House of Lords
Tuesday 22 November 2022
Prayers—read by the Lord Bishop of London.
Child Hunger in Schools
To ask His Majesty’s Government what steps they are taking in response to research on increased child hunger in schools, including that published by Chefs in Schools on 18 October, which found that 83 per cent of primary school teachers said that children were coming to school hungry.
My Lords, I thank Chefs in Schools for commissioning this survey. Under the benefits-related criteria, the Government provide a free healthy meal in term time to around 1.9 million children. Eligibility has been extended several times, and to more groups of children than under any other Government over the past half century. This has included the introduction of universal infant free school meals and further education free meals. We continue to keep eligibility under review.
My Lords, when so many teachers are reporting children coming to school hungry, with heartbreaking accounts of hungry children in tears or even stealing food because their parents cannot afford enough food, something is going very wrong, despite what the Minister said. Does she accept the evidence that hunger adversely affects children’s ability to learn and their health and well-being? Given all the evidence, why do the Government reject the growing calls for free school meals to be extended to the 800,000 children in families on universal credit who do not qualify? At the very least, why do they not inflation-proof the net earnings eligibility limit of £7,400, set in 2018?
Well, of course the Government accept that, if children are hungry, it makes it harder for them to learn. But I point out that the survey looked at a relatively small number of teachers—around 520—while there are 250,000 primary school teachers in our schools. To reiterate my first Answer, the number of children receiving free school meals is the highest that it has ever been, and the Government’s strategy has been to support the disadvantaged in this cost of living crisis. There are ways of doing that; the noble Baroness is familiar with the energy support package and other measures that we have taken so that no child should have to go hungry.
My Lords, has the Minister noticed the appalling rise in the number of children who are now below the poverty line in the north-east of England? Up until 2010, there was a decrease in the number of children who were in that category in the north-east, but the number has risen more than in any other region and is now the highest in the country. This is shocking and of course affects their school performance and future prospects. Along with going hungry, that is something no Government should accept. What will the Government do about it?
Since day 1, the Government have been clear that our absolute priority is levelling up opportunity across the country, including, of course and importantly, in the north-east. I understand the noble Baroness’s concerns, which are shared by my ministerial colleagues. But I point her to the £12 billion in direct support that we are targeting to the most vulnerable families in 2023-24.
The point that more people now have school dinners is actually wrong because, when I was a young boy in the 1950s and 1960s, we had free school dinners, olive oil capsules and milk—all the things that children need now. So could the Minister consider going back to those old days?
The noble Lord reminds a number of us of our schooldays, although I cannot remember the olive oil capsules—anyway, they sound very healthy. More seriously, the Government are thinking about this, not only in term time but in the holidays with our holiday activities and food programme, making sure that the children who need it most get the support that they need.
Can my noble friend the Minister—not wanting to go back to the 1960s, when people were given free school meals, but looking to the future—say how schools have expanded the breakfast clubs that are available? Can she also say a little more about this survey? Did I hear correctly that she said it was based on 500 teachers out of about 200,000?
We genuinely welcome every bit of research that helps us understand the issues that families are facing. As my noble friend picked up on, I was making the point that, in this case, the survey sample was just over 500 teachers in primary schools—and, overall, we have about a quarter of a million of them. In relation to breakfast clubs, we have invested £24 million over the last two years in supporting school breakfast provision. That again is targeted absolutely at the most disadvantaged children, making sure that it reaches those who need it.
My Lords, the Minister said in answer to an earlier question that no child should have to go hungry. I am sure that the whole House agrees with that, but the truth is that, every day, tens of thousands of children go hungry because they come from poor households but are not eligible for free school meals. Unless eligibility is extended to children from families in receipt of universal credit, there is no way that, in many cases, children will be going to school without being hungry. Would the Minister accept that that is the truth and use it for the basis of future policy development?
I will say two things in response. First, of course we will keep the policy under review. But I am sure that the noble Lord would accept that you cannot take funding for free school meals separately from other elements of support for vulnerable families. Secondly, the point that I have been making is that the support for those families, under this Government, has been targeted and extensive.
My Lords, the food strategy of just this year said that it hoped it would spark a school food revolution. This has not happened. The Chefs in Schools report makes for stark reading and includes shocking revelations about the sheer scale of child hunger. When will the UK Government follow the Welsh Labour Government’s lead in providing breakfast clubs and investing in all our children?
The Minister well understands that the children who are hungry at school may well have other vulnerabilities, and therefore the one point of contact between the child and the state is their school. Could the Minister continue to do all that she is doing—I know she is doing a lot—to make sure that schools are aware of looking at the whole child and not just thinking about academic subjects, important though they are?
The noble Lord, as ever, makes an important point. We really are looking at that closely, not just in a school setting but, as importantly, in relation to early years and nursery settings. He will be aware that, post Covid, many children are arriving at school who are not school-ready in the way that we expected, and we are looking at that.
My Lords, locally sourced food could be served in schools and other local authority institutions such as prisons and hospitals. If 50% of all the food served in school meals was locally sourced, would this not reduce the cost of production?
My Lords, of course no child should go starving. Would the Minister not consider extending the coalition’s policy of giving free school meals to all key stage 1 children to key stage 2, and at secondary school—key stage 3—ensure that every pupil whose parents are on universal credit gets a free school meal?
I think I have tried to answer that question in a couple of ways. It comes down to: should the Government be funding a number of separate things to support parents or should the Government be putting money in the hands of parents so that they can make the choices that are right for their families? This Government believe in the latter.
NHS Waiting Times
In February 2022, we published the elective recovery plan, setting ambitious targets to recover services, backed by more than £8 billion in funding from 2022-23 to 2024-25 and supported by a £5.9 billion investment in new beds, equipment and technology. We are providing an additional £3.3 billion in 2023-24 and 2024-25 to ensure that the NHS can take rapid action to improve performance, including urgent and emergency care and getting elective performance back towards pre-pandemic levels.
My Lords, last week’s report from the National Audit Office laid waste to the idea that all of the NHS’s current woes are down to the pandemic. By 2019, NHS England had not met the elective waiting time performance standard for four years, nor its full set of eight operational standards for cancer services for six years. Following the Government’s announcement last week of a review into NHS efficiency, can the Minister confirm whether the Government are still committed to their 18-week target between GP referral and consultant-led treatment, as well as their other targets around A&E waiting times, ambulance responses and cancer treatment?
I thank the noble Baroness. With reference to past performance, that is what the spending increases were all about. They were an acceptance that we need to do more in this space, and we are doing more. The pandemic clearly brought unprecedented circumstances and that is why we have announced more funding to get on top of that in the next few years, tackling all the areas that the noble Baroness mentioned in terms of A&E wait times, GPs and all the rest.
My Lords, we know that part of the problem is that ambulances are going to A&E departments but are not able to deposit their patients in A&E. We know that there is a blockage at the other end in social care, with people not being able to be discharged fast enough back into the community or into care homes. Until that is sorted out, I cannot see how we are ever going to sort out the waiting lists. Can my noble friend the Minister tell me what might happen that will perhaps make those problems better?
I thank my noble friend. Adult social care, as many have heard me say before in this House, is a crucial part of this, because it is all about the flow. That is why I was delighted that, in addition to the £500 million discharge fund for this year, we have secured up to £2.8 billion of funding for next year. That is in addition to the 7,000 extra beds and the tailored help for the 15 worst-performing hospitals with the ambulances, so we have a complete answer to all these areas.
My Lords, patients with complex and long-term conditions are finding it increasingly difficult to access the care that they need, resulting, as the British Heart Foundation report indicated, in 10,000 excess deaths in people suffering from chronic cardiac conditions. The Minister referred recently to the system being a failure. Does he agree that we need a system that develops care for these patients, one that is accessible and timely, in community and primary care settings?
I agree with the noble Lord that cardiovascular is one important area in which, over the last few years, patients have not received the number of check-ups that we want, so it is an area on which we want to focus—not just through checks in GP centres but in the community. We all know that it is very easy to take blood pressure and have blood pressure machines. As a team, we are looking at precisely those kinds of measures to make sure that we can get the preventive screening in up front, so we can identify these people before problems occur.
The Minister referred to the worst-performing hospitals and ambulance trusts, but news from the Health Service Journal today has shown that the longest waiting times are mainly in rural, deprived areas, with an elderly population that is much higher than in the rest of the country. Can the Minister say what special resources will be provided for those areas—rather than just using words like “worst”, which punish them unnecessarily?
I thank the noble Baroness. If I have used a poor choice of words, I apologise. What we are looking at is identifying the areas where we most need to focus resources to solve wait times. That might be because it is a rural area or it might be, candidly, because it is not performing so well. The point that I was trying to make is that there is targeted support. We spent £150 million on ambulance performance and new facilities last year, and it is something that we will continue to do if those rural areas and other areas need the spend.
We are committed to timely appointments. The whole point about the community diagnostic centres that were set up—and we have set up more than 90—is so that patients can be referred straight to those centres and get their screening and tests straightaway, getting them more quickly and, I hope, getting peace of mind more quickly as well.
My Lords, I very much welcome the recent change, which enabled GPs to refer patients direct for assessments instead of having to refer to a consultant, and for the consultant then to refer, which I think saved about 30 days. What other procedural changes are the Government considering that would further reduce waiting times, without actually costing more money, and save doctors time—for example, patient self-assessments in the home, which we pioneered in east London 30 years ago?
I thank the noble Baroness. There are a number of areas where we can do this. I point to the possibility for home testing a lot more. Covid was a perfect example, whereby it became commonplace. Rather than samples being sent away to a laboratory, we came up with lateral flow devices and were able to do it cheaply and pretty accurately, although not quite as accurately. That is a perfect example of using technology to do more home-type diagnosis.
My Lords, in learning from best practice in other countries, are my noble friend, the department or the NHS aware of the pioneering work of Dr Shetty in Bangalore, who has pioneered production-line surgery for certain procedures? Are the Government considering that at the moment? If not, why not?
I thank my noble friend for that. While I am not familiar with that exact case, I saw a very good, probably quite similar, example in Chase Farm Hospital, which has four operating theatres in a sort of barn. It has a complete production line for elective hip replacements and so on to get that capacity and efficiency.
My Lords, I draw noble Lords’ attention to my registered interests. The Minister will be aware that innovation, be it therapeutic or in models of care, is essential to improve efficiency and efficacy in the delivery of NHS services. Is he content that there is sufficient protection in the NHS budget to drive that adoption of innovation and ensure that staff are properly trained for its application?
I thank the noble Lord. As I have said previously, innovation, and being able to back that up with investment, is key. The House will see that we have protected a lot of the research funds so that we can do exactly that. That is the direction of travel. The new hospital programme, which I look after, is very much about looking at best practice and innovation around the world and making sure that we employ the best in our new hospitals and across all our trusts.
My Lords, the Minister is relatively new to his department, but even in the number of weeks he has been there, he must recognise that, whatever statistics on inputs he announces at the Dispatch Box, it is not working. There was a time, two decades ago, when we managed as a Government to reduce the maximum waiting time from three years to 18 weeks and the numbers on the waiting list from 1 million to 500,000. There are now 7.2 million on the waiting list—incidentally, there were 4.2 million before Covid. Whatever the Government have been doing for 10 years is not working and people are remaining in pain for prolonged periods, quite apart from the effect on the economy. Will the Minister institute an immediate review centred particularly around patient choice, which is the only thing that will drive down waiting times and waiting lists? It should never have been abandoned in the way it has been by the Government.
I believe that customers—call them patients—should drive performance and improvements. Inputs are important, but I totally agree that in a performance culture outputs are very important. I give credit to the work done in the early 2000s, from which I have tried to learn in the short time I have been here, to really bear down and create a performance culture to get waiting lists down by holding trusts, and now the new ICB CEOs, to account. That is definitely the direction of travel, and I am very happy to learn from things that have worked well in the past.
Renters Reform Bill
The Government’s consultation on introducing a decent homes standard to the private rented sector closed on 14 October. We are considering the responses carefully and will publish our response to the consultation as soon as we can. In the meantime, the Government have committed to ban Section 21 no-fault evictions to protect tenants and will introduce a renters reform Bill in this Parliament.
I thank the Minister for that definitive Answer. As we were promised it in 2022-23, this definitely feels like a disappointing push-back of the much-needed reform of the private rented sector, which I and many others look forward to, as there is much work to do. For example, last week in the Budget the Chancellor said that rent hikes of 11% were unaffordable and acted to cap rent rises faced by social tenants. However, private landlords are still free to charge the going market rent and, according to Zoopla, this has increased nationally by 12% in the past year. In the same Budget, the Government chose to freeze—
I will get to my question; I note that noble Lords have been more liberal with other speakers. In the same Budget, the Government chose yet again to freeze housing benefit and local housing allowance levels. Does the Minister believe that this is fair, as it disproportionately affects private renters? Are there plans to review these levels? Given that private tenants are likely to pay higher rents than their social sector counterparts, does she agree that they too deserve protection from unaffordable rent rises?
My Lords, the Government do not support the introduction of rent controls in the private rented sector. Historically, evidence suggests that this would discourage investment in the sector and lead to declining property standards as a result, which would not help either landlords or tenants. Recent international examples also suggest that rent controls can have an invertedly negative impact on the supply of housing and may encourage more illegal subletting.
My Lords, I am aware of many landlords who own one property which they use for letting purposes, and it amounts to their sole income. Does the Minister therefore agree that a one-size-fits-all rent freeze could damage those who rely on rental income to service their ever-increasing mortgages, thereby damaging the rental sector altogether?
My Lords, I think that is exactly what I have said. We need a balance here, in order for landlords to still provide this sector, which is an extremely important sector, and in the renters reform Bill that is coming forward I am sure that we will discuss that in further detail.
My Lords, whilst welcoming an enormous amount that is in the proposed legislation, I am very concerned about the capacity of the courts to undertake the justified evictions under Section 8. Currently, the waiting times are simply enormous, and this is putting off a lot of private landlords.
The noble Lord makes a very good point. When court action is needed for landlords to gain possession of their properties, the courts should provide fair and efficient access to justice. We are working with the judiciary, the Ministry of Justice and HM Courts & Tribunals Service to introduce reforms to make the possession process much more efficient for landlords, while maintaining essential protections for tenants built into the court processes.
My Lords, I declare my interest as an owner of rented properties. Following on from that last question, will my noble friend undertake that, in seeking to protect tenants from a minority of unscrupulous landlords, they will not make it impossible for proper landlords to regain their properties from tenants who may be behaving inappropriately?
My noble friend is right that we need a balance in this, and the way we are going to get a balance is through good debate on the Bill that is coming forward in this Parliament. We will have all those discussions and, hopefully, we will get something at the end which is balanced—for landlords but also, most importantly, for tenants.
My Lords, rents in London are up to double the level of rents elsewhere in the UK. Crisis has warned that the number of people sleeping rough in London has risen by a quarter in just one year, and more than half of those spotted on the streets are sleeping rough for the first time. What are the Government doing to prevent those who are struggling to pay their increasing rents from falling into homelessness?
My Lords, we have a number of interventions that can be used that the Chancellor brought in, both for people that are struggling with their rents and people who are struggling with household bills as a whole; that was all laid out in the Chancellor’s Statement last week. As far as homelessness is concerned, we are providing local authorities with £316 million in the homelessness prevention grant funding, and we are encouraging local authorities to use that flexibly, because it will not be the same in London as it is in other areas of the country.
My Lords, the Government’s own White Paper admits that the private rented sector
“offers the most expensive, least secure, and lowest quality housing”
to nearly 4.5 million households. Will the Government introduce a new renters’ charter to give tenants more choice and more control over their homes?
My Lords, I recognise that the Government are not going to introduce a freeze for the private rented sector or the social housing sector, but there is a cap on rents for social housing landlords, housing associations and councils. That cap means that they will not be getting the revenue they expected if they have the full increase in their rents. The main beneficiaries of this are the Government and Treasury, because housing benefit will be reduced—so the autumn Statement tells us—by £650 million. Will this windfall gain of £650 million for the Treasury over the next five years be recycled or reinvested back into social housing, where it is very badly needed, to upgrade the stock and build new homes?
The Government are already investing in social housing; we are putting £11.5 billion into building social housing. Some of the money from the windfall, as the noble Lord called it—I would not call it that—will go into that. There is also support going to local authorities to support those in the private rented sector who might have problems this winter and whom we might need to help out.
My Lords, following the tragic death of Awaab Ishak due to fungus growing in a family apartment, will my noble friend the Minister agree to a review of the Homes (Fitness for Human Habitation) Act 2018 to stop this ever happening in the private rented sector?
