However, on the issue of Question Time, when I went round to the three party groups and the Cross-Bench groups, I mentioned four topics for consideration in the near future. One of those was Question Time. So it was flagged up to all Members—if they attend their various group meetings—that this subject would be given consideration.

Lord Harris of Haringey: I am grateful to the Lord Chairman; I promise that this will be the only time. I recall that, because I chaired a meeting where one of the party groups was addressed. There are lots of issues about Question Time. The biggest one, which has been referred to several times in passing, is about the slight “bear garden” tendency, where strategic deafness and sitting in the second row is often a very good tactic, as the noble Baroness, Lady Gardner of Parkes, has told us. However, if I recall correctly, when the noble Lord raised the matter of Question Time, it was not about the tabling of Questions; there were other issues about which some Members, quite rightly, feel uneasy.

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The Chairman of Committees: I cannot remember word for word what I said, but I think that I flagged up the issue of queuing as something that ought to be considered. The committee recognised that, if we make this change from a queuing system to a ballot system, there will be matters of detail that will most likely be difficult to identify initially. There may well be unintended consequences and there is the possibility, as a number of contributors have mentioned, that the system will be abused. If that happens, we have the opportunity to identify it during the trial period and either modify what is taking place or completely abandon it.

Lord Barnett: On the question of a trial, when I spoke recently about the trial run for access to the House by Members, I was told that it was only a trial. Now we have got it permanently and those of us who have to come by car or taxi will know that the trial and the continuation of it have not been very good.

The Chairman of Committees: I said in my opening comments that I give an assurance that the trial would not be extended beyond the end of this Session, unless this House voted in a deliberate way to continue with it. There would have been no sleight of hand or just allowing continuing practice to develop; it would have required a definite decision by this House.

Lord Reid of Cardowan: I am grateful to the Minister. On this question of a ballot, you do not need a crystal ball when you can read the history book. All you need do is look at the House of Commons. Whether you regard it as a misuse or abuse or as greater openness for democracy, the reality is that if you introduce a ballot every Member of this House will be inundated with pro forma Questions not just from the Whips but from every lobby group, think tank and organisation wishing to push a particular point of view. That will not necessarily mean that they will have more than one Question on the Order Paper, but there will be an almost inevitable process of noble Lords tabling that Question because it is to hand and has been formulated for them. The fairness supposedly attributed to the ballot procedure will therefore be completely undermined. You do not need a trial to see that. It is not just a common-sense matter of anticipating the future; it is the reality of what happens, which could be easily discovered by looking at the Order Paper in the other House and, further, looking at the top 100 Questions that are tabled there. On occasion you will find that, by a remarkable coincidence, a large number of them have exactly the same wording as 20 or 30 others.

The Chairman of Committees: First, I thank the noble Lord for referring to me as “the Minister”. That was some long time ago, when I was a very junior Minister in the department of which he was Secretary of State. My own little story of Question Time refers back to that period. On one occasion I was asked a supplementary question that was rather arcane. As I got up, I made a rather sotto voce comment, as I am tempted to do from time to time. When I sat down, the then Leader, the late Lord Williams of Mostyn, turned to me and said, “John, remember there’s a nation of lip-readers out there”. Some lip-reading could have gone on this afternoon.

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Let us cut to the chase. I recognise that there is concern but there is a willingness to change. We have to do a more deliberate piece of consulting, but that places a responsibility on individuals and groups to come forward with suggestions so that they can be assessed by the committee. I am afraid that it is no good thinking that this is a means of kicking the issue into the long grass, where it will die a death and not see the light of day again. I suspect that there is a two-stage process involved in the future of Question Time. One deals with how Questions are put down and the other with the whole conduct of Question Time, which needs serious examination. That will require a difficult piece of voting. On that basis, the usual wisdom of the noble Lord, Lord Grenfell, has shone through yet again and guides us in a way that I think commands the general acceptance of the House. What is important in the noble Lord’s amendment is the deadline of Easter. That is a very important discipline that we have to accept in order to get things moving.

Lord Lea of Crondall: My Lords, I think the procedure is that we all withdraw our amendments in favour of my noble friend Lord Grenfell’s amendment. This has been a very interesting debate and I am glad that I put down the first question before Christmas because it has led to a flood of questions, leading ultimately to my noble friend’s amendment. I am very glad to beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.

Amendment to the Motion

Tabled by Lord Naseby

At end to insert “except that on any day on which oral questions are asked the first two such questions shall be allocated according to the procedure currently in place”.

Amendment to the Motion not moved.

Amendment to the Motion

Tabled by Lord Kennedy of Southwark

At end to insert “with the exception of the recommendation on tabling oral questions contained in paragraph six of the report”.

Amendment to the Motion not moved.

Amendment to the Motion

Moved by Lord Grenfell

At end to insert “with the exception of the recommendation on tabling oral questions contained in paragraph six of the report, and that this House instructs the Committee to consider and report again on the procedure for tabling oral questions before the Easter recess”.

Amendment to the Motion agreed.

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Amendment to the Motion

Tabled by Lord Berkeley

At end to insert “and that this House instructs the Committee to consider and report on whether the number of oral questions should be increased from four to five each day, and the time allowed increased from 30 to 40 minutes”.

Amendment to the Motion not moved.

Motion, as amended, agreed.

Public Service Pensions Bill

Public Service Pensions Bil10th Report from the Delegated Powers Committee

Committee (1st Day)

6.14 pm

Relevant document: 10th Report from the Delegated Powers Committee

Clause 1 : Schemes for persons in public service

Amendment 1

Moved by Lord Newby:

1: Clause 1, page 1, line 4, leave out “in public service” and insert “specified in subsection (2)”

Lord Newby: My Lords, this is an extremely long group of government amendments. I preface my remarks with an apology to noble Lords who have taken an interest in the Bill. The letter that I circulated about government amendments was done at an extremely late stage. There is nothing Machiavellian about that: it flows directly from the fact that we are having this debate two days after the end of the Christmas Recess. The Bill team, myself and others were not working over Christmas to the extent that would have permitted us to get the amendments down earlier and inform noble Lords about them. However, I hope that in most cases, if not all, noble Lords will find them helpful and so will forgive me for that.

I start by noting that I will not move government Amendment 3, which relates to Northern Ireland civil servants. On reflection, that amendment is considered unnecessary because Amendment 9 to Schedule 1 does what is needed to remove Northern Ireland civil servants from the scope of the Bill.

In line with the recommendations of the noble Lord, Lord Hutton of Furness, the Bill was drafted to provide a legislative vehicle for the reform of all public service pension schemes in the UK to make them fairer and sustainable. However, legislative competence for some of the pension schemes is devolved to the Administrations in Northern Ireland, Scotland and Wales. We have always been clear that the devolved Administrations would have the final decision as to whether or not the Bill should apply to their devolved pension schemes.

On 26 November, the Northern Ireland Executive announced their decision to bring forward their own legislation to reform the pension schemes of their public servants. These schemes will be based on the recommendations of the noble Lord, Lord Hutton.

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This will affect schemes relating to Northern Ireland civil servants, the devolved Northern Ireland judiciary and, in relation to Northern Ireland, local government workers, teachers, health service workers, fire and rescue workers, and police and public bodies whose pension provision has been devolved.

On 28 November, the Scottish Executive announced their decision to exclude the small schemes for which they have legislative competence from these reforms. This will affect a small number of members of the junior Scottish judiciary and some Scottish public bodies whose pension provision has been devolved. The Bill will still make provision for Scottish schemes for which Scottish Ministers have executive, but not legislative, competence. These are schemes relating to teachers, health service workers, firefighters, police and local government workers in Scotland. Consequently, I beg to move these amendments that will collectively ensure that the Bill is disapplied from those pension schemes for which the Northern Ireland Executive and the Scottish Government have legislative competence.

Amendments 102 and 109 relate to the Scottish Government’s wish to extend a power in the Police and Fire Reform (Scotland) Act 2012 to enable pension and other benefit schemes to be made for Scottish police cadets and special constables. This will be done by way of an order made under the Scotland Act 1998 which will be laid before Parliament shortly and is expected to commence in 2013. In anticipation of that order, these amendments will ensure that these pension schemes will be included in the reforms legislated for in the Bill. As such, the new pension schemes made for Scottish police cadets and special constables will be reformed in the same way as the other public service pension schemes in Scotland.

The amendments also ensure that any compensation or injury benefit schemes made under the extended powers will not be subject to the reforms. This is consistent with the Bill’s treatment of compensation and injury benefit schemes in other areas of public service, such as the main police schemes. I am sure that noble Lords will agree that such equitable treatment is fair and proper, and I beg to move these amendments to the Bill.

Lord Eatwell: My Lords, I am grateful to the Minister for introducing his amendments, and for his apology with respect to their late arrival. It is of course understandable that this comes after the holiday period, although I was slightly taken aback to hear just now that the Northern Ireland announcement was made on 26 November. What has been happening since then? Christmas started a month later. I am very surprised that we now have Northern Ireland effectively removed from the Bill on the day before Committee, and the House not being informed about this when the team apparently knew of it a month and a half ago.

Before commenting on these amendments, I myself apologise to the House for being unable to be here for Second Reading. I am grateful to my noble friend Lord Davies for having stood in on that occasion.

In considering the Bill most broadly, the first thing that strikes one is the list of professions under Clause 1. These people are the very bedrock of our society. It is

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crucial to ensure that they have the best conditions, including the best pensions, that are affordable. At the same time, we have to recognise the pressures that an ageing society places on pension provision. The key to squaring the circle is trust; this is going to be a theme in discussing all the amendments to come. We need to incorporate into the Bill a framework that provides clear assurance so that people who perform the public services on which we all depend can face the future with confidence. That means that the Government must place clear, unambiguous commitments in the Bill—not vague promises of Ministers—about what they may really intend. Ministerial promises are simply not good enough, because these measures are intended to be long-term. In the long term, Administrations change and no Administration can bind its successor, so in the long term ministerial assurances are virtually worthless. But if future Administrations are faced with clear primary legislation, then change can be made only by returning to Parliament.

It does not assist in the building of trust when the Government table well over 100 amendments on the day before Committee. Most of these—although not all, as the Minister pointed out and I will demonstrate—arise from the refusal of the Northern Ireland Administration to pass a legislative consent Motion in respect of the Bill. In effect, as we have heard, Northern Ireland is being written out of the Bill. It would be interesting to know what Northern Irish colleagues in this House feel about this. Moreover, given that an important objective of the Bill is to manage the cost of pensions, what implications does this last-minute decision have for the public finances? Presumably this will increase long-term deficit projections—by how much?

More importantly, what negotiations are under way with the Northern Ireland Administration about the future shape of pensions in Northern Ireland; and, indeed, with the Scottish Parliament about the future shape of pensions in Scotland; and, indeed, with the Welsh Assembly, which we are told is still to consider the matter? This Bill has passed the Commons and we do not even yet know who is to be included in it because the Welsh Assembly has not reached its decision.

I am astonished that we have this brief note, circulated the night before, with amendments. We have this brief introduction from the Minister when the Bill has been changed in such a radical and fundamental way. What are the Government going to do now about both Northern Ireland and Scotland? What are they going to do about Wales if the Welsh also refuse to pass a legislative consent Motion? Given that the terms of devolution are different in Northern Ireland, Scotland and Wales, the result of all this is going to be a confused plethora of pension conditions throughout the UK—exactly the sort of confused melange that the admirable report by my noble friend Lord Hutton sought to eliminate. Indeed, it was my noble friend’s recommendation 24 that the Government should introduce primary legislation to adopt a new common UK legal framework for public service schemes. This is clearly what the Government are failing to do.

The reference to Scotland is important, because not all the amendments in this group refer solely to Northern Ireland. The Minister referred to Amendment 96, to a

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“holder of devolved office”. That therefore applies to Northern Ireland and Scotland. Interestingly, the noble Lord did not refer to Amendment 148, which, in defining what a “devolved office” might actually be, excludes Wales. What will happen to Amendment 148 if the Welsh now refuse to accept being included in national procedures? We really ought to be told to whom this legislation is actually going to apply.

Amendments 102 and 109 expressly include Scottish schemes, established under the Police and Fire Reform (Scotland) Act 2012, within the scope of the Bill. Amendment 139 on the approval of new schemes again refers to all devolved Administrations. What does that mean? It certainly does not mean what is defined by Amendment 148, because we do not know what the Welsh are going to do.

What we have here is a bit of a mess. The Minister must tell us how this mess is going to be resolved. How are we going to try to have some degree of consistency in public pension provision in which people can have confidence throughout the United Kingdom? We can go two particular ways. One is to attempt to negotiate an all-UK structure, which has the sort of simplicity and clarity that was suggested by my noble friend Lord Hutton. The Minister should then tell me what negotiations are proceeding to establish that common UK structure, given the devolved responsibilities of the devolved Governments and Assemblies. We should be completely clear that pensions in Northern Ireland are different from pensions in Scotland, different from pensions in Wales and different from pensions in England, and that the relevant authorities have responsibilities for their particular jurisdictions. However, of course, we do not have that. In Scotland, we have a mixture: some pensions are the responsibility of the Scottish Parliament and some are not.

Our Amendment 28A—which noble Lords may have noticed is buried in this group so that it is almost undetectable, but it is there, although the noble Lord did not deign to refer to it in his opening remarks—seeks to make some sense of this mess by recognising that regulations relating to local government workers in Scotland should require the approval of the Scottish Government. I am well aware that local government pensions are a reserved power under the Scotland Act. In the past, as the noble Lord said, Scottish Ministers have had executive responsibility for making regulations for public service schemes, but they require Treasury approval. But these have typically concerned minor matters. There has not been any big issue which has been likely to bring about a significant difference of opinion between the Scottish Parliament and the Treasury.

