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Grand Committee

Volume 834: debated on Tuesday 14 November 2023

Grand Committee

Tuesday 14 November 2023

Persistent Organic Pollutants (Amendment) (No. 2) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Persistent Organic Pollutants (Amendment) (No. 2) Regulations 2023.

My Lords, I beg to move that these regulations, which were laid before the House on 16 October 2023, be approved.

This instrument adds a new substance called perfluorohexane sulfonic acid—PFHxS for short—including its salts and related compounds, to the retained persistent organic pollutants regulation in response to the listing of this substance under the United Nations Stockholm Convention on Persistent Organic Pollutants. The UK is a party to the convention and is therefore obligated to reflect in UK law the listing of POPs under the convention. This legislative change is permitted by use of the powers available within article 15 of the retained EU regulation on POPs. We have worked with the devolved Administrations on this instrument. These regulations are needed to implement the UK’s commitments under the United Nations Stockholm Convention on Persistent Organic Pollutants. POPs are substances recognised as particularly dangerous to the health of humans, wildlife and the environment. This SI preserves and adds to the current regime for managing, restricting or eliminating POPs in the UK.

Let me turn now to the details of the instrument. At the 10th meeting of the conference of the parties last year, PFHxS was added to the list of substances for global elimination under the convention. This decision was communicated to parties and observers by the UN depository in November 2022. The SI adds this new POP to the list of substances prohibited by law from being manufactured, sold and used in Great Britain.

Secondly, the instrument provides some exemptions from the prohibitions by allowing the unintentional presence of PFHxS at trace levels. These limits define the concentrations at which PFHxS can lawfully be found in a substance, article or mixture, where they are unintentionally present and found in minimal amounts. The SI includes two general limits and one that is specific to its presence in firefighting foams.

This instrument was not subject to consultation because, although it represents an update to existing legislation, it implements an international obligation that the UK is required to put into place in law. There were opportunities for UK stakeholders to feed into earlier engagement, both UK and convention led, at various stages before PFHxS was adopted for elimination under the Stockholm convention. The Government have also initiated public calls for information and opportunities to comment on draft evaluation documents for this substance. We received no evidence to suggest that exemptions or derogations were required by industry in Great Britain. Following that previous engagement, a recent Defra-led consultation on other potential amendments to the POPs regulation stated our intention to list PFHxS in annexe 1 of the POPs regulation in order to meet the UK’s obligations under the Stockholm convention.

A de minimis impact assessment was carried out. It concluded that there is no indication that PFHxS chemicals are intentionally produced or used in Great Britain. As such, this SI is not expected to have an impact on businesses, beyond one-off familiarisation costs. It is also not expected to disproportionately burden small businesses.

The Environment Agency is the delivery body for the POPs regulation for England, and Natural Resources Wales and the Scottish Environment Protection Agency are the delivery bodies for Wales and Scotland respectively. They have been involved in the development of this SI and have no concerns in relation to implementation or resources.

The territorial extent and application of this instrument is Great Britain. Under the Windsor Framework, the EU POPs regulation 2019/1021 applies in Northern Ireland. The devolved Administrations in Wales and Scotland were engaged in the development of the SI and have consented to it being made on a GB-wide basis.

In conclusion, I emphasise that the measures in this SI are needed to implement the requirements of the Stockholm convention by adding the new POP PFHxS, its salts and related compounds to the list of substances prohibited by law. The Environmental Improvement Plan for England has made clear our commitment to support and protect the natural environment, wildlife and human health. This includes our commitment to manage and reduce POPs in the environment. The draft regulations will allow the UK to continue to meet commitments relating to POPs and to continue to implement the Stockholm convention requirements to prohibit, eliminate or restrict the production and use of POPs. I hope noble Lords will support these measures and their objectives, and I commend the draft regulations to the House.

My Lords, I thank the Minister for the information he gave, and I convey the apologies of my noble friend Lady Bakewell, who is unable to be here today—I am standing in her place. The Minister spoke about PFHxS, but I was under the impression that we would be speaking about PFOAs and the extension of the deadline from July 2023 to 2025. I may have got it completely wrong, but that was the brief I was given.

I listened carefully to what the Minister said. These POPs are very toxic substances, with a long lifetime in the environment. It is not for nothing that they are called “forever chemicals”. So I am pleased that the Government have taken this firm line and will make sure that they are banned—and I am pleased that they are not being produced in the UK.

My Lords, in the absence of my noble friend Lady Hayman of Ullock, it falls to me to thank the Minister for introducing these regulations. The pedant in me needs to point out that we are invited to consider these regulations, not approve them.

The Minister will be relieved to hear that we support the passage of this statutory instrument, which, as he outlined, implements a June 2022 decision on the Stockholm convention, to which the UK is a party, to list PFHxS, its salts and related compounds as prohibited persistent organic pollutants—POPs. The Explanatory Memorandum notes that PFHxS is

“one of the most frequently detected and predominant PFASs in human blood”.

Although not all PFAS chemicals are POPs, it is worth acknowledging the significant threat posed by many PFASs. These forever chemicals degrade incredibly slowly, bringing a risk of large-scale health and environmental effects. From the debate in another place, I understand that more of these chemicals are due to be listed as POPs under the Stockholm convention in the near future. Is the Minister able to provide any timeline for the designation of these additional chemicals? Will the Minister commit to bringing forward further statutory instruments as quickly as possible?

As my colleague, Ruth Jones MP, noted, this instrument represents

“a very good example of common sense alignment with our neighbours”.—[Official Report, Commons, Second Delegated Legislation Committee, 13/11/23; col. 5.]

Close cross-border co-operation on environmental and chemical threats is vital. It is for that reason that we were puzzled by the Government’s decision not to seek an ongoing relationship with the EU’s REACH programme —the system for the recognition, evaluation, authorisation and restriction of chemicals. The replacement UK REACH scheme is still very much in its infancy, with worryingly little information about how it will work in practice. Recent media reports suggest that the department will require less hazard information from chemical companies when they register substances in the UK. Can the Minister confirm whether that is the case and whether an impact assessment will be made available in due course?

While this SI keeps us in step with international partners in relation to POPs, there is a perception that the UK is falling behind on broader chemical regulation. That flies in the face of promises made by a variety of Prime Ministers, Secretaries of State and Ministers. While we support the passage of this instrument, I hope the Minister will accept that the Government have work to do to convince colleagues that the necessary steps are being taken to preserve the health of the population, wildlife and the natural environment.

I thank noble Lords for their contributions to this debate. The regulations debated here today ensure that existing legal provisions for the prohibition and restriction of the manufacture, placing on the market and use of POPs will be extended to the new POP substance PFHxS, following its addition to the list of POPs for global elimination under the Stockholm convention. This will contribute to the protection of the current and future health of the population, wildlife and the environment of the United Kingdom and the rest of the world.

I greatly appreciate the remarks made by the noble Lord about co-operation. We are seeking to fulfil our commitments to the Stockholm convention and to make sure that business understands that we are aligning with our closest trading partner, the EU. Of course, this has implications for the Windsor Framework and will ensure that there is a single standard on this chemical across the EU, Great Britain and the United Kingdom.

The noble Lord raised important points about REACH, and I will seek to cover them now. This instrument is about the management of POPs, which sits outside the REACH regime, as he understands. The POPs regime differs from the REACH regime in that there is no requirement on businesses to register POPs chemicals. The 2023-24 UK REACH work programme will be published by the Health and Safety Executive in due course, following approval by the Secretary of State and devolved government Ministers. It is worth noting that this instrument is now, as I said, outside the REACH programme.