As we discussed in a lot of detail last week, this was an extremely sad and very disturbing case. On whether we will look at the healthy homes standard again, I think we will now wait to see if it is going to be in the renters reform Bill. In the meantime, the Secretary of State wrote to all local authorities this week to insist that they look at their stock, so that we as a department and a Government know exactly what is happening in our social housing stock as far as mould and damp are concerned.
We have to understand that this country is in an economically difficult time, and very difficult decisions have to be made. If we look at what was given to very vulnerable groups of people in the Statement last week, I think noble Lords will agree that the Government are doing all they possibly can—
NHS: Waiting Lists and Increased Spending
The Government continually assess data and reports on waiting lists from a wide range of sources, including the Institute for Fiscal Studies. The IFS statement confirms that the Government are right to support and challenge NHS England to continue to identify and address factors that constrain further activity, and to reduce waiting lists. The Autumn Statement announced a further £3.3 billion for 2023-24 and 2024-25 to enable rapid action to improve emergency, elective and primary care performance.
My Lords, I thank the Minister for his reply. Last week, the Institute for Fiscal Studies said that
“NHS spending in England is, in real terms, 12% above its 2019 level. Yet it is getting fewer people off waiting lists and into hospital treatment than it was … in 2019.”
We used to have a slogan: “Labour isn’t working”. The NHS is no longer working. The Royal College of Obstetricians and Gynaecologists has asked me whether we could ring-fence its money. I do not think we can. Can some of the hundreds of civil servants on six-figure salaries in his department get down to sorting out what is clearly a dysfunctional department?
My noble friend is correct. Efficiency is very important, as pointed out in a previous Question. I have done some work in this space, and there are some trusts that are absolutely on the path to the 130% increase in elective treatments compared with 2019, for which the funding is in place. There are other trusts that are not. Clearly, my job and the job of all the department’s civil servants is to understand why that is and to challenge those trusts that are not; to support them where they need that support; and to ensure they are introducing best practice and innovation in order to make sure they all get back towards that level. There are some very good performers and others that are not so good.
My Lords, we hear a lot in this House about the recruitment of doctors and nurses. However, any organisation facing the kind of challenges confronting the NHS would ordinarily be doing its utmost to retain its talent. The NHS, in many ways, seems to be doing the opposite. When will it develop a comprehensive strategy for the retention of its experienced clinical personnel, without whom it would simply be unable to function?
I thank the noble and gallant Lord for his question. I was delighted to see in the Chancellor’s Statement a commitment to a workforce strategy for five, 10 and 15 years, something that all of us in this House have been asking for. It will look at all the needs in respect of recruitment and, crucially, retention. That is very much part of the agenda.
My Lords, the current shortage of 60,000 nurses is devastating, and its impact on waiting lists even more so. It is obvious—to me, anyway—that the main cause of this staffing crisis is low pay, with many nurses opting to leave for jobs in supermarkets and other sectors for better wages. Does the Minister accept that the best way to tackle these problems is to allow more qualified nurses into the UK from the EU and beyond, grow the economy and fill the gaps in the skills that the NHS needs? Most importantly, we need to pay our heroes, who we all clapped for, a decent living wage to live on.
I thank the noble Lord. For the record, there are 29,000 extra nurses since 2019-20, so we are well on course for the 50,000 increase. At the same time, we do need to recruit from overseas, and that is very much part of the plan. Again, this will go into the workforce strategy, but I completely agree that we should be looking to recruit from around the world, which we are. I am delighted that we are adding more and more people to the essential workers list, so to speak, to enable us to do that, because we all know that the workforce plan will show that we need to recruit people and retain them.
My Lords, the last time the figure of 92% of patients being seen within 18 weeks was achieved was in 2016. Since then, the numbers who are waiting have doubled: it is now 7.1 million. What does the Minister say to the 16 year-old in Shrewsbury who has just been told that he has to wait nearly three years for a first appointment at his local hospital? The hospital says that it has recruitment problems. When will we see the details of this workforce plan, particularly for rural areas?
I thank the noble Baroness. As I say, we have committed to that workforce plan, and it will be detailed. We will look at every place in every part of the country because we understand that that is needed, and it is part of the critical plan to get on top of the 7.1 million waiting list. As I think we have accepted, it is not a quick win; it will get higher before it gets lower again. Clearly, however, we need to get on top of it, and we are focused on it. It is very much about the plan and the new spending plans that we put in place to address it.
My Lords, last year NHS trusts paid an interest bill of almost £500 million on PFI hospital contracts. This year, that bill will rise again. Can the Minister tell us what proportion of the increase in NHS budgets will go just to pay interest charges on these dreadful contracts, and what plans he has to try to renegotiate them?
My Lords, with the increasing conflict between inputs and outputs that the noble Lord, Lord Reid, mentioned earlier, does my noble friend the Minister agree that the need and time for a royal commission on the NHS is fast approaching?
I thank my noble friend. To be honest with him, I am hoping we can act quicker than that—that is absolutely the plan. I can tell him that we know the areas where they are performing and they are on the elective recovery plan, and we know those that are not. I do not need a royal commission to tell me that. To my mind, it is about understanding what those hospitals are doing well and putting in place focused action and support to help those that are behind the plan.
My Lords, on an earlier Question, I and other noble Lords asked the Minister if the Government were still committed to their target of 18-weeks between GP referral and consultant-led treatment, and their other targets for A&E waiting times, ambulance responses and cancer treatment. I offer the Minister another opportunity to say to your Lordships’ House whether this is the case.
I thank the noble Baroness. As I am sure the House is aware from the statements of the Chancellor and the Health Secretary, in a lot of areas we are trying to make sure that we place fewer targets on the health professions and GPs and allow them to manage. At the same time, we make sure that if they are not performing, action is taken, but generally we trust them to manage. The beauty of Google is that I have been able to check the 18-week target, and it is a statutory commitment, so I can give that assurance. However, on the others, we are making sure that we look at the performance measures that really matter.
My Lords, whatever efficiencies are achieved, given that the growth in demand for NHS services will continue to exceed the growth of our ailing economy, should not the Government be making a major commitment to preventive strategies to stop people becoming ill or injured in the first place? With the Government’s reversion to austerity, however, has not the prospect deteriorated for the investment needed in public health and non-clinical approaches such as the successful warm home prescription pilot? How can we hope that the Government will systematically address the social determinants of health, such as poor housing?
I thank the noble Lord, and I agree that prevention is better than cure. I refer to the earlier Question and analysis by Chris Whitty, the Chief Medical Officer, who pointed out his concerns about cardiovascular health arising from people not having had the check-ups they should have had during the pandemic. I completely agree that there are some very cost-effective measures which can really help with the prevention agenda, such as heart blood pressure machines and lateral flow screening devices that can be sent to homes. We are looking at that issue, because I agree that prevention is better than cure.
Newport Wafer Fab
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Monday 21 November.
“On 25 May, the then Secretary of State for Business, Energy and Industrial Strategy called in Nexperia’s acquisition of Newport Wafer Fab for a national security assessment under the National Security and Investment Act 2021. Following further detailed and thorough consideration, on 16 November, I exercised my powers under the Act to make a final order requiring Nexperia to divest of at least 86% of its shareholding in Nexperia Newport, formerly Newport Wafer Fab.
My decision follows a quasi-judicial process that ensures that all relevant matters are taken into account and that the decision is made fairly. I am sure that the House will understand that I am unable to go into further detail about the national security assessments and implications that informed the decision, nor can I go into further detail about the final order.
What I can say is that the final order requires Nexperia to follow a set process leading to divestment within a specified period. This order has been shared with Nexperia and I published a notice summarising it as well. My officials, with the support of other Departments, will actively monitor compliance with the requirements set out in the final order and ensure that the national security risks continue to be mitigated effectively.
The National Security and Investment Act enables us to continue to champion open investment while protecting national security. Hon. Members can be assured that although we are unashamedly pro-business, the Government will not hesitate to act where there is a risk to UK national security. The UK has a number of strengths in the semiconductor sector, including in south Wales, and the Government aim to set out our semiconductor strategy soon to enable this technology to further support the global economy and national security.”
My Lords, the House of Commons Foreign Affairs Committee found no evidence to suggest that a review into the acquisition of Newport Wafer Fab had taken place, yet Politico reports that the Government’s National Security Adviser concluded that there were not enough security concerns to block it. Will the Government confirm on the record whether the review that was promised by the then Prime Minister Johnson took place or not? The same Foreign Affairs Committee warned that the sale of Newport Wafer Fab potentially compromises national security and is the loss of a prized asset to a competitor amid a global shortage of semiconductors. Given the sale has not been blocked, what steps are the Government taking to mitigate these risks?
My Lords, obviously, there is a limit to what I can say about this, but I will endeavour to be as helpful to the House as possible. I certainly can confirm to the noble Lord that the review did take place and was one of the factors that the Secretary of State took into consideration when he made his decision. It was made in a quasi-judicial manner and the Secretary of State considered that a risk to national security had arisen from the trigger event, which is why he made the order that he has.
My Lords, I think we welcome this decision. When it comes to the National Security and Investment Act, the Minister is the best authority because, while Secretaries of State have come and gone, the Minister took it through this House and he is still here. Perhaps he can add some perspective, because at the outset of this case the Minister stood up and said that the technology in Newport Wafer Fab was not worthy of being called in through the National Security and Investment Act. Over time, that has evolved, so what has changed? Is it the Government’s view of Newport Wafer Fab or the Government’s view of China?
I am not sure that I said that, but I will certainly look back through the record. This has been going on for a long period. The Secretary of State has taken into account all the relevant factors, as he is obliged to do under the legislation. The noble Lord is right; we debated it extensively, but this decision has been taken purely on the grounds of national security. That is what the Secretary of State is required to do. That is what he has done, taking all the relevant factors into consideration, and he has made a final order in this case.
The noble Lord will know that I cannot go into specific details of this case, but I am delighted to say that we have an extensive range of companies in the UK manufacturing and producing in this area. South Wales is one of the notable success stories with the catapult acceleration plans that we have there.
I am looking forward to the proper debate we will have on the report on electric battery vehicle manufacturing from the noble Lord’s committee later this week. We have over 100 companies active in this area in the UK and some excellent research and development and manufacturing facilities. This decision was not taken on any industrial policy matter. As is required under the legislation that we debated extensively and that the noble Lord, Lord Fox, referred to, the decision was taken on national security grounds alone.
My Lords, this is an unusual case in so far as it is retrospective. My understanding is that the National Security and Investment Act came into being only in January. In another place the prospect was raised of other companies being in the control of hostile countries. What process is in place to review that, in terms of not only future hostile takeovers but ones that might currently exist?
My noble friend is right that the Act came into operation in January. There were some retrospective elements in that. A trigger event occurred and therefore the Secretary of State could exercise his power. When future trigger events occur, we will look at every transaction based on national security implications, as is required under the Act.
My Lords, the final order stated that the security risk was the reintroduction of semiconductor production at that site. Now that have a £39 billion trade deficit with China, what are the Government’s assessments of the key sectors of the UK economy which are vulnerable to Chinese technology on the same basis as this final order?
As was printed in it, the final order was based on the technology and know-how that could result from a potential reintroduction of compound semiconductor activities at the Newport site. The noble Lord has read the final order. As I said in a previous answer, this has no implication for any other policies. Every one of these transactions is looked at on national security grounds in the context of the legislation that was passed giving quasi-judicial power to the Secretary of State. It has no implication for any other sectors of the economy. Every transaction is looked at on an individual basis.
My Lords, I bought a new Land Rover in July, and I am still waiting for a second key because of the shortage of chips. Given the Chinese aggression towards Taiwan, and given its dependency, surely this decision is to be welcomed. We should aim for a degree of self-sufficiency, as far as is possible, in the production of chips, given our determination to be a country which is secure against totalitarian states and their aggression.
I am sorry to hear about my noble friend’s Land Rover key; I hope it is restored to him as quickly as possible. We have a very active semi- conductor manufacturing and research and development facility in this country. We have over 100 companies actively working with compound semiconductor devices. Around 5,000 UK companies, 90% of which are SMEs, are designing and making electronics components devices, systems and products. The Chancellor announced an increase in funding in this area. The south Wales cluster is particularly important. We are spending hundreds of millions of pounds promoting it. We are very proud of it. This has no implications beyond that specific transaction, which was considered on national security grounds under the legislation, as the Secretary of State is required to do.
Does the Minister agree that it is not just a matter of intellectual property or the number of research and development staff, but that we must manufacture stuff and not be totally reliant on foreign supplies? Reinforcing what the noble Lord, Lord Forsyth, just said, it is a bit like being unable to grow crops and feed your people. If we cannot manufacture, we will collapse because we cannot import the stuff. It could be bog standard chips or bog standard anything. We need to get our manufacturing capability up in this modern world, where there will be a shortage of all this stuff.
I agree with the noble Lord. That is why in 2016 we set up the Compound Semiconductor Applications Catapult, with £50 million of funding. Since then, it has initiated over £100 million of projects and collaborative projects which have generated or saved over 4,700 jobs in the UK. Therefore, we are very active in this space. This decision has no implications for that investment, which will continue. It was a quasi-judicial decision on national security grounds, which is what the Secretary of State is required to do.
The noble Lord knows that I cannot comment on other live cases until final orders are made. I can give him some figures from the National Security and Investment Act report, published in March. The NSI unit received 222 notifications and 17 applications were called in. Since then, we have made 10 final orders, and acquisitions have been unwound or blocked on three occasions.
My Lords, there has been some change of view over time about this case, so might we expect further changes of view in other areas where the Chinese are deeply involved—for instance, in civil nuclear power, where they are embedded? There have been doubts about that all the way along. Can the Minister assure us that when and if a change of view is beginning to develop, or new facts come to light, he will keep us informed on this change in policy in the way that our entire nuclear programme is going?
I do not accept that there has been a change in policy. The policy is the National Security and Investment Act, which this House passed. If and when other trigger events occur, there will be a full investigation by the NSI team in my department and the Secretary of State will take a quasi-judicial decision, as he has done in this case.
Fleet Solid Support Ships
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Friday 18 November.
“On 16 November, my right honourable friend the Secretary of State announced that Team Resolute—consisting of Harland & Wolff, BMT and Navantia UK—has been appointed as the preferred bidder in the competition to build the fleet solid support ships. Having appointed Team Resolute as the preferred bidder, the Ministry of Defence expects to award it a contract around the end of this year. That appointment follows on from the award to BAE Systems in Glasgow of the £4 billion contract for five Type 26 frigates earlier this week. Both are excellent news for UK shipyards and the shipbuilding skills base in our country.
Those crucial vessels will provide munitions, stores and provisions to the Royal Navy’s aircraft carriers, destroyers and frigates deployed at sea. Ammunition and essential stores will ensure that the mission can be sustained anywhere around the world. The contract will deliver more than 1,000 additional UK shipyard jobs, generate hundreds of graduate and apprentice opportunities across the UK, and a significant number of further jobs throughout the supply-chain. Team Resolute has also pledged to invest £77 million in shipyard infrastructure to support the UK shipbuilding sector.
The entire final assembly will be completed at Harland & Wolff’s shipyard in Belfast to Bath-based BMT’s British design. The awarding of the contract will see jobs created and work delivered in Appledore, Devon, Harland & Wolff, Belfast, and within the supply chain up and down the country. This announcement is good news for the UK shipbuilding industry. It will strengthen and secure the UK shipbuilding enterprise as set out in the national shipbuilding strategy, and I commend this decision to the House.”
My Lords, the Defence Select Committee said that Ministers should ensure that warships are built in UK yards and that this designation continues to include fleet solid support ships. Welcome as these new ships are, why did the Government not accept the Team UK bid? Team UK’s bid showed 6,000 more UK jobs. How many jobs have been lost as a result of not accepting that bid, and how many of the ships will be made and associated work done in Spain? Time and again, Parliament has called for the UK Government to fully support our sovereign defence capability. Is not this just another missed opportunity to fully support the British defence industry?
I do not agree with the noble Lord’s assessment of a very exciting opportunity for British shipbuilding. The bulk of these ships are going to be built within the UK, particularly in the shipyard of Harland & Wolff. It is a tremendous coup for Team Resolute that they have succeeded in this. There will be extensive investment in infrastructure in Harland & Wolff’s yard. They are warships, but that is precisely why the majority of these ships will be built in the UK. He suggests that all these complex programmes and platforms are built entirely in a single country, but that is not the case, such is the technical complexity nowadays. For example, the F35, a US aircraft, is partly built in the UK. Our Dreadnought submarines and the US Columbia-class submarines will share a common missile compartment, built in both the United States and the UK. We should be celebrating what is very good news for the British shipbuilding industry.
