House of Lords
Thursday 3 December 2020
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Carlisle.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally. I ask all Members to respect social distancing. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
Oral Questions will now commence. Please can those asking supplementary questions keep them no longer than 30 seconds and confined to two points. I ask that Ministers’ answers are also brief.
National Trust Acts
My Lords, the National Trust is independent of the Government. Its activities are overseen by its board, the Charity Commission is the regulator and the scope of its work is set out in legislation. While it would be possible for the Government to review the National Trust Acts, we do not believe that it would be a proportionate approach at this time. In the first instance, the trust should be accountable for its activities to the Charity Commission as the trust’s regulator.
My Lords, the trust’s director of volunteering recently declared:
“At the National Trust we have a duty to play a part in creating a fairer, more equitable society”.
Is that compatible with the statutes under which the trust operates? Was it not an act of folly for the trust to rush out a tendentious report on slavery and colonialism —insulting the memory of Sir Winston Churchill in the process—in order to demonstrate its good will to a movement that is interested not in securing a deeper, more accurate understanding of colonialism and the past, but only in advancing an extremist political agenda in the present? Unless it changes course, is there not a danger that this important institution, admired by so many for so long, will forfeit the nation’s trust?
I agree with my noble friend that the National Trust plays a unique part in our society, with over 5.5 million members. Our position on all charities, including the National Trust, is that they must pursue their primary charitable purpose, which, in the case of the National Trust, is to protect and preserve our heritage for the nation.
It is to that last point that I draw noble friend’s attention. This is a much-loved institution, of which many of my close family and my parents have been members—I confess that I have not, but I have visited endless historic house and walked innumerable miles over the coastland and moorland that the trust looks after so well. Indeed, I contributed to Project Neptune half a century ago. I applaud Hilary McGrady, who opened up Divis Mountain, where I watched birds many years ago, looking down on the drab housing estates of west Belfast, but something has gone badly wrong. Why are curators of real expertise being sacked? Yet we now have a curator of repurposing historic houses; it is an infantilisation of going round these houses. Will the Minister let us have a look at the Acts, which have allowed the director-general to be paid nearly £200,000 a year while pursuing an agenda that seems out of tune with the fundamental purpose?
My Lords, does the Minister agree that, in order to approach equality—it is not just Black Lives Matter that is of importance—we should keep some of the small venues open; after all, we are not just a nation of mansions. I take the Minister’s initial point, but I know that the finances have meant that some of these smaller places are threatened. On Black Lives Matter, I feel completely that it is a question of presenting the facts and letting visitors decide for themselves. There should be no opinion or political aspect to that whatever.
On the noble Lord’s last point, the Government agree. Our position has been to retain and explain houses, statues and other artefacts that represent our history. If I understood the earlier part of his question correctly, in relation to smaller properties, my understanding is that the National Trust currently has no plans to permanently close any properties or to reduce its commitment to the houses within its care.
Will the Minister acknowledge that the report commissioned by the National Trust that has been referred to simply sought to audit its collections in a non-judgmental way, so that it can better provide contextual information to those viewing the collections? Will she confirm that she is aware that the National Trust has lost in excess of £200 million in income this year as a result of Covid? The National Trust is the backbone of the tourism industry, which will be important in national post-Covid recovery. What will the Government do to support heritage charities, large and small, to do that important job as part of the national recovery?
That may well have been the intention: I do not doubt for a second that the National Trust was intending to audit its houses, but our view is that the way in which it was done was unfortunate. While the trust may not have intended to cause offence, the feedback from members and parliamentarians suggests that it did.
My Lords, the National Trust has fulfilled its charitable objectives over many decades. The country has benefited both from the preservation of cultural heritage and from the nature and beauty of its open spaces. Two of the greatest challenges of our age are tackling climate change and dementia. Will the Minister confirm that the National Trust agreement with the Alzheimer’s Society to make its places dementia-friendly and its zero-emissions target of 2030 are great steps forward?
I am an enthusiastic member of the National Trust and I was delighted that it spent £7 million at Chartwell on the legacy of Churchill. Surely the Minister will agree that a mature debate on our nation’s history that recognises the complex backgrounds of our lands, our country houses and our statues can only be good for understanding the real history of the whole of our country.
Those views were set out clearly by my right honourable friend the Secretary of State when he wrote to all arm’s-length bodies earlier this year and talked about history being “ridden with moral complexity” and the need to understand that. The question in this case is about the primary charitable purpose that the National Trust is pursuing.
My Lords, the National Trust has become something of a national monopoly, at least in the country house market, largely due to the very large endowment of properties to it by the state over the years in lieu of tax. Will my noble friend agree to undertake an assessment of the benefits that might accrue from splitting it into two or more organisations, with a view to encouraging competition and increasing the variety of visitor experience, which I think I can fairly say has become rather samey?
I am sorry to disappoint my noble friend, but we have no plans currently to do such a review. The National Trust conducts its own governance review every 10 years and any external review of its activities should be left to the Charity Commission.
I shall take a different angle on the National Trust. I have been approached by people who live in National Trust properties and I know that there are all sorts of plans to modernise the relationships between staff and the tied cottages. In places, these relationships are medieval—very much like the buildings —Victorian or Edwardian. I would like to see a change to the Acts so that we can make sure that the trust is carrying out its social duty for social justice and we do not allow a situation where the tenants are living in the past while the big landlord, the National Trust, is riding high on the hog.
National Planning Policy Statements: Climate Change
National policy statements set out the planning policy framework for nationally significant infrastructure, including energy and transport. It is for relevant Secretaries of State to review their national policy statements whenever they consider it appropriate to do so.
My Lords, that rather ignores the major problem facing us. The whole of the national planning statement needs to be revised in light of the commitment to net zero, and that applies to all sectors. Take construction, for example: the energy efficiency of much new-build housing is way below the Government’s own ambitions and what is needed. Does the Minister agree that planning needs to set out basic energy efficiency standards for new builds? Developers too often prefer demolition and rebuild to retrofit options, but should that preference not be reversed in planning guidance? When are the construction industry and developers going to be forced to recognise that one of our major commitments is to get on the path to net zero?
My Lords, the Government recognise the importance of climate change and responding to a commitment in the manifesto towards that net-zero objective. We have a plan in place to do so, and we recognise the important part that the planning regime plays. It is something that needs reform, and that is why we have set out a new approach to planning in the planning White Paper.
My Lords, the Minister will be aware of the Royal Town Planning Institute and of its January 2020 report, Five Reasons for Climate Justice in Spatial Planning. Therein it makes clear that:
“As the climate crisis deepens disadvantaged communities will bear the brunt.”
Among the strong recommendations, it identifies a need for consultation with these often neglected communities in developing planning guidelines and policy statements. To what extent have the Government incorporated that clear advice into their ongoing planning assessments?
My Lords, I am sure that the climate change strategy team has read every single report on the matter and recognises the importance of having clear planks to be able to achieve the target. Obviously, at the moment those are the national carbon budgets, the net-zero target strategy and, of course, the 10-point plan.
My Lords, this is such a wonderful, wide open Question that it is very difficult to know where to go for an answer, but let me try a very small point. The Government seem to be doing a slight U-turn on onshore wind farms, which have quite harsh rules at the moment within planning documents. Is there going to be a new document for onshore wind?
My Lords, Mark Carney, who is the finance adviser for the UK presidency of COP 26, made the point that we make our choices today very rationally, and around two-thirds of the journey will be made because it is the right thing to do—because the right choice is actually a green choice. He called on more creativity from business to be able to get that extra leap to hit the target. That is very salient; we are a long way down the right path. We need to focus on air pollution and sea pollution and ensure that it is not only right morally but the right thing to do in business terms as well.
My Lords, the National Planning Policy Framework states that:
“New development should be planned for in ways that … help to reduce greenhouse gas emissions”,
so why are the Government refusing to introduce the future homes standard until 2025? How is this crazy policy approach—to build homes that will later have to be retrofitted—compatible with our obligations under either the Climate Change Act or the Paris Agreement?
I do not recognise that the commitment to a net-zero standard in the future homes standard is anything other than very bold and brave. This Government are pushing that. We recognise that the industry needs to move in line with that as well; that is why we are promoting modern methods of construction and other ways to ensure that we hit that net-zero target, and strengthening the planning guidance so that we hit that end point.
My Lords, not updating the policy statements has led to some perverse planning decisions, in particular the one by Cumbia to allow coal mining. When will my noble friend’s department decide whether that planning application should be called in? Does he realise that there will be great anger all around the House if it is allowed?
My Lords, I point out that the National Planning Policy Framework was updated to deliver commitments in the 25-year environment plan and on other matters, but there is obviously more to be done. The framework on planning for this issue is quite clear and makes sure that everything that comes forward is environmentally acceptable.
Are the Government satisfied that state-sponsored infrastructure projects, such as the Lower Thames crossing, meet the safeguarding of environmental standards? Given that retaining and strengthening the role and voice of local councillors in the planning and decision-making process should be a priority, and following in a logical sequence from the point of the noble Lord, Lord Whitty, I ask whether councils are using compulsory purchase powers to develop brownfield sites for new homes before taking land from the metropolitan green belt.
My Lords, the point around brownfield is very well taken. It is much better to build on brownfield than on greenfield land, although I have to say, from my own experience of 16 years as a local councillor, that CPO powers are not frequently used by local authorities. This is something that we need to think about; that power could be used to good effect.
My Lords, I refer the House to my relevant interests as set out in the register. Many local authorities have declared a climate emergency, but at the same time have opposed renewable energy developments or other developments in their areas that would be consistent with their policy intent. There is a real tension and a real inconsistency here, and it is the responsibility of the Government to deal with that. Does the noble Lord agree on that point and, if he does, what plans does he have to deal with it?
My Lords, there is a tremendous commitment to the objective that my noble friend—well, not my noble friend; sorry, I am not good on the protocol yet, but I consider the noble Lord a friend, even though I cannot say so. The Prime Minister set out his ambitious Ten Point Plan for a Green Industrial Revolution. It covers clean energy, transport, nature and innovative technologies. There is a real ambition in this Government to ensure that we meet our climate change commitments, and we will continue to work on delivering that plan. It is no good having a plan unless you implement it.
I too am a vice-president of the Local Government Association. The White Paper proudly proclaims to be sweeping away red tape and simplifying requirements for environmental assessment and mitigation. How will the Minister guarantee that this deregulation will not lead to a rollback of environmental standards? What will be the role of the local authority—if at all—with regard to monitoring and enforcing new standards when they eventually arrive? They do not appear to be involved in the drawing up of them, according to what I can read in the White Paper.
My Lords, that is a misrepresentation of the thrust of the planning reforms. We need to engage with communities. The idea of the planning reforms is to ensure that engagement happens up front and that it works within a framework to make sure that we get sustainable development and that we also hit the objectives that we have set as a Government.
My Lords, does the Minister accept that there is a potential conflict between the Government’s intention to build 300,000 new housing properties each year and the risk that, under pressure to deliver this ambition, local authorities and local planners are ignoring advice from the Environment Agency in approving housing schemes that are at serious risk of flooding if, as it is assumed, global temperatures rise by more than two degrees centigrade due to climate change?
My Lords, in 89% of cases, the advice from the Environment Agency is followed. There is a commitment to maintain and enhance the objectives on avoiding environmental damage in the White Paper—certainly to maintain if not to enhance. There is also a commitment to review whether the current protections via the National Planning Policy Framework are enough, and, importantly, to boost transparency, data collection and reporting where the Environment Agency or the lead local flood authority advice is given; so they are shining the spotlight of transparency. There is a pledge to review what is done in those cases where the Environment Agency flood advice is not taken, as well as to review the current approach to flood resilience design. I hope that that is a full enough answer for the noble Lord.
Child Trust Funds: Children with Learning Disabilities
My Lords, children with learning disabilities might not have the mental capacity to manage their finances and might need someone to do this on their behalf. Parents need legal authority to access funds on their adult children’s behalf and might need to apply to the Court of Protection. This is an important protection set out in the Mental Capacity Act 2005, and the Government are taking steps to improve the support available to parents in this position.
My Lords, last March the Telegraph drew attention to the problems facing 150,000 children with child trust funds who cannot access their cash when they are 18 because of their disability and whose parents have to go to the Court of Protection—a cumbersome and time-consuming process involving 47 forms and 100 questions. Will the working group that was announced yesterday by the Minister look at the alternative system of appointees used by the Department for Work and Pensions to pay exactly the same group of children, which is far quicker, simpler and cheaper?
The noble Lord makes a very interesting point. I know that the Ministry of Justice is looking at and working on this. I have just heard that the DWP is, in fact, joining the working group, but the DWP appointees procedure does not extend to property and assets of the individual. It deals solely with government benefits. Extending the appointees scheme to include child trust funds would not be appropriate as it is at the moment, as it would not provide the protections currently delivered by the Mental Capacity Act.
My Lords, does the Minister agree that some children with learning disabilities who want to access trust funds might have life-limiting conditions? There might not be much time available for legal processes to be gone through. Can she assure the House that, if such situations have not already been considered, they will be given the attention that they deserve?
My Lords, my noble friend Lord Young of Cookham has identified what is actually a larger problem. I took all stages of the Mental Capacity Act through another place and also did the post-legislative scrutiny in our House. I say to my noble friend—and I declare an interest—that for parents of both children with learning disabilities and many on the autism spectrum, resort purely to the Court of Protection or to expensive legal trusts is really no help to parents of limited means who try to provide for their children throughout their lifetime. I hope that my noble friend will consider what more is needed to look at the situation we now have, particularly with more people living independently.
I thank my noble friend; she is absolutely right. That is why the Government made the announcement yesterday that we want to reduce the obstacles to supporting young people who lack mental capacity. There are other things that can be done instead of the Court of Protection: if the young person has the mental capacity to have an involvement, then there is, of course, the much cheaper and easier way of lasting powers of attorney.
My Lords, on this International Day of People with Disabilities, it is particularly important that registered contacts and carers are helped to access child trust funds to meet the increasing needs of children with disabilities turning 18. Does the Minister agree that, while speedier permission from the Court of Protection is desirable, it is also in the interests of the child to ensure that enduring powers of attorney are still sufficient and fit for purpose to prevent possible misuse of funds?
I agree with the noble Lord. This is a balance. It is important to make sure that those young people who do not have the mental capacity to access their funds get them easily, quickly and without cost, and that is what the Government are looking at. However, there are other ways, as the noble Lord says, such as lasting powers of attorney, where the young person can have an involvement in what happens to their finances.
I had the privilege 20 years ago of initiating the research on, and then working with the Chancellor of the Exchequer to set up, the child trust fund. We never envisaged at that time that this situation would arise. I want to reinforce the suggestions made by the noble Lord, Lord Young—as usual, very sensible—about trying to fast-track this and to ensure that the two big providers that are trying to find a way through are supported and enabled, rather than having obstacles put in their way.
I absolutely agree, and, as I have said, we are trying, through a working party, to find a way to reduce the obstacles that the families are facing. There is also a fee remission, which ensures that families who need to go to the Court of Protection to access these funds will not suffer financially as a result. If they have already paid any money, they can get that reimbursed. Now there is the working group looking further at how we can improve the process.
My Lords, is this not something about which the House should once again congratulate the noble Lord, Lord Young, on pointing out an absurdity? Will the Government give us an undertaking that, if they cannot find an ad hoc solution quickly, they will find that little bit of parliamentary time that is needed to ensure that we have a workable solution to this?
I am not going to make a promise of extra time, but I can say that the working group has now been put together involving the MoJ, the Treasury, the DWP, the charities and the Court of Protection to make sure that all the accessibility issues are sorted out, that it is a much more streamlined process and that it will not cost the parents any money.
My Lords, I am delighted that the Government have established a working party and congratulate them on the decision about the fee remission. However, with the numbers involved here, there could be 25,000 court cases a year on this issue over the next eight years or so, with Covid delays and capacity issues at court. Given that these parents are trusted by the Department for Work and Pensions to manage their child’s benefits, would it not make sense to ask the department to take seriously the suggestion of my noble friend Lord Young of Cookham to use an established procedure?
We absolutely will and are looking at my noble friend Lord Young’s ideas and, as I say, the DWP has just joined the working party, which is starting straight away and will report back to the Minister in early January. We are not stopping on that but looking at the best way of dealing with these issues.
My Lords, being disabled in Britain should not mean being a second-class citizen, but that is how it must seem for children with learning disabilities whose families face an expensive battle to gain access to the child trust fund. Imagine the outcry if big city investors, or perhaps pensioners, were denied access to their own money. The Government would then be rushing to their aid. The Prime Minister has pledged to level up. Will the Minister tell him that these children can have access to their money now? The message is simple: get this done.
I am afraid, as I have said before, that we are doing everything we possibly can. It is not costly any longer because the fee remission will ensure that families can go to the Court of Protection and not suffer financially. We will get it done but we have to take into account the Mental Capacity Act 2005 and the fact that these young people are at times vulnerable and need protection through that Act.
My Lords, more than 700,000 teenagers will be given the keys to their child trust funds over the next 12 months. It was never made clear to parents that disabled children will be unable to access the funds at 18, due to their lack of mental capacity. With an application to the Court of Protection on behalf of a disabled child, they might be able to do that but there is no surety that they could. Parents care greatly about their children and this is a tragic situation. I was reassured by many of the answers that the Minister has given and hope that everything will work out, and access will be readily available.
Covid-19: GCSE and A-level Exams
My Lords, the noble Lord’s Question is certainly topical, as the Secretary of State for Education made an Oral Statement on 2021 exams in the other place earlier this morning. In recognition of the challenges faced by students this year, the Government have introduced a package of new measures that will help to ensure that every student is able to receive a fair grade that reflects what they know and can do.
I welcome today’s Statement. I trust that my Question did not make the Government rush it out precipitately. They seem to be doing everything they can to be fair and generous to those whose education has been disrupted by Covid. Can my noble friend confirm that consideration has been given to those schools and individuals disproportionately affected by the pandemic, not just now but in the coming months?
My Lords, the Government indeed recognise that there has been differential learning loss and—working alongside Ofqual, which has responsibility in this matter—we considered a regional approach, but that was quickly ruled out as unfair. However, we have established an expert advisory group whose job is to monitor and make recommendations about anything further that we can do to address differential learning loss.
My Lords, I welcome the Government’s decision to hold GCSE and A-level exams this year, and their admission that to cancel them last year was a mistake. It certainly was, as some of us said at the time. The measures that the Government now propose are, for the most part, welcome too, although more than a little late. However, the measures make no reference to FE or HE, even though public exams are a gateway to those sectors. Why have the Government no proposals for schools to inform colleges and universities of how much schooling applicants have missed and whether they had adequate access to online learning? This is vital information if university and college admissions are to be fair.