However, this Bill completely transforms the situation. It is a framework Bill that will be followed by regulations that are very substantial indeed. Moreover, the local government workers’ schemes in Scotland, like those in England, are funded schemes. It is important, given the extensive powers of interference conferred on the Treasury by this Bill, that the Scottish authorities have appropriate responsibility for decision-making on those funded schemes.

Since, as I understand it, the UK Government have not used their reserve power on Scottish local pensions in the past—in other words there has not been any disagreement in the past, although I am quite willing

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to stand corrected as it is quite difficult to research these things—it is surely inappropriate to do so now. It is surely right that the Scottish authorities should be responsible if we are going to go for this devolved structure of pensions and give up on the idea of my noble friend Lord Hutton’s proposal for a common UK scheme.

Far from being technical, this huge swathe of amendments raises major questions over the scope of this Bill and introduces complexity where there was once consistency. If the devolved Administrations are to have entirely separate schemes, so be it, but make it clear, rather than this hotchpotch of amendments and qualifications. If we are to have a Public Service Pensions Bill, not a “some people in the public service and some others not” pensions Bill, the Government must reach agreement with the devolved Administrations. They must bring back to this House a proper, comprehensive structure so that we can understand the relationship between those schemes that will obviously be national, such as the schemes for the Armed Forces, who are of course servants of the Crown, and those schemes which are to be devolved. If we are to have a common scheme, let us get on with the negotiations and bring the common scheme to this House. Last-minute changes as far-reaching as these are entirely unacceptable.

6.30 pm

Baroness Donaghy: My Lords, when I was chair of ACAS, one of my jobs was to try to read between the lines of documents like this, which is very difficult to absorb at such short notice. In reading between the lines—I am only guessing—it seems possible that the Minister has been placed in a difficult position in terms of timetable, which might not be entirely under his control.

I want to make a slightly narrower point than that made by my noble friend Lord Eatwell and probe a little on this issue of Scotland. When the Minister was summing up at Second Reading, he indicated that the Scottish Government had accepted the “generality” of the Government’s proposals, which he said were very much based on those put forward by my noble friend Lord Hutton. In terms of the more detailed proposals, the noble Lord informed us that,

“the Chief Secretary has written to Scottish Ministers inviting them to propose amendments if they feel the provisions of the Bill are not suitable for the Scottish pension scheme”,

and that as of 19 December, no such amendments had been proposed. He concluded that:

“Any regulations made by Scottish Ministers will be subject to the procedures in the Scottish Parliament”.—[Official Report, 19/12/12; col. 1585.]

I am setting this scene because the point that I want to emphasise is that the Bill is based upon negotiations—these are not technical points that I am trying to make. The Bill is based upon negotiations in England and Wales and has not been subject to the same level of negotiations in Scotland. I am talking about the parties involved in the local government scheme there. I may not know much about the detail of the relationship or the liaison between the Chief Secretary and the Scottish Government, but I do know about genuine involvement and consultation. If you invite someone to a party

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that is in full swing, they are entitled to feel various emotions, and one of them will almost certainly be resentment that they were not invited earlier. I cannot expect the Minister to be completely frank in the Chamber, but I am slightly puzzled about why the invitation was delayed.

This Bill prescribes the design of Scottish schemes in a way that current UK primary legislation does not. It is vital that the Scots be fully involved in this process and that the Bill should be amended to maintain the powers of the Scottish Parliament to design and regulate the public service pension schemes that are devolved to Scotland. I know that this is a slightly different point from that made by my noble friend Lord Eatwell, but as we are where we are on this. I just want an assurance that the parties involved in this are being fully involved. I hope that the Minister will accept Amendment 28A.

Lord Newby: My Lords, I hope that I can clear up some of the confusion in the mind of the noble Lord, Lord Eatwell, about this, and I am very pleased that the House has not been deprived of his Second Reading speech.

The noble Lord asked about what this meant in terms of the differences in the way in which the schemes will be applied across the various component parts of the UK. I will deal first with Northern Ireland. I point out that I made it clear at Second Reading that the Northern Ireland Executive were intending to proceed in the way to which these amendments give effect. We were not hiding anything from the House. The other point is that the Northern Ireland Executive have accepted the principles of the report of the noble Lord, Lord Hutton, and therefore we would expect that where we end up in Northern Ireland will be very similar to where we are in the rest of the UK.

However, this is a decision for the Northern Ireland Executive, not for us. The Government would have been very happy to include Northern Ireland in the Bill; indeed, that is the basis on which we started, that it would be easier to take something out than to put it in. But it is their decision and their power as a devolved Administration.

In respect of public sector pensions in Scotland and Wales, the areas for which the Scots and Welsh have complete devolved authority are very small. In Scotland, we are talking about part of the judiciary—I gather it involves six judges—and certain public bodies. For the generality of public servants in Scotland, 98% to 99% of them will be covered by the Bill. Those that are being excluded are these small numbers. Equally, in Wales, the number of people for whom the Welsh Assembly has total authority is very small. I think, although I may be wrong, that it only involves councillors and Assembly Members. Again, the vast bulk of the public servants in Wales will be covered by the Bill even as amended. I do not think that we are going to have quite the hotchpotch that the noble Lord is concerned about.

Baroness Donaghy: If this covers so few people—and I come back to Scotland again—why did this not emerge in the Second Reading debate? Why was the

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House left with the impression that the Scottish devolution issue would cover more than just the few public servants referred to? A slightly misleading impression was given, if the Minister does not mind my saying so, because there is a feeling that the public servants in Scotland have been left behind on this. I emphasise that the negotiations that took place in England and Wales did not take place in Scotland. This is a very important point. I am sorry to keep going on about it, but it is all very well to hide behind technicalities about how many people are involved—I am really quite shocked that it has emerged today that so few people were involved. I just wonder whether this would not have led to a bigger debate at Second Reading.

Lord Newby: The distinction between the very small numbers that I have been talking about and the rest of the public servants in Scotland is that the rest of the public servants in Scotland are covered by the Bill. The schemes established under the Bill for public servants in Scotland were still negotiated in Scotland, but the framework for public sector pensions in Scotland, with the exception of those very small numbers, will be the same as in the rest of the UK. There is devolved power to the extent of the scheme negotiations within the framework of the Bill.

Lord Eatwell: In using the word “power” there, is the Minister aware that it will still require Treasury approval?

Lord Newby: I shall come to that in dealing with the noble Lord’s Amendment 28A. I did not fail to refer to it in any slight meant to the noble Lord. I thought that it was more courteous for me to allow him to make his case and then for me to reply to it.

Amendment 28A would change the current devolution settlement. I know how much importance many noble Lords across all sides of the House attach to devolution matters, but a Bill on the reserved matter of public service pensions is not, in the Government’s view, an appropriate vehicle for reworking the devolution settlement put in place by the Scotland Act 1998 or for rewriting the long-standing Sewel convention. I hope that I can explain what I mean by this.

Part II of Schedule 5 to the 1998 Act makes it clear that, with minor exceptions, this Parliament has exclusive competence to legislate for public service pensions in Scotland. This includes the local government pension scheme in Scotland. Requiring the approval of the Scottish Government in relation to reserved matters would run counter to the principles of the Sewel convention. In constitutional terms, approval of the Scottish Parliament in relation to primary legislation on Scottish local government pensions is not needed under the convention. Furthermore, as the Scottish Finance Minister told the Scottish Parliament on 28 November, the Bill does not contain any provisions,

“over pensions for local government, the national health service, teachers or police and fire staff—that would trigger the Sewel convention”.—[

Official Report

, Scottish Parliament, 28/11/12; col. 14014.]

I can reassure noble Lords that, although the Bill sets a legislative framework setting the parameters for pension scheme designs, Scottish Ministers have the freedom to decide on many of the details of scheme

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regulations relating to Scottish local government workers. This includes how generous the scheme is. The Treasury has not set a cost ceiling for any of the Scottish schemes. The cost of Scottish schemes will have to be met from the Scottish block grant. Furthermore, Clause 3 explicitly states that Treasury consent is not needed for Scottish local government scheme regulations. When pension regulations are made for the Scottish local government sector, the Scottish Government will design the terms of those pensions under the framework of the Bill, and will put them before the Scottish Parliament. That is how legislation on this topic falls to be dealt with under the devolution settlement. It would be a novel and unhelpful step to make the application to Scotland of legislation that is reserved to Westminster, subject to the prior approval of the Scottish Government in the way suggested by this amendment.

I hope that goes some way to explaining to the noble Baroness, Lady Donaghy, what the situation is in Scotland and why it is not for the Westminster Government to set out or agree the details of the schemes. It is for us to set out the framework and then, under the devolution settlement, for the Scottish Government to have negotiations that will lead to detailed scheme provisions.

Amendment 1 agreed.

Amendment 2

Moved by Lord Newby

2: Clause 1, page 1, leave out line 5 and insert “Those persons are—”

Amendment 2 agreed.

Amendment 3 not moved.

Amendments 4 to 8

Moved by Lord Newby

4: Clause 1, page 1, line 8, after “workers” insert “for England, Wales and Scotland”

5: Clause 1, page 1, line 9, after “teachers” insert “for England, Wales and Scotland”

6: Clause 1, page 1, line 10, after “workers” insert “for England, Wales and Scotland”

7: Clause 1, page 1, line 11, after “workers” insert “for England, Wales and Scotland”

8: Clause 1, page 1, line 12, after “forces” insert “for England, Wales and Scotland”

Amendments 4 to 8 agreed.

Clause 1, as amended, agreed.

6.45 pm

Schedule 1 : Persons in public service: definitions

Amendments 9 to 12

Moved by Lord Newby

9: Schedule 1, page 22, line 6, after “State (” insert “not”

10: Schedule 1, page 22, leave out lines 9 to 31 and insert “holders of an office specified in an order made by—

(a) the Secretary of State, in relation to an office with a jurisdiction exercised exclusively in relation to Scotland, or

(b) the Lord Chancellor, in any other case.

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(2) An order under sub-paragraph (1) may only specify an office in or as regards Scotland or Northern Ireland if the office is not a devolved office.”

11: Schedule 1, page 23, line 19, after “Wales,” insert “or”

12: Schedule 1, page 23, line 20, leave out from “Service,” to end of line 21

Amendments 9 to 12 agreed.

Amendment 13

Moved by Lord Eatwell

13: Schedule 1, page 23, line 21, at end insert—

“(d) the Defence Fire and Rescue Service”

Lord Eatwell: My Lords, I shall speak also to Amendment 15. These amendments concern the position within the pensions system of Ministry of Defence firefighters and police. Clause 9 provides that the normal pension age of a person under the scheme must be the higher of the person’s state pension age or the age of 65, but three categories of workers are exempted from this provision—fire and rescue workers who are firefighters, members of the police force and members of the Armed Forces. Paragraph 6 of Schedule 1 defines fire and rescue workers as being persons employed by,

“a fire and rescue authority in England and Wales … the Scottish Fire and Rescue Service, or … the Northern Ireland Fire and Rescue Service Board”.

However, none of this includes firefighters who work for the Ministry of Defence. This issue seems not to have been noticed in another place when the Bill was considered there. Amendment 13 would rectify this omission by including the Defence Fire and Rescue Service in the definition of fire and rescue workers. Amendment 15 does the same job with respect to Ministry of Defence police.

We should make it clear that we are not seeking to extend the exemptions provided under Clause 9 but merely to rectify what appears to us to be an oversight and to ensure consistency of treatment across the same profession. In my years in this House, it has always puzzled me that when very obvious oversights appear in the middle of the discussion of a Bill, somehow Governments of whatever party think it necessary to defend their original position as if it was an ultimate truth and not admit that occasional oversights are made.

Let us turn to the fire and rescue service. There are two aspects to the job of defence fire and rescue service firefighter. They work at home on domestic military bases and other MoD premises and they work abroad when they are deployed in war zones. In the UK, defence fire and rescue firefighters deal with fires, accidents and floods, and firefighters deployed to war zones deal both with fires and the general catastrophic aftermaths of conflicts. The nature of the work they do—I am sure that the House will appreciate its physicality—is very similar to, if not beyond, that to be expected of a domestic firefighter.

The oversight became evident when the Government were contacted by an MoD firefighter in relation to this issue. In their reply, the Government justified—I

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was going to say invented—their decision to exclude MoD firefighters from the exemptions in the Bill as follows. First, they said that firefighters are covered by the Principal Civil Service Pension Scheme, and so the benefit structure and contribution rates which apply to MoD firefighters are those of that scheme and not those of the Firefighters’ Pension Scheme. The Civil Service unions accepted an increase in the normal pension age to 65 for all staff joining since 2007 for that general Civil Service scheme. On that basis the Government claimed that MoD firefighters are already subject to the normal pension age of 60 or 65 and so the recommendation of the noble Lord, Lord Hutton, to adopt the new pension age does not apply. The final proposed agreement issued by the Government to the unions on 9 March 2012 includes transitional protection for PCSPS members so that any member who is within 10 years of normal pension age on 1 April will see no change when they retire. However, beyond that there is the proposed tapering arrangement. Although there are many similarities between local authority and MoD firefighters, the Government claimed that the terms of employment, as well as the roles performed, are not identical. Here the Government are correct—the roles performed are more arduous in the MoD than they typically are for domestic firefighters.

During the Second Reading debate, which I had the chance to read, the Minister said:

“The noble Lord, Lord Davies, asked about MoD firefighters. MoD firefighters are in the Civil Service Pension Scheme at the moment. They will have their pension age linked to the state pension age to ensure consistency within the scheme. The Bill does not move any groups from their current schemes. Indeed, these MoD firefighters have always had different terms and conditions from other firefighters. This already includes a pension age of 65 for new joiners as a result of changes implemented by the previous Administration”.—[Official Report, 19/12/12; col. 1585.]

