Thursday 3 September 2020
Arrangement of Business
My Lords, the Hybrid Grand Committee will now begin. Some Members are here in person, respecting social distancing, while others are participating remotely, but all Members will be treated equally. I must ask Members in the room to wear a face covering, except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded, or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes. The time limit for the debate on the Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 is one hour.
Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020
Considered in Grand Committee
My Lords, when the transition period ends, direct EU legislation and EU-derived domestic legislation that forms part of the legal framework governing our energy markets will be incorporated into domestic law by the withdrawal Act. My department is working to ensure that the UK’s energy legislation continues to function smoothly and supports a well-functioning, competitive and resilient energy system for consumers after the end of the transition period. This draft instrument is part of the wider legislative programme preparing for the eventuality that the UK does not reach a further agreement with the EU by the end of the transition period, or if any reached agreement does not cover the relevant policy area.
I now turn to what this statutory instrument does. Prior to the UK’s departure from the EU on 31 January, my department laid several statutory instruments in preparation for the eventuality that the UK left the EU without a withdrawal agreement. Since then, the terms of the withdrawal Act mean that EU legislation, including new EU legislation brought in during the transition period, will continue to apply in the UK.
This includes three pieces of legislation. The first is Regulation (EU) 2019/943 of the European Parliament and the Council of 5 June 2019, on the internal market for electricity, which I will refer to as the electricity regulation (recast). The second is Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019, establishing a European Union Agency for the Cooperation of Energy Regulators, which I will refer to as the agency regulation (recast). The third is Directive (EU) 2019/692 of the European Parliament and of the Council of 17 April 2019, amending Directive 2009/73/EC concerning common rules for the internal market in natural gas.
The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 amends six previously laid SIs, which I will refer to as the principal SIs. These principal SIs prepared the UK to leave the EU without a withdrawal agreement. These changes take account of the three new pieces of EU legislation since those principal SIs were made. The electricity regulation (recast) and the ACER regulation (recast) form part of a programme of legislation known as the clean energy package, created to further integrate markets across the EU. All of the clean energy package will have entered into force by the end of the transition period, hence the need for these regulations.
The electricity regulation (recast) sets out the high-level principles and structures for the operation of EU electricity markets and defines relationships between EU bodies with a role in this area. The agency regulation (recast) sets out the role of the Agency for the Cooperation of Energy Regulators—or ACER—to co-ordinate energy regulator implementation of the clean energy package and to resolve disputes between member state regulators.
The principal SIs were made between December 2018 and March 2019 and fixed deficiencies in domestic law and direct EU law, which would become retained EU law at the end of the transition period. These amendments included provisions relating to the original electricity regulation and the original agency regulation. These original electricity and agency regulations have now been repealed, as a result of the recast regulations entering into force on 1 January 2020 and 4 July 2019 respectively.
The principal SIs are now out of date, as they pertain to the original electricity and ACER regulations, which no longer exist because they have been recast by the European Union. This draft instrument fixes those deficiencies by changing references from the original regulations to the recast regulations, omitting now redundant provisions and making changes consequential on the amending gas directive.
The draft instrument also obviously amends references to “exit day” in the principal SIs to instead reflect the reality of the transition period. The draft instrument takes account of changes made to UK domestic law required to implement the new electricity regulation. Finally, it removes provisions relating to Northern Ireland wholesale electricity markets in the previous SIs to avoid any conflict with the Northern Ireland protocol, which requires EU law governing wholesale electricity markets to continue to apply in Northern Ireland after the end of the transition period.
The draft instrument aims to maintain existing rules domestically while amending or removing provisions that will no longer be functioning after the end of the transition period. As a result, this draft instrument will help to maintain the operability and integrity of the UK’s energy legislation and to maximise business continuity for market participants.
In conclusion, these regulations are an appropriate use of the powers of the withdrawal Act, which will maximise continuity in our energy regulation and business continuity for UK market operators and ensure that there is no uncertainty in the role and functions of UK and EU bodies in the market and requirements on market participants as we leave the European Union. I commend the regulations to the House.
My Lords, I am grateful to the Minister for introducing the regulations with his customary clarity, on what is a series of technical amendments. In truth, two things are going on in the regulations. On one hand, they perform the fairly benign process of tidying up existing statutory instruments, so that they make sense in terms of the withdrawal agreement and implementation period. On the other hand, they expose some profound issues about what our effective exit from the EU will mean for the UK and, in particular, for Northern Ireland.
Before I turn to those issues, I ask the Minister to provide some clarity on a number of issues of detail. First, how were the devolved Administrations consulted and what responses were received from them? The Explanatory Memorandum states that SIs made under the withdrawal agreement “do not require consultation”, but I assume that there is some mechanism for consulting the devolved Governments and I would be grateful if the Minister could explain how that takes place. We have an indication from the Explanatory Memorandum that the Northern Ireland Minister for the Economy made representations requesting changes, but can the Minister tell us if the views of the Welsh and Scottish Governments were sought and whether they made any comments?
The Explanatory Memorandum tells us that the Northern Ireland Minister requested that changes with respect to Northern Ireland were included as part of this instrument. Can the Minister confirm that these changes have been made? It was a little ambiguous to me in the Explanatory Memorandum. Specifically, in addition to the changes relating to the implementation period and the Northern Ireland protocol in the withdrawal agreement, the Northern Ireland Minister for the Economy requested changes to the gas legislation as a consequence of the gas directive. Could the Minister explain what those changes were and what impact they will have?
Underlying this is how GB and Northern Ireland energy markets will work in conjunction with EU energy markets after the actual exit from the EU at the end of the implementation period. Paragraph 2.13 of the Explanatory Memorandum states that without the amendments contained in this SI there would be
“uncertainty and inefficiency in the operation of GB and NI’s market regulation, the role and functions of UK and EU bodies in the markets, and requirements on market participants.”
I notice particularly that the plural of “market” was used:
“the role and function of EU bodies in the markets”.
Does this refer not just to the NI market but to the GB market as well? If so, can the Minister clarify what the role and function of EU bodies would be in respect of the GB market after the end of the implementation period? The Explanatory Memorandum goes on to state that without these changes the uncertainty caused
“could result in increased wholesale prices”.
Can the Minister explain how this would occur?
The heart of the matter relates to the impact on Northern Ireland. It is spelled out in paragraph 2.11 of the Explanatory Memorandum, which explains that EU law will continue to apply directly in Northern Ireland in so far as it applies to the electricity market. However, as we know, EU law will apply directly in respect of many other things beyond the electricity market, but that is not a matter for this regulation.
It is worth reminding ourselves that as a result of the withdrawal agreement, for the first time in our history an overseas entity in which the United Kingdom has neither representation nor legislative authority will be applying law upon the territory of the United Kingdom. We need to remind ourselves of that astonishing fact at every opportunity because it underscores the extent to which the people of Northern Ireland were let down by this Government in the Brexit negotiations.
We also need to remind ourselves of it because it underlines how integrally involved we have been, we are and we will continue to be with the European Union, whether in energy markets—as we are discussing today—or across the whole economic landscape. The real difference is that we will be doing so as bystanders rather than contributors. Even now, the Government seem to be indulging in a fantasy that we can be part of a European electricity trading market without being willing to sign up to its rules. As Michel Barnier noted in an address to the Institute of International and European Affairs in Dublin yesterday:
“In the area of energy, the UK is asking to facilitate electricity trade without committing its producers to equivalent carbon pricing and state aid controls.”
I would be grateful if the Minister could confirm whether this is actually our negotiating position and, if it is, why we have adopted such a patently ludicrous and unrealistic position.
The tragedy is that, today, we face an unparalleled threat as a result of the climate emergency, and at that very point we are removing ourselves from a position of influence in an energy market on our doorstep with hundreds of millions of people. British influence could have operated in that market to continue to drive action on the climate emergency and to clean up energy production, not just in the UK but across the European continent. Instead, we spend our effort and our energy in preparing to mitigate the impact of leaving the European Union, and doing so while surrendering the sovereignty of one part of our United Kingdom and imperilling the economic well-being of the others.
Behind these rather arcane regulations—and indeed all the EU exit regulations that come before us—lies a much bigger issue and a much bigger tragedy. It is a failure of ambition and a loss of confidence in our country’s ability to play a leading role for good within an international organisation such as the European Union, and, sadly, as a result, means a diminished role for Britain in the world.
I call the next speaker, the noble Baroness, Lady McIntosh of Pickering. Lady Pickering, are you there? I think I will move on to the next speaker and we will try to connect to the noble Baroness, Lady McIntosh, later. I call the noble Baroness, Lady Burt of Solihull. Are you there, Lady Burt?
I am indeed.
My Lords, this is the latest in a depressingly long line of SIs we have had to cover to prepare for the increasingly likely eventuality of a no-deal Brexit. Today, we are amending six statutory instruments which themselves amended a range of primary and secondary legislation under the withdrawal Act. On the face of it, it all seems pretty straightforward—amending definitions and removing cross-references to EU regulations and copious replacements of “exit day” with “implementation period day”. To me, it does not matter which term is used: we will be gone, and in my view we will be the poorer for it.
There has been no consultation on this legislation: the withdrawal Act does not require consultation, so why bother asking anyone for their views? It rankles with the Liberal Democrats—and, I expect, with Members of other parties—that the withdrawal agreement seems to have the power to ride roughshod over the views of anyone affected. Take Northern Ireland, for example. Can the Minister clear up some ambiguity about what is happening there? This has already been referred to by my noble friend Lord Oates. Did the Northern Ireland Minister for the Economy request amendments to this SI in respect of Northern Ireland? If so, what were they and did she get them, or will they be encapsulated within legislation to come, perhaps under the Northern Ireland protocol?
The Northern Ireland situation looks complex because of the single electricity market on the island of Ireland. This, clearly, is what happens when you try to cut the threads of a complex relationship. In the words of the Explanatory Memorandum:
“This uncertainty could result in increased wholesale prices and threaten the continued efficient functioning of the Single Electricity Market”.
It is a mess, and a mess of our own making.
Finally, no impact assessment has been done because the effects identified are considered negligible. In the context of small tweaks to minor legislation, they probably are, but in the wider context of the effects of operating the energy sector inside or outside the EU, I strongly disagree. Without a crystal ball, no one can really say what untold damage our exit will do to the sector and to the consumer.
I hope that the points argued in paragraph 12.4 of the guidance will come into force. It is assumed that if a free trade agreement and a Northern Ireland protocol come into force,
“this SI will not enter into force in its current form and will have no material impact.”
Amen to that—anything is better than the spectre of a no-deal Brexit.
We shall see whether we can get the noble Baroness, Lady McIntosh of Pickering. She is here; excellent.
I am delighted to speak to the regulations before us this afternoon and I thank the Minister for making such a clear introduction. My questions are not dissimilar to earlier contributions, so I will be very specific. My main concern is the legal position of Northern Ireland under the protocol on 1 January 2021 and the single electricity market on the island of Ireland.
Clearly, the regulations before us are welcome as they will retain in UK law the EU provisions as they currently stand. Can my noble friend the Minister clarify specifically what the position will be on the electricity supply and the wholesale cost of supply for households as well as businesses in the event of a no-deal Brexit being reached by 31 December 2020? Although these regulations are welcome, as I understand it, they cover the legal situation as is. I hope that my noble friend will put my mind at rest and that there will not be a legal vacuum on 1 January 2021 in the event of no deal.
As my concerns are similar to those raised by other colleagues, I will limit my contribution to that specific question.
My Lords, I congratulate the previous speakers on their speeches and the Minister on his comprehensive description, particularly of the tidying-up part of this statutory instrument. He was less forthcoming —indeed, less fulsome—on the Northern Ireland part, which was probably reflected by the previous speakers. I will not repeat their questions but I will repeat the eloquent point made by my noble friend Lord Oates.
