10 Nov 2014 : Column GC1

Grand Committee

Monday, 10 November 2014.

Arrangement of Business


3.30 pm

The Deputy Chairman of Committees (Baroness Stedman-Scott) (Con): Good afternoon. I remind noble Lords that should there be a Division in the House, the Committee will adjourn for 10 minutes.

Immigration Act 2014 (Bank Accounts) Regulations 2014

Immigration Act 2014 (Bank Accounts) Regulations 20148th Report from the Joint Committee on Statutory Instruments

Motion to Consider

3.30 pm

Moved by Lord Newby

That the Grand Committee do consider the Immigration Act 2014 (Bank Accounts) Regulations 2014.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

Lord Newby (LD): My Lords, the Government recognise and welcome the benefits that migrants bring to our country. However, they also recognise the need to deter people from attempting to enter the country unlawfully and to ensure that those who are here illegally are encouraged to leave. As part of the Government’s reform of the immigration system in the Immigration Act 2014, action is being taken on illegal migrants’ access to services. Effective immigration controls require responsibility to be shared—between government, local public service providers, employers, landlords and other private service providers—for denying illegal migrants the means to establish themselves here unlawfully. That is why the Government are bringing forward this legislation to prevent known illegal migrants accessing banking products and services in the UK.

From 12 December 2014, banks and building societies will be prohibited from opening current accounts for illegal migrants unless they have first checked the applicant’s immigration status with a specified anti-fraud organisation or a specified data-matching organisation. Where this check identifies that the applicant is a “disqualified person”—that is, an illegal migrant that the Home Secretary considers should be denied access to a current account—the bank or building society must refuse to open the account. These measures will make it more difficult for illegal migrants to establish a viable life in the UK by closing the gateway to transactional banking and lines of credit.

The two orders we are considering today specify which current accounts will be within scope of the prohibition. The regulations will enable the Financial Conduct Authority to make arrangements for monitoring and enforcing compliance with the prohibition imposed on banks and building societies. Before discussing the

10 Nov 2014 : Column GC2

detail of the instruments themselves, I will first remind the Committee of the Government’s intentions for the banking provisions within the Immigration Act.

The legislation is designed to prohibit banks and building societies from opening current accounts for those who are present in the UK and who require leave to remain in the UK, but who do not have it. The prohibition will apply only to illegal migrants whose details have been notified by the Home Office to an anti-fraud or data-sharing organisation. The Home Office has already specified that this will be CIFAS—the Credit Industry Fraud Avoidance Service. The Home Office will notify CIFAS of illegal migrants who have exhausted the immigration process and are liable to removal from the UK. This will not include people who have an outstanding application or appeal. The prohibition does not require banks and building societies to check immigration or identity documents presented by the customer. Instead, they will be able to undertake electronic checks against the data provided by CIFAS.

The decision to limit the scope of this measure to current accounts provided by banks and building societies ensures that the measure is proportionate. This will ensure that smaller deposit-taking institutions, such as credit unions, are not impacted by these measures. We have also decided that the prohibition should apply only to current accounts, as they serve not only as a product for day-to-day transactional banking but also as gateways to further financial services and lines of credit.

I should make it clear that, in the view of the Government, a current account is intended to be used principally for conducting day-to-day banking activities. Such an account would be expected to provide functionality to hold deposits and make withdrawals without having to give notice. It would also typically enable the customer to receive and make payments through a number of different methods, including by cheque, direct debit, standing order, continuous payment authority or other electronic payments. Withdrawals, money transfers and other payment transactions can typically be conducted through various channels, including ATMs, branches and online, mobile or telephone banking. Many current accounts also have overdraft facilities. For the purposes of the Immigration Act, “current accounts” should also include basic bank accounts.

The prohibition does not apply to savings accounts, which, in the Government’s view, are intended to be opened for the primary purpose of accruing savings and not for day-to-day transactional banking, although they may provide some of the functionality described above. Savings accounts have been deliberately excluded from the provision as they do not act as a conduit to further financial products in the same way as current accounts. This will also ensure that smaller institutions which only offer savings accounts are not unduly burdened.

I now turn to the statutory instruments themselves. Following initial publication of the Bill, the banking sector raised concerns that the range of current accounts within scope of the prohibition might be too broad and could include accounts that were outside the Government’s initial policy intention. For example, concerns were raised that accounts of large companies

10 Nov 2014 : Column GC3

would, unnecessarily, be covered by the prohibition. The Government’s intention through this legislation has been to stop illegal migrants from opening current accounts in order to prevent them accessing other products such as credit cards, mortgages or mobile phones, and thereby establishing themselves illegally in the UK. We have listened to the concerns raised and agree that the legislation, as it stands, goes further than necessary to achieve this aim.

The effect of the two orders, taken together, is to limit the scope of the prohibition to current accounts that are operated by or for consumers, microenterprises—that is, companies with fewer than 10 employees and an annual turnover or balance sheet total of no more than €2 million—and charities with an annual income of less than £1 million. These categories are consistent with the definition of a “banking customer” already in common usage in the banking sector and set out in the FCA’s existing Banking Conduct of Business Sourcebook.

Including consumers, microenterprises and charities within the ambit of the prohibition is also consistent with the distinction that the FCA already makes between the conduct of banks and building societies with respect to these retail banking customers and to other customers such as large corporations. This will make it easier for the banking sector to comply with the Act and for the FCA to enforce the prohibition at Section 40 of the Act. By retaining microenterprises and charities within the prohibition, the amendment will also make it more difficult for illegal migrants to circumvent the prohibition set out in Section 40 of the Act. Illegal migrants will be unable to set up as a sole trader, for example, in order to open a current account.

In summary, the Government believe that this approach strikes the right balance between ensuring that the prohibition is appropriately targeted and minimises the burden on businesses while still preventing obvious avoidance schemes.

