure that I agree entirely with the noble Lord. We are interested in a diversity of students from different parts of the world. I am not clear from the noble Lord’s question what is particular about European students. All our international students bring cultural diversity. We welcome students from Europe as we welcome students from all parts of the world, and all contribute enormously to our economic well-being.

My Lords, international students certainly enrich our academic community, but there is a danger that they can displace UK students, as the noble Lord, Lord Forsyth, said, because of the much higher fees that can be charged to them. This is a particular issue in veterinary science, in which I declare my interests. The core funding there from government is inadequate to fund the full course. Over 20% of the graduates that we produce in our British veterinary schools now are overseas students who are not destined to work in the UK workforce, at a time when we have a desperate shortage of vets. Can His Majesty’s Government please look at this issue?

Does the Minister agree that it is regrettable that universities, and particularly their international students, increasingly are seen by some vocal commentators as a convenient political battlefield rather than existing for the public good? Given reports that the Government are considering reforming migration rules for international students, can the Minister confirm whether a comprehensive impact assessment has been conducted around the proposed changes?

Quite obviously, in all areas of policy there are different aspects which we would consider in great detail—the economic impact, our international soft power, which I mentioned, and a number of others.

My Lords, my noble friend has already mentioned two of the target countries in the Government’s strategy—India and Nigeria. Can the Minister explain why Saudi Arabia is one of the five target countries and whether diversification could not go a little further? I refer to my interests as laid out in the register.

The Government are looking at the range of countries that we should prioritise beyond our initial focus. Saudi Arabia is obviously an important strategic partner for us on many levels.

My Lords, can we take it, following the Prime Minister’s brilliant negotiations over the Northern Ireland protocol, that we will now be participating fully in the Horizon project?

I think I have already addressed Horizon. My noble friend may be aware that the Secretary of State at DSIT met with the EU’s ambassador to the UK, Pedro Serrano, on 14 March and discussed collaboration in this area. We hope very much that this leads to more positive relationships regarding Horizon.

UK-EU: Revised Passenger Requirements


Asked by

To ask His Majesty’s Government, further to the decision by the European Commission to delay the introduction of the Entry/Exit System (EES) and European Travel Information and Authorisation System (ETIAS) until the end of 2023, what steps they intend to take to facilitate a smooth transition for travellers from the United Kingdom wishing to enter the European Union under the revised passenger requirements.

The Government are engaging both the European Commission and the French Government through officials holding routine technical meetings to understand and influence the implementation plans of the new system. This includes working with port owners and operators to understand and support their plans, in order to mitigate the impacts from EES and ETIAS at the border. However, ultimately it is for EU member states to implement the new system.

My Lords, the Minister’s final words were the ones used by the previous Home Secretary when appearing before your Lordships’ Justice and Home Affairs Committee. However, three weeks ago, in a Question about overcrowding and difficulties at the border, the Minister then said:

“our own electronic travel authorisation scheme … will accelerate the rate at which people can cross the border.” [Official Report, 28/2/23; col. 126]

What is the electronic scheme that was referred to three weeks ago, and would it not be sensible to have a scheme like the US ESTA scheme whereby people can have their fingerprints and documentation taken before travelling, rather than being held up at the border?

I find myself in the odd position of agreeing with the noble Lord, Lord Blunkett. Let me explain. The European Union has chosen to implement something called the European Entry/Exit System. This replaces passport stamping and requires non-EU nationals entering and exiting the Schengen area to provide a digital photograph and fingerprints on entry and exit. That is different from the electronic travel authorisation that the UK will be implementing in due course; that requires only a digital photograph. That is what will accelerate the rate at which people pass through passport controls into the UK, over which we have control. We have, sadly, no control over passport controls into the EU, and the EES will apply in that sphere.

My Lords, can the Minister explain why, when British people travel abroad, they are put in a queue with all the non-EU people but when they come home to Heathrow and elsewhere, Europeans and the British are in the same queue? Why are the Europeans not separate, and can that not be used as some sort of leverage?

I understand that the United Kingdom has always taken the view that the Europeans are our friends and we treat them in the same way we always did. That, sadly, has not been the approach adopted by some of our European and EEA colleagues.

My Lords, in his first Answer the Minister referred to working with port operators, but of course, the Channel Tunnel also deals with 10 million passengers a year and is a conduit for £140 billion of UK-EU trade. The operators of the Channel Tunnel calculate that 85% of their customers will have to pre-register and be subject to the necessary border controls. This is obviously a huge task, so can the noble Lord give us some details of his Government’s discussions with the EU? Are there any plans for a phased introduction, and to try to defer this whole huge change until after the Paris Olympics?

If I may, I will address the question in relation to the European Entry/Exit System. That is a separate procedure from the European Travel Information and Authorisation System; it is the ETIAS which will require people to log their intended visit online and to record some biological data. The European Commission intends that it will be implemented some six months after the operationalisation of the European Entry/Exit System, which is the photograph and fingerprints at the border system I discussed a moment ago. As the noble Baroness rightly observes, the Paris Olympics fall in June next year. On the latest indications from the European Commission, the implementation date has been postponed from the end of 2023 to an uncertain date. It may be that that date will be after the Paris Olympics, but we have no indication one way or the other.

My Lords, given that most tourists are travelling to mainland Europe, would it not have made sense for us to have the same system as the French, and speed the process up?

Clearly, the European Union and the Schengen area have set up their own system. It does not incorporate all members of the European Union; for example, the Republic of Ireland is not participating in EES or ETIAS. It makes sense for the UK, as a sovereign country, to have its own entry and exit system, as the United States does.

My Lords, the Minister has just said the system, whenever it is sorted out, will not now be delivered until after the 2024 Paris Olympics, which is over two years after it was supposed to be introduced. He will know that Eurostar is already saying there are real problems at St Pancras, Folkestone and Dover, and you only have to travel to know there are problems. What are the Government going to do to work with colleagues across Europe to try and sort this out before summer 2024?

My Lords, it is for the European Commission to decide when it implements its system. Our system will be ready probably before then, and implementation of the ETA is well advanced. But obviously, it is in everyone’s interest to work closely, and I am pleased to report that we have been very much doing so. Technical meetings are happening today between the United Kingdom and France regarding ongoing co-operation on questions of border control. Clearly, if we can reduce any impact, that assists both the UK and the EU member states.

My Lords, I am pleased that I have still got a maroon passport, a European passport, whereas my good friend, my noble friend Lord Watson, has got one of these, a blue passport, which I understand is printed and produced overseas. Why can we not produce our own passports any more?

I will not castigate the noble Lord for using an exhibit in the Chamber, but perhaps I can say this. We are delighted that passport covers—which are indeed, as I understand it—presently made in Europe, are obtained through a competitive tendering process. We use taxpayers’ money sensibly on this side of the House.

British Banking Sector


Asked by

To ask His Majesty’s Government what assessment they have made of the health of the British banking sector, following the challenges faced by overseas banks.

The UK Government welcome the steps taken to support financial stability on Sunday by the Swiss authorities relating to Credit Suisse. This follows the sale on 13 March of Silicon Valley Bank UK to HSBC after the resolution of its US parent. No other UK banks have been materially affected by these actions. The Governor of the Bank of England has confirmed that, in his view:

“The wider UK banking system remains safe, sound, and well capitalised.”

I thank the Minister for her reply. Many people watching the events unfold at the moment are concerned that they may lose their jobs or that there will be another financial hit to people at a time of high inflation. It is 10 years since we had the publication of the Parliamentary Commission on Banking Standards report. One of its conclusions was that the implicit taxpayer guarantee gives banks

“access to cheaper credit than would otherwise be available and creates incentives for them to take excessive risks.”

Do His Majesty’s Government have any steps to remove the implicit taxpayer guarantee? If not, what other incentives will His Majesty’s Government give to ensure that bankers act prudently?

My Lords, I emphasise to people at home the words of the Governor of the Bank of England that the UK banking system

“remains safe, sound, and well capitalised.”

The situation is different from 2008. Over the last 15 years, the Government and the Bank of England have taken robust action to strengthen the regulatory system and the resilience of the UK banking system. Specifically to the right reverend Prelate’s question, we have put in place a resolution regime to ensure that the failure of a bank can be managed in a way that minimises the impact on depositors, the financial system and public finances. I note that the resolution solution found for Silicon Valley Bank last week involved no UK taxpayer money whatever.

My Lords, is the implication of the right reverend Prelate’s question not a policy that would make banks far riskier than they already are? It is an extraordinary policy for him to advocate. I understand from the press that the Government were involved in the actions taken to save Credit Suisse and merge it with UBS, but a certain amount of disquiet has been caused by the preferential treatment that appears to have been given to shareholders rather than bondholders. Can she explain why this situation has arisen? Is the implication of that not rather disturbing for bondholders in other banks?

My Lords, the Swiss authorities were in the lead in the solution for Credit Suisse but my noble friend is right that, given the significant presence of Credit Suisse in the UK, the Treasury has remained in close contact with the Bank of England and the Swiss authorities in recent days. We welcome the comprehensive set of actions set out by the Swiss authorities to support financial stability. The UK authorities are going to take a number of actions to support that action, including PRA plans to approve a change in control application for the Credit Suisse subsidiaries in the UK. The resolution of the Credit Suisse situation was for the Swiss authorities, but the UK remains in close contact.

My Lords, we welcome the Bank of England’s swift action on SVB UK and its recent statements about the safe nature of the UK’s banking system. Nevertheless, events elsewhere, including those relating to Credit Suisse, are creating uncertainty in the global financial system. With this in mind, will the Treasury and the Bank of England commit to undertake a systemic review of the impact of interest rate rises and wider events in the system on our own financial sector and banking system?

My Lords, as with any major event, the Treasury will reflect on the lessons to be learned and how improvements can be made. I assure noble Lords that, each year, the Bank of England carries out a stress test of the major UK banks that incorporates a severe but plausible adverse economic scenario. The 2022 stress test scenario includes a rapid rise in interest rates, with the UK bank rate assumed to rise to 6% in early 2023. The results of that test are taken forward by the PRA in its supervision of the banks. The results will also be published this summer.

My Lords, an FT piece yesterday, headlined “How ‘competitive’ would you like your bank regulation now?”, says:

“The UK regulatory pendulum has been halted in mid-swing.”

Is that true? Credit Suisse had G-SIFI levels of capital and liquidity but was undone through bad culture. Are not the twin bastions of culture in the UK banks ring-fencing and the senior managers regime? Is it not also of massive cultural significance that it came from the Parliamentary Commission on Banking Standards? If the Government mess with those, where is the break on culture-based runs? What do they say when these practices come under lobbying pressures?

My Lords, I think the noble Baroness was asking about the Government’s proposed Edinburgh reforms package, which represents a move towards proportionate, simple regulation that works for the UK and will help to drive growth in the broader economy, supporting families and businesses across the country. In that approach, we recognise that the UK’s success as a financial services hub is built on agility, consistently high regulatory standards and openness. We will continue to take those principles forward in our reforms.

My Lords, I found the noble Baroness’s position on the current status of the banking system to exhibit extreme complacency. Is she aware that Credit Suisse was very highly capitalised and had in place all the financial anchors on which she relied in her Answer? Yet Credit Suisse has collapsed. Do the so-called Edinburgh reforms not actually come up to this: we are going to make the banking system more competitive, which equals taking greater risks?

My Lords, in the Financial Services and Markets Bill we are introducing a new objective for the regulators to look at competitiveness, but we are clear that that objective comes second in the hierarchy to the systems objectives around financial stability. We think that strikes the right balance. We are absolutely not complacent about the global banking system and the wider financial services sector, but it is important to recognise that we are in a different position from 2008 and that we are making further changes to ensure the resilience of our sector. For example, the Bank of England announced in December that, for the first time, it will run an exploratory stress-test exercise focused on non-bank financial institutions, recognising the increased risk posed there. We will continue to do what we need to do to ensure financial stability in this country.

Are we entitled to assume that the London branch of Credit Suisse is being properly regulated by the FCA and the Bank of England?

The noble Lord is right that the Credit Suisse subsidiary in the UK was regulated by the Prudential Regulation Authority and met its obligations under those regulations.

My Lords, we have had two questions addressing the dangers of the competitiveness agenda of the Edinburgh reforms, which the Green Party has consistently opposed. The other element is that the Government talk about boosting growth. The Minister suggested that was for the general economy, but it has been presented as a desire to grow the financial sector. Is there not, as demonstrated by recent events, a great risk of too much finance and too large a financial sector when what we need is a real-sized financial sector to serve the real economy?

I disagree with the noble Baroness. The UK’s financial services sector is one of our great strengths in and of itself and as an engine to power growth across the rest of our economy; that will remain the case under this Government.

My Lords, is my noble friend the Minister confident that the risk controls at the UK fintechs are adequate, given the current challenging conditions in the global financial markets?

My Lords, one thing that UK regulators have sought to do is ensure that the fintech sector is well regulated while continuing to innovate. We have been able to use things such as regulatory sandboxes to allow safe spaces for that innovation to be tested out, and we will continue to take that approach.

Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023

Criminal Justice Act 2003 (Home Detention Curfew) Order 2023

Motions to Approve

Moved by

That the draft Regulations and Order laid before the House on 23 January and 8 February be approved.

Relevant document: 30th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 20 March.

Motion agreed.

Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2023

Motion to Approve

Moved by

That the draft Rules laid before the House on 2 February be approved.

Relevant document: 30th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 20 March.

Motion agreed.

Security of Government Devices


The following Statement was made in the House of Commons on Thursday 16 March.

“As this week’s integrated review refresh demonstrated, the Government are strongly committed to bolstering our national security to meet the challenges of both today and tomorrow. We take the security of government devices very seriously, and we are constantly working to ensure that those devices remain as safe and secure as possible. As part of that effort, I recently commissioned a review by our cybersecurity experts to assess the risks posed by certain third-party apps on government devices and in particular the installation and use of TikTok. I know that there has been a lot of interest in this issue in the House, so I wanted to take this opportunity to update Members.

The review has concluded and it is clear that there could be a risk around how sensitive government data is accessed and used by certain platforms. As many colleagues will know, social media apps collect and store huge amounts of user data, including contacts, user content and geolocation data. On government devices, that data can be sensitive, and so today we are strengthening the security of those devices in two key respects.

First, we are moving to a system where government devices will only be able to access third-party apps that are on a pre-approved list. This system is already in place across many departments, and now it will be the rule across government. Secondly, we are also going to ban the use of TikTok on government devices. We will do so with immediate effect. This is a precautionary move—we know that there is already limited use of TikTok across government—but it is also good cyber hygiene.

Given the particular risk around government devices that may contain sensitive information, it is both prudent and proportionate to restrict the use of certain apps, particularly when it comes to apps where a large amount of data can be stored and accessed. This ban applies to government corporate devices within ministerial and non-ministerial departments, but it will not extend to personal devices for government employees or Ministers or the general public. That is because, as I have outlined, this is a proportionate move based on a specific risk with government devices. However, as is always the case, we advise individuals to practise caution online and to consider each social media platform’s data policies before downloading and using it. Of course, it is the case that Ministers receive regular security briefings and advice on protecting data on their personal devices and on mitigating cyber threats.

We will also be putting in place specific, very limited exemptions for the use of TikTok on government devices where it is required for operational reasons. Those exemptions will only be granted by security teams on a case-by-case basis, with ministerial clearance provided as appropriate. Overall, this approach aligns with action taken by allies, including the United States, Canada and the EU.

Our security must always come first. Today we are strengthening that security in a prudent and proportionate way, and I commend this Statement to the House.”

My Lords, I welcome the announcement of this ban but the question of why it has taken the United Kingdom so long to come to the same conclusions as many of our closest allies remains. As Angela Rayner noted in the Commons just weeks ago, the Secretary of State for Science, Innovation and Technology said that there was “no evidence” for a ban being brought forward. So what changed? Has there been a specific incident that prompted a shift in policy? I hope the Minister will be able to answer that. Oliver Dowden, the Chancellor of the Duchy of Lancaster, was honest that the previous list of banned apps did not apply to every government department. Can the Minister outline which departments were exempt and why?

A number of MPs asked about the rules for Ministers’ personal devices. Given recent revelations about the scale and use of WhatsApp and personal email across government, the Chancellor of Duchy of Lancaster said that any substantive government business should be done on official devices. Will new guidance on the use of personal devices and WhatsApp clearly define what is meant by “substantive government business” or will that be a matter of personal interpretation? We have already heard Grant Shapps appear to say that he wants to continue to use his own personal device and use “TikTok”.

I did ask someone earlier what TikTok is—I thought I was a modern person, but clearly not.

Can the Minister tell us whether this sort of interpretation is going to involve a change in the Ministerial Code? A Minister may not think sharing a draft Written Ministerial Statement on personal email qualifies either as substantive business or as a security risk, but the Home Secretary was of course temporarily forced out after sending such material to the wrong people. Oliver Dowden also talked about the granting of exemptions for operational reasons. Can the Minister provide an example of why a banned app may be deemed necessary? If she cannot today, could she write with such an example?

This debate takes place in the context of wider concerns about some forms of Chinese-made technology, including CCTV camera systems. On 2 February, my noble friend Lord Bassam of Brighton asked when the Government would commence important product security provisions under the Product Security and Telecommunications Infrastructure Act, which is intended to protect users of smart products such as CCTV doorbells. The noble Lord, Lord Parkinson of Whitley Bay, was unable to provide any date. I hope the Minister can do so today. The Government said they intended to bring the first half of that Act into force as soon as practicable, so why are we still waiting?

My Lords, as a long-standing deputy chair of the all-party China group, I welcomed the proportionate approach taken in the Government’s statements in the integrated review refresh about relations with China. In the face of the current human rights position in Xinjiang and the situation in Hong Kong, however, this should not change any time soon.

On these Benches, we are in strong agreement with those who consider that the Government could and should have been a great deal more strategic about relationships with sensitive Chinese suppliers—whether internet or data based, hardware or software related—in the run-up to this Statement. This is a one-off Statement about TikTok, a social media company. It would be good to see the assessment and the evidence of potential cybersecurity issues which the Government have not yet—as far as I know—produced.

However, when it comes to makers of surveillance cameras, as the noble Lord, Lord Collins, said, the Government appear far more reluctant to act. The Surveillance Camera Commissioner, Professor Fraser Sampson, has been very clear in his warnings, in particular about Hikvision and Dahua cameras, which, as far as we know, are used extensively in Xinjiang for surveillance purposes and pose security risks here, even when live facial recognition is not enabled.

Just last week, we saw Tesco lead the way in the private sector and order the removal of these cameras from its stores. The Government have simply ceased to install them. Why are they not directing their removal, particularly in police forces? Have they mapped exactly where on the government estate and in other spaces these cameras remain?

Regarding TikTok, why act so late when the EU and US, as the noble Lord, Lord Collins, mentioned, acted earlier? Presumably they have the same security information. When did the evidence emerge that has led to this ban? Will the Government publish the review by cybersecurity experts which assesses the risks posed by these third-party apps on government devices?

As the noble Lord, Lord Collins, also mentioned, why are private devices used by government Ministers not covered? I note that Oliver Dowden repeated that position last week. After all, we know there has been extensive use of private devices by Ministers, particularly —dare I say—among former Health Ministers. What assessment of this aspect has been made? Which government departments and public bodies are actually covered? What is the process for drawing up the promised approved list of apps? What criteria will be used?

As many said in the Commons, this looks like whack-a-mole; the Statement is no substitute for a coherent cross-government strategy. Why do the Government not now move, for instance, to include the capture of biometric data in the definition of “critical national infrastructure”? Questions have been raised recently about Chinese cellular internet of things modules—CIMs—which are imbedded in many devices. What is the Government’s approach to this? Are they even aware of what CIMs are?

Finally, if the Government are concerned about information being harvested by social media and other apps, why is the Data Protection and Digital Information Bill, now before the Commons, widening the circumstances in which research data can be used for commercial purposes? Is this not a typical example of this Government’s incoherence and lack of co-ordination on issues such as this?

My Lords, I welcome the welcome for the Statement made by my right honourable friend the Chancellor of the Duchy of Lancaster last week. By way of background, I should explain that the Government commissioned a review by our cybersecurity experts of the risks posed by third-party applications, including TikTok. As a result, the review concluded that we needed further security measures to protect the data.

There is obviously a limit to what I can say due to the sensitive nature of the Government’s work, but we are taking what we believe is proportionate, considered action to strengthen the security of government devices, and we are doing that in two ways. First, as is already the case in many departments—and that includes my own, the Cabinet Office—all government departments will now move to a system where only the third-party mobile apps available on their devices are those which have been pre-approved for inclusion on a departmental “allow list”.

