House of Lords
Wednesday 28 April 2021
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Rochester.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. 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. Oral Questions will now commence. I ask those asking supplementary questions to keep them to no longer than 30 seconds and confined to two points, and I ask that Ministers’ answers are brief.
Northern Ireland: Citizens’ Rights
My Lords, the United Kingdom is a family of nations and a union of people. The recognition and protection of rights are fundamental values of our union. That is reflected in the Government’s unwavering commitment to the Belfast/Good Friday agreement, of which guarantees of rights are an essential part. The Government will take every opportunity to strengthen Northern Ireland’s place within the UK and will continue to ensure that the rights of all Northern Ireland’s people are protected within it.
My Lords, surely, one fundamental right that all United Kingdom citizens should enjoy in a democracy is being able to elect those who make the laws for the economy. The protocol, introduced without one single person in Northern Ireland agreeing to it, has now placed Northern Ireland in the outhouse of the United Kingdom family, with a foreign jurisdiction making the law and a foreign court overseeing it. Does the Minister recognise that the constitutional position of that part of the United Kingdom has changed utterly with the loss of that fundamental right?
My Lords, it is fair to say that urgent progress is needed to restore confidence on the ground and to address the outstanding protocol issues. However, I remind the noble Baroness that, as she will know only too well, Article 2 of the protocol states:
“The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998”—
“Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination”.
My Lords, if there is equality of rights between the citizens of Northern Ireland and the rest of the UK, how is it that in GB at a funeral, even a royal funeral, only 30 people are allowed to attend, whereas in Belfast, apparently, a funeral for an IRA/Sinn Féin supporter can be attended by over 1,000 people?
I certainly do not want to be drawn into answering on that particular thing. I simply reiterate that the Government take their obligations in regard to the rights of all United Kingdom citizens incredibly seriously. The Government are committed to the Belfast/Good Friday agreement, and the protocol does not impact on the constitutional arrangements within the United Kingdom or the provisions in that agreement.
My Lords, does the Minister agree that any difference between the rights of citizens in Northern Ireland and those of the rest of us in the United Kingdom is one of the many results of the Brexit disaster, which Northern Ireland’s people voted against? Who does the Minister think is most to blame for that: Boris Johnson, Arlene Foster—or the noble Baroness who tabled this Question?
I can only reiterate that we are urgently looking at addressing the issues on the ground. As the noble Lord will know only too well, much work is being done by my noble friend Lord Frost and Mr Sefcovic to address the outstanding issues to ensure that rights are equal between the citizens of Northern Ireland and those in the rest of the United Kingdom.
My Lords, the Belfast/Good Friday agreement enshrined many rights for the people of Northern Ireland but, following Brexit, there are fears that some of those rights are being diminished. Does the Minister agree that the British-Irish Council would be a useful forum to discuss these concerns? Can he confirm when he expects the next meeting of the council to take place?
I cannot confirm the actual date. I was drawn in on the BIIGC the other day and I understand the sentiments expressed by the noble Baroness, but I cannot give any further information. She will know that that we are aware of its potential operation.
Does my noble friend agree that a clear majority of people in Northern Ireland continues freely and legitimately to support the union on the basis of their
“cherished position of equal citizenship in the United Kingdom”?
Can he assure the House that this Government will always defend and uphold that fundamental position of equal citizenship for all the people of Northern Ireland against any threat, including in relation to the EU’s implementation of the protocol?
I believe my noble friend makes the right emphasis. The Government firmly believe that UK nationality law is consistent with their Belfast agreement obligations and therefore with equal citizenship within the UK. The Government have always stressed the importance of the union and Northern Ireland’s place within it. We share, as my noble friend will know, so many cultural, social and economic ties that make for greater prosperity and for security.
My Lords, there is much unease in Northern Ireland at the moment and the marching season will soon be upon us. Does the Minister agree that dialogue and intervention are now vital? Will he convey to the Prime Minister and the Secretary of State for Northern Ireland that their personal involvement is now absolutely necessary to stop any drift towards potential instability in Northern Ireland?
I can certainly pass the message upwards, to answer the noble Lord’s question. I reassure him again that much work is going on, with intensive discussions between the co-chairs of the specialised committee, who have begun to clarify, work forward and address the outstanding issues. Some very good and positive momentum has been established. As I said earlier, these matters are urgent and must be addressed.
Given that the anomalous position of Northern Ireland, spelt out by the noble Baroness, Lady Hoey, is justified by the need to uphold the integrity of the European single market, can my noble friend explain why it is necessary to have barriers to goods coming from GB towards the European single market, to uphold its integrity, but no barriers are necessary to uphold the integrity of the United Kingdom market? Is its argument simply bogus or bureaucratic obsession, or are we letting our internal market be put at risk?
I think it fair to say to my noble friend that we are going over old ground because of the agreements that have been set out on the unfettered access that is in place for goods that move from Northern Ireland to Great Britain. As he will know, some necessary minimum checks are required for certain goods going from Great Britain to Northern Ireland.
My Lords, young people in Wales are very envious of the deal facilitated by the Irish Government, which enables young people from the North to maintain their full access to the huge benefits of the Erasmus+ programme. Does this not demonstrate that the best way for the people of Northern Ireland to retain links with the EU, for which they voted, is to work closely with Dublin wherever possible?
As the noble Lord is alluding to, the Irish Government have separately offered higher education students in Northern Ireland the chance to take part in Erasmus+. Institutions taking part will remain eligible for the Turing scheme, which, as he may know, will enable 35,000 students in higher education, further education and schools across the United Kingdom to go on overseas placements.
My Lords, I spent the best part of a year of my life defending the position of the citizens of Northern Ireland, from whatever community, as equal citizens of the United Kingdom. The current situation is not acceptable. Will my noble friend go back to the Government and say that my noble friend Lord Frost, or whomsoever, must negotiate to amend, scrap or even ignore the protocol?
I do not agree with my noble friend on that point. The point is that the protocol has to work. As I said earlier, urgent progress is being made to address the outstanding concerns. The House will know that my noble friend Lord Frost will appear at the Dispatch Box tomorrow and I am sure that my noble friend will wish to put certain questions to him.
My Lords, is this not a classic case, as far as the protocol’s application in Northern Ireland is concerned, of taxation without representation? How sustainable is it in the western developed world, in a modern democracy, for people to have laws imposed on them without any say or vote?
The noble Lord will know better than I do that in terms of consent, ultimately the protocol’s fate depends on the political representatives of the people of Northern Ireland. The Assembly will next vote on the protocol in 2024, as agreed in the protocol itself.
My Lords, the effect of the Northern Ireland Protocol is that any amendment made by the EU to an EU law currently in forced in Northern Ireland has direct effect, with no approval needed by the UK Parliament or by the Northern Ireland Assembly, and will be immediately justiciable in the relevant court in the UK. Will my noble friend consider again if this situation of the people of Northern Ireland is compatible with Article 3 of the first Protocol to the European Convention on Human Rights, which grants an unabridgeable right to free, secret and regular elections to a relevant legislature?
My noble friend is right that any solution in Northern Ireland should have democratic support, which ties in slightly to the previous question from the noble Lord, Lord Dodds. That is why Northern Ireland’s elected representatives have a democratic choice. The Assembly can extend or end Northern Ireland’s alignment with EU law with the first consent decision, as I said earlier, at the end of 2024. This process will repeat every four or eight years, depending on whether consent, if given, is given on a simple majority or a cross-community basis.
Zimbabwe: Human Rights
My Lords, we remain concerned by the current situation in Zimbabwe, particularly human rights violations. We have been clear that the Government of Zimbabwe must meet their international and domestic obligations by respecting the rule of law, safeguarding human rights and committing to genuine political and economic reform for the benefit of all Zimbabweans. On 1 February, the UK announced sanctions to hold to account individuals responsible for the most egregious human rights violations in Zimbabwe.
My Lords, in the light of the deepening economic and political crisis, which has had direct impact on local communities throughout Zimbabwe, will the Minister go a little further and outline in clear, concrete terms what recent assessment the UK Government have made of the treatment of political prisoners and critics of the Government in Zimbabwe, and what action the Government will take, working with the international community, to address the problems in that country?
My Lords, we remain seriously concerned by the harsh tactics of the Government of Zimbabwe and their treatment of their critics. The Minister for Africa and our embassy in Harare regularly call out the Government and urge them to live up to their own constitution and uphold basic human rights. We also continue to work with our international partners, including South Africa, to examine what more can be done to put pressure on the regime.
My Lords, Zimbabwe has recently been reported as pursuing its application to rejoin the Commonwealth. Given that belonging to the Commonwealth involves a commitment to free and fair elections, protection of human rights, freedom of expression and equality of opportunity, is it not the case that the recent arrest and treatment of women activists seem to fall far short of Commonwealth standards?
The decision on whether Zimbabwe can rejoin the Commonwealth is one for all Commonwealth members. However, we are absolutely clear that the UK would support Zimbabwe’s readmission only if it met the admission requirements and complied with the values and principles set out in the Commonwealth charter. Zimbabwe’s recent actions, including those that the noble Baroness mentioned, do not live up to those standards.
My Lords, my diocese has a close and long-standing friendship with the diocese of Harare. When I asked friends there about this subject, they spoke of those human rights activists and others who allege mistreatment when taken into custody, and then nothing is done to address their allegations. Is the Minister able to suggest how we might better underline and, indeed, demonstrate that allowing dissent is good for the health of a society, to be encouraged rather than met with suppression or even violence? This is something that, of course, has a wider application than just to Zimbabwe.
The right reverend Prelate is absolutely to make the point about lawful dissent in a democracy. We are aware of reports of mistreatment of activists in Zimbabwe. On 29 March, my honourable friend the Minister for Africa publicly called on the Zimbabwean Government to end the harassment of political opponents, and we have been clear that Zimbabwe should guarantee the right to freedom of speech which is enshrined in its own constitution.
My Lords, alongside justifiable concerns about its human rights record, bearing in mind some recent disturbing reports of forced labour in Zimbabwe in the Marange diamond fields, does my noble friend think that the Government should follow the lead of the United States of America in prohibiting any imports from Zimbabwe where evidence of forced labour has been established?
We are aware of the reports of forced labour in diamond mines and the tobacco industry and continue to follow closely concerns over the involvement of children, particularly in mining. We currently support efforts by Zimbabwean civil society organisations to try to ensure that communities benefit from, and are not harmed by, mining activities.
My Lords, there are disturbing reports from Zimbabwe that food aid intended for the poor and needy is commandeered by government agents, while individuals subject to the UK sanctions which the Minister mentioned are unaffected by these measures. Opposition to the Government, from the MDC and others, continues to be violently suppressed; party offices have been broken into and membership records stolen, allowing homes to be visited at night and members and their families severely beaten. Beyond the sanctions programme, what progress have the Government made in discussions with neighbouring Commonwealth countries, including South Africa, to avoid Zimbabwe falling back into the worst traits of the Mugabe regime?
We provide aid to Zimbabwe to support the people of that country. We stand by them and our sanctions send a powerful message that we will not shy away from holding to account those who commit human rights abuses. Sanctions are just one part of our approach which, working with our international partners, as the noble Lord said, is aimed at encouraging the Government of Zimbabwe to fulfil its own commitments to fundamental political and economic reform.
My Lords, what representations have the Government made to the Government of Zimbabwe on the detention and treatment of female parliamentarians, specifically in relation to the reports of sexual violence against them in custody? What specific work are we doing in relation to sexual violence in conflict, which is something that the UK leads on, as my noble friend is aware?
As I said, we are concerned by the unacceptable pattern of arrests and intimidation of opposition and civil society figures, particularly women. The recent cases of MDC activists and an MP, Joanah Mamombe, are particularly pertinent in that regard. On 29 March, my noble friend the Minister for Africa publicly called on the Zimbabwean Government to end the harassment of political opponents—so we are taking action, as my noble friend suggested.
My Lords, the proposed patriotic Bill being initiated by the Zimbabwe Government would effectively make it illegal to criticise President Mnangagwa and forbid any member of the opposition from speaking to any foreign body or politician. With Zimbabwe currently applying to rejoin the Commonwealth, what measures can we, and other members of the Commonwealth, take to resist this draconian measure?
We are aware of the proposed Bill that the noble Lord mentioned and have been clear with the Zimbabwean Government that any legislation which restricts democratic principles or freedom of speech is not in line with Zimbabwe’s own constitution, nor with the promises of political reform which President Mnangagwa made when he came to power. As I have said, readmission to the Commonwealth is a matter for all Commonwealth member states, but we have been clear that Zimbabwe’s actions do not live up to the standards set out in the charter.
My Lords, I return to the women activists, to which the noble Baroness, Lady Warsi, drew particular attention. My late and respected noble friend Lord Judd put down a Written Question on the case of Joanah Mamombe, which the Minister mentioned. My noble friend Lord Hain also wrote to the Foreign Secretary about this case yesterday. She has now been charged with faking her own abduction. She is being treated appallingly in prison and she has a severe medical condition. The Minister mentioned specific sanctions; can he assure the House that these will be extended and will involve all the people who are committing these terrible human rights abuses, so that we hold them properly to account?
As I said, we remain concerned about the failure to address the allegations of abduction and abuse made by the three MDC Alliance members which the noble Lord raised. We continue to call for investigations into these allegations and we have regularly raised our concerns about them with the Government of Zimbabwe. I am sure that the noble Lord will understand that I cannot speculate on future sanctions, as doing so would reduce the impact of potential designations.
Does the Minister agree that the continued detention of MDC MP Joanah Mamombe and activist Cecilia Chimbiri, whose bail hearing judgment was deferred in Harare just this morning until Friday, is just a further example of the politicisation of the courts, the violation of human rights and the closing down of free expression in Zimbabwe? This includes the patriotic Bill. Will the Government summon the Zimbabwe ambassador and impress on him that, until freedom of expression, the rule of law and upholding of human rights are restored, there is no prospect of the normalisation of relations between our two countries?
I know that the noble Lord takes a keen interest in Zimbabwe, as co-chairman of the All-Party Group for Zimbabwe, and that he has written to my honourable friend on this case. As I said, we are concerned at the failure to address these concerning allegations and we continue to call for an investigation into them. We continue to raise our concerns directly with the Government of Zimbabwe and in public, as my honourable friend the Minister for Africa has done.
Care Home Occupancy Rate
My Lords, occupancy levels are hard to measure precisely. However, data from providers indicate that occupancy rates in care homes for older people have been adversely affected by the pandemic. We have made over £6 billion available, through grants that are not ring-fenced, to help councils tackle the impact of Covid-19 on services, including adult social care. We have made it clear to councils that this funding can be used to help offset the impact of temporary reductions in occupancy.
My Lords, I thank the Minister for that Answer. The Alzheimer’s Society is reporting that because of care home deaths and restrictions on visits during the pandemic, some families have had to defer placing their loved ones into care homes. Given this, how will the Government support the sector to ensure that occupancy rates rise again, other than by what he just said? How will this be monitored, given that I recently received an Answer to a Written Question that said the occupancy rates in care homes were not held by central government?
My Lords, I note the intelligence from the Alzheimer’s Society, but I emphasise it is not the responsibility of central government to raise the occupancy rates of care homes. This area is supplied mainly by the private market. Players may choose to leave the market if occupancy rates fall, and local councils have been provided with more than £6 billion that should be drawn on to support the sector.
My Lords, a number of unpaid at-home carers have told me that even though their relatives in dire need of care home residency have been offered places, they have turned them down because of heavily restricted family visits, the invidious 14-day quarantine rule and restrictions even on taking doubly vaccinated relatives for a walk in the spring sunshine. Will the Minister acknowledge that moving to a care home can be distressing, and depriving new residents of family support when settling in will inevitably impact on occupancy? When families liken taking up occupancy to sending relatives to prison, surely it is time to review guidance using today’s data, rather than as though Covid were still rampant and vaccines ineffective.
The noble Baroness makes a perfectly fair point. Moving into a care home is a difficult and potentially stressful experience. Moving in at a time of Covid, when, as the noble Baroness rightly points out, there are heavy restrictions, is very difficult. Those restrictions are in place to save lives. They are under constant review, and when the infection rates warrant leaving them behind, we will make that decision.
Will my noble friend join me in commending the excellent work of care staff during the appalling problems that have arisen over the past year during the pandemic? Will the Government urgently investigate the financial stability and debt levels of care home operators, which, too frequently, seem to have no controls on the amount of leverage, excessive debts or lack of equity in the sector?
My Lords, I absolutely join my noble friend in commending the incredible contribution of care home staff, domiciliary staff, unpaid care workers and all those who support loved ones, neighbours and residents. The Covid pandemic has shone a light on the selfless contribution of those people. The service continuity and care market review keeps a careful eye on the financial stability of the market. We are in constant contact with some of the biggest providers. The scene we see at the moment is not one that causes a huge amount of concern, but we keep close to the market.
My Lords, I declare my interests as outlined in the register in relation to the Outcomes First Group quality committee. Can the Minister explain how he will ensure that the Government work with the Care Quality Commission to see how we can deliver a strategy that promotes care home financial stability so that there are sufficient beds available this winter to enable the NHS to deliver suitable care for those on waiting lists, without older people having to go into hospital unnecessarily?
The noble Baroness makes a good point. There is always a tension in having enough beds in care so that those who need somewhere to be supported are not sent to hospital, thereby occupying valuable beds that should be used for elective surgery or other more complex and important procedures. We are working closely with the CQC to ensure that the right strategies are in place to deal with that.
The Minister knows we have continually raised our strong concerns about the financial stability of care homes. Now, the possibility of increased closures due to falling occupancy rates and the extra costs stemming from the pandemic have exacerbated the precarious situation the sector is in. With the downward trend in the registration of new care homes and the upward trend in closures, is not the resulting net reduction in the number of beds available deeply worrying at a time of known growth in the need for social care provision for older people? Can the Minister reassure the House that in the Queen’s Speech we will, at last, find out about the Prime Minister’s plans for how he is going to fix all this and what is going to be done to deliver long-term funding and sustainability for the social care sector?
