Victims and Prisoners Bill (Fifth sitting)
Tuesday 27th June 2023
(10 months, 2 weeks ago)
Public Bill CommitteesRead Full debate Victims and Prisoners Bill 2022-23 View all Victims and Prisoners Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 June 2023 - (27 Jun 2023)
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Chair
We will now start line-by-line consideration of the Bill. Hansard would be grateful if you could email any speaking notes to hansardnotes@parliament.uk, or pass them to the Hansard colleague present. The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same, or a similar, issue.
Please note that decisions on amendments take place not in the order they are debated but in the order they appear on the amendment paper. The selection list shows the order of debates. Decisions on each amendment will be taken when we come to the clause to which it relates. Decisions on new clauses will be taken once we have completed consideration of the Bill’s existing clauses. Members wishing to press a grouped amendment or new clause to a Division should indicate when speaking to it that they wish to do so.
Clause 1
Meaning of “victim”
Sarah Champion (Rotherham) (Lab)
I beg to move amendment 2, in clause 1, page 1, line 16, at end insert—
“(e) where the person has experienced, or made allegations that they have experienced—
(i) sexual abuse, sexual harassment or sexual misconduct, or
(ii) bullying or harassment not falling within paragraph (i).”
This amendment would extend the definition of “victim” to include someone who has experienced, or made allegations that they have experienced, sexual abuse, sexual harassment or sexual misconduct, or other bullying or harassment.
The Chair
With this it will be convenient to discuss amendment 3, in clause 2, page 2, line 25, at end insert—
“(3A) The victims’ code must make provision in relation to people who have experienced, or made allegations that they have experienced—
(a) sexual abuse, sexual harassment or sexual misconduct, or
(b) bullying or harassment not falling within paragraph (a).
(3B) Provision under subsection (3A) must include—
(a) provision relating to the enforcement of non-disclosure agreements signed by such victims, and
(b) provision about legal advice and other support for such victims in cases where they are asked to sign, or have signed, a non-disclosure agreement.
(3C) In this section—
‘non-disclosure agreement’ means an agreement which purports to any extent to preclude a victim from—
(a) publishing information about a relevant complaint, or
(b) disclosing information about the relevant complaint to any one or more other persons;
‘misconduct’ means—
(a) sexual abuse, sexual harassment or sexual misconduct, and
(b) bullying or harassment not falling within paragraph (a); and
‘relevant complaint’ means a complaint relating to misconduct or alleged misconduct by any person.”
This amendment would require the victims’ code to include specific provision for people who have experienced, or made allegations that they have experienced, sexual abuse, sexual harassment or sexual misconduct, or other bullying or harassment.
Sarah Champion
I appreciate the opportunity to serve under your guidance once again, Sir Edward. I rise to speak in support of amendments 2 and 3, tabled by the hon. Member for Oxford West and Abingdon (Layla Moran). It is important that the Bill aims to improve end-to-end support for victims of crime and to amplify victims’ voices in the criminal justice system. The amendments focus on a widespread practice that disempowers victims and silences their voices: non-disclosure agreements. NDAs are contracts that were created to protect trade secrets, but when used incorrectly they become secret settlement contracts used to buy the silence of a victim or whistleblower. They have become the default solution for organisations, corporations and public bodies to settle cases of sexual misconduct, racism, pregnancy discrimination and other human rights violations.
In some cases, those in charge do not even realise that an NDA was used. NDAs have become boilerplate contractual language for so many organisations, and they are extremely harmful. They most often protect an employer’s reputation and the career of the perpetrator, not the victim, who could be protected by a simple one-sided confidentiality clause. They prevent a victim from speaking out and accessing the support they need by preventing them from reporting, speaking to family and friends about their experiences, or warning others. In one case of a university student who signed a gagging clause after she had been sexually assaulted, the agreement was so poorly explained that she took it to mean that she could not even speak to her own GP.
We have had this discussion many times before, specifically in relation to a different piece of legislation: the Higher Education (Freedom of Speech) Act 2023, an amendment to which, tabled by Lord Collins of Highbury, sought to restrict universities from using NDAs in cases of harassment and bullying. The Government accepted that amendment. I and many others who have campaigned on this issue were delighted that students gained that protection in the 2023 Act. If students should be protected from NDAs and gagging clauses, why would the same not apply to other victims? Amendments 2 and 3, tabled by the hon. Member for Oxford West and Abingdon, are intended to do ensure that it will.
Amendment 2 would expand the definition of a victim to expressly include victims of harassment, including sexual abuse, sexual harassment, sexual misconduct or other forms of bullying. Amendment 3 would then make provision in the victims code for those victims relating to non-disclosure agreements. The language of the amendments was drawn from the 2023 Act—language that the Government have already agreed to. As I said, the protection should not be limited to students; every victim deserves the right to speak out.
We have a golden opportunity with the Bill to enshrine in law the principle that no victim should be silenced, prevented from speaking out about their experiences and scared away from vital support services. There is support across the House for these changes—I refer to amendment 1, tabled by the right hon. Member for Basingstoke (Dame Maria Miller)—and I hope that the Minister will accept the amendments, seize the moment, take firm action and stamp out this practice once and for all.
Maria Eagle (Garston and Halewood) (Lab)
It is a pleasure to serve under your chairmanship today, Sir Edward. I hope the Minister will consider accepting these amendments. I can well see that he might have some concerns about what he may see as an open-ended extension of the definition of victims. I can see that, in the position he is in—deciding on policy—he may come to the view that a line has to be drawn somewhere when we define victims.
The Bill’s current definition does extend to a wide range of people, and there are other amendments and concerns that may extend that definition to an even wider range. As somebody who has been in the Minister’s position, making policy decisions about where a line ought to be drawn in the middle of a grey area, I understand that there is a natural tendency to resist. I hope he will resist that natural tendency in this particular instance, because my hon. Friend the Member for Rotherham has made a compelling case and the amendments are important.
One of the worst aspects of being subjected to this kind of behaviour is not being able to talk about it afterwards. One understands why an employer would like to obtain a non-disclosure agreement. As my hon. Friend the Member for Rotherham said, it has become a standard clause that anybody negotiating such a settlement on behalf of the employer would stick into every agreement in any instance; I imagine they are all drafted on computer systems ready to be simply splurged out at the drop of a hat. But the consequence for the individual who is signing up to the agreement—not always, as my hon. Friend has made clear, with the full information about what the legal implications are, and what they do and do not cover—can be extremely damaging, not only in the immediate aftermath of such an agreement, but possibly for years into the future.
Surely the Minister will accept, as I am sure you would, Sir Edward—although not in this Committee, of course—that the whole point of the victims code is to try to minimise the impact on victims by giving rights and access to provisions that enable them to recover swiftly from whatever it is that they have undergone that ends up causing them an issue. That is surely the very definition of what the victims code is meant to be doing. It would therefore be an omission if the amendments were not accepted.
Although I fully understand the concerns the Minister might have about extending the pool of people who may fall into the definition in the legislation, it would be remiss of the Government to exclude this particular group, who really do need such assistance. I hope that he will have something positive to say to us about these amendments when he gets to his feet.
Anna McMorrin (Cardiff North) (Lab)
I want to speak to these important amendments, which have been brought forward by my hon. Friend the Member for Rotherham. Amendment 1 gets to the heart of what the Bill is all about. It would ensure that there is no impediment to providing evidence of behaviour that may be criminal misconduct after signing a non-disclosure agreement.
We have all seen examples of these agreements. Some simply attempt to buy off the victim and halt any prospect of them using knowledge of a person or an organisation which may have been the perpetrator of any kind of criminal misconduct, ranging from financial impropriety to sexual assault. The agreements work by effectively threatening people that if they decide to share their experience or knowledge, they will be subject to costly sanctions.
I hope the Committee will agree that individuals or organisations trying to hide their criminality using non-disclosure agreements is not only wrong, but that it is also a licence to get away with all manner of activity that could lead to large fines and even imprisonment. Why should someone responsible for sexual assault be able to hide away? They should not be. Amendment 3, importantly, would ensure that that protection is enshrined in the victims code, which we will get to later. We want to ensure that there is no wriggle room to allow potential criminals to escape the law because of, in effect, an agreement that is designed to do just that.
Amendment 2 could also be said to sit at the heart of the Bill; we absolutely support the essence of the amendments. Amendment 2 would add to the clause the specific definition of a person who
“has experienced, or made allegations that they have experienced…sexual abuse, sexual harassment or sexual misconduct, or…bullying or harassment”.
We want to work constructively with the Government, and I hope that we can start now, with the Minister addressing the serious concerns that Committee members have raised, particularly my hon. Friend the Member for Rotherham who moved the amendment. We need amendments to significantly strengthen the Bill—which we finally have, eight years after it was first proposed.
The Minister of State, Ministry of Justice (Edward Argar)
It is a pleasure to serve under your chairmanship, Sir Edward. I am grateful to the hon. Member for Rotherham for raising this important topic and enabling the amendments tabled by the hon. Member for Oxford West and Abingdon (Layla Moran)—and, by extension, my right hon. Friend the Member for Basingstoke (Dame Maria Miller)—to be debated in Committee.
The amendments recognise that non-disclosure agreements are misused if they prevent someone from speaking about an experience of crime, for example, to relevant professionals. Amendment 1, though not selected for debate, is intended to include those who have signed NDAs that prevent them from speaking about criminal conduct in the definition of a victim. Amendment 2 and 3, which I will turn to shortly, are intended to go a little further—potentially beyond criminal conduct. I will address that point in a second.
Although confidentiality clauses can serve valid purposes—for example, to protect commercially sensitive information—the Government have been clear, as I think is the Opposition’s position, that they should not be used to prevent disclosures to the police, regulated health and care professionals, legal professionals and others. It is illegal for an NDA to be used to conceal a criminal offence, pervert the course of justice or stop someone co-operating with the police. As the hon. Member for Rotherham alluded to, we have already made reforms around the use of NDAs in higher education.
I know that the hon. Members who tabled, signed and spoke to the amendments are particularly interested in ensuring that individuals are aware of their ability to access support, regardless of having signed an NDA. Anybody who has suffered harm as a direct result of criminal conduct, regardless of whether that crime has been reported or is covered by an NDA, is already covered as a victim under part 1 of the Bill and the victims code. That means that they are entitled to access relevant support services, and, as the Law Society guidance on the matter makes clear, it would not normally be appropriate for non-disclosure agreements to prohibit disclosure to professionals for legal, medical or therapeutic reasons. In most circumstances, those qualified professionals would be bound by a duty of confidentiality to their client.
Maria Eagle
The Minister makes an excellent point, but how does he get across to those who have signed non-disclosure agreements that they are not restricted in the way in which the law requires that they be unrestricted if nobody has told them that? Could he do something to ensure that those who sign such agreements get proper information about what they really mean?
Edward Argar
I am grateful to the right hon. Lady. I do not want to test the Committee’s patience too much with the amount of notes that I have, but I will come to her point. I hope that I can give her a little succour in terms of her asks of me in her speech.
I reassure Members that if anybody suffers harm as a result of sexual abuse, bullying or harassment, where that behaviour amounts to criminal conduct it is already covered by the definition of a victim in part 1 of the Bill. Therefore amendment 1, which would include those individuals explicitly in the definition, could be deemed unnecessary, as they are already covered. However, I will turn to amendment 1 in my final remarks.
Amendments 2 and 3 seek to go further to include those who have experienced behaviour that may be covered by a non-disclosure agreement but which is not criminal. As the right hon. Member for Garston and Halewood alluded to, that would expand the definition. We are clear that we have to strike the appropriate balance in drawing the definition in a way that is practical and functional but that does not exclude those who we feel should be included. Part 1 of the Bill seeks to restrict the definition to victims of crime, and we believe that that is the right approach. However, I suspect we will debate on the coming amendments and over the course of today whether that balance has been struck and whether that line has been drawn in the right place. We may disagree on some elements; I expect we will explore that further today.
The relevant definition of a victim is focused on improving support services for victims of crime and increasing oversight to drive up standards of criminal justice agencies working with victims of crime. That does not mean that individuals who have suffered as a result of behaviour that is not criminal, albeit harmful, are prevented from seeking support. Outside the provisions in the Bill, they can still access support services where those are available to them.
Amendment 3 would require the victims code to include provisions for those who have experienced or made allegations that they have experienced sexual abuse, sexual harassment or sexual misconduct, or other bullying or harassment. It would also require the code to include provisions for those who have signed NDAs for those incidents.
It is vital that the victims code works for different types of victims. The code covers a wide range of entitlements for victims of different crimes and with different needs. To give us the broadest flexibility to serve the changing needs of victims without having to amend primary legislation, we have not explicitly listed entitlements or specific provisions for particular types of victims in the Bill, as the amendment would do. Instead, we have placed the overarching principles of the victims code in primary legislation and specified that the code can provide different entitlements for different types of victims.
We believe that is the right approach to allow the flexibility to amend the code and to reduce the risk of inadvertently excluding some groups of victims or the relevant provision that the code should make for them. The Bill as presently drafted means that the code could include provision about the matters referenced in the amendment, where they relate to victims of behaviour that amounts to criminal conduct. We have committed to consult on an updated victims code after the passage of the Bill. As mentioned on Second Reading, I am open to working with Members on whether we can go further in that respect.
I appreciate the points made by the right hon. Member for Garston and Halewood, by the shadow Minister the hon. Member for Cardiff North, and by the hon. Member for Rotherham and the sponsors of the amendments. Therefore, although I encourage the hon. Member for Rotherham not to press the amendments to a Division at the moment, I am happy to work with her and other hon. and right hon. Members, including those who support the amendments, to explore further before we reach Report stage whether there might be something we can do to help address their concerns.
As I say, I do not believe that amendments 2 and 3 as drafted are the right approach. I am looking carefully at the issues addressed by amendment 1. I am not in a position to make any firm commitments at this point, other than to work with the hon. Member for Rotherham and others to further explore this important issue. With that, I hope that she will consider not pressing this amendment to a Division.
Sarah Champion
I thank the Minister very much for his welcome words. I echo the point made by my right hon. Friend the Member for Garston and Halewood about the chilling effect of NDAs, and the lack of awareness of victims. That is at the nub of what we are trying to address.
I know there is a lot of interest in this issue across the House, so I will withdraw the amendment so that we can debate it on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Anna McMorrin
I beg to move amendment 10, in clause 1, page 1, line 16, at end insert—
“(e) where the person has experienced anti-social behaviour, as defined by section 2 of the Anti-social Behaviour Act 2014, and the conditions necessary for an ASB case review under section 104 of that Act have been met.”.
This amendment would include victims of anti-social behaviour in the definition of a victim.
As the Committee may be aware, our sessions in Committee will run over ASB Awareness Week, which is poignant. It is quite disappointing to be here today, fighting once again to have antisocial behaviour victims protected in the Bill.
Janet Daby (Lewisham East) (Lab)
Does my hon. Friend agree that victims of antisocial behaviour are indeed victims of crime and should be included in the victims code?
Anna McMorrin
My hon. Friend makes a very good point. The Government have repeatedly ignored advice on this, so I am here again to be a voice for the voiceless, who will remain voiceless if the Bill passes unamended.
Rachel Almeida, assistant director for knowledge and insight at Victim Support, told us last week that a huge number of victims are impacted by persistent antisocial behaviour. She said:
“We agree that there needs to be a threshold for it to be persistent ASB, but we believe that their not having any rights means they are unable to access the support that they really need.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 71, Q148.]
Ellie Reeves (Lewisham West and Penge) (Lab)
As constituency MPs, we all receive reports of antisocial behaviour. A constituent came to me because her neighbour regularly throws human waste out of the window. Can it really be right that she would not be considered a victim under the Bill?
Anna McMorrin
My hon. Friend is absolutely right. I do not think there is a Member here who does not have discussions with constituents, has not received casework about it, and has not seen antisocial behaviour when they are and about. This is a major issue that needs to be addressed, and the amendment would address it.
Antisocial behaviour can make victims’ lives a living nightmare, causing stress, misery and despair. It can often be the precursor to very serious crimes, including knife crime and gang activity, so it is important that it is taken seriously by the agencies that respond to it.
For example, if I had ordered a new outfit online and it was delivered to my house and left in the doorway, and someone pinched it, that would be a crime. It would be an unfortunate or upsetting incident, but it would have minimal impact on my wellbeing, because I could request a new outfit or get a refund. As a victim of that crime, I would be eligible for support services to help me cope and recover, regardless of whether I thought that was necessary. I would be eligible for all the rights under the victims code, including having my complaint recorded.
If I were a victim of antisocial behaviour, the situation would be entirely different. I might have people parked outside my home drinking, being disruptive, throwing cans into my garden, kicking a ball against my wall, and coming back night after night, swearing, spitting and being aggressive. I would feel persecuted in my own home and so targeted that I might become afraid of leaving the house. The longer it persisted, the more traumatised I would become. But as a victim of antisocial behaviour, I would have no access to victims’ rights and no guarantee of support. That disparity must end.
Dame Vera Baird KC, the former Victims’ Commissioner for England and Wales, told us last week that a key problem with the Bill is that it does not deal with people who suffer from serious antisocial behaviour.
Sir Oliver Heald (North East Hertfordshire) (Con)
Was not the point that Dame Vera was making that there are cases of antisocial behaviour that are criminal behaviour, but for some reason the police and others do not treat them as criminal matters? They say, “Well, that’s antisocial behaviour—a matter for the council.” Is this a question of amending the Bill, or is it about changing the attitudes of those who investigate these matters?
Anna McMorrin
I am just talking to the point that Dame Vera Baird made. We absolutely need that change, but we also need this amendment to ensure that things change for the victim and they can access those services.
Sir Oliver Heald
The clause refers to a person
“being subjected to criminal conduct”.
A lot of the things that the hon. Lady has mentioned—harassment, threatening behaviour and all those sorts of things—are criminal offences, it is just that they are not treated in the way they should be.
Anna McMorrin
They are not treated in the way they should be, but there is no system or support available for antisocial behaviour, yet if the amendment were agreed, there would be. As my hon. Friend the Member for Lewisham West and Penge just mentioned, the two things are not mutually exclusive.
Despite the fact that the behaviour is criminal—which is what Dame Vera Baird was referring to—it is not dealt with as criminal by the police. Instead, it is called antisocial behaviour. She said:
“I am particularly worried about people who are persecuted at home”,
as I have illustrated. She continued:
“It is not about every bit of antisocial behaviour—if someone chucks a can into my garden, I do not expect to have victims code rights—but this Government legislated well to introduce…the community trigger about seven years ago. It says that when it escalates to a particular level, you have a series of remedies to get all the agencies together to put it right. If it gets to that level, then it is seriously persecuting, and there are people who are suffering that.”
Dame Vera illustrated her evidence with the example of a woman sitting in her garden, minding her own business, when some lads who are sitting outside drinking beer throw a can into her garden. It is a relatively small incident—it is not particularly pleasant, but it is antisocial behaviour—but if she complains,
“they chuck something at her window. They stamp on her plants. They kick the ball against the gable end all the time. They shout abuse.”
They keep going and going, making the woman’s life a misery.
As Dame Vera said, often the person impacted is already vulnerable, and this intensifies that vulnerability and creates trauma. She continued:
“That is very worrying, but it is not treated as criminality; it is treated as antisocial behaviour. But if we look at it, stamping on the plants in her garden is criminal damage; chucking something at her, if it might hurt her, is an assault; much of this behaviour is likely to cause a breach of the peace, but it is never dealt with like that. Since the key to the Bill appears to be that you are a victim of criminal behaviour, the question is: who makes that decision?”
I hope the Minister addresses that in his response to the amendment.
Dame Vera continued:
“If I go to Victim Support and say, ‘Please help me. This is happening at home,’ does the fact that it is obvious that part of it is an assault make me a victim or not? I think that is a key question to answer in the Bill…If someone pinches a spade from my garden, I am entitled to my victims code rights, but if someone behaves like that to an older person, they have nothing.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 27-28, Q62.]
My constituent Sarah suffered a miscarriage due to the stress of being the victim of repeated antisocial behaviour on the part of her neighbour. Sarah should have been entitled to specialist support for what she went through, but she was not. She was not entitled to anything. Victims of antisocial behaviour are not second-class victims, second-class citizens or second-class anything, and they do not deserve to be treated as such.
The Anti-social Behaviour, Crime and Policing Act 2014 established a trigger of three reported incidents of antisocial behaviour over a six-month period, at which point the victim can seek a community resolution meeting of the responsible agencies to resolve what is by then persistent ASB. The Home Office’s guidance in support of the Act acknowledges
“the debilitating impact that persistent or repeated anti-social behaviour can have on its victims, and the cumulative impact if that behaviour persists over…time.”
It also explains that the community trigger is an important statutory safety net for victims of antisocial behaviour and that it helps to ensure that “victims’ voices are heard.”
The community trigger can be activated through notice to a local authority, a police and crime commissioner or the police when a victim or victims have reported antisocial behaviour incidents three or more times within a six-month period and no effective action has been taken. A councillor or Member of Parliament may also activate the trigger for a constituent, and I am sure that some hon. Members are supporting constituents in that way. The trigger is intended to be an opportunity for citizen empowerment—an important part of our democracy.
When the victims or victims have activated the trigger, all the agencies, such as the police, local authorities and housing associations, must come together to address the situation and fix the problem. However, despite the intention that the trigger should be a solution to a complex problem, it has not delivered the intended results. A report by the Victims’ Commissioner for England and Wales found that awareness of the trigger remains low among the public and that even some of the relevant agencies are not using it. Including the community trigger threshold in the definition of a victim, as amendment 10 intends, would help to rectify that problem, as well as providing much-needed support to these usually very vulnerable victims.
Some police and crime commissioners offer support to antisocial behaviour victims through discretionary funds, because they cannot do so from Ministry of Justice victim funds, but that is pot luck: some police and crime commissioners do not. That means that whether support services are provided for victims of ASB depends on where they live, which creates a concern that some victims who are suffering significant stress from persistent ASB do not get the emotional and practical support that they need to cope and recover. Victims of persistent ASB whose suffering has entitled them to activate the community trigger must be recognised as victims of crime in their own right, with all that that entails.
What is even more bewildering about the Government’s stance is that the previous Justice Secretary, the right hon. Member for Esher and Walton (Dominic Raab), said on 4 December 2021, as reported exclusively in The Times, that the Bill would give antisocial behaviour victims new rights and protections. He committed to putting victims of antisocial behaviour “on a par” with victims of crime. The article quoted a Ministry of Justice source, who said:
“It’s about recognising there is never a ‘victimless’ crime.
It’s about making sure people who aren’t directly part of the criminal justice process, where crime has wider implications, that there is an opportunity for that wider impact to be articulated in the process.”
Is this a U-turn, or will the Government support the amendment and bring forward the support that victims of ASB so desperately need? Why are those victims suddenly deemed unworthy of protection? For so many people across the country, the toll of being made to feel unsafe in their own home is unbearable. My constituent John came to me in despair after being passed from pillar to post by different authorities. John’s wife is disabled, and their home had been targeted repeatedly by a group that congregated outside on most nights. John and his wife were bereft, overwhelmed by anxiety and stress, and felt unsafe in their own home.
Antisocial behaviour is a national issue. It should not be a party political issue. We see it across constituencies and in all neighbourhoods. The amendment would simply include the Government’s own guidance on such incidents in the Bill, so that people like Sarah, and John and his wife, are not treated as second-class victims. I hope that the Minister will reflect on that and support the amendment.
Maria Eagle
I rise to support my hon. Friend the Member for Cardiff North in pressing the case for amendment 10, or at least seeking an explanation about why antisocial behaviour is not included in the clause, given the undertakings made by the Minister’s predecessors. I admit that there have been a few of them, and catching up can sometimes be a little difficult—institutional memory dissipates swiftly these days on the Government Benches.
I urge the Minister to take another look at this issue, because the essential point that has been made by Opposition Members is reflected in my constituency experience. Believe it or not, Sir Edward, it is 26 years since I was first elected, although it does not seem that long. Some of the most distressing constituency cases that I have ever had to deal with relate to antisocial behaviour, as it is somewhat underwhelmingly called.
When the former Victims’ Commissioner gave evidence to the Committee, she was correct in noting that some of the individual bits of behaviour that make up what we call antisocial behaviour are indeed crimes. She made reference to criminal damage, assault and battery, which are very familiar. Perhaps an individual incident would not be enough to meet the threshold that most of our police forces use these days for deciding whether to proceed against individual perpetrators, but as a course of behaviour over time, such incidents certainly add up to very serious crime. Over the years, I have had many instances in my constituency where that has undoubtedly been the case.
As my hon. Friend the Member for Cardiff North set out using examples from her constituency, the impact on victims is very serious indeed. It is certainly more serious than what some victims, who would fall within the definition in other instances, have experienced. Many of the people who perpetrate antisocial behaviour against their neighbours are lawless in other ways, and they are often on the radar of the police for other reasons. If they are not, they are frequently on the radar of other agencies, and the only way to deal with some of these people is to get everybody together to problem solve.
My concern is twofold. First, leaving those who are subject to antisocial behaviour out of the definition of “victim” suggests a hierarchy. Victims are often told by police and other agencies, “Oh, it’s below the threshold”; “We can’t do anything about it”; “It’s a civil matter”; or, “It’s just a neighbour dispute.” They are frequently told that, when it is nothing of the sort. If we leave victims of antisocial behaviour out of the definition of “victim” when so many others are included, it reinforces the idea that legislators are not taking seriously the consequences for victims of antisocial behaviour, as opposed to the consequences of other types of crime for which we are legislating to improve victims’ rights.
Janet Daby
My right hon. Friend is making a great speech. If somebody is afraid, fearful or worried, or does not want to return home because of that, surely they are a victim and should be part of the victims code.
Maria Eagle
I very much agree. I have had constituents come to me who are in the most dreadful state as a consequence of repeated instances of antisocial behaviour, sometimes over many years. Sometimes it can take years until they come and see me, and I then have to say to them, “These are difficult issues to resolve. I’m going to try this, and I’m going to try that,” but I cannot say to them, “I’m going to get all the agencies together and force them to do something.” I have to expectation manage myself when they come to see me, because one knows from experience that it is just not possible to promise to solve these issues.
Perpetrators are canny, and one of the things they do is complain to the police first. For the citizen who has never broken the law and would never dream of inflicting this kind of behaviour on their neighbours, going to the police is a last resort, but for some perpetrators, going to the police is a first resort so they can induce the impression among the police that it is a dispute between neighbours.
Tonia Antoniazzi (Gower) (Lab)
My right hon. Friend is making an excellent speech about the victim and the perpetrator’s actions. We see at first hand that there is no thought about the effect of the antisocial behaviour on the victim, who may be a veteran and may have post-traumatic stress disorder, so working across agencies is vital in supporting our constituents.
Maria Eagle
Indeed, and that is what usually happens. One of the cases that springs to my mind involves a veteran—I will not use the gentleman’s name—who for years has carried around a little rucksack with all the things he values in his life, including his service medals, so he can get away from the flat he lives in because he is worried about what the perpetrators might do. Although the issue has been going on for many years, I have not been able to deal with it to his or my satisfaction, even though some of the instances he has told me about have been quite awful. If he were to see that antisocial behaviour is not included in the Bill, and that it is seen as a lower level of crime—not even as crime—he would not be very impressed, quite frankly.
The right hon. and learned Member for North East Hertfordshire made the important point that the agencies are not doing their job, and I agree. It is like a hot potato: they say, “Oh, it is not for us,” and they send it to the police, who send it to the council, and nobody problem-solves. Obviously, the job of MPs is to try to knock a few heads together and get some problem solving going on to resolve an individual matter. We all do that, and in some instances we are successful, but with antisocial behaviour it is very difficult. The signal we are sending by leaving antisocial behaviour out of the definition of “victim” is that it is somehow below a threshold. The Bill will not encourage the agencies to up their game if they do not see that kind of behaviour in the definition of “victim”.
That is why I hope the Minister will have a think about the amendment. I know he will stand up and say, “Well, if it reaches the threshold of crime, it is included,” because he said that in respect of the previous two amendments. Of course, that is technically correct, but in the real world, where agencies are starved of resource and always have to ask, “Which issue should we deal with as a priority?” because they cannot deal with all of them, sending the signal that antisocial behaviour is not as important as something that comes above a different threshold and counts as crime means that it will be left out and these problems will not be solved. Our many constituents who suffer from serious antisocial behaviour—which does amount to crime, but try getting the police to handle it in that way—will be left feeling that they are second-class victims yet again. I do not think that is the intention behind the Bill and of legislating to put the overarching principles of the victims code into law. If the Minister cannot do something, that would be a regrettable omission. I hope he will give us some good news and say that he will implement the commitments made by his predecessors.
Siobhan Baillie (Stroud) (Con)
It is a pleasure to serve under your chairmanship, Sir Edward. I am interested to hear what the Minister says in response, and I hope he will take on board what hon. Members said about the changes since the previous Lord Chancellor, who was quite outspoken about these issues, was in post. It is important to investigate whether the real issue is the implementation of the existing legislation and guidance, or whether it a lack of legislation, which we can fix here.
I have been sat here thinking about how slow and clunky this place is; it has taken so long to get to this Bill. I have had two children quicker than some Government projects have been completed. It takes forever. I have also been thinking about how creative antisocial behaviour has been getting recently, and about the TikTok videos showing youngsters storming into people’s houses, often with gangs of people. That would be a one-off incident, so presumably it would not reach the threshold of the community trigger, but it leaves a victim in its wake. I also understand—please correct me if I am wrong, Minister—that trespass is not criminal if someone storms into a house but it is pre-arranged. That it is very scary, but we possibly would not reach the threshold for the victims code.
I want to know that the Department is thinking through the rise of social media, the way that TikTok is being used and how gangs of people try to harass and attack people. If this legislation is a way to address this social media stuff, which the public are pretty outraged by, we need to think that through. I want to hear that the Department has gone through case studies and interrogated to see whether a change of legislation is appropriate, or whether the Department is still satisfied that what is available would deal with this latest nonsense, because this will not stop. There will be new ways of getting at people. People called Wizzy or Mizzy or something like that will try to get their ridiculous little videos, but there are victims in the wake of those videos, so I am interested to hear the Minister’s views.
Sarah Champion
I want to build on the points that have been made. I will start with those made by the right hon. and learned Member for North East Herefordshire—
Sarah Champion
We are off to a bad start now, aren’t we?
Some levels of antisocial behaviour are a crime, so they would immediately fall within the proposals, but many victims of antisocial behaviour are not covered by the victims code, which means that they do not have access to the support and information found in it. In particular, that means that they do not have the right to be referred to support services and that PCCs face spending restrictions on victims funding for antisocial behaviour support services as a consequence. The cumulative nature of what would be seen as low-level annoyances literally drive people insane, get them to move house and have them in a constant state of anxiety. In amendment 10, it is clear where that threshold is. On the points that my right hon. Friend the Member for Garston and Halewood made, that needs to be recognised in black and white so that the services, particularly the police, recognise the significance to people’s lives of antisocial behaviour and view it as something that ought to be covered under the victims code.
I also say to the Minister that this issue was raised a lot on Second Reading and was highlighted by witnesses. As my hon. Friend the Member for Cardiff North said, the former Victims’ Commissioner, Dame Vera Baird, called for this specific thing in an evidence session. To be specific, she emphasised the fact that
“this Government legislated well to introduce something called the community trigger”,
so that
“when it escalates to a particular level, you have a series of remedies to get all the agencies together to put it right.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 27, Q62.]
If the antisocial behaviour gets to that level—amendment 10 seeks to address this—those affected must be classed as victims under the legislation. I really think that the amendment would ensure that victims of persistent antisocial behaviour would be entitled to the rights as they are set out in the victims code and, hopefully, the victims Act, so I support the amendment.
Edward Argar
I am grateful to the hon. Member for Cardiff North for her amendment and for providing us with the opportunity to debate this issue. I suspect that we will return to it again, but this is a useful opportunity that allows us to get into more detail than is perhaps possible on Second Reading.
The amendment would include victims of antisocial behaviour in the definition of “victim” if they have suffered harm as a direct result of the conduct. As the hon. Lady sets out in the amendment, it would use the definitions in the Anti-social Behaviour, Crime and Policing Act 2014 and would therefore cover
“conduct that has caused, or is likely to cause, harassment, alarm or distress to any person…conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or… conduct capable of causing housing-related nuisance or annoyance to any person.”
Therefore, that would also include non-criminal antisocial behaviour.
The Government agree with the hon. Lady that antisocial behaviour is a blight on our communities, and the impact on individuals cannot be overestimated. It is a national issue and it has a huge impact. Every Member of the House and of the Committee has probably dealt with casework on behalf of constituents relating to antisocial behaviour. As Dame Vera kindly acknowledged, that is why the Government took action on the community trigger, which helped to address the line between what is criminal conduct and what falls short of it.
Sarah Champion
I might have cut the Minister off too soon—he might be about to answer my question—but this is about the persistent level of low-grade behaviour, which would not reach the criminal threshold. It is like a dripping tap or a mosquito buzzing in the room; that is what really drives people into frustration.
Edward Argar
I was about to come to that point, so the hon. Lady’s intervention is prescient.
All of the speeches that we have heard have acknowledged that the behaviour that is being referred to is often criminal, even the low-level behaviour. The shadow Minister, the hon. Member for Cardiff North said that if something is thrown in the direction of an individual or if plants are trampled, that would be criminal behaviour. It may not be charged as such, but it would still entitle people to those rights under the code.
Dame Vera’s key point was about who decides what criminal behaviour is, how we ensure that people know that those rights are available to them and that the service providers acknowledge that those individuals are entitled to those rights. The behaviour we have heard about is included, but we do not believe that including it in the Bill in this way is the right approach to address the issue, to raise that awareness and to ensure that people can access the rights that are already there. However, I will turn to that in just a second. The right hon. Member for Garston and Halewood again managed to pre-empt an element of what she thought I would say in my speech, and she is not inaccurate in her presumption.
A point was raised about the previous Lord Chancellor, my right hon. Friend the Member for Esher and Walton. My only reflection on that is that, first of all, in my recollection—the right hon. Lady is right that this is going back a while—the articles cited an unnamed source and Government sources. We on both sides of the House have experience of how that can work. That is not official policy, but I will mention, on official policy, that that Lord Chancellor confirmed the content of the draft Bill and the full Bill, so it is not accurate to suggest a U-turn. It was the same Lord Chancellor who confirmed what we are debating today as what he wished to see in legislation.
My hon. Friend the Member for Stroud raised a number of points. We do not believe that a lack of legislation is the challenge here. We believe that there are key aspects, which the hon. Member for Cardiff North rightly highlighted, about raising awareness and the different public authorities and bodies engaging in a concerted manner to tackle the problem—treating it seriously and suchlike—but we do not believe that putting something in the Bill is the right way to raise awareness and to change those behaviours.
My hon. Friend raised some particularly distressing cases that have recently been on social media. I tread warily because I am not a lawyer—I am looking at one or two of the lawyers across the room—but she is right to say that trespass is a civil offence. I want to be careful, because I do not know the details of each of those incidents, but it is quite possible that a number of those incidents reported on social media may well have encompassed elements that were criminal in what was done. However, as a non-lawyer, I am cautious about saying that with any certainty, without knowing the details of the cases. Again, in those cases where there was an element of criminality, those individuals would be encompassed under the provisions for support under the victims code and in the legislation.
As Dame Vera alluded to, a significant number of individuals who have been harmed by antisocial behaviour are already defined as victims under the Bill. The definition as drafted covers a huge range of antisocial behaviour: where the behaviour itself is a criminal offence, such as criminal damage; where the behaviours, when taken together, constitute a criminal offence, such as harassment; or where a civil order has been breached, thereby incurring criminal penalties. In essence, where the antisocial behaviour amounts to criminal conduct, victims harmed by that behaviour can already benefit from measures in the Bill.
Jess Phillips (Birmingham, Yardley) (Lab)
I was going to intervene on the Minister earlier, when he kept saying that we should not put this in the Bill, to ask, “Why?” If it is already included, why not write the words down?
Edward Argar
First, we do not need to do this in the Bill—the points that the hon. Lady makes are essentially two sides of the same coin. I will turn to this in more detail, but we are seeking to be permissive in the breadth of the definition, rather than prescriptive by naming individual groups. Again, that risks causing the effect that she does not want: if we name A, B and C, does that create a hierarchy, and if we miss out D—as this place occasionally does—are we suddenly excluding something unintentionally? We have sought, by criminal conduct and victims of crime, to include as broad a definition as possible. A vast majority of individuals who are sadly victims of antisocial behaviour will be effectively victims of a crime.
The challenge, which I am happy to work with Members on both sides of the House on, is how we can ensure that we address Dame Vera’s key point—in my view, we would not do this on the face of the Bill—which is who decides and how we empower individuals to say, “Police may not have proceeded with it, but I know this is a criminal offence, so I wish to access these services and have a right to do so.” We need to address that key point. I am not sure if that is best done through legislation, but I am happy to work across the House to address that issue.
Anna McMorrin
The amendment seeks to include a clear community trigger that will set off victim support. That is very clear in the amendment, and it will allow those agencies, organisations and authorities to work together in support of people who are victims of repeated, consistent and persistent antisocial behaviour.
Edward Argar
I am grateful to the hon. Lady and I will address that point in my remaining remarks—I will give way again if she feels that I have not done so. In terms of those who suffer from persistent antisocial behaviour that does not amount to criminal conduct, we disagree that putting this in the Bill, rather than seeking other means to achieve an outcome for them, is the best approach. As I set out in my remarks on the previous group of amendments, we have deliberately defined victims in part 1 of the Bill to cover victims of crime. The measures have been designed to ensure that all the criminal justice agencies work together to engage and support those who are victims of crime. We also seek to strengthen the victims code.
A whole range of behaviours are included, and every speech has mentioned behaviours that contained elements of a crime that would therefore enable those individuals to get support. There are different agencies and procedures, as the hon. Member for Cardiff North said, for cases of antisocial behaviour that do not meet the criminal threshold or where there is no specific criminal offence involved. That means, for example, that victims of persistent antisocial behaviour can make a request for an antisocial behaviour review to any of the main agencies responsible, such as the council, police and housing providers.
That does not mean that individuals who have suffered as a result of harmful but not criminal antisocial behaviour are prevented from seeking support. Outside the Bill and the victims code, they can still access support services in their local area. Police and crime commissioners, as well as local authorities, can and do commission support for victims of all types of antisocial behaviour, and can help victims of all kinds of ASB, both criminal and non-criminal, to resolve their issues. Some of the funding they receive is rightly ringfenced for particular criteria and causes, but they do have a degree of overall discretion in their budget as to whether they wish to fund such services.
Anna McMorrin
As I set out in my speech, the police and crime commissioners decide in each area. If someone is a victim of antisocial behaviour, they are not guaranteed any support. Victims of persistent antisocial behaviour have no idea where to turn to access support because the authorities pass them from pillar to post. What the Minister is setting out does not happen; the amendment would ensure that it did.
Edward Argar
I am afraid I disagree with the shadow Minister’s last point. I do not think the amendment would address the operational or on-the-ground implementation issues that she highlights.
On the initial point the shadow Minister made, we have often debated in the House how to strike an appropriate balance in support services for victims of all crimes and of particular types of crime—how to ensure a tailored local support service that reflects the local community, while also ensuring a baseline of services, and a national response when a local community may not commission a particular service because the police and crime commissioner may have to make prioritisation decisions and the number of people likely to use that service in their locality may not be sufficient that they can afford to fund it. We always have this debate about the appropriate line between a national, consistent service, and local tailoring and local empowerment to police and crime commissioners, who are of course directly elected and accountable to their communities for the services they provide—notwithstanding turnout, as I think the shadow Minister indicated.
Sir Oliver Heald
Dame Vera was making the point that these matters are not being taken seriously enough, but there is an offence of harassment. That is repeated behaviour, and it can be antisocial behaviour or bullying. That was treated as a serious matter by Parliament—it is a summary offence—and there is also the more serious offence if fear of violence is involved, which has a maximum sentence of 10 years’ imprisonment. Is it perhaps time for the Minister to discuss with the Attorney General and the Home Office whether there is a need for more impetus to be put behind that provision, whether through guidelines or the prosecution college hub?