We are developing an alternative transitional registration model for UK REACH. The aim is to maintain or improve existing human health and environmental protections in line with our international commitments, as we are doing with this measure, while reducing the cost to businesses transitioning from EU REACH to UK REACH. On Thursday 9 November, we announced the outline for the transitional registration model, including refining what information registrants will need to provide on how their chemicals are used in Great Britain and what that means for exposure for people and the environment. This will ensure that we reduce to the essential minimum hazard information required for transitional registrations for chemicals that were already on the market at EU exit. This will mean that UK REACH registrants will not generally need to access and pay for data packages held by EU industry consortia. It will also ensure that we improve regulators’ powers so they can require and receive data from registrants quickly for regulatory or risk prioritisation purposes, ensuring that we can respond to new and emerging risks. A consultation on the proposals will be published early next year.

This is a very important issue for a number of noble Lords on all sides of the House. I understand the points that the noble Lord made. Defra asked the Environment Agency and the Health and Safety Executive to examine the risks that PFAS posed and to develop a regulatory management options analysis. This makes recommendations for risk management measures for PFAS and was published in April this year.

Ministers accepted the recommendations, which include work under UK REACH to reduce PFAS emissions by developing UK REACH restrictions, beginning with restrictions on PFAS in firefighting foams. Defra is taking forward the recommendation to bring together work on PFAS strategically through development of a cross-government chemicals strategy and the creation of a working group on PFAS. Aspects such as drinking water standards and F-gases review will be considered within this overall policy development and subject to further ministerial engagement. I hope I have convinced the noble Lord that we are taking this matter extremely seriously. Business wants clarity, and we are working hard to achieve that.

As I have outlined, the changes introduced by this instrument will ensure that the UK can continue to implement its obligations under the Stockholm convention, which aims to protect the health of populations, wildlife and the environment from harmful persistent organic pollutants. I commend the draft regulations to the Committee.

Motion agreed.

National Minimum Wage (Amendment) (No. 2) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the National Minimum Wage (Amendment) (No. 2) Regulations 2023.

Relevant document: 53rd Report from the Secondary Legislation Scrutiny Committee, Session 2022–23

My Lords, these regulations were laid in draft before the House on 13 September 2023. This statutory instrument will help ensure that so-called live-in domestic workers will be paid at least the national minimum wage for the time that they are working. The live-in domestic worker exemption was part of the National Minimum Wage Regulations and provides that work done by a worker residing in the employer’s family home and treated as a member of the family is not work for the purposes of the national minimum wage and therefore does not have to be paid the national minimum wage. The exemption was originally created mainly to cater for au pairs, so that they should gain experience of cultural exchange through living and being a part of a family in the UK, although the legislation covers other types of domestic workers as well.

Currently, the National Minimum Wage Regulations state that workers do not need to be paid the minimum wage if they live with their employer and are genuinely treated as part of the family. Such treatment is particularly expressed in the provision of living accommodation and meals, sharing of tasks and leisure activities. The exemption is not compatible with most jobs, and it is hard to prove whether someone is or is not being treated as a family member. The removal of the exemption will remove the inequality facing these workers, who are more likely to be migrant workers and women.

In 2016, an employment tribunal judgment considered whether the exemption indirectly discriminates against women, as such workers tend to be women. The employment tribunal found the exemption had given rise to unjustified indirect discrimination, and thus the exemption was disapplied in this case. After the employment tribunal judgment on live-in domestic workers was published, the Government asked the Low Pay Commission to research low-paid live-in domestic workers.

In 2021, the Low Pay Commission published research into the live-in domestic worker exemption. During the gathering of this research, the commissioners came to a consensus conclusion that the exemption should be removed. The Low Pay Commission heard evidence of employers using the exemption to exploit domestic workers, often non-British nationals, who were required to work long hours and were not fully treated as members of the family. They found examples of domestic workers suffering abuse, including physical abuse, with little recourse for enforcing their employment rights. The commission found that the exemption is rarely being used for its intended main purpose, as in practice there are now few au pairs in the UK.

The Low Pay Commission’s extensive evidence in 2021 on this issue provided a clear recommendation to government that the exemption should be removed. The Government accepted the Low Pay Commission recommendations and announced that the live-in domestic worker exemption would be removed in March 2022. During this period, the employment tribunal decision was appealed, and the Employment Appeal Tribunal agreed earlier this year that the exemption should be disapplied. These decisions established the removal of the exemption as a matter of case law.

Taking into account the existing case law and other more general legislation, live-in domestic workers have reasonable arguments that they are entitled to be paid the national minimum wage. However, this is not a matter of certainty, and therefore with the National Minimum Wage (Amendment) (No. 2) Regulations we are putting the matter beyond doubt by amending our regulations to remove the exemption from the date that the amendment comes into force. In the meantime, we recommend that live-in domestic workers are paid the national minimum wage in this short interim period.

These amendment regulations remove uncertainty and the risk of accidental national minimum wage non-compliance within this workforce. These regulations need to be put forward to make sure that the workers, and the families that hire these workers, are able to clearly understand the national minimum wage laws for live-in domestic workers. These amendment regulations will ensure that live-in domestic workers are paid at least the relevant minimum wage rate, providing protection from exploitative low pay.

HMRC will enforce the national living and minimum wage for this group, in line with other sectors. HMRC enforces the national minimum wage in line with the law and policy set by DBT. HMRC follows up on every worker complaint it receives, even those which are anonymous. This includes complaints made to the ACAS helpline, via its online complaint form and those received from other sources.

The policy will ensure that all work is treated fairly and will end the misuse of the exemption to exploit workers, particularly migrant women. The overwhelming majority of workers covered by this exemption are employed by families, not by businesses. The impact on businesses will therefore be negligible. However, many vulnerable workers will now enjoy the same protections that almost all other employees receive.

As live-in domestic workers will be entitled to the national living and minimum wage, I would like to remind the House of the achievements of the national living and minimum wage. The Government remain committed to their ambitious target for the national living wage to equal two-thirds of median earnings by 2024, provided that economic conditions allow. We look forward to announcing the 2024 rates in due course. The national living wage, which applies to those aged 23 and over, increased to £10.42 an hour in April 2023. As a result of this increase, a full-time worker on the national living wage has seen their annual pay increase in excess of £1,600 per annum. This increase ensured that our national living wage rate remains one of the highest in the world.

These regulations will provide clarity to live-in domestic workers and the families who employ these workers. With this exemption removed in legislation, there will be no ambiguity between what is in case law and the statute book. Through the national minimum wage and the national living wage the Government protect the lowest paid within our society. It is right that we ensure that the lowest paid are fairly rewarded for their contribution to the economy, and ensuring live-in domestic workers are entitled to the national living wage is vital to achieving this. Protecting workers’ rights, especially those of vulnerable workers, is a priority for this Government and therefore we have taken action to remove this exemption.

This does not remove the right to have a live-in domestic worker, such as an au pair or other domestic staff; it just removes the right to pay them less than the national minimum wage. This is the right thing to do to help protect these vulnerable workers and make it clear that our legislation reflects the case law on this issue.

I thank the noble Earl for his comprehensive introduction to this SI, which deals with regulations as to work in a family household, and rightly seeks to protect such workers by acknowledging their rights as workers and not as some inferior being. On my Benches, we support this new regulation.