My Lords, I have heard the noble Baroness and others express their concerns about the sector, but I reassure noble Lords that it is not in overall long-term decline. In fact, the number of care home beds has remained broadly constant over the last 10 years, with 460,000 in 2010 and 458,000 in April 2021. But I recognise the noble Baroness’s question, and it is right that we are going to bring forward recommendations for social care reform by the end of the year.
My Lords, a recent National Audit Office report highlighted how the Covid pandemic has adversely impacted the financial viability of care home providers, with occupancy rates falling significantly, as we have heard. Given this, could the Minister say what steps the Government are taking to ensure that the much-needed financial support he has referred to, to stabilise this highly fragmented and fragile sector, gets to the front line and that there is equal treatment for all care home services, irrespective of whether they are local authority-funded or NHS-funded or whether residents are older people, younger adults of privately paying residents?
My Lords, we have written to local authorities to make it clear what the funding is there for and to make recommendations on the sort of financial support that may be needed to bridge this moment when occupancy levels have been reduced because of concerned families taking their loved ones out of care homes. That funding is in place, and it is up to local authorities to make their decisions on the matter.
My Lords, what has the impact of the pandemic been on those who choose to receive care in their own homes? With the rise of closures of private care homes and fewer public sector beds being available, have we got the balance in provision right?
My Lords, there is an important area of support for those who decide to have care at home. During the pandemic, we did an enormous amount to ensure that there were infection-safe procedures and to reduce the use of itinerant care workers in order to provide safety for those who were at home. Support for those who choose to be cared for at home should be increased. I do not recognise the idea that the number of beds in local authority care has reduced so far, but I am happy to look into the matter.
NHS England and Public Health England’s contingency planning for pandemics was strengthened after the SARS epidemic. Will the Minister put in the Library the minutes and documents that show what the NHS policy was in January 2020 on the transfer of people between care homes and hospitals and between hospitals and care homes during a pandemic?
Given the reluctance, post pandemic, to going into care homes, one would expect more vulnerable people to require support at home, and this is delivered in part using local authority funding. What advice is being given to the sector by Her Majesty’s Government, and what measures are being taken to ensure that this need can be met?
My Lords, as I mentioned earlier, DHSE has written to local authorities explaining how we recommend some of the unring-fenced £6 billion could be spent to support both those in social care residential situations and those at home. That is the correct mechanic for guiding the spending of the money, but it is the responsibility of local authorities, not of central government, to provide the support that the noble Baroness describes.
Northern Ireland: Flight Passengers and Covid-19
To ask Her Majesty’s Government what steps they will take to ensure that the necessary information about flight passengers who are crossing the border into Northern Ireland from outside the United Kingdom is shared with the Northern Ireland health authorities in order to prevent the spread of COVID-19.
My Lords, coronavirus restrictions, including the arrival of international travellers, are led by the Northern Ireland Executive. I am extremely grateful to the Northern Ireland Minister of Health who is working closely with his counterpart in the Irish Government to facilitate the sharing of data for international travellers travelling across the border. The Government continue to support ongoing co-ordination between the UK Government, the Northern Ireland Executive and the Irish Government as part of our collective ambition to drive the virus down.
My Lords, I am grateful to the Minister for his reply. The common travel area is a very positive feature of life between the United Kingdom and the Irish Republic and has been so for many decades, predating our EU membership. Yet there remain serious problems with the Irish Republic carrying out the necessary urgent work needed to allow the sharing of information from Irish passenger locator forms for those transiting to Northern Ireland and to the rest of the United Kingdom. This delay is increasing the risk of the spread of Covid, especially variants coming into Northern Ireland and the UK. The Northern Ireland Health Minister that the noble Lord referred to expressed serious concerns as late as last week, in evidence to the Northern Ireland Assembly, about the dragging of feet. It has been flagged for many months. Will the Minister please raise this at the highest levels of the UK Government and ensure that action is taken to close this problem off?
My Lords, I recognise the challenge to which the noble Lord refers. It is, of course, a fact that coronavirus restrictions in Northern Ireland are determined by the Northern Ireland Executive as part of the devolution settlement, as I am sure he would recognise. The Secretary of State for Northern Ireland has raised the issue with the Irish Foreign Minister on a number of occasions to press for a resolution, and while the UK Government continue to work closely with the Executive to drive this virus down, we respect that healthcare is a devolved matter. This is a complex issue to resolve, but we are extremely grateful to all parties who are working hard to resolve it.
My Lords, the truth is that the Northern Ireland Health Minister, Robin Swann, found out that there were cases of the Indian variant of the virus in the Republic of Ireland only from media reports. This is deeply concerning, as was raised by the noble Lord, Lord Dodds. Northern Ireland is part of the UK, so we have the same responsibilities to our fellow citizens in Northern Ireland and therefore it is very concerning. Is the Minister confident that, going forward, mutually beneficial data-sharing processes are in place to ensure that new variants are controlled and do not become seeded and spread in any of our communities?
My Lords, I am enormously grateful to the Irish Government for the very large amount of informal clinical data-sharing that goes on. CMOs of both countries exchange data on such matters as VOCs the whole time, and that kind of day-to-day clinical exchange of on-the-ground information works extremely well. The specific question of travel information is a lacuna that needs to be closed, I recognise that it needs to be shut, a lot of work is going on to shut it and I am grateful to those involved.
My Lords, I think noble Lords understand that there have to be special arrangements, and the common travel area seems to work well for most things. The Minister knows that I have asked him repeatedly about the joining up of data of international travellers between whichever border they arrive at, the NHS and the testing system, especially the private testing system, otherwise any self-isolation system will fail. Can the Minister say whether this gap that there was before has now been remedied, so that every part of the NHS can pick up data information from borders, and how it works across all four UK countries? Will he explain a bit more about the CTA arrangements between Westminster, Stormont and the Republic?
I reassure the noble Baroness that the data flows between borders, Test and Trace, NHS and JBC work extremely well. I was in the Covid Gold meeting earlier today and we had presentations that captured all the data flows from all those places, and we have extremely good see-through on VOCs, infection rates and bed occupancy. The progress we have made on that area is astounding. Where we have a lacuna is on the transfer of data from Irish travellers to Northern Ireland, and that is something we are working to close.
My Lords, I share the concerns expressed by the noble Lord, Lord Dodds, and others about data sharing between Northern Ireland and the Republic of Ireland. Will the Health Minister use this opportunity to praise the vaccination programme in Northern Ireland and all those who have made it so successful, from the Health Minister, through the GP surgeries to the many volunteers who have made it so successful? Does this success in Northern Ireland not show how important the union is, and also how important it was that we left the European Union and did not have its regulations on vaccination, as the Republic of Ireland has had?
I am pleased to tell the noble Baroness that, as of 27 April, 1.2 million vaccinations have been administered in Northern Ireland, of which 919,000 were first doses and 356,000 were second doses. That is an astonishing figure. I am extremely proud of the figure and very grateful to all those concerned.
My Lords, I am pleased that the final Question in Question Time today gives us the opportunity to say something about the importance of co-operation between the Irish Republic and the United Kingdom. It is worrying that there is this lacuna; I wonder whether the expertise of the CAA is being brought to bear on it. Are there any problems because we have not yet got digital adequacy with the EU? Is that part of the lacuna? On the broader side, this Question and the earlier Question show that there is a need for a rapid response unit to deal with the genuine problems in the relationship between the Republic and Northern Ireland, and the inevitable consequences of the Brexit decision, which was facilitated by the DUP.
My Lords, I reassure the noble Lord that the issue is caused by no lack of friendship or spirit of collaboration between the two Administrations. The CAA and all the relevant authorities have a huge amount of commitment to resolving this. There are legal issues that require Acts of Parliament in Ireland and in Britain in order to resolve this; these are quite substantial legal commitments that need to be timetabled and conducted through Parliament, and that is what is holding things up. I am very grateful to all those who are trying to resolve the issue.
Arrangement of Business
My Lords, I thought it might be helpful to the House if I made a short statement about the arrangement of business today. First, on the Fire Safety Bill, noble Lords will know that the House returned the Bill to the Commons again last night. We fully expect it to send the Bill back to us today for further consideration. If it does, we will consider that message tonight after the proceedings on the Overseas Operations (Service Personnel and Veterans) Bill, as outlined in today’s list.
The Bill is unlikely to arrive back before 2 pm and the window for noble Lords to table Motions or amendments is expected to be open between 3 pm and 4 pm. I urge those noble Lords with an interest in the Bill to keep an eye on the annunciator for any updates and to consult the Legislation Office at the earliest opportunity should they need further information.
Secondly, on the National Security and Investment Bill, we are due to consider a Commons Reason at a convenient point after 1.30 pm. If, after that debate, there is still no agreement on the one remaining issue, the Bill will return to the Commons and it will consider it again today. If the Bill is then returned to us, we will consider that message tonight. I will need to keep the House updated on timings, but any further debate on the Bill in this House will not start before 9 pm.
Private Notice Question
Iran’s decision to sentence Nazanin Zaghari-Ratcliffe on further charges is totally inhumane and wholly unjustified. Her Majesty’s Government remain committed to doing all we can to secure Mrs Zaghari-Ratcliffe’s return home. Iran has deliberately put her through a cruel and inhumane ordeal. We continue to call on Iran in the strongest possible terms to end her suffering and allow her to return home to be reunited with her daughter Gabriella and husband Richard.
My Lords, our thoughts must first go to Nazanin, her daughter, her husband and the rest of the family. To be given a further one-year sentence on a trumped-up charge of promoting propaganda against the system and to be found guilty after a sham trial is truly appalling news.
Yesterday the Minister, James Cleverly, said that we are co-operating
“with our international partners on a whole range of issues with regard to Iran, including the United States of America and the E3”.—[Official Report, Commons, 27/4/21; col. 239.]
Can the Minister tell us what further actions the United Kingdom will consider with our allies to get Nazanin home to the United Kingdom and the other dual nationals in detention released?
The noble Lord is right: our thoughts first and foremost go out to Mrs Zaghari-Ratcliffe and her family for this latest development. We have been very clear that Iran’s decision is totally inhumane and wholly unjustified. He is right that my right honourable friend the Minister, James Cleverly, yesterday outlined some of the action we are taking to hold Iran to account for its poor human rights record—for instance, strongly supporting the renewal mandate of the UN special rapporteur on the situation of human rights in Iran at the Human Rights Council in March this year and joining the Canadian initiative against arbitrary detention in February. However, this is on Iran: it can do the right thing and return Mrs Zaghari-Ratcliffe and other dual nationals home to be reunited with their families.
My Lords, I too express my sympathy to Nazanin and her family. Two more European dual nationals are being tried today—one German, one British. The German authorities have said that they will seek to attend the mock trial in the revolutionary courts. Is the United Kingdom doing the same for our citizen? What came across yesterday in the Commons was words but not actions.
I cannot speak for the actions of other Governments and the activity they are undertaking. We have requested access to the hearings, as we have for previous hearings, but Iran routinely denies us access to them because it does not recognise Mrs Zaghari-Ratcliffe as a dual national. We will continue to seek to attend any future hearings. We have been consistently clear that she must not be returned to prison; she should be returned to the United Kingdom to be reunited with her family.
My Lords, this is a very difficult case, but I wonder about our approach to it. The Minister will recall the case of the British hostages in Lebanon held by groups connected to the Iranians. As it happens, I dealt with those cases, both in London and later in Damascus. Our strategy at that time was to refuse to negotiate and to keep the public profile down so as not to add to the perceived value of the hostages. That approach eventually worked. I realise that the conditions are not the same, but will the Minister now review the present case in light of this previous experience?
The noble Lord speaks with authority as a former ambassador to Syria. We do not accept dual British nationals being used as diplomatic leverage. Iran is responsible for putting Mrs Zaghari-Ratcliffe and other dual nationals, such as Anoosheh Ashoori and Morad Tahbaz, through this intolerable ordeal, and it remains on Iran to release them to allow them to be reunited with their families. We have called on the Iranian Government to release all those dual nationals who have been arbitrarily detained, and we remain committed to ensuring that we do what we can to secure their release.
My Lords, the ordeals of Nazanin Zaghari-Ratcliffe go from bad to worse. These Benches assure her and her family of our continued prayers. As many have made clear, including in the other place powerfully yesterday, she is caught up in political machinations not of her own making. As well as urging Her Majesty’s Government to do everything possible to deal with outstanding issues which may be being used to justify her continued punishment, does the Minister think that the engagement of religious groups here—Muslim and Christian—might offer any way forward, or would that be counterproductive?
I am sure that the prayers of many people are with those of the right reverend Prelate about Mrs Zaghari-Ratcliffe and her situation. My right honourable friend the Foreign Secretary has made clear that this is a totally inhumane and wholly unjustified decision. We are in contact with a range of international partners who share our deep concerns about the ongoing detention of British dual nationals, religious groups and others, but it remains in Iran’s gift to do the right thing and allow them to come home and be reunited with their families.
My Lords, over five years the Government have not secured the release of Nazanin Zaghari-Ratcliffe. This can be described only as a diplomatic failure, leading to yet another jail sentence by a cruel and inhumane Iranian judicial system. Can the House be given a clear and complete explanation of why the Government have not found a way of paying off the UK’s debt for undelivered military equipment to Iran, which could well secure the release of this innocent victim?
My Lords, it is unhelpful to connect wider bilateral issues with the arbitrary detention of people in Iran. It remains in Iran’s gift to do the right thing and return them home. The whole of Her Majesty’s Government, from the Prime Minister down, have been engaged on this. The Prime Minister has raised this directly with President Rouhani, most recently on 10 March, and the Foreign Secretary last did so with his counterpart, Foreign Minister Zarif, on 3 April. The action we have taken so far, such as granting diplomatic status to Mrs Zaghari-Ratcliffe, has helped in previous stages, but we continue to do all we can to try to secure her return home to the United Kingdom.
My Lords, the people responsible for Nazanin Zaghari-Ratcliffe’s incarceration are clearly this brutal dictatorship, which treats women appallingly, kidnaps innocent British citizens, persecutes gay people, executes dissidents, supports terrorists across the Middle East, and threatens to wipe Israel—the region’s only democracy—off the planet. It is clearly impossible to trust this brutal and corrupt regime. We must do everything possible to prevent it developing nuclear weapons. Western democracies should impose much tougher sanctions on the leadership, and the revolutionary guard which kidnapped this poor woman should be proscribed.
My Lords, we have long been clear about our concerns over Iran’s continued destabilising activity throughout the region, including its political, financial and military support to a number of militant and proscribed groups. The noble Lord raised points about nuclear; the UK remains committed to making the Iran nuclear deal a success, and Iran must stop all its nuclear activity which breaches the terms of the JCPOA and come back into compliance. On sanctions, we take a robust stance against Iranian human rights violations, and we have already sanctioned 82 individuals and one entity.
My Lords, is it not the harsh truth that we have been on the back foot since the clumsy and inexcusable intervention by the Prime Minister? There is a logjam here, and it has to be broken if we are to preserve the health of the prisoners. If that means paying the disputed money, so be it.
My Lords, the UK Government from the Prime Minister down are committed to doing everything we can for Mrs Zaghari-Ratcliffe and her family, and we are determined to see her reunited with her family in the UK. We raise her case, and those of other British dual nationals, with the Iranian Government at every opportunity, and continue to call for their immediate and permanent release. As I have said, we do not think it helpful to conflate this with other bilateral issues.
My Lords, following on from the Minister’s answer to the noble Baroness, Lady Northover, can he tell me why the German Government are apparently being treated differently—better treated, in terms of access to trials for dual nationals—than the UK Government?
As I have said, I cannot speak for the experience of the German Government; I can only be clear that at every opportunity we press for access to the judicial hearings, but the Iranian Government do not grant us that access, because they do not recognise Mrs Zaghari-Ratcliffe as a dual national.
My Lords, is there not a real risk here that we absolve the Iranian regime of their full responsibility for this fiasco? Does not the appalling and obvious way in which Iran is manipulating its judicial system to torment Mrs Zaghari-Ratcliffe and extort money from the British Government underline the fact that the word of this terror-exporting regime simply cannot be trusted on a whole host of other matters, including, of course, their misuse of nuclear power?
The noble Lord is right: the responsibility for this lies squarely with the Iranian Government. It is on them. They could do the right thing and release Mrs Zaghari-Ratcliffe and allow her to come home and be reunited with her family. We continue to call on Iran in the strongest possible terms to end her suffering and allow her to return home.
My Lords, all supplementary questions have been asked.
Highgate Cemetery Bill
Motion to Agree
That the Commons message of 26 April be now considered; and that the promoters of the Highgate Cemetery Bill which was originally introduced in this House on 22 January 2020 should have leave to suspend any further proceedings on the bill in order to proceed with it, if they think fit, in the next session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of bills).
Monken Hadley Common Bill
Motion to Agree
Whiplash Injury Regulations 2021
Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021
International Accounting Standards (Delegation of Functions) (EU Exit) Regulations 2021
Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021
Money Laundering and Terrorist Financing (Amendment) (High-Risk Countries) Regulations 2021
Motions to Approve
That the draft Regulations and Order laid before the House on 1 and 25 February and 17, 18 and 25 March be approved.
Relevant documents: 46th, 49th and 51st Reports from the Secondary Legislation Scrutiny Committee (special attention drawn to the first instrument). Considered in Grand Committee on 26 and 27 April.