I turn to the monitoring and enforcement of the Act. It is important that a relevant body is equipped with the necessary authority and powers to monitor and enforce the requirements in the Act. The Immigration Act 2014 (Bank Accounts) Regulations 2014 therefore give the Financial Conduct Authority the power to monitor compliance with the Act and to further investigate firms when necessary. As the conduct regulator for deposit-taking institutions, the FCA is well placed to regulate, monitor compliance with and enforce these provisions. The regulations require banks to provide the FCA, at the latter’s direction, with information in respect of compliance or non-compliance with the requirements of the Act. They will also oblige firms to retain records relevant to compliance or non-compliance for a minimum of five years. It is also important that there are proper sanctions against individuals or institutions that fail to comply with the Act’s requirements.

That is why we are equipping the FCA with the power to levy financial penalties, of such amounts as it considers appropriate, on any firm that it considers has breached the prohibition in Section 40 of the Act or breached a requirement of or under the regulations. The regulations will also allow the Financial Conduct

10 Nov 2014 : Column GC4

Authority to restrict the deposit-taking permissions of an institution that it considers has contravened a relevant requirement and to publish a statement naming any such institution. These sanctions will act as a clear deterrent and help to ensure compliance with the prohibition imposed on banks and building societies. I commend the regulations to the Committee.

Lord Tunnicliffe (Lab): My Lords, the Opposition will not in any way oppose these three statutory instruments, but we have some small questions. The impact assessment created more questions than it answered. First, how many people will be impacted by these regulations? The impact assessment states, I think, that there are 60,000 disqualified persons and then uses a questionable bit of logic to suggest that 2,000 of them might be impacted. Does the Minister agree with that estimate or feel that the actual figure might be somewhat less?

The impact assessment implies that the net present value of the cost of the exercise is £2.7 million. I had some trouble between the pages but I think that that is what it states on page 8—that there will be £2.1 million set-up costs and £0.6 million of ongoing costs at net present value. It is difficult to feel bad about that £2.7 million as it will be paid for by the banks, but, nevertheless, it is not an insubstantial sum if the impact is going to be de minimis. The impact assessment leads one into even greyer territory when it comes to the benefits. A benefit prayed in aid was that there might be fewer people to seek out and move out of the country, and the impact assessment offered an incredibly precise estimate of the cost of exiting a disqualified person, with a range from £400 to £60,100. That is a pretty heroic estimate with no indication of where in that range these individuals might fall or how many of them there might be.

I am trying to envisage a situation whereby any individual would come into this position. It seems to me that the provision could only apply against an individual who, for all other reasons, could reasonably expect to open an account with a bank. As I understand it, when one is an asylum seeker, you may open a bank account if a bank will allow you to open a bank account. There is no prohibition against an asylum seeker opening a bank account, and these orders create no such prohibition, if I have understood them properly. I would be delighted if I am wrong. My understanding is that if you are an asylum seeker and you can satisfy a bank in every other respect, the fact that you are an asylum seeker is not a reason for prohibition.

It seems to me that any asylum seeker of sufficient sophistication to intend not to leave the country when they become a disqualified person and who wants to have a current account will have the wit to set up the account before they become a disqualified person. We know from today’s Question Time that the period that they are an asylum seeker as opposed to a disqualified person is frequently very long. It seems to me that most people who are in this situation will disappear into the black economy and not need a bank account. However, the small number who are going to do this period as a disqualified person in a sophisticated way which requires a full bank account will surely have set

10 Nov 2014 : Column GC5

up a bank account beforehand. As I understand it, the order does not require a bank to close an account when it is notified that somebody who has a bank account has become a disqualified person. I would be grateful if the Minister would tell me if I am right or correct me for the record.

3.45 pm

Finally, I have to admit that I have stolen most of those points from the debate in the other place—so I hope the Minister has already had a chance to check them out. I understand that when it comes to regulations, there is a one-in, two-out policy. I have always felt that regulations should be in if they add value to the community and out if they do not—there is little other calculation. Nevertheless, I believe that the Government have a one-in, two-out policy. Does the one-in, two-out policy apply to these regulations, or are they covered by a one-in, no-out policy, or, indeed, even by a three-in, no-out policy?

Lord Newby: My Lords, I am grateful to the noble Lord, Lord Tunnicliffe, for his support for these regulations. He asked how many people are likely to be affected by them. The impact assessment has made an estimate of approximately 2,000 people. As it happens, it is estimated that, in 2013, almost 2,000 people were the subject of Home Office data shared with CIFAS, who were then refused current accounts in 2013. So, in 2013, getting on for 2,000 people were refused current accounts. On the basis that this legislation extends the scope of the scheme to some number of—

Lord Tunnicliffe: In 2000, as I think the Minister has just quoted, this scheme was not in place, so I assume that those 2,000 people were refused for other reasons, such as their creditworthiness, or as potential launderers, or whatever. It was nothing to do with their being asylum seekers, as I understand the logic.

Lord Newby: Not with being an asylum seeker; but banks that were already signed up to CIFAS were already, before this legislation, as a matter of course, referring to CIFAS as regards whether a person was an illegal immigrant. The banks that were doing that already were refusing about 2,000 current accounts in 2013. It is reasonable to expect that the figure will be 2,000, or something slightly more than that, as we expand the number of banks and building societies that are covered by the scheme. It is obviously impossible to know exactly, but that gives you an idea of the order of magnitude. You are almost certainly talking about a small number of thousands rather than a few hundred or tens of thousands. I think that that must be the scale of the impact of the legislation or the process.

The noble Lord asked whether, given the cost of implementing the scheme, it was worth it. We believe that it is worth it. The annual cost to banks and building societies is only £200,000, which is relatively modest. The set-up cost, although greater in the overall scheme of things, is relatively modest.

The noble Lord asked about the situation of a legitimate asylum seeker who is going through the process and opens a bank account. What happens if,

10 Nov 2014 : Column GC6

at the end of the process, they are not given asylum and are required to leave the country? We have taken the view that only new bank accounts should be covered by these regulations, and therefore if there is an existing bank account which it subsequently transpires is operated by an illegal immigrant, the law under these regulations will not require the bank to close that account. The view was and is taken by the Government that the approach we are adopting is proportionate and that to go beyond what we now propose would impose an unnecessary burden on the industry.