Secondly, as a precautionary measure, all government departments are now required to take action to prohibit TikTok on their devices with immediate effect. It is a prudent, proportionate step, and more broadly, we are absolutely committed to bolstering national security, of which this is an example. As I explained to the House about 10 days ago, new guidance on the use of non-corporate communications will be issued very shortly and will bear on some of the questions that have been raised.

I was asked about TikTok on Ministers’ personal devices. The Secretary for State for Energy Security and Net Zero, who has been quoted, supports our policy and has been very clear that he has never used TikTok on his government devices. On personal devices, it is more of a personal choice. As I have explained before, all Ministers are carefully trained in security when they are appointed, and they have a briefing from time to time to keep that up to date.

To answer the question about exemptions, the business justification for having TikTok on government phones is to my mind very limited, but there are a small number of cases where it is necessary. Examples would include security and law enforcement. I know that some of my colleagues who are involved in security may need to use TikTok to make observations. Marketing would be another area—I think that the Secretary of State for Energy Security and Net Zero, Grant Shapps, comes into that category. We need to have common sense and proportionality. Departments will be able to make exemptions on a case-by-case basis through a departmental approval process, but with ministerial clearance as appropriate and risk mitigation in place.

Regarding Chinese security cameras, we have acted— we have discussed this in this House many times. We are also strengthening the powers in our Procurement Bill, and suppliers will be considered for addition to the debarment list on the basis of a rigorous and fair policy. This policy is under development, so it is too early to say, but regarding the action we have taken, we are now working with departments to make sure that Hikvision cameras are phased out.

The noble Lord, Lord Clement-Jones, talked on a more strategic level about China, about which we need to be sober and realistic. Obviously, we do not dispute the importance of China, but it has become more authoritarian at home and more assertive overseas, which is of concern to the UK—our policies need to reflect that. In the integrated review refresh, which was published last week and is well worth a read—the noble Lord referenced it—the Prime Minister set out clearly the overall direction across government for a consistent, coherent and robust approach to China, rooted in the UK’s national interest and aligned with our allies. A proper, and properly resourced, approach to security is an important part of that.

I repeat that the Prime Minister set up a new department, and the Budget included a substantial pledge—£3.5 billion by 2030—to support the Government’s ambitions to make the UK a scientific and technology superpower. This is one of the Prime Minister’s five priorities. So we should take the steps we need to take for security, but we also need to be careful to encourage the positives of new technology, whether that is AI, quantum technologies or engineering biology. We seek an important balance here.

My Lords, given the Minister’s previous professional connections with Tesco, she will have noticed that, last weekend, it announced that it will remove Hikvision cameras from its supermarkets—many of us applaud that decision. The Minister will also recall that, when the Procurement Bill left this place, it included an all-party amendment on Hikvision and surveillance cameras. Why did the Government then remove that amendment in Committee in another place? Will they support Sir Iain Duncan Smith, the former leader of the Conservative Party, in his attempts, and those of others from across the political divide in the House of Commons, to reinstate that amendment on Report? If not, does that not make everything that has been said to us in the House today contradictory?

I also ask the Minister to look at the evidence of Professor Fraser Sampson, referred to by the noble Lord, Lord Clement-Jones, which he gave to the Joint Committee on Human Rights at the beginning of this month. In answer to a question I asked, he said directly that, because of the facial recognition techniques that can be used, not just by these cameras but by many other pieces of technology, this poses a risk to personal privacy and is therefore liable to be in breach of the European Convention on Human Rights. Will the Minister please look at what was said to the Joint Committee?

My Lords, as a former executive of Tesco, obviously I was extremely interested to see this at the top of my in-tray, where other things it does often appear. On Chinese cameras, I have not seen the evidence to which the noble Lord refers, but I would be very interested to see it. But I assure him that discussions on the Procurement Bill continue in the other place, and my noble friend the Paymaster-General has been in discussions with Sir Iain Duncan Smith on this and other issues. Of course, the Procurement Bill will come back to this House in due course, and I look forward to engaging further with the noble Lord.

My Lords, I understand the Minister’s argument for proportionality with regard to this Statement. Does she have any advice for her non-ministerial colleagues in Parliament—those who sit on defence and intelligence committees—on how they should use their personal devices with TikTok?

I need to tread carefully here because, of course, security in Parliament is independent of government. So this is a matter for the parliamentary authorities. I understand the drift of the noble Lord’s question, and he can see what steps the Government have taken in relation to government devices. I am not sure I am allowed to put apps on my parliamentary device without the permission of the IT department. We stand ready to assist the parliamentary authorities if they would like us to share information on this important matter.

Further to that question, does the Minister accept that it is difficult for parliamentarians, and that it is a potentially unsatisfactory situation, if the message is essentially that it is our personal choice, but we are not—probably for very good reasons—privy to the sensitive security advice on which the Government have made their assessment? So will they encourage Parliament and the parliamentary authorities to allow a collective position to be reached on this?

I can certainly pass the concerns that have been expressed back to the security authorities in Parliament. I add that we have a Defending Democracy Taskforce, headed up by Tom Tugendhat, and the parliamentary authorities are involved in that because of the importance of sharing information, including sensitive security information, which it may not be possible to make public.

My Lords, I want to go back to the Biometrics and Surveillance Camera Commissioner, who through freedom of information requests has found out that 18 police forces across the country use external cameras that have equipment that have serious security and ethical concerns. He says that the use of such equipment by police forces needs to be seriously questioned. What action will the Government now take on a systemic approach across government to deal with those ethical and security issues, rather than just a pick-and-mix approach?

We have security and resilience frameworks which try to do just that, but obviously the police are independent, so the noble Lord’s question about the police goes beyond the areas in which I am expert today.

My Lords, I have been listening carefully to the Minister’s responses to the questions, and I am still not sure that I understand the logic for not including Ministers’ private phones in the ban, particularly as some of the security information will be common; for example, the location of the Minister concerned, and so on. If the argument is that the bit we are really worried about is that, if the security breach were on an official phone, it would include access to ministerial emails on government business, then the Minister really should have answered my noble friend’s question about whether the use of private phones for government business will be addressed in the review of the Ministerial Code. Can she do so now?

I do not have anything to say specifically on the review of the Ministerial Code; it is of course kept under review, and we now have a new ethics adviser. These sorts of matters are certainly being considered in the context of the new guidance on the use of non-corporate forms of communication, and I look forward to making a public statement on that in the not too distant future.

My Lords, the Minister said in reply to a question from my noble friend on the Front Bench that Ministers are given security advice. But that is useful only if they take notice of the advice they are given. How can we believe that they do that, when Boris Johnson, when he was Foreign Secretary, went to parties in Italy as a guest of Alexander Lebedev, and then later on promoted Alexander Lebedev’s son, Evgeny—the noble Lord, Lord Lebedev—to the House of Lords, against the advice of the security services? Surely that gives some evidence that he may well have been compromised.

I always resist commenting on individual cases. Of course, that comment does not necessarily take account of the steps we have made on briefing Ministers, including new Ministers, on security matters. The evolution of social media has been beneficial in many ways; I am sure that noble Lords use it for non-security matters, and we believe that that is perfectly all right on people’s private phones as a complement to the use of government phones for government business. We are very clear that, where people use private phones for government business because they cannot do anything else, it is important that substantive government exchanges are passed on to the private office or elsewhere, so that they are added to the public record. You have to have a balance in this system; we have to have rules which make sense and respect security but are also workable.

My Lords, I apologise for not being here at the beginning of the Statement; I was caught up with the Intelligence and Security Committee, where, of course, we have to hand our mobile phones in because we all know how dangerous mobiles are. I know from my past experience in this arena that, despite many lessons to people, people up to the level of Prime Minister make major errors in using private phones for material that they should not. Does the Minister not agree that we have to look at private phones as well as government phones to ensure that we have the right security that we ought to have? Whenever you speak on a mobile phone, you can guarantee that someone is trying to listen to it.

Those of us who have worked in the City and elsewhere know that you have to be very careful in what you say and write on phones. The point I am trying to make is that there is not necessarily always a security issue. The Statement today is about the proportionate action we have taken on TikTok and how we will manage that, and manage third-party apps, so that government use of apps is sensible and does not create security risks. I am limited in the extent to which I can share the security briefing on which these decisions are based. We think there is a balance here and that it is fine for Ministers to use their personal devices for other uses, such as their constituency work; it is important that they are able to do so in a way that conforms with the rules.

Viscount Thurso (LD): My Lords, what information, if any, has the Minister been given on what advice might be given to a reasonably intelligent citizen who has been listening to this debate as to what they should do on their own devices?

I think the choice is for them. I know the noble Viscount does not like that answer. We have brought in proportionate rules for government phones. There are many benefits to TikTok for certain groups. It obviously involves the use of people’s data, as do all the other apps we have on our phones, and some obviously are not necessarily linked to China. There is a risk/reward here; some people will continue to want to use TikTok and other apps, and I do not see why they should not be able to do so.

Lord Scriven (LD): My Lords, I want to come back to the answer that the Minister gave me. My question was not necessarily about the police; it was about the equipment that the police are using. They are using Chinese devices which have the same security risk, according to the Biometrics and Surveillance Camera Commissioner. My question is this. Across government, regardless of which public body is using this equipment that has that risk, what systematic approach are the Government taking, rather than dealing with this on a case-by-case basis?

I think two different points perhaps arise. One is about apps, and, as I have explained, we have given some central guidance and have also asked government departments to work to a list that they have to set up and on which they can consult the Government centrally. I think the noble Lord is going beyond apps into other areas involving security. I am very happy to take his point away and reflect further.

Seafarers’ Wages Bill [HL]

Commons Amendments

Motion on Amendments 1 to 64

Moved by Baroness Vere of Norbiton

That this House do agree with the Commons in their Amendments 1 to 64.

1: Page 1, line 8, at end insert—

“(2A) Regulations may specify matters that must or must not be taken into account in determining whether provision for the carriage of persons or goods between two places by ship on two or more journeys constitutes a single service.”

2: Page 2, line 3, leave out subsections (1) to (3) and insert—

“(1) Subsection (2) applies where a harbour authority has reasonable grounds to believe that ships providing a service to which this Act applies will enter, or have entered, its harbour on at least 120 occasions during a relevant year.

(2) The harbour authority must, within such period as is determined by regulations, request that the operator of the service provide the authority with a national minimum wage equivalence declaration (in the rest of this Act, an “equivalence declaration”) in respect of the service for the relevant year.

(3) The duty under subsection (2) is subject to any direction given by the Secretary of State under section 11(2)(a).

(3A) A harbour authority which fails to comply with subsection (2) is guilty of an offence and liable on summary conviction—

(a) in England and Wales, to a fine, or

(b) in Scotland and Northern Ireland, to a fine not exceeding level 5 on the standard scale.”

3: Page 2, line 16, at end insert—

“(za) as to the period within which equivalence declarations are to be provided;”

4: Page 2, line 17, leave out “national minimum wage”

5: Page 2, line 18, leave out “national minimum wage”

6: Page 2, line 19, at end insert—

“(4A) In this Act, “relevant year” means—

(a) the period of 12 months beginning with a date specified in regulations, and

(b) each successive period of 12 months.”

7: Page 2, line 20, leave out subsections (5) and (6)

8: Page 2, line 33, leave out subsection (1) and insert—

“(1) An equivalence declaration in respect of a service for a relevant year is a

declaration within any of subsections (1A) to (1D).

(1A) A declaration is within this subsection if it is provided before the beginning of the relevant year and it is to the effect that—

(a) in the relevant year there will be no non-qualifying seafarers working on ships providing the service, or

(b) in the relevant year non-qualifying seafarers working on ships providing the service will be remunerated in respect of their UK work in relation to the service at a rate that is equal to or exceeds the national minimum wage equivalent.

(1B) A declaration is within this subsection if it is provided during the relevant year and it is to the effect that—

(a) in what remains of the relevant year there will be no non-qualifying seafarers working on ships providing the service, or

(b) in what remains of the relevant year non-qualifying seafarers working on ships providing the service will be remunerated in respect of their UK work in relation to the service at a rate that is equal to or exceeds the national minimum wage equivalent.

(1C) A declaration is within this subsection if it is provided during the relevant year and it is to the effect that—

(a) in so much of the relevant year as has already occurred—

(i) there have been no non-qualifying seafarers working on ships providing the service, or

(ii) non-qualifying seafarers working on ships providing the service have been remunerated in respect of their UK work

in relation to the service at a rate that is equal to or exceeds the national minimum wage equivalent, and

(b) in what remains of the relevant year—

(i) there will be no non-qualifying seafarers working on ships providing the service, or

(ii) non-qualifying seafarers working on ships providing the service will be remunerated in respect of their UK work in relation to the service at a rate that is equal to or exceeds the national minimum wage equivalent.

(1D) A declaration is within this subsection if it is provided after the end of the relevant year and it is to the effect that—

(a) in the relevant year there were no non-qualifying seafarers working on ships providing the service, or

(b) in the relevant year non-qualifying seafarers working on ships providing the service were remunerated in respect of their UK work in relation to the service at a rate that is equal to or exceeds the national minimum wage equivalent.”

9: After Clause 4, insert the following new Clause—

“Offence of operating service inconsistently with declaration

(1) The operator of a service to which this Act applies is guilty of an offence if—

(a) the operator provides a harbour authority with an equivalence declaration in respect of the service for a relevant year, and (b) subsection (2), (3) or (4) applies.

(2) This subsection applies if the equivalence declaration is provided before the beginning of the relevant year and—

(a) the service is operated inconsistently with the declaration at the beginning of the relevant year, or

(b) at any later time during the relevant year the service starts to be operated inconsistently with the declaration and the operator fails to notify the harbour authority within four weeks of—

(i) the fact that the service has started to be so operated, and (ii) the time when it started to be so operated.

(3) This subsection applies if the equivalence declaration is provided during the relevant year and—

(a) at the time the declaration is provided the service is being operated inconsistently with the declaration, or

(b) at any later time during the relevant year the service starts to be operated inconsistently with the declaration and the operator fails to notify the harbour authority within four weeks of—

(i) the fact that the service has started to be so operated, and (ii) the time when it started to be so operated.

(4) This subsection applies if the equivalence declaration is provided during or after the end of the relevant year and it is false or misleading in so far as it concerns the operation of the service before the declaration was provided.

(5) A person guilty of an offence under this section is liable on summary conviction—

(a) in England and Wales, to a fine, or

(b) in Scotland and Northern Ireland, to a fine not exceeding level 5 on the standard scale.”

10: Page 3, line 22, after “is” insert “or at any time was”

11: Page 3, line 22, leave out “a national minimum wage” and insert “an”

12: Page 3, line 23, at end insert “, or

(b) establishing whether an equivalence declaration provided by the operator is false or misleading in so far as it concerns the operation of the service before the declaration was provided.”

13: Page 3, line 29, leave out from “breach” to end of line 30 and insert “the data protection legislation or the data protection laws of any country or territory outside the United Kingdom (but in determining whether providing information would cause the operator to breach that legislation or those laws, the requirement imposed by subsection (1) is to be taken into account)”

14: Page 3, line 32, after “manner” insert “, and within a period,”

15: Page 3, line 35, after “provide” insert “, in the manner and within the period specified under subsection (4),”

16: That Clause 5 be transferred to the end of line 36 on page 7

17: Page 4, line 7, after “is” insert “or at any time was”

18: Page 4, line 8, leave out “a national minimum wage” and insert “an”

19: Page 4, line 9, after “declaration,” insert—

“(aa) establishing whether an equivalence declaration is false or misleading in so far as it concerns the operation of a service before the declaration was provided,”

20: Page 4, line 9, leave out “or”

21: Page 4, line 10, at end insert—

“(c) establishing whether, or to what extent, a harbour authority is complying with its duties under this Act, or

(d) verifying any information provided by a harbour authority under section (Provision of information by harbour authorities)”

22: Page 4, line 21, leave out “declaration” and insert “statement”

23: That Clause 6 be transferred to the end of line 36 on page 7

24: After Clause 6, insert the following new Clause—

“Imposition of surcharges: failure to provide declaration in time

(1) This section applies if—

(a) a harbour authority requests the operator of a service to which this Act applies to provide the authority with an equivalence declaration in respect of the service for a relevant year, and

(b) the operator does not provide an equivalence declaration in the prescribed form and manner before the end of the prescribed period.

(2) If the prescribed period expires before the beginning of the relevant year, the harbour authority must impose a charge on the operator of the service in respect of each occasion when a ship providing the service enters its harbour between—

(a) the beginning of the relevant year, and

(b) whichever is the earlier of—

(i) the end of the relevant year, and

(ii) the time when the operator provides the authority with an equivalence declaration in respect of the service for the relevant year in the prescribed form and manner.

(3) If the prescribed period expires during the relevant year, the harbour authority must—

(a) impose a charge on the operator of the service in respect of each occasion when a ship providing the service entered its harbour between—

(i) the beginning of the relevant year, and

(ii) the end of the prescribed period, and

(b) impose a charge on the operator of the service in respect of each occasion when a ship providing the service enters its harbour between the expiry of the prescribed period and whichever is the earlier of—

(i) the end of the relevant year, and

(ii) the time when the operator provides the authority with an equivalence declaration in respect of the service for the relevant year in the prescribed form and manner.

(4) If the prescribed period expires after the end of the relevant year, the harbour authority must impose a charge on the operator of the service in respect of each occasion when a ship providing the service entered its harbour during the relevant year.

(5) But charges imposed by a harbour authority under subsection (3)(a) or (4) must be refunded if—

(a) at any time after the end of the prescribed period the operator provides the authority with an equivalence declaration in respect of the service for the relevant year in the prescribed form and manner, and

(b) the declaration is within section 4(1C) or (1D).

(6) For the purposes of this section, in relation to an equivalence declaration which an operator of a service is required to provide—

“prescribed period” means the period within which the operator is required to provide the declaration in accordance with regulations under section 3(4)(za);

“prescribed form and manner” means the form and manner in which the operator is required to provide the declaration in accordance with regulations under section 3(4)(a) and (b).”

25: Insert the following new Clause—

“Imposition of surcharges: in-year declaration that is prospective only

(1) This section applies if—

(a) a harbour authority requests the operator of a service to which this Act applies to provide the authority with an equivalence declaration in respect of the service for a relevant year,

(b) the operator provides the declaration during the relevant year in accordance with regulations under section 3(4), and

(c) the declaration is within subsection (1B) of section 4 (and not also within subsection (1C) of that section).

(2) The harbour authority must impose a charge on the operator of the service in respect of each occasion when a ship providing the service entered its harbour between the beginning of the relevant year and the time the declaration was provided.”

26: Insert the following new Clause—

“Imposition of surcharges: operating inconsistently with declaration

(1) Subsections (2) and (3) apply if—

(a) the operator of a service to which this Act applies has provided a harbour authority with an equivalence declaration in respect of the service for a relevant year, and

(b) either—

(i) the operator notifies the authority that at a specified time after the declaration was provided the service was, or started to be, operated inconsistently with the declaration, or

(ii) the authority has reasonable grounds to believe that, at a time after the declaration was provided, the service was, or started to be, operated inconsistently with the declaration.

(2) The harbour authority must impose a charge on the operator in respect of each occasion when a ship providing the service entered or enters the harbour between—

(a) the time mentioned in subsection (1)(b)(i) or (ii), and (b) the end of the relevant year.

(3) But if after the time mentioned in subsection (1)(b)(i) or (ii) the operator provides the harbour authority with a fresh equivalence declaration in respect of the service for the relevant year, the authority must not impose a charge under subsection (2) in respect of an occasion when a ship providing the service enters the harbour after the fresh declaration is provided (unless that subsection applies again by reference to that or a later declaration).

(4) Subsections (5) and (6) apply if—

(a) the operator of a service to which this Act applies has provided a harbour authority with an equivalence declaration in respect of the service for a relevant year, and

(b) the authority has reasonable grounds to believe that the declaration is false or misleading in so far as it concerns the operation of the service before the declaration was provided.

(5) The harbour authority must impose a charge on the operator in respect of each occasion when a ship providing the service entered or enters the harbour during the relevant year.

(6) But if the operator provides the harbour authority with a fresh equivalence declaration in respect of the service for the relevant year, the authority must not impose a charge under subsection (5) in respect of an occasion when a ship providing the service enters the harbour after the fresh declaration is provided (unless that subsection applies again by reference to that or a later declaration).”