Far from taking back control, energy consumers, including electricity consumers, in the Northern Ireland part of the island of Ireland are ceding control of their market to a foreign power in which they have no representation at all. If the Government indeed sought to take back power, they have not only failed but failed hugely in this regard—and this is just one of the many things we will see. We will see further statutory instruments that extract Northern Ireland from the United Kingdom and create a separate part of the United Kingdom internal market. Clearly, there will be two parts of the United Kingdom internal market—a very serious issue when you think about the union and the integrity of the United Kingdom. We should be under no illusions that although the Minister spoke little about this matter, it is extremely serious and disappointing.
We get little chance to talk about electricity. I know that the Minister is always keen to tell us about BEIS’s plans and the future of electricity strategy. Bearing in mind the thoroughness of my colleagues, who asked most of the questions required of this statutory instrument, I will add a few. I understand that the Minister may not be thoroughly prepared to answer them; I would be happy to receive a letter if he is prepared to write one in response.
The purpose of this statutory instrument is to deliver an orderly market, but of course there is no market if we do not have sufficient supply and adequate and efficient transmission of that supply across the country. I have a couple of questions specifically on those points. First, on the 2030 target for the growth in offshore wind energy, the offshore wind sector deal settled on 30 gigawatts by 2030. The Minister’s party’s manifesto talks of 40 gigawatts by 2030 and, as I understand it, plans are afoot in the industry to deliver 30 gigawatts, not 40. Perhaps the Minister can say which of these plans is actually the target for 2030 and communicate to the rest of the industry that it is indeed the plan. As the Minister knows, the climate change committee said that there should be 70 gigawatts by 2050. We need to know what the critical path to getting to that total is.
On transmission, it is clear that to deliver green, carbon-free energy across the country there needs to be significant change to the transmission grid across the United Kingdom. As it happens, tomorrow is the closing date for Ofgem’s response deadline for its five-year price control plans. As I understand it—I am informed by members of the industry—the industry is saying that if the current nature of the Ofgem pricing plan remains, investment in the grid over the next five years will be reduced by 40%; I am not sure whether the Minister picked that up. For those 30 extra gigawatts of energy in 2030 to be transmitted across the country, we do not need less investment in the national grid—we need more.
So, what is the Minister’s response to the Ofgem consultation, which takes very literally its economic and efficiency responsibilities to mean the lowest possible price now? The Minister knows that paying a low price now can mean paying a high price a lot later. We do not want to be playing catch-up with the grid in five years’ time to deliver the energy we so desperately need to meet our climate change requirements. Can the Minister undertake to answer these questions, because this statutory instrument will be entirely theoretical if we do not have the energy we need in the places we need it and on time?
I thank the Minister for his explanation of the regulations. As has been said, they are essentially technical amendments to six EU exit orders that have already gone through both Houses and which were also mainly technical in nature. As has also been said, the regulations do not make any policy changes, whereby the annexes confirm the statements necessary under the 2018 withdrawal Act and that consultations and impact assessments are not required—and that the time when issues over this procedure can be taken up has probably passed as well. As was commented on earlier, the devolved Administrations appear to have given their approval. However, it would be good to get the Minister’s confirmation.
The Explanatory Memorandum provides an excellent appraisal of the background regulations that became known as the third energy package 2009, which, together with the 2019 updates and the directives, became the clean energy package. The EM states that these amending instruments amend primary as well as secondary legislation. Usually, any secondary legislation that amends primary legislation is taken very seriously by your Lordships’ Secondary Legislation Scrutiny Committee. That the committee has made no mention of this is probably because these regulations only amend other regulations, as in the Explanatory Memorandum, and not any primary legislation that was the subject of previous orders that have already been dealt with. Can the Minister confirm this position and state which items of primary legislation are ultimately part of this jigsaw?
It looks like these regulations include crossover with the order scheduled for next week dealing with the internal markets and network codes, yet it is not clear whether the orders mentioned in paragraph 6.2 of the Explanatory Memorandum—S.I. 2019/531, S.I. 2019/532 and S.I. 2019/533—have a relationship with both these regulations and next week’s order other than superficial technicalities. If there is anything material to add to our understanding, it would be most helpful to hear it from the Minister.
I note that the regulations and the order due next week will keep the UK in line with the EU and in close association with the internal energy market, which must be of benefit to both the UK and the EU in maintaining flexibility of supply, reducing costs for the wholesale market and keeping prices for the consumer at a minimum. Can the Minister confirm that this remains a priority for the Government and a key objective of the discussions with the EU to bring a successful outcome to the end of the implementation period? Judging from the intervention of the Northern Ireland Minister, the devolved Administrations wish to see the internal energy markets, including the island of Ireland energy market and the EU and the UK energy markets, aligned.
My Lords, I thank all noble Lords for their valuable contributions to the debate. The Government are committed to achieving a smooth end to the transition period for our energy system. As such, a programme of legislation is required to ensure that retained EU law is workable and free from deficiencies by the end of the transition period. This draft instrument falls within this category of legislation. Failure to address in full the deficiencies in retained EU legislation, or to ensure that the relevant aspects of the Northern Ireland protocol are able to work properly, will create uncertainty and inefficiency in the operation of both Great Britain and Northern Ireland’s market regulation, the role and functions of domestic and EU bodies in the markets, and requirements on market participants. This uncertainty could result in an increase in wholesale prices.
I must stress that this draft instrument, and the UK’s departure from the EU as a whole, does not and will not alter the fact that our energy system is resilient and secure. This resilience is built on our diversity of supply. The UK has one of the most secure energy systems in the world and the industry has well-practised contingency plans to keep energy flowing and to ensure that our energy supplies are safe.
In Great Britain, the Government have been working closely with the electricity system operator, the national grid, and with the regulatory body, Ofgem, to ensure that measures are in place to deliver continuity of supply and confidence in the regulatory framework in all scenarios. The Government are therefore confident that the UK’s electricity system is able to respond to any changes safely, securely and efficiently, whether these changes are a result of leaving the EU or other challenges facing the UK today, such as the coronavirus pandemic. Our energy system will still be physically linked to the EU after the end of the transition period through interconnectors, which bring significant benefits, including lower consumer bills, as well as security of energy supply.
In response to the questions from the noble Lords, Lord Oates and Lord Grantchester, it is indeed the case that our future energy relationship with the EU is being discussed as part of the ongoing negotiations. As set out in the UK’s approach to the negotiations, we are open to an agreement in this area that provides for efficient electricity trade. Noble Lords will understand that I am unable to go into any further details of our negotiating position at this stage because the negotiations are confidential. However, should we not have reached any further agreement with the EU by the end of the transition period, or if any agreement does not cover the relevant policy area, there will continue to be significant value in increased interconnection and trade of electricity and gas with our neighbours.
This instrument will help maintain the stable functioning of the domestic energy market by fixing deficiencies across retained EU and domestic legislation, while retaining the regulatory functions required to keep the market working effectively.
I will move on to the specific questions I was asked, all of which were of a similar nature. The noble Lords, Lord Oates and Lord Grantchester, and the noble Baronesses, Lady Burt and Lady McIntosh, asked whether the devolved Administrations have been engaged. It remains the case that devolved Administration ministerial consent is not required for these SIs because energy is not a devolved matter for either Scotland or Wales. However, BEIS regularly engages on EU exit and energy matters, and both Governments were informed about the SIs before they were laid in draft.
The situation with Northern Ireland is slightly more complicated. In preparing the electricity and gas amendment regulations, BEIS consulted and worked closely with the Northern Ireland Department for the Economy to get its views on the changes required, and Northern Ireland ministerial consent for the SI was provided. BEIS also engaged with the Utility Regulator on the content of the SI. I cannot remember who asked the question, but the specific request from Northern Ireland was to remove the provisions contradicting the protocol as described above.
The noble Lords, Lord Oates and Lord Fox, and the noble Baronesses, Lady Burt and Lady McIntosh, referred to the single electricity market and Northern Ireland. I can confirm that it is the UK Government’s long-standing position that by far the best outcome for electricity in Northern Ireland is to maintain the single electricity market across the island of Ireland. This has consistently been supported by both the Irish Government and the EU Commission. Continuation of the single electricity market has been achieved through the Ireland/Northern Ireland protocol to the withdrawal agreement, and nothing in this legislation affects that. As to what would happen to the single electricity market if we do not reach any further agreement with the EU, the provisions for the market were established under the Ireland/Northern Ireland protocol to the original withdrawal agreement and that provides the basis for the single electricity market.
The noble Baroness, Lady McIntosh, asked about the impact on prices. Many factors impact energy prices, including fuel prices, exchange rates and energy mix. As I said earlier, we will continue to be physically linked to the EU post exit through a number of electricity and gas interconnectors. We expect that any change in electricity prices in Great Britain as a result of changes to interconnector trading arrangements would fall within the range of normal market volatility. Therefore, we do not expect any significant impact on prices.
Again, with regard to gas markets, the mechanisms for cross-border trade are not expected to fundamentally change after exit. The UK gas market is one of the world’s most developed and provides security through supply diversity, most of which comes through LNG tankers, and is therefore not dependent on the EU.
The UK Government have taken steps to enable electricity and gas trade to continue and to maintain the effectiveness of domestic regulation, providing legal clarity for industry on the future operation of Great Britain and Northern Ireland’s energy markets.
To go into a bit more detail for the benefit of the noble Lord, Lord Oates, and the noble Baroness, Lady Burt, the SI will help support the continued operation of the single electricity market by removing the provisions relating to electricity in Northern Ireland, so that they do not come into force at the end of the transition period and therefore contradict the Northern Ireland protocol. The Northern Ireland protocol provides for a limited set of EU law provisions relating to wholesale electricity markets, carbon pricing and industrial emissions to apply to Northern Ireland at the end of the transition period to ensure the continued operation of the single electricity market. The Northern Ireland Executive are responsible for implementing the Northern Ireland protocol in relation to the single electricity market, as energy is a transferred matter, with my department—BEIS—continuing to provide support where appropriate.
The noble Lord, Lord Grantchester, asked about the difference between the two SIs. They both make technical changes to ensure that retained EU law will work in a domestic context, minimising impact on businesses and consumers should the UK reach no further agreement with the EU or if any agreement does not cover the relevant policy area after the end of the transition period. Most of the changes are minor—for instance, removing references to member states or EU bodies, which will of course be no longer appropriate in the circumstances.
The noble Lord, Lord Fox, in his typically genius way, used the word “electricity” in the title of the instrument to ask a whole series of unrelated questions on targets for offshore wind capacity. I am very happy to write to him with a proper answer to those questions and on the details of the Ofgem consultation, which are, as I am sure he will understand and realise, unrelated to these regulations. As always, however, I commend him on his ingenuity.
In conclusion, this draft instrument is required to ensure continuity for our energy system and certainty for both market participants and consumers. In doing so, it will support the implementation of an effective legislative framework needed for reliable, affordable and clean energy. It is my pleasure to commend the draft regulations to the Committee.
I remind Members to sanitise their desks and chairs before leaving the room.
Arrangement of Business
My Lords, Hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must ask Members in the room to wear a face covering, except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded, or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
Jobseekers (Back to Work Schemes) Act 2013 (Remedial) Order 2019
Considered in Grand Committee
My Lords, this instrument was laid before Parliament on 5 September 2019 and has been discussed and approved in the other place. Today, I am grateful to move this forward through your Lordships’ House.
In 2013, my department passed the Jobseekers (Back to Work Schemes) Act. The Act validated sanctions and notifications issued to claimants who failed to take part in employment programmes designed to help them into work. The Court of Appeal found the Act to be an effective and valid way of achieving this but also recognised that, in a small number of very specific circumstances, some individuals had lost their right to a fair hearing under the Act.