The noble Lord asked about one-in, two-out. I am told that this qualifies as one-in but, of itself, it is obviously not contributing to the two-out because it is a new regulation. The Government are committed over a period, taking all the activities of government, to end up with two out for every one in. This is an in, but there are lots of other outs, including some of the measures going through in the Deregulation Bill, almost literally as we speak. As the noble Lord is aware, the Government are absolutely committed to reducing the burden of regulation and we believe that the broad approach of having two out for every one in makes a major contribution to that effort.

With those responses, I hope that I have satisfied the noble Lord, and I commend the regulations to the Committee.

Motion agreed.

Immigration Act 2014 (Bank Accounts) (Amendment) Order 2014

Immigration Act 2014 (Bank Accounts) (Amendment) Order 20148th Report from the Joint Committee on Statutory Instruments

Motion to Consider

3.51 pm

Moved by Lord Newby

That the Grand Committee do consider the Immigration Act 2014 (Bank Accounts) (Amendment) Order 2014.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

Motion agreed.

Immigration Act 2014 (Bank Accounts) (Prohibition on Opening Current Accounts for Disqualified Persons) Order 2014

Immigration Act 2014 (Bank Accounts) (Prohibition on Opening Current Accounts for Disqualified Persons) Order 20148th Report from the Joint Committee on Statutory Instruments

Motion to Consider

3.51 pm

Moved by Lord Newby

That the Grand Committee do consider the Immigration Act 2014 (Bank Accounts) (Prohibition on Opening Current Accounts for Disqualified Persons) Order 2014.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

Motion agreed.

10 Nov 2014 : Column GC7

Statutory Shared Parental Pay (General) Regulations 2014

Statutory Shared Parental Pay (General) Regulations 20148th Report from the Joint Committee on Statutory Instruments

Motion to Consider

3.52 pm

Moved by Lord Bourne of Aberystwyth

That the Grand Committee do consider the Statutory Shared Parental Pay (General) Regulations 2014.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

Lord Bourne of Aberystwyth (Con): My Lords, I beg to move that the Statutory Shared Parental Pay (General) Regulations 2014 be considered by the House. In doing so, I shall speak also to the Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014 and the Shared Parental Leave Regulations 2014.

We are here today to consider changes to the law on family-related leave and pay. These changes started with the Children and Families Act 2014, which enables Parliament to make regulations introducing shared parental leave and pay. These regulations give qualifying working parents a new statutory right to share leave and pay where the mother has taken, or intends to take, less than her full statutory maternity entitlement—that is less than 52 weeks’ leave in the case of maternity leave, and less than 39 weeks’ pay in the case of statutory maternity pay or maternity allowance. The new system will apply to working parents who are expecting a baby which is due on or after 5 April 2015. These regulations put in place the overarching legal framework for shared parental leave and pay and set out how this will work in practice.

Noble Lords may be wondering why it is necessary to make these changes. They are required because the laws on maternity and paternity leave and pay that we have now are rigid and inflexible. They have failed to keep pace with the modern family and the modern workplace.

Looking first at the modern family, the current law assumes that the child’s mother is always the main carer. This is clearly not the case for many families, as women now make up almost half of the United Kingdom’s workforce. The role of women in the workplace has changed dramatically since women were given rights to maternity leave and pay in the 1970s. In nearly a third of households, women are the main earners. It is therefore unsurprising that many women choose to return to work sooner than they would have done historically. Women return to work for a variety of reasons, including financial reasons, as well as a desire to avoid any setbacks to their career or work prospects that may follow a prolonged period of absence from the workplace. The changes to the law that we are considering are therefore partly about reflecting modern life. The regulations before us restructure the legal framework to make it easier for mothers to stay in the labour market, if they wish to do so.

10 Nov 2014 : Column GC8

The Government also have a more ambitious agenda. We want to facilitate a cultural shift towards the removal of outdated beliefs about the role of fathers and partners in caring for their children. Evidence shows that where fathers and partners are involved early on in the life of the child, they are more likely to stay involved and that there are positive benefits not just for the children but for society generally. However, the current law propagates outdated assumptions. Instead of supporting fathers and partners who want to play an active role in caring for their children, it hinders them by placing constraints around how much time they can take off from work.

The current arrangements can be unhelpful to fathers and partners who want to, or who out of necessity have to, be the primary carer. The current law enables fathers and partners to take one or two weeks’ paternity leave within the first eight weeks following birth—a position that will remain the case after these regulations are passed—and further leave later on, but only if the mother has returned to work, whereas those regulations will be subsumed by the regulations before us. In short, parents, including fathers, have some choice about who cares for their children, but it is a limited choice. The Government believe that working parents should be able to decide for themselves which of them is best placed to care for the child. We do not want to force arrangements on working parents which may not work for them or their employers. We believe that fathers and partners should be able to be the primary carers, if the parents wish that, and that mothers who want to work should be given rights which make their transition back to work easier.

Shared parental leave and pay enables fathers and partners to be the main carers if they so wish, both parents to spend time at home together and the parents to stagger their leave so that one of them is at home when the other is at work. In enabling them to share the responsibility for the care of their child, we enable both parents to maintain stronger links with the labour market. As I am sure noble Lords will agree, enabling employees to maintain links with the labour market and individual employers has many benefits for business. These include lower staff turnover and therefore lower recruitment and training costs. Employees who have a better work/life balance are also likely to take less sick leave and to have higher levels of commitment to their employers and work generally.

The Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations would specifically enable a mother to give her employer notice to end her maternity leave early, on a date which she chooses, and to indicate that she or her partner intends to take shared parental leave. The word “curtailment” in the title of the regulations is perhaps unfortunate; it gives the impression that something is being lost by this when in reality it is an option to share the leave with the father or partner.