I will make a number of points about the Minister’s statement. First, I am afraid that he misspoke. It is not true that the Bill does not move any groups from their current schemes—it does. Clause 28 closes public body schemes listed in Schedule 10, and the Government have the power to move people from those schemes to schemes established under Clause 1 or to create new public body schemes for them. It is not true that people are not moved from one pension scheme to another in this Bill.

Secondly, there is no reason why the Civil Service scheme rules cannot provide for a different retirement age for MoD firefighters as well as for police. Why can that not simply be put into the Civil Service pension scheme rules?

Thirdly, the fact that MoD firefighters have always had different terms and conditions from other firefighters does not mean that their retirement age should not be aligned with that of local authority firefighters in the light of the recommendation of the noble Lord, Lord Hutton, that uniformed services should have a normal pension age of 60. To quote the noble Lord:

“The exception is in the case of the uniformed services where the Normal Pension Age should be set to reflect the unique characteristics of the work involved. The Government should therefore consider setting a new Normal Pension Age of 60 across the uniformed services”.

MoD firefighters are uniformed, as are the MoD police.

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Fourthly, as it stands, the MoD firefighters who have joined since 2007 come under the new rules established then and have a normal pension age of 65, while the rest have a normal pension age of 60. It is true that we on this side of the House, when in Government, introduced the change in 2007, but that was well before the report of the noble Lord, Lord Hutton. In the light of his recommendations, which we accept, all firefighters, including MoD firefighters, should have a pension age of 60.

Finally, in his interim report, the noble Lord, Lord Hutton, said:

“The current public service pensions structure was not designed for modern working patterns and has been unable to respond flexibly to changes in this area and to demographic change over the past few decades. This has led to … unequal treatment of members within the same profession”.

That is what the noble Lord, Lord Hutton, sought to correct. The position of the MoD firefighters is a prime example of the growth of unequal treatment which we now have the opportunity to correct.

It is unfair for firefighters who serve our Armed Forces to have to work for up to seven years longer than other firefighters, remembering that they can—and do—serve in war zones. I hope that the Minister will listen to these concerns, recognise that the physical demands on these firefighters are equivalent to or indeed greater than those on other firefighters, and accept this amendment.

Turning to Amendment 15, I will not repeat all the issues that apply to the MoD police. However, I remind the House that MoD police officers are required to carry weapons and wear body armour in many of the areas in which they serve. The physical demands on them are significantly greater than the demands made on most of our police officers. It is true that some of our normal police officers also carry weapons and wear body armour, although it should be noted that the MoD police often carry heavy machine guns. It seems to me that there has simply been an oversight. Will the Government not own up, say that there has been a slip or oversight here, and accept that MoD firefighters and police, as a uniformed service, should have a pension age equivalent to that of other uniformed services? I beg to move.

7 pm

Baroness Harris of Richmond: My Lords, Amendment 15 is grouped with that of the noble Lord, Lord Eatwell, and the noble and learned Lord, Lord Davidson of Glen Clova. I am most grateful to them for adding their names to my amendment. I, too, apologise for not having taken part at Second Reading when I might have raised these particular concerns, which I am very grateful to the Ministry of Defence Police Federation for drawing to my attention. As I have only just started to speak on this matter, I declare an interest as a former member and chair of a police authority and a current member of the Independent Police Commission, which is chaired by the noble Lord, Lord Stevens of Kirkwhelpington.

As we have heard, the commission chaired by the noble Lord, Lord Hutton, recommended that the normal pension age for members of public service pension schemes should be the same as their state pension age,

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which means that those on the scheme should retire at 65, rising eventually to 67 or 68. As the noble Lord, Lord Eatwell, said, it was also recognised that those who were in the uniformed services—the Home Office police, fire and rescue service personnel and, of course, the Armed Forces—should have a retirement age of 60, but that this would be kept under regular review. The Government were happy to accept this recommendation. However, as the noble Lord, Lord Eatwell, reminded us, for some unaccountable reason, the Ministry of Defence Police are not treated in the same way as Home Office police as they are members of the Principal Civil Service Pension Scheme.

I contend that it is reasonable to say that someone on that scheme would be fairly limited to doing mainly desk work, unless, of course, they are James Bond. However, that is most definitely not the case with members of the Ministry of Defence Police. The reason the noble Lord, Lord Hutton, felt that the age for uniformed service personnel should be 60 in future was to recognise the unique and physically demanding nature of the work that they do. However, because the MDP were lumped in with the Civil Service pension scheme—the reason for which I have never really understood—they were never considered separately in his proposals. Indeed, the MDP were not even consulted on this when the Council of Civil Service Unions negotiated the age increase for all other civil servants. As the noble Lord, Lord Eatwell, eloquently laid out, it seems wholly unfair on a number of grounds that they should be treated differently from colleagues who do very much the same sort of work: namely, Home Office police, fire and rescue personnel and our Armed Forces. The Ministry of Defence Police have a pay structure linked to that of Home Office police forces, so why are they to be treated differently in pension terms?

As we have heard, all MDP personnel are required to be armed. They have to wear heavy body armour and equipment which weighs more than four and a half stones and is removed only when they have meal breaks. This means that in a 12-hour shift, they carry that amount of weight around for 11 hours. This can be even more physically demanding than general policing. Unlike Home Office police forces, MDP officers have no option for to move to unarmed work, should they no longer be able to cope with the physical demands of the job. They either have to retire early, as there is little scope to offer easier work assignments, or they could be dismissed on grounds of inefficiency. That is not much of a state thank you after serving in such high-profile roles.

It is a fact that the MDP’s main role is that of counterterrorism. It is easy to see that their officers, who are routinely armed, are exposed to danger every bit as much as their Home Office colleagues. Indeed, MDP officers continue to serve in Afghanistan and other overseas theatres in support of the Foreign and Commonwealth Office, as well as protecting sites of critical national infrastructure. Did noble Lords know that our Home Office police are not expected routinely to carry guns beyond the age of 55? I certainly did not know that; perhaps I should have done. Therefore, it seems to me even more urgent that this anomaly in pension age provision is hastily cleared up.

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The national state pension age is already due to rise to 67 and could well go to 70 and beyond in the future. There is provision, I understand, for negotiation for the normal pension age for MDP officers to be reduced by three years, but I submit that this could still leave a situation whereby officers in their late 60s are expected to carry firearms and their associated equipment weighing four and a half stones. As I say, at the moment, the Government have the power to vary the retirement age from the state pension age by only three years. Therefore, the older these officers are allowed, or expected, to retire, the greater the health and safety issues will become. I urge your Lordships to consider that dilemma.

Like the noble Lord, Lord Eatwell, I would also like consideration to be given to similar arguments relating to the Defence Fire and Rescue Service, where operational firefighters are to be asked to work until they are around 68, whizzing up ladders, rushing about putting out fires and wearing breathing apparatus. As we have heard, they can also be deployed to war zones. Their concerns also urgently need to be addressed.

If this amendment is accepted, it would not reduce the normal pension age for MDP officers to 60 but would allow the Defence Police Federation to continue to negotiate on behalf of its members. I feel that that is a right and proper thing to do. A review of terms of service is being undertaken and the Government will have the power to make a separate decision on the MDP retirement age, if they choose to do so. My amendment simply asks for time to allow those negotiations to continue. Even if my noble friend cannot accept my amendment, I ask him at least to agree to his officials meeting the Defence Police Federation to explore this matter further. However, I hope, of course, that he will accept the amendment.

Lord Newby: My Lords, these amendments seek to add members of the Ministry of Defence Fire and Rescue Service and the Ministry of Defence Police to the categories of “fire and rescue workers” and “members of a police force” set out in the Bill.

I would like to begin by setting out the current situation before responding to the proposals for change. First, as the noble Lord, Lord Eatwell, pointed out, members of these forces are civil servants who currently, and historically, have access to the Civil Service pension scheme. This scheme currently has a pension age of 65. The principle of working beyond 60 for the MoD fire and police services is already established and has existed for a number of years, while the retirement age for the police and fire services has been well below 60.

Secondly, we should remember that the Civil Service scheme is an extremely good pension scheme with benefits which are far beyond the aspirations of many in the private sector. The scheme has provisions in place to ensure that any individuals who face ill health can be provided with their pension early. Alongside this there is, of course, the option for individuals to retire before their retirement age on an actuarially reduced pension. The value of the Civil Service pension scheme is shown in the fact that DFRS and MDP staffing levels remain good and that individuals in this force have already taken employment on the basis of the package of terms and conditions currently in

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force. The Government do not believe that there are significant recruitment and retention issues associated with the continued use of the Civil Service pension scheme.

Thirdly, it is worth remembering that the employment status of those working in the Defence Fire and Rescue Service and the MoD Police is very different from those working for fire or police authorities. Members of the DFRS and the MDP are direct employees of the Secretary of State for Defence and their remuneration package is managed in a different way. The kind of changes that are suggested by the amendments would make most sense only as part of a fundamental restructuring of not only the terms and conditions of these forces but their roles and responsibilities and they way in which they are managed. They are currently part of a single scheme that is administered at a national level. There would be significant logistical and administrative difficulties in moving them to be part of a locally administered scheme. The Government do not believe that such a restructuring is a way forward.

Having said that, I should point out that, within the new Civil Service scheme, the flexibility will exist for the impact of the later retirement age to be mitigated for certain groups, should this be felt to be justified. This could, for example, be through fully funded early retirement or more generous early retirement factors.

As the noble Lord, Lord Eatwell, pointed out, these issues were not discussed substantively in another place and the amendments have gone down only in very recent days. However, I can give an assurance that the Government will give these matters extremely careful consideration between now and Report. We are very happy to meet members of the Ministry of Defence Police and the Defence Fire and Rescue Service if they would like to do that. I will be in a position to give a more considered response to movers of the amendments and to the House as a whole on or before Report. I therefore urge noble Lords to withdraw their amendment today.

Lord Eatwell: My Lords, I am grateful to the noble Baroness, Lady Harris, for her remarks. I rather pre-empted her discussion of Amendment 15 and I apologise for that. It was, after all, her sensible, balanced and valuable amendment to which we added our names rather than the other way around. I must, of course, accept the Minister’s offer of further consideration. In looking at further consideration, I urge him to put aside the canard of logistical and administrative difficulties. The phrase “logistical and administrative difficulties” is a wonderful excuse for doing nothing on all occasions. As an academic, I recognise that very clearly. It is the doctrine of unripe time: the time is not ripe and therefore we must not do anything. Logistical and administrative difficulties fall into the same pattern.

Nor is the recruitment argument a terribly good one. In this country, where we have 2.8 million people unemployed, it is not hard to recruit people in many professions. The idea that a lack of recruitment difficulties is somehow a justification for maintaining something that is manifestly unfair is not very good. I am delighted that the Government will take this away and consider it. I look forward very much—as, I am sure, does the

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noble Baroness, Lady Harris—to the Government taking a fair and balanced approach to this issue, which will result in amendments to the Bill that are akin, if not identical, to those we have put down. In the mean time, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendment 14

Moved by Lord Newby

14: Schedule 1, page 23, line 28, leave out paragraph (c)

Amendment 14 agreed.

Amendment 15 not moved.

Schedule 1 agreed.

Clause 2 : Responsible authority for schemes

Amendment 16

Moved by Lord Newby

16: Clause 2, page 1, line 19, leave out “in public service” and insert “specified in section 1(2)”

Amendment 16 agreed.

Clause 2 agreed.

Schedule 2 : Responsible authorities

Amendments 17 to 25

Moved by Lord Newby

17: Schedule 2, page 24, line 9, leave out “other than those employed in the civil service of Northern Ireland,”

18: Schedule 2, page 24, line 11, leave out “holders of non-devolved judicial office” and insert “the judiciary”

19: Schedule 2, page 24, line 13, leave out “holders of non-devolved judicial office” and insert “the judiciary”

20: Schedule 2, page 24, line 18, leave out sub-paragraphs (3) and (4)

21: Schedule 2, page 24, line 28, leave out paragraph (c)

22: Schedule 2, page 24, line 33, leave out paragraph (c)

23: Schedule 2, page 24, line 38, leave out paragraph (c)

24: Schedule 2, page 25, line 6, leave out paragraph (d)

25: Schedule 2, page 25, line 11, leave out paragraph (c)

Amendments 17 to 25 agreed.

Schedule 2 agreed.

7.15 pm

Clause 3 : Scheme regulations

Amendment 26

Moved by Lord Eatwell

26: Clause 3, page 2, line 10, leave out paragraph (b)

Lord Eatwell: My Lords, we now turn to Clause 3, which I believe to be the most unfortunate part of the Bill as drafted. Everything else, broadly, can be dealt with reasonably straightforwardly but this, I am afraid, goes a bit further. The clause undermines everything that was achieved by my noble friend Lord Hutton in

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building understanding and trust. It would give any Government of the day unprecedented powers over individuals’ property rights—powers which no ministerial assurances or blandishments can dilute.

The damage is all done in subsection (3) of Clause 3. In Clause 3(3)(b), scheme regulations may,

“make provision by amending any legislation (whenever passed or made)”.

It is no wonder that the Delegated Powers Committee of your Lordships’ House objected so strongly. It made the perfectly balanced and reasonable suggestion that Clause 3(3)(b) be limited,

“so far as it confers power to amend primary legislation, to amendments of Acts passed before the end of this session … and to making only consequential provision or provision that is necessary to ensure consistency”.

Our Amendment 26 is designed to do just this by eliminating the offending Clause 3(3)(b) and allowing Clause 3(2)(b) to take the strain of,

“consequential, supplementary, incidental or transitional provision”.