The Minister in the other place put great emphasis on the extent to which the partnership with the Spanish shipbuilder would provide technological transfer and additional skills for Harland & Wolff and other British shipyards. Can the Minister here say a little more about that? If that is indeed part of the package, that is useful for the British in rebuilding our shipbuilding capacity. If it is not, we are perhaps being sold a pup. She said that in future we have to build things jointly with our partners. The Commons Minister went further than that and said that an obsessive and excessive concern with sovereign capacity and sovereignty as such—Britain doing everything alone—is
“some sort of prehistoric antediluvian approach”.—[Official Report, Commons, 18/11/22; col. 965.]
Does the noble Baroness agree? If so, would she perhaps like to say that to a few members of the European Research Group?
What I would say is that Navantia is a globally acknowledged shipbuilding expert. We are very pleased to be able to draw on its skills. For example, the agreement we have reached with Team Resolute means a vital skills and technology transfer. A small team of Spanish shipbuilding experts will transfer to Belfast, and Harland & Wolff will benefit from that. On the wider issue of how we build warships there is a desire to ensure that, where there are sensitive security issues, the majority of warships will be built in the UK. That is what is happening here. The majority of the blocks and modules from which the ships will be assembled will be built in the UK at Harland & Wolff’s facilities in Belfast and Appledore. Interestingly, some components will be manufactured at its sites at Methil in Fife and Arnish in the Isle of Lewis. I hope they have got their thermal vests out to prepare for the Isle of Lewis.
The ships have been designed in the UK by BMT, a leading firm of naval architects. Intellectual property in the design rests with it. The Ministry of Defence does not generally seek to acquire ownership of intellectual property created by contractors undertaking work for the department. Rather, we seek to acquire free user rights that permit the department to use, modify and manage equipment as it sees fit through life, without infringing IP rights or incurring fees.
My Lords, while I am always pathetically grateful when we get an order for some ships, there are some real risks here. How big is the workforce at Harland & Wolff at the moment? When did it last build a ship there for the Royal Navy? Is it true that 60% by value of this contract will go to the Spanish firm, which effectively established its UK office just a matter of months ago?
As far as I understand it, Harland & Wolff currently expects the contract to support 1,200 shipbuilding jobs across its yards in Belfast and Appledore. As everyone is aware, Harland & Wolff has a strong reputation. It has been having a challenging time. As I said earlier, the extensive £77 million infrastructure investment will make a big difference to it and put it in a position where it will be poised to bid for future contracts.
My Lords, before leaving the European Union and since, we have been told repeatedly that one of the advantages of coming out is that British ships will be built in British yards. The use of the active verb in these sentences is important. I looked closely at the Minister’s answer to this Question in the House of Commons. He said that the ships would be assembled at Harland & Wolff. Where are these ships to be built? They are built in modules. Is the work to be in Britain or elsewhere? Is the bulk of this contract going to be abroad? The £77 million is welcome, as are the jobs, but what proportion of the contract is coming to the United Kingdom and what proportion is going to Spain? What other G7 country does this? None.
I can only repeat what I said in response to earlier questions: that the majority of these ships will be built in the UK. As I understand the technical situation, the majority of the blocks and modules from which the ships will be assembled will be built at Harland & Wolff’s facilities in Belfast and Appledore. Again, I repeat that this is very good news for British shipbuilding, particular on the back of the recently announced Batch 2 of the five frigates at Govan. This is all indicative of the very good state of the British shipbuilding industry. I refer the noble Lord to what the chief executive of Harland & Wolff had to say:
“I am pleased to see the Government seize the last opportunity to capture the skills that remain in Belfast and Appledore before they are lost for good.”
That is testament to the strength of this decision.
As the noble Lord is aware, when it comes to the procurement of complex contracts such as those in which the MoD is frequently engaged, what matters is who has the skills, what the design looks like, and what offers to deliver well for the MoD and as a warship for the British shipbuilding industry.
I observe to my noble friend that the vast majority of the build work will take place in the UK. There will be an element of the aft blocks built in Spain, but by far the majority of the shipbuilding work will be here. We should celebrate this. It is a matter of commendation not depression.
I thank the noble Baroness for her encouraging remarks and for accepting the real world in which we live. Her aspiration is laudable. It is always our intention in the MoD to support the indigenous industry as best we can. We have a good reputation and record for doing that. Let us see what the future holds.
My Lords, it behoves us all to share the Minister’s view at the outset that this is very good news for British shipbuilding. We can nibble around the edges about what might be but we have to start from where we are. We have a national shipbuilding plan now; we are taking steps; we have had important new orders announced in recent weeks. This is all part of the strategy, and I hope the Minister will agree with me that the Royal Navy’s part in developing the ship- building industry is very welcome, as indeed are the growing links between commercial maritime and the Royal Navy that we have seen across the land.
I thank the noble Lord for his contribution. He identifies the underpinning wisdom and strength of the shipbuilding strategy, which Sir John Parker originally conceived with the specific intent of creating a sustainable indigenous British shipbuilding industry. We are now well on the way to doing that, and I thank the noble Lord for his recognition of that progress.
Heritage Railways and Tramways (Voluntary Work) Bill [HL]
Order of Commitment
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Product Security and Telecommunications Infrastructure Bill
17A: Because it would give rise to a new head of public expenditure, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.
My Lords, it is a great pleasure to be back at the Dispatch Box to take this Bill, I hope, through its final stages in Parliament. I am very pleased to see how much progress has been made, and I take this opportunity to pay tribute and extend my thanks to my noble friend Lord Kamall, who carefully steered the Bill through Report and Third Reading in your Lordships’ House.
The Government have listened carefully to the points raised in scrutiny on this Bill, both in this House and in another place. We have taken on board recommendations made in both Houses of Parliament and have tabled amendments where those recommendations have strengthened the legislation. I am confident that the Bill is now in a form that will meet its objectives. Importantly for the debate before us today, that includes preserving a balance between landowners’ rights and the wider public interest in delivering telecommunications networks.
As I shall set out now, I hope that your Lordships will agree with Members in another place that Amendment 17 should not remain part of the Bill. The amendment in the name of the noble Baroness, Lady Merron, would add a new clause to the Bill requiring the Secretary of State to commission an independent review of the effect of the Electronic Communications Code, and of the Telecommunications Infrastructure (Leasehold Property) Act 2021, on the deployment of telecommunications infrastructure. Her amendment understandably aims to provide transparency, accountability and ongoing evaluation of the legislative framework that underpins digital deployment in the UK. As the noble Baroness knows, I fully appreciate the sentiment behind it, and I commend noble Lords in all parts of the House for their efforts to improve connectivity. I am grateful for the time given by the noble Baroness and others yesterday to discuss this ahead of our debate today. It is clear that we share the same goal, although our opinions in some instances differ about how to achieve it.
Your Lordships will have seen that the reason given by another place for disagreeing to the inclusion of this amendment is that it would give rise to a new head of public expenditure. This is certainly true, and the financial privilege of the Commons must be respected. However, this is not the only, nor the primary, reason why the Government do not accept the amendment. We believe that the amendment is unnecessary for a number of reasons, which I will set out briefly.
The amendment would seek to impose obligations to review and report on progress towards government connectivity targets and on competition in the market. However, monitoring of these is already in place, and the Government are committed to keeping a very close eye on the impact of the legislation in the future. I will give some examples. Ofcom’s annual Connected Nations report already gives a snapshot of mobile coverage and broadband availability across the United Kingdom. BDUK also publishes quarterly updates on the progress of Project Gigabit, with the latest coverage information available on thinkbroadband. Government connectivity targets and the success of government interventions to increase our connectivity, including through this Bill, can therefore be measured against regular existing reports.
DCMS will continue its engagement with all interested parties once the Bill receives Royal Assent. That will, among other things, help inform a robust implementation strategy, which I know landowner representatives in particular are keen to be involved in. The department will also continue its involvement in regular workshops, attended not only by industry representatives but by members of landowner organisations, including the CLA, NFU and CAAV. These are not just talking-shops; they are producing practical tools, including agreement templates, as well as a pilot communications framework. I will gladly talk a bit more about the great collaboration they are encouraging, and they are also an invaluable insight into how the market is functioning.
I recognise your Lordships’ keenness to see a report on the impacts of the legislation. I hope that noble Lords will be reassured to hear that the findings from this engagement and monitoring will be reflected in an update on how the changes made by this Bill have worked in practice. In line with our existing commitments, the Government will submit this to the relevant Select Committee of Parliament. If that update highlights anything which has a significant impact on delivery or connectivity, the Government will of course see what action can be taken to address this to ensure that our crucial connectivity goals are met. I know that noble Lords will rightly hold us to account on them.
Let me say a little more about why we believe this amendment would not be a better way of going about this. The Government have frequently set out the opinion that the market is settling and that operators and site providers are working together in an increasingly collaborative manner. Though I am grateful to them for their time and their conversations with me and officials at the department, I know that some noble Lords remained unconvinced about this. However, over the last two years, the department has chaired the regular workshops I have just mentioned. One aim of these workshops is to encourage greater collaboration between stakeholders, and they are open to everyone across the industry. As I have said, these workshops provide valuable insights into how the code is working in practice, while supporting better ways of working for everybody in relation to the code.
I emphasise that the Government fully expect tele- communications operators in particular to recognise the contribution made by those whose land is used to host apparatus. Operators have a responsibility to show fairness, to behave co-operatively and, above all, to treat landowners with respect if real connectivity is to happen. One of the key outcomes has been the creation of a national connectivity alliance, which will officially be launched later this week. That is not a government initiative but has been created by representatives from across the industry. It is an independent body, which will be led by a steering group comprising an equal number of operators and landowner representatives. It will co-ordinate working groups to examine and make recommendations on a wide range of issues of mutual interest, including Ofcom’s code of practice. The alliance’s aim is for these working groups to produce best practice guidelines which can then be used across the industry.
The Government strongly support the creation of this body and believe it can do much to build on the improvements we have already seen in relations between operators and site providers, as encouraged by the work- shops, which in turn will help to speed up connectivity. This improved collaboration is reflected in the number of agreements being concluded, which is increasing year on year. For example, in 2018 only 39 renewal agreements were completed, but by 2021 this figure had increased to 1,015. If the market were not settling, we would not be seeing increases such as this.
The Government are concerned that imposing a time-bound statutory review requirement would not only undo much of the progress that has been achieved since 2017 but would, in fact, lead to market stagnation and increased litigation. The prospect of a further review into the code would make landowners understandably reluctant to enter into agreements until the outcome of the review was published, which would leave operators with little choice but to take legal action to obtain the rights needed to improve and expand their networks. This would inevitably slow down deployment generally, and the hardest-hit places are likely to be those where deployment is already commercially unattractive, such as rural areas, with operators likely to focus their attention elsewhere. I am thinking in particular of the shared rural network programme, which aims to deliver 4G connectivity to 95% of the UK’s land mass by June 2025.
For the reasons I have set out, therefore, the Government firmly believe that the proposals contained in this amendment, although undoubtedly well-intentioned, are unnecessary and risk being a hindrance to the better connectivity and delivery that I know the noble Baroness wants to see. I therefore hope that your Lordships will agree that it should not remain in the Bill.
My Lords, I welcome Amendment 17, which had not even made it to the internet section of the Bill when I looked an hour ago. I also welcome the Minister’s mention of the national connectivity alliance as a good co-operation between site providers and operators.
The reforms in the Digital Economy Act 2017 have resulted in lengthy legal disputes, causing significant delays to rollout. Small businesses and local sports clubs, many of which host telecoms infrastructure on their land, have lost thousands of pounds in income, with no commensurate boost to digital connectivity. This was foreseen by the current Prime Minister during the debate on the Digital Economy Bill in 2016, when he warned:
“Interfering with property rights, as the code does, is a major step for this House to endorse. I therefore urge the Government to ensure that the Bill benefits not just the network operators’ balance sheets, but the public interest.”—[Official Report, Commons, 13/9/16; col. 828.]
Overall, I am disappointed at the lack of compromise elsewhere by the Government and the absence of rigorous evidence for the Bill. It appears that its policy development has been entirely reliant on the telecoms operators. It is vital that the Government use all the tools still at their disposal to limit the most egregious effects of this legislation, including through the use of transitional arrangements.
On preventing backdated payments, the Bill as drafted will allow the courts to impose lower rents on site providers—I meant to declare an interest as a site provider—and this can be dated to years before the court issues its order. This will have the effect of courts imposing backdated payments of thousands of pounds on site providers, despite those rent levels having been agreed between partners in good faith. The Government have promised to consider addressing this issue through transitional provisions, and it is vital that they do so and consult properly with affected parties to ensure that their measures are effective.
The Government have not heeded the significant disquiet on transitional relief on valuation throughout the Bill’s passage through Parliament. I would like to put on the record the significant damage that will be caused to the market by extending the “no scheme” valuation into the Landlord and Tenant Act 1954. If the Government are set on not revisiting them, the changes to the regulatory framework and expansion of the 2017 reforms proposed by the PSTI Bill should be brought in gradually to avoid significant financial shocks for site providers.
I turn to the government evidence base. The impact assessment for the legislation at the time showed that the Government anticipated a reduction in rents of 40%. I have heard stories from site providers who have seen rent reductions of more than 90%, but even the operators accept that the rent reductions have been 63%. Although this is an unsourced and untested figure, it is still a huge reduction.
It is also concerning that the Government have refused to accept other sources of evidence. Last week, following a very useful meeting with the Minister, I received a document from DCMS expressing its concerns over a report produced by the CEBR, an independent and well-respected economic analysis organisation. It made a number of assertions which I believe are incorrect. First, it states that the CEBR report over-emphasises the interests of landowners. This is not borne out by the evidence cited in the Government’s report, which includes research funded or written directly by operators themselves. Secondly, it states that the CEBR report assumes that HMG’s policy will not reduce the number of delayed negotiations. This misses the point of the CEBR critique: the Government’s purpose should not be to expedite disputes but to prevent them arising. The view of the CEBR and the Law Society is that the PSTI Bill does not address this.
Thirdly, the document states that the CEBR assumes that reverting to the pre-2017 regime will not impact operator behaviour. This is based on the false assumption that the CEBR recommended a reversion to the pre-2017 status quo. It does not. Instead, it suggests an alternative code based on the Law Commission’s 2013 report. Finally, it states that delays to code reform will slow the shared rural network rollout. The post-2017 code reforms were already available to operators on all existing sites, and money saved from reduced rents has not been reinvested into the rural rollout. There is no reason to think that the savings from the PSTI Bill will be reinvested, and therefore rent reductions—or their absence—are not linked to the pace of rollout.
I am concerned that the Government are willing to dismiss independent evidence on spurious grounds simply because it does not align with what appears to be a pre-cooked policy direction. It is even more concerning that the Government describe their evidence as uncontested when there has been such widespread and cross-party opposition to this policy. During its consultation on the reforms that would become the PSTI Bill, the Government received over 1,000 responses, and later admitted that the vast majority related to the valuation regime. It is therefore highly inaccurate to suggest that their evidence has not been challenged, or that their position is widely accepted.
Ministers have also disputed factual evidence of the sheer scale of cases being taken to court, asserting instead that, as the Minister has just said, the market is settling and consensual renewal numbers are increasing. It is concerning that the Government see hundreds of court cases each year as the market settling; certainly, in my dealings with the operators, it was not a very calm operation. The lack of proper evidence has created unnecessary risks for the future of this market. I hope that, through Amendment 17, the Government will be open-minded and display more responsiveness to all available evidence in future.
First, I thank the Minister and his officials for corresponding and meeting with me to discuss the Bill. That said, it is a shame that the Government in Motion A have set their face against Amendment 17, which is seeking a review of the Bill within three months, particularly as the festering problem at the heart of the Bill is the valuation method, which was not even a subject of consultation in preparing the Bill.
This legislation legalises extortion. It allows operators to strip site owners of their property rights and to confiscate their incomes, in some cases even retrospectively clawing back site rents paid under legally binding agreements. The Digital Economy Act 2017 has not led to the market being “settled down”, as the Government claim; it has, in fact, produced a steep rise in long and expensive tribunal cases. That rise would be far steeper but for the inequality of rights and resources between telecoms companies and the site owners, meaning that very few can afford to fight their cases. The Government’s claims that agreements are consensual, or can be solved by voluntary alternative dispute resolution, ring hollow when the law is so one-sided and the site owner is threatened by operators throughout any so-called negotiation with expensive court action. The fact is that the pendulum of power has swung way too far in favour of the operators.
DCMS claims that the money the telecom companies save by imposing rent reductions using this legislation is essential to achieving 5G rollout. It bases this claim on some shaky, secretive and one-sided evidence provided by the operators. The Government’s own predicted fall of 40% in rents, which the previous speaker referred to, has, by their own admission, been a 63% fall and, in some cases, 90% or more. As to whether this money is actually needed by the operators, when I asked DCMS even to estimate how much this sum would be for the large and profitable telecoms companies—how much they would actually save—DCMS had no idea of the amount, nor was it able to identify any guarantees that these savings would be passed on to consumers rather than simply enriching the telecoms companies.