Prisons (Substance Testing) Bill
My Lords, in moving this motion I wish to make a few brief comments. First of all, I pay tribute to my right honourable friend Dame Cheryl Gillan, who introduced this Bill in the other place and, sadly, passed away earlier this month. Dame Cheryl had an exemplary political career, and established friendships across the political divide. She was a persistent champion of a number of truly important causes. She successfully brought the Autism Act 2009 into law, via a Private Member’s Bill. It is an honour to move the Prisons (Substance Testing) Bill one step closer to reaching the statute book. We hope that it will stand as further testimony to Dame Cheryl’s contributions to society and Parliament. I am grateful to Richard Holden, who brought this Bill forward on her behalf in the other place when she was unable to attend Parliament. I also thank colleagues across the House who participated in the Bill’s progress, both for their interest and for their contributions. I also pay tribute to the Parliamentary Under-Secretary of State, the noble Lord, Lord Wolfson of Tredegar, for his support through the Bill’s passage, and also the officials at the Ministry of Justice for their help. I beg to move.
Botulinum Toxin and Cosmetic Fillers (Children) Bill
My Lords, in moving this motion I briefly pay tribute to my honourable friend Laura Trott MP, who steered this Bill with such passion through the other place, aided by all the brave and persistent campaigners who have worked so hard. As we said at Second Reading, a huge amount of spadework was needed to bring the Bill to this point—not least by my noble friend Lord Lansley, who I am delighted to say is sitting beside me today. I also pay tribute to my noble friend the Minister, to the Bill team, and to noble Lords across the House on all Benches, who were incredibly supportive. It has been a real honour to bring this Bill to this stage.
Education (Guidance about Costs of School Uniforms) Bill
My Lords, I put on record my thanks to my honourable friend the Member for Weaver Vale, Mike Amesbury, for introducing and skilfully piloting the Bill through the other place. I thank all noble Lords from across the House who gave it such strong support, regardless of their views on the merits of school uniform or on the level of parliamentary scrutiny of the draft statutory guidance. My thanks go to Ministers in the Department for Education, Nick Gibb and the noble Baroness, Lady Berridge, for their support and assistance throughout the Bill’s passage, and to Ben Burgess of the Government Whips Office, who has been unfailingly helpful to this Private Member’s Bill novice. I also thank the Children’s Society, especially Hannah Small. It has worked hard for the Bill to become law. In doing so, it has been spurred on by the children and young people who sat on the society’s Children’s Commission on Poverty, and subsequently by the children and parents with whom they work. I pay tribute to them all.
It has been a privilege to sponsor the Bill through your Lordships’ House. Just the other day I received a report on school uniform costs from the Covid Realities research project. It quoted a lone mother:
“It’s been nothing but worry. I’m anxious and financially broke, paying £310 for school uniform. When I only receive £556 a month.”
I hope that, thanks to this modest Bill, low-income parents will no longer have to suffer such anxiety over the cost of uniforms. I hope too, therefore, that the Bill will be implemented as quickly as is reasonable.
Animal Welfare (Sentencing) Bill
My Lords, before my noble friend Lord Randall of Uxbridge proceeds with the Bill, I will make a very brief statement about legislative consent. The Bill, which increases the maximum custodial penalty for the worst acts of animal cruelty, has enjoyed cross-party support in both Houses. It would bring both England and Wales into line with the existing sentencing regimes for animal cruelty offences in Scotland and Northern Ireland. Animal welfare is a devolved matter, meaning that the Bill is subject to the legislative consent process. The Welsh Government laid a legislative consent memorandum for the Bill before the Senedd in February, advising that they support the Bill applying to Wales.
The timing of the Senedd elections and the Queen’s Speech means that there is now insufficient time for the Senedd to consider a legislative consent Motion before the end of this Session of the UK Parliament. Letting the Bill fall at this very late stage would be a regrettable outcome for both England and Wales alike. Given the circumstances, and mindful of the support expressed for the Bill by both the Welsh Government and other parties in Wales, the UK Government have decided to maintain their support for the Bill, notwithstanding that the Senedd has yet to pass a consent Motion. In the event that the Bill receives Royal Assent tomorrow, as I would hope, the incoming Senedd would have time to provide its support for the Bill after the election period and before the Act comes into force. We believe that this represents a pragmatic solution that will deliver widely supported enhancements to welfare and protection of animals in England and Wales.
My Lords, first, I thank my noble friend Lord Gardiner of Kimble for his statement; I am sure that the Welsh Senedd will do the right thing, as this is extremely good for England and Wales. I am delighted and honoured that I was asked by my honourable friend Chris Loder in the other place to sponsor this important Bill’s passage through your Lordships’ House. I also pay tribute to a former Member of the Commons, Anna Turley, who first started this process—it seems rather a long time ago. I give great credit to Chris Loder for introducing the Bill and for successfully steering it with determination and skill through all its stages in the other place.
The Bill, as many know, has had a protracted passage through Parliament at a time of serious issues well outside the normal parliamentary experience, but it appears that we have come together and finally made it happen. As we know, it increases the maximum penalty for animal cruelty offences under the Animal Welfare Act 2006 from six months to up to five years’ imprisonment. It is strongly supported and overdue. The Second Reading debate showed that the Bill received unreserved support from all sides of the House. I am sure that all noble Lords will agree that it is most reassuring that there are indeed matters, such as improving protections for animals under our control, on which we can all unreservedly agree.
I congratulate the Government on their continued support for the Bill and on the persistence required to deliver their manifesto commitment to increase sentences for animal cruelty. I also take this opportunity to thank noble Lords for their considered and important contributions. I extend my thanks to those outside Parliament who have supported the Bill, long-standing and tireless advocates for animals and their welfare. They include many charities and other organisations, such as the League Against Cruel Sports, the RSPCA, Battersea Dogs & Cats Home, Cats Protection, Dogs Trust, Blue Cross and World Horse Welfare. I commend their effectiveness in campaigning for and supporting the Bill and the increased maximum penalties it will provide. Many members of the public write to us in droves and sign e-petitions each month concerning animal welfare issues—evidence that we are a nation of animal lovers. The public’s interest in discussions around protections for animals ensures that parliamentarians are kept abreast of emerging issues and can raise them with the Government, sometimes successfully.
Finally, I extend my thanks to all those hard-working civil servants in Defra, and indeed the Whips’ Offices, for getting us to this point, just before the curtain comes down on this parliamentary Session. I am sure that, given this Government’s commitment to strengthening animal welfare, we can look forward to more legislation in the coming months and years.
Arrangement of Business
I will call Members to speak in the order listed. As there is a counterproposition, any Member in the Chamber may speak, subject to the usual seating arrangements and the capacity of the Chamber. Any Member intending to do so should email the clerk or indicate when asked. Members not intending to speak should make room for Members who are. All speakers will be called by the Chair. Short questions of elucidation after the Minister’s response are discouraged. A Member wishing to ask such a question must email the clerk. Leave should be given to withdraw Motions.
When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice counted when the Question is put, they must make this clear when speaking on the group. Noble Lords following proceedings remotely but not speaking may submit their voice, Content or Not-content, to the collection of the voices by emailing the clerk during the debate. Members cannot vote by email; the way to vote will be via the remote voting system.
National Security and Investment Bill
11A: Because it is appropriate and sufficient for oversight and scrutiny of decisions made by the Secretary of State for BEIS to be conducted by their departmental select committee.
My Lords, with the leave of the House, I will speak also to Motion A1. I will, of course, address any further comments at the end of the debate.
It goes without saying that I am delighted to be back in the Chamber after a short respite while the other place has considered our amendments to this Bill. I am pleased to advise noble Lords that there was resounding support for all the amendments made by this House, with the mere exception of two. The other place has resolved against amendments which, in effect, would have introduced a reporting requirement to the Intelligence and Security Committee in relation to the NSI regime.
Amendments 11B and 11C in lieu, tabled by the noble Lord, Lord West, draw on his earlier amendments. They would require the Secretary of State to include in the annual report provided for in Clause 61 a summary of his decisions in respect of final notifications given and final orders made, varied or revoked, as well as a summary of any national security risk assessment provided by the security services in relation to those decisions. Where publication of any of that additional information would be contrary to the interests of national security, the Secretary of State may instead place that information in a confidential annexe provided to the ISC. The amendments before us would end those requirements should the memorandum of understanding that governs the remit of the ISC be amended to bring the Secretary of State’s activities under Clause 26 in scope of ISC scrutiny.
I merely echo the words of my colleague, the Minister for Small Business, Consumers and Labour Markets, on Monday, when he welcomed the “passionate and expert debate” this issue has seen in both Houses. In particular, I repeat the praise offered in this House for those who previously spoke in favour of this amendment. Rugby analogies aside, it is a particularly serious, knowledgeable and experienced group of Peers, and I of course acknowledge the weight and credibility that they undoubtedly bring to these issues.
However, the other place resolved by a significant majority of 106 to restore the Bill to its previous form in this regard. The elected Chamber has given this issue its due consideration, and a majority of 106 elected Members has made the position of the other place very clear. This includes four of the seven members of the ISC, who, similarly, sit in the other place voting with the Government, with only one Conservative Member in the entire House voting against.
I do not intend to try the patience of the House and repeat the arguments that we have heard many times before which the Government have already made on this issue, but I will address the specific changes in this amendment from the original which this House has previously considered.
The Government do not consider that the addition of an endpoint for the effective requirement on the Secretary of State to provide confidential information to the ISC makes the approach any more necessary or appropriate. It is our view that the BEIS Select Committee remains the most appropriate committee for scrutiny. It is capable, it is interested and it stands ready. The Secretary of State for BEIS has written to the chair of the BEIS Select Committee to confirm this, and this was acknowledged by the chair of the committee in the other place, also on Monday. The BEIS Select Committee will be ably supported by the Science and Technology Committee, where that is appropriate.
The Government hugely value the Intelligence and Security Committee, but we also hugely value the BEIS Select Committee and the clear and appropriate scrutiny that it provides. We do not need to conflate the two through amending this Bill, the memorandum of understanding or, indeed, anything else in this field.
The Government’s position, and that of the elected Chamber, is clear, and I can tell your Lordships that the Government have no plans to concede on this issue. I therefore ask that noble Lords respect the clear wishes of the other place and, while I am of course grateful for noble Lords’ insight and passion on this matter, I hope that this House does not insist on these amendments. Therefore, I beg to move.
Motion A1 (as an amendment to Motion A)
11B: Page 36, line 15, at end insert “, except for any confidential annex prepared under subsection (2B) while that subsection is in force”
11C Page 36, line 33, at end insert—
“(2A) Until the condition in subsection (2C) is met, each report must also provide, in respect of final notifications given, and final orders made, varied or revoked—
(a) a summary of the decision of the Secretary of State under section 26(1), and
(b) a summary provided by the Security Services of any national security risk assessment provided under section 26(3)(a)(ii) relating to each decision under section 26(1).
(2B) Until the condition in subsection (2C) is met, where the Secretary of State considers that publication of any information listed in subsection (2A) would be contrary to the interests of national security, those details may be excluded from publication and instead must be included in a confidential annex to the report provided to the Intelligence and Security Committee of Parliament on the same day that the rest of the report is laid before each House of Parliament.
(2C) Subsections (2A) and (2B) have effect only until a revised memorandum of understanding between the Prime Minister and the Intelligence and Security Committee of Parliament under section 2 of the Justice and security Act 2013 has been laid before Parliament which provides for oversight by the Intelligence and Security Committee of the activities of the Secretary of State under section 26 of this Act.””
My Lords, the question put back to this House is not whether the Government should take national security risks into account when considering investment but whether Parliament should have oversight of that process—that careful balancing of our national security against our prosperity. This House delivered a very clear message to the Government on Report that if the Bill is to provide the Secretary of State for BEIS with wide-ranging new powers, it must also provide for meaningful oversight of those powers. That meaningful oversight of high-level intelligence can be conducted only by the ISC, as the body which Parliament established for that express purpose.
I thought the strength of feeling in this House on the matter had been very clear, and, indeed, the rugby scrum to which the Minister alluded which I gathered in support had unbelievable knowledge and background in this whole area of intelligence, security and the ISC. It is therefore very disappointing that my amendment was rejected in the other place yesterday. I remain of the view that, without that amendment, the Bill does not provide for meaningful oversight by Parliament. Nevertheless, I have sought yet again to offer the Government an opportunity to see common sense on this and, therefore, rather than insisting on the original amendment, I have tabled this amendment in lieu. It requests the same substantive material—a summary of the decisions by the Secretary of State and a summary by the security services of any national security risk assessment in respect of final notifications given and final orders made, varied or revoked, which can be provided to the ISC in a confidential annexe—but it now provides that that material need not be provided if and when those activities are formally added to the memorandum of understanding, at which point ISC oversight is provided for through that route.
I have already set out why the ISC must have oversight and why it can only be the ISC, so I have no wish to try your Lordships’ patience by repeating those arguments, or indeed those made by noble Lords from across the House who spoke in support of my amendment. The substantive point has been made, and I have to say that the argument has been won—I know that from having talked to people in the other place.
I wish to examine more closely the assertions made more recently by the Government in the other place, as I would not wish any of them to muddy the water on this issue. The Government’s starting point was that the ISC can already scrutinise the information provided to the ISU by the security services. That is indeed the case—we can require the security services to provide us the information which they provide to the ISU on the national security risks—but that is missing the point. What the ISC must be able to scrutinise is the balancing of those security risks against the business elements. It is that crucial balancing which is at the heart of the Bill. There is little point in seeing what the national security risks are if you cannot see what decision has been reached regarding those risks. That is precisely why my amendment makes reference to the decision of the Secretary of State.
Moving on to that decision, the Government’s next argument is that the ISC cannot oversee decisions made by the Secretary of State for BEIS because BEIS is not listed in the ISC’s memorandum of understanding. That is indeed the case but again that is, I am afraid, missing the point, deliberately or otherwise. As I have already explained to noble Lords, the Government gave a commitment to Parliament that the ISC would, through its MoU, oversee all security and intelligence matters across all of government. The seven bodies currently listed on the MoU are those that were carrying out security and intelligence matters in 2013. That list of bodies should be kept and updated, as the Government told Parliament was their intention. It would be very simple to add something such as BEIS to the list.
With that argument dispatched, the Government move on to their next line of defence—that decisions by the Secretary of State for BEIS must be for the BEIS Committee to scrutinise, and that the ISC should not encroach on that remit. That is, I am afraid, a direct contradiction of the Government’s own MoU. The Government have already expressly said that the ISC’s scrutiny will not affect the wider scrutiny of departments such as, for example, the Home Office, FCDO and MoD by parliamentary committees. The same would be true for BEIS. If the decisions by the Secretary of State for Defence or the Home Secretary can be scrutinised by the ISC, why are the decisions by the Secretary of State for BEIS any different? I am curious as to what it is about BEIS that sets it apart and means that the ISC should not oversee it?
At this point, the Government resort to their final argument. I have to say here that I find it rather tenuous to argue that the ISC does not need to provide oversight because the BEIS Select Committee can do it. The Secretary of State for BEIS has written to the chair of the BEIS Select Committee talking about confidential briefings in a most reasonable manner. However, we need to examine what that does not say, which is, “The Government will hand over our top secret information to you, your committee and your staff for you to hold, scrutinise, take notes on, discuss, question us about and report on”. That is because the Government cannot do that. The words being used belie the practicalities of the Government’s own security procedures—unless, of course, the Minister is going to tell us that the Government are prepared to breach their own security procedures.
The proposals do not amount to meaningful scrutiny. I say this with the greatest respect to the BEIS Select Committee, whose chairman, in a most thoughtful and measured speech in the other place yesterday, supported the ISC’s oversight of this area. The BEIS Select Committee does excellent work and should rightfully be the primary oversight body for the work of BEIS and the business elements of the work of the ISU. However, the ISC is the only body that can provide oversight of the intelligence elements and balance them with the business elements. The ISC is the only committee of Parliament that has regular access to protectively marked information that is sensitive for national security reasons. This means that only the ISC is in a position to scrutinise effectively the work of those parts of departments whose work is directly concerned with intelligence and security matters, as the Government have said repeatedly until now.
The Intelligence and Security Committee was created by Parliament to handle classified information where Select Committees could not. The Government committed to using the ISC to scrutinise all their intelligence and security functions. Now we are told that the BEIS Committee is able to do exactly that. In this instance, apparently, the ISC is no longer needed. Let me be clear: the ISC currently does oversee this area of work, so the Government’s proposal is deliberately removing it from ISC oversight. Is that what is going to happen in the future? Will security work be hived off successively to departments that will be told that the ISC cannot oversee them because it is not listed in a nine year-old MoU that the Government have failed to keep up to date?
I see the longer-term consequences of rejecting our amendments and wonder whether more areas of government are destined to follow suit. This could become a very slippery slope, denying Parliament and, indeed, the nation proper scrutiny of intelligence decisions if we do not take action now. For this reason, I have sought to offer the Government yet another opportunity. Rather than simply retabling my original amendment, I have offered them an alternative. Either the Government can provide the ISC with a classified annexe covering security and the Secretary of State’s decision, or they can add those decisions to the existing MoU.
My amendment is a reasonable attempt to provide the Government with a way forward and a way out. I know that the Minister opposite has been put in a very difficult position on this issue. While recognising the strength of feeling across this House, there must be meaningful oversight of these new powers, and that can only mean the ISC. I am not looking for more work for myself, I can tell noble Lords, but only the ISC can do it. I beg to move.
My Lords, as I have done throughout this process, I support the noble Lord, Lord West, and, having had the advantage of hearing him today and earlier, I endorse without qualification his remarks and powerful arguments in support of Motion A1.
I am encouraged in that because the Government are yet to produce any reason against these proposals that could be regarded as substantive. I am further encouraged by the fact that the chair of the BEIS Committee supports the proposition and the principle that the amendment embraces. It has been suggested, although not perhaps so strongly today, that confidential information will be made available to the BEIS Committee. There is a difference between confidential and classified. What is confidential as between one Minister and another can easily not be classified. In that respect, the Government have simply not proved their case.