If the Minister has an alternative way of implementing the proposals of the Delegated Powers Committee, we on this side will be happy to support it. However, as the matter stands, the Henry VIII powers in Clause 3(3)(b) really cannot stand.

Of even greater moment is Clause 3(3)(c), which states that scheme regulations may “make retrospective provision”. Just like that: unqualified, unlimited, they may make any retrospective provision, including the withdrawal of previously accrued rights. A central tenet of pension provision is that benefits that have already accrued are deferred earnings and cannot be reduced. To do so would be akin to taking back a proportion of an employee’s wages that has already been paid.

Indeed, it may well be that Clause 3(3)(c) is actually contrary to the European Convention on Human Rights. The Government acknowledge this in the Explanatory Notes, where they say:

“Clause 3: Scheme regulations. This allows for scheme regulations to contain provisions with retrospective effect. Such retrospective changes … may constitute an interference with property within the meaning of Article 1 Protocol 1”.

The noble Lord, Lord Newby, signed the Bill as being not in contravention of the European Convention. It is striking that the Explanatory Notes devote several pages to discussion of this particular issue. Pages 44, 45 and 46 of the Explanatory Notes give detailed legal arguments and case citations on the issue of property rights as protected by the European Convention. Ministers have asserted consistently, both in another place and at Second Reading, that they have no intention of removing accrued rights and that this notion of retrospective legislation will never be used to reduce accrued rights. If that is so, why is there all this stuff in the Explanatory Notes about accrued rights? Why do we have all this material here if it is not relevant because Ministers have no intention? If they have no intention, why is that provision in the Bill?

Lord Lester of Herne Hill: I was not expecting to be on my feet at all, but the answer to the noble Lord, Lord Eatwell, is that the Joint Committee on Human Rights, to which I belong, has for many years persuaded

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successive Governments to be as full as possible in explaining compatibility statements to enable us to scrutinise whether or not those statements are, in our view, accurate. That is why we welcome the fact that any Explanatory Notes are as full as possible in explaining the Government’s view as to whether or not a Bill is compatible with convention rights. I hope that that is a helpful explanation.

Lord Eatwell: I am grateful to the noble Lord because he has reinforced my point in a very satisfactory way. My point is that the issue referred to here is the compatibility of the threat to accrued rights. That is what the full statement is about, and that is why I am so interested that the Explanatory Notes deal fully with the question of accrued rights. The noble Lord is quite right to say that the Explanatory Notes are full and comprehensive, but why are they there if accrued rights are not in any way under threat?

I return to the discussion of this issue. As the Bill proceeded in the Commons, the Chief Secretary to the Treasury asserted very clearly that the Government would not reduce accrued benefits, having previously said, in a speech on 20 June:

“I also want to make it absolutely clear that we are fully committed to protecting the pension that has been earned to date”.

That is great, but it is inconsistent with Clause 3(3)(c). When he was asked about the retrospective provisions in Clause 3 by Mark Durkan MP, the Chief Secretary replied:

“The hon. Gentleman will know that the provisions in the clause to which he refers mirror directly those in the Superannuation Act 1972, which this Bill in many cases replaces. It was passed in the year I was born”—

he is younger than me—

“and it has been used by a number of Governments to make adjustments to public service pensions … The provisions to which the hon. Gentleman refers are in fact more limited than those in the 1972 Act”.—[

Official Report

, Commons, 29/10/12; col. 60.]

However, I am afraid that Mr Alexander misspoke. Section 2(3) of the Superannuation Act provides that accrued benefits can be reduced but only with the consent of affected members. However, the Bill as it stands allows for the reduction of accrued benefits without member consent. As such, it does not mirror the Superannuation Act, as the Chief Secretary said.

Amendment 28 gives effect to the Government’s intention for the Bill to mirror the Superannuation Act 1972 by providing exactly the same protection for members that Section 2(3) of the Act provides. As such, it is difficult to see how the Government could object to this amendment.

I move from the discussion in another place to the debate here at Second Reading. The noble Lord, Lord Newby, said:

“There is a lot of suspicion about this that is misconceived. Pensions legislation has historically contained such powers”—

actually, it has not—

“which have been seen to be necessary for the lawful and efficient operation of the scheme. They are generally used for minor and technical changes, for rectifying errors and making changes for the benefit of members. The intent of the Bill is simply to allow for these minor changes. There is no sinister intent”.—[

Official Report

, 19/12/12; col. 1584.]

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If there is no sinister intent, why is Clause 3(3)(c) maintained in this wide form? Why is there no qualification? If this is indeed the way that pensions legislation has historically contained such powers—and I presume that the noble Lord, Lord Newby, was referring to the 1972 Act—why are there not the same protections for members as those contained in that Act?

It is also worth noting that the noble Lord, Lord Hutton, said:

“In relation to retrospectivity, the Government have a serious problem. We have to be mindful if there are to be DB schemes in the public sector. We know that there are fewer in the private sector, but those 2.6 million people in the private sector who still have access to a defined benefit scheme know for certain, because of the current law that their accrued rights cannot be changed”.

Accrued rights in the private sector cannot be changed unless members give their consent to a change, perhaps to deal with minor technicalities or deficiencies, which would ultimately improve the quality of their scheme. The noble Lord continued:

“The same rules should apply in the public sector. I do not believe that we can have a different set of rules in relation to accrued rights for people in public sector schemes”.—[Official Report, 19/12/12; col. 1582.]

Therefore, the scope of Clause 3(3)(c) is unreasonable, unethical and directly undermines the trust that is essential to the effective implementation of the Bill. Amendment 28 achieves what the Government claim they wish to achieve. If the Minister has another suggestion for better achieving the same goal, we will be happy to support it. However, I ask him: why is Clause 3(3)(c) written in these unqualified, global terms? Why do we have a clause in the Bill that states:

“Scheme regulations may … make retrospective provision”?

That is unqualified. Why is that provision there? Why is it not qualified in the way that it has been in previous legislation? I beg to move.

Lord Whitty: My Lords, I have several amendments in the group that all relate to the same issue of retrospection and the way in which there should be consultation and negotiation on any such change.

Like my noble friend Lord Eatwell, I was not here at Second Reading, for which I apologise, but I thought I should make absolutely clear my overall view of the Bill and my approach to it in my amendments. It can be summarised simply: I do not like the Bill. I do not like the campaign that the Government and their media allies have conducted against the public sector workers who serve them, and against their pension entitlements. In many ways it has been a despicable campaign. In more technical terms, I do not like the way in which the Government have interpreted my noble friend Lord Hutton’s recommendations in terms of attempting to achieve a commonality of approach across all public sector schemes—an ambition in which, as it happens, they have singularly failed because we have ended up with a complete hotchpotch of schemes. The history of all these schemes is different. They relate to different sectors, different industries, different patterns of negotiation and different kinds of jobs. It was therefore difficult to get to commonality. Nevertheless, the Government have attempted to reach that commonality and have made a hash of it.

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I have sympathy with all public servants who are detrimentally affected, prospectively and currently, by aspects of the Bill. I have sympathy with firefighters, teachers, civil servants, health service workers and so on. I even have some slight sympathy with the judiciary. However, I am going to focus all my subsequent remarks on the local government scheme. One of the differences between the schemes that exist currently in the public sector is that the local government scheme, unlike the vast majority of other schemes, is a fully funded scheme and always has been. It is therefore on a different basis and the Treasury should approach it differently from the way in which it is attempting to approach the other schemes. Ideally, I would like to exclude the local government scheme entirely from the Bill. I recognise we are not at that point, but it would be the more logical outcome.

7.30 pm

I need to declare a couple of past interests. Until four months ago I was the chair of a local government scheme, the scheme for the Environment Agency, the largest non-local government scheme which is a member of the LGPS. About 40 years ago, I was involved in negotiating a local government pension scheme that gave access to it for the first time to a large number of women and part-time workers. I am therefore sorry to see that scheme in danger of being undermined by the Bill. I have no current interests. I am still a member of the GMB and a slightly inactive vice-president of the Local Government Association, but I have no pecuniary interest.

These amendments are on behalf of the members of the scheme and the employers who have to implement it. I concur completely with what my noble friend Lord Eatwell has said about the desirability of excluding all forms of retrospection from the Bill. I do not understand how the Government can reconcile their commitment to not touching accrued benefits with an explicit provision that allows a pretty open-ended form of retrospection under Clause 3(3)(c).

Amendment 27 attempts to seriously modify that, rather than directly delete it. If the Government were prepared to delete it I would be very happy. The amendment would place an obligation on the Government to ensure that there was no material detriment to any scheme member from such retrospective movements. Any retrospective change would therefore have to be limited very much to administrative arrangements, not to something that affected the benefits or funding of the scheme.

That amendment and my later amendments would, I hope, ensure that the level of protection was the same as currently exists, as my noble friend has said, under the Superannuation Act 1972. Without this amendment, both the LGA employers and the unions are concerned that the existence of such a clause would undermine confidence in the scheme and the provision for future benefits, and probably therefore the membership and funding of the scheme. As my noble friend has also said, this is in stark contrast to the regulations that apply to private pension schemes, where retrospection is clearly not allowed. I hope that the Government can at least accept my qualification in Amendment 27.

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Amendment 30 would also require that any retrospective amendment did not add to the totality of the cost of the scheme, so that, even if it did not affect any individual member, the total funding of the scheme would not be affected by total retrospection, as certified by the Government Actuary. Both those provisions would ensure that retrospection was, in effect, nugatory. That is an assurance that I think members of the scheme deserve.

With regard to my other amendments, without changes to Clause 3(3)(b) and (c), there are later aspects of the system of consultation and negotiation of change that are weaker than in the Superannuation Act 1972. That Act has a limited right of consultation and negotiation; the Bill provides that the only requirement would be an obligation to inform relevant stakeholders. Again, both employers and trade unions in the local government area are concerned about the erosion of those rights, and we want to see the provisions of the Superannuation Act 1972 retained.

Amendment 115 to Schedule 7 also has an element of change. Schedule 7 as it stands seems to reintroduce an element of scheme design that was expressly removed as a result of the agreement, which the Government approved at CLG level, if not at Treasury level, between the LGA and the trade unions. If we left the clause as it is, it would increase the costs of the LGPS over time and go above the cost ceiling. Amendment 115 would therefore exclude the local government scheme from that provision.

Amendments 116, 119 and 120 deal directly with the consultation to ensure that the levels of protection and consultation are maintained. Without these changes we would have a weaker framework. I ask the Minister to accept that these amendments need to be made in order that the current provisions against the detrimental use of retrospection are maintained for the local government scheme and, I hope at least in the first instance, for the other schemes as well, although my concern here is specifically for the local government scheme.

Baroness Hollins: My Lords, much concern has been expressed about the Bill’s granting of sweeping powers to the Government to make future further changes without adequate public or parliamentary scrutiny. Clause 3 grants extremely wide and retrospective powers to the Government for further radical public sector pension changes adversely affecting public sector employees’ pensions. This undermines the Government’s claim that this would be a “settlement for a generation”. It is generally accepted that public sector pensions represent an element of deferred public sector pay. Clause 3 is an extreme example of a Henry VIII clause. It is one that gives successive Governments the power to make unilateral and retrospective changes to accrued benefits in public sector pension schemes, changing the retirement age without effective parliamentary scrutiny.

This clause should be severely limited, in the view of the BMA, in which I should declare an interest as president, and other health unions. It has expressed concern about the wide scope of powers and has called for limits. The provision runs directly contrary to the Government’s pension guarantee for no more

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reform for at least 25 years, safeguarding the current generation of public sector workers, and that the Bill protects the benefits already earned by members of existing public sector pension schemes. Instead of protecting accrued rights and making a once-in-a-working-lifetime change to public service pensions, the Bill allows for those very rights to be undermined, throwing public sector workers into uncertainty surrounding their future financial security, even those who will shortly reach retirement age.

The powers granted to the Government in the Bill go beyond the stated purpose as set out in its Explanatory Notes, which is to make changes where legislation is inconsistent with, or requires modification as a consequence of, scheme regulations. Instead, and without justification, this clause allows the Government to make radical changes—for example, to reduce accrued final salary rights without the need for primary legislation and with minimal safeguards of the affirmative procedure, and to drastically change the design of pension schemes and scheme regulations—for instance, making different provisions for different cases or descriptions of persons without having to come back to Parliament to debate primary legislation. It would allow any person to exercise a discretion that was not defined in the Bill, and to breach the 25-year guarantee with no effective means of resisting any breach. The power to retrospectively amend means that accrued pension rights could be affected, which would likely result in a challenge under the Human Rights Act 1998 and may well lead to a declaration of incompatibility and other legal challenges.

During the debate on the Bill in another place, the Government stated that most changes affecting members’ rights would be minor and technical, but the Bill is not explicit in this regard. If the Government intend the changes to be minor and technical, then the Bill should say so to avoid this or any future Government having the power to undermine the 25-year guarantee.

Baroness Donaghy: My Lords, I know that the Minister thought that I overdid it a bit at Second Reading when I said that the confidence of public servants was shattered by two successive large sets of negotiations on their pensions. However, I think that this comes back to an issue of trust, and obviously everyone is going through the Bill line by line to see where that trust might be undermined in future.

I support everything that my noble friend Lord Whitty said. As currently drafted, the Bill would allow scheme regulations to make retrospective changes. I made it clear that in principle I did not disagree with that. However, the absolute crunch would be that scheme members or their representatives should agree to any retrospective change and the Government’s commitment that accrued rights up to the date when the scheme was changed would not be reduced. As has already been said, this would simply ensure that workers in public service pension schemes enjoyed the same protection in relation to their accrued pension rights as exist for workers in the private sector under pensions law.

