Victims and Prisoners Bill (Seventh sitting)
Thursday 29th 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 29 June 2023 - (29 Jun 2023)
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
Before we begin, I should say that it is still very warm in the room, so people are welcome to take jackets, cardigans or whatever off—I do not want people collapsing on me.
Clause 2
The victims’ code
Sarah Champion (Rotherham) (Lab)
I beg to move amendment 4, in clause 2, page 2, line 25, at end insert—
“(3A) The victims’ code must—
(a) require criminal justice bodies to take all reasonable steps to identify and record any change of name by a perpetrator, and
(b) require criminal justice bodies to inform a relevant victim when a perpetrator changes their name.
(3B) For the purposes of subsection (3A)—
‘perpetrator’ means a person whose conduct or alleged conduct results in another person being a victim as defined by section 1 of this Act;
‘relevant victim’ means a person who becomes a victim as a result of the perpetrator’s conduct.”
This amendment would require criminal justice bodies to monitor name changes of perpetrators and inform victims of any name changes.
The amendment is about sex offenders who are changing their names to avoid detection. As of yesterday, it had been signed by 24 MPs from five different parties, including a former Home Secretary. I hope hon. Members, and particularly the Minister, will take on board the severity of the consequences of this practice, which is happening daily across the country.
For nearly three years, I have been raising this serious safeguarding loophole. Registered sex offenders are changing their names without the knowledge of the police, and I will evidence that as I go on. Unless that loophole is closed, it will continue to make complete nonsense of the schemes on which the public rely to detect offenders: the sex offenders register, the child sex offender disclosure scheme, the domestic violence disclosure scheme and the Disclosure and Barring Service. Of course, a number of these schemes are named for victims and survivors. The domestic violence disclosure scheme is also known as Clare’s law—it enables someone to check whether their new partner has a history of domestic violence offences—and the child sex offender disclosure scheme is also known as Sarah’s law. All these schemes become redundant if the offender changes their name.
It is breaking the law for registered sex offenders to change their name. They are meant to notify the police within three days of doing so. That is very clear, but it relies on a registered sex offender—someone who, by their very nature, looks for vulnerabilities in systems that they can exploit—to do the right, honourable and legal thing and to tell the police that they have changed their name. I say to hon. Members that that is as likely to happen as—well, I don’t know, but something that is very, very unlikely to happen. And the evidence backs that up.
For those three years, I have been raising this issue with Ministers in both the Home Office and the Ministry of Justice. So far, as a consequence of that, there have been two reviews, but it has been decided that they should be internal. I understand the reasons for that—we do not want to give sex offenders a handbook on how to do these things—but nothing has been published about any changes that have happened as a consequence of those reviews, and we should all be deeply concerned about that. If the Minister can tell me today that changes have been put in place, and it is just that we have not been notified, I will be very comfortable with that and very reassured; I will say that the Minister is doing his job by ensuring that these things happen. So I look forward to his reply.
The issue is not just sex offenders changing their name; they are also meant to notify changes of address—changes of personal details. These are referred to as notification requirements. The issue currently is that, when they do not inform the police about changing their name, they literally disappear. I raised this loophole with my former district commander, and he did not even know about it. He said to me, “Sarah, how am I meant to catch someone who has breached their notification requirements, when I don’t know who they are?” That is a very good point. This is not “Luther”—or whatever other detective show it is that we watch—where there is this great, amazing database and all these CCTV images, and it is possible to track all these thousands of people. It just does not work like that. We rely on people doing the right thing, but unfortunately sex offenders rarely do.
In response to my written parliamentary questions, the Home Office confirmed that more than 16,000 offenders were charged with breach of their notification requirements between 2015 and 2020—in that five-year period, 16,000 were charged. But, again, we have to know who they are to be able to charge them, so the true scale will be much bigger. The Safeguarding Alliance freedom of information request to the Crown Prosecution Service found that over 11,500 registered sex offenders were prosecuted for failing to notify changes of information between 2019 and 2022. I need to say, for transparency, that the breach could have been for a change of name or other details—for example, a change of address—but it is still concerning that they are not notifying these things.
Although it is clear that offenders are changing their names and not disclosing their new name to the police, the exact scale remains impossible to capture. New data secured by the BBC a couple of months ago demonstrates the same ongoing pattern, allowing offenders to slip through the cracks. Over 700 registered sex offenders have gone missing in the last three years. It is highly likely that they breached their notification requirements without getting caught, making them an active risk to the public. I am sorry, but there is not the rehabilitation that we need for sex offenders, and they continue their pattern of behaviour. However, only 31 of the 45 police forces responded to the BBC FOIs, so the scale will be much bigger than we know.
Della Wright is an ambassador for the Safeguarding Alliance and a survivor of child sexual abuse. I have worked with Della and the Safeguarding Alliance throughout, on both this amendment and raising the risks, and I am incredibly grateful to them for all the help and support they have given. Della has bravely chosen to speak out and tell her story in support of so many other victims affected by this serious safeguarding loophole. I pay huge credit to her; her tenacious campaigning is what brought this issue to public attention and, initially, to me.
When Della was a child, a man came to live in her home, becoming one of her primary carers and repeatedly sexually abusing her. Years later, when Della reported the abuse, her abuser was already known to the police; he had committed many further sexual offences against many more children. During that time, Della was made aware that his name had changed. He changed his name at least five times, enabling him to relocate under the radar and to evade justice.
When Della’s case was finally brought to court, her abuser had once again changed his name—this was between being charged and appearing in court for the plea hearing. That is not uncommon, and it slows down the whole court process, because the court papers need to be issued in the new name. That places additional distress on the victim and makes a complete mockery of the court justice system. Just think how tightly packed the court system is; on the day, the court will have to pull the case and try to find another spot, which inevitably puts trauma on the victim. The victim will have been working for months with their independent domestic violence adviser or independent sexual violence adviser, friends and family to get them to a point where they can be a witness, and then, on the day, the case gets dropped because someone can change their name.
At this point, let me just pause and say that, by the time I finish this speech, any hon. Members here could have changed their name legally. It can be done online for free. There is an enrolled and an unenrolled deed poll. I think the enrolled is £45, and it then gets published. I completely understand why a victim of domestic violence or stalking might not want to go on that. There is also the unenrolled, where it costs on average about £10—but it can be done for free—to change a name.
Sadly, Della’s case is far from unique, and I imagine that a number of Members here will have had survivors in their constituency come to them. There are survivors who have discovered that their abusers have reoffended, but it is discovered that they are using a different name only once they have been caught. My amendment would require criminal justice agencies to actively monitor name changes by perpetrators, including before their trial, so that victims can remain informed. That could prevent a lot of trauma for victims, help to reduce the number of offenders going missing and help us to put in the associated safeguarding.
I thank the Clerks for their help in drafting this amendment. Up to this point, I have focused on the people who are already on the registered sex offenders list; they are a known risk to us. However, police forces around the country have alerted me to the common practice of offenders of changing their name at the point of, or just before, being charged. They do that to keep their birth name clean so that if they are charged or convicted under the new name, at the end of the process they can revert to their original name and have a clean record. I did not realise that that was a common thing. There is also the issue of people with dual nationality who do that. If they hand over their passport as a condition of pre-charge bail, they will still have their original passport in their original name. Such a practice is a real, live risk.
When someone is investigated before they are charged, we have pre-charge bail conditions. When someone is accused of such grievous offences, which they are likely to continue, I do not think it is in any way a violation of their human rights—or whatever the argument is that is going to be put—if one of those pre-charge bail conditions is that they cannot change their name. Obviously, if the investigation goes forward and the charges are dropped, those conditions would be dropped. Once that person is off the sex offenders register, that requirement would be dropped. Given the gravity of the offences that they are accused of and the likelihood of their perpetuating them, that is something we should take seriously to protect everyone.