27: Page 5, line 8, leave out subsections (1) to (4)

28: Page 5, line 32, leave out second “the” and insert “a”

29: Page 5, line 33, leave out “by the harbour authority in accordance with” and insert “in”

30: Page 5, line 33, leave out from “regulations” to end of line 35

31: Page 5, line 36, leave out subsection (6)

32: Page 5, line 37, at end insert—

“(6A) A duty to impose a surcharge is subject to any direction given by the Secretary of State under section 11(2)(a).

(6B) A harbour authority which fails to comply with a duty to impose a surcharge is guilty of an offence and liable on summary conviction—

(a) in England and Wales, to a fine, or

(b) in Scotland and Northern Ireland, to a fine not exceeding level 5 on the standard scale.”

33: Page 5, line 39, leave out paragraph (a)

34: Page 5, line 43, after “notification of” insert “the imposition of”

35: Page 5, line 44, at end insert—

“(7A) Regulations may make provision requiring a harbour authority that has imposed a surcharge to notify the Secretary of State if so much of the period within which the surcharge must be paid as is specified in the regulations has expired without the surcharge having been paid in accordance with regulations under subsection (7)(d).”

36: Page 6, line 3, leave out paragraph (a)

37: Page 6, line 6, at end insert—

“(10) In this Act, “surcharge” means a charge under section (Imposition of surcharges: failure to provide declaration in time), (Imposition of surcharges: in-year declaration that is prospective only) or (Imposition of surcharges: operating inconsistently with declaration).”

38: Page 6, line 8, leave out subsection (1) and insert—

“(1) Where a surcharge is imposed by a harbour authority, an interested party may object to the imposition of the surcharge or its amount.

(1A) An objection under this section to the amount of a surcharge may be made only on the grounds that the amount is not in accordance with the tariff of surcharges specified in regulations under section 7(1).”

39: Page 6, line 14, at end insert—

“(2A) Regulations must provide for a period within which objections under this section must be made.”

40: Page 6, line 17, leave out “matter objected to” and insert “imposition of the surcharge or its amount”

41: Page 6, line 36, leave out subsection (7)

42: Page 6, line, 41, leave out paragraphs (a) to (c) and insert—

“(a) to approve the imposition of the surcharge and its amount,

(b) to direct the harbour authority to revoke the imposition of the surcharge, or

(c) to direct the harbour authority to increase or decrease the amount of the surcharge so that it is in accordance with the tariff of surcharges specified in regulations under section 7(1).”

43: Page 7, line 19, leave out “may” and insert “must”

44: Page 7, line 23, leave out “and”

45: Page 7, line 24, leave out from “with” to end of line 25 and insert “regulations under section 7(7)(d), and

(c) the period within which the surcharge must be paid has expired.”

46: Page 7, line 27, at end insert—

“(2A) Subsection (1) does not apply in relation to any surcharge imposed under subsection (3)(a) or (4) of section (Imposition of surcharge: failure to provide declaration in time) which would, if paid, be required to be refunded under subsection (5) of that section.”

47: Page 7, line 28, leave out “may” and insert “must”

48: Page 7, line 32, at end insert—

“(3A) The duty under subsection (1) is also subject to any direction given by the Secretary of State under section 11(2)(a).”

49: Page 7, line 32, at end insert—

“(3B) A harbour authority which fails to comply with subsection (1) is guilty of an offence and liable on summary conviction—

(a) in England and Wales, to a fine, or

(b) in Scotland and Northern Ireland, to a fine not exceeding level 5 on the standard scale.”

50: After Clause 9, insert the following new Clause—

“Provision of information by harbour authorities

(1) The Secretary of State may by notice require a harbour authority to provide information to the Secretary of State for the purpose of establishing whether, or to what extent, the authority is complying with its duties under this Act.

(2) The information referred to in subsection (1) may in particular include information about—

(a) the services provided by ships that use the harbour,

(b) equivalence declarations requested by, or provided to, the harbour authority,

(c) surcharges imposed or received by the harbour authority, and

(d) decisions by the harbour authority to refuse or not refuse access to its harbour pursuant to section 13.

(3) Subsection (1) does not require a harbour authority to provide information to the extent that doing so would cause the authority to breach the data protection legislation (but in determining whether providing information would cause the authority to breach that legislation, the requirement imposed by subsection (1) is to be taken into account).

(4) A notice under subsection (1) may require the information to be provided in a manner, and within a period, specified in the notice.

(5) A harbour authority is guilty of an offence if it—

(a) fails to provide, in the manner and within the period specified under subsection (4), information required by the Secretary of State under this section,

(b) provides information so required that is false or misleading, or

(c) provides information so required that becomes false or misleading and fails to inform the Secretary of State within four weeks that it has become so.

(6) A harbour authority guilty of an offence under subsection (5) is liable on summary conviction—

(a) in England and Wales, to a fine, or

(b) in Scotland and Northern Ireland, to a fine not exceeding level 5 on the standard scale.”

51: Page 8, line 2, leave out subsection (1)

52: Page 8, line 6, leave out “exercise, or not to exercise, any of their powers under” and insert “not do anything they would otherwise be under a duty to do by reason of”

53: Page 8, line 7, leave out “exercise any of their powers” and insert “comply with any of their duties”

54: Page 8, line 8, leave out subsection (3)

55: Page 8, line 14, leave out “guidance and”

56: Page 8, line 16, leave out subsection (6)

57: Page 8, line 22, leave out from “conviction” to end of line and insert “— (a) in England and Wales, to a fine, or

(b) in Scotland and Northern Ireland, to a fine not exceeding level 5 on the standard scale.”

58: Page 8, line 33, after “Act” insert “, other than regulations under section 1(2A),”

59: Page 8, line 34, at end insert—

“(3A) The Secretary of State may not make a statutory instrument containing regulations under section 1(2A) unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.”

60: Page 9, line 6, leave out “direction” and insert “regulations”

61: Page 9, line 8, leave out subsection (4)

62: Page 9, line 13, at end insert—

““the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);

“equivalence declaration” has the meaning given by section 3(2);”

63: Page 9, line 25, at end insert—

““relevant year” has the meaning given by section 3(4A);”

64: Page 10, line 1, leave out subsection (6)

My Lords, I begin by expressing my gratitude to all noble Lords for their thoughtful consideration of this important legislation. As the Bill progressed through your Lordships’ House and the other place, the Government listened carefully to concerns raised by parliamentarians, and we engaged further with stakeholders. The amendments before your Lordships’ House today address many of the concerns raised and ensure that the Bill is effective and enforceable, simple to apply and delivers its intended benefits to seafarers.

The amendments to be considered today may appear numerous, but many are minor and technical. The amendments can be considered according to four themes: switching powers to duties; clarifying matters around equivalence declarations; switching the duty for setting a surcharge from the harbour authority to the Secretary of State; and, finally, changes to regulations, guidance and directions, most of which come from the previous three themes.

I turn to the first set of amendments, which change the previously discretionary powers of harbour authorities to request declarations, impose surcharges and refuse access to harbours to mandatory duties. Through continued engagement with port stakeholders, we were informed that harbour authorities would be unlikely to exercise their discretionary powers without being directed to do so. Therefore, this change from discretionary powers to duties will strengthen the Bill.

Harbour authorities will now be required to request an equivalence declaration from an operator, if they have reasonable grounds to believe that ships providing the service will call at the harbour at least 120 times in the relevant year. Reasonable grounds may include a service’s schedule in previous years or may arise from the normal communications that a harbour authority would have with operators using its ports. Furthermore, they must impose the surcharge in the circumstances specified in the Bill: where a declaration has not been provided in time; where a declaration relates to only part of a year; or where the harbour authority has reasonable grounds to believe that a service is being operated inconsistently with a declaration or that a declaration has been provided that is false or misleading. Where a surcharge has been imposed but not paid, harbour authorities must refuse access to their harbour.

We have also made several consequential changes to the Bill to reflect these new duties, including the power for the Secretary of State to require information from harbour authorities and to conduct inspections for the purpose of establishing whether, or to what extent, the authority is complying with its duties. There are new criminal offences where harbour authorities do not comply with their duties to request equivalence declarations, impose surcharges or refuse harbour access. It will also be an offence for a harbour authority to fail to provide information required by the Secretary of State in the manner and within the period specified, to provide false or misleading information, or to not inform the Secretary of State within four weeks if the information becomes false or misleading. A harbour authority that is guilty of an offence under the Bill will be liable on summary conviction to an unlimited fine in England and Wales, or a fine not exceeding level 5 on the standard scale in Scotland and Northern Ireland.

The second type of amendment relates to changes to the national minimum wage equivalence declarations, which I shall refer to for ease as “equivalence declarations”. We have made provision for equivalence declarations to relate to a fixed “relevant year” to be set out in regulations. The relevant year will be the same for all harbour authorities; this will provide the greater certainty that harbour authorities will require to comply with their new duties, reduce the administrative burden and make enforcement more straightforward. We have also clarified that a declaration can be provided before, during or after the year to which it relates and that declarations can relate to part of a year. This provides harbour authorities with more flexibility to request declarations in all possible circumstances when it becomes clear that a service is in scope.

Related to this matter is a new clause, introduced in place of the offence in what was Clause 3(5) and (6). The offences in this clause cater for the fact that a declaration may be provided before, during or after the year to which it relates. This includes introducing a new criminal offence where an operator provides a declaration which is false or misleading in so far as it concerns the operation of a service for a period in the past.

The third theme of these amendments is the change to the surcharge mechanism, on top of making their imposition a duty on harbour authorities. First, we have clarified the circumstances in which harbour authorities must impose surcharges to reflect the fact that equivalence declarations may be provided before, during or after the year to which they relate, as I have noted. Thus a harbour authority must impose surcharges where a declaration has not been provided in time; where a declaration relates to only part of a year; or where the harbour authority has reasonable grounds to believe that a service is being operated inconsistently with a declaration.

We have changed the duty for setting the rate of the surcharge from harbour authorities to the Secretary of State. I thank the noble Baroness, Lady Scott of Needham Market, for raising the issue earlier on in the passage of the Bill. This does not fundamentally change the compliance process, as ports will still have a role in imposing the surcharge, but they will not now set the rate. We will consult on the regulations that provide for the surcharge tariff to ensure that it is set at an appropriate rate.

We have also made changes to specify a time limit for objections to surcharges in regulations. We have removed the provision that harbour authorities can use funds from a surcharge for the discharge of their functions, meaning that from now on it must be used only for shore-based welfare facilities for seafarers. I am sure that noble Lords will agree that this is exactly right.

The noble Baroness, Lady Scott of Needham Market, also raised the issue of a possible conflict of interest where a harbour authority and an operator are owned by a connected company, causing a potential weakening of the financial disincentive that the surcharge is intended to be. We agreed that the Bill would be strengthened by making an amendment to address this potential conflict of interest.

Finally, I turn to amendments relating to regulation-making powers and powers to give statutory guidance and directions to harbour authorities. These are all consequential on the three previous themes of the amendments. For example, the power to give statutory guidance to harbour authorities has been removed from the Bill. Instead, the Government still intend to provide guidance to harbour authorities. That of course will be consulted on, but I make it clear that it will not be statutory guidance because the harbour authorities will have duties.

The amendments to the direction-making power have redefined the circumstances in which directions may be given to harbour authorities. Of course, now we do not need the power to direct harbour authorities to do something, because they now have a duty to do it. However, we need the power to direct them not to do something in the circumstances where we really do not want them to do that thing—that is just flipped over.

We have also included a power to make regulations by the affirmative procedure that will specify the factors that are or are not to be considered in determining whether ships on the same route are providing the same service. This is really to ensure that we do have the power if it becomes clear that operators are avoiding falling into the definition of a service by acting in a certain way. We do not believe that this power will be needed. However, it is there out of an abundance of caution should it become apparent, once the Act is in force, that operators are trying to get round it in certain ways. To ensure that it has the full scrutiny of your Lordships’ House, it will be subject to the affirmative procedure and, as I said, we do not see any circumstances in which that power will be used. But noble Lords did raise concerns during the passage of the Bill that operators might act in such a way, so we felt it prudent to include it on a just-in-case basis.

Those are all the amendments that we propose. I note that there are 64 of them. However, as I have said, most of them are minor and consequential within the major themes, and I hope I have reassured noble Lords that they will strengthen the Bill’s effectiveness. We listened to noble Lords and ensured that we engaged with stakeholders, and I believe that the Bill will now ensure that operators pay a fair wage to seafarers. I beg to move.

My Lords, I thank the Minister for bringing these amendments. I confess that when the Bill finished its passage through this House, I felt rather depressed that I had not been able to convince the Government that there were some fundamental flaws, but the changes today show that the Government were convinced. The problem, I think, was not quite understanding the nature of the relationship between harbour authorities and the vessel operators that use the harbour. Putting them in the position of trying very hard to get the business of operators and then leaving it up to them as to whether they take action against them just did not feel right, particularly in cases where the vessel operators and the harbour authority are under the same ownership—there is a direct conflict of interests. All these amendments that change powers into duties are a really welcome clarification, particularly the duty on the Secretary of State and not the harbour authority to set surcharges.

I have two questions for the Minister. On Amendment 36, spending funds on seafarers’ welfare facilities is a really smart idea, but has anything been considered to ensure that any money spent this way will be additional and will not simply replace money that the vessel operators or harbour authorities would have spent anyway? Finally, and in many ways most importantly, on Amendment 44 and the refusal of access to a port under certain circumstances, I know that the industry was concerned that this would not be lawful under international maritime regulations and would amount to impeding the right of passage. , Has the noble Baroness had any further discussions with the industry and has she been able to convince its members that they are on safe legal ground?

My Lords, I am very pleased to support the Motion before the House today in the name of the Minister. The action taken by P&O Ferries was a national scandal which should have marked a line in the sand, and any attempt to prevent a repeat of such events will always be welcome. On that basis, we have supported the limited measures in the Bill, but given the limited scope of this legislation, my noble friend Lord Tunnicliffe and others also called for broader measures beyond wages.

The wider issues, including roster patterns, wages and pensions, have yet to be addressed, and I hope the House will soon see further legislation to deliver these. It would also be helpful to know how those responsible for such exploitative practices can be brought to justice, and there are still serious health and safety concerns regarding the working conditions of seafarers. We also have to consider the much wider problem of fire and rehire—another favourite of exploitative employers—but I am sure that is for another Bill on another day.

However, as much as I am disappointed that many of these problems remain, I am pleased that the Government have now introduced amendments, as set out in detail by the Minister, on issues which required clarification. These new amendments, including in relation to tariffs, fines, surcharges, the information that a harbour authority can request from an operator and the introduction of relevant offences, each have our support. It is important as well that it is not the harbour authority that sets the charge, as this raised a number of issues. We agree that spending money on seafarers is appropriate and right, and I am interested in the Minister’s answer to the question from the noble Baroness, Lady Scott.

I will finish by expressing how grateful I am that the noble Baroness, Lady Vere of Norbiton, has engaged with the House throughout the passage of the Bill. I thank her for her time in a meeting to explain progress on the Bill on my second day as transport spokesperson, and for her patience in answering all my questions. I thank the noble Baroness, Lady Scott, for her involvement and contribution to the Bill. I thank the trade unions for continuing to champion the cause of seafarers and my noble friends on the Front Bench, particularly my noble friend Lord Tunnicliffe for his personal support and for bringing his encyclopaedic knowledge to bear during the passage of the Bill. I hope the House will share our support for the Bill.

My Lords, I am very grateful for the short contributions from both noble Baronesses today. I am relieved and grateful for the support of both Benches and I recognise the enormous amount of work that has gone on behind the scenes to bring the Bill to where it is today. The noble Baroness, Lady Scott, showed exemplary diligence as we took the Bill through, and I reassure her that I did this all the way through: sometimes, it just takes a little time to get the amendments drafted and through the system. Hence, they did not come back to your Lordships’ House; they went to the Commons, but I think we can take full credit for them.

On the noble Baroness’s detailed question about Amendment 36, on whether the amounts are additional, we absolutely expect that they would be. If needed, we would provide guidance in that area. We hope that there will not be significant additional amounts of money flowing into this area, because if there are, we will have failed in our endeavours; but I will certainly ensure that we provide appropriate guidance and that that money is additional to the money that is already spent on seafarers’ welfare at ports.

On refusal of access to ports, we are satisfied that the sector is aware of where refusal of access is appropriate when relating to whether or not an equivalence declaration is in place. The vessel operator will often know before it will have left the port because, often, many of these vessels are on short journeys. Of course, there will be circumstances, as there always are, when, for humanitarian or environmental reasons, one would provide access to port to any vessel, whether that would be one covered by this Bill or not.

On the broader measures raised by the noble Baroness, Lady Taylor—and I welcome her to transport; this was, I am sure, a baptism of fire going straight into this Bill—we are working at pace on all of the elements in the nine-point plan. We are looking at research on roster patterns. The seafarers’ charter is quite well developed, and I hope to have more on that soon. We have had discussions with our French counterparts: I have met the Minister twice, and we are due to have another meeting shortly to make progress with our neighbours in France to see what we can do to match up with the legislation that they have already placed in their Parliament. Of course, the noble Baroness will have seen that my colleagues in the Department for Business and Trade have launched their consultation on a code of practice on “fire and rehire”. Having said all that, I beg to move.

Motion agreed.

Higher Education (Freedom of Speech) Bill

Commons Reason

Motion A

Moved by

That this House do not insist on its Amendment 10, to which the Commons have disagreed for their Reason 10A.

10A: Because they consider civil proceedings to be an important means of obtaining a remedy for breach of duties imposed by the Bill.

My Lords, I am pleased to be back again to debate the Higher Education (Freedom of Speech) Bill. I must express my thanks once again for the time and thought your Lordships have given to this legislation. Members of the other place were particularly happy to see the amendment banning the misuse of non-disclosure agreements in cases of sexual abuse, harassment or misconduct, or other bullying or harassment, as proposed by the noble Lord, Lord Collins of Highbury. I am grateful to him for tabling this amendment as a very positive addition to the Bill.

As your Lordships know, the tort has been by far the most contentious issue during the passage of the Bill, but the Government remain firm that it is vital for it to be included. I recognise that the decision of the other place to reinstate the tort as it was originally drafted, without amendment—including the government amendments that were tabled in this House on Report—has been of concern to noble Lords. I am very aware of the strength of feeling in this House regarding the tort clause. I have spoken to many noble Lords individually and listened carefully to the points raised during debate. Ministers have also had useful discussions since the Bill returned to the other place last month and have given further consideration to what form the tort should take.

Before turning to the amendment to the Government’s Motion tabled by my noble friend Lord Willetts, I shall set out once more the Government’s rationale for the tort’s inclusion and offer clarity on issues raised in recent ministerial engagement with noble Lords. I believe that the possibility of bringing legal proceedings is critical. We have said many times in this Chamber that, where issues cannot be solved satisfactorily by other routes, there should be an option to go to court. It is right that cases can be brought, and the court has a range of remedies at its disposal to achieve redress where it is concluded that that is appropriate.

The tort is a crucial part of the package of measures brought forward by the Bill to strengthen the law that protects freedom of speech, with a robust enforcement mechanism as a solid foundation for the new duties. Indeed, it is the view of some in this House and indeed of numerous academics and other stakeholders that, if the tort were removed, the Bill would not have the necessary force to bring about the cultural and behavioural shift necessary to prevent further erosion of freedom of speech on campus.

However, I also want to be clear that including the tort in the Bill will not create a free-for-all with cases being brought to court without due consideration. Indeed, we expect the use of the tort to be relatively rare, as indeed do those stakeholders who strongly support its inclusion in the Bill. The vast majority of complaints will be successfully handled by providers themselves, through the free-to-use Office for Students complaints scheme or via the Office of the Independent Adjudicator for Higher Education. Examples of where the tort may be used include where complainants feel that their complaint has not been resolved by the OfS or OIA to their satisfaction. In addition, it will be useful in the rare cases where a provider fails to comply with a recommendation made by the OfS or OIA.

There has been a suggestion that the inclusion of the tort will undermine the position of the OfS, but in fact the Bill will give the OfS new wide-ranging powers to investigate when higher education providers, colleges and student unions have breached their freedom of speech duties. It creates the role of director for freedom of speech and academic freedom, who will oversee the new free speech functions of the OfS. The tort is intended to complement those new powers, providing a backstop mechanism on the rare occasions when it is needed. We expect that the courts will generally be slow to overrule the OfS, as the expert in the sector, and the OfS will find any court rulings helpful in developing guidance and considering future cases.