What will that confidential information amount to? It will amount to what the Secretary of State thinks the committee can see. One could describe that, rather pejoratively, as being spoon-fed, but it will certainly come not with its interest in objectivity but with its interest in the subjective opinion of the Secretary of State. In that respect, it is quite different—I repeat, quite different—from the role, powers and the exercise of those powers of the Intelligence and Security Committee. I am further encouraged in my position because I read that the Commons Reason for Motion A is that it is “appropriate and sufficient”—which is probably what Oliver Twist was told when he asked for some more. The words mean what people want them to mean and that, yet again, exposes the poverty of the argument offered by the Government.
I shall finish by reminding the House that members of the Intelligence and Security Committee are chosen for experience and a reputation for balanced judgment. As I have said previously, there have been occasions when nominations made to the committee have been turned down because a particular individual was not thought to have the necessary experience or qualities for the discharge of a quite remarkable responsibility. Members sign the Official Secrets Act and the procedure attached to that is a solemn moment. They form an intimate relationship with the security services—one of trust, which cannot be replicated in any circumstances, in my respectful view, by the relationship between the BEIS Committee and the Secretary of State.
The truth is that the Government do not have a good argument here and that is why they would be wise, even at this late stage, to adopt this amendment.
My Lords, I too believe that the noble Lord, Lord West, is right in insisting that the Government and the other place look again at another way of giving the ISC an explicit role in scrutinising highly classified intelligence underlying the Secretary of State’s use of the powers in this Bill. The Government’s position is, frankly, indefensible. On Report, the noble Lord, Lord West, reminded the House that at the time of the passing of Justice and Security Act 2013, the then Minister for security announced
“the intention of the Government that the ISC should have oversight of substantively all of central Government’s intelligence and security activities to be realised now and in the future.”—[Official Report, Justice and Security Bill Committee, 31/1/13; col. 98.]
The Minister in the other place confirmed on Monday that the Government stand by that statement, yet they refuse to amend the memorandum of understanding under the Act, to bring the Investment Security Unit in BEIS within the purview of the ISC. Frankly, I cannot understand why. In his amendment, the noble Lord, Lord West, has offered the Government an easy way out. If they will amend the memorandum of understanding to bring the Investment Security Unit explicitly within the purview of the ISC, as it would have been had it remained within the Cabinet Office, the problem will be solved at a stroke. There will be no need for this amendment, and if the Minister will give that assurance today, I hope that the noble Lord, Lord West, would be prepared not to press his amendment.
In the other place, a Conservative Member, Steve Baker, said that the chairman of the ISC, Dr Julian Lewis—another Conservative Member—had made an open-and-shut case for amending the MoU, and yet Mr Baker, under the constraint of his Whips still voted against the amendment. If the Minister’s reply is that the ISC can cover the Investment Security Unit without amending the MoU, I am bound to ask: what is the point of having the MoU at all? The Minister has only to say that the Government will make this amendment to the MoU and he will save the Government and all the rest of us, a good deal of trouble. Will he do so? I suspect that the Government’s position is a result of the arrogance of a Government who have a large majority in the other place. They have taken a position and refuse to change it, however strong the arguments on the other side.
The noble Lord, Lord Lansley, has indicated his desire to speak.
My Lords, I am very pleased to follow the noble Lord, Lord Butler of Brockwell. I agree entirely with what he had to say and with the noble Lords, Lord Campbell and Lord West of Spithead, too. It comes down to a very simple proposition: throughout, we have been very clear that if the Government would simply amend the memorandum of understanding with the Intelligence and Security Committee to include reference to the Investment Security Unit, there would be no need for any amendment to the Bill. That remains the case now. The question why the Government are not doing this.
The Minister in the other place said on Monday night:
“The work of the security services on investment security in support of the ISU clearly falls within the remit of the ISC.”—[Official Report, Commons, 26/4/21; col. 154]
If that is the case, what is the impediment to adding the ISU into the memorandum? I think it is that the Government do not interpret the ISC as having a remit that extends beyond what the intelligence services themselves have offered by way of information to the Investment Security Unit in BEIS, to the point where —as the noble Lord, Lord West, quite accurately summarised—the scrutiny of how national security is being maintained in the decisions that become part of the interim or final orders made under this Bill.
The Government’s problem may be that they think that if they were to include the ISU in the memorandum of understanding, they would effectively create some duplication between the scrutiny of the order-making power by the BEIS Select Committee and the Intelligence and Security Committee’s scrutiny. That need not be the case. It is perfectly clear already, within the memorandum of understanding that was quoted by Dr Lewis in the debate on Monday night, that the ISC’s work in looking at the intelligence services
“‘will not affect the wider scrutiny of departments…by other parliamentary committees. The ISC will aim to avoid any unnecessary duplication with the work of those Committees.’”—[Official Report, Commons, 26/4/21; col. 160]
It seems to me that the resolution is very simple—the Government should simply add the Investment Security Unit into the memorandum of understanding. It is clear from what the ISC’s chair and members have said that they would not expect to duplicate the work of BEIS —the primary scrutiny of BEIS’s work—in implementing this legislation, but there are specific questions that relate to the use of intelligence and highly sensitive intelligence materials.
I was not comforted by reading that the chair of that committee in the other place has been told by the Secretary of State that he will brief him on privy counsellor terms. That tells us that the chair of the committee may know something, but the BEIS Select Committee in the other place will not generally know it. Its members will not be able to discuss that information and they will not be able to report on that basis. There is clearly a deficiency, as Dr Lewis quite rightly said—a scrutiny gap—in relation to the use of top-secret material on a routine basis in informing decisions made under this legislation. The inclusion of the ISU in the remit of the Intelligence and Security Committee will close that scrutiny gap.
My Lords, the Minister used the word heavyweight; I would use the word authoritative about the speeches we have heard from the noble Lords, Lords West, Lord Butler, Lord Lansley, and my noble friend Lord Campbell. I do not have the same authority, but I have an eye for process and an eye for a discontinuity. At the heart of this is a central contradiction. This Bill is called the National Security and Investment Bill, and its central premise is that the world of security has changed. It is not about armies and air forces; it is about technology—the spread of technology and access to that technology. The Bill is built on the idea that we need an approach to the commercial use, sale and protection of this technology for the security of this country.
The speeches that the Minister has heard were characterised in his preceding speech as somehow decrying the abilities of the BEIS Select Committee. The BEIS Select Committee was not put in place to assess the security issues that these companies are facing. That is not its job; its job is to do what BEIS was there to do. This Bill, by its nature, by its very name, is a hybrid of two very important issues: investment and security. The BEIS Select Committee is there and is an expert on the first of those. The ISC is there to protect the country and to offer scrutiny on security issues. There is no problem in asking both of those committees to do what they are good at in order to fulfil the very important task that Bill seeks to undertake.
We can only conclude that, because the Government decided not to do this and because, as the noble Lord, Lord Butler of Brockwell, put it, they have a large majority in the other place, they will continue down this road. There is another opportunity for the Government to think again and do the most sensible thing, which is to amend the MoU. It does not require primary legislation, in my understanding, and would be done very quickly with the consent of this House. For that reason, if the noble Lord, Lord West, decides to put this to a vote, these Benches would like to ask that question of the people across the way, at least one more time.
My Lords, it is clear that the Government have no good reason for refusing to accord the ISC its proper role in overseeing the intelligence input into a decision by the BEIS Secretary of State to forbid an otherwise bona fide investment in an enterprise—the sort of investment that the noble Lord, Lord Fox, has just described. I am sad to say that the Minister cited only the size of the House of Commons majority and gave no argument against proper parliamentary scrutiny. Frankly, if we are to say that this House should never question what the majority in the House of Commons does, you would wonder whether there is any role for this House. The size of the majority down there is not important; what is important to the security of this country is the correctness of the views that we take.
At one point, I think in this House, it was suggested that the Government did not want to amend the MoU case by case, but why not? As the noble Lord, Lord Fox, has said, if a new law comes in that has “national security” in its title and gives powers to a Secretary of State that depend wholly on intelligence, why not scrutinise that intelligence in respect of the use to which it is put? As we have head, neither the BEIS Select Committee nor its highly respected chair—who I assume will now be made a privy counsellor, since he is about to be briefed on Privy Council terms; I will be there to congratulate him if that happens—have the security clearance or experience to question the intelligence in the sorts of ways that we have been hearing from around the House. So why not let our experts carry out that work, on behalf of Parliament? What my noble friend is asking for is simple: an amendment to a memorandum of understanding. Is that too much to ask of the Government?
I thank all noble Lords who have contributed; it has again been a good demonstration of the quality of contributions from this House. I have listened very carefully to the points that have been made, in particular by the noble Lords, Lord West, Lord Campbell and Lord Butler, and by my noble friend Lord Lansley.
I will address the primary issue head on. This was raised by the noble Lords, Lord West and Lord Campbell, and the noble Baroness, Lady Hayter. It is the issue of whether the BEIS Select Committee will have access to “top secret” information. We will make sure that the BEIS Select Committee has the information that it needs to fulfil its remit and scrutinise the work of the ISU under the NSI regime. Much of this is unlikely to be highly classified and, where the Select Committee’s questioning touches on areas of high classification, it is likely that the relevant information could be given in a way that does not require as high a classification and provided to the committee confidentially. If, however, the BEIS Select Committee requires access to highly classified information, we will carefully consider how best to provide it, while maintaining information security in close collaboration with the committee’s chair.
Another point made by the noble Lord, Lord West, was that the current system for scrutiny is run out of the Cabinet Office and therefore comes under the ISC’s unit, so the Bill reduces the ISC’s remit. The Government’s main powers to scrutinise and intervene in mergers and acquisitions for national security reasons in fact come from the Enterprise Act 2002; the powers under that Act sit with the Secretaries of State for BEIS and DCMS, not in the Cabinet Office. Giving the BEIS Select Committee oversight of the new NSI regime is entirely in keeping with this and does not represent a reduction of the ISC’s remit.
A point made particularly by my noble friend Lord Lansley was about changing the memorandum of understanding, but the question here is not whether the MoU allows for the role proposed by noble Lords, but whether that role is appropriate. Our answer—and I appreciate that noble Lords will disagree—is no. The Government have made their case, which comes off the back of a resounding vote by the elected Chamber, that no change should be made to the Bill in relation to reporting to the Intelligence and Security Committee. We maintain our view that the BEIS Select Committee remains the place for scrutiny of the investment security unit and that the Intelligence and Security Committee remains the appropriate committee for scrutiny of the intelligence services, in accordance with the memorandum of understanding and the Justice and Security Act 2013. With acknowledgement to all who have spoken and with regard to the points that I have made, I appreciate the difference of opinion on this, but ask once again that the House does not insist on these amendments.
My Lords, first, I thank those who spoke in support of my Motion. They have an incredible amount of knowledge about this issue. I find the Government’s position extraordinary and I feel sorry for the Minister opposite—for whom I have great respect—who has to parrot arrant nonsense. As an admiral and a captain who had defaulters in front of me, I have had people spouting arrant nonsense at me and I know how to spot it. This is arrant nonsense and I find that rather sad. It is unfortunate that he has to do this as I am sure that, deep down, he does not believe it, because he is an intelligent chap. I am appalled that the Government are not willing to give ground on this and I cannot understand why—I really cannot. This is not a great party-political issue or anything like that. It is quite extraordinary, so I am afraid that I will test the opinion of the House.
Abortion (Northern Ireland) Regulations 2021
Motion to Approve
That the Regulations laid before the House on 23 March be approved.
Relevant documents: 51st Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument) and 23rd Report from the Constitution Committee
My Lords, these regulations will provide the Secretary of State with the power to direct a Northern Ireland Minister, a Northern Ireland department, and the Health and Social Care Board of the Public Health Agency to take action necessary to implement all the recommendations in paragraphs 85 and 86 of the 2018 United Nations Committee on the Elimination of Discrimination Against Women, known as the CEDAW report.
We recognise that this is an unprecedented step, but such is the nature of the statutory duties on the Secretary of State for Northern Ireland that we have to act. While the regulations themselves are short, they are necessary to ensure that abortion services are available as a healthcare service in Northern Ireland, which will provide safe and local access for women and girls. We have made the most appropriate step in terms of the scope of any direction being limited to only what is needed to ensure that the CEDAW recommendations are implemented. This power, if exercised by the Secretary of State for Northern Ireland, can be used only for those purposes and will go no further.
I remind the House of the background to this. The House will recall that in 2019, during an ongoing absence of devolved government in Northern Ireland, Parliament decided that it was time to step in on this matter on the basis of human rights. These statutory duties did not fall away with the restoration of devolved government. We have always sought to deliver in a way that respects the devolution settlement, by putting in place the legal framework, but recognising that healthcare is devolved and therefore service provision should be delivered and overseen locally by the Department of Health and relevant health bodies with the relevant legal powers, policy and operational expertise to do so.
Noble Lords will also recall the previous debates that we have had on the 2020 regulations and the strongly held views across the Chamber on a range of finely balanced policy issues. This debate today is not about re-opening that; it is about ensuring that the duties under Section 9 of the NIEF Act can be implemented in full at the earliest opportunity. It is our firm view that the regulations that we made in 2020 established a new legislative framework that is operationally sound, works best for Northern Ireland, and delivers on the Government’s statutory duty. That is why we do not intend to amend the regulations.
So why are we here today? We are here today to do everything we can to demonstrate how committed we are to fulfilling the Government’s statutory obligations, and to ensure that women and girls in Northern Ireland have access to high-quality abortion and post-abortion care, consistent with the conditions set out in the 2020 regulations. As I have said, I recognise the emotive nature of these issues, but what is the issue at hand? As many noble Lords will be aware, over a year after the 2020 regulations came into force, women and girls in Northern Ireland are still unable to access high-quality abortion and post-abortion care in Northern Ireland, and the commissioning of full abortion services, consistent with the conditions set out in the 2020 regulations, has still not happened. In 2019, 1,014 abortions were provided in England and Wales for women from Northern Ireland, and women and girls still have to travel to access these services.
It has always been our expectation and preference that the Department of Health drives forward the commissioning of abortion services and ensures that these services become embedded in the health and social care system in Northern Ireland as an accepted and recognised healthcare service. While some abortion services have been provided since April 2020, and over 1,100 abortions have been provided in Northern Ireland, I am disappointed that services have not been formally commissioned, supported or funded by the Northern Ireland Department of Health, and that no guidance has been issued nor any official support measures put in place.
I hope that noble Lords will agree that at the very heart of this matter is the health of women and girls who have been, and continue to be, denied the same reproductive rights as women in the rest of the UK. Women and girls are entitled to safe, local healthcare. Indeed, during the pandemic this is even more crucial. We understand that managing the Covid-19 response has been an immense challenge and has placed the health and social care system in Northern Ireland under considerable pressure. However, the fact is that the law changed over a year ago. This is not a new issue that is a surprise to the Executive. Following the Northern Ireland (Executive Formation etc) Act 2019 receiving Royal Assent, and the Section 9 duties coming into effect, we engaged with all the Northern Ireland parties on this matter, and we continued to engage, being clear that Parliament had stepped in, and we would be delivering on those legal duties accordingly.
We are disappointed with the continuing failure of the Department of Health and the Northern Ireland Executive to commission abortion services consistent with the regulations that we have made, despite having extensively engaged with the Minister for Health, his department and wider members of the Executive on this issue for over a year. However, I put on record my thanks to the medical professionals who have ensured that women and girls have had some access to abortion services in Northern Ireland to date, and the organisations that have supported this work. I pay particular tribute to the late Professor Jim Dornan, a leader in his field and a passionate advocate for health issues such as cancer, but also women’s reproductive rights.
Looking ahead, our strong preference remains for the Minister of Health and his department to take responsibility for upholding these rights, for commissioning services and for delivering on what the law now clearly allows. Let me make an important point. As abortion remains a devolved issue, the Assembly is able to legislate or indeed amend the regulations, should it so wish, but only if it can agree a way forward that is convention-compliant. However, the Secretary of State has an ongoing statutory obligation to ensure that the CEDAW recommendations are implemented in Northern Ireland.
It remains our preference that the Department of Health moves forward with full commissioning of abortion services in line with the regulations. That is why we are giving it every opportunity to act on this matter. I look forward to the debate and will seek to address as many questions as I can in my closing remarks. I hope that these regulations will be supported today and I beg to move.
Amendment to the Motion
Leave out all the words after “that” and insert “this House declines to approve the Regulations laid before the House on 23 March because (1) the Northern Ireland Assembly is now sitting and the matter is devolved to that legislature; (2) the Regulations raise “complex legal and constitutional questions” in the view of the Secondary Legislation Scrutiny Committee; (3) the Regulations go beyond the Abortion (Northern Ireland) (No. 2) Regulations 2020 in that they undermine the devolution settlement in respect of education as well as abortion policy; (4) there has been no public consultation on the Regulations; and (5) the Regulations were laid shortly before the parliamentary Easter recess, which prevented the House considering them before they took effect.”
My Lords, I give notice that I intend to press my amendment to a vote. These regulations give the Secretary of State for Northern Ireland a power to direct a Northern Ireland Minister or department, the Health and Social Care Board and the Public Health Agency to take any action for the purpose of implementing the recommendations in paragraphs 85 and 86 of CEDAW. The powers conferred in these regulations are therefore extremely wide.
The Government have asserted that they have a duty to bring these regulations, but there is no time limit. This is work in progress for the Assembly and there can be no justification for intervening in the work of the Northern Ireland Assembly on this sensitive issue, disregarding the devolution settlement. The regulations will be implemented through directions from the Secretary of State. It is said that a direction will look like a statutory instrument, but we have procedures for statutory instruments. There are no procedures to scrutinise what is done by the NIO.