Once notice has been given, there are only very limited circumstances in which the mother can reverse her decision. The mother needs to end her maternity leave early to create shared parental leave for her and

10 Nov 2014 : Column GC9

her employed partner to take. In essence, the untaken balance of the mother’s maternity leave is used to create the shared parental leave. Where the mother creates shared parental leave by giving her employer binding notice, her employed partner can start to take some or all of this leave while the mother is still on maternity leave, so that both parents can be at home together with their child if they so wish. Because the mother chooses the date when her maternity leave will end, she remains in control of the number of weeks of maternity leave that she takes. If she wants to take the full 52 weeks of maternity leave to which she is entitled, she can do so. This is the default position if the mother does not opt into shared parental leave.

4 pm

The Shared Parental Leave Regulations and the Statutory Shared Parental Pay (General) Regulations provide the nuts and bolts of the new system. They set out how shared parental leave and pay work: for example, how parents calculate how much shared parental leave they can take and when they can take it.

In contrast to maternity leave, which has to be taken in a single block of consecutive weeks, shared parental leave can be stopped and started again, with the employee returning to work between periods of leave, if they wish. The regulations provide for that. For example, an employee could return to work between periods of shared parental leave to complete a particular project or during a period when the business is particularly busy. The Committee will be able to see how that arrangement might work for certain employers or be attractive to certain employees: for example, those who are reliant on commission to make up their wages or salary.

The regulations also enable an employee to claim up to 37 weeks of statutory shared parental pay while they are on shared parental leave and enable employees and workers who are not eligible for leave to create statutory shared parental pay for their employed partner to take. The statutory shared parental pay is created from untaken statutory maternity pay or maternity allowance. The pay is based on the mother’s salary or on the maternity allowance.

The regulations give employees who are on, or intend to take, shared parental leave similar protections to employees on maternity or paternity leave. They ensure that the employee is not treated less favourably than other employees because they have exercised their statutory right to take the leave. They also balance the needs of the parents with the needs of their employers, who understandably want to know when their employee will be absent from work on shared parental leave in order to plan for the employee’s absence. The regulations do that by linking entitlement to shared parental leave and pay to the employee giving their employer adequate notice of both their entitlement to leave and periods of absence. With very limited exceptions—which include early births—the employer must receive at least eight weeks’ notice of any periods where the employee will be absent from work on shared parental leave. If an employee fails to give sufficient notice, they will not be eligible for the leave or pay.

10 Nov 2014 : Column GC10

The regulations are necessarily detailed in places, as we need to provide for the wide variety of circumstances that parents may encounter. For example, the regulations need to cater for exceptional events such as the sad death of the child or one of the parents. The Government are providing guidance and tools to help working parents and their employers to understand and use the new shared parental leave and pay system.

The Committee may be wondering what happens in the case of adoptions and civil partnerships. I have deliberately talked about birth parents, as they make up the vast majority of employed parents who will be eligible for shared parental leave and pay, but in the two other cases, they apply mutatis mutandis, in just the same way. I assure the Committee that the provisions in the regulations apply equally to parents who have a child placed with them for adoption on or after 5 April 2015 and similarly apply to civil partnerships.

In summary, the regulations provide the legal structure for shared parental leave and pay which is needed for the new system to work in practice. The provisions contained in the regulations are made under the powers introduced through the Children and Families Act 2014. They are in line with statements made in the course of debates on the Bill during its passage through Parliament, and the policy on shared parental leave and pay was consulted on extensively. I therefore trust that the Committee will be able to support these statutory instruments, and I commend them to the House.

Baroness Turner of Camden (Lab): My Lords, in general, I support the regulations, because I understand that the thinking behind them is to enable both parents to come together to care for the child; obviously, one supports that.

However, I should like to raise one or two issues with the Government, just for clarification. Incidentally, I thank the Minister for the detailed paper that has been issued in support of the regulations. The regulations stipulate that for an eligible mother to meet the requirements for a shared allowance and so on, she must curtail her maternity or adoption leave in order that the curtailment can be used to support the new shared parental provisions.

This could give rise to some problems here and there, because not every couple is married and not every couple is living together. The mother might have difficulty contacting the father to enable them to come to an agreement in relation to the shared provision provided for in these regulations. One has to remember that relationships are not all exactly as we would wish them to be. People do not always live together—they may have a child together but may not live together, and the woman may therefore have the obligation placed on her of trying to sort things out and make sure that the shared rights are available. If she has to curtail her own share, that may be a bit more difficult. Have the Government thought about this? We are of course working in this situation where not everybody is in married partnerships or even living together. Nevertheless, we want to ensure that both parents

10 Nov 2014 : Column GC11

participate in looking after the child, when the child needs to be looked after, and that the rights under the regulations are properly shared between the two parents.

Baroness Brinton (LD): My Lords, the legislation in the Children and Families Bill went through extremely smoothly. In fact, I think it was one of the smoothest things I have seen in the four and a half years since I came into the House because all sides welcomed the introduction of parental leave. Just looking at noble Lords around the Grand Committee, I do not remember any amendments at all during the passage of the Bill, which was very encouraging. I am principally glad—I am delighted that my noble friend outlined this at the start—that the interpretation of “family” in Regulation 3 gives a clear picture that it comes in all shapes and sizes, including same-sex partnerships. The issue about the family unit is a difficult one but I hope this also covers the point made by the noble Baroness, Lady Turner, that a family is not always at the same address. Recognition of that about the family unit is most important and is a major step forward for government. Let us hope that employers are as encouraging. I am delighted to see that adopters have the same entitlement to leave. It is even more essential when a child may have had a distressing start to their life to be able to have that relationship with both of their new parents.

I have two questions, which are not so much about the regulations but about their application. The first relates to Regulation 17, which modifies the eight-week regulation where a child is born early. I have a nagging worry that employers might use these regulations to be less than compassionate to a partner where the mother and the baby might still be in hospital. If the baby is in a neonatal intensive care unit, could the employer say, “Well no, the mother is using the leave and therefore you can’t”? It is quite possible these days for a baby to be in a neonatal intensive care unit for more than the eight weeks covered by the early period after birth. The second question refers to the following regulation, on change of circumstances. Can the Minister provide some reassurance that there will be monitoring of employers saying that it is not convenient to change arrangements at fairly short notice? If this becomes a default reason for refusing change, it will be defeating the object of the regulations.