This money, which had a huge impact on the site owners, is being removed from communities, small enterprises and farming families, thereby depriving them of much-needed funds to invest in their own businesses and activities locally. Are these operating companies really so hard up that they need to rob site owners in this way? I see in the Financial Times today that one of them is selling half its sites to a global private equity company. That should certainly raise a pretty tidy sum.
The House should also take note that the operators empowered by this legislation are not even regulated. At the heart of the problem is an absurd site valuation process that urgently needs to be reviewed and rebalanced so that site owners and operators can work as willing parties to achieve 5G rollout. As mentioned earlier, the House should note that this illogical valuation process was not included in the earlier consultation on this Bill.
I urge the Minister to listen to the concerns from all sides, notably from his own Benches in this House and the other place, as well as professional bodies in support of a review or at least to bring forward a meaningful government amendment to review the valuation method towards some valuation middle ground. He has not done so and no single amendment has so far been accepted by the Government. The telecoms operators which have lobbied so successfully for this opportunity to enrich themselves must be delighted with this early Christmas present. The families and the organisations being plundered may have a rather different view.
My Lords, I greatly support this amendment, as I did at an earlier stage of the Bill. Therefore, I have to say that I do not agree with the Motion in the name of the noble Lord, Lord Parkinson.
I detect in the brevity of the reasons given for why the Government were not able to accept any of the matters put forward—and mentioned just now by my noble friend Lord Cromwell—the same endeavour to deny due process. Blocking the evidential basis in what has been brought before this Bill will then affect the process of getting a fair deal at the end. Exactly the same process will be relied on in any tribunal case or in any alternative dispute resolution forum. This is why proper access to an independent adjudicator is, in my estimation, already prejudiced by the processes in this Bill.
Seen in the context of the transfer of private rights from individuals and small property owners to an influential and well publicly funded band of corporate middlemen, the site companies, this, I am afraid, bodes ill. Certainly, I as a property professional and valuer can see this very much in the economic context—of course, valuers do not make the rules; they simply interpret what others are doing outside. This is why I have consistently said that this is something that will adversely move the goalposts, if not the whole playing field.
The measure in this Bill rolls back 60 years of compulsory acquisition and compensation practice. I am not clear that the subsequent need, as will occur as a result of the Bill, to claim damage occurring at a later date does anything other than reverse the burden of proof in favour of the state—or, in this case, the operatives of the state, and against the individual. I think that alters the parameters of fair compensation.
I wish the proposed alliance that the Minister referred to every good fortune, but I do not believe that it will do anything to improve on what has been nothing short of a land rights grab. I predict that a great number of the claims made in support of this will not be borne out by the facts when we look back in due course. On the delivery of the demonstrable public interest benefits, also referred to by the noble Lord, Lord Cromwell, where is the objective evidence? I predict that it will not even be visible in the corporate operation of the telecoms industry. So it is no good looking for that particular needle in that particular haystack.
What about the public utility performance by those not subject to public utility oversight and objectives? That was a point mentioned by the noble Lord, Lord Fox, at an earlier stage in our deliberations. If there is an impression of site providers being turned over, to use the cant of the trade, I am equally certain there will be a similar attempt to turn over the public interest in due course, which will be equally devoid of any evidence base or provable cause and effect. From a valuation standpoint, the absence of evidence, cloaked as it is often in confidentiality, forms a useful basis neither for the processes of this Bill nor for ADR or before a tribunal.
The basic premise of altering the valuation principle from market value to, effectively, land value—or, to put it in my terms, existing use value—is undefined as a concept. It is haphazard in practice, because it will relate simply to the actual use at any given time, so there will be very little consistency involved there. It is a basic denial of core transactional philosophies that sit behind all valuation and all transactions in the marketplace, and all confidence in the handshake that I have mentioned before in this House that is between the parties. The consideration is always—has to be, by definition—worth more to the recipient than the asset itself. It cannot be otherwise. I see this as a denial of that principle.
This has significance. Although outside people may think this is a wonderful idea, when it comes to the individual deals that needs to be done, it will have a chilling effect—I think it can be no other than that. I believe that sentiment is already actively moving against it. I do not know, because the Minister has not come up with it, where the evidence of the deals being successfully done has come from. For all I know, it may be generated by housebuilders keen to get good 4G coverage for their latest new housing development. That is fine, but it does not make the daisy chain of 5G connectivity across the country successful, and I think we really have to consider that.
I would still be very supportive of a review. If anything, I would like it to start a bit later and be more searching. That is essential, because we are sleepwalking into the unknown in terms of valuation technology, market sentiment and, above all, the evidential base. I would not be doing my duty in this House if I did not say that that fills me with considerable concern. This is no way to produce results that command universal buy-in, bearing in mind that everybody agrees that 5G and the better rollout of 4G are desirable in their own right. If what is happening before us is not snatching defeat from the jaws of victory, dissent and disillusionment from what should be a common purpose, I do not know what is.
My Lords, I will briefly add my disappointment to that voiced by a number of other noble Lords. I note, as previously, my various interests relevant to this legislation. I also welcome the noble Lord, Lord Parkinson, back to his seat and thank him for the time he took to meet me and the noble Lord, Lord Cromwell, last week.
I asked in Committee, as long ago as June, for the data on which the Government were basing their approach to valuations in this legislation. I was promised it nearly six months ago. We finally received it last week—two pages of rather thin A4 paper which say that the Speed Up Britain campaign presented evidence to the House of Commons committee that average rent reductions are in the region of 63%. That is it—the evidence on which the entirety of this valuations issue is based. It is incredibly disappointing that it took so many months to get it and that there is really no evidence whatever.
I note also, as the noble Earl, Lord Lytton, just stated, that we are given numbers of 39 agreements in 2018 and 1,015 in 2021. To what extent do those agreements fulfil the Government’s connectivity and Project Gigabit ambitions? Where are they taking place? Are they rural or urban agreements? It is of no use simply to give us bare numbers.
The noble Lord, Lord Parkinson, undertook from the Dispatch Box that the Government would provide regular updates to relevant committees. I would like a bit more specificity, if he can, on exactly which committees the Government will provide updates to, how regularly they will be provided, what their content will be and whether they will be published to the whole House, as I imagine they should be. Just undertaking to provide updates is simply not sufficient.
My Lords, I am grateful to the Minister for his earlier engagement on the issues represented by this amendment and for outlining why the Government will not accept it. It was rather fuller, I am glad to say, than the embarrassingly short set of reasons set out, as he almost admitted himself.
The noble Lords, Lord Northbrook and Lord Cromwell, and the noble Earls, Lord Lytton and Lord Devon, have very cogently explained why they believe—as we do on these Benches—that an independent review of the Electronic Communications Code is needed to get our telecoms legislation to the right place. Indeed, the noble Baroness, Lady Stowell of Beeston, said on Report that
“the case for Parliament imposing this independent review is compelling.”—[Official Report, 12/10/22; col. 834.]
I absolutely agree. We have heard powerfully today why there is such a strong view that this Bill is unfairly skewed against site owners, many of which are small societies and clubs. We must get the balance right for the Electronic Communications Code between operator and landowner and ensure that it is fit for purpose in delivering broadband and 5G rollout targets.
These targets have changed markedly over time. There has been a continual shifting of the Government’s gigabit target, which it seems has now shifted from over 99% to 85% of premises by 2025. There is a continuing rural/urban divide, and real problems with latency in rural areas.
Both the noble Lord, Lord Kamall, in his brief tenure as the noble Lord’s predecessor and successor, and the noble Lord, Lord Parkinson, have asserted that everything is starting to settle following the 2017 reforms to the Electronic Communications Code. Indeed, the noble Lord, Lord Kamall, promised to make the evidence available as soon as possible, but such evidence as we have heard to today, as has been received, is highly questionable; the source, Speed Up Britain, is actually the operators themselves, as the noble Earl, Lord Devon, has said. The fact of increasing numbers of renewals does not show that the market is necessarily operating properly, when the objective of the Bill after all is to bring forward new sites and thereby increase rollout.
The CEBR report referred to by the noble Lord, Lord Northbrook, was commissioned by Protect & Connect, but was researched independently, unlike the research for Speed Up Britain. It points to far higher rent reductions than those of 63% cited by the Government, and a much wider market impact, as well as a reduction in the pace of rollout. The Government have not properly explained why they reject the evidence of the CEBR report.
As regards litigation, I believe that the Minister has indeed read the recent article in the Times headlined “Telecoms cases swamp tribunals”, which starts off:
“Fears are growing that land tribunals are being inundated by a rising tide of telecommunications cases since ministers amended rules to boost the country’s drive towards faster broadband.”
That seems to be stronger evidence of problems with the post-2017 ECC than anything the Government have produced. How does the Minister see the number of cases being reduced as a result of this Bill? The lack of official, proper evidence strongly underpins the arguments for an independent review.
The noble Lords, Lord Kamall and Lord Parkinson, have also asserted that the amendment overlooks the substantial review and reporting mechanisms that are already in place. Indeed, the noble Lord, Lord Parkinson, today mentioned Ofcom, BDUK and the DCMS, but what specific review of the operation of the Electronic Communications Code will be in place regarding the KPIs—key performance indicators—to actually deliver the Government’s strategy? The Minister has promised rolling workshops and he tried to explain what they were designed to achieve. As for a “pilot communications framework”, I am not sure I quite understand what that is designed to achieve. The key issue is whether the Government will look at how the market is functioning and whether the workshops will be designed to make sure that changes are made so that the market does function properly.
The Minister also prayed in aid the very newly created national connectivity alliance. He gave some warm words about the interests of landowners, and I hope that it is a fully representative body, but surely best practice guidelines, which have no enforcement mechanism, are not going to cut it either in ensuring how the Electronic Communications Code operates in light of the amendments made by this Bill. Will the national connectivity alliance specifically be asked to report on the functioning of the market? That is an extremely important aspect.
This is in the context of the Government continually failing to hit targets on broadband connectivity and digital deployment. I am sorry to say that their reluctance to agree to a review of this nature is just another example of their unwillingness to be scrutinised. I hope that the Minister can give us a better answer, but so far it has been extremely disappointing.
My Lords, I am sure the Minister has picked up on the mood of your Lordships’ House today, as I know he will have done in previous debates. I am grateful to him for outlining the Government’s approach on infrastructure rollout and the concerns regarding a review. However, like other noble Lords who have spoken today, I feel that the department is still missing the point. It is appreciated that the Minister acknowledged the sentiments behind the original amendment. In common with other noble Lords, I am also grateful for the time that he and his officials have given to the discussion and consideration of the points that have been raised.
However, the original amendment before this House, which we are looking at again today, was intended to help the Government—something I emphasised in the meeting with the Minister—not least because it is an attempt to bring together balance, fairness and efficiency and to take a rather different approach from the one we have seen thus far, which the noble Lord, Lord Clement-Jones, has just referred to, of a trajectory of continually watering down ambitions because the regime is simply not delivering at the required pace. It would be better to tackle the root problems to find a way forward than moving the goalposts, which is what has been happening so far.
The creation of new stakeholder bodies could prove to be a positive step, but we need to acknowledge that this is not the first time we have seen such an initiative. DCMS already runs a number of working groups, and the discussions within them have rarely led to any significant breakthroughs. It would be of interest to hear why the working groups in this setting will be any different. While wishing the national connectivity alliance well in its efforts, establishing new groups or structures will be of little use if they become—as other noble Lords have said—talking shops, or, very significantly, if underlying regulation becomes ineffective.
We welcome both sides of the rent debate getting around the table, but it is important to say that our concerns about rollout go beyond issues around the valuation of land. In any event, as the Minister has said, Parliament will not have a full role in the upcoming discussions. As the noble Earl, Lord Devon, has indicated, we could do with some more detail about the reference the Minister made to the way in which Parliament will be referred to in the deliberation. I would also appreciate the level of detail that has been requested.
These problems are not going away—if anything, the situation is likely to get worse before it gets better, particularly given the increased volume of tribunal cases and the Government’s refusal to make their new arbitration process mandatory. It seems that the Government hide behind existing processes, claiming that an independent review would unnecessarily duplicate Ofcom’s role, but the fact remains that the current system is not working, and that is what we have to address. The disputes and regulatory ambiguity mean that we are not delivering the upgrades that millions across our country so badly need.
I am sure we all agree that better connectivity is crucial to future economic growth—which is supposed to be the Government’s priority—but with every delay to our rollout and every problem that is being faced, we are losing ground to international partners. Yes, the Bill will deliver progress in some areas, which is why we will not delay its passage any further, but without concerted efforts, we are likely to simply rerun these very same debates again and again in the years to come. There was a window of constructive opportunity here, and I put on record my great disappointment that the Government have not recognised this.
My Lords, I am grateful to noble Lords for the points they raised in the debate today. I will try to respond to the questions that they have asked. I understand your Lordships’ desire to ensure that the Government are held accountable, as we should be, for the legislation that we enact, and that we are taking appropriate steps to monitor its impact. I would certainly not disagree with that sentiment.
I will start with the comments on the valuation regime, raised particularly by the noble Lord, Lord Cromwell. This, of course, has been debated at length throughout the passage of the Bill, both in your Lordships’ House and in another place. I am grateful to the noble Lord and others for their time to discuss this in more detail, but we are now reaching the point where we are at risk of repeating ourselves. There are no new points to be added at length. I ask noble Lords to bear in mind that the valuation regime was introduced through the Digital Economy Act 2017. In the intervening period, the public interest in access to digital services has only increased—a fact underlined, of course, by our reliance on those services during the Covid-19 pandemic. The case for a framework which encourages investment has, therefore, never been stronger, and we think the statutory valuation regime is an important part of that framework.
My noble friend Lord Northbrook and others mentioned our scepticism about the CEBR report. This is not to denigrate the CEBR itself, and I will not expand on the points contained in the note that he and other noble Lords have seen, to which he referred. I underline, however, that it was commissioned by the campaign group Protect and Connect, as the noble Lord, Lord Clement-Jones, acknowledged, and there are certain campaigning groups that have been, throughout the passage of this Bill, seeking to influence the debate, which have vested interests in the matter. They are perfectly at liberty to make their points in the way that they wish, but it should be borne in mind that the organisation funding this campaign stands to make significant financial gains if the changes to the 2017 valuation framework are reversed.
I hope I can give greater reassurance to my noble friend Lord Northbrook on the point he raised about transitional measures. The Government are considering the implementation strategy for this Bill very carefully, including possible transitional provisions. I reassure noble Lords that the implementation of the Bill will be discussed with all interested parties, including those representing the interests of landowners. The Government are committed to ensuring that the Bill is brought into force not only in a timely manner but in a sympathetic and responsible way, taking into account the range of impacts that different approaches may have on different groups.
The noble Earls, Lord Lytton and Lord Devon, the noble Lord, Lord Cromwell, and others flagged the evidence base on which the Government’s conclusions are based. The Government’s position is based on a wide range of information. That includes data on coverage and connectivity, which is collated by Ofcom and which demonstrates that substantial progress has been made since 2017. I repeat my apology to the noble Earl for the delay in sending him the data during our debates on this Bill, partly because of the interruption in service on my part. It is true that we have taken into account data provided by the industry on the number of agreements completed since 2017, but these are data that can be supplied only by the industry. If the valuation framework had stalled the market or slowed down deployment, it would not be in the sector’s interests to try to maintain that framework.
A number of noble Lords talked about the reduction in rent, which we have seen since the 2017 reforms. It sounds as though we might not come to an agreement on the precise figure, but rent is only one element of the financial package that operators may offer to landowners. Within the legislative framework, separate sums can be offered as compensation to cover potential loss and damage; other variations might occur in practice within the market. For example, as part of the financial package, operators might choose to offer an early completion incentive payment. I am concerned that some of the case studies that have been drawn to noble Lords’ attention may ignore the overall package offered to landowners or fail to acknowledge that figures presented might have been an opening offer, when ultimately very different terms might have been agreed once proper negotiations have taken place. The amount of rent received will, in practice, often depend on the much wider circumstances in which financial offers are made and final terms are agreed.
The noble Lord, Lord Clement-Jones, mentioned the report in the Times this week about the burden on the courts. It has been suggested, including in that article, that the 2017 reforms have caused courts to be overloaded and that that will delay the rollout of 5G services. If litigation backlogs were having an adverse impact on digital targets, that would certainly be a cause for concern, but we do not agree that is the case. The industry reports year-on-year increases in agreements being completed, and significant progress continues to be made towards the Government’s coverage targets.