This draft remedial order amends the Jobseekers (Back to Work schemes) Act 2013 to resolve this issue and allows the tribunals to find in favour of the claimants whose appeals were affected, where it is right to do so. It also gives my department the ability to reconsider relevant sanction decisions in these cases and to pay any affected individuals anything that they are then due. It is of fundamental importance to me that those who had appealed a sanction decision but were prevented from having a fair hearing because of the Act should have this right restored. Only a specific group of people—some 5,000 individuals—have been affected by the Act in this way. As the remedial order applies only in very particular circumstances, not all cases will lead to a payment.
My department aims to resolve these cases and make any necessary payments to these individuals as soon as it can. We anticipate that the whole process may take up to 12 months, for us to identify and pay any affected individuals. We aim to commence work on these claims in the autumn and begin reconsidering the decisions and payments. This is not just resolving this matter for the small number of claimants affected; we must also ensure that we learn the important lessons around communicating with claimants and do not create similar instances in future.
Noble Lords may be acutely aware that, in the summer, the Chancellor announced an unprecedented package of measures not only to protect jobs but to ensure that we get individuals who may have lost jobs as a result of the Covid-19 emergency back into work. I have real confidence that the digital nature of UC and its improved means of communication with our claimants via the online journal means a future Government will not find themselves in a similar situation.
The draft remedial order was laid for 60 sitting days on 28 June 2018 and then again for another 60 days last year. This was done to enable representations from Members of both Houses and the Joint Committee on Human Rights. By using a non-urgent remedial order, Parliament has been given time and the opportunity to scrutinise and consult on the order’s contents. I have considered the views of the tribunals, and this draft of the remedial order has been amended accordingly. The Joint Committee on Human Rights approved the draft remedial order earlier this year, in March, and recommended it to Parliament.
Currently, no other Bills are planned that could accommodate this specific legal objective and resolve the incompatibility. This is a way of achieving that end without repealing the Act itself, which still holds for the majority of claimants.
Although it has been a long and complex process, we have comprehensively assessed the issue and carefully considered any representations that we have received. I am keen to resolve the appeal cases for these individuals as soon as we can and to take the learnings forward as we look to support people back into work. I hope that noble Lords will support this order during its final passage through Parliament.
I am satisfied that the draft remedial order is compatible with the European Convention on Human Rights and I commend it to the House.
My Lords, I thank the Minister for introducing this order. I have read all that there is to read on this statutory instrument and I have no objection to its content or the fact that the Government are using a remedial order rather than primary legislation. This matter has dragged on for a long time and it is right that it be settled; I do not know what has taken the Government so long to start the remedial process in the first place. Nevertheless, I want to say a few things about the circumstances surrounding the issue and about sanctions more generally.
The order puts right the previous denial of a fair trial for those who had started an appeal that is still extant; it establishes that an appeal would have been won and includes a mechanism by which the Secretary of State will revise decisions so that appeals will not have to run their course, thus not wasting any more time and money. I am presuming that benefits withheld under sanctions will be repaid several years after the event, but will there be any other compensation for the harm that may have arisen as a result of benefit sanctions? This could of course include the cost of getting into debt and the consequences of harm to mental health. These are recurring themes when it comes to benefits and about which I will say a little more later.
I am not expecting an answer in the affirmative to my latter questions as this whole exercise, from the Government side, whoever it has been, seems to have been focused on cost savings and leaves the unsatisfactory situation that the law will have been applied differently simply because one party had appealed and another had not. That leaves me with a continuing distaste for retrospective law which leads to disadvantage or, in my view, legitimises the improper, for that appears essentially to be what has been achieved by the 2013 Act.
I feel particularly strongly on this issue because the sanctions imposed could have meant withholding jobseeker benefits for a considerable period of time, up to six months. I want to use some of my time to speak about benefit sanctions more generally and draw attention to a recent report of the House of Lords Economic Affairs Committee on universal credit that was published on 14 July. I am a member of that committee and I note that the chairman, the noble Lord, Lord Forsyth, is listed to speak next; he may have had a similar thought. If so, there is so much in the report that there will plenty left after I have spoken. I also wish to take this opportunity to commend the noble Lord on his leadership and willingness to tackle this and other hard subjects.
I found the evidence sessions on universal credit both harrowing and humbling. I still get choked up thinking about it. I wonder if I would have been able to navigate and withstand the difficulties experienced by many claimants, and I have enormous respect for the way that several of our witnesses not only overcame their own difficulties but took on roles helping others.
Our report found that the original objectives of universal credit are broadly correct, but that there are problems in its design and implementation that do not reflect real-life circumstances and create unpredictable incomes that are hard to manage, especially for people who do not have any savings to buffer them. If nothing else, the five-week wait makes sure that that vulnerability exists.
Although not part of the original design and in fact running contrary to their stated purpose, cuts in funding have, frankly, made the regime cruel and the cause of harm, notably in terms of child poverty and mental health. This is further exaggerated when it comes to conditionality and sanctions which, according to evidence, can end up biting in unjustified circumstances that I will paraphrase as “no real fault” of the claimant. What I found surprising was the cumulative level of sanctions that could be taken from an already inadequate income—far greater than a court would be able to apply when seeking an attachment order to a bank account, for example, and seemingly with no account being taken of what other deductions, repayment of advances or other debts had to be serviced, including those to the DWP itself. This is still going on, even though since 2017 there has been some reduction in use of sanctions and their duration. Cutbacks and sanctions have pushed people into extreme poverty, indebtedness and reliance on foodbanks. This inevitably undermines any opportunity to look for and secure work and gives rise to mental health problems, which in turn must surely rebound on society and become a drag on the public purse in other ways.
An evaluation promised by the DWP in 2013 of the impact of conditionality and sanctions on claimants’ mental health and well-being has not yet appeared, though heaven knows, the evidence is out there already from many sources. Even without sanctions, the pandemic and a more jobless environment will require new resources, so my plea to the Minister is for the department and the Government to take a more holistic view of the costs and societal effects, and of protecting mental health.
My Lords, I agree with every word just uttered by the noble Baroness, Lady Bowles of Berkhamsted. She is a formidable member of the committee and has referred to our unanimous report entitled, Universal Credit isn’t working: proposals for reform.
This order is concerned with the sanctions applied to JSA claimants who lodged appeals before the 2013 Act came into force. I must say that I share the concern of the noble Baroness, Lady Bowles, about the time it has taken to deal with this matter, but that is water under the bridge and I am grateful to the Government for bringing forward this order. However, to my mind it says something about the culture that operates in the DWP in respect of sanctions. The report of the committee, which was published just as the House went into the Summer Recess, is highly critical of the DWP regarding its use of sanctions for relatively minor breaches of rules. It makes several recommendations on the use of sanctions and reforms, and we are all looking forward to the Minister’s response to those in due course.
In my view, the Government have placed far too much emphasis on enforcing strict obligations on claimants through the threat of sanctions. The evidence seen by the committee shows that this is counterproductive and, as the noble Baroness, Lady Bowles, has pointed out, has severe implications for people’s mental health and well-being. Surely, we should try to operate a system that provides more help in coaching and training claimants to find jobs or to progress in their current roles.
We were amazed to find that the United Kingdom has some of the most punitive sanctions in the world, and the evidence on their efficacy is, to say the least, mixed and unconvincing. Harsh sanctions are being applied to claimants who are already subject to high deductions to pay back advances and historic debt. The committee heard evidence that, over recent decades, there has been increased severity of sanctions accompanied by reduced safeguards. As the noble Baroness, Lady Bowles, pointed out, the penalties which can be imposed by the department are far more severe than anything that would be allowed by the courts. I am sure the Committee would agree that no reasonable system should impose fines which result in extreme poverty for minor offences. The system should take account of the effect on individuals, and the department should have some kind of hardship assessment before sanctions are applied.
I very much welcome the reduction in the maximum length of sanctions from six months to three months, which again the noble Baroness, Lady Bowles, referred to. However, we should remember that we are talking about removing the main source of support from people, which results in them having to go to food banks, being dependent on loan sharks and being cast into extreme poverty. I therefore ask my noble friend the Minister, who I know is indefatigable and very sensitive and who has a long and distinguished record in helping some of the most vulnerable in our society, what progress has been made on introducing a written warning system before sanctions are applied.
On 2 June, giving evidence to our committee, Neil Couling said that the DWP was committed to publishing an evaluation of the effectiveness of sanctions and that it was coming
“as soon as we can.”
What does that mean? I note that my noble friend used that phrase in the context of complying with the order, where “as soon as we can” represented 12 months. It is disappointing that this was not published before the department reversed its decision on the suspension of sanctions as a result of Covid. It is very regrettable that the DWP has resumed the monitoring of conditionality requirements and will resume sanctions, when every day we have more announcements of catastrophic reductions in job numbers.
I say to my noble friend that, with the prospect of several million more unemployed, to threaten claimants with long and severe sanctions at this stage seems unfair and counterproductive. I ask her to think again about the decision to bring back the sanctions regime, given that the impact of Covid will, if anything, be worse and more difficult in the months ahead.
My Lords, I thank the Minister for her introduction to this order, and I offer my thanks to all the members of staff who have made this Committee possible with all their hard work.
Today, we are addressing an order that rights a legal wrong, and an illegality, that was committed twice by the Government. The Joint Committee on Human Rights tells us that, finally, the illegal government acts started under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 are righted by this order, almost a decade after the issue arose. On the narrow point of today’s debate, I can only be guided by the committee’s expertise, and I thank it for its comprehensive report. I therefore support the order.
That it has taken a decade to provide full remedy for an illegality in a regulation is, I suggest, something we might reflect on in other work around the House, from the Agriculture Bill and the Medicines and Medical Devices Bill to the immigration Bill next week, in all of which cases the Government seek to provide only a skeletal framework of their intentions, promising to fill them in later with regulation. I fear there will be decades of work in cleaning up the results.
The Minister said that she expected it would take 12 months to identify and recompense the affected individuals. I can only hope that that is delivered, given that what is happening with the Windrush scheme is not encouraging. Can she say what progress reports the House can expect over that 12 months? It would be good to have progress reports to see how this is going forward.
Today’s Committee provides a chance also to reflect on some of the broader issues, as noble Lords already have. I associate myself with the strong concerns about universal credit and sanctions expressed by both the noble Baroness, Lady Bowles of Berkhamsted, and the noble Lord, Lord Forsyth of Drumlean, in particular the five-week wait, the impact on child poverty and mental health, and the huge damage done to lives by sanctions.
It is also worth taking this opportunity to reflect on the importance of human rights legislation as a balancing force for an individual against the overweening and potentially overwhelming power of the state. Some 5,000 individuals are affected in this case, on the account of the Minister. Anyone might need to use human rights legislation; I doubt that either the young graduate or the HGV driver with whom this whole saga started ever expected to make personal use of human rights legislation, yet, in choosing to bravely stand up, this mechanism was available to them to ensure that the state was not allowed to force them into illegal temporary slavery—for workfare applied illegally can be described only as that.
Secondly, in the context of Covid-19 and the potential economic situation we face in the coming years, it is important to reflect on the damage done by forced work being imposed on people. Let us not forget that a Department for Work and Pensions analysis in 2013 found:
“There is little evidence that workfare increases the likelihood of finding work. It can even reduce employment chances by limiting the time available for job search and by failing to provide the skills and experience valued by employers.”
Over the past decade, we have seen many such schemes and heard horror stories such as the mandatory work activity and community work placement, and various localised trailblazer schemes for young people. They have been withdrawn. There was of course significant community backlash against companies participating in many of these schemes, but campaigners suggest that a more disguised, less visible form of workfare continues. Can the Minister inform the Committee, either now or perhaps by letter, how many people are now in work placements arranged by the Government? I do not include the word “voluntary” in that question, for we all know that there are wide degrees of voluntariness. I also ask the Minister to report to us on the use of “skills conditionality”—claimants being forced to attend a skills training provider, further education college or other adviser with potential benefit sanctions for non-participation.