The Minister expanded beyond this SI, for which I am grateful, so can I use the opportunity to say to the Minister that this is only one such unfair anomaly? Could I also call attention for the need of the abolition of the separate apprenticeship wage? I had a briefing from the End Child Poverty coalition, which talked about how this is a barrier to young people from less well-off backgrounds going into apprenticeships, because they are not sustainable.

Could I also ask for an assessment on the policy of having different wages for different ages? Is this the right thing to do? The cost of living is the same no matter how old you are, and it is hugely ignorant of the Government to assume that young people will be able to have support from their families.

Finally, unfairness goes right through the system. Could the Minister comment on the policy of paying under 25s less universal credit? This is punitive, particularly for young parents and care leavers. Again, we cannot assume that parents can or will give financial support to their adult children.

I welcomed the Minister’s expansion on this SI, and what the Government are doing, but I have tried to point out that there are still some gaps, which I hope the Government will remove in ensuing legislation and statutory instruments.

My Lords, I am not going to ask the Minister questions on the regulations, which I think are fine.

But the background to this is fascinating. I was a founder member of the Low Pay Commission 25 years ago, and the complexity of establishing the minimum wage was quite fantastic. I remember that, when the legislation was settled, we had some very indignant lobbying from the au pair association to say that we were basically killing off the ability to have au pairs. I have to say that it was not a prominent consideration for the original Low Pay Commission, although I am sure that that was neglect on our part. But there was certainly, to some extent, an anomaly. So when that exemption was established, it then of course created the difficulty about live-in domestic workers.

One priority of the Low Pay Commission was for situations when people had complete power over an individual. The then chair, Sir George Bain, who was formerly director of the London Business School and vice-chancellor of Queen’s University Belfast, used the word monopsony, which some of us had never heard of as individuals. But we became very expert on the subject of monopsony—basically the power of an employer to tell an employee what to do, and the employee feeling that they have no choice. Very often they were people such as agricultural workers in rural areas and piece workers in declining industries—but they were particularly domestic live-in workers. So for the Government to right this anomaly is very welcome.

There were all sorts of areas that we had to clarify when the minimum wage was established, not least whether London weighting was in or out, how you calculated piecework and how you dealt with the accommodation off-set. I remember going to visit a monastery down in Devon, where we were shown around, helping us to calculate what the importance of accommodation off-sets was. I also note overtime. All those complexities helped to set up what I think was a great social reform.

It is a credit to this Government that they kept it going; I honestly thought that they might go back on it when they got elected. I just wanted to give that little bit of background and say that this is not just a little regulation about a few people; this is quite an important issue, which is about that old principle of monopsony.

My Lords, I thank the Minister for the overview and explanation of the statutory instrument. We on this side very much welcome this instrument. I thank my noble friend Lady Donaghy for her contribution and for bringing us up to speed on what happened 25 years ago.

As many noble Lords know, the national minimum wage was introduced on 1 April 1999 by the last Labour Government. It creates an obligatory threshold pay level. At the time, the party opposite argued that it would cost millions of jobs, but, 25 years later, this has not happened. In fact, the national minimum wage has had negative effects on the overall UK labour market. Today, around 1.6 million workers—roughly about 5% of all UK workers—are paid at or below the minimum wage. When there is such high inflation and a sustained cost of living crisis, this is just not good enough. Employers should be encouraged to recognise that making work pay with a real living wage and strong workers’ rights is good for growth and for the economy.

This statutory instrument removes the option for a person who resides in a domestic family home, but who is not a member of the family, to be asked to do work in a household without remuneration. This means that a potential loophole by which the unscrupulous employer could require someone living with them and treated as a member of the family to unreasonably be expected to perform jobs in the home without being paid at all. From 1 April 2024, such tasks will now have to be paid at the relevant band of the national minimum wage.

Does the Minister have figures for how many employees —nannies, au pairs and other domestic workers—can expect their income to increase as a result of this change in legislation? Can he also indicate which channels or organisations the Government plan to utilise to alert affected workers to their new rights, especially as I imagine some may not be British citizens or have any union representation? Given the sensitivity of employee-employer relationships in a domestic situation, can the Minister inform your Lordships’ House what provisions are in place to support workers who might find themselves in vulnerable situations, or even potentially homeless, if their employer refuses to recognise their right to be fairly paid as a result of these changes, since their access to legal advice may be very limited? Finally, as well as making people aware of their rights and offering support when made aware, will there be any more proactive steps to ensure that as few people as possible slip through the cracks?

My Lords, I thank noble Lords for their valuable contributions during today’s short debate. These regulations will reward low-paid live-in domestic workers right across the country so that they are paid fairly for the work they do. It will give more clarity on wage regulations for the families that employ these workers, making sure they are paid the national minimum wage. It will also ensure that HMRC enforces the national living wage and national minimum wage for live-in domestic workers, in line with other sectors. The legislation will ensure that all work is treated fairly, and it will end the misuse of the exemption to exploit workers, particularly migrant women.

I will now take the opportunity to answer some of the specific questions asked by noble Lords. The noble Lord, Lord Palmer of Childs Hill, said that this is only one of the unfair anomalies in operation at the moment. The Government accept that and are working as hard as they can to ensure that this is dealt with. The question about different ages and rates is certainly something that I have always found quite difficult to come to terms with—I always paid everybody the same amount, regardless of their age. I can see the argument for bringing people up to a certain level as they leave education and start building up to a full-time job while living at home. Certainly, the Government have moved to narrow the gaps and, as I said, the full national living wage is a significant salary—that is good news. I will write to the noble Lord about the issue of less universal credit. I do not think that it is our policy to take away universal credit, but I will write to confirm that that is the case.

The noble Baroness asked about au pairs. I am advised that there are still 45,000 au pairs in this country, which is a surprisingly large figure. Although it is a small number in the total scheme of the 1.6 million workers, this is an important step to take—I suspect there are a lot of other people who are not covered by the au pair qualification. Clearly, it is the responsibility of HMRC to police this, and it has been given a substantial increase in the funds it can address towards this area. As I said, it follows up every single report it gets about this. Of course, there is a link to slavery and all sorts of things, which one worries about deeply. On the accommodation off-set, I rather like the idea of the monastery. That does reduce the national living wage but at a reasonable rate—I think it is about £1 per hour at the moment, or something like that.

The point of the noble Lord, Lord Leong, about the 1.6 million was well made. The Government have been absolutely committed to the national minimum wage and the national living wage, and they will continue to drive that through as far as possible. We will certainly encourage employers to ensure that this amendment is widely known; I will write with the detail on that. Equally, we will take seriously support for workers, particularly those who are homeless. I hope that covers the specific points raised.

I conclude by extending my thanks once again to the Low Pay Commission—it is wonderful to have an original member in our company. Thanks to its independent and expert advice on this national minimum wage exemption, we can ensure that the right balance is struck between the needs of workers, affordability for business and the wider impact on the economy and the families involved. Again, we look forward to receiving its recommendations for the 2024 rates, which will be published later this month. I commend these regulations to the Committee.

Motion agreed.

Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023.

My Lords, I shall speak also to the Occupational Pension Schemes (Amendment) (Equal Treatment) (Northern Ireland) Regulations 2023, the Pensions Act 2004 (Amendment) (Pension Protection Fund Compensation) Regulations 2023 and the Pensions (Pension Protection Fund Compensation) (Northern Ireland) Regulations 2023. These regulations were laid before this House on 18 September 2023. In my view, the provisions in these sets of regulations are compatible with the European Convention on Human Rights.