Edward Argar
I am grateful to my right hon. and learned Friend for his intervention. We are discussing these issues more broadly not only with the Attorney General but with the Home Secretary, given the cut-across and the importance that is rightly attached to these issues by those who send us to this place and by Members on both sides of the House. I reassure my right hon. and learned Friend that we are looking cross-Government at how we can make such responses more effective.
More broadly, the Government are taking clear action to crack down on antisocial behaviour and to build confidence that it will be taken seriously and, where appropriate, punished. Backed by £160 million of funding, our antisocial behaviour action plan, published in March this year, will give police and crime commissioners, local authorities and other agencies more tools to tackle the blight of antisocial behaviour across communities in England and Wales. That includes increasing policing in hotspot areas and a new immediate justice programme to make sure that offenders are made to undertake practical, reparative activity to make good the loss or damage sustained by victims, or to visibly support the local community in other ways, such as by litter picking. If things go wrong, the antisocial behaviour case review is there to ensure that those affected can seek a solution from the appropriate agency.
The Government will continue to take action for those who suffer as a result of persistent antisocial behaviour. The vast majority of examples given in evidence sessions and in today’s debates have, however, contained elements that would constitute criminal behaviour, which would therefore mean that the individuals were included in the rights under the victims code and the details that we are discussing in the context of the Bill.
We have sought to be less prescriptive and more permissive to make sure that we do not inadvertently tighten the definition too much. We do not share the view of the shadow Minister that adopting the amendment is the right way to address the point, but we do accept the points that Dame Vera and others made. There are two questions or challenges, which are not, in my view, best dealt with by legislation, but which do need to be addressed. First, who decides what is criminal? Secondly, how do we raise the awareness of authorities and individuals, so that people know their rights and that what has happened constitutes criminal behaviour, even if it is not prosecuted and even if there is no conviction? Therefore, those entitlements and rights are there.
Maria Eagle
That is one of the most important points. The victims are told that the police cannot do anything about it because it does not reach certain thresholds. When people understand that they may have rights that relate to being victims of crime, first, they will not have thought that they do—unless someone tells them—and secondly, they will ask the question, “If that is the case, how come the police aren’t doing something about the crime?” That is the conundrum. The Minister’s solution to the issue—not accepting the amendment—does not deal with it.
Edward Argar
The right hon. Lady makes two points. I suspect that in a number of cases the police will look at an offence and say, “We don’t think it meets the threshold for prosecution,” but that dextrous lawyers—we have some in Committee—could probably find a way to have it constitute a criminal offence and be prosecuted. Decisions on prosecutions, however, are made by the independent Crown Prosecution Service, based on the evidential threshold, the public interest and whether there is likely to be a conviction. I will not intervene or interfere in the CPS’s prosecution decisions.
Nevertheless, I am happy to work across the House to find a way to increase awareness. I do not believe that legislation and the amendment are the right approach, but there must be ways to increase awareness among victims that they are victims and among criminal justice agencies and others, so that they understand that, where a criminal offence has taken place, even if it is not prosecuted, individuals should be entitled to support.
Anna McMorrin
I thank the Minister for his response and everyone who has contributed to this important debate. I know that the number of people across the country who suffer from persistent antisocial behaviour—whether that is extreme or slight but persistent incidents which, as I illustrated in my speech, cause people to be locked in their homes and afraid to venture out to the shops, scared even to walk outside their front door—is hugely underestimated. This is a serious issue that must be addressed in the Bill. The amendment would do just that.
My right hon. Friend the Member for Garston and Halewood made excellent points about how the perpetrators of antisocial behaviour jump the gun. Many of them know the system and will make a report to the police in extreme circumstances and where the incidents are criminal, so the police are left not knowing whose side to be on, thinking it is a neighbourhood dispute or something that can be resolved. I, too, have tried to support such victims of antisocial behaviour in my constituency, and it is very difficult to get the agencies and authorities to understand that those people are victims. Including the amendment in the Bill will ensure that they are seen as victims and will have access to services that support them.
The hon. Member for Stroud made an important point about trespassing and storming into houses, which has seen a worrying rise among young people on social media such as TikTok. I know the Minister responded to that in his speech, but it would be good if he could look at the issue again. He said he was not able to address it here and now, but perhaps he could look into it and come back to the Committee—or write to us—on what the Department, the Government and he will be doing to address it.
All that goes back to the main point, the community trigger. With it, we need to ensure that services, the authorities and the criminal justice agencies work together to support the victim. That is what the amendment is intended to do. My hon. Friend the Member for Rotherham made the good point that the authorities need to know where they can step in, which they do not currently know. It should not be in every case for the victim to have to go to their MP, and for the MP to step in to bring the authorities together, as my hon. Friend stated. That is an impossibility for everybody out there. The Minister made the point that people can access lawyers; who in our communities has that knowledge and awareness, especially when they face that trauma? They may be vulnerable and may not have access to the finances to get legal advice.
Edward Argar
I fear the shadow Minister misunderstood what I was saying; I was referring to police and CPS lawyers, who will be able to find ways to prosecute some of these cases, I would hope—not to individuals.
Anna McMorrin
I thank the Minister, but the police and the criminal justice agencies just do not do that. They are stripped of resources. They do not have the ability to look into each case. If the community trigger is reached, support can kick in. Then at least those victims of antisocial behaviour know that they have something to lean on and some way of accessing support. That is why the amendment has been tabled, why I moved it today and why I spoke to it on Second Reading. It is particularly poignant that it will be Anti-Social Behaviour Awareness Week in just a couple of weeks. This is a really good opportunity for the Government to support the amendment, which is why I will press it to a vote.
Question put, That the amendment be made.
Anna McMorrin
I beg to move amendment 17, in clause 1, page 1, line 16, at end insert—
“(e) where the person has experienced child criminal exploitation;”.
This amendment would include victims of child criminal exploitation in the definition of a victim.
The Chair
With this it will be convenient to discuss the following:
Amendment 51, in clause 1, page 1, line 16, at end insert—
“(e) where the person has experienced adult sexual exploitation.”
Amendment 18, in clause 1, page 2, line 6, at end insert—
“(c) ‘child criminal exploitation’ means conduct by which a person manipulates, deceives, coerces or controls a person under 18 to undertake activity which constitutes a criminal offence;”.
This amendment provides a definition for the term “child criminal exploitation”.
Amendment 52, in clause 1, page 2, line 6, at end insert—
“(c) ‘adult sexual exploitation’ means conduct by which a person manipulates, deceives, coerces or controls another person to undertake sexual activity.”
This amendment would provide for a statutory definition of adult sexual exploitation.
Anna McMorrin
The Minister should not be surprised that we are debating child criminal exploitation once more; my hon. Friend the Member for Rotherham tabled a similar amendment to the Police, Crime, Sentencing and Courts Act 2022 just two years ago. Unfortunately, but unsurprisingly, the Government voted against that amendment, so two years on we still do not have a definition of child criminal exploitation in statute. Barnardo’s and the Children’s Society define child criminal exploitation as when
“another person or persons manipulate, deceive, coerce or control the person to undertake activity which constitutes a criminal offence where the person is under the age of 18.”
That is the definition that we would like to see on statute.
Child criminal exploitation takes a variety of forms, but ultimately it is the grooming and exploitation of children into criminal activity. The current reality is that, across each form that child criminal exploitation takes, children who are coerced into criminal activity are often treated as perpetrators by statutory agencies, rather than as victims of exploitation. That is partly because safeguarding partners work to different understandings of what constitutes criminal exploitation.
Recently, child criminal exploitation has become strongly associated with one specific model—county lines—but it can also include children being forced to work in cannabis factories, being coerced into moving drugs and money across the country, or being forced to commit financial fraud, to shoplift or to pickpocket. The lack of shared understanding of what child criminal exploitation is and the guises it can take means that the questions are not consistently asked when children are identified as being associated with criminal activity, either at the time of arrest or during court cases in which the possible coercion of a child has taken place.
Ellie Reeves
Throughout the country, children are being used by criminal gangs to do their bidding, and they are often subjected to the most sophisticated coercion, intimidation, duress, abuse and, sometimes, sexual abuse, so does my hon. Friend agree that it is indefensible not to have them listed as victims in the Bill?
Anna McMorrin
I absolutely agree with my hon. Friend. It is completely indefensible not to have the definition of child criminal exploitation in the Bill to make sure that, as she says, such children are seen as victims, not perpetrators.
The lack of shared understanding that I mentioned also means that children are often arrested for crimes that they are forced to commit, whereas the adults who exploit them are often not investigated or brought to justice, leaving them free to exploit other children, which happens. All this is because of the absence of a statutory definition of child criminal exploitation, the true scale of which is completely unknown. We know that it is happening all over the place—it is off the scale, essentially—but many children who are exploited or groomed fall through the cracks of statutory support so are not identified in official statistics.
In England in 2021-22, there were more than 16,000 instances of local authorities identifying child sexual exploitation as a factor at the end of an assessment by social workers; 11,600 instances of gangs being a factor; and 10,140 instances of child criminal exploitation being a factor. It has been estimated that in England alone there could be as many as 200,000 children aged 11 to 17 who are vulnerable to serious violence because of the levels of crime or income deprivation in their community.
Research carried out by Dame Rachel de Souza, the Children’s Commissioner for England, found that 27,000 children who were at high risk of gang exploitation had not been identified by services and as a result were missing out on vital support to keep them safe. The research also found an even higher number of children who were experiencing broader risk factors linked to exploitation, with one in 15 teenagers—or 120,00 young people—falling through the gaps in education and social care. These are children who are being excluded from school, who are persistently absent or who go missing from care, and many face a combination of factors that leave them vulnerable to exploitation.
In the evidence sessions last week, Dame Rachel de Souza spoke about the importance of including a statutory definition of child criminal exploitation in the Bill. When asked whether it should be in the Bill, she said “absolutely”, and that she had wanted to bring it up herself. She said:
“When I go around the country and talk to children, wherever they are—whether that is being held in police cells or children who are involved in drugs or whatever—I realise just how complex the situations are. You realise that these children are as much victim as perpetrator. Children tell me all the time that their experiences with the police make them feel like they are not victims but criminals. That is what we need to sort out.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 24, Q50.]
Jess Phillips
I think that, last year, four people were charged with child trafficking, and one person was convicted. I believe that last year also saw the highest rate of young boys being trafficked into the system and being recorded in the national referral mechanism. Although the number of victims has gone up over the past 10 years, the number of trafficking convictions has gone down.
Anna McMorrin
I thank my hon. Friend for absolutely illustrating the point.
I want to raise a real case of child exploitation. A 15-year-old boy, whom I will call Robbie—not his real name—was picked up with class A drugs in a trap house raid by the police. He was driven back home by police officers, who questioned him alone in the car and used that information to submit an entry to the national referral mechanism, which did not highlight his vulnerability but instead read like a crime report. Robbie subsequently went to court. His national referral mechanism failed, and his barrister, who did not understand the NRM process, advised him to plead guilty, which he did.
Janet Daby
My hon. Friend is making an excellent speech and speaking up for the rights of children. I am sure we all have cases where we know a child has been exploited and is vulnerable—by definition, a child is a vulnerable person. If a child is criminally exploited, it means that their vulnerability is increased. Does my hon. Friend agree that it makes no sense for them not to be included in the victims code?
Anna McMorrin
That is an excellent point. My hon. Friend has absolutely reinforced the point that such children must be included in the Bill as victims.
I move on to talk about Robbie’s experience—as I said, that is not his real name. In June 2019, he was referred to the Children’s Society’s disrupting exploitation programme. The programme helped Robbie challenge the national referral mechanism decision, and those supporting him attended court sessions with him to ensure that his vulnerability was outlined and that he was recognised as a victim, instead of an offender. That enabled him to retract his guilty plea and access vital support. However, that was just one case. He was lucky: he had the Children’s Society programme there to support him. We know that does not happen for the majority of child victims.
Jess Phillips
Is my hon. Friend aware that had Robbie arrived on a small boat and been trafficked out of a hotel and into a cannabis factory at the age of 10—Channel 4 has found such a case—he would not be entitled to any support from the NRM under the proposals of the Illegal Migration Bill, even though he would be a 10-year-old child who had been groomed into drug dealing?
Anna McMorrin
Absolutely. That illustrates yet more child criminal exploitation. The whole thing is just horrific and absurd, which is why this issue needs to be addressed.
Back to Robbie. As the drugs that he had been selling were confiscated by the police when he was picked up in the raid, there was debt bondage in Robbie’s case, as he now owed the groomer money for the drugs that had been lost. In turn, that resulted in threats to him and his family. The programme then worked with the police to complete intelligence forms and make sure that Robbie’s safety was paramount. It put markers on the home and made sure that the police were aware of the situation, so that they could respond quickly if anything happened. The programme supported Robbie to continue his education.
Amendments 17 and 18 are absolutely vital to make sure that we take the necessary steps to protect vulnerable children and to focus agencies’ attention on the adults who exploit them and are linked to the much, much more serious crimes that are taking place. Protecting children and bringing true criminals to justice—I do not see how anyone, least of all the Government, can object to such a notion. I will push the amendments to a vote later, but I hope the Minister will seek to include them in the Bill.
Sarah Champion
I start by apologising to the Committee. For each month that the Bill was delayed, I tabled another amendment, so I have quite a few today.
I will speak to amendments 51 and 52, which stand in my name, and then to those tabled by my hon. Friend the Member for Cardiff North. My amendments seek to provide a definition of adult sexual exploitation and are informed by my experiences of child sexual exploitation. I hope to make the argument that one very often blurs into the other, and the same arguments stand for both.
In 2009, the Department for Children, Schools and Families introduced a statutory definition of child sexual exploitation for the first time. I can honestly say that it has been transformational in ensuring that child abuse and exploitation are understood and that children receive the necessary support. We now need to accept in this Committee that adults can also be sexually exploited.
The STAGE group is supported by the National Lottery community fund and my hon. Friend the Member for Birmingham, Yardley. It is a fantastic group that highlights the nature and extent of the sexual exploitation of adult women across our communities and seeks to change legislation to give them better support. STAGE brings together a number of charities to provide trauma-informed support for women who have been groomed for sexual exploitation across the north-east and Yorkshire—including, in my constituency, the amazing organisation GROW, which I say to the Minister is severely underfunded at the moment.
Adult sexual exploitation is a specific form of sexual abuse. It occurs where an individual or group takes advantage of an imbalance of power to coerce, manipulate or deceive a person aged 18 or over into sexual activity, usually in exchange for something that the victim needs or wants—often drugs, alcohol or indeed love. It is also usually for the financial advantage or increased status of the perpetrator or facilitator. The victim may have been sexually exploited even if the sexual activity appears to be consensual. It can happen online as well, of course. The victims cannot give informed consent if they see no reasonable alternative to engaging in the activity, or if they have a reasonable belief that non-engagement would result in negative consequences for themselves or others.
Adult sexual exploitation does not always involve physical contact; it can also occur through the use of technology. My amendment 52 reflects the wording used in the statutory definition of child sexual exploitation, which the Government already use. The Government need to accept that not just children are exploited: many women—it is usually women—are exploited as adults, too. They are victims and deserve support, and that begins with ensuring that their abuse is recognised through a statutory definition of this form of sexual abuse.
One case study from the STAGE group is N, whom I will keep anonymous. N is a 22-year-old first-generation British Pakistani woman, who grew up in Leeds in a devout Muslim household. From a young age, N began experiencing sexual abuse from a male in her extended family. N began to spend more and more time outside of the family home; she could not talk to her family about the abuse because she did not want to be seen to bring shame into the household. During her time spent out of the house, N was introduced to a “friend”, whom I will call H.
H began to groom N, supplying her with drugs and alcohol to the point where she developed a dependency. He used her fear about shame as a form of control—to ensure that she did not speak out about the abuse he would subject her to. N was 15 at the time. Between the ages of 15 and 18, N was seen as a victim of child sexual exploitation. She was trafficked around Yorkshire by H, being picked up in taxis and taken to properties to be raped repeatedly. Professionals did all they could to safeguard N, but the abuse continued. N experienced a breakdown in her mental health due to the repeated trauma that she was experiencing, and she began drinking heavily on a daily basis.
When she was 18, the exploitation continued on a weekly, sometimes daily, basis. However, since she moved into adult services, the police and adult social care brought into question whether N was making “unwise choices” in respect of whether she was getting something out of these exchanges. So N was seen as a victim of child exploitation while she was 17—364 days—but the following day, when she turned 18, this victim of adult sexual exploitation was making “unwise choices”.
A lot of work from STAGE partner Basis Yorkshire was put in place, including advocating for N—although she was not a child any more, by law she was experiencing sexual exploitation. Over the past few years STAGE has lobbied health, police and social care services to ensure that N is recognised as a victim of grooming and exploitation. Although she might seem to “choose” to get into a taxi or to meet H or one of his associates, that is in fact a result of the coercion and control that takes place in grooming and exploitation. In legislation we recognise coercive control.
Jess Phillips
I should declare that I am chair of the STAGE group. Is my hon. Friend concerned, as I am, at the disparity when it comes to women who are British citizens? When sexual exploitation is considered as part of human trafficking, a foreign national is far, far more likely to be considered a victim than a British person. In many regards, British victims of sexual exploitation—adults and children—get lesser services.
Sarah Champion
Sadly, I am concerned and I absolutely agree. That is partly why we need a definition. The national referral mechanism was mentioned. By moving a person from one side of the street to the other they are trafficked, so they could fall under the national referral mechanism for modern slavery or just be prosecuted. But without a definition, services are not taking a joined-up approach and using the resources already in place.
The same arguments about choice and risky lifestyles in relation to adult victims of sexual exploitation were used in Rotherham. Having a definition would mean police forces being trained in what the definition means. Legal arguments would be put forward, and judges would receive training so that when they saw a young person in front of them they would understand that their behaviour was a symptom of being sexually exploited. There is a domino effect once a legal definition is in place. That is what happened with child sexual exploitation, so I hope that that will happen with adult sexual exploitation. I will come on to child criminal exploitation, but I have said to the Minister what needs to happen with adult sexual exploitation.
Manipulation by perpetrators, cultural expectations and family and community dynamics make it difficult for women to identify that they have experienced abuse. But sadly, sexual exploitation, as I have said, is not widely understood by professionals. It is vital that the Ministry of Justice use the Bill as an ideal opportunity to create a statutory definition of adult sexual exploitation to ensure a consistent understanding and recognition of the ways that sexual exploitation continues and presents itself in adulthood.
Amendments 51 and 52 would be a huge step in the right direction by recognising people who have experienced adult sexual exploitation as victims and entitling them to the crucial support available under the Bill. That must also come, of course, with support and funding for training to be given to police and justice staff to identify the signs of sexual exploitation.
I will now speak in support of amendments 17 and 18, which are about the definition of child criminal exploitation. The amendments would place a statutory definition of criminal child exploitation in law for the first time by ensuring that children who are being exploited are classed as victims under the Bill. Child criminal exploitation is the grooming and exploitation of children into criminal activity. There is a strong association with county lines, but it can also involve moving drugs, financial fraud and shoplifting on demand. That our laws catch up with our reality and realise the harm and damage that those criminals are causing children is long overdue. The true scale remains unknown, as many children fall through the cracks, but we have some evidence that indicates the scale of the abuse.
The former Children’s Commissioner estimated that 27,000 children are at high risk of gang exploitation. During 2020, 2,544 children were referred to the national referral mechanism due to concerns about child criminal exploitation, and 205 of those cases involved concerns about both criminal and sexual exploitation. The pandemic has only made the situation worse. Children in Need reported that during the pandemic children faced an increased risk of online grooming or exploitation due to time online, not being at school or college, and increased exposure to harmful online content such as inappropriately sexualised or hyper-violent content.
In the evidence sessions last week, the current Children’s Commissioner fully supported introducing a statutory definition of child criminal exploitation. She explained that the situations facing the children affected are very complex and that police make many feel like criminals rather than victims, as my Front-Bench colleague, my hon. Friend the Member for Cardiff North, highlighted.
It is clear that thousands of children are being criminally exploited every day and the response for those children must be immediate and properly resourced. Experts believe that a lack of understanding of child criminal exploitation prohibits an effective and joined-up response. The lack of a single definition means that local agencies respond differently to this form of exploitation across the country. The Children’s Society data shows that a third of local authorities had a policy in place to respond. That means that two thirds do not. Given the nature of this exploitation, a national shared understanding is imperative. That is what a definition would provide.
Let me for one moment contrast the situation with that of the response to child sexual exploitation, which I spoke to on a previous group of amendments. Police officers across the country say to me that, because the police and politicians understand CSE, the police get resources specifically to address CSE. That is great and I support that provision, but it takes away from the resources we need for CCE. They are treated as two separate issues, even though the same gangs often promote both forms of exploitation. They are using these children for criminal exploitation, whether that be sexual, drug running or shoplifting. Accepting the definition would mean that we see criminal exploitation of children and sexual exploitation of children just as “exploitation of children” and we can pool the resources and expertise to try to prevent this crime.
Many children who are criminally exploited receive punitive criminal justice responses, rather than being seen as victims. Again, I take colleagues back; that is what happened 25 or 15 years ago with child sexual exploitation victims.
Rob Butler (Aylesbury) (Con)
The hon. Lady is making some incredibly powerful points and I have sympathy with a lot of them, but on several occasions, she has mentioned circumstances that would constitute criminal conduct. For example, she talked about victim N, who was raped. Rape is clearly criminal conduct. Does she accept that children in that situation would be covered by the provisions in the Bill?
Secondly, she is making a point about how young offenders are dealt with. I am a former youth magistrate and member of the Youth Justice Board. Does she accept that the judiciary dealing with young people are now trained and encouraged to find out whether the defendants in front of them have been subject to this kind of exploitation, and that that is therefore considered in the way that they are dealt with?
Sarah Champion
I will deal with those points in reverse order. My first reaction is to question why they were in front of a magistrate in the first place. How have those children gone all the way through the system to be in front of a magistrate, rather than it having been recognised at a very early point that there is something going on with the child? Why is a 15-year-old repeatedly running drugs across county lines? What is happening? What is behind that? The professional curiosity is not there.
That leads me to the hon. Gentleman’s opening point. Of course, raping a child or raping an adult is a crime. We all recognise that. First, there are very low levels of reporting, and—as I hope I made clear with the adult sexual exploitation argument—a lot of people do not recognise it. They just think, “I’m a drug addict. He’s my dealer. I have to do this in order to get my drugs.”
First there is the reporting situation, and secondly there is recognition. In the case of N, she was seen as putting herself in a risky situation, so she would not be seen as a credible witness. We are not seeing the overall picture and the patterns of behaviour—the fact that the same children might be in the same location day after day—and then going back upstream to see what the motivator is and who is controlling the situation. I hope that having the definition of both terms will enable the police forces, the judicial services and the support services to see the broader picture and place the victim in that broader context. That is where I am coming from with both amendments.
Rob Butler
The hon. Lady posed a direct question to me. In terms of those young people coming before the youth courts, will she acknowledge that there is now a far greater use of diversion at the very early stage by the police and youth offending services, which means in fact that far fewer young people are coming to court? I was directly addressing the situation she raised about what happens when they are in front of that judicial process. In fact, there has been a huge amount of progress in trying not to bring children in front of magistrates or judges if it can possibly be avoided. Does the hon. Lady accept that there will be occasions when the level of offending is so great that society rightly demands that those people must face justice, at which point judges and magistrates can consider all the factors in determining what action to take?
Sarah Champion
I fully accept the hon. Gentleman’s points. There was no criticism implied, but I will give one example. In 2013 I worked with Barnardo’s, and we did an inquiry to see whether the justice system was fit for purpose for child sexual exploitation cases. Something that we found, which I alluded to, was that when a victim was in front of a judge as a witness, they were often seen as chaotic, aggressive and unreliable. We identified that if the judges had training on what a victim of child sexual exploitation presented like or as, it would make a difference. Indeed, it has made a dramatic difference now that that training has been rolled out.
If we got the definition of child criminal exploitation, a judge would automatically get training on the identifiers, so one would hope that the outcome would be more informed on the basis of having understanding of the young person in front of them, rather than just looking at the crimes. That is not to say that there will not be young people who are bad ’uns, who will use this and exploit what they see as a “get out of jail free” pass—I fully accept that could happen—but if the judge has a proper understanding of criminal exploitation, one would hope that they would then be able to challenge that a little more from an informed position and make the right decision for the young individual in front of them.
I have now covered quite a lot of my points—happy days! Another thing that really frustrates me is that many children who experience child criminal exploitation come to the attention of services once they are arrested for crimes. Again, if we had the definition in place and the awareness in the services, one would hope that the child presenting would be seen as a warning sign, rather than as a criminal. Individuals who exploit children for criminal activity are not being held to account. As my hon. Friend the Member for Cardiff North said, only 30 charges under the Modern Slavery Act 2015 were flagged as child abuse in 2019-2020, against the 22,000—I think that was the figure—recognised by the Children’s Society in the same period.
Organised crime groups are aware of this situation and they are deliberately targeting children, because they know that by putting them on the frontline, it is much less likely that they themselves will be in the dock. The Government rightly adopted the statutory definitions of domestic abuse, coercive control and child sexual abuse, so I urge the Minister to do the same for vulnerable children experiencing criminal exploitation; they are victims, just as children of CSE are victims.
I will end with an example. I imagine that two thirds of Members, if not more, get here each week by train. I set those Members a challenge: speak to a train conductor, and I guarantee that they will be able to give daily examples of child criminal exploitation. They see the children going backwards and forwards, often without tickets but often with tickets paid for by the gang leaders. On my train, staff say that now they do not even bother looking for the children, because the common denominator is the bag that they carry either the drugs or the money in. It is different children going up and down, up and down, up and down—so conductors look for the bag and then report it to British Transport police.
British Transport police is funded by the railways. The service has a small budget and there are very few officers, so the likelihood of one being there when that train arrives is slender. Organisations like Railway Children try to support those children, but I guarantee that if Members speak to the conductor on their train, they will say, “Yes, that is happening on my train.”
Lia Nici (Great Grimsby) (Con)
We are all very concerned about the example given by the hon. Lady. Why are the conductors and British Transport police not reporting those children to the police? That does not seem to be to do with the Bill; it seems to have something to do with what is happening in our criminal reporting processes.
Sarah Champion
Sadly, they are reporting it to the police, but the scale of the issue is so enormous and the resources are so intensive that nothing happens. I suggest the hon. Lady speak to her conductor. Normally what happens is that the child will be offered some support, but will then be very up front with the conductor, saying, “No, no—it’s my bag!” and so on. The child then gets off and there are not the resources to have a member of the British Transport police there, and that genuinely is not a criticism of them; I think there are only 4,000 officers for the whole country.
Sarah Champion
British Transport police are the specific police for incidents that happen on the railways and transport networks. Even if we were looking at the Metropolitan police—I am going back and forth to London—the scale of the issue is so enormous that there is not the capacity to deal with it.
Jess Phillips
As somebody who has called the police in those circumstances, we are talking about a nine-day wait for anyone to come out. That is a problem.
Sarah Champion
Minister, it seems a ridiculously simple act to accept these two definitions, but the cascading of support and recognition within the victims code and our justice system would be enormous as a consequence. I have seen that at first hand with child sexual exploitation. I urge the Minister to look seriously into the two definitions.
Ordered, That the debate be now adjourned.—(Fay Jones.)
Digital Markets, Competition and Consumers Bill (Ninth sitting)
Tuesday 27th June 2023
(10 months, 2 weeks ago)
Public Bill CommitteesRead Full debate Digital Markets, Competition and Consumers Bill 2022-23 View all Digital Markets, Competition and Consumers Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 June 2023 - (27 Jun 2023)
The Chair
Before we begin, I remind Members to please switch electronic devices to silent. There is to be no food or drinks, except the water provided. Please send speaking notes to hansardnotes@parliament.uk.
Clause 91
Destroying or falsifying information
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 92 and 93 stand part.
Government amendment 34.
Clauses 94 to 96 stand part.
The Parliamentary Under-Secretary of State for Science, Innovation and Technology (Paul Scully)
Let me cover the criminal offences in the regime, which largely mirror existing powers that the Competition and Markets Authority has in the Competition Act 1998. Criminal liability is important for deterring serious acts of misconduct in the context of information gathering and compliance monitoring, and will help to ensure that the digital markets unit can access relevant information.
Clause 91 makes it a criminal offence for an individual or firm to intentionally or recklessly destroy information, conceal information, provide false information, or cause or permit any of those actions. Those offences apply in relation to any of the powers provided for in chapter 6, which concerns information gathering and compliance reports.
Clause 92 makes it a criminal offence for a person to knowingly or recklessly give false or misleading information to the DMU in connection with any of its digital markets functions. It is also an offence for a person to knowingly or recklessly give false or misleading information to another person, knowing that it will be used by the DMU.
Clause 93 makes it a criminal offence for an individual to intentionally obstruct an officer of the DMU when lawfully entering a premises with or without a warrant.
Government amendment 34 seeks to clarify that named senior managers for information requests and nominated officers cannot be held criminally liable for not fulfilling their duties in those roles. As drafted, clause 94(2) broadens the definition of an officer of a body corporate. That would mean that individuals assigned to those roles could risk facing criminal proceedings on the basis of their assignment to the role. It has always been the policy intention that a named senior manager or nominated officer should face a civil penalty only where a firm with strategic market status has failed to comply with a relevant information request or compliance report and where the named individual failed, without reasonable excuse, to prevent that failure from occurring. The amendment would not prevent a senior manager or a nominated officer from facing criminal proceedings if they happen to also qualify as an officer of a body corporate under clause 94. I therefore hope that the Committee will support the amendment.
Clause 94 sets out that, in certain circumstances, where a body corporate commits a criminal offence, an officer of the body corporate can also be held criminally responsible. An officer of a body corporate can be, but is not limited to, a director, manager or secretary. An officer can be held criminally liable where the body corporate commits a criminal offence and the offence is attributable to that officer’s consent, connivance or neglect on their part. That will help to encourage officers in firms to take personal responsibility for their actions and will ensure that they are held accountable for any serious information offences.
Clause 95 limits the extraterritorial application of certain offences in the Bill, and I will set out our wider approach to extraterritoriality when we debate clause 110. Specifically, clause 95 states that a person cannot commit any of the part 1 criminal offences unless they have a UK connection, which is established when the person is a UK national, is habitually resident in the UK, or is a body incorporated under UK law. We have carefully considered the options and implications of restricting the extraterritorial application of criminal offences in this way. Although it is crucial that the CMA may apply its powers extraterritorially, they must be used only when strictly necessary and when a sufficient connection exists with the UK. In circumstances in which the person does not have a sufficient connection with the UK for the purpose of committing an offence, the CMA will still be able to enforce breaches of information requirements using civil penalties. That approach will ensure that, in exercising its powers, the CMA is respectful of the territorial jurisdiction of other nations.
Finally, clause 96 sets out the punishments that can be imposed by the relevant courts on conviction of a criminal offence under clauses 91 to 93. Any person found guilty of one of those offences is liable on summary conviction to a fine. In England and Wales, that will be of an unlimited amount, and in Scotland or Northern Ireland it will be up to the statutory maximum. On conviction on indictment, a person is liable to imprisonment for up to two years, a fine or both.
Alex Davies-Jones (Pontypridd) (Lab)
I welcome the clauses in this grouping that outline the criminal offences, as the Minister has explained. We welcome their inclusion for clarity, and we are also grateful that they broaden the scope of the Bill to include specific provisions, particularly in clause 94.
We support the clarity and intention of Government amendment 34. It is important that the term “officer” has its usual meaning in relation to offences committed by officers as well as bodies corporate. This is an important clarification and we are grateful to the Minister for tabling the amendment.
Question put and agreed to.
Clause 91 accordingly ordered to stand part of the Bill.
Clauses 92 and 93 ordered to stand part of the Bill.
Clause 94
Offences by officers of a body corporate etc
Amendment made: 34, in clause 94, page 56, line 14, leave out subsection (2).—(Paul Scully.)
This amendment removes a gloss on the definition of “officer” of a body corporate so that the term has its usual meaning in relation to offences committed by officers as well as bodies corporate.
Clause 94, as amended, ordered to stand part of the Bill.
Clauses 95 and 96 ordered to stand part of the Bill.
Clause 97
Director disqualification
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Government amendments 35 and 36.
Clauses 98 to 101 stand part.
Paul Scully
I will now cover the remaining enforcement measures in the regime, and the appeals process. Clause 97 gives power to the DMU to apply to the court to disqualify a director of a UK-registered company that forms part of a firm with strategic market status, where that firm has breached the digital markets regime. That will allow the DMU to use the Company Directors Disqualification Act 1986, as the CMA does currently under the Competition Act 1998, when an SMS firm infringes the regime and the director’s conduct makes them unfit to be involved in the management of a company. That helps to protect UK businesses and the public from individuals who abuse their role and status as directors.
Government amendment 35 clarifies that costs relating to a court order under clause 98 can be made against any person that has breached the relevant requirement, whether or not they are an undertaking. The amendment changes the wording in subsection (3) to reflect the rest of the clause, which applies to persons—in practice, meaning a legal entity forming part of an SMS firm. I hope the Committee supports the amendment.
Government amendment 36 seeks to clarify in clause 98 that where a firm is responsible for the failure to comply with a relevant requirement, a costs order can be made against any officer of the relevant firm.
Clause 98 allows the DMU to apply for a court order where an SMS firm fails to comply with a regulatory requirement and, where relevant, a subsequent order or commitment intended to bring them back into compliance. A breach of a court order is a serious offence that can eventually lead to an unlimited fine and/or imprisonment for officers of the undertaking in question if it is not complied with. The threat of a court order is a key backstop for ensuring SMS firms comply with the regime.
Clause 99 makes explicit provision to allow parties to seek redress privately if they suffer harm or loss when an SMS firm breaches a requirement imposed by the DMU. Redress will be available when an SMS firm breaches a conduct requirement, pro-competition intervention or commitment to the DMU.
Clause 100 sets out that the CMA’s final breach decisions are binding on the courts and the Competition Appeal Tribunal to which redress claims can be made. The court or tribunal will only consider what a suitable remedy would be. That will encourage harmed parties to assist the DMU during investigations into suspected breaches of the regime.
Clauses 99 and 100 strike the right balance of ensuring there is a clear and effective route to redress, while ensuring that the regime’s focus is on public enforcement.
Clause 101 provides that decisions of the DMU, made in connection with its digital markets functions, can be appealed to the Competition Appeal Tribunal. When deciding these challenges, the CAT will apply judicial review principles. Valid grounds for appealing decisions of the DMU could include challenging whether it acted lawfully and within its powers, applied proper reasoning or followed due process, as well as, in some circumstances, whether the DMU’s decision was proportionate. That is with the exception of decisions relating to mergers, which will be brought under the existing process for merger appeals set out in the Enterprise Act 2002. That will ensure that there is a consistent appeals regime for all merger decisions.
Judicial review will allow for appropriate scrutiny of the DMU’s decisions in the digital markets regime, ensuring that the DMU is accountable for those decisions, that they are fairly and lawfully taken, and that the rights of businesses are protected. I am sure we all remember the oral evidence: the majority of people in front of us were clear that this was the right approach, and was proportionate.
Alex Davies-Jones
Clause 97 is important in that, as the Minister said, it enables the disqualification of a person from being a director as a consequence of their involvement in an infringement of a requirement relating to conduct requirements or pro-competition interventions. Labour sees that as an important step in ensuring that individuals who have not abided by the terms of this regime are not able to continue in their role. The clause specifically inserts new text into the Company Directors Disqualification Act which allows for these provisions. We welcome that this disqualification can be for up to 15 years—a significant yet fair period—and support the Government’s approach. We therefore support clause 97 in its entirety and think that it should stand part of the Bill. I am pleased to confirm that we also support Government amendments 35 and 36.
I will now move on to clauses 98 to 101. On clause 98, we particularly agree with the logical step set out in subsection (1). Its clarification means that, in the event of any initial breach of a conduct requirement that occurs before an enforcement order has been put in place or a commitment has been accepted, it cannot be enforced with a court order. We also agree with the intentions of subsection (3). Again, these are sensible approaches which we support. On the whole, we believe clause 98 to be an important step in establishing and rooting the CMA’s powers on a statutory footing. For that reason, we are happy to support it standing part of the Bill.
A fair regulatory regime must include provisions around seeking compensation, so we welcome clause 99. We particularly welcome subsection (2). We further welcome the clarity that subsection (4) affords. Again, these are simple clauses that we see as logical and sensible. We are happy to see their inclusion.
I now come to the most important clause in the Bill: clause 101. The Minister will be pleased to know that I have plenty to say on it. Subsections (8) to (10) provide that decisions of the CAT may be appealed to the appellate court for that jurisdiction. That is an incredibly important point and one which the Government must maintain. The DMU will ultimately have the power to make pro-competitive interventions to reduce SMS firms’ market power and to review more of their mergers. That means that they will be able to make significant changes to SMS firms’ business models with the objective of opening up their ecosystems and levelling the playing field for other businesses. The benefits of doing so are significant, and I am sure we will touch on them in sessions to come.
In the current version of this Bill, the standard of review that applies to DMU decisions is the judicial review standard generally used for authorities that make forward-looking assessments, rather than the “merits” standard used for certain competition law enforcement decisions by the CMA. That means that parties will be able to apply to the Competition Appeal Tribunal to review the legality of the DMU’s decisions, focusing on the principles of irrationality, illegality and procedural impropriety. That is an extremely important point and is consistent with other regimes, so the Government must not bow down to pressure here and adopt a “merits” appeals approach. As the Minister quite rightly said, we heard from countless witnesses during our oral evidence sessions who said the same.
We know that judicial review appeals are more streamlined than merits appeals and they can last a matter of days, rather than weeks, years or even decades. Under this Government, our courts are already facing significant backlogs—perhaps the less said about that the better—but there is no reason why we should subject this regime and the appeals principle to even further delay. We recognise the pressure that the Government are under here; clearly, potential SMS firms and their advocates oppose the adoption of the JR standard. It is obvious that a company that may be negatively impacted by this new regime would seek to obstruct or delay it by arguing for an appeals process that incorporates a consideration of the merits of the case.
However, Labour strongly believes that the current drafting is fair and well aligned with other regulatory regimes. For far too long, big tech has had the ear of this Government and has been able to force the hand of many of the Minister’s colleagues when it comes to online safety provisions. The Minister must reassure us that that will not be the case. I look forward to his confirmation.
Paul Scully
I appreciate the hon. Lady’s approach to the appeals standard, which she has taken in regard to the measures throughout the Bill. The Government speak to larger companies and smaller challenger companies, because it is really important that we get this right. I can assure the hon. Lady that there is no way we are going to weaken the appeals structure. We will always make sure that we listen and do things fairly. In no way will the structure be watered down such that challenger tech cannot come through. It is important we ensure that the Bill in its final form is the best it can be and is fair and proportionate.
Question put and agreed to.
Clause 97 accordingly ordered to stand part of the Bill.
Clause 98
Enforcement of requirements
Amendments made: 35, in clause 98, page 58, line 23, leave out “undertaking” and insert “person”.
The requirements to which clause 98 relates can apply to persons other than undertakings. This amendment clarifies that a costs order under this clause can be made against any person, whether or not they are an undertaking, who fails to comply with a requirement.
Amendment 36, in clause 98, page 58, line 25, leave out paragraph (b) and insert—
“(b) where the person responsible for the failure is an undertaking, any officer of a body corporate that is or is comprised in that undertaking.”—(Paul Scully.)
This amendment clarifies the circumstances in which a costs order under this clause can be made against an officer of a body corporate.
Clause 98, as amended, ordered to stand part of the Bill.
Clauses 99 to 101 ordered to stand part of the Bill.
Clause 102
Extension etc of periods
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 103 stand part.
Government amendment 37.
Clauses 104 to 109 stand part.
Government amendment 38.
Clauses 110 to 114 stand part.
Government amendment 39.
Clause 115 stand part.