These are issues that are close to my heart, because over the years I have seen so much damage done by such forced activities. In Ashton-under-Lyne, outside a jobcentre that was then known as being particularly harsh, I met a young woman who had been sanctioned for failing to complete an unpaid work placement. She suffered from agoraphobia, and would have had to take a long bus journey to the placement: she simply could not do that. She also suffered from acute uncontrolled diabetes, and she was reliant on feeding herself from a food bank. I dread to think where that young woman might be now. I think of a woman I met at a WASPI demonstration in support of women born in the 1950s affected by the increase in the pension age for women. She had been an office manager for decades, and was insulted and deeply disturbed by being forced by this system to go on a one-day course on how to write a CV.
We had companies that benefited significantly financially from these placements, and communities where large numbers of these placements meant that the income into the community from what should have been waged work was significantly reduced. As we face the potential significant rise in unemployment, it is important that we do not forget what damage was done by blaming individuals for the state of society, that we do not see any return to the disastrous and utterly appalling “strivers versus skivers” rhetoric that caused so much social division and heartache. We also need to focus on how this “job or activity at any cost” approach causes broader damage. There is lots of focus on all sides of politics on our productivity problem. I would question what we mean by productivity, particularly in the service and care sectors: when it comes to people-to-people contact, what constitutes productivity? There is also the question of people ending up in the right job, the optimum job for them and for society. Forcing people quickly into a new job that is a bad fit, with sanctions and the threat of starvation or having to seek the charity of a food bank, is in no one’s interest, yet that is the entire way our system is slanted.
That is where we come to trust: trusting individuals to know what is best for them, giving them the space, time and resources to develop their human potential, grow their experiences and find the way they can best contribute to society. It will not surprise the Minister to learn that I will briefly mention universal basic income. As a society and community, we should be helping people to find their way in the world, providing support through advice on study, careers guidance and practical support in making choices. But the best person to find the way forward, to identify the skills and experience they need, is the individual concerned. Giving them the space, time and security to do that through an unconditional payment that meets their basic needs is, I suggest, the way forward.
Removing compulsion to the dictates of the state and bureaucracy, and providing instead individual freedom and choice, is something that might find significant support even on the Government Benches.
My Lords, I thank the Minister for her introduction, and I support and welcome the order. The question that has not been fully answered is why it has taken so long for the relevant legislation to be amended in line with the court’s decision. Is this, as it appears, because over this period, DWP Ministers have strenuously resisted such action? Given her remarks about learning the lessons of communicating with claimants, does she recognise that senior politicians’ failure to listen to claimants has prevented effective evaluation of whether policies are achieving their objectives? Universal credit sanctions have caused such distress to the least well-off and most vulnerable people. The Government’s action in suspending sanctions until 30 June was welcome.
The report of the Select Committee, which has been referred to by colleagues in this debate, stresses that it regrets that the suspension was lifted so soon, and that threatening claimants with long and severe sanctions at this stage, so far from a labour market recovery, is unfair and counterproductive. What evidence supported the Government’s decision to reintroduce sanctions from 30 June? As others have said, there is ample evidence that sanctions disproportionately affect people with mental illness and that, at best, evidence on the effectiveness of sanctions is mixed. At worst, it shows them to be counterproductive.
Do the Government share the view of the Select Committee that the UK has some of the most punitive sanctions in the world? Removing people’s main source of support for extended periods risks pushing them further into poverty, indebtedness and reliance on food banks. The National Audit Office observed that the UK’s unusually severe sanctions regime compared to other countries is not grounded on a strong evidence base, nor has the department attempted to fully analyse the data it has at its disposal.
As to the impact of sanctions, 80% of sanctions challenged are overturned on appeal. Does the Minister agree with the Select Committee that the report into the efficacy of sanctions should have been made public before the decision to reintroduce them was announced, as the noble Lord, Lord Forsyth, the chair of the committee, has said? What evidence in the review supported the decision to reintroduce sanctions and why it was not made public? Will she also say when the review will be made public, in line with the recommendations of the Select Committee, along with a statement on what action the Government propose to address the failings of the current policy?
My Lords, I thank the Minister for her introduction to the order and all noble Lords who have spoken. With apologies for length, I shall read into the record the events that brought us here today, because we have to learn from them.
In 2009, the Labour Government launched the Future Jobs Fund, which created subsidised jobs for 18 to 24 year-olds on benefits to help them avoid the risk of long-term unemployment. Official government evaluation later found this to be a highly effective programme, with participants significantly more likely to get jobs than those who did not get involved.
Sadly, the coalition Government abolished it in 2010 to save money. They also abolished Labour’s New Deal programmes and created the Work Programme. Research later found that the Work Programme was actually less effective than doing nothing, so it was itself abolished in 2015. Part of that programme was a requirement for some claimants to do unpaid work in return for their benefits. Caitlin Reilly, a graduate who had already done a paid work placement at a museum and was volunteering there to boost her chances of getting a permanent job, was told to leave that and undertake a work placement, which turned out to be working without pay in Poundland for five hours a day sweeping floors and stacking shelves. Work experience schemes have their place, but not workfare, whereby claimants are forced to act as free labour, displacing proper jobs. Reilly launched a legal challenge and the case eventually reached the Court of Appeal, which quashed the 2011 regulations on which the scheme depended, a view upheld by the Supreme Court.
Rather than reimburse those who had been unlawfully sanctioned, the Government then repealed the 2011 regulations and introduced the Jobseekers (Back to Work Schemes) Act 2013, which retrospectively made their sanctions legal. It also validated the parallel 2011 regulations. I remember that very well. I remember the 2013 Act being rushed through Parliament—I have been in my job for ever and ever—at breakneck speed, to huge protests from the Constitution Committee and from the House. I remember the Second Reading debate, when the then Minister, the noble Lord, Lord Freud, faced an onslaught of criticism, including from the noble Lord, Lord Pannick, who pointed out that the Bill
“breaches the fundamental constitutional principle that penalties should not be imposed on persons by reason of conduct that was lawful at the time of their action”.—[Official Report, 21/3/13; col. 739.]
Occasionally, all of us in politics need to reflect that when we legislate in haste, we may repent at leisure. Reilly and others went back to court and, in a case that went right up to the Court of Appeal, the 2013 Act was in turn ruled unlawful because it had interfered with ongoing legal proceedings challenging benefits sanctions by retrospectively validating those sanctions.
In 2018, the Government laid a remedial order to fix things. Third time lucky? Alas not. As we have heard, following an intervention by a tribunal judge, that order was itself deemed to be at risk of challenge as it did not cover both sets of 2011 regulations. It was withdrawn, and last September this revised remedial order was laid.
Fourth time lucky, the Government have finally landed in the right place. We welcome this remedial order, which will restore the right to a fair hearing for all affected claimants, but there are some really important questions the Minister needs to answer. I recognise that she was not in post at the time, but the Government need somehow to explain to Parliament what they have learned from this mess.
First, can she remind us what will happen to the individuals affected by the order and how many of them there are? In the Commons, the Minister mentioned 5,000 people. I was not clear whether that is 5,000 people whose benefits were sanctioned and had appealed, and what stage that had got to. How many of those are likely to be recompensed and will DWP proactively try to locate them all?
Secondly, in the seven years it has taken to get this far, what have we learned? The Minister mentioned in her introduction a need to learn lessons about communicating better, but can she tell us whether a full lessons-learned exercise has been done on this case? Have Ministers asked what could have been done to avoid these various breaches of the law happening in the first place? What actions could have resolved it sooner? Have they reviewed whether it was right to spend so much time and public money appealing the decisions all the way, or should they have acknowledged and fixed the mistake earlier? Have they asked what drove the later errors? Was it money? Was it political intransigence or determination?
How does this play in the light of the worrying noises from the top of this Government threatening the whole principle of judicial review, misleadingly presenting it as the courts interfering with Parliament, rather than what it is—the courts upholding the requirement that the Government conduct themselves in accordance with the laws passed by Parliament?
Rather than just digging in and fighting citizens in the courts—including, in this case, by taking away the rights of others to appeal—could DWP better learn what systemic change might be needed to improve the system? What have the Government learned about how they use sanctions and their impact on claimants? I heard the very moving comments from the noble Lord, Lord Forsyth, and the noble Baroness, Lady Bowles, and others. I am very grateful to them and others on the committee for the work they are doing in this area.
We knew the problems back in 2013. At a Second Reading debate, my late and much missed friend Lady Hollis reminded the Minister that the DWP’s own research showed that between half and two-thirds of those sanctioned did not know that it could happen, and when it did, they did not know why. In some cases, because they had other deductions from benefits, they did not even realise that they were being sanctioned, so it obviously had no impact on their jobseeking behaviour. I will not say any more on this, as others have covered it, but I will be very interested in the Minister’s response to that.
That takes me to my final question: what lessons have the Government learned for employment support policy? Do they now value enablement and encouragement over punishment? Will they learn from the past?
Perhaps ironically, we are debating this order the day after the Kickstart Scheme opens to bids—a scheme offering six-month work placements to unemployed 18 to 24 year-olds on benefits. However, the Future Jobs Fund was so successful because the Labour Government got the culture right from the start and because it was collaborative. Will the Government learn lessons from the Future Jobs Fund, and from all the events we have debated today, to ensure both that Kickstart works well and that the DWP is focused less on enforcing conditionality—especially in the middle of a pandemic with enormous fallout for unemployment —and more on supporting people into long-lasting employment? I hope that is a goal we can all share. I look forward to the Minister’s reply.
I thank noble Lords for their contributions today. Getting people back into work and giving them the support that they need is of the utmost importance, especially at this time. My department is dedicated to doing all that we can for these individuals.
My department is constantly learning and evolving. As the Secretary of State told the House of Commons on 29 June, claimant commitments must now reflect our “new normal”, acknowledging the reality of a person’s local jobs market and personal circumstances to prepare them for getting back into work. We are managing this with a phased approach to ensure that our work coaches can deliver an effective service in a reasonable, measured and safe way, taking into account any Covid-19 restrictions.
I will move on to the many observations made about sanctions—an issue which all noble Lords have raised. We use sanctions as a consequence of people not meeting the agreed commitments that a claimant accepts to be entitled to benefits. We always apply reasonable judgment before any actions, and take into account the current circumstances of the individual. My department’s work coaches use their judgment of what are reasonable steps. Claimant commitments must be reasonable, and in this unprecedented time they will be. Sanctions are used only if a claimant does not do what they have committed to do without good reason.
Before the start of the pandemic, sanctions were used in only a small percentage of cases, and the rate of sanctions has fallen over the last year. However, we are never complacent in our ongoing commitment to ensure that our policies are fit for purpose. That is why, in November 2019, we reduced the maximum length of high-level sanction from three years to six months, as my noble friend Lord Forsyth referred to. Data from March 2020, before suspending conditionality, shows that 2.12% of UC claimants subject to conditionality at the point where the sanctions applied had a reduction taken from their UC award. This is near the lowest on record. The latest data available following the suspension of conditionality shows that 0.73% of UC claimants subject to conditionality at the point where the sanction was applied had a reduction taken from their award.
As many noble Lords have said, the department has committed to doing an evaluation of the effectiveness of universal credit sanctions in supporting claimants to search for work in response to the Work and Pensions Select Committee report on benefits sanctions. The department will look to publish in autumn.
Noble Lords asked what “as soon as we can” means. I appreciate that we want this as quickly as possible, but the department has faced unprecedented demand on services. With an increase in claimant count of nearly 600%, we are doubling our work coaches and recruiting more and more so that we can support more people. We are having to increase the DWP estate so that we can look after people safely, with social distancing, and we have turned over every stone to increase the relationships that we are making with employers to ensure that, where vacancies exist, we can get them and put people forward for them. These are tough times and we are working very hard to support the people we are in business to support.