I can assure the noble Baroness that we have worked closely, obviously, with FE and HE because the examination system of course bolts on to admissions, particularly in relation to the grade profiling that we have outlined. That will be similar but not identical to last year’s, because HE in particular was used to the system that there was last year. However, entry will be on the basis of grades and that is why we have maintained the exams at 16—the majority of English students move institution at that age.
I very much welcome the announcement by the Government. As we know, there is educational disadvantage throughout the country, depending on which school and region one is in. It particularly affects those in poorer areas. The Minister said that considering regional variations would be unfair. Why would that be the case?
My Lords, the effect on children, even within a region, can be variable and any regional approach could easily mean that there would be unfairness—for instance, if a child has been out of school for a length of time and lived one mile into Cheshire, while there was a regional approach for Trafford. Our approach tries to address the fact that every child has had their education disrupted. We have said that at the end of January the topic areas will be announced, as well as the aids that a child can take into an exam. That will enormously relieve the pressure and be as fair as possible to individual children. It is not possible, though, to have a fair system that is regionally based.
My Lords, I declare an interest as the founder of the university technical colleges. Is the Minister aware that on 26 November, some 798,000 students were due to attend school? The attendance rate is at about 80% and is likely to continue like that until Christmas and be worse afterwards. This means that the teaching days lost will be different for individual students. Some may lose five days of teaching while others may lose 40. In that case, will the class teacher, who will be the only one who knows how many days have been lost per student, be allowed to adjust the grades of each student to reflect the amount of education that each one has missed?
My Lords, no, we are not relying on teachers in that way. We are convinced that, for those students who are part of the way through their courses, the fairest way to assess them is through an examination system in which, of course, they are anonymised. That has been a concern over the years for various cohorts of students, such as BAME pupils in terms of subjective assessments. We stand by the fact that the fairest way to do this is to hold public examinations. The adaptations that we have announced will, as far as is possible, give children an examination that tests their knowledge. They will be aware of the topic areas and any aids that they can take into the examination hall at the end of January.
I declare an interest as the chair of a multi-academy trust. I welcome the statement from the Minister, but I would add that making exams easier to pass does not necessarily help the poor the most. As there are groups of us who are anxious that this opportunity for levelling up is not lost, perhaps we could meet with the Minister when she has time.
My Lords, I always welcome the opportunity for meetings and I hope that in the new year our meetings can be face to face rather than on Zoom. We are convinced that this set of adaptations and the fact that the exams have been delayed by three weeks will help those students who have been out of school the most. We cannot create a perfect situation, but we are confident that these adaptations will help those children the most.
My Lords, the Government have finally listened to calls from Labour, school leaders, trade unions and parents by setting out a plan for next year’s exams, but this really should have been in place months ago to give pupils, parents and schools the clarity they need. Significant numbers of pupils have been and will continue to be absent from school due to Covid-19, causing disruption to their education. Of course, the pattern across the country is uneven. This raises the spectre of these young people being examined on what they have not been taught rather than what they have been. What makes the Minister confident that the expert group announced today can ensure that such a damaging outcome is avoided?
My Lords, since schools have returned, they have known about and had to adapt to the guidance for public health restrictions on the curriculum, such as not running geography field trips. But at the end of January, they will know the topic areas on which most examinations will be set. That means that—although many schools are doing a sterling job of catching up for these young people—if that part of the curriculum has not been covered yet, they will know at the end of January to cover it. As the exams are three weeks later than normal, that should give adequate time. We expect the majority of the curriculum to have been taught to the majority of students but, to make sure, they will know these topic areas. That should address the noble Lord’s point.
My Lords, having listened to the Secretary of State this morning on the welcome but tortuous arrangements for the next GCSEs, may I ask what consideration the Government have given to doing away with GCSEs? With the raising of the school leaving age, they are no longer a school leaving exam and the time spent on working for exams could be much better spent on life skills, career options and preparation for adult life, as well as instilling a love of learning, which is so often displaced by the tyranny of exams.
My Lords, exams give students an opportunity to show what they know and to be assessed on it objectively. I pay tribute to schools and exam centres that, even during the recent lockdown, ran examinations for approximately 20,000 students. We are confident that exams can be run next year. As I have outlined, exams at 16 are important in England, because the majority of our students transition at that age.
The noble Baroness, Lady Berridge, brings us good news for once. That exams will go ahead is especially important when so many have opportunistically used the pandemic to lobby against exams per se—no U-turns, please. When the Secretary of State says that the most important thing is how young people progress to the next stage, does it not reduce exams merely to credentials on pieces of paper? What are the Government doing about the knowledge gap to compensate for what is not being taught, beyond exams? While I commend creative special measures, generous grading and so on, some teachers say that exam aids and crib sheets are an official endorsement of cheating. Can the Minister comment?
My Lords, we are confident that schools—as will be shown when they are inspected by Ofsted, which will not happen until at least the summer term—are delivering a broad and balanced curriculum. The changes and reforms that have been introduced to GCSEs should be knowledge rich, so that students leave with a love of learning and not just exams to help them transition to the next stage.
Business and Planning Act 2020 (London Spatial Development Strategy) (Coronavirus) (Amendment) Regulations 2020
Motion to Approve
Food and Feed Hygiene and Safety (Miscellaneous Amendments etc.) (EU Exit) Regulations 2020
Motion to Approve
Protocol on Ireland/Northern Ireland (Democratic Consent Process) (EU Exit) Regulations 2020
Motion to Approve
Arcadia and Debenhams: Business Support and Job Retention
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Wednesday 2 December.
“On Monday, Arcadia Group Ltd, which employs approximately 13,000 people, appointed administrators, who are assessing all options available to the group. They will honour orders made over the black Friday weekend. No redundancies have yet been announced and existing sales channels will continue to operate while administrators evaluate options. The Secretary of State has written to the Insolvency Service asking that it expedites consideration of the administrators’ report. Yesterday, Debenhams, which employs approximately 12,000 people, announced the decision of administrators to wind down the company. No redundancies have been announced and existing sales channels will continue to operate while administrators evaluate options. We know that this will be a worrying time for employees and their families, and we stand ready to support them. I pay a particular tribute to the hard-working staff, who have kept these well-recognised businesses going in difficult times for so long.
Although the Government have no role in the strategic direction or management of private retail companies, we are in regular contact with both companies and the administrators in order to understand fully the situation they are facing. The coronavirus crisis has made life difficult for retailers such as Arcadia and Debenhams, particularly those that were already facing challenging trading conditions before the pandemic. We acted quickly at the start of the pandemic to deliver one of the most generous and comprehensive economic packages in the world. It included: the coronavirus job retention scheme, which up to 30 September had provided £7.7 billion-worth of support to companies in the retail and wholesale sector; removing all eligible properties in the retail, hospitality and leisure sectors from business rates for 12 months—that is worth more than £10 billion; cash grants of up to £25,000 for retail, hospitality and leisure businesses with a rateable value of between £15,000 and £51,000; more than £50 billion in business loans, which supported 9.6 million jobs and provided flexibility; and legislation to protect commercial tenants from eviction.
Through the plan for jobs, we have also announced a series of measures to protect, support and create jobs, including our £2 billion kick-start scheme and a doubling of the number of front-line work coaches, which will be important in this situation in particular. The Government have committed to supporting the retail sector, and we are working closely with industry through these unprecedented times, particularly to ensure the safe reopening of non-essential retail today. On Monday, my right honourable friend the Communities Secretary encouraged local authorities to allow shops to open for extended hours, to accommodate more shoppers safely in the lead-up to Christmas.
I will continue to work with the sector to meet future challenges. Indeed, I will co-chair the next meeting of the Retail Sector Council tomorrow to discuss our strategic approach to the sector. I have regular retail calls, including one last week, with representatives from Arcadia among the retailers on that call. We are confident that the sector has the skills, knowledge and drive to bounce back.”
My Lords, I am sure the whole House joins with me in expressing deep sympathy with those who are at risk of losing their jobs just before Christmas, at a difficult time in the high street and, more generally, because of the pandemic. During the passage of the Corporate Insolvency and Governance Bill earlier this year, we put forward amendments to make pension fund holders priority creditors when businesses go bust. Would this not be a very good opportunity for the Government to review their decision not to proceed on this issue? SMEs, such as those that supply Debenhams and Arcadia, do badly when big firms get into trouble. Their debts are rarely given priority in a liquidation and are lost if there is a pre-pack. The Government are consulting on the powers of the Small Business Commissioner. Will they ensure that much-needed new powers for the commissioner in this area are given proper consideration?
My Lords, I remember the noble Lord’s amendments to the Corporate Insolvency and Governance Bill very well, but it was always a question of getting the balance right. Elevating the rights of pensioners would have negatively impacted suppliers and the unpaid wages of existing employees. The trade credit reinsurance scheme is designed to support small businesses coping with the economic impact of Covid-19, and I assure the noble Lord that we will take his views on new powers for the Small Business Commissioner into account.
In an answer yesterday, the Minister Paul Scully noted that
“The independent Pensions Regulator has a range of powers to protect pension schemes”.—[Official Report, Commons, 2/12/20; col. 314-15.]
Under the watch of that regulator, using those powers, Philip Green ran up a deficit of £350 million in the Arcadia pension fund, while paying his family three times that. Does the Minister agree that this is proof that the regulator has too little power over business owners like Mr Green, and what do the Government plan to do about it?
The noble Lord is right to point out that the Pensions Regulator has a range of powers, but the Government do not involve ourselves in the running of businesses. Where there is evidence of bad practice, it is taken up through the relevant authorities. At this stage, it is difficult to estimate the shortfall between the assets and liabilities of the fund. The Pensions Regulator is working closely with the company and scheme to ensure that prior commitments are fulfilled.
My Lords, will my noble friend ask her ministry to make clear to the Treasury the damage done to UK business if HMRC does not tax international businesses effectively? About 10 million packages from China arrive in the UK each week. The Treasury proposes not to charge VAT on packages with a declared value of less than £135. That is around £100 billion of business per annum that UK firms are shut out from, because they pay VAT and the Chinese do not, and £20 billion per annum lost to the Treasury. Will my noble friend agree to meet me to discuss ways in which this damage can be avoided—which appear effective and not difficult to implement?
I agree to meet my noble friend to talk about these issues, but he is not quite right about VAT. The Government will collect VAT on parcels below the £135 threshold, but we will also implement a more robust system to do so from the end of the transition period. That will include removing a relief from VAT for the import of goods under £15, which has long been abused by overseas sellers, and improving VAT collection by placing the responsibility to collect VAT on an online marketplace where it facilitates a sale of up to £135.
The Minister will be aware that the vast majority of jobs that will be lost due to the collapse of Arcadia and Debenhams this week are held by women. That is mostly because jobs in retail can often be offered with part-time hours and a deal of flexibility. What plans does the Minister have to initiate programmes to get those women back into jobs—for example, working with employers to identify a greater selection of part-time employment and perhaps dedicated training programmes to enable women to reskill or upskill?
The noble Baroness is quite right to focus on the proportion of women who are employed in retail specifically. We are doing all we can for all affected employees and have doubled the number of front-line work coaches across the network of jobcentres, who will help with preparation of CVs and interview practice. Our plan for jobs also includes a series of measures to protect, support and create jobs. We are also helping those who have lost jobs in the pandemic back into employment through our £238 million JETS programme. I will write to the noble Baroness on the specifics of women employees and the projects we have to support them, having done some research.
My noble friend will be aware of the large rates bills faced by high-street and town-centre retailers. She will also aware that out-of-town shopping centres are not subject to the same amount of rates. Secondly, parking in town centres is discouraged or extremely expensive, whereas in out-of-town centres it is free and encouraged. Under these circumstances, how can our high streets possibly hope to compete against larger organisations, particularly online, which are operating at warehouse-level rates against town-centre rates? Surely this policy needs to be completely scrapped and to start over.
My Lords, it is right that all businesses make a contribution to maintaining the roads, buses and emptying bins—all things on which their customers rely—but the noble Lord asks a good question about the difficulties of following a green agenda and discouraging car use for out-of-town shopping centres. We need the whole system to be fair, which is why we will deliver a fundamental review of the whole business rates system. This will build on the changes we are making, which are worth over £23 billion to businesses over the next five years, and will take nearly half of all businesses in England out of paying any business rates at all. We have committed to small businesses by increasing the retail discount to 50% and, due to Covid-19, we have gone further and increased it to 100%.
My Lords, if Arcadia and Debenhams had worker-elected directors, they would have enriched the corporate governance at both companies. At Arcadia, they would have sought early resolution of the pension scheme deficit, and at Debenhams, they would have expressed concern about the overload of debt market equity owners. Their insights would have resulted in better outcomes for all concerned. Will the Government now follow many other European countries and legislate to create worker-elected directors for all large companies?
I cannot comment on the Government’s intentions or otherwise to create worker-directed representation on company boards, but the audit trail of Arcadia is quite clear. The auditor’s report was clear that there was a material uncertainty about the group’s ability to continue as a going concern. It also failed to publish its 2019 accounts this August. Late filing of accounts attracts an automatic penalty fine and is an alert. As to whether there need to be specific investigations of directors, the administrators have a duty to report within three months of the insolvency on the conduct of the company’s current and former directors.
The Government have done a great deal to support this highly competitive sector, and little more can profitably be done to help these firms. Schumpeter’s creative destruction nearly always builds a better world eventually, as resources and skilled staff shift into new areas of opportunity; I remember that from the sad collapse of Woolworths when I was in retail. What does the Minister think can be done with the stores and sites that are freed up by this sad collapse this week?
I thank my noble friend for her supportive and constructive comments. The Government recently reformed the use classes to create a new commercial business and service use class. This will give businesses greater flexibility to change to a broad range of uses such as leisure and as shops and offices, as well as nurseries and health centres, without the need for planning permission. This means that businesses will be able to adapt to changing circumstances and respond to the needs of their local communities more easily and quickly. More widely, we are looking to transform the planning system as set out in the White Paper, Planning for the Future, which will make it simpler, quicker and more accessible, and more certain.
My Lords, the time allowed for this Question has elapsed. I apologise to the noble Lords, Lord Mackenzie, Lord Liddle and Lord Foulkes, that we did not have time for their questions.
The following Statement was made in the House of Commons on Wednesday 2 December.
“With permission, I would like to make a Statement about the coronavirus vaccine. Today marks a new chapter in our fight against this virus. Ever since the pandemic hit our shores almost a year ago, we have known that a vaccine would be critical to set us free. So all through this arduous year—it has been an arduous year—while we have been working night and day to fight the virus and keep it under control, we have been striving, too, to develop the vaccines that can give us hope and let us eventually release the curbs on our freedoms that have bound us for so long.
Thanks to the incredible work of the Vaccine Taskforce, the Business Secretary and Kate Bingham, we have already amassed a huge portfolio of different vaccine candidates. We have backed seven vaccines and ordered 357 million doses on behalf of the whole UK, one of the biggest portfolios per capita in the world. We have said from the start that a vaccine must be safe and effective before we would even consider deploying it. Any vaccine must go through a rigorous process of clinical trials, involving thousands of people and extensive independent scrutiny from the Medicines and Healthcare products Regulatory Agency, one of the world’s most respected medical regulators.
Today, I am delighted to inform the House that the MHRA has issued the clinical authorisation of the Pfizer/BioNTech vaccine. This is a monumental step forward. It is no longer ‘if’ there is going to be a vaccine, but ‘when’. In our battle against the virus, help is on its way. Today is a triumph for all those who believe in science, a triumph for ingenuity and a triumph for humanity, and I thank everyone who has played their part in this achievement. I thank the team at Pfizer, the team of scientists at BioNTech, the volunteers who stepped up and took part in clinical trials, and the MHRA itself, which made sure that this is a vaccine we can all have faith in. Thanks to their efforts, I can confirm that the UK is the first country in the world to have a clinically approved coronavirus vaccine for supply, and now our task is to make use of the fruits of that scientific endeavour to save lives.
We have spent months preparing for this day, so that as soon as we got the green light, we would be ready to go. We were the first country in the world to pre-order supplies of this successful vaccine, and we have 40 million doses pre-ordered for delivery over the coming months—enough for 20 million people, because two jabs are required for each person. Following authorisation, the next stage is to test each batch of the vaccine for safety. I can confirm that batch testing has been completed this morning for the first deployment of 800,000 doses of vaccine. Those doses are for the whole United Kingdom. This morning, I chaired a meeting of Health Ministers from the devolved Administrations to ensure the rollout is co-ordinated nationwide.
This will be one of the biggest civilian logistical efforts that we have faced as a nation. It will be difficult. There will be challenges and complications, but I know that the NHS is equal to the task. Rolling out the vaccine, free at the point of delivery and according to clinical need, not ability to pay, is in the finest tradition of our National Health Service, and I am delighted to confirm that the NHS will be able to start vaccinating from early next week.
The whole purpose of the vaccine is to protect people from Covid, so that we can get lives back to normal. We will prioritise the groups who are at greatest risk. This morning, the Joint Committee on Vaccination and Immunisation has published its advice, setting out the order of priority according to clinical need, and that includes care home residents and their carers, the over-80s and front-line health and social care workers. We will deliver according to clinical prioritisation and operational necessity. The need to hold the vaccine at -70˚C makes it particularly challenging to deploy.
While we begin vaccination next week, the bulk of the vaccinations will be in the new year. I urge anyone called forward for vaccination by the NHS to respond quickly to protect themselves, their loved ones and their community.
Over the next few months, we will see vaccines delivered in three different ways. First, we will begin vaccinations in hospital hubs. Secondly, we will deploy through local community services, including GPs and in due course pharmacies, too. Thirdly, we will stand up vaccination centres in conference centres and sports venues, for example, to vaccinate large numbers of people as more vaccines come on stream. This is an important step, but we are not there yet, so I stress that we must all keep playing our part, keep following the new rules that the House approved overwhelmingly yesterday and remember the basics, such as ‘Hands, face, space’, and, ‘Get a test’, which we know from experience are so important in keeping the virus under control.
Before I finish, may I also update the House on another bit of good news? From today, I am absolutely thrilled to say that we can safely allow visits in care homes for those who test negative for Covid-19.