Part 5, on taking shared parental leave, includes a regulation looking at protection from detriment. There is some concern over the right to return after shared leave in Regulation 41 that the job the partner can go back to is broadly in sympathy with the job that the mother can return to. I think it would be wrong for a partner to have a less robust facility to go back to their prior job. It would be reassuring to hear that that is the case.

Will there be codes of practice for employers on how they can liaise with each other when dealing with this arrangement between a mother and a partner trying to break down the leave between themselves, particularly in relation to statutory maternal/paternal pay?

On a positive note, I know of at least one young couple who have delayed starting their family until this comes into place because the partner works for a

10 Nov 2014 : Column GC12

very open-minded organisation and he would like to test it on extended parental leave at a fairly early date.

Finally, we need some really good evidence of how this is being used to encourage employers and prospective parents that this is something that will really change the nature of a child’s first year’s relationship with both their parents.

Lord Young of Norwood Green (Lab): My Lords, I thank the Minister for his comprehensive reply. I do not know whether this is his first time in this Room. If it is—I think it must be—I offer him a warm welcome. My only complaint is that the progress made under the previous Government was given rather short shrift, if the Minister does not mind me saying so, so I will give a little historical background. The Labour Government transformed rights for women and families in order to help them balance earning a living and caring for their family. Over 13 years, Labour extended paid maternity leave to nine months and the right to take maternity leave to 12 months and gave new entitlements to paternity leave and pay for fathers.

The Labour Government also introduced the right to request flexible working. In 2009, this was extended to parents with children up to the age of 16. We introduced a right to request flexible working to people with caring responsibilities for disabled or elderly relatives and to parents with disabled children up to the age of 18. We ought to remember that David Cameron and the Conservatives voted against the introduction of paternity of leave, the extension of maternity leave and the right to request flexible working. I always welcome a Government having a Damascene moment, and I am glad that the Government are on board, as they nowadays are, with the minimum wage.

We support today’s regulations to reform the work-life balance for families. We think they are positive and comprehensive legislation. As I worked my way through them, I admit that they started to make my cerebral cortex ache with the various circumstances that might apply. The Government have tried comprehensively to account for more or less every circumstance that one could think of. Shared parental leave is a step towards levelling the playing field for fathers, and that is to be welcomed. The Minister talked about facilitating a cultural shift. That is an ambitious project and it takes time, but I think it is the right thing to say. I do not say that in a derogatory way. That is what we are trying to do. The Minister drew out some points, including the importance of maintaining links with work. Today, both fathers and mothers, but principally women, want to continue careers. I also welcome the fact that we now have a situation where both parents can be at home, using that curtailment. There is flexibility.

I also recognise that this is a challenge for employers and that they will need adequate notice. The noble Baroness, Lady Brinton, made a valid point about the need for a code of practice or guidance, given that there will be different employers.

Returning to the point about facilitating a cultural shift, we would be interested in hearing from the Minister what the Government will do to promote shared parental leave, because we will have to promote it. We know from the data available for the first two

10 Nov 2014 : Column GC13

years of additional parental leave that only an estimated 1% of eligible fathers took it, so a cultural shift takes time.

The Government estimated in their impact assessment that between 2% and 8% of fathers would take up shared parental leave. However, experts claimed that that figure was optimistic. As I said, only 1% of fathers have taken additional parental leave, which shows that even the lower end of the Government’s estimate looks optimistic. That takes us back to what positive steps the Government are taking to promote this.

4.15 pm

I will be interested to hear the Minister’s response to my noble friend Lady Turner’s point about couples not necessarily residing at the same address. She is absolutely right; we have every variation on the theme that you could imagine nowadays with regard to parenting. The noble Baroness, Lady Brinton, was right to bring up the not necessarily exceptional circumstances, these days, of children who are born extremely early. That is a valid point.

The monitoring of employers and the review process will be very important. I will be grateful if the Minister will set out in his response what the Government will do to increase the uptake of shared parental leave so that the intention of the changes introduced through the Children and Families Act 2014 and the regulations can be fully realised.

Despite those comments and a number of questions, we entirely welcome the proposals.

Lord Bourne of Aberystwyth: I thank noble Lords for their contributions to what has been a very interesting debate, and for the support around the Room. I am delighted that noble Lords have supported the regulations and to see strong support for the new shared parental leave and pay system.

I shall try to deal first with the points raised by the noble Baroness, Lady Turner of Camden. First, on couples who are not part of a typical family unit, including where they are living apart, providing that they meet the definition of partners, spouses or civil partners, they are fully covered. I take the point, also made by my noble friend Lady Brinton, that families come in all shapes and sizes now. The Government have certainly done our best to accommodate that, so I hope that I can give reassurance on that point.

The noble Baroness also asked about having some way to facilitate agreement between the partners and what happened where people are living apart. Clearly, the Government are unable to legislate for every situation. It is incumbent on partners, where they are living apart or otherwise, to come to an agreement. Underlying all this is the principle that that has to be in the interests of the child.

If I may, I shall come to some points raised by the noble Baroness about the code of practice when I deal with the points raised by my noble friend Lady Brinton.

Parties are entitled to shared paternity leave. The interests of both working partners are fully protected, both the father and mother, on an equal basis. A code

10 Nov 2014 : Column GC14

of practice has already been developed by ACAS, which has been warmly welcomed. No doubt it will be monitored and, if changes are necessary, they can be made to it as things progress. We should not see this as something set in stone and adamantine; if changes are needed, I am sure that they can be made.

I turn to points raised by the noble Lord, Lord Young, thanking him for his kind remarks and the historical journey that he took us on; I suspected that there might be a bit of party knockabout. I fully recognise that these regulations are supported across the Room, and rightly so. It makes the cultural change that we all want that much easier if we all support it and are doing everything we can to make sure that it happens.