Some noble Lords have expressed concern about the potential implications of the tort for student unions, which they think will not have the wherewithal, including the financial resources, to defend themselves against threatened legal proceedings. It is of course true that by bringing student unions within scope of the Bill, and by giving them new duties, they will become liable for breaches, but what is reasonably practicable for a small student union will not be the same as what is reasonably practicable for a large provider, an issue that the OfS and the courts will have at the forefront of their considerations. Examples of what is reasonably practicable include maintaining a code of practice, having a room-booking policy that covers freedom of speech appropriately and providing training to those who have a relevant role.

Other noble Lords have expressed concerns about student societies, a matter on which I believe I can also offer reassurance. As I have said, student unions will have a duty to take reasonably practicable steps to secure freedom of speech. Importantly, student societies will not themselves be subject to the duties in the Bill. However, those who run societies will be subject to the codes of practice published by their provider, college or student union. A failure to comply could result in disciplinary measures.

Similarly, if a student society is affiliated to a student union, those who run it will need to comply with the student union’s rules. Therefore, if a society is holding an event on student union premises, the student union’s room booking policies will apply, as well as the code of practice. Measures should be in place to ensure the society is aware of the rules that apply and that action can be taken if these rules are broken.

This point is crucial: a complainant would have no course of action against individual students or a student society. Although they may consider whether they are able to bring a complaint against a student union, the burden of proof will be on them to show that the student union has breached its duty to take reasonably practicable steps.

I also wish to address the point that some noble Lords have raised about the potential for the tort to create a paradoxical chilling effect, with providers, colleges and student unions avoiding holding controversial speaker events for fear of litigation. I want to be clear: the best way to avoid litigation will be not to cancel events but to take reasonably practicable steps to ensure that events can take place. There are provisions in the Bill that are intended to encourage a culture change on our university campuses, including a duty on providers and colleges to promote the importance of freedom of speech. A blanket policy of vetting all invitations and deliberately avoiding inviting any controversial speaker could itself constitute a breach of the duties under the Bill.

Finally, I turn to the amendment to the Government’s Motion, tabled by my noble friend Lord Willetts, which replicates amendments tabled by the Government on Report in the Lords. This House, carrying out its important constitutional function, opted to send a clear message to the other place that it should think again regarding the tort provisions. The other place, having thought again, has returned an equally clear message to this House as to the strength of its feeling that the tort should remain in the Bill. I note that, to emphasise that, it was willing to reinsert it without the government amendments tabled on Report in the Lords. In the light of that strong view, I hope the House will acknowledge that action by the other place and instead seek consensus on an outcome that rightly recognises that the tort should be retained but with some sensible amendments to clarify and reassure in relation to the implementation of the regime.

Indeed, I thank my noble friend Lord Willetts for his pragmatic engagement on this issue, particularly in his acknowledgement that the tort has a role to play in the new statutory regime. The Government take the view of the House seriously and therefore support this amendment to the Motion, assuming that it is moved, and I hope that other noble Lords will do so as well.

The amendments provide an opportunity to give clarity about how the tort will operate in practice. Our intention has always been that the tort should be used as a last resort, with the majority of complainants likely to rely on the free-to-use complaints schemes. Similarly, only those who have suffered loss should be able to bring a claim.

When the Government tabled those amendments back in November 2022, four months ago, the prevailing view from the sector and stakeholders was that they offered a good compromise. However, since then the issue has grown in importance, and controversy about the application of the tort has sharpened. It is only right that I share with noble Lords the concerns expressed to Ministers since this issue was last debated in this House, particularly from those the Bill is most designed to protect. In conversations with academics, we have heard serious concern that their freedom of speech is being quietly curtailed.

Given the strength of feeling from those who are genuinely concerned that their jobs are on the line and academic freedom is under attack, I have to be clear with noble Lords that this concern may well be reflected in a move in the other place to amend the Bill still further. I cannot presume to encroach on conversations or proceedings in the other place, but in that event it is only right that I commit the Government further to explore possible opportunities to achieve consensus in the Commons stages. I am therefore content to say that the Government support these amendments. But given that those academics are at the forefront of our minds, I am conscious that this matter may not yet be finally settled, should your Lordships agree to my noble friend’s amendments.

I hope that, alongside the assurances I have given today, noble Lords are persuaded that the tort is a vital legal mechanism that is necessary if we are to ensure that our world-class universities are the home of plural debate. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

At end insert “and do propose the following amendments to the words so restored to the Bill—

10B: Page 6, line 22, after “A1” insert “that causes the person to sustain loss”

10C: Page 6, line 25, after “A1” insert “that causes the person to sustain loss”

10D: Page 6, line 27, after “A5” insert “that causes the person to sustain loss”

10E: Page 6, line 27, at end insert—

“(2) A person may bring proceedings under subsection (1) only if—

(a) the person has brought a complaint relating to the same subject matter as the proceedings under a relevant complaints scheme, and

(b) a decision has been made under that scheme as to the extent to which the complaint was justified.

(3) Each of the following is a “relevant complaints scheme”—

(a) the scheme provided by virtue of Schedule 6A (the free speech complaints scheme), and

(b) the scheme for the review of qualifying complaints (within the meaning of section 12 of the Higher Education Act 2004) that is provided by the designated operator (within the meaning of section 13(5)(b) of that Act).””

My Lords, I declare my interest as a visiting professor at King’s College London and an honorary fellow of Nuffield College, Oxford.

I warmly welcome the Minister’s assurances about how this legislation will work. I particularly welcome his commitment, and that of other Members of this House, to support the amendments in my name. These amendments bear a striking resemblance to amendments the Minister himself tabled, which we debated on 7 December. It is evidence of his common sense and wisdom that he is supporting them now, as he did then.

I assure him that across the House, after many hours of debating this important legislation, there is shared agreement that there is a problem. Nobody is denying that there are egregious and appalling examples in which universities and students unions are not the safe spaces for free speech that we wish them to be. Sometimes people believe that they should somehow be a safe space from free speech, which is not what universities stand for.

There is also very strong support across the House for the Office for Students as a tough and effective regulator. I pay tribute particularly to my noble friend Lord Johnson of Marylebone, who early on intervened to make clear that it was the body that should have the crucial role in this case.

The issue has been about tort. As we were told, this is not the first time that Clause 4 has been the most controversial feature of a piece of legislation. Many of us had a real concern that the threat of civil litigation could have a chilling effect, threatening the activities of student unions in particular. That is why your Lordships’ House voted to remove Clause 4 from the Bill. The other place has reinstated it and we have to understand and respect that vote, but these amendments are a sensible compromise to clarify the circumstances in which the tort provision would apply. The litigant has to have sustained a loss and have exhausted other complaints procedures, notably the enhanced powers that this legislation gives to the Office for Students. I am very pleased that the Government have reiterated their support for those principles and recognised that this is how this tort provision should operate—very much as a last resort.

What these amendments would do is ensure that Clause 4 is very sensibly targeted. They would make it workable. In particular, they would remove the risk, which many of us on all sides of this House are concerned about, that a university, or even more so a student union, could find itself on day one receiving an investigation letter from the OfS and on day two receiving a lawyer’s letter threatening it with litigation. We thought that that was not a sensible or reasonable way to proceed, and indeed would obstruct the effective discharge of a regulatory function by the OfS.

I welcome the assurances that the Minister has given. The debate we have had on this legislation has been an excellent example of the role of your Lordships’ House as a revising Chamber. It has also reminded us of the shared values we have: a commitment to freedom of speech and diversity of opinion.

My Lords, I confess to be rather miffed by the Government’s acceptance of the amendment of the noble Lord, Lord Willetts, because it deprives me of the ability to make the fire and brimstone remarks that I had planned to make. However, I certainly welcome the Government’s reaction to the excellent amendments of the noble Lord, Lord Willetts, and can as a result be quite brief.

On Clause 4, we have really come full circle and are back where we started. As has been pointed out, in our debates Clause 4 was subjected to many serious criticisms by noble Lords across the House, and I will not repeat them. In the face of those criticisms, at Report in this House the Government accepted a clarifying amendment from the noble and learned Lord, Lord Etherton, which incorporated a reference to damages in Clause 4. In a further attempt to meet these criticisms, the Government brought forward their own amendment, as the Minister has pointed out, which gave priority to the regulatory regime and deferred the ability of a private claimant to deploy Clause 4, pending those regulatory procedures being exhausted.

I respectfully urge your Lordships to support the amendments put forward by the noble Lord, Lord Willetts. As to those amendments, the loss point would clarify and emphasise the need for proof of damage as a condition for making a Clause 4 claim. It would deter some frivolous claims, and to that extent would be a valuable amendment.

The priority point in the amendment of the noble Lord, Lord Willetts, is perhaps rather more important. The OfS will have extensive regulatory powers for dealing with an offending student union. Clause 7 would amend the Higher Education and Research Act 2017, whereby the OfS would be obliged to monitor student unions’ performance of their new duties. Importantly, the OfS would also be empowered to impose a financial penalty on a student union and seek an injunction in court. Common sense suggests that the Bill would be significantly improved if priority were given to the regulator and claimants were not able to invoke the private law cause of action until the regulatory function had been performed and completed. This was the Government’s view just a few weeks ago, and I am absolutely delighted that it still is their view—at least in this House.

If I may, I want to briefly draw attention to the email from Ministers which arrived while we were in the Chamber but before this debate began. I will reference the end of the sixth paragraph, which is a point to which the noble Lord adverted when he opened this debate just a few minutes ago. The letter says: “Those affected by the Bill are at the forefront of our minds and it is only right that we reflect that the Government may wish to explore further opportunities to achieve consensus when it returns to the Commons”. The only point I want to make about that is this. The implication of what is said there, and of what the Minister said at the Dispatch Box, is that there may be amendments in the other place that will take away the amendment that I hope we are now going to support, possibly without even a Division. My concern is this: I believe that that would not be a sensible thing for the other place to do.

I would urge one point: if there are felt concerns in the other place that are not satisfied by these amendments, a more appropriate route to be undertaken would be directed towards the regulators, rather than to diminish the quality of the amendment that I hope we are about to make. The regulators are very powerful—they have strong powers in the statute and in this Bill. In my view, the correct party to be concerned with in dealing with the kinds of concerns that trouble everybody in the story, and the proper starting position, is the regulator. That is what the regulator is there for. It would not be right, in my view, to undermine the quality of the amendments that have been put forward in respect of this provision without first facing the possibility that the regulator ought actually, if I may be blunt about it, to pull its finger out.

My Lords, I was all ready to welcome the restoration of the original Lords amendment to this Bill by the noble Earl, Lord Howe. Previously, I was despondent that we had passed legislation with no teeth, which was potentially a lame duck law, so I was delighted with the reinstated, stronger statutory tort in the Bill that would mean staff and students would have a robust backstop that allowed the ability to sue in the civil courts for breach of their speech rights. In explaining the change, the Minister said he has spoken to many noble Lords. But I am rather taken with the words of the Under-Secretary of State for Children, Claire Coutinho, who noted that she had spoken to many leading academics and that they shared her belief that the tort was necessary to secure cultural change on campus, and that that is why she had introduced the amendment I was prepared to welcome. I can ask only what on earth has changed, other than that the Minister has spoken to noble Lords rather than to leading academics or students.

It is disappointing that we are now being asked to accept a fudge, in the form of the amendment from the noble Lord, Lord Willetts. I fear it will mean that the new, enhanced free speech duties will be viewed as more box-ticking by university managers and student union bureaucrats.

Perhaps I can share my own recent lived experience—to use the fashionable jargon—of being cancelled. I hope at least my remarks will be heard by those in the other, elected place when they consider this debate. Last year, I was delighted to be invited by the University of London’s Royal Holloway debating society to give a talk this February. It was a lovely invitation, from a student called Ollie, who wrote: “We would absolutely love for you to speak to the society about your interesting career, and to talk about the Academy of Ideas and the House of Lords to our keen crop of debaters.” Never one to miss a chance to meet and talk to a keen crop of debaters, I set a date firmly in my diary and I reorganised a number of clashes.

Unbeknown to me—though this has become routine these days for student societies—behind the scenes the debating society had to go through onerous and bureaucratic checks imposed by the student union on whether I would be given permission to speak. Student unions these days have created a veritable cottage industry in safeguarding checks, risk assessments, et cetera. It was a complete pain for the students and time-consuming, and with an undoubted chilling effect on inviting outside speakers. That is what this Bill set out to address, was it not?

Eventually, I was given a clean bill of health by the student union. Apparently, there was no evidence that I was a hatemonger or a threat. However, just a week before I was due to speak, the debating society cancelled. What happened? Once the event was advertised, the same student union bureaucrats claimed that six societies had raised concerns about me coming on to campus, the evidence for which was that I retweeted a clip from a comic on Netflix. Maia Jarvis, the president of the student union, wrote a menacing message to the debating society, stating:

“I hope that you can see that Claire Fox retweets and praises a video of Ricky Gervais being overtly transphobic. I wonder if you have thought about the impact of bringing a person who is an advocate for hate towards trans people and publicly ridicules them. And whether you are comfortable with the fact that that is the message your society is sending out to RHUL trans students.”

Beyond the slanderous accusations against me—of course I am not an advocate for hate towards trans people or anyone else—I was slightly miffed that my crime was retweeting Ricky Gervais. Is that it? Have they never listened to any of my speeches here in the Lords? But seriously, this email, and a lot more messages of its type from the student union, which is supposedly impartial when judging outside speakers’ political views, was used as a form of coercive control and pressure to badger the debating society committee to cancel my talk, based on the specious slur that I have a history of sustained hate speech.

The message to the debating society was clear: my presence on campus would cause trouble and damage the reputation of the debating society’s officers. Indeed, when Adam, the president of the debating society, emailed to cancel the event, he admitted:

“I’ve decided to cancel for the sake of the future of the society and its reputation on campus … It is the only option I have at this point to protect the committee and the society for the future.”

He had been through the mill at this point. But he explained, and this is key:

“After back and forth with the SU, it seems that they will find any way to make your visit onto campus an issue of student safety and wellbeing. I see it as nothing less than bullying.”

That is the point: the student union bullied a society into disinviting a speaker it wanted to listen to. This is not about me. Yes, okay, my freedom of speech was curtailed, but much more significantly, although the student union did not formally cancel the talk, its hostile reactions created a situation in which students who were keen to hear different opinions were denied the right to do so on a university campus.

Omar, a PPE student who was then speaker of the house at Royal Holloway’s debating society, explained that he and his fellow students had worked extremely hard in organising the event and followed every procedure possible, but after all that they were “basically strong-armed” to cancel the talk. He then declared:

“I am determined to fight this, as the principles of free speech are something I care about deeply.”

How gratifying that students do. He asked if I might have any suggestions for people to contact or actions to take. At present, if a student union acts unfairly the only recourse open to a student or society is to ask the university authorities to step in. But to be honest, in the case of RHUL, this would not have helped.

Indeed, one of the most dispiriting aspects of this sorry affair was the response of Royal Holloway’s principal, Professor Julie Sanders, who, in a reply to the Free Speech Union, which took up the case on behalf of me and Omar, effectively said, “Nothing to see here”—a real abdication of responsibility with an “all procedures were followed” response. She took at face value the student union’s claim that no pressure was applied to force the debating society to change its mind about the event, even claiming that the student union was

“ready to work with them to make the event happen safely”.

Can I just state here that I am not and never have been a threat to the safety of any student?

Interestingly, the principal stressed that she was aware of the very legislation that we are discussing today and assured the FSU that the university, working with the student union, had considered these requirements in detail. If she has studied this legislation in detail and her response is “Nothing to see here”, you might wonder whether this legislation will make any difference. If she thinks the law would cover her letter as a sufficient response, we need to harden up this legislation so that university managers go beyond “considering” and make academic freedom a real core value of the institution.

Why did the principal not seek out the debating society and talk to Omar, Olly or Adam? I invited a small delegation in here for tea and cake. We talked through the issue, and their frustration and anger were totally real. One young woman, who described herself as a trans ally, and always believed that cancel culture was an exaggerated, culture wars trope, told me that she knew I had bigoted views but that they were not that bad and at least I was tolerant. She came to see me and said that she was horrified at events. She said that she would have taken me on in the debate. It was a debate about belief; that was the very point of inviting me in the first place—that we would have a debate and a discussion.

This Bill will remedy some of the problems but it does not only compel student unions, for the first time, to secure freedom of speech. It also requires that those student unions adopt a code of practice setting out how speaking events are to be arranged; we have heard the details of that. If, as in this case, a student union exerts improper pressure to get an event cancelled, the students and speakers can complain to the appropriate regulator—as we have heard, the free speech champion—who will be equipped with appropriate expertise and enforcement powers.

For me, that threat of civil litigation reintroduced into the Bill by the Government in the other place is what was required as a deterrent. That would have helped to ensure that free speech was taken seriously by bureaucrats who run universities or student unions. It is disappointing to me that government Ministers here have folded, and under far less pressure than Royal Holloway’s debating society. I am opposed to the amendment. I hope that the other place will think again about us thinking again when it gets to consider the decisions taken today.

My Lords, what the noble Baroness, Lady Fox of Buckley, has just said emphasises the main point I wish to make: that this applies to students just as much as to academics. The whole idea of freedom of thought is really important. We are bringing up our children to think that they must curtail their thought. I have a daughter at university at the moment and that is certainly her experience. The atmosphere of not being allowed to discuss and talk about things is prevalent. The Bill is really important in making a difference to that. I will be very interested to see what Members in the other place think of the amendments we send down to them.

We should not think that this is happening just in universities. On 8 March I received, as other noble Lords might have, an email from the parliamentary security vetting department asking us to fill in and sign a form. It said that we must not share passwords, override or undermine security measures and sensible things like that. But it then went on to say that we must not be offensive or put the reputation of Parliament at risk. I do not know how to survive in this place without doing both those things; I imagine that applies to other noble Lords too. Our freedom of speech is now to be curtailed by a directive from parliamentary security vetting without—so far as I can see; I have contacted the authorities without getting any reply—any way in which noble Lords can be involved in that process. I am not sure who will take me to task for being offensive in this place, but I find offensive the idea that I should be asked to sign saying that I will not be.

My Lords, I am not sure that I am going to be offensive; I now feel that my presentation is lacking as a result. Let me at once declare an interest. I was the general secretary of the Association of University Teachers in times when the issue of—and necessity for—freedom of speech in universities was regarded as one of their paramount responsibilities.

I readily agree with the noble Lord, Lord Willetts, who said that that is fundamental to almost all of us who have been concerned with higher education. I appreciate what the Minister has said; this has been a very solid development. I also support the amendment the noble Lord, Lord Willetts, introduced, for much the same reasons as the noble Lord, Lord Grabiner.

I feel a sense of disappointment and sadness on behalf of the noble Baroness, Lady Fox. It is obviously never pleasant to be invited somewhere and then told you are not going to speak, but I urge her to get over it. The truth is that when you go into academic climates and start talking to academics, you are going to find—rather like with lawyers—that a large number will agree with you and a large number will disagree. They will tell you that with all the spitefulness, generosity and so on while they do it.

I have come across a lot of academics who want to make sure that the world of universities does not automatically become subsumed in a world in which people pursue litigation against one another, rather than try to resolve things through more sensible routes. It was bound to end in a reasonable compromise, and I think the Minister put that very fairly and very well.

In welcoming these developments, the academics who have bothered to get in touch with me have told me that the kind of change we are contemplating today is the kind they would find easiest to live with. They are more and more—probably in part because of the debates we have had—sympathetic and attentive to the problems that have been created by cancel culture. I used to cancel my own culture when I was a lecturer, largely by giving very erudite lectures on obscure mathematical problems. Very few people enjoyed them. There is only so much multiple regression you can hear about before you conclude that you should take yourself home because no one is going to be that interested, but it was what I was teaching.

That is why I say to the noble Baroness, Lady Fox, that of course some people will be uncharitable and malevolent, but it is something we can get past with a sensible compromise of the kind we have seen—particularly in the light of the reservations the noble Lord, Lord Grabiner, has about it.

To clarify, as I stated earlier—this really is important—I do not have a right to a platform and I do not care if people disagree with me. I do not mind if students invite me and then disinvite me. All I care about is if students are bullied into disinviting me. It is for the students that I made the speech, not for myself. Who cares about my feelings? They are of no relevance.