Coronavirus has denied so many people the simple pleasure of seeing a loved one, which is so precious to so many, especially in our care homes. This is possible only because of the success we have had in building one of the biggest testing capacities in Europe, with local and national teams working together, side by side—something we have often discussed right across this House. We have worked hard on testing. We have worked hard on the vaccine. Our strategy is suppressing the virus until a vaccine can make us safe. That strategy is working, and I am delighted that we will be able to see families and friends come together ahead of Christmas, thanks to this improvement.
This is a day to remember, frankly in a year to forget. We can see the way out of this, but we are not there yet, so let us keep our resolve and keep doing our bit to keep people safe until science can make us free.”
My Lords, I thank the Minister for the Statement. Yesterday’s great news about the Pfizer/BioNTech vaccine and the MHRA’s clinical authorisation was the breakthrough that we all hoped for. We on these Benches join in with the heartfelt thanks to the dedicated scientists and those who have taken part in the trials, testing and validation process. Coming with the absolute assurance from the MHRA that no corners have been cut by it in the speeding-up of the vaccine, and that safety of the public has rightly remained paramount, the news is especially welcome.
Hospital trust staff will receive the vaccine first. This is a massive logistical challenge given the size of the workforce, the temperatures that this vaccine must be stored at and the two doses needed. We understand that 50 hospitals are already set up and waiting to receive the vaccine. How many NHS staff are expected to be vaccinated by January? When will mass-vaccination centres start opening in our communities?
On care homes, today we have the reality of the difficulty of ensuring that the vaccine can be delivered safely and quickly to them, in the light of its low temperature requirements and because of the fragmented social care system, involving thousands of predominantly small providers employing permanent and often frequently changing temporary staff. The Joint Committee on Vaccination and Immunisation’s Covid-19 priority lists advises that care homes residents and the staff who treat them should be first in line to be inoculated. We now understand that only care home staff will be among the first to be vaccinated, travelling to an NHS centre. While this and readiness in parts of the NHS to administer the vaccine are welcome, can the Minister update the House on how the Government will ensure that in the rollout of this essential vaccine, that hopefully will help to protect thousands of care home residents, they do not find themselves at the back of the queue once again? Care home managers are demanding clarity over this issue and have warned of confusion and raised expectations among vulnerable people.
Overall, we have historic strengths with vaccination, but in recent years we have lost our measles-free status, and we know that vaccination rates can often be lower in poorer and more vulnerable communities. While Covid-19 has affected everyone, the burden of the pandemic has disproportionately impacted the poorest, who are more likely to die than the richest. Can the Minister ensure that there is a health equality strategy, so that black and ethnic-minority groups, and the poorest and most vulnerable, do not miss out on this vaccine?
I also make a special plea for unpaid carers. Carers UK is deeply disappointed that carers are not on the priority list for the vaccine in England. Can the Minister explain the thinking behind this by the JCVI or the Government? They were prioritised for the flu vaccine, as it was recognised that if they get flu, the loved ones they care for are at risk and cannot be properly cared for. As a carer myself, I am in touch with many local carers, who play a vital role in keeping older, disabled and seriously ill people safe during the pandemic.
On the supply of vaccines, the UK has promised 40 million doses by spring, which is estimated as enough to give the required two jabs to health and care workers and everyone over 65. Nevertheless, in the first few weeks of winter, our ability to vaccinate could easily outstrip supply. Current figures are that there will be 800,000 doses in the country within days, with several million more to follow in weeks. I understand that the jabs are being manufactured in Belgium. What assessment have the Government made of the impact of Brexit on importation? Can the Minister reassure the House that supplies will not be disrupted, deal or no deal? We all understand that the restrictions will remain in place for some time but in the meantime, if someone is vaccinated, will they still have to isolate if contacted by test and trace, or are they now released from that obligation?
The Government’s document, Community Testing: A Guide for Local Delivery, suggests that local areas can use mass testing as a freedom pass. What does this mean in practice? How will local areas enforce rules if some people are able to follow different rules based on their testing status? In the Commons yesterday, the Prime Minister suggested that people may want to take advantage of mass testing ahead of visiting their families this Christmas, but what does this mean for people in areas that do not have access to lateral flow testing? Needless to say, despite the approval of a vaccine the restrictions will need to remain in place for some time, and test and trace will be key. Can the Minister confirm that mass testing will therefore be rolled out in all areas in time for Christmas? What are the consequences of the Christmas exemption period if not?
We must not forget that the Minister’s Statement also announced the welcome news that family visits can now take place in care homes, subject to visitors testing negative for Covid-19. However, the increase in staff and resident testing, alongside the introduction of visitor testing, must be backed up by additional resources to make this possible. What extra funding is being made available to care homes to meet the costs of additional testing, cleaning, PPE and visitor administrations that they will incur?
Today’s focus is on the vaccine and how it will be distributed. However, for the record, in response to the Secretary of State, Matt Hancock, claiming that the process of vaccine approval has been one of the early benefits of leaving the EU, the MHRA has today made it clear that the process for developing and authorising the vaccine has been undertaken under the terms of European law, which remain in force until the completion of the Brexit transition period at the end of the year. In other words, Matt Hancock’s assertion is simply not true.
No one can deny that the news about the Pfizer-BioNTech vaccine is just what we need as the days get shorter and Christmas still seems some way off. The technical achievement is enormous, and I am happy to congratulate all those involved in the creation of the vaccine, in the lightning regulation process and in its manufacture. The logistical challenge is next, and I feel sure that, again, the armed services will figure highly here.
Some time ago, I asked the Minister who might carry out the vaccinations. There are not enough NHS staff free to do it. Is there a plan to train others? The training is very short and needs no clinical background whatever. I seem to remember that student friends, when training to be doctors, would practise their technique by injecting oranges. I understand that it will be at least Easter before all the population has received the first round of the Pfizer vaccine and midsummer before we have all had the two jabs.
Can the Minister clarify what sort of immunity someone would have if they failed to get the second jab? What is the timescale of the availability of the other vaccines that we know are in the pipeline? When do we expect all the population of the UK who are willing to be vaccinated to have received their vaccine, and does he have an indication of how many will refuse it?
Vaccine is not a magic bullet—yet. Those of us who will not get it for some time will have to be careful and adhere to the rules outlined by the Government. We might be surprised that not everyone is aware of the symptoms of the virus—the cough and the loss of taste and smell, along with flu-like symptoms. They have not been part of the messaging but, on prevention, we all know “hands, face, space”. Was there a reason that the messaging did not include symptoms? I appreciate that if you are an avid follower of the PM’s No. 10 virus briefings, all that information is at your fingertips, but for many these are not required viewing. How much is the department using Instagram, Facebook and Twitter to get these messages out? If it is not using them, why not? For months to come, people will be testing positive, and anyone who does will still be required to quarantine.
I would like to spend the rest of my time addressing some issues relating to self-isolation that have come from research by King’s College London, based on surveys carried out by the Department of Health and Social Care. Many of us who have been in this situation isolate, as that is doing our bit to prevent the spread of the virus. King’s found that intentions to isolate were high but, when it came to sticking to it, the numbers were low. It found that there were both practical and psychological barriers to an effective isolation system. Practically, there is the issue of finance. The evidence suggests that those of a lower socioeconomic status with dependent children or older relatives struggle financially or lose their pay if they self-isolate, and they choose to ignore the advice.
The £500 grant has not been available since the onset of the lockdowns, and £250 does not cover all the costs for a family for a week if you lose your wage. If a child has to go into quarantine, there is no eligibility for support, yet in all probability a parent will have to take time off work to care for the child. Not all employers continue paying a salary to those isolating or caring for someone who is isolating.
The data that I referred to came from a series of surveys carried out by the department. Is that data in the public domain? It would be really interesting to see the breakdown by geography and demography.
My Lords, I am enormously grateful for that large number of thoughtful and nuanced questions, and I will try to cover as much ground as I possibly can.
I start by supporting the noble Baronesses’ tribute to the MHRA. It has played a complete blinder. It has quietly worked since January for this very moment. It has thrown an enormous amount of expertise, diligence and professionalism at the extremely challenging task of managing this vaccine authorisation, and it is to its massive credit that it has landed with an enormous amount of confidence and has been greeted so well.
The noble Baroness, Lady Wheeler, asked about EU law and exactly where we stand in terms of Brexit. She is exactly right that this authorisation was done under the terms of European law, and the carve-out that we took was indeed completely within the realms of European law. I pay tribute to the international collaboration that lay behind this vaccine—among the inventors, with their Turkish-German background, with the contributions of the German company that founded the vaccine and of the Americans, who have marketed and distributed it. In fact, the collaboration behind it has been global.
However, there is something British about it as well. In Britain, we have a long-standing commitment to research into infectious diseases, and that has created an enormously strong framework and foundation for the work that we have done. At universities such as Oxford, where the Jenner Institute is based, and Imperial, we have established a terrific international reputation for our work on infectious diseases.
The regulator, the MHRA, has gone about its work with an enormous amount of confidence and expertise. That has meant that it has been able to handle, in parallel, the clinical trials for efficacy and the reviews for safety. It analysed huge amounts of data in parallel in real time, so that it could turn around the authorisation promptly and confidently when presented with the final data.
The commercial effectiveness of the Vaccine Taskforce has been phenomenal. It has secured contracts for a large number of vaccines, which has meant that manufacturing has been able to take place in advance, and delivery of the vaccine, which is happening as we speak, is able to take place promptly. On the enormous amount of collaboration on the deployment of the vaccine, about which the noble Baroness asked, I pay tribute to colleagues in the NHS, NHSD, the military, and those in social care and logistics. There has been enormous collaboration across the piece.
The noble Baroness asked exactly what figures there are for delivery and when it is scheduled to take place. I am afraid that I cannot give the precise schedule, but I reassure her that, as soon as we know the precise timetable, we will publish it to give the confidence and reassurance to the public that, quite reasonably, they would like.
The noble Baroness is entirely right that social care is our number one priority. The prioritisation list from the JCVI is crystal clear. It also presents a big challenge because, as she knows, the Pfizer vaccine requires cold storage. It comes in units of more than 100 vials. We do not want to waste this extremely valuable vaccine, so we are having to work closely with social care colleagues and the NHS to ensure that workers and those in social care can receive it. That will be difficult, and I do not doubt that there will be problems, particularly, as the noble Baroness pointed out, with getting the vaccine to small units of social care. However, I reassure her that colleagues are working on that night and day and are very focused on delivering a solution.
The noble Baroness asked whether those who take the vaccine will need to isolate. Yes, they will, and that will have to continue for a while. The truth is that we do not know whether taking the vaccine will reduce transmissibility. Our suspicion is that it will, but until we have the clinical evidence that that is the case, we have to be pragmatic and ensure the safety of the public. However, we are working extremely hard on trying to resolve that issue, and I reassure the noble Baroness, care home managers and those who live and work in social care that they are at the top of the priority list.
The noble Baroness also asked me about delivery of the vaccine from Belgium. I reassure her that there are numerous fallback plans for all kinds of scenarios and that the transport arrangements for this valuable cargo have been thought through incredibly carefully.
The intention is not to roll out mass testing or community testing in every single local authority before Christmas. We are working with those local authorities that have stepped forward and that either are the most keen or have the highest infection rates, to ensure that the partnerships that we have in place develop really good best practice and that those directors of public health who are the most energetic have the resources they need to develop new models. That work is happening at pace and we get updates on it every day. It promises to be an extremely effective model for cutting the chain of transmission.
I pay particular tribute to universities, which have worked extremely closely with both the Department for Education and the department of health to ensure that there is community testing on campus, so that the migration home before Christmas is done safely and effectively.
The noble Baroness, Lady Jolly, is entirely right that apparently it is not very difficult to learn how to give an injection. I have been offered a training course, but I am not sure that anyone would actually want an injection from me. However, I reassure her that we have mobilised an enormous army of people to administer the vaccine. That includes those existing in the NHS and social care as well as pharmacists, who have stepped up massively and to whom we are very grateful, and it will include the return to service of many retired healthcare professionals, to whom we are enormously grateful.
As the noble Baroness pointed out, there is a pipeline of vaccines coming through, not least the British one developed at Oxford University in collaboration with AstraZeneca. I cannot give her a schedule on precisely when all of those will be delivered, but it is extremely promising that there are between half a dozen and a dozen vaccines on their way. It serves as an indication of how science has ridden to the rescue to help us out of this awful pandemic.
Regarding those who are either sceptical or refusing a vaccine, we are reassured that concerns about the vaccine are at present relatively low. We are engaging with anyone who has a concern about the vaccine with respect and in a spirit of dialogue to try to present the evidence in a transparent and reassuring way. That approach seems to have paid dividends, and I am encouraged that the British public will be stepping forward for the vaccine in very large numbers.
I reassure the noble Baroness that we have a massive social media campaign to engage the public. I pay tribute to the media teams in the department and the Cabinet Office, who have worked incredibly hard throughout the entire pandemic and have handled literally dozens of campaigns, often at pace, with enormous creativity and diligence—and have got sign-off from Ministers, which is no mean feat at times—under difficult circumstances. They deserve all our thanks and praise.
Lastly, on the noble Baroness’s quite important questions about isolation, she is absolutely right: isolation is key. There is no point in testing and tracing if you do not isolate. However, the surveys that she refers to are fragmented. I am not sure if some of the simple surveys actually tell the whole truth. In honesty, people’s response to isolation is probably more subtle than simple binary questions would suggest. We are beginning to understand that many who are isolating, although they may not have completely obeyed every strict command in the isolation protocols, have massively changed their behaviours, and we are looking at ways of supporting those people through civic and financial support and through our messaging to ensure that the isolation protocols are as effective as possible.
My Lords, we come to the 30 minutes allocated for Back-Bench questions. I ask that questions and answers be brief, so that I can call the maximum number of speakers.
My Lords, as we embark on a mass vaccination programme, it is important that we follow up all those who are vaccinated, or at least a cohort of them, with whatever vaccines are used, in a scientific way. It is important that structured scientific data collection is implemented. Do the Government plan to do that, and who will be doing it? I hope that it will be UK academic institutions, because there is much more science to learn post vaccination about the effectiveness of different vaccines and the science of the new way of developing these vaccines.
As ever, the noble Lord is extremely wise in his observation. He is entirely right to hold us to account. There is no point in enjoying this fine moment too much when you have the noble Lord, Lord Patel, on your case reminding you about the next big challenge around the corner. He is right that pharmacovigilance is essential. We need to make sure that this and other vaccines work and that we learn from the behaviours of all of them. That is precisely why we put the deployment of this vaccine through the NHS. There was a temptation to set up an alternative agency and focus on the actual injection of the vaccine over all other matters. Instead we have run it through the NHS digital process, which means that all the information around the vaccine is put very firmly into the GP record. That means that we can do population-wide analysis of the results of the vaccine. We have a very large research community in the UK both in the companies such as Pfizer, which, as he knows, are responsible for pharmacovigilance, and in the university sector. We will have all those records available for them to do the follow-up work that he rightly emphasises.
My noble friend will know that I have reservations about some aspects of government policy, but the news about the vaccine is wholly good news. It is a triumph for all concerned and I join in with his praise for them, although my noble friend himself should not be shy about taking his own share of the credit. He mentioned that other vaccines are coming down the road—in the pipeline, I think he said—including the Oxford vaccine. These vaccines have different characteristics and require different handling. How do the Government plan to distribute and discriminate between the different vaccines? Will one get priority over another? While I understand that he cannot be precise, can he offer any further guidance about how soon we can hope that everyone who wants one will have a vaccination available?
I thank my noble friend for his kind words. I reassure him that everyone in Britain who wants a vaccine will get one. In fact, we are going to do everything that we can to encourage everyone in Britain to have a vaccine. We believe that prevention is better than cure, and that vaccines such as the ones coming down the pipeline offer the best possible fightback against this horrible disease. With regard to the different properties of the vaccine, his observation is entirely right: it is likely that the different vaccines have different properties, not least that some are much easier to transport than others, but some might work better, for example, with children or with those susceptible to other conditions. We do not have full data on the other vaccines so it is impossible to make those comparisons at this stage, but I assure him that when we have the data we will make sensible decisions along those lines.
I thank the Minister for being so frank and admitting that the initial rollout will not be uniform throughout the country this year. I want to ask him about those individuals prioritised for the vaccine on the grounds of age or having weaker immune systems—specifically, who will identify those individuals? Initially the role of GP surgeries was highlighted for that task. Is that still the case? What will happen in those GP surgeries—there are quite a number of them—that have no GPs? Will the nurse practitioners be able to perform the role of identifying those individuals? I would like a specific answer to that because it is important in the longer term for a great many people.
I remind noble Lords of the request for brevity.
I remind the noble Lord that the criteria sent out by the JCVI is extremely simple and mainly driven by age, so the selection procedure is very straightforward. He is right that the distribution of the vaccine is limited by both the size of the vials and the need for cold storage. That is why there will be an emphasis on hospitals over GP surgeries. That represents a challenge in places such as rural areas that may be distant from hospitals, but I reassure him that the deployment team is doing all that it can to ensure that no one is left behind.
Does the Minister agree with the JCVI’s decision not to prioritise unpaid carers—most of whom are caring for clinically, or extremely clinically, vulnerable people—when unpaid carers are not just prioritised but encouraged and chased by the NHS to have the flu vaccine in order to help protect the person they are caring for?
My Lords, difficult decisions have to be made by everyone in this. The JCVI has looked very carefully indeed at the challenge of how to prioritise this vaccine, taking representations from a large number of groups. Ultimately, its priority is to protect life and the NHS, and its clear decision has been to have a prioritisation based on age because this is the greatest driver of mortality.
My Lords, I add my congratulations to my noble friend, the MHRA and everyone associated with producing this vaccine in such record time; it is a great tribute to our health service. I will focus on the fact that the flu jabs for the over-50s are still being distributed, and there is a reluctance among some—perhaps as many as two-thirds of the over-50s—to take up the flu vaccine, as they would like to wait for the Covid vaccine, which, of course, defeats the purpose of offering them the flu vaccine. Is this something that my noble friend is aware of, and is it something that he could address? I echo the remarks of the noble Lord, Lord Clark, and ask that specific regard be had to the challenges of administering the vaccine in rural areas. Will my noble friend use, as far as possible, the dispensing doctors in this regard? I pay tribute to them and the work I do with them.
My Lords, as few will be surprised to know, the rollout of the flu vaccine has been hugely successful this year; the take-up has been massive. I am not aware, from the stats that I have seen, of any slowdown in the take-up of the flu vaccine, but the point my noble friend Lady McIntosh makes is understandable—I am happy to check it out. I also encourage anyone who is thinking about deferring the flu vaccine until they get the Covid vaccine to think again because it is a massive priority to get vaccinated for both.