The noble Baroness, Lady Bennett, asked about progress reports. I need to take this question back to the department; I will get an answer to her and make sure that all noble Lords are apprised of it. She also talked about a person in Ashton-under-Lyne and gave some very alarming details about the case. If she could please let me have the details, I will ensure that that case is investigated. If other noble Lords have details of where things have apparently not worked out for people, I ask them to let me know; I give my word that it will be looked into.
Another point raised was about the unfairness of mandating people to go on employment programmes. We aim to provide individuals with the help they need to find work, stay in work and get better work, so I strongly refute that requiring people to attend programmes to help them into work is unfair. The Court of Appeal ruled in our favour on this point: attendance on these work programmes is not a breach of human rights.
I acknowledge that all noble Lords have raised points about sanctions and their impacts on people, and the noble Baroness, Lady Bennett, and my noble friend Lord Forsyth raised the point about sanctions leading to poverty and destitution and the use of food banks. We do not sanction people lightly. It is applied only where there is good reason. If people find themselves in hardship, hardship payments are available to eligible claimants to help them meet their essential needs.
The noble Baroness, Lady Bennett, raised a point about the commitment of the department and the Government to helping people back into work. I have never known a time in my working environment when I have seen such commitment in action through our Jobcentre Plus network, our partners and, in particular, our work coaches. I must say that I take the point about forcing someone into any job, but over my life I have learned that when you have a job, it is easier to get the next one. With the work we are doing on in-work progression, I can honestly say that this is the best course of action.
The noble Baroness, Lady Janke, raised a point about sanctions for not attending unpaid work placements. We do not sanction people for not attending work experience placements. If we can have more details, I will investigate that.
On who falls in the scope of the remedial order, we estimate there to be under 5,000 individuals who may be affected by this. The remedial order affects a very specific group, and we will use the appeal records to identify those people.
The 2013 Act was introduced because of the department’s defective notifications. I was asked whether we have reviewed the notifications and letters since. We have, and we are constantly revising and improving processes on sanctions.
Another question was whether the 2013 Act was unconstitutional. The Act was not only constitutional but it was necessary. It was introduced in people’s best interest and was an effective means of achieving its policy effect.
As to when people will be paid, as I have said, during this difficult time resources have had to be elsewhere, but we will begin resolving the cases impacted by the order and paying people any amounts that they are due this year.
I am sorry, but in the time available I am never going to be able to answer all the questions. After this order is dealt with, I will go back to the department with my officials and make sure that people get answers to the questions they have raised.
I recognise the importance of resolving this incompatibility as quickly as possible. It has taken time to consider and develop the best course of action. I believe that the proposed remedial order is a reasonable and lawful approach to resolving an otherwise complex issue, and I am grateful to the Joint Committee on Human Rights for its scrutiny of the matter. The remedial order process is very rarely used, but it is an effective way of correcting incompatibilities.
Finally, the Economic Affairs Committee’s report on universal credit has been published. We thank the committee for its work. We are considering the content and recommendations, and we will report back in due course. If any noble Lord wishes to discuss that report with me, they should feel free; I am very happy to meet them.
There are no arguments now to justify delaying the process. It has already been approved in the other place. I hope that the Committee will support the remedial order during its final passage through Parliament. I commend the order to the Committee.
I remind Members to sanitise their desks and chairs before leaving the room.
Arrangement of Business
My Lords, the Hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, while others are participating remotely, but all Members will be treated equally. I must ask Members in the room to wear a face covering, except when seated at their desk, to speak sitting down and to wipe down their desk, chair and other touch points before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes. The time limit for this debate is one hour.
Fatal Accidents Act 1976 (Remedial) Order 2020
Considered in Grand Committee
My Lords, I am afraid that the noble and learned Lord, Lord Keen of Elie, is unable to be here so I am taking this order through on his behalf.
This draft order seeks to rectify an incompatibility with the European Convention on Human Rights identified by the Court of Appeal in the 2017 case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Trust and others. This relates to limits on the categories of person eligible to receive an award of bereavement damages under Section 1A of the Fatal Accidents Act 1976, which excludes a person who has cohabited with the deceased person for a period of at least two years immediately prior to the death.
The draft order was laid in Parliament on 12 February 2020 and was approved by the House of Commons on 15 June, so this debate represents the final stage in the parliamentary process, after which it will become law. As noble Lords will be aware, the terms of the Human Rights Act 1998 in relation to remedial orders require the order to be strictly focused on rectifying the incompatibility that has been identified; it cannot extend to addressing wider issues.
The bereavement damages award is set by the Lord Chancellor and is a fixed payment in acknowledgment of the grief caused by a wrongful death. The level of the award is currently £15,120, having recently been increased in line with inflation. The award is currently available to a limited number of people, including the wife, husband or civil partner of the deceased person.
Unlike civil damages generally, which are intended to compensate fully for the loss suffered, the bereavement damages award is, and was only ever intended to be, a token award payable to a limited category of people. When the award was first introduced in the Administration of Justice Act 1982, it was acknowledged by Parliament that it is impossible to quantify or provide adequate financial compensation for the grief felt at the loss of a loved one. Similarly, the limits on the categories of people able to claim are not intended to imply that people outside those groups would not be severely emotionally affected by the death in question.
The draft remedial order provides that a claimant who cohabited with the deceased person for a period of at least two years immediately prior to the death will be eligible to receive the bereavement damages award. In view of the fact that this is a fixed, token award, it is desirable for the system governing it to be as simple and straightforward as possible to avoid unnecessary complexity that would add to the cost of litigation and the potential for disputes.
In that context, we consider that it is reasonable to set a limit that objectively evidences a relationship of permanence and commitment and avoids the need for intrusive inquiries into the quality and durability of the relationship in individual cases. We believe that two years is an appropriate qualifying period. This period is already applied under Section 1 of the 1976 Act in relation to claims by cohabitants for dependency damages, and unnecessary complexity would arise in a claim involving both types of damages if different definitions were used.
In the very rare instances in which both a qualifying cohabitant and a spouse will be eligible—that is, in circumstances where the deceased was still married and not yet divorced or separated but had been in a cohabiting relationship for at least two years—the draft order provides for the award to be divided equally between the two eligible claimants. We consider that this is the fairest approach to adopt, given that it is desirable to avoid the potential for intrusive inquiries into the quality and durability of an eligible relationship or, in this particular situation, into the respective merits of the two claimants.
I am grateful to the Joint Committee on Human Rights for its scrutiny of this draft order. A remedial order is seldom used to correct incompatibilities in primary legislation with the European Convention on Human Rights. It is therefore right that each order be scrutinised carefully both to ensure compliance with the procedure laid down in the Human Rights Act 1998 and to ensure that the incompatibilities found by the courts are addressed.
The Government welcome the committee’s recommendation that Parliament approves the order and I hope that my comments have addressed the main points on which it has expressed concern in relation to the contents of the draft order. It remains our position that some of the issues raised by the committee go beyond the Court of Appeal’s ruling on incompatibility and are therefore beyond the scope of the order. I beg to move.
My Lords, I thank the Minister for her succinct explanation. I wish to make three brief points about this order, which I trust she might respond to. First, the order makes no provision for couples who may have been together—what their friends call “an item”—although not actually living together under one roof for completely understandable and legitimate reasons. For instance, they may have clashing work commitments or obligations as carers for relatives which rule out sharing a home in the conventional sense.
Secondly, the order excludes cohabitees who have lived together for less than two years. It treats such people like employees who qualify for protection against unfair dismissal only after two years’ service. The claim in paragraph 7.2 of the Explanatory Memorandum that two years together
“objectively evidences a relationship of permanence and commitment”
beggars belief. Where, I wonder, is this evidence, and what world are Ministers living in? Setting such a two-year test for a bereavement award is arbitrary. Let us not add insult to injury by pretending otherwise.
Finally, there is the question of the value of a lost life. The order applies to England and Wales and provides for the award of bereavement damages now of £15,120 for cases relating to deaths on or after 1 May 2020. In Scotland there is no statutory limit and figures of up to £140,000 have been awarded. We are back in the postcode-lottery game, but the Government rejected the recommendation of the House of Commons Human Rights Committee in May 2020 for a review of the bereavement damages scheme. I would be grateful if the Minister addressed these three specific issues.
My Lords, I suppose I started off my professional career as a solicitor in the era of Lord Campbell’s Act of 1846 which contained no element in awards of damages equivalent to the Scottish solatium. The Scottish approach always recognised the grief that a death causes, exacerbated by the negligent act of an institution or an individual.
When the Fatal Accidents Act 1976 came into force, I was involved in personal injury litigation for both sides—that is, individual claimants and insurance companies. I certainly thought at the time that a lump sum by way of a bereavement award could never be an adequate or just measurement of grief. I have always been attracted to the Scottish system whereby this aspect of compensation is considered on a case-by-case basis. It is a question of principle. Indeed, in the field of criminal injuries compensation, the move from common law damages to a tariff system, effectively awarding lump sums for injuries regardless of individual circumstances, caused me to resign from the Criminal Injuries Compensation Board in the early 1990s.
It is in that context, therefore, that I must regard this remedial order as a small step in the right direction but no more. I concur completely with the Joint Committee on Human Rights’ excellent report that many other issues need further consideration. Since this particular case was concerned with the status of the claimant, the award of a lump sum for bereavement was not in issue and the court did not decide that a lump sum was incompatible with the convention. To change the system would therefore require primary legislation, as the Joint Committee and the noble Baroness in her introduction recognised.
In assessing pain and suffering as an element in an award for personal injury, the court is concerned with many factors, for example the extent and duration of the pain, the time taken for recovery, any permanent effect, previous state of health, age and domestic circumstances —a plethora of issues. All these are variable and are considered by a judge against guidelines that judges as a body have laid down and published. However, grief is a form of suffering and will vary from individual to individual. For example, the grief of a spouse in a happy and long-lasting marriage must surely be more intense than for a spouse where a marriage of short duration is on the brink of a divorce. It is not beyond the wit of a judge to recognise these differences.
The consequences of the lump sum approach to a bereavement award may be dramatic. For example, suppose two people are involved in an accident caused by the negligence of a third party, and one is killed and the other injured. The spouse of the deceased would receive a lump sum bereavement award regardless of circumstances while the injured person would receive as compensation for pain and suffering a sum carefully calculated with reference to the personal circumstances of that injured individual. The present lump sum system surely raises in the mind of the widow that the state values the life of her husband at a derisory sum. If she cannot substantiate a dependency award, so that is all she receives from the negligent defendant or his insurance company, that will seem all the more unjust.
While this issue is beyond the scope of this remedial order, it does raise the question of equal division of the lump sum between a spouse and a cohabitee, as the noble Baroness pointed out. The Government say in their Explanatory Memorandum that they wish to avoid “intrusive inquiries” into
“the respective merits of two eligible claimants.”
I cannot imagine a more likely source of conflict and bitterness on both sides than an equal division between a wife of many years standing and a cohabitee of just two years. Would such a conflict really be in the public interest?
APIL—the Association of Personal Injury Lawyers—has produced a useful briefing on this issue, referring to its Scottish experience where, as I have already said, the system is different. I certainly go along with the proposals that it makes. There is a need for a wider debate on awards in fatal accidents cases and I hope that it will take place.
My Lords, I have to declare a personal interest because I have cohabited with somebody for more than 20 years, but I hope never to be eligible to claim this award. I do my best in this House to say “Well done” to the Government when I think they have got something right. It does not happen very often, but when I see something is improving legislation, then I say “Congratulations”, but this statutory instrument is tiny, the bare minimum to address the human rights breach which was identified by the Court of Appeal in the case of Smith. Worse still is the fact that it has taken the Government three whole years to bring these changes to Parliament. That is a three-year gap in which bereaved couples facing a discriminatory system have been left without compensation following the death of their loved ones.