New clause 4—Annual report on operation of CMA functions—
“(1) The Secretary of State must, at least once a year, produce a report on the operation of the CMA’s functions under Part 1 of this Act.
(2) Each report must include an assessment of the following matters—
(a) the outcomes of SMS investigations carried out by the CMA, with regard to the number of undertakings found—
(i) to have SMS, and
(ii) not to have SMS;
(b) the extent to which designated undertakings have fulfilled any conduct requirements imposed by the CMA; and
(c) the effectiveness of any pro-competition interventions made by the CMA.
(3) The first report must be published and laid before Parliament within one year of this Act being passed.”
This new clause requires the Secretary of State to produce an annual report on the operation of the CMA’s functions under Part 1. The report will be made publicly available and will be laid in Parliament.
Paul Scully
Clauses 102 to 115 deal with the administration of the regime and some technical matters. Clause 102 provides the DMU with the ability to extend investigations for strategic market status, conduct and pro-competition interventions, including the use of the final offer mechanism, for up to three months for special reasons. If a firm does not comply with information or interview requests, the deadlines can be extended until compliance is achieved. Clause 103 supports that measure by clarifying that special reasons extensions can be used once per investigation and specifying how total extension periods are calculated. Together, that provides clarity for firms on how investigations will be run and ensures that the implementation of extensions by the DMU is consistent.
Clause 104 sets out who will be permitted to take decisions in the new regime. It reserves the launch of strategic market status and pro-competition investigations to the CMA board, and further specified regulatory decisions to the board and one of its committees. The committee’s membership is constrained to provide a balance of independence and expertise.
Government amendment 37 amends clause 104 and requires that the continued application of existing obligations at the point of further designation, or transitional arrangements at the end of designation, are decisions reserved for the CMA board or its committees. That will ensure consistency across the introduction of obligations on firms.
Clause 105 sets out the manner in which a notice may be given to SMS firms or other relevant parties in relation to its functions under the digital markets regime. The provision is necessary to prevent parties frustrating investigations by claiming that they have not received a notice or that it has not been given to them in the proper way.
Clause 106 creates a statutory duty for the DMU to consult key regulators on significant proposed actions that engage their regulatory interests where it is relevant and proportionate to do so. Those regulators are the Information Commissioner, Financial Conduct Authority, Ofcom, Prudential Regulation Authority and the Bank of England. That ensures that the DMU can draw on expertise, avoid negatively impacting the interests of other regulators and prevent conflicting interventions.
Clause 107 creates a formal mechanism for the Financial Conduct Authority or Ofcom to make a recommendation to the CMA for it to exercise a significant digital markets function. That will ensure that the FCA and Ofcom, as concurrent competition regulators, have a clear and transparent process to refer cases to the DMU.
Clause 108 extends existing information-sharing provisions in part 9 of the Enterprise Act 2002. It ensures that information can be shared between the CMA and other relevant regulators to help them to carry out their statutory functions. The CMA will be able to disclose information to SMS firms or third parties to enable them to respond to allegations, seek legal advice or make appeals.
Alex Davies-Jones
Clause 102 is incredibly important if the CMA and, subsequently, the DMU are to be able to be an accountable body that consumers and businesses—and parliamentarians—have confidence in. This clause allows the CMA to extend various deadlines in part 1 of the Bill by up to three months where there are “special reasons” to do so. Those may include, for example, illness in the CMA investigation team. These are important provisions to ensure that the CMA is able to extend relevant investigations by up to three months.
We think it reasonable that the clause does not define the exact parameters of “special reasons”. We support a common-sense approach and therefore anticipate that those would include matters such as the illness or incapacity of members of an investigation team that has seriously impeded their work, and an unexpected event such as a merger of competitors. We further support the need for the CMA to publish a notice to trigger an extension under this clause. However, the Minister knows how important it is that these notices are made public, so I hope that he can clarify that that will be the case here.
It is right and proper that subsection (7) outlines the interaction between SMS investigations and active SMS designations. If the CMA is carrying out a further SMS investigation for a designated undertaking and needs to extend it, that investigation may not conclude until the original designation has expired, meaning the undertaking would fall outside the regime before the need for continued SMS designation is confirmed. The clause enables the SMS designation to be extended to match the length of the SMS investigation period and is a sensible approach that Labour supports.
We also welcome the provisions around clause 103, allowing the CMA to extend an SMS designation by up to three months. That speaks to the nature of an agile and flexible regime, which we ultimately all want and support. Government amendment 37 prevents decisions about whether and how to exercise the power in clause 17 being delegated to a member of the CMA’s board or a member of staff of the CMA. We consider that to be an appropriate response.
Clause 104 is crucial all round because it explains how decisions will be made under the digital markets regime and has practical applications in establishing exactly how the functions within the CMA will be able to operate when implementing the legislation. Notably, subsections (1) to (5) provide the CMA with the ability to create groups. The CMA must state the function for which such a group is established and the group will be required to fulfil that function. Can the Minister confirm where that information will be reported? Again, it will be helpful for us all to understand how that will work in practice.
We also value the clarifications outlined in the clause, which establish that to be eligible to carry out the functions under subsection (2A), a committee must include at least two CMA board members, which can include the chair. Furthermore, a majority of the committee’s membership must be non-staff or CMA panel members. We welcome the clarification that any changes of this nature would need to be laid before and approved by each House of Parliament before being enacted. Can the Minister confirm whether the Secretary of State will be required to be consulted under the provisions? That aside, we support the clause and believe it should stand part of the Bill.
We support clause 105 and welcome the clarification that a notice may be given to the particular individuals specified in subsections (3) to (5). This is an important clause that will allow the CMA to fulfil its obligations as the regulator. We also welcome clause 106, which outlines the requirements that will ensure the CMA has to consult specific named regulators, and welcome the clarity that those five regulators are the Bank of England, the Financial Conduct Authority, the Information Commissioner, the Prudential Regulation Authority and Ofcom. It is positive that they are outlined in the Bill. They are all established and relevant regulators that are subject to their own vast regulatory regimes, so Labour supports their involvement in assisting the CMA to regulate the regime proposed in the Bill. Again, we feel that subsection (6) is fair and reasonable. We particularly approve the fact that it is proportionate and we are happy to support it.
If clause 106 forces the CMA to consult the specific named regulators, it is only right that clause 107 sets out the formal mechanisms to be exercised under their regulatory digital markets function and that they are in the Bill too. We welcome the clarification on the timeframes, particularly around the fact that the CMA must respond to each relevant regulator within 90 days, setting out what action, if any, it has taken or will take and the reasons for that decision. It is important that those time periods are established in the Bill so as not to delay the CMA in taking action on a firm that is not operating in alignment with the regime.
For transparency purposes, we are also pleased to see the summaries of the CMA’s responses and that they must be published online. I am sure the Minister is pleased that that is included. We will come on to that matter as we address further clauses, particularly clause 112.
We welcome clause 108, which we see as a procedural clause that additionally extends current provisions to enable information sharing between the CMA and the Information Commissioner’s Office where that facilitates the exercising of one of their respective statutory functions, and we support the clause’s intentions. Information sharing must be encouraged between the agencies to allow for a regulatory regime to work in practice and be robust. It is right that the clause makes amendments to the Communications Act 2003 and the Enterprise Act 2002, which we see as vital for the regime to work in practice. We therefore support the clauses and believe they should stand part of the Bill as fully drafted.
Labour fully supports the provisions in the Bill to ensure the CMA has sufficient power to collect a levy from designated undertakings to recoup the costs associated with delivering the digital markets regime. We see that as a positive and effective way of encouraging compliance, but also an important way of generating funds to ensure the sustainability of the digital markets regime more widely. The polluter pays model is commonplace in a wide range of policy areas and it can be immensely effective. We therefore welcome the provisions in full. I do not need to address each subsection individually because the overall message is the same. SMS firms should absolutely pay a levy. For far too long they have got away with having considerable power and profit, and the time for them to have a statutory obligation to support measures such as those outlined in the Bill is well overdue.
We support the provisions in Government amendment 38, which we hope will go some way to assist should penalties have to be invoked by the CMA. The amendment permits notices to be served on people outside the UK if the CMA is considering imposing a penalty. Again, that is appropriate, and the Minister can be assured of our support. We feel that the provisions in clause 110 are fair and in alignment with similar regimes already in place, so we are happy to support it too. This is all becoming very collegiate.
Clause 111 protects the CMA against legal action for defamation as a result of its exercise of functions under the digital markets provisions in this part, and we support it entirely.
We welcome the provisions outlined in clause 112, which confirms the CMA’s duties to consult and publish statements online. As the Minister will be aware, any measures around transparency must factor in an element of consultation and transparency, so we welcome the clarifications that clause 112 affords. Colleagues will note that subsection (1) makes provision for when the CMA consults and publishes a statement. We think that it makes perfect sense. We are happy to support it, and wish to see that transparency echoed throughout the Bill.
Clause 113 is again welcome because it sets out the CMA’s obligation to publish guidance. It is important to have confirmation that the CMA will be able to revise or replace any guidance that it publishes, but must publish the revised or replacement guidance. While we recognise that that could include industry associations with a particular interest in the specific guidance in question, I would be grateful if the Minister would clarify whether others may be consulted in the instance of revised guidance being published? That aside, we support the intention behind clause 113 and believe that it should stand part of the Bill.
Clause 114 is particularly important. In the case of a large corporate group whereby a designated undertaking may be part of a wider body, it is important that that is defined within the Bill and interpreted when used throughout the Bill. Turning to Government amendment 39, we of course support the need to ensure that the definition of
“relevant service or digital content”
is consistent with the definition of “digital activity”, so we will support the amendment. We welcome clause 115 and do not disagree with any of the definitions outlined therein. We see them as fairly standard, as long as they are applied with common sense. We therefore fully support the clause.
Lastly, turning to new clause 4, we have already touched on this to some extent in previous debates. The aim of the new clause is clear: we want there to be more transparency over the function of the CMA’s regime. Particularly when it is in its infancy, the information will be extremely useful to businesses, civil society, academics and parliamentarians alike. It will also be important for other jurisdictions to have a meaningful way of understanding the regime, particularly if we want it to be world leading, when considering options for their own legislation.
I hear the Minister’s comments regarding replication of work and the need for the independence of the CMA, but it is right that Parliament has that scrutiny and overview. I would welcome his commitment to ensure that Parliament will have a mechanism by which to review the activity of the CMA via a regular report. If he could commit to me that that will be the case, we will not need to press the new clause to a vote.
Paul Scully
I thank the hon. Lady for her approach. Let me answer some of her questions. Notices will be made public, and information about the groups will be reported online. Under clause 104, the Secretary of State would not need to be consulted because, again, it is an independent regulator, so mandatory consultation with the Secretary of State is not necessarily appropriate. On clause 113 and who will be consulted on the revised guidance beyond industry, it will be relevant stakeholders, such as SMS firms themselves, other regulators such as Ofcom and the ICO, businesses likely to be affected by the decisions, and consumer groups. A wide-ranging consultation will be required to ensure that the regime works properly.
I think I can give the hon. Lady the assurance that she is looking for on new clause 4. It is really important that Parliament continues to be able to scrutinise the regime effectively. I do not think that it is appropriate to take the approach that the Secretary of State needs to do another form. It is less to do with duplication; it is more to do with the fact that if the Secretary of State is putting forward his or her own report, that might undermine the report that the CMA is doing. The CMA has an annual report, which it will publish at the end of each financial year. It will include a survey of developments relating to its functions, assessments of its performance against its objectives and enforcement activity, and a summary of key decisions and financial expenditure. That should be enough for Parliament to scrutinise that report and the work of the CMA and the DMU. I am happy to give that assurance that Parliament has that scrutiny and oversight.
The Chair
With this it will be convenient to discuss the following:
Clauses 117 to 121 stand part.
That schedule 3 be the Third schedule to the Bill.
Clauses 122 and 123 stand part.
Clauses 134 and 135 stand part.
Paul Scully
I hope my voice will stand up to this level of scrutiny. Part 2 of the Bill focuses on the UK’s existing competition regime. First, I will explain that while the CMA is the principal regulator responsible for the public enforcement of the prohibitions in part 1 of the Competition Act 1998, its functions are also exercisable concurrently by sector regulators, such as Ofgem and Ofcom, among others. The measures in clauses 116 to 120 and clause 135, and when we reach them clauses 136 and 137 and schedules 8, 9 and 11, affect the CMA and sector regulators. For the sake of brevity, I will just refer to the CMA.
Clause 116 extends the territorial reach of the chapter 1 prohibition in the Competition Act 1998. The prohibition relates to anti-competitive agreements, decisions by associations of undertakings or concerted practices, hereafter simply referred to as agreements. The chapter 1 prohibition captures agreements that have as their object or effect the prevention, restriction or distortion of competition within the UK, and which may affect trade within the UK. Currently, it is limited to agreements that are, or are intended to be, implemented within the UK. The extension in reach of the chapter 1 prohibition means that agreements implemented, or intended to be implemented, outside the UK are also captured, but only where they would be likely to have immediate, substantial and foreseeable effects on trade within the UK.
Clause 117 introduces a new duty to preserve documents on persons who know or suspect that an investigation is being, or is likely to be, carried out under the Competition Act 1998. The duty will apply from when a person knows or suspects that an investigation by the CMA is under way or likely to occur. Where a person has a reasonable excuse for not complying with the duty, no liability for a penalty will arise. A reasonable excuse could include something out of an individual’s control, such as an IT failure.
Clause 118 strengthens the CMA’s powers to require the production of electronic information stored remotely—for example, in the cloud—when executing warrants to enter business or domestic premises. Under this reform, the CMA will be able to require the production of information for the purposes of its investigation without needing to demonstrate when making the request the specific relevance of the particular dataset to be produced. It will then be able to take copies or extracts only of information that is relevant to the investigation. The CMA will also be able to operate equipment to produce remotely stored information itself. Clause 134 makes similar amendments to the CMA’s power to require the production of electronic information when executing a warrant during an investigation into a suspected criminal cartel offence under part 6 of the Enterprise Act 2002.
Clause 119 amends part 1 of schedule 1 to the Criminal Justice and Police Act 2001, to include the power of the CMA to undertake an inspection of domestic premises, under section 28A of the Competition Act 1998. That means that when the CMA undertakes an inspection of domestic premises, it will have access to the same seize and sift powers as are already available to it when it inspects business premises under a warrant.
Clause 135 also concerns the CMA’s investigative powers. First, it expands the CMA’s power to require persons to answer questions for the purposes of a Competition Act 1998 investigation, so that it applies regardless of whether the person has a connection to a business under investigation. The CMA will be able to require individuals to answer questions only where they have information that is relevant to an investigation. Secondly, the clause amends the CMA’s powers to require individuals to answer questions across its Enterprise Act 2002 markets and mergers and Competition Act 1998 functions, so that it can specify that interviews for those purposes should take place remotely.
Clause 120 amends the standard of review applied by the Competition Appeal Tribunal in appeals against interim measure decisions from full merits to judicial review. Interim measures are temporary directions that the CMA has the power to give during an investigation under the Competition Act 1998. To be an effective tool in fast-moving modern markets, it is essential that interim measures can be implemented efficiently. Judicial review will provide a flexible and proportionate standard of review, ensuring the CMA is held accountable appropriately for its decisions.
Clause 121 introduces schedule 3 to the Bill, which amends the Competition Act 1998 to empower the Competition Appeal Tribunal to grant declaratory relief in private actions claims under the Competition Act 1998. Declaratory relief is a remedy that involves a court making a legally binding statement on the application of the law to a set of facts.
Clause 122 gives the Competition Appeal Tribunal, the High Court of England and Wales, the Court of Session and sheriff courts in Scotland and the High Court in Northern Ireland the ability to award exemplary damages in private competition claims. This will help deter and punish particularly egregious conduct and ensure that those impacted by the most reckless breaches of competition law can be awarded additional damages.
Clause 123 amends section 71 of the Serious Organised Crime and Police Act 2005 to designate the CMA as a specified prosecutor. This designation will allow the CMA to enter into formal agreements with an offender who has assisted or offered to assist its criminal cartel offence investigations. For example, if it considered it appropriate, the CMA could agree not to use specified information against them in any criminal proceedings. Agreements to provide assistance can also be taken into account by the courts when sentencing an offender, or their sentence could be referred back to the court for review. These measures do not enable the CMA to offer immunity from prosecution.
Alex Davies-Jones
Part 2 focuses on the competition elements of the Bill. I am pleased to see clause 116, which expands the territorial reach of parts of the Competition Act 1998. Labour recognises the importance of ensuring that legislation already on the statute book is aligned with the intentions behind the Bill, because we understand that regulation of our digital markets will draw on existing competition law. We therefore welcome the clause, which will expand chapter 1 of the 1998 Act. The chapter 1 of the 1998 Act considers only undertakings and decisions that might affect trade within the UK, and which have as their object or effect the prevention, restriction or distortion of competition. At the moment, those behaviours are prohibited only where they are, or are intended to be, implemented in the United Kingdom, but we need to consider the impact of agreements, decisions and practices that might affect trade within the United Kingdom. Subsection (2) of the clause will replace the existing section of the 1998 Act to ensure that a consideration of the effect on trade will be considered. That is particularly important in the context of digital markets because they operate on a global level.
The clause goes some way to address the lack of futureproofing in the Bill more widely. The Minister knows my thoughts on that, and knows the Bill should go further in that regard. That aside, we welcome subsection (3), which will repeal the existing equivalent in the 1998 Act. The introduction of the qualified test will ensure that UK trade and businesses and consumers based in the United Kingdom, are protected from any detrimental effects of anti-competitive conduct, regardless of where that conduct takes place. That is welcome, and we consider the measure to strike a positive balance.
We welcome the clarity and the changes to the 1998 Act that will bring important provisions of the Bill into line with existing legislation. We have therefore not sought to amend the Bill, and we support those measures being part of it.
Clause 117 is important in that, once again, it will amend part 1 of the 1998 Act. We know that big companies can often be smart in concealing, or even overloading, information relevant to regulatory regimes, and we have seen that happen time and again when it comes to online safety. Labour does not want the same detrimental behaviours to be allowed to continue within this regime. We therefore welcome the provisions in the clause, particularly proposed new section 25B, which sets it out that the duty applies where
“a person knows or suspects that an investigation by the CMA… is… or is likely to be carried out.”
The inclusion of a person “suspecting” is important, and, in theory, it will push companies to abide by their duties. Recently, we have seen those at the heart of Government in the news owing to their failure to produce vital documents in investigations of the covid-19 pandemic, so it is very welcome indeed that the Government appear to have learned their lessons and worked to ensure that designated companies will not be able to circumvent the regime, as a former Prime Minister has attempted to do.
Let me get back to the Bill and the matters at hand. In practice, those duties will arise where a business receives a case initiation letter from the CMA, so it will be perfectly aware that its conduct is under investigation. Such duties might further arise when, for example, an individual working for a business is aware that a customer has reported their suspicions of price fixing, and that the customer has been interviewed by the CMA, or members of an anti-competitive agreement have been “tipped off” that a member of the agreement has blown the whistle to the CMA. Those are important clarifications, which we welcome. We therefore support their inclusion in the Bill.
We support clause 118, which specifically amends sections 28 and 28A of the 1998 Act, and we support the clarity with respect to the execution of such warrants—for example, a named CMA officer has the power to require the production of information that is held electronically and is accessible from the premises. It is a positive step to have these amendments to the 1998 Act, which will expand the powers of the court or the CAT to grant a warrant to the CMA based on the fact that there are reasonable grounds to suspect that there are documents relating to an investigation that are accessible from the premises, when the other criteria set out in the section are met. Those powers will apply to any information stored electronically, and we hope and expect that the provisions of the clause will rarely be used. Despite that, we fully support their inclusion. It is right and appropriate that businesses and other jurisdictions looking closely at the Bill have a sense of the process that will result in the event of the CMA being forced to act on a warrant. The clause and others in this part of the Bill are an important part of ensuring compliance, and we therefore welcome the provisions in full.
Clause 119 is, once again, an important clause that will amend existing legislation. The powers of seizure conferred by section 28 of the 1998 Act are already specified for the purposes of section 50 of the Criminal Justice and Police Act 2001, so the amendment will align the powers available to the CMA whether it is inspecting business or domestic premises under a warrant, and it will make consequential changes in the light of those made by clause 118. These practical clauses will make important changes to legislation to bring other provisions in line with the Bill.
The Chair
With this it will be convenient to discuss the following:
That schedule 4 be the Fourth schedule to the Bill.
Clause 125 stand part.
That schedule 5 be the Fifth schedule to the Bill.
Clauses 126 to 128 stand part.
Paul Scully
Chapter 2 of part 2 upgrades and refines UK merger control to ensure it remains the best in class. Clause 124 and schedule 4 amend the thresholds for merger review to focus the UK’s merger regime on reviewing the transactions that have the potential to have the most marked impact on competition in UK markets.
The Bill makes three changes to those thresholds. First, it introduces a new acquirer-focused threshold, which gives the CMA clear jurisdiction over transactions in which a very large business with a UK turnover of more than £350 million, and at least a 33% share of supply, acquires another business. The new threshold will allow the CMA to review potentially harmful transactions—for example, a business with significant market power in one part of a supply chain acquiring a business in another and then being able to leverage its market power across that supply chain.
Secondly, the Bill increases the turnover test level from £70 million to £100 million. That adjustment limits merger review of cases that are less likely to be harmful, maintaining the balance intended when the UK’s merger regime was created. Thirdly, it introduces a safe harbour for transactions where all parties have a UK turnover of no more than £10 million. For the first time, therefore, small and micro enterprises merging with each other can be certain that they will not be captured by UK merger control.
Clause 125 and schedule 5 introduce a fast-track procedure to allow certain mergers to be expedited to an in-depth, or phase 2, investigation. That is intended to increase flexibility and deliver more efficient merger investigations. Now, when the CMA investigates a merger, initially it has to undertake a phase 1 investigation lasting up to 40 working days before it can refer the transaction for an in-depth phase 2 investigation. Merger parties, however, may be aware early in the process that their merger is likely to require an in-depth investigation by the CMA. In such cases, moving quickly to phase 2 will significantly speed up the overall process. Let me be clear: the fast track is not a suitable process for all mergers that the CMA reviews. However, in some cases, it will be a valuable tool to save time and resources for all involved, especially if parties request a fast track early on.
Clause 126 enables merger parties and the CMA to extend existing statutory time limits for merger reviews by mutual agreement where appropriate. The increased flexibility that that provides will ultimately help to resolve cases more effectively and, in some cases, more quickly. Clause 127 enables the CMA and merger parties to extend the time limits of merger review in public interest cases. Unlike in a normal merger review, however, the Secretary of State has an important role in decision making in public interest cases. This clause therefore sets up a key additional requirement for such cases: the CMA can only make or cancel an extension if the Secretary of State also consents. Clause 128 replaces the requirement for the CMA to publish the merger notice in the London Gazette, Edinburgh Gazette and Belfast Gazette with a requirement to do so online.
Alex Davies-Jones
Labour welcomes the provisions in the clause which establish that transactions within jurisdiction can be reviewed by the CMA, although no obligations or requirements are imposed on businesses by being in scope. Schedule 4 introduces the new acquirer-focused threshold, as well as introducing a small merger safe harbour that is primarily targeted at reducing the regulatory burden faced by small and micro businesses—the burden that we heard about in our evidence sessions. We support the clause standing part.
Schedule 4 makes several changes to the thresholds, which determine what transactions are within the jurisdiction of UK merger control. As I have noted already, the UK’s merger control regime is voluntary, meaning that there is never on obligation to notify a transaction to the CMA. However, when the existing jurisdictional thresholds in the Enterprise Act 2002 are met, the CMA may review a transaction even if it is not notified. The CMA has such jurisdiction if: the target’s UK turnover in its most recently completed financial year exceeded £70 million; or the parties have a combined share of supply of 25% or more in relation to any product or service in the UK or a substantial part of the UK. This schedule will clarify some significant changes to those thresholds, which Labour welcomes.
Schedule 4 introduces a new threshold that will grant the CMA jurisdiction to review transactions where one party has a UK share supply of at least 33% and UK turnover exceeding £350 million. We see the new threshold as largely capturing killer acquisitions, in which a larger firm acquires a smaller and possibly innovative firm, potentially with a view to eliminating the threat of future competition. The CMA’s existing 25% share-of-supply threshold has already shown itself to be flexible in capturing many such transactions, but it is estimated that the new threshold will lead to an increase of between two and five phase 1 cases per year. That is to be applauded.
The new £350 million threshold is aimed at expanding the CMA’s jurisdiction, but other sections of schedule 4 seek to reduce the burden on merging companies by removing certain transactions from the CMA’s jurisdiction. By increasing the target turnover threshold from £70 million to £100 million, it is estimated that the changes to the turnover test will lead to a reduction of two or three phase 1 cases per year. In addition, the Government have proposed an interesting solution with the introduction of a safe harbour threshold to the existing share-of-supply test where, even if the 25% share of supply threshold is met, the CMA would not have jurisdiction if no party to the transaction had more than £10 million of UK turnover.
Labour recognises that it would be inappropriate to burden the CMA unnecessarily, but we are keen to have an understanding of how schedule 4 will operate in practice. Has the Minister considered introducing an annual reporting mechanism that would allow for more transparency on whether the approach is working? That aside, we certainly and carefully support the intentions of this schedule.
We welcome the provisions of clause 125 and are pleased to see that particular attention has been given to merger situations. Labour recognises that designated companies often buy other companies or merge with them, so it is only right that the CMA is empowered with the appropriate tools to investigate in such circumstances, where necessary. As we know, at present the UK’s merger control regime is voluntary, meaning that there is never an obligation to notify the CMA of a transaction. However, as I have said, when the thresholds in the Enterprise Act are met, the CMA may review a transaction despite not having being notified of it.
Clause 125 is relevant because it amends part 3 of the Enterprise Act to enable the CMA to fast-track a merger to an in-depth phase 2 investigation if it receives a request from the parties involved to do so. That is an important step in streamlining merger review procedures and timelines by removing certain statutory duties on the CMA that currently limit the benefits and use of the existing, non-statutory fast-track procedures. This fast-track process gives the CMA more flexibility to deliver quicker and more efficient merger investigations without prejudicing the quality of the review. We welcome the clarifications in clause 125 and support its standing part of the Bill.
We welcome schedule 5, which amends the Enterprise Act to enable the CMA to fast-track these mergers. In particular, we support the clarification that the CMA may launch a phase 2 investigation only if it believes that a completed or anticipated merger has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom. We also support the clarification of the circumstances in which the CMA can accept a fast-track reference request.
When making these decisions, the CMA must have regard to whether the merger could raise public interest issues or whether a special public interest intervention has been launched under provisions in the Enterprise Act, to ensure that no case is unduly fast-tracked. Schedule 5 is important and will be central to ensuring the CMA can work at pace in the case of any merger requiring investigation. We welcome and support it.
Labour fully supports the intentions of clause 126. The timetable for phase 2 investigations is important for the timely resolution of merger investigations, and we believe the approach outlined to be sensible. As it stands, section 39 of the Enterprise Act, which outlines time limits, requires the CMA to publish its report on a merger reference within 24 weeks of the date of the reference. Clause 126(2) amends that provision to give the CMA the power to extend the period if necessary. We welcome the clarity that the length of an extension has to be agreed between the CMA and parties involved in the potential merger.
We also acknowledge that, while the Bill does not specify circumstances in which the CMA and the parties involved in a merger can agree an extension, an extension is most likely to be helpful in support of early consideration of remedies or in multi-jurisdictional mergers that are being reviewed in other countries in parallel to the UK. We welcome that distinction. Labour has consistently said that for the regime to work in practice it must be flexible. We see clause 126 as an important step towards that aim and are therefore happy to support its inclusion in the Bill.
As I said with respect to clause 126, Labour supports flexibility to extend time limits, and we feel that is particularly important where there is a public interest to do so. That is why we support clause 127. The clause amends chapter 2 of part 3 of the Enterprise Act, which sets out that the Secretary of State may intervene in the consideration of a merger where the Secretary of State believes it raises a public interest consideration that needs to be taken into account. We feel that this is an appropriate and proportionate way of ensuring accountability for public interest interventions, and that the Secretary of State should be empowered to do so. We therefore support the intentions of clause 127 and, again, believe that it should stand part of the Bill.
Finally, clause 128 replaces the obligation on the CMA in section 96(5) of the Enterprise Act to publish the latest form of the merger notice
“in the London, Edinburgh and Belfast Gazettes”
with an obligation to publish it online. We welcome that transparency. The Minister knows my views on transparency with respect to the Bill more widely. I wish that provision about online publication was replicated elsewhere in the Bill, so that information is available to anyone who wishes to see it. We welcome clause 128 and hope to see it replicated.
Paul Scully
Indeed, a lot of the publication is done online, as we have discussed, even if that is not stated specifically in the Bill. I hope the hon. Lady takes heart in that.
The hon. Lady asked specifically about schedule 4 and safe harbours. Clearly, we would expect the CMA and the Government to review the merger review thresholds regularly, and there are powers to amend the thresholds if and when it is considered appropriate to reflect economic developments or, indeed, because of the experience of enforcing the thresholds, as she rightly said. The CMA board is accountable to Parliament, as we have described. We expect that, through its annual plan and performance reports, Parliament will be able to scrutinise the decisions that have been taken.
Question put and agreed to.
Clause 124 accordingly ordered to stand part of the Bill.
Schedule 4 agreed to.
Clause 125 ordered to stand part of the Bill.
Schedule 5 agreed to.
Clauses 126 to 128 ordered to stand part of the Bill.
Clause 129
Market studies: removal of time-limit on pre-reference consultation
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 130 and 131 stand part.
That schedule 6 be the Sixth schedule to the Bill.
Clause 132 stand part.
That schedule 7 be the Seventh schedule to the Bill.
Clause 133 stand part.
Paul Scully
The UK’s markets regime is the CMA’s most powerful tool for promoting competition in UK markets. Clauses 129 to 133 reform the markets regime, ensuring that it is effective, focused and proportionate.
Clause 129 reforms the market study process. Currently, the CMA or sector regulator must start a consultation on making a market investigation reference, or decide not to make a reference, within six months of the start of a market study. That timeframe is unduly restrictive. The clause removes the six-month time limit, giving flexibility for the consultation to start at the most appropriate point. It allows extra time to gather evidence, ensuring that information that comes to light later on can be considered.
Clause 130 makes amendments so that references can be targeted appropriately, to better define the scope of the investigation required. It further narrows the questions that the CMA group must consider, reflecting the scope set out in the reference. This will allow the CMA to ensure that its work is targeted effectively, which will benefit businesses and investors.
Clause 131 introduces schedule 6, which expands the use of voluntary undertakings that remedy competition harms. The clause allows the CMA to accept such undertakings at any stage in the market inquiries process. This includes the acceptance of partial undertakings that address some features causing concerns in a market, but not all. The flexibility to take issues “off the table” by accepting such undertakings, alongside the amendments made by clause 132 regarding narrowing the scope of investigations, will help to provide greater flexibility in the regime. We recognise that voluntary undertakings will not be appropriate in every case. Where they are appropriate, they will drive efficiencies and enable faster results. They will also help to tackle competition problems and any resulting consumer harm as quickly as possible.
Clause 132 introduces schedule 7, which gives new powers to the CMA to conduct trials of certain types of remedies at the conclusion of a market investigation where an adverse effect on competition has been identified. That will help to ensure that any final remedy is suitable and effective. For now, the power to trial remedies will be limited to solutions that relate to the provision or publication of information to consumers. That is the area where trials are most likely to be useful and enables a proportionate approach to introducing this new power. The Secretary of State will be able to expand the scope of remedies to trial in future, subject to the draft affirmative procedure.
Clause 133 gives the CMA new powers to amend ineffective remedies where less than 10 years has passed since the original market investigation. Where the CMA decides that remedies have been ineffective and should be varied, it will be required to consult with affected businesses before reaching a final decision on whether to vary a remedy, and to conclude the variation within six months. In cases where the Secretary of State has accepted or imposed remedies, the CMA will provide advice to the Secretary of State. This new power will be constrained by a mandatory two-year cooling-off period, beginning at the end of a remedy review.
Alex Davies-Jones
I will speak briefly to clause 129 before addressing our thoughts on the rest of the group. Labour supports the intentions of the measures in the group, and we have not sought to amend them at this stage.
The removal of the time restriction outlined in clause 129 gives the CMA flexibility and more time to gather evidence to determine when the consultation process should commence. That is something I think we can all get behind and fully support.
Schedule 6 outlines the process by which the CMA will be able to accept voluntary commitments during all stages of a market study and a market investigation. It allows the CMA to accept partial undertakings, to narrow the issues that require further investigation. We see these features as central to a flexible regime that firms want to easily engage with. That must be at the heart of any fully functioning and appropriate regime.
Clause 132 and schedule 7, which are incredibly welcome, provide that the CMA may be required by the Secretary of State to conduct trials of remedies before setting a final remedy package. We recognise that since this is a new regime, the regulator may benefit from such trial remedies, and it is important that the CMA has the legislative teeth and support to do so.
We therefore support the measures in the group. We have not sought to amend them, and we believe that they should stand part of the Bill.
Question put and agreed to.
Clause 129 accordingly ordered to stand part of the Bill.
Clauses 130 and 131 ordered to stand part of the Bill.
Schedule 6 agreed to.
Clause 132 ordered to stand part of the Bill.
Schedule 7 agreed to.
Clauses 133 to 135 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Mike Wood.)
Energy Bill [ Lords ] (Sixteenth sitting)
Tuesday 27th June 2023
(10 months, 2 weeks ago)
Public Bill CommitteesRead Full debate Energy Act 2023 View all Energy Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 June 2023 - (27 Jun 2023)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
Before we begin, I remind Members that Hansard colleagues would be grateful if any speaking notes could be emailed to hansardnotes@parliament.uk. Please put electronic devices on silent, and tea and coffee are not allowed during sittings. The only refreshment permitted is water, which is available in the room. I might review my view on whether gentlemen can remove their jackets if it warms up later in the day.
New Clause 1
Smart meter roll-out for prepayment customers
“(1) The Secretary of State must ensure that all legacy prepayment meters are replaced with smart meters, unless the customer objects in writing, before the end of 2025.
(2) The Secretary of State must by regulations provide for an end to the practice of self-disconnections, such regulations to come into force within six months of the date on which this Act is passed.
(3) Regulations under subsection (2) may provide for, but are not limited to—
(a) the introduction of a social tariff for prepayment customers,
(b) the introduction of mechanisms to apply credit automatically if a prepayment customer runs out of credit, and
(c) the introduction of a mechanism to transfer a prepayment customer to credit mode automatically if they run out of credit.” —(Alan Brown.)
Alan Brown (Kilmarnock and Loudoun) (SNP)
I beg to move, That the clause be read a Second time.
Alan Brown
It is a pleasure to serve under your chairmanship, Ms Nokes.
We are now in the final week of this Bill Committee, and Members will have spotted that a lot of Government new clauses and amendments have been tabled and accepted. In the spirt of fairness, the Government should also accept some of our new clauses and amendments; hopefully that is what is going to happen. Rather than getting into a debate, if the Minister wants to intervene and tell me which new clauses the Government will accept in the spirit of fairness, I would be happy to give way.
The Parliamentary Under-Secretary of State for Energy Security and Net Zero (Andrew Bowie)
I would not like to put you off.
Alan Brown
Okay, so we go back to my monologue justifying why the Government should accept some of our new clauses, including new clauses 1 and 2.
Clearly, we should be grateful that energy prices are starting to fall, but the reality is that the cap on energy bills for an average household was set at £1,138 in April 2021. This month, Ofgem has set the cap at more than £2,000, so energy bills are still nearly double what they were two years ago. The reality is that many people are struggling badly with their energy bills, even though prices are falling, and those struggling the most are those with prepayment meters. People with prepayment meters can access credit of only £5 or £10. If they reach that credit limit, the lights go out—it is as simple as that. They cannot turn on the gas or electricity, and it is a real difficulty for people. It also means that if people cannot get out of the house for whatever reason—if they are ill or have just had a newborn kid—and have reached the threshold, they lose access to their energy by virtue of not being able to top up their meters.
It is unfair that people with prepayment meters pay higher standing charges. Frankly, it is an outrage that people who pay in advance for their energy are paying a premium to access it, whereas people like us in this room, who pay by direct debit, have access to credit and cheaper tariffs. As I say, the reality is that if someone is on a prepayment meter, they are going to struggle to pay their bills, they will pay more and they will face the difficulties associated with a lack of credit.
As End Fuel Poverty states:
“Imposition of a pre-payment meter is disconnection by the back door. When you can’t top up the meter everything clicks off”.
Forcing people to have prepayment meters means that those who are already struggling are put on to a system whereby they will be forced to ration, automatically disconnected when the credit limit is reached and more likely—this is the rub—to have a cold, damp home, with the long-term health implications that that brings, as well as the short-term heating and eating dilemmas.
It is estimated that 19% of housing stock across the UK is damp. The proportion rises to nearly a third, or 31%, for those on prepayment meters. In other words, if someone is on a prepayment meter, they are 65% more likely than the average person to live in a damp house. Some 51% of prepayment customers have health conditions or disabilities, so in many ways the existing system is punishing those who are more likely to require more energy in the first place. That, in a nutshell, is why a social tariff is needed for those with prepayment meters.
Research by Utilita indicated previously that as many as 14% of the 4.5 million households with prepayment meters did not choose to be on such tariffs, and what has been happening during the cost of living crisis is outrageous. For example, an investigation for the i paper revealed that since the end of lockdown energy firms have secured almost 500,000 court warrants to forcibly install meters in the homes of customers who are in debt. Freedom of information requests showed that in the first six months of last year there were 180,000 applications for such warrants.
We then had the bombshell coverage of an undercover reporter working for bailiffs, which exposed the cruelty of some bailiffs for what it was: revelling in the forced installation of prepayment meters, no matter the vulnerabilities of the customers. The officers of that debt company were working on behalf of British Gas, which of course said that it was shocked and that it did not advocate such a policy.
The rub is that some utility companies are using debt collection agencies routinely as part of their process to collect money that they believe they are owed. That set-up relieves utility companies of the burden of debt collection. More importantly, it stops them providing debt advocacy and interacting with customers, which is what is required. Meanwhile, the debt collection companies add their own fees just for reissuing bills to customers.
All that is why we tabled new clauses 1 and 2. Voluntary codes for prepayment meters will never be enough. It is quite clear that we will never know how many people were forced on to prepayment meters against their will, especially when smart meters can be switched remotely to prepayment mode without people even realising initially.
New clause 1 sets out the need for legacy prepayment meters to be switched to smart meters as long as consent is given. This is an enabling aspect, as smart meters will make it easier to implement the provisions of new clause 1(3), which will end the practice of so-called self-disconnection. The provisions include the consideration of a social tariff, and, most importantly, mechanisms to allow customers to access credit and not be cut off immediately as they would be with a £5 or £10 credit limit.
New clause 2 restricts the forcible use of prepayment meters. It does not prevent informed consent and agreement for people to move to prepayment mode, because some customers like it as a way of managing their debt, but what is important is consent and an understanding of what prepayment means. The provisions also give access to impartial debt counselling services before the switch to prepayment mode is needed. Subsection (2)(c) places a duty on the Secretary of State to assess and define customer vulnerabilities, because the current definition is too narrow and does not cover some people who should be classed as vulnerable. Lastly, subsection (3) confirms that switching smart meters to prepayment mode is considered the same as a legacy prepayment meter.
Too many people have been forced on to prepayment meters. We cannot allow that to continue and we cannot allow the door to reopen for energy companies. No matter what they say here and now when there is an immediate storm and a backlash, we need to protect people for good going forward, which is what new clauses 1 and 2 will do.
According to recent Government figures, £120 million-worth of the vouchers issued for customers in prepayment mode were still unclaimed at the start of June. There are only four days left until the deadline on 30 June, so I hope the Minister will update us on the outstanding balance of unclaimed prepayment meter credit vouchers. Having nearly 20% of vouchers unclaimed at the start of the month is indicative of a failed policy that does not support the most vulnerable in our society. Again, that is why we need new clauses 1 and 2 to protect those who sometimes cannot protect themselves.