I ask your Lordships to vote against these regulations because the Assembly is sitting and the matter is devolved to that legislature. The regulations raise
“complex legal and constitutional questions”;
they go beyond the Abortion (Northern Ireland) (No. 2) Regulations; they undermine the devolution settlement in respect not only of abortion policy but of education; there has been no public consultation; and the regulations were laid just before Easter, preventing the House from considering them before they came into effect.
Your Lordships will recall that this started in July 2019 when a group of MPs, none of whom represented Northern Ireland, urged upon the other place a duty to give effect to the CEDAW recommendations. There was no obligation on Parliament to give effect to them. All the Northern Ireland MPs voted against them, but their votes and the votes of the Northern Ireland Assembly were ignored. The Government did not question what was said in the other place and proceeded to make an unworkable House of Commons clause into Section 9 of the executive formation Act. There were no international legal obligations, something that the Government have now recognised.
This is a matter that should be dealt with by the Assembly. Work has been ongoing. There is a very firm belief in Northern Ireland that every life matters, that both mother and baby matter. There is provision, such as that suggested in CEDAW recommendations 85 and 86, for support for mothers and for those who make the choice, sometimes with great difficulty, to have an abortion. Undoubtedly, more resources are required. Registered medical professionals in Northern Ireland now terminate pregnancies lawfully at no cost to the mother. Such terminations must, under the terms of the regulations passed here, be carried out in health and social care premises. Some 1,345 abortions were carried out in the past reporting year. Abortion is available in Northern Ireland, and safely.
Northern Ireland’s health service was described as broken pre Covid. Mid-Covid, in January 2021, almost one in five of our population was waiting for a first out-patient appointment; half them have been waiting for more than a year. In December 2019 and January 2020, just before Covid, the Royal College of Nursing called the first strike action in its 103-year history in Northern Ireland. With great respect, it is for the political representatives of Northern Ireland to devise a way forward on the provision of health services and abortion services.
Northern Ireland is in a parlous state. Our Assembly is functioning but our political situation is very fragile. Brexit brought civil unrest and the terrorists—ever present—have become more active. Last week a bomb was left in a car into which a young police officer was about to put her three year-old daughter. Noble Lords will have seen the rioting which was switched on on Good Friday and lasted over two weeks. Some 88 police officers were injured, civilians were injured, families were threatened and property was destroyed.
Northern Ireland has a devolved Government. Most recently the Secondary Legislation Scrutiny Committee said that these are politically and legally important issues and should have had more consideration. Our Assembly faces more significant problems than the rest of the UK because of our history, the instability of our current situation and the impact of the EU NI protocol. We are in a different place from the rest of the UK. There is no imperative to affirm these regulations today.
If affirmed they will further marginalise the Northern Ireland Assembly in its attempts to do business co-operatively—
It is important that your Lordships’ House respects the attempts being made in Northern Ireland to deliver effective devolved government. I ask noble Lords to vote for my amendment and reject this further attempt to undermine the Northern Ireland Assembly. Help us. Have courage. I beg to move.
My Lords, the United Kingdom is a relationship between three nations and a Province, a relationship in which together we are more than the sum of our component parts. The union has worked hitherto because Parliament has recognised that it cannot be used to impose a uniformity that undermines the key distinctiveness of the component parts. Parliament could, at any point since 1707, have voted to impose an English legal system on Scotland, but it has not because that would be to fatally disrespect Scotland and render the union unsustainable.
One of Northern Ireland’s distinctions pertains to its approach to the unborn. As the then Secretary of State said in 2018,
“Abortion has been a devolved matter in Northern Ireland since it was created in 1921, and it would not be appropriate for Westminster to seek to impose its will, or to be the arbiter of an issue that has long been devolved to the people of Northern Ireland.”—[Official Report, Commons, 5/6/18; col. 220.]
In the last 50 years in particular, we have developed a distinctive approach that affirms the importance of both lives, the life of the mother and that of the unborn. That may not matter to people in other parts of the union, but it matters very much to the people in Northern Ireland. We are proud of the report that demonstrated in 2017 that 100,000 people are alive in Northern Ireland today who would not have been had we embraced the Abortion Act in 1967 along with the other jurisdictions in GB. Moreover, after a complaint and a five-month investigation, the Advertising Standards Authority ruled that this was a reasonable claim.
What makes the regulations before us today deeply problematic is that they rest on the regulation-making power in Section 9, which was developed on the back of a vote that took place on 9 July 2019 in which 100% of the Northern Ireland MPs who took their seats in Northern Ireland voted no, yet this radical Northern Ireland-only law change was imposed on us by MPs, none of whom has a mandate to represent Northern Ireland. The strength and reality of the union is not confirmed by the ability of the sovereignty of Parliament to impose legislation that pertains only to a component unit of the union against the wishes of its representatives. Rather, it is confirmed by the fact that even though Parliament could impose in these instances, it does not and instead respects the different priorities of the different components of the union in order that the union can continue.
The passage of Section 9 and these regulations has swept those normal conventions to one side. First, it was argued on 9 July 2019 that Parliament was duty-bound to pass the amendment that became Section 9 because Northern Ireland was in violation of international human rights convention obligations under CEDAW and the recommendations of the 2018 committee report on Northern Ireland. However, in paragraph 7.7 of the Explanatory Memorandum accompanying the regulations today, the Government now confirm that paragraphs 85 and 86 of the CEDAW committee report do not constitute legally binding international obligations. As such, they do not provide grounds for overruling devolution or, more fundamentally, the understandings that make it possible to argue for the relationship that exists between the UK’s four component parts.
Secondly, it has been argued that, quite apart from international legal obligations, the law change introduced by Section 9 was necessary because of domestic UK legal process through the Supreme Court judgment on abortion in Northern Ireland in 2018. However, that argument is plainly absurd. The Supreme Court made no binding judgment whatsoever on abortion law in Northern Ireland. It reviewed narrowly whether certain elements of the law in Northern Ireland were not human rights compliant, not whether there was a general right to abortion.
The two areas where the court considered there would be non-compliance under Article 8 of the ECHR were abortions on the grounds of a fatal foetal abnormality and in cases where a pregnancy was the result of sexual crime. The judgment was not binding but, had Stormont been sitting and the law been amended accordingly, it would have resulted in a tiny increase in the number of abortions and the life-affirming traditions of Northern Ireland would have largely continued.
In the context where the existence of life-affirming laws is a long-term distinctive Northern Ireland legal tradition backed by its representatives on 9 July 2019, and where there is no justification for sweeping that aside on the basis of either international obligations or the ruling of the Supreme Court, one has to confront the harsh reality that the only reason why we are here today is that Parliament decided to take the risk—
My Lords, I shall speak to the amendment in my name and give notice that I intend to test the opinion of the House.
I am a severely disabled parliamentarian who believes that I have as much right to exist as anyone else. The regulations may not apply to me directly, but they still threaten me because they challenge that right by devaluing my existence. The narrative of the regulations is that I should not really exist. Indeed, I would be better off dead. The Minister cites CEDAW, but I wonder how that narrative does not perpetuate a negative stereotype against disabled people, which CEDAW expressly prohibits. If we pass the regulations today, not only are we endorsing lethal disability discrimination right up to birth but we are in practice saying to anyone who is born with a disability that they somehow escaped the net.
To his credit, the Prime Minister has committed to publishing in the near future the most ambitious and transformative disability plan in a generation, so it is somewhat odd that Her Majesty’s Government should none the less think it appropriate to publish regulations whose ambition is not to transform the lives of human beings with disabilities but, rather, to ensure that they never see the light of day.
I have to say that there seems to be a slight disconnect in the Government’s messaging. Perhaps the Minister could explain to the House, to me and to Harry Cahoon from Belfast, whose mother, Grace, emailed me yesterday, how it makes sense for the Government to tell human beings born disabled, “We want to support you but only if we haven’t found and killed you first.” My bones break easily. Harry, who is a happy 17 month-old baby, has an extra chromosome. Brittle bones and Down’s syndrome respectively are our medical conditions. We both, therefore, meet the criteria in the regulations that we have a physical or mental impairment that deems us to be severely or seriously disabled, so under these regulations we would qualify for death right up to birth.
That is ultimately what the regulations are about: death for disability—in other words, state-sanctioned, state-sponsored lethal disability discrimination. It is tragic that, despite the immense sacrifices of my grandparents’ generation, who fought and died in the war, the eugenicist poison that informed Adolf Hitler’s Aktion T4 euthanasia programme against disabled human beings is now informing government policy and being imposed on the people of Northern Ireland.
We have a choice: do we effectively endorse lethal disability discrimination, or do we instead send a resounding message of affirmation to human beings born disabled, and to their families, that your Lordships’ House upholds their dignity and equality? I beg to move.
My Lords, I preface my remarks by making the observation that it is against the law, throughout the whole of the United Kingdom, to compel or coerce a woman to have an abortion against her will. This House is talking today about the legal provision of services that are locally accessible to women and girls who need them. It is part of an ongoing debate between those of us who believe that women and girls are capable of making—and have the right to make—informed choices about their reproductive health, informed by health practitioners who wish to guarantee their safety, and those who do not. There was much that I took exception to in the speech of the noble Lord, Lord Shinkwin. I do not have time to address those issues today, but I hope that the House will return to some of the very serious allegations that he made.
When noble Lords listen to the arguments today, they will hear many deeply held views, but they are not views about the devolution settlement; they are about Members’ opposition to abortion. Those Members not only oppose the reform of Northern Ireland abortion law by Westminster but also support the restriction of abortion rights across Great Britain. They have worked to enable nurses and doctors to block women accessing the care to which they are legally entitled and have sought to stop essential clinical developments in abortion care, such as telemedicine.
We know that when it is difficult for women to access abortion care, maternal health suffers across the board. We know that, before the change in the law in 2018, over 1,000 women a year travelled to England and Wales from Northern Ireland for a termination of a pregnancy —and, during the dangerous time of the pandemic, they have continued, in their desperation, to do so. We really must not return to that because, as ever, it is women who are poor, and women in coercive relationships who cannot escape, who will suffer the most.
This measure is, unfortunately, necessary because the Northern Ireland Assembly has, over 15 months, frustrated every attempt to make sure that women have access to the services that they need. This is a limited measure simply to enable women to access the healthcare that they need. What timetable does the Minister envisage for women to be able to access services across all four health and social care boards in Northern Ireland? When will we see the reintroduction of telemedicine, a service that has proved so effective in England?
For decades, women and girls in Northern Ireland have been weighed down by the politics of the past. Today is another opportunity for this House to give them hope for the future.
My Lords, as noble Lords have said, at the very heart of this debate are the women, unborn children and their families who are affected by this issue. We must almost have them at the forefront of our consideration. I found what the noble Lord, Lord Shinkwin, said very powerful and moving. As the father of a child born with severe disability myself, I entirely understand what he said. I have spoken to, and been friendly with, many families with children with disabilities. They have found their family lives richly rewarding and speak powerfully to the value of every life. That must always be central when we discuss the issues of constitutionality, devolution settlements, the Sewel convention, parliamentary rights and so on.
On this side of the argument we simply ask that all lives matter. In consultation after consultation in Northern Ireland—and this is a devolved matter—the people of Northern Ireland have responded by saying that they value all lives and that they do not want the sweeping laws that have been introduced there to apply to them, especially when no one has voted for that. We now have the most liberal abortion laws anywhere in the United Kingdom and, even if you believe in abortion, you cannot say that that is a correct and proper process for Northern Ireland.
The Northern Ireland Assembly voted to reject these regulations on 2 June 2020. This is not some theoretical matter which the Assembly has not considered; it did consider it and, because of the sweeping nature of the laws, rejected the regulations. The Secretary of State for Northern Ireland was quoted by the BBC as saying that he was, nevertheless, committed to the regulations because they must comply with a UN convention. However, as has been pointed out, there are no such convention obligations. Paragraph 7.7 of the Explanatory Memorandum says that
“paragraphs 85 and 86 of the CEDAW Report”,
on which the legislation was based, and which we were told was its justification,
“are not binding and do not constitute international obligations.”
We therefore need to be very clear, when we come to vote, exactly what we are voting on, and keep all those unborn children in mind.
My Lords, we are all aware of the sensitivities surrounding abortion, as the noble Viscount, Lord Younger, has observed, and also of the wide range of deeply held views that it provokes. However, whatever our own particular standpoint on abortion per se, which is, as the House has been reminded, now legal in Northern Ireland, there are two specific aspects of these regulations which must be of general concern. One has to do with devolution, as we have already been reminded. To quote from a recent statement issued by the Archbishop of Armagh:
“It is a matter of regret that the Secretary of State for Northern Ireland intends to seek powers from Parliament to give direction to the Department of Health in Northern Ireland around what is clearly a devolved matter.”
Many others, including 250 clergy from several denominations in Northern Ireland, have made a similar point about these regulations undermining the devolution of the Northern Ireland Assembly, now that it is functioning again. There is a strong and widespread sense of democratic deficit in this regard.
The other issue which demands urgent consideration is the recommendation in paragraph 85(b)(iii) of the CEDAW report that abortion should be legalised in cases of “severe foetal impairment”; that is, disability, including Down syndrome. We have debated that before in your Lordships’ House and it has been raised already in this debate. Members of the Assembly have also already strongly indicated their support for a Private Member’s Bill which rejects the inclusion of abortion on the grounds of non-fatal disabilities. The regulations now before us seem to disregard that entirely. Indeed, they would replace one of the most conservative abortion regimes in the United Kingdom with one of the most liberal and discriminatory. That accords neither with the wishes of a majority of Assembly Members nor with the views of a significant majority—79%—of those who responded to a recent public consultation on this subject.
For these two reasons in particular, I cannot support the regulations as they currently stand. In the event that they are approved, I note that the Secretary of State is not mandated to use draconian powers to ensure their full implementation. I hope that, in that instance, it might be possible for him to work closely with the devolved Administration to bring about an outcome that is rather closer to their position on this contentious topic.
My Lords, this is an instrument dealing with abortion. It is put forward under the authority of Section 9 of the Northern Ireland (Executive Formation etc) Act 2019. The introduction to that Act states that what it proposes is subject to the formation of the Executive. As your Lordships know, the Executive have now been operational for 15 months and accordingly it appears to me that the Act on which the Government are relying is not operative at the present time.
In any event, there are only three grounds under Section 26 of the Northern Ireland Act 1998 under which this Parliament can intervene in a devolved matter by statutory instrument in Northern Ireland: international obligation, safeguarding defence or national security, and protecting public safety or public order. The only question at issue under the statutory instrument is international obligation. The Northern Ireland Office made it clear in its submission to the Secondary Legislation Scrutiny Committee that there is no international obligation which requires this particular instrument, nor is this instrument enforceable except by the questionable process of judicial review. Accordingly, it is contrary to these provisions for this instrument to be enacted. It is, further, of considerable damage to the settlement in Northern Ireland for this instrument to be forced on the people of Northern Ireland without the agreement of the Executive. It is obviously a matter of considerable dispute in Northern Ireland and it is surely the objective of devolution to allow such matters to be decided in Northern Ireland itself.
In addition to these difficulties, the House of Lords Secondary Legislation Scrutiny Committee has said:
“We regard it as poor practice to bring new policy into effect when the House is not sitting, and using a procedure which prevents discussion before the legislation takes effect. It is particularly inappropriate when that policy is likely to be controversial.”
The House, it says, may wish to ask the Minister to explain why:
“Contrary to the convention of allowing at least 21 days between laying an instrument and bringing it into effect, the 2021 Regulations came into effect eight days after laying.”
I therefore take up the committee’s suggestion that the House may wish to press the Minister for further justification as to why the Northern Ireland Office decided to bring these regulations into effect in breach of the 21-day convention, and during the Easter Recess.
My main point, of course, is my first one: that these regulations are ultra vires of the Secretary of State in the present circumstances and I find it impossible to support them.
My Lords, we are being asked to give our consent to the killing of the unborn child. Many abortionists claim that abortion is the premature expulsion of the human foetus, but in reality it is the ending of a human life. They try to make it sound as nonviolent as possible, but that is not true. As a pastor, I have met many people, including young women, who find themselves in distressing circumstances and, with Christian compassion, have sought to offer genuine help and practical support. But what of these regulations before us today? They go far beyond that which is legally required and are especially discriminatory against those diagnosed with disabilities; they are insensitive and offensive.
We listen to those who piously proclaim that they would never do anything to undermine the Belfast agreement or the devolution settlement, yet the corrosive constitutional nature of this legislation is seriously damaging to devolution and is like throwing a hand grenade into the fragile structures of devolution. This is an unreasonable exercise of emergency constitutional powers when a devolved Government are functioning. Can anyone imagine Westminster interfering in issues fully devolved to the Scottish Parliament? The answer is no, but the Government, through this legislation, have crawled over the mangled bodies of little children to appease Sinn Féin demands before that party would allow devolution to be restored.
Life in our nation has been devalued. What is being proposed goes against everything God’s word teaches concerning the preciousness of life. Sadly, I believe that part of the blame must lie at the feet of silent people who know better but never raise their voices to speak the truth in love. For years, the very thought of what happens in abortion outraged the community, but powerful lobby forces have been at work and, through the media, have sought to condition and harass people into acceptance. I fear that if we accept the taking of life in the dawn of its existence, we will soon be pressurised to take human life in the twilight of its existence as well. I will not be silent, for my conscience is bound by the word of God. Does no one care that children with a diagnosis of Down’s syndrome, for example, are to be torn from their mother’s womb although their lives are fully viable and valuable? Of course, the doors will not be open for the public to see the tearful reality and truth about the various methods of the death of these children—out of sight, out of mind.