I can reassure the noble Lord about the rollout. He is right that we need to do more on that to make sure that it is taken fully on board by those who are prospective beneficiaries of it. At the moment, it is featured on the GOV.UK website, and there is evidence that there has been a lot of downloads by employers, so they are aware of this. We have to make sure that employees are aware of this, such as the potential family to which my noble friend referred. Perhaps these regulations should be named after them, if they are taking full benefit of this as pioneers. But it is important, in all seriousness, that we make sure that the messages are rolled out. This is being done through the TUC, the CBI, the FSB and the National Childbirth Trust. I have asked officials to look at the possibility of ensuring that information is available through commercial outlets such as Mothercare. It seems to me that places such as that would be a good way of trying to get the message across so that we ensure that everybody benefits in the way that we want, not just the families, partners and children concerned but society in general, as we want that cultural shift.

These regulations will enable working parents better to balance their caring and work responsibilities and will enable employers to plan for the periods when their employees will be absent from work on shared parental leave. I commend these statutory instruments to the Committee. I beg to move.

Motion agreed.

Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014

Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 20148th Report from the Joint Committee on Statutory Instruments

Motion to Consider

4.21 pm

Moved by Lord Bourne of Aberystwyth

That the Grand Committee do consider the Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

Motion agreed.

10 Nov 2014 : Column GC15

Shared Parental Leave Regulations 2014

Shared Parental Leave Regulations 2014 8th Report from the Joint Committee on Statutory Instruments

Motion to Consider

4.21 pm

Moved by Lord Bourne of Aberystwyth

That the Grand Committee do consider the Shared Parental Leave Regulations 2014.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

Motion agreed.

Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2014

Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 20148th Report from the Joint Committee on Statutory Instruments

Motion to Consider

4.23 pm

Moved by Lord Bates

That the Grand Committee do consider the Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2014.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): My Lords, these orders bring into force revised codes of practice under Part 2 of the Regulation of Investigatory Powers Act 2000. The codes of practice have been revised to reflect changes that the Government have made to the Part 2 provisions on covert surveillance and the use of covert human intelligence sources since the codes were last revised in 2010. The codes also give guidance on property interference, an action which necessitates authorisation under separate legislation, but which will often form part of a wider covert operation.

I believe it is accepted that, faced with the sophistication of the methods employed by modern-day criminals, our law enforcement agencies sometimes need to operate covertly in order to prevent or detect serious crime, but those powers must be deployed extremely carefully and properly balanced against individual rights, including the right to privacy.

The Regulation of Investigatory Powers Act 2000, or RIPA as we know it, provides a statutory framework for public authority use of a number of covert techniques likely to acquire private information, including the techniques covered by the codes of practice concerned here, and ensures that their use is compatible with an individual’s right to privacy.

The Act provided a number of safeguards to prevent misuse of the powers, including clear authorisation procedures and independent scrutiny of the use of the powers by the Office of Surveillance Commissioners and the Intelligence Services Commissioner. RIPA and its associated codes of practice have greatly improved

10 Nov 2014 : Column GC16

control and oversight of how public authorities use covert investigatory techniques. However, the Government keep a close eye on the regime to ensure that it is working as intended and, when improvements have been identified, we have acted to put these into place. I will briefly outline the main changes which have been incorporated into these revised codes.

First, in response to concerns about use of covert surveillance by local authorities to investigate relatively minor matters in England and Wales, local authorities’ use of these powers has been restricted so that they can now use directed surveillance only to investigate criminal offences which either attract sentences of at least six months’ imprisonment or relate to the underage sale of alcohol or tobacco. In addition, in all cases, decisions by local authorities to grant or renew the authorisation of covert techniques will only take effect once an order approving the authorisation has been granted by a justice of the peace. These changes were made in Part 2 of the Protection of Freedoms Act 2012.

To improve confidence in the decision-making and authorisation of undercover deployments, RIPA has been amended to allow an independent body, the Office of Surveillance Commissioners, to provide enhanced oversight of all undercover law enforcement deployments. Law enforcement agencies are now required to notify the surveillance commissioners of an undercover deployment at its outset and must seek prior approval from the commissioners for all deployments that last longer than 12 months. We have also increased the rank at which undercover deployments are authorised.

The revised codes were the subject of a public consultation exercise in February and March this year. We received responses from 126 organisations and individuals, details of which we will publish on the Home Office website, following an undertaking given by us during the debate on these orders in another place, once we have obtained permission from the respondents. The consultation provided additional recommendations for changes to the codes.

One of the main concerns related to undercover officers forming inappropriate relationships in the course of their duties. To address this, the College of Policing has issued a code of ethics which states clearly that officers must not engage in sexual conduct while on duty, and shall not establish or pursue an improper sexual or emotional relationship with a person with whom they come into contact in the course of their work. The revised Covert Human Intelligence Sources code of practice in turn specifies that all police officers deployed as undercover officers in England and Wales must, of course, comply with and uphold the principles and standards of professional behaviour set out in the code of ethics.

I turn to other changes. The Covert Human Intelligence Sources code also includes a clarification that law enforcement agencies must seek an authorisation when developing a cover persona, an activity known as “legend building”, if the activity will interfere with an individual’s Article 8 rights. This change was made to ensure consistency and that proper consideration is given to privacy and proportionality in all undercover deployments, irrespective of the nature of the deployment. The HMIC report into undercover policing published

10 Nov 2014 : Column GC17

on 14 October highlighted this as a concern and I am pleased that we have already taken steps to address it. In addition, in response to feedback, a number of more technical amendments have been made to the codes to provide greater clarity for those authorising and using covert techniques.

The changes that I have described today clarify the way in which the law enforcement agencies can use these intrusive powers, and consolidate the changes we have made to ensure that the right level of oversight and authorisation is in place. They ensure that the powers can be used only when it is necessary and proportionate, when it will help to keep us safe from harm. I commend the orders to the House.