I was concerned about the noble Lord’s reply on this issue at Second Reading. I understand that there is no set standard of protection across the current

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schemes, as he said. Apparently the Government have chosen not to carry across the protections in retrospectivity that can be seen in previous legislation, such as the Superannuation Act 1972. They are concerned that what the Minister referred to as the “most extreme” of these protections—member consent locks—is not the way forward. The Government say that they are trying to strike the right balance between the protection of members and the efficiency of the scheme, and no one can disagree with that. However, I cannot help thinking that this obsession with member consent locks is all about not getting unanimous agreement to the deal, and that is throwing out the baby with the bath water. What these very reasoned amendments do is codify the Minister’s precise intention. He said that he would take this issue back and further consider the provisions of the Bill, and I hope that he will give the reassurances that we are seeking.

Lord Newby: My Lords, I begin by saying that I completely agree that we are dealing with extremely important provisions in the Bill, particularly with regard to retrospective and legislation-amending powers. I should also say that I am sympathetic to the concerns that have been expressed. I should like to go through each of the amendments in order, and I hope that I will not detain the House for too long.

Amendment 26 is the first of the two amendments in the name of the noble Lord, Lord Eatwell, dealing with retrospection. I should begin by explaining that some powers of retrospection are needed because of the way that pensions legislation is typically split between primary and secondary provisions. This Bill exemplifies that combination. It sets the core framework in primary legislation while the scheme design details, such as the accrual rate, will be set out in secondary legislation. When future changes are made to the secondary legislation, which typically happens in most years to ensure that they run smoothly, it can be necessary to bridge any gaps to the underlying primary legislation, as well as adjusting existing secondary legislation to ensure that it remains consistent. By allowing scheme regulations, which are themselves secondary legislation, to make necessary changes to primary legislation via the affirmative procedure, we believe that we are striking a sensible balance between member protections and parliamentary scrutiny. This approach is commonplace in existing pensions legislation.

However, the Government have listened to what noble Lords have said and have read with interest the 10th Report of the Delegated Powers Committee, which calls into question aspects of the scope of the proposed power. In particular, the report recommends that the power to amend primary legislation should be restricted to amending Acts that have already passed and to making only consequential or consistency provision.

We are considering the recommendations of the Delegated Powers Committee very carefully and on Report I hope to be able to bring forward amendments on this issue that will satisfy noble Lords’ concerns. I was extremely grateful to the noble Lord, Lord Eatwell, for saying that if we are able to do so successfully, he will support those amendments. These are important

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but complicated issues and we are determined to get them right. In responding to the individual amendments that have been tabled, I hope that I can tease out some of the complications and ensure that we do indeed get these issues right.

7.45 pm

I start with Amendment 26. We could not support such an amendment because it would completely remove any powers to amend both primary and secondary legislation through scheme regulations. This would go significantly further than the Delegated Powers Committee’s recommendation for a restriction in scope as far as primary legislation is concerned, not a blanket removal of the essential power. This amendment would require new primary legislation to be made whenever a change to existing primary legislation was necessary, but we think that that goes just too far.

On Amendment 27 in the name of the noble Lord, Lord Whitty, I must preface my remarks with a Second Reading comment in response to the Second Reading bit of the noble Lord’s speech. He used the word “despicable” in respect of the way that the Government have approached this issue. If he thinks that what we have here is despicable, then his definition of “despicable” is very, very different from mine. What we have here—

Lord Whitty: I am not referring to what is in this Bill or what the Minister or any of his colleagues have said. I make that clear. I am talking about the campaign that has been run decrying and denigrating public sector workers and their pension schemes, calling them “feather-bedded” and “gold-plated” and trying to divide public opinion against public servants. It is that aspect of the political operation that I object to, not anything in the Bill.

Lord Newby: I am very relieved to have that qualification. However, I briefly repeat what I said at Second Reading. The schemes that are now going forward, covered by the legislative framework of this Bill, are, in our view, extremely sensible and generous provisions that reflect the importance that the Government attribute to the work undertaken by all the public servants covered by the schemes.

Having got that out of the way, we quite like the amendment of the noble Lord, Lord Whitty. It has the advantage of simplicity and would allow schemes to make minor and technical changes in the interests of efficiency but restrict changes that were materially detrimental to members. The wording that he has used in the amendment and the sentiments contained in it will certainly form part of our consideration of what we ourselves table on Report.

Amendment 28 deals with member consent locks. I should be clear, as my colleague the Economic Secretary was in the other place, that the Government have significant concerns about the consent locks contained in the amendment. We do not believe that this is the right way forward. I have previously mentioned that there are a number of options in terms of how to facilitate retrospective powers, and in our view consent locks are very much at the extreme end of this spectrum. We do not think that it is appropriate to give members,

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employers or anyone else the power unreasonably to hold each other or the Government to ransom and to inhibit changes for the greater good. There have been some damaging examples of this in the past. Therefore, the application of universal consent locks is not an avenue that we intend to investigate as we develop our amendment on this subject for Report.

Lord Eatwell: My Lords, perhaps it will assist the Minister if I point out that this is not a universal consent lock; it refers purely to accrued rights and indeed, as I said, it reflects the Superannuation Act 1972.

I am the chairman of a private sector pension fund; I did not declare an interest because, as this is about public sector pensions, there is no particular interest for me to declare. With regard to the extreme end of the spectrum, we have used consent locks in the private sector while negotiating various reforms of rights and have always found that negotiations with members are fruitful and produce generally positive results. I therefore do not think that so-called consent locks should be seen as extreme; they are simply the fruitful basis of consensual reform of a pension scheme.

Lord Newby: I hear what the noble Lord says and I hope that our amendments can satisfy him in this area; I suspect they will do so without having consent locks. However, it will be a good outcome if he is happy at the end.

On Amendment 30, discussed by the noble Lord, Lord Witty, as part of the debate about retrospective powers, our view is that it simply does not do that. Clause 3(5) deals with the generality of Treasury powers and this amendment would loosen up the area that the Treasury would have to consider. The Treasury would not then look at changes to schemes that were revenue-neutral. Our view is that in order to meet the requirement by the noble Lord, Lord Hutton, that we need a greater degree of consistency across the schemes, it would be sensible for the Treasury to look at changes, whether or not they have a financial implication, to try to ensure that we maintain consistency to the maximum possible extent.

Moving to Amendments 116 and 119, which deal with consultation, this takes us back to a debate in the other place about the appropriate statutory consultation requirements for changes in scheme regulations for the new schemes. In the other place the Government set out the reasons why it is not appropriate that primary legislation should require that all consultation on such changes be carried out with a view to agreement. As made clear in the Government’s consultation principles, consultation can have a number of purposes, including garnering views and preferences, understanding possible unintended consequences of a policy or getting views on implementation. The Bill already goes further than those consultation principles, not to mention the arrangements in place for a number of the existing public service pension schemes, in requiring that all changes to scheme regulations would undergo statutory consultation. However, such consultation must be proportionate; it would not be right for us to establish today that all consultation must seek to reach agreement, as that will not always be possible, or indeed the aim of the exercise.

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Amendment 119 goes even further, requiring that all changes to scheme regulations should undergo not only consultation with a view to reaching agreement but also a parliamentary reporting process. In the case of changes to the protected elements set out in new subsection (6), scheme regulations could be changed only by agreement. We believe that this is an impractical measure. Changes are required to scheme regulations for the most minor of reasons. Surely it cannot be right or sensible that such an exhaustive consultation procedure be put in place for every such minor instance. Instead, the Government have established a balance in their consultation requirements. Clause 19 puts in place a statutory requirement for consultation. Clause 20 goes further than this and puts in place more onerous requirements for those situations where a future Government may seek to amend the core elements of the new schemes. This already goes further than some feel is appropriate in binding the hands of future Administrations. However, the Government are determined that this protection should remain in order to give confidence to members of those schemes that the Government are committed to the scheme designs that have been negotiated.

Amendment 119 also makes changes to the protected elements set out in Clause 20. These are the core elements of the schemes protected by the extra consultation requirements in the clause. The Government have included the career-average nature of the schemes, member contribution rates and benefit accrual rates in these protected elements, and are convinced that including these elements strikes the right balance between giving reassurance to members and ensuring that schemes are flexible enough to operate in the real world. Finally, Amendment 119 also seeks to require agreement through consultation to any change to the protected elements before such a change could be made.

The Government are committed to the reforms to pensions set out in the Bill and in the separate documents that describe the details of the new schemes that have been negotiated with member representatives. We have put a great amount of time and resource into developing these schemes and have come to what we believe are the right outcomes in the designs that have been established. However, it would be irresponsible and frankly unrealistic for this Government to seek to bind the hands of all future Governments within the next 25 years, as this part of the amendment would seek to do. Instead we have sought to put in place a more onerous process that would cause any future Governments seeking to fundamentally change these pensions to properly consider the impact of their actions and to justify the need for such changes to those affected and to Parliament.

Amendment 120 is intended to be consequential on some of these other changes and would amend the provision in Clause 21 to specify that scheme regulations will be subject to the negative procedure unless otherwise specified. However, the amendments in question do not propose any change to the procedure around scheme regulations, and therefore we believe that the amendment is unnecessary. I hope that in view of the assurance I have been able to give about amendments coming forward on Report, noble Lords will feel able to withdraw their amendments.

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Lord Eatwell: My Lords, I am grateful for the support from around the House for the propositions that I advanced with respect to Amendment 26. I am grateful to my noble friend Lord Whitty, who had his own very sensible amendments, to the noble Baroness, Lady Hollins, to my noble friend Baroness Donaghy and to the noble Lord, Lord Newby. Those sympathetic noises and/or general support are most encouraging. I was also delighted to hear sympathy from the noble Lord, Lord Newby, for Amendment 27 and especially Amendment 28. As currently drafted, Clause 33(a) and (c) disfigure this Bill and we look forward with great interest to hearing the Government’s proposals. It would be enormously helpful if there could be a degree of consultation with those Members who have spoken from these Benches as well as, if she wishes, the noble Baroness, Lady Hollins, prior to those amendments finally being tabled. I hope that the Minister will be able to give the commitment that, whether or not there is consultation, the amendments revising these important clauses will be put down at least one week before Report to allow Members to consider what may be quite complex amendments with some care and be able therefore to respond effectively and appropriately on Report.

I am delighted these remarks have received a sympathetic response, and on that basis I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Amendments 27 to 28A not moved.

Amendment 29

Moved by Lord Newby

29: Clause 3, page 2, leave out lines 22 to 29

Amendment 29 agreed.

Amendment 30 not moved.

House resumed. Committee to begin again not before 8.58 pm.

Rape in Armed Conflict

Question for Short Debate

8 pm

Asked by Lord Lester of Herne Hill

To ask Her Majesty’s Government what is their strategy for ensuring that United Kingdom government-funded medical care for women and girls impregnated by rape in armed conflict is non-discriminatory and includes abortion services where they are medically necessary in compliance with international humanitarian law.

Baroness Garden of Frognal: My Lords, the next debate is timed and the timing is very tight. Would noble Lords who have six minutes to speak make sure that they sit down as the clock hits six—or, preferably, momentarily before—to ensure that the Minister has as much time as possible to reply to the points raised in this important debate?

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Lord Lester of Herne Hill: My Lords, the central question that this debate seeks to clarify is the Government’s strategy for ensuring that UK-funded medical care for women and girls impregnated by rape in armed conflict is non-discriminatory and includes the provision of safe abortion services where medically appropriate and necessary. This is the Government’s obligation under international humanitarian law, including the medical mandates of the Geneva conventions. Despite these legal mandates and the life and health-threatening nature of many pregnancies arising out of war rape, girls and women raped in armed conflict are routinely denied safe abortions in humanitarian medical settings, including those funded by DfID.

I am grateful to the international NGO, Global Justice Centre, and its dynamic president, Janet Benshoof, and her staff, for providing me with background information for this debate. I am also grateful to the Minister and her advisers for meeting me to discuss the issues in depth. The Minister has a strong commitment to equality for women and respect for international humanitarian law. I look forward to her reply, which may be influential well beyond this country and enable the UK to provide strong international leadership.

Sexual violence against women is a global evil. In its most pernicious form, rape of girls and women is used as a weapon of choice in the majority of today’s armed conflicts. All rapes are terrible, but rape used as a weapon of war is often fatal. About 70% of conflict-related rapes in the DRC are gang rapes, most accompanied by mutilating injuries to women, including deliberate HIV infection. One-third of the victims of war rape in the DRC are girls under the age of 18 and, as many are raped in the context of sexual slavery, they incur the greatest risk of pregnancy.

Girls and women subject to rape used as a weapon of war are persons “wounded and sick” in armed conflict, guaranteed absolute rights to non-discriminatory, appropriate and necessary medical care under the Geneva conventions. Yet these women war victims are routinely denied, by blanket exclusions, life and health-saving abortions in humanitarian settings, leaving them with the terrible “choice” of risking an unsafe abortion, suicide or being forced to bear the child of their rapists.

War rape is torture. Denying a rape victim an abortion when there is medical need is also capable of amounting to a form of torture. In a recent statement, the World Organisation Against Torture, the largest global network of NGOs working against torture, said:

“To prevent a rape victim from access to abortion is contrary to the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment”.

The right at stake is not a right to abortion; it is the right of everyone “wounded and sick” in armed conflicts, including women, to appropriate and necessary life and health-saving medical care. Plastic surgery, blood transfusions, amputations, prostheses, dental treatment and penile reconstruction surgery are all medical procedures protected by international law when needed by persons “wounded and sick” in armed conflict. The same applies, or should apply, to the termination of pregnancies where the continuing of a pregnancy creates a serious risk to the life and physical and mental health of the raped woman or girl.