I have spoken a lot about sex offenders, but the amendment could, at the Minister’s discretion, cover other offenders too. One notable example I am sure everybody is familiar with is Colin Pitchfork—a rapist and murderer who changed his name. I raise this example to show that, although we might be familiar with a case, we might not know about someone changing their name. When we look at local papers, it is quite common to see “aka” and that people are changing their names on a regular basis.
Families deserve to know if their relative’s murderer is living under a new name, because that at least guards against the trauma of relatives not knowing that that person has been released, for example. Sadly, in the cases I know, Facebook seems to be the most common way that people find out about this.
I think the reason that Ministers have not acted on this issue to date is not that they do not understand the risks—when I have raised it with them, they have all understood the risks—but because it goes into the “too difficult” drawer. I get that; this is messy, and there are likely to be some associated costs. So I have tried to find a solution for the Minister.
Elliot Colburn (Carshalton and Wallington) (Con)
The hon. Lady is making an excellent speech on an incredibly serious matter, which other hon. Members have raised. She supported the ten-minute rule Bill introduced by my hon. Friend the Member for Bolsover (Mark Fletcher), and the matter was also raised on Second Reading by my right hon. Friend the Member for North East Hampshire (Mr Jayawardena), so I know that colleagues feel very strongly about it. The hon. Lady mentioned that it is put into the “too difficult” drawer”. May I urge the Minister through her to ensure that that is not the case? Although this issue might be difficult, that does not mean that we should not tackle it.
Sarah Champion
I very much hope that the Minister has heard that. This is an issue that, when we start looking for it, we start finding it. The hon. Member for Bolsover (Mark Fletcher) came to it after a constituency case, and we have been working together to try to find a solution. I am sure that all of us will have examples; we just do not necessarily know what is going on at the time.
Experian and RELX believe that their business model uses enough data to track offenders if the police ask them to, and the police are currently asking them to on other areas of concern. For example, if the offender created a new mobile phone account or started registering bills to a new name, Experian and RELX could then inform the police of that pattern of behaviour. There are solutions to this problem if we have the will to implement them. More than that, we already have a solution in place: the College of Policing’s guidance states that police can take pre-emptive action where an offender is likely to change their identity or leave the country—and I suggest to the Minister that almost every sex offender is likely to change their name if they think they can get away with it.
Janet Daby (Lewisham East) (Lab)
I really thank my hon. Friend for raising the issue, because she is highlighting things that I think many hon. Members are unaware of, as indeed are many organisations that work with vulnerable people and children. What she says is so serious that the Minister cannot fail to agree to take it on board.
Sarah Champion
I am a Back-Bench MP, yet I know just from my own digging that this is about tens of thousands of people. My hon. Friend is absolutely right: organisations that work with children and vulnerable people think that they are doing the right safeguarding things by getting a DBS check.
Sarah Champion
They are being deceived, and we are all being deceived. The confidence that a DBS check should give us is not there: it does not exist while this loophole exists.
Lia Nici (Great Grimsby) (Con)
The hon. Lady is making a fantastic point. Does she agree that we should not restrict this to driving licences or passports? It should include citizenship cards—in fact, perhaps we should use the term “any form of identification that is used”.
Sarah Champion
The hon. Lady makes a really good point. A number of people have come to me and said that the social security number is the way to go, because that number follows us through our life. It seems a really sensible way forward. I do not have the resources to look into it and check, but the Minister might be able to do some research. I genuinely do not know whether the Government’s internal reviews have flagged this as a logical way forward. It seems sensible to me, but they have not shared that information with us at all. That is what I am saying: we might already have those trackers on us if necessary, but the Home Office has not told us what it has done with the internal reviews. At the moment I am going on the knowledge that I have, and the gaps in that knowledge.
One thing I do know is that police guidance gives the police the right to put markers on file for passport and driving licence applications. However, it also states:
“To avoid unnecessary or high volumes of requests to these agencies, enquiries should be limited”.
I say to the Minister that the case of a registered sex offender is an example where the police should be given free rein to put those markers on and to follow up any cases in which files are flagged. I get it that there is a cost when a police officer looks into flagged cases, but where a registered sex offender applies for a passport or driving licence in a new name, enabling them to get a clean DBS check, the risk is so great that I think it deserves an hour or so of a police officer’s time and the associated costs.
Janet Daby
I am sitting here, listening intently to every word my hon. Friend is saying, and getting more annoyed. I would perceive not dealing with this as negligence.
Sarah Champion
I believe that is the right word. Surely a Government’s duty is to safeguard citizens; to know the scale of this problem and that there is a solution but not to act is to be negligent. I withhold that allegation from the Minister, because I know he is a good man who wants to do the right thing.
I was first contacted about this three years ago by a journalist. It is not that I thought they were having a laugh; I thought they were wrong—that this could not possibly be true. Then I looked into it. As my hon. Friend knows, I get obsessed about certain things, and I am obsessed about this because it worries me. While this loophole remains, every system we have in place to safeguard the vulnerable is undermined. I believe that this form of electronic marking must be mandatory for all registered sex offenders. That would help criminal justice bodies to keep track of offenders who were trying to change their name secretly, rather than having to rely on offenders doing the right thing and notifying them.
The hon. Member for Bolsover argued that registered sex offenders should be banned from changing their name. I have sympathy with that view and want the Minister to reflect long and hard on it. Sentencing allows other rights to be withdrawn, so that may well be something that the Minister should be looking into.
And that, Minister, is that. I hope that I have made a convincing argument. I know that the Minister is aware of this issue, and I hope he is able to find some way to work with me and others to close this loophole. It cannot go on any longer.
Siobhan Baillie (Stroud) (Con)
I woke up this morning and told myself not to talk too much today, but the hon. Lady has inspired me to contribute. I have changed a number of people’s names in my career. As a junior lawyer 20 years ago, I used to get calls from reception saying, “Will you come down and do a deed poll for George Michael?” George Michael had previously been Jon Bon Jovi; Pamela Anderson used to turn up, too. The public do not understand how easy it is.
I decided to speak because we have officials in the room, and I want the Ministry of Justice to have a word with gov.uk. We can all see the seriousness of the situation and the problems it causes with DBS checks and things like that, but at the moment gov.uk sets out how simple it is to change one’s name. At the end—the very end—of the page, under the headline, “If you’re a registered offender”, it says:
“You must tell the police you’ve changed your name within 3 days if you’re a registered: sex offender”
or a violent offender. It tells people that they must go to the police station to do so. Then, after an exclamation mark, which shows that this is serious, it says:
“It’s a criminal offence if you do not tell the police you’ve changed your name.”
The headings beneath that are, “Next”, followed by “Make your own deed poll”.
I cannot overemphasise how serious this is and why it is important that people are honest about this process. People will rarely choose the enrolled deed poll option, because it costs an extra 42 quid. While we are debating what people can or cannot do, will someone please have a word with gov.uk?
Anna McMorrin (Cardiff North) (Lab)
I pay tribute to my hon. Friend the Member for Rotherham—not only for her powerful speech today, but for the huge amount of work that she has done on this very, very important issue. All of us here today can hear how absolutely important it is that the Government act on this issue. We fully support her in her endeavours and urge the Minister to respond positively and to find a way through. Registered sex offenders cannot be allowed to change their names without informing the police, and without the police then being able to take action. Leaving that loophole open calls into question the integrity of all the schemes that the public rely on. We all think that the public are safe through such mechanisms, as my hon. Friend set out.