Importantly, the figures which the DCMS has received from the Ministry of Justice show that only a fraction of cases commenced go all the way to a final hearing; the vast majority are resolved at a much earlier stage and without the intervention of the courts. This strongly suggests that effective and timely use of the alternative dispute resolution where appropriate can reduce litigation. For example, in the year starting 1 April 2020, 102 Electronic Communications Code court applications were received by the Upper Tribunal but only 11—around 10 %—were determined at a hearing.
The noble Lord, Lord Cromwell, asked whether the cost savings made by operators since 2017 are being passed on to consumers, and he is right to do so. We have always been clear that we do not think it is reasonable to expect the sector to provide pound-for-pound accounting to demonstrate that savings from code agreements translate into network investment or reduced pricing for their consumers. However, since 2016, the Government have set challenging coverage and connectivity targets demanding a level of industry investment which we believe requires us to maintain a legislative framework which makes deployment as cost effective as possible. For example, the shared rural network which I mentioned in my opening remarks will be underpinned by £530 million of industry investment.
As regards passing on savings directly to consumers, the department also works with the industry on measures to ensure that services can be made available to as many families as possible: for example, our work with broadband and mobile providers to bring high-quality, low-cost social tariffs to the market for as little as £10 a month. Available to people claiming universal credit as well as other means-tested benefits, social tariffs are available in 99% of the UK and from a range of providers, including BT, Virgin Media, Sky and Hyperoptic. DCMS continues to work with operators and consumer groups to help increase awareness of these low-cost offers to ensure that support reaches those who need it.
The noble Earl, Lord Devon, asked me to say a bit more on our commitment to report to the Select Committee, which was echoed by the noble Baroness, Lady Merron; I am very happy to do so. The Select Committee to which I referred was the cross-party Digital, Culture, Media and Sport Committee in another place. Different parts of the Bill will commence at different times, and in order to gain the maximum benefit and insight from the process, it is important that all the provisions are given an opportunity to bed in. It is therefore a little difficult at this stage to say as precisely as I think the noble Earl hopes me to when the report will be prepared and submitted, as it just is not possible to say that for each of the provisions in that detail at this stage. However, the Government are of course aware of the current expectation contained in the Guide to Making Legislation, which is that this will be done between three and five years after commencement. For the same reasons, neither would it be appropriate to pre-empt exactly what the report might contain, but it will provide a preliminary assessment of how the Act has worked in practice, taking into account its objectives and supporting documentation, such as the impact assessment.
The need for faster and more secure connections is constantly growing, making this legislation ever more vital to support the UK’s infrastructure. I am grateful to noble Lords and to Members in another place for their efforts to improve the legislation, as indeed they have done—I have certainly learned more about things such as telegraph poles and internet-connected smart toasters than I could ever have imagined. The Bill is in a fit state to proceed to the statute book. It will help people up and down the country to access the digital services they need and with greater confidence about their cybersecurity. I beg to move.
Motion A agreed.
Public Order Bill
Committee (2nd Day)
Relevant documents: 17th Report from the Delegated Powers Committee, 1st Report from the Joint Committee on Human Rights, 7th Report from the Constitution Committee
Clause 9: Offence of interference with access to or provision of abortion services
80: Clause 9, page 10, line 28, after first “who” insert “, without reasonable excuse,”
Member's explanatory statement
This amendment provides for a defence where the person has a reasonable excuse for being within a buffer zone and has access to that defence prior to charge.
My Lords, I shall speak to a range of amendments associated with Clause 9: Amendments 80, 81, 82, 83, 86, 89, 92 and 94. I have also put my name to Amendments 88 and 90 in the name of the noble Lord, Lord Beith, and have some sympathy with Amendments 98 and 99 in the names of the noble Lord, Lord Farmer, and the right reverend Prelate the Bishop of St Albans.
Clause 9 creates a new criminal offence of interfering with
“any person’s decision to access, provide or facilitate the provision of abortion services”
in a designated buffer zone. The most contentious aspects of the clause centre on the definition of “interfering with”, which criminalises a wide range of activities usually associated with free speech and the right to assemble.
However, Clause 9 also makes any gathering outside an abortion clinic or a hospital providing abortions the subject of criminal law. Currently, where there have been problems outside a building facilitating abortion services, the mechanism for dealing with them has been locally decided and designed through public space protection orders—PSPOs. Police and local authorities have the ability to set up zones in response to complaints over gatherings around specific abortion providing facilities. Clause 9, in contrast, introduces a catch-all blanket ban across all service providers, regardless of whether there are problem protest activities taking place. This seems to me to be totally disproportionate.
Although I am no fan of PSPOs per se—councils carving ever more public space away from public use is not a positive trend—none the less, the aim of my Amendments 88, 89 and 90 is to repose the solution in relation to abortion protests as localised PSPOs based on consultation and reviewed annually, so as not to normalise prohibitions.
Because Clause 9 focuses on the issue of abortion, which we know is an emotional and morally challenging issue, it is worth taking a step back. The Government’s reason for bringing forward the Bill overall is to deal with the new protest tactics of Extinction Rebellion and its offshoots. Many of us have noted in previous debates that we do not support these anti-social tactics and some of us have even been clear that we have no sympathy with the nihilistic, catastrophising philosophy behind the eco-guerrilla warfare that activists have been waging against the British public.
Despite that, there have been widespread concerns across the House querying whether these new laws are necessary or proportionate, and noting that we already have laws on the statute book to deal with aggravated disruption, even if these laws are not being used effectively by the police, which is a different problem. There has also been widespread unease, which your Lordships have illustrated in myriad ways, about how various clauses in the Bill might have unintended draconian consequences for the general right to protest, far beyond Just Stop Oil activists or our attitudes to them.
For me, the same concerns are absolutely true of Clause 9. However, the difference is that many opposing the Government on the rest of the Bill are supportive of this clause. Seemingly, this is because noble Lords want to be unconditionally supportive of every woman’s right to access abortion facilities without hassle or hostility. As a passionate advocate of women’s reproductive rights and bodily autonomy, I am very sympathetic to this view. However, this is not the key prism that should inform our approach to Clause 9. I urge your Lordships to scrutinise Clause 9 with similar dispassionate and impartial eyes as have assessed the rest of the Bill in relation to Just Stop Oil—that is, beyond our attitudes to abortion.
Stella Creasy, the MP who effectively authored this clause, was quite right when she said in the other place that this new clause is not about the abortion debate. However, she argues that it is about ensuring safe access to abortion healthcare, and this is where the dispute starts. All the evidence indicates that the activity happening outside clinics, while undoubtedly unsavoury, does not threaten safe access. What is more, if there are any instances of women’s safe access being obstructed, which is totally unacceptable, many pieces of legislation already exist to protect women if they face intimidation or harassment, as Home Office Minister Kit Malthouse pointed out in the Public Bill Committee debate in June. For example, the Public Order Act 1986 prohibits causing harassment, alarm or distress, and includes a specific power to impose conditions on assemblies that seek to intimidate others not to do an act they have a right to do.
As with other parts of the Bill, the police have the powers to target specific instances of behaviour or activity if they constitute blocking safe access to abortion facilities. In 2018, the then Home Secretary, after concluding an in-depth review of the abortion clinic buffer zones, stated that he was
“adamant that where a crime is committed, the police have the powers to act so that people feel protected.”—[Official Report, Commons, 13/9/18; cols. 37-38WS.]
Given the importance of the rights at stake here, it seems particularly important that the police use their resources and their existing powers appropriately, to protect staff at abortion facilities and service users alike —but for that to happen, none of this requires Clause 9.
Do not get me wrong; I have very little sympathy for those who think that it is appropriate to gather outside abortion clinics. It is wholly unpleasant to target any individual woman going into hospital to access a legal termination. Waving gruesome images of dismembered foetuses, following women and medical staff doing their jobs, calling out, “your baby loves you” or “murderers”, hanging clothes around clinic entrances—this is crass insensitivity rather than compassion.
However, to be balanced, pro-life activists who attend these vigils will dispute these anecdotes and claim to be simply offering crisis pregnancy support, giving women choices by offering help financially, in raising a child, et cetera. There are, I concede, two competing narratives. I am conscious of the 2018 Home Office review, which found that those gatherings largely comprise passive activities such as prayers, leafleting, placards, singing hymns and so on. Regardless of which narrative you buy, it is wholly insensitive and intrusive to try to engage individual women at such a time, effectively demanding that they account for their personal moral decisions to strangers at a rally. I have no doubt that this would upset most women. It would upset me.
But whether it is upsetting is not what we should be talking about. The key question is whether it should be illegal and whether it constitutes a threat to safe access. My problem with Clause 9 is that it does not distinguish between activities causing actual objective harm and harassment, which threaten safe access, and activities with which we may disagree or which we might find disagreeable. Therefore, we must resist the temptation to create a law that criminalises otherwise legal activities based on a distaste for those activities. How the Bill defines “interferes with” will make an extraordinary range of activities in a particular area punishable by lengthy stints in prison or unlimited fines.
Some of the most egregious and censorious parts that my Amendments 88 to 90 seek to strike out are,
“seeks to influence … advises or persuades, attempts to advise or persuade or otherwise expresses opinion … informs or attempts to inform about abortion services by any means, including, without limitation, graphic, physical, verbal or written means”.
In other words, Clause 9 outlaws leafleting, holding placards, expressing opinions, persuading and informing. Some will say, “Don’t worry; this is only to be used in very specific instances of access to abortion, and it is only confined to designated areas”. But as Big Brother Watch points out, creating prohibitions on protest on an issue-by-issue basis is not an appropriate way to make law. It sets a precedent that will inevitably lead to attempts to prevent speech, expression, information sharing, assembly or the holding of protected beliefs around other sites or in relation to other controversial or unpopular causes.
If we pass Clause 9, why will other institutions not demand buffer zones around their special case facilities? If we consider that in Clause 9 a buffer zone is defined very broadly as
“150 metres from … any access point to any building or site that contains an abortion clinic”,
does that not make protests of all sorts at hospitals potentially unlawful? What if you wanted to organise a vigil outside a hospital in which, for example, babies died due to negligence, such as in the maternity services scandal recently? What about a rally against the use of puberty blockers on teenagers? Would that be banned too? Note that when Labour introduced an amendment to the Police, Crime, Sentencing and Courts Bill for fast-track PSPOs to be used against gatherings in the vicinity of vaccination centres, it also made a special case and extended the precedence for another medical procedure to be protected from protest—a veritable slippery slope.
To those who say that the slippery slope argument is scaremongering, we were reminded in Liberty’s briefing for this Bill that protest banning orders were based, practically word for word, on football banning orders. I remember speaking against football banning orders and warning then that they set a precedent. I was told, “Oh, no; they are aimed at football hooligans only”. Well, guess what?
To conclude, I am very conscious that this clause was voted in with 297 votes for and 110 against in the other place and was supported by MPs across all parties, and I am always concerned about the democratic dilemma of unelected Lords challenging what happens in the other place. But these are probing amendments to at least ask to strengthen the burden of proof required to establish offences, to limit the range of acts potentially criminalised, to bring some proportionality to sentencing and to try to limit the illiberal, if unintended, consequences of what is undoubtedly a well-intentioned clause. I hope that when the Bill returns to the Commons, we at least give it a chance to think again.
I finish with Liberty’s comments in 2020, which I think are apt:
“Interference with protest rights should also be kept to a minimum. Liberty’s view is that legislation should only go as far as necessary to enable people to access abortion services safely.”
That is exactly right. The problem with Clause 9 is that it is redundant on this basis because safe access to abortion services is not threatened by people gathering outside.
My Lords, Amendment 80A is in my name. I will also speak to the other amendments in this group. I welcome the Government’s commitment at Second Reading to introduce zones around all clinics in England and Wales to ensure that women are able to access their legal right to abortion without harassment or intimidation. As the noble Baroness, Lady Fox, said, this clause was added in the other place by a majority of Members across seven political parties.
This clause will protect the women who have made the decision to have an abortion and now wish to access the service in peace and privacy without somebody trying to tell them to rethink what is often a very painful, personal and difficult decision. My amendments are supported by the noble Baronesses, Lady Barker and Lady Watkins, and by the noble Lord, Lord Ponsonby. They have been tabled in response to the debate at Second Reading to provide clarity around the description of these zones and to tighten the definition of what constitutes interference.
Amendments 80A, 82A and 82B would change the term used in this clause from “buffer” zones to “safe access” zones. This terminology better reflects the purpose of the zones—to ensure that women can safely access care. It would also bring the description of the zones into line with that used in the law in Northern Ireland and in the proposals in Scotland, as well as around the world, including in Australia and Canada. Amendment 84 would clarify the intent behind the drafting so that sites such as multiple-use buildings and hospital grounds which contain an abortion clinic are also included in these zones.
Amendments 87 and 93 would tighten the description of banned activities, so that they very clearly apply only to people interfering with abortion services and not to any other protests, such as some of those referred to by the noble Baroness, Lady Fox. Following concerns raised at Second Reading about the breadth of these banned activities, Amendment 91 would remove “or otherwise expresses opinion” from the list.
Amendments 95, 96 and 97 would add exclusions to the safe access zones. Amendment 95 covers everybody attending a clinic with a service user with their consent. This is often a friend or a loved one—someone who anti-abortion literature sadly and inexplicably refers to as “an accomplice”. Amendment 96 would exempt any activities taking place,
“inside a dwelling where the person affected is also inside that or another dwelling.”
Amendment 97 would exempt activities taking place inside a church or other,
“place of worship where the person affected is also inside that”
place of worship. I hope that noble Lords and the Government will agree that, taken together, these amendments address many of the concerns raised at Second Reading and provide clarity and a tightening of the definitions in the clause.
I turn to other amendments in this group. I am afraid that I do not agree that there needs to be a “reasonable excuse” defence in the clause. This is about harassment and intimidation, not protest. I do not believe there is a reasonable excuse for the harassment or intimidation of women seeking to access their legal right to medical care. They are often in a vulnerable situation, having made a difficult decision—a decision which is theirs to take.
Amendments 81, 83 and 86 concern the universal application of the zones. Universality was debated in detail and agreed in the other place. It is a core requirement of this clause. Removing it would undermine its very point, which is about protecting women before harm occurs.
A method already exists to apply for locally based public space protection orders, or PSPOs, but their nature means that evidence about impact has to be gathered locally and for a prolonged period. They require women to be subjected to abuse and intimidation for months—even years—before they can be introduced. They place a burden of proof on these women, who are in a vulnerable situation. They are expensive and complicated. The process also requires significant time and resources from providers and local councils, which often do not have resources to spare. This is why, despite regular protests at clinics across the country, we have so few PSPOs—only five, despite regular protests at more than 50 clinics. This creates a patchwork of protection, so that women across the country face a postcode lottery as to whether they will face harassment when they go to a clinic. Once a clinic is successful in getting a PSPO, groups simply move to another site and the whole process begins again.
The introduction of “intentionally or recklessly” by Amendment 82 would likely make it harder to implement and enforce the clause. It would increase the likelihood that this measure would not be adequate to deliver on its aim.
Amendments 88, 89 and 90 relate to the list of banned activities that the previous amendments in my name seek to clarify and narrow. They would leave intact the other essential aspects of advising and persuading. “Seeking to influence” is at the core of the amendment inserted by the House of Commons. It is needed to cover the activities we are seeing outside abortion clinics around the country. The list in Clause 9 is based on these reported activities and their impact, which many women accessing care at these clinics report as being the most distressing.
Finally, Amendments 98 and 99 would remove Clause 9 entirely and instead require the Home Office to undertake another review into activities around abortion clinics. A review would undermine the vote in the other place to support the immediate addition of Clause 9, disagreeing with the clearly settled will of elected Members. Another review would delay stopping the harassment of women around abortion clinics.
Since the last review four years ago, protests have evidentially increased. BPAS’s database of abortion clinic activity currently includes nearly 3,000 accounts of service users, those accompanying them and clinical staff. Half of those have been received since the Home Office’s last consultation closed, and this is in no way an exhaustive list. Understandably, only a small proportion of women affected are willing and able to share their experiences when asked.
Since the review, the number of hospitals and clinics in England and Wales that have been targeted has increased by 20%. Just today, an abortion clinic in Doncaster has reported having people outside for the first time in years. We have seen an increase in co-ordinated activities. Tactics have evolved, groups are actively recruiting and are very well funded, often by American groups emboldened by Roe v Wade, which are now looking to sow division on our shores. Largely American-funded campaign groups with deep pockets are opposing our local councils when they seek to bring legal orders to protect women from harassment.
It is not right that this influence impacts the right to access healthcare in this country. As the former Home Office Minister, Victoria Atkins, said in the other place, new, immediate law is needed because of the failure of existing legislation to address the problem. Some 100,000 women a year in England and Wales have to attend an abortion clinic that is targeted by anti-abortion groups, which cause harassment, alarm, and distress to these women. Some 50 sites have been targeted in the last three years. It is clear that the existing law is not enough and this piece of legislation is needed. We must safeguard a woman’s right to access healthcare.