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Why are women raped in war being denied access to appropriate and necessary medical care by means of safe abortions where the continuation of the pregnancy threatens the life and health of the woman or girl? Two powerful forces perpetuate the anti-abortion medical protocols and sweepingly broad exclusions imposed on the provision of healthcare to women raped in war—the United States Government and the ICRC, the International Committee of the Red Cross. The United States imposes a “no abortion” total ban in its foreign aid, requiring all recipients, including foreign Governments, the ICRC and UN entities, to pledge not to discuss abortion or provide abortions with US funds. The US has eliminated previously existing exceptions allowing abortions for rape or to save the life of the woman.

The United States and the UK largely fund the same humanitarian organisations. Only one of the top 10 recipients of DfID humanitarian funding, the World Health Organisation, segregates its US funds from DfID and other donor funds to ensure the integrity of its abortion-related work. The ICRC, whose largest single donor is the United States, is clear in its internal operational guidelines for ICRC staff treating women victims of sexual violence in armed conflict that its medical staff “do not perform abortions”. The guidelines further discourage abortion referrals on the ground that making such referrals might impair the reputation of the ICRC in the conflict country.

The ICRC is DfID’s partner of choice in conflict situations and the largest recipient of DfID aid to humanitarian organisations. I was one of 43 British parliamentarians, including three former leaders of my party, who wrote to President Obama in February 2012 recalling the absolute rights of girls and women raped in war to non-discriminatory care, including abortions, under the Geneva and torture conventions. We requested the President to lift the US abortion ban on aid to war victims. To date, he has not yet done so. Denying medically needed abortions for victims of rape in war, including girls targeted for forced pregnancy as an element of genocide, is barbaric. Our Government should fill the vacuum of global leadership on this issue by ensuring that DfID’s humanitarian aid advances, and does not undermine, the rights of women raped in war to non-discriminatory medical care, which includes abortions.

The issue has been raised in Parliament since 2010. The Government have expressed their concerns about the US abortion ban, noting that it now prohibits abortions in cases of rape or to save a woman’s life. However, the Government appear neither to have taken steps to ensure in practice that UK funds are not used to support facilities that provide discriminatory care for women raped in war, nor requested the US to lift the ban on victims of war rape.

DfID’s aid programme apparently defers to local anti-abortion laws. This breaches the UK’s international humanitarian law obligations when the aid is supporting medical care for war victims. DfID-funded humanitarian entities such as the ICRC do not even provide abortions for war rape victims in conflict countries where abortions are legal for rape victims, as in the Sudan.

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The Minister’s Written Answers and those of the honourable Lynne Featherstone MP on this issue are inconsistent about whether international humanitarian law is trumped by incompatible national law. Time prevents me from citing the inconsistent answers but I have given the references to my noble friend the Minister. I ask her to clarify the apparent contradiction in those answers and to explain the following points: first, how DfID policy implements UK law, as set out in the UK military manual, that national laws are relevant in conflict situations only so far as they do not conflict with international humanitarian law mandates; secondly, whether DfID monitoring or assessments of the performance of funded humanitarian entities includes, when applicable, assessing their compliance with the medical mandates of international humanitarian law; thirdly, whether DfID is engaged in any discussions with the ICRC on the question of the ICRC segregating its compromised US funding from that of DfID and other donors to provide abortions for war victims, or whether in any other way the ICRC can ensure that women war rape victims treated by the ICRC are able to have access to abortion services from non-ICRC medical providers. Fourthly, do the Government have any plans to make a request to President Obama to lift the abortion ban on women raped in armed conflict as a matter of US compliance with the Geneva conventions?

Finally, can the Minister confirm that excluding access to abortions for women raped in war where such medical treatment is appropriate and necessary is discriminatory and likely to breach the Geneva conventions and, most important, that international humanitarian law takes precedence over conflicting national laws which authorise torture or serious ill treatment by banning medically necessary abortions for the victims of rape in armed conflict?

8.10 pm

Baroness Kinnock of Holyhead: My Lords, at the outset I want to pay tribute to the noble Lord, Lord Lester, for initiating this debate so convincingly and eloquently and for raising concerns about what clearly are life or death issues. Over many years I have been visiting conflict-afflicted fragile states where I have met and talked to women who have suffered the agony of brutal rape and where sexual violence is the shocking and specific consequence of conflict. These women are traumatised, stigmatised and often ostracised by their families.

I firmly reject the notion that dealing with rape is down to culture, custom and religion and that that somehow excuses the denial of the right to safe abortion for women who have often endured mass rape which has scarred them both physically and psychologically. They are attacked while they go to fetch firewood or food for their families. In Darfur some women told me that they had to choose between the threat of rape and feeding their families. It is time for us to assume responsibility and to go beyond simply condemning the perpetrators of rape and instead to take steps to end it. Indeed, we must recognise, as Hillary Clinton has said, that it is not cultural, it is criminal.

In 2010, I visited the Panzi Hospital in Congo run by Dr Denis Mukwege and I talked to three women who only the day before had been attacked and raped

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several times as they walked home from the market with their children. They were traumatised, but their fortitude and strength were overwhelming. I could barely hold back the tears. Their main concern was not to talk about their suffering but to ask for a search to be made for their children whom they had encouraged to run away when the attack took place. I feared that they may be pregnant and would need terminations, but abortion is illegal in Congo.

In addition, as the noble Lord, Lord Lester, pointed out, US abortion restrictions mean that humanitarian aid managed by the International Committee of the Red Cross cannot be used for the victims of rape. These draconian restrictions prevent Governments, NGOs and humanitarian aid providers such as DfID and ECHO, the European humanitarian aid office, from providing the option of abortion to women and girls who have been raped. The UK is completely compromised by the no-abortion prohibition put on US humanitarian aid which prevents all humanitarian entities funded by the US from speaking out about abortion, or indeed from providing abortion services—even a life-saving abortion for a very young girl raped in conflict. This flies in the face of both international humanitarian law and the Geneva conventions, which say that victims of rape are entitled to,

“receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition”.

Similarly, US domestic law requires such a response through the Geneva Conventions Act and the joint services manual of armed conflict.

I have three specific questions for the Minister. Norway has made a bilateral request to the US to ask it to lift the abortion ban on humanitarian aid for women raped in war as a matter of US compliance with the Geneva conventions. Why has the UK not followed Norway’s example? In fact, as I have said, the ban actually compromises the UK and, of course, it also affects the ICRC, MERLIN, the UNFPA, UNICEF and others engaged in humanitarian work. In countries such as Sudan and the DRC, countries that, incidentally, receive high levels of UK aid, women raped in war are denied the abortions to which they are absolutely entitled as persons who are “wounded and sick”. They may take their own lives or risk an unsafe abortion. Given the US stance on abortion, surely the UK is the country with the clout that can make a difference. The UK is a substantial donor through its involvement with ECHO and its own development and humanitarian assistance. This country must take global leadership on this matter. It is clear that women raped in war are persons who are wounded and sick in armed conflict, and UK law is also clear that the medical care rights of all persons wounded and sick in war are absolute.

A major problem is that it is DfID’s practice to lump all rape victims together and thus fail to give women and girls who are rape victims their special rights under the Geneva conventions as war victims. Tonight we are discussing a failure of will to bring about the changes that will deliver some justice to all women who have endured such suffering.

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8.16 pm

Baroness Flather: My Lords, this important topic needs to be discussed more often and at a time when many more Members are in their place. For me this is a very distressing subject because, as I get older, I find that less value is placed on women, not more. Recently we saw the most appalling incident of rape in Delhi. During the war between Bangladesh and Pakistan, some 2,000 women were kept in cages. They were not given any clothes because they would use them to hang themselves. They were used by the soldiers. Appalling things are done to women during conflict and in war situations. But a woman who becomes pregnant because she has been raped, perhaps many times, is supposed to have the baby. What is that baby going to do for her? Is that baby going to be a child of love? It will be a child of hate and a reminder for the rest of a woman’s life of what happened to her. How can we inflict that kind of situation on any woman anywhere?

We are very protected in this country; we are sitting in a cocoon, but other countries are not so cocooned. The Americans are more cocooned than anybody else in the world and I do not think they understand what the real world is like. I do not think they understand what happens to women during conflicts in poor countries. It is appalling that they cannot see the need.

Many years ago, during the Bosnia conflict, Marie Stopes International held a function in this place. Other NGOs were saying that they could not perform abortions because there was not enough time for counselling and there were no proper operating theatres. My goodness, those women had been raped from morning till night. They did not want counselling or proper operating theatres, they just did not want to bear the children. That is the bottom line. Why should a woman be forced to bear a child that she never wanted and could not want?

The only way forward is for DfID to separate itself completely from all the US-funded agencies and concentrate on abortion and women’s health. Why bother with anything else? Women comprise half the population and they do not get much attention in this world. It is time that we in this country decided that all our money should go to save and to serve women. This is what I would like to see. It is time to stop pussyfooting around and to do something about it.

8.18 pm

Baroness Uddin: My Lords, I add my thanks to the noble Lord, Lord Lester, for his dedication. I also pay tribute to the Global Justice Centre for its long leadership.

In 1971, as a 12 year-old in Bangladesh, I met women who were raped with impunity by Pakistani soldiers. These women were mothers, daughters and sisters, often abandoned on the streets or left to die. I have always regarded this as a brutal rape of a nation. Most women did not receive any medical or social support or intervention and were forced to bear the pregnancy. Since then, many more wars have continued to blight our world. In the 36 most recent conflicts, mass rape has been documented, yet the level of service and support remains unacceptable and inadequate.

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It is a barbaric practice of targeting girls and women for forced pregnancy as an element of genocide, as has been said. The denial of necessary abortion for victims of rape in war must itself be considered barbaric and entirely uncivilised. The Geneva Convention requires non-discriminatory medical care to be provided, whether by the state in conflict or by others.

Thirty-three years ago, the UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women, which included the prevention of all forms of violence against women. This treaty was signed by the UK Government on 22 July 1981, and Members of this House should recall that it was ratified on 7 April 1986. The United States, on the other hand, has the questionable honour of being in the company of six other countries—Iran, Sudan, South Sudan, Somalia, Palau and Tonga—that have all so far refused to ratify this treaty which is vital for the fair treatment of women around the world.

In many societies, a culture of patriarchy and the fear of an unenlightened civic and religious leadership lead to the stigmatisation and marginalisation of women who are left unable to report rape, let alone to have treatment and see justice served. One incident of hope is being witnessed in India and may be a path for those voices which have until now suffered in silence—those who have felt compelled not to report rape and violence, fearing repercussion from their attackers as well as from within their family. This is where the law and law enforcement is critical. It is not just in India; violence against women is a global epidemic of immense magnitude, most brutally and mercilessly executed within our homes, witnessed by our family members and our children. Our coercive and collective silence is responsible for its continued menace, in our homes or during war and conflict. I accept that it is difficult for many countries to grapple with these issues, not least where religious guidance supersedes humanitarian consideration. In such grave circumstances, women should have recourse to preventive care and non-discriminatory medical care on the basis of the mother's life or health being in danger.

When I stood before this House on 7 October 2010, I said that rape as a weapon of war leads to the deaths of thousands of girls and women. A year later, the UN Secretary-General’s special representative on sexual violence in conflict said:

“Sexual violence has become a tactic of choice for armed groups, being cheaper, more destructive and easier to get away with than other methods of warfare”.

That little has changed since we both spoke up on these matters is a damning indictment. We cannot be subject to the policy of a nation that has refused to ratify a treaty eliminating all forms of discrimination against women when we have ratified it.

We must, as a society and as a civilisation, reject all forms of violence against women. Where used as a tool and a weapon of war, it is specifically designed to impede the advancement of women and to maintain their subordinate status. By allowing the destruction of the lives of women, we allow them to continue not to have a stake in society. This, I humbly suggest, is something that our Government cannot support. I hope that we will not compromise our legal obligation

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at the behest of any other nation, even one with whom we have our closest ties. It cannot be right that the policy of a single nation can compromise the legal obligation of the United Kingdom. In the light of this discussion, what response will the Minister make in terms of the representation that the Government make?

8.23 pm

Baroness Kennedy of The Shaws: My Lords, I join others in paying tribute to the noble Lord, Lord Lester, who has for many decades been a great champion of women’s rights. I am glad that he has raised this issue tonight. It is only recently that rape has been acknowledged as one of the hidden elements of war. Rape in war was always portrayed historically as a sexual and personal matter that was somehow about military men’s need for sexual gratification, when in fact it is now recognised as a tactic of war and a threat to international security, and is a recognised war crime. The Geneva Conventions expressly prohibit rape. In recent decades, we have seen a growing understanding of the function and effects of rape.

A great woman in the law is Judge Navi Pillay, the main judge in the Rwandan war crimes tribunal. I remember hearing her describing the rape in Rwanda of 500,000 women as the destruction of the spirit, of the will to live and of life itself. She described it as being about social control and as a process of destroying the Tutsi as an ethnic group. The reason it was seen to be so much about destroying life was because it was a question of making your enemy’s women carry your children. When her court found Jean-Paul Akayesu guilty of genocide, it held that rape and sexual assault constituted acts of genocide in so far as they were committed with the intent to destroy in whole or in part a targeted group. Rape is often about ethnic cleansing, or the ethnic reconfiguring, of a population. We saw it in Rwanda, and have seen it since in Congo and Darfur: tens of thousands of rapes, and women profoundly traumatised as well as physically damaged internally, mutilated and infected with disease. We have heard the descriptions of the tearing of organs and the vagina. They are unbearable to hear and to read.