My point is that many academics and students have looked to this Bill and the amendment. The noble Lord, Lord Triesman, has talked to people who want the compromise. I have talked to people who think it is a fudge. Let Parliament decide—fair enough—but I do not think anyone can claim they have spoken to all the academics, and this is the only answer. I think that this is a cop out.

My Lords, I just say to the noble Baroness, Lady Fox, that strictly speaking there should not be any interventions at this stage of the Bill.

Because we are not having that kind of iterative debate, I will refrain from making the point that I am not saying that I spoke only to academics who took the same view I might take. I am just saying that if you speak to academics, you will hear as many views as the number of academics you speak to; that is in the nature of the business.

I welcome the process we have gone through because it has alerted people to a very significant problem. A few days ago in your Lordships’ House, I heard somebody say that trigger warnings were now being attached to reading lists of some of the great classics from the English oeuvre. I was just about to embark on a re-reading of Northanger Abbey. If anybody has any advice for me about dangerous pages that I should avoid, I should be extremely grateful to hear it, because I would hate suddenly to find my entire spiritual underpinnings removed while reading Jane Austen.

This debate will leave a legacy. It will make everybody more attentive to the risks to free speech and academic freedom, and I am not at all sad that we have gone through the process if that is the outcome.

My Lords, I am conscious that, as a Conservative Back-Bencher loyally supporting the Government in season and out, I am probably a Member of this House worthy of least consideration when it comes to discussing the contents of this Bill. Despite my having taken part at every stage in its progress so far, I think I am forgiven for being somewhat confused.

We started out with a proposal for a statutory tort, which I am going to call “hard tort”. I turned out to support it, not only out of loyalty but because I strongly believe in it. On Report, recognising that there were some concerns about it, I had the privilege to table an amendment that had previously been tabled in Committee by my noble friend Lord Sandhurst, which would have retained the tort but allowed a judge to stay proceedings and instruct mediation to take place. I thought that a good compromise that could have been accepted, and I am going to call that “middle tort”.

However, my noble friend the Minister pre-empted me to some extent by coming forward with a proposal which allowed the tort to be accessed only after every possible complaints procedure had been exhausted; we might call that “soft tort”. Your Lordships’ House voted for “sort tort”, and then went with the noble Lord, Lord Willetts, and voted to remove the clause all together in addition, which we can call “no tort”.

Today I have turned out loyally, because I am encouraged to do so, in order to vote for “hard tort”. Here I am, and with only half an hour to go I see that the noble Lord, Lord Willetts, has now moved to the “soft tort” position and I am expected to give my support to it. So this is not simply a question of “how do you manage your team?”—that is a minor consideration and purely a whipping matter—but of what it is we are actually saying to the world with these goings on.

The noble Lord, Lord Triesman, said that the important thing here is that the Bill sends a signal to universities. It does in my view send a signal to universities: that this Parliament and this Government are not as concerned about how universities conduct themselves to maintain freedom of speech, as a principle and as an activity, as the Government originally said they should be. That is clearly the signal it sends, and as I have said before in Committee, strong emphasis is being placed on the role of the regulator because regulators are subject, wherever they appear, to capture by those being regulated. That is very much why those who support this, and the university leaders, are very comfortable with it.

Like the noble Baroness, Lady Fox of Buckley, I note that in the various choices between “hard tort”, “mid tort”, “soft tort” and “no tort”, at the end of this debate we will still have no idea. My noble friend has said that when it returns to the Commons, as it must, there will be scope for further compromise. Who knows what is going to come back—“hard”, “mid”, “soft”, nothing? Anything could come back to us from the Commons because clearly, the Government do not know what they want to do about this.

I strongly suggest to noble Lords that not only have we misconducted ourselves, as far as the management of this is concerned, but we are sending a very poor signal. It is most regrettable that we will agree to the amendment in the name of my noble friend Lord Willetts today. Like the noble Baroness, Lady Fox of Buckley, I very much hope that, when the Bill comes back from the Commons, someone will have found their backbone and the tort will have been restored.

My Lords, I apologise that I did not speak in the earlier debates on this matter because, as I recall, I had not made my maiden speech. I simply add my voice to those who regret my noble friend Lord Willetts’s Motion A1, which I do not support because, as other noble Lords pointed out, it waters down the small protection that existed with the original Clause 4 for academics in many institutions.

An institution has great power: it has powers of office, of man and woman power, of employment and of funds. The original Clause 4 gave a simple and cheaper way for an individual academic who was suffering because his or her freedom of speech was under threat. I assure noble Lords that it is under threat in many universities, and especially the one I know best: my own university, Cambridge. Hardly a day goes by without threat after threat reaching the newspapers of academic freedom being impinged on. I draw noble Lords’ attention to Arif Ahmed’s publications and submissions to an earlier Committee on the Higher Education (Freedom of Speech) Bill. The problem has not stopped.

For those reasons, I am worried about Motion A1 going through. It will make life much more expensive for individual academics, who often plough a lonely furrow against top-heavy and powerful institutions. I would like to restore the original Clause 4, which gives a straightforward and cheaper alternative to someone taking action against an institution. I do not believe that there will be vexatious causes that involve universities or institutions in long and litigious claims that cost money and time, because existing law covers these matters in many respects. Cheaper claims can be dealt with under protocols before action or by agreement.

So Clause 4 is necessary not only for free speech but for free thought. It is not just about student union bodies, although they should observe this; it is about how academics pursue their subjects and whether their reading lists and courses are in line with official thinking—universities have a powerful officialdom. For those reasons, I remind my noble friend Lord Willetts of his having to be smuggled into the University of Cambridge not many years ago. I do not believe that my noble friend’s amendment would prevent that happening again. I thank noble Lords for their attention.

My Lords, we have demonstrated that there remains a range of opinion about the nature and size of the problem, and the appropriate response to it. Therefore, a compromise amendment is perhaps the best point for us to end up at. Some of us feel that this is an unnecessary intervention into the autonomous institutions that are our universities, and conservatives are supposed to believe in the autonomy of institutions and in not promoting undue state interference. I remind those on the Conservative Benches that, if you are in favour of a smaller state and deregulation, particularly of banks and companies, you should be careful about how much you are in favour of detailed or excessive regulation of autonomous bodies like universities.

After all, our universities are very highly rated in global terms; they are an asset to this country. Boris Johnson, when he was Prime Minister, used to talk about them as one of the major planks of our soft power in the world. We need to be very careful that we do not damage them.

Listening to the noble Baroness, Lady Lawlor, I was thinking of my time as an undergraduate at the University of Cambridge, and the behaviour then was, in some ways, not entirely different from the way it is now. I recall the occasion when my wife and a number of other Oxford students prevented an ambassador from speaking at an Oxford student occasion, and of my first year as a university teacher at the University of Manchester, when a number of students blocked the Secretary of State for Education from speaking at a university event. These things are not entirely new.

As the Minister suggested, we have of course seen a number of cultural changes. While the cultural changes mean that universities have become more sensitive to student opinion because student funding has changed, another change is that social media has widened the debate about what is acceptable. It has imposed, from different directions, the new cancel culture among the young, which we did not have in my generation and in most of the time that Members of this House were at university. We all have to face that problem—it is not solely a university problem—and we have to answer it at the levels of political leadership and of society. I very much hope that, when the Bill returns to the Commons, the decision on this will not be reversed.

When we talk about culture, I am concerned about those who talk about a culture war. I have read two op-eds in the Sunday Telegraph in the last month which have suggested that the pursuit of a culture war is the way for the Conservatives to win the next election, and that they should imitate the example of Governor DeSantis of Florida, who is pursuing, so the articles argued, a successful culture war against wokeism, cultural Marxism and the universities of his state. I know that there are some on the right wing of the Conservative Party who would like us to go down that route, but it would be a very dangerous route. We do not want this country to become as divided a society as the United States has become, in which a governor educated at Yale and Harvard now says that he was exposed to communist ideas as an undergraduate at Yale—I suspect that that is a slight exaggeration—and who thinks that the way to ensure his path to a presidential nomination is by dividing the country between the educated and those who do not have higher education. We do not need that in this country, and it would be extremely dangerous for ring-wing Conservatives to try to take that direction.

On a different level, I find the argument that we should pass Bills so that we send a signal a rather worrisome idea; I think that we should pass Bills so that they actually do something, that they enforce something and that they change the way in which we behave. Sending signals is something which political speeches should do—not Acts of Parliament.

I ask the Minister about the time of the implementation of the future Act, now that the Bill has been delayed somewhat; it will clearly be delayed again by going back to the Commons. I hope that he can confirm that there will be no attempt to implement the Act in full by the beginning of this coming university year, because it will take universities some time to consider it. He may not be able to give me an answer at the moment, but that is an important fact that we now need to have addressed.

I hope that the Minister also takes note of some of the criticisms which the Committee on Standards in Public Life and others have made about the appropriateness of appointing committees. We heard the noble Lord, Lord Moylan, discuss regulatory capture, but we have also heard those who oversee public appointments committees talking about the inappropriateness of people who know very little about the subject for which a person is being appointed deciding on the nature of the appointment. There is a balance—which I hope the noble Lord, Lord Moylan, will accept—between regulatory capture and political appointments being made for political reasons, which is important when one is considering such a major asset to this country as our universities.

I welcome the Government’s acceptance of this amendment. I very much hope that the Common Sense Group and others on the right wing of the Conservative Party will not attempt to take it back when it comes to the Commons and that the Government will re-establish a relationship with our universities, both staff and students. The relationship between free speech for students and free speech for staff has, on occasions, been muddled in all our debates on this Bill. I hope, therefore, that this Bill as now amended will become law.

My Lords, I listened with great interest to what the noble Lord, Lord Moylan, had to say and I sympathised with the anguish he felt as a loyal Conservative supporter trying to deal with the problem the Government have presented him with. As a non-affiliated Peer I do not have that problem, but I share his anxiety about what the Government have done as it seems very vacillating and unhelpful.

I draw noble Lords’ attention to the famous words of Adam Smith that no people of the same trade are ever gathered together, even for diversion or merriment, without at some point conspiring against the public. It is lovely to have so many noble Peers in this House who hold or have held high positions in universities and university administrations—chancellors, vice-chancellors, professors and all the rest of them—but overall they constitute an interest. Their interest, naturally enough, is to believe that they are right, universities are well run and the critics are wrong. I ask them perhaps to consider that none of this would have come about if universities were being well run. These freedom of speech issues are very important and need some bolstering. When so many noble Peers who are associated with universities challenge and reject that, they must be conscious not to behave like trade union leaders in the 1980s who were defending powers that, it became clear, were unacceptable.

As a former trade union leader I am a bit hesitant to contribute, but let me just say to the noble Lord, Lord Moore, that what has been excellent about our consideration of this Bill from Second Reading through to Committee is how, through excellent scrutiny, we have tried to reach a consensus, not a compromise. That is the important thing. On Report I confessed that I had changed my mind about the need for this Bill. I accept that better, more effective regulation will help to change culture in a more sustainable way. All this emphasis on tort does not really help the real problem that we have heard described.

I will be brief. I appreciate the comments of the noble Lord on non-disclosure agreements—a key element in terms of openness and transparency. The duties and responsibilities of the regulator, and how they are applied, will be important; I accept that universities need time to properly do that. But they have been developing good practice and best practice. They have responsibilities to freedom of speech, and I absolutely support that. I stress that the Opposition’s approach to this Bill has been totally non-partisan. I have supported the amendment from the noble Lord, Lord Willetts. I have certainly encouraged him because I have listened across the board as we have moved through each stage, and I think we will end up with a better Bill. In fact, with the consensus that has been reached, we now have a better Bill.

Despite some of the Minister’s concerns about what might happen down the other end, across this House and across all political parties we have reached a consensus; let us put the matter to bed. With our non-partisan approach, I assure him that the Government will have the Opposition’s support on their support for the amendments from the noble Lord, Lord Willetts. We can safely say that this Bill shall pass, and it will pass to defend the freedom of speech values that we all share. That is an important step that we can make.

I hope that the Minister will feel reassured about our approach to this Bill and how we have listened, changed our minds and supported very important consensus changes, which I think will ensure that all academics and university institutions will support this legislation.

My Lords, there is little more for me to say, other than to thank noble Lords for their contributions to this debate and for the way in which, amid many doubts and hesitations, Members of the House have been willing to look for compromise and common ground on what I know has proved a difficult set of issues.

I thank in particular the noble Lord, Lord Grabiner, especially for his positive comments and remarks on the role of the regulator, as well as my noble friend Lord Lucas, the noble Lord, Lord Triesman, and, for his words about the need for us all to look for consensus, the noble Lord, Lord Collins.

I simply say to the noble Lord, Lord Wallace, that I too instinctively fight shy of the suggestion that Governments should unduly interfere with the workings of our universities. However, some of his remarks suggested to me that he does not accept that there is a serious problem to be addressed. If that is his view, I believe that he is in a minority in this House.

I think we have a large social problem, which has been partly raised by social media, in the intolerance of the young as a whole and cancel culture. It stretches across our society and we have to deal with it, but it is not purely a problem for universities, nor is it thoroughly based in universities—and it certainly does not result from indoctrination by left-wing staff.

I am grateful to the noble Lord, but I think we all agree that universities, par excellence, are places that should be safe spaces for freedom of speech, as my noble friend Lord Willetts said, whatever may happen outside the confines of the campus.

As to the timing of the coming into force of the Bill, I can tell the noble Lord that it will not be before the start of the next academic year. The Government need to consult on the regulations and indeed draft them, which will take a little time.

I simply cannot agree with the noble Baroness, Lady Fox, that my noble friend Lord Willetts’s amendments represent a fudge—in other words, a watering down of the tort or a “soft tort”, as my noble friend Lord Moylan put it. With respect to my noble friend, I utterly disagree with him that the amendments send a signal, or any semblance of a signal, to the other place or the world that the Government are not serious about protecting freedom of speech in our universities. The idea of watering down, I suggest, is more theoretical than real.

As I said earlier, the vast majority of complaints will be successfully handled and dealt with without any need to go to court. However, where a complainant believes that that has not happened, they will still have the option of going to court. In other words, the amendments from my noble friend Lord Willetts underscore what we think will happen anyway.

I hope that Members of another place will come round to that view and that both Houses of Parliament will reach the endpoint that Ministers and the Government have felt it their duty to try to achieve, which is consensus.

My Lords, I want briefly to reflect on the important points that have been made. First, I think there is widespread recognition that there is a problem. Of course I understand the problem; I have been on the receiving end of exactly the kind of threats to freedom of speech that this law is trying to tackle. I have seen student unions protect my right to speak and I have seen student unions collapse under pressure to not allow me to speak. I have seen universities that have done their best to enable me to speak, even with shouting and jeering and protests outside, and I have seen universities cravenly collapse under pressure to not allow me to speak. I am absolutely aware of the issue, as I think Members across the House are. However, at no point when I faced these protests did it occur to me that the way to solve the problem was for me to have the right to sue somebody. That is the issue: what is the best way to deal with the problem?

I have to say that the path of the past decades has been to increase the power of regulation. The noble Baroness, Lady Fox, made a passionate intervention that began with a description of the bureaucracy involved in trying to prove that she was not a hatemonger. I am speculating, but I think I know where that bureaucracy comes from: it is the Prevent initiative. I remember my conversations with officials in the Home Office who said to me, “There are extremists being invited to speak at universities and we need to have a process to make sure extremists who will stir up hatred are not allowed to speak”. I remember meetings with Home Office Ministers where, if I may say so, it is possible that I made some of the points that the noble Baroness made. But the pressure was, “We cannot allow an unregulated approach; we need to know who these speakers are so we can check if they’re potentially going to infringe the law”. That, I suspect, is the origin of the bureaucracy. That is where it started, over a decade ago.

The noble Baroness recently had the shocking experience of not being able to speak at Royal Holloway college. But I do think that here she does this legislation a disservice. Faced with the problems she encountered, is it really the case and is she really confident that suing the student union, which is where the legal process would have started—and, clearly, she had some sympathy for the student union and the pressure it was under—is the way to resolve the problem?

The Bill envisages—and I have to say that Ministers have made it clear throughout that this is the way they see the Bill working—that, if the noble Baroness encounters a problem such as that, her first port of call is the Office for Students. I heard in several interventions noble Lords say, “It’s a patsy”, “It’s producer capture”, “It’s the university friends”. I would invite noble Lords on all sides of the House to read, for example, the recent letter of complaint from universities about the OfS, saying precisely that it was too aggressive, that it was not working with them and that it was a heavy-handed regulator. The idea that the OfS is some kind of patsy that has been put up to put off any intervention is a complete misreading of the powers that it already has under legislation steered through Parliament by my noble friend Lord Johnson of Marylebone and that are now enhanced by this legislation.

If the powers prove still to be inadequate—if someone still has a grievance even after the Office for Students and the OIA have investigated a complaint—at that point they can go to law; that is what these amendments, originally proposed by the Government last year and now proposed and brought before the House by me and others today, ensure. That is not some feeble abandonment of a commitment to freedom of speech; it is the right way to proceed.

This legislation is a powerful further intervention; it makes the legal framework absolutely clear. It means that any Member of this House, or any citizen who faces a challenge to their right to speak at a university, will know there is someone at the OfS who has an explicit legal responsibility for protecting their rights to freedom of speech. That is a very powerful provision, rightly reinforced, but only if the regulator fails by a power of tort as well. Therefore, I hope the House will support the amendments in my name and in the names of others in this House.

Motion A1 agreed.

Building Safety (Leaseholder Protections) (England) (Amendment) Regulations 2023

Motion to Regret

Moved by

That this House regrets that in laying the Building Safety (Leaseholder Protections) (England) (Amendment) Regulations 2023 (SI 2023/126) His Majesty’s Government have not published data on the number of landlords who have benefited from an error which allowed landlords to transfer costs of remedying historical building defects on to their leaseholders; further regrets that His Majesty’s Government have no intention to identify leaseholders affected by that error to advise them to appeal to the First-tier Tribunal to recover costs; and calls on His Majesty’s Government to publish these figures in a spirit of transparency and write to those affected with clear guidance on how to recover costs.

Relevant document: 31st Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

My Lords, the regret Motion standing in my name is critical of the Government’s response to those leaseholders who have been adversely impacted by a government error, which the Building Safety (Leaseholder Protections) (England) (Amendment) Regulations 2023 have recognised. The regret Motion puts the spotlight once again on the plight of leaseholders. Since the awful Grenfell Tower tragedy nearly six years ago, leaseholders and tenants have been at the very heart of the policy response to the crisis in building safety that was so cruelly exposed that night.

The Grenfell Tower inquiry has meticulously gathered evidence of years of malpractice by developers and materials manufacturers. It is clear where responsibility lies for the very significant number of building safety defects. Those not responsible in any way are the innocent leaseholders, who have done everything right and nothing wrong. The Building Safety Act set out the ways for the building industry to rectify past building defects. Those related not just to the removal of dangerous flammable cladding but to the lack of fire breaks, for instance, that were required at the time of construction. The Act also established how the very large costs of remediation were to be funded. In the case of non-cladding defects, there was a cascade of responsible entities. At the bottom of the cascade were leaseholders, who may be required to pay a capped contribution, which was limited to £10,000 outside London and £15,000 in London. These alone are significant sums—for first-time buyers, for instance.

There are still questions to be asked about whether the Government’s attempt to ensure that cladding is fully removed and safety defects are put right is effective in practice. However, the focus of the regret Motion is an error that inadvertently crept into the regulations, which determined how much developers would be required to pay, if at all. It was the intention that a family of associated companies of the developer would be included in the assessment of the value of the companies and, therefore, the ability of the developer to fund the remediation works. The regulations, unfortunately, excluded what have been described as parent and sister companies. This led to one very large developer being able to demonstrate that the special purpose vehicle that had been set up for the development did not of itself have the funds to pay for the remediation of safety defects. If the family of associated companies had been included with that special purpose vehicle, as was the intention of the regulations and of the Act, the developer would have been funding the costs of remediation. As a result of the error, this company was able to avoid paying for the defects and, via the cascade system, was able to pass on part of the costs to the leaseholders.

This is grossly unfair to the leaseholder, and a major company, which had already bypassed building regulations unlawfully in constructing the property, was now avoiding the responsibility of paying for this dangerous and deliberate practice that put profit first and people’s lives in jeopardy. The Department for Levelling Up, Housing and Communities was made aware—and only made aware—when a leaseholder contacted the department to query why they had been asked to pay remediation costs when they knew that the developer in question was a very large one and likely to be within the limits to be able to pay. I am pleased that the department quickly remedied the error, passed these amended regulations and brought them into force the following day, just to make sure that no other developer tried to bypass paying for remediation because of the error. However, there is currently no remedy for those leaseholders who have unwittingly paid towards remediation costs when they should not have done.