I am stumped for words by what my hon. Friend has called out, some of which is deeply shocking. The child sex offender disclosure scheme, the domestic violence disclosure scheme, and the Disclosure and Barring Service all rely on having the correct name. If they do not have that, how do they go about safeguarding the many survivors and victims out there? My hon. Friend pointed out that an offender can easily change their name from anywhere, even prison, and there is no joined-up approach between the statutory and other agencies. I understand from the data that she collected that the Home Office has confirmed that more than 16,000 offenders were charged with a breach of their notification requirements just in the five years between 2015 and 2020.
The BBC discovered that 700 registered sex offenders have gone missing in the last three years alone, so it is highly likely that they breached their notification requirements without getting caught. Families and survivors deserve to know if a perpetrator has changed their name. Relying on a system that depends on registered offenders self-reporting changes in their information is dangerous, and an enormous risk to public safety. I hope that the Minister will respond with the positive message that he will go back to his Department and work with colleagues to change that.
The Minister of State, Ministry of Justice (Edward Argar)
It is a pleasure to serve under your chairmanship again, Ms Elliott. I am grateful to the hon. Member for Rotherham for her amendment and the debate that it has provoked, and to my hon. Friend the Member for Bolsover (Mark Fletcher) for his campaigning on this issue and his ten-minute rule Bill. I congratulate the hon. Lady on her dexterity in bringing the matter into the scope of the Bill, but above all I recognise the serious concern that certain categories of offender, such as sex offenders, might change their name to evade monitoring, which would clearly not be right. I pay tribute to Della and the Safeguarding Alliance for their work; I hope to meet them in the coming weeks to discuss the matter.
The UK already has some of the toughest powers in the world to deal with sex offenders and, more broadly, other offenders who pose a risk, but we are committed to ensuring that the system is as robust as it can be. The majority of offenders released from prison are subject to strict licence conditions to manage the risk of harm that they pose. In July 2022, a new standard licence condition was introduced that requires offenders to notify their probation practitioner if they change their name. Failure to disclose it is a breach of licence and could result in recall to custody.
However, as the hon. Lady ably illustrated in her remarks, that relies on those individuals doing the right thing. Given the nature of the offences and of the individuals concerned, I suggest that that poses a significant level of challenge. I will ask my officials to take away the point that my hon. Friend the Member for Stroud raised about gov.uk, which sits with the Cabinet Office, and ask that it be looked into.
As right hon. and hon. Members will be aware, there are multi-agency public protection arrangements designed to protect the public, including victims of crime, from serious harm by sexual offenders, violent offenders, terrorists and other dangerous offenders. They require the local criminal justice agencies and other bodies dealing with offenders to work in partnership. Measures are also in place that legally require registered sex offenders to inform the police of any name change; where a registered sex offender poses a specific risk in relation to name changes, the courts can restrict their ability to change their name, although again the same challenge exists.
Disclosure of any name change to victims is currently decided on a case-by-case basis. There will be a careful risk assessment process to consider whether disclosure of a name change is necessary for the protection of a victim, or whether it could provoke threats to the family of the offender or others, which could put them at risk. The process does need to be managed on a case-by-case basis. I do, however, fully understand the intention behind the ten-minute rule Bill, the amendment tabled by the hon. Member for Rotherham, and indeed the strength of feeling in the Committee today—and which I think we saw through attendance in the House when the ten-minute rule Bill was debated—to ensure that there are no loopholes that allow sex offenders to change their names unregistered.
Sarah Champion
I know that the Minister takes his brief incredibly seriously and recognises the severity of the consequences as things currently stand. I think he has also heard the degree of support within this room—and, I am quite sure, within the House—to do something quite dramatic to close this loophole. I will therefore gladly accept his offer, but I really need to see something different on the face of the Bill at a later stage, because we have to do something.
Edward Argar
Because of the nature of the parliamentary Session and the carry-over, we will have a period between this Bill’s leaving Committee and its returning to the Floor of the House on Report, which I suspect will happen around Christmas time, given uncertainty over the timing of the King’s Speech. I am happy to use that period to work with the hon. Lady to see whether we can find a way forward ahead of Report stage.
Sarah Champion
I give way to my hon. Friend the Member for Birmingham, Yardley.
Jess Phillips (Birmingham, Yardley) (Lab)
I feel certain that between the heads of the people in this Committee Room, some progress on this issue could no doubt be made. The area where I have concerns—not only because of my own brief—is that Home Office Ministers need to be brought on board, because this relates to Home Office policy. Will my hon. Friend seek from the Minister a commitment that the Home Office might take part in some of this work?
Sarah Champion
The Minister can address sentences and conditions, but we absolutely need the Home Office on board.
Sarah Champion
With the Minister’s nodded confirmation that that will happen, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Champion
I beg to move amendment 53, in clause 2, page 2, line 25, at end insert—
“(3A) The victims’ code must make provision about pre-trial therapy for victims, including—
(a) a requirement that all criminal justice agencies inform victims of their right to pre-trial therapy, and
(b) a requirement that the Crown Prosecution Service annually review their pre-trial therapy guidance and its implementation.”
This amendment would include in the victims’ code a requirement to inform all victims of their right to access pre-trial therapy, and require the CPS to annually review the implementation of pre-trial therapy guidance.
The amendment is about access to pre-trial therapy, around which there are currently so many problems—particularly for victims and survivors of sexual offences. My former constituent contacted me a couple of years ago after she raised a complaint with the police regarding how she was treated throughout the criminal justice system. In 2011 to 2012, she reported her child abuse to South Yorkshire police. In her email to me, she wrote:
“After I had completed my video evidence, the officers told me it would complicate the trial if I sought any mental health support and to wait until it was over. That took 18 months, 18 of the most difficult months when I was emotionally abused and outcast by family for reporting the abuse. I had nowhere to turn, needed to see a psychologist for support and I was utterly traumatized. Today, I suffer from post-traumatic stress from that trial and feel that was related to being denied my human right of access to mental health support. If the police denied anyone cancer treatment during court proceedings, there would be uproar. We need to see mental health in the same way.”
She goes on:
“Despite it not being illegal to see a counsellor, it appears to be more convenient for the police if one is not seen. When someone in such an immense position of trust indicates it would be better not to see a counsellor, the victim is so vulnerable and so strongly lead by the police that I fear that it will continue, even if off record.”
Jess Phillips
I agree with everything my hon. Friend is saying. The week before last, I was in court with a victim of child sexual violence—she is no longer a child; she is now 22—who had waited seven years for her trial. As in the case that my hon. Friend has highlighted, she was not allowed to access mental health support for seven years, from the ages of 13 to 22.
Sarah Champion
Sadly, this is standard practice; systemic change is needed. Receiving counselling or mental health support should not be seen to make a victim an unreliable witness, which is what it feels as though the police believe. That culture within the criminal justice agencies perpetuates victim blaming. I hope that the threshold will be raised, so that there is a presumption against disclosure of mental health records as evidence in court. I think we will come to that in a later amendment.
I am relieved that the Minister is trying to tackle the use of counselling notes through new clause 4, which we will debate later in our proceedings, but it is vital that we also ensure that access to pre-trial therapy is also on the face of the Bill. My amendment is essential, as it would require the Crown Prosecution Service to review the implementation of its pre-trial therapy guidance. If the guidance is not effectively rolled out among prosecutors and officers, they should respond accordingly.
I think the current situation is a fundamental misunderstanding by the police, who are trying to do the right thing—get a prosecution—by trying to prevent victims’ counselling notes or victims being seen to be coached in any way before the trial, so that that cannot be used against them and unravel the case. The Minister is aware that that is not the case; people are able to access such provision. Former Secretaries of State and the CPS have confirmed to me that victims can access pre-trial therapy, but unless it is on the face of the Bill and in the victims code that that is their right, the myth perpetuates and it is having a very damaging effect on victims.