When the UK left the European Union, much EU law was initially preserved to ensure legislative continuity. Now, however, some pieces of law need to be restated. This is because following the Retained EU Law (Revocation and Reform) Act after 31 December 2023 certain retained EU law addressed in court cases will stop applying. Therefore, to remove any legal ambiguity for occupational pension schemes, DWP is restating the law addressed in three court cases—Allonby, Walker and Hampshire—the former only in relation to the extent that it applies to guaranteed minimum pensions.

We will be debating four sets of regulations: a set of two instruments for Great Britain and Northern Ireland covering the Allonby and Walker judgments and a similar set of two instruments for the Hampshire judgment. At the request of the Northern Ireland Executive, the Government have agreed to legislate on behalf of the Department for Communities in Northern Ireland. I will start therefore with the Pensions Act and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023 and its Northern Ireland equivalent that relate to the Allonby and Walker judgments.

Allonby is about the right to equal pay between men and women where discrimination has arisen in an occupational pension scheme because of legislation on guaranteed minimum pensions—GMPs. Regulation 2 restates the law dealt with in the European Court of Justice’s Allonby judgment, but only to the extent it applies to guaranteed minimum pensions legislation from 17 May 1990 onwards. I will provide a little background, as there are a few things that need to be brought together. First, GMPs, which were a part of the occupational pensions system from 1978 to 1997, are unequal for men and women, reflecting general differences in treatment between men and women in legislation at the time. There are disparities, including the age at which guaranteed minimum pensions can be paid: age 65 for men and age 60 for women. These differences in treatment can result in men and women in identical employment receiving different amounts of pension benefits from their occupational pension scheme.

Secondly, the European Court of Justice’s Barber judgment of 17 May 1990 found that pension benefits must be paid to men and women on an equal basis for pensions earned from the judgment date onwards. This means that pension schemes are required to equalise pensions to correct the unequal impact caused by members having a GMP.

Thirdly, in 2004, the European Court of Justice’s Allonby judgment found that where legislation is the source of discrimination, it is not necessary for a claimant to be able to point to a real-life opposite sex comparator.

This brings us to the Equality Act 2010, which requires schemes to have an equal treatment rule; anything in a pension scheme’s rules that treats one sex less favourably than the other should be read as if it does not do so. However, this applies only when there is a real-life comparator. If a woman wanted to show that she was being treated unequally, for example, she would have to point to a real-life man who was being treated differently. In some pension schemes this was difficult to prove. Noble Lords will remember occupations such as dinner ladies or miners.

The effect of the Allonby judgment was to override this requirement of the equality legislation as it applied to GMPs earned from 17 May 1990. Therefore, because of Allonby, schemes are required to equalise pensions for the unequal effects caused by the GMP legislation even in the absence of a real-life comparator. Regulation 3 will make the same changes for the Pension Protection Fund.

I turn to Regulation 4. The Walker judgment was about pension rights on which survivor benefits are based where a member is in a same-sex marriage or civil partnership. Survivor benefits are important because they provide the member with a degree of reassurance that, should the worst happen, their surviving spouse or civil partner will continue to receive some ongoing financial support from the member’s scheme.

I will provide the Committee with some background history. Before 2005, same-sex couples could not enter into a legally recognised relationship such as a marriage. This meant that often they did not have that same reassurance. While same-sex civil partnerships were introduced in December 2005, occupational pension schemes were permitted to calculate civil partnership survivor benefits based on the scheme member’s pension rights earned only since that date. The result of this was that someone who retired in 2010 could have 40 years of pension rights built up over a lifetime, but their civil partner could inherit less than five years of survivor benefit rights. A determined man, Mr Walker, challenged the legislation. The UK Supreme Court concluded that the exception to the non-discrimination rule in the legislation was not compatible with the EU’s framework directive on equal treatment in employment.

The Government remain committed to the outcome of the Walker judgment. It is therefore important to remove any doubt by amending the Equality Act to reflect it. The changes we are making will mean that legislation will not allow schemes to restrict the pension rights used to provide survivor benefits for survivors in a same-sex legal relationship to only those earned after December 2005. The change to legislation will give affected scheme members peace of mind and certainty.

I turn to the Hampshire judgment. I will start by giving some context to the Pensions Act 2004 (Amendment) (Pension Protection Fund Compensation) Regulations 2023 and the corresponding Northern Ireland regulations. These regulations retain the effects of the Hampshire judgment in domestic legislation. Mr Hampshire, a member of the Turner and Newall pension scheme, took early retirement in the late 1990s. His employer subsequently became insolvent and the scheme was assessed by the Pension Protection Fund. Under Pension Protection Fund rules, Mr Hampshire’s benefits were substantially reduced because he was below the scheme’s normal pension age when his employer became insolvent. Mr Hampshire took the Pension Protection Fund to the European court. The court ruled that former employees must receive at least 50% of the value of their pension benefits in the event of their employer’s insolvency.

There was further litigation in the domestic courts which concluded with the UK’s Court of Appeal upholding the High Court’s ruling that the cap on Pension Protection Fund compensation constituted unlawful age discrimination. The cap previously applied to individuals below their scheme’s normal pension age when their employer became insolvent. The Pension Protection Fund is now identifying its members and members of the Financial Assistance Scheme affected by the Hampshire judgment, increasing their payments and paying arrears, where appropriate, to comply with the terms of the judgment. It is also uncapping the compensation payments of its affected members and backdating arrears.

In practice, most Pension Protection Fund members receive more than the 50% minimum established by the Hampshire judgment and few were affected by the compensation cap. However, without the Pensions Act 2004 (Amendment) (Pension Protection Fund Compensation) Regulations 2023 and the Northern Ireland equivalent, the Hampshire judgment would sunset on 31 December, and there would be no entitlements under the judgment in respect of insolvencies arising after that date. Retaining the effects of the Hampshire judgment beyond the sunset date means that all members of eligible pension schemes affected by the Hampshire judgment can be reassured that they will receive at least 50% of the value of their original pension benefits in the event of their employer’s insolvency.

The regulations also remove redundant references to the Pension Protection Fund compensation cap from the legislation to improve its clarity, ensure that it reflects the High Court’s decision, and provide the Pension Protection Fund with statutory cover. The Pension Protection Fund protects most private sector defined-benefit schemes, has almost 300,000 members and offers a vital safety net to members whose employer has become insolvent and therefore can no longer support the pension scheme. These regulations support that safety net.

These regulations will bring reassurance to members of defined-benefit occupational pension schemes, as well as to the pensions industry. All involved can be confident that nothing will change in practice with regard to the effects of the three judgments after 31 December 2023. I commend the regulations to the Committee and I beg to move.

My Lords, I thank the noble Viscount for his complete exposé of all the problems that have existed and how the Government are trying to rectify them. Our Benches agree with these SIs. There is no problem with them. I see other noble Lords have lots of notes; I know from experience that I can be brief knowing that they will deal with the minutiae. This seems to be more rules bringing old EU law into domestic legislation. These SIs raise broader points about discrimination in pensions, which is roughly the scope of the legislation. However, as usual, in bringing old EU laws into place we are missing the opportunity to make pledges to follow the Parliamentary and Health Service Ombudsman’s recommendations. It reports conversations with WASPI—Women Against State Pension Inequality—women. I would appreciate it if the noble Viscount could comment on how that is going to be dealt with.