The Secondary Legislation Scrutiny Committee asked the department to quantify the numbers of leaseholders who have been forced to pay when they should not have been. Unfortunately, the department was unable to provide a figure and does not seem to have made any attempt to do so.

There is a route for any leaseholder caught out by the Government’s error, and that is to appeal to the First-tier Tribunal—but who knows about that? Leaseholders have been trapped all through this saga by the unscrupulous, immoral and unlawful behaviour of developers and others. The very least the Government can do is to seek out those leaseholders, provide them with the necessary information about how they can recover their costs and support them in doing so. The Secondary Legislation Scrutiny Committee asked whether protection for affected leaseholders could be introduced retrospectively, via primary legislation if necessary, and I too ask that question of the Minister.

This is injustice heaped on injustice. It was a government error, and the Government should do all in their considerable power to put it right. I will listen carefully to the response from the Minister. I hope she will be able to provide all the information that I and the Secondary Legislation Scrutiny Committee are asking for, including the ways in which leaseholders can find retribution. Meanwhile, I beg to move.

My Lords, I shall add a few words of support for the noble Baroness, Lady Pinnock. I stand with a weary sense of déjà vu, looking around at a number of people with whom I have sat as we have worked through building safety and fire safety measures.

What is interesting is that the Government fundamentally tried to grasp this problem. I pay tribute to the right honourable Michael Gove, who has been quite exceptional in taking hold of it and trying to solve it. I say well done to the Government for shifting the main problem in this very troubling area.

Like many noble Lords, I am still finding that people contact me because they are in a dreadful situation. Some of them are going bankrupt because they are simply unable to pay for the remediation work on their properties. This does not just affect big tower blocks; it happens to quite modest blocks of flats in places like St Albans, Stevenage and Bedford, in my diocese.

On the particular problem that the noble Baroness has mentioned, it is extraordinary, when the Government have already committed themselves to doing so many things on this—not least reforming the leaseholder system, which we will watch with great interest—and troubling that this unintentional problem, which is having a devastating effect on some people, is seemingly not being addressed. It would be a huge help if we could simply get the figures published to find out how many people are being affected by what seems to be an error and then try to help those people to find a remedy.

This is a terrible scar on the whole industry. We need to find ways to work with those who have unintentionally found themselves caught up in this and are quite desperate. That is supported by, as the noble Baroness has mentioned, the point made by the Secondary Legislation Scrutiny Committee that we need that data. I add my weight to the points that the noble Baroness, Lady Pinnock, has made today, and I hope we will see some movement.

My Lords, clearly what we are talking about today is building safety and the importance of leaseholder protections. That is at the core of everything.

We have discussed, on a number of occasions now, the terrible events that happened at Grenfell Tower along with similar incidents that brought to light the significant issues surrounding building safety and the appalling impact that it can have on the lives of those who have lived, and continue to live, in affected properties. The safety of the homes that we live in has to be of the utmost importance to all of us, and it is the responsibility of the Government to ensure that buildings are safe and secure for those who live in them. So the Government’s Building Safety Act, as the right reverend Prelate the Bishop of St Albans said, is an important step towards improving building safety and ensuring that incidents such as Grenfell cannot happen again. However, we still need to ensure that leaseholders who have been bearing the brunt of the cost of remediation works are properly protected and can continue to make their homes safe.

It was extremely disappointing, to say the least, as we have heard, that there was an error in the previous instrument that led to an unintentional exclusion of parent and sister companies from being considered as associated with the landlord—the noble Baroness, Lady Pinnock, went into detail on this. The Secondary Legislation Scrutiny Committee confirmed in its report that at least one parent company was able to avoid liability and then pass it on to leaseholders as a result of the error. When we think of all that leaseholders have been through, the Government should never have allowed these costs to be passed on to any leaseholder, even by accident. I am sure the Minister would agree.

Clearly, we welcome the fact that this error has been picked up and is being corrected, but I, too, emphasise the concerns expressed by the Secondary Legislation Scrutiny Committee about the lack of data that both noble Lords who have spoken have mentioned. We need to know how many landlords may have benefited from this mistake and how many of them have passed this on to leaseholders. If the Government want to properly sort this out, we need that information.

The Minister, Lee Rowley MP, said in response to the committee when it asked what had happened to affected leaseholders

“we thought it likely that any affected leaseholders would have been able to recover their additional costs through the Tribunal before an Act was passed”.

But the department, DLUHC, does not seem to be planning to identify and alert any affected leaseholders to the possibility that they can appeal to the First-tier Tribunal to recover costs. Not everybody knows what their rights are and what they are entitled to, so that support should be there.

Further, Lee Rowley said in reply to the letter from the chair of the SLSC, the noble Lord, Lord Hunt of Wirral, that the department

“will continue to work to ensure that our existing processes, that have long been in place, continue to provide high quality, correct legislation in the future”

and he referred to

“discussions within the Department regarding the collective desire to minimise the risk of this happening in the future”.

It is important that that recognition is there, but I share the committee’s disappointment that there is no commitment to any practical steps that the department could take to improve quality assurance and avoid similar errors in future.

One reason I particularly wanted to draw attention to this is that there have unfortunately been numerous SIs from Defra over the past couple of years where there have been errors that have needed to be corrected, which has meant that the SIs have then come back to us. This is not an isolated incident across government. Apart from the problems and difficulties that a faulty piece of legislation can cause, the Government keep saying that they are short of parliamentary time. If they got the legislation right in the first place, perhaps we could all work better and more efficiently.

My Lords, I thank the noble Baroness, Lady Pinnock, for securing this important debate to discuss the Building Safety (Leasehold Protections) (England) (Amendment) Regulations 2023. I also pay tribute to the Secondary Legislation Scrutiny Committee for its careful consideration of the regulations and to the right reverend Prelate and other noble Lords who have contributed to this discussion.

As noble Lords will know, the regulations correct an error in a previous instrument to ensure that, when assessing liability for the costs of remediating relevant defects, the consideration of the net worth of a landlord group for the purpose of the contribution condition includes parent and sister companies, as originally intended.

The department does not collect data on leaseholders who are liable to pay for the remediation of historical safety defects, not least because it is not a centralised process. We have, however, been made aware by leaseholders and, indeed, parliamentarians, of a very small number of cases where landlords state that they did not believe they met the contribution condition because of this unfortunate and unintended error. As I say, to date these cases are small in number, but of course we must say sorry to those people, because it will affect them, however few they are.

Due to the caps for qualifying leaseholders in relation to non-cladding remediation and interim measures, the maximum amount such qualifying leaseholders could have been charged is limited to £1,000—or £1,500 in Greater London—over the past year. Landlords are already required to produce a new landlord certificate which complies with these regulations in specified circumstances, including within four weeks of becoming aware of a relevant defect not covered by a previous certificate.

I wanted to make sure your Lordships were aware that the Building Safety Act already includes anti-avoidance and enforcement provisions to ensure that those who are liable to pay do so, and, where it is just and equitable, that costs incurred for historical safety remediation may be recovered. Remediation contribution orders allow interested persons—including local authorities, fire and rescue services and leaseholders—to apply to the First-tier Tribunal, as we heard, for an order requiring a landlord, developer or associated company to make payments in connection with remediation costs. Applications to the First-tier Tribunal for a remediation contribution order cost £100.

The department is clear that any opportunities to avoid the protections needed to be closed off swiftly, and that is what these regulations have done. Although it may be possible to give retrospective provision in law—as the protections in the Building Safety Act do—there is a general presumption not to apply new law retrospectively, and the department does not believe it would be proportionate to do so in this case. The Government therefore have no plans to introduce retrospective provision through primary legislation.

The department has published extensive guidance on the GOV.UK website to explain the leaseholder protections, including information relating to remediation contribution orders. Those affected who write to the department—and I encourage any noble Lord who knows of anyone who is worried about this to tell them to come to the department—will be informed of their options and directed to the guidance to help them to make an informed decision. Of course, each case is different, and leaseholders may wish to consider seeking legal advice before pursuing avenues of recompense.

LEASE—the leasehold advisory service—is providing free support and guidance to leaseholders who face costs for historic safety defects, and officials in my department continue to look at new ways to raise awareness of the leaseholder protection provisions to all leaseholders. These regulations are being issued free of charge to all known recipients of the 2022 regulations, and I put on record my assurance that the department will update GOV.UK guidance to further raise awareness of available redress options, with notifications sent to those who have signed up for them.

The circumstances surrounding the leaseholder protection legislation introduced last summer—particularly the speed of its preparation—were highly unusual, but necessary to ensure that leaseholders were afforded the financial protections under the Building Safety Act without delay. As my honourable friend the Building Safety Minister, Lee Rowley MP, said in his letter to the committee, we are confident that we can rely on the department’s processes that have long been in place, but which were abbreviated last summer, to ensure that, as far as possible, such mistakes will be avoided in the future.

I should like to deal with a couple of further questions. The noble Baroness, Lady Pinnock, referred several times to developers and their related companies. I point out that these regulations refer to landlords; that is, building owners. The mistake has no effect on the liability on developers.

I have answered the right reverend Prelate the Bishop of St Albans, in that we think that this is a very small number. Of course, if anybody knows of any such person, we will give them the support they might need to ensure they get the redress they should have. I hope I have answered all your Lordships’ questions. As ever, I will happily follow up in writing on anything I have not covered, and I am very happy to meet with any noble Lords to discuss this issue further.

I thank the noble Baroness, Lady Pinnock, for bringing forward the debate today. We can all agree that qualifying leaseholders should be protected from the costs of historical safety remediation. This legislation is important in ensuring that landlords’ groups that meet the contribution condition must meet the full costs of both non-cladding remediation and interim measures. On that basis, I ask the noble Baroness to withdraw her Motion.

My Lords, I thank the right reverend Prelate the Bishop of St Albans, and the noble Baroness, Lady Hayman of Ullock, for their support.

The right reverend Prelate has been at the heart of this issue for the six years since the awful Grenfell tragedy; he knows first hand, as he said, the devastating impact it has had on leaseholders. Perhaps I am wrong in saying this, but it was almost the last straw, in that all of us across the House had tried so hard to get the Building Safety Act to provide legislative ways of delivering remedies for leaseholders, and at that moment when everything should have been put right as far as possible—there are omissions that I still intend to pursue—an error crept in. Even then, where things were put right, innocent leaseholders were at the mercy of landlords who wanted to pass on the costs to them. The Minister has said that it is a small number but actually, we have no idea whether it is small or large, and the Government should find out.

I am grateful to the Minister for apologising for the error on behalf of the Government. I accept that it crept in inadvertently, but apologies do not pay bills. Leaseholders have had enormous bills of up to £10,000 from the cascade cap, which they would be required to pay. I am disappointed with the Minister’s response, both to my regret Motion—

The £10,000 would have been over 10 years, and we have stopped it at the end of the first year, so the maximum that would have been required was £1,000. I just wanted to clarify that. I would not want it to be £10,000.

I thank the Minister for pointing that out. I will see what the legislation says.

I am very disappointed with her response and the response to the request by the Secondary Legislation Scrutiny Committee, which also made a very strong statement that the Government ought to find out how many leaseholders were affected and provide them with information and support. This is a government error, albeit one made inadvertently. The Government ought to be leading the way in showing that if errors are made, efforts are made to put them right. Currently, no efforts are being made to put this right. Therefore, I want to underline my considerable concern that the Government are not intending to take any action, and I would like to test the opinion of the House.

Health Education England (Transfer of Functions, Abolition and Transitional Provisions) Regulations 2023

Motion to Approve

Moved by

That the draft Regulations laid before the House on 20 February be approved.

Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee

My Lords, the noble Baroness, Lady Merron, has tabled a Motion to Regret, and I will first address her concerns in turn.

First, the noble Baroness noted that the regulations do not offer sufficient evidence to support the change, and that the information on the potential costs of and savings from this reorganisation are unspecified and vague. In response, I note that an amended version of the Explanatory Memorandum for these regulations has been laid, with additional information on the costs and benefits of, and evidence for, the transfer of functions from Health Education England to NHS England.

As the Explanatory Memorandum sets out, there are some smaller costs and savings relating to the transfer of Health Education England’s functions to NHS England, and more significant costs and savings related to the wider transformation programme that NHS England is currently undergoing, which would include the transferred Health Education England functions. As I will set out in more detail later, overall, the merger of HEE and NHS England will bring significant benefits to the delivery of workforce planning for the NHS.

Transition costs include the creation of the HEE transition programme office and short-term consultancy to deliver the overarching design and the new workforce function. Ongoing savings and efficiencies from the wider NHSE transformation programme are expected to include a reduction in the total size of the new NHSE, including Health Education England and NHS Digital, of up to 40%; savings from not having a Health Education Board; and removing the need for a range of duplicate processes currently in place.

These amendments to the Explanatory Memorandum are also intended to address comments on the regulations by the Secondary Legislation Scrutiny Committee in its 32nd report of Session 2022–23.

The noble Baroness’s second point was that the regulations have not been published alongside the Government’s NHS workforce plan. I will say more about the longer-term plan later, but I can confirm that the Government have committed to publishing the plan this spring and will include independently verified projections for the number of doctors, nurses and other professionals who will be needed in five, 10 and 15 years’ time, taking full account of improvements in retention and productivity.

The noble Baroness’s final point was that the regulations do not guarantee that NHS England will give long-term workforce issues sufficient priority. I can confirm that the Government are putting in place a range of measures to ensure that NHSE places sufficient priority on these vital issues. This includes setting objectives on workforce within the NHS England mandate, continuing to monitor and track expenditure on education and training, and establishing a ministerially chaired board to provide oversight and governance of workforce in the NHS.

I now turn to the regulations more widely. The intention of the regulations is to more closely align workforce planning, which is the statutory function of Health Education England, with the service and financial planning responsibilities of NHS England. This will enable service, workforce and finance planning to be properly integrated in one place, both nationally and regionally, building on the work to develop the NHS People Plan. It will also help drive reforms to education and training further and faster, so that employers can recruit the health professionals needed to provide the right care to patients in the future.

Merging Health Education England with NHS England will simplify the national system leading the NHS. It will end the separate lines of accountability for the two bodies. Currently, Health Education England is responsible for workforce planning, education and training, while NHS England is responsible for culture, retention, international recruitment, workforce and leadership. Uniting these functions will help to ensure a joined-up and long-term view of what workforce the NHS needs.

In addition to removing the need for a separate HEE board with sub-committees, the merger will also remove the need for a range of duplicate processes currently in place. These include separate clearance processes for policy and strategy documents, financial transfers between the organisations to ensure training resources can support specific service development and the need to agree or align external communications that cover both organisations’ interests.

In short, for me, as a businessman for the last 25 or 30 years, the idea of having an HR function separate to the rest of the corporate functions is totally foreign, particularly in a service such as the NHS, where we know that workforce is front and centre of everything it needs to do. For me, that is compelling logic for having one of the most important functions working in-house alongside you.

The merger of Health Education England builds on increasing co-operation and joint working over recent years between Health Education England, NHS England and NHS Improvement to help ensure that workforce investment is aligned to government priorities. Over recent years, Health Education England has also worked with NHS England and NHS Improvement, regional people boards, local systems and individual employers to undertake workforce planning.

The merger is in line with a recommendation from the Public Accounts Committee in 2020 to review the effectiveness of having a separate body overseeing the planning and supply of the NHS’s future workforce, which the DHSC accepted. I know there will be concern in some quarters that the changes may create a risk of training projects being used for other purposes, but we have put in place a range of measures to ensure that will not be the case.

Health Education England and NHS England already work closely together to ensure that the NHS has the workforce it needs for the future, and we have commissioned NHS England to develop a long-term workforce plan for the NHS for the next 15 years. The long-term NHS workforce plan will look at the mix and number of staff required and will set out the actions and reforms across the NHS that will be needed to reduce supply gaps and improve retention.

The Government have committed to publishing the plan; it will include independently verified projections for the number of doctors, nurses and other professionals that will be needed in five, 10 and 15 years’ time, taking full account of improvements in retention and productivity. The Government have already made significant progress in growing the workforce. In the past year, we have seen record numbers of staff working in the NHS, and we are on track to recruit 50,000 more nurses in the NHS by March 2024.

However, we know that demand for the NHS continues to grow, which is why we have put substantial investment into training additional healthcare professionals. This includes funding an additional 1,500 medical school places each year for domestic students in England. We have also supported diverse routes into healthcare professions through apprenticeships and blended learning programmes to make a healthcare career more accessible. We are committed to supporting our NHS, and the long-term workforce plan will help ensure that we have the right numbers of staff, with the right skills, to transform and deliver high-quality services fit for the future.

I want to pay tribute to Health Education England’s leadership and staff throughout the organisation’s 10-year existence. The organisation has played a highly effective role in the delivery of growth in the numbers of health professionals trained in England. It has promoted the creation of roles such as nursing associates and spearheaded reforms to professional training workforce growth, with record numbers now working in the NHS. It was flexible and effective during the pandemic, including in supporting the deployment of students to the front line at critical moments. The merger will continue and build on Health Education England’s great work, putting education and training at the heart of service planning for the long term.

I am delighted that Dr Navina Evans will become the chief workforce, training and education officer in the new NHS England on 1 April 2023 and that Sir David Behan was appointed as a non-executive director at NHS England on 1 July 2022. These appointments will help ensure there continues to be excellent national leadership of NHS education and training.

In conclusion, these regulations will simplify the architecture of the NHS at national and regional level and help ensure that the NHS has the workforce it needs for the future. I commend these regulations to the House.

Amendment to the Motion

Moved by

At end insert “but that this House regrets that the explanatory memorandum to the Health Education England (Transfer of Functions, Abolition and Transitional Provisions) Regulations 2023 does not offer sufficient evidence to support the change; that the information provided on the potential costs and savings from this reorganisation are unspecified and vague; that the Regulations have not been published alongside His Majesty’s Government’s promised NHS Workforce Plan; and that they do not guarantee that NHS England will give long-term workforce issues sufficient priority”.

My Lords, I am grateful to the Minister for introducing this draft statutory instrument, which facilitates the merger of the body responsible for the education and training of the health workforce, Health Education England, with NHS England, with the purpose of improving long-term workforce planning and strategy for the recruitment of NHS staff. I would also like to express my appreciation of the work of Health Education England and acknowledge the contribution of staff who have worked within that organisation. I am also grateful to the Minister for his initial response to the points raised in the amendment standing in my name on the Order Paper.

As noble Lords will know, on these Benches we are very committed to long-term workforce planning for the NHS and for social care, which requires independent workforce projections. Once again, I have to say, it is staggering that the NHS has not had a workforce plan since 2003—and still we wait. In answer to the much-asked question about the publication of the workforce plan, your Lordships’ House and the other place have been told that it would be “soon”. The meaning of the word “soon”, I do feel, has been somewhat overstretched, and I know the Minister understands that point. So, to repeat the question: when will the workforce plan be published? And can the Minister indicate what will be the role of NHS England within the workforce plan?

In earlier debates about the merger of NHS Digital and NHS England, the point was rightly made that talented expertise has to be retained. Given that, in this case, we are looking at an estimated cut of up to 40% in workforce numbers, this point bears repeating. Could the Minister provide an update on how the work on retaining talent and expertise is progressing? What assurances can he give to your Lordships’ House that the staff are being treated fairly throughout this process? Could the Minister also set out what specific service improvements are anticipated because of the merger and what metrics the department will use to judge NHS England’s performance, given its new remit?

I am grateful to the BMA for its contribution, which highlights areas of concern it has picked up from practitioners. I hope the Minister can assist with allaying those concerns, which I will now set out. Doctors are anxious that these changes could devalue the importance of supporting education and training, compared with the desire to increase service delivery during an ongoing workforce crisis. How will this be guarded against?

There are also concerns that the reduced size of the new NHS England will damage its ability to deliver support to junior doctors and negatively affect the day-to-day running of postgraduate training programmes, which are currently supported by the local offices of Health Education England. Can the Minister give reassurance on this point?

Finally, there is a question about NHS England’s ability to adhere to the minimum standards set out in the code of practice on the provision of information for postgraduate training. I hope the Minister can also assist by responding on this point.