In a democracy, the major decisions are tested at the ballot box, but this legislation is being forced upon the people of Northern Ireland without a mandate to do so. The Government are deliberately acting in defiance of the will of the elected representatives of the people of Northern Ireland. Over these past years, we have spent billions to save life, yet in this one-and-a-half-hour debate we are being asked to sanction the killing of the unborn child. Many have been complaining throughout lockdown about what we do not have, what we cannot enjoy and where we cannot go. As we vote today, I ask noble Lords to hear the voices of thousands of innocent little children who have never had the opportunity to live outside the womb and, before God, to prevent another unnecessary death. I wholeheartedly support the amendments before the House and I unreservedly reject the Government’s Motion.
My Lords, this is an emotional issue, but I wish to express my own concern about the constitutional implications of these regulations.
To go back to the beginning, the legislation that introduced devolution to Northern Ireland followed a similar, although not identical, pattern to that adopted by the Scotland Act 1998. One of the issues that was much debated in the discussion about Scotland was what to do about abortion. In the end, it was decided that this should be a reserved matter, as it now is in Wales since 2006. The decision for Northern Ireland, on the other hand, was that it should be a transferred matter, and so within the legislative competence of the Northern Ireland Assembly, rather than that of the UK Parliament at Westminster. That was no accident. The Northern Ireland Act was the culmination of multiparty talks and the Belfast agreement of 10 April 1998. Those who are legislating here were content, without question, to accept the result of these talks. I cannot help thinking that if the Government were still respecting that result, as I believe they should, we would not be here today.
The only reason we are faced with this legislation is the duty placed on the Secretary of State by Section 9 of the Northern Ireland (Executive Formation etc) Act 2019. As we know, that Act was passed while the devolved institutions in Northern Ireland were suspended. As the noble and learned Lord, Lord Mackay of Clashfern, so correctly pointed out, the Long Title of that Act states that one of its purposes is
“to impose a duty on the Secretary of State … to make regulations changing the law of Northern Ireland on certain matters, subject to the formation of an Executive”.
I agree with the construction that the noble and learned Lord put upon those words. Northern Ireland now has a functioning Executive and the Assembly is now once again able to take these matters into its own hands and reform abortion law according to its own wishes—indeed, it has spoken, as the noble Lord, Lord Dodds, told us. So, we are not in the situation that the qualification in the Long Title contemplates. I agree with the conclusion that the noble and learned Lord has drawn and I suggest that we ought to have careful regard to it when considering the amendment of the noble Baroness, Lady O’Loan.
The Constitution Committee, of which I am a member, has raised a question as to the prospect and desirability of different laws on abortion operating in Northern Ireland. This is a very confusing and disturbing matter, because we are moving into very deep waters. I would be grateful if the Minister would respond as fully as he can to the question that the Constitution Committee has raised. One of the remarkable things about the Northern Ireland settlement is a unique provision in the devolution legislation which enables the Assembly to modify any provision made in or under an Act of the United Kingdom Parliament,
“in so far as it is part of the law of Northern Ireland”.
But it can do this only if it is within its legislative competence, having regard, among other things, to the convention rights. So, it is a complicated matter and I would be grateful for the Minister’s further observations on that awkward situation.
My Lords, I am thankful for the opportunity to speak on this unprecedented move to provide the Secretary of State for Northern Ireland with such expansive powers. I share the concerns of many across the House and will concentrate on this issue during this debate.
I am pro-life but, for me, the debate is not about the rights or wrongs of abortion; it goes to the heart of the devolved settlement—as the noble and learned Lord, Lord Hope of Craighead, has already articulated. Under the devolution settlement it is up to the Assembly to legislate exclusively in a wide range of matters, one of which is health, including women’s health and abortion. In this instance, I agree with the Motions before the House but disagree with the regulations.
If this proposed intervention by the Secretary of State for Northern Ireland is allowed through the approval of these regulations, a dangerous precedent will be set whereby the UK Government can legislate directly on devolved matters whenever they like. The Minister said that this power related exclusively to the issue of abortion; the House should take note of that.
I point out too that allowing the Secretary of State for Northern Ireland such expansive powers as are set out in these regulations not only is unprecedented but sets a dangerous precedent for the treatment of devolved powers in the UK, undermines the powers of our Assembly and would be in contempt of the Good Friday agreement. It is worth noting that the Assembly was restored in January last year. I believe firmly in devolution and am opposed to the principle of this legislation, without prejudice to my personal pro-life views on abortion.
In 2019, the previous Parliament voted to impose on Northern Ireland the extreme abortion recommendations of the United Nations CEDAW committee. This is a UN convention to which the British Government have signed up. I have been told, however, that CEDAW does not have any direct legal effect in Britain or Northern Ireland: it can report and recommend actions, but those are simply recommendations with no binding international human rights obligations. Moreover, it is not clear how these powers, conferred by the 2021 regulations, are admissible under the devolved settlement enacted by the 1998 Northern Ireland Act. It would appear that this is a constitutional overreach on a devolved matter. I ask the Minister to think carefully about this issue and to withdraw these regulations.
My Lords, as a Conservative and Unionist, I am acutely aware that the maintenance of our union does not depend on the imposition of uniformity. If the union is to survive, we must respect the key distinctions between its different parts. Northern Ireland’s long tradition of life-affirming laws may not be to everyone’s liking, but we must acknowledge their existence—not because of a stunted view of human rights but because of a wider vision in which the rights of both the mother and the unborn have to be taken into account.
I am deeply concerned that, rather than respecting the traditions of Northern Ireland, some representatives of other parts of the union have actively sought to disinherit Northern Ireland of her traditions. We simply cannot do that if we want our union to survive. The vote that started this process in another place on 9 July 2019 resulted in all Northern Ireland MPs who took their seats in Westminster voting no, and yet this unwanted legislation was imposed on the Province by MPs from other parts of the union.
I cannot think of any example of this kind of case that ended well. There was the flooding of the valley in Wales and the destruction of the village of Capel Celyn, in the context of 35 of Wales’s 36 MPs voting no. That is a huge issue for many people in Wales more than 50 years later. The imposition of the poll tax on Scotland a year early, against the wishes of its elected representatives, provides another case in point. Both events have been the subject of public apologies and, sadly, both now inform the narrative of independence in Scotland and Wales.
It is no surprise that legislation resting on such troubled foundations should be less than straightforward. These regulations cannot be enforced—certainly not in the normal way. As the Government conceded to the Secondary Legislation Scrutiny Committee, the only way to enforce them would be to judicially review the decision of an actor to whom they are directed to ignore them. Given this difficulty, and the implications of the nature of the vote of 9 July 2019 on which the regulations rest, I suggest that, rather than continuing with these regulations, the Government give Parliament the option of considering the restoration of Stormont and repealing Section 9.
In making this point, I say to advocates of abortion liberalisation: “What are you scared of?” It is patently obvious to anyone who knows anything about the Northern Ireland Assembly that it is not going to move back to a pre-October 2019 position. Indeed, it is interesting that the only legislative steps that the restored Assembly has taken—
I am finishing. The only legislative steps that the restored Assembly has taken is to consider a Bill to prohibit abortion on the basis of non-fatal disability until birth, a measure that would prevent perhaps only one abortion a year. I will certainly support the Motion in the name of the noble Baroness, Lady O’Loan.
My Lords, the Government have said that they have no choice but to bring these regulations forward because of the obligations placed on the Secretary of State by Section 9 of the executive formation Act. We now know, having listened to and read many speeches, that this is just not credible. The noble and learned Lord, Lord Mackay of Clashfern, in particular, pointed this out so clearly. First, Section 9 was brought in in the context of legislation whose purpose was to help restore the Executive, along with maintaining abortion as a key part of the devolution settlement. The Executive has now been restored for 16 months and abortion remains in the devolution settlement. Secondly, the decision to introduce Section 9 was the decision of the previous Parliament, and no Parliament can bind its successor. Every Parliament must have the right to respond to changing circumstances.
The 2019 vote on which Section 9 rests saw 100% of Northern Ireland’s elected MPs opposing Section 9, but it was imposed by the other MPS, none of whom represented Northern Ireland. Surely the Government have learned from the lessons of the past when trying to impose legislation on other parts of the United Kingdom. As has been mentioned, the poll tax is a brilliant example of that—a terrible mistake by a Conservative Government, and subsequently apologised for by David Cameron in 2006. I would have hoped that riding roughshod over devolved Governments was a thing of the past. It seems to be a thing of the past for Wales and Scotland, but somehow Northern Ireland is once again treated differently.
When it suits Her Majesty’s Government, it is a devolved matter. Along with other Members, I tried very hard to get the definition of “victim” to be the same in Northern Ireland as in the rest of the United Kingdom. “Oh no”, I was told, “that’s a devolved matter”. There are so many other examples—look at the treatment of veterans. We now know that the international obligations on which Section 9 was argued for are not binding. These regulations are an assault on the constitutional dignity of Northern Ireland. With the current instability in Northern Ireland as a result of another government diktat of the protocol, this will cause even more instability and concern.
Noble Lords’ views on abortion are not the issue. Today’s debate is not about abortion: it is about allowing a devolved Government to make their own decision on a devolved matter. There is a need for a debate on this in Northern Ireland. Perhaps one way of getting agreement on such a controversial issue would be a referendum.
However, these regulations will—and I must put it in this strange way—put another nail in the coffin of devolution for Northern Ireland. We are being treated differently. People in Northern Ireland are getting fed up with being treated differently, and we can start today in this House by showing that we believe in devolution and in the Northern Ireland Assembly having a right. I ask noble Lords to vote for all these amendments. I congratulate the noble Lord, Lord Shinkwin, on an extremely moving speech and totally support him.
My Lords, the regulations proposed by the Government are deeply troubling for the devolution settlement in Northern Ireland and the lives of the unborn. There is a danger that this regulation will further the damage done by the Northern Ireland (Executive Formation etc) Act 2019 in that instant changes were made without the Executive’s approval because there was no Executive. However, now there is an Executive in Stormont exercising their constitutional right to govern. Do the Government no longer trust the institutions or leaders of Northern Ireland to govern? If the people and parties of Northern Ireland have a different view on abortion from that of this Government, should they not be allowed to form their own laws and regulations?
A Motion was passed by Stormont in June 2020 rejecting the changes that the Government made. At the very least, there is cross-party support for removing the right to abortion in cases of severe foetal impairments. This regulation takes no interest in the views of those representing the people of Northern Ireland. Instead, it assumes that the Secretary of State should be responsible for these decisions. This principle potentially threatens the union. I am sure that voters in Scotland will be taking note.
Furthermore, I have concerns about the implication of this regulation for the lives and rights of the disabled. Paragraph 85 of the report upon which the regulation is based states that severe foetal impairment should be considered grounds for an abortion. However, it goes on to say that this should be done
“without perpetuating stereotypes towards persons with disabilities”.
This is a clear contradiction. If we value the lives of the disabled, we should not also pass laws allowing for the abortion of disabled babies. What does it say to those in our country, and in Northern Ireland, who have a severe disability, as we have heard already? The Government seem to be saying that these lives are less valuable.
Finally, paragraph 86 of the report mentions protecting women
“from harassment by anti-abortion protesters by investigating complaints and prosecuting and punishing perpetrators.”
What forms of anti-abortion protest do the Government deem acceptable to take place in Northern Ireland? Will there still be space for peaceful exercise of free speech?
My Lords, a womb is not a tomb. In 1996 I presented the Bill which created the UK’s first DNA database. From the moment of conception, life begins, with unique DNA which no other human soul in the world has. Abortion, in the dictionary, means abandonment, death, destruction, expulsion, cancellation, rescission, revocation and feticide—cold, hard, final words which cannot be reversed.
I oppose these regulations. Abortion is a devolved issue. The Northern Ireland Assembly has now been sitting for over 15 months, so it is a serious violation of the devolution settlement for the Government to impose themselves further through the commissioning of abortion services—services which are already being provided. In the year since the abortion regulations were introduced, 1,345 lives have already been lost to abortion in Northern Ireland. There are now over 50 million abortions per year worldwide. That is more than one abortion per second. During the 90 minutes of this short debate, more than 5,400 babies worldwide will have been aborted.
Of the consultation responses, 79% registered general opposition, based on the historical and established position on abortion in Northern Ireland, yet these regulations ignore this clear opposition. These latest regulations go beyond what is available in the rest of the United Kingdom, against the wishes of the people of Northern Ireland and their politicians. For example, they permit gender-selective abortion and there is no requirement that a doctor be involved. There is a clear breach of Article 10 of the UN Convention on the Rights of Persons with Disabilities, which states that everyone has the right to life, whether able-bodied or disabled.
We start every day’s session in both Houses of Parliament with prayers. Surely God’s words in the Bible should not be ignored. Psalm 139, verses 13 and 16, emphasises how God views each and every life that He creates as ordained for a purpose and special:
“For you created my inmost being;
You knit me together in my mother’s womb …
Your eyes saw my unformed body;
All the days ordained for me were written in your book”.
We have a choice between man’s regulations and God’s words. Everyone who is for abortion has already been born. Unborn babies do not have voices, but they do have rights. A womb is not a tomb.
My Lords, these regulations present me with a quandary. I look at the abortion arrangements that they allow for women in Northern Ireland with some envy. The unconditional access to terminations pre 12 weeks, and a more liberal overall approach that effectively decriminalises abortion, go beyond the Abortion Act 1967, and many of us who have argued over the decades for full reproductive rights for women would want such arrangements extended to the whole of the UK. Conversely, the position for women in Northern Ireland previously, when abortion was legally permitted only in very limited circumstances, was highly proscriptive and led many women to fear stigmatisation and criminalisation for decisions made about their own body, a fundamental tenet of women’s freedom.
The recent problems created by a non-functioning Assembly, forcing women to travel for abortions or to see to term unwanted pregnancies, were intolerable. So I understand the justifiable argument for intervention while the power-sharing agreement was not functioning and women in Northern Ireland were left, in effect, without access to abortion services. But, and it is a big “but”, we now have a functioning Northern Ireland Assembly, and while abortion is a devolved matter, something which I prefer was not the case, the imposition of these regulations by Westminster decree without consent—indeed, in flagrant defiance of a rejection of these regulations by democratically elected Northern Ireland politicians—is an obvious flouting of democracy. Even amid concerns about delays in commissioning services by the Assembly, why does the Secretary of State have such sweeping powers? We do not even know when they will end.
This is made worse by the sensitivity of the issue. Votes on abortion are rightly recognised as a matter of freedom of conscience. I do not agree with the concerns raised by the noble Lord, Lord Shinkwin, that post-24 week terminations represent any threat to the rights of the disabled, but I defend his right to put these arguments, and acknowledge that this is a morally charged question. A tone-deaf breach of an already strained devolution agreement on this issue does nothing to win the argument for more liberal abortion arrangements in Northern Ireland or tackle the hard questions.
I urge women’s rights campaigners and the citizens of Northern Ireland to put their energies into winning public support in a popular mandate for changes in the law and in recognition of the importance of women’s bodily autonomy. For pro-choice campaigners to support a UK Government deploying procedural chicanery that gives the Secretary of State unprecedented powers to expand abortion services seems to be cheating politically, and to be counterproductive and antidemocratic. By the way, having 90 minutes to debate women’s rights or Northern Ireland devolution seems insulting to both.
My Lords, I have considerable sympathy with my noble friend on the Front Bench, because his entire legal case and the whole legal basis for his proposal collapsed within minutes of his sitting down after making his opening speech. In particular, as pointed out by a number of noble Lords but particularly the noble and learned Lords, Lord Mackay of Clashfern and Lord Hope of Craighead, he needs an international obligation to give him the statutory power to override the devolution settlement, but his own department and the Explanatory Memorandum admit—and our own Constitution Committee has indicated—that there is no international obligation present in the CEDAW documents.
What really interests me about this whole measure is not the assault it makes on devolution as an abstract concept but the direct assault it represents on the Good Friday agreement itself. Last year we discussed the Northern Ireland protocol—in my view a bad treaty that has brought disruption to businesses and consumers in Northern Ireland, irrespective of communal affiliation. Jovian thunderbolts flew around this House at the thought that the Government could modestly though unilaterally alleviate that disruption to the practical benefit of the people there. The rule of law reigned supreme.
When we come to the Good Friday agreement, Jupiter falls silent—but we would all agree that the Good Friday agreement is a good treaty. It has ended terrorist violence and given Northern Ireland democratic self-government, yet here we are messing about with it on highly dubious grounds and with cavalier high-handedness. As one noble Lord said earlier, it cannot end well.
Earlier today at the Dispatch Box, my very same noble friend Lord Younger spoke to your Lordships’ House of Her Majesty’s Government’s
“unwavering commitment to the Belfast/Good Friday agreement”.
That is not what we are seeing evidence of this afternoon. The weather has changed, with little explanation. It is yet possible that the Secretary of State and the Northern Ireland Executive will reach an accommodation on this, but to achieve that with a gun pointing at the heart of the Good Friday agreement is a price too high to pay. I urge my noble friend to withdraw these regulations and think again.
My Lords, as this debate has illustrated all too clearly, this subject provokes extremely strong emotions. I welcome these regulations from the Government but regret that they are necessary.
Contrary to many of the speeches we have heard this afternoon, there is in fact broad support in Northern Ireland and across party lines for the approach taken by the Northern Ireland Office in these regulations. Importantly, there is also a great deal of support for them from both the medical community and women’s rights organisations—points made extremely powerfully this afternoon by my noble friend Lady Barker. It is also worth noting that the regulations were adopted yesterday in the House of Commons by 431 votes to 89, a very substantial majority of 342 votes.
I pay tribute to the many dedicated healthcare professionals in Northern Ireland who have continued to support women and to provide reproductive healthcare in these most difficult of circumstances, made considerably more challenging by Covid-19.
Speaking to friends and colleagues in Northern Ireland, there is a deep sense of dismay at some of the political games being played here and much concern about some of the misinformation adding to the heat of this debate. The facts are that these regulations are concerned only with giving the Secretary of State for Northern Ireland powers to direct local health bodies and officeholders to commission abortion services. These regulations do not amend regulations and provisions for legal abortion care, which were supported overwhelmingly in Parliament last year.