Will the noble Viscount give the committee an update on the LEAP—legal entitlement and administrative practices—exercise through which the Government are doing a corrections exercise for historic errors and underpayments to women? I understand that these processes are taking place, but I do not know quite how far they have gone or how quickly they are going or when the majority of cases will be dealt with. I hope that the noble Viscount can put a bit of meat on that and give us some timeframe for LEAP and WASPI women, which are two issues close to my heart.

My Lords, I declare my interests set out in the register as a pension scheme trustee. I welcome these statutory instruments and thank the Minister for the clarity of his explanation of their history. The equal treatment by occupational pension scheme regulations before us maintain the protection of the right not to be discriminated against on the grounds of sexual orientation in relation to pension benefits, particularly survivor benefits, which would be lost on 31 December 2023 but for these regulations. That is a pretty compelling reason for welcoming them.

Those protections were originally secured through the EU framework directive for equal treatment and confirmed by our Supreme Court in the Walker case. They apply to occupational pension scheme benefits and to compensation to beneficiaries of pension schemes that enter the Pension Protection Fund.

My first thought was: gosh, the Government are taking things to the wire, time-wise, given that the House rises on 19 December. It does raise worrying concerns about what other pension protections for UK citizens, previously preserved by Section 4 of the European Union (Withdrawal) Act, will be lost because of a failure, whether by intent or neglect, to meet the 31 December 2023 deadline for changes to domestic legislation to be made for them to be retained. What level of confidence can the Minister give the House that all protections of pension benefits for members and beneficiaries preserved by Section 4 of the European Union (Withdrawal) Act are or will be captured in changes to domestic legislation prior to 31 December? Is it intended that some of those protections will not be preserved? If so, which are they?

These regulations also restate retained EU law on the right to equal pay between men and women where discrimination arises from the legislation on guaranteed minimum pensions by amendments to the Equality Act and the Pensions Act 2004, so the right continues to apply to occupational schemes and PPF payments. Very importantly—it is certainly close to my heart—the regulations retain the intent of the 2004 ECJ judgment of Allonby to nullify the requirement for a real-life opposite-sex comparator to demonstrate unequal treatment. Instead, a notional or statistical comparator can be used. That is such an important judgment and it demonstrates the value of the many ECJ judgments that contributed so importantly to progressing gender equality issues. As my noble friend was reflecting, so was I; I was actually a commissioner of the EOC, which supported the Allonby judgment at the time the ECJ pronounced its decision.

Unless the amendments to legislation are made by 31 December, this particular important protection is lost. Again, that is another compelling reason for welcoming these regulations. What level of confidence can the Minister give us that all rights to equal pay between men and women in the payment of pension benefits to members and beneficiaries, previously preserved by Section 4 of the European Union (Withdrawal) Act, are or will be retained in changes to domestic legislation prior to 31 December? While welcoming what we can see, we are nervous about what we cannot see, so we seek assurances on that.

The regulations before us on PPF compensation are also necessary because again, under the Retained EU Law (Revocation and Reform) Act 2023, without them the more generous PPF compensation payment calculations, which flow from the 2018 Hampshire judgment from the European court, would be lost. So too would the effects of the further clarifying 2020 Hughes judgment in the High Court, which was to disapply the then-existing cap on PPF compensation to those below their scheme’s normal retirement age, when the employer became insolvent. The High Court considered that it constituted unlawful age discrimination. For the intent of these judgments to remain, the regulations before us are required by the deadline of 31 December 2023, and of course there is an obvious and compelling reason why they are welcome.

It is very fortunate that the Government decided as policy to retain the effects of these judgments. It would have been a pretty poor show had they not, given the impact on individuals—and particularly so, given that the PPF is currently well funded, so much so that it is reducing its levy. We are very dependent on government to identify those elements of retained EU law to be retained in domestic law. What assurance can the Minister give that every element of retained EU law that impinges on the eligibility of pension scheme members for PPF compensation and the level and value of that compensation will be retained in domestic law after December 2023?

My Lords, I thank the Minister for a very helpful introduction to these orders and particularly for explaining the background to the court cases, which will make reading Hansard for this debate a bit more comprehensible than might otherwise have been the case. I also thank my noble friend Lady Drake, to whose comments I shall return, and the noble Lord, Lord Palmer of Childs Hill, whose confidence in my determination to expose the detail and minutiae I trust will not be disappointed.

All these regulations are a product of Brexit, the gift that keeps on giving. I shall start with the draft Pensions Act 2004 (Amendment) (Pension Protection Fund Compensation) Regulations 2023—the other way around from the Minister. As we have heard, it was prompted by two court decisions: the Hampshire court judgment, whereby the ECJ found that former employees should get at least half the value of their accrued pension benefits if their employer was insolvent before they hit pension age, and Hughes, when the High Court disapplied the cap on PPF compensation for those below normal pension age on the date of the employer’s insolvency.

These regulations amend the Pensions Act 2004 to ensure that affected scheme members receive at least the minimum level of protection due under the Hampshire judgment and remove reference to the PPF cap. Also, interestingly, they clarify how the Hampshire judgment is being implemented by providing a calculation of PPF compensation by reference to a one-off valuation, as approved by the Court of Appeal in Hughes.

As has been noted, action is needed because, under Section 4 of the European Union (Withdrawal) Act 2018, the principles of EU law will sunset at the end of this year and cease to have effect, including where the position has changed as a result of court cases, which is very relevant to us today. The purpose of these regulations is to ensure that the effects of the Hampshire and Hughes judgments will be preserved in domestic legislation. Could the Minister confirm for the record that nothing will change from the current position once these regulations take effect and the relevant EU retained law has sunsetted?

Secondly, paragraph 10.1 of the Explanatory Memorandum reports that the DWP met with a cross-section of representatives of the pensions industry to seek views on its proposed response to the Hampshire judgment. There was broad support for retaining the effects of the judgment—but anybody who has worked in government will know that “broad support” can cover quite a range of views being expressed in the room. Out of interest, was there any opposition to retaining the effects of the Hampshire judgment and, if so, on what grounds? I am just interested in who was in the room.

I have read the draft Pensions (Pension Protection Fund Compensation) (Northern Ireland) Regulations 2023, which look on the face of it to be identical to the regulations I have just discussed, but amending the Pensions (Northern Ireland) Order 2005 instead of the Pensions Act 2004. Can the Minister confirm for the record that the effect of those regulations will be the same as the other ones, but just in Northern Ireland rather than in Great Britain? When regulations are this technical, it is important for the Committee to hear from the Minister what the intention is rather than just taking my word for it—love of detail notwithstanding.

I turn to the draft Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023—these are not catchy titles. These regulations were also prompted by court cases. In the Allonby case—I take the Minister’s point that this is being retained only inasmuch as it relates to GMPs, not its broader findings—the ECJ found that an opposite-sex comparator was not needed to demonstrate discrimination, where that was caused by legislation. In the Walker case, the UK Supreme Court found on the basis of EU equality law that legislation could not allow occupational pension schemes to restrict survivor benefits for survivors of same-sex civil partnerships or marriages so that only contributions from 5 December 2005 matter, when these became possible.