The noble Baroness and I have talked before about dispensing doctors, whose role is very important. There is a challenge with the distribution of the Pfizer vaccine because of cold storage and the large number of shots in each vial. I am not sure whether that means that rural dispensing doctors can play the important role that they might do at this stage of the distribution, but I reassure the noble Baroness that they will play a role in the national distribution as it pans out over the next few months.
My Lords, I note that many unknowns exist in differing vaccine effectiveness cycles. Are the Government planning to combine the careful management of linking certified testing to identity data, particularly given that the technologies and solutions are available? As regards the urgent rollout of vaccines globally, I propose that a commandeering exercise of wide-bodied aircraft, laid-up due to Covid, be considered to lessen the global logistical nightmare.
My Lords, in relation to the logistical nightmare, one of the nice things about vaccines is that they do not take up much space: they are relatively compact, so I am not sure that wide-bodied aircraft will be needed, but I thank the noble Viscount for the wise suggestion. In relation to certification, he raises an interesting prospect that we have not fully bottomed out yet. As I said in response to earlier questions, we do not know whether vaccination will reduce transmissibility. Our hope and expectation are that it will, but until that is proven, any thoughts of certification will be premature.
I congratulate the Minister on his generous attribution of credit for this remarkable achievement, which was in very sharp contrast to the two Cabinet Ministers who sought to make cheap and inaccurate nationalist points about it yesterday—that is to his credit. Speaking as a Cumbria county councillor, I say again that his honesty about the constraints on the rollout is commendable, and I ask whether he agrees that, in rural areas, it is still very important that we concentrate on remedying the defects in our tracking and tracing system that our Cumbria public health director has identified? There is still a lack of proper liaison between the national and local systems, and this deficiency has to be addressed in this period, as people may become more relaxed as a result of the wider availability of a vaccine.
I welcome the noble Lord’s challenge and completely endorse his point that tracing will remain important. Not everyone will take the vaccine initially; it will not be available to everyone for months, as the Deputy Chief Medical Officer made plain in his briefing earlier today. Tracing remains a really important feature of our fight against this disease. However, I respectfully suggest that his information is a little out of date: the amount of collaboration on tracing between the national and local efforts, particularly with DPHs such as the one in Cumbria, has come on in leaps and bounds, even in the last few weeks. From my briefings and meetings with DPHs, I know that they have been provided with an enormous amount of data, support and access to tracing resources in order both to bring their local intelligence and insight to bear and to support the national tracing effort. I applaud all those DPHs who have stepped forward in this way, and I am very hopeful that the local-national combination on tracing will pay massive dividends.
My Lords, in the first priority group, there are over 3.2 million people aged 80 or over. As the UK will get doses for 400,000 people initially, what access framework is in place to ensure an ethical approach to the vaccine rollout for these first 400,000 people that is not based on having the sharpest elbows or the chance of having a hospital appointment?
My Lords, the noble Lord raises an important challenge there; fairness and equity are important in this important time. However, I will try to assess the situation: we have 800,000 doses of a vaccine that is incredibly difficult to transport, requires cold storage and is in vials containing more than 100 doses each. Therefore, practical considerations are pre-eminent at the moment, rather than sharp elbows.
My Lords, I thank the Minister for the gracious way he has introduced this discussion, and I welcome his assurance of dialogue. I hope he will agree, as he has assured us, that the vaccine will not be the only effective means of preventing infections and further deaths and that the Government will continue their heartening improvement of the test and trace programmes and ensure that those in tiers 2 and 3 have the required financial measures. Can he assure me and the House that his department will urgently scale up communication with particularly vulnerable and poorer communities, where concerns around vaccination are significant? Can he assure me that any proposed government use of the police and army will be done with consent and after consultation with local authority leadership?
The noble Baroness will probably have noticed earlier today the recent publication of test and trace figures, which showed a dramatic improvement in both the tracing numbers and the testing turnaround numbers. We still have far to go, and improvements are needed, but this is an extremely encouraging set of figures, which demonstrate that our focus on getting this important service right is undiminished.
In relation to getting the vaccine to poorer communities, the noble Baroness is entirely right: there are communities where the Government are not trusted as much as they are elsewhere and where there is suspicion of the vaccine. We are working extremely hard at the department, in the NHS and with Cabinet Office colleagues to reach out to community leaders and think of thoughtful and creative ways of ensuring that the vaccine penetration among these communities is strong and that we have built the confidence and belief necessary for people to step up and take the vaccine as they should.
My Lords, I echo my noble friend Lord Liddle in applauding the Minister on his approach and attitude. Is it not worth celebrating the involvement and success of Turkey, Germany and Belgium in getting this vaccine to the UK? We did not order all the vaccines so early. During the next few weeks, the Health Secretary has to be the most trusted voice of Government as he rightly seeks to persuade people to take the vaccine. How can he perform this role when he has uttered a string of untruths? The latest is that the medicines regulator could only work fast because of Brexit. This is untrue and everybody knows it. I hope this problem of trust can be restored because the advice given by the Secretary of State will be crucial to the take-up of the vaccine.
I am slightly surprised by the tone of the noble Lord’s question. If there were ever a moment when my right honourable friend the Secretary of State for Health deserved a bit of praise and a thank you, today would be that day. That ad hominem attack was beside the point. On his serious point about trust in the vaccine, it would not be helpful for politicians to lead the charge. Our approach is to put science and the NHS at the forefront of our communications. They are truly engaged with both the expertise and the communities that need to take the vaccine.
My Lords, the rollout will require many people, in addition to those giving the injection. Are there any plans to use the thousands of NHS volunteers who signed up during the first lockdown to act as marshals, drivers, identity checkers, or whatever else is required? In planning the appropriate use of the military, have the Government recognised the concerns of certain community leaders that their presence at testing sites would not reassure members of their communities who are hesitant about taking the vaccine because they do not trust authority?
The noble Baroness is right about the NHS volunteers. We would very much like to work with those who stepped forward. Their move was extremely welcome and kindly meant. However, the deployment of the vaccine is a precise affair. We are relying on people having to put in long hours—often not at their own discretion or convenience. Volunteers may well play a role, but the backbone and functional aspect of the deployment will rely on professional staff.
I appreciate her conundrum about the military. It is a delicate dilemma. I do not want to live in the kind of country where we turn our back on the military because some people might feel uncomfortable at the sight of uniforms on the streets. We need to build trust with communities. I want to use this moment of the vaccine to build a bridge of trust between those whom the noble Baroness reasonably described and the military. We must not make the mistake of disrespecting the military by turning them away from this important task.
My Lords, as the Minister who established the MHRA, I strongly endorse the Minister’s congratulations. I pay particular tribute to the outstanding leadership of Dr June Raine. I note what the Minister said about unpaid carers and the justification for not giving them priority but would the Government be prepared at least to discuss this with Carers UK? On care homes and visitor testing, which are mentioned in the Statement, is the Minister aware of calculations by Care England that the infection control fund will not cover the cost of implementing the new testing regime, let alone all the other areas for which the fund is intended? Will the Government consider increasing the fund?
My Lords, the support we are giving to social care throughout this period is incredibly important. I should be happy to meet with Care UK to discuss this. I cannot duck the issue. The JCVI has made its prioritisation clear. It is based on thoughtful science, infection rates and the calculation of how best to save life. While I feel compassion for carers, including some in this Chamber, we have to live with this tough decision. I cannot pretend I am going to try to change it. The inspection control fund is generous; we have put a large amount of money into it. If it proves not to be enough, we will be happy to revisit it. Protecting social care through these final few months is a big priority. I should be happy to discuss how we can do this better with the noble Lord at his convenience.
My Lords, all supplementary questions have been asked and answered. I congratulate noble Lords.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now resume. Some Members are here in the Chamber while others are participating remotely, but all Members will be treated equally. I ask all Members to respect social distancing. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
We now come to day 3 of Committee on the Covert Human Intelligence Sources (Criminal Conduct) Bill. I will call Members to speak in the order listed in the annex to today’s list. Members are not permitted to intervene spontaneously; the Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted.
During the debate on each group of amendments, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request and will call the Minister to reply each time. The groupings are binding, and it will not be possible to de-group an amendment for separate debate. A Member intending to press an amendment already debated to a Division should have given notice in the debate. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make this clear when speaking on the group.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Committee (3rd Day)
Relevant documents: 10th Report from the Joint Committee on Human Rights, 19th Report from the Constitution Committee
Clause 1: Authorisation of criminal conduct
Amendments 20 and 21 not moved.
We proceed to the group beginning with Amendment 22. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this, or anything else in this group, to a Division should make that clear in debate. I should inform the Committee that if Amendment 22 is agreed to, I cannot call Amendments 23 to 30.
22: Clause 1, page 2, leave out lines 27 to 30 and insert—
“(b) for the purposes of preventing or detecting serious crime.(5A) In subsection (5), “serious crime” means a crime triable only on indictment.”Member’s explanatory statement
The amendment is intended to constrain the use of criminal conduct authorisations by precluding their use for the purpose of preventing or deterring minor criminal activities, non-serious disorder, or non-criminal damage to economic interests.
My Lords, it is a pleasure to introduce my noble friend Lord Hendy’s Amendment 22. He is detained in the Court of Appeal—not by the Court of Appeal, you understand. I wish also to introduce other amendments in this group.
Amendment 22 has an object similar to those of Amendments 23 to 31. The intention of all of them in various respects is to limit the conduct for which CCAs can be granted as set out in Clause 1(5) and to exclude their use for the kinds of non-criminal objects of undercover policing that have been revealed in the Undercover Policing Inquiry, which began to hear evidence three weeks ago.
Amendment 22 would remove from the permissible objects of a CCA the prevention or detection of disorder other than disorder which also amounts to a serious crime, such as riot. It would require that the object of preventing or detecting crime is restricted to serious crime.
My noble friend Lord Hendy was particularly attracted to the definition of “serious crime” proposed in Amendment 31, refining it to an offence conviction for which would lead to the expectation that someone over the age of 21 without previous convictions would receive a sentence of imprisonment of more than three years. That amendment also requires that the serious crime involves the use of violence, results in substantial financial gain or is conducted by a large number of people acting in a common purpose. The latter requirement in conjunction with the expectation of a prison sentence of greater than three years is a welcome limitation on the use of the crime of conspiracy, which has been used against trade unions in particular for more than 200 years.
These restrictions on the objects for which criminal conduct authorisations—CCAs—can be given are vital in light of the evidence already emerging in the Undercover Policing Inquiry, in which my noble friend is participating as counsel to a number of trade unions. Several of your Lordships have already highlighted the pointless activities of undercover police officers “penetrating”—that is the term used in the special demonstration squad references—hundreds of entirely peaceful campaigns against perceived injustice, political parties and trade unions, all apparently behaving entirely lawfully in exercise of their rights to freedom of expression, assembly and association. Notoriously, some of those officers formed intimate relationships based on lies with more than 30 innocent women as cover.
Amendment 22 is designed also to remove from the Bill use of a CCA purportedly
“in the interests of the economic well-being of the United Kingdom”.
This ominous phrase is undefined here but clearly capable of being interpreted as encompassing lawful industrial action, which might inevitably have some adverse economic consequences. Without that amendment, agents could be authorised to commit crimes to prevent, minimise or disrupt legitimate trade union activity. I am sure that your Lordships would agree that that must be totally unacceptable.
Trade unions and industrial action ceased to be criminal in this country 150 years ago, with some cross-party consensus. Industrial action, since it was made lawful in contemplation or furtherance of a trade dispute in 1906, has been very closely regulated, most recently by the Trade Union Act 2016. Trade unions and their activities are also protected by international law, not least by Article 11 of the European Convention on Human Rights. The risk to trade unions posed by CCAs granted
“in the interests of the economic well-being of the United Kingdom”
should be removed.
At Second Reading, it was said that there was no risk to trade union activities in this Bill. The evidence given to the Undercover Policing Inquiry does not inspire confidence on the part of trade unions and trade unionists that they face no risk here from the issue of criminal conduct authorisations. We now know from the inquiry that the Metropolitan Police Special Branch maintained files on trade unions and had an industrial intelligence unit keeping watch on them for apparently no lawful purpose.
The report by Chief Constable Mick Creedon on police collusion in blacklisting in relation to Operation Herne and Operation Reuben describes the industrial intelligence unit:
“Formed in 1970 to monitor growing Industrial unrest, officers from the Industrial Unit used various methods to report on the whole range of working life, from teaching to the docks. This included collating reports from other units (from uniform officers to the SDS), attending conferences and protests personally, and also developing well-placed confidential contacts from within the different sectors.”
The inquiry has heard that undercover officers of the special demonstration squad penetrated both unions and rank-and-file campaigns by trade union members. The undercover officer Peter Francis has apologised to the unions he spied on. One undercover officer testified that the first chief superintendent of the special demonstration squad was of the view that the trade union movement was infested with communists who took their orders from the Soviet Union, and he subsequently joined the blacklisting organisation, the Economic League. No doubt, this view was dated and dismissed when expressed, but the fact is that spying on trade unionists did not cease when he left. We know from the Creedon report that the modern equivalent of the Special Branch industrial intelligence unit is the National Domestic Extremism and Disorder Intelligence Unit’s Industrial Liaison Unit. It is clear that this kind of process continues.
If the Government do not intend legitimate trade union activity to be within the scope of activity allegedly threatening the economic well-being of the United Kingdom, they ought to amend the Bill in the way suggested and accept Amendment 28 in the names of my noble friends Lord Rosser, Lord Kennedy of Southwark and Lady Clark of Kilwinning and the noble Baroness, Lady Jones of Moulsecoomb, which is to be debated in a later group. I beg to move.
My Lords, it is clear that there is a lot of unease—I choose a mild term—around the House about the threshold for granting criminal conduct authorisations, although there seems to be general acceptance of the ground of national security. My noble friend Lord Paddick will speak about the threshold for disorder, and I will say a word about crime. Economic well-being and other matters that have just been referred to are in separate groups, so I will not anticipate those debates.
To prevent or detect crime without qualification seems to us to be, bluntly, wrong. I appreciate the requirement for proportionality, but the more certainty about what level of crime justifies going to the next stage of assessing whether a grant can be made, the better, and on the face of the legislation. I am sure the Minister will say is not intended that a trivial crime should prompt such an authorisation, but the legislation must make clear the threshold for granting so serious an authorisation.
Amendment 22, in the name of the noble Lords, Lord Hendy and Lord Hain, has chosen
“crime triable only on indictment,”
which is certainly one way of going about this. It strikes me that there might be too wide a mesh in that net. We have proposed a definition of serious crime taken from the Regulation of Investigatory Powers Act, as authorising intrusive surveillance. Amendment 31 sets out the definition. I note that the noble Lord, Lord Hendy, has said to the noble Baroness that he is attracted to this, and I welcome that support.
The relevant section in RIPA is Section 81, which is reproduced, although I apologise to the House, because in Amendment 31, which sets out the tests, I should have had an “or” in between paragraphs (a) and (b) in proposed new subsection (5B). However, they are alternatives. I do not suggest that both have to be satisfied, although I suspect that in practice it is likely they would be. RIPA recognises that intrusive surveillance is a particularly serious form of surveillance, and I do not think it could be denied that criminal conduct is serious. We think this is an appropriate definition which, in the past, has clearly satisfied not only Parliament but the Home Office—I believe an amendment on that was accepted by it—and the Constitution Committee has been concerned about this as well. I hope we will find a way to define the level of crime, whether it is this amendment or not—although we think it is a good way to go about it. I will leave it to my noble friend Lord Paddick to talk about disorder.
My Lords, the amendments in this group pose the important question of when and why the Government should allow people to commit a crime and grant them full legal immunity for it. The Government need to justify granting such a broad legal immunity. They are calling it wrong. I understand why they are doing this: there is a court case at the moment that will influence the outcome of this particular manoeuvre, and there is the inquiry, which I hope will have some tough recommendations when it comes to an end. Personally, I would rather that the granting of immunity was restricted to serious crimes only, as set out in the amendment of the noble Lords, Lord Hendy and Lord Paddick, because that would strike a more reasonable balance between the risks inherent in this criminal authorisation and the types of crime it is being used to fight. When you look at past mistakes, you have to ask, what was the crime the Lawrence family was suspected of committing or being about to commit? What was the point of that? Can that happen again? Yes, of course it can, and it can happen to innocent people. We need to be aware of that when we pass the Bill, as we no doubt will.
Then there is the issue of preventing disorder, which my Amendment 24 seeks to address. This is something I care about a lot, because I go on a lot of demonstrations, protests and campaigns. I am out there, on the streets, and you could argue that I am creating disorder. When I was arrested a few years ago—the only time I ever have been—you could argue that I was creating disorder. What I was actually doing was trying to get between the police and the protestors. I was saying things like, “Could we all calm down?” That is what I said when the senior police officer lost his temper and said, “Nick ’em all.” I feel that preventing disorder is an honourable thing to do, so we should think carefully about what disorder is. It is the Government’s duty to make sure that that is clear. “Preventing disorder” is far too broad a category for authorising criminal conduct.
If the disorder is so bad as to be criminal, it will already be captured in the prevention or detection of crime, but if it is not criminal, we are moving into the territory of peaceful protest and other legitimate gatherings. What is the justification for the state authorising people to commit criminal offences and giving full legal immunity in these cases?
Based on 2019 figures, at the moment in the UK there are more than 500 people who can authorise this sort of immunity for criminal conduct: 312 chief superintendents and 212 chief officers of other ranks. With 500 or so people who can authorise a crime and give immunity, you have to ask yourself: how many mistakes will those people make? And they will; they are going to make mistakes. I see some considerable scope for error in that. I really do not think that the words “preventing disorder” should be in the Bill. If the disorder is a crime then people can be arrested for it; if it is not, why on earth would we let someone else commit a crime to stop something that is not a crime? Perhaps the Minister can explain that to me.
My Lords, in speaking to Amendment 25, I shall put the views expressed by the Joint Committee on Human Rights in Chapter 5 of its report on the Bill. I am a member of that committee.
The amendment seeks to limit the use of criminal conduct authorisations to protecting national security and preventing crime. The JCHR report accepts that authorising criminal conduct may, in certain circumstances,
“be necessary and proportionate in the interests of national security or for the purpose of preventing or detecting serious crime.”