Kerry McCarthy (Bristol East) (Lab)
As always, it is a pleasure to see you in the Chair, Ms Nokes.
I rise primarily to speak in support of new clause 38, but it has quite a lot of overlap with new clause 2. Our new clause 38, on the restriction of the use of prepayment meters, says:
“The Secretary of State may by regulations restrict the installation of new prepayment meters for domestic energy use.”
It makes provision to ensure that consumers have full and informed consent on the installation of a prepayment meter, and that vulnerable customers are not put on to prepayment meters. We heard from the hon. Member for Kilmarnock and Loudoun some of the reasons why we have shared concerns about that. Some of my points will be very familiar to the Minister if he followed the debate earlier this year, when it reached crisis point.
Citizens Advice estimates that the number of people moved on to prepayment meters reached 600,000 in 2022, up from 380,000 in 2021. We know that that comes at a cost to them. There is a poverty premium on some of the most vulnerable, and on people on the lowest incomes, because of the shift to prepayment meters, and their use should be restricted as a result. Those with prepayment meters are more likely to be in fuel poverty and facing significant debts already. We find ourselves in a situation in which those requiring the most support are being forced to pay the most and are given the least help.
Citizens Advice revealed at the start of the year, at the height of the energy crisis, that someone was being cut off from their energy supply every 10 seconds, with millions unable to afford to top up their prepayment meters. We also know that so-called voluntary self-disconnection was a thing. People simply could not afford it, so they would not necessarily feature in the numbers. Labour’s call for a moratorium on the forced installation of prepayment meters was dismissed until the March Budget. The Secretary of State told the House on a number of occasions that he was talking to Ofgem and that plans were in motion, but during that period we were still hearing horrific stories about forced entry to people’s houses, warrants being issued and energy companies continuing to go down that path.
Our view was very much that it was the Government and the energy regulator’s responsibility to ensure that people were not left at home in the cold and the dark, yet we had to press incredibly hard before anything was achieved. Over the winter, more than 130,000 households that included a disabled person or someone with a long-term health condition were being disconnected from their energy supply at least once a week because they could not afford to top up. The same report also said that
“63% of PPM users who had disconnected in the last year said it had a negative impact on their mental health. This rises to 79% of disabled and people with long-term health conditions.”
Really good work was done by organisations such as Citizens Advice, but it also took tireless investigations from UK newspapers to expose the scale of the crisis. An investigation by the i in December showed that magistrates were batch processing hundreds of warrants in the space of a few minutes to allow the forced installation of prepayment meters, with one court in the north of England approving 496 warrants in just three minutes. At some point, we were given reassurances that people’s circumstances and vulnerabilities were being taken into account before the warrants were issued, but if nearly 500 are issued in three minutes, clearly they are not taking any information into account; it is very much a rubber-stamping exercise.
An undercover report by The Times in February highlighted how British Gas was employing debt collectors to break into people’s homes. Among them were customers described in the staff notes as a woman in her 50s with “severe mental health bipolar”, a woman who
“suffers with mobility problems and is partially sighted”,
and a mother whose
“daughter is disabled and has a hoist and electric wheelchair”.
We heard in debates at the time that many MPs had their own stories of constituents who were affected by the forced installation of prepayment meters; hopefully we will hear from some today to back up what we are calling for.
It was therefore a relief when action was taken in April, and a code of practice was introduced by Ofgem, but we have to wonder why the scheme is voluntary rather than compulsory. Just yesterday, the Committee on Fuel Poverty, in its annual report, expressed disappointment with Ofgem’s code of practice, stating that it is
“disappointingly limited in ambition”.
We have to wonder what the Government’s role is in that. I argue that Ofgem has proven incapable of dealing with the situation and it is up to the Government to step up and take control. That is what we seek to achieve with the new clauses.
The code’s voluntary nature still leaves too much power and judgment in the hands of energy suppliers, and the vulnerable and the voiceless should not be exposed to the dangers that prepayment meters pose, so I call on the Minister to give us some assurance that he accepts that it is the Government’s responsibility to act in this case—we cannot continue to leave it to voluntary codes of practice—and to support new clause 38.
Andrew Bowie
It is an absolute pleasure to serve under your chairmanship again, Ms Noakes, for sitting 16 in the final week before we conclude our proceedings in Committee. I thank Members for tabling their new clauses.
New clause 1 places a duty on the Secretary of State to ensure that all legacy prepayment meters are replaced with smart meters before the end of 2025. The Government have been clear that our aim is for as many households as possible to benefit from smart metering, including those that prepay for energy, which is why we have set minimum installation targets for suppliers until the end of 2025. To ensure effective scrutiny and transparency, large suppliers are also required to publish their performance against their targets, broken down by credit and prepayment mode. That ensures that they have strong incentives to deliver.
Although we agree with the hon. Member for Kilmarnock and Loudoun that smart prepayment is highly superior to legacy prepayment meters, it is also true that those customers who would benefit the most from prepayment meters can be among the hardest audiences to reach and the most vulnerable in our society. It is therefore critical that we tread carefully and do not place unrealistic targets in statute that may cause unintended consequences.
As drafted, the new clause could result in the prioritisation of the replacement of traditional prepayment meters. That may inadvertently deprioritise smart meter installation for credit consumers, many of whom are in vulnerable circumstances. Data from Ofgem indicates that around 70% of those with disabilities pay by direct debit and may therefore benefit from the automated readings that smart meters deliver.
Let me turn to the requirement to end self-disconnections within six months of the Bill becoming law. It is critical that the market delivers a fair deal for consumers, with an energy market that is resilient and investable over the long term. Ofgem’s recently published code of practice on prepayment is clear that when self-disconnection occurs, suppliers must make multiple attempts to contact the customer to understand the reasons for self-disconnection and offer appropriate support, including additional support credit. If frequent or prolonged periods of self-disconnection are identified, energy suppliers should assess whether a prepayment meter remains a safe and practicable option for that consumer.
As announced in the 2022 autumn statement, His Majesty’s Government have committed to work with consumer groups and industry to consider the best approach to consumer protection from April 2024, as part of a wider retail market reform. In addition, as announced at the spring Budget, we are keeping the energy price guarantee at £2,500 for an additional three months from April to June. That means we have covered nearly half a typical household’s energy bill through the energy price guarantee and energy bill support schemes since October, with a typical family saving £1,500. That is in addition to the expanded warm home discount scheme, which has been extended until 2026 and provides £475 million in support per year in 2020 prices.
New clauses 2 and 38 would allow the Secretary of State to restrict the use of prepayment meters, especially in relation to vulnerable consumers or where consumers are not aware that they are being moved to a prepayment mode. It is of course critical that our most vulnerable energy users are protected. The findings in The Times regarding British Gas customers were shocking and completely unacceptable. The Government acted quickly to tackle that issue of inappropriate prepayment meter use, and the Secretary of State wrote to energy suppliers insisting that they revise their practices and improve their action to support vulnerable households.
Following that intervention, all domestic energy suppliers agreed to pause the forced installation of prepayment meters and the remote switching of smart meters to prepayment mode. Ofgem rules are clear that suppliers can install a prepayment meter to recover a debt only as a last resort. They also require energy suppliers to offer a prepayment service only when it is safe to do so, with clear obligations on energy suppliers regarding support for customers in payment difficulty. The Secretary of State has called for more robust Ofgem enforcement on those issues, and Ofgem has responded by announcing a further review of supplier practices relating to prepayment meter customers.
Kerry McCarthy
The Minister may be about to come to this point, but I am wondering how it is going—does he know how many warrants are now being issued by the courts? Is he aware of statistics on how many prepayment meters are now being installed or on the type of customers who are being put on them?
Andrew Bowie
I do not have the exact numbers at my fingertips, but I am happy to write to the hon. Lady with that information. I can tell her that the senior presiding judge has ordered magistrates courts to immediately stop authorising warrants for energy firms to forcibly install prepayment meters while the process by which suppliers bring forward such applications is being reviewed.
Dr Alan Whitehead (Southampton, Test) (Lab)
In his reply to my hon. Friend the Member for Bristol East, will the Minister expand briefly on his understanding of the meaning of the word “pause” in relation to the forcible installation of prepayment meters by energy companies? As far as I am aware, there is no time set for that, nor is it subject to any other actions that the Government may take. Is it the Minister’s understanding that the pause is strictly time-limited and that practices may start again at the end of it?
Andrew Bowie
The pause will be until Ofgem has finalised the review of supplier practice in relation to prepayment meter customers. That is what we expect, anyway, because in addition to what I have said this morning, the Secretary of State has told Ofgem to toughen up on energy suppliers and to investigate customers’ experiences of how their supplier is performing. Following that, Ofgem established a new customer reporting system for households to pass on their experiences of how they are being treated. We are approaching this across the board. We believe, however, that any ban on the forced installation of prepayment meters would risk a build-up of customer debt. Unpaid debts increase costs for all energy consumers and could pose a risk to supplier stability.
To address issues around the forced installation of prepayment meters, Ofgem has recently published a new code of practice, as I mentioned. The code has been agreed with energy suppliers to improve protections for customers being moved involuntarily to a prepayment meter. It ensures better protections for vulnerable households, increased scrutiny of supplier practices, and redress measures where prepayment meters were wrongly installed. It includes provisions to prevent involuntary installations for all high-risk customers, including those dependent on powered medical equipment, people over 85, and households with residents with severe health issues. It also includes a requirement for suppliers to reassess whether prepayment remains the most suitable and preferred payment method for a customer once they have repaid debts. Suppliers must agree to any request from a prepayment customer who is clear of debt to move off a prepayment meter.
The rules to which suppliers must adhere regarding the installation of prepayment meters are set out in the licence conditions set by Ofgem as the independent regulator. Ofgem will undertake a formal statutory consultation process to modify suppliers’ licence conditions in line with the code ahead of this winter. This will allow Ofgem to use its full enforcement powers to enforce compliance with the code, ensuring that consumers are protected and that the poor practices that we have seen will not happen again.
It is vital that, as the independent regulator, Ofgem continues to set the rules to which energy suppliers must adhere in licence conditions. New clauses 2 and 38 would risk taking that power away from Ofgem. Allowing the Government to set rules outside the licence conditions would threaten Ofgem’s independence and its ability to regulate suppliers effectively.
The Government have always been clear that action is needed to crack down on the practice of forcing people, especially the most vulnerable, on to prepayment meters. We will continue to work closely with Ofgem and industry to see that the code leads to positive changes for vulnerable consumers. I hope that hon. Members are reassured by my explanation and that they might feel able to withdraw their new clauses.
Alan Brown
Despite what the Minister says, I am not fully convinced by those arguments. With the leave of the Committee, I will not press new clause 1 to a vote, but it is important to understand that new clause 2 would not even mean an outright ban on the installation of prepayment meters; it would just put protections in place so that people are not forced on to prepayment meters. It would also address debt build-up by ensuring that people are given access to debt counselling, for example. New clause 2 is about working with customers and providing additional protections, so I would certainly like to press it to a vote.
On new clause 1, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 2
Restriction of the use of prepayment meters
“(1) The Secretary of State may by regulations restrict the installation of new prepayment meters for domestic energy use.
(2) Regulations under subsection (1) may set conditions for energy suppliers in relation to the installation of new prepayment meters, including—
(a) ensuring consumers have given full and informed consent to the installation of a prepayment meter after having been offered access to a recognised debt counselling agency;
(b) ensuring vulnerable consumers are not required to use prepayment meters;
(c) publishing a non-exhaustive list of circumstances in which a consumer is considered vulnerable, including financially vulnerable; and
(d) ensuring consumers have a clear, timetabled route back to standard meters once specified conditions are met.
(3) In this section ‘installation of new prepayment meters’ includes switching existing energy meters to a prepayment mode.”—(Alan Brown.)
This new clause would allow the Secretary of State to restrict the use of prepayment meters, especially in relation to vulnerable consumers or where consumers are not aware they are being moved over to a prepayment mode.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Alan Brown
I beg to move, That the clause be read a Second time.
This fairly simple clause seeks for the Government to include in all future legislative impact assessments a net zero compatibility test. Achieving net zero is vital to save to planet. The Government have legally binding targets to hit net zero by 2050, and this Committee has agreed to Government amendments that give Ofgem a statutory duty to consider net zero. If the regulator is obliged to consider net zero, and if the Government have legal targets to achieve net zero, surely it makes sense to legislate for the Government to undertake a net zero compatibility assessment, so as to ensure that policies will not have an adverse impact on the legally binding target to achieve net zero. That would result in transparency on whether policies are adversely or positively impacting on the route to net zero. Such transparency would also be of assistance with costs, especially given the net zero cynics among Government Members. Importantly, Energy UK, the trade body that represents energy companies, also says that it supports a net zero compatibility test.
Given what I have outlined, I do not see why the Government would not accept the new clause. If the Government can carry out impact assessments of the effect of legislation on small businesses, why not carry one out on the wider, legally binding target to hit net zero? I hope that the Minister will accept the new clause.
Andrew Bowie
I thank the hon. Members for Kilmarnock and Loudoun and for Argyll and Bute (Brendan O’Hara) for tabling their new clause. The Government agree with the intention behind it, but we believe that it is unnecessary. We are already taking a cross-Government and systematic approach to embedding net zero and climate into Government policies and decision-making processes.
The creation by the Prime Minister of the new Department for Energy Security and Net Zero, which I am proud to serve, means that there is an entire Department dedicated to delivering on our climate ambitions. The Department’s focus, alongside energy security, is driving overall delivery of net zero and maximising the economic opportunity that the transition presents. The new Department’s officials work with counterparts across Government to co-ordinate action, working particularly closely with the Cabinet Office and the Treasury to ensure that net zero is prioritised in Government policy and decision making, and that it aligns with our wider priorities.
We are also working with industry and stakeholders, which has led to the creation of the net zero council, the green jobs delivery group, the jet zero council and the local net zero forum. We also work closely with our devolved Administration colleagues. We have also gone further by creating the Domestic and Economic Affairs (Energy, Climate and Net Zero) Committee, which brings together senior Ministers from across Government to ensure a co-ordinated approach to delivering net zero across government. Additionally, we have provided Green Book supplementary guidance on the valuation of energy use and greenhouse gas emissions for appraisal. That guidance helps officials when undertaking options appraisal for policies, programmes and projects; building business cases; and when conducting impact assessments. I hope that provides the hon. Member with the reassurance that he needs to withdraw his new clause.
Alan Brown
The Minister smiled when he said he hoped that that would satisfy me. There is no surprise that it does not. He outlined the creation of the new Department for Energy Security and Net Zero, and the important thing is that the net zero compatibility test would apply to all legislation that the Government introduce from every Department, so it would make every Department start to consider the net zero implications of its policies. That is what is critical about this new clause. I do not wish to withdraw the motion.
Question put and negatived.
New Clause 6
Just Transition Commission
“(1) Within six months of the date on which this Act is passed the Secretary of State must by regulations establish a body to be known as the ‘Just Transition Commission’.
(2) Regulations under subsection (1) must provide for the purposes of the Just Transition Commission to include—
(a) the provision of scrutiny and advice on the ongoing development of just transition plans;
(b) the provision of advice on appropriate approaches to monitoring and evaluation; and
(c) consultation with such persons as the Secretary of State shall consider appropriate in relation to the delivery and likely impact of just transition planning.
(3) The Just Transition Commission must produce and lay before Parliament an annual report of its work.”—(Alan Brown.)
Brought up, and read the First time.
Alan Brown
I beg to move, That the clause be read a Second time.
I shall potentially continue my losing streak here. This new clause is about setting up a just transition commission. The Committee may be aware that the Scottish Government set up a just transition commission a couple of years ago, which is effectively world leading. It brings together independent academics, and representatives from trade unions and right across industry. It advises the Scottish Government on policy implications and what is needed as we move forward to a just transition to ensure that workers are not left behind and do not lose their jobs, to be effectively left on the scrapheap.
This important body came together and has brought transparency to the Scottish Government, and I want to see that replicated at Westminster. It would be good for the Government as a way to work across the sector and the industry, with trade unions and academics to provide expertise. I look forward to hearing the Minister’s thoughts on that, explaining why they are probably not going to do this in the short term. I will be happy to be proved wrong on that.
Kerry McCarthy
We certainly need more focus, and to hear more from the Government about ensuring that this is a just transition. We know that we cannot reach net zero without the skilled workforce to deliver it, and without decisive action to ensure that no community is left behind. It is illustrative to look at what Joe Biden is doing with the Inflation Reduction Act in the United States, where a lot of focus is on energy-intensive states such as Texas to ensure that, as they move away from fossil fuel exploration, the jobs are still there. We all know what happened, as we debated earlier in this Committee, when the coalmines were closed with the lack of a strategy to ensure good, decent jobs for people left behind. We saw whole communities abandoned and, in some parts of the country, turned into basic commuter villages, rather than having a home-grown industry.
It has rightly been said that net zero is the economic opportunity of the century, but it represents a potential threat to those who, at the moment, rely on traditional industries. That is not because oil and gas extraction will immediately cease, or because coal-fired blast furnaces will suddenly be switched off. It is because our reliance on the old way of doing things will gradually decline and, as a result, the skills required will evolve.
Workers in those industries need to know that there is a plan. As I said, we cannot allow the mistakes of the 1980s to be repeated. We need a forward-looking industrial strategy, to make it clear that the transition to net zero is an opportunity to reinvigorate our industrial heartlands and coastal communities and to make it clear that that means a higher quality of work, better regulation of employment practices and greater diversity in the sector. This is quite a complex task. Some of it will be industry-led, but we know, particularly when we get further down the supply chain to those clusters of jobs that will be based around the traditional industries, that those smaller companies will need support to diversify as well.
Alan Brown
The hon. Lady will be aware that procurement rules and contracts for difference auctions, for example, are reserved to Westminster, so the Scottish Government do not have control of that. There is a whole supply chain aspect that is not developed, and that is partly because of these procurement rules—the fact that the cheapest price takes all. We want that amended at some time.
Kerry McCarthy
I was about to move on to that, because it is important. On the Government’s lack of action on developing a strategy, I have been trying to ask questions about the Green Jobs Delivery Group, such as when we will actually see some delivery and outcomes and how that will feed through into a skills strategy and an industrial strategy, but I have been getting very little by way of response.
Friends of the Earth Scotland has called on both the UK Government and the Scottish Government to ensure greater worker representation in their transition planning through existing bodies such as the UK’s Green Jobs Delivery Group and the Just Transition Commission in Scotland. It says that at the moment there is little support provided for high-carbon workers to find alternative jobs, to facilitate retraining where necessary, or to lighten the financial burden of training currently borne by the workers.
Last month, the Climate Change Committee briefed that the
“Government has policy levers at its disposal to support workers during the transition”
but warned that
“clearer plans are needed to harness the potential of the transition and to manage its risks.”
Work has been done. As I said, my concern is about focusing on setting up a commission rather than just calling on the Government to actually come forward with a clear strategy, a clear road map, particularly on the skills front, and to link that up. I do not know whether the Minister will accept my analysis of the situation, but it seems very fragmented. It is left, in large part, to big companies in the supply chain to try to ensure that the workers of the future are there as they transition. There is not a strategy for the smaller companies in the supply chain unless the big companies are leading that.
Alan Brown
I understand what the hon. Lady is saying about wanting the Government to get on with it sooner, but does she not agree that commissioning a body of experts will provide better advice, enabling the Government to develop their strategy better?
Kerry McCarthy
As I said, the Government have had their green jobs taskforce, and now they have the delivery group. They are also doing things on the nature side. I would argue that they should have had all the information and expert advice; it is all available out there.
What we need are more incremental steps. Rather than setting up a body, we need something concrete from the Minister on what the Government are doing, for example, to ensure that further education colleges are tying up with the potential needs of businesses in their areas. Some incredibly good further education colleges are working on that—going into schools, working with businesses and encouraging young people to look at those careers—but as I said it is piecemeal and depends on the quality of the college, and the relationship with other agencies in the local area. I sympathise with focusing on a just transition, but I have concerns about whether setting up another body is the way to do it.
Andrew Bowie
I thank the hon. Members for Kilmarnock and Loudoun and for Bristol East for their contributions. The Government agree with the intention behind the new clause; however, we already view transition as a consideration embedded across all Government policy actions. We are committed to managing the transition to net zero in such a manner that the positive opportunities are maximised for the economy and the population, while protecting individuals, communities and the economy.
Given that the majority of the low carbon economy lies outside London and the south-east of England, Government action to deliver our net zero commitment and build a low carbon economy will help to level up the UK and spur on the transition. That is demonstrated through the North sea transition deal agreement in March 2021, through which the UK became the first G7 country to agree a landmark deal to support the oil and gas industry’s transition to clean, green energy, while supporting 40,000 jobs in industrial heartlands across the UK.
Since delivering a net zero workforce transition needs joint action by Government, industry, and the education sector, the Government have established the green jobs delivery group. The group is headed up by Ministers and business leaders to act as the central forum for driving forward action on green jobs and skills, and has committed to publishing a net zero and nature workforce action plan in 2024, which will consider the workforce transition. We will continue to join up across the devolved Governments, who have already made excellent progress, with the Welsh Government having launched their net zero skills plan in March 2023, and the Scottish Government and Skills Development Scotland having launched their climate emergency skills action plan 2020-2025 in 2020.
Alan Brown
On working with the devolved Governments, does the Minister recognise that it is time for the UK Government to match fund the £500 million just transition fund that the Scottish Government have put in place?
Andrew Bowie
I thank the hon. Member for his intervention, and point him to the remarks that I just made regarding the huge investment that we are already making in the transition, the fact that we were the first G7 nation to sign a transition deal, and the £100 billion of private sector investment by 2030 that we hope to see, and that we are driving into British industries, supporting 480,000 green jobs by the end of the decade. We are looking to meet that target, unlike the Scottish Government’s green jobs target, which of course they have not met—alongside failing in four years out of five to meet their climate change targets, as was announced just last week. Since delivering a net zero workforce transition needs joint action by Government and industry, as I have said, we are continuing in that regard.
With respect to the scrutiny advised in the new clause, the Government already report progress on delivering our net zero ambitions through multiple channels—through parliamentary Select Committees, the Public Accounts Committee, independent bodies such as the National Audit Office, and—under the Climate Change Act 2008—the Climate Change Committee. I should point out that the hon. Member’s colleague and friend, the hon. Member for Na h-Eileanan an Iar (Angus Brendan MacNeil), has recently taken up the chairmanship of the Energy Security and Net Zero Committee, and will, I am sure, ably hold my Department to account. I hope that that provides the hon. Member for Kilmarnock and Loudoun with the reassurances that he needs to withdraw the motion.
Olivia Blake (Sheffield, Hallam) (Lab)
It is a pleasure to serve under your chairmanship, Ms Nokes. I have asked a few written questions in this space and I agree wholeheartedly with my hon. Friend the Member for Bristol East that the just transition should have already started for many workers. A survey two years ago found that workers were looking to move from the fossil fuel industry to renewables but that they were being put off by training fees. I have asked repeatedly about that.
I asked the Department whether it knew what the average cost of retraining would be for oil and gas workers but was told that it does not know or does not hold that data. However, I have heard at first hand from oil and gas workers who want to move into renewables that they face training costs of many thousands of pounds and that the quality of such training is questionable in some places. Government inaction risks leaving those workers behind when they want to be part of the transition and already have transferrable skills in those industries. I also recently asked a question about the Department’s discussions with the offshore wind industry on recognising an energy skills passport to help oil and gas workers, but was told in response that no such discussions have taken place.
I thank the Minister for his kind words about a transition. However, when will we see action for oil and gas workers? When will the inaction turn into action and delivery so we can get on with developing the green skills we need in this country to deliver net zero and compete in a global market?
Andrew Bowie
I thank the hon. Member for Sheffield, Hallam for the tone of her words. The Government believe that the best way to secure jobs for oil and gas workers is to continue to give them support and, indeed, to support investment into the North sea, which not only provides secure employment for them now and into the future but provides for our energy security needs, which is something the Labour party might take note of moving forward.
As a representative of a constituency in the north-east of Scotland, I am fully aware of the pressures that workers in the North sea oil and gas industry face and the desires of many of them to transition to new green jobs. We see that in the city of Aberdeen, which is transitioning from being the oil and gas capital of Europe to the energy capital of Europe. That is why we have set up our green jobs delivery group and why we are identifying recommendations and actions for central and local government, industry and business, and the devolved Administrations.
We are also exploring how we can support local areas to deliver a successful transition, and the Department for Work and Pensions is expanding sector-based work academy programmes to help those who are out of work develop the skills they need to re-enter the job market. The programme runs in England and Scotland and is developed by jobcentres in partnership with employers and training providers. The Government take that incredibly seriously and I have a particular interest in the matter.
I thank the hon. Lady for her comments, but we are clear that it is very important to support people who are reskilling and upskilling from traditional oil and gas jobs into new green jobs, while also investing in our oil and gas industry to ensure that investment continues to support the traditional jobs that will be needed for some time yet.
Alan Brown
The Minister puts forward arguments that suggest the Government are doing a lot in terms of green jobs. The Government are doing some things, but not enough. That is the reality.
To go back to my intervention on the hon. Member for Bristol East, the CfD rules should have been changed years ago to incentivise supply chain development and create those homegrown jobs. Perhaps a just transition commission would have provided advice on how that procurement could have been taken forward. I want to revisit that. The Government should think and should speak to people engaged in the just transition commission. In the meantime, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 33
Purposes
“(1) The principal purpose of this Act is to increase the resilience and reliability of energy systems across the UK, support the delivery of the UK’s climate change commitments and reform the UK’s energy system while minimising costs to consumers and protecting them from unfair pricing.
(2) In performing functions under this Act, the relevant persons and bodies shall have regard to—
(a) the principal purpose set out in subsection (1);
(b) the Secretary of State’s duties under sections 1 and 4(1)(b) of the Climate Change Act 2008 (carbon targets and budgets) and international obligations contained within Article 2 of the Paris Agreement under the United Nations Framework Convention on Climate Change;
(c) the desirability of reducing costs to consumers and alleviating fuel poverty; and
(d) the desirability of securing a diverse and viable long- term energy supply.
(3) In this section ‘the relevant persons and bodies’ means—
(a) the Secretary of State;
(b) any public authority.”—(Dr Whitehead.)
This new clause and NC34, NC35 and NC36 are intended as a suite of purpose and strategy clauses for this Bill.
Brought up, and read the First time.
Dr Whitehead
I beg to move, That the clause be read a Second time.
We come now to something that has run as a bit of a leitmotif through our discussions in Committee, which is the position of the North Sea Transition Authority—I was going to say the “so-called” North Sea Transition Authority, but I accept that it is the North Sea Transition Authority. However, as we have pointed out in previous debates, the name came about by means I am not entirely clear about, as opposed to being set in legislation.
In a previous debate, we discussed the circumstances under which somebody might go about their daily business calling themselves a particular appellation but find out that there were legal consequences to using a name that was not actually theirs, even though for daily purposes that name was reasonably accepted. That is the key point as far as the North Sea Transition Authority is concerned, because legally the North Sea Transition Authority is actually the Oil and Gas Authority. It is not just legally the Oil and Gas Authority; it is an authority that was effectively set up by the Energy Act 2016.
If we turn to the pages of the 2016 Act, we see a number of functions that the OGA must undertake. It is not the case that the OGA did not exist at all in any form prior to the 2016 Act’s passing into law; it was originally incorporated under the Companies Act 2006 as the Oil and Gas Authority Limited. The 2016 Act made a particular point of taking that limited company and transforming it by legislation. It states:
“The company originally incorporated under the Companies Act 2006 as the Oil and Gas Authority Limited is renamed as the Oil and Gas Authority.”
There it is in the legislation. The 2016 Act then made a number of transfers of functions from the OGA: the transfer of property rights, staff and so on. It is fairly clear from that that the Government at the time of the passage of the 2016 Act had a very real intention as to the function, activity and so on of the Oil and Gas Authority: they set it all out in the legislation. They were clear and specific on that. They were also clear and specific on what the OGA should be doing.
It was not just guidance on what the OGA should be doing; it was set out in the legislation under section 8, “Matters to which the OGA must have regard”. It needed to
“minimise public expenditure relating to, or arising from, relevant activities.”
It was concerned with the
“need for the United Kingdom to have a secure supply of energy.”
It had a function entitled “Storage of carbon dioxide”, and the OGA needed to
“work collaboratively with the government”.
By the way, regarding a debate we will come to later, the OGA also had at least an implied function with respect to the maximum economic extraction of oil and gas from the North sea. It was clear that the OGA had a number of things it should do, and that it was able to collect samples and regulate the oil and gas industry in the North sea, all within the overall umbrella of maximising economic recovery of that oil and gas in the North sea and elsewhere.
The OGA had a clear set of legal requirements and a clear set of duties and responsibilities, but the Government’s decision—I do not know whose decision it was, and it would be helpful if the Minister clarified that for me—that, henceforth, the OGA should be called the North Sea Transition Authority was, as far as I can see, conceived and carried out on no legal basis whatever. It was simply a device, which I guess aligned with the North sea transition deal, which was originally entitled the North sea oil and gas deal, whose title was, during discussions on the deal, so I understand, changed. That was when the Government had an industrial strategy, and this was put forward as a strategy for oil and gas in the North sea, although it also included elements of what we might say was a transition.
The North sea oil and gas companies undertook to change their position on flaring, for example, and undertook to do various things about the electrification of the North sea oil rigs and various other things. However, notably in the North sea transition document, there was no mention of, nor any agreement on, the management of production in the North sea, or indeed management of exploration or any other activities that were going on. This was a limited document that might be described as a North sea transition document, and an even more limited change to the name of the North sea OGA, which was renamed the North Sea Transition Authority. I presume that the name change arose from the basement of the Department for Business, Energy and Industrial Strategy as a nod in the direction of that particular document, but that is all.
The North Sea Transition Authority has done some mighty work in respect of its new function. It has changed its notepaper, I think—it has got that bit sorted out—but nothing else has happened as far as the authority is concerned. As the Minister saw just recently, and as I have periodically pointed out as the Committee has progressed, when the guidance notes and the notes published by the Department on various aspects of the Bill appear, we see that the North Sea Transition Authority is doing various things related to various aspects of the Bill. However, when we go into the clauses in the Bill, we see that it is not the North Sea Transition Authority that is doing those things, but the Oil and Gas Authority, because that remains the legal arrangement.
Andrew Bowie
I thank the hon. Member for tabling his new clause and for his attempts at my reformation. To be clear, the new clause would change the name of the Oil and Gas Authority and introduce an express obligation for it to ensure the transition to net zero in carrying out its functions.
In March 2022, the Oil and Gas Authority changed its trading name to the North Sea Transition Authority, or NSTA. The change, supported by the Government and the Opposition, reflects the expanded role the NSTA plays in our transition to a net zero economy.
Under the new clause, the name change would occur only in the Energy Act 2016. However, as the hon. Gentleman admitted, the Oil and Gas Authority is mentioned in a large amount of primary and secondary legislation, which would also require amendment. Any partial change of name could undermine or change the NSTA’s statutory functions, powers and objectives. However, the Government recognise the importance of the change and, as we speak, we are considering legislative options to amend the authority’s statutory name to the NSTA in all places where it occurs.
Dr Whitehead
Indeed there is a feeling welling up in me that we are not able to proceed with the new clause, given that the Minister said—and I agree—that such a change cannot be made easily with a quick stroke of a pen, and that a number of other things need to be considered alongside that. I am pleased that he indicated that, as we speak, there are serious people with towels round their heads working through the implications and looking at how we can best do it. That was the intention of the new clause, but perhaps I was rather optimistic in thinking that the name change could be written in easily. I appreciate that it cannot.
I also appreciate that the transition authority has the green light from Government to start undertaking things relating to transition. It is beginning to pursue that, and that is all good, but I say gently to the Minister that at some stage we will need to push this together. If the gentlemen with wet towels round their heads—
Dr Whitehead
And ladies, indeed. If they can undertake their work in a reasonable fashion, I hope we will have a solution that is good for all of us, as far as the transition is concerned. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 44
Maximum economic recovery in the North Sea
“(1) The Petroleum Act 1998 is amended as follows.
(2) Omit sections 9A to 9I.”—(Dr Whitehead.)
This new clause removes reference to Maximum Economic Recovery in the North Sea as placed into the Petroleum Act 1998 by section 41 of the Infrastructure Act 2015.
Brought up, and read the First time.
Dr Whitehead
I beg to move, That the clause be read a Second time.
New clause 44 concerns a similar legislative requirement—this time, not in the Energy Act 2016, but in the Infrastructure Act 2015. The 2015 Act—I know that hon. Members will have it at their bedsides at all times—contains what can only be described as a performative piece of legislation. Section 41 makes an extensive amendment to the Petroleum Act 1998, which worked perfectly well in supporting the development and activity of the North sea basin, to introduce a principal objective of
“maximising the economic recovery of UK petroleum”—
interestingly, that is not defined in the legislation—through
“development, construction, deployment and use of equipment,”
collaboration among various persons, and so on.
Section 41 also states that the Secretary of State
“must produce one or more strategies for enabling the principal objective to be met.”
There is a requirement on the Secretary of State,
“As soon as practicable after the end of each reporting period,”
to
“consider the extent to which, during that period, these persons have followed section 9C by acting in accordance with the current strategy or strategies,”
and to
“produce a report on the results of the consideration of that question.”
The section goes on to state what the report must contain, and to provide that the Secretary of State
“must publish, and lay before each House of Parliament, a copy of each report produced under this section.”
I have one initial question for the Minister: where are the reports? I have looked quite hard in the Library and various other places to find copies of the reports that the Secretary of State was supposed to produce in each reporting period, and to identify what considerations he or she made in terms of licence holders and operators under petroleum licences and so on. It is probably a case of me being a little remiss, but I cannot find those reports on the maximisation of the economic recovery of UK petroleum, several of which should have been produced by now, since they are supposed to be produced at the end of each two-year reporting period.
Far be it from me to suggest that the Secretary of State is in breach of his requirements under the 2015 Act. I am sure the Minister can put me right about whether the Secretary of State is in breach and either point me to the reports or, perhaps, suggest that they might be forthcoming. I hope the Minister has received inspiration that may enable him to address that point.
Even at the time, section 41 of the 2015 Act appeared to be rather strange in definitional terms. What would lead the Secretary of State to consider that the economic recovery of UK petroleum has been maximised? Is it the extraction of every last drop of petroleum and gas from the North sea—and, if so, over what timescale? It is unclear. Presumably, if economic circumstances change and make further North sea extraction economical, the Secretary of State and industry should start busily extracting everything that is economically extractable, even though in the future it may not be regarded as such.
Section 41 is a bit of a nonsense, and of course it is a much bigger nonsense now than it was, because the Government have solemnly agreed to our net zero targets and amended the Climate Change Act 2008. Indeed, the amendment of those targets was agreed after the 2015 Act was passed. We now have targets for our country’s future emissions, as well as legislation that essentially says that we are required to do the opposite of those targets through oil and gas extraction in the North sea.
As I am sure the Minister is aware, one important calculation in reaching net zero—indeed, the Government have introduced a net zero calculator—is whether at least some extraction of oil and gas from the North sea contradicts the net zero target. We have had a number of assessments, including from the Climate Change Committee and various other bodies, that maximising the economic extraction of oil and gas from the North sea would undoubtably bust our targets, and that we must be clear that at least some of it probably needs to be left there. If we sucked the North sea and other places dry of their oil and gas resources, depending on how we accounted for it, that would pretty much inevitably bust our ability to reach our targets. The objective to maximise economic recovery sits in stark contradiction to our overall emissions targets.
Olivia Blake
It has been an interesting discussion. “Maximum economic recovery” might sound like three benign words, but they could be a toxic combination. If we are not careful, they could be rephrased as “maximum economic crisis”. The climate catastrophe that will unfold if we do not cap global warming at 1.5°, and maintain that on average over 20 years, will be incredibly tough for any Government and for everyone internationally. Some reports suggest that if we wait 10 years, it will not take 1% of GDP to tackle the climate emergency; that will jump staggeringly. About 8% of GDP expenditure will have to go on resilience alone, and dealing with the consequences of the climate catastrophe. The cost of changing to a green energy system in that same decade would double as well. It is really important that we understand what that means.
I say “toxic combination”, but there is also the very real and significant risk of stranded assets. The financial sector, the insurance industry and pension funds are all very aware of the issue, and we see that in how they are changing the way that they invest in projects, and the divestment policies of many of the institutions in this space. Nature published an article in 2022 stating that 60% of oil and gas and 90% of known coal should remain in the ground if we are to get to 1.5°C, but the issue of stranded assets is a reality. We cannot have our cake and eat it; we cannot inhale our cake quicker and hope for the best. Every drop of oil and gas and every lump of coal that we burn contributes to the Anthropocene we are seeing. We have decisions that we can take, and we know that those decisions have an impact.
Stranded assets are really important in this debate. A report in 2022 suggested that the oil, gas and fossil fuel industry had £1.4 trillion of stranded assets. That means that there will be a cliff edge for jobs. There will be assets that people can no longer use or get value from. It will mean that we have barrels of oil, gas and coal that we cannot use, because—a very senior scientist makes this argument in the report—the world will have moved on. We hope that the world will move on as a result of the Bill; if we do not scale up net zero measures, UK households could be spending £500 a year on foreign gas, rather than saving £1,500-odd through a move to renewables and energy efficiency policies, and retrofitting.
This is an incredibly important point. We cannot just hope that things will get better, and squeezing every last drop out of the North sea is not compatible with our aim of 1.5°. We cannot set a date for getting to net zero, but then produce as much carbon and other greenhouse emissions as we like and hope for the best. There must be carbon budgeting, as we all know. We have had all this conversation about a just transition, yet we are giving massive tax breaks. For example, if Rosebank goes ahead, it will receive a tax break of £3.75 billion for something that may soon become a stranded asset.
Katherine Fletcher (South Ribble) (Con)
I am grateful to the hon. Lady, and I will be brief. Will she share the definition of a stranded asset? Some oil and gas extraction areas have enormous potential for carbon capture and storage; it will be a matter of pushing stuff down a pipe, rather than pulling stuff out of it. Has any of that been taken into account in her slightly apocalyptic analysis of what we can do in the North sea and other areas?
Olivia Blake
It is apocalyptic because going above 1.5°C will be catastrophic.
Olivia Blake
I absolutely agree that it needs to be a transition; that is exactly my point. In the scenario we are discussing,
“Fossil fuel resources that cannot be burned and fossil fuel infrastructure (e.g. pipelines, power plants) that is no longer used may end up as a liability before the end of its anticipated economic lifetime.”
The assets are not being valued at their value over their lifetime; it is that simple. Say we give a value to an asset for its lifetime—25, 50, 100 years or whatever. Its lifetime will fall short of that period, and there will be catastrophic consequences for the financial and economic world; things will go into freefall. This is about economic risk, not just what we have, where. It is that fundamental. That understanding is missing from a lot of this debate, but financial services, pension funds and the insurance industry are all saying that they are very aware of the issue.
Katherine Fletcher
The hon. Lady has just read quite a detailed definition of a stranded asset, which included fossil fuel reserves remaining under the ocean, if I heard her correctly.
Olivia Blake
We would have to leave them there, but figures for them would be baked into the economic analysis and the business planning for those sites. That is why there is a financial risk; financial plans will come into play that will be unrealistic and unmeetable. That is why the assets will become stranded assets; it had been planned that they would produce a profit over a period, but we will not get to that time because of the situation.
Katherine Fletcher
If I understand the hon. Lady correctly, she is worrying about a figure of £1.5 billion in stranded assets, which includes fossil fuels that are left under the ground. That does not take into account the fact that the assets could be repurchased for an energy transition. Would she agree that there is perhaps more analysis to do?
Olivia Blake
To be clear, it is not £1.3 billion; it is £1.4 trillion, and that is why this is significant. I am not the only one worried about this—so are financial institutions around the globe. This massive financial risk could spin us into financial crisis if we are not careful. This is not just a climate catastrophe; it is an economic situation that we need to monitor, and we need to ensure that we do not have a cliff edge that lands us in a spiral that we cannot get out of. That is why a transition is so important, and why we need development of industry in the North sea, but cannot rely on our valuations of assets at the moment.