The simple truth is that the Fatal Accidents Act is not fit for the 21st century. It became law more than 40 years ago in 1976, which was a different era of relationships and family values. Today’s remedial order is nothing but a sticking plaster to cover one issue raised by the courts. The Act still refers to and makes a distinction between legitimate and “illegitimate” children. Such wording was probably all right in the 1970s, but even the most senior politicians might be so-called illegitimate children. Nobody mentions that anymore because it is just not relevant. It is the same with the issue we are dealing with today. Statutes should not enforce archaic and, frankly, offensive language and the Government have to amend this. It is true that it needs primary legislation. When we have a quiet spell next year, I hope the Government will bring something back to fix this messy situation.
While I am talking about that, the word “accidents” is no longer valid when we talk about car crashes or traffic incidents. The Metropolitan Police does not use the word “accident” anymore. The whole road safety world abhors it because “accident” presupposes the cause of a collision. It presupposes that it was, “Oops! I shouldn’t have done than”, but there is almost always a real cause, whether it is drugs, drink or inattention. There is a cause, so the word “accident” has to go.
Other issues persist. Why do there have to be two years of cohabitation? What happens if somebody has lived with another person for 729 days, one day short of the two years? A relationship in which people have lived separately for 20 years is just as valuable, and more so, than a relationship in which people have lived together for two years. The Government are saying that a 20-year relationship lived apart is worth £0 on death. As other noble Lords have said, financial compensation is always going to be a crude measure for bereavement and will never come anywhere close to solving the hurt and healing the wounds. This order will ensure that a great many deserving people will get absolutely nothing.
The noble Lords, Lord Hain and Lord Thomas, have suggested that we go forward with the idea recommended by the Joint Committee on Human Rights and supported by the Association of Personal Injury Lawyers: the Government could open a public consultation on how to reform this clunky and flawed area of law. They could consult on whether something like the Scottish system of allowing courts the discretion to determine who should receive how much would work. Will the Minister take this away and raise it with her department?
My Lords, the next speaker would have been the noble Lord, Lord Marks of Henley-on-Thames, but he has not been able to join the debate, so I call the noble and learned Lord, Lord Falconer of Thoroton.
I thank the Minister for introducing this with such clarity and skill. I welcome the change that the remedial order makes, which means that non-married and non-civil partnership couples benefit from the entitlement to bereavement damages if one of them is tragically killed. I also very much echo the need for full-scale reform of the Fatal Accidents Act 1976 which, for the reasons given by earlier speakers, is an archaic piece of legislation and can be very hurtful.
I wish to focus on this particular remedial order. I suggest that there are three things that it could have covered, so I wish to ask the Minister why it does not cover those things and if she can make inquiries to see whether an additional remedial order could be introduced to cover these matters.
The first matter was mentioned by earlier speakers and concerns the two-year period. When somebody enters into a civil partnership or a marriage, they become entitled immediately to the damages that the Fatal Accidents Act 1976 gives, yet if you co-habit with somebody, you do not get that entitlement. I see the issues that might arise in relation to proof, but why was it not possible to say that after two years it is automatic and prior to two years the position has to be proved to the satisfaction of the defendant or, if they do not agree, to a court? The Joint Committee on Human Rights referred to the example of Amelia, who had lived with her partner Jordan for 18 months when he was killed in a car crash. She was 29 weeks pregnant at the time of his death; she was not entitled to bereavement damages and would not be under this change. Can this not be changed? What is the basis for it?
The second matter concerns shared damages. There could be the most acrimonious divorce of all time going on when a partner who has been in another relationship for a long time—as well as the person with whom he or she is engaged in that divorce—is killed, and yet the bereavement damages are shared. The purpose of bereavement damages is to compensate people for the grief that they suffer. Why have the Government chosen this route rather than a different one? Again, that could have been dealt with by this order.
The third issue is the inequity of a father who loses a child and is not married to their mother not being entitled to any bereavement damages. That is not good. It could have been remedied in the light of the Smith decision, because it is precisely this sort of inequity that the court identified in the course of the judgment.
Can the Minister indicate why those three things have not been covered and can she give us some indication that she might take them back to the Ministry of Justice? Perhaps an additional remedial order could be advanced because I think that everybody in the room, and probably in the country, would strongly support those three changes.
My Lords, I am grateful for this informed and constructive debate. A number of important points were made, which I would like to respond to. If I miss anything, I am more than happy to answer in writing; I will certainly check Hansard for that tomorrow.
First, the noble Lord, Lord Hain, spoke about the provision for couples that may be together but not sharing a home. We can go into lots of complexity on this. We have tried to make this as simple as possible for a number of reasons, mainly because complexity at the time of grief does not help.
A number of noble Lords, including the noble and learned Lord, Lord Falconer, mentioned that no provision is made for couples who have lived together for less than two years. The period of two years already applies in other cases; certainly, under Section 1(3)(b) of the 1976 Act, the Court of Appeal did not question the validity of the two-year period. Again, if there are different definitions of eligibility at the time, unnecessary complexities can arise in a claim that involves both types of damages. We are trying to keep this as simple as possible because this money is a way of trying to help people through a very difficult period; it is not like other damages that would come through the courts.
Several noble Lords brought up the fact that the law is not the same in England as in Scotland. The civil and legal systems in Scotland and Northern Ireland are separate from those in England and Wales, so it is inevitable that the law has evolved differently in many respects. There is no inherent reason for the same approach to be taken in the different jurisdictions. The level of bereavement awards available in Scotland would lead to greater costs for not only insurance purposes but the NHS; again, it would also bring complexity into the proceedings for those people who are eligible to receive this money.
In England, there is a fixed-level award with clear eligibility criteria that avoids the need for detailed consideration of the evidence relating to degrees of grief and the potential for disputes which, I would argue, people do not need at such a point in their lives. Bereavement damages are, and always were only ever intended to be, a fixed token payment to a limited group of people. When the award was introduced into law, it was generally acknowledged that it is impossible to quantify or provide adequate financial compensation for the grief felt at the loss of a loved one. An award should not be regarded in any sense as a measure of the worth of the life that has been lost.
The noble Lord, Lord Hain, also asked why this measure is not in primary legislation. I must admit that the current pressure on the legislative timetable means that there is little prospect of using primary legislation to make such a change. Moreover, we consider that the nature of the incompatibility contributes to where there are compelling reasons as required under Section 10(2) of the Human Rights Act 1998 for making the necessary legislative changes quickly and promptly, and this was the way to do that. However, it does of course mean that the order is narrow in scope.
We have talked about the Scottish system and primary legislation, which was brought up by the noble Lord, Lord Thomas of Gresford.
The noble and learned Lord, Lord Falconer, wanted to raise three issues. I have talked about the two-year period, but obviously I will take it back to the department and we will talk more about the interesting view that marriages and civil partnerships get the award from day one while there is a two-year period for cohabitees. Another point I will take back is the issue about a father and the loss of a child. I am not a lawyer but I do not think that that is covered within this remedial order.
That brings me to my final point. There has been a lot of talk from noble Lords about the Act itself, including how old it is and the fact that some of it uses inappropriate language, as we heard from the noble Baroness, Lady Jones of Moulsecoomb. I will take that back and make sure that I reflect noble Lords’ views in the department. As we well know, plenty of legislation is going through so I do not know what sort of response I will get, but I will make sure that noble Lords get an answer on that point. If I have not answered anything specifically, I will look in Hansard tomorrow.
In conclusion, I believe that this order accurately and effectively addresses the incompatibilities identified by the Court of Appeal, and I think noble Lords have agreed with that, particularly in relation to eligibility for bereavement damages. Subject to the Committee’s approval, it will be brought into effect as swiftly as possible following this debate. I welcome the support for the order from the Joint Committee on Human Rights and from noble Lords generally. I commend the draft order to the Committee.
Arrangement of Business
My Lords, Hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must ask Members in the room to wear a face covering, except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
Human Rights Act 1998 (Remedial) Order 2019
Considered in Grand Committee
My Lords, this draft remedial order was laid before both Houses on 15 October 2019 in the last Session of Parliament. It was laid to implement the decision of the European Court of Human Rights in the case of Hammerton v the United Kingdom. The draft order amends Section 9(3) of the Human Rights Act 1998 to enable damages to be awarded under the Human Rights Act in respect of a judicial act done in good faith that is incompatible with Article 6—the right to a fair trial—of the European Convention on Human Rights. It provides the power to award damages where a person is detained and would not have been detained for so long, or at all, were it not for the incompatibility.
The Government consider this limited amendment to be an appropriate balance that implements the judgment of the European Court of Human Rights and takes into account the views of the Joint Committee on Human Rights, while also respecting the important constitutional principle of judicial immunity and the constraints provided by Section 9(3) of the Human Rights Act.
The particulars of the case are that in 2005, Mr Hammerton was committed to prison for three months for contempt of court after breaching an injunction and undertaking during child contact proceedings. However, he was not legally represented at the committal proceedings due to procedural errors. The Court of Appeal quashed the finding of contempt and the sentence, finding that he had spent extra time in prison as a result of procedural errors during his committal proceedings, which were such that his rights under Article 6—the right to a fair trial—were breached.
In 2009, Mr Hammerton lodged a claim for damages in respect of his detention. The High Court held that the lack of legal representation had led to Mr Hammerton spending around an extra four weeks in prison. However, he was unable to obtain damages to compensate for the breach of Article 6 in the domestic courts, because Section 9(3) of the Human Rights Act does not allow damages to be awarded in proceedings under the Act in respect of a judicial act done in good faith, except to compensate a person to the extent required by Article 5(5) of the convention—that is, where someone has been the victim of arrest or detention in contravention of the right to liberty and security.
In 2016, the European Court of Human Rights considered this case and found a breach of Article 6. The court also found that the applicant’s inability to receive damages in the domestic courts in the particular circumstances of his case led to a violation of Article 13— the right to an effective remedy—and awarded a sum in damages, which has been paid. We are obliged, as a matter of international law, to implement the judgment of the European Court of Human Rights which, in this case, means taking steps in respect of the violation of Article 13 to ensure that similar violations will not arise in the future.
To set the draft order in context, the Human Rights Act gives individuals the ability to bring proceedings to enforce their convention rights or to rely on those rights in other proceedings, and gives courts and tribunals the ability to grant any relief or remedy within their powers as they consider just and appropriate.
The award of damages is often not necessary to afford just satisfaction for breaches of convention rights. In the majority of cases in which a judicial act done in good faith leads to a violation of an individual’s convention rights, it can readily be remedied by an appeal and other forms of relief, such as release from custody. Therefore, it would be only on rare occasions that the existing statutory bar in Section 9(3) of the Act would constitute a barrier to a victim receiving an effective remedy as required by Article 13 of the convention.
The bar on paying damages in cases such as this one is in primary legislation. To implement the judgment, it is necessary to amend the relevant primary legislation —in this case, the Human Rights Act 1998, which sets out the procedure for making remedial orders such as the ones we are discussing today.
In 2018, the Government laid a proposal for a draft remedial order to make a narrow amendment to Section 9 of the Human Rights Act. That amendment provided for damages to be payable in respect of a judicial act done in good faith where, in proceedings for contempt of court, a person does not have legal representation in breach of Article 6, that person is committed to prison and the breach of Article 6 results in the person being detained for longer than he or she would have been otherwise. The Government considered that that addressed the specific findings of the court, while at the same time taking into account the need to preserve the important principle of judicial immunity—a constitutional principle that should rightly be preserved.
In November 2018, the Joint Committee on Human Rights reported on the draft remedial order and was of the view that that proposed amendment was too narrow and did not fully remove the incompatibility of Section 9(3) of the Human Rights Act with Article 13. It recommended that we consider redrafting the order to make damages available for any breach of human rights caused by a judicial act where otherwise there would be a breach of Article 13, whether or not that leads to a deprivation of liberty. In other words, the committee said that we were not extending it enough and should go broader than the specific facts of the case.