These were the purposes considered by the Investigatory Powers Tribunal when it approved MI5’s policy in the third direction challenge, and are the purposes highlighted by the Home Office in the Explanatory Notes. However, the Bill also permits CCAs to be made for the purpose of preventing disorder and for the economic well-being of the United Kingdom, as was mentioned before. The report says:
“It is difficult to understand why it is necessary to include ‘preventing disorder’ as a potential justification for authorising criminal conduct. Serious disorder would amount to a crime … and therefore be covered by the purpose of ‘preventing crime’. Any non-criminal disorder would not be serious enough to justify the use of criminality to prevent it.”
The NGOs Reprieve, the Pat Finucane Centre, Privacy International, the Committee on the Administration of Justice, Rights and Security International and Big Brother Watch raised concerns that the Bill could allow for CCAs to be granted in relation to
“the activities of Trade Unions, anti-racism campaigns and environmental campaigns that have been the site of illegitimate CHIS activity in the past.”
The report concludes:
“The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime”
“the power to authorise criminal conduct as contained in the Bill is far too extensive”.
My Lords, the noble Lord, Lord Hain, whose name appears next on the list, has withdrawn, and the noble Lord, Lord Dubs, unfortunately did not join the debate remotely at the start. I therefore call the noble Baroness, Lady Bryan of Partick.
My Lords, it is a real pleasure to take part in this debate. I am sorry that my noble friend Lord Dubs will not be joining us, but I am speaking before my noble friend Lord Judd—they have both spent many decades of their lives fighting for civil liberties. They will remember, I am sure, Maria Fyfe, who entered Parliament in 1987 and did so much over the years to champion women’s representation, but who sadly died this morning. I am sure that they and others will join me in sending condolences to her family and comrades in Scotland.
I shall speak specifically to Amendment 22 in the names of my noble friends Lord Hendy and Lord Hain, and moved very able by my noble friend Lady Chakrabarti, but I also support the other amendments in this group which argue that, should this Bill become law, CCAs could be used only to prevent or deter serious crime. The terms “preventing disorder” and being
“in the interests of the economic well-being of the United Kingdom”
are so imprecise that almost any campaigning group or trade union could be included. These criteria are potentially political and could be used simply to defend the status quo against anyone who challenges it.
It seems quite odd that this legislation could not wait until the findings of the Undercover Police Inquiry. As the inquiry progresses, it is hearing that police have been used to spy on any number of groups that were deemed to be “anti-establishment”, even when they were humanitarian organisations such as Operation Omega, which tried to provide humanitarian aid to then East Pakistan. One police officer sent into the group has said:
“They weren’t hurting anyone, they weren’t disturbing anyone. Okay, you could argue that we don’t like to see these things posted on our lampposts, you know, stuff like that.”
He was then asked:
“Did you hear them promote or encourage public disorder?”
“That’s a difficult one to answer, because a lot of organisations recommend demonstrations and activity that would bring their cause to the attention of the press and thereby to the rest of the population.”
A demonstration is of course a legitimate form of campaigning, but it is unfortunately seen as illegitimate in some quarters.
The undercover work extended into the trade union movement. Trade unions are a legitimate and essential part of our democracy, as guaranteed by the ILO since 1949. Member countries, including the UK, are required to guarantee the existence, autonomy and activities of trade unions, and to refrain from any interference that would restrict this right or impede their lawful exercise. Despite this, the Metropolitan Police Special Branch established the industrial intelligence unit in 1970 to monitor what it saw as growing industrial unrest. There is, we understand, a present day equivalent in the industrial liaison unit of the national domestic extremism and disorder intelligence unit.
I have no idea what justification could possibly have been used to send spies into humanitarian organisations, political parties or trade unions, but I suspect that preventing disorder and it being in the interest of economic well-being of the United Kingdom will have been used. There can be no justification for this and it should be removed from the Bill.
On Monday we heard the Statement in the other place that there would be no inquiry at this time into the murder of Pat Finucane—even though there is no doubt that there was state collusion in his assassination. After 30 years, the Government will still not shine a light on this atrocious event. His death should serve as a reminder that Governments and their agents can lose the capacity for moral judgment when they convince themselves that only they serve the greater good.
We were told on Tuesday that these examples happened a long time ago and that things have changed. But while the Bill continues to cover more than serious crimes and includes subjective actions such as disorder and economic well-being, it is a danger to anyone involved in politics and trade unionism. We should never grant the legal right for covert actions against citizens whose only crime is to disagree with the Government of the day. This amendment would go some way to achieving that.
My Lords, the dividing line between a police state and a democratic society with a liberal, humanitarian base is sometimes hard to define. It is not absolute and the dividing line wanders around a certain amount, but one principle should be clear above all, and that is that in the kind of society in which we want to live, the tradition is that the police do their job by public consent. The objective is to maximise good will between the public and the police, to forestall the danger of alienation from the police and the building up of a hostile relationship between police and large sections of the public. That is why, on matters of this kind, it is so important to ensure that it does not become just a convenient device that can be used pretty much at random for interests that cannot be well substantiated in the context of liberal democracy.
For that reason, I believe that this group of amendments has raised some very important points indeed, which we must all take seriously. I do not want to live in a society in which the police have this as a useful technique, with certain, modest restraints. I want to live in a society where this is not normal and where, if it is needed, exceptionally, those grounds can be properly justified in terms of national priorities, in the interests of our people as a whole. Good will between the public and the police is crucial to our stability as a society, and the holding of public confidence in the police is crucial too. We must be careful that we do not place that in jeopardy.
The noble Baroness, Lady Blower, who appears next on the list, has withdrawn, so I call the noble Lord, Lord King of Bridgwater.
My Lords, unlike, I think, every other speaker to these amendments so far, I do not support them. I see in them, once again, attempts to impose yet more conditions that may affect the effectiveness of the operation of undercover support and sources doing what I thought was generally agreed to be vital work in the interests of enforcement and the life of people in our country. I say at the start that a number of these things, and the worry about how these powers may be exercised, do not pay respect to the fact of the code of practice, which many have said should be required reading for everybody taking part in these debates. The importance of that code of practice is that it is going to have to be approved by both Houses of Parliament. That will be a very important protection, because it is under that code of practice that authorising officers issuing CCAs, and the Investigatory Powers Commissioner, will obviously be required to act.
I make no apology for repeating what I said on an earlier amendment in quoting James Brokenshire, the Minister for Security, when he gave the astonishing figures for a single year in London alone. The use of undercover sources resulted in 3,500 arrests, the recovery of more than 100 firearms and 400 other weapons, the seizure of more than 400 kilograms of class A drugs and the recovery of more than £2.5 million in cash. It also enabled, which I did not mention, the National Crime Agency to safeguard several hundred victims of crime, including from child sexual exploitation and abuse. Those figures alone, just from London in one year, surely leave nobody in any doubt of the importance of this vital source of support for preserving an orderly and law-abiding society. I make this point because, under the code of practice, which includes this question, others are seeking to add the word “serious” to “crime”. How does an authorising officer react when an informant comes and says, “There is a group of people who are starting to get together, I am not quite sure what they are up to, but I think there is a real risk that it could turn, later on, into something much nastier”?
When one looks at those figures I quoted from James Brokenshire, how many lives have been saved; how many people’s lives have not been disrupted; how much misery and poverty that might otherwise have entailed has been prevented? For these reasons, I am not persuaded of the need to add “serious” to crime; I think it might inhibit the operation of a properly authorised issuer of a CCA, who obviously has to use his judgment, and has to persuade the IPC as well that his judgment is correct and is in line with the code of practice.
I should also say a word about preventing disorder. We are living in extremely difficult and dangerous times at the moment. We know that the power of social media now makes it possible, in an instant, practically, to organise major demonstrations which may, in fact, be based on that new and horrid ingredient “fake news”. These may disrupt many people’s lives and may cost people’s lives. Although there are many very worthy causes—whether it is Black Lives Matter or Extinction Rebellion—pursuing very understandable and admirable objectives, none the less we also know that around the fringes of those organisations, or in the confusion that some of their demonstrations cause, other sources of crime can easily emerge and it often makes opportunities for gangs to commit many more crimes as well. So I would not delete “preventing disorder”, provided it is properly covered within the code of practice.
The other thing I would just add is about economic well-being. I totally support trade unions—I always have done and, as Secretary of State for Employment, I was obviously closely involved—and legitimate trade union activity. However, we all know that, within our lifetime, we have had one or two instances where that has not been the case. One instance was the miners’ strike, when Mr Arthur Scargill said that one of his objectives was to bring down the Government, and he was not averse, in the process, to accepting money from the Soviet Union in pursuit of that objective. It is to the credit of Neil Kinnock, now the noble Lord, Lord Kinnock, if I may say so, that he would not support him at that time, because Mr Scargill had not put the issue to a vote of the whole trade union movement.
I think we have seen here, and I understood at the beginning of this, that virtually all noble Lords recognise the vital importance of undercover source information and for there to be a proper system, a statutory system, under which they would operate. That is what I wish to see. I wish to see a thoroughly effective code of practice, thoroughly trained issuing officers and rapid and close contact with the Investigatory Powers Commissioner as they carry out their work.
My Lords, I accept that it is difficult to separate these issues, but I will leave discussion of economic well-being and the activities of trade unions and trade unionists until the relevant groups.
As drafted, the Bill defines very broadly when a criminal conduct authorisation is necessary, and this group of amendments focuses on the new Section 29B(5)(b) inserted into the Regulation of Investigatory Powers Act 2000 by Clause 1(5) of this Bill. It states:
“A criminal conduct authorisation is necessary … if it is necessary … for the purpose of preventing or detecting crime or of preventing disorder”.
Crime and disorder have very wide definitions, as noble Lords have set out in this debate.
As we have already debated, tasking a CHIS to participate in crime is a very serious step for any authority to take, with all the implications for the rule of law and the potential for abuse that we have already debated, and because of the potential danger it places the CHIS in, about which we will discuss more in a later group. In many situations it could have far more negative consequences for innocent people than the interception of communications, and we should not forget that we are amending legislation that was originally intended to cover, when drafted, only the interception of communications.
The legislation covering such interception limits the use of its powers to cases of serious crime. Even in my limited seven years in this House, I have lost count of the definitions of serious crime in different pieces of legislation. It could be argued that, if we wanted to limit the power to grant a CCA to cases of serious criminality, we could choose whatever definition of serious crime we liked.
The noble Lords, Lord Hendy and Lord Hain, have decided in their Amendment 22 to define serious crime as indictable offences only, but I am glad to hear from the noble Baroness, Lady Chakrabarti, that the noble Lord, Lord Hendy, is attracted to our definition rather than the one in his own amendment.
As my noble friend Lady Hamwee has clearly articulated, we have gone with the definition already used in RIPA—for the sake of consistency, at least within the Act itself. The principle, however, is the same: that this power to grant a criminal conduct authorisation should be limited to serious crime.
The Government may say that, in addition to being necessary, the granting of a CCA must also be proportionate, and it would not be proportionate to deploy CHIS if the criminal activity was minor. The same argument applies, however, to the interception of communications in RIPA, where “necessity” is already limited to serious crime, as defined in our Amendment 31.
The noble Lord, Lord King of Bridgwater, talked about the code of practice. There is, however, a definition of serious crime in RIPA despite the existence of the code of practice for the interception of communications. The noble Lord also talked about the impressive array of offences that had been detected as a result of the deployment of CHIS, including those relating to firearms, drug-dealing and child sexual exploitation. All those examples would fall within our definition of serious crime.
What is sauce for the goose is sauce for the gander, even though geese and ganders are different in some important respects. RIPA limits the interception of communications to serious crime, so this Bill should limit the issuing of criminal conduct authorisations to serious crime using the same definition.
The second issue is more difficult and more controversial, starting with the fact that the prevention of disorder is not one of the necessary grounds for the interception of communications. The Government are already on the back foot here, in that large-scale disruptive disorder can have very serious consequences for society yet there is no power to intercept the communications of organisers of disorder in order to prevent it. None the less, there is an argument for both the interception of such communications and the deployment of CHIS into groups that are planning to cause widespread disruption that could seriously affect public order, cause damage to property and the economy, prevent people going about their day-to-day business, and create fear among innocent bystanders.
That is the nature and scale of the disorder that we should be concerned about—not legitimate peaceful protests. By the same argument that limits the interception of communications to serious crime in RIPA, this Bill should limit the granting of CCAs to serious disorder, of which there is, to my knowledge, no legal definition. Our Amendments 26 and 30 limit the granting of CCAs to serious disorder and define that in terms of the offence of riot in the Public Order Act 1986, namely:
“Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety”.
Using such a definition would rule out both peaceful demonstrations and Friday night pub brawls, but it would include situations where it was anticipated that a violent faction was intent on hijacking a peaceful demonstration. Going back to what the noble Lord, Lord King, said, it would only be necessary for the police to have a reasonable belief that a peaceful demonstration might be hijacked by violent demonstrators for them to be given the necessary authority to deploy CHIS in potentially law-breaking circumstances.
However, I take the point made by the noble Baroness, Lady Massey of Darwen, that such disorder—riot—is in itself a serious crime as defined in our Amendment 31. It is important, however, to set out clearly that the type of disorder should be limited to serious disorder on the face of the Bill. We believe that such amendments would also address the concerns of the noble Baroness, Lady Jones of Moulsecoomb.
My Lords, Amendment 22, moved by my noble friend Lady Chakrabarti with the support of my noble friends Lord Hain and Lord Hendy, seeks to limit the use of criminal conduct authorisations to serious crime—and by that they mean indictable offences that must be tried in Crown Court before a judge and jury.
The amendment seeks to remove subsection (5)(c) in respect of economic well-being in the United Kingdom. It would be helpful if, in her response, the noble Baroness, Lady Williams of Trafford, were to set out examples of what this provision is seeking to do and what it is not seeking to do. There are concerns about this, as I am sure the noble Baroness has heard, from around the House, during discussion of this group.
Can the Minister also explain why the list of necessary grounds given in this Bill—as listed in subsection (5)(5)—is slightly different from those listed in the Counter-Terrorism and Border Security Act? In that Act, the reasons listed are that the activity threatens national security, threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security, or is an act of serious crime. Why not use the same words? Not to do so is surely a recipe for confusion when you are dealing with such serious matters. We want to see clarity from the Government; clarity about what they intend to bring into law is very important. Why is a form of words that was acceptable to the Government two years ago, when they put the Counter-Terrorism and Border Security Act on the statute book, changed in this Bill? Surely there is a risk of some overlap between these two pieces of legislation. Will the noble Baroness clarify this when she responds to the debate?
Amendments 23 and 26, in the name of the noble Lord, Lord Paddick, add the word “serious” in order to limit a criminal conduct authorisation to issues of serious crime. I have listened carefully to the arguments from the noble Lord and have some sympathy with them, so I will be interested to hear from the Minister the case for why these amendments are not necessary. The noble Lord referred to the number of times we have talked about serious crime over the years, and the various definitions of “serious”. That is a fair point and it needs to be answered.
The noble Baroness, Lady Jones of Moulsecoomb, raised the question as to why preventing and detecting crime would not be enough, on their own, as reasons for the powers in the Bill to be deployed. We also need reassurance about what will not happen when powers are given by Parliament, so it is important for the Minister to set out what will not be impacted.
Noble Lords may not like it, but the right to withhold one’s labour and to strike is a hard-won right that we should all defend. We need guarantees that the powers in the Bill would never be used to undermine lawful, legal trade union activity in respect of strike action or campaigning activity. My noble friend Lady Chakrabarti raised the important point regarding trade unions, as did my noble friend Lady Bryan of Partick and many others. We have to get the balance right; lawful activity must not be undermined by the state with the use of undercover activities.
We have heard about the policing inquiry. Some terrible things have happened that I am sure we all regret, which have undermined legitimate activity. It must never happen again. Those are the questions the noble Baroness needs to reassure the House on: how will this Bill ensure that never ever happens again?
I am a proud trade unionist. I was a member of USDAW for 12 years when I first left school and I have been a member of the GMB for the last 30 years. I never rose very high in the GMB ranks; I got as fair as the chair of the Labour Party senior staff sub-branch for a couple of years. I spent probably more time arguing with the rest of the staff in the Labour Party about where we wanted to get to. But I certainly think that the unions are very important. For example, USDAW—a union I am very close to—is a great trade union with great campaigns that I always support. It is important that we support the work that unions such as USDAW do.
At this point, I pay tribute to my old friend John Spellar. John was first elected to public office 50 years ago today, in a St Mary Cray by-election on 3 December 1970. John has served as a councillor, trade unionist, trade union official, MP and Minister. John would have nothing to do with any extremism of any sense whatever; anyone who knows him would know that. He has also run a news service for many in the Labour Party called “Spellar News”. We get it two or three times a day: early bird, evening round-up and news flashes. John is actually retiring the news service today, which I am very sad about. He has done great work as a trade unionist and is a great example to many of us in the Labour Party.
I was also sorry to learn that the noble Baroness, Lady Jones of Moulsecoomb, has been arrested on demonstrations. I have been on a few demonstrations in my time as well. I have avoided being arrested, but I must admit that I have also been demonstrated against. When I was a councillor, many times things that we did on the council provoked some annoyance. I remember once that I put up the fees of the traders in East Street Market and drew their wrath for a number of weeks. There were lots of unpleasant signs about me.
What is important here is that, if you are a trade unionist or a campaigner, nothing in the Bill must ever undermine legitimate work. It is really important for the Government, and for the noble Baroness, to reassure the House and Parliament that nothing legitimate will ever be undermined when this goes on the statute book, and that actually it will be supported. I think she can see from the comments of people around the House today that we are not convinced that is the case. She needs to reassure us now in responding to the debate.
My Lords, I thank all noble Lords who have taken part in this debate and pay tribute to anyone who has been in politics—and indeed the trade union movement—for 50 years. I have heard of John Spellar in dispatches, but unfortunately not the person that the noble Baroness, Lady Bryan of Partick, referenced.
Turning to public authorities, they have different functions, the ultimate outcome of which is to keep the public safe from harm in a variety of ways. It is very important that they can lawfully deploy CHIS to fulfil those responsibilities. These amendments seek to restrict the statutory purposes available to public authorities under the Bill.
The structure of new Section 29B closely resembles that of Section 29, which authorises the use and conduct of CHIS, as there is a high degree of interrelationship between the two provisions. That is why a Section 29 authorisation is required to be in place before a Section 29B authorisation can be granted. The statutory purposes that will be available for a criminal conduct authorisation are linked to those available for a use and conduct authorisation. It is not operationally workable to have different grounds for authorisation between the provisions. For example, we would want to avoid a situation where a CHIS’s use and conduct has been deemed necessary for the prevention of crime, but the linked criminal conduct authorisation for the same CHIS and the same activity may be only on the basis of preventing a serious crime, as my noble friend Lord King of Bridgwater pointed out.