We need to take into consideration changes in the use of oil and gas, so that we can reach 1.5°C. We cannot deal with those two issues in isolation. As much as that would please everyone at the moment and allow them to make a quick buck, it is economically illiterate to think that we can continue as we are. That is a big problem. There are huge opportunities for Government, and I welcome a lot of the things in the Bill that will help to unlock them.
At household level, the move to renewables would significantly benefit people. Renewables are three times cheaper than oil and gas-related heating and electricity. A record number of households are suffering from energy insecurity. It is important that we look at the issue in the round. We cannot just say, “We need this” or “We need that,” and expect it to add up. If the financial sector gets scared, and much suggests that it is, it will look to invest in other places. If insurance companies say, “We are not going to insure these facilities because there is such an economic risk to us,” we are in trouble. If pension funds flee from the sector, we are in trouble. Our financial sector is incredibly important in this area, and those in it are saying loud and clear, “Governments are behind us, and we need them to catch up.” This tiny phrase, “Maximum economic recovery”, and what it asks for, could lead to the cliff edge that we have all been saying that we do not want. That is why this is so important.
Andrew Bowie
I thank the hon. Members for Southampton, Test, and for Sheffield, Hallam, for their impassioned contributions to the debate. There has been talk of apocalypse and catastrophe, and there has been some idea that the country is not taking the issue seriously. The hon. Member for Sheffield, Hallam suggested that we were just setting a date and hoping for the best. Nothing could be further from the truth. We have decarbonised faster than any other G7 nation. Off the coast of this country are the first, second, third and fourth-largest offshore wind farms in the world. We created an entire Department to focus on the challenges of net zero, and we are passing this Bill, which will enable us to unlock so much of what we need to do to move this country forward even more quickly.
There was talk of economic illiteracy, but it is economic illiteracy not to support our outstanding British offshore oil and gas industry as it continues to produce the oil and gas that is required to keep the lights on in this country as we transition to a net zero future. It is the safest, most responsible offshore oil and gas sector in the world. Indeed, by 2035 we will have the first net zero offshore oil and gas sector, and the North sea will be the first basin in the world to be a net zero basin. I urge colleagues to stop talking down this Great British success story and start talking it up, as it contributes so much to our energy security and net zero ambitions.
Olivia Blake
I think the Minister completely missed the point of what I was saying. I am in no way doing down the industry. I am saying that there are financial risks linked to our climate risks, and they must be brought into this debate. That is fundamental, and future Governments will not thank us if we do not discuss and address that now.
Andrew Bowie
I could not agree more that there are financial risks. That is probably why, just this morning, so many businesses expressed their worry at Labour’s Just Stop Oil plans, which were outlined a couple of weeks ago and which the former Labour leader of Aberdeen City Council described as even worse for an industry than the actions of Margaret Thatcher in the 1980s. That is from a member of the Labour party who resigned due to Labour’s policies on oil and gas.
Dr Whitehead
I would be grateful if the Minister withdrew that comment about Labour’s “Just Stop Oil plans”. There are no Labour Just Stop Oil plans. Indeed, Labour has condemned the activities of Just Stop Oil protesters, because Labour does not wish just to stop oil. We specifically said this morning that we do not wish to do that, and that we see a substantial role for the North sea oil and gas industry out to 2050. We would support that future, so I hope the Minister will not resort to these easy gibes and will address the issue rather more seriously today. That would be helpful.
Andrew Bowie
I should probably turn to the new clause, but I welcome the welcome and support that the hon. Gentleman—and now, it seems, the Labour party—will give to our offshore oil and gas industry. He should probably inform the members and founders of Just Stop Oil who have donated so much money to his party.
The objective of maximising economic recovery in the North sea forms the basis of the North Sea Transition Authority’s regulatory functions, and removing them could significantly undermine its ability to operate as intended. It would also lead to a significant lack of clarity about the authority’s regulatory role. Maximising the economic recovery of oil and gas need not be in conflict with the transition to net zero, and the North Sea Transition Authority is already doing a great deal of work to support an orderly transition that delivers on our climate commitments and supports workers.
In December 2020, in accordance with section 9A of the Petroleum Act 1998, the North Sea Transition Authority published a revised strategy, titled “The OGA Strategy”.
Andrew Bowie
It is rather ironic, given what we have just been discussing. Through the revised strategy’s central obligation, the North Sea Transition Authority must
“secure that the maximum value of economically recoverable petroleum is recovered from the strata beneath relevant UK waters; and, in doing so, take appropriate steps to assist the Secretary of State in meeting the net zero target”.
The strategy therefore already provides a basis for the North Sea Transition Authority’s ongoing work to help drive the energy transition.
Under the revised strategy, the North Sea Transition Authority has also introduced new expectations for how North sea oil and gas assets will be managed in the least polluting way, and it will consider the full societal carbon cost when taking decisions. The North Sea Transition Authority will continue to work with Government, industry and other regulators to help accelerate the move to net zero while meeting the UK’s energy demands and need for energy security.
Section 9D of the Petroleum Act 1998, on reports by the Secretary of State, was repealed by paragraph 10 of schedule 1 to the Energy Act 2016, which means the repeal happened before any reports needed to be produced.
I pay tribute to our offshore oil and gas industry, particularly Offshore Energies UK and its “Vision 2035” plan, which means the North sea will become the world’s first net-zero basin. With these explanations, I hope the hon. Gentleman feels able to withdraw his new clause.
Dr Whitehead
I thank the Minister for clarifying the position on reports, because I must admit that I had not read that paragraph of the 2016 Act. It rather underscores my point that this is a performative piece of legislation. There were requirements to report, but the Government presumably realised that they were even sillier than the original imposition on the 1998 Act and decided, one year later, that reports would not be necessary. It could have been a bit embarrassing if the reports came out, so they decided that the reports were not necessary. I thank him for that clarification, but he is rather speaking to my point instead of his.
I am very disappointed that the Minister has sought to characterise our debate as one side of the Committee being against oil and gas and the other side being in favour; he thereby swerves the important point raised by my hon. Friend the Member for Sheffield, Hallam. On the overall position that maximum economic extraction could lead us—
Victims and Prisoners Bill (Sixth sitting)
Tuesday 27th June 2023
(10 months, 2 weeks ago)
Public Bill CommitteesRead Full debate Victims and Prisoners Bill 2022-23 View all Victims and Prisoners Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 June 2023 - (27 Jun 2023)
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 51, in clause 1, page 1, line 16, at end insert—
“(e) where the person has experienced adult sexual exploitation.”
Amendment 18, in clause 1, page 2, line 6, at end insert—
“(c) ‘child criminal exploitation’ means conduct by which a person manipulates, deceives, coerces or controls a person under 18 to undertake activity which constitutes a criminal offence;”
This amendment provides a definition for the term “child criminal exploitation”.
Amendment 52, in clause 1, page 2, line 6, at end insert—
“(c) ‘adult sexual exploitation’ means conduct by which a person manipulates, deceives, coerces or controls another person to undertake sexual activity.”
This amendment would provide for a statutory definition of adult sexual exploitation.
The Minister of State, Ministry of Justice (Edward Argar)
Amendment 17 seeks to include in the definition of a victim those who have experienced child criminal exploitation and have suffered harm as a direct result. I am grateful to the hon. Member for Rotherham for raising this issue, which the Government agree has a devastating impact. This morning, right hon. and hon. Members did what this House does well: they gave a voice to the voiceless.
I want to reassure hon. Members that large elements of the amendment are encapsulated in the Bill, and I hope I am able to offer something that goes at least some way to satisfy the hon. Lady and the hon. Member for Cardiff North. The Government are committed to tackling county lines and associated child criminal exploitation, and outside the Bill we have invested up to £145 million over three years to crack down on criminal gangs exploiting children and young people.
In addition, as part of the county lines programme, the Government continue to support victims of child criminal exploitation. We have, for example, invested up to £5 million over three financial years—2022 to 2025—to provide support to victims of county lines exploitation and their families. That includes a specialist support and rescue service provided by Catch22 for under-25s in priority areas who are criminally exploited through county lines to help them to safely reduce and exit their involvement. It also includes a confidential national helpline and support delivered by Missing People’s SafeCall service for young people and their families.
As the shadow Minister said, it is important to remember that although county lines is often the first issue to catch the attention of the media or this House, child exploitation goes way beyond that crime. We are therefore also targeting exploitation through the Home Office-funded prevention programme, delivered by the Children’s Society. That programme works with a range of partners to tackle and prevent child exploitation regionally and nationally.
I assure hon. Members that children who have been exploited for criminal purposes are indeed victims in the context of the Bill if the conduct they have been subjected to meets the criminal standard. Regardless of whether the crime has been reported, charged or prosecuted, those victims are already covered under part 1 of the Bill and the victims code.
Child criminal exploitation is already captured by a number of criminal offences under the Serious Crime Act 2007, the Misuse of Drugs Act 1971 and the Modern Slavery Act 2015. However, as the hon. Member for Rotherham highlighted, in some cases the exploitative conduct may not itself be criminal. The measures in part 1 of the Bill have specifically and fundamentally been designed for victims of crime and seek to improve their treatment, experiences of and engagement with the criminal justice system. Therefore, where the criminal exploitation is exactly that—criminal—the victims are already covered by the Bill’s definition of a victim of crime.
The definition of a victim, as I said previously, is deliberately broad. Within reason, we are seeking to be permissive, rather than prescriptive, to avoid the risk that specifying particular subgroups could inadvertently exclude those who do not fall into specific descriptions and definitions.
Amendment 18 seeks to provide a definition for child criminal exploitation. The Government recognise that the targeting, grooming and exploitation of children for criminal purposes is deplorable, and we share the hon. Member for Rotherham’s determination to tackle it. The Government have already gone some way to defining child criminal exploitation in statutory guidance for frontline practitioners working with children, including in the “Keeping children safe in education” and “Working together to safeguard children” statutory guidance. We have also defined child criminal exploitation in other documents, such as the serious violence strategy, the Home Office child exploitation disruption toolkit for frontline practitioners, which was updated in July last year, and the county lines guidance for prosecutors and youth offending teams.
The Modern Slavery Act 2015 states that when children who are under 18 commit certain offences, they are not guilty if they were committed as a direct result of exploitation. Prosecutors must consider the best interests and welfare of the child or young person, among other public interest factors, starting with a presumption of diverting them away from the courts where possible.
Sarah Champion (Rotherham) (Lab)
The Minister highlights the problem: there are lots of different documents with lots of different Departments and support teams where the Government have felt comfortable defining child criminal exploitation, and there is fragmentation across Government. The Bill offers the opportunity to define child criminal exploitation so that it is seen clearly that such children are victims of that exploitation. I will be frank with the Minister: the victims ought to be recognised in the Bill, but they are not. My hon. Friend the Member for Cardiff North and I are trying to use this as an opportunity to force the Government’s hand to make that definition, so that any person in the public or private sector who sees those children can understand that they are victims.
Edward Argar
When I conclude in a moment, I hope that I might have given the hon. Lady a little more reassurance. In respect of her specific point, the Government have previously explored the introduction of a statutory definition of child criminal exploitation with a range of operational and system partners. They and the Government concluded that the existing arrangements allow sufficient flexibility to respond to a range of circumstances while still ensuring actions when that consideration was undertaken.
I reassure the hon. Members for Rotherham and for Cardiff North that we continue to keep under review the issue and the legislation. The previous consultation with partners suggested that the right tools, powers and offences were already in place to tackle the issue.
Sarah Champion
I wonder who the Minister is talking to, because this amendment is supported by the children’s sector, including the Children’s Society, the NSPCC and Barnardo’s. The children’s sector wants this, so I do not understand who he is talking to who does not.
Edward Argar
I mentioned operational partners, and in this context, that refers to partners in the criminal justice system, such as the prosecution authorities, the police and others. I take the hon. Lady’s point about the wider stakeholder and sector support. If she allows me to make a little progress, we will see if it reassures her sufficiently.
Turning to amendments 51 and 52, amendment 51 seeks to ensure that persons who have experienced adult sexual exploitation are explicitly referenced in the definition of a victim. Adult sexual exploitation could be considered to consist of numerous criminal acts, some of which include human trafficking, controlling and coercive behaviour, causing or inciting prostitution for gain, controlling prostitution for gain, and rape and other serious sexual offences. I reassure hon. Members that adults who have been subjected to such criminal conduct are victims under part 1 of the legislation and under the victims code. My concern is therefore that the amendments would duplicate the existing coverage of the definition of a victim of crime. Again, the definition is deliberately broad to avoid inadvertently excluding a particular group or victim through being overly prescriptive.
Amendment 52 is intended to create a definition of adult sexual exploitation. Acts that can constitute adult sexual exploitation are, again, already covered by a number of existing offences.
Jess Phillips (Birmingham, Yardley) (Lab)
While they are covered by a number of different offences, much like domestic abuse, there is no charge or crime of domestic abuse, yet the Government felt it important to define domestic abuse in the Domestic Abuse Act 2021 for all the same reasons that my hon. Friend the Member for Rotherham tried to point out: it is currently written nowhere in any Government guidance, or any strategy to tackle adult sexual exploitation. That is what the amendment is intended to address.
Edward Argar
I am grateful to the hon. Lady. She may well push me in a slightly different direction, but I am always a little cautious of seeking to read across a precedent in one piece of legislation to a range of other areas. There may be occasions when it is universally applicable, but in other cases I would urge a degree of caution.
We have yet to see unequivocal evidence that a single definition or approach would better achieve delivery of our commitment than the current approach. However, I am happy to discuss it further and work with the hon. Member for Rotherham, the shadow Minister, the hon. Member for Cardiff North, and others between Committee stage and Report. As is the nature of the Committee stage, the amendments were tabled a few days ago—last week—and inevitably, when something significant is suggested, it is important to reflect on that carefully. I intend to reflect carefully on the points that have been made. I will not pre-empt the conclusions of my reflections, but I will engage with the hon. Member for Rotherham, and the shadow Minister if she so wishes, to see what may be possible between Committee stage and Report. On the basis of that commitment to engage, I hope that the hon. Member for Rotherham and the shadow Minister might, at this point, consider not pressing the amendments to a Division.
Anna McMorrin (Cardiff North) (Lab)
I thank the Minister for his response and the Committee for this debate on child criminal exploitation. I particularly thank my hon. Friend the Member for Rotherham for tabling the two critical amendments that look at adult exploitation as well as child criminal exploitation. She made excellent, and really quite emotive, points about a victim of child sexual exploitation, of course due to coercion and control, reaching the age of 18, when it is suddenly questioned as “unwise choices”. I appreciate the points that the Minister made. He appreciates that there is a real issue. As I set out earlier, there is widespread concern among all the agencies and charities working on this that child criminal exploitation takes a variety of forms. Ultimately, the grooming and exploitation of children into criminal activity needs to be addressed.
To take up the Minister’s point about using one statutory definition, at the moment safeguarding partners are working to so many different understandings, as my hon. Friend the Member for Rotherham said, of what constitutes criminal exploitation that there is no meaningful or consistent response across criminal justice agencies and safeguarding partners, which is critical when dealing with such matters.
I appreciate that the Minister is prepared to work together, and I hope that he has listened to our arguments. It sounds as though he is coming to the agreement that we will work together to address this matter in the Bill. Therefore, on reflection and having heard those points today, I will seek to bring this proposal back at a later stage of the Bill but will not press it today.
Sarah Champion
I thank the Minister. We have worked together for a long time, and he knows that I can be like a dog with a bone when it comes to things like this. I will take what he has said absolutely at face value. I am really grateful for the opportunity to explore the matter with him further, and because of that, I will not press my two amendments at this point.
Anna McMorrin
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Champion
I beg to move amendment 46, in clause 1, page 1, line 16, at end insert—
“(e) where the person is the child of a person posing sexual risk to children.”
This amendment would include children of a person posing a sexual risk to children (that is, paedophiles (including perpetrators of offences online), suspects or offenders) as victims.
I don’t get out much, Sir Edward—and neither do you, because of that! I ask the Committee to listen to my speech on this issue with an open mind, because when I first came across it, it took me a little time to get my head round it, but to me now, it seems the most obvious thing. I am talking about recognising the children of paedophiles as victims. That is what my amendment seeks to make happen. Just as we have now—I thank the Minister and the Ministry of Justice—made a huge step forward in defining children born of rape as victims in this legislation, so we need to ensure that other secondary victims will also be entitled to rights under the victims code. The children of any paedophile are disproportionately impacted when their parent is investigated, charged and jailed, and I make a plea for them to be considered within the definition of victims.
Just like domestic abuse, the illegal activity is committed, most often, within the family home—the child’s “safe space”. Social services view the parent as potentially posing a sexual risk to any child from day one of an investigation, not from a guilty verdict. I will give the Committee an example from my constituency. About five years ago, a lot of single mothers were coming to me with real concerns about the heavy-handedness of social services around child protection—their child’s protection. They were really confused as to why social services were doing this. When I intervened on their behalf, I realised that it was because the other parent of the child was being investigated for—in this case—organised child sexual exploitation. Social services could not tell the mother what was going on, for fear of tipping off the other parent, but they had serious safeguarding concerns in respect of that parent in that house because of the father’s activities. This is a very real thing that happens; it has a very real basis.
Amendment 46 is crucial, because it specifically identifies children of a person posing sexual risk to children. These people are known as PPRC—persons posing a risk to children—by the police when they are under investigation and not just once they have been charged. The family unit structure, including the household economics, is generally impacted in a dramatic way—irrespective of the outcome of the investigation—because of the immediate protective measures put in place by agencies. For the family’s safety, the nature of the investigation is almost always kept confidential, thus increasing the vulnerability of these children within the whole secrecy around CSA. Investigations and convictions shape the child’s childhood, as interactions with the parent are controlled by restrictions imposed by the judicial system. The child loses all autonomy within the relationship with the suspect or offending parent, for safeguarding purposes—which we can completely understand—until they are over the age of 18.
Negative community judgment for close associates of CSA suspects is highly prevalent and can be magnified by media coverage at the court. If we think about our local papers, once someone is charged with such crimes, their name, address and photos all get into the public domain, whether by media, once the conviction has happened, or most likely by Facebook and well-meaning neighbours trying to protect their own children. The stigma that causes for the child is untold.
I have worked with the survivor Chris Tuck for many years. She is an active campaigner on child protection. She has asked me to read her case study about what happened to her:
“I grew up in 3 domestic violence households where witnessing and experiencing abuse every day was the norm.
My dad and step mum were not good for each other or to us children. The abuse intensified via domestic violence and child abuse.
This chaotic dysfunctional abusive home life led to us being vulnerable to abuse outside the family home. I was sexually abused by a school bus driver in 1979…In 1980/81 my dad George Frances Oliver was convicted of child sexual abuse against some of the children in the household (not me).
I remember very clearly when my dad was arrested for his crimes.
It was an odd day; 3 of us children came home from school and dad was lying on the sofa reading. It was eerily quiet, my step mum, my sister and stepsisters were not there.
We were just speaking to dad about this fact when there was a loud crashing noise and lots of shouts of ‘Police! Police!’.
The police stormed into the room and arrested my dad, it was very frightening to witness and caused us a lot of distress. We did not know what was happening.
I remember the police taking us 3 children to our eldest stepsisters’ house where my step mum, other stepsisters and sisters were waiting.
That is where I was told what my dad had done. I didn’t believe it. I couldn’t believe it.
In my head I was trying to reconcile what the school bus man had done to me and now my dad had done those things and worse to other children in the house.
I felt sick, I felt dirty, I felt shame. I felt betrayed and let down by my dad. The man I loved at the time.
Dad was put on remand and eventually convicted of his crimes. I find out about this at school, in the playground. One day a boy shouted out ‘your dad is a paedo....dirty paedo’.
I didn’t know what that word meant. But I knew it was bad by the way it was said and I knew what my dad had done. I had experienced a little of what my dad had done via my own experience of sexual abuse and the internal examination I had at the Police station.
Dad’s sentencing had been written up in the local paper. Again, it felt like everyone knew. Everyone was judging me, us, for the crimes committed by my dad.
Again, I felt sick, I felt dirty, I felt shame. I felt bad to the very core of my being. This I carried with me well into my adulthood.
Again, no support was given to any of us as children and young people.
The legacy of my dad being a convicted paedophile lived with me into my mid 40s when I paid for specialist professional help and support to deal with the trauma from deep unexpressed feelings and emotions.
When I left home at nearly 16, I wrote my childhood off, I never told anyone about anything. I put on a mask for over a decade and I tried to build a new life for myself. I battled with bulimia and anger management throughout my teens and twenties.
If I had been classed as a victim, as a child and young person and given the help and specialist support at the time of each incident throughout my life I would not have had the hardship of dealing with the trauma and ill-health (mentally and physically) I have experienced as a result during my adulthood.
Recognising children and young people as victims of crime perpetrated through association needs to be recognised because there is a trauma impact as I have described.
Just knowing what is happening when it comes to the perpetrator and their movements—where they are imprisoned, when they are going to be released and where—is a must for the peace of mind of all involved.”
That experience has become even more common with online child sexual offences, which have increased dramatically. The trauma for the child usually begins once police execute a search warrant of the family home, often referred to as “the knock”, after the police have received the information regarding the online suspect. That, I would say to the Minister, would be the ideal point to intervene to prevent further trauma, but currently that is not happening. Records for 2021 show that there were 850 knocks a month. Children were present for 35% of those knocks. That compares with 417 knocks per year in 2009-10, and I fully expect those numbers to keep on going up, with all the police are telling us about the exponential rise of online child abuse.
Children are unseen victims of this crime, but are not recognised as such or given the support they need. Often, families do not receive information about the offence, court proceedings or sentencing until they are told by the offender, if they are told by the offender. If the children were defined as victims, they and their parents would be entitled to receive such information. Having the victims code apply here would address some of the key issues for children and for non-offending parents, including information from police and access to support services.
Let us be honest: the knock disproportionately affects women, who are often forced to give up their job as a consequence, take time off sick, move home, supervise access, manage childcare, manage supervision and take on the burden of minimising the suspect’s risk of suicide or reoffending. Women are effectively treated as a protective factor, but they have no protection themselves.
I have worked on the amendment with Talking Forward, a charity that funds peer support for anyone whose adult family member has been investigated for online sexual offences. It is much more common than Members realise. Currently, three police forces refer families automatically to Talking Forward, but that could be broadened out nationally, if the amendment is accepted. Lincolnshire police now have a dedicated independent domestic violence adviser-type role for such families. Again, if the amendment is accepted, that could be rolled out more broadly to provide specialist support.
The first step must be to recognise children of child sexual abusers, whether physical or online, as victims. That will reduce costs in the long term, whether that is by ensuring children have immediate support or reducing costs to the family courts. I ask the Minister to accept this amendment.
Edward Argar
As the hon. Lady set out, amendment 46 would include persons who have suffered harm as a direct result of being a child of a person who poses a sexual risk to children, for example a paedophile, in the definition of a victim. I am grateful to her for raising this important issue and I reassure her that the Government absolutely sympathise with the challenges faced by the unsuspecting families of sex offenders and those who pose a sexual risk to children.
If family members in these circumstances have witnessed criminal conduct, they are of course already covered by the Bill’s definition of a victim—that is, if they have been harmed by seeing, hearing or otherwise directly experiencing the effect of the crime at the time the crime happened. I think the hon. Lady would like to go somewhat more broadly, to those who may not have been there at the time or have directly witnessed the crime, but who may still suffer the impacts of that criminal behaviour. I know that she is interested in support more broadly for the families of offenders and those impacted.
As the hon. Lady rightly said, that cohort would not come within our definition of a victim, which is deliberately crafted in both the Bill and the victims code to be designed for those who have been harmed directly by the crime in question and therefore need the broader entitlements in the code to navigate the criminal justice system, as well as to receive support. On this occasion, therefore, I must resist the broadening of the scope of clause 1 that the amendment would bring.
Maria Eagle (Garston and Halewood) (Lab)
The Justice Committee, in its pre-legislative scrutiny of the clause, did ask the Government to extend the coverage of these provisions to include children born of rape as secondary victims, and they responded positively. Is there a difference between the case that my hon. Friend the Member for Rotherham made for the children of paedophiles and the concession—that is the wrong word for it; it is technically correct, but I am not trying to suggest that the Government have given in—made in accepting the Justice Committee’s suggestion that children born of rape should be included? Is there a technical difference, because I am failing to see it at the moment?
Edward Argar
The technical difference, or the difference as we see it, is that in the case of the Justice Committee’s PLS recommendation the individual was born as a direct consequence of a criminal act. In the case to which the hon. Member for Rotherham referred, the individual is not experiencing something as a direct consequence of a criminal act, but there are of course impacts on them. That is the difference that we draw, but it does not mean that this cohort is not deserving of support on their own terms, and I will touch briefly on what is available.
His Majesty’s Prison and Probation Service funds the national prisoners’ families helpline, which provides free and confidential support for those with a family member at any stage of their contact with the criminal justice system. There are also several charities—I suspect that the hon. Lady works with them on these issues—that provide specific support for families affected by the actions of a family member, including support for prisoners, people with convictions, and crucially their children and families, and support for families that have been affected by sexual abuse.
We will continue to consider how best to support and protect those impacted by crime as well as victims of crime, who are directly covered by the Bill. I therefore gently encourage the hon. Lady not to press her amendment to a vote at this stage. She may wish to return to it, but I will continue to reflect carefully on what she has said. We sit and listen, but we may miss some nuances, so I will read the report of what has been said carefully.
Sarah Champion
I am grateful to the Minister for keeping an open mind. What is needed most is information on the criminal justice process for those family members, which would automatically be afforded under the victims code. I am grateful for his offer to read the report and see whether there is something that we can do. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Jess Phillips
I beg to move amendment 54, in clause 1, page 1, line 16, at end insert—
“(e) where the death by suicide of a close family member of the person was the result of domestic abuse which constitutes criminal conduct.”
We have all had a long time while the Bill has been going through to campaign, successfully, on various things through various means, including, as my right hon. Friend the Member for Garston and Halewood mentioned, around the pre-legislative scrutiny. Those of us who have been fighting for child victims born of rape were pleased to see that concession. Another area that many of us have campaigned on is recognition of people who are victims of homicide but not direct victims. If someone’s daughter is murdered, they are a victim of that crime. Both those concessions have come about, and not dissimilarly to my hon. Friend the Member for Rotherham I wish to push the envelope a little further, and talk about those who die by suicide as a direct result of being a victim of domestic abuse.
I met a mother at a memorial service for violence against women and girls. Just yesterday, she emailed me. Her daughter died in 2018. She wrote:
“If my daughter hadn’t met him, she would still be alive, her children still have a mother, me my precious only daughter…Why is the associated link between ‘domestic abuse’ and ‘suicide’ ignored? Overlooked are the ‘compensating’ mechanisms—substance abuse, alcohol, ‘mental health issues’ then used by so called ‘professionals’ as the reason ‘why’ they have taken their lives...the link is the perpetrator and the victim, NOT the substances. They are often used by the victim to ‘escape’ from the relentless mental, physical abuse and torture. They don’t want to die, merely ‘escape’ from the traumatic situations. They are in Hell.”
Families who have lost loved ones to suicide following domestic abuse should be recognised as victims, in the same way as those who lose family members to murder are supported.
Ellie Reeves (Lewisham West and Penge) (Lab)
My hon. Friend is making a powerful speech. I want to mention the family of Gemma Robinson. Gemma was the victim of a horrific assault by a former boyfriend. She took her own life in 2020 due to the fear of facing her attacker in court. Gemma’s sister, Kirsty, has spoken about the devastating impact of Gemma’s death on the whole family. The family were then left to face the sentencing of the perpetrator, Gemma’s inquest and the domestic homicide review all on their own, without support. Does my hon. Friend agree that Gemma’s case highlights why it is so important that relatives in these types of cases are recognised as victims?
Jess Phillips
I thank my hon. Friend. Our hearts go out to Gemma’s family. That is exactly the reason why I tabled the amendment and why the Labour party seeks to have these people recognised. That recognition would allow such relatives to access the support and care they need, and begin to shine a light on a shamefully under-scrutinised and ignored sphere of criminality and wrongdoing.
We do not need to look much further than the facts of the cases and the experiences of the families to realise that those relatives should be recognised and have the support and guidance that that would, or should, bring. The criminality and wrongdoing in those cases, the interaction with court processes and the justice system, and the trauma experienced, make the argument for inclusion clear. Although in many cases, they may not ever get a criminal sanction against the perpetrator, there are inquests and domestic homicide reviews, as my hon. Friend said. Honestly, to be a victim in this country, whether that is one recognised by this Bill or not, is hard work. Imagine doing that work when your daughter or your sister has died.
There are other concerns about why this recognition is important, which are to do with unchecked criminality and wrongdoing. In these heartbreaking cases, where the deceased took her own life—I use the pronoun “she” due to the gendered nature of domestic abuse—there is clear evidence that she was driven to suicide by the abuse she suffered at the hands of a domestic abuse perpetrator.
The feelings of injustice for bereaved families when the abuser escapes all responsibility for the death must be unbearable. Families find themselves in an agonising position of having watched their loved one experience horrendous criminality—violence, abuse, coercive control—and the unrelenting horror day after day, hour after hour, until their loved one was driven by desperation to take their life. Currently, in those cases, criminality is going completely unchecked, un-investigated and unchallenged. Perpetrators remain free to harm again and again. Bereaved families are left feeling failed by the justice system, and the opportunities to address issues and learn lessons are being missed.
There has been one successful prosecution of that type of case. In 2017 R v. Allen, the perpetrator pleaded guilty to manslaughter—if we are relying on cases where men plead guilty, we are on a hiding to nothing—in respect of the death of his former partner, Justene Reece, who had taken her own life after experiencing years of coercive control, stalking and harassment. Justene had left a suicide note explaining that she could not endure her stalker’s behaviour any longer. That case is a clear precedent.
Janet Daby (Lewisham East) (Lab)
Only last week, we heard from the Domestic Abuse Commissioner, who said that the broader the definition is, the better it will be for victims.
Jess Phillips
Absolutely. I have worked with the Domestic Abuse Commissioner. There is a huge area of hidden homicide that we are concerned about, and suicide is one of the areas where we are just not getting the data about how many women are dying because of domestic abuse, unless they are directly killed.
The case that I described provides a clear precedent, and there is hope that more cases will follow, but currently families find very limited access to such justice and answers. It is clear that for such prosecutions to happen, police officers must proactively undertake evidence gathering for domestic abuse offences post death, for example by listening to the concerns of family members, taking witness accounts, reviewing records held by medical, statutory and third sector agencies, and looking through financial records and electronic communications. This is not commonplace in cases of domestic abuse where the victim is alive. It is certainly not commonplace in cases where the victim has died.
The police seem to have a distinct lack of professional curiosity in such cases. In research by Advocacy After Fatal Domestic Abuse and the University of Warwick, titled “An Analysis of Domestic Homicide Reviews in Cases of Domestic Abuse Suicide”, families reported police failing to investigate adequately, police not acting on the information given by families and friends about perpetration of domestic abuse, evidence not being captured, evidence and personal effects of the deceased being returned to the surviving partner or ex-partner, police not considering domestic abuse when attending suicide cases, and a lack of senior police oversight in investigations of suicides.
One family member included in the research submitted 74 exhibits of screenshots and photographs in the aftermath of her daughter’s death, but felt dismissed out of hand by the officer in charge when she presented them. She said:
“I said to him, I’ve brought this because I think it’s important information. Every time he took a piece of paper off me…[he] slammed it on the desk. I said to him, are you not going to look at them? He said, there’s no point…it’s irrelevant…your daughter took her own life…It was like she wasn’t important when she was alive and…she’s not important now she’s dead.”
Other institutions also deny these families any form of justice or an understanding of what happened to their loved one. Take domestic homicide reviews. In many cases, even though the statutory criteria are met, families have to fight tooth and nail to ensure that a domestic homicide review is commissioned, normally only with the help of an advocacy organisation such as AAFDA. Inquests and coroners courts often demonstrate a lack of understanding of domestic abuse. In the research I mentioned, one DHR chair reflected that, in their experience,
“Coroners often see...women as kind of weak, they’re so misguided and they take their own lives, and they should have stood up for themselves and left…So you get that kind of reference to, you know, extreme attention-seeking. And it’s not that. It’s that you’re utterly worn down by someone who often is so cleverly manipulative…I don’t think Coroners understand that at all and the barriers to leaving and all those sorts of things…I don’t think they have an understanding of how all these little things are really damaging.”
Those examples of interactions with criminal justice systems or inquest procedures clearly highlight the crucial need for advocacy and support for families who lose a loved one to suicide following domestic abuse. One family member explained that
“you’re thrust, in a nanosecond your life flips on its axis, and not only are you dealing with the impact of losing someone so precious, especially in circumstances like this…you have to learn a whole new language…and then there’s timeframes, you’ve got to have this done by that…you’ve got this agency asking you for that, you’ve got someone questioning you, the police are calling you up”.
Research has found that having access to support and advocacy is overwhelmingly positive for families, helping them to feel empowered, but for most that support comes about only by luck or lengthy effort on their part. The mental health impact must not be underestimated. The trauma experienced by families is unimaginable. As one professional who works with such bereaved relatives put it, losing a loved one to suicide is
“one of life’s most painful experiences. The feelings of loss, sadness, and loneliness experienced after any death of a loved one are often magnified in suicide survivors by feelings of guilt, confusion, rejection, shame, anger, and the effects of stigma and trauma. Furthermore, survivors of suicide loss are at higher risk of developing major depression, post-traumatic stress disorder, and suicidal behaviors, as well as a prolonged form of grief called complicated grief. Added to the burden is the substantial stigma, which can keep survivors away from much needed support and healing resources. Thus, survivors may require unique supportive measures and targeted treatment to cope with their loss.”
It is clear that families who find themselves in that devastating situation desperately need more support to navigate the complex legal processes and get access to the support they need.
Edward Argar
I am grateful to the hon. Member for Birmingham, Yardley for raising this important issue and for referring, as the right hon. Member for Garston and Halewood did, to pre-legislative scrutiny. I hope to have given Committee members some encouragement that on occasion I agree to changes, and perhaps to a different approach from that in the original draft of the Bill.
As the hon. Member for Birmingham, Yardley set out, her amendment 54 would extend the definition of a victim in the Bill explicitly to include families impacted by the death by suicide of a loved one as a result of domestic abuse. In her remarks, the hon. Lady quite rightly went wider than that, highlighting investigatory issues and broader prosecutorial issues. I have—as, I suspect, does every member of the Committee—huge sympathy for the families in the position that she set out. Before I turn specifically to the impact of her amendment, and I wish to touch on some of the support available for them,.
The Ministry of Justice provides police and crime commissioners with grant funding to commission local, practical, emotional and therapeutic support services for victims of all crime types, based on their assessment of needs. The Department for Health and Social Care has committed to publishing a new national suicide prevention strategy later this year and is engaging widely across the sector to understand what further action can be taken to reduce cases of suicide. The strategy will reflect new evidence and national priorities for suicide prevention across England, including actions to tackle known risk factors and targeted actions for groups at particular risk or groups of concern. An additional £57 million is being invested in suicide prevention by March 2024, through the NHS long-term plan.
I agree with the hon. Lady about the importance of the issue. With regard to her amendment, we are not convinced that explicitly extending the definition of a victim of crime in the Bill and the code is the right approach to appropriately support the families. Part 1 of the Bill specifically sets out how victims who have suffered harm as a direct result of criminal conduct are treated by and supported to engage with the criminal justice system. Our view is that that group is largely covered by the Bill’s definition of the bereaved family of a person who has died, including by suicide as a direct result of domestic abuse, which is captured by clause 1(2)(c):
“where the death of a close family member of the person was the direct result of criminal conduct”.
In the context, domestic violence is criminal conduct. I appreciate—this is potentially where the nuance lies, and why the hon. Lady might be pushing for greater clarity—that that will be fact-specific for each case in the circumstances. It is a complicated area and each case will be complicated but, as I say, we believe that clause 1(2)(c) captures this.
I know that we have discussed the need for clarity and awareness about entitlements among victims and agencies. As I am sure the hon. Member for Birmingham, Yardley is aware from her shadow ministerial role, the Government are consulting on and clarifying the position in the domestic homicide review to formally recognise this cohort of victims. With her permission, I will gently encourage her not to press her amendment at this point, but in the context of the broader work being done I hope she will allow me, in the short term, to write to her with greater clarity on our interpretation of clause 1(2)(c)—she may wish to challenge that in the future, of course; she is entitled to—and to see if we are able to factor in the broader work being done before we reach Report.
Jess Phillips
I thank the Minister. I would absolutely welcome it if he wrote to me and the Committee about exactly how clause 1(2)(c) encompasses what I seek, so that those families have an opportunity. It is good when Ministers say things in Committee that we can use to ensure that families get support. I will withdraw the amendment at this stage. I am not always especially keen on the Government, but the level of progress in the area of hidden homicides, certainly under the previous Home Secretary, is to be admired. I do not think that the Government are without concern on the issue of suicide in cases of domestic abuse. Thanks to what the Minister says, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Champion
I beg to move amendment 63, in clause 1, page 1, line 16, at end insert—
“(e) where the person is a child under the age of 18 who has suffered harm and is a victim of, or a witness to, criminal conduct.”
The Chair
With this it will be convenient to discuss amendment 42, in clause 2, page 2, line 25, at end insert—
“(3A) The victims’ code must make provision for services for victims who are children under the age of 18 who have suffered harm and are victims of, or witnesses to, criminal conduct.
(3B) In determining what services are appropriate under subsection (3A), the Secretary of State must have regard to the provisions of the Youth Justice and Criminal Evidence Act 1999 in respect of children under the age of 18.”
This amendment would require the victims’ code to contain specific provision for children who are victims or witnesses, in line with the provisions of the Youth Justice and Criminal Evidence Act 1999.
Sarah Champion
Amendments 63 and 42 are supported by the NSPCC; I am grateful for its help, which has enabled me to table them. They are designed to ensure that all children under the age of 18 who have experienced harm as a victim of or witness to a crime are within the scope of the Bill and have access to special measures in line with the existing provisions on vulnerable witnesses in the Youth Justice and Criminal Evidence Act 1999.
The inclusion of children as victims of domestic abuse within clause 1, in accordance with the Domestic Abuse Act 2021, is welcome. However, children experience many different forms of abuse, exploitation and serious violence, as shown by the remit of the Bill. In many cases, children can experience more than one form of abuse at the hands of one or multiple perpetrators.
The scale of child abuse in this country, as we know, is devastating. The Centre of Expertise on Child Sexual Abuse estimates that, based on the available evidence, one in 10 children in England and Wales are sexually abused before the age of 16. At a conservative estimate, the number of children sexually abused in a single year is around half a million. In 2021-22, there were more than 16,000 instances in which local authorities identified a child sexual exploitation case as a factor at the end of an assessment by social workers. There were 11,600 instances in which gangs were a factor, and 10,140 in which child criminal exploitation was a factor. Research by the Children’s Commissioner found that 27,000 children were at high risk of gang exploitation but had not been identified by services, and were therefore missing out on vital support to keep them safe.
For the Bill to truly support all young victims and witnesses, clause 1 must refer to the eligibility criteria in the Youth Justice and Criminal Evidence Act 1999, which provides for enhanced rights and special measures for those under the age of 18 at the time of the offence. The victims code of practice also recognises the issue, under its definition of “vulnerable or intimidated” victims, by affording eligibility to under-18s to have access to enhanced rights and special measures. Special measures include, but are not limited to, screening witnesses from the accused, providing evidence by live link, the removal of wigs and gowns, and video-recorded cross-examination.
However, despite the Crown Prosecution Service stating that special measures are available for vulnerable and intimidated witnesses to give their best evidence in court—and to help to relieve some of the stress associated with giving evidence—the Victims’ Commissioner has found that young victims were neither informed about nor in receipt of all their rights under the victims code, including access to special measures. For many children, the current justice system is simply not supporting their needs. That often compounds the abuse that they have suffered.