Something the Minister said confused me a little. I think he said that the Government were restating the law to avoid and remove any ambiguity. From reading these judgments, I understood that their contents have so far been resting on retained EU law and that, when that sunsets, there will be nothing supporting them. I may have misunderstood, so perhaps the Minister could clarify that. I understood—or perhaps misunderstood —that these regulations were necessary because without them the contents of those court judgments would not be retained.

Presumably, the Government could have amended domestic law to bring it in line with all these judgments. We have had an awful lot of pensions Bills in the last year; presumably any one of them would have been a means for doing this. Can the Minister explain why that did not happen? Since retained EU law rights will sunset at the end of the year, we need changes to be made. These regulations amend the Equality Act to remove the need for an opposite-sex comparator and they amend the Pensions Act 2004 to introduce the same test for unequal treatment when members are entitled to payments from the PPF. They also amend Schedule 9 to the Equality Act 2010 to reflect the framework directive rights with which the legislation was deemed incompatible.

Will the Minister confirm for the record that the effect of these changes is to maintain the position we are in now, resting on retained EU law? Is the position of the survivors of all marriages and civil partnerships now the same, whatever the sex of either the surviving or the deceased member? Is everybody, in any civil partnership or marriage, in the same position, irrespective of the sex of those involved?

These regulations retain one form of protection, as my noble friend Lady Drake articulated, but still we are left with a significant gender pensions gap, an issue to which the House returns periodically. There are various contributory factors, including the carer penalty and the impact of the gender pay gap that means women are more likely to have lower pension contributions. What plans do the Government have for reforms to reduce the gender pensions gap more widely?

One of the contributory factors is the fact that women are less likely to be eligible for auto-enrolment, so will the Minister tell the Committee when the Government intend to implement the provisions of the Private Member’s Bill sponsored by the noble Baroness, Lady Altmann, which enabled the extension of auto-enrolment from age 18 and set contributions from the first £1 of earnings?

As far as I can tell, the draft Occupational Pension Schemes (Amendment) (Equal Treatment) (Northern Ireland) Regulations 2023 seem to mirror the provisions of the previous regulations but amend the Equal Pay Act (Northern Ireland) 1970 and the Pensions (Northern Ireland) Order 1995, instead of the Equality Act and the Pensions Act. Once again, can the Minister confirm that the effect will be the same, albeit just in Northern Ireland?

Finally, I am really interested to hear the Minister’s response to the question from my noble friend Lady Drake: given how close we are now to the end of this year, are there any other areas where DWP has been relying on retained EU law that will be sunsetted in a few weeks? A clear assurance to the Committee for the record would be very helpful on that point. I look forward to the Minister’s reply.

My Lords, I thank the three noble Lords who have spoken for their general support for these regulations. The noble Baroness, Lady Sherlock, was right when she alluded to there being an element of complexity but, if I may say so, all four of us have seen through that complexity. I appreciate the general support. Nevertheless, I am very aware that a number of questions were raised and, as ever, I will do my best to answer them, in no particular order.

The noble Lord, Lord Palmer of Childs Hill, asked about the WASPI. I understand exactly why he raised that. He will probably expect the only answer that I can give: we are not able to comment on the status of the WASPI at the moment because, as he will be aware, there is an ombudsman investigation ongoing. He has probably heard me say that in the Chamber before; I wish I could say something different, but I am afraid I cannot go any further.

I wish I could as well, but it would depend on when the ombudsman is ready to do so, and I am not aware of when that might happen. Of course, we can always ask, but it is fair to say that if we asked, I think we might know what the reply might be. However, that is a fair question.

I said that this was in no particular order. In answer to a question asked by the noble Baroness, Lady Sherlock, on why there is a reference to resolving ambiguity when these rights arose under EU law—that was towards the end of her speech—in the Pensions Protection Fund regulations, references to the compensation cap in the Pensions Act 2004 are removed by these regulations to reflect the decision in Hughes. I hope that makes sense.

The noble Baroness, Lady Sherlock, asked whether I can confirm that the effect is to maintain the current position. Yes, the regulations reflect decisions of judgments relating to the current position.

I think the question that was asked by the noble Baroness, Lady Drake, as well as the noble Baroness, Lady Sherlock, referred to the effect of the Northern Ireland regulations and whether they are the same as the GB regulations. The answer is yes, the effect of the Northern Ireland regulations is just the same as the GB regulations.

The noble Baroness, Lady Drake, asked a very specific question about whether all protections are preserved, and if they are not, which ones would fall away after 31 December 2023. I think that falls into a number of questions she asked about timing, so I hope I can reassure her by saying that, on the timings leading up to 31 December 2023, I am not aware of any issues or concerns over the timing. I hope that gives some reassurance. However, to put a little more into the answer, the noble Baroness may be aware that the Government have decided to allow the Bauer judgment to sunset under the Retained EU Law (Revocation and Reform) Act. This means that former employees whose employer becomes insolvent on or after the sunset date will not have an entitlement under that judgment. However, I reassure her that I am not aware of any other preserved under Section 4 of the European Union (Withdrawal) Act, which I believe she raised.

The noble Baroness, Lady Sherlock, asked whether the Northern Ireland regulations provide the same effect. The answer is yes—I think I have covered that.

The noble Baroness, Lady Sherlock, asked whether anything will change from 1 January 2024 as regards protection provided by the decisions in Hampshire and Hughes, and yes, that is correct. For insolvencies after that date, the same rules will apply because of these regulations.

The noble Lord, Lord Palmer, raised a question about the LEAP exercise, and I hope I can give a slightly longer and more helpful answer in terms of where we are with that. He will know that the DWP became aware of the issue of state pensions underpayments —which was not addressed under previous Governments— in 2020 and took immediate action to investigate the extent of the problem. The Government have fully committed to ensuring that any historical errors are put right as quickly as possible where underpayments are identified, and the DWP will contact the individuals to inform them of the changes to their state pension amount and of any arrears payment that they will receive. My department in its annual report and accounts, particularly for the year 2022-23, published on 6 July 2023 updated figures relating to estimated expenditure and the number of cases affected. The overall number of customers to be reviewed is approximately 678,000; of those, we estimate that 170,000 customers will be affected. Between 11 January 2021 and 31 March 2023, 263,350 cases were reviewed. I can reassure the noble Lord that the department is on track to complete the exercise for category BL and category D by the end of 2023—to get into some granular detail on this. I think I understand that, and I hope the noble Lord will be reassured by it. For missed conversion cases, the exercise will run to late 2024—the end of next year.

The noble Baroness, Lady Sherlock, asked a specific question about whether there was any opposition to retaining the Hampshire judgment. The answer is that there was very little opposition—hardly any, although I am not sure I can give her any more information on that—to retaining it from stakeholders. I think it was to do with the Hampshire judgment that the noble Baroness raised.

The noble Baroness, Lady Sherlock, asked about needing to make changes as a result of the Walker case, as it was a Supreme Court decision. I think this was to do with Allonby and Walker, to be fair. Although the Walker judgment was a judgment of the UK Supreme Court, it was based on EU law rights, and it is therefore sensible to restate the law addressed in the judgment so that its effects clearly continue after the end of the year. I hope that is helpful.

On the Walker judgment, the noble Baroness, Lady Sherlock, talked about the survivors. Schemes had to seek their own advice to ensure that they were legally compliant with the Walker judgment, and they will need to seek their own advice to ensure that they are legally compliant with the legislation going forward. I hope that this answers the noble Baroness’s question.