My Lords, I will speak to Amendments 98 and 99, to which my noble friend Lady Sugg just referred. We need to stand back. Our constitutional responsibility in this House is to scrutinise, amend and, where necessary, push back on legislation that is unwise or uncompliant. We have particular leeway to do this about an issue not included in the Government’s election manifesto.
Clause 9, which makes it an offence to interfere with
“any person’s decision to access, provide, or facilitate the provision of abortion services”
is fundamentally flawed and should never have been added to the Bill. It is quite simply not about public order. It chillingly polices access to the idea contrary to pro-abortion orthodoxy that there are other ways to approach this most difficult of decisions.
Those pushing the clause took advantage of parliamentary maelstrom at a time referred to, to me, by one very seasoned, senior MP in the other place as “discombobulating daily turmoil”. The imposition of nationwide buffer zones would have been whipped against when it came up previously in the passage of the Police, Crime, Sentencing and Courts Bill. However, this time the whipping confusion was exploited and it was made the subject of a conscience vote—the first in relation to public order in 203 conscience votes since 1979.
We need to be clear-eyed about the significant majority for this new clause, which was accepted in the other place. Many MPs spoke and then acted on their unwillingness to let women seeking health services be harassed and intimidated, but the very many abstentions indicate that this was not straightforward. The law already protects women’s rights to access abortion facilities without hindrance, harassment and intimidation.
More fundamentally, the inaccurate assumption that harassment and intimidation are the hallmarks of vigils undermines the arithmetic of the other end. Hence my Amendment 98 calls for a review of current law and practice outside abortion clinics before making a major incursion into civil liberties. The 2018 Home Office review, which we have heard much about, found that people on vigils, not protests, are typically there to offer information and support, including but not exclusively if women want to continue with their pregnancy.
The review also found far less benign practices. The Written Ministerial Statement said that it found
“upsetting examples of harassment and the damaging impact this behaviour has had on individuals … However, what is clear from the evidence we gathered is that these activities are not the norm, and predominantly, anti-abortion activities are more passive in nature”.
Some noble Lords at Second Reading claimed that unpleasant activities and the dissemination of inaccurate information have been stepped up recently, so the 2018 review is behind the curve.
However, since 2019, when the Court of Appeal upheld the legality of the first buffer zone, allowed in Ealing, under the Anti-social Behaviour, Crime and Policing Act 2014, many of the pro-life vigil groups have, out of caution, softened their approach outside abortion centres. None shows pictures of foetal development or of aborted foetuses, and the norm is not to carry devices that could fuel accusations that they are recording women.
The organisation 40 Days for Life emphasises the need for its activities to be non-intrusive and volunteers are required to sign a statement of peace. It rarely uses images but those it does are of live babies. Similarly, the Good Counsel Network now displays only helpline phone numbers. When one walks past, one sees that vigils are often small groups of harmless, mainly female, pensioners. Why should they be banned and silenced?
Yet buffer zones can provoke an inappropriately aggressive response. A priest in Birmingham inside a buffer zone was questioned by police for silently praying, warned that a fine might be issued and told that he would be arrested if he repeats the action. Outside the Bournemouth buffer zone, one lady was told by police to stop praying and handing out leaflets. A veteran was warned that if he prayed silently again, action would be taken against him. This shows the dangers of broad powers.
Others may dispute my characterisation of vigils, illustrating why Amendment 98 is needed. I cannot see why any reasonable person should not agree to a review before we impose such draconian legislation.
Amendment 99 follows the proposed new Clause 9 in Amendment 98 and would enable secondary legislation to be brought forward to impose buffer zones if deemed necessary by the review without the need to find another legislative opportunity. This would respect the vote in the other place to introduce nationwide buffer zones. However, its being consequential upon a review would better ensure such legislation is evidence-based, compatible with fundamental rights and prosecutable.
In conversations with other noble Lords, I have been challenged on why I am proposing regulations rather than primary legislation. Regulations function as a means through which government can act quickly and nimbly. The complexity of the human rights issues at stake, and the potential differences from region to region, mean that the Government will need to tailor any restrictions to reflect local needs.
Regulations also allow for sunset and review provisions to be included so that legislation can, if appropriate, cease to have effect. These may apply to all or part of the legislation or to its application in particular circumstances. I am, in fact, not averse to proportionate primary legislation which does not criminalise peaceful activity, and includes sunset and review provisions, if the review required by my proposed replacement for Clause 9 shows that it is needed.
Regulations which require consultation with key stakeholders and need approval by both Houses improve on the current public spaces protection order system, which allows a local authority to impose buffer zones with scant transparency.
These regulations would allow for sunset and review provisions to be included, so the legislation can cease to have effect if appropriate, as I said.
I was talking about how regulations that require consultation with key stakeholders and need approval by both Houses improve on the current public spaces protection order system, which allows a local authority to impose buffer zones with scant transparency. The decision to introduce PSPOs is often initiated, drafted and implemented by one person or a group of council officials, with very little scrutiny and awareness of what factors they have taken into account.
I will speak briefly to other amendments. Those tabled by the noble Baronesses, Lady Fox and Lady Hoey, engage with the civil liberties and rights issues. However, they accept that interference with a decision can be disallowed, which would be a first in criminal law and very hard for the individual to defend themself against. A woman could simply claim that a choice made in the privacy of her mind had in some way been influenced by a message or person.
However, the tidying-up changes that my noble friend Lady Sugg proposes do not speak to the disproportionality of Clause 9, and in some ways worsen it. For example, Amendment 84 would ensure that a buffer zone also applies where an abortion clinic is embedded within a hospital or GP surgery, as we heard. This would vastly increase the footprint affected by buffer zones. Even if only all 373 abortion clinics were included, this would leap from the current 225 square metres to 26 square kilometres, and it would single out the issue of abortion for wildly disproportionate restrictions in comparison with other health areas. A person providing false information on a leaflet about any other medical issue would be free to do so, but someone providing accurate information on abortion would be criminalised.
I could say a lot more, but this is a big group with many speakers, and I know at least one noble Lord who was dissuaded from speaking because time is not limitless. As my noble friend the Minister will know from his many conversations, there is strength of conviction on both sides of this argument. I urge him to adopt the evidence-based policy route. There is again clamour for reform of this House, but the importance of our scrutiny and revising role is not clearly understood. We would be lax in our duty if we merely rubber-stamped or gently tweaked this inadequate and ideologically inspired clause.
My Lords, I will speak to Amendment 98 in the name of Lord Farmer, and Amendments 88 and 90 in the names of the noble Lord, Lord Beith, the noble Baronesses, Lady Fox and Lady Hoey, and the right reverend Prelate the Bishop of St Albans.
Amendment 98 would correct one of the most egregious aspects of the addition of Clause 9, which was originally added to the Bill in the other place. Amendment 98 would review why this law change is needed. This policy was reviewed just four years ago, and the then Home Secretary’s conclusion was that
“national buffer zones would not be a proportionate response”.
Those who support this clause have not demonstrated what has changed since that review.
I looked through the Home Office review from 2018, and it is interesting to note how little evidence is provided there that these buffer zones are needed. The review also sets out why the policy is unworkable, stating:
“There have been several cases where particular buffer zones have been successfully challenged on the basis they disproportionately infringe on civil liberties and freedom of speech ... buffer zone legislation has not always delivered exactly what service providers and pro-choice activists had hoped for.”
At the very least, before any law change is taken forward, we should understand what is alleged to have changed and why current laws are not sufficient. At present, the proponents of Clause 9 have not met that threshold so I support Amendment 98, which seeks to address this.
I turn to Amendments 88 and 90, which would arguably take out the most pernicious aspects of Clause 9. Amendment 88 would stop the proposed buffer zone, including criminalising a person who “seeks to influence”. This wording is sinister, impossible to enforce and an assault on our most basic freedom of speech. The same is true of Amendment 90, which would remove from the clause the provision to criminalise a person who
“advises or persuades, attempts to advise or persuade, or otherwise expresses opinion”.
Noble Lords and colleagues from the other place who support this clause tell us that they do so to protect women from harassment and intimidating behaviour. I again place on record my declaration that any harassment or intimidation should be subject to the law; something should be done about it. The sentiment is both worthy and correct in terms of its intent but that is a wholly different intention from seeking to stop people expressing opinions or attempting to persuade. Free societies are built on expressing opinions and attempting to persuade. Some might say that this should not take place at an abortion clinic but the Home Office review I mentioned earlier
“pointed out that the Chief Executive of BPAS”—
the abortion provider—
“had stated that 15% of patients change their minds about having an abortion at the BPAS clinics.”
I think noble Lords from across the Chamber would argue that it is plainly a decision for those women about how to proceed in those circumstances, so to deny them advice and explicitly block the expressing of opinions would rob those women of making an informed choice.
I add my support to the other amendments tabled to this clause, namely Amendments 80 to 83, 86, 89, 92 and 94. I hope that the Minister will recognise that there is concern from across this House for the consequences of Clause 9 and that he will allow a pause to think about it in more detail, avoiding a rushed change to the law that will have profound consequences for both women and freedom of speech in this country.
My Lords, I understand that the Minister has already concluded that freedoms will be curtailed by an over-emphasis on the problems surrounding abortion clinics. Before we embark on legislation, it is essential to have accurate information about what people are complaining about. Clearly, people attending abortion clinics should not be harassed or intimidated in any way. However, as the noble Baroness, Lady Fox, mentioned, there already exists sufficient legislation to ensure this, such as the Public Order Act 1986, which, as has already been mentioned, stipulates that it is an offence to display images or words that may cause “harassment, alarm or distress”. New legislation is required only if we are absolutely convinced that the current legislation is failing. We do not have sufficient evidence that this is the case.
As has been mentioned, a detailed review was conducted in 2018 on this issue. The Home Secretary at the time concluded that
“introducing national buffer zones would not be a proportionate response, considering the experiences of the majority of hospitals and clinics, and considering that the majority of activities are more passive in nature.”—[Official Report, Commons, 13/9/18; col. 37WS.]
The review also found:
“The vast majority of the pro-life activities reported through the call for evidence do not meet the threshold of being classed as criminal.”
So what has changed since then? It should not be illegal or an offence for any member of the public simply to have a conversation with an individual entering an abortion clinic. To threaten them with imprisonment for doing so is rather reminiscent of a totalitarian state. Clearly there needs to be accurate information checked on the extent of the present abuses that are alleged. Surely those who support Clause 9 would welcome a detailed consultation seeking the views of abortion providers, law enforcement, pro-life organisations, businesses, churches, residents and other interested stakeholders. Only after such information has been collected should a law be put forward to cope with real, as opposed to imaginary or exaggerated, problems.
A consultation is the best way to address any problems that arise in terms of intimidating or harassing behaviour at abortion clinics. That is a much more proportionate and reasonable response than introducing mandatory blanket zones which attempt to regulate essential free speech. This consultation will provide accurate information on whether there has been a change since the last report. I fully support the amendment put forward by my noble friend Lord Farmer to which my name is attached.
My Lords, I speak to my Amendments 85, 88 and 90 to this clause. I make it clear that, although I have regularly voted to secure more protection for the unborn child under abortion law, I am opposed to the kind of protest outside clinics and hospitals to which Clause 9 is directed. I am deeply troubled by the extent to which this clause restricts free speech, indeed abolishes it within 150 metres of a clinic or hospital. I cannot vote to write into English law a clause which, as presently worded, makes it a criminal offence to seek to influence, persuade or even to express an opinion. I note that the noble Baroness, Lady Sugg, has an amendment which deals with the complaint I made at Second Reading in respect of the last of those words but not the others.
This clause as it stands is clearly inconsistent with the European Convention on Human Rights and imports into our law the dangerous concept that to express an opinion can constitute interfering. Once that concept has found its way into our law, such language would be welcomed by the anti-free speech brigade and we would find it sought after in other areas of legislative restriction. Those who advance the so-called right not to be offended in student union politics would latch on to such wording with enthusiasm.
I turn first to Amendment 85, which has the support of the right reverend Prelate the Bishop of St Albans. It seeks to protect the normal activities of a church, chapel, mosque or temple that finds that it is within the 150-metre zone of a clinic providing abortion services. I will come on later to how wide a range of areas that could be. In such a church, mosque or temple, what if a debate is organised on the arguments for and against abortion in the light of the religious convictions of those who worship there? What if a poster is put up outside the church to state that such a debate is to take place on a particular date with a brief indication of the points of view of the different speakers? What if a campaign meeting designed to enable the church to play a greater part in the public debate on this issue takes place there? These are normal activities of churches.
Let us remember that these churches and mosques have been sitting in these places for many years and, all of a sudden, the area they are in is determined to be one in which they cannot do what they did previously. They cannot have the kind of discussions and conversations which are normal to them. That is a point that the noble Baroness, Lady Sugg, also sought to cover in her Amendment 95 and I appreciate that.
I turn to my Amendments 88 and 90, which take out some of the words in this clause, to which I have referred, but they do not affect the provisions covering intimidation and harassment, which none of us favours at all. Amendment 88 takes out the ban on a person who “seeks to influence” within the 150-metre zone, while Amendment 90 removes the words
“advises or persuades, attempts to advise or persuade, or otherwise expresses opinion”.
I am astonished that that wording could ever have got into the draft of the clause. That there could be any part of the United Kingdom in which it is a criminal offence to express an opinion is, to me, quite extraordinary. This cannot be made consistent with the ECHR or historic rights of free speech. I hope that by Report the Government will be able to bring forward a significant redraft of this clause.
The noble Baroness, Lady Sugg, made some helpful suggestions but they are not enough. Amendment 95 relates to “persons accompanying”. I am glad that she has included that amendment, because it deals with a situation in which somebody is accompanying someone to an abortion clinic, and they are having a discussion about whether she should or should not go through with it—the pros and cons. That would be a criminal offence under the legislation, unless her amendment is accepted. It illustrates what dangerous territory we are in and how close we are to the cliff edge of losing our free speech.
I shall look at some other instances. What if a member of staff, perhaps a whistleblower, questioned some aspect of the policy or practice of the clinic and sought to get it changed, potentially affecting and limiting the provision of abortion services? What if that discussion was taking place, and the person thought that they could rely on a conscience clause, because in a certain case they thought that the wrong decision had been taken or a practice was dangerous? Is that person going to be guilty of a criminal offence for doing so? I find that extremely worrying. What about a picket in an industrial dispute, such as a nurses’ strike, which interrupted abortion services or access to some extent? That would appear to be covered by these provisions.
Amendment 84 from the noble Baroness, Lady Sugg, and Amendment 93A from my noble friend Lady Hamwee, also worry me, because they would extend the term “clinic” to any
“place where advice or counselling relating to abortions is provided”.
That is every doctor’s surgery in the land—a huge extension of the potential scope of this legislation. The free speech restrictions that it imports would seem inexplicable to somebody simply walking along the street in the vicinity of a doctor’s surgery, having a conversation about the rights and wrongs of abortion, who is overheard by somebody who reports them. Before long, a police officer is pursuing the case.
As to the amendments proposed by the noble Lord, Lord Farmer, I am very sympathetic to Amendment 98, which seeks to make the review the basis for action, which seems quite logical, but I am afraid I am not sympathetic to his Amendment 99. As he conceded, the amendment passes over to statutory instruments and delegated legislation the whole substance of this legislation. As the noble Viscount indicated in an intervention, that would deny the possibility of amendment of whatever was put forward. Those are very serious issues. I think on all sides we can agree that what the scope of the criminal law should be in this area is fundamental. It should be decided by primary legislation and, although I appreciate the reasons that the noble Lord, Lord Farmer, has felt obliged to use this mechanism, it is not the right one for such fundamental issues.
I hope that colleagues on all sides of the Committee, whatever their views on abortion, will address this issue so as to ensure that the criminal law is not so extended that historic rights of free speech are damaged and legitimate action by innocent people is neither prevented nor made the subject of criminal offences and prosecutions. I hope Ministers will look very carefully at my amendments and others and produce some workable and practicable redraft on Report, which we will also want to look at with the greatest of care.
I rise to address Amendments 85 to 88, 90 and 92, to which my right reverend friend the Bishop of St Albans has added his name. He regrets that he is unable to be in his place today. I also have sympathy with a number of other amendments in this group.
It is a heated and emotive debate on this clause, and it was heated and emotive when it was added in the other place. The danger is that we get dragged into debates about whether abortion is morally right or wrong. Indeed, I have had plenty of emails over the past few days, as I am sure other noble Lords have, tending in that direction. As it happens, I take the view that the present law on abortion strikes a reasonable balance; in particular, it respects the consciences of women faced, sometimes with very little support, with making deeply difficult decisions.