Anna McMorrin
I support and endorse much of what my hon. Friend has stated on access to mental health services. I speak to many victims and survivors each week who are so traumatised by the current process, given the state that the justice system is in and the delays that they are facing—week upon week, month upon month, year upon year, waiting for their day in court, but with no access to support, going through the trauma day after day after day. I add my support to the essence of the points made by my hon. Friend.
Janet Daby
I, too, endorse the proposals brought forward by my hon. Friend the Member for Rotherham. In 2021, the former Victims’ Commissioner stated that 43% of rape victims pulled out of cases. I am sure that my hon. Friend agrees that trials can be especially difficult for victims, and that therapy guidance for victims pre-trial must be of a high standard and advertised to victims if the Government are to tackle worrying attrition rates in rape cases. I look forward to the Minister’s response.
Edward Argar
Amendment 53 would place in the victims code a requirement to inform victims of their right to access pre-trial therapy, and require the CPS to annually review the implementation of its pre-trial therapy guidance. I am grateful to the hon. Member for Rotherham for provoking this debate by tabling the amendment.
It is vital that victims get the support they need to cope and recover from the impact of crime, and pre-trial therapy is a hugely important part of that. The hon. Member for Lewisham East commented on the number of complainants and victims who withdraw from a case—the technical phrase is victim attrition; it is not the best phrase in the world—or do not see it through. A variety of reasons and a range of factors sit behind that. Lack of therapeutic support may not be the only one, but it is undoubtedly one of them. I am aware of instances where victims have mistakenly been advised not to seek the therapeutic support they need and to which they are entitled while they are involved in a criminal justice process. That should not happen, and I am again grateful to the hon. Member for Rotherham for raising that.
The first part of the amendment would require the victims code to include a specific requirement on all criminal justice agencies to inform victims of a right to pre-trial therapy. I hope I can reassure the hon. Lady to a degree that there are already many provisions in the Bill and, indeed, beyond it to make victims aware of how they can access pre-trial therapy. What came through in her remarks is that the challenge is not the obligations in the Bill or other legislation, but how they are operationalised and pull through into the experiences people have when interacting with the system.
The Bill already includes the code principle that victims should be able to access services that support them, including specialist services. The code itself includes the detail that those services can include pre-trial therapy and counselling, and we are introducing a new duty in the Bill on certain criminal justice agencies, including the police and the CPS, to raise awareness of the code and the rights within it. None the less, I am open to considering how we can make information relating to pre-trial therapy clearer in the new victims code, as it is critical that practitioners do not, even inadvertently, deter victims from seeking the support they need.
As hon. Members will be aware, we have committed to consult on an updated victims code after the passage of the Bill, and as I have said on previous occasions, I am happy to work with the hon. Member for Rotherham and others on the Committee on the new code. We have put out an indicative draft, which is almost a pre-consultation consultation, but that allows the flexibility for hon. Members and others to reflect back their thoughts on it.
Jess Phillips
As a point that may be interesting as we try to get this right established is that when I ran a rape crisis counselling service, this was not particularly an issue. Something has happened—something chilling—in the last eight years that means it is now a pressing issue. It was never the case, and rape crisis counsellors would always just make very sparing notes. Something has gone wrong, and in trying to move forward we should do a piece of work on where it started to go wrong.
Edward Argar
The hon. Lady brings to the House and this Committee a huge amount of experience from having worked in this sector and seen changes to it, and an interest that she has maintained since being elected to the House—at the same time as I was—and through her shadow ministerial roles. She is right; it is important that, if things have changed, we seek to understand the genesis of and the reasons for that change, and how to address it.
Sir Oliver Heald (North East Hertfordshire) (Con)
The point being made about delay is important. The pandemic was of course a very difficult period for the courts. Is the Minister able to give us any reassurance that the courts will be able to hear these cases more quickly? I suspect one of the reasons for this situation is that, if there is a very long period between the incident and the time of trial and there are counselling notes over an extended period, there is a temptation to see if there is an element of coaching—the hon. Member for Rotherham made that point—or even inconsistent statements, as a period of time has lapsed.
Edward Argar
My right hon. and learned Friend is right to highlight the importance of this point. On the big picture of court backlogs, it is important to remember that 90% of cases are dealt with in magistrates courts swiftly. It is the serious cases, such as those we are discussing, that are sent to the Crown court, and that is where we do see delays. There has been investment in Nightingale courtrooms—a new sort of super-court, if I can put it that way—just up the road from my constituency, in Loughborough. We are implementing a range of measures to tackle the backlog. He is absolutely right that the timeliness of a case being heard is a key factor in a victim sticking with the process and being able to give their best evidence. He is also right that the longer the delay, the greater the temptation to seek more “evidence”, more documents, over that period. Timeliness is hugely important.
We will also continue to take action to ensure that victims are not put off from seeking support due to fear that their therapy notes may be unnecessarily accessed as part of a criminal investigation, including through the proposed Government amendment that was alluded to, which will place a duty on police to request third-party materials that may include pre-trial therapy notes only when necessary and proportionate to the investigation.
Sarah Champion
I want to explore the Minister’s phrase about victims giving their “best evidence” in court. I have tried to get to the bottom of what is going on in the minds of the police. I think they see victims of crime as witnesses, rather than victims in their own right. They are trying to protect the evidence, effectively, to get the conviction that they want. The police need to understand that a well-supported victim is able to give the best evidence, because they have confidence and clarity of mind, and the support of knowing that there is someone there who has got their back. The reason I am arguing for a provision in the Bill—perhaps under an expansion of what specialist services means; I am happy if it is in the guidance—is to make the police aware that there is no chilling effect from a victim having pre-trial therapy.
Edward Argar
The hon. Lady makes an important point. I think progress is being made. In saying that, I point to, for example, the work being done through Operation Soteria. I pay tribute to the work of Chief Constable Sarah Crew and her officers in Avon and Somerset, and there are others working on these issues around the country, trying to change that understanding. There is of course more to do, which is why the hon. Lady has brought forward the amendment, but I see some encouraging signs, particularly in the work that Sarah has been leading.
The second part of the amendment would place a requirement on the Crown Prosecution Service to annually review the implementation of pre-trial therapy guidance. I reassure the hon. Lady that the Crown Prosecution Service already has a robust compliance and assurance regime across all its areas, which includes specific questions on consideration of the privacy rights of victims. The CPS is also a key part of Operation Soteria. Next month, the CPS will relaunch its individual quality assessment guidance, which is its assurance tool to make sure it is delivering high-quality casework. That will include additional information on consideration of a victim’s privacy rights during an investigation, which I hope will help bring consistency across the CPS.
I urge the hon. Lady not to press the amendment to a Division, as I do not believe that including this measure in the Bill is necessarily the best approach. As I have said a number of times, I am happy to work with her in respect of the code, the consultation and how we might draw this out a bit more clearly, but also on an operational basis more broadly. I suspect that we may be spending a lot of time together over the summer and coming months, given the number of commitments I have made to work with her. There may be ways that we can also work with colleagues at the Home Office, the police and others to make sure that what is already there is fully understood and operationalised.
Sarah Champion
Given those assurances, I will withdraw the amendment. I agree with the Minister that it is about the first or second community officer someone speaks to—that seems to be where the misunderstanding is, so we have to find a way to filter the message down down. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Anna McMorrin
I beg to move amendment 64, in clause 2, page 2, line 25, at end insert—
“(3A) The victims’ code must provide that victims must be informed of their rights under section 63 (Special measures in family proceedings: victims of domestic abuse) of the Domestic Abuse Act 2021.”