For those women and girls who become pregnant, their suffering is prolonged. They face increased rates of maternal mortality, and when they are forced to resort to illegal abortion it often leads to infection, scarring, sterilisation and frequently death. If left pregnant by the enemy—we must think about this—the women are often ostracised by their own communities, abandoned by their spouses, and experience physical violence from parts of their communities who are ashamed of them and who see them as the carriers of the enemy’s seed. The children produced are despised as the product of the enemy. We must see this as being carried on through generations. What these women suffer, as the noble Lord, Lord Lester, said, is torture—cruel and inhumane treatment. Women must be able to make choices about their lives after such unimaginable horror. They need good medical care, and advice must be afforded to them. None of us should be the people who decide whether they should have an abortion. It must be a matter for them.

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The United States of America is still putting abortion restrictions on humanitarian aid, as other people have said. It is for that reason, one can be sure, that the Red Cross is falling in line with its policy, because it is anxious not to alienate major players in the international field. I am afraid that the United States holds that trump card. It must be persuaded by partners—by other nations like our own—that what it is doing is an affront to international law. It is a violation of women’s rights under international human rights and humanitarian law, including under the Geneva Conventions.

When I speak to women of religious conviction and describe to them the testimonies that I have heard from women—just as my noble friend Lady Kinnock described—I never hear from them that women in extremis should be denied the right to make a choice. It is for those individual women to make peace with their God, and not for us to do it on their behalf.

The United Kingdom Government should be pressing for change in the US policy, and should have a very clear position with regard to our policy and those of the organisations that we fund in these terribly conflicted parts of the world. This is not just about humanity and compassion; it is about violations of rights and international law. If the rule of law means anything, we must be upholders and champions of it throughout the world.

8.29 pm

Baroness Tonge: My Lords, I congratulate my noble friend Lord Lester for not only securing this debate but having the courage to raise what is a very contentious issue. It is difficult to estimate how many women have been raped during armed conflict, but a survey in the American Journal of Public Health a year ago estimated that in the Congo, over 1,000 women were raped every day. We know that rape is a weapon of war and, as the noble Baroness, Lady Kennedy, said, is also a step to genocide.

Closer to home, I was fortunate—or unfortunate—enough to be in Tirana in the spring of 1999 when the people of Kosovo were fleeing from the Serbs. I was fortunate because I witnessed the unquestioning and generous help that ordinary Albanians were giving the refugees, mostly total strangers to them. However, it was harrowing to visit one of the hospitals and hear the stories of some of the women who were brave enough to tell what had happened to them. Some had been gang-raped by soldiers, some had been brutally raped and then abused with rifle butts, broken bottles and, in one case I heard of, with burning plastic bottles. Noble Lords can imagine the suffering.

The trauma is suffered on many levels. There is appalling physical injury and infection to be dealt with. There is great mental suffering. Children may have witnessed the rape of their mothers and are deeply traumatised as well. Husbands may reject or leave a wife who has been raped. There is social exclusion from the group, and shame heaped upon the victim by the community. Many women do not admit what has happened to them because of this.

If pregnancy results from the rape, support and counselling will be needed for the victim, although I

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think the idea of proper counselling in conflict zones is just pie in the sky. The majority of women will want safe abortion; without safe abortion provision, women who have been raped will try to end the pregnancy by unsafe means. The International Conference on Population and Development, held by the UNFPA in Cairo as long ago as 1994, stated in its programme of action that human rights abuses occur when a woman is forced to carry an unwanted or unviable pregnancy; this is degrading and causes mental suffering especially when the pregnancy is the result of rape.

I was not going to repeat the legal arguments but I think we have time to remind ourselves. As my noble friend has told the House, under the Geneva Convention, women who have been subjected to rape as a weapon of war fall into the category of “wounded and sick” and should have equal access to medical treatment. The UN Convention Against Torture recognises that safe abortion is a necessary element of complete medical services for injuries resulting from torture. Rape is torture, and the denial of correct medical treatment after rape is therefore, in itself, cruel and inhuman treatment—torture, in other words.

The purpose of this debate is to try to clarify just what treatment women can get from the humanitarian programmes provided by DfID. Despite President Obama’s lifting of the “global gag” rule when he came in office, abortion is still effectively banned as part of US humanitarian aid, as we have heard, which ignores the fact that the USA recognises girls and women raped in armed conflict as victims of torture. The UNFPA receives funding from the USA and would lose its funding from that source if it was using money from other donors, such as us, for abortion in the same field of operation. The UK Government have been exemplary in recognising the need for safe abortion as a necessary part of treating women who have been raped in conflict, but some of us have had confusing replies when we have tried to establish whether the USA ruling is preventing other countries doing this work when funds are pooled by agencies such as UNFPA.

On a slightly different matter, I also ask my noble friend the Minister to what extent emergency contraception—hormone—pills are used after rape. Emergency contraception is not abortion; it prevents ovulation. It can be taken up to two days after intercourse; five days for some of the new products which are becoming available. Intra-uterine devices can also be used up to five days after sexual intercourse and will prevent ovulation if they contain copper. These methods are very easy to administer. They are cheap and do not carry quite so much baggage as surgical abortion for people working in the field.

If the evidence is lacking, will research be commissioned urgently so that we can live up to our legal and moral obligations to minimise the terrible suffering of victims of conflict and sexual violence?

8.35 pm

Lord Collins of Highbury: My Lords, I, too, pay tribute to the noble Lord, Lord Lester, for initiating this important debate. Wartime sexual violence is one of history’s greatest silences. However, as my noble

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friend Lady Kinnock described, since the 1990s there has been an increased awareness of sexual violence in wartime due to the significant impact of armed conflicts on civilian populations. According to UN Women, 90% of casualties in contemporary conflicts are civilians, and the majority of those are women and children.

Sadly, the effects often continue beyond war. Post-conflict studies from Rwanda, where up to half a million women were raped during the conflict, show a spiral of continuing violence against women. The same cycle is being repeated in Syria right now, with reports from organisations like Human Rights Watch of Syrian government forces and militias sexually abusing girls as young as 12.

This country needs to live up to its commitment to protect women. Violence against women as a tool of war remains one of the least prosecuted crimes; we have to do better to ensure action against the perpetrators. However, we must be tough not only on the crime but its causes. This means that we must tackle the underlying problems of lack of empowerment, education and inclusion.

The unanimous adoption 12 years ago of Resolution 1325 on women, peace and security was a landmark decision in which the situation of women in armed conflict was specifically addressed. The resolution called for their participation at all levels of decision-making on conflict resolution and peace-building. The UN recognised that women’s exclusion from peace processes not only contravened their rights but weakened the prospects for sustainable peace. Since the adoption of Resolution 1325, four supporting resolutions have been adopted by the Security Council. All focus on three key goals: strengthening women’s participation in decision-making; ending sexual violence and impunity; and providing a system of accountability. Together, the resolutions provide a powerful framework and mandate for implementing and measuring change in the lives of women in conflict-affected countries.

As a member of the UN Women executive, Britain has a responsibility to help ensure that UN Women has commitment both from us and the international community. I hope that the Minister will reassure the House that the Secretary of State for International Development, Justine Greening, will make that a priority. UN Women has great potential, but that potential will not survive without our support. Currently it does not have the long-term backing that everyone agrees is necessary for the organisation to take off. The aim is to join up the work that is done across the UN on gender equality and women’s empowerment, pooling resources and effort to increase its impact and reach.

As we have heard from the noble Lord, Lord Lester, and others in tonight’s debate, girls and women who are raped and become pregnant have rights under the Geneva Convention to have full medical care, which must include their choice of an abortion. I repeat the clarification sought by the noble Lord on what appear to be contradictory statements previously made to the House by the Minister. Due to time limits I will not repeat the exact quotes, but it is vital that we have clarification on this issue.

I also want to repeat the question and the point made by my noble friends, in particular my noble

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friend Lady Kinnock. Will the Government follow the call by Norway to seek changes in the American Government’s attitude on this important issue?

8.39 pm

Baroness Northover: My Lords, I thank my noble friend Lord Lester for securing this debate and for all his work in this area. I also thank noble Lords for their contributions.

The Government have put women and girls at the heart of their international development work. Our Strategic Vision for Girls and Women sets out our strategy on delaying first pregnancy, support for safe childbirth and the prevention of violence against women and girls. We recognise that violence against women and girls is widespread, with high prevalence and devastating consequences. It has often been hidden and accepted for far too long. The noble Baroness, Lady Kinnock, is right to quote Hillary Clinton: rape is not cultural; it is criminal. It is brutal, as she and the noble Baronesses, Lady Flather and Lady Uddin, and others, have said.

My right honourable friend the Secretary of State for International Development has made it clear that tackling violence against women and girls is a central part of the UK’s development policy. My honourable friend Lynne Featherstone continues her very active efforts in this area as champion of combating violence against women and girls. My right honourable friend the Foreign Secretary has made the prevention of sexual violence in conflict countries a key priority for the UK’s G8 presidency this year.

The noble Lord, Lord Collins, is right to highlight the causes of the abuse of women and the assumption of the inequality of women. Millions of women and girls have no control over the circumstances in which they become pregnant. Every year 47,000 die as a result of unsafe abortion; millions more are permanently injured. I assure the noble Baroness, Lady Flather, that the UK is one of only a handful of donors willing to tackle this contentious issue, and we will continue to do so. I assure the noble Baroness, Lady Kinnock, that we are taking a lead here and will continue to do so.

This year we have major opportunities to secure greater international commitment to eliminating violence against women and girls. Key here are the Commission on the Status of Women, and our presidency of the G8, where for the first time the Foreign Secretary’s preventing sexual violence initiative will put this issue before G8 Foreign Ministers. Sexual violence causes physical and psychological damage to millions of women and girls and in the worst cases results in loss of life, as we have just seen in the terrible cases in India referred to by the noble Baroness, Lady Flather. A number of women and girls who are victims will be faced with an unwanted pregnancy. They may seek abortion, even when these services are not safely or legally available. In these situations the UK policy is clear: UK aid can be used, without exception, to provide safe abortion care where necessary and to the extent allowed by national laws. I can assure noble Lords that UK aid is not in any way influenced by the restrictions in place on US funding. Women and girls who are survivors of

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rape should have access to sensitive and high quality care that includes counselling and emotional support. I can assure my noble friend Lady Tonge that this includes access to emergency contraception—we recognise the importance of that—and presumptive treatment against sexually transmitted infections including post-exposure prophylaxis for HIV prevention.

My noble friend Lord Lester is flagging here the particular circumstances of sexual violence in armed conflict. Rape being recognised as a war crime was a landmark achievement. It has long been held that women are entitled to equal protection under international humanitarian law to that received by men. As we know, and as the noble Baronesses, Lady Kennedy and Lady Kinnock, and others said, rape is used as an extremely effective weapon of war. Let me address the central question of UK-funded medical care for women and girls raped in conflict. Parties to an armed conflict are obliged to provide all wounded and sick victims of armed conflict with humane treatment. To the extent practicable and with the least possible delay, they are obliged to provide the medical care and attention required by the given condition without discrimination except on medical grounds. This includes appropriate life-saving medical care which, in our view, may include the provision of abortion to women raped in conflict if it is deemed medically necessary.

The UK military manual sets out the UK’s interpretation of international humanitarian law applicable to the operation of our Armed Forces. While it does not itself apply to aid funding, it is a useful interpretation of the international humanitarian law context in conflict zones. As the manual notes, and as my noble friend Lord Lester pointed out, where there is a direct conflict between national law and the fundamental obligation on parties to a conflict under Common Article 3 of the Geneva Conventions, the obligation is to comply with Common Article 3. That article provides that those not participating in hostilities should be treated humanely. It prohibits murder, torture, humiliating and degrading treatment and, of course, rape, and requires that the wounded and sick are collected and cared for. The denial of abortion in a situation that is life threatening or causing unbearable suffering to a victim of armed conflict may therefore contravene Common Article 3. Therefore, an abortion may be offered despite being in breach of national law by parties to the conflict or humanitarian organisations providing medical care and assistance. Clearly, this service provision very much depends on the facts of each situation but I state clearly that it is our view that there is no blanket ban on such medical help when covered by international humanitarian law even if national laws might be at variance with that.

I also assure my noble friend Lord Lester that DfID requires that all UK-funded humanitarian partners abide by humanitarian principles, including non-discriminatory provision of assistance. In conflict situations, DfID expects all medical humanitarian agencies to observe and abide by international law, including international humanitarian law, in the activities that they provide. DfID’s monitoring of projects focuses on how the agency has contributed to saving lives and alleviating suffering, and these findings inform our

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funding decisions. To be clear, in all funded humanitarian activities, the UK requires all its humanitarian partners to adhere to widely agreed international principles of humanitarian action: those of humanity, impartiality, independence and neutrality. All humanitarian assistance is provided on the basis of need and without discrimination on any grounds.

My noble friend Lord Lester also asked whether DfID has asked the ICRC to segregate its US funding from that of the UK. DfID respects the mandates and independence of its humanitarian partners and we do not ask the ICRC to segregate funds as it is fully aware of its obligations to different donors. We have flagged and will continue to flag the UK’s position to the ICRC.

My noble friend asked about the engagement with the United States on this matter, as did other noble Lords. DfID officials are in regular dialogue with both USAID and US-based international NGOs with regard to improving access to sexual and reproductive health services and rights. This includes reducing recourse to unsafe abortion. We recognise the challenges faced by the US Administration in reopening the interpretation of the Helms amendment, but I am happy to assure my noble friend and other noble Lords that we will flag this debate, with its forceful concerns expressed about the reproductive rights of women raped in armed conflict, to US colleagues. I can tell the noble Baroness, Lady Kinnock, that we are exploring further the Norwegian position with our counterparts there. I can also assure the noble Lord, Lord Collins, of our commitment to UN Women. We recognise the importance of that, and DfID has been a strong supporter since the very beginning.

I was asked by the noble Baroness, Lady Tonge, about research. There is a fund of up to £25 million for research and innovation, which will focus on the prevention response to violence against women and girls in conflict and humanitarian situations. However, I think that the noble Baroness was asking whether research was needed in order to produce clarification. I trust that I have produced the clarification that noble Lords were seeking.