In oral evidence last week, this Committee heard the Children’s Commissioner explain that children and young people do not necessarily understand or report their experiences in the same way as adults. NSPCC research has previously found that special measures were seldom used. Being accompanied by a neutral supporter of the young witness’s choice, closing the public gallery in sexual offence cases, combined special measures—such as preventing the defendant’s view of the child on the live link—and giving evidence over a live link, away from the trial, were sadly rarely used. Some areas had no non-court remote sites at all.
Our courts desperately need the funding and resources to ensure that there are suitable facilities accessible for all victims’ needs and preferences. I welcome the roll-out of section 28 pre-recorded evidence in all courts, but it is key that the victim or witness can provide their evidence how they choose. For children, we must ensure that that is an informed choice.
NSPCC research also found that 150 witnesses waited an average of 3.5 hours at magistrates courts or youth courts and 5.8 hours at a Crown court, despite the victims code committing to ensure that victims giving evidence
“do not have to wait more than two hours”.
It is imperative that all victims under the age of 18 be recognised as eligible for special measures under section 16 of the Youth Justice and Criminal Evidence Act 1999, so that they are recognised by all relevant agencies as vulnerable and therefore receive their enhanced rights. We need to actively include children within the definition of a victim so that they can be afforded the appropriate support to which they are entitled, in a way that they can understand and access. Will the Minister explain whether he will take any additional steps, either in the guidance or separately from the proceedings of the Bill, to ensure that all child victims and witnesses can access their rights, particularly special measures?
Edward Argar
Amendment 63 seeks to add wording to the definition of a victim to explicitly state that it includes children. I reassure the hon. Lady that children who are
“a victim of, or a witness to, criminal conduct”
are already covered by the definition of a victim under part 1 of the Bill, and included in the current victims code. The relevant provision of the Bill—clause 1(2)(a)—says
“where the person has seen, heard, or otherwise directly experienced the effects of, criminal conduct at the time the conduct occurred”,
and that is not an age-specific or age-exclusive point; it is universally applicable.
The definition of a victim covers individuals, including children, who have suffered harm as a direct result of being subjected to a crime. It also covers persons, including children, who have suffered harm as a direct result of certain circumstances, including the death of a close family member as a direct result of criminal conduct, and being born from rape. The hon. Lady quite understandably made a number of broader points about the operation of the criminal justice system and the courts. I will confine my remarks to the amendments, but I note those points.
The Bill’s definition of a victim has been amended, as the hon. Lady touched on, to align with the full definition of domestic abuse in part 1 of the Domestic Abuse Act 2021, which will also be set out under the new victims code. The purpose is to have clarity and proper read-across between different pieces of legislation. The Bill therefore defines child victims who witness or experience the effects of domestic abuse as victims in their own right.
Individuals—again, including children—who witness a crime are covered by the Bill. We have described that as seeing, hearing or otherwise directly experiencing the effect of a crime at the “time the conduct occurred”, which ensures that we do not exclude individuals who have been harmed by witnessing a crime even if they were not physically present when it occurred. For example, they may have seen it occur online as it was happening if it was being streamed or similar.
We recognise that individuals will be affected differently after witnessing a crime. That is why we have specified that an individual will be defined as a victim only if they have suffered harm as a direct result of witnessing criminal conduct. In that context, amendment 63 is unnecessary as children are already covered by the definition in the Bill, which, as I said, also aligns with the DA Act 2021.
Amendment 42 would require the victims code to contain specific provision for children who are victims or witnesses. Again, I reassure the hon. Lady that the definitions in both the Bill and the victims code include adults and children alike. Children are also explicitly recognised in the current victims code as vulnerable victims. Some of her points—for example, on how a court case is run and the length of time given for evidence—will, to a degree, be down to the way a judge runs that particular case with judicial independence and discretion. However, that explicit recognition in the victims code means that children have entitlements and “enhanced rights”, such as getting information about key decisions more quickly.
That recognition is set out in the enhanced rights section of the code, which specifies that victims are “eligible for enhanced rights” if they are
“under 18 years of age at the time of the offence”.
Young people are automatically eligible for the special measures included in the Youth Justice and Criminal Evidence Act 1999, which the hon. Lady mentioned, when they are giving evidence. Such measures can include communication assistance through a registered intermediary, giving evidence by live link or having their evidence pre-recorded, subject to the agreement of the court or the judge.
I fully support the aim of making the victims code as clear as possible about the different and distinct needs of children. The hon. Lady is aware that we will be consulting on a new victims code after this Bill gains Royal Assent, and we have published a draft to inform the debate prior to that formal consultation. This is one of the areas that we will be focusing on in reviewing and updating that code.
Sarah Champion
The Minister is right to say that the special measures are subject to a judge’s discretion. I wonder whether, when he is looking at updating the guidance and the code, he could look quite closely into that, because of the example in Rotherham, where we have the ongoing past cases of grooming gangs. We are finding that the National Crime Agency tries to go for one judge, who is very aware of the need for special measures and very supportive of that. The concern is that, across the country, other judges are more subjective with regard to whether they think special measures are an automatic right and what the threshold is. Therefore, when the Minister is doing his review, will he look specifically at the guidance to judges about whether to allow special measures?
Edward Argar
I hope that the hon. Lady will forgive me if I resist the temptation to stray into areas that are properly judicial—related to judicial independence and, indeed, training and the Judicial College. I am very cautious about trespassing on judicial independence. She has made her point on the record, but as a Minister I have to be a little cautious in that respect.
The Children’s Commissioner, Dame Rachel de Souza, when she gave evidence to the Committee last week, welcomed the fact that work with her office had already begun. We are looking forward to working with her and others—including, indeed, in this House—as we prepare a further draft code for consultation. Given that the current code already includes provision for child victims and witnesses and that we have made a commitment to make that clearer in the new code, and given the definition in clause 1(2)(a), I hope that I will persuade the hon. Lady not to press her amendment to a Division at this point.
Sarah Champion
I thank the Minister for everything that he has said. I have comfort at this point, so I will not press the amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Champion
I beg to move amendment 40, in clause 1, page 2, line 5, after “that” insert
“no report of the conduct has been made to a criminal justice body and that”.
This amendment aims to ensure that a person could meet the definition of a victim without needing to make a report to a criminal justice body.
I am nearly done with my amendments—on this clause. [Laughter.] Sorry; but I will say up front that this is a straightforward probing amendment, which aims to ensure, in relation to determining whether a person is a victim for the purposes of this legislation, that the scope is expanded to include those who do not choose to report an offence to the criminal justice system. Clause 1 of the Bill has been substantially improved since the drafting. I am relieved that it states that
“in determining whether a person is a victim by virtue of any conduct, it is immaterial that no person has been charged with or convicted of an offence in respect of the conduct”.
However, I am keen for the Minister to clarify that this also does not require the victim to report the crime to a criminal justice body.
Janet Daby
I want to refer again to the Domestic Abuse Commissioner, who said in her evidence to us:
“You are absolutely right: most victims do not report to the police. The reality is that it is probably one in six.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 7, Q4.]
I just want to emphasise that point: many victims do not report to the police. Of course, there is a question following that, as to whether a prosecution takes place.
Sarah Champion
My hon. Friend is absolutely right, as is the Domestic Abuse Commissioner. That is why it is imperative that all victims and witnesses, particularly children, can access support through this legislation without needing to engage with the criminal justice process.
I have worked with the NSPCC on this amendment, as it raised concerns due to the fact that the majority of crimes against children and young people are not reported to the police. It can be extremely difficult for victims and survivors to speak about their experiences of child sexual abuse, as revisiting traumatic childhood experiences often causes significant distress. Prior experiences of being silenced, blamed or not taken seriously by the justice system can discourage victims and survivors from disclosing child sexual abuse again.
The independent inquiry into child sexual abuse found that child sexual abuse is dramatically under-reported. The 2018-19 crime survey for England and Wales estimated that 76% of adults who had experienced rape or assault by penetration did not tell anyone about their experience at the time. A large number of the inquiry’s investigation reports noted that the true scale of offending was likely to be far higher than the available data appears to suggest. The Government’s own “Tackling Child Sexual Abuse Strategy 2021” noted that:
“People were even less likely to tell the police—only an estimated 7% of victims and survivors informed the police at the time of the offence and only 18% told the police at any point.”
Can the Minister guarantee, on the record, that the definition of victim includes those who choose not to report to the criminal justice system? The majority of victims, who choose not to report an offence, must still be able to access support under the Bill.
Edward Argar
I am grateful to the hon. Lady for the amendment, which she has clarified is a probing amendment; she is seeking clarity from the Box, as it were, that someone can come within the definition of a victim in the Bill without needing to report the relevant crime. Let me reassure her at the outset that that is already the case in the Bill’s existing definition.
Victims of crime are considered victims under part 1 of the Bill, whether or not the offence has been reported to the police or any other criminal justice body. This is a fundamental part of the Bill, because we want to make it clear that victims of crime are able to access support services, regardless of whether they have reported a crime.
The point is covered by clause 1(4)(b), which sets out that,
“criminal conduct” means conduct which constitutes an offence (but in determining whether a person is a victim by virtue of any conduct, it is immaterial that no person has been charged with or convicted of an offence in respect of the conduct).”
I am happy to clarify and build on that for the hon. Lady: reporting or conviction is not required to meet the threshold. That echoes the current victims code and approach, which is clear that relevant entitlements are available,
“regardless of whether anyone has been charged, convicted of a criminal offence and regardless of whether you decide to report the crime to the police or you do not wish to cooperate with the investigation.”
In the new draft code that we have published, that point is further highlighted in the opening section on who is a victim under the code, which explicitly sets out:
“The term ‘criminal conduct’ reflects the fact that you do not need to have reported the crime to the police to be considered a victim of crime. Some of the Rights under this Code apply to you regardless of your engagement with the criminal justice system.”
The reason it is worded that way is because some of the rights are clearly worded as only to be directly relevant if someone is in the criminal justice process. It is explicit there that the code would apply to the individuals that the hon. Lady seeks to ensure are encompassed in this context.
I appreciate that the amendment seeks to make the fact that reporting is not required as clear as possible. Our view is that the amendment is not necessary because of the current drafting of the Bill and the wording of the revised victims code.
Noting the hon. Lady’s words that this is a probing amendment, I hope she will not feel the need to press it further.
Sarah Champion
I thank the Minister for that clarity. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Anna McMorrin
I want to put on the record my thanks to the Clerks here, but also to Claire Waxman and Dame Vera Baird, who have steadfastly demonstrated their commitment to championing victims’ rights.
Dame Vera’s commitment has not wavered, even though she left her role as Victims’ Commissioner last September. Victims and advocates have continued to step up and make their voices heard, even when the Government have delayed the promised Bill time and again—we have been waiting eight years for it. Many victims, advocates and groups have continued to campaign and champion the issues. I particularly commend Claire Waxman, who has been pushing for this Bill for 10 years. Without those people, we would not be where we are today—at long last sitting here and scrutinising the Bill, line by line.
Anna McMorrin
Yes, that is what I am looking at right now. I wanted to make a couple of general points, because we are beginning the line-by-line scrutiny of the Bill, if you will just allow me to do so, Sir Edward; you are being very generous—thank you.
We can only do this by working together. I turn to the amendments that we have discussed today—the critical ones tabled by my hon. Friend the Member for Rotherham, who is a steadfast champion for the rights of those who have been abused and for the rights of children. I commend her for that work. The amendments we have discussed seek to strengthen clause 1 on the definition of a victim, and they particularly consider antisocial behaviour and child criminal exploitation.
My hon. Friend the Member for Birmingham, Yardley, when speaking to her amendment 54, made some emotive points on death by suicide and the impact on family members.
I hope that we can work together as we move forward in our consideration of the Bill, so that amendments, including those to clause 1, are discussed and debated, and so that we can amend the Bill later down the line, and so that victims’ rights, particularly the rights of child victims, are clearly defined in the Bill and that we strengthen the Bill as a result.
Edward Argar
I am grateful to right hon. and hon. Members for their points. It is important and right that we have taken a considerable amount of time to consider this clause on the definition of a victim, which of course is central—quite understandably—to what this Bill is about. It is a piece of legislation that I am pleased to be taking through Committee. If it does not harm my prospects with the Whips to say so, I will say that when I first entered this House in 2015 I took a close interest in working on this issue, alongside the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), having both been elected at the same time.
The hon. Member for Cardiff North mentioned the role of Victims’ Commissioner, which, as she will appreciate, is an extremely important post. We have seen a number of changes of Lord Chancellor in recent years. As she would expect, the new Lord Chancellor takes a very close interest in the position and is determined to make sure that he gets things right, gets the right person and that the process is properly followed. I know that he is as keen as she is to see the post filled, but filled properly.
Anna McMorrin
I appreciate the Minister’s answer. Could he come back to the Committee with a timetable for the appointment?
Edward Argar
It is probably premature to offer a prescriptive timetable, but I know that it is very much on the Lord Chancellor’s mind and that he recognises the importance of the role.
I am grateful for the debate on clause 1 and the various amendments. It is clear that we all agree on the importance of the clause. As I have alluded to, I am happy to work across the House where possible to see whether there are ways that we can address the points that have been raised.
Our intention in clause 1 is to define “victim” for the purposes of the relevant clauses in part 1 of the Bill, so that it is clear who is covered and entitled to benefit from the measures. If I may put it this way, we have sought to be more permissive and less prescriptive to avoid inadvertently excluding particular groups. In resisting some of the amendments, we have tried to avoid an approach that is duplicative. We do not need to put something in the Bill if there are other ways that we can achieve the same objective.
The clause focuses on victims of crime, which is relevant to the Bill’s measures designed to improve support services for victims, regardless of whether they report the crime, and to improve compliance with the victims code. I am grateful for the constructive engagement on the clause. I believe that the definition as drafted is a good definition, but there are certain points that I will take away and reflect on further.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Sarah Champion
On a point of order, Sir Edward. Amendments 44 and 49 have been grouped together, but they have little to nothing to do with each other. Is there any way to separate them, or am I stuck with that group?
The Chair
Well, I can ungroup them. We will deal with them separately.
Clause 2
The victims’ code
Sarah Champion
I beg to move amendment 44, in clause 2, page 2, line 18, leave out paragraph (a) and insert—
“(a) should be provided with information from all state agencies with responsibilities under the victims’ code, including the NHS, to help them understand the criminal justice process and beyond, including grant of leave or discharge.”
This amendment would extend the principle that victims should be given information about the criminal justice process to explicitly include the NHS, in order to bring mental health tribunal decisions in line with the rest of the criminal justice system.
I tabled amendment 44—and amendment 45, which we will come to later—because victims of serious crime committed by mentally disordered offenders currently do not get the same rights and entitlements as victims of offenders who are not mentally disordered. I apologise for the clunky terminology. Amendment 44 is vital, as critical information is often withheld from victims when the offender is mentally disordered.
In diminished responsibility cases, the psychiatric evidence is often considered and agreed in private by the Crown Prosecution Service without any meaningful disclosure to the victims. In those cases, there is often no trial, just a brief sentencing hearing where the evidence is not examined or tested in open court, which leaves victims completely in the dark. Often, offenders in such cases will have been patients of local NHS mental health trusts, which will have conducted their own investigations into the care and treatment of the offender. Many of those investigations are not shared with the families as they should be, with NHS trusts often ignoring official national NHS guidance without sanction. NHS trusts seem unaware of their responsibilities and duties to victims under the victims code.
I am speaking about the issue from personal experience. I have worked with the brilliant charity Hundred Families on this amendment, as well as amendment 45, because it has been supporting a bereaved family in my constituency that has been affected by this type of case. In February 2022, my constituent’s son, Paul Reed, was murdered on a ward in Rotherham Hospital by a fellow patient. Although there is clear NHS guidance requiring the trusts to investigate serious incidents, the hospital did not even consider Paul’s murder a serious incident. Initially, the hospital claimed that it had done a full investigation but would not share it with the family; then it turned out that it had not done an investigation at all. It required many letters, and finally my direct involvement, to get it to start a proper investigation.
That case, like others, shows that the Bill needs specifically to include the NHS to get it to take its duties to victims seriously. This is, sadly, a widespread issue; I know that Committee members have direct experience of it with their constituents. There are around 100 to 120 mental health-related homicides in the UK each year. In December 2022, there were 4,580 restricted patients —mentally disordered offenders who have committed serious crimes and are considered dangerous—in psychiatric hospitals in England and Wales. Around 2,979 restricted patients are discharged every year, although 268 were recalled to hospital according to the latest figures from 2020.
There is a very high rate of reoffending by such patients on their release. A recent long-term academic study found that 44% of offenders discharged from a medium-secure psychiatric unit were reconvicted following release, mostly for assault. Nearly 30% were convicted of a grave offence such as robbery, arson, wounding, attempted murder or rape. Another study of patients released from high-secure psychiatric wards found that 38% were reconvicted, 26% of them for serious offences. These are very sensitive cases that may raise broader concerns about processes, but victims and families deserve access to information, just as they would if the case went through the criminal justice system.
The amendment would ensure that the NHS is explicitly included among agencies that have a duty to inform victims of decisions made about an offender. I genuinely cannot understand why that is not happening now, and I really hope that the Minister will address that serious oversight. These families have already experienced immense grief and shock. They must be able to remain informed about the case, just as they would if the offender did not have any mental health issues.
Maria Eagle
I rise briefly to support my hon. Friend’s amendment. She has touched on an important point: the difference in treatment between offenders who end up in jail and those who end up in some form of secure hospital or mental health unit. That is something that struck me when I was a Minister at the MOJ, in what now seems like the dim and distant past—in fact, it is.
The main reason for the difference is that the offender in the mental health hospital or secure unit is treated by clinicians, who have that person’s clinical recovery at the core of what they do. They are very much focused on that and not so much on the broader issues of public safety, as would be the case in the criminal justice system, in the prison and at the Parole Board. I am not saying that clinicians do not consider those issues at all; I am saying that the focus is different.
Therein lies one of the reasons for the difference that my hon. Friend’s amendment highlights: the focus is on getting the individual who is in mental health provision up on their feet and back out operating in society, rather than on the broader public safety issues that may arise from that person’s being back out and about. Putting such an obligation on health service organisations is the kind of prompt that would make clinicians—and treating clinicians in particular—think a little more about the broader issues, instead of focusing entirely on the recovery of their patient.
One can understand why a clinician focuses on the recovery of their patient. I am not criticising that, but often there is not the overview of the broader public safety implication of any decision. I hope that the Minister, with his very open mind, which he has already demonstrated today, will consider that there is an issue here, and that there has been for many years. Depending on the kind of offence, it is easy to end up in either mental health provision or jail; some offenders could end up in either, yet the way they are treated can be very different, as can the reasons that decisions are made.
Edward Argar
I am grateful to the hon. Member for Rotherham for tabling the amendment and airing this issue. The amendment seeks to ensure that victims are given
“information from all state agencies with responsibilities under the victims’ code, including the NHS, to help them understand the criminal justice process and beyond, including grant of leave or discharge.”
I recognise the importance of ensuring that victims receive the information they need to help them understand the process, including when the release—temporary or otherwise—of offenders detained outside the prison system is being considered.
The hon. Member for Rotherham drew attention to cases where an offender was subject to a hospital order. As the right hon. Member for Garston and Halewood highlighted, such offenders are subject to a different process from offenders in the prison estate. They are viewed through the prism of health as opposed to criminal justice, and decisions about their detention under the Mental Health Act are taken by the mental health tribunal or the Secretary of State for Justice, rather than by the Parole Board. However, I want to reassure hon. and right hon. Members that communication with victims about those processes is handled in the same way, through the HMPPS victim contact scheme.
Under the scheme, the victim liaison officer will share information about the process for considering release and will notify victims when the patient is having their detention reviewed. The victim liaison officer will also support victims and make representations to decision makers on conditions of discharge in appropriate cases. The victim liaison officer is best placed to communicate with and support victims in such circumstances, as they will be expert in the process and have victims’ interests at the centre of their work.
The victims code includes some information about the process and what victims can expect from those involved, under right 11, the right
“to be given information about the offender following a conviction.”
I think it is right to keep the detail of who will deliver services, and how, in the code rather than in the Bill, in order to build in flexibility so that it can continue to be updated and to enable the inclusion of more operational details, such as those I have outlined. However, I take the point made by the right hon. Member for Garston and Halewood and the hon. Member for Rotherham about how we get an organisation such as the NHS—I had the privilege being the Minister of State for Health for two and a half years—to engage with that in what is understandably a different context, because there is often a medical mindset rather than a criminal justice one. My plea to Members is that this is better considered in the context of the revised code, and that perhaps we can use that to better draw out victims’ rights.
Sarah Champion
Could I push the Minister to say that he will consider this in the revision of the code? I hear everything that he says, but it relies on all the different parts working together, which simply is not the case.
Edward Argar
Notwithstanding any legislative reason or primary legislation that might limit our scope, I am quite happy to look at it in the context of the code. We have published a pre-draft to give colleagues and organisations the opportunity to engage with it and make suggestions before it goes to the formal consultation process, and so that it is available to members of the Committee during our deliberations. I encourage the hon. Lady to engage with that.
With that, I hope that I may encourage the hon. Lady to treat this as a probing amendment, rather than one she wishes to press to a Division.
Sarah Champion
I will indeed treat it as a probing amendment. I am given confidence by the Minister’s words. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Anna McMorrin
I beg to move amendment 6, in clause 2, page 2, line 18, leave out “should” and insert “must”.
The Chair
With this it will be convenient to discuss the following:
Amendment 5, in clause 2, page 2, line 20, leave out “should” and insert “must”.
Amendment 7, in clause 2, page 2, line 22, leave out “should” and insert “must”.
Amendment 8, in clause 2, page 2, line 24, leave out “should” and insert “must”.
Anna McMorrin
In his opening speech on Second Reading, the Justice Secretary stated that
“in order to deliver justice, victims must be treated not as mere spectators of the criminal justice system, but as core participants in it. That is the mission of this Government and of this Bill. It will boost victims’ entitlements”
and
“make victims’ voices heard”.—[Official Report, 15 May 2023; Vol. 732, c. 583.]
On paper, it sounds like the Government are dedicated to putting victims first, yet they stumble at the first hurdle. Clause 2(3) states only that agencies should comply with the four overarching principles of the victims code, making those principles weak and open to interpretation.
Ellie Reeves
Does my hon. Friend agree that if the Bill is really going to serve victims, it is important that it sets out what must be done rather than what should be done? We all know that when the word “should” is used, it often simply does not happen, and that is not good enough.
Anna McMorrin
I thank my hon. Friend for making that point. That is at the core of why I would like the Government to agree to the amendment. The principles are at the core of the Bill and agencies must comply with them. If they do not, that will call into question the essence of this entire piece of legislation.
I understand from the Government’s response to the Justice Committee’s pre-legislative scrutiny report that they believe the wording cannot be “must”—I am probably predicting what the Minister will say—because agencies require flexibility. However, having spoken to various stakeholders, I have seen no example where such flexibility would be required or reason why we could not reflect it in the code, rather than by watering down victims’ rights in the Bill.
As the Government’s reasoning remains unclear, I hope the Minister might clear that up for us today. If the intention is to prevent civil litigation from victims, the Bill already achieves that. Victims deserve some form of accountability from criminal justice agencies, and weakening victims’ rights by using the word “should” will result only in a Bill that fails to make a difference on the ground.
The victims code has been in place since 2006. Compliance with the code has always been low; even though the Government have reformed it four or five times, that has not driven better compliance. The Bill is an opportunity to improve that, but by stating that agencies only “should” comply, it absolutely fails to do so. I will repeat what London Victims’ Commissioner Claire Waxman said during the evidence session. She said that
“delivering the code is a minimum level of service to victims. Even if agencies are complying and delivering it, it is still a minimum level.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 29, Q67.]
As shadow victims Minister, I speak to survivors every day. Their harrowing truths and inspiring bravery helps shape what we do in this place, and I thank every single one of them for sharing their truth with me. I want to pay tribute to one of them, Sophie, who spoke to me. She was raped when she was just 19 years old. After Sophie reported the rape to the police, she was brought in to be interviewed, after which months went by with little contact or communication about her case and what was going to happen. She was not told of her entitlement to an independent sexual violence adviser for eight months after speaking to the police and had to wait two years for her day in court after it was pushed back several times. Sophie was told by the detective on her case that it would help her to give evidence in person in court, which she did, even though she was absolutely petrified and the thought of it retraumatised her. She desperately did not want to.
Her Crown Prosecution Service barrister looked at Sophie’s case for only 30 minutes before the trial. He had no communication with her before that—not even a conversation before the trial began. Sophie told me that she felt like a tick-box exercise for the CPS to just get its stats up and get the case into court.
During the trial, Sophie was put behind a screen to protect her from seeing the perpetrator—a little screen that goes up, knowing that the perpetrator is there—but the defence barrister persisted and used a horrific scare tactic to throw Sophie off. He asked her to open a booklet that was in front of her. She opened it to page 1 and in front of her was the image of the man who was the perpetrator. Her own barrister did absolutely nothing to stop that. That not only had a very real mental health impact there and then—she suffered a panic attack and anxiety and had to leave the courtroom—but she could not gather herself afterwards because it had retraumatised her. She said to me that she thought she was going to vomit there and then in the court, and nobody did anything to stop her. The witness assistant, who was of course trying her best, said, “Pull yourself together, Sophie. You need to go back in there and do this.”
Sophie told me that because of the technique used she was unable to remember any of the important details of the incident, and we know what trauma does: people cannot recall really important incidents and detail. The intense stress and anxiety she was experiencing meant that she just could not remember. She believes that that led to the not guilty verdict.
After waiting a torturous two years for justice, Sophie was retraumatised and her attacker walked free. Although I agree with the four overarching principles, I do not agree that they are a step in the right direction for victims. We must make sure that the Bill is fit for purpose and that agencies have a duty on them. That is why the amendments and changing “should” to “must” are essential.
Edward Argar
I am grateful to the shadow Minister for the amendments and the opportunity to debate them, and for her articulating her rationale for them so clearly. I hope you will allow me to address all four together, Sir Edward, as they each seek to ensure that the victims code is required to make provision for services for victims that reflect the overarching code of principles in the Bill—as the hon. Lady has said, replacing “should” with “must”.
I want to explain the reasons behind the approach we have taken. The principles provide a legislative framework for the code, which ensures that the code captures the core issues that we know victims are most concerned about—the right information, the right support, the opportunity to have their views heard and the ability to challenge decisions that affect them.
I reassure the Committee that the detailed entitlements for victims are set out in the victims code. As it is a statutory code of practice, there is already a clear expectation that agencies will deliver the entitlements that it sets out, and agencies are required to justify any departure from it if challenged by victims or the courts. The hon. Lady gave the example of particular cases. There will be many others. Without straying into decisions made by judges in those cases, she illustrated through that example why the principles matter.
Jess Phillips
Does the Minister agree that if this was written into primary legislation and it did not happen, a victim who sought to challenge that would have a case in law to do so, and would not otherwise?
Edward Argar
I will turn to non-compliance and why we believe that the approach that we have set out in the clause is the right one. I suspect that Opposition Members may take a different view, but after making a little progress, I will hopefully address some of their points—whether or not to their satisfaction.
Maria Eagle
Will the Minister give way again, before he goes on? I am not seeking to try his patience.
Maria Eagle
Dame Vera Baird, the former Victims’ Commissioner, said in evidence:
“There is a statistic—from 2020, I think—that 70% of people who have been through the criminal justice system as victims have never heard of the victims code. We used Office for National Statistics data in 2021 and showed that 80% of victims who had gone through the entire criminal justice system had never heard of the victims code. The first code was in 2006, so it has been completely ignored for 18 years.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 29, Q66.]
How will the Minister’s wording tackle that better than beefing up the language in the Bill would?
Edward Argar
I am grateful to the right hon. Lady, but there is a slight difference between her two points. That survey refers to the number of victims who were not aware of the code; that does not necessarily mean that their rights were not available to them, or even that they were not given to them. They may not have seen it through the prism of the victims code, but they may have been kept informed. She is right to highlight that under Governments of all political complexions there is more to do in driving this, but the key point that that evidence points to is the importance of raising awareness of the code, ensuring that people know it exists and understand what it can do for them. As we progress through the other clauses, I suspect that we will touch on how we can do more on that. Raising awareness of the code’s existence and what is in it is the crucial first step to empowering people to request, push for and demand their rights under it.
Rob Butler (Aylesbury) (Con)
In terms of raising awareness, does my right hon. Friend agree that the language used in any explanatory materials needs to be crystal clear, and tested for comprehension by people of all levels of ability and understanding? We know that many people in prison who come up against the criminal justice system from that side have very low reading ages. It is really important, because some offenders are also the victims of crime, that what we put into legislation with every good intention is clearly understood.
Edward Argar
My hon. Friend is absolutely right. That is one of the reasons, but not the only reason—I suspect we may touch on this when we come to amendment 49—why our approach is to place a greater reliance on the victims code, because the nature of legislation is that there is often a requirement for it to be phrased in a certain way with particular language for good legal and drafting reasons. With a statutory code such as the victims code, there is greater flexibility to ensure that it can do what it aims to do, which is to make it accessible. As I said, I suspect we may touch on this when we discuss amendment 49 from the hon. Member for Rotherham.
On addressing non-compliance, the Bill places a new duty on criminal justice bodies to collect and share code compliance information with police and crime commissioners, who in turn are under a new duty to share information with the Secretary of State. We also intend for information to be shared within national oversight structures, and there is a duty on the Secretary of State to publish information, which will allow the public to assess, through greater transparency, the compliance of public bodies with the code. Where issues are identified by police and crime commissioners or others, operational agencies can take action to address them and enforce standards. Should local solutions fail, senior figures in the criminal justice system will provide national oversight to drive improvements at a system level. Ministers already have powers to intervene where systemic failures occur, such as the ability to direct inspections or direct measures to remedy failures.
When things go wrong, victims can make a complaint. The Bill will simplify the process for victims of crime to escalate complaints. It does that by removing the need to raise a compliant through an MP before it can be made to the Parliamentary and Health Service Ombudsman. Instead, it allows victims to make a complaint directly or through a nominated representative. I know that Members of this House are always diligent in considering PHSO requests and forms from members of the public and their constituents—we look at them, we review them and we sign and submit them where appropriate—but we believe that this simplifies the process in these circumstances and provides for direct access. The PHSO will investigate complaints and can recommend that an organisation issues an apology, provides a financial remedy or takes action to resolve the complaint to prevent the same thing from happening again. Crucially, it can follow up on whether action has been taken and report to Parliament where an organisation has failed, not only providing a remedy for individuals but being a driving force for improvements for victims.
In summary, our view is that the Bill provides an appropriate legal framework for the victims code that sends a clear message on the principles that are important for victims, alongside new monitoring and oversight measures to drive up compliance with the code. I hope that the shadow Minister will not press her amendments to a Division, but I will wait and see.
Anna McMorrin
I thank the Minister for his response. As I predicted in my outline—I must admit, I am not psychic, but I do read the Minister’s responses to the Justice Committee and in pre-legislative scrutiny—I am disappointed that the view has not changed, because when speaking to agencies and victims, that is what they all tell me is needed to provide the support that victims so desperately need. I outlined that in the emotive response from Sophie, who spoke to me about her awful experience, but we know that that is just one experience. These experiences happen time and again across the country, and I am sure that because all of us here have an interest in victims and the justice system, we will all have heard similar cases.
I am disappointed that the Minister has not understood that and is not seeking to change “should” to “must”. As we heard clearly in the evidence sessions, and as my right hon. Friend the Member for Garston and Halewood mentioned in regard to the former Victims’ Commissioner, who talked about the need for this to be outlined, criminal justice agencies do not know that the code even exists. Changing “should” to “must” would be a vital way of ensuring that this is on the face of the Bill. Victims deserve some sort of accountability from these agencies, and the weakening of their rights through using only the word “should” will not make a difference on the ground. I hope that we are trying to work together today to make that difference for victims on the ground. The victims code has been in place since 2006, but as has been outlined today and in statements from our witnesses, it is not being used. It is therefore not making a tangible difference to victims’ experiences and the criminal justice agencies are not using it to its full potential.
I will not press the amendment to a vote now, but may bring it back at a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Champion
I beg to move amendment 49, in clause 2, page 2, line 19, at end insert
“in a language or format that they can understand;”.
As the Minister predicted, this amendment dovetails nicely into his remarks. The prominence of right to understand and be understood in the code is genuinely welcome and has the potential to significantly improve the experiences of victims who speak English as a second or additional language—EAL. However, for these basic rights to be upheld and to make meaningful change, they must be enforceable. It is therefore vital that they are enshrined in more detail in primary legislation. In particular, the entitlements underpinning the right to understand and be understood must be enshrined more directly in the Bill.
Failing to address and respond to communication barriers could risk the police having incomplete information and evidence from victims due to a lack of support to ensure that they are understood. SignHealth has highlighted a case where a deaf victim did not want their family to be involved and requested to make her disclosure outside of the home. Instead of having the conversation at the station, the officer took a statement from a British Sign Language user in their car, using a pen, paper and gestures. She was left vulnerable and unable to fluently express herself. When she attended a meeting with the police, no support or interpretation services were provided. She was handed a “no further action” letter that provided no rationale. She had no understanding of what the letter meant and had to struggle to use Google Translate to understand the decision. Such examples highlight how failing to respond to communication barriers can also result in cases not being adequately investigated, and subsequently closed.
It is deeply concerning that statutory bodies are enabling perpetrators to exploit these vulnerabilities and to keep controlling victims while remaining unpunished themselves. Amendment 49 is essential to ensure that all victims can access information in a language or format they can understand. It is crucial that this is explicitly on the face of the Bill, because if a victim cannot understand the information provided, their rights have not been met.
Currently, spoken language is not recorded systematically within the criminal justice system. There is no accurate data available on the number of victims who speak EAL. There is also evidence that criminal justice practitioners often make do with alternative forms of support, such as the use of Google Translate, which victims report to be much less helpful than professional language support. The absence of interpretation provision has been linked to a number of adverse outcomes, ranging from inaccurate statements being taken to a negative effect on victims’ wellbeing and trust in the police. This is not acting in the best interests of the victim and does not enable us to achieve justice, so I hope the Minister will focus on these issues.
Maria Eagle
I commend my hon. Friend the Member for Rotherham for tabling the amendment. It is very easy to forget about disabled people in our public services, and there is an obligation under the Equality Act 2010 to provide access to public services in a way that works for disabled people, which can often involve proper translations or formats. Given that disabled people are disproportionately victims of crime, it is particularly incumbent on us, when considering the victims code, to make sure that it is accessible to those who are likely to benefit from it or who could benefit from it. The more vulnerable a victim is, the more likely they are to benefit from proper access to the rights in the code and the support it provides. It would be an omission if we did not make it clear.
Sarah Champion
There is also a common misunderstanding that deaf people will be able to understand information in written form, but English is not their first language—British Sign Language is—and we have now rightly recognised it as a language in its own right. They are being asked to read something in a second language that they may or may not be competent in.
Maria Eagle
Absolutely: prelingually deaf people in particular do not have English as a first language. British Sign Language is their first language and we cannot just assume that they will be able to read written English in the same way in which they could understand proper sign language interpretation. That is a misunderstanding and a lack of awareness on the part of those who provide services. If we do not make it clear that access has to be provided, with reasonable adjustments to ensure that deaf people can understand what is being said and can exercise their rights, we will not be doing a proper job.
It is all too easy to think about this as an added extra—that it would be good if we had enough money in the budget to translate the victims code into different languages—but translating the code is an essential part of ensuring that it is implemented and usable by many victims. If we do not do this, we will not have the success that we all hope for from putting the principles underlying the code into legislation. We can have as much flexibility as we like by not putting the draft code into primary legislation, but we need to make sure it is accessible to those who need it. The amendment is important. It is not a nice added extra: it is an essential part of ensuring proper awareness and that the victims code is usable and benefits those who need it to access their rights and to be able to deal with the criminal justice system as victims.
Edward Argar
Amendment 49 would amend the first principle of the victims code, which says that victims should be provided with information to help them to understand the criminal justice process, to state that the code should be provided in a format or language required for a victim to understand.
The victims code includes an entitlement—indeed, it is the very first entitlement—for victims to be able to understand and to be understood. The right states:
“You have the Right to be given information in a way that is easy to understand and to be provided with help to be understood, including, where necessary, access to interpretation and translation services.”
Not only is it implicit in that that the issues raised by the right hon. Member for Garston and Halewood and the hon. Member for Rotherham are addressed, but in the revised draft of the victims code that we have published, footnote 28 on page 15, which sets out right 1 in more detail, explicitly says that the right
“includes both spoken and non-spoken interpreting, for example if a victim is deaf or hard of hearing.”
It is there in the code not only implicitly, but explicitly, particularly in respect of the circumstances alluded to by the right hon. Member for Garston and Halewood.
We appreciate that the criminal justice process is complex and on occasion can appear impenetrable. The code is absolutely clear in right 1, which is “To be able to understand and to be understood”—
Edward Argar
I will finish my sentence, then of course I will. The code is absolutely clear in right 1 that all providers are expected to consider any relevant personal characteristics that may affect a victim’s ability to understand and be understood, and to communicate with victims in simple and accessible language—a point made by my hon. Friend the Member for Aylesbury in his intervention —to help them to understand what is happening.
Sarah Champion
I began my speech on the amendment by welcoming the new changes, but the fact of having it enforceable is the nub of the amendment. Is the Minister able to speak about that? I have the right to be treated with respect in this place, but it does not always happen.
Edward Argar
I appreciate the hon. Lady’s point. I will just round off my point, then address her point specifically. Right 1 of the code is clear that victims who, for example, have difficulty understanding or speaking English—the right hon. Member for Garston and Halewood alluded to the fact that some people’s first language will be not English but British Sign Language, so they would be encompassed in the wording—are entitled to use an interpreter when being interviewed by the police or giving evidence as a witness, and so on. It also sets out the circumstances in which victims are able to receive translations of documents or information and makes it clear that all translation or interpretation services must be offered to the victim free of charge. The approach we have adopted throughout, and continue to support, is that we set out in the Bill the overarching principles that are important to victims and underpin the victims code, but the operational detail of how they are delivered sits in the code itself.
To address the hon. Member for Rotherham’s point, it is of course a statutory code, and we are strengthening that in the way we are approaching it in this legislation, but I appreciate her point. When she reviews the code, if she has suggestions about how right 1 on page 15 might be made more explicit—it is there, but she might argue that the footnote 28 at the bottom of page 15 could be made rather more prominent—I am happy to reflect on them and, equally and more broadly, any suggestions that she or other right hon. and hon. Members have on how the code might be made more accessible, including in its language, which goes to my hon. Friend the Member for Aylesbury’s point in the debate on a previous group of amendments.
We are clear that given that the focus in the code is on the need to provide information in a way that is understood by those who need it, the amendment is unnecessary. We believe that the code is the right place for the right to be articulated, and on that basis I hope that the hon. Member for Rotherham will consider not pressing the amendment to a Division.
Sarah Champion
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
I have agreed to a further request to vary my grouping for debate. We will now debate amendment 45 separately, and then amendments 48 and 50, along with new clause 7.
Sarah Champion
I beg to move amendment 45, in clause 2, page 2, line 23, at end insert
“and with all state agencies with responsibilities under the victims’ code, including HMCTS and the NHS when considering leave or discharge;”.
Amendment 45 follows on from my amendment 44, which was about access to information for victims of mentally disordered offenders. Amendment 45 focuses more on release decisions. Victims need information beyond the arrest, prosecution and conviction of the offender: they also have a right to receive information about the offender’s leave and discharge. In all other situations that right is a given, but we need to ensure that it also works in practice for victims of mentally disordered offenders.
Mentally disordered offenders who have committed serious crimes are typically granted leave or discharged by mental health tribunals, also known as first tier tribunals. Hundred Families, with which I worked on the amendment, says that there is no evidence of mental health tribunals taking victims’ rights seriously—a bold statement. Victims are not considered to be interested parties when the release of dangerous offenders is being considered. Mentally disordered offenders who have committed very serious crimes can apply for leave or discharge within six months of conviction and every year thereafter. Victims of such mentally ill offenders are granted only very limited rights to comment in the tribunal hearings, particularly in comparison with when parole boards consider the discharge of offenders who have committed serious violence.