4.30 pm

Baroness Smith of Basildon (Lab): My Lords, I thank the Minister for his explanation. He will be aware that there have been a number of debates on this issue over the past few years in your Lordships’ House. It is helpful to have the two codes of practice before us; it was also helpful that he set it all in context. However, as he will know, following the debate on what became fast-tracked legislation in the Data Retention and Investigatory Powers Act, or DRIP, it was agreed through our amendment in the other place, which the Government accepted, that there will be a full review of RIPA. As I think the Minister said, it has not kept pace with technology and there have been changes. Clearly, there needs to be a full review to ensure that it keeps pace with not just the technology but some of the problems that have arisen, which he also alluded to.

The Minister will also be aware, although he did not mention it in his comments, of the issue raised in debate on the Serious Crime Bill, when the noble Lord, Lord Strasburger, tabled an amendment about concerns regarding journalists and their sources being intercepted and accessed. We have had previous debates about his point about undercover police officers on covert operations having inappropriate relationships with people, particularly between male police officers and women. Regarding surveillance techniques, I think particularly of my noble friend Lady Lawrence, whose family was subject to surveillance that under no circumstances could ever be described as necessary or proportionate. There is clearly a need for guidelines to address that and, if guidelines are not adhered to or something goes wrong, a process by which those issues can be taken up. We certainly welcome seeing the new codes of practice, but I also hope that the Minister will confirm that all these issues will still be discussed and further considered when we have that full review of RIPA by David Anderson, the commissioner.

We have made it clear that there has to be a full public debate on this and I hope that the noble Lord will agree. We do the public a disservice if we stand back and say, “We need these powers”—and the Government do need such powers—“but trust us, everything will be okay”. We would bring the public into our confidence a lot more on these issues if we explained why we need such powers and how they will be used. The public would understand that but we have to do a lot more than just ask for their trust.

10 Nov 2014 : Column GC18

There is recognition, and I am sure that the public recognise this as well, that covert surveillance or operations have to be undertaken. To suggest that in each and every case they are wrong would be completely to misunderstand their purpose, as I think the noble Lord made clear. Those operations are dealing with some of the most dangerous crime and serious criminals and are an essential part of policing. We are talking about drugs, trafficking, smuggling, sexual abuse and pornography. Often, as I am sure we will come to debate on the Government’s opt-out and opt-in proposals, that information is shared between countries and is an important part of putting together the jigsaw of the details of some of these international crimes, where there is cross-border communication that we can get only if we co-operate with other countries.

I was surprised that in the order there was nothing, unless I have missed it within the two codes of practice, distinguishing between long-term and short-term operations. I would make that a clear definition and perhaps do so on authorisations as well. Regarding some of the things that we expect police officers to do, my local paper ran a story about one officer who had infiltrated a drugs gang. As he got more and more information—he got excellent information that went to court—it was obviously putting him at risk. He ended up having to jump out of the window and run pretty quickly down the street to ensure that he was not caught while still acting under cover.

The two issues that we have raised before, which are largely recognised in these provisions, are the inappropriate use of powers, in regard to which I mentioned my noble friend Lady Lawrence, and inappropriate relations. If the Minister has not read it, I suggest that he reads a book that was written about in the Guardian magazine on 22 June last year. I kept a copy of its excellent article about the problems caused by that kind of covert surveillance when it got out of hand and the powers were abused.

We have two new draft codes of practice. What they and any review needs to address is, first, the safeguards to protect the public while addressing the balance and conflicts and, secondly, establishing and maintaining public confidence in the integrity of the process and system. That is difficult, because you are balancing liberty against security, and privacy against public safety. Those issues clash, which is why the guide is so important. I hope that the Minister will give me an assurance that the draft codes of practice will still be part of RIPA.

The Minister mentioned the consultation. I was a little surprised that he and Mike Penning in the other place gave different numbers; they were only one out, but the noble Lord said that there were 127 consultations, while the Minister in the other place said that there were 126. I went to the website to see what those consultations had said, because I thought it would be helpful to inform this debate if we could see the consultations—the Explanatory Notes say that most of the points were taken on board. However, I went to the website on Friday to be told:

“We are analysing your feedback. Visit this page again soon to download the outcome to this public feedback”.

10 Nov 2014 : Column GC19

However, the Minister said today that as a result of the question David Winnick asked of the Minister in the other place, Mike Penning, about whether it would be made public, he was told, “No problem; it can be”. Did the Government never intend to publish the consultation? They now have to go back to everybody who contributed to the consultation, which implies that there was no intention to publish it in the first place. From a personal point of view, I always find the publication of consultation responses extremely helpful in these kinds of debates. I am very disappointed that they have not been published. To suggest that the Government now have to spend money to go back to everybody to ask them if they mind their information being published does not seem to be the best use of resources or time.

I will ask the Minister a couple of questions on the code of practice, because I was not 100% clear about a couple of things. In the Covert Human Intelligence Sources Draft Code of Practice,a piece on page 9 refers to public officials who provide information to the authorities, and there is new guidance on that. Is all that guidance new, or has it been adapted from something that already existed? If a person is providing information—and not always information about an offence; often it is what you might call personal information; and whether or not they become a covert human intelligence source or just a source in the normal course of things—does it make it more likely that they will be reluctant to provide information because they know that they are registered somewhere, someplace, as a covert human intelligence source? I do not know whether you call that a CHIS. Does that make it more difficult for the authorities to obtain information in that way?

On page 19, paragraph 4.20, confidential constituent information is referred to as being confidential information,

“in relation to communications between a Member of Parliament and a constituent in respect of constituency matters”,

because that is held in confidence. Does that also apply to Members of the House of Lords? Although we do not have constituents as such, members of the public contact us about issues. Indeed, the Houses of Parliament website suggests that if you are not happy with the response from your MP, you can contact a Member of the House of Lords. Would we be bound by the same confidentiality as Members of the House of Commons and by the same provisions? That is not clear in that passage, as it specifically refers to Members of Parliament with constituencies.

I would also like a clarification about the authorisation criteria on page 22. The final one in the list says,

“for any other purpose prescribed in an order made by the Secretary of State”,

with the proviso that it has to enshrine the right to family life. Does that mean any order on any issue? It seems to be a very broad power; it would be helpful if the Minister could say something about that.