I am incredibly grateful to be here today to discuss what I believe is a national scandal: what is going on in family courts across the country. Before speaking to the amendment, I want to set out the context. Cases of domestic abuse, rape and child sexual abuse are still routinely dismissed or minimised—so much so that support services are now dissuading victims from disclosing abuse or child sexual abuse for fear of accusations of parental alienation, which will result in children being removed from a safe parent.
What is clear is that family courts are continuing to breed a culture that promotes contact with those who have been accused of abuse. Survivors of domestic or coercive abuse are facing counter-allegations of parental alienation as a stock response to their own abuse allegations, which is shocking. Courts have continued to instruct unregulated experts who are connected with the parental alienation lobby and who are known for dismissing domestic abuse victims. As a result, unsafe decisions are being made, with sometimes catastrophic consequences for child contact. We are now hearing of more and more cases of protective parents—most commonly the mother—losing all access to their children, who are instead placed with the abusive parent. Just last week at the UN Human Rights Council, Reem Alsalem, the UN special rapporteur on violence against women and girls, said:
“The tendency of family courts to dismiss the history of domestic violence and abuse in custody cases, especially where mothers and/or children have brought forward credible allegations of domestic abuse, including coercive control, physical or sexual abuse, is unacceptable.”
The Government’s harm panel report in 2020 was meant to address many of these issues, but progress has been slow. It is three years this week since that report was published, and the situation is now critical. Many vulnerable victims and children are being dragged by their perpetrator through the family courts and a system that has no understanding of the abuse that a victim and their children have faced and continue to face.
Ellie Reeves (Lewisham West and Penge) (Lab)
My hon. Friend is making a really powerful speech. Does she agree that many of us have seen cases in our surgeries where mothers who have escaped domestic abuse tell us that they have been re-traumatised by the family courts, that abusive ex-partners often use the process in the family courts as a further form of abuse and control, and that the children are weaponised?
Anna McMorrin
I absolutely agree, and that gets to the core of the point I am making. Domestic abuse is the central issue in private law children’s proceedings in family courts, and evidence shows that allegations of domestic abuse are present in at least half of all such proceedings. A study by the Children and Family Court Advisory and Support Service published in 2021 found domestic abuse allegations in 62% of cases and that special measures in those cases were not being upheld.
Earlier this week, I met Dr Charlotte Proudman, a barrister who specialises in family law at Goldsmith Chambers. She has worked with many survivors and victims of domestic abuse, taking their cases to appeal and being successful when she does so, which shows that there is a problem. Her dedication to those mothers has brought hope to many women and survivors of domestic abuse, but it should not take going to appeal or having a barrister take a case to appeal, or overturning those cases, to expose the problems in the family courts.
The rights of victims of domestic abuse under section 63 of the Domestic Abuse Act 2021 are not implemented consistently or, even worse, they are not informed of those rights at any point in the process. Many of the survivors report suffering, revictimisation and retraumatisation caused by the family justice system. It is clear that the special measures introduced in the 2021 Act have made no difference whatsoever to victims’ experiences on the ground. There is an opportunity in this Bill to change that and to strengthen the victims code to place a duty on agencies to inform domestic abuse survivors of their rights under section 63, “Special measures in family proceedings: victims of domestic abuse” of the 2021 Act. I hope the Minister agrees that we should put this in the code to overturn what is happening now.
Sarah Champion
Does my hon. Friend agree that the nub of the problem is the total lack of transparency—I would go so far as to say the secrecy—around family courts? We are unable to do our job of scrutinising whether rights are offered or special measures are given, so it is only when an acute case gets into the public domain that we find out about these failings, so I support her amendment.
Anna McMorrin
That is absolutely part of the problem: we cannot see what is going on here, and that is why it is important that we are here discussing this issue. This is a vital debate, and I know many survivors and victims will be looking on keenly at our debate and how the Minister responds. They will take hope from the fact that we can do something about this absolute tragedy and travesty happening in our family court system to survivors and children.
Provision for special measures in family proceedings is made in part 3A of the Family Procedure Rules 2010, supported by practice direction 3AA. Those rules provide that victims of domestic abuse and other parties or witnesses are eligible for special measures in their proceedings if the court is satisfied that the quality of their evidence or their ability to participate in the proceedings is likely to be diminished due to their vulnerability. The court needs to consider a wide range of matters to assess whether a victim is vulnerable before determining whether any special measures are necessary to assist them.
The Family Procedure Rules 2010 state there is a duty on the court to identify whether a party is vulnerable by virtue of being a complainant or victim and if so, what participation directions they need in order to ensure they can effectively participate in proceedings and give their best evidence. The Domestic Abuse Act 2021 assists by making it clear—in statute, which is important—that that is a requirement in the family courts. If the court fails to address the issue of special measures, the court has failed in its duties and the judgment is likely to be successfully appealed. It is a requirement under the rules to hold a ground rules hearing in each case to determine what special measures are required. That is simply not happening in family courts at all.
Jess Phillips
To pinpoint the devastation so that we can get the point across, the harm panel review largely came out of a report written by Women’s Aid, which showed that, over a 10-year period, the murders of 19 children had followed family court decisions to place them with an abusive father.
Anna McMorrin
I thank my hon. Friend for making that point. Evidence from Women’s Aid still shows that survivors are disbelieved. Children have continued to be forced into unsafe contact arrangements with abusive parents, and perpetrators have continued to use child arrangement proceedings as a form of post-separation abuse. It is vital that the right support is signposted and that survivors are able to access that support. Parental alienation allegations in the family courts mean that many survivors of domestic abuse and coercive control are themselves made out to be the perpetrator. That has to stop.
Sarah Champion
My hon. Friend the Member for Chesterfield raised a case where social services had parental responsibility for a baby whose parents were horrifically abusing it. The judge in the family court overruled the recommendation of the social services team to have a six-month integration period. The baby was put back with the family within six weeks, and it was dead in a couple of days. In his reply, will the Minister talk about access to the victims code for someone who is not themselves a victim but for someone with responsibility for a child?
Anna McMorrin
My hon. Friend makes an excellent point. It is really important that all those wrapped up in the system understand their rights and that we strengthen the Bill with this amendment, so that survivors, victims and guardians get the support they need.
The United Nations recently published the report of the special rapporteur on violence against women and girls, its causes and consequences. The report addresses the link between custody cases, violence against women and violence against children, with a focus on the abuse of the term “parental alienation” and similar pseudo-concepts. Evidence showed a tendency to dismiss the history of domestic violence and abuse in custody cases. That extends to cases where mothers or children themselves have brought forward credible allegations of physical or sexual abuse.
The report also found that family courts had tended to judge such allegations as deliberate efforts by mothers to manipulate their children and separate them from their fathers. That supposed effort by a parent alleging abuse is often termed “parental alienation”. Research and submissions received by the UN, however, demonstrated that the perpetrators of domestic violence misused family law proceedings to continue to perpetrate violence against their victims, resulting in secondary traumatisation, which then goes on and on and on. Parental alienation is used deliberately as a tactic.
One study cited in the report found that parental alienation was mentioned in all 20 cases studied in the context of coercive control and child sexual abuse. Even when it was not explicitly used, the underlying ideas were still present. The use of parental alienation is highly gendered and frequently used against mothers. Common to the gendered use of parental alienation is the depiction of mothers as vengeful and delusional by their partners, courts and expert witnesses. Mothers who oppose or seek to restrict contact, or who raise concerns, are widely regarded by evaluators as obstructive and malicious, reflecting the pervasive pattern of blaming the mother.
The Chair
The hon. Member is making a speech with some harrowing detail. However, I would draw her attention to what the amendment says. The hon. Member has to relate what she is saying to the amendment.
Anna McMorrin
The reason I am illustrating this point is that it is relevant in setting out the context of why we need the amendment. It relates to getting special measures in a court case. Without access to special measures, all of the abuse is perpetuated, including through the parental alienation tactics that are currently being used.