At the parole board, victims can make a personal statement, attend the hearing, receive copies of any decisions and appeal the decision. At mental health tribunals, victims cannot make any personal statements. They are not allowed to attend the hearing, do not receive decisions and have no means of challenging any decision, because they are made in secret and not publicly disclosed. I draw the Minister’s attention to his remarks about my amendment 44: what I have said brings them into dispute. I am interested to hear his thoughts about that.
Other jurisdictions—notably Scotland, but also Queensland, Australia—allow victims’ participation at mental health tribunals without any known problems. Amendment 45 simply aims to bring these victims’ rights in line with those of any victims participating in the parole process.
Edward Argar
As ever, I am grateful to the hon. Lady for her speech setting out the rationale for amendment 45. She seeks to give victims the opportunity to make their voices heard during particular types of proceedings. The amendment seeks explicitly to include the NHS and HMCTS within the victims code principle that victims should have the opportunity to have their views heard in the criminal justice process. It seeks to cover cases in which the full or temporary release of offenders detained outside the prison system under the Mental Health Act 2007 is being considered.
Eligible victims are able to provide their views on release conditions for offenders, but they are not able to explain to the decision makers in the mental health tribunal the impact that the crime had on them. We agree with the hon. Lady: we do not think that is right. Victims are able to give such explanations in the courts and the parole systems through a victim personal statement, and we believe that that should be the case regardless of where the offender is detained. That is why the Government have committed to making provision in the new victims code for victim personal statements to be submitted to mental health tribunals considering the release of an offender.
That commitment is reflected in the draft code that we have published. Right 7, the right to make a victim personal statement, includes draft text to show how that would apply to victims eligible for the victim contact scheme. We are working through the details with our partners, including the judiciary, to consider how we can appropriately achieve our aim in a way that recognises the particular sensitivities relating to the offender’s health records and conditions in these settings.
We have committed to consult on an updated victims code after the passage of the Bill. As always, I am open to working with the hon. Lady on ensuring that the new provisions relating to mental health tribunals meet the needs of victims. We will keep her updated on the work we are doing. For reasons of flexibility, it is right to keep the detail of who will deliver the provision, and how, in the code itself rather than in the Bill, but I hope that I have reassured the hon. Lady that we share her view and that we are working to deliver on that, both through the code and with the judiciary.
Sarah Champion
Indeed, and I thank the Minister. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Champion
I beg to move amendment 48, in clause 2, page 2, line 23, at end insert “, including on parole decisions;”.
This amendment seeks to clarify that the principle that victims should have the opportunity to make their views heard in the criminal justice process includes parole decisions.
The Chair
With this it will be convenient to discuss the following:
Amendment 50, in clause 2, page 2, line 23, at end insert
“and should be provided with appropriate support to communicate these views;”.
New clause 7—Parole Board: victim engagement—
“(1) It is the duty of the Parole Board to monitor and report on how they support victims to make their views heard in the criminal justice process.
(2) In discharging the duty under subsection (1), the Parole Board must report to the Secretary of State on their effectiveness in—
(a) engaging victims at all stages of the criminal justice process, including informing them of outcomes, and
(b) informing victims of their right to make a Victim Personal Statement.
(3) The Secretary of State must lay a copy of any reports received under this section before Parliament within 15 days of receiving them.”
This new clause would require the Parole Board to monitor and report how they support victims to make their views heard in the criminal justice process.
Sarah Champion
I tabled the amendments and new clause because I have had to deal in a short period of time with two constituency cases of pretty horrendous child sexual exploitation in which victims of extremely serious crimes were not notified when an offender was considered for transfer to open conditions until after a decision had been made and, in one case, after the decision had been implemented, which goes completely against the existing practice that is detailed in the code and should be enforced across all our justice systems. That happened despite the statutory duty on His Majesty’s Prison and Probation Service to notify victims. Neither constituent had the opportunity to express a view on the transfer, to outline their concerns or to contribute in respect of the conditions of the release. Instead, in a bolt out of a blue, they were told, seemingly by accident, that their offender was out on the streets. It is hard to imagine the shock and terror that caused them.
When I raised the cases with the then Secretary of State for Justice, I was told that both incidents were the result of human error. The two incidents were markedly similar and affected people in a relatively small geographical area in an extremely short period of time, so I find it very hard to believe that they were isolated and not, instead, a system failure. It is difficult to understand how such errors can be made if well-understood processes are in place, as we are expected to believe, and those processes are underpinned by statute. The changes in the amendments and new clause would strengthen the statutory underpinning, hopefully to thereby avoid similar incidents happening in future and ensure that such devastating mistakes could not happen again.
Amendment 48 would add “including on parole decisions” to clause 2(3)(c), which says that victims
“should have the opportunity to make their views heard in the criminal justice process”.
That should already be happening but sadly is not, and victims are being left vulnerable, uninformed and without their rights being met.
New clause 7 would place a core responsibility on the Parole Board, as the statutory body, to ensure that the right of victims to make their views heard is fulfilled, by monitoring and reporting on how it supports victims to ensure that their views are heard.
Amendment 50 would, similarly to amendment 49, ensure that victims have the opportunity to make their views heard in the criminal justice process and that they should be provided with the appropriate support to communicate their views. The amendment is supported by, among others, the Bell Foundation, to which I am grateful for its support. The amendment is vital for the victims the foundation works with to ensure that they can be involved in parole decisions.
As I stated in my remarks about amendment 49, Google Translate is used too frequently and is not an effective tool for ensuring that victims can understand and be understood. An example from Rape Crisis refers to a victim of domestic abuse and sexual violence whose first language is not English. When she attended a meeting with the police, no support or interpreting service was provided. She was handed a “no further action” letter that provided no rationale and gave no understanding of what it was. She had to struggle to use Google Translate to understand the decisions that had been made. How is she supposed to communicate her views about a parole decision if she is unable even to understand the process?
All victims deserve the right to be involved in parole decisions, but we must first ensure that they can be understood when they give their views and that they also understand the process.
Edward Argar
Before I turn to amendment 48, let me address amendment 50, which would add to the victims code the principle that victims should be provided with appropriate support to make their views heard in the criminal justice process. It is right that victims are able to make their views heard, and I agree that they may need support to help to navigate the process effectively. That is why there is already support in place for them to do so, including support provided by organisations and services, such as independent sexual violence and independent domestic violence advisers, and other victim support services that can help explain and help victims navigate the justice system. A victim personal statement is key to the victim being heard in the criminal justice process. That allows victims to explain in their own words how a crime has affected them.
Under code right 7, “To make a Victim Personal Statement”, the police are expected to provide victims with information about the victim personal statement process, so they can decide whether to make one. The College of Policing provides guidance for the police on what victims need to know about the process of making a victim personal statement. To help victims, the Ministry of Justice has published guidance called, “Making a Victim Personal Statement”, which explains what it is, how it works and what the victim needs to do.
Support at court if the victim is due to read out their victim personal statement may include special measures, such as the use of a screen or live link, and support from the witness service can include accompanying the victim when they give evidence or read their victim personal statement. If giving a victim personal statement during the parole process, victims who are part of the victim contact scheme will have a victim liaison officer, who can help them write their statement and let them know how it will be used during a parole hearing. I hope that I have gone some way to satisfy the hon. Lady that support is already in place.
Sarah Champion
I will be quick because I know we have a vote coming. I agree that the instruments are in place, but the problem is that it relies on humans to actually let the victim know or the Parole Board to let the victim support know, and that is where it is breaking down.
Edward Argar
I hope I might address that to some extent as I turn now to amendment 48 and new clause 7, which relate to the role of victims in the parole system. Amendment 48 would add parole decisions to the principle in the victims’ code that victims’ views should be heard in the criminal justice process, and new clause 7 would place a duty on the Parole Board to monitor how it supports and enables victims to give their views to the Parole Board. It would be required to report that to the Secretary of State, who in turn would be required to publish it. It is vital that victims are informed of the parole process and are given every opportunity to engage with it so their voices are heard. The parole process can be distressing for victims, so it is crucial that they understand how the system works and receive support to effectively engage in the process.
We have made improvements to the way victims can receive information and participate in parole proceedings, including the introduction of decision summaries and public hearings. Parole hearings are part of the criminal justice process, which extends beyond the trial. That means the principle that victims should have the opportunity to make their views heard in the criminal justice process already includes relevant parole decisions, so the amendment is not necessary.
Right 11 in the victims code already sets out victims’ entitlements to submit a victim personal statement as part of the parole process. Where the victim chooses to make a victim personal statement, the Parole Board Rules 2019 require that it is included in the dossier of written evidence submitted to the Parole Board by the Secretary of State. Right 11 of the code then requires the Parole Board to read the victim personal statement, if one has been made. We have committed to developing a process to allow victims the opportunity to make written submissions to the Parole Board in addition to their victim personal statement. Information in the submissions could include their views on the offender’s potential release and questions to the Parole Board. Provision for victim submissions will be included in the new victims’ code.
It is vital that victims are supported during the process, that there is oversight to ensure they are being given the opportunity to have their voices heard and that they feel supported to do so. However, the proposed new clause seeks to put duties on the Parole Board in relation to support for victims. The reality is that the Parole Board does not liaise directly with victims. In practice, the responsibility for supporting victims through the parole process lies with probation service victim liaison officers, who sit within His Majesty’s Prison and Probation Service. They are specially trained to work with and support victims through the parole system, including ensuring that they can submit a victim personal statement and be informed of the outcome of the review.
Under the current code, victims are entitled to be given information about the offender following a conviction and to be told about how to make a victim personal statement. That is delivered through the referral of eligible victims to the victim contact service, and they are then assigned a victim liaison officer. That means that compliance with those entitlements can be monitored and reported on via clauses 6 and 7. The clauses place a duty on HMPPS to collect and share information on the delivery of victims code entitlements and to jointly review this with police and crime commissioners, and on police and crime commissioners to report to the Secretary of State, who will publish relevant information.
On the basis that we can monitor this important information by different means, and that an updated victims code will include the information regarding representations to the Parole Board, I encourage the hon. Lady not to press her amendment to a Division at this time.
Sarah Champion
I thank the Minister for what he says, but it does not given me the reassurances that I want, because things are not working in practice. I will not press my amendment to a vote now, but I am minded that the new clauses will come at the end of our consideration. I may well press the matter then if he is unable to give those reassurances. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Elliot Colburn (Carshalton and Wallington) (Con)
I beg to move amendment 26, in clause 2, page 2, line 25, at end insert—
“(e) should be able to access and, where appropriate, be referred to restorative justice services;
(f) should be able to access and, where appropriate, be referred to services and support that are tailored to their individual needs.”
I am grateful to have been called to speak, Sir Edward, but I appreciate that my speech may not last for long before we are called somewhere else. My amendment relates to the inclusion of restorative justice in the victims code set out in clause 2. That was a recommendation that the Justice Committee made in its pre-legislative scrutiny of the Bill, but I have tabled the amendment as a Back-Bench MP and as chair of the all-party group on restorative justice.
To give a little background and context, I was inspired to do so because of a heartbreaking and harrowing story. I know that the Minister has heard it before, but I will repeat it for the benefit of the Committee. A lovely couple living in the London Borough of Sutton, Ray and Vi Donovan, suffered the most unimaginable tragedy when their son Christopher was murdered. [Interruption.]
Elliot Colburn
I will resume by telling the story of Ray and Vi Donovan, a couple who live in the London Borough of Sutton. They went through the tragedy of losing their son, who was murdered several years ago.
A long time ago, Ray and Vi recited to me their experience of going through the criminal justice system. The police found the three boys who were responsible—they went to trial, were convicted and put behind bars. But Ray and Vi said that they never felt that they—as victims of the crime, and having lost their son in such tragic and gruesome circumstances—had had a voice at the trial. They did not have the opportunity to share their side of the story or explain how it had impacted them; it was all to do with the perpetrators.
Ray and Vi acknowledge that some time has passed since the trial; however, they have made it their life’s goal to set up a restorative justice charity in Christopher’s name and to work with wider restorative justice providers around the country to promote its use, where appropriate, and to improve access to it. That is the premise of the amendment. Studies show that only about 5% of victims are aware of restorative justice; it is often buried in a large pack or binder that victims of crime get handed.
I want to be clear about what I mean by restorative justice, because it often gets confused with the American version. The UK does it very differently. Restorative justice has no impact on sentencing, parole or anything like that; in the criminal justice space, restorative justice is the opportunity for a victim of crime, in appropriate circumstances, to meet the perpetrator. That allows them to ask questions. The most obvious question that victims of crime have is, “Why did this happen to me?” Restorative justice is designed to answer the important questions that victims often have, to which the court is often unable to provide answers.
Restorative justice is not meant to make a sentence more lenient, or to be something that a victim or perpetrator is forced to go through. Obviously, there will be circumstances where that would not be appropriate. Not every victim will feel like they want to take part, and it would not be appropriate for every victim. For example, in some cases a child would not be appropriate for restorative justice. Equally, there will be perpetrators who will not engage constructively—use the opportunity only to further traumatise their victim. The amendment is meant not to mandate the use or promotion of restorative justice, but simply to make it a right in the victims code that a victim of crime be made aware of the potential for restorative justice, and allowed to access it where necessary, after taking into consideration all the required safeguarding provisions.
I hope that the Minister will say a little more about the work that his Department wants to do in the restorative justice space. I appreciate that he may not want to accept the amendment today; however, I would be grateful for some reassurance that the Bill will enable and empower victims who want to go through the process. I stress that RJ must always be victim led. It always has to come from the victim. I would welcome some reassurances from him on how the Bill could achieve that.
Rob Butler
My hon. Friend makes some important points about restorative justice. I have seen it work very effectively both in the courts and in the prison and youth justice systems. Does he agree that there are already some very successful examples of restorative justice, particularly in our prison, probation and youth offending services, and that quite a lot of work is already being done—including for children, who he said he would probably rule out of scope? In fact, restorative justice can be very effective for under-18s.
Elliot Colburn
I am grateful to my hon. Friend. I would certainly not agree with a blanket ban for children, but I appreciate that additional safeguarding concerns would need to be considered for young victims. I agree with him; I have seen this myself. I have been invited to witness such sessions happening in prisons, and some amazing work is going on. The results cannot be understated. Something like 80% to 90% of offenders will not go on to reoffend if they go through restorative justice, according to studies. I cannot remember the name of the university that conducted them, but I am happy to clarify it to the Minister later.
Janet Daby
I thank the hon. Member for making such a great speech in favour of restorative justice; I am with him on that point. Restorative justice is effective in prisons, courts and education, but would he agree that if it is to have the necessary impact in prisons, it needs to be fully resourced?
Elliot Colburn
The APPG that I chair produced a report into the state of restorative justice in the UK, and looking at resourcing RJ was one of our nine recommendations. I ask the Minister to take a look at those recommendations again to see how we can better allow victims to access RJ when they feel that they want to and when it is appropriate.
I do not deny that excellent work is being done. I commend the practitioners and prisons engaging with the issue, but far too often I hear from victims who want to go through this process that they find it a struggle—or else victims have no idea that restorative justice exists. That is why enshrining it as a right in the victims code would help to raise awareness and ensure that victims can access it if they want to. I will bring my remarks to a close, but would be grateful to hear any reassuring remarks from the Minister.
Edward Argar
I pay tribute to my hon. Friend for the work that he and the all-party parliamentary group that he chairs do on this important issue. I am grateful to him for giving us an opportunity to debate restorative justice. He and I have spoken about it in the past; as I have highlighted, we are committed to the effective use of restorative justice in appropriate cases.
I am grateful to my hon. Friend for highlighting Ray and Vi Donovan’s case and situation as an example of how restorative justice can work well. I know that when it is delivered in the right circumstances it can result in improved victim satisfaction and reduced reoffending, bringing benefits to victims, offenders and their communities.
We support local agencies providing restorative justice in the devolved model that came in a few years ago. We looked to police and crime commissioners to fund services locally, as they are best placed to assess local need. We are encouraging greater co-commissioning between police and crime commissioners and regional probation directors.
The second code principle in the Bill is already clear that victims
“should be able to access services which support them (including, where appropriate, specialist services)”.
That covers all types of support services. We would consider it to include restorative justice services where appropriate.
The code also goes further. Right 4—to be provided with information when reporting a crime—is clear that victims are entitled to information from the police about restorative justice and how to access such services in their local area, and that all service providers will consider whether victims would benefit from this information at any stage of the criminal justice process. We are also using the Bill to create a duty for agencies to raise awareness of the code, including information about restorative justice, so that victims know what services they can, and should, receive.
I hope my hon. Friend will not press his amendment; he said that it is essentially a probing amendment. Specifying different types of support services in primary legislation might, we fear, inadvertently narrow the current broad coverage, but he raises some very important points.
First, we must be cautious of a general entitlement to access to restorative justice. That would not always be appropriate because offenders must voluntarily agree to participate, as my hon. Friend highlighted. To give him some hopefully positive news, I am open to considering alternative approaches that the Government can assist with to promote the effective use of restorative justice in appropriate cases. I read his report carefully and, as luck would have it, I have written to him—I think I signed it today—responding over four pages to his nine recommendations. In that letter to him, I offered to meet with him outwith this Committee to engage on these issues and see what more we can do to work together. Given that, I hope my hon. Friend will not press his amendment to a vote. I look forward to exploring the issue with him in more detail in that meeting, should he wish to take me up on it.
Elliot Colburn
I am grateful to the Minister. That is incredibly reassuring and I look forward to reading his response when it lands. On the basis of those reassurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Champion
I beg to move amendment 38, in clause 2, page 2, line 25, at end insert—
‘(e) should be able to access appropriate compensation.’
The Chair
With this it will be convenient to discuss the following:
Amendment 39, in clause 2, page 2, line 25, at end insert—
‘(3A) In accordance with subsection (3)(e), the victims’ code must include provision requiring that—
(a) all victims of child sexual abuse, including online-based abuse, are entitled to compensation under the Criminal Injuries Compensation Scheme,
(b) victims with unspent convictions, whose offences are linked to the circumstances of their sexual abuse as a child, are entitled to compensation under the Criminal Injuries Compensation Scheme, and
(c) victims of child sexual abuse may apply for compensation under the Criminal Injuries Compensation Scheme within a 7 year period of whichever of these two dates is the later—
(i) the date the offence was reported to the police, or
(ii) if the offence was reported whilst the victim was a child, the date the victim turned 18.’
This amendment would provide that all victims of child sexual abuse (CSA), including online, are entitled to compensation under the CICS and that those with unspent convictions directly linked to the circumstances of their abuse can access compensation. It would also extend the period by which victims can apply.
Amendment 55, in clause 2, page 2, line 25, at end insert—
‘(3A) In accordance with section 1(2)(b), the victims’ code must include provision requiring that all children born of rape are entitled to compensation under the Criminal Injuries Compensation Scheme.’
Sarah Champion
I will speak to amendments 38 and 39, which are linked to the criminal injuries compensation scheme. Victims of violent crime in England and Wales may be awarded compensation under the publicly funded criminal injuries compensation scheme. I have campaigned extensively to reform that scheme and the Criminal Injuries Compensation Authority that administers it.
When I started supporting victims of child sexual exploitation in Rotherham, it soon became apparent that CICA was simply not fit for purpose. An agency that should have existed to support victims seemed instead to believe that its duty was to find any excuse possible not to make an award. Several constituents were affected by that. Indeed, many had claims rejected on one of the three grounds: first, that they were out of time; secondly, that they themselves had unspent criminal convictions; or, appallingly, thirdly, that they had somehow consented to their own abuse. That last reason was recognised to be deeply wrong and legally contradictory. I am pleased to say that it has now been removed, although not before it caused much harm.
The other two grounds remain in force and are particularly problematic for victims of child sexual exploitation, many of whom may take years to disclose their abuse. The trauma of doing so may further delay launching a claim. Furthermore, a well recognised and understood part of the grooming process is that abusers may involve victims in other criminal activities as a further form of coercive control, which is also seen as blackmail and, indeed, an insurance policy. It goes without saying that we should not be holding symptoms of abuse against victims when determining whether their suffering merits compensation.
Amendments 38 and 39 will ensure that all CSA victims, including online, are entitled to compensation under the CICS and that those with unspent convictions linked to the circumstances of their abuse can access support. The period by which victims can apply for compensation is also extended.
There is broader support for change in the scheme. The independent inquiry into child sexual abuse—IICSA —published its interim report in April 2018. That report, along with the “Accountability and Reparations Investigation Report” published in 2019, made several recommendations to improve access to the scheme for victims and survivors of child sexual abuse. Despite that, concerns about the scheme remain, in that its continued focus on crimes of violence fails to consider that child sexual abuse and particularly online sexual abuse may occur without physical contact.
Under the 2012 scheme, no award is made to applicants who have unspent convictions for offences that resulted in certain sentences or orders. That fails to recognise the impact of child sexual abuse and specifically that abuse may have directly contributed to instances of offending; there is often, for example, a close link between sexual exploitation, grooming and criminal behaviour. There is also a two-year time limit for making a claim. Even though that may be extended where there are exceptional circumstances, such a period is inadequate for victims and survivors of child sexual abuse, who often do not report their abuse until adulthood.
Victim Support strongly believes that the unspent conviction rule unfairly penalises some victims of violent crime, in particular the most vulnerable, such as the victims of child sexual abuse. It says that victims of child sexual abuse, sexual exploitation and grooming are often targeted by their abusers, in part because they are vulnerable, lack adequate support and supervision and may be perceived by offenders as easy to manipulate on those grounds. Such victims are often from challenging backgrounds and therefore, for various reasons, may be more likely to have criminal convictions prior to the abuse taking place. That should not be held against them.
Further, the fact of being abused in itself makes it more likely that a person will themselves go on to commit an offence, either as part of the abuse and under the coercion of the abuser, or in reaction to the abuse. It is now widely recognised that victims of crime have an increased likelihood of committing an offence. The relationship is particularly acute where the individual has suffered sexual abuse. Ministry of Justice data reveals that almost a third—30%—of prisoners experienced emotional, physical or sexual abuse as a child.
The 2008 criminal injuries compensation scheme, which the current scheme replaced in 2012, also set out that an award for compensation would be withheld or reduced to reflect unspent convictions, but it allowed for claims officers to use their discretion if they considered that there were exceptional reasons. That claims officers could use their discretion to decide on levels of reduction was also set out in the accompanying guidance for the scheme, which makes it clear that claims should not be rejected where the convictions are related to their child sexual abuse.
The Government should reinstate the ability of claims officers to use their discretion in this area and remove completely the blanket ban on making any payments to the victims, which is set out in paragraph 3 of annex D to the guidance on the criminal injuries compensation scheme. Victim Support would also support changes to the criminal injuries compensation scheme time limits rule. Currently, claims made outside of the two-year limit can be considered by CICA in exceptional circumstances, but that does not provide enough clarity or certainty for victims and is therefore not fit for purpose. The policy disproportionately affects victims of sexual abuse, who are concerned that their claim may affect their ability to receive justice and that the fact they have made a claim will be used against them in court.
It is welcome that, as part of the review into criminal injuries compensation, the Government undertook a review of the exceptional circumstances clause and found that 63% of cases submitted outside the time limit still received a reward. However, that still shows that over a third of claims submitted outside of the time limit were denied.
Additionally, the Government’s review does not consider the victims who did not submit a CICA claim because they believed they were too late to do so. The court backlogs also mean that victims concerned about applying to the CICS before the trial ends, who are already struggling to cope with the delays, will have the additional risk of being ineligible. I urge the Minister to listen to my constituents, victims, charities such as Victim Support, and the independent inquiry into child sexual abuse, and accept the changes.
Jess Phillips
I rise to speak to amendment 55, which I tabled to clarify that one of the groups that has now been included in the Bill—that is, children born of rape—will also be able to access the criminal injuries compensation scheme as victims of crime. Many brilliant people have been involved in the campaign to ensure that children born of rape are considered to be victims: Daisy, who has been involved with Daisy’s law; the Centre for Women’s Justice; and the very passionate campaigner and Rotherham sexual exploitation victim Sammy Woodhouse.
I want to read a letter that I received about this issue:
“Dear MP
I hope my email finds you well. I am the son of Sammy Woodhouse. I am aware you have publicly supported my mothers campaign, which I would like to thank you. I am writing you this letter with her help and support as I have never reached out to an MP before, I have done so as this is a campaign that is very close to me.
I wish to express how difficult it has been for me to learn that I was conceived by sexual violence and some of the challenges I have had to face. I want the government to take it seriously and to help others. Not only have I felt very alone but I have struggled with my Identity, my mother was raped by my ‘father’ and he is known as the UK’s most notorious rapist, this alone faced its challenges and left me confused. Emotionally I have closed off and shut down and at times I’ve wanted to scream from the rooftops.
Despite me never being identified publicly, we were known within our community so therefore I was subjected to death threats, followed and had my picture taken, called ‘rape baby’ and told I would also become a rapist. We had to move home and schools and even then people came to our home and posted our address online. I’ve been targeted and lied about on social media, and professionals encouraged me to have a relationship with my father rather than safeguard me. This was all done by the people in our local community even when my mother remained anonymous. I was 12 years old. There are many like me.”
Edward Argar
I turn first to amendment 38, which seeks to include victim compensation as an additional victims code principle, and I am grateful to the hon. Member for Rotherham for her explanation of it. I should put on the record at this point that I am aware of the hon. Lady’s tireless work to support victims of crime, particularly victims of child sexual exploitation. She and I have worked on this issue in my previous incarnation in this role and I know that during my interlude in the Department for Health and Social Care—and, very briefly, in the Cabinet Office and the Treasury—she has continued relentlessly to pursue this cause. Now that I am back in the Ministry of Justice, it is nice that we can pick up some of the issues that we were discussing back in 2018 and 2019.
I agree with the sentiment behind the amendment. It is quite right that, in appropriate circumstances, victims should receive compensation for the harm that they have suffered as a result of a criminal offence. She made one point that was particularly interesting. When I have previously talked to staff at the Criminal Injuries Compensation Authority, I have found that their preference is for less discretion and more prescription, from the perspective that it makes their job easier because that is black and white—that is the decision—rather than there being any potential grey area that causes uncertainty for claimants and applicants.
Responding to the hon. Lady’s key point, however, I will say that this issue is already reflected in the victims code. Right 5 for the victim is:
“ To be provided with information about compensation”.
That includes an entitlement for victims to be told about how to seek compensation, and is covered by the existing code principle in the Bill that victims should be provided with information to help them to understand the criminal justice process.
Compensation can come from several sources: court-ordered compensation; the taxpayer-funded criminal injuries compensation scheme; and civil compensation claims. The code provides for victims to be made aware of routes through which they might obtain compensation for the harm or loss that they have suffered, but the code is not in itself a mechanism for providing compensation and the eligibility of individuals for compensation is determined by the courts or other bodies, such as the Criminal Injuries Compensation Authority, that operate independently of Government. For that reason, it is our view that the existing entitlement to information about compensation is the right one for the code.
I turn to amendment 39, which seeks to provide that victims of child sexual abuse are entitled to and can access compensation under the statutory criminal injuries compensation scheme by including it as a requirement in the victims code and changing the scope, time limits and unspent convictions eligibility rules of the scheme.
As I have already alluded to, I am aware of the hon. Lady’s long-standing interest and work in ensuring support for victims of child sexual abuse and exploitation. I recall that she raised concerns about time limits and other aspects of the scheme in a debate, which I think I answered, on the Government’s victims strategy in 2018. I welcome her contributions to the review of the scheme that we announced in that strategy. However, our view is that the victims code is not a mechanism through which changes to the scheme can be made. Changes such as those that the amendment seeks to bring about need to be made in accordance with the primary legislation under which the scheme is made and to follow the appropriate procedures for any changes. The Criminal Injuries Compensation Act 1995 requires that before a new or amended scheme can be made, a draft must be laid in Parliament and approved by a resolution of each House.
We are actively considering the issues that the hon. Lady raises in relation to the scheme itself, which of course reflect recommendations made by the independent inquiry into child sexual abuse. We have committed to consult on whether to change the scope and time limits of the scheme, and we hope to do so in the coming months. I caveat that by saying that, of course, the scheme must be financially sustainable; that will be one of the elements that we will need to consider.
As the hon. Lady will know, this will be the third consultation of our review, as we have already consulted on reforms to the scheme as a whole in 2020, which was the process that she worked with me to kick off when I was last in the Ministry of Justice, and then again in 2022 on whether to amend the unspent convictions eligibility rule, following—I believe—a court judgment requiring that review.
My intention is to publish a single response to all three consultations as soon as they are all completed and as soon as is practically possible. I am seeking, as the hon. Lady will see, to get through some of the unfinished business that I had in the Department when I left it and went to the Department of Health and Social Care. We have brought this proposal forward. There are a number of other issues that still remain in my in-tray that I recall from when I worked with her pre-pandemic.
For those reasons, I encourage the hon. Member for Rotherham not to press this amendment to a vote, having put on the record her clear views.
I turn to amendment 55, which was tabled by the hon. Member for Birmingham, Yardley, and seeks to provide that children born of rape are entitled to and can access compensation under the statutory criminal injuries compensation scheme by including it as a requirement in the victims code. As the hon. Lady has already alluded to, the Bill explicitly recognises, for the first time in legislation, people born of rape as victims in their own right. This will help them to access vital support services. I pay tribute to the hon. Lady and to other campaigners who have relentlessly pursued this cause and successfully campaigned for this change.
In relation to criminal injuries compensation, as the hon. Member for Birmingham, Yardley may know, the statutory scheme has eligibility criteria that are approved by Parliament. The core purpose of the scheme is to provide compensation to victims who suffer a serious physical or mental injury attributable to their being a direct victim of a crime of violence. The scheme defines a crime of violence and specifies when a person will be eligible for a compensation payment for injury directly resulting from that crime. Under the current scheme, the birth mother of a child born of rape would be entitled to apply for compensation as the direct victim of a sexual assault and a crime of sexual violence. An additional payment can be made where a pregnancy directly results from the sexual assault.
The scheme also provides for compensation to be available to a person who sustains injury while taking an exceptional and justified risk in the course of limiting or preventing a crime, or if they have been present at or witnessed an incident or its immediate aftermath in which a loved one sustains a criminal injury. Provisions in the Bill do not affect eligibility for the scheme and, as I have already said, the victims code is not a mechanism through which changes can be made. A change such as that which the amendment proposes would need to be made in accordance with the primary legislation under which the scheme is made.
I hope that I can give the hon. Member for Birmingham, Yardley a little bit of reassurance, as I did for the hon. Member for Rotherham. We are in the process of finalising the third and final part of the consultation. When we have done that, we will come forward to Parliament with our response, and of course that will have to be laid before Parliament as a new scheme. I hope that might give both hon. Members the opportunity to raise these issues in the correct way, when the scheme is being considered by the House.
Sarah Champion
I welcome all that the Minister is doing. If I can help or support him in any way, obviously I will. The victims code is a fantastic tool, but it is only useful if victims know about it. Unfortunately, therein lies the nub of most of our arguments. However, I have heard what he said, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
I am afraid that I am now leaving you for the rest of the Bill, because my fellow Chairmen are taking over. May I thank you for a very interesting and moving day? Thank you so much.
Digital Markets, Competition and Consumers Bill (Tenth sitting)
Tuesday 27th June 2023
(10 months, 2 weeks ago)
Public Bill CommitteesRead Full debate Digital Markets, Competition and Consumers Bill 2022-23 View all Digital Markets, Competition and Consumers Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 June 2023 - (27 Jun 2023)
The Chair
With this it will be convenient to discuss the following:
That schedule 8 be the Eighth schedule to the Bill.
That schedule 9 be the Ninth schedule to the Bill.
That schedule 10 be the Tenth schedule to the Bill.
Clause 137 stand part.
That schedule 11 be the Eleventh schedule to the Bill.
Clause 138 stand part.
Government amendments 40 to 44.
That schedule 12 be the Twelfth schedule to the Bill.
The Parliamentary Under-Secretary of State for Science, Innovation and Technology (Paul Scully)
The final clauses in part 2 concern measures that cut across the Competition and Markets Authority’s competition tools. Clause 136 introduces schedules 8 to 10 to the Bill. The Competition Act 1998 and parts 3 and 4 of the Enterprise Act 2002 already allow the CMA to impose civil penalties for non-compliance with information requirements. The destruction of documents that have been required to be produced, and the provision of false or misleading information, are criminal offences, but schedule 8 introduces powers for that conduct to be subject to civil penalties. It also reforms existing civil penalties to ensure that the maximum penalties are set at an appropriate level.
Schedule 9 introduces powers enabling civil penalties to be imposed for breaches of competition remedies. Competition remedies are interim measures, commitments and directions under the Competition Act 1998 and interim measures, undertakings or orders under parts 3 and 4 of the Enterprise Act 2002. Schedules 8 and 9 also enable the Secretary of State and Ofcom to impose penalties if they are given false or misleading information in relation to their functions under the relevant regimes. They also give the Secretary of State the power to impose penalties to enforce compliance with remedies accepted or imposed in relation to mergers and markets with public interest considerations. Civil penalties will be applicable unless the party has a reasonable excuse, and that will be assessed case by case.
The maximum penalty for an undertaking or person who owns or controls an enterprise that is not complying with information requirements is 1% of the business’s worldwide turnover. Daily penalties of up to 5% of worldwide daily turnover will also be available in some cases while the non-compliance continues. For breach of remedies, the maximum penalty is set at 5% of worldwide turnover and daily penalties of up to 5% of worldwide daily turnover while the breach continues. The penalties imposed on other persons, who will generally be individuals, are capped at £30,000, or up to £15,000 daily while the breach continues. The CMA is required to produce statements of policy regarding the operation of its penalty powers. In doing so, it must consult the sector regulators and receive approval from the Secretary of State. Schedule 10 amends the legislation that gives the sector regulators their concurrent competition powers, so that they need not unnecessarily duplicate the work that they need to do to prepare statements of policy.
Clause 137 introduces schedule 11, which amends the Competition Act 1998 and parts 3 and 4 of the Enterprise Act 2002 to make express provision regarding the giving of information notices outside the United Kingdom. The schedule enables the CMA to give an information notice to a person who is the subject of a Competition Act 1998 investigation, or a person who is or has been a party to a merger review. The schedule also enables the CMA to give information notices to third parties with a defined UK connection. Compliance will be enforceable through the civil penalty regime. The schedule also amends provisions on methods of serving documents to reflect modern business practices; for example, it allows service of documents via email.
Government amendments 40 to 44 are technical drafting amendments to schedule 12. The schedule, which is introduced by clause 138, applies appropriate parliamentary procedures to new regulation-making powers created by the Bill, and makes other consequential and technical amendments. I commend the amendments to the Committee and hope that the clauses will stand part of the Bill.
Alex Davies-Jones (Pontypridd) (Lab)
Labour supports the intention behind the provisions in this grouping. Of course there should be provisions about the attendance of witnesses, as outlined in clause 135. The same can be said about ensuring that the Bill has sufficient legal powers on civil penalties, should the need for them arise in the regime. The provisions in clause 136 and schedules 8 to 10 are adequate, and we support them. The same can be said for clause 137 and schedule 11, which make provisions regarding the service of documents and the extraterrestrial—sorry, extraterritorial; I know we are talking about digital markets, but we have not reached that far yet—application of notices under part 1 of the Competition Act 1998 and parts 3 and 4 of the Enterprise Act 2002. Of course those laws must work in alignment with the intentions of the Bill. Clause 138, Government amendments 40 to 44 and schedule 12 are all sensible, and part of a rigorous procedure, so we do not oppose them.
Question put and agreed to.
Clause 136 accordingly ordered to stand part of the Bill.
Schedules 8 to 10 agreed to.
Clause 137 ordered to stand part of the Bill.
Schedule 11 agreed to.
Clause 138 ordered to stand part of the Bill.
Schedule 12
Orders and regulations under CA 1998 and EA 2002
Amendments made: 40, in schedule 12, page 284, line 5, at end insert—
“(1A) In subsection (4) omit ‘, 94A(6)’.”
This amendment removes a reference in section 124(4) of the Enterprise Act 2002 to section 94A(6) of that Act, which is being repealed by paragraph 11 of Schedule 9 to the Bill.
Amendment 41, in schedule 12, page 284, line 7, at end insert—
“(aa) omit ‘, 94A(3) or (6)’;”.
This amendment removes a reference in section 124(5) of the Enterprise Act 2002 to section 94A(3) and (6) of that Act, which are being repealed by paragraph 11 of Schedule 9 to the Bill.
Amendment 42, in schedule 12, page 284, line 12, after “section” insert “94AB(9) or”.
This amendment corrects a drafting omission by providing that regulations under section 94AB(9) of the Enterprise Act 2002 (inserted by paragraph 11 of Schedule 9 to the Bill) are subject to annulment in pursuance of a resolution of either House of Parliament.
Amendment 43, in schedule 12, page 285, line 10, after “section” insert “167B(9) or”.
This amendment corrects a drafting omission by providing that regulations under section 167B(9) of the Enterprise Act 2002 (inserted by paragraph 17 of Schedule 9 to the Bill) are subject to annulment in pursuance of a resolution of either House of Parliament.
Amendment 44, in schedule 12, page 285, line 23, at end insert—
“(8A) In subsection (10), for ‘174D’ substitute ‘174A(10)’.”—(Paul Scully.)
Paragraph 26 of Schedule 8 to the Bill inserts a new subsection (10) into section 174A of the Enterprise Act 2002 which replaces the existing provision made by section 174D(10) of that Act (which is being repealed by paragraph 28(12) of that Schedule). This amendment amends the Enterprise Act 2002 to replace a reference in section 181(10) of that Act to the latter provision with a reference to the former.
Schedule 12, as amended, agreed to.
Clause 139
Overview
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Government amendment 59.
Clauses 140 to 142 stand part.
That schedule 13 be the Thirteenth schedule to the Bill.
That schedule 14 be the Fourteenth schedule to the Bill.
Clause 201 stand part.
Paul Scully
Part 3 of the Bill provides for two regimes for the civil enforcement of consumer protection law: a court-based regime and a direct enforcement regime for the CMA.
Clause 139 provides an overview of part 3. Clause 140 sets out the scope of the court-based and CMA direct enforcement regimes. First, the regimes are limited broadly to the trader’s acts or omissions that amount to commercial practices—that is, interactions between traders and consumers. Secondly, to be subject to enforcement action, a commercial practice must harm the collective interests of consumers. Thirdly, the scope of the laws that can be enforced remains broadly the same as that which can be enforced under current law. Government amendment 59 ensures that the Bill reflects existing law, namely the Consumer Protection from Unfair Trading Regulations 2008.
Clause 141 provides for an infringing practice to be in scope of enforcement if the trader committing it meets at least one of the following conditions: the trader has a place of business in the UK; the trader carries on business in the UK; or where the infringing commercial practice occurs as part of activities directed to consumers in the UK by any means. Those tests mean that the jurisdictional scope of the current court-based enforcement regime for consumer law is replicated.
Clause 142 limits the application of the enforcement regimes to a commercial practice that breaches an enactment, obligation or rule of law listed in schedules 13 or 14 to the Bill.
Clause 201 gives a delegated power to the Secretary of State to amend schedules 13 and 14—that is, to add, remove or vary the enactments and enforcer authorisations listed in those schedules. The continuing effectiveness of both regimes will depend on their ability to adapt to reflect the evolution of consumer protection law over time. As new consumer protection laws are made and old ones repealed, there must be a mechanism to ensure that they fall into or out of the scope of the enforcement regimes. If the enforcement landscape and the remits of individual enforcers change, there must be a facility to reflect those changes in the statutory framework. The power is subject to the affirmative procedure, so hon. Members will have due opportunity to scrutinise any provisions made under it.
Schedule 13 lists the enactments, obligations and rules of law that may be enforced through the court-based regime, which replaces part 8 of the Enterprise Act 2002 for conduct going forward. The schedule also makes clear which enforcers may enforce each enactment.