Towards the end of her remarks, the noble Baroness, Lady Sherlock, asked about the pensions gap—this question was perhaps wider than these regulations. I reassure her that, as a Government, we have made great strides in reducing the gender pensions gap, with the introduction of automatic enrolment. She will know as well as I do how much we have done in that respect on the enrolment and the Private Member’s Bill we brought forward not so long ago, going from 22 down to 18.

I think I have covered almost all the questions, but I suspect that there may be some more. As ever, I will need to read Hansard carefully, not least to be sure that I pick up the questions from the noble Baronesses, Lady Drake and Lady Sherlock.

I will need to read very carefully what the Minister said—hopefully it will cover all of the points, but, if not, I will drop him a note.

On that last point, the Minister mentioned the Private Member’s Bill, but my question was actually about when the Government were planning to implement its provisions—perhaps he could give me a steer on that. I would be grateful if he would read Hansard because, if he thinks that he has answered the questions, I perhaps did not shape them as precisely as I had intended. Could he have a look at that and then come back to me?

Most certainly— I am grateful that the noble Baroness has put me right on the precise question. I knew what she was asking at the time. On the timing and where we are with the rollout of the Private Member’s Bill, I do not have that to hand—actually, it has been handed to me, so perhaps I do; it is one I prepared earlier. The consultation on implementation is coming soon—I am aware that a consultation comes out of that Private Member’s Bill—but, in terms of actual dates, I am afraid I cannot go any further. But I hope that that directly answered that particular question. I feel that a letter is due. A lot of questions were asked about exactly how this should be, and I pledge to answer them all fully if I have not done so this afternoon.

Motion agreed.

Occupational Pension Schemes (Amendment) (Equal Treatment) (Northern Ireland) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Occupational Pension Schemes (Amendment) (Equal Treatment) (Northern Ireland) Regulations 2023.

Motion agreed.

Pensions Act 2004 (Amendment) (Pension Protection Fund Compensation) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Pensions Act 2004 (Amendment) (Pension Protection Fund Compensation) Regulations 2023.

Motion agreed.

Pensions (Pension Protection Fund Compensation) (Northern Ireland) Regulations 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Pensions (Pension Protection Fund Compensation) (Northern Ireland) Regulations 2023.

Motion agreed.

Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023 (Consequential Modifications) Order 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023 (Consequential Modifications) Order 2023.

My Lords, I am grateful for the opportunity to debate this order, which is the result of collaborative working between the UK Government and the Scottish Government and supports the Scottish Government’s decision to introduce carer support payment in Scotland.

The Scotland Act 2016 devolved responsibility for certain social security benefits and employment support to the Scottish Parliament. The introduction of carer support payment in Scotland under the Social Security (Scotland) Act 2018 exercises this responsibility. This order is made under Section 104 of the Scotland Act 1998, which allows for necessary legislative amendments in consequence of any provision made by or under any Act of the Scottish Parliament. Scotland Act orders are a demonstration of devolution in action. I am pleased to say that this order is the result of close working between the Scotland Office and the Scottish Government, the Department for Work and Pensions, the Ministry of Defence, His Majesty’s Revenue and Customs and Northern Ireland’s Department for Communities. I thank all involved for the collaborative approach taken to progress this order.

The order makes amendments to relevant social security legislation as a consequence of the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023, which were made on 25 October. I shall refer to these as the 2023 regulations. These regulations replace carer’s allowance with carer support payment for individuals ordinarily resident in Scotland. The 2023 regulations introduce carer support payment in Scotland in a phased approach from this month, beginning with a pilot in three local authority areas: Dundee City, Perth and Kinross and the Outer Hebrides or Western Isles. They have been chosen by the Scottish Government to take initial applications from carers across urban, rural and island communities in Scotland. Further local authority areas will be added to the pilot from spring 2024 and carer support payment will be available across the whole of Scotland by autumn 2024.

Carer support payment will initially operate in a broadly similar way to carer’s allowance. Like carer’s allowance, it will be an income replacement benefit—a payment of £76.75 per week for unpaid carers providing 35 hours or more of care a week to someone receiving certain disability benefits. However, there will be some differences, which I will spell out. First, carer support payment will have a shorter past presence test requiring claimants to have been present in the common travel area for 26 of the past 52 weeks. The requirement for carer’s allowance is to have been resident in Great Britain for 104 of the previous 156 weeks. Those good at maths will work out that that is two out of the past three years. Secondly, some students in full-time education will also be able to claim carer support payment, whereas people undertaking full-time education are not eligible for carer’s allowance, instead being supported through the educational maintenance system. The Scottish Government may choose to make further changes to this benefit in future.

I will now take a step back to consider how many people will be impacted by these changes. DWP is currently delivering carer’s allowance to around 120,000 unpaid carers in Scotland. Around 80,000 of them are currently receiving payments of carer’s allowance. A further 40,000 carers have an underlying entitlement to carer’s allowance enabling them to access additional amounts in other benefits, although they do not get paid carer’s allowance as they are paid other income replacement benefits.

I will now go on to explain the effect this order will have and the provision it will make. This order will ensure that those receiving carer support payment in Scotland are treated the same as those receiving carer’s allowance. The order ensures that carer support payment is a qualifying benefit for the Christmas bonus. It ensures that those eligible for carer support payment are treated as qualifying carers and are eligible to receive the additional amount for carers in an award of state pension credit. It ensures that recipients are not disadvantaged in relation to compensatory payments as part of the HMRC tax-free childcare scheme. The order also ensures that it is not possible for any one person to receive both carer’s allowance and carer support payment at the same time. Similarly, no more than one person would be able to receive a carer’s benefit for care provided to a single individual. There are some benefits, administered by Veterans UK, that overlap with carer support payment; this order makes provision to ensure that an individual cannot receive these overlapping benefits at the same time.

The order makes equivalent provision in Northern Ireland in respect of those policy areas that are transferred to Northern Ireland. This is because, when a claimant moves to Northern Ireland they will continue to receive carer support payment for 13 weeks from the date they move while they apply for carer’s allowance. In that time, their carer support payment benefit will continue to attract the related entitlements. The 13-week run of support will also be available when carers move from Scotland to elsewhere in the UK.

In summary, this order makes amendments to UK legislation to support the introduction of carer support payment in Scotland. It ensures that the new Scottish benefit is able to operate effectively and that its recipients are treated equitably. I commend the order to the Committee and beg to move.

My Lords, I once again thank the noble Viscount for the detail of what the statutory instrument does and does not do. It seems to me that it purely ensures that the carer support payment in Scotland is treated the same as carer’s allowance. That seems to be a good idea. I cannot see why anyone could disagree. It also seeks to ensure that there is no double claiming by playing one set of regulations off against another set. I would be grateful if the Minister could confirm my understanding of that is correct because, if it is correct, it seems very sensible. Could he come back to Parliament or write about how these regulations are being observed and give examples of success or failure? I think that to some extent his final comments cover this. I think he was referring to what had happened in the past. I am looking forward to an ongoing report about how these new regulations will help and to examples of success or failure. They need to be monitored in some way. I hope the Minister will be able to oblige as the situation evolves.

My Lords, as we have heard, this order relates to people who will be eligible for the new carer support payment, which is replacing carer’s allowance in Scotland. As the noble Lord, Lord Palmer, indicated, it covers two issues, one around benefit entitlement and the other around trying to avoid duplicate or overlapping benefits.