My noble friend also pointed out the words of my right honourable friend James Brokenshire about the sheer amount of activity that has been done under covert means—it led to 3,500 arrests and the recovery of more than 400 firearms, 100 other types of weapons, 400 kilograms of class A drugs and £2.5 million-worth of cash. But first and foremost, and most importantly, is the fact that it safeguarded hundreds of victims from child sexual abuse and other heinous crimes.
To restrict the prevention of “crime” to “serious crime”, as Amendments 22, 23 and 31 propose, would mean that public authorities would be less able to investigate crime that, while not amounting at the time to serious crime, actually has a damaging impact on the lives of its victims—so the outcome is serious, to answer the question of the noble Lord, Lord Kennedy. An example of this would be food crime: the extension of meat durability dates, leading to out-of-date food being consumed, is damaging and can be very dangerous to public health.
Of course, the necessity and proportionality requirements mean that an authorisation must be proportionate to the activity it seeks to prevent. This provides an important safeguard against authorisations of serious criminality being granted to prevent less serious, but equally important, crime. However, it is surely right that public authorities have access to the most effective tools to ensure justice for victims of these crimes and to prevent their occurrence.
The noble Baroness, Lady Chakrabarti, referred to some of the examples that we have heard in this Chamber of sexual relationships between undercover police and women, and some of the actually quite devastating consequences of that. I think I have said before in this Chamber that that was not lawful, is not lawful and would never be lawful.
In response to the1 amendments seeking to remove economic well-being, this is one of the established statutory purposes for which covert investigatory powers may be deployed by public authorities. It recognises that threats to the economic well-being of the UK could be immensely damaging and fundamental in their effect. It might, for example, include the possibility of a hostile cyberattack against our critical national infrastructure, our financial institutions or, indeed, the Government. It is important that law enforcement bodies and intelligence agencies can deploy the full CHIS functionality against such threats where it is necessary and proportionate.
Similarly, preventing disorder is an important and legitimate law enforcement function. Where illegal activity takes place, public authorities listed in the Bill have a responsibility to take action as is necessary and proportionate. An example of this could be managing hostile football crowds, which does not involve lawful protest but causes harm to the public.
To be clear to noble Lords concerned that either economic well-being or preventing disorder could be used to target legitimate protest or the work of the trade unions, an authorisation can be granted only if it is proportionate to the harm or criminality that it seeks to prevent. Therefore, this would not include—to use the words of the noble Baroness, Lady Chakrabarti—“legitimate and lawful activity”. The noble Baronesses, Lady Jones and Lady Bryan of Partick, also gave examples of activity by political groups or trade unions. The noble Lord, Lord Kennedy, asked me about the difference between the wording in this Bill and the CT Act. It goes wider, basically, and it is consistent with RIPA.
With those words, I ask noble Lords not to press their amendments.
I have received a request to speak from the noble Lord, Lord Paddick.
My Lords, I am grateful for what the Minister has said and appreciate that she has to stick to her script, but it gives the impression on occasion that there is no point in making contributions to debate because what I have said appears, from what she has said, to have been completely ignored. I will repeat exactly what I said. I said that of course the Government may say that in addition to being necessary the granting of a CCA must be proportionate—the issue that she mentioned—and it would not be proportionate to deploy a CHIS if the criminal activity was minor. That is almost word for word what she said. However, I went on to say that the same argument applies to the interception of communications in RIPA, where necessity is limited to serious crime, as defined in our Amendment 31. That second point seems to have been completely ignored by the Minister. I accept that that is probably because she has, understandably, just stuck to her script. It comes back to the point that I made, which is: what is the point of making speeches in debates if what noble Lords say is ignored by the Minister?
The Minister said that these amendments would limit how CHIS could lawfully be deployed and seek to restrict their deployment, and authorities would be less able to investigate crime. This Bill is about criminal conduct by CHIS, not their deployment. It is about giving authority to agents and informants to commit crime, and grant complete legal immunity to CHIS in those circumstances. There is a world of difference between deploying a CHIS and authorising them to commit crime, and then granting them immunity from prosecution. Yet the whole basis of her argument, from what I understood her to say, is that there is no difference between the two. In which case, what is the purpose of the Bill?
I say again: why is the interception of communications limited to serious crime if there is no need to limit the deployment of CHIS, who are going to be authorised to commit crime? Why should they not be limited to serious crime? That is a question that the Minister has failed to answer.
The noble Lord, with whom I am actually good friends, makes a valid point: what is the point in making speeches if points are ignored? I often find that I make the same points over and again, and they are completely ignored because such is the will of people to make their opposite points. However, on this occasion, he is absolutely right. I did not address his point about RIPA and it being confined to serious crime. In the interception of communications, we are dealing with machines. In the deployment of humans, we are dealing with something else. I apologise to him for not answering his point.
My Lords, I am grateful to all noble Lords for the care with which they have approached this group, which once more highlights the gravity of the development of this legislation to enable statutory criminal conduct authorisations with total immunity for the first time in our law. I will not rehearse the various arguments, most of which I agree with, but I will respond to the noble Lord, Lord King of Bridgwater, a distinguished statesman for whom I have a great deal of respect, and to the Minister. It is their opposition to these amendments and the thinking behind them that I must address, because the issue is so serious.
At various times in the debates on the Bill, some noble Lords have expressed irritation that one should hark back to past abuses including those in the Undercover Policing Inquiry, or the treatment of my noble friends Lord Hain and Lady Lawrence, as if they belong in a bygone era and would never happen again. Other examples include the treatment of the Greenpeace women and so on. One can cast those abuses aside by saying they would never happen again but, of course, we know that as legislators we have the precious duty—the sacred trust of those who have appointed us to this role—to learn from the past and legislate for the future, informed by the dangers that past activities have exposed. It is right that we take some care and employ forensic precision in refining provisions in legislation as serious as this.
With the greatest respect to the noble Lord, Lord King of Bridgwater, and the Minister, there has been an element of blurring classes of activity that should not be blurred in legislation of this kind. In particular, there has been blurring, as the noble Lord, Lord Paddick, highlighted, on authorising undercover operatives, which is perhaps the most serious kind of intrusive surveillance—because humans are human, not machines, to quote the Minister. Yes, they need more protection but we also need more protection from them because they will change our behaviour and not just record it.
Undercover operatives are important but dangerous, even under the present law. There is a new category of authorisation in this legislation, which is about criminal conduct by those agents and criminal conduct with total immunity after the fact. That is completely novel. It is important to understand how we got here, not just regarding the vital need for these operatives or the abuses of the past but the jurisprudential and legislative train that got us to this station.
Article 8 of the convention on human rights guarantees the right to respect for private and family life, stating that:
“Everyone has the right to respect for his private and family life, his home and his correspondence.”
But of course there are exceptions. Article 8(2) is crucial in this debate. It states:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
That is a necessarily broad exception. Why? It is because that exception exists in international and human rights law to cover any privacy interference at all. Any camera on a high street or requirement to fill out a tax form is an interference with privacy. It includes any interference on a prisoner’s privacy or the privacy of a schoolchild—any interference at all. Therefore, that category of exception is broad. However, it is too broad for intrusive surveillance, which is why, as the noble Lord, Lord Paddick, said, we start to introduce further restrictions for intrusive surveillance. It is not just about the duty to fill out a tax form any more; we are now talking about much greater intrusions—serious crime rather than just any crime.
Economic well-being is vital, for example, for the tax form; but it is too broad a category for authorising agents of the state to commit crimes against me, my friends or my associates. That is the Article 8 wording, which is too easily copied and pasted. Then we have the slightly tighter definitions in the Regulation of Investigatory Powers Act, on to which today’s scheme is going to be grafted. That, serious though it is, is intrusive surveillance, but this is intrusive surveillance plus criminal activity plus total civil and criminal immunity. That is why the justifications in this Bill need to be tighter still than those in RIPA, not broader, and certainly a great deal tighter than the exceptions to Article 8 of the convention. I hope that I have made that clear, and I hope it rings true with most of your Lordships’ House.
To return to the noble Lord, Lord King of Bridgwater, I say that nobody is under any doubt that covert human intelligence sources are absolutely vital tools of public protection. Under the current law, we have no doubt that they have protected many of us and saved many lives. However, that was on the basis of a law where these people acted on the basis of guidance, but without this absolute immunity; but now we are told that they need absolute immunity—not a public interest defence and not what they have had until now. Therefore, it is perfectly reasonable to at least probe the possibility of, if not to insist on, much tighter regulation and safeguards than are currently provided in the Bill. Having had that discussion, however, for today at least I beg leave to withdraw the amendment.
Amendment 22 withdrawn.
Amendments 23 to 26 not moved.
We now come to the group consisting of Amendment 27. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in the debate.
27: Clause 1, page 2, line 30, at end insert “so far as those interests are also relevant to the interests of national security”
Member’s explanatory statement
This would only allow a criminal conduct authorisation to be granted on economic grounds if it is also relevant to the interests of national security.
My Lords, we have covered a good deal of the ground of Amendment 27 in the previous debate. I will try not to repeat too much of that. The basis for a criminal conduct authorisation under new Section 29B(5)(c) is the economic well-being of the United Kingdom. Amendment 27 seeks to qualify that with the words,
“so far as those interests are also relevant to the interests of national security”.
I said that I was not going to repeat too much of the previous debate, but I have made a note that I want to echo the wise words of the noble Lord, Lord Judd. Of course, today is not the first time that Parliament has been presented with grounds for doing something that it considers unappetising or justifiable only in quite extreme circumstances or where it is concerned that the grounds are too wide. I am not referring only to today, but the range of public authorities that fall into this Bill is wider than we have seen before by quite some margin.
Under the Investigatory Powers Act 2016, which allows for bulk acquisition warrants to be issued for the acquisition of data, if the Secretary of State considers it necessary in the interests of national security, the warrant is authorised. It is also authorised for the purpose of preventing or detecting serious crime or in the interests of the economic well-being of the UK, and then the words in Amendment 27 follow. Those qualifying words were not in the Bill as it was introduced. They were introduced and added after amendments and debate. I cannot now recall why we did not end up simply relying on the original national security grounds to cover economic well-being as well. These were words that the Government accepted; they were also words to be found in the Counter-Terrorism and Border Security Act 2019, to which the noble Lord, Lord Kennedy referred, in the definition of a hostile act that entitles questioning and detention at the border.
As the noble Baroness, Lady Chakrabarti, has said, the subject of this debate and this Bill is at the extreme end of what is being authorised. Perhaps we should simply have aimed for the deletion of new paragraph (c), but my noble friend Lord Paddick and I wanted to be constructive about this. Of course, however, we have to address the wide variety of issues that come within the umbrella of the country’s economic well-being. In considering the qualifications that anyone granting an authorisation must consider, and which would be considered in the supervision of the use of these powers, I refer not just to the general qualifications, but to the fact that under new Section 29B(6), which tells the grantor what must be taken into account, this is only in considering requirements under new subsection (4)(a) and (b). I am sorry: I am misreading my notes, partly because it is getting very dark here, so I shall leave that.
I have noted what the Minister for Security said in the Committee in the Commons, when he defended the economic well-being provisions as
“an established statutory purpose for investigatory powers”.—[Official Report, Commons, 15/10/20; col. 613.]
If the words are familiar to the Minister, it is because she has just said exactly the same thing, so my response is the same. The examples were used of cyberattack, critical infrastructure and financial institutions: yes, but qualified in the way that I have explained.
The noble Baroness talked about the full CHIS function: function, yes, but not the use of powers. As my noble friend Lord Paddick has said, there is a world of difference between deploying a CHIS and granting the right to use criminal conduct with immunity. There is an established statutory purpose, but I refer again to the existing qualification in the Investigatory Powers Act, and that is the threat to national security. I beg to move.
My Lords, my name is down to speak on this group of amendments by mistake, but I will take the opportunity to support the noble Baroness, Lady Hamwee, and to point out to the Minister that part of the reason we keep arguing back when she gives us information is that her text rewrites history.
Many of us were there 20 years ago when, to give just one example, we challenged the police about police officers sleeping with—almost exclusively—women to infiltrate campaign groups. I was on the Metropolitan Police Authority for 12 years and challenged successive Met commissioners to say to us that that was not lawful and not something that police officers were encouraged to do. They could not do it because all the police who have leaked and whistleblown about doing that sort of thing have said that they were encouraged to do it. It was implicitly and explicitly seen as one of the perks of the job.
So, if we do not listen, it is not because we do not have a lot of respect for the Minister; it is that we know that what she says is rewriting history. It is not true that police officers were told that it was not lawful to sleep with women on campaigns. I cannot emphasise that enough. I challenged the noble Lords, Lord Stevens, Lord Blair and Lord Hogan-Howe, and Commissioner Stephenson on this very issue and none of them could reply. I hate to attack civil servants but the Minister is getting a rewriting of history from them. That is why we argue back: because we know that it is just not true.
My Lords, that was a happy accident for the Committee—not that I would ever describe interventions from the noble Baroness, Lady Jones, as accidental. It is also a privilege once more to follow the noble Baroness, Lady Hamwee, who is a tireless and humble servant of your Lordships’ House.
This is another wholly sensible amendment. If it is not accepted, it would be really useful to hear from the Minister under which scenarios a perceived threat to the economic well-being of the nation that did not also constitute either a threat to national security or a serious crime would justify not surveillance but criminal conduct. We need to keep returning to the fact that the Bill is not about a mere investigatory power or the authorisation of covert human intelligence, which were catered for long ago; it is about authorising criminal conduct by agents of the state with total immunity.
A point that I did not address previously was proportionality. We have been told a number of times not to worry about the lack of greater restriction and precision because proportionality will always be a requirement, so that will be safeguard enough. But, of course, proportionality will be left to the discretion of the individual authorising person in any number of agencies listed in the legislation. That is a great deal of discretion. The famous American legal philosopher Ronald Dworkin described discretion as
“like the hole in a doughnut”.
He said that it
“does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, ‘Discretion under which standards?’; or ‘Discretion as to which authority?’”
In other words, to leave everything to proportionality in the judgment of the person authorising the crime is no real safeguard at all. So it falls to us to be much more precise about the grounds on which, in a democratic society, we allow something as serious as criminal conduct and criminal immunity for agents of the state.
My Lords, Amendment 27 seeks to qualify the use of the concept of economic well-being as a ground for authorising criminal activity by human intelligence sources. I served on the Intelligence and Security Committee for over 10 years, many of them under the chairmanship of the noble Lord, Lord King, who spoke earlier this afternoon. I did not always agree with him but he was an admirable chairman. The breadth of the term “economic well-being” worried me then. It was an issue that I raised and explored, and that was in relation only to intrusive surveillance and the interception of communications, not the full authorisation of serious criminal offences.
There were some obviously strong candidates for recognition as threats to economic well-being—action by a hostile state or a terrorist or extremist group to destroy or disrupt key elements of our critical national infrastructure, energy supply, transport or banking and financial transaction systems. Now, they would clearly include a major hostile state or extremist action to disrupt public authority or business systems by cyberattack. But would we include Brexit and the negotiations for a deal? That clearly has massive implications for our economic well-being. What about pandemics? What if we get another one and we believe that it is being spread deliberately or recklessly by other countries or organised groups? What about a big overseas defence contract, perhaps involving up to 10,000 jobs, which we fear we might lose, with serious damage to our economic well-being? Any action we take might of course be harmful to other UK businesses participating in a rival consortium bidding for the same contract.
In the preceding debate, we also heard about the way in which economic well-being was used to justify actions against trade unionists, although I shall not repeat the examples or arguments used then. Where do we draw the line and who draws it? Is it an authorising officer? Is it an after-the-event decision taken by those with oversight responsibility, particularly the commissioner?
As I said, I asked these questions when the issue was intrusive surveillance, where the main risk to being found out was international political embarrassment. There are circumstances in which intrusive surveillance might be acceptable but authorising a serious criminal offence is not. Here, we are using a very broad and undefined concept for the authorisation of criminal offences, potentially including very serious offences. Obviously, it can be crucial to have a source of intelligence deep within a hostile state agency, terrorist group or criminal gang which poses a threat to critical national infrastructure. Such a source might have to appear to those around them to be a willing participant in preparing for, or even assisting in, a major crime which it is hoped can be thwarted by law enforcement. But there is potentially a significant difference between authorising a source in a terrorist gang to go along with serious offences in order to help prevent, as we all accept, a dreadful and deadly act and authorising someone with access to cybercrime to carry out a violent offence which might not be necessary in order to put an end to that crime.
The point that I want to make is that the concept of economic well-being is broad, and there is so little understanding of how it will be interpreted by the very wide range of agencies empowered by the Bill that it puts massive responsibility on the authorisation and review processes and on the code of practice. I hope that the Intelligence and Security Committee of Parliament will, at some point in the near future, undertake a general analysis of how the legislation is working and pay particular attention to the use in this area of the concept of economic well-being.
I am very glad that my noble friend has tabled this amendment, which attempts to limit the scope of economic well-being for this purpose to matters that are relevant to national security, but I think that I know the answer that the Minister will give to the suggestion—that, conceivably, it might exclude some serious threats to the health or livelihood of large numbers of our citizens. However, if we do not find a way of defining more clearly what we mean by economic well-being and limit its application in authorising criminal offences, we will take a serious risk: of leaving the authorising and scrutiny bodies dealing with these decisions with no framework and having to make it up as they go along.
My Lords, Amendment 27 is tabled in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. I am not going to speak for long because we discussed some of these issues in the previous group. We have mentioned numbers in the various pieces of legislation and I have made the point about consistency. I know that when I mentioned the counter-terrorism Act, the noble Baroness was spot on and I will look at what she said in the earlier debate. However, we need to be sure that we have consistency in the various bits of legislation that we are talking about today. That is very important.
A number of colleagues have talked about the need to get the balance right here. The concerns that have been raised by Members of the House show that it is one thing when you are dealing with terrorists from another state or people who for various reasons are looking to undermine the economic well-being of the country, but on the other side of that are quite lawful campaigners. We might not like them and we might think that what they are doing is wrong or irritating, but they are acting in a perfectly lawful way. That is the area in which we need reassurance and it is what this debate comes down to. People have the right to protest, to be annoying and irritating, as long as they do it lawfully. We have to be sure that we get this right and that is what we are worried about.