The use of parental alienation becomes a self-fulfilling prophecy. As soon as parents are judged as being alienating, implacable or failing to listen, their action or inaction can be prejudiced. As a result, allegations of domestic violence remain sidelined as a one-off occurrence—they are not taken into account during proceedings. That reduces domestic violence to a minor conflict and stigmatises and pathologises women and children. How can that be best for the child?
I have spoken to countless women—all survivors of domestic abuse—who have been retraumatised by the family courts. All their cases read the same: the mother is criminalised, the children are ignored and the father is excused. One mother told me about her harrowing experiences—she is now being treated for post-traumatic stress disorder. The daughter disclosed that her father sexually abused her and told the guardian assigned to the case that she did not want to see him. The guardian dismissed the claim, and instead a read a book to the daughter that stated, “Mummy made it all up. Daddy hadn’t done anything wrong.” That same guardian said that she would only support the mother’s claim for full custody if the mother positively encouraged her daughter to have a relationship with her father. In the mother’s own words:
“My daughter was not heard, and not listened to. We have been forced through more trauma and we don’t know what the future might hold.”
The same practice was also cited by the UN report. Women are being advised by their legal representatives not to raise allegations of domestic violence as it would work against them.
Sir Oliver Heald
Is the amendment not supposed to be about providing victims with information about their rights? The hon. Lady seems to be criticising the decisions of judges in cases that they have heard. It would be helpful to know why she feels that special measures would help in these situations, and what sort. Is she talking about screens? What exactly is she asking for?
The Chair
Order. I have given the hon. Lady a lot of leeway, but in her concluding remarks she really needs to focus on the amendment.
Anna McMorrin
Thank you, Ms Elliott—I appreciate that. In response to the right hon. and learned Gentleman, I have one last example to illustrate why these special measures—
Anna McMorrin
A special measure could be anything; it could be a screen. It is about understanding and access to victim support. It is anything that will help a survivor of domestic or coercive abuse to understand the reason why the perpetrator is dragging them back to court, time and time again.
Sir Oliver Heald
I was the Minister when we discussed bringing in special measures. We were looking to make the experience a better one for these witnesses, with screens and elements of that sort. Is the hon. Lady suggesting a particular special measure? What is it that she wants?
Anna McMorrin
The amendment would ensure that those in family courts, and all those agencies, have a duty to signpost victims to support and special measures, so that everybody around family courts should be aware of what is happening and of the abuse that is being perpetuated. The special measures outlined in the Domestic Abuse Act 2021 must be accessed: that is a duty on family courts, but it is just not happening. The amendment would mean that, under the victims code, agencies must ensure that those special measures are introduced.
You have been very good, Ms Elliott, in allowing me to set out the context—I have talked about parental alienation and given examples of horrific abuse—but very little has been done in this House to set out the problems in family courts. It is absolutely essential to build that case and show what is happening to the thousands of women and their families who are the victims of such abuse. As we have heard, family courts operate behind closed doors. There is very little resource, and very little is happening to bring together the agencies and court processes and ensure that special measures are in place.
Siobhan Baillie
Does the hon. Lady recognise that Sir Andrew McFarlane, the Head of Family Justice, is already trying to open up family courts and is doing an awful lot on transparency? I think quite a lot of positives will come out of that.
Anna McMorrin
An awful lot of organisations and people working in this area, including the Head of Family Justice, are bringing to light what is happening, so I absolutely agree with the hon. Lady.
Jess Phillips
On the point about exactly how we will ensure victims are protected within the family court system, I am afraid to say that one of the issues we have faced in the past three years is that when McFarlane says something, the Government say, “No, it’s McFarlane’s responsibility,” then McFarlane says, “It’s the Government’s responsibility,” and on we go. Does my hon. Friend agree that the amendment is about ensuring that some action is taken in this building?
Anna McMorrin
My hon. Friend is absolutely right. We need to make sure that something is happening. That is why this amendment and the debate around it are so vital. The amendment will not solve everything in family courts—it is the tip of the iceberg—but we need to make sure that at the very least we have something in this Victims and Prisoners Bill to safeguard the mothers and children who are subjected to continued allegations and abuse through the family court system. That is not for want of trying by the very many organisations that are working hard.
To illustrate why we tabled the amendment, I will quote from a message that was sent to a mother I spoke to. Her son had been placed with an abusive father. He said:
“Mum…Dad bent my fingers back, hit me and pushed me on the floor. He won’t even let me eat lunch today.”
She said to call her, and he said:
“I can’t. I’m in the car and he will hit me if I call you. I have a big purple bruise on my knee.”
Now more than ever, survivors of abuse and their children need our protection and support, and this amendment is the necessary first step in ensuring we do that.
Tonia Antoniazzi (Gower) (Lab)
I will withdraw from speaking, because I realise that time is pressing on.
Edward Argar
Amendment 64 would require the victims code to state that victims must be informed of their rights to access special measures in the family court. We agree that all participants in court proceedings, including in the family court, should be able to give evidence to the best of their ability, and I appreciate that the shadow Minister cited a number of harrowing cases and highlighted some broader issues. If I may, I will confine myself rather more narrowly to the scope of the amendment. I will also highlight that I would be very wary of trespassing into territory that would see me commenting on what is rightly subject to judicial discretion and the decisions of individual judges.
We already have a number of measures in place to support participants in the family court whose ability to give evidence is impacted, as the shadow Minister set out, by the trauma and retraumatisation of having experienced domestic abuse and then having to give evidence. Examples of those special measures in family proceedings include giving evidence behind a protective screen or via video link.
In section 63 of our landmark Domestic Abuse Act 2021, on which there was a large amount of cross-party co-operation—I am looking at the shadow Home Office Minister, the hon. Member for Birmingham, Yardley—we have strengthened eligibility for special measures for victims of domestic abuse in the family courts. I gently disagree with the hon. Member for Cardiff North when she says that it has made no difference. As a result, the existing Family Procedure Rules automatically deem victims of domestic abuse as vulnerable for the purposes of considering whether a participation direction for special measures should be made. That provision came into effect on 1 October 2021. However, the decision is quite rightly a matter for the presiding judge in the case.
As the hon. Member for Cardiff North highlighted, what the amendment addresses is raising awareness of rights—not the decision made by the judge, but awareness that the rights exist and that an application is possible. I agree that it is important not only that this provision exists, but that participants in the family court are made aware of it. However, I stress that the victims code and the provisions in part 1 of the Bill are intended to set out the minimum expectations for victims navigating criminal justice processes, rather than other proceedings or settings such as the family court. It is important to highlight that distinction.
We are, however, committed to ensuring that participants in family proceedings are aware of the role of special measures and of their entitlement to be considered for them. Following the implementation of the provision in the Domestic Abuse Act 2021, the Ministry of Justice and His Majesty’s Courts and Tribunals Service have been monitoring the data on special measures requests using the online application service. We have been assessing what more could be done to make parties aware of their rights with regard to the provision of special measures.
As a result of the changes that have been made, guidance has been developed in collaboration with the Family Justice Council, which provides information on the support and special measures available at local courts. This information is now set out with notices of hearing in all family cases.
I hope that what I have said goes some way towards reassuring the Committee that we are taking steps to make sure that victims of domestic abuse are aware of the special measures that they can access in the family courts. We are consulting on the victims code; I say to the Committee that that, rather than the Bill, would be the right place for consideration of such measures. Placing such measures in primary legislation would add rigidity to what should be a flexible process to update the code and ensure that the rights enshrined within it keep pace. On that basis, I encourage the shadow Minister not to press amendment 64 to a Division.