This debate goes to the heart of our responsibility to protect women and girls around the world, and especially when they are at their most vulnerable in places and times of conflict. As we have heard, rape is so terribly often used as a weapon of war. I assure noble Lords that the UK will continue to work to prevent violence against women and girls and to improve access to appropriate non-discriminatory medical care including services for abortion care in situations of armed conflict.

8.51 pm

Sitting suspended.

Public Service Pensions Bill

Committee (1st Day) (Continued)

8.59 pm

Amendment 31 had been retabled as Amendment 28A.

Clause 3, as amended, agreed.

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Amendment 32

Moved by Lord Whitty

32: After Clause 3, insert the following new Clause—

“Local Government Schemes: exclusion

Nothing in this Act shall be taken as allowing the Treasury to de-fund any individual fund in the Local Government Pension Scheme or to transfer the fund’s assets to HM Treasury and the liabilities to the ONS national accounts.”

Lord Whitty: My Lords, this is an amendment that reflects some of the anxiety in local government and other circles about what the Treasury’s ultimate intention is in relation to public sector schemes. The Minister may be gratified to know that I do not expect him to accept the amendment wholesale tonight, either in this form or in some other form within this Bill, but I hope that he will give sufficiently reassuring words that the matter dealt with in the amendment is not the intention, and that there will be some way of making sure that it is not.

The anxiety stems from a number of things. We all know that the Treasury likes to control things. We also know that the Treasury does not like to see the possibility of costs that it does not control but that will count against the public borrowing requirement—albeit that that definition is ludicrously wide compared to most other countries. The Treasury also likes to see large sums on the asset balance sheet. On the other hand, the Treasury likes to deal with liabilities on a pay as you go basis rather than on a long-term funded basis. When looking at the attempt to corral the local government scheme into the same box as the unfunded public sector schemes, where the funding has gone up and down significantly over the decades, all these things might suggest the possibility that if any of the 89 different local government schemes were seen episodically to be failing, the Treasury might take the opportunity to step in and take it over, or perhaps to take over large chunks of the local government scheme.

Local government schemes consist of 89 different schemes, mostly local authority. By and large, they are well run, professionally organised and based on very solid professional advice, and generally they take steps to ensure that the income is changed if the long-term prospects alter significantly. But, of course, in the current economic climate there has been some serious turmoil. The local government scheme of which I was recently chair went from a funding position of 114% down to something under 70% and back up again to 90% in the past four years, which was almost entirely due to the way in which the world stock markets have gone down, with the value of equities and other stocks, and also—and I shall return to this in a subsequent amendment—to the way in which liabilities are valued. At times, it looked as if there was danger of those funds not being sustainable even in the short term.

There is a possibility of the Treasury not liking to face the possibility that it is seen as the underwriter of last resort, which currently it is, although I notice that the noble Lord, Lord Flight, who is not in his place, is attempting to remove that position later on in the Committee’s consideration. In reality, there have been no historic examples of default, but nevertheless there

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could be an opportunity of the Treasury stepping in, saying that the fund is badly run and that it is going to take it over, count the assets against central government assets and push the liabilities into the long grass.

There is a precedent for this situation, and a rather large one—that of the Post Office pension scheme. Both Governments are guilty of this, although the current Government actually implemented it. It was a very large scheme and, because of previous pension holidays taken by the Royal Mail pension fund, it was somewhat underfunded. Somewhat to our surprise, the Treasury agreed to take over the scheme directly. Part of that was to soften people up for privatisation, but another part of it was that it immediately got the Treasury £26 billion on the asset side of their balance sheet, whereas the liabilities, although they are still there legally and contractually and will have to be met, actually disappear from that balance sheet in the general fund.

If that could happen in a scheme as large as the Post Office scheme—and there is the possibility of a predatory Treasury down the line—then it could happen in relation to failing or allegedly failing local government schemes. The reality is that the boards of the local schemes and the national board would need to take steps within the LGPS to ensure that such schemes did not fail, or that if they failed they would merge with other local government schemes. That responsibility to intervene at the first sign of danger rests within the LGPS, not with the Treasury.

There is a serious suspicion that the blurring between an independent local authority-based wholly funded scheme, and this scheme’s provisions for greater Treasury surveillance, could go further, and that it could allow the Treasury to seize control of a local authority fund in the circumstances that I have described, but possibly in other circumstances as well. I have put this amendment down for the resolution of that suspicion. As I have said, I do not necessarily expect the Minister to accept this amendment, but I would like, in the course of either this or the next stage, an unequivocal declaration or a different form of words in the Bill that make it clear that the Treasury would not act in this way in relation to local government schemes. I beg to move.

Lord Newby: My Lords, this amendment seeks to provide assurance that the Treasury could not take away the assets of the pension funds or place the liabilities of the local government pension schemes on to the Government’s books. I hope that I can reassure the noble Lord, Lord Whitty, that the Government have no intention of doing so, and for a very good reason.

The noble Lord, Lord Hutton, considered the funded nature of the local government pension schemes and concluded that they should continue on that basis, and we agree. Local authority pension funds allow local government to manage its liabilities efficiently and ensure the solvency of the scheme both at a local level and as a whole. Moving to an unfunded model in the local government schemes would risk greater volatility in the costs, and therefore the demands on local taxpayers. In practice, taking on the assets of local government schemes would also mean taking on the liabilities, which would have a greater cost for central government

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and would therefore make no economic sense. Neither would winding up any of the existing funds make economic sense. That would cost the Government far more in making provision to secure annuities for rights already built up than it would gain the Government in terms of assets.

Furthermore, there are significant legal barriers. It took explicit powers in primary legislation to move the pension assets of the Royal Mail. There are no such explicit powers in this Bill. For the avoidance of doubt, any suggestion that the Government took on the pension fund of the Royal Mail in order to improve the figures, knowing as they did that they were incurring a very significant liability in the long term, is simply misplaced. It was, as the noble Lord put it—although I would not put it in quite the same terms—part of the necessary process of preparing the Royal Mail for privatisation.

When debating closure we have said in your Lordships’ House, in another place and outside Parliament that we have no intention of winding up the existing schemes. Indeed, we have amended the Bill on a number of occasions to allay these fears. The Government, therefore, have no intention of defunding the local government pension schemes, for the very good reasons that I have set out.

I hope that I have reassured the noble Lord, Lord Whitty, that any fears that he might have about the LGPS funds are entirely unfounded, and that this amendment is therefore not necessary.

Lord Whitty: My Lords, I thank the Minister for that reply, which provides a fair degree of assurance. I will read the precise words then consult colleagues in local government as to whether that is sufficient. However, I thank him for his reply. I agree that the Post Office was a bit more complicated, but on the other hand there are suspicions out there, and it is part of the distrust to which reference was made earlier that such fears are around. The Government have to ensure that they pacify those fears. I hope that the Minister’s words will help to do that. Meanwhile, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Schedule 3 agreed.

Clause 4 : Scheme manager

Amendment 33

Moved by Lord Whitty

33: Clause 4, page 2, line 38, at end insert “or, in the case of the Local Government Pension Scheme, the relevant authority as defined in section 5(7)”

Lord Whitty: My Lords, in moving Amendment 33, I will refer also to the other amendments with which it is grouped.

Clauses 4 and 5 provide that scheme regulations must provide for a person to be responsible for managing or administering a public service pension scheme set up under Bill powers, and any other statutory scheme

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connected with it. In the case of the LGPS, the agreement reached between the unions, the LGA and the DCLG specified the need for a national board, as proposed in the report of the noble Lord, Lord Hutton, in order to give it a national focus in line with the treatment of other public service schemes. The national scheme board would have concerns for the scheme at national level, with a central focus to ensure efficient and effective overall management of the LGPS. Therefore, the LGPS effectively requires two boards—one at the national level and one at the local scheme level—to ensure effective separation of responsibilities.

We need to clarify this. In commitments given in another place and elsewhere, the Government have already attempted to clarify that this would indeed be the case. However, we would like to see the clause amended or strengthened to separate clearly the role of scheme manager and scheme board—that is the other point of these amendments—which would be achieved through Amendments 36 and 44. Separating the roles through these amendments should provide for more robust management of any conflict of interest. As I say, the Government have reassured me to some extent on this point. It is possible that government Amendment 45, which we will come to later, will provide some clarity in terms of the distinction. I will respond to the Minister, if necessary, when we reach that amendment.

Amendment 126 to Clause 23 deals with contributions to other pension arrangements. Clause 23, as drafted, implies that there is an ability for scheme employers to make contributions to private occupational schemes virtually as an alternative to the schemes set up under the Bill. If that were a general power, it could result in scheme employers offering those schemes rather than the LGPS, which would have serious consequences, including knock-on effects on contributions for employers and members of the LGPS. There would also be demands from other employers running separate schemes for crystallisation payments from those who have transferred or did not take up the LGPS scheme. The ability of employers to pay into other schemes is available in exceptional circumstances but this clause as drafted seems to make it a general provision. However, I think that it needs to be available only in exceptional circumstances, as it is under the existing regulations.

Amendment 127 deals with Schedule 8 and revaluation methodology. The schedule contains relatively minor and consequential amendments to primary legislation. Pensions payable by the LGPS are revalued using the scheme set out in the Pensions (Increase) Act 1971. The amendment is required to enable the same methodology to be used for revaluation during service to continue once a scheme member is in receipt of their pension. That would provide the clarification needed to ensure that members’ benefits are revalued correctly in retirement. I beg to move.

9.15 pm

Lord Eatwell: My Lords, my noble friend has made some interesting and important points. One of the issues that really need to be faced, on Report in particular, is that in the negotiations that followed the Hutton report, Local Government Employers, the

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unions and the Government managed to formulate what could be called a “deal” about the way in which pensions were to go forward. Regrettably, elements of that deal do not appear in the Bill. In response to challenges in the Commons, Ministers gave assurances on a number of occasions but, given that this is expected to be a Bill lasting 25 years, covering several Administrations, these assurances should be in the Bill. A deal is a deal and simply going back to assurances is, at least partially, reneging on the deal.

Having said that in support of my noble friend, I will now speak to Amendment 35, which is also in this group. My noble friend Lord Hutton’s report recommends:

“Every public service pension scheme (and individual LGPS Fund) should have a properly constituted, trained and competent Pension Board, with member nominees, responsible for meeting good standards of governance including effective and efficient administration.”

One can understand why my noble friend recommended this given that, as my noble friend Lord Whitty has commented, there are 89 local government pension funds, with over £150 billion of assets under management, as well as the other pension schemes. Clause 1 currently provides for the establishment of a pension board for a scheme but leaves it completely unclear whether there is a requirement for one pension board for each fund in the Local Government Pension Scheme. Under the clause as drafted, it would be perfectly possible to have one pension board for all 89 pension funds—that is not ruled out. The Minister in another place said the combined effects of Clauses 4 and 5 rule this out. I have studied these clauses carefully and have taken advice, and have been assured that they do not rule this out. Indeed, one could have various combinations of boards servicing the 89 LGPS funds and other schemes.

Given that, as the Hutton report says,

“all scheme members deserve to know that their scheme is being properly run”,

it is entirely desirable to make clear in the Bill that a pension board for each pension fund is a prerequisite, both as a measure of efficient management and to give confidence to the members of individual schemes that they have a board that they can identify with and have access to. I will, in due course, ask the Minister to consider carefully taking on board Amendment 35 to give suitable clarity to what is meant by the establishment of pension boards and ensure that there is a pension board for each scheme.

Lord Newby: My Lords, the noble Lord, Lord Whitty, has proposed Amendments 33, 36, and 44, which are concerned with ensuring that there is a scheme manager and pension board for each local authority pension fund. The amendments also provide for national pension boards in the Local Government Pension Scheme. Amendment 35, tabled by the noble Lord, Lord Eatwell, raises much the same issue.

Both noble Lords seek assurance that there must be a pension board for each local authority pension fund within the local government scheme. I can reassure them on that point. Police, fire and local authorities will be scheme managers in respect of their part of the pension schemes for those workforces. The effect of

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Clause 5 is that the scheme regulations must provide for a pension board to assist each scheme manager in that role. It follows that there will be a pension board for each scheme manager.

Noble Lords may say that Clause 4 does not in explicit terms require there to be a scheme manager for each local pension fund, and hence a pension board also for that fund, but that is the purpose of Clause 4(5). The intention is also clear from Clause 5(6). This anticipates that the scheme managers of locally administered funds will be the local authority or a committee of the authority.

Amendment 36 is also concerned with requiring national pension boards to be established in the Local Government Pension Scheme for England and Wales, and the one for Scotland.

Lord Eatwell: I ask the noble Lord to return to the point he just made, because it is similar to a point made in another place. There is a scheme manager for each scheme. Clause 5(1) states:

“Scheme regulations for a scheme under section 1 must provide for the establishment of a board with responsibility for assisting the scheme manager”.

That does not suggest that there should be a board associated with each scheme manager. It does not say that, but a board might be just one gargantuan board that serves a variety of scheme managers. I quite understand that the noble Lord is sympathetic on this issue and wishes to assure us that that is what the Government mean but it is not what they say.

Lord Newby: My Lords, that is what we mean and I am advised that that is what the clause says. I will look at it again and if there is any further clarification that I can give the noble Lord, I will write to him. I think that we just have a difference of view about what the current provision states.

Amendment 36 would require national pension boards to be established in the Local Government Pension Scheme for England and Wales, and the one for Scotland. We cannot support these amendments but, as the noble Lord, Lord Whitty, will be aware, we have tabled Amendment 45 to deal with that issue, which we will consider in due course. When we do, I hope that the noble Lord will be persuaded of it.