Although we on these Benches will not oppose these regulations, I now turn to the substance of my amendment and draw the attention of your Lordships’ House to the report of the Secondary Legislation Scrutiny Committee, which says:

“The Explanatory Memorandum describes what the instrument does in quite legal terms but does not offer evidence to support the policy by setting out the costs and benefits anticipated from this transition. We have received further information from the Department … which is published in Appendix 1 but despite our enquiries the information on the costs and savings from this reorganisation remains quite vague.”

In addition to these points, my amendment notes that

“the Regulations have not been published alongside His Majesty’s Government’s promised NHS Workforce Plan; and that they do not guarantee that NHS England will give long-term workforce issues sufficient priority”.

I heard the Minister’s initial response, but I feel he has spoken of promises of delivery in the future, so could he explain how the shortcomings, which have been criticised by the committee and in the context of the amendment, have arisen and how he will seek to address them in full?

Although there is no fundamental problem with the general policy of abolishing Health Education England and transferring its responsibilities to NHS England, once again the presentation, content and communication has been somewhat lacking. The SLSC has been damning of the regulations’ Explanatory Memorandum, which, as the committee says, does not provide sufficient evidence to support the policy, or set out the costs or savings clearly enough. This is clearly unacceptable, so could the Minister—this, again, is a repeat question for him—confirm what steps he has taken to ensure that important regulations such as these are properly and thoroughly brought before the House?

More broadly, and to return to where I started, these regulations are before us without reference to the broader NHS workforce plan, and it is this for which we still wait. Absorbing Health Education England into NHS England before knowing the number of health workers it will need to educate and train really does feel like putting the cart before the horse. The NHS is nothing without its workforce, yet we are still unsighted on how many doctors, nurses, care staff and allied health professionals we will need in five, 10 or 20 years’ time. Can the Minister set out the reasons behind this delay? Is it a matter of cost, or is it some kind of disagreement within government as to what the NHS needs and what the Government are prepared to commit to? I beg to move.

My Lords, I very much appreciate the opportunity that the noble Baroness, Lady Merron, has given to the House to debate this reorganisation on the back of her regret amendment. In preparation for this, I had a look at Health Education England’s website; it is always good to look at the thing you are abolishing. It is worth quoting in full what it says about itself:

“Health Education England … exists for one reason only: to support the delivery of excellent healthcare and health improvement to the patients and public of England by ensuring that the workforce of today and tomorrow has the right numbers, skills, values and behaviours, at the right time and in the right place.”

That would perhaps be an appropriate motto for the Minister to have. It is timeless: we want people to be focused on that mission of delivering the right people with the right skills at the right time and in the right place.

Again, I looked at the history of the body. It was set up as a special health authority in 2012. I imagined that it was something we had had for years, but no, it was set up in 2012 and became a non-departmental body in 2014. So in about a decade we have gone from wanting a body with a singular focused mission to saying, “No, that’s a disaster; it needs to now be fully integrated into a much bigger body in order to be able to deliver”. I fear we have seen this again and again; we had it with NHS Digital. A group of people got together a decade or so ago and said that the important thing is that all these functions have a team that is solely dedicated to delivering workforce, digital or whatever, and 10 years later the fashion has changed. The Minister makes a reasonable argument that you would not now have a separate HR function. Clearly, a decade ago, we thought that was exactly what we should do, and we spent time and money constructing this thing. Now we are spending time and money destructing it.

There is a risk that we end up mistaking circular motion for forward motion. It is still motion—we are moving things around—but there is a risk that we are not making progress. I will explain why we need to have really serious measures to understand whether we are doing that; otherwise, I fear we will back here in five or 10 years’ time, with people standing at the Dispatch Box arguing why we need to separate all these functions out, because merging them into NHS England meant that we lost focus.

The one group of people that will continue to make money out of this is the consultants. I note we are told in the Explanatory Memorandum that they were paid £1 million plus VAT to create this reorganisation. I am sure a similar group was paid £1 million plus VAT to spin out HEE when it was originally set up, and we will see this again with all the different parts of the health service. We spend money and we reorganise. Even if we support the latest organisation, we in this House need to continue to hold the Government’s feet to the fire, whoever they are, to say, “Prove that the reorganisation was worth the money”.

The noble Baroness, Lady Merron, is quite right to keep bringing us back to the information in the Explanatory Memorandum and the reports we get from the scrutiny committee. We are given explicit information about the costs. We are told that it is £1 million plus VAT for the consultants and another £1 million for staff costs, so a couple of million pounds here and there for direct costs. The savings are much less clear. We are told they are £1.3 million because we no longer need a separate board; then the big savings are wrapped up in this aspirational 40% for all of these reorgs into NHS England, but we are not given any more detail than that. I know the current body of staff in Health Education England is some 2,000 people, overseeing approximately £5 billion of expenditure, so there is clearly a lot of scope for potential savings.

I ask the Minister to make a firm commitment that the Government will come back and that future NHS England reports will give the kind of detail we need in order to understand whether those savings were realised. When these reorgs happen, there is a risk that NHS England’s future reports will be structured in a way that disguises the savings so that we cannot pull them out. It would help the House and the public if, when NHS England reports in a year’s time, there is a separate item that says, “For NHS Digital, we did or did not realise these savings”, and, for Health Education England and the education functions, “This is how many staff we now have working on it and that is why we think we are getting better value for money from the budget”.

From an accountancy point of view, you can go either way: you can either try to hide things by smushing them all up together or try to make them explicit by ensuring that the data is there. I hope that the Minister will commit so that we can come back at this time of year in 2024, 2025 and 2026—I recognise that this will take time to play out—to see whether this reorganisation has had the effect. This would inform the debate next time we are asked to reorganise; I am sure we will be told every time that they will make savings.

Finally, the substantive point raised by the noble Baroness, Lady Merron, is around the workforce plan. We can repeat our previous exhortations: that this is desperately needed; I know the Minister agrees that it is desperately needed. There are concerns that the reason it is being held up is that the funding is not there. Every time we see good news—the pay settlement for nurses and others is good news—a little bit of us asks where they will find the money; we hope they will not find the money by cutting in other areas. We need continual reassurance that the workforce plan will be accompanied by the money that will be needed to deliver it, and that we will not see it shaved away as it goes through the process of finalisation. That might be partly why we want it quickly. Once it is published, it is much harder to step back. The fear is that, the longer it takes, the more likely it is that there will be a process of salami slicing and the bold, ambitious workforce plan, which I am sure the Minister and his colleagues in the department supported, ends up “Treasury-fied” and no longer quite as ambitious as it was.

Finally on the workforce plan, we are talking about the NHS and we are rolling Health Education England into NHS England. As we have discussed many times in this House, health and social care are intimately related in terms of being able to deliver for people out there and being able to run an efficient service. I hope the Minister will at least be able to say that this reorganisation will not negatively impact joined-up workforce planning across both sectors. Ideally, I hope he will be able to say that there will be some positive impact from this reorganisation in terms of making sure that social care staff numbers correspond with the increase in NHS staff that he knows we need.

My Lords, I declare my interest as a relatively new non-executive director of NHS England, appointed together with two expert doctors to give clinical input to the board and tackle the issues that have just been discussed. However, I want to put on record that I think Health Education England has been a success and has set up sound processes that have enabled a good estimation of the workforce needed for the next 15 years.

The workforce plan is in draft and is being considered by the Government, but I want to underline the fact that, without sufficient funding, it will not achieve what everybody wants it to achieve. I believe that making it mainstream in NHS England should mean that, working with the ICBs, we have a sound approach for the future. I am aware that the two previous speakers will be able to hold NHS England to account on whether we get it right or not. I felt that I should be here this afternoon to say that I think it will work, but only because of the sound foundation that NHS Education has left behind.

I also want to echo one concern: that we have to calculate social care needs within the workforce development plan, in particular the needs of leaders of teams in social care, who are often nurses or allied health professionals such as physiotherapists. On that note, I will sit down; I wanted to express my current understanding of the situation.

My Lords, I wish to add briefly to the very useful and interesting debate that the noble Baroness, Lady Merron, has stimulated with her amendment. In so doing, I point out my interest as a vice-president of the Local Government Association.

I support the general direction of the merger. I can see why HR functions need to be streamlined together rather than partly devolved and partly in NHS England. The Minister quite rightly pointed out his business background; I have a background in organisational development and public sector reform, not necessarily in the UK but in Africa and south-east Asia. One of the key failures in the public sector when these organisational structures happen, predominantly for cost reduction reasons—it is always said by those leading them that cost reduction is not the reason, but it is important—is that there are no measurements for success in three, five, 10 and 15 years. Without that, you get a structure without understanding how the structure will deliver exactly what is needed.

So, what are the measurements for success in three, five, 10 and 15 years? Without those, everyone can say there is a target, but no one knows what that target, or bull’s-eye, really is. What are the clear measurements within three, five, 10 and 15 years? If they are not there, how do we know what success looks like based on what the merger was about in the first place? That is really important.

The other part of this is that you can have all the training and numbers you like for the workforce, but if the support, conditions and culture are not right, people will leave, as they are doing now in parts of the NHS. In certain specialties, you cannot get a doctor for money, no matter how much you offer. Part of that is about working conditions, culture and support. How does this merger deal not just with numbers and education but more holistically with the culture and support? For example, in many trusts, junior doctors cannot even get a meal in the evening. You can have all the numbers you want in terms of training, but if people decide not to work because of the conditions, how does that help holistically? How do we ensure we have not just the training and numbers but the culture and support within organisations so that people decide to go and work there?

My final question is simple. All noble Lords who have spoken have mentioned social care. As I said, my question is simple: how does this plan link with a plan for the social care workforce? What problems are envisaged and what mitigation has been put in place to ensure, first, that the two plans work in tandem and, eventually, as a long-term aim —I have heard Ministers talk about this—that staff will be able to move across the organisational divide? How will the links be there? What mitigation is being put in against the risks for a social care plan and a healthcare plan? This is important because people who start with a health problem then require social care to make as good and independent a life as possible. It is important that, when the Government start on one plan, they understand the linkage with the other and the mitigations needed. I hope that the Minister can put the mitigations in place.

As I said, in general, I understand the reasons for this but there are serious questions that the Minister needs to answer to ensure the maximum impact from this merger.

I thank noble Lords for their contributions to today’s debate. As ever, I will attempt to answer the questions as best I can, and I will come back in writing with the details.

First, on when the workforce plan will be published, forgive me for this answer but I cannot resist it. I looked on the HEE website and it will be delivered “at the right time and in the right place”. I could not resist that one. I think the term I am allowed to use is “shortly”, which is different from “soon”, but I will let noble Lords decide. Seriously, however, there is a very detailed plan. While I acknowledge that there are concerns about delays and this being “Treasury-fied”, at the same time, serious questions have been raised, as we would expect. This is leading to a lot more thinking, which is the right thing to happen, provided we come out with the right answer. I hope noble Lords understand that work is going on to ensure deliverability.

I will try to answer the many questions asked, particularly on what the measures of success will be, as raised by the noble Lord, Lord Scriven. From my point of view—it may be personal—we are publishing the workforce plan and the measure of success will be how well this body performs against that. It will not be down to that body alone; it is part of the newly merged entity. As the noble Lord, Lord Scriven, said, it is about recruitment, training and retention.

A key issue, as I know from being tangentially involved in some of the conversations with unions in the last few weeks, is a real recognition on our part that pay is a core issue, but so are things such as hot meals, rest areas for staff and parking. Some of those issues are important “health factors”, if you will excuse the pun, and we are very alive to them.

Turning to the questions raised by the noble Baroness, Lady Merron, and the noble Lords, Lord Allan and Lord Scriven, as I say, it is about looking at savings across the piece. As noble Lords will know, we are talking about quite a considerable structure. The average trust is run by 300 or 400 admin staff; an ICB has 700 staff; a region has 650 to 700 staff; the NHS itself, at the centre, has 4,000 staff; and the Department of Health and Social Care accounts for another 3,500 to 4,000 staff. I think we would all agree that layer upon layer of management is not good, from not only a cost and efficiency point of view but a management point of view. We all talk about our various backgrounds, and speaking from mine, the fewer layers you have between the so-called management and the front line, the better. That is the wider picture of what we are trying to do here.

I totally agree. I think Tesco, for example, has four levels of management between the customer and the chief executive. But I hope the Minister understands that, regardless of layers—this may not make me popular outside this place—the NHS is one of the most effective health services in western healthcare in terms of management costs. I hope the Minister does not take the populist view that having a go at the managers suddenly makes savings. We have to get the balance right. On comparators, the NHS is significantly well placed in the western world in terms of its cost ratio of managers to patient care. I hope the Minister will accept that.

The noble Lord is right: it is about the effectiveness of the layers. I come at this from the view, “How do we make this most effective?” That is the major gain to be won from all this.

The noble Baroness is right to bring up the issue concerning the Secondary Legislation Scrutiny Committee. I have spoken to all the staff in the DHSC about it, and I have given assurances to the House on the importance we attach to it. I am meeting the Leaders of both Houses tomorrow to discuss how we are working to make improvements in this space. Hopefully, we are making progress.

I thank the noble Baroness, Lady Watkins, for her contribution. It is fantastic to have her on the board, given her experience. Several noble Lords asked about the social care element. As we know, the situation is slightly different because most people in the social care space are employed by third-party organisations. There will not be a direct read across, but the Minister will be announcing shortly the next version of People at the Heart of Care, which aims to address a number of issues. It is probably best to wait for that, and we can take it from there.

I have tried to cover as many of the issues raised as possible, and I am quite happy to follow up in writing any I have missed. Reassurance was sought regarding current training budgets, pointing out that, while we want to make savings where possible, we need to know they are being made in the right place. A separate board structure is being set up within the organisation to make sure that such matters are separately scrutinised and not lost within the overall picture, because it is understood how vital that is. These are all elements I will try to cover more completely in a written response.

That is a helpful answer. To be clear, you can have a separate board, but if the budget is not ring-fenced, all that they are scrutinising is a smaller budget. I think the question that was asked—although maybe not specifically—was, will the training budgets be ring-fenced and will the board therefore be looking after a ring-fenced budget?

I think that is probably one element I need to come back to the noble Lord on in writing.

As I said, I will try to follow up the questions in detail. I welcome the contributions of various noble Lords and their understanding of what we are trying to do here. I understand the arguments, as an ex-management consultant, regarding centralisation versus decentralisation and how they go in and out of fashion. This is a slightly different case because it is about bringing a core function in house. To me, that is the key change and the key thing we will be seeking to measure. As well as setting out clinical needs, the key role of the NHS at its centre is making sure that it is recruiting, training and retaining talent to meet the workforce plan needs. On that note, I thank noble Lords for their contributions and hope that my follow-up answers any questions that I missed.

My Lords, I am grateful to the Minister for his response, and to the noble Lords who have spoken in this debate: the noble Lords, Lord Scriven and Lord Allan, and the noble Baroness, Lady Watkins. I did smile when the noble Baroness gave us an update on the workforce plan, which I am sure was helpful to the Minister, and I also wish her well in her new role.

As the Minister and your Lordships’ House will have equally understood, this is not about the actual steps that are being taken. We have had a useful debate to pull out some aspects, but the regret Motion is about the workforce and, in particular, the failure to have produced a workforce plan. This is not something recent from the last year or so. We have to remind ourselves that this Government have been in government for 13 years, and still we wait. For every day we wait, we lose an opportunity—as noble Lords have said—to plan for the future, as well as to deal with the immediate, and that is what motivated me to put forward this amendment.

We are all in agreement today that a workforce plan has to be for health and social care, which are inextricably linked, and has to not sit on the fence—well, it may; we will see. The plan has to not sit on a shelf but be fully resourced and do the job it is intended to do. We will look forward to holding the Minister to account on that point, as I know he expects.

Regrettably, I do not believe that in this debate the Minister has addressed the shortcomings of the regulations before us. Those shortcomings are somewhat unnecessary, which is a great shame because overall the statutory instrument is one that will be beneficial. It is a shame that we have had to debate it in this fashion. With that, I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.

Motion agreed.

Arrangement of Business


My Lords, given the importance of the issue raised by the Statement we are about to hear, the Lord Speaker has waived the House’s sub judice resolution. However, I ask noble Lords to exercise caution and avoid referring to the detail of any cases that are currently or soon to be before the courts to avoid any risk of prejudicing proceedings, particularly criminal proceedings.

Baroness Casey Review


My Lords, I shall now repeat a Statement made in another place:

“With permission, Mr Speaker, I would like to make a Statement on Baroness Casey’s review of the Metropolitan Police. I wish to put on record my thanks to Baroness Casey for undertaking the review on such a difficult and sensitive topic with the utmost professionalism.

The Metropolitan Police Service plays a big role in our country: tackling crime throughout the capital and keeping 9 million Londoners safe; preventing terrorism nationally; and managing significant threats to our capital and country. I back the police. I trust them to put our safety before theirs, to step into danger to protect the most vulnerable, and to support all of us at our most fearful, painful and tragic moments. Many of us can never imagine the challenges that regular police officers face every day. That is particularly poignant as tomorrow marks the sixth anniversary of the murder of PC Keith Palmer in the line of duty while he was protecting all of us in this place. For their contribution, I am sure all Members will join me in thanking the police for their work.

But there have been growing concerns around the performance of the Metropolitan Police and its ability to command the confidence and trust of Londoners. That follows a series of abhorrent cases of officers who betrayed the public’s trust and hideously abused their powers. In June last year, His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services announced that the force would be put into an Engage phase. In July, the Government appointed Sir Mark Rowley to the post of Metropolitan Police Commissioner, with the express purpose of turning the organisation around.

Today’s report, commissioned by Sir Mark’s predecessor, makes for very concerning reading. It is clear that there have been serious failures of culture, leadership and standards in the Metropolitan Police. That is why Sir Mark Rowley’s top priority since becoming commissioner has been to deliver a plan to turn around the Met and restore confidence in policing in London. Baroness Casey’s report finds: deep-seated cultural issues in the force; persistent poor planning and short-termism; a failure of local accountability; insularity and defensiveness; and a lack of focus on core areas of policing, including public protection. She also highlights the recent decline in trust and confidence in the Met among London’s diverse communities.

The report underlines the fact that the Met faces a long road to recovery. Improvements must be made as swiftly as possible, but some of the huge challenges for the organisation may take years to fully address. Baroness Casey is clear that Sir Mark and Deputy Commissioner Lynne Owens accept the scale of those challenges. I know that to be true from my own work with them. I will ensure that the Metropolitan Police has all the support it needs from central government to deliver on Sir Mark’s pledge of more trust, less crime and high standards. Every officer in the force needs to be part of making those changes happen.

As I said as soon as I became Home Secretary, I want all forces to focus relentlessly on common-sense policing that stops crime and keeps the public safe. The Government are already providing the Metropolitan Police with support to do just that. Funding for the force will be up to £3.3 billion in 2023, a cash increase of £178 million compared with 2010, and the force has by far the highest funding per capita in England and Wales. As a result of the Government’s police uplift programme, the Metropolitan Police has more officers than ever before—over 35,000 as of December last year. The Home Office is providing funding to the force to deliver innovative projects to tackle drug misuse and county lines. We are working with police and health partners to roll out a national “right care, right person” model, to free up front-line officers to focus on investigating, fighting crime and ensuring that people in mental health crises get the right care from the right agency at the right time.

It is vital that the law-abiding public do not face a threat from the police themselves. Those who are not fit to wear the uniform must be prevented from doing so. Where they are revealed, they must be driven out of the force and face justice. We have taken steps to ensure that forces tackle weaknesses in their vetting systems. I have listened to Sir Mark and his colleagues; the Home Office is reviewing the police dismissals process to ensure that officers who fall short of expected standards can be quickly dismissed. The findings of Baroness Casey’s review will help to inform the work of Lady Angiolini, whose independent inquiry, established by the Government, will look at broader issues of police standards and culture.

I would like to turn to two particularly concerning aspects of Baroness Casey’s report. First, it addresses questions of racism, misogyny and homophobia within the Metropolitan Police. Baroness Casey has identified evidence of discriminatory behaviour among officers. I commend those officers who came forward to share their awful experiences with the review team. Discrimination must be tackled in all its forms, and I welcome Sir Mark’s commitment to do so. I will be holding the Metropolitan Police and the Mayor of London to account by measuring their progress. I ask Londoners to judge Sir Mark and the Mayor of London not on their words but on their actions to stamp out racist, misogynistic and homophobic behaviour. Action not words has been something that victims of police misconduct and criminal activity have asked for.