Anna McMorrin
I understand what the Minister says, and I appreciate his reflections, but I have to point out the number and the intensity of issues that I have raised and the amount of concerning evidence from the women I have spoken to. The amendment would have an impact on real cases. It would go some way towards helping victims to understand that they can get access to special measures in court. I have given illustrations from cases in which rape victims were not able to have a screen and were forced to speak to the perpetrator. They need to feel that they are empowered, that they are survivors and that they have the ability to ask for those special measures.
Amendment 64 would go a long way towards ensuring that things start to change—that the culture starts to change—in the family courts. That is why I would like to press it to a vote.
Question put, That the amendment be made.
Digital Markets, Competition and Consumers Bill (Eleventh sitting)
Thursday 29th 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 29 June 2023 - (29 Jun 2023)
The Chair
I have a few reminders. Members should switch all electronic devices to silent. No food or drink is permitted except the water provided. As ever, Hansard colleagues would be grateful for Members’ speaking notes.
Clause 165
Appropriate court
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 166 to 168 stand part.
Clauses 170 and 171 stand part.
The Parliamentary Under-Secretary of State for Business and Trade (Kevin Hollinrake)
It is a pleasure to see you in the Chair, Dame Maria. The clauses restate and update the Enterprise Act 2002. Clause 165 sets out which courts in the UK have jurisdiction to hear and determine applications for consumer protection orders. The globalised nature of modern business means that a trader with UK consumers may well not have a place of business or carry on business in any part of the UK. The clause provides that in those circumstances the relevant consumer’s place of domicile will determine which UK court has jurisdiction.
Clause 166 will extend the effect of consumer protection orders made by a court with jurisdiction in one part of the UK to other parts of the UK, as if the order were made in those other parts. That eliminates any jurisdictional gap within the UK and restates and consolidates relevant sections of the Enterprise Act 2002.
Clause 167 will allow evidence from previous court proceedings to be admitted in evidence for the purpose of proving that infringing conduct has occurred under this part. Convictions in the criminal courts and any relevant findings in the civil courts are admissible to prove that a person has engaged in an infringing practice or has been an accessory to such a practice.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
I wonder whether the Minister could pinpoint where in the Bill’s impact assessment documents the estimates are for the number of cases that the Government expect under this legislation, the average time for a case to be heard and the amount that the Government will be resourcing courts?
Kevin Hollinrake
What a helpful question. I do not have those figures to hand, but I am happy to write to the hon. Member if we cannot find the information for him today. I am grateful for his intervention.
Clause 168 will give the court a discretionary power to make some or all of the requirements of a consumer protection order, including monetary penalties, binding on other members of the interconnected corporate group of the infringer. This power will prevent complex corporate structures from frustrating the ability of enforcement interventions to protect consumers and law-abiding traders. The exercise of the power is subject to two important conditions: first, that the infringing company meets the definition of a member of an interconnected corporate group at the time the order is made or at any time when the order is in force, and secondly that the court may make an order binding on other members of the same corporate group only if it considers it just, reasonable and proportionate. That will require an objective assessment on the facts of each case.
Clause 170 will apply where the court is considering an application for a consumer protection order made in relation to a suspected breach of unfair trading prohibitions. It will empower the court to compel traders to substantiate any factual claim made as part of their commercial practices. The burden of proving the accuracy of claims is on the trader. The clause is crucial to stopping unscrupulous traders making wild promises or getting the enforcer bogged down in disproving claims that should be backed up by evidence.
Clause 171 makes an exception to exempt the Crown from the monetary penalties that the court may impose under chapter 3 when it is engaging as a trader in commercial transactions with consumers.
I commend the clauses to the Committee.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
It is a pleasure to serve under your chairship today, Dame Maria. I thank the Minister for his opening remarks.
The Opposition recognise that clauses 165 to 167 are technical clauses. Clause 165 will provide the criteria to determine which courts within the UK have jurisdiction to hear and determine applications for consumer protection orders. It provides that where the respondent does not have a place of business in the UK, the appropriate court is where a relevant consumer is domiciled. This is a common-sense clause, and we support its inclusion in the Bill.
Clause 166 will have the effect of enabling a consumer protection order made in a court in England and Wales, Scotland or Northern Ireland to have effect in each of the constituent nations of the UK. This is a technical clause that the Opposition support.
Clause 167 will allow convictions in criminal courts and findings in civil courts to be admitted in evidence for the purpose of proving that infringing conduct has occurred. The explanatory notes confirm that it will still be necessary to prove that the conduct harmed the collective interests of consumers.
We recognise that these technical clauses are important for the implementation and operation of the new consumer protection regime enacted by this part of the Bill. We therefore support their inclusion.
My hon. Friend the Member for Bermondsey and Old Southwark made a point about case numbers and court resourcing. We expect demand on the courts to increase. The last thing that the Minister will want to see is the effective implementation of the regime, or confidence in it, being undermined because the courts cannot take on cases at speed when they might need to do so. I would welcome the Minister’s response on the issue of court capacity, support and resources.
Clause 168 will introduce provisions such that when a court makes a consumer protection order against a corporate body that is or becomes a member of a group of interconnected bodies corporate, the court has a discretionary power to direct that the order is binding upon one or more other members of the same corporate group. Subsection (6) defines two or more bodies corporate as interconnected bodies corporate
“if one of them is a subsidiary of the other, or…if both of them are subsidiaries of the same body corporate.”
Under the clause, a court would be able to make part or all of the order binding on other members of the group where the court considers it just, reasonable and proportionate to do so. The explanatory notes state that when considering whether to extend an order to another group member, the court might take into consideration whether the other member was the brains behind or benefited from the infringement, and whether the extension would help to ensure that financial penalties are paid.
Clause 168 will provide a more robust consumer enforcement regime, helping to prevent companies from restructuring to avoid liabilities and ensuring that significant deterrents are in place to prevent companies from infringing regulations of the new regime. We support the clause.
Clause 169, “Enhanced consumer measures: private designated enforcers”, sets out two conditions that must be met before enhanced consumer measures can be included in an undertaking either given to a private designated enforcer or given through the court via an application from a private enforcer.
The first condition
“is that the private designated enforcer is specified…in regulations made by the Secretary of State”
to act as a private enforcer. In our debates on clauses 143 and 144, I raised questions with the Minister’s colleague the hon. Member for Sutton and Cheam about the process of becoming a private designated enforcer. However, I would welcome further clarification from the Minister of how he envisages the process of a private enforcer working in practice. I am not very clear on whether that is through an application or via the discretion of the Secretary of State; it would be helpful and important to clarify that point to ensure that clause 169 is effective in enabling private designated enforcers, so we can be sure we know who they may be in future, and to include enhanced consumer measures in an undertaking.
The second condition, rightly,
“is that the enhanced consumer measures do not directly benefit the private designated enforcer or an associated undertaking.”
Will the Minister clarify some matters in relation to subsections (7) and (8)? Private designated enforcers must have regard to any relevant advice or guidance given by a primary authority. Could he perhaps illustrate that with an example of a primary authority within the meaning of subsection (7)(a) and a situation in which that may occur, so we are clear about the intentions for how the clause will be used?
Clause 170, “Substantiation of claims”, will enable the court to require evidence from traders to substantiate the factual claims used in their commercial practices with consumers when an application for a consumer protection order has been made against those traders. Under subsection (3), it is for the court to decide whether any evidence provided is adequate. If the court decides that it is not, or if no evidence is produced, the court can determine that the claim is inaccurate. This provision will ensure that the burden of proof regarding the accuracy of claims rests with the trader. In effect, claims must be based on evidence that can be verified by the court.
The explanatory notes specifically mention environmental claims—sometimes referred to as greenwashing—and claims about the health benefits of goods as examples where substantiation of claims may be required. Greenwashing generally refers to claims made about the positive impact of a product or service on the environment that could be seen as misleading or untrue. This is a growing area of concern under competition law. We have not tabled amendments at this point, but it is an important area in this and other legislation.