Moreover, history teaches us that the alternative to legal abortion is not no abortion but illegal abortion, with all the evils that brings in its train. Others, including people of my own and other faiths, may disagree with me on either side but that is not the focus of your Lordships’ deliberations this afternoon. Rather, as the noble Baroness, Lady Fox, reminded us, we are seeking to weigh the rights of women to access legal health services alongside the rights of others to seek peacefully to engage, persuade or simply pray.
However much we may disagree with the causes and tactics of those protesting, we need to remember that in a democracy not everything that is unpleasant should in consequence be made illegal. Harassment and abuse of the kinds to which the noble Baronesses, Lady Fox and Lady Sugg, and others have alluded must be condemned in the strongest possible terms. The use of legislation, including on harassment, to confront inappropriate behaviour is absolutely legitimate, but it already exists. If such behaviour is becoming more widespread, let us see the police and local authorities use those current powers more extensively so that they can create a safe and respectful atmosphere for vulnerable women.
I understand that no one has ever demonstrated that widespread abuse is prevalent or that new powers are necessary. At the least, we need clear research, as the noble Lord, Lord Farmer, proposes, to underpin such extensive new measures. In line with other provisions of this Bill, many of which we have already discussed, there is a need for the Government and police to take proportionate action while maintaining the strongest possible safeguards for freedom of speech, expression and assembly. Those are at the core of our nationhood. I do not think that Clause 9, as drafted, takes that proportionate approach.
I respect the views of those noble Lords who take a harder line against abortion and the many who reject the position from a more liberal standpoint. However, I cannot accept that it is desirable to legislate against expression of opinion on the matter or providing advice and guidance, even if one is in one’s own home or a place of worship. I cannot believe or accept that seeking to provide information could be met with a six-month prison sentence. I believe Amendments 88, 89 and 90 would help set a better balance on these provisions around freedom of speech. They would leave those things that are genuinely egregious in the clause and extract those things that are not.
Amendment 85 clarifies that Clause 9 cannot apply within an area
“wholly occupied by a building which is in regular use as a place of worship”.
Again, I do not expect or demand that religious positions on abortion are respected any more than others, but I worry that a minister of a religion holding views that are mainstream within his or her faith tradition—and are demonstrably legal to hold—could be barred under this legislation from expressing that view within their own place of worship.
I have some difficulty in understanding the thinking behind this amendment. If a sermon was being preached in a church or mosque, which is what we are being asked to contemplate, that sermon would not in any way impact on the person visiting the abortion clinic some distance away.
I thank the noble Viscount for his intervention. As the noble Lord, Lord Beith, said a few minutes ago, you might have a poster outside the church, mosque or temple saying that you are having a particular event on a particular day. It appears that would be caught by this legislation, but let us have the matter clarified by Ministers.
I thank the noble Baroness, Lady Fox, and others for their principled note that good powers must protect those who hold views with which you disagree or even find deplorable. Abortion is contested and emotive. I do not dispute that, as a result, there may on occasion be actions and levels of disruption that fail the test of Christian or any other charity. I deplore it when that happens.
However, there is a point of principle here going far beyond matters of abortion. Clause 9 is so broad and non-discriminate in its approach that it sets unfortunate precedents. I have real concerns that if we pass this clause into law in anything like its present wide form, we will see demands arise for exclusion zones, buffer zones or whatever they may be called in all manner of other locations and for all manner of purposes. I will listen with care to the rest of this debate, but I urge further concern in the approach to this part of the Bill. I hope Ministers will reflect on this and bring back some revised wording at a later stage.
My Lords, I rise to support many of the people who have spoken today but in particular the amendments, which I have co-signed, in the name of the noble Baronesses, Lady Sugg and Lady Barker. However, having listened to the debate very thoroughly, and being a believer in free speech, I have become increasingly of the opinion that we need to find a good resolution as a result of this debate, rather than a fast and rapid one.
I want to say as a nurse that contraception is always preferable to abortion, but women who attend abortion services do so to discuss their options, and to make difficult decisions about their pregnancies. Staff who work in abortion clinics are highly trained and seek to provide abortion healthcare that assists the person to understand their options and to provide confidential support during the process of making a decision about either maintaining the pregnancy or sadly proceeding to a safe abortion; and safe abortion is something that our country should be proud of.
People attending these clinics are often highly vulnerable, distressed, and their situation, in some cases, is made worse because they are pregnant as a result of coercive sex, which nobody else has mentioned. These women therefore need to be able to attend the services without intolerant public voices outside the clinics. I do not know what the ultimate solution is, but I do not think that we should support such behaviour outside any healthcare clinics, including abortion clinics. I therefore hope that the Minister is able to express, at the end of this group of amendments, the Government’s support to find the best solution we can to this issue.
My Lords, I am in agreement with the Clause 9 amendments put forward by the noble Baroness, Lady Fox of Buckley, and the noble Lords, Lord Farmer and Lord Beith. As these amendments highlight, there are several severe problems with Clause 9, and it will take more than mere window dressing to resolve them. I would like to concentrate my remarks on Amendment 86, in the name of the noble Baronesses, Lady Fox of Buckley and Lady Hoey, because it introduces crucial changes that seek to make Clause 9 more proportionate.
It should be noted that the regime created under new subsections (2A) through to (2D) is not new, this is entirely consistent with Part 3 of the Police, Crime, Sentencing and Courts Act 2022 and the consultation process set out for the public spaces protection orders it creates under Section 72B of the Anti-social Behaviour, Crime and Policing Act 2014. Amendment 86 ensures that buffer zones can be established where and when necessary, according to the unique local circumstances and the evidence. This amendment addresses the fact that Clause 9, in its current form, is not proportionate because it creates a mandatory regime that discounts these factors.
The clause as it stands is a catch-all approach which will inevitably sweep up behaviour which is not criminal. Indeed, this is what the Home Office found when it reviewed the situation in 2018, finding that
“The vast majority of the pro-life activities reported through the call for evidence do not meet the threshold of being classed as criminal.”
The needs of an abortion clinic in Ealing may diverge dramatically from those of a clinic in Birmingham, for example. Given that the Home Office review found that
“Pro-life activity is reported as taking place outside a relatively small number of abortion facilities (36/406)”—
My Lords, a lot of reference has been made to the 2018 Home Office review. Does my noble friend not recognise this 20% increase in clinics that have been targeted, or that over 50% of women have to attend clinics that have been targeted? I am not sure how many more women need to be affected before we take action. I am happy to share that evidence with my noble friend.
No I am not, but it is a different thing than finding people guilty of allegedly interfering and charging them with criminal activity.
Amendment 86 is particularly important in light of the available evidence, which shows that buffer zones are not needed outside every abortion clinic. The 2018 review commissioned by the Government found that protest activities were the exception, not the norm. Rather, anti-abortion activities were
“predominantly more passive in nature”
“praying, displaying banners and handing out leaflets”,
with a low number of reports of the use of more aggressive tactics involving approaching staff and patients”. How do noble Lords who support this clause feel about the antics of the Just Stop Oil protestors who continue to bring traffic on the M25 to a halt? I am thinking particularly of some of the Members opposite who oppose the whole of the Public Order Bill yet support this clause.
Proposed new subsections (2A) through (2D) create a flexible approach uniquely tailored to the specific needs of each abortion clinic, while carefully balancing the rights and freedoms of those who wish to pray or hand out leaflets—which, I must stress, are lawful activities in this country. We cannot cherry pick which causes enjoy fundamental rights according to our personal preferences. It is an abuse of the criminal law to use criminal force to ban activities we find distasteful. As the noble Baroness, Lady Fox of Buckley, noted at Second Reading, the right to protest peacefully includes both the protestors we admire and also those that we despise. To say otherwise, and to let this clause stand, betrays the English democratic traditions of liberty and the rule of law.
My Lords, I rise to support the amendments standing in the name of my noble friend Lady Fox of Buckley and particularly the amendments that I have added my name to. These amendments go to the root of the problem with Clause 9—it is a very blunt instrument, which I think everyone in this House would accept. The amendments tighten up, very importantly, the definition of the phrase “interferes with” in Clause 9, so that it will conform to the principle of legal certainty, and the dictates of freedom of expression. It is very important that, at the moment, it does not distinguish between activities causing harm and activities with which people may disagree —and even disagree very strongly.
These amendments will remedy the obvious problems with how Clause 9 defines “interferes with”. As it currently stands, the definition, I believe, is so broadly worded that it can mean anything to anyone. Not only does that language make the law vague and ambiguous, but it also makes it practically impossible for the police to enforce the law. Phrases such as “seek to influence”, as has been mentioned, “advises”, “persuades” or “informs” can have as many meanings as there are people in the world; these phrases do not draw clear lines of criminality. The wording is so broad that individuals cannot know if their actions cross the threshold of criminal behaviour. With so many interpretations available, how can the police know when the threshold of criminality has been crossed? More to the point, is not the very purpose of freedom of expression and protest to “influence”, “advise”, “persuade” or “inform”?
We must not permit lofty aspirations to interfere with the basic freedoms safeguarded by the right to freedom of expression, nor must we allow a law to be so broad that it encompasses basic activities of everyday life. These amendments will help to properly restrain Clause 9, if it is going ahead in its entirety, so that it achieves its intended aims without running roughshod over the fundamental rights of ordinary citizens.
I emphasise that the Bill, as I understand it, is about public order, yet I believe that this clause is about political opportunism at the expense of fundamental freedoms. It is telling that the clause’s sponsor in the other place, Stella Creasy, voted against the whole Bill on the grounds that it went too far in policing legitimate protest but voted for a clause that introduced sweeping limitations on the right of freedom of expression for a select group of individuals, who often—I accept that there are some who will not—engage in peaceful, passive conduct and, predominantly in certain parts of Northern Ireland, in very deep prayer. There is already a law here to deal with those people who behave in a manner that we would all find abhorrent. I urge noble Lords to support the amendments in my name and those in the names of the noble Lord, Lord Beith, and the noble Baroness, Lady Fox, to ensure that Clause 9 goes no further than absolutely necessary.
Briefly, on Amendments 98 and 99 in the name of noble Lord, Lord Farmer, and the right reverend Prelate the Bishop of St Albans, the noble Lord, Lord Farmer, identified well that Clause 9’s fundamental deficiency is that it introduces wide-ranging law changes, which would set significant precedents in other areas of the public realm, without demonstrating evidence that such a change is needed based on empirical evidence. The noble Lord has spoken of stepping back and reviewing, and I think he is right. Surely the only responsible course of action for the Minister and the Government is to properly consult on these proposals before introducing such sweeping and, I believe, reckless changes to the law.
The amendment in the name of the noble Lord, Lord Farmer, would give the Secretary of State powers to introduce buffer zones around clinics only after a thorough consultation process has taken place and determined that there has been a significant change in the nature of protest since the last review, which took place only in 2018. I remind noble Lords that we have had two years of a pandemic and lockdowns since that review. As we have heard from many other noble Lords, at the time of that review the Home Office found that buffer zones would be disproportionate. At the very least, it is incumbent on Ministers to consult on what has changed since 2018 before introducing sweeping changes to the law in the way that Clause 9 will legislate for; that is very similar to what the noble Lord, Lord McAvoy, said.
We do not need this whole Clause 9. However, if we are going to have it, no matter how supportive some Members of this House are of a woman’s right to choose, I believe that this is just not the way to go. In the long term, it will really affect freedom of speech and civil liberties in this country.
My Lords, I fully support the amendments tabled by the noble Baroness, Lady Fox of Buckley, and the noble Lords, Lord Farmer and Lord Beith—with the exception of Amendment 99, because this is a matter for primary, not secondary, legislation. Others have addressed various of those amendments, but I will focus on Amendments 98, 92 and 85.
Amendment 98 seems to me a way forward in addressing concerns that do exist about the way in which people exercise their right to freedom of expression in the vicinity of abortion clinics in England and Wales. There has been no review, no consultation and no assessment of the impact of Clause 9, yet it will have a disproportionate effect—as noble Lords have said—by criminalising those who seek to provide in a compassionate manner counsel, support and assistance, including financial assistance, to mothers who fear that they cannot afford to give birth to the baby they are carrying or look after them after birth. Existing laws provide for offences in relation to the harassment of individuals; I spoke of those at Second Reading. We have been provided with no evidence to support the necessity or proportionality of what is proposed in this clause.
Amendment 98 provides for the carrying out of a review. This seems to me a proper manner of contemplating a change in the law, rather than the Bill, which will result in the inability of individuals to bring support to women at a time when they may most need it, in a manner which does not constitute harassment, and which may give a woman the choice and opportunity to give birth to her baby rather than to abort it.
Amendment 92 would maintain the ability to provide information so that women can make informed choices. The use of text and other information about the irreversible step she is about to take is an exercise of the right to freedom of expression. Of course, in the context of abortion, there may be disagreement about the use of some images, but there has been no consideration about how we define what is and is not acceptable. For example, would a leaflet showing a pregnant woman the support she could receive if she continued her pregnancy count as graphic imagery merely because it had a photograph of a baby on it? These are fundamental matters of freedom of expression.
Finally, I will address two additional vulnerabilities of Clause 9, which Amendment 85 seeks to address—though in my view it does not go far enough. We do not live in a totalitarian state which arbitrarily removes the right of freedom of expression, yet what we have in Clause 9 is a total silencing of freedom of expression, within a fairly extensive and arbitrary limit around a range of facilities, with no consideration of other buildings that may exist in the vicinity of an abortion clinic. The overreach of Clause 9 is of breathtaking magnitude. The amendment is very simple: it would disapply the buffer zone where it extends to private property used as a place of worship.
Clause 9 applies to all private property within 150 metres of an abortion clinic. Such an intrusion into the private lives of British citizens is unprecedented. Other countries, such as Canada, carve out exemptions for private property. As has been said, 150-metre buffer zones would start at the point of access to the abortion building, which may be situated in a very extensive site, so that the public area affected by the buffer zone could be much greater than 150 metres.
A simple example is—
If I may continue, I have a simple example on private dwellings. A woman leaving her home on her driveway, which is adjacent to a public right of way within the 150-metre buffer zone, with her pregnant friend who is contemplating an abortion but is not quite sure about it, would commit a criminal offence by talking to her about her options.
We believe in freedom of speech. This clause is so completely disproportionate that your Lordships cannot accept it. After all, there has been no prior consultation about this complete restriction on the right to freedom of expression. The 2018 Home Office review—I am sorry; I know noble Lords have said we should not talk about this, but I think that it is important—said:
“There have also been reports of verbal and physical abuse by pro-choice activists against pro-life activists.”
Do noble Lords who support Clause 9 have a view on that and how the clause would address it? The failure to address this is one of the many failings in this debate.
If the noble Baroness were to listen carefully to what the noble Baroness, Lady Sugg, said and to read the amendments that have been tabled, the clause is about any interference—no matter the motivation of it—within that 150-metre zone. It would apply exactly to the point she has just made.
My Lords, we need a little calm in this situation. I thought that the noble Lord, Lord Beith, made a very wise, temperate speech, and we would all benefit from reflecting upon what he said.
There is an extraordinary irony behind this. As this Bill goes through your Lordships’ House, we are also debating the Higher Education (Freedom of Speech) Bill. Only yesterday I noticed a very interesting account in the Times of what the retiring vice-chancellor of Oxford University had said about free speech. She said that her students—all students—must be able to listen and reflect upon things of which they deeply, instinctively disapproved. She made the point that if they did that, they could strengthen their own views or maybe, on occasions, change them.
This clause is disproportionate. We debated freedom of speech in your Lordships’ House when I raised it many months ago, when there was an attempt to muzzle Members of this House. People were complaining to the commissioner, and the commissioner, very rightly, discounted the claims. The committee led by the noble Baroness, Lady Manningham-Buller, decided that we needed to tighten up the rules in our House to further protect freedom of speech. We must not claim for ourselves that which we would deny to others. It is important that freedom of speech is protected.
There are many laws that deal with those who abuse freedom of speech. One of my reasons for having doubts about the Higher Education (Freedom of Speech) Bill stemmed from the advice I was given by a wise parliamentarian who talked to me when I first came into the other place some 52 years ago. He said: “Before you form an opinion on any Bill, ask yourself if it is necessary.” I am not sure that this clause is, in any form, necessary. What certainly is necessary, however, is that, if the clause is included in the Bill—I hope it will not be, but if it is—it must be in a form amended along the lines advocated by the noble Lord, Lord Beith, in his very wise speech.