Schedule 14 sets out which enactments the CMA may enforce through its new direct enforcement powers. Its scope comprises core consumer protection legislation and a limited number of sector-specific regulations where CMA direct enforcement is desirable. That reflects the CMA’s specific remit and competence to tackle market-level issues that adversely affect consumers or affect their ability to make choices.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
It is a pleasure to serve under your chairship, Ms Ali. I thank the Minister for his opening remarks, and it is a pleasure to follow my hon. Friend the Member for Pontypridd in speaking on this important Bill.
Clause 139 provides an overview of the structure of part 3, which sets out the court-based regime for the civil enforcement of consumer protection law to protect the collective interests of consumers. As the Minister said, that allows for two regimes of civil enforcement—a simplified courts-based regime and the CMA’s direct enforcement regime.
The regime provides for consumer law enforcers to apply for, and the courts to make, enforcement orders, interim enforcement orders, online interface orders, to which only the CMA may apply, and interim online interface orders to which, again, only the CMA may apply. An enforcer or the court could decide to accept an undertaking from the enforcement subject instead of issuing an order, a mechanism that there should be the option for and is in line with the participative approach of working in the Bill.
Chapter 3 would also provide for certain enforcers—defined in clause 143, which we will go on to debate—and the court to attach remedies, known as “enhanced consumer measures”, to enforcement orders and undertakings. Importantly, chapter 3 would provide new powers for the courts to impose monetary penalties on enforcement subjects who have infringed the consumer protection laws within scope of part 3.
I wish to signal the Opposition’s broad support for part 3 and the measures it introduces to ensure swifter enforcement of consumer protection law and more effective redress for consumers. That is a sentiment shared by consumer groups. As one example, the written evidence submitted by Consumer Scotland expressed broad support for part 3, noting how it:
“simplifies and bolsters the enforcement of penalties for relevant infringements of consumer protection law under part 8 of the Enterprise Act 2002.”
I hope we will work constructively through the Committee to ensure that the consumer provisions in the Bill are as robust and fair as possible, and that we will not see the watering down of any measures currently drafted.
Clause 140 defines the scope of the enforcement regime set out by part 3. It sets out how a trader has committed an infringement of the part 3 enforcement regime if their act or omission harms the collective interests of consumers, as well as meeting the UK connection conditions set out in clauses 141, and the specified prohibition condition set out in clause 142.
The Opposition support clause 140 as a necessary element in introducing a robust enforcement regime. It is a stronger consumer protection, which acts where a continuation or repetition of an act, such as misleading information or an omission of information, could continue to harm future customers unless remedied. However, I ask the Minister for clarity on one aspect of the provision. As well as setting out the scope of enforcement, the clause in subsection (2) also defines relevant terms such as “trader” and “consumer”. The explanatory note states that in relation to the definition of “consumer”:
“A consumer must be an individual and so excludes body corporates. The individual must be acting wholly or mainly outside of their business.”
While it is welcome that individual consumers are being protected through the enforcement regime, could the Minister clarify where that leaves small businesses or the self-employed? The notes suggest that the individual is still a consumer when acting for dual purposes. It is clear to me, as a shadow Minister for business looking at the needs of small businesses in particular, that plenty of British businesses are negatively impacted by rogue traders supplying them, whether with office equipment or digital services. There is a segment of those businesses that could be caught inside or outside the definition depending on its interpretation.
It would be helpful if the Minister clarified whether the Government plan, for example, for microbusiness customers to be included in the consumer protection regime. Who would decide if it was 60% consumer or 60% business for the purposes of this legislation? It may be a product that is being delivered, and the business may be run from home. I would be grateful for the Minister’s comment and clarification on that point.
Amendment 59 replaces “trader” with “person”. It ensures that the definition of commercial practice for the purposes of part 3 of the Bill includes an act or omission by a trader relating to the promotion or supply of a consumer’s product to another consumer. I would welcome some clarification from the Minister. Will the amendment mean that where a consumer or private individual commits what would be an infringement by a trader when selling a product to another consumer—for instance through eBay or Facebook Marketplace—they are liable for enforcement action, as a business would be? This is an important area of protection for consumers, so I would be interested to hear more about how it would work in practice. If I understand the provision correctly, it could significantly expand the enforcement regime beyond just businesses.
Clause 141 sets out how traders meet the UK connection condition, which, as set out in clause 140, forms part of the scope of the enforcement regime. It sets out how a commercial practice meets the UK connection condition if at least one of three conditions are met. Those conditions are that the trader has a place of business in the UK, that the trader carries on business in the UK, meaning that their business operates in the UK, perhaps without an office, or that the trader carries on activities that are in any way directed to consumers in the UK. The conditions are necessarily broad but important for the protection of UK consumers. We support clause 141.
Clause 142 defines the specified prohibition condition, which is the final condition setting out the scope of the enforcement regime in part 3. In short, the clause sets out that a commercial practice meets this condition if it breaches provisions listed in schedule 13 and 14. Schedule 13 sets out the enactments, obligations and rules of law to which the court-based enforcement regime applies. The list is very comprehensive, and we support its contents. In particular, we note that chapters 1 to 4 of part 4 of the Bill are included in the schedule, which is welcome. I would welcome assurances from the Minister that the Government consulted widely among stakeholders regarding the compiling of the enactments of the schedule, so that we can be confident that there are no omissions. In addition, I invite the Minister to correct me if I am wrong in my understanding of how the schedule could be amended. There are other schedules with delegated powers, but I wanted to understand what the process would be here if there was a question of needing to amend the schedule if legislation were updated in the future. I would be grateful for clarification on that.
Similarly to schedule 13, schedule 14 lists the enactments to which the CMA’s direct enforcement regime applies. Like schedule 13, this schedule appears to be comprehensively drawn and is thus supported by the Opposition. I note that it also makes reference to other measures of the Bill that will be going through. On the theme of seeking clarity from the Minister, I would welcome assurances that a wide range of stakeholders and legislation has been consulted and reviewed to ensure that this is a comprehensive schedule. I would also ask what the process is for updating the schedule if required in the future.
Clause 143 lists public designated enforcers who would be able to use the court-based enforcement regime. We are pleased to see that this includes the CMA, trading standards, the Financial Conduct Authority, the Information Commissioner’s Office and Ofcom, among others. Certain private designated enforcers would also be able to use the court-based regime, such as the Consumers’ Association. We welcome the clause and the inclusion of a comprehensive list of public designated enforcers, but have the Government consulted with the groups they are planning to include in the clause? Were any groups or bodies that expressed an interest in being designated enforcers omitted from the clause?
Subsection (3) gives the Secretary of State a delegated power to add to or remove a body as a public or private designated enforcer, or to amend its entry. Regulations made under the clause would be subject to the affirmative procedure. However, the power could not be used to remove or vary the enforcement powers of the CMA, trading standards or the Department for the Economy in Northern Ireland. We welcome the protection of those bodies’ powers, but I would like clarification from the Minister on private designated enforcers.
The clause names the Consumers’ Association as a private designated enforcer, but no other group. While I note the criteria in clause 144 for designating a body as a private designated enforcer, it would nevertheless be helpful if the Minister spelled out how a body becomes a private designated enforcer. Would it have to apply? I would also be grateful for clarification of the basis on which the Secretary of State may remove, or seek to remove, a public or private designated enforcer—an issue that I will discuss further.
Clause 144 specifies the criteria that must be satisfied for the Secretary of State to designate a body as a private designated enforcer. This is an important clause. The criteria establish certain minimum standards of governance, transparency and competence that a person must meet to carry out enforcement action, and we welcome the clause. However, I refer the Minister to my question about how the Government expect people to become private enforcers. Would there be an application? Perhaps he would set out the process, and the basis on which he envisages withdrawing designation from an enforcer. Would that be because some conditions are no longer met? Would it be because some sort of complaint is received? It would be helpful to understand how those changes could be made.
Clause 145 identifies the categories of person an application for an enforcement order could be made against, and the types of infringements that they must have committed. An enforcer, as designated by clauses 143 or 144, would be able to apply to the court for an enforcement order or an interim enforcement order if the enforcer considers that they have engaged in, are engaging in or are likely to engage in a commercial practice that constitutes a relevant infringement, or if they are an accessory to such a practice.
We welcome the clause, but I would welcome further clarification on a few issues. First, the legislation states that
“an enforcer may make an application in respect of a relevant infringement”.
Did the Government consider changing “may” to “must”, or are they confident that enforcers will always apply for enforcement in cases where they have identified an infringement? I would welcome hearing the reasoning behind the choice made. Secondly, subsection (4) limits the power to apply for the imposition of a monetary penalty to public designated enforcers. Would the Minister clarify why that power has been withheld from private designated enforcers?
Paul Scully
Let me try to cover some of those questions. On microbusinesses and small business, this is effectively a standard definition that, yes, does exclude microbusinesses, because it replicates provisions in the Enterprise Act. The obvious question then is, “How do microbusinesses and small businesses get any redress in these examples?” but the business protection regulations would cover that, and they are not within the scope of this change. However, any of the changes that the hon. Lady requested would largely come under the affirmative procedure.
The hon. Lady also asked whether the Government had consulted widely on these enactments. Although we consulted widely on the Bill when I was a Minister in the Department for Business, Energy and Industrial Strategy, these provisions just restate existing law, so we just wrote that into the Bill, instead of spreading the provisions across statutory instruments. It would therefore not necessarily have been particularly informative to have consulted on them.
The hon. Lady asked about private designated enforcers and how an enforcer might be added to the list. The Secretary of State can by regulations add applicants as private designated enforcers that are able to use the court-based enforcement regime. Again, those regulations would be subject to the affirmative procedure, to ensure appropriate parliamentary scrutiny. Any organisation applying for that status would need to provide evidence to the Secretary of State that it meets the designation criteria in clause 144(1), which would likely include evidence as to its legal status and constitution, a list of directors, examples of where it has protected the collective interests of consumers, and so on.
The Secretary of State will in due course set out more detailed guidance on the evidence and information that applicant organisations should provide when seeking designation. The Government clearly want to guarantee that those designated are able to protect the collective interests of consumers but are prevented from using that privileged position to seek any commercial gain or competitive advantage. They therefore intend that any private designated enforcer that fails to meet the criteria would have its designation altered or withdrawn by the Secretary of State.
Question put and agreed to.
Clause 139 accordingly ordered to stand part of the Bill.
Clause 140
Relevant infringements
Amendment made: 59, in clause 140, page 88, line 18, leave out “trader” and insert “person”.—(Paul Scully.)
This amendment ensures that the definition of “commercial practice” for the purposes of Part 3 of the Bill includes an act or omission by a trader relating to the promotion or supply of a consumer’s product to another consumer.
Clause 140, as amended, ordered to stand part of the Bill.
Clauses 141 and 142 ordered to stand part of the Bill.
Schedules 13 and 14 agreed to.
Clause 143
Enforcers
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clauses 143 and 144 set out the public and private bodies that have enforcement powers under the court-based enforcement regime, which we have touched on, and restate and update part 8 of the Enterprise Act 2002.
Clause 143 sets out two categories of enforcer: public designated enforcers and private designated enforcers. The clause also gives the Secretary of State powers to add or remove a public designated enforcer or to amend its entry, and to add, remove or vary the entry of a person as private designated enforcer. These powers are subject to criteria set out in clause 144.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Is there a reason why trading standards is not on this list? It would be the go-to for a consumer or business under existing law, so why is it absent from this list?
Paul Scully
As I say, we are essentially bringing across the existing law, but there is no reason why the Secretary of State cannot look at that in time. In clause 144, we are setting out the detail and criteria that must be met when a person who is not a public body is added by the Secretary of State as a private designated enforcer.
Neil Coyle
If a consumer believes that they have been sold something that is counterfeit or damaging, which might meet the “detrimental effects” test, where would they go to find out how to address that issue? If a British company has a licence and a trademark, and it sees someone selling fake goods online, thereby undermining the company’s work and trademark in the UK, how does it go about addressing that? In the evidence session, a question was asked about raising awareness of changes to legislation. Could the Minister take a brief moment to explain those two routes to getting change?
Paul Scully
If I have got this right, that goes back to the hon. Gentleman’s previous example. Let me correct my earlier comments. I talked about the fact that we are bringing existing legislation across into the Bill. The local trading standards enforcement regime comes under weights and measures, which is specified in the Bill. It is an old term for a modern-day service, and it is encapsulated in the regime. Clearly, businesses will go through the traditional routes to get consumer redress, which can include going through the trading standards regime.
Neil Coyle
When witnesses from trading standards sat here two weeks ago, John Herriman and David MacKenzie told us that there needed to be an awareness-raising campaign about the changes. Has the Minister done that, or is that intended to come after the enactment of the Bill? How will that come about?
Paul Scully
A lot of that will be done through our relationship with Citizens Advice and trading standards. When I covered this brief a year ago and held the position currently held by the Under-Secretary of State for Business and Trade, my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake), we continually did work for consumers, whether that was on this kind of redress, work through the CMA or work through Citizens Advice and trading standards. Clearly, given that we are changing the regime to make things faster and more effective, we will want to shout about it, because people need to be aware of it, and that will be part of a wider awareness scheme. I cannot give the hon. Gentleman chapter and verse on the campaign, because I am not running it.
Neil Coyle
Perhaps rather than chapter and verse, just one sentence would be fine. Will the Government resource Citizens Advice to provide the new information on a whole new legislative change in consumer rights?
Paul Scully
As I say, the Government do a lot of work jointly with Citizens Advice to market, campaign on, and raise awareness of these regimes.
Neil Coyle
Apologies for coming back on this, but that is not an answer. Citizens Advice came to the Work and Pensions Committee just a few weeks ago to say that its advisers, many of whom are volunteers, face the most dire circumstances of their 80-year history; the circumstances are worse than they were during the second world war. That is its assessment of the financial situation that its bureaux face in trying to help people. Is the Minister saying that Citizens Advice will be resourced to provide the additional information?
Paul Scully
I will not conflate this issue with the matter of the resources for Citizens Advice’s broader work, but we already work with Citizens Advice to raise awareness of its work, and will continue to do that together. On any additional duties, clearly we want to make sure that Citizens Advice is as well resourced as it can be. A lot of its work is essentially similar to what is proposed, but we are trying to make it faster for it to offer remediation. That is the whole purpose of this work. We are simplifying and consolidating the criteria that apply under the current court-based regime. That guarantees that those designated as private enforcers will have the independence, competence and expertise required to protect consumers and their independence.
Question put and agreed to.
Clause 143 accordingly ordered to stand part of the Bill.
Clause 144 ordered to stand part of the Bill.
Clause 145
Applications
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 146 to 154 stand part.
Clause 169 stand part.
Paul Scully
Clauses 145 to 154 restate and update provisions in part 8 of the Enterprise Act 2002. They empower consumer enforcers to apply for, and the civil courts to make, court orders to prevent or stop infringing practices.
Clause 145 provides enforcers with the power to apply to court for an enforcement order or an interim enforcement order. An application may be made where a person has engaged in, is engaging in or is likely to engage in an infringing practice, or is an accessory to such a practice. The clause also gives public designated enforcers a new power to apply for the imposition of a monetary penalty for past or continuing infringing practices.
Clause 146 maintains the CMA’s leadership and co-ordination role by empowering it to give directions to other enforcers regarding who can make an application to court.
To ensure applications to court are made only when necessary, clause 147 requires enforcers to engage in appropriate consultation with the suspected infringing party or accessory before making an application for an enforcement order or interim enforcement order.
Clause 148 empowers the court, in response to an application under clause 145, to make an enforcement order against a person it finds has engaged, is engaging or is likely to engage in an infringing practice or is an accessory to such. As an alternative to making an order, the court may accept an undertaking from the infringer or accessory. Orders or undertakings must direct the subject to achieve compliance with the law.
Clause 149 gives the court a discretionary power to include enhanced consumer measures that it considers to be just, reasonable and proportionate in an enforcement order or an undertaking. Enhanced consumer measures, which are defined in clause 213, are steps an infringer or accessory may be required to take to provide redress to affected consumers, ensure compliance with the law, or offer consumers more effective choice. They are vital to ensuring that consumers are compensated and that infringements are remedied.
Clause 150 gives the court a new power to impose a monetary penalty of up to £300,000 or 10% of the recipient’s global turnover—whichever is higher—for past or continuing infringing practices. This provision is at the heart of the Bill’s reforms to consumer protection. It is imperative that there are consequences for breaking UK consumer law to signal that illegal practices will not be tolerated. Recognising that these penalties may be significant, the clause gives the recipient the right to appeal the decision to impose the penalty, its nature or the amount on the merits, in addition to their existing appeal rights.
Clause 151 empowers the court to make an interim enforcement order or accept an undertaking against a suspected infringer or accessory. To exercise the power, the court must consider it expedient that the infringing practice is prohibited or prevented immediately, and a final order must be likely to be granted.
Clause 152 gives the CMA the power to apply to court for an online interface order, or an interim online interface order. It can do that where it considers a person has engaged in, is engaging in, or is likely to engage in, an infringing practice. The reach of online traders and the complexity of the online marketplace has increased. That makes it more critical than ever that the CMA has the power to apply to the court to address infringing content online.
Clause 153 provides for courts to make online interface orders to require changes to online content and interfaces. This could include content removal, displaying warnings, restricting access or deleting a domain name. These powers are available only when the order is necessary to avoid the risk of serious harm to the collective interests of consumers and when there are no other available means within this chapter that would be wholly effective in stopping the infringement.
Clause 154 empowers the court to make interim online interface orders where it is expedient that the infringing practice is stopped or prohibited immediately and a final online interface order would be likely to be granted.
Clause 169 sets out two conditions that must be met before enhanced consumer measures can be included: in an undertaking given to a private designated enforcer, or in an undertaking given to the court or an order made by the court following an application by a private designated enforcer. The clause provides the framework to ensure that where enhanced consumer measures are used by private designated enforcers, it is done appropriately and with the end goal of solely benefiting consumers.
Seema Malhotra
I have already made some remarks on clause 145, but I will just echo my final question. I asked the Minister about the power for public designated enforcers to apply for the imposition of a monetary penalty and why that power has been withheld from private designated enforcers. Clause 146 refers to CMA directions to other enforcers. As the Minister has outlined, the clause introduces provisions such that if an enforcer other than the CMA seeks similar action on applying for an enforcement order for a particular infringement, it may direct which enforcer can make the application. That could lead to, for example, the CMA directing that an application for an order can be made only by itself.
We support the clause, but does the Minister’s Department expect the CMA to engage constructively with other enforcers to ensure that the most suitable enforcer is the one that is allowed to make the application? The underlying policy argument is important; we would not want to see multiple enforcers seeking to take action against the same business for the same infringement. I would like some clarity on how that is expected to work.
Clause 147 would provide that where an enforcer thinks a relevant infringement has occurred or is likely to occur, it must consult the enforcement subject before making an application for an enforcement. Subsection (2) introduces a requirement on the enforcer to alert the enforcement subject to the possibility of a monetary penalty being sought alongside an enforcement order. The explanatory notes state that the policy intent is that prior consultation may quickly lead to the relevant infringement ending and make court action unnecessary. We welcome the clause as a necessary part of the enforcement process, and in the spirit of opportunity for co-operation that underpins the new regime.
Under clause 148, the court would be able to make an enforcement order if, on an application from an enforcer under clause 145, it finds that the enforcement subject has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement or is an accessory to the infringing practice. As an alternative to an order, the court would be able to accept an undertaking. Under subsection (3), in determining whether to make an enforcement order the court would have to take into consideration whether the enforcement subject had given an undertaking under clause 155 to a public designated enforcer, or clause 177 in respect of the infringing practice. Where the court makes an enforcement order, it would be required under this clause to indicate the nature of the infringing practice and direct the enforcement subject to comply. We strongly welcome the clause. It is a necessary step in ensuring that the courts have adequate enforcement powers over companies that are causing detriment to consumers.
I have a question for the Minister regarding clause 148(8). It states that as part of an enforcement order, an undertaking may include a further undertaking by the respondent to publish “the order” and “a corrective statement”. As the explanatory notes state, the policy intent behind the subsection is to prevent the company
“further distorting consumers’ purchasing decisions”
by making them aware that a company has had to change its practices. I welcome the subsection as a common-sense step to ensure full clarity for consumers in instances in which enforcement action has been taken, but will the Minister clarify whether he expects the court always to require the publication of the order and a corrective statement? Surely, it would be simpler and better for the consumer for that undertaking to be included in every enforcement order, so that there was confidence that the consumer will be as informed as possible.
Clause 149 will enable the court to include, in an enforcement order or interim order, a requirement to take, as part of enforcement orders,
“such enhanced consumer measures as the court considers just and reasonable.”
The court would first have to consider whether the proposed measures were proportionate and in doing so consider
“the likely benefit of the measures to consumers…the costs likely to be incurred by”
the enforcement agent and
“the likely cost to consumers of obtaining the benefit of the measures.”
We welcome the clause as a further necessary element of the consumer protection and enforcement regime that we are seeking to deliver.
Clause 150 confers a new power on courts to impose a monetary penalty on a company for infringing consumer protection regulations. The Opposition welcome the clause, but why has it taken so long to get to this point? Turning to the details of the monetary penalties, subsection (5) sets out that, where the enforcement subject has a turnover that can be determined, a fixed amount penalty must not exceed £300,000 or, if higher, 10% of the total value of the enforcement subject’s turnover. We support those penalty thresholds, but could the Minister expand on why the legislation has landed on £300,000 as a maximum penalty if it is less than 10% of the company’s turnover? Is that an arbitrary figure or one that has been consulted on and calculated to ensure the maximum deterrent so that companies do not infringe the legislation? Will the Minister clarify the source of the figure?
Finally, I would welcome further clarification from the Minister on clause 150(8), which provides an enforcement subject who is required to pay a monetary penalty with a right to appeal the decision to impose a penalty, its nature or amount on the merits, in addition to their existing appeal rights. I would be grateful if the Minister could clarify the appeals threshold, which appears to be different from the judicial review threshold for companies with strategic market status, as set out earlier in the Bill. Was the threshold set for an informed reason? There seems to be a lower threshold for consumer protection infringements.
In addition, has the Minister considered whether the more merits-based approach could lead to companies, particularly larger ones with significant legal capacity, drawing out the process of monetary penalties being imposed on them by pursuing lengthy court appeals? I want to ensure that we have understood the matter correctly, so I would welcome the Minister’s clarifying the point and saying whether those are unfounded concerns. If they are well founded, we want to have a look at the issue more closely. In short, the Opposition welcome the clause, because we want to ensure that the measure is a robust as possible in deterring companies from engaging in practices that harm consumers.
Under clause 151, the court will be able to make an interim enforcement order on an enforcement subject. It will be able to make such an order if it considers that the subject
“has engaged…or is likely to engage in a commercial practice which constitutes a relevant infringement”.
In addition, interim orders can be made if
“it appears to the court that if the application had been an application for an enforcement order it would be likely to be granted, and…the court considers it is expedient that the infringing practice is prohibited or prevented immediately.”
That includes being able to make an interim enforcement order without notice.
We welcome the clause in principle, as a positive contribution to ensuring that swift action is taken where necessary to protect consumers. However, it would be helpful if the Minister could clarify the scope or give examples of how the power may be used. Examples specified in the Bill papers include preventing a misleading advert from being made public and enforcing the withdrawal of unsafe goods, but it would be helpful to understand the threshold for an order to be made without notice. Is it, for example, where there is current or imminent harm? It is important that that is clarified so that consumers and those who would be enforcement subjects can understand how the power could be used by the court, and so that there is no question about scope.
Clause 152 enables the CMA to apply to the court for an online interface order or interim online interface order in respect of a person that it considers has engaged, is engaging or is likely to engage in a practice that constitutes a relevant infringement. Subsection (3) sets out a jurisdictional test that limits the CMA’s power to apply for an order in respect of a third party overseas; it may do so only if the person is a UK national, the person is habitually resident in the UK, the firm is established in the UK, or the firm carries on business in the UK.
Is the Minister confident that those criteria cover all scenarios in which companies could be involved in misleading practices towards UK consumers, whether they are resident here or not? Why is it just the CMA that has the power to make such applications, and not other public or private enforcers, such as trading standards or local weights and measures authorities? We welcome clause 152, but it would be helpful to understand that further. There has been some discussion of the important role of local trading standards in our enforcement regimes.
Clause 153, which necessarily follows clause 152, gives the court a discretionary power to make an online interface order in response to an application from the CMA under clause 152. We welcome clause 153 and recognise the importance of including digital practices that harm consumers. However, as with clause 152, will the Minister expand on why local weights and measures authorities will not be given powers to apply for orders alongside the CMA?
The Bill represents an opportunity to update the powers of trading standards so that they can operate more effectively in the 21st century. The Chartered Trading Standards Institute notes that officers regularly have to exercise powers of physical entry in order to seize documents that they may wish to use in criminal proceedings, but it also raises the issues that officers have accessing filed documents that are not physical. My question is about how trading standards powers should be reviewed and updated in line with those of other enforcers, and the opportunity to do that in the context of the Bill.
Finally, under clause 154, following an application from the CMA, the court will be able to grant an interim online interface order, where it is considered that a final online interface order would likely be granted but that an interim order is needed to end an infringement immediately. Subsection (2) will permit the court to grant an interim order without giving notice to the enforcement target.
We welcome the provisions, but I have similar questions —they are relevant—to those I asked about the earlier clauses.
Paul Scully
Let me try to cover as many of those questions as I can. The hon. Lady asked about the possibility of multiple enforcers in process at the same time. In effect, we are restating the existing arrangements, which have been working. They work with the CMA as the gatekeeper, so the CMA would have to be notified when action has been taken—it can filter anything going on in that regard—and it would have to co-ordinate the approach.
On clause 148, and court powers to make orders and penalties, the hon. Lady talked about subsection (9) on whether an undertaking may include a trader publishing it in a corrective statement and whether I, as a Minister, would always expect that to happen. It is discretionary. The enforcer may require that as appropriate.
On the penalties, the £300,000 basically sits in the middle of the pack internationally. If we look at the regimes around the world, where penalties are imposed on individuals, New Zealand’s consumer protection system has £100,000 and Canada’s consumer regime has £450,000. We sit within that, looking at the international comparators.
Seema Malhotra
Is the Minister saying that the decision to go with the £300,000 was just because it was in the middle of the pack?
Paul Scully
It was a fair balance after looking at international regimes—a fair comparison with similar regimes around the world. Similarly, the 10% penalty is reflected in penalties across other regimes.
The hon. Lady also asked about the CMA being able to enforce and why private enforcers did not have the same powers. Only the CMA may impose penalties. Private enforcers may seek a penalty in court, but the CMA is the only body able to issue penalties directly.
Finally—I have probably missed a couple of questions, but I will review them later just in case—on the interim notes, the hon. Lady made a fair point about stopping the immediate harm. I talked about domain names, as well as removing adverts and such things. It is about being able to act quickly. The whole point about the changes to the regime is to ensure that we make it not only as effective as possible in the modern world, but as fast as possible.
Question put and agreed to.
Clause 145 accordingly ordered to stand part of the Bill.
Clauses 146 to 154 ordered to stand part of the Bill.
Clause 155
Acceptance of undertakings by enforcers
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to debate clauses 156 to 160 stand part of the Bill.
Paul Scully
Clauses 155 to 160 restate and enhance provisions in part 8 of the Enterprise Act 2002 that govern the acceptance and enforcement of undertakings by enforcers and the courts.
Clause 155 provides a power for enforcers to accept, vary and release an undertaking from an infringer or accessory. Undertakings may be accepted only where they include provisions that will stop or prevent the allegedly infringing practices. The clause will allow enforcers to continue using co-operative enforcement means, which can lead to faster resolution of consumer harms and reduce the volume of applications for court orders.
Clause 156 enables enforcers to include enhanced consumer measures in undertakings accepted under clause 155. Enforcers must consider those measures to be just, reasonable and proportionate. Clause 157 sets out requirements for enforcers when varying or releasing undertakings that ensure procedural fairness for enforcement subjects. Clause 158 allows for further court proceedings for breaches of undertakings and orders made by the court, giving the court a new power to impose a civil monetary penalty for the breach of an undertaking given to the court.
Clause 159 allows a public designated enforcer to make an application to the court for a consumer protection order if it considers that an undertaking given to it has been breached. If the court is satisfied that that is the case, it may make the requested order, impose a monetary penalty or both. A penalty may be imposed only in cases where the breach was without reasonable excuse.
Clause 160 sets out the types of penalties and the maximum penalty amounts that can be imposed by the court for failure to comply with undertakings given to it or to public designated enforcers. The court has the discretion to impose a fixed amount penalty of up to £150,000 or 5% of global turnover, or a daily rate penalty of up to £15,000 or 5% of global turnover accruing over the days when non-compliance continues, or a combination of both.
Seema Malhotra
Clause 155 provides that where an enforcer could make an application to the court for an enforcement order or an interim enforcement order, it may accept an undertaking from the enforcement subject. Subsection (2) sets out the scope of such an undertaking, which is the infringer or the accessory agreeing not to continue or repeat the infringing practice. The Opposition strongly support the clause as it provides necessary flexibility in the consumer protection regime.
We heard during evidence, particularly from the CMA, that the ability for companies to work co-operatively with enforcers to comply with the new regime is an important part of having the fairest and best possible enforcement regime. Where possible, we should ensure that enforcement is done through co-operation. In evidence to the Committee, the CMA said:
“This is not a regime where we want to operate behind closed doors. The whole design of the regime is a participative approach where we will engage with a broad range of stakeholders, businesses and consumers as we consult on designation, design the conduct requirements, and then enforce against them.”––[Official Report, Digital Markets, Competition and Consumers Public Bill Committee, 13 June 2023; c. 6, Q2.]
As a result, we welcome the clause.
Clause 156 enables an enforcer to include enhanced consumer measures as part of an undertaking from a company, if the enforcer considers them just and reasonable. The enforcer will be obliged to consider the likely benefits and costs of the measures as part of its assessment of their proportionality. In particular, it will consider the costs of the measures themselves to the enforcement subject, as well as the administrative costs. As with clause 149, we welcome clause 156 as a further necessary element of the new consumer protection regime.
Clause 157 sets out the process to be followed when an enforcer proposes to materially vary or release an undertaking that it has previously accepted. Specifically, the process requires the enforcer to give notice to the respondent of its intention to vary or release an undertaking, and to consider any representations made in accordance with the notice. The notice must include the time by which representations may be made to the enforcer. We welcome this clause, which provides clarity for the enforcement regime, the enforcement subject and the consumer in the event of a necessary change. What timescale does the Minister expect the process to work to in most cases, or will it be entirely up to the enforcer? It would help both Parliament and the enforcement bodies to understand the timings envisaged in this process, to be sure that they strike the right balance between being flexible and proportionate and are fair to both the enforcement subject and consumers.
Clause 158 would apply in circumstances where the court makes a consumer protection order against an enforcement subject or a member of its corporate group, or where it has accepted an undertaking. In the event of a failure to comply with the order or undertaking, the clause enables the enforcer that made the original application or any other enforcer to make a further application to the same court. In effect, the court will be able to act in respect of not only non-compliance with an undertaking, but the infringing practice and any related consent or connivance with it by an accessory. The court will be empowered to impose a monetary penalty, regardless of whether the enforcement subject has a reasonable excuse for non-compliance, reflecting the serious nature of breaching an undertaking given to the court. We welcome the clause as a way of providing robust enforcement and punishment mechanisms for failure to comply with the regime, but I would welcome clarification from the Minister on subsection (8). Like clause 150, that subsection provides an enforcement subject who is required to pay a monetary penalty the right to appeal the decision to impose a penalty, its nature or amount on the merits, in relation to their existing appeal rights. I am not sure I completely grasped his previous argument on whether there is a lower appeals standard for those elements of the Bill?
Clause 159, similar to clause 158, sets out the process for when a company fails to comply with an undertaking accepted by the enforcer or the courts. The powers granted to the courts and the process by which the enforcer must apply reflect the provisions in clause 158 and, in the same way, we welcome them. However, the same question is raised about what looks like a lower threshold for appeals than in other parts of the Bill.
Finally, clause 160 sets out further details around the monetary penalties the courts may impose for failures to comply under clauses 158 and 159. We welcome any steps to improve enforcement action through the imposition of monetary penalties and therefore support the clause in principle. Despite that welcome, I must ask the Minister why, when it comes to failure to comply with undertakings, the monetary penalty in the clause, which is £150,000, is less than that in clause 150, where the court can issue penalties of up to £300,000? Similarly, clause 160 refers to 5% of the company’s turnover versus 10% in clause 150. I may not understand some of the Government’s rationale behind those different amounts. What are the reasons for the differences in the thresholds and those lower amounts?
Paul Scully
I picked up three questions. The reason the hon. Lady could not follow my argument about appeals from the first bit was because that was the bit I forgot to answer. I will cover that because they relate to the same thing.
Timescales will be up to the enforcer. None is set, but there is a general duty of expedition on the CMA set by the Bill overall. On appeals as they relate to both sections—
Seema Malhotra
Is the timescale deliberate, or has the question simply not been fully addressed? It is important to ensure clear expectations of the timing of some of these processes.
Paul Scully
I think the reason is the wide range of remediation events that may come before the enforcer to tackle, so they are being given that flexibility, but with an understanding that there is a general rule of expedition on the CMA. That is why we have approached this as we have.
The appeals regime is very different from the bits of the digital markets regime that we talked about earlier. In that case we were talking about a small number of firms with strategic market status, whereas any trader can be subject to this regime. The new monetary penalties that we are introducing are significant. A merits-based appeal is therefore important, because of the range of different-sized companies involved, to ensure fairness and to make sure that the issues involved relate to settled law rather than novel regulations covering digital conduct. Appeals are less likely to be disproportionately lengthy, because the digital market involves a more novel approach, which is why we were worried about extended appeal processes.
As for why thresholds are lower in this part of the Bill than for infringements, infringements, at £300,000, are clearly more serious. What we are talking about here—a breach of undertaking to a court—is still serious, but if someone is stepping down, we believe it is more proportionate to set the threshold at the slightly lower amount of £150,000.
Question put and agreed to.
Clause 155 accordingly ordered to stand part of the Bill.
Clauses 156 to 160 ordered to stand part of the Bill.
Clause 161
Notification requirements: applications
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clauses 161 to 164 restate and update provisions in part 8 of the Enterprise Act 2002 that enable the CMA to perform co-ordination functions across the consumer enforcement landscape. This will help to prevent duplication of enforcement, which imposes an unnecessary burden on traders and wastes public money.
Clause 161 requires enforcers to notify the CMA of their intention to apply for certain court orders. Clause 162 imposes a requirement on enforcers to inform the CMA of any undertakings given to them. Clause 163 imposes a requirement on trading standards departments in England and Wales to notify the CMA if they intend to start proceedings for an offence under an enactment listed in part 1 of schedule 13 to the Bill. Clause 164 empowers UK courts to notify the CMA of relevant convictions and judgments. Bringing convictions and judgments to the attention of the CMA that it might not otherwise be aware of will allow the CMA to consider exercising its enforcement power under this part of the Bill.
Seema Malhotra
It is a pleasure to speak to clause 161 and the other clauses in this group. Under clause 161, as the Minister outlined, enforcers would be able to notify the CMA before applying for an enforcement order, and could only apply for an order 14 days later, or seven days later when applying for an interim order. The powers also allow the CMA to agree to shorten these wait times. The Bill’s explanatory notes explain:
“The policy intent underlying the notification requirement in this clause is for the CMA to be able to perform a coordinating role in relation to enforcement under this Part. The notification requirement will enable the CMA to facilitate the sharing of information between enforcers”,
and that is outlined as mitigating
“the risk of traders facing multiple actions in relation to the same infringing practice”
—a point that we have raised before. We are supportive of the clause and the principle of enabling the enforcement regime and ensuring that it is joined up and efficient in practice. I seek the Minister’s clarification on whether the Government have had discussions with other public enforcers on the provisions in the clause. Is it the case, as he has said before, that the CMA broadly has a co-ordinating role and other powers, and is that carrying on an existing practice and pattern of engagement between those enforcing bodies?
Clause 162 requires enforcers to notify the CMA of the terms of any undertaking given to it under clause 155 and of the identity of the persons giving it. Again, that is important to enable the CMA to fulfil its co-ordination role. As with clause 161, we support the provisions in the clause. Clause 163 introduces provisions requiring local weights and measures authorities, such as local trading standards bodies, to give the CMA notice of its intention to start proceedings for an offence under schedule 13, which we have debated. The authority must also notify the CMA of the outcome of those proceedings.
The policy intent, as explained by the explanatory notes, is to enable the CMA to play its co-ordinated role granted to it in previous clauses. The notes provide a potential example whereby the CMA could inform one authority that another is prosecuting, or that an enforcement order has been granted in respect of the same infringing practice. That is an important part of the co-ordinating role because it demonstrates that it is not just about the CMA being informed, but the CMA ensuring that other relevant enforcers are informed of what other enforcers are doing. That is then a streamlined and efficient process that does not hit the enforcement subject more than once on the same matter.
Clause 164 confers a power on the courts to notify the CMA of convictions and judgments it makes that may not have been bought to its attention. That is a common-sense provision. However, I would welcome further clarification from the Minister specifically on subsection (2). It states that the court
“may make arrangements to bring the… judgment to the attention of the CMA”.
We know the strain and pressures that our court system is under. I ask the Minister why the provision introduces a power as opposed to a duty. If the CMA is to have, as is intended, a co-ordinating role where it is in the picture on all the relevant information related to those enforcement subjects, are there any circumstances in which the Government believe the courts may not need to inform the CMA? In that case, could the Government clarify what those circumstances might be, or where they might consider it not necessary for the CMA to have this information if it considers it to not be relevant to the function it carries out?
We need to remember that this is not just a function being carried out for today; this is where the CMA will be able to have a record of enforcement measures, any breaches and any other information that would be relevant to any considerations in the future. I would be grateful to understand from the Minister why that important and common-sense provision is a power as opposed to a duty.
Paul Scully
The CMA being able to issue permission to bring enforcement procedures is consistent with the position under part 8 of the Enterprise Act 2002. We respect and understand the expertise of all enforcers, including sector regulators, so the CMA is playing a co-ordination role to effectively share information between enforcers, and guarantee that enforcement actions are not duplicated. That will mitigate the risk of a trader facing multiple actions for the same infringement practices. The Government have discussed the provisions with other enforcers, and the CMA already has memorandums of understanding with other enforcers.
On the question of why there is a new reporting requirement in clause 164, actually it is not new. It was already established under part 8 of the Enterprise Act. Again, it ensures that the CMA can consider exercising its enforcement powers where appropriate. It only gives the court the power to notify judgments and convictions to the CMA. It is already there under the Enterprise Act, and that is why we have brought it in here.
Seema Malhotra
Perhaps I could put the point about power versus duty to the Minister again? I understand that many aspects of the Bill have been brought together from other areas of legislation. We have to ask the question within the context of the new regime, which is different to how the situation was prior to the legislation coming in, whether that is worth reviewing. We are talking about a regime in which the CMA is now a co-ordinating body, in which there may be different ways action can be taken and where information from the court could be material. There is not as much of a duty to pass that information on under clause 164, but that could be relevant information that is not there for a matter in the future.
I again draw the Minister’s attention to the massive backlog we have in the courts, and the administrative challenges with some of those procedures. The best intentions may not be a reality, and that may then have consequences for the regime we are trying to set up to be as robust, predictable and efficient as possible.
Paul Scully
I take the hon. Lady’s point, but I would say that it has been directly transposed. It is a power not a duty in the Enterprise Act, and that is where we have worked from.
Neil Coyle
There is an alternative. There was a suggestion from trading standards representatives of a take-down power, which would bypass the longer route that adds an administrative burden and places the onus on businesses and individuals. Can the Minister explain or furnish us in writing as to the rationale for not seeking the take-down power and a more immediate means of addressing a problem?
Paul Scully
I or the relevant Minister will certainly write to the hon. Gentleman on that basis.
Question put and agreed to.
Clause 161 accordingly ordered to stand part of the Bill.
Clauses 162 to 164 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Mike Wood.)