In response, the Government accepted that other situations could arise outside proceedings for contempt of court where a judicial act done in good faith could potentially amount to a breach of Article 6, where that breach could result in the victim spending time in detention or longer in detention than they would otherwise have done, and where damages would be unavailable, contrary to Article 13. The order before the Committee today is therefore slightly wider in scope than the 2018 draft order, taking into account the need to balance addressing the incompatibility identified by the European Court of Human Rights with the need to protect the principle of judicial immunity.
I am grateful to the Joint Committee on Human Rights for its scrutiny of the proposal for a draft order and its careful consideration of the more recent draft order that has been laid. We welcome the Joint Committee’s recommendation that Parliament approve the order.
Noble Lords will have heard me mention just now the need to protect the principle of judicial immunity. Judicial independence and the principle of judicial immunity must be protected; any intrusion needs to be stringently justified. That is why we engaged with the judiciary to ensure that it was fully sighted on the judgment and our plans for the remedial order.
Finally, given that the Human Rights Act 1998 applies to the whole of the United Kingdom, this order would apply UK-wide. Our officials have worked closely with the devolved Administrations during this process.
The order ensures that, in certain limited additional circumstances, where our domestic courts find that a judicial act done in good faith has breached an individual’s Article 6 right to a fair trial and led to them spending longer in detention than they should, the courts are able to determine and properly consider whether an award of damages should be made for any such breach.
I beg to move.
I am very grateful to the noble Baroness for spelling out so clearly and concisely the purpose of the remedial order. I am as much here on a Thursday evening to learn, as I often am in the House of Lords, as to contribute, but I think that we have to be much clearer about what we are doing.
I am in favour of the reinterpretation of Article 5(5) —that is what the remedial order does—and the ability to provide redress when mistakes are made in the form of the kind of award we are discussing tonight. However, we should not be under any illusion that we are maintaining judicial immunity. There will undoubtedly be drift in how this remedial order is subsequently interpreted regarding the extension of the Human Rights Act. It raises also the issue of the incorporation of the ECHR into the Human Rights Act back in 1998 and what was anticipated at the time.
In addition, although I am not concerned about Henry VIII powers in this particular instance, it raises the question of whether this should have been part of primary legislation rather than an adjustment through a remedial order to the primary legislation. While it is perfectly reasonable to provide compensation in the individual case that was taken through the European court, other interpretations of mistakes made—inadvertently and therefore not deliberately—will undoubtedly arise. I am not entirely clear how judicial immunity is maintained in those circumstances, not least because anyone who has spent any time reviewing how judicial oversight of the court system itself works will note that very often it does not work well. Failure to provide counsel in this particular instance is just one of many mistakes that inadvertently might lead to an injustice.
Tonight, therefore, in approving the remedial order, I think that we should be much more open to understanding the likely implications down the line.
My Lords, I welcome this order with some reservations and queries. It is important that where the European Court of Human Rights has found that UK legislation is incompatible with the European convention, that incompatibility should be removed. The fact that parliamentary proceedings are required to do that should satisfy anyone who groans under the yoke of the European Court of Human Rights, and its judgments are not effective without the approval of the UK Parliament. However, I would like to raise three queries.
The first is the use of the Schedule 2 procedure in this instance. Section 10(2) of the Human Rights Act provides that a remedial order may be made to amend legislation to remove the incompatibility which has been found if the Minister of the Crown considers there are “compelling reasons” for proceeding under that section. Since the procedure can be used not only to amend primary legislation but to amend it retrospectively, as in this case, it is obvious that Parliament wishes to place some restriction on the Minister’s powers.
In this instance, paragraph 7.3 of the Explanatory Memorandum gives as the “compelling reason” that
“current pressure on the legislative timetable means there is little prospect of using primary legislation.”
That is the main reason given. It also states that
“the nature of the incompatibility contributes to there being compelling reasons for making the necessary legislative change swiftly.”
I rather doubt that. This order is retrospective, so I cannot see what need there is for speed.
Can the Minister confirm that there are a number of outstanding cases where claims for damages have been brought against courts or tribunals which would previously have been caught by Section 9(3) of the Act but which will be acceptable under this new remedial order? If there is not such a queue, how can the Minister justify the use of the word “swiftly”? There has not been a moment in the years I have been contributing in this House when the Government could not raise the excuse of “current pressure” on the legislative timetable.
My second query relates to the identity of the defendant in a case such as this, and that raises the question of judicial immunity. Mr Hammerton’s complaint was against the county court judge who failed to inquire about, let alone to grant him, legal representation in the proceedings in which he imprisoned him for contempt of court. Having succeeded on appeal in quashing that order of imprisonment, and having served his period of imprisonment, Mr Hammerton brought proceedings for damages in the High Court. He also had to apply for leave to bring proceedings out of time. The report does not make it clear whether the judge personally was the defendant or whether the proceedings were brought against the county court in which the judge sat. Section 6(1) of the Human Rights Act states:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
Subsection (3) defines a public authority as including,
“a court or tribunal, and … any person certain of whose functions are functions of a public nature.”
Of course that could include a judge.
For the purpose of clarity, and considering the question of judicial immunity, can the judge be sued personally for a breach of convention rights, such as here, and is he personally liable for damages? I assume that the policy behind Section 9(3), as it stood, was to protect the judge personally, provided he acted in good faith. It is conceivable that a judge—perhaps it was more likely in the past than it is today—might act so outrageously as to lose any claim to be acting in good faith.
Finally, having regard to the findings of the Court of Appeal in the Hammerton case, are civil judges routinely instructed on their powers of imprisonment or of punishment in contempt of court cases? Certainly judges and magistrates in the criminal courts are made fully aware, time and again, in lectures and communications, of their powers and their responsibilities where any question of imprisonment arises. A magistrate would have immediately appreciated the problem had he been present. It was a very basic error for the judge to use his power to imprison without even inquiring whether Mr Hammerton had legal advice and assistance.
My Lords, this is an important application and I think it is right that I should refer to a very interesting paper by Professor Richard Ekins, who is professor of law and constitutional government at the University of Oxford. He argues that this order is ultra vires and unconstitutional. On the first point, he argues that the provisions of Section 10 of the Human Rights Act are of a type that should be construed strictly, and so construed do not allow amendment of the Human Rights Act. On the second point, his argument is that this order amending the Human Rights Act is an unusual and unexpected use of the Section 10 power, and accordingly it is inappropriate.
It will be seen that these two arguments are closely linked. While I see how the argument has been skilfully deployed, I think it construes the power of Section 10 too strictly, since the Human Rights Act is primary legislation and makes no exception of itself. Indeed, the power is contained in the Human Rights Act perhaps because that Act is so closely related to the convention that some incompatibility within it was foreseeable. This incompatibility is the source of the trouble that appeared here.
In my view the situation is such that Section 10 applies. I agree that the constitutional position of judges must be carefully taken into account, but it is fair to say that the Court of Human Rights really depended on the nature of the procedure, which had resulted in the then accused being sentenced for contempt of court to imprisonment. It was—I hope—a very exceptional case, but one which could arise in the circumstances, creating an incompatibility between the right to damages on the one hand and the failure to give the right of damages on the other, except in a case to which the section exempting the judicial honesty from such a result may apply. It was thought, correctly I think, that the amendment proposed here kept in place that judicial immunity while at the same time compensating the accused person—the applicant—for what was construed as a procedural error.
It is quite a tricky position. When the original application was put in, I am told that the then Lord Chancellor considered the matter with the judiciary and concluded that it was right to apply for the order. I support that judgment now and would support the grant of the order in the circumstances.
My Lords, it is a great pleasure to follow the previous distinguished speakers, who have made many interesting points already. I am not a lawyer, but a member of the very active Joint Committee on Human Rights and will speak wearing that hat. The JCHR has reported on each of these remedial orders this Session, including the one under discussion now. I and all the committee are most grateful to the JCHR secretariat for its detailed work in supporting this committee.
As has been set out, this order concerns the ability of a person whose rights have been violated by a judicial act done in good faith to have an effective remedy for the wrong suffered. The risk has been that the person may be deprived of an effective remedy as required by Article 13 of the ECHR because the Human Rights Act 1998 prevents courts awarding damages in such cases.
I will not go into the history of this, as others are more capable of doing so, but will move on to the role of the JCHR and its conclusions. Our Standing Orders require the committee to report to each House on two things: whether the special attention of each House should be drawn to the draft order and with a recommendation whether the draft order should be approved.
There has been some difficulty over timing to allow proper parliamentary scrutiny of remedial orders, which can be used to amend primary legislation. The Joint Committee has drawn attention to this in relation to the dissolution period we have gone through in particular.
The committee has sought further information since its first report, such as whether Article 13 of the ECHR is given sufficient effect in UK law. There was no clear response to this from the Secretary of State for Justice or in the government response to the report. The committee therefore wrote to the Under-Secretary of State for Justice regarding the Human Rights Act and Article 13 of the ECHR in October 2019 to seek further clarity, and we received responses. The Government set out their position on Article 13 with regard to UK law and clarified the situation.
However, the Government are, of course, currently contesting a case before the ECHR involving Article 13 in relation to a breach of Article 8 on the right to family and private life. The JCHR has asked to be kept up to date on this case. The committee is content that the Government have revised the draft order and considered possible incompatibilities relevant to issues arising from Article 13. The committee welcomes the Government’s acceptance of its recommendations in its first report and the amendments it has made to the draft order. The committee considers that the procedural requirements of the HRA 1998 on the use of remedial powers have been met and considers that the draft order takes care of the incompatibility identified by the courts. The JCHR considers that there are no reasons why the order should not be agreed by both Houses of Parliament, and we recommend that the draft order should be agreed to today. I look forward to the rest of the debate and its outcome.
I am pleased to see the Government taking action to be compliant with the convention and the Strasbourg court judgment, since they have sometimes not been flavour of the month. I also welcome the observation in the response last year to the JCHR report that,
“the HRA performs a special role in ensuring that an effective remedy is available domestically for a human rights breach without needing recourse to”
the European Court of Human Rights. That is also a welcome endorsement of the Human Rights Act, which is also sometimes questioned in certain political circles.
When I listened to Mr Tony Abbott, the former Prime Minister of Australia, yesterday before the Foreign Affairs Committee in the other place, if I heard him right, he seemed to say that from next year the UK Government would not have to pay any money to the Council of Europe. I think that must have been a confusion with the EU Council of Ministers because, after all, the Council of Europe is not an EU body. I did a double take, because he is apparently about to become trade adviser to the Trade Secretary so does he know something that I do not? Are the Government going to pull out of the Council of Europe? I think it must have been a slip of the tongue.
The noble Lord, Lord Blunkett, and my noble friend Lord Thomas of Gresford understandably questioned whether a remedial order rather than primary legislation is absolutely justified in this case. After all, the Hamilton case was in 2016 and the Government’s first draft of this order was in 2018, so to say that this has been done swiftly is a bit of a stretch.
The Government’s original draft was criticised by the JCHR as a very narrow technical fix, and it wanted a wider application so that the order would remedy incompatibilities with Article 13 fully, namely by providing for damages to be payable for the breach of the convention right arising from a judicial act done in good faith. Where there is no other remedy available, that would be effective for the purposes of Article 13 where a judge considers that it is just and appropriate to award damages. It seemed to me—but perhaps the noble Baroness, Lady Massey, is better informed—that the Government have only partially accepted the advice of the JCHR and redrafted the order to, in the words of the Minister, “slightly widen” the scope of its original draft to cover any circumstances in which a judicial act done in good faith has breached Article 6 and has led to imprisonment or other detention. So they have gone wider than the constraint of “only in the context of contempt proceedings where the person is deprived of legal representation and sent to prison”, but only to some extent where the Article 6 breach has resulted in unjustified detention.