Finally, on the Covert Surveillance and Property Interference Draft Code of Practice, I have a query about how the role of the surveillance commissioners works. I do not know how many authorisations there

10 Nov 2014 : Column GC20

are annually, but it would be very difficult for them to look at every case. Would they have to inspect a sample to see if they were happy that the code of conduct had been adhered to and that it was lawful, proportionate and necessary, or do they have to wait for a complaint? Under what circumstances would a commissioner look at the issue?

That brings us back to the guidance about proportionality. Again, the commissioner has been clear about the changes for local authorities, because there were cases when it was not proportionate; the changes to which he has referred are very helpful and we support them totally, but last week the noble Lord, Lord Strasburger, made the point about journalists. How is that affected by the code of conduct before us today?

Finally, I could not find anything about training, although I may have missed it because there are quite a lot of documents to go through and I did not know whether it was raised in the consultation. I refer to the training available to those who provide the authorisations and to those who seek authorisations, under either code. Will they receive any training on the new codes of conduct and the guidance that has been issued so that they know exactly what their responsibilities and obligations are?

I welcome the orders. Significant efforts have been made to address concerns that have been raised that any covert surveillance covered by either of the draft codes of practice is lawful, proportionate and necessary. The deal with the public is that any legislation that will be passed on surveillance is used only for the purpose intended—to make people safer against serious crime, including crime against the community, crimes which makes the community less safe. Terrorism is often mentioned in that context, and that is part of it—but that co-operation to deal with serious crime, whatever the purpose, is the aim. This provision goes some way to addressing that, but I look forward to a full review of all the issues that we have discussed. I hope that we can get to the point of having a proper public debate to ensure the integrity of the process that we need.

Lord Bates: I thank the noble Baroness for her questions, which, as usual, have gone into the detail in some depth. We are grateful for them because it gives us an opportunity to put more information on the record. I am pleased to see the noble Baroness, Lady Lane-Fox, in her place. I would guess that she was caught out by the pace at which the earlier business moved through, like the rest of us, but I hope that we may be able to take her points into consideration as part of an ongoing dialogue.

I shall try to go through the issues in the order in which the noble Baroness raised them. There is no requirement or convention to say that, when there is a public consultation, we should eventually publish all responses to it—for a variety of reasons, not least because sometimes people have given information that they do not wish to be made public. However, as soon as the intervention was made to which she referred, we said immediately that it should be published. We are in the process of going back to the 125 or 126 people—

Baroness Smith of Basildon: It was 127.

10 Nov 2014 : Column GC21

Lord Bates: We are going back to the 127 people who are in the course of responding, just to clarify the position. That will give further comfort to people that the process has been open.

I am pleased, too, that the noble Baroness welcomed the significant changes that have been made to the code. These highlight genuine concerns that people have had about these issues and raised in other legislative fora, and the need for us to take action.

The noble Baroness asked how often the powers are used. It may be helpful for the Committee to know that under Part 2 of RIPA and Section 8 of the Regulation of Investigatory Powers (Scotland) Act, in 2013-14 the number of authorisations by law enforcement for intrusive surveillance was 392; for directed surveillance it was 9,664, while for CHIS it was 4,377. Directed surveillance authorisations by other public bodies stood at 4,412 and for CHIS at 53. That is quite a large number, but those who are undertaking covert surveillance account for less than 1% of total police numbers. They are trained to be deployed but they are not necessarily all on active duty at any point in time.

4.45 pm

On the broader issue on the powers of RIPA, the Data Retention and Regulatory Powers Act 2014 provides for a review of investigatory powers to be undertaken by Sir David Anderson QC, the independent reviewer of terrorism legislation. He is obliged to report to the Prime Minister by 2015. His review, and that of the Intelligence and Security Committee into privacy and security, will provide the opportunity for debate on the use, capabilities, oversight and safeguards of the important powers provided for in RIPA. Indeed, that was part of the amendment put forward by my noble friend Lord Strasburger during the passage of the Serious Crime Bill, when we were able to offer the reassurance that these issues are under active consideration. Clearly, however, the Government did not want to pre-empt any specific recommendations which may come forward from those reviews.

In terms of the distinction between long-term and short-term authorisations, the code of practice notes the change we have made to the authorisation of long-term covert operations to ensure a higher level of scrutiny. Operations continuing beyond 12 months must be authorised specifically by the Office of Surveillance Commissioners, which provides independent scrutiny of such operations. That is in addition to the provisions under an authorisation from a justice of the peace and the increase that we propose in the rank of the officer who needs to make such a decision.

10 Nov 2014 : Column GC22

The noble Baroness asked about judicial approval of undercover deployment, which is a very important issue. RIPA provides a strong set of safeguards to ensure that the powers are used properly and to prevent abuses. In addition, the surveillance commissioners, who are all retired members of the judiciary, provide oversight and approve longer term undercover operations, which is the area in which the historical abuses arose. The police and other enforcement agencies deploy undercover officers to deal with some of the most serious violent crimes, to which the noble Baroness referred. A balance needs to be struck between operational flexibility and controls which prevent misuse of their powers.

I think I have covered most points, but I will be happy to go back and review with officials the remarks of the noble Baroness. I am grateful that she has made them. These orders and the codes of practice implement a small but important part of the process of ensuring that a balance is maintained between effective law enforcement and universal entitlement to privacy and ensure that any improvements which strengthen the regime are reflected in the codes. RIPA requires public authorities to have regard to the codes of practice, and I know that they are relied upon extensively by practitioners as a source of guidance on how to comply with the letter and spirit of the law. It is essential that the codes keep pace with changes to the legislation and I am pleased that they have been brought before the Committee. I commend them to the Committee.

Motion agreed.

Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2014

Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 20148th Report from the Joint Committee on Statutory Instruments

Motion to Consider

4.48 pm

Moved by Lord Bates

That the Grand Committee do consider the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2014.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments

Motion agreed.

Committee adjourned at 4.49 pm.