Secondly, officers working in the Parliamentary and Diplomatic Protection Command perform a vital function in protecting our embassies and keeping us, as Members of Parliament, safe on the Parliamentary Estate. Baroness Casey’s report is scathing in its analysis of the command’s culture. The whole House will be acutely aware of two recent cases of officers working in that command committing the most abhorrent crimes. I expect the Metropolitan Police to ensure that reforms reflect the gravity of her findings, while ensuring that the command’s critical security functions are maintained. The Home Office and the Parliamentary Security Department will work closely with the Metropolitan Police to ensure that that happens.

Although I work closely with the Metropolitan Police, primary and political accountability sits with the Mayor of London, as Baroness Casey makes clear. I spoke to the mayor yesterday; we are united in our support for the new commissioner and his plan to turn around the Met so that Londoners get the police service they deserve. We all depend on the police, who overwhelmingly do a very difficult job bravely and well. It is vital that all officers maintain the very highest standards that the public expect of them. Londoners demand nothing less. I have every confidence that Sir Mark Rowley and his team will deliver that for them. I commend this Statement to the House.”

My Lords, as the son of a Metropolitan Police officer who served for 30 years, I need no reminding of the bravery and service of many police officers, including those around Parliament. As the Minister laid out, tomorrow we will remember the service of PC Keith Palmer, who was killed six years ago in a cowardly terrorist attack on this Parliament.

But there can be no hiding place from this damning report into the culture and behaviour of the Metropolitan Police, and the noble Baroness, Lady Casey, and her team are to be thanked for their exceptional work. It is so depressing to learn that the Metropolitan Police has not done the institutional work to root out racism, sexism and homophobia. The individual case studies in the reports, and the reports given in evidence, show appalling and shocking behaviour going unchallenged. How will all of this change? Why will it change now, following this report, given that so many other reports highlighted these failings in the past?

Even recently, when change was promised and cultural change was made a priority for the police, what does the Casey report say? As an awful example, it says that, following the abduction, rape and murder of Sarah Everard by a serving police officer, there was a “plane falling out of the sky” moment when we should have witnessed real change and reform. Instead, the police failed to understand the gravity and impact of the crimes of a serving police officer, saying that the force preferred to pretend that its own perpetrators were just “bad apples”. The report asks what it will take for the police to wake up and change, so I ask the Minister the same question.

What will the Government themselves do to ensure that the cultural change needed is driven forward? Of course, others have a responsibility, but the Minister has to accept that the Government of our country have a responsibility as well. It is not just at a senior level: what about local commanders? Why did no one realise that having rape kits in overflowing and broken fridges was unacceptable and, as the report says, symptomatic of a force that has simply lost its way?

What plan will there be to stop this? Will the Government take any role in overseeing an action plan for the future? What discussions will they have with not only the commissioner but the inspectorate and the mayor, on an ongoing basis? It cannot be right when a front-line officer tells the review:

“You don’t want to be a victim of rape in London.”

How will racism be rooted out? Why is nothing being done about the fact that, if you are a black officer, you are 81% more likely to be in the misconduct system than white colleagues? I can only wonder what my colleague, my noble friend Lady Lawrence, feels—I know she is not in her place. What do the Government say to the criticisms made by the noble Baroness, Lady Casey, when she points out the eyewatering use of force against the black community? Does the Minister now agree that the Government have a responsibility? How does it help when, despite strong arguments in this Chamber, the Government are extending the use of stop and search powers without suspicion for protest offences? It was said time and again in this Chamber that these powers will be disproportionately used against black and minority communities. The Government themselves need to learn and take responsibility.

It goes on, with the admission that many more officers are being investigated. Is it not simply shocking that, on the media this morning, the commissioner could not say categorically that no predators are still serving within the force? Is it not true that evidence was given about the treatment of gay officers and homophobic police practice? Again, following the Stephen Port inquiry into the murder of four men and the issue of homophobia, promises were made, practices were to be reviewed and change was to be brought about because of police failings. How has nothing happened? What is happening? Does the Minister know?

Therefore, action is needed culturally, but, in the short term, will the Government commit to suspending officers accused of rape and domestic abuse, as we would? Will the Home Secretary introduce mandatory national police standards on vetting, training and misconduct, as we have called for? Does the Minister agree with the report that austerity has profoundly affected the Met, eroding front-line policing? The Home Office has a clear role in driving up police standards. As part of this change, will the Government commit to the Casey report recommendation for specialist units to deal with violence against women and girls, and specialist 999 call handlers for such cases, as we have called for?

Does the Minister agree with me that the time for closing ranks to protect our own has to be over, that the time for defensiveness is over and that the time for denial is over? Trust and confidence have to be restored, and that can be done only by action, not just words. This is the time for that rebuilding of confidence and the restoring of trust. We have to seize the moment and do it now.

My Lords, in my 24 years of parliamentary activity, this has been one of the toughest and hardest-hitting reports that I have read. We must thank the noble Baroness, Lady Casey, for that review.

For decades, there has been racism, sexism, misogyny and homophobia in the Metropolitan Police, and, throughout that time, police leaders have wilfully denied it or have been so embedded in the culture that they do not recognise it. Those who stood up to be counted and reported misconduct were labelled troublemakers, ostracised by colleagues and targeted for misconduct investigations themselves. Some of those who were violent and racist were reinstated, even when they had been found guilty and dismissed.

A chief superintendent told my noble friend Lord Paddick, “You can get away with anything in this job, providing you don’t upset anyone”. Predominantly white male officers had senior officer supporters, while black, female and gay officers did not have the same sponsorship and were more likely to be formally investigated and have their appeals rejected. Even when a senior officer was accused of rape, the reputation of the Met was seen as paramount, and he was allowed to retire on a full pension, with no questions asked. So does the Minister accept that all of this is a failure of leadership at all levels, including that of the Government?

But, of course, in order to support the police, we must recognise that not every black, female, Sikh, Muslim or gay officer has had these experiences. But that does not detract from the fact that there is a corrupting and unhealthy culture that allows unacceptable behaviour to flourish and grinds down those who stand up for what is right.

Things have changed over the decades. For example, overt racism has been replaced by closed WhatsApp groups, to which only a few trusted colleagues are allowed access. Does the Minister agree that disproportionality in stop and search—stereotyping young black men as criminals, for example—demonstrates underlying racism? Does he agree that disrespecting women demonstrates underlying sexism, and that gay officers being afraid of the police demonstrates underlying homophobia? Does the Minister agree that the most important, pivotal change that Sir Mark Rowley has to make, and is making, is to reverse the overarching philosophy of “cover up” rather than “own up”? Does he agree that we need to support him?

Does the Minister agree that armed units such as the parliamentary and diplomatic team attract people who want to dominate and control, rather than cultivating such behaviours? Vetting and screening for these units are clearly inadequate, as is the whole process of vetting, as we have repeatedly raised in this Chamber in relation to having appropriate vetting procedures for both new and continuing officers.

Austerity has made things worse, as the Minister said. He said that, between 2010 and 2023-24, they have increased the cash budget of the Met by £178 million on a £3.3 billion budget over 13 years. I do not think that that is a magnificent increase, but it has certainly been reflected in the fact that we have only half the number of PCSOs in London and that specials have more or less disappeared. It means that there is a major role for the Government to play in putting things right. The Government have to assess whether they are funding the Met properly, and whether those resources are being used to the best effect.

The Home Secretary, the Mayor of London and the commissioner must all take responsibility for rescuing the Met from destroying itself. So I ask the Minister: what role do the Government see that they must play in making that change happen, given that they have sat around for all this time and we have not yet seen the results? It is clear that, despite all those repeated reviews—from Scarman, Macpherson and the HMIC—the force’s toxic culture has never been properly addressed. But this time it has to be. The leadership in the Met and the Home Office must view this as a precipice moment. The Home Secretary must take personal responsibility for this and must draw up an urgent plan. Can the Minister say what the plan is and what timescales they will use to show progress that goes beyond the tick box? The stakes are too high for anything less. The fundamental principle of policing by consent is at stake.

My Lords, I thank both noble Lords who have spoken. I will also take this opportunity, as the noble Baroness, Lady Casey, did, to thank the vast majority of police officers in London, who, frankly, must be as depressed as we all are by reading the awful findings of the report.

It is paramount that public trust in the Met is restored. The Home Secretary is committed to ensuring that the commissioner and the Mayor of London will be held to account to deliver a wholesale change in the force’s culture. Of course, there is more to do, and the nature of that mission of rooting out unfit officers will probably mean that more unacceptable cases will come to light. I am not surprised that Sir Mark was unable to answer that question directly.

However, as I have already said, we should not overlook the many officers working in the Met who carry out their duties with the utmost professionalism—I emphasise that point. I am also confident that, under Sir Mark’s leadership, progress is being made to reform standards and to deliver common-sense policing for Londoners. The noble Baroness, Lady Casey, was very explicit about this; she said that Sir Mark and his deputy, Lynne Owens, have her trust—and they also have the Government’s trust. The Government are driving forward work to improve culture, standards and behaviour across policing, which includes strengthening vetting and reviewing the dismissals process, which are subjects I will come back to.

On the subject of institutional racism, sexism and homophobia, it is obviously clear from the report that recent cases, including instances of all those things, in parts of the Metropolitan Police are completely unacceptable. It has been made very clear that standards have to improve in this area as a matter of considerable urgency. The Met has to rebuild trust, improve standards and keep all Londoners safe from harm, regardless of their background. Urgent steps must be taken now to bring this change and to right those wrongs. It is critical that we do not lose momentum and that we come together with the Met to drive this much-needed change.

The noble Lord, Lord Coaker, asked what action the Home Office is taking now. At this precise moment, the Home Office is closely monitoring the progress that Sir Mark is making to deliver the transformation that is required in the Metropolitan Police through regular attendance at the MPS’s turnaround board meetings and in the chief inspector-chaired policing performance oversight group. We stand ready, with other system leaders across policing, to consider what further support we may be able to provide to support the action plan that the commissioner has developed. We are working with chiefs and other partners to deliver a programme of work to drive up standards and to improve culture across policing.

I am afraid that I will turn to chapter 8 of the report, because the noble Baroness, Lady Casey, makes it very clear that

“the primary public accountability of the Met for policing London should exist through the Mayor of London, together with his Deputy Mayor for Policing and Crime and the Mayor’s Office for Policing and Crime (MOPAC) oversight arrangements … A dysfunctional relationship has developed between the Met and MOPAC, with defensive behaviours on one side”—

to which the noble Lord, Lord German, referred—

“and tactical rather than strategic approaches on the other”.

The noble Baroness, Lady Casey, has recommended that the mayor chairs a quarterly board, and we support that. As I said in my opening remarks, we will make sure that both the commissioner and the mayor are held accountable on that. But the governance relationship is clear.

Much has been made of the impact of austerity, but I am afraid that I cannot agree because the Government have proposed a total police funding settlement of up to £17.2 billion in 2023-24—an increase of up to £287 million compared with 2022-23. As I have already said, as a result of the police uplift programme, officer numbers in the Met are at a historic high: there were 35,000 in December. On a per capita basis, in 2021 the Met received 57% higher funding per capita than the average for the rest of England and Wales, excluding London, and 24% more funding than the next highest force—Merseyside—which has a higher rate of police recorded offences per 1,000 of the population. Those numbers exclude funding that the Met receives for policing the capital city, counterterrorism and so on. Those numbers speak for themselves: the fact is that funding in London is about £300 per head of the population, compared with an average of just over £200 in the rest of the country.

Obviously, trust in the police is a subject of considerable concern, in particular in some of the communities that have been mentioned. I refer to comments made in the other place by Karen Buck, the MP for Westminster North, who pointed out:

“Neither the long-standing concerns about police culture identified in the Casey report nor the individual instances of racism, misogyny and homophobia in the police can be laid at the door of the cuts to the police budget over the early part of the last decade”.

She was happy to accept that, and I think that we should, too.

Questions have been raised in the report about PaDP—Parliamentary and Diplomatic Protection—and the firearms unit, which make for appalling reading. However, these units provide a vital function in providing protection and ensuring the public’s safety, and we expect the Met to take immediate action to drive reform in these functions and to root out any officers who are not fit to serve. I am pleased to say that considerable progress is already being made on that. In addition to a root-and-branch review, the Metropolitan Police has taken a large number of other steps to ensure that the public can have greater confidence: it is under a new commander, Chief Superintendent Lis Chapple, whom I am sure we all wish well; a third of all sergeants are new; PaDP officers have been prioritised as part of the MPS’s data wash against the police national database; and Operation Onyx is looking at historic misconduct cases that have previously been investigated and resolved, but which have included allegations of sexual offences or domestic abuse over the last 10 years. I am pleased that that work is taking place, and it is good news that it is taking place quickly.

As to the noble Baroness’s recommendation of “effectively disbanding” the PaDP unit, we do not believe that that is appropriate. As I have said, the Met has committed to, and made progress on, overhauling the command, and we expect it to make sure that the reforms reflect the gravity of the recommendation, while also ensuring that the command’s critical security functions are maintained. I think that those expectations are obvious and self-evident.

The noble Lord, Lord Coaker, raised stop and search. We remain of the belief that stop and search is a vital tool to tackle crime and to keep our streets safe. In 2021-22, stop and search removed around 14,900 weapons and firearms from our streets and resulted in almost 67,000 arrests. We are clear that nobody should be stopped and searched because of their race. Extensive safeguards, such as statutory codes of practice and body-worn video, exist to ensure that this does not happen. It is essential that we use data and context on stop and search to provide greater clarity and to reassure the public about its use. That is why the Government have committed to improve the way that this data is reported and to enable more accurate comparisons to be made between different police force areas. We have included new analysis in our police powers statistical bulletin in October 2022, which allows users to compare stop and search rates between the 43 police forces. To be clear: a higher rate should not automatically be regarded as a problem, but the reasons should be transparent and explicable to local communities.

I accept that this can cause disquiet, of course, but I came across these words earlier when I was reading my briefing on this subject and was really rather taken with them. I will read them to noble Lords, who I hope will indulge me. Sharon Kendall, whose 18 year-old son Jason Isaacs was murdered in London, said:

“For those who try and tie the hands of the police in making their job more difficult, I ask you to stop and look at all the murdered teenagers’ faces. If we collectively gave a little more support to the police using stop-and-search and enforcement, things would change.”

I accept that the police have a great deal of work to do to improve the culture—of course I do. However, we should also bear in mind her context and take it very seriously when discussing this subject.

The noble Lord, Lord Coaker, asked about the vetting process. There is already a statutory vetting code for all forces, and the Government have asked the College of Policing to update it to insert stricter obligations for chief officers on how vetting should be carried out within their forces. That is currently out for consultation. On the subject of bans for applicants with histories of domestic and sexual abuse, the revised code will be clearer on obligations on chiefs not to appoint individuals who are not suitable to be police officers.

On chief officers suspending officers under investigation for such allegations, the chief constables have a power in law to suspend police officers either where an investigation would otherwise be prejudiced or the public interest requires the officer to be suspended. In both cases, chiefs must also consider whether temporary redeployment to an alternative role or location would be appropriate. These are rightly operational decisions for chiefs following careful consideration of the full facts and circumstances.

On leadership, I agree that leadership has been found wanting in the police but we have invested £3.35 million from 2021 to 2023 for the College of Policing to create a national leadership centre. As part of this, the college is now in the process of setting and rolling out national leadership standards at key levels in the police service and providing leadership development programmes aligned to these standards. I have spoken to Andy Marsh and the chair of the College of Policing on this subject, as I know has my right honourable friend the Home Secretary. I suspect it is a subject to which we will return, as clearly work needs to be done there.

Lastly, but by no means least, on the subject of violence against women and girls, my answer will include Operation Soteria to which I have referred from the Dispatch Box before. It goes without saying, but I will say it anyway, that rape and sexual violence are devastating crimes that have a long-lasting impact on victims. Protecting women and girls from violence and supporting victims and survivors of sexual violence are a key priority for the Government. It is abhorrent.

The cross-government tackling VAWG strategy and tackling domestic abuse plan set out actions to prioritise prevention, help support survivors, strengthen the pursuit of perpetrators and create a stronger system. In 2021, the then Home Secretary commissioned HMICFRS to inspect the police response to VAWG. It found that while there had been progress, there was more to do to improve the police response. We accepted all the report’s recommendations to government.

To support policing to improve its response, we are funding the first full-time national policing lead for VAWG, Deputy Chief Constable Maggie Blyth, who is driving improvements in the police response. We have added VAWG to the strategic policing requirement, which means it is set out as a national threat for forces to respond to alongside other threats such as terrorism, serious and organised crime, and child sexual abuse. We are providing £3.3 million for domestic abuse matters training and are funding Operation Soteria, which will improve the police response to rape. We have introduced a range of tools and powers to help policing tackle VAWG, including stalking protection orders, sexual harm and sexual risk orders, and forced marriage and FGM protection orders.

I have talked about Operation Soteria from the Dispatch Box before. In the pathfinder forces there are signs of improvement, which is welcome, but I acknowledge that they still do not go far enough. To the Met’s credit, it is one of the first five forces to go into that programme. I forget what the precise terminology is, but it is one of the trial forces.

I accept that there has been a failure of leadership in the police, of course, but I have faith in Sir Mark and I suspect that most of the House will share that faith. The police have a lot of work to do to restore trust, and I hope that has been made clear. There is clearly a long way to go for the Metropolitan Police, but in Sir Mark and Dame Lynne we have a very strong top team, as the noble Baroness, Lady Casey, acknowledged. They are certainly well placed to start and prioritise this work and make sure it is delivered in a timely fashion.

My Lords, does the Minister agree that in the spirit of bipartisanship, on such a dark day for the capital and the country, nobody should double down against the central finding of institutional prejudice? This does not mean that everybody is prejudiced; it just means that there are systemic problems that need to be addressed if we are to tackle these deep-seated problems in the institution.

Secondly, does the Minister agree that it is not just for the mayor or the Government and that Parliament has a role in this, going forward? Some of the many findings in the very difficult but excellent, robust report perhaps require primary legislation—pension forfeiture, robust disciplinary and vetting systems and so on. Is this something that we can continue to discuss together at this terrible time for policing and the rule of law?

I certainly agree with the noble Baroness’s latter point. During my response I omitted to mention the review into police dismissals. Obviously, that is ongoing. It started on 17 January and is expected to last four months and conclude at the end of next month. I cannot imagine for a moment that it will not address many of the more pertinent points made by the noble Baroness, Lady Casey. I quite expect that I will be up here discussing the findings of that review in due course.

As regards the institutional racism and so on, like Sir Mark Rowley I probably would not use that description because it can be misused and risks making it harder for officers to win the trust of communities, but I of course acknowledge the noble Baroness’s point.

My Lords, does my noble friend accept that a particular responsibility rests on the Home Office here? Will he take away an idea and discuss it with his colleagues? Namely, there should be a Minister of Cabinet rank within the Home Office, or maybe detached from the Home Office, whose prime, indeed sole, responsibility should be to be stationed at Scotland Yard supervising what goes on, and answerable to both Houses of Parliament. This is a shameful day for us all, and the Home Office cannot escape its share of the blame.

My noble friend makes an interesting suggestion. There is already a Policing Minister. My personal view is that it would be difficult to station a Minister in a police station, which is effectively what he is suggesting. We need to be very careful to make sure that political oversight and operational responsibility, as the noble Baroness, Lady Casey, calls it, are clearly delineated. I am sorry if he does not like the fact that the noble Baroness pointed to the Mayor of London’s responsibility for the political side of policing in London, but that is what she did in chapter 8.

My Lords, it is obvious that the Home Secretary there is setting up the Mayor of London to be totally accountable. We all know that she has to play a role as well. In fact, it might be good if she stopped using racist, inflammatory language, because that would probably help the situation in the Met. Perhaps the Minister could take that back to the Home Office.

There is also the fact that anyone who has been watching the Met for the past 20 years—and I include myself—knows that nothing in that review is new. We have all raised all those issues many times—the noble Lord, Lord Harris, is agreeing with me. It is not new and should have been dealt with long before.

However, there is one thing in the review that could be fixed if the police actually tried to sort it. The noble Baroness, Lady Casey, makes the point that

“the Met does not look like the majority of Londoners.”

That is a very good point because it is mostly white—82%—and 71% male. Over the years the Met has tried to make itself look more like London, but there is a big problem in that most officers do not live in London. Also, when you have this level of misogyny, racism and homophobia, you do not attract people in. Does the Minister agree that a big move on recruitment might help the situation?