First, the order aims to ensure that people who get carer support payment are treated in the same way as those receiving carer’s allowance when it comes to entitlement to reserved benefits.

Three reserve benefits are named in the order, and the Minister referenced them in his opening speech: the Christmas bonus, the additional amount for qualifying carers on pension credit, and compensatory payments due in quite complicated circumstances under the HMRC tax-free childcare scheme. Is that a comprehensive list? Are there any other payments to which someone on carer’s allowance could be entitled which were not mentioned here or indeed in the order?

Secondly, I will ask something about the DWP’s role, if any, in the process of transferring claimants from carer’s allowance to carer support payment. As the Minister indicated, they are already starting to pilot the new benefit in three areas of Scotland from this month, and from next year the Scottish Government will begin to transfer the benefits of those already getting carer’s allowance so that they will begin receiving carer support payment instead. Is the plan for DWP to be in touch with those people to whom it currently pays carer’s allowance, or is that being left to the Scottish Government to do? Are there any people who are currently eligible for carer’s allowance who would not be eligible for carer support payment? The Minister mentioned some that are the other way around, perhaps where the benefit is more liberal in terms of eligibility, but are there any who would not be entitled to the new payment who are entitled to carer’s allowance? If there are any, whose job is it to contact those people?

The order also aims to ensure that there is no overlapping entitlement for different benefits or indeed different claimants caring for the same person. I think the Minister may have said this, but could he just clarify that those new arrangements mirror the existing ones for carer’s allowance?

Finally, the Minister mentioned that these regulations and this process have been the product of close working between a number of government departments and the Scottish Government. As the Scottish Government increasingly use their powers over time to diverge from arrangements within other parts of the United Kingdom, there will be a real opportunity there for all parts of the United Kingdom to learn more about what works. What arrangements are in place for the DWP to learn from the experience of the Scottish Government in creating new benefits like this, so that both the devolved Administrations and those in the UK central Government in Westminster in charge of reserve benefits can learn from each other’s experience? I look forward to the Minister’s reply.

I start again by thanking both the noble Baroness, Lady Sherlock, and the noble Lord, Lord Palmer. This is familiar territory but I thank them for their broad support. I will attempt to answer the questions that were raised, again in no particular order.

The first question raised by the noble Lord, Lord Palmer, was simply what this order does. I tried to set that out in my opening statement but perhaps I can answer it in a different way. This particular order, and an associated negative Section 104 order, makes provision in reserved areas to ensure that the 2023 regulations are fully operational at the time of implementation. It ensures that individuals in receipt of carer support payment are treated, as I said earlier, in the same way as individuals in receipt of carer’s allowance. That might answer a question that was raised by the noble Baroness, Lady Sherlock, on the treatment. It is similar treatment but in my opening remarks I alluded to some differences that were going to come through from the Scottish Government, particularly in terms of the treatment of students. As we know, of course, there are different educational arrangements for students in Scotland compared to England. I hope I made that clear in my opening remarks, in terms of the—

Just to clarify, what I was trying to say in the question was that the Minister had identified a couple of areas—one about residence requirements, the other about students—where people who are not currently entitled to claim carer’s allowance would be able to claim the new benefit. I was asking whether it was also the other way round; is there anyone who would not be entitled to the new benefit who is entitled to carer’s allowance, and if so, whose job is it to contact them? The Scottish Government would arguably have no locus in relation to them.

I must admit—please forgive me—that I thought that was a separate question, but I remember it and I shall try to answer it at some point.

The noble Lord, Lord Palmer, asked whether the order ensures that there is no double claiming. He wanted me to confirm that there is no double claiming, double counting or duplication—and I can confirm just that. I hope that I set that out in my opening remarks as well; that is also the aim, and also comes about from the very close collaboration of working that we have with the Scottish Government and, indeed, other parties that I mentioned in my opening speech.

The noble Lord, Lord Palmer, asked about the future, as did the noble Baroness, Lady Sherlock. On learning lessons and what we will gain from this order, particularly looking north of the border, can I say two things? One is that I have no doubt that there will be a way of finding out whether the three pilots mentioned were successful, however one might define that. I confirm that it is very much a matter for the Scottish Government — so this is an enabling series of regulations, which will enable the Scottish Government in a devolved manner to do what they feel is right. But I have no doubt that there will be a way in which we can find out.

On the noble Baroness’s point about learning from this—absolutely, she makes a very good point. When these different regulations are made in the right and proper way for the devolved nations, we should and will be, with our close collaboration, learning from any lessons that might be beneficial for us in England.

The noble Baroness asked how people should apply for the carer support payment. The application process is a matter for the Scottish Government, and questions on this should be addressed to them. That is not entirely helpful, but it falls in line with my point, which is that this is enabling the Scottish Government to make the changes that they will take forward themselves.

I was trying very carefully to ask questions of the Minister that related to his responsibilities and those of DWP, not the Scottish Government. I was not asking about how somebody would go about applying for the new benefit. There was reference in the order and Explanatory Memorandum to people being transferred from carer’s allowance to the new benefit. Until someone is transferred, the DWP has a responsibility for them. I was asking whether they could make any contact with those to whom they are currently paying carer’s allowance or whether they were leaving that entirely to the Scottish Government.

Unless there is a ready answer to that, I think that gets into the granularity of the transfer process, and I shall need to write to the noble Baroness to give her some proper information on that. Again, I make the point that there is a close collaboration between the UK and Scottish Governments. It is a fair question, and I think that I need to get some granular detail on that.

The noble Baroness, Lady Sherlock, asked about impact assessments. The answer is that orders made under the Scotland Act 1998 usually do not in themselves have a direct or indirect impact, whether benefit or cost, on businesses, charities or the voluntary sector, and would not therefore have a regulatory impact assessment. This is the case for this particular order. The noble Baroness may be aware—and I just want to confirm—that this is quite usual for constitutional measures in this respect. Implementing this order is not expected to have an impact on business, charities or voluntary bodies, and there is also not expected to be a significant impact on the public sector. The appropriate impact assessments were undertaken for the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023, when these regulations were prepared. No further assessments were required, as this order is a consequence of the 2023 regulations.

I have a couple of other questions that I should like to answer, which may help the noble Baroness with one of her earlier questions. I was asked when the Scottish Government would start and complete the transfer of individuals from carer’s allowance to the carer support payment. This may be helpful—I hope that it answers the question. From February 2024, the Scottish Government will begin the process of transferring the awards of around 130,000 people getting carer’s allowance in Scotland to carer support payments—it will be initiated by them. This will include around 40,000 carers with underlying entitlement only—carers who have entitlement to carer’s allowance but are receiving another overlapping benefit instead. Case transfer is a joint project between the Scottish Government and the DWP, which we intend to complete as soon as possible, while ensuring that the process is safe and secure. Case transfer for all disability and carer benefits remains on track to complete by the end of 2025.

The noble Baroness asked about similarities and differences in eligibility between the two benefits. I covered some of that in my opening speech, but this might answer one question that she asked. No one is eligible for the carer’s allowance who is not eligible for the carer support payment. That may be the succinct answer that she was looking for.

I hope that I have answered all questions. Again, as ever—with the number of questions that the noble Baroness rightfully usually asks—I normally look, and this case will definitely look, at Hansard, to be absolutely sure that I have answered them all. In the meantime, I beg to move.

Motion agreed.

Committee adjourned at 5.25 pm.