There is a danger—some of us are guilty of this occasionally—of indulging in slogans. A slogan is not the same as a principle. A slogan is not something that should drive Members of your Lordships’ House when we are jealous of our reputation of being able to scrutinise with objective care the Bills that are placed before us. In a way, the noble Baroness, Lady Watkins of Tavistock, was making a similar point in her brief speech when she said that we really had to reflect on what was being said. My own suggestion to the Minister, which I hope he might act on, is that he should invite in those who have tabled amendments—I am not seeking an invitation, but I would readily accept one—such as the noble Baroness, Lady Fox of Buckley, who made a very interesting and thoughtful speech in introducing this debate, and see whether there is not some common ground. My own recommendation would be that we remove this clause, have a proper conference on this issue, and see what is necessary to protect the proper freedom of women while not inhibiting freedom of speech, especially of those who have deep religious convictions on this matter.
I am delighted to tell the noble Baroness what my opinion is. My opinion is based on real sadness that, since 1997, the other place has progressively ceased to be a House of scrutiny. MPs devoted just two hours to the Report stage of this Bill. What happened in 1997 was that there was an exuberant Conservative who tested the patience of the Labour Government with their great majority. The noble Baroness deserves a proper answer to her question. His name was Eric Forth; he is, sadly, no longer with us. I begged him, and so did my noble friend Lady Shephard of Northwold, because we were shadow Leader and Deputy Leader of the other place, to be a little bit selective, but he was not. Night after night, he kept up the Labour Party, so what did the Labour Party do? In exasperation, it brought in programme Motions, which means that every Bill has a limited amount of time. What did the Conservatives do? They protested, saying, “We won’t allow that to happen when we come back into government.” Of course, it is such a convenience for the Executive that they did allow it to happen when they came back into government. That is why every Bill is subjected to inadequate scrutiny in the other place, so it is incumbent on us to give it the proper scrutiny that our lack of timetable Motions enables us to give it.
I agree with what my noble friend is saying about timetables, but in response to the noble Baroness, perhaps he would address this point. The truth is that Members of Parliament voted for Clause 9 in very large numbers. They did so because they were aware of the very considerable concern in their own constituencies about what was going on outside abortion clinics.
I want to clarify that I am not suggesting that we should not stop problems outside abortion clinics. I am trying to find the best solution so that women are protected, but understanding that not everybody who wants to express an opinion should be guilty of a public order offence. I think that is the difficulty. I would like the noble Lord to comment on that issue of how we find the rational ground, because I believe that the people who voted in the other House are much closer than some of us in this House to constituents who are having these challenges.
I was a constituency MP for 40 years, so I have a bit of knowledge of it. We must make sure we do not inadvertently criminalise large numbers of people. As for the large majority in the other place, I have talked about the scrutiny and that is all entirely accurate. If this House has any point or purpose—and some are suggesting at the moment that it does not, but I believe passionately that it does—then we have to go into things in a little more detail and to have the opportunity to ask the other place to reconsider, to think again. At the end of the day, we must not forget that the other place has the final say, and that is entirely right.
As somebody who believes passionately in both Houses, I recognise that that is the elected House; I do not want us to be replaced by an elected House because then we will build in the sort of conflict that we are seeing across the Atlantic at the moment. I want us to be able to live up to our reputation of being a House of experience and expertise. That may mean that we send certain things back, and I have practised what I preach because I have voted many times against clauses in government Bills, and I am prepared to do so again because I believe that is my duty if I think they are not right. At the end of the day, however, they will have the final say. I have gone on long enough, but I have been slightly provoked; I hope I have answered the interventions that have been made. I hope that we will think again before we pass this clause in its present form. That is our duty.
My Lords, it is a pleasure to follow my noble friend and to be educated by him.
I speak in support of the amendment in the name of my noble friend Lord Farmer and those listed on the Marshalled List. I should reiterate at the outset, lest anyone be in any doubt, that I do not take a position on abortion per se. However, as a disabled person I take a position on equality and, I am afraid to say, absolutely object to human beings diagnosed with my condition—brittle bones—being denied their equal right to grow up to be strong women and men on account of their diagnosis. That those who supposedly champion equality can reconcile such a claim with such lethal disability discrimination is something I will never understand.
My reason for speaking in support of Amendment 98 is not dissimilar. For me, as a disabled person in particular, Clause 9 simply does not make any sense. It is perhaps worth remembering that Christians were prepared to be torn limb from limb by lions in defence of their faith, so the idea that some will not see this as an opportunity to take a stand and go to prison for their beliefs, and to bear witness to freedom of conscience, as other noble Lords have mentioned, strikes me as completely unreal. For me to pretend that this is not an inevitable outcome of Clause 9 would be the height of naivety; of course they will do so.
For me, the question is twofold. First, as other noble Lords have touched on, is this really what we want? Do we really want to put the state in the wholly invidious position of locking people up for exercising their freedom of conscience when their only crime would be to bear witness to the serious belief that two hearts beating equates to two lives, interdependent and interconnected but no less individual for that? Since when has that been a crime? I thought it was a medical fact that a beating heart was a giveaway sign of a live human being, and the absence of a human heartbeat, conversely, a clear indication of death. I suggest that the state does not want to go anywhere near Clause 9 and would be much better off conducting a review, as set out in Amendment 98.
Secondly, there is another party in this debate which I suggest has no interest in this clause becoming law: those who support abortion. After all, why risk making martyrs of one’s opponents? We should be in no doubt that, if passed into law, this clause will deserve to be known as the “own goal clause”, because that is precisely what would result: a spectacular own goal. I spent all my career before I came to your Lordships’ House campaigning, much of it in the charity sector, and I would never in a million years have advised any of the organisations for which I worked to pursue such a counterintuitive, counterproductive strategy as Clause 9 encapsulates. No matter how passionately one believes in the clause, giving your opponents both the moral high ground and the oxygen of publicity—because the media will inevitably cover the story of people going to prison for their beliefs—simply does not make sense. It is surely what is known as a lose-lose situation. I wholeheartedly support this pragmatic, common-sense amendment as a way out of the minefield created by Clause 9.
My Lords, I have Amendment 93A in this group. In the spirit of scrutiny, I wondered what “an abortion clinic” and “abortion services” actually meant. To me they include professional counselling which puts both sides of an issue and all the options. I say that because it seems as if we have got into a rather binary state where this is just about the abortion procedure.
I am convinced that there is a serious problem for women attending some clinics who are seeking an abortion. I am also aware of how activities can move around geographically. I understand that there is not a problem now with the activities that we have been talking about outside places where abortions do not take place but counselling does. However, as the noble Baroness, Lady Sugg, said, activities have moved to new sites; she mentioned one that has been affected for the first time in many years. My amendment is to raise that issue, bothered that what is a problem now could be displaced and become a problem elsewhere. Obviously it is probing the position, but as we are seeking to tackle this, we should do so comprehensively.
My Lords, I am in general opposed to those of the amendments which are designed to reduce the impact of Clause 9. As I said at Second Reading, I support the concept of buffer zones around abortion clinics. Of course I accept the two propositions eloquently expressed by the noble Baroness, Lady Fox: first, that the right to demonstrate and freely express views is of great importance in a democratic society; and secondly, that the provisions of Clause 9, as many of your Lordships have articulated, impose serious restrictions on such abilities. But again, as I said at Second Reading, these rights are not absolute. They have to be balanced with the rights of others, and the correct balance is often not easy to identify and can be the subject of legitimate disagreement—it usually is. However, in the context of abortion clinics, Clause 9 gets the balance about right.
I will identify occasions where the balance falls the other way: in favour of the demonstrator. Some of your Lordships will think that the examples are trivial. I have often hosted meets for our local hunts, both before the ban and after it; after the ban, our local hunt acts fully within the law. The saboteurs come and demonstrate, and they are often very tiresome. However, provided they operate within the law, I would not for one moment seek to ban them. There is another example. Pacifists sometimes demonstrate outside military recruitment offices. I disagree with that and think it is wrong in principle, but again it would never occur to me to seek to prohibit that activity.
The motives of those demonstrators and those who demonstrate outside abortion clinics have something in common. It is not that they are just expressing their own opinions, which of course they are absolutely entitled to do, but they are trying to induce a change of attitude on the part of others. It is when I come to those who protest outside abortion clinics that I am conscious of why the balance tips. Those who attend abortion clinics have come to a very painful and serious decision, and often an anguished one. I think it is very wrong to subject them to what is often intemperate bullying of an extremely nasty kind.
I mentioned at Second Reading that the BBC did a poll which found that 15% of women who went to abortion clinics had been coerced into doing so. We do not have the information as to how many partners have said, “I don’t want this child, go and have an abortion”. We need to establish that by finding the evidence. We hear all the time that the people outside the abortion clinic are against abortions. We do not see the intimate pressure that women are often under in the home—not only from male partners but perhaps from their families—to do with shame and other things. This needs to be looked into before we make a decision on this.
Parliament is in a position to make a judgment about these matters. I was in the House of Commons for nearly 30 years—not as long as my noble friend Lord Cormack—and I was well aware of, in many circumstances, from evidence which came from many quarters, the kind of abuse to which women seeking an abortion were subjected by those who demonstrated outside abortion clinics. I strongly suspect that is why the House of Commons voted for Clause 9 in such substantial numbers, because it knew it was happening and that it was wrong. We do not need a further review to establish those basic judgments.
My Lords, my difficulty is this. In interpreting things in the way he is, the noble Viscount is suggesting that he knows why people did something. I have no idea why people in the Commons voted in the numbers they did. The noble Viscount has a view on what might have driven that; others might have another view. Generally speaking, since I have been in this place, the House of Commons has voted in huge numbers for things I have disagreed with, and unless the Opposition is going to go home, what am I supposed to do? I cannot keep saying, “I think they really did it because they were really motivated —we do not know, do we? Will the noble Viscount clarify why he keeps stressing that? Is it relevant to us?
It is, because we are being asking what the evidence is. I was telling the noble Baroness that, when I was a Member of the Parliament, for a very long time, I was conscious of some of the abuse that was going on from speaking to people coming to my surgery. In the House of Commons, we get a reflection of the views of Members of Parliament who are encountering the same response from their own constituents.
Is the noble Viscount aware of any statistics on the number of people now who are being prosecuted or who have been convicted of harassment of people at abortion clinics? I am completely unaware of that, and none of those who are promoting this clause has produced any such evidence.
I am not, but what I am telling the Committee is that those who have a great many dealings with the public, particularly Members of the House of Commons, have passed by a very substantial majority the view that Clause 9 is necessary. That accords with my own personal experience, after 30 years or so in the House of Commons.
I agree with that, but I think my noble friend is overlooking the fact that, in the House of Commons, it was not a whipped vote when they were talking about Clause 9; it was what is sometimes laughingly referred to as a free vote. I personally always took the view that, when I was not a Minister, a vote was a free one, but I am conscious that that was not always the view—perhaps not even of my noble friend. If my noble friend wants to intervene again, of course he can.
I would like to say a word about one or two of the amendments. I start with Amendment 80. The substantive offence is that provided in Clause 9(1). I ask rhetorically what can be the reasonable excuse for an interference? I agree with the view expressed by my noble friend Lady Sugg. I suspect that I know the intended purpose of the amendment: to allow the defendant to introduce the defence of free speech before the courts. However, if Parliament decides that Clause 9 should not have the defence of free speech—and that is what the clause provides—then such a defence should not be available in a court.
On Amendments 81 and 86, in my view the matters are of far too much importance for the designation of zones to be left to local authorities, as advocated, I think, by the noble Baroness, Lady Fox. The abrogation of the right of free speech and the abrogation of the right of association should be left to Parliament and not to local councillors.
The phrase “intentionally or recklessly” in Amendment 82 is wholly unnecessary, with one exception. It seems to me that the concept of intent is incorporated in the definition of interference as contained in Clause 9(3). The exception is the word “impedes” in paragraph (c), because I acknowledge that an act of impeding could perhaps be committed without intent. Ministers should clearly reflect on the criticism that has been expressed as to the scope of what is included in the definition of interference. I agree very much with what my noble friend Lady Sugg said about the expression of opinion. I am sure she is right about that, and it has been supported by others in the Committee.
Amendment 85 is in the names of the right reverend Prelate the Bishop of Manchester and my friend the noble Lord, Lord Beith. I almost always agree with him but on this occasion I am bound to say that I think he is wrong. With the exception of the point he made about the poster outside the church, I have very great difficulty in seeing anything that could be said within the church that could interfere with somebody seeking access to an abortion clinic, save for that which has been addressed by Amendment 97, in the name of my noble friend Lady Sugg.
As to the penalties provided in Clause 9(4), I am much more relaxed and would not seek to argue against some amelioration of the sentences set out in the Bill. In general, I think that Clause 9 is a proportionate response to a very serious mischief, and I hope that we will not water it down substantially.
My Lords, I did not expect to say how much I agree with the noble Viscount, Lord Hailsham. It means that I do not need to say an awful lot. I regret that the people moving the amendments which seek to water this down very significantly, starting with Amendment 80, have not addressed the amendments moved by the noble Baroness, Lady Sugg, which seek to turn this into a reasonable working clause.
I accept that. However, others who support this suite of amendments have been asked about the amendments tabled by the noble Baroness, Lady Sugg, and have clearly not read or addressed them. That is a great shame. I support the noble Baronesses, Lady Sugg, Lady Barker and Lady Watkins, and my noble friend Lord Ponsonby, in seeking to make this clause acceptable. I hope the Minister sees this as a positive step forward for the next stage of the Bill.
My Lords, I will speak to Amendment 94, lest it be overlooked in considering the broader issues in this debate. I accept that the issue before us in this section of the Bill is a sensitive one that deserves our most earnest consideration.
I agree in principle with the amendments to Clause 9 tabled by the noble Baroness, Lady Fox of Buckley, and the noble Lord, Lord Farmer. Amendment 94 relates to the criminal punishment attached to the proposed criminal offence. Given that the clause potentially criminalises people for praying quietly or offering support and advice to people in a public area, this is no small aspect of the clause. Making it illegal to quietly stand outside an abortion clinic or compassionately express one’s genuinely held belief about the sanctity of human life and the value of an unborn child, as proposed in this Bill, is surely a major step backwards for our country.
The right to enjoy freedom of speech and the right to peaceful protest have been hard fought for and should not easily be given away. Yet, as a result of this clause, anyone who influences, advises or persuades, who attempts to advise or persuade, or who otherwise expresses an opinion outside an abortion clinic, could be liable even in the first instance to a prison sentence. Surely this runs contrary to our basic freedoms. A former Home Office Minister said in March 2021:
“The right to protest is the cornerstone of our democracy and the Government is absolutely committed to maintaining freedom of expression.”
Can the Minister confirm that this new law as drafted would criminalise someone who accompanies a woman having an abortion who says to her, “Are you sure?”, even if the woman seeking the abortion is happy for that to be asked—that they would fall foul of this legislation? If so, what kind of a country are we living in?
I heard a lot of talk about the other place, and like two noble Lords who spoke—
Does the noble Lord understand that prosecutors, in authorising and not authorising charges, have discretion in whether to prosecute a case? No prosecutor I have met would ever prosecute a case on the facts the noble Lord has just set out.
The noble Lord, Lord Beith, did say that it went some way in this regard, but that it did not deal with all the issues that he and I expressed concern about.
It has been bandied about in this debate for quite some time that the other place voted by a large majority for this legislation. According to certain interpretations, that could be correct. Like the noble Lord, Lord Cormack, and the noble Viscount, Lord Hailsham, who spoke recently, I was in the other place, for 25 years. There are 650 Members of the Commons. Of those, 297 voted for this legislation—46%—while 110 voted against and 243 abstained, meaning that 54% of the other place did not vote for this clause. So often in this debate it has been said that there was a vast majority in the other place and that we must submit to its will, yet 54% did not vote for this clause. It is good to be factual on percentages and numbers in the other place.
It is a fundamental and widely accepted principle of sentencing that the punishment must fit the crime—that is, if you feel that freedom of expression and peaceful protest are a crime, which I do not. However, the fines envisaged in Clause 9(4) are grossly disproportionate to the types of protest activities that often occur outside abortion clinics. A six-month prison sentence for a first offence, which could be the result of a volunteer offering support to a pregnant woman, surely strikes most people as neither reasonable nor proportionate, and nor does a two-year sentence for someone who offends multiple times.
The Government reviewed this in 2018. People have dismissed the review as if it does not matter today, but mind you, if it had said something different, they would be happy to mention it. It found that the vast majority of these activities are passive in nature; that they involve everyday lawful activities such as silent prayer and handing out leaflets offering help and support to women who may not want an abortion, but who may feel they have no other choice; and that they occur outside a small number of abortion clinics. Inside this buffer zone, to stand in silent prayer could get you six months’ imprisonment. What country are we living in? This is not China, and it is not Iran. It is the United Kingdom. I have heard the Prime Minister and previous Prime Ministers, and Ministers in this House, say at the Dispatch Box that the most persecuted people in the world today are Christians. But to express your Christian opinion, even in silent prayer to God, can be regarded as an offence inside a buffer zone and you could find yourself in prison.
It is very clear