Equally, I turn to the whole question of trade unionists, who have been mentioned many times. Trade unionists have the right to campaign and to know that they can do so without having agents put in to undermine their activities. You could argue that others might undermine their activities, but they do not need people in their own ranks who are sent in to do that.
As many noble Lords have mentioned, in the past undercover officers have been sleeping with campaigners. That is totally out of order. I am sure that it will be said that that will never happen again, but people need to be reassured that it is, as I say, totally out of order. While the Government are saying that this will never happen again, the noble Baroness, Lady Jones, has challenged a number of police commissioners—three of them are now Members of this House—and has never had an answer; that is also a concern. These things are totally wrong.
The Minister has a job here to find a way of reassuring the Committee that these things will not happen again, but how can we be sure about that? That is the issue that we have to deal with, because of course we thought that they could not have happened before, but clearly they did and we have only found out about them years afterwards. We want legislation that is right and proper so that people are protected, but, equally, legitimate campaigners have to be protected as well so that they are not abused and wrong things done to them. This, I think, is the crux of the issues we are debating today and I look forward to the response of the noble Baroness.
I thank all noble Lords who have taken part in this debate. I will start with the comments of the noble Baronesses, Lady Jones and Lady Chakrabarti, and the point about listening to what each other is saying. I have never tried to skirt around the issue of the disgusting behaviour of some 30 years ago. I do not know whether police officers were not told that it was illegal and the inquiry is clearly establishing the ins and outs of that. But it was not acceptable and it was never lawful, and it cannot be authorised under this Bill. I hope that I have made that very clear. I do not dismiss what those women went through—including, indeed, what the noble Baroness, Lady Lawrence, went through—and I hope that the inquiry will vindicate an awful lot of the people who suffered, complained and were simply ignored in the past. The inquiry will get to the bottom of something that was never lawful in the first place. I digress, but I must add that operational partners are very clear that that sort of behaviour could not be authorised under this Bill.
I shall move on to the substance of Amendment 27. I will not repeat the points I made in response to the last set of amendments, but I will emphasise that economic well-being is one of the established statutory purposes for which covert human investigatory powers may be deployed by public authorities. We recognise that threats to the economic well-being of the UK could be immensely damaging and fundamental in their effect. That might include, for example, the possibility of a hostile cyberattack against our critical infrastructure, as I said earlier, attacks on financial institutions or on the Government themselves. I gave examples in my previous speech of the victims of CSA, cash and drugs activity, so they may not be solely related to issues of national security.
We have agencies such as HMRC, the NCA and the Serious Fraud Office whose mandate includes mitigating broader threats to the UK’s economic well-being. These threats are real, emerging and go beyond the remit of national security. We cannot tie our hands in response to such threats by limiting the statutory purposes available to tackle these issues. Of course, there are also examples of where economic well-being is not restricted to national security, as set out in other parts of the Investigatory Powers Act and the Security Service Act.
I hope that I have given a full explanation of why Amendment 27 should be withdrawn.
My Lords, I have received no requests to speak after the Minister, so I call the noble Baroness, Lady Hamwee.
My Lords, I am grateful to those noble Lords who have contributed to this debate. My noble friend Lord Beith posed a number of new scenarios and he is right to prompt us to be thoughtful about these issues.
I have to say that I find it difficult to envisage what economic interests there might be which would justify a criminal conduct authorisation that do not fall within national security interests or the prevention or detection of what we think should be limited to serious crime. I do not want to repeat the arguments that I and others made in the previous debate or indeed in this one, but I will say in response to the Minister that she has introduced an element that perhaps we have not dealt with before: the need to anticipate what might happen. I may have got her words wrong, but that is the meaning I took from them. I would point to the word “preventing” crime as set out in subsection (5)(b).
I am sorry that we have not been able to progress this any further, but clearly at this moment I should beg leave to withdraw the amendment.
Amendment 27 withdrawn.
We now come to the group beginning with Amendment 28. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make that clear in the debate.
28: Clause 1, page 2, line 30, at end insert—
“(5A) The circumstances in which a criminal conduct authorisation is necessary on grounds specified in subsection (5)(c) may not include the activities of trade unions.”Member’s explanatory statement
This would provide that circumstances in which a criminal conduct authorisation is deemed necessary for the economic well-being of the UK may not include the activities of trade unions.
My Lords, Amendment 28 in my name and that of my noble friends Lord Rosser and Lady Clark of Kilwinning, and the noble Baroness, Lady Jones of Moulsecoomb, seeks to amend the Bill by adding to it an exclusion that, where a criminal conduct authorisation is sought and deemed necessary, the grounds on which it is sought cannot include the activities of trade unions. We have mentioned trade unions in a number of our earlier debates. This is a very important issue and one that I hope that the noble Baroness, Lady Williams of Trafford, will make a very positive response to at the end of the debate. I should add at the start of my remarks that I fully support Amendment 29, in the name of my noble friend Lady Clark, which is an amendment to my amendment to add the words “or legitimate political activity”.
Noble Lords will know that trade unions have been legal in the United Kingdom since about 1824. As a result of the Royal Commission on Trade Unions of 1867, it was agreed that unions were advantageous both to employers and employees. That led to the passing of the Trade Union Act 1871. Trade unions have been a force for good in the United Kingdom and around the world. They have led campaigns to improve the conditions, and the health and safety, of workers and communities alike. They are experts in the world of work. Through constructive engagement with employers in the public and private sectors, they have sought to deliver improvements of which we are all beneficiaries today. They should not be subjected to any activity resulting from the powers given under the Bill, which is why this amendment is so important.
Trade unions have brought about improvements such as sick pay, maternity pay, the eight-hour day for most workers, paternity leave, paid holidays, the minimum wage, protection against discrimination, equal pay and safe and healthy workplaces, but there is always more to do. Trade unions today are campaigning on zero-hours contracts and their associated poor working conditions, and on low wages. They also play a huge role in the campaigns on climate change, domestic abuse and the gig economy—where basic rights are often in short supply. They have highlighted the shambles of the universal credit roll-out, for example, and the great shame that, in the fifth-richest country in the world, there are people relying on food banks and sleeping in the streets close to this noble House.
All that work is legitimate and legal, and it should never be at risk from the powers contained in the Bill. I am seeking an unequivocal assurance from the Minister that trade unions will never be targeted. If she will not accept this amendment, how can she provide that assurance to the House? I fully support the amendment in the name of my noble friend Lady Clark, as I said earlier, which would further ensure that legitimate political activity cannot be targeted under the powers contained in the Bill.
Amendment 35, in my name and those of my noble friends Lord Rosser and Lord Hain, and the noble Baroness, Lady Jones of Moulsecoomb, would prevent the powers in this Bill being used to compile lists of trade union members or to discriminate against them when they seek employment. We have heard disturbing stories of how, in the past, police officers were involved—and that is terrible—and organisations were doing just that. It is vital to have an unequivocal assurance that never again will we see officials of the state involved in targeting individuals, using the powers contained in the Bill. These are serious matters. Even the Metropolitan Police’s official spokesman said that the force’s internal report into blacklisting had established that the conduct of certain officers amounted to the improper sharing of information, as the law stands. Even their own spokesperson accepted that these things were wrong.
That was all part of a scandal which was exposed 10 years ago. It involved an organisation called the Consulting Association and information being quite improperly supplied to companies. That effectively ended the individual’s chances of getting a job, which was appalling and disgraceful. We are all aware of the settlements offered by companies such as Balfour Beatty, Carillion, Costain, Kier, Laing O’Rourke, Robert McAlpine, Skanska and VINCI. I am sure that the Undercover Policing Inquiry will look at this further, but I am also concerned that these activities should worry us all.
If these powers are put on to the statute book, what are the protections and guarantees against these activities happening again? I know the Minister will say it will never happen again but, sadly, sometimes these things do. Can she say in her answer what will be done if it happens again? We all know about the questionable activities of Mark Jenner, also known as Mark Cassidy. He allegedly passed on information about 300 workers; his name comes up many times in connection with other activities. We need to know that this cannot happen again and, if it does, what the Government would then do. I look forward to this debate and I beg to move.
Amendment 29 (to Amendment 28)
29: Clause 1, after “trade unions” insert “or legitimate political activity”
My Lords, I shall speak in favour of Amendment 28, to which I have added my name. It seeks to outlaw the infiltration of trade unions. In addition, I shall speak to my Amendment 29, which would go further in seeking to outlaw the infiltration of legitimate political organisations and activities. I have tabled it as a probing amendment. Many of these issues take up a lot of what was discussed in the previous debate.
State surveillance of political organisations is of course far from new. It has been going on for many centuries. Earlier this week, we heard powerful testimony from my noble friend Lord Hain about his own experiences. I know that there has been surveillance on my noble friend Lady Lawrence of Clarendon and her family. I suspect that other Members of this House may also have been subjected to surveillance, whether they are aware of it or not.
As the House has already discussed, the Mitting inquiry has recently started taking evidence on the seemingly industrial use of undercover surveillance methods against a wide range of left-wing and progressive campaigns. These include the Vietnam Solidarity Campaign, the Anti-Apartheid Movement, women’s rights organisations, anti-colonial movements, anti-racist campaigns—and families, such as those of my noble friend Lady Lawrence, who were campaigning on justice issues involving a family member. There are many others including the miners’ strike, the Shrewsbury 24 and blacklisting campaigns. In 2015, a whistleblower revealed that there had been surveillance on 10 MPs, including my noble friend Lord Hain, Jack Straw and several other well-known politicians.
The inquiry established in 2015, which we have heard about, is due to report its investigations in 2023. It is currently taking evidence into allegations of infiltration of more than 1,000 political groups, starting in 1968. It is unclear whether surveillance led to intelligence on any serious crime. We hope that the inquiry will uncover facts to inform debate. As my noble friend Lord Kennedy said, Mark Cassidy is perhaps the best-known infiltrator. He infiltrated environmental groups and had sexual involvement with campaigners. For seven years, he adopted a fake identity, deceiving women into sexual relationships. Although it has become clear that some undercover officers have been using this tactic to infiltrate groups over a period of nearly 50 years, again it is unclear what intelligence the state has obtained as a result.
I am very aware that the Minister has said that such conduct by agents was wrong, and I am grateful to her for that. In a previous debate earlier this week, her ministerial colleague described such behaviour as “a mistake”. The Metropolitan Police has already paid compensation to four women as a result of these inappropriate relationships. Given that these and other practices, including the infiltration of groups, have been going on for so many decades—whether or not they involved behaviours such as having sexual relationships with campaigners—the protections need to be in the Bill. Surveillance needs to take place within a clear legal framework; it also needs to be clear what level of infiltration of campaigning and political organisations is acceptable.
My amendment refers to “legitimate political activity”, which would require to be defined. It could include human rights organisations, environmental campaigns and a wide range of other non-violent organisations. This legislation is an opportunity to consider what is and is not acceptable surveillance by the state. What rights do we have to take part in political activity in a free society? What rights do we have to privacy in circumstances where no criminal activity is taking place or is likely to do so?
As my noble friend has said, many of these campaigns may be inconvenient to those in government. They may be intent on changing government policy or the way in which we organise ourselves as a society. The amendment from my noble friend Lord Hendy would allow surveillance only where there was a crime triable on indictment. Neither of these present amendments would be required if his amendment, or some of the other wider amendments to ensure judicial oversight, were to be passed.
Many in this House are here only because of their involvement in politics, which is a fundamental right in a free society. The legislation before us is an inadequate framework that includes few safeguards. The backdrop is a history of recent police abuse and failure to respect human rights. Legislation is required to create a framework and this Bill is an opportunity to do that. However, as currently framed, it is inadequate and provides few safeguards. Therefore, I would be grateful if the Government could outline the circumstances in which they believe it is acceptable to undertake surveillance of those involved in political activities.
My Lords, I start by making it absolutely clear that I do not blame the Minister or those who have written her brief. All I am saying to the House is that Members of this House involved in this debate have hands-on experience of these issues. I include the noble Lord, Lord Davies of Gower, and the noble Baroness, Lady Manningham-Buller, in that. I ask the Government to listen very carefully to those with that experience; that is all. I can confirm that the Minister and I are friends.
The amendments in this group seek to prevent the use of criminal conduct authorisations in connection with the activities of trade unions or legitimate political activity, or to compile lists to exclude people from employment because of their involvement with trade unions or their activities. Others seek to ensure that they are not used disproportionately against minorities and to find out how the Government intend to respond to the Undercover Policing Inquiry.
There are difficulties with Amendments 28 and 29. What happens if a trade union, or its members, is involved in criminal or seditious activity, such as, as was suggested earlier, the activities of Arthur Scargill and the National Union of Mineworkers? Who defines what political activity is legitimate? If members of a trade union have been involved in criminal activity, are there not circumstances where they could legitimately be discriminated against by employers?
We have sought to take a more general approach. In an earlier group, I mentioned our Amendment 56A in this group. It might have been better in the group where we discussed prior judicial authorisation, but the amendment did not come to me until midway through that debate. That is why it is in this group. However, it addresses exactly the issues that the noble Baroness just spoke about. Therefore, it is legitimate for it to be in this group.
I believe there is consensus around the House that agents of the state, in particular the police, should not be able to authorise covert human intelligence sources—an informant or agent—to participate in crime, granting everyone involved legal immunity in the process, without more rigorous and independent oversight. Otherwise, the sort of activity that the amendments in this group seek to prevent could take place.
As we have already debated, the problem with the prior judicial authorisation of a criminal conduct authorisation, which has to define very precisely what exactly the CHIS is or is not allowed to do, is that the agent or informant is often being sent into an uncertain, rapidly changing scenario in an uncontrolled environment, often involving chaotic individuals. Straitjacketing the agent into an exact set of actions, stepping outside of which would remove his legal immunity, is not practical, not least if the CCA has to be referred back to a judge, the Investigatory Powers Commissioner or even a Secretary of State before the criminal conduct authorisation can be changed. These are often fast-moving situations, involving complex human interactions that cannot be paused while a decision is made.
It is essential that covert human intelligence sources are not tasked to commit crime in a way that is not legitimate, whether by mistake or corruptly. The draft revised code of practice is not reassuring on this point. For clarity, I will set out what could happen in practice: a handler, who is in in contact with the informant and wants him to participate in crime, makes an application to an authorising officer—in urgent cases, a police inspector or equivalent and, otherwise, a superintendent. Paragraph 5.8 of the draft code of practice says:
“authorising officers should, where possible, be independent of the investigation. However, it is recognised that this is not always possible”.
There could be a situation where a drugs squad sergeant investigating a drugs gang gets urgent authority from his own drugs squad inspector to authorise an undercover drugs squad officer to engage in a drug deal in which the sergeant, the undercover officer and, arguably, the authorising officer are all immune from legal action. It is not difficult to see the potential for abuse in such situations. Noble Lords will be able to imagine a similar scenario, where the target of the operation is a legitimate peaceful protest or the proper activities of a trade union.
Amendment 56A in my name and that of my noble friend Lady Hamwee seeks to resolve this conundrum. It seeks to ensure that, if it is intended that an agent or informant is to participate in crime, the
“nature and extent of the deployment have been approved by the Investigatory Powers Commissioner”
in advance, not the precise details of the criminal conduct authorisation. It is pre-approval, if you will: a CCA cannot be granted unless and until the Investigatory Powers Commissioner has agreed to the mission, in general terms, on which the CHIS is about to embark.
The amendment does not require the prior approval of the exact and precise terms of the criminal conduct authorisation. Instead,
“the purpose and extent of the deployment, and … the type of criminal activity”
likely to be involved must be explained, in general terms, to the Investigatory Powers Commissioner, who must approve the use of the agent or informant in the intended way. The Investigatory Powers Commissioner could, for example, approve the deployment of an agent into a terrorist organisation, but would, in all likelihood, refuse the use of a CHIS to spy on the legitimate activities of a trade union.
We suggest that this would provide the reassurance that many noble Lords seek by ensuring that a covert human intelligence source should not participate in crime without prior judicial approval, but without the Investigatory Powers Commissioner becoming involved in trying to understand the personality of the CHIS and those he will interact with, or becoming involved in the exact detail of the criminal conduct authorisation prior to the event. It would give the handler the flexibility he needs, but ensure that the CHIS is deployed only for a legitimate purpose. Such prior approval of deployment would apply only where it is intended that the agent or informant will be authorised to commit crime.
Clearly, there needs to be provision for urgent cases, which the amendment attempts to give, but what constitutes an urgent case also needs to be defined—although there is guidance in the draft code of practice about this. The question of legal immunity needs to be dealt with separately, but I urge the Government to seriously consider this compromise, and I hope that the Minister will undertake to discuss this amendment with me before Report.
As with all activity by the state and its actors, the impact on minorities should be monitored, and we support Amendment 78. However, we feel that it is too early to expect the Government to set out how they will respond to the Undercover Policing Inquiry, as this will depend on its findings.
My Lords, the noble Lord, Lord Paddick, gave a very graceful explanation of his previous intervention. Perhaps I should do the same and at the same time apologise to civil servants. If we accept what the Minister has said —that such actions as sleeping with campaigners to infiltrate those campaigns was illegal then and is illegal now—that still means that four Met commissioners sat in front of the body holding them to account and refused to commit to that. What does that say about our senior officers? We always have to bear this in mind, and I have been involved in this struggle for the past 20 years.
It was possibly 15 or 16 years ago that some members of my family were at a festival and they said, “We think there’s some police spies among us.” I laughed at them and said, “I look at the Met police budget on a monthly basis—I know there’s no money for that sort of nonsense.” But you know what? There was. Somehow, while they were closing police stations and getting rid of sergeants, they still found time for the police spies, and that is outrageous. For us, there is a depth and colour to this legislation that I feel is lacking for others who have not experienced the other side of this police behaviour.
The amendments offer special categories—for example, political, trade union and of course blacklisting, which was a horrendous thing to have happened. I am not so sure that it is not still happening. I have tabled Amendment 82, which asks the Government to hold off on this Bill until the “spy cops” police inquiry is over. I realise that that is a bit too hard-line and will not happen, but my point is that it is a bit daft to bring this in when we do not have the experience of that inquiry to draw on. In many ways this is quite heavy-handed. I hear, “Well, all the bad stuff happened in the past and it couldn’t possibly happen again.” I am afraid that my experience suggests otherwise. It would be useful to know by what formula the Government are going to respond to the undercover policing inquiry, because many of us have been following that for decades.
I turn to the other amendments. The trade union blacklisting was an appalling practice. Men—mostly men—lost their livelihoods, their houses and sometimes their families when they were banned from working because the police were passing information around. Is that not happening any more? I would really like to know. I think it probably is. It has to be illegal and the people involved should be prosecuted; there is no doubt about that.