As the report published last week by the House of Lords Constitution Committee sets out clearly, we should also recall that these regulations stem from the legislation passed during the period when the Northern Ireland Executive was suspended and before it was restored in January 2020. The 2020 regulations sought to bring Northern Ireland in line with the rest of the United Kingdom in reproductive rights and to ensure that the whole United Kingdom met its international requirements through CEDAW.
Of course, it would have been hugely preferable for the Northern Ireland Executive to have fulfilled their responsibility directly, but it is now more than a year since the Executive was restored and they have failed to do so. This seems unlikely to change in the near future so, faced with stalemate in the Executive on these matters, these regulations have become necessary. The debate this afternoon is really about ensuring the implementation of a law that has been in place for over a year now; it should not be about reopening or unpicking what should be a settled matter.
Debates about devolution and constitutional wrangling, as set out in several of the fatal amendments before us today, must not be allowed to hide the facts about what is happening now in Northern Ireland as regards access to vital reproductive healthcare and the impact this is having on women’s lives. Abortion in Northern Ireland is in a precarious position. Three local health trusts have stopped providing abortion services, with the consequence that once again women are being forced to travel to England for abortion services during a global pandemic or are purchasing unsafe abortion pills online. Despite the new legal framework coming into effect over a year ago, services remain unfunded and without commissioned support from the Northern Ireland Department of Health. It is surely unacceptable that reproductive rights vary across our United Kingdom.
I would like to reassure those colleagues who expressed concern about the potential impact of these regulations on the devolution settlement in Northern Ireland that—as my colleague in Northern Ireland, Alliance MP Stephen Farry, has said—these are an exceptional set of circumstances and should not create a wider precedent. As the Northern Ireland Office Minister Robin Walker put it so powerfully during the debate in the House of Commons earlier this week, and as the Minister repeated here this afternoon:
“At the heart of this matter are the women and girls in Northern Ireland who have been, and continue to be, denied the same reproductive rights as women in the rest of the UK”.—[Official Report, Commons, Delegated Legislation Committee, 26/4/21; col. 4.]
I therefore urge noble Lords to support these regulations and to reject all fatal amendments.
My Lords, just over nine months ago the Minister and I sat opposite each other at the Dispatch Box and the House debated the terms of the abortion provision in Northern Ireland, as set out in the 2020 regulations. Exactly a year before that, I sat opposite the noble Lord, Lord Duncan, while the House engaged in what was then a thoughtful and detailed debate on the Northern Ireland (Executive Formation etc) Act and the decriminalisation of abortion in line with the CEDAW recommendations, which we have heard about today.
This debate has been heard in your Lordships’ House on a number of occasions, and we know there are long and deeply held convictions across the House on both sides of the issue. That is evident today from the amendments we see, but I urge noble Lords to respect the views of other people in the language they use. Nobody has the moral high ground on this issue. One of the reasons I feel so strongly about the provision of abortion rights in Northern Ireland is that, as the noble Baroness, Lady Barker, pointed out, it is not compulsory but a provision of services.
Noble Lords may recall the reasons why the Republic of Ireland changed its law. In 2012 a 31 year-old woman was denied an abortion following an incomplete miscarriage because the law would not allow it, and she died as a result of being denied that abortion. I am sure no noble Lord in this House supports that happening to any woman, but the right of life is for women as well. That seems not to have been addressed in the debate we have had, and I am sorry for the tone of some of the comments that have been made.
It is now getting towards two years since the Northern Ireland (Executive Formation etc) Act was passed, and the Secretary of State has a statutory duty to ensure that the recommendations in paragraphs 85 and 86 of the CEDAW report are implemented. The change in law then was in response to findings that the United Kingdom, as the state party, was responsible for
“grave and systematic violations of rights”.
It was then, as it is now, the duty of this Parliament and the UK Government to uphold the rights of their citizens at a UK-wide level.
Although the 2020 regulations provided a framework for service provision, we know that the proper funding and commissioning of those services is yet to take place. That leaves women and girls in Northern Ireland without the same access to reproductive rights and advice as their counterparts in every other part of the UK. The existing law is not being implemented, and that is the reason behind these specific and, as we have heard, limited regulations before us today.
Today’s order is supported by the Royal College of Obstetricians and Gynaecologists, the British Pregnancy Advisory Service, Amnesty International and Informing Choices NI. They report that: early abortion services are currently beset with uncertainty; they are being run by local health trusts without funding, which puts them at risk of temporary or permanent closure; and multiple heath trusts have stopped provision of services for periods of time. I have heard just this weekend that, in the Western Health and Social Care Trust, services were being provided by a single doctor without support until, unsurprisingly, that was no longer viable. On Friday, that trust suspended its early medical abortion service, effective immediately, and is refusing all referrals. Today’s order gives the Secretary of State the power to direct that necessary action be taken to provide safe abortion services in Northern Ireland, as the law requires. We support it.
I have a couple of questions for the Minister and one brief comment, if time allows. First, he said the Secretary of State does not intend to use his power to direct immediately, but he is seeking further action from the Department of Health before the Summer Recess. Can he give any more information on that? Largely, my issue is with the continuing uncertainty.
Secondly, it has to be recognised that abortion services are not a stand-alone provision. They are part of the wider landscape of reproductive sexual health services. Could the Minister give more details on what supportive work is being done to provide counselling, access to contraception and quality relationship and sex education alongside changes in healthcare provision? The two go hand in hand.
Finally, the noble Baroness, Lady Suttie, spoke about the vote in the House of Commons last night, when these regulations were supported by 431 votes to 89. When we had a debate on the 2020 regulations, I said:
“As an unelected House, our role on secondary legislation is limited and narrow.”—[Official Report, 15/6/20; col. 1995.]
I have said something similar in your Lordships’ House on a number of occasions. At times, we find that frustrating—nobody more so than me, I can say. It remains frustrating, but it also remains my view that that is our role with secondary legislation. It would be extraordinary if, having seen secondary legislation passed in the House of Commons by 431 to 89, this House would decide to take a different view and, in effect, pass fatal Motions. As I have indicated, I support the order and oppose all three amendments.
My Lords, first, I thank all speakers who contributed to this debate on the regulations on a subject matter which, as I said in my opening speech, I fully recognise is a sensitive and emotive issue. But can I start by saying how much I appreciated the remarks from the noble Baroness, Lady Suttie? Her speech was sensible and balanced in terms of where we are now. She used the word “regret,” and she is right, in terms of the position we find ourselves in.
I would also like to thank the noble Baroness, Lady Smith, for her remarks. I was grateful that she put, extremely eloquently, what we might both agree is the other side of the argument. I was very moved by the short story that she gave about the sad case of a particular girl.
I will directly answer one question the noble Baroness, Lady Smith, gave about the remarks that came from the Minister of State, Robin Walker, who said the plan is that the Department of Health in Northern Ireland will, hopefully, take heed of what we are doing and move quickly. However, he is happy to have what he has called a pause before the Summer Recess. That means he wants to allow further movement from the Department of Health so is prepared to allow a bit of leeway. I hope that provides some clarity, but if it does not, I will certainly write to the noble Baroness.
The noble Baroness’s second question, which I scribbled down, on the extent and quality of abortion services, is an extremely good point. I may be able to address that later, but if not, again, I shall write to the noble Baroness.
Of course. That is an extremely good point. I will pick up on that.
However, I recognise that several noble Lords—and many today—have registered their strong opposition to what we are doing. But we are under a clear statutory duty, and it is important that women and girls in Northern Ireland are afforded equal rights to those living across the rest of the UK.
Before turning to the substantive issues raised in today’s debate, since some noble Lords have questioned the extent of our legal powers, I would like the House to note that the JCSI has not drawn the instrument to the attention of both Houses for being ultra vires. But I will speak about constitutional matters later on, assuming that there is time.
I also note the amendments tabled by the noble Lord, Lord Morrow, the noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin. I hope that the answers I give in relation to the issues raised will go a little way in explaining that these amendments, in our view and in my view, should not be supported.
My noble friend Lord Shinkwin raised issues about the potential for the framework set out in the March 2020 regulations to allow for discrimination against disability. I do, as he will know, respect my noble friend, and I am grateful to him for raising this important and sensitive issue once again. He should note that we are legally bound to implement the CEDAW recommendations, which include providing access to abortions in cases of severe foetal impairment, not only in cases of fatal foetal abnormalities. It is our firm view that the regulations properly comply with the statutory duty under Section 9 of the NIEF Act, which includes implementing all the recommendations in the CEDAW report. The regulations mirror the law in the rest of the UK, where abortions are permitted in cases of severe foetal impairment and fatal foetal abnormality, with no time limit.
The Government would never act to discriminate on the basis of disability. The regulations are consistent with the rights under the United Nations Convention on the Rights of Persons with Disabilities. Proper provision of information, clear medical advice and counselling and other supports are all key in allowing a woman or girl to make an informed decision in what are often difficult situations. I was grateful for the remarks made by the noble Baroness, Lady Barker, who spoke eloquently and passionately about this aspect. This ensures access without barriers for victims of sexual crime as well as other women seeking an abortion, supporting the rights of women and girls to make informed decisions about how they wish to proceed, based on their health and wider circumstances, within the health system, rather than looking to alternative, unsafe means. This provision was determined as the most appropriate way of meeting our statutory duty and what CEDAW requires by ensuring that women, including victims of sexual crime, access services without undue delay while avoiding anything that could lead to further trauma or act as a barrier to access.
I would like to pick up on a point raised by my noble friend Lord Shinkwin. I will not be addressing his very strong views that he raised, and, as he would expect, I disagree very strongly with much of what he said, I regret to have to say. Let me say this: given the often late diagnosis and the timing of follow-up scans and tests, women will need to be given time to understand the nature and severity of the condition that they find themselves in. It is only right that women have appropriate time to make individual, informed decisions based on their own health and wider circumstances, including support where they want to carry a pregnancy to term. I think this point was made by the noble Baroness, Lady Barker, as well. It is crucial that the Department of Health acts urgently to formally commission full services, consistent with the regulations we made, so that these support measures can be properly delivered.
As I mentioned in my opening speech, I remind noble Lords that the Assembly can consider and debate issues related to abortion. As I also said in my opening speech, any amendments must be compliant with convention rights, and the Secretary of State has an ongoing obligation to ensure ongoing consistency with the recommendations in the CEDAW report in Northern Ireland.
The noble Lord, Lord Morrow, said that abortion remains devolved, and that the Government should instead be asking Parliament to repeal Section 9; that was mentioned by a few other Peers as well. I remind noble Lords that, although the Executive was restored, the statutory duty in Section 9 of the Northern Ireland (Executive Formation etc) Act did not fall away with the restoration, nor with the making of the initial regulations that came into force on 31 March 2020. The devolution settlement does not absolve us of our responsibility to uphold the rights of women and girls in this context. The noble Lord may not agree, but I think this goes a little way towards answering the question raised by the noble and learned Lord, Lord Hope of Craighead. This is not about stepping in on a devolved matter, as the noble Baroness, Lady Hoey, suggested it was. This is about ensuring compliance with the statutory duties Parliament imposed on the Secretary of State for Northern Ireland in mid-2019.
One point that I wish to comment on—it was also raised by the noble Baroness, Lady Suttie—is that I do not believe that the noble Lord, Lord Morrow, is correct when he says that all Northern Ireland MPs oppose this. May I quote from Stephen Farry, who said:
“As an MP from Northern Ireland, I wish to stress my support for these regulations and the approach that is being adopted in this particular area by the Northern Ireland Office. There is a broad-based political support, and most importantly from the women’s sector, for these regulations.”
Here I echo the words of the noble Baroness, Lady Suttie. This should not be lost on the House.
We are in a unique position on this issue. As I said earlier, Parliament placed the Government under a very specific statutory duty with respect to access to abortion services in Northern Ireland. That is why we have had to deliver the regulations, and continue to have a role in this space. I must re-emphasise these points to many who have spoken today, including my noble friend Lady Eaton, and the noble Lord, Lord Taylor. Although we made the regulations last March providing the framework for access to abortions, and some service provision commenced, this has not discharged that statutory duty in full. We are not seeking to reopen the 2020 abortion regulations, which were approved by a significant majority of this House—by 332 votes to 99—last year.
I shall now quickly answer some of the points raised by the noble Baroness, Lady O’Loan, about the Secondary Legislation Scrutiny Committee’s report, which noted “complex legal and constitutional” issues. I agree that the issues raised are complex. I also agree with what the House of Lords Select Committee on the Constitution said; this was also raised by the noble and learned Lord, Lord Hope. It said that the UK Government and the Northern Ireland Executive should engage in a “constructive” manner.
I recognise that some noble Lords have concerns about the regulations providing unconditional access to abortions up to 12 weeks’ gestation. This provision was determined as the most appropriate way of meeting our statutory duty, and what CEDAW requires, by ensuring that women, including victims of sexual crime, can access services without undue delay while avoiding anything that could lead to further trauma or act as a barrier to access. Based on current public data, 86% of the abortions accessed by residents of Northern Ireland in England under the Abortion Act 1967 in 2018-19 took place prior to 12 weeks’ gestation and would be covered by this limit.
Before I finish winding up, I want to answer a point raised by my noble friend Lord Moylan and my noble and learned friend Lord Mackay on the international aspect of this obligation. It is true that the rules are domestic, so the duty to implement the CEDAW recommendations in this context is a matter of domestic law, which the Secretary of State is under a statutory duty to deliver, not a matter of international law. We recognise that Parliament has stepped in and imposed this duty on the Secretary of State for Northern Ireland on human rights grounds. I have addressed that directly.
In conclusion, we should bear in mind the fact that these further regulations are ultimately about ensuring that the regulations made in March 2020 are implemented. Essentially, they are about the rights of women and girls, and their being able to access medical treatment in distressing and difficult circumstances, where they have a right to choose what is right for them. We should act in a way to support them in these cases. That is why I commend the regulations to the House.
My Lords, I have listened carefully to this debate, and I would like to correct a couple of misapprehensions. Abortion services are available in Northern Ireland, and they are funded. There were 1,345 funded abortions in Northern Ireland, and there have been no instances in which people have been refused abortion in the way described by the Minister. More importantly, support services are also available. We do need more resources; we always need more resources.
Noble Lords have identified the important issues here as the protection of life and our constitutional settlement in Northern Ireland. To revert to the Minister’s last point, where Parliament has legislated, it can, using its sovereign powers, change the law. This matter of the CEDAW recommendations is not a matter of our international human rights obligations, and is therefore devolved. It is therefore a matter that the Northern Ireland Assembly can change.
I thank noble Lords for their thoughtful and considered contributions to the debate. I thank those who recognised the current situation and spoke to encourage the work of the Assembly. I also thank the noble and learned Lords, Lord Mackay and Lord Hope, and other noble Lords for their clear articulation of the nature of our constitutional devolution settlement, which is the product of the Good Friday agreement, which is under threat as we talk today. We have had people, particularly in the loyalist community, withdrawing their support from the Good Friday agreement.
Amendment to the Motion
Leave out all the words after “that” and insert “this House declines to approve the Regulations laid before the House on 23 March because (1) rather than expressing the reality of the union between the constituent parts of the United Kingdom, they place that union in jeopardy, depending as they do on the power in section 9 of the Northern Ireland (Executive Formation etc) Act 2019, which was passed despite all of the Members of Parliament representing seats in Northern Ireland who had taken their seats at Westminster voting against amending the Northern Ireland (Executive Formation etc) Bill on 9 July 2019 to require the Secretary of State to make regulations to give effect to the recommendations of the report of the Committee on the Elimination of all forms of Discrimination Against Women, published on 6 March 2018; (2) abortion remains devolved and the Northern Ireland Assembly and Executive have now been restored for more than a year; (3) rather than welcoming the restoration of devolution, the draft Regulations undermine it to a greater extent than the Abortion (Northern Ireland) (No. 2) Regulations 2020 as they address devolved policy competencies beyond abortion, including education and health; and (4) the remit of everything in the Northern Ireland (Executive Formation etc) Act 2019 is defined in terms of moving towards the restoration of the Executive which has taken place, so rather than making new regulations as if Stormont was still suspended, and asking Parliament to pass them, Her Majesty’s Government should instead be asking Parliament to repeal section 9.”
My Lords, before I move my amendment, perhaps I might make a point of clarification. I think the Minister misunderstood and misquoted what I said and I just want to clarify what I said, which was this. A vote took place on 9 July 2019 in which 100% of Northern Ireland MPs who take their seats in Northern Ireland voted no. I am sure that the House will have noted today that no Peers from Northern Ireland have voted in support of the regulations. I beg to test the opinion of the House.
Amendment to the Motion
Leave out all the words after “that” and insert “this House declines to approve the Regulations laid before the House on 23 March because they give the Secretary of State the power actively to commission discrimination in Northern Ireland by denying unborn human beings with disabilities the same protections afforded non-disabled human beings between 24 weeks gestation and full term; and because such commissioning would implicate the Secretary of State, and by extension Her Majesty’s Government, in the perpetuation of negative stereotypes towards people with disabilities, as it would provide that while unborn non-disabled human beings from 24 weeks’ gestation are worthy of protection from termination, those who might be born with disabilities are not.”
My Lords, I will keep my remarks very brief. I thank noble Lords who spoke in support of genuine equality. I am sure that that will be appreciated by disabled people and their families, whose voices are so often drowned out on this issue. They know, as I do, that the idea that these regulations are not discriminatory is absurd. I beg to test the opinion of the House.