Can the Minister therefore explain precisely why the remedial order cannot be widened further in scope to cover an award of damages in case of any violation of a convention right where there is no other effective remedy? The Ministry of Justice has in its submission stressed the importance of judicial immunity and independence, which is very welcome given the mud slung at judges in the past few years. We remember the slowness of the then Lord Chancellor in speaking up against the disgraceful “Enemies of the People” headlines over the Article 50 litigation. There were also very bad headlines over the prorogation judgment.
I am pleased to see the Government’s confirmation, in their response, that
“an independent and impartial judiciary is one of the cornerstones of a democracy”
and that, in a letter that a then Minister at the MoJ sent to the Joint Committee on Human rights, it was noted that
“proceedings may be brought”
under the HRA
“for breach of a convention right by way of an appeal or an application or petition for judicial review.”
Given that, in a Written Statement yesterday, the Justice Secretary elaborated on the Government’s review of administrative law, which is intended to advise on “reform of judicial review”, complacency about the availability of judicial review in the future would be out of place.
Lastly, I look forward to the Minister’s reply on why this measure cannot be somewhat wider so that there is redress where a judge has made sufficient errors to violate human rights. It is a step forward but it is still incomplete.
My Lords, I support the remedial order and welcome the Government’s changed position. The draft order originally laid was too narrow. I will make three short points.
First, I believe and hope that this process has not cast doubt on the importance of judicial immunity, a vital bedrock of our system. Judicial independence is a principle that has universal support but, in an area as fundamental as a violation of a person’s right to liberty under Article 5 or to a fair trial under Article 6, as a result of a judicial act, even when done in good faith, it is only right that damages follow in those extremely rare cases where no other remedy is possible, as was the case in Hammerton v UK.
As has already been said, an independent and impartial judiciary is one of the cornerstones of a democracy. However, as was said in the other place, depriving judges of the power to award damages against the state does not strengthen independence. The order that now allows damages to be awarded to judicial acts done in all proceedings and in relation to all breaches of Article 6 that have led to a person spending time in prison or being detained is an important position, both in principle and symbolically.
Secondly, I pay tribute to the Joint Committee on Human Rights—particularly the noble Baronesses, Lady Ludford and Lady Massey of Darwen, who are taking part in today’s proceedings—for assisting the Government in reaching the right place. It was right to ensure that we maintain a spirit of generosity in embracing the human rights framework.
Finally, Professor Richard Ekins of Oxford University presented an alternative view in a paper published by Policy Exchange and referred to today by my noble and learned friend Lord Mackay of Clashfern. He made a case for the proposition that the Human Rights Act does not authorise its own amendment in the way that is proposed in this order. It is comforting, however, to hear that the Government continue to remain committed to ensuring that legislation takes effect only in so far as it is in compliance with the convention. It was, after all, the purpose behind the Act to ensure that we were, and continue to remain, convention compatible. It would be an odd outcome of the process designed to ensure compatibility existed with regard to all other legislation that it was cited to prevent the same in relation to the Act itself.
With those comments, I support the order as now drafted.
I am afraid that we cannot hear you, Lord Marks. The sound quality is terrible. Can you get nearer to the microphone, perhaps?
Slightly. Let us hope that the Minister can hear you.
I will start again. The principal substantive point that I wish to make is that the decision in Hammerton and this remedial order highlight the importance of Article 13, which provides
“an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The article enshrines the principle that breaches of the convention must give rise to an effective remedy.
Furthermore, for all that the language may be dry, it is that article that ensures that the convention does not stop at declaring citizens’ human rights, to which this country is bound by international obligation, but also guarantees a remedy for the violation of those rights. Crucially, such a remedy must be available where the violation is a result of action by the state.
In the Hammerton case, the violation was of Mr Hammerton’s Article 6 right to a fair trial, including his right to legal representation when his liberty was at stake. This required a remedy to be available, which it was not pursuant to Section 9(3) of the Human Rights Act as unamended.
This is why the convention is such a powerful protection for individual citizens, because Governments may well find it undesirable and inconvenient to ensure that citizens’ rights against the state are consistently respected and enforced. As the Explanatory Memorandum puts it:
“The courts found that the applicant … had spent extra time in prison as a result of procedural errors during his committal proceedings, which were such that his rights under Article 6 … were breached. However, he was unable to obtain damages in the domestic courts … The ECtHR found that the applicant’s inability to receive damages … had led to a violation of Article 13.”
I believe that this remedial order illustrates the intelligent way in which Section 10 of the Human Rights Act operates in respecting the sovereignty of Parliament. That is achieved by its providing for the Government to give effect to decisions of the ECHR to the effect that UK legislation is incompatible with the convention, while leaving it to Parliament to make the necessary amendments to that legislation. This is a textbook example of that process in action. I do not believe that this is in any way a misuse of Section 10, and I agree with the conclusion of the noble and learned Lord, Lord Mackay, that the remedial order is appropriate. I see the point about swiftness in this case, but it seems to me that this order is nevertheless the right way to proceed.
The thoroughness and care of the Joint Committee on Human Rights was reflected in its report. First, it found that the remedial order originally proposed was too narrow, as was pointed out by the noble Baroness, Lady Warsi, and by my noble friend Lady Ludford. In paragraphs 23 and 24 of its second report, it considered how far judicial acts done in good faith may lead to a violation of other convention rights. It concluded, as the noble Baroness, Lady Massey, said, that
“such situations are difficult to foresee …and therefore do not fall within the remedial Order requirement of being ‘necessary to remove the incompatibility’.”
I stress again how important it is that the recommendations of the Joint Committee on Human Rights are given full weight by the Government, as they were in this case. I firmly believe that, in the interests of human rights, all the recommendations of that committee should be implemented unless there are extremely powerful reasons why they should not be followed.
I strongly agree with the noble Lord, Lord Marks, that this a very clear example of it being for the UK legislature to decide, where there is an incompatibility, whether to change the law. It is not something that comes because of the European Court of Human Rights reaching that conclusion; it is because Parliament decides. I strongly endorse what he said in relation to that.
I strongly agree with the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Marks of Henley-on-Thames, and the Government that Section 10(1)(b) and Section 10(2) of the Human Rights Act, which refers to legislation that is incompatible, do not contain any reservation for the Human Rights Act itself and therefore, as a matter of construction of Section 10, it is possible to use the Section 10(2) power in order to amend the Human Rights Act itself. I too have read Professor Ekins’s suggestion that that is wrong. Honestly, I do not think there was anything at all in the points he was making, and I agree with everybody else’s point in relation to that.
I have two concerns. I was very glad to hear the noble Baroness say that the Government were very concerned about judicial immunity. If you are a judge and think that you might be sued because of a decision you make in good faith—we are dealing here only with decisions made in good faith—that might inhibit the decision you reach. The noble Lord, Lord Thomas of Gresford, made it pretty clear that a judge could, himself or herself—or themselves, if it is the Court of Appeal or the Supreme Court—be sued in relation to this. I would be very grateful to hear what reassurance the noble Baroness can give. She said that judges would be “properly protected” and so it would be very difficult to sue them in their own names, and that there would be no question but that—assuming that they had acted in good faith, because that is the only circumstance in which this applies—they would be indemnified if they were sued in person. Any reassurance the noble Baroness can give in that respect is very important.
The second issue I would like to raise is this. My understanding is that the reason judgment was found against the United Kingdom in Hammerton v United Kingdom is that the consequence of the judge not according Mr Hammerton legal representation was, as the High Court of England and Wales found, that he spent more time in jail for contempt than he otherwise would have. No appeal putting it right can compensate someone for spending time in jail when they should not have.
The one area where I would be interested to know what the Government say is what happens when a court order leads to the disclosure of information that might be in breach of Article 8—where information that should be kept private as a matter of Article 8 is then made public as a result of a court order, but, if we assume that the court order is then reversed in the Court of Appeal, the information has been made public as the result of a judicial act. What do the Government say is the position in relation to that? Assuming that the judge of the court has acted in good faith in the circumstances I posit, is that something in respect of which there would be no remedy at the moment? Is that something the Government are looking at, or is there some effective remedy under Article 13, and therefore one would not need to worry about it?
My Lords, I am very grateful to noble Lords for their contributions to this debate. I will try to answer as many questions as I can and if I have missed anything, we will look through Hansard tomorrow and make sure that noble Lords get a written response, a copy of which I will put in the Library.
A number of themes came out of this debate, the first of which was using primary legislation rather than a remedial order. A number of noble Lords, including the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, said that this is exactly the type of situation that the Section 10 power was created for: where very narrow and targeted amendments are being made to address incompatibilities that have been identified by the courts. I would also say that the JCHR has scrutinised the draft SI and agrees that it is an appropriate use of the power to make a remedial order. It is for Parliament, of course, to decide whether or not to approve it. While I am talking about this, I thank the noble Baroness, Lady Massey, and others who were on the JCHR and who had to look at these orders twice: the Government appreciate their work and we thank them for their recommendations.
The second theme that came up, and related to that, was the power of the Secretary of State. My noble and learned friend Lord Mackay brought up the Secretary of State having vires to amend the HRA itself via remedial order. The Government have considered this question very carefully and are confident that this is an appropriate use of the remedial order-making powers.
The power is unusual in that it requires a court decision and it is intended for, and limited to, removing an incompatibility identified either by a domestic court or by a Minister having regard to a finding of the European Court of Human Rights. I hope that helps my noble and learned friend Lord Mackay of Clashfern to understand that, as I am sure he does.
The scope of the remedial order came up a number of times. The noble Baronesses, Lady Ludford and Lady Massey, asked whether it was too narrow. The JCHR’s first report recommended the Government consider redrafting the order to make the damages available for any breach of human rights caused by a judicial act where otherwise there would be a breach of Article 13, whether or not that leads to detention. This is why the Government redrafted the remedial order with a slightly wider scope; we accepted that other situations could arise outside the committal proceedings, where a judicial act made in good faith could amount to a breach of Article 6, where that breach could result in the victim spending longer in detention than they should have done, and where damages would be unavailable, contrary to Article 13.
Any widening of those circumstances in which a remedy in damages is available in respect of a judicial act done in good faith should, we consider, be approached with caution because of the risk of the erosion of the principle of judicial immunity, which the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, brought up very strongly, as did my noble and learned friend Lord Mackay of Clashfern.
In the report on the redrafting of the remedial order, the committee welcomed our acceptance of its recommendations and it has recommended that it should go through Parliament. This was very welcome.
The noble Lord, Lord Thomas, had a question on the violation of convention rights by judges and hoped that this would not happen again, as in Hammerton v United Kingdom. I assure the noble Lord that training and guidance are available to the judiciary; the Judicial College has published an Equal Treatment Bench Book, which builds on judges’ understanding of fair treatment. That should put the noble Lord’s mind at rest that we are doing something.
The noble Lord, Lord Blunkett, brought up again the question of whether this should be in primary legislation or an approved remedial order. I hope noble Lords will accept that this is exactly the type of situation that the Section 10 power was created for: making an order to address incompatibilities.
There was quite a lot of debate about judicial independence and immunity, particularly, and understandably, from the noble and learned Lord, Lord Falconer of Thoroton. Judicial immunity is a key aspect of our judicial independence. He is quite right: an independent and impartial judiciary is one of the cornerstones of our—or any—democracy. One of the practical ways in which this is given effect is by giving judges immunity from prosecution or civil proceedings for any acts they carry out in performance of their judicial function. If he would like me to, I am very happy to write from the department about exactly what effect this will have and to put his mind at rest. We can do that after this Committee.
I think that is all that I had to specifically respond to. I reiterate that this order is the right way to implement the judgment; it reflects a pragmatic approach. I think that the noble and learned Lords, Lord Falconer of Thoroton and Lord Mackay of Clashfern, and the noble Lord, Lord Marks of Henley-on-Thames, and others, agreed that this reflects a pragmatic approach and ensures that we meet our international legal obligations—which we have to do—while still upholding the principle of judicial immunity. I therefore commend the order to the Grand Committee.
My Lords, that completes the business before the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the room.
Committee adjourned at 7.06 pm.