Then there is the excellent Amendment 29 from the noble Baroness, Lady Clark of Kilwinning, who made a very good speech. I wish I had that sort of calm manner in your Lordships’ Chamber. There are times when I think to myself, “What on earth am I doing here?”, and I am sure there are lots of other people who think the same [Laughter]. The fact is that I am here because I care. I do not have to do this; I could go back to Dorset and look after my leeks—actually, they are my partners’ leeks; raspberries are what I do—and think about the garden. This Bill gets to the heart of what I care about in politics, which is justice, fairness and delivering on a society where people can express themselves without being closed down by other forces.
I shall go back to my speech, if I can find my place. The noble Baroness’s Amendment 29 refers to “legitimate political activity”, and there is lots of that. This is legitimate political activity, however heated it gets. For example, there is the question of economic well-being. I do not want a police officer to decide if my Green Party view of economic well-being is against the interests of society. I think the Conservative Party’s view of economic well-being is extremely damaging not just for us but for our whole planet. It is going to affect us very deeply as a country for decades to come, but I still do not want police going around committing crimes because of that.
I feel that there are issues here that we will have to come back to on Report. I had intended to sign Amendment 29, and I will do so if it can be brought back on Report.
My Lords, I declare an interest as a member of a trade union ever since my undergraduate days in my first job, during a long vacation, as a garden labourer for the LCC. I joined a trade union as a young man and have remained convinced about the unions’ role in society ever since. They are fundamental to the kind of free society in which we want to live, a society with checks and balances and in which the rights of individuals, whoever they are, can be protected. In the struggles of the trade union movement over many years, we can see how those rights have been hard-won by brave and courageous people who stood up for justice and fairness as they understood it.
I said on the last amendment that the dividing line between a free society and a police state is not always absolutely clear. In our society, while the majority of employers are responsible people, with a sense of responsibility towards their workforce and to all who are involved in their industry, we know that too many employers and people in the private sector are ruthless. They are prepared to do anything to further their profit and financial gain. I add in parenthesis that I always see a correlation between lasting industrial and commercial success—and responsible leadership of industry—with the recognition that the role of trade unions has been central to ensuring that success in the future. I always think people who deny these rights and freedoms, and the importance of organised labour, are in one way or another destined to have a sticky end.
In the kind of society in which we are living, it is therefore crucial to take our responsibility towards the protection of trade unionism and the protection of the rights of workers within our society as fundamentally important. We must not drift into a situation in which, by an inappropriate use of police powers, less savoury elements in our commercial system can exploit the situation for their own good. I always saw the blacklist of people who had been involved in what was regarded as unacceptable activity as pernicious. How many employers are on a blacklist from participation in the economy because of totally unjustifiable things that they have done? That is where we come down to the fundamental fairness and justice in our society. For those reasons, I am very glad that my noble friends have moved this amendment, and I express my strong support for what they have said.
My Lords, I support Amendment 56A in particular. In the earlier debate on the issue of prior judicial authorisation, I made the point that notification of an authorisation of criminal conduct to the IPC, as suggested by the noble Lord, Lord Anderson, and other noble Lords, lacked teeth. In response, the Minister argued that the oversight role of the Investigatory Powers Commissioner has teeth. She said that it includes ensuring that public authorities comply with the law and follow good practice. She added that public authorities must report relevant errors to the IPC office; for example, where activity has taken place without lawful authorisation or there has been a failure to adhere to the required safeguards, saying that the role of the IPC was to make recommendations to public authorities in areas that have fallen short of the required standard. This all may happen after a criminal event has taken place. The so-called safeguards would then bite on nothing.
Alternatively, the Minister relied on a framework in which the safe deployment of the CHIS is made by experienced, highly trained professionals, guided by the code of practice. Like the noble Lord, Lord King of Bridgwater, I have looked at this, but cannot find any guidance as to the areas in which it is appropriate for all these public authorities to deploy CHISs. It says simply that the deployment must be
“necessary and proportionate to the intelligence dividend that it seeks to achieve”
“in compliance with relevant Articles of the European Convention on Human Rights”.
The authoriser himself or herself is charged with considering whether the activity to be investigated is an appropriate use of the legislation, which rather begs the question of what, when and where is appropriate. It is entirely the subjective opinion of that individual authoriser. He may object to the secret cultivation of leeks in Dorset, for all that the noble Baroness, Lady Jones, might know.
Examples of the deployment of covert agents, as outlined by the noble Lords, Lord Hain and Lord Mann, and the noble Baroness, Lady Jones, herself, and in the case of the Lawrence family, are dismissed as errors of the past, and that in the bright future under the provisions of this Bill, they would not happen. I agree entirely with the noble Baroness, Lady Chakrabarti, that we learn from the past, and that in this Bill there is a blurring. This bright future includes a novel element: the authorisation of crime with complete and total immunity against prosecution, or against civil suit. The Bill envisages that covert human intelligence sources will be employed in the future by a wide variety of public authorities in a wide variety of unknown situations and areas. Let us consider the areas referred to in these debates: protests against apartheid in South Africa, protests involving the cooling towers of electricity stations, and protests up trees. As for the Lawrence family, I cannot imagine what public interest was being pursued.
I recall prosecuting a case in which the defendants were charged with sending letter bombs. It emerged in the evidence at the trial that a covert security service officer was happily waving a banner in a protest march through Caernarfon in support of the aims of the bombers, shortly before the trial took place. Waving a flag may not be an offence outside Northern Ireland, but the case involved a serious crime that resulted in a 12-year sentence of imprisonment. As prosecutor, I received a knock on my door at home from the local policeman from Rhosllanerchrugog, warning me about my personal security during the trial, and telling me not to open any large letters. Two days later, I was contacted for the same purpose by the security services, who presumably did not feel the same urgency or concern for my safety as my local bobby.
The banner-waving secret service agent was not committing a criminal offence by joining a protest, but in this Bill, we are concerned with authorising criminal offences. It is not a matter of the past; this must still be going on. Are there CHISs currently deployed in penetrating Extinction Rebellion? Is the committing of criminal offences as part of the investigation of these protest movements necessary and proportionate? Is the question of public interest to be left unchecked and unhindered in the hands of an investigating authority, however well trained its individual authorising officers may be? Such an individual authoriser may have lost the capacity for moral judgment, as the noble Baroness, Lady Bryan of Partick, said earlier today.
Amendment 56A does not seek prior authorisation of the specific terms of a CCA. As my noble friend Lord Paddick made clear, there is no straitjacket, having regard to the uncertain and chaotic circumstances of the deployment. However, it does involve the need to satisfy the Investigatory Powers Commissioner that criminal activity is necessary and proportionate in the area in which the covert source is being tasked, outlining its nature and its extent. The proposal is that the IPC should be informed of the deployment of the source with authority to commit criminal offences in a particular area, and his oversight of the issues of necessity and proportionality is invoked. That is the sensible and workable safeguard. There is also provision in the amendment for another process if a speedy decision is needed.
The Minister promised the other day to consult with the noble Lord, Lord Anderson, and those supporting his amendment. Clearly, the matter is still in play. I suggest that the Minister consult with the proposers of Amendment 56A to see whether this is not a far better way forward.
My Lords, I agree with everything that has been said in this group so far. Of course, it comes at the problem from a slightly different angle. We heard in the last group that the purposes for which a CCA may be issued are incredibly broad, with definitions taken from the realms of international law not practicable enough to work at a fairly junior authorising level for something as severe as criminal conduct. This group comes at the same problem from the angle of protecting groups—legitimate political and trade union groups, and so on—which have been, on the evidence, targeted for abusing and intrusive surveillance in the past, and now there is the greater risk that comes with criminal conduct and immunity.
I join others in thanking the Minister for her comments about the victims of undercover police officers who formed intimate relationships, sometimes over many years and sometimes producing children. Her apologies and reassurances will give some comfort to the women in question, but in that spirit of constructive debate and listening, it must be pointed out that there were abuses beyond even those, including the abuses experienced by my noble friends Lord Hain and Lady Lawrence, and others, who were not subject to that sexual intrusion, but were none the less subject to intrusion on the basis of their political views and activities alone. As it stands, there is nothing on the face of the Bill that would protect such legitimate democratic actors from similar or greater abuse in the future, given that what we are talking about now is criminal conduct with total immunity, as we have heard.
I look forward once more to the Minister’s reply to the very constructive suggestions that come in a number of different forms in this group.
My Lords, I wish to speak briefly to Amendment 28, which I support. I was surprised at the breadth of the debate on Amendment 22 and others, as some of the comments on trade unions might have been more appropriate in this debate. Nevertheless, the noble Lord, Lord Paddick, made some worrying points in that debate in comparing RIPA and seeking justification for the words in this Bill. I suspect that he will want to return to them, given the inadequacy of the reply of the Minister, who gallantly recognised the points he made.
The state is sometimes minded to intervene in fields where it should not. The words in the clause,
“in the interests of the economic well-being of the United Kingdom”,
may need clarification and, indeed, very close scrutiny. In my view—I think I am quoting Shakespeare—they need to be “cabined, cribbed, confined”. The noble Lord, Lord Thomas of Gresford, also made some pertinent points in rightly parading some historical matters. Can the Minister refer to the precedents for words of this kind? I suspect they may have been used before. If so, it should be looked at very carefully as to whether they should be repeated, because as they stand, they are a licence to do anything. The line is a very thin one, from my past experience, between legitimate activity and activity in which the state is sometimes minded to intervene. In the Bill, there is no qualification of these words, but one is mightily needed.
I have no present interests to declare, but I was for many years a member of APEX, subsequently taken over by GMB, and I was in turn a Member of Parliament sponsored by those unions. As a retired member, I no longer have that interest to declare but, as a practising barrister, I had the privilege of giving legal advice to the south Wales miners during the miners’ strike. My junior counsel was Mr Vernon Pugh, later a very eminent Queen’s Counsel. The circumstances of that particular legal advice escape me—indeed it would not be appropriate to comment any further—but it was during that period that I believe the Thatcher Government crossed the line and intervened in lawful industrial activity. The freedom of the trade unions to assemble, protest, negotiate and represent was a battle that had been won over many years. My noble friends Lord Kennedy—in a very forceful speech—and Lord Judd made reference to these points. Nobody in their right senses would want to return to that and not follow the best practice of ensuring that trade unions are able to do their work.
The amendment seeks, with belt and braces, to protect trade unions from authorisation for a criminal activity. The words are a matter of great concern. It would be a sad day if we in any way return to the state interfering with trade unions and their activities and particularly condoning and authorising criminal offences involving the proper and lawful activities of trade unions. Amendment 28 is a clear warning: keep off the pitch. No normal Government would dream of crossing the line.
Regrettably, we have lived through a period when tempers were frayed, unfortunate incidents occurred and the Government did intervene. What we do not know is how infiltration occurred during that period. It is a fundamental point that we should know more. We are not talking of surveillance; that is the vital difference. Surveillance may be proper in some circumstances, but authorising criminal activity involving trade unions is not. To avoid repetition of what has happened in the past, and with those few words, I support the amendment.
My Lords, if the noble and learned Lord was referring at the beginning of his contribution to the term “economic well-being”, I hope that the references made during the earlier debate will be helpful. I certainly agree with him about the breadth of what is in the Bill and the distinction between surveillance and authorising criminal conduct.
The amendments in this group raise the issue of whether we are concerned about the activity or the actor. My noble friend Lord Paddick questioned Amendment 29 and the term “legitimate political activity”. I had in fact made a note that that quite attracted me, but he and I have not had the opportunity to thrash this out between us. We may get it on the floor of the House if the noble Baroness brings the matter back at a future point.
On Amendment 78, on the equality impact assessment, frankly, the Government would be ill advised to resist this. I am mindful of the need to avoid the identification of agents. The noble Baroness, Lady Manningham-Buller, was very clear about that the other day but, as the amendment is worded, I do not think that there should be such risks—although of course I am not experienced in this area.
In Amendment 56A, my noble friend has stood back to look at the purpose. Again, it is the broader point of addressing the principle rather than producing a list or a detailed prescription. I hope that the Minister will accept that we are keen to address the problems that the Bill throws up without undermining it. I am sorry that, today at any rate, I will not get the chance to speak after she has responded to my noble friend, but I believe that he has come up with a formula that is well worth pursuing.
I thank all noble Lords who have spoken on this group of amendments. I start with the point made by the noble Lord, Lord Paddick, about people in this House with experience. This is important, because your Lordships’ experience in such a wide variety of areas makes legislation in Parliament better.
I also agree with the noble Lord, Lord Kennedy, in commending the work of the trade unions, which, as he said, among other things, started by ensuring that workers had suitable pay and working conditions, unlike some of the terrible things they suffered in the past. I do not diminish the devastation that blacklisting caused, which many noble Lords mentioned. The noble Lord, Lord Kennedy, and the noble Baroness, Lady Clark of Kilwinning, asked how we can make sure that this does not happen again. It is a sad fact of life that we cannot categorically say that anything will not happen again, but noble Lords will agree that supervision by IPCO, the code of conduct and oversight by the IPC are very good safeguards that clearly were not there in the past; nor were the Human Rights Act and some public authorities’ internal processes.
To answer the noble Lord, Lord Paddick, IPCO has unfettered access to documents and information, and can pick up any issues. As I said on Tuesday and say again to the noble Lord, Lord Thomas of Gresford, I want to discuss ways to provide for closer real-time oversight with IPCO, as was suggested by the noble Lords, Lord Anderson and Lord Rosser. I am also happy to talk to the noble Lord, Lord Paddick—definitely before Report.
These amendments speak broadly to one issue, which is the need for reassurance that the Bill is not a conduit for public authorities to target legitimate and lawful activity. Amendments 28 and 29 seek to prevent a criminal conduct authorisation being granted for activities of trade unions, or legitimate political activity, on the grounds of
“the interests of the economic well-being of the United Kingdom”,
while Amendment 35 addresses blacklisting.
I understand the concerns that noble Lords have raised about criminal conduct authorisation being used to target trade union organisations and their members or legitimate political activity. It is not the intention of the Bill to target legitimate and lawful activity, and I hope that the safeguards that I outlined have provided some comfort on this, but I will offer some further reassurance on this point. That an authorisation relates to the activities of a trade union is not in itself sufficient to establish that the authorisation is necessary on the grounds on which authorisations may be granted, including the economic well-being of the UK. I point noble Lords to paragraph 3.6 of the updated CHIS code of practice, which clearly sets this out. Also, Article 11 of the European Convention on Human Rights provides the right to freedom of assembly and association, and Section 6 of the Human Rights Act makes it unlawful for public authorities to act in a way which is incompatible with a convention right.
On the point made by the noble Lord, Lord Thomas of Gresford, on subjectivity, which was also alluded to by the noble Baroness, Lady Hamwee, we cannot anticipate every context, and therefore cannot prescribe each. Authorisations must be necessary and proportionate. In assessing proportionality, consideration must be given to whether the criminal conduct is part of efforts to prevent more serious criminality. The activity must be necessary for one of the statutory purposes outlined, proportionate to the activity it seeks to prevent and compliant with the Human Rights Act. I hope that that provides reassurance to noble Lords on their concerns around targeting legitimate and lawful activity by trade unions and their members, and the illegal practice of blacklisting.
We cannot rule out a situation in which a member of a trade union or someone involved in political protests is separately engaged in illicit activities that provide legitimate grounds for investigation, as was pointed out by the noble Lord, Lord Paddick. For this reason, we cannot carve out specific groups or individuals from the statutory grounds available for authorisations. The noble Lord made a point about a circle of colleagues, all with similar skin in the game in terms of deployment and authorisation, such as a drugs sergeant handling a CHIS who is going on to do undercover drugs work. Policing colleagues have confirmed that the case that he outlined would not happen, because the police have dedicated source units that handle all agents.
On Amendment 78, the intention of this Bill is to support public authorities to keep the public safe from the harms that criminals, terrorists and other adversaries seek to inflict. A criminal conduct authorisation may be granted only after very careful consideration as to whether it is both necessary and proportionate. The authorisation can be in relation only to a legitimate intelligence target; an individual or group would be under investigation only because of their activities and not the particular protected characteristics that they hold. If there were any evidence that this was not the case, I would expect the IPC to raise its concerns with the public authority. I hope that noble Lords recognise that we are limited on what can be disclosed publicly about the types of investigations that CHISs would be tasked to participate in to protect their identity and safety and not to jeopardise ongoing investigations. We will not be able to accept this amendment, but I both recognise and agree with the sentiment behind it.
I turn finally to Amendment 82. The Government recognise the significant concerns about the way in which undercover policing has operated in the past. For that reason, the Home Secretary established the inquiry in 2015: to get to the truth of those events and ensure that we learn lessons for the future. Amendment 82 from the noble Baroness, Lady Jones of Moulsecoomb, seeks to delay the enactment of this Bill until after the conclusion of the inquiry. I understand that this is some years off. It is clear from the timetable that the inquiry’s proceedings will last a long time, and the Government want to put the framework for the deployment of CHISs in criminal conduct beyond legal doubt. I hope that the noble Baroness understands that her amendment is neither practicable nor reasonable, at this point.
The Bill is without prejudice to the inquiry. The Government will carefully consider its conclusions and recommendations when they are published. In the meantime, the Home Office is an active participant in the inquiry and is following proceedings closely. The inquiry’s investigations are ongoing and we must be mindful not to say or do anything that might prejudice those proceedings.
Finally, I take this opportunity to reiterate that operational partners have publicly stated that it is never acceptable for an undercover operative to form an intimate sexual relationship with anyone who they are tasked to investigate or may encounter during their deployment. This conduct will never be authorised; nor must it ever be used as a tactic of a deployment. This is made clear in the code of ethics of the police service, as well as the updated law enforcement agencies’ authorised professional practice guidance for undercover operatives. With those words, I hope that the noble Lord is happy to withdraw his amendment.
My Lords, I have received one request to speak after the Minister, from the noble Lord, Lord Paddick.
My Lords, I am grateful to the Minister. I have just one question. She said that the scenario I suggested could not happen because police forces had dedicated source units. Can she point to where in the Bill or in the codes of practice it says that that has to be the case? If not, the Bill or the code of practice is defective.
The noble Lord will appreciate that not every Bill contains every minute detail of issues such as this, but I hope that, with my having made the statement on the Floor of the House, the noble Lord is satisfied that there cannot be conflict. However, I would be very happy to speak to him about this before Report.
Amendment 29 (to Amendment 28) withdrawn.