Arrangement of Business
My Lords, these proceedings will follow guidance issued by the Procedure and Privileges Committee. When there are no counterpropositions, as for Motion A, the only speakers are those listed, who may be in the Chamber or remote. When there are counterpropositions, as for Motion B, any Member in the Chamber may speak, subject to the usual seating arrangements and the capacity of the Chamber. Any intending to do so should email the clerk or indicate when asked. Members not intending to speak on a group should make room for Members who do intend to do so. All speakers will be called by the Chair. Short questions of elucidation after the Minister’s response are permitted but discouraged; a Member wishing to ask such a question, including Members in the Chamber, must email the clerk.
Leave should be given to withdraw Motions. When putting the Question, I will collect voices in the Chamber only. Where there is no counterproposition, the Minister’s Motion may not be opposed. If a Member taking part remotely wants their voice accounted for if the Question is put, they must make this clear when speaking on the group. Noble Lords following proceedings remotely but not speaking may submit their voice, Content or Not-Content, to the collection of the voices by emailing the clerk during the debate. Members cannot vote by email. The way to vote will be via the remote voting system.
Financial Services Bill
Commons Reason and Amendment
1A: Page 36, line 13, at end insert the following new Clause—
“FCA rules about level of care provided to consumers by authorised persons
(1) The Financial Conduct Authority must carry out a public consultation about whether it should make general rules providing that authorised persons owe a duty of care to consumers.
(2) The consultation must include consultation about—
(a) whether the Financial Conduct Authority should make other provision in general rules about the level of care that must be provided to consumers by authorised persons, either instead of or in addition to a duty of care,
(b) whether a duty of care should be owed, or other provision should apply, to all consumers or to particular classes of consumer, and
(c) the extent to which a duty of care, or other provision, would advance the Financial Conduct Authority’s consumer protection objective (see section 1C of the Financial Services and Markets Act 2000).
(3) The Financial Conduct Authority—
(a) must carry out the consultation, and publish its analysis of the responses, before 1 January 2022, and
(b) must, before 1 August 2022, make such general rules about the level of care that must be provided to consumers, or particular classes of consumer, by authorised persons as it considers appropriate, having regard to that analysis.
(4) The duties to consult under this section may be satisfied by consultation carried out after 1 January 2021 but before this section comes into force (as well as by consultation carried out after this section comes into force).
(5) In this section—
“authorised person” has the same meaning as in the Financial Services and Markets Act 2000 (see section 31 of that Act);
“consumer” has the meaning given in section 1G of that Act; “general rules” means rules made under section 137A of that Act.”
My Lords, this Financial Services Bill will enhance the UK’s world-leading prudential standards, promote financial stability, promote openness between the UK and international markets, and maintain an effective financial services regulatory framework and sound capital markets. I acknowledge the work of your Lordships in scrutinising this important Bill. The issue of parliamentary scrutiny has been prominent in our debates and noble Lords have more than demonstrated the positive role that they can play in this regard.
During the passage of the Bill, Members of both Houses debated how best to address issues of consumer harm in the financial sector. Amendment 1, which this House approved on Report, proposes that this should be addressed through a requirement for the FCA to bring forward rules on a duty of care. Let me underline that the Government are committed to ensuring that financial services consumers are protected and that steps are taken quickly to address issues, when they are identified. However, as the Economic Secretary set out in the other place, the Government believe that the FCA already has the necessary powers and is acting to ensure that sufficient protections are in place for consumers, so I cannot accept this amendment.
It is important to remember that financial services firms’ treatment of their customers is already governed by the FCA’s Principles for Businesses and specific requirements in its handbook. These fundamental principles set out specific requirements for firms, including that
“A firm must pay due regard to the interests of its customers and treat them fairly.”
The FCA’s enforcement powers allow it to ensure that these standards are met, but it recognises that the level of harm in markets is still too high. It is committed to taking further actions.
The Government accept, as the noble Lord, Lord Tunnicliffe, has rightly suggested, that this harm may stem from asymmetry of information between financial services firms and their customers. The risk is that some firms may seek to exploit this asymmetry. The FCA is well aware of how informational asymmetries and behavioural biases can influence consumer behaviour, and it works every day to address these issues where it considers that they may result in harm. The Government therefore support the FCA’s ongoing programme of work in this area and believe that it will deliver meaningful change for the benefit of consumers.
The FCA has considered its existing framework of principles and whether the way in which firms has responded to them is sufficient to ensure that consumers have the right protections and get the right outcomes. Building on this, in May, the FCA will consult on clear proposals to raise and clarify its expectations of firms’ actions and behaviours and on any necessary changes to its principles to deliver them. These proposals will consider how to raise the level of care that firms must provide to consumers, through a duty of care or other provisions. Ultimately, the proposals in this consultation seek to ensure that consumers benefit from a better level of care from financial services firms.
Amendment 1A puts this work on a statutory footing. It requires the FCA to consult on whether it should make rules providing that authorised persons owe a duty of care to consumers. It ensures that the FCA will publish its analysis of the responses to this consultation by the end of the year. It also ensures that the FCA will make final rules, following that consultation, before 1 August 2022. I hope that this provides reassurance of both the FCA’s and the Government’s commitment to this important agenda. I urge the House to accept this proportionate and, I believe, well-judged amendment.
The FCA will bring its consultation to the attention of the relevant parliamentary committees. This will give them an opportunity to consider the proposals and, if they choose, to express a view or raise any issues. The FCA will respond to any issues raised by parliamentary committees, in line with commitments made during the passage of this Bill.
Let me end there. I hope that noble Lords will accept Motion A and this amendment in lieu.
My Lords, we will not challenge this Motion. I cannot say that it goes as far as reassurance, but I think we are in a much better place to have the consultation and its characteristics in statute on the face of the Bill. I particularly thank the Minister and his team. I suspect they have been instrumental in making sure that the concerns, from all sides of the House, were communicated back to the Treasury and the Treasury team.
The Minister today repeated a number of the statements that the Economic Secretary made in the other place when he addressed this issue. I will highlight a few that were of particular importance to me. The FCA recognises that,
“the level of harm in markets is still too high and is committed to—”—[Official Report, 24/4/21; col. 867]
taking further actions. That is an important statement to have on the record. I am slightly concerned, however, that the focus of the FCA should not exclusively be on asymmetry of information. Asymmetry of information is fundamental and important, but it is far from everything. The Economic Secretary said that
“the FCA will consult in May on clear proposals to raise and clarify its expectations of firms’ actions and behaviours, and on any necessary changes to its principles to deliver this.”—[Official Report, Commons, 26/4/21; col. 84]
I hope that will not be confined simply to asymmetry of information, but as the Economic Secretary said, and the Minister today said, Parliament wants to be assured that the FCA’s ongoing work will lead to meaningful change. I think that reflects some of the frustrations expressed in this House of having had eight consultations to date and relatively little action. I hope this will lead to a great change.
In the amendment in lieu—this is perhaps something the noble Lord, Lord Eatwell will address more extensively than I—the fact that all consumers are part of the consideration is an important one. I want to use this opportunity to underscore to the Minister how urgent and significant this issue is.
When the Government’s amendment in lieu was passed, I got an email from one of the leading financial services lawyers in the country, and two things are pertinent. It said that it looks like this one is headed for the long grass again. I think that is partly because we are looking at action in 2022 and not immediately. The reason for that level of concern was, apparently, that audit firms are now saying that any credit risk between the client and the authorised firm should be counted as client money within the meaning of CASS—the protection of client assets and money. This is storing up some big problems when one of these babies—we are talking about firms that collectively have well over £10 trillion in assets under management—goes down and a judge finds that the trust is bust because they comingled client money with money that is not. Lehman Brothers, here we go again. I went immediately to the FCA site, and it is an excellent but sad example of the very limited powers that the FCA has to deal with such situations, because of the regulatory perimeter that limits a great deal of their potential for action to their definition of consumers. The issue has always been that that is a very narrow definition of consumer.
Every day we wait for a duty of care to become embedded in the system, we run significant risk. It is a risk that none of us wants—it has the potential to be limited to a small pool of clients, but also to knock the economy off its paces once again. It is important that there is an element of urgency built into all of this, that the issue is taken seriously and that there is not an attempt to narrow examination by and the focus of the FCA to simply something like asymmetry of information, but to consider the much wider picture before we end up with another crisis none of us wants.
My Lords, while we on this side of the House were hoping for action rather than further consultation, and we remain somewhat puzzled as to exactly what further the FCA has to learn that was not learned in the consultation of 2018 when it published a discussion paper entitled with some prescience, A Duty of Care and Potential Alternative Approaches. None the less, despite our desire for action and puzzlement in that respect, we welcome the tenor of the Government’s amendment.
In particular, I congratulate the Government on the clear acknowledgement that real harm is done today to millions of users of financial services by this famous asymmetrical relationship in financial transactions and that harm is done to those excluded from access to financial services. As evidence of this acknowledgement, I refer to the remarks just made by the noble Earl, Lord Howe, and also the remarks by the Economic Secretary to the Treasury, referred to by the noble Baroness, Lady Kramer. For example, Mr Glen said:
“The Government agree with the concerns that … this harm may in part stem from an asymmetry of information between financial services firms and their customers. The risk is that many firms may seek to exploit this asymmetry. The FCA is well aware of how informational asymmetries and behavioural biases can influence consumer behaviour, and is committed to ensuring that these issues are addressed where it considers that they may result in harm”.—[Official Report, Commons, 26/4/21; cols. 83-84.]
All I can say to that is: “Quite right too”.
I am particularly pleased that in new subsection 2(b) in their amendment, the Government refer to the need to extend the duty of care to “all consumers”. I urge the FCA to ignore the suggestion that a duty of care might be limited to “particular classes of consumer”. That way lies unnecessary complexity and the potential for error and injustice. Any inclusive list of “particular classes” is also a list that excludes. Confining the duty of care to particular classes would also eliminate the peculiar advantages of principles-based regulation, namely the flexibility of the principle in an industry of which persistent innovation is a defining characteristic. This is an advantage not to be sacrificed lightly.
In the debates on this issue—including those in the other place—not only Mr Glen, but the noble Earl, Lord Howe, the noble Baroness, Lady Kramer, and several noble Lords have referred to the prevalence of asymmetric information in retail financial services. As we know, this renders markets inefficient. In retail financial markets, asymmetric information results in excessive risk being loaded on to consumers. A duty of care will rebalance risk by shifting the balance of risk from the consumer back towards the provider, which in an efficient market is where it should be.
However, the FCA must be alert to a potential consequence. This may well result in some financial services providers deciding to withdraw from the provision of services where previously they happily dumped the risk on consumers. This increase in exclusion would be contrary to the intent and spirit of the Government amendment. We should therefore emphasise that having the status of an authorised person in financial services is a privilege, and with that privilege comes responsibility. Indeed, as Mr Glen remarked in the other place,
“authorised persons owe a duty of care to consumers.”—[Official Report, Commons, 26/4/21; col. 84.]
He is quite right. It is the responsibility of financial institutions providing financial services not to withdraw but, on the contrary, to play their full part in tackling financial exclusion. I am sure that the FCA will address this issue as it draws up its new general rules on the level of care.
The amendment sets out proposals on consultation. Consultations are important sources of information, and it is beneficial that those most active in the industry have the opportunity to express their views and to identify potential pitfalls. However, there is always the danger that the consultation that the FCA undertakes will be seen as an exercise in circumscribing the field of action—in watering down the duty of care. We should support the contrary. The FCA should not regard the results of the consultation as defining what it should do; rather, it should do the right thing. Having been a regulator myself, I know that regulators are never popular, but consultation is not a popularity contest.
A most welcome element in the Government’s amendment is the timetable for action—not the immediate legislative action that we on these Benches sought, but a timetable none the less. I assure the Minister that we will be ticking off the dates by which the FCA is required to act, and of course we will scrutinise the new general rules with great care. In doing so, I look forward to working with the noble Earl, Lord Howe, to achieve what is now a clearly shared objective: a well-defined regulatory principle of duty of care.
My Lords, I express my thanks to the noble Baroness, Lady Kramer, and the noble Lord, Lord Eatwell, for what they have said. I am pleased that they have both taken the trouble to read the words of my right honourable friend the Economic Secretary when responding to the debate in the other place on Monday. I was careful to frame my remarks in a way intended to ensure that there is not a hair’s breadth of difference between his words and mine.
The noble Lord made some very well-observed remarks on the risks arising from asymmetric information. However, I am happy to confirm to the noble Baroness that the FCA’s consultation will not be solely focused on asymmetry of information, important though that is; it will look more broadly at raising the level of care that firms provide to consumers—not particular classes of consumers, but all consumers.
Some hesitation—I think that is the best word—was expressed as to why there is yet another consultation. In response to that, I say that it is important that consumer groups and firms have the opportunity to comment on clear proposals and subsequent draft rule changes before final rules are set in stone. So I argue that it is a necessary step, even though I fully understand the noble Baroness’s wish for action this day. I remind her that we are talking about a consultation to be launched very shortly, and I hope that indicates that the sense of urgency which both noble Lords have indicated is right is shared by the FCA.
The FCA will and must act in accordance with its statutory objectives, which include the consumer protection objective. I come back to that point: this is not an issue that is ever lost on the FCA. With those comments, I am grateful to both noble Lords for their acceptance of the amendment in lieu, and I beg to move.
My Lords, we have a request to speak after the Minister from the noble Baroness, Lady Neville-Rolfe.
My Lords, I join others in congratulating my noble friend the Deputy Leader of the House and other Members of the Front Bench on the way they have dealt with the Bill and got us to this final stage. I just have a question about the consultation on the duty of care, and it stems from my experience in other areas of regulation—that is, health and safety and food safety. I have found that, where a duty of care is introduced, it is sometimes possible to change adjacent rules and regulations in a regulatory area and reduce the bureaucracy that can be a problem for both consumers and operators in the field. I would be interested to know whether that sort of work is likely to be envisaged by the Economic Secretary.
Motion A agreed.
8A: Because the Commons consider that it is not a proportionate or practical means of tackling the issues around consumers who have mortgages with inactive firms.
My Lords, Amendment 8 concerns mortgage prisoners, an issue that the Government take extremely seriously. We are committed to finding practical and proportionate solutions to help this group but, as Motion B in my name makes clear, the amendment is not one that the Government can accept. As explained in Reason 8A, the amendment is neither a proportionate nor a practical response to this complex issue, and this is why the Government cannot support Motion B1, tabled by the noble Lord, Lord Sharkey.
In our previous debates, my noble friend Lord True set out the FCA’s analysis of this complex issue. To recap briefly, according to FCA data, there are 250,000 borrowers with inactive lenders. Of these, analysis suggests that 125,000 borrowers could switch mortgage providers if they chose to, even prior to the introduction of the FCA’s new rules. Of the 125,000 who cannot switch, the FCA estimates that 70,000 are in arrears and so would struggle to access a new deal even in the active market. The FCA therefore estimates that there are 55,000 borrowers who may struggle to switch but are up to date with their payments. Its data show that, on average, the 55,000 borrowers with inactive firms who have characteristics that would make it difficult for them to switch but are up to date with payments are paying around 0.4 percentage points more than similar borrowers with active firms who are now on a reversion rate.
As the Economic Secretary set out on Monday, the reason these borrowers are unable to switch is not that their mortgage is with an inactive firm; it is that they do not meet the risk appetite of lenders. For example, they may have a combination of high loan-to-value, be on interest-only mortgages with no plan for repayment, or have higher levels of unsecured debts, non-standard sources of income or a poor credit history. Similar borrowers in the active market are also very unlikely to be offered deals with new lenders.
My noble friend Lord True has previously set out the significant work undertaken by the Government and the FCA in this area, which has created additional options to make it easier for some of these borrowers to switch into the active market. If we look at Amendment 8, we see that what it proposes would be a very significant intervention in the private mortgage markets and in private contracts. It would bring with it a risk to financial stability as it would restrict the ability of lenders to vary rates in line with market conditions. The ability to vary standard variable rates allows lenders to reprice products to reflect changes to the cost of doing business and could therefore create risks with significant implications for financial stability. On top of that, the amendment is not fair to borrowers with active lenders in similar circumstances as it targets only borrowers with inactive lenders. Indeed, this cap would be deeply unfair to borrowers in the active market who are in arrears or unable to secure a new fixed-rate deal because it would not include them.
So, at the most basic level, I just do not think it is right to introduce such a significant intervention for those with inactive lenders which could cut their mortgage payments far below the level of someone in a similar financial situation who happens to be with an active lender. Nevertheless, while the Government are opposing this amendment today, I want to reiterate our commitment to finding any further practical and proportionate options for affected borrowers, supported by facts and evidence.
On Monday, the Economic Secretary set out what further steps the Government and the FCA are taking and I want to repeat those commitments today: namely, that
“the Treasury will work with the FCA … on a review to its existing data on mortgage prisoners”.
This will ensure that we have the right data
“on the characteristics of those borrowers who have mortgages with inactive firms and are unable to switch despite being up to date with their mortgage payments. The FCA will also review the effect of its recent interventions to remove regulatory barriers to switching for mortgage prisoners and will report on this by the end of November, and … a copy of that review”
will be laid before Parliament.
“The Treasury will use the results of the review … to establish whether further solutions can be found for such borrowers that are practical and proportionate.”—[Official Report, Commons, 26/4/21; col. 87.]
Within the significant constraints that I have noted, I want to reassure the House that the Economic Secretary, as the Minister responsible for this area, will continue to search for any further solutions that may provide support for borrowers with inactive lenders who are unable to switch. But, again, they must be practical and proportionate. The Economic Secretary has also confirmed that he will write to active lenders and encourage them and the wider industry to go even further and look at what more they can do to ensure that as many borrowers as possible benefit from these options.
I hope I have convinced the House that the Government are taking the appropriate next steps and have demonstrated our commitment to continuing to work tirelessly on this. Therefore, I ask the House not to insist on this amendment and I beg to move.
Motion B1 (as an amendment to Motion B)