The Government and the EU have announced proposals to introduce new legal instruments to address alleged greenwashing. Ultimately, legislation to regulate claims that businesses in Europe can make in their consumer communications would come into force, as is already the case in France. A European Commission study in 2020 highlighted that 53.3% of examined environmental claims in the EU were found to be vague, misleading or unfounded, and 40% were unsubstantiated. This policy issue has highlighted the absence of common rules for companies making voluntary green claims, which, in a sense, leads to greenwashing. The uneven playing field in the market is to the disadvantage of genuinely sustainable companies. It also has an impact on how effectively consumers can make their purchase decisions.
EU proposals for the green claims directive outline that before companies communicate any of the covered types of green claims to consumers, any such claims would need to be independently verified and proven with scientific evidence. As part of scientific analysis, companies would identify the environmental impacts that are actually relevant to their products, as well as any possible trade-offs, in order to give a full and accurate picture.
There have been calls to review how comparisons between products and organisations should be made, based on equivalent information and data. There have also been calls to look at regulating environmental labels, outlining the fact that there are over 230 different labels, which, according to evidence, leads to consumer confusion and distrust. The Competition and Markets Authority published the green claims code in September 2021. It has also been investigating the sustainability claims of major household brands, and how products and services claiming to be eco-friendly are marketed.
This is a newer area, and as we move towards achieving our net zero targets it is going to become increasingly important to how the marketplace is defined. It is important to know and be ahead of where consumers might be being misled. Some of the work in the run-up to COP26 and since has been welcome, but we cannot take our foot off the accelerator.
Neil Coyle
I did not intend to speak, but I want to press the Minister on the approach that the Government are choosing to adopt in this group of clauses. What the Bill intends is welcome, as we have heard from witnesses and from elsewhere. Fundamentally, customers want quick redress, and businesses want justice and the removal of counterfeit or fake products that undermine their licences and appropriate trading. The Government’s approach—specifically in these clauses, heading for the courts—ignores the backlog that my hon. Friend the Member for Feltham and Heston has spoken about.
On Tuesday, we heard from the Minister for London that the Government did not have an agreement with Citizens Advice, or funding set aside for Citizens Advice, to support people to take a case through the courts. I was promised some further information that has not arrived yet; I do not know whether it is in the snail mail or the Minister’s crayons ran out or something, but I hope it is coming.
As has been raised this morning, there is no information yet from the Government about their expectations for how many cases will be taken to court, how that will have an impact on the backlog, or what the cost will be to Government or individuals. The reason people will end up at Citizens Advice is that they are seeking legal information; Citizens Advice needs to be resourced to support people and to take cases. In connection with this group of clauses, we are not hearing what the Government intend to do to support cases that need to be taken.
And, of course, it takes time. In the time that someone is going through the process—potentially for months and months—products that are dangerous to individuals might still be online. I am keen to hear from the Minister what will happen in the interim. What is to stop sellers and online marketplaces continuing to retail products that are dangerous to individuals or are counterfeit goods?
We will come to this next week, I think, but there is an alternative: the take-down power suggested by trading standards. With what is out there currently and what the Bill intends, we hear lots of analogies about the wild west, but it all feels a bit as if, instead of getting a Clint Eastwood figure to address the problems, we are getting a Deputy Dawg. Will the Minister say why the Government chose a costly court process—costly to Government and to individuals, as well as more time-consuming—rather than a specific measure that allows for a body already set out in a schedule to require the removal of information on products that are known to be faulty or counterfeit?
Kevin Hollinrake
On resourcing, the hon. Members for Feltham and Heston and for Bermondsey and Old Southwark were both right to mention the courts backlog. If my ministerial colleague, the Under-Secretary of State for Science, Innovation and Technology, the hon. Member for Sutton and Cheam, committed to write to the hon. Gentleman, I am sure that he will do that. It has not come across my desk yet, but there will be no delay when it does, short of ensuring that it answers the hon. Gentleman’s questions.
One thing to say about that, of course, is that the fact that we are putting in place a direct enforcement regime may well ease the pressures on the courts, because the CMA can take action without recourse to them. That should help by ensuring that not all such cases need to go to court.
On private enforcement, and how it would work, it could happen on the basis of an enforcer’s application, or on the Secretary of State’s initiative after consultation with a proposed enforcer. I think that the only private designated enforcer currently is Which?. I hope that that answers the question of the hon. Member for Feltham and Heston.
On the hon. Lady’s points about a primary authority, a primary authority can be a local authority, it could provide information about the business to enforcing authorities and help direct their efforts to improve regulatory efficiencies.
On greenwashing, she is right that the CMA is conducting an investigation into ASOS, Boohoo and Asda. We have the green claims code to try to ensure that there are standards in this area. The Government policy in this area, of course, is that misleading information is already a breach of existing consumer laws. The CMA has issued guidance to help businesses to comply with existing obligations in that green claims code.
The hon. Member for Bermondsey and Old Southwark asked about product safety. Rather than Deputy Dawg, I would use the analogy of Clint Eastwood in “The Good, the Bad and the Ugly”. We are working very hard on this, in terms of product safety. The Office for Product Safety and Standards, which I work very closely with, comes under my remit. It has put a huge amount of time and effort into market surveillance and ensuring that products online are safe.
We have real concerns over whether that is the case, of course, and we recently met with Amazon to discuss that issue. We have also met with eBay, Wish and other platforms to point out their responsibilities. As far as we are concerned, as distributors they have responsibilities to proactively remove unsafe content. As the hon. Gentleman knows—I have said this to him before—we intend to look at that again through the product safety review, which we are about to announce, and that should clarify those responsibilities and ensure that unsafe products do not hit the marketplace in the first place.
I take the points on takedown powers very seriously, and I heard the same evidence from trading standards that the hon. Gentleman heard. We are keen to look at that matter and, again, it might involve another layer of enforcement so that we can then try to prevent those unsafe products from hitting marketplaces across the UK. Trading standards has the capacity to do that for individual websites, but I understand that there are wider concerns regarding other areas of online activity that we are keen to address.
Seema Malhotra
I thank the Minister for his comments relating to the calls from trading standards to strengthen the legislation, which I also support. Could the Minister perhaps clarify a couple of points?
On greenwashing, my point was about how robust our regime will be in making sure that the green claims code, and how that is implemented, will be sufficient to ensure more compliance—either with the code or with any other ways in which we are going to be taking forward legislation on this—so that we do not have to do a lot more by way of enforcement. That would clearly not be the best outcome in the long term for consumers. Having the information up front and ensuring that labelling and other matters are much more robust is better than having challenges later on, with the associated costs of taking things through the courts. My question was more about how this all sits together, and whether the Government have an overall strategy, which I think is quite important.
Finally, on the product safety review, it has been “about to be published shortly” for quite a long time. Is it coming shortly?
Kevin Hollinrake
Yes, it is coming shortly.
Turning to greenwashing, we take the matter very seriously, and there are two ways to deal with it. We can do ex ante regulation, which involves building a huge bureaucracy around a certain system and people checking everything, or we can put in an ex post regulation deterrent regime, which involves a code or set of standards that companies should adhere to, and then an enforcement regime that takes breaches of the code very seriously and applies penalties to organisations that do not meet the standards. The latter is a more efficient and effective way to regulate, and that is the approach we are taking. That should prove a deterrent and prevent people from doing the wrong thing in the first place.
Question put and agreed to.
Clause 165 accordingly ordered to stand part of the Bill.
Clauses 166 to 171 ordered to stand part of the Bill.
Clause 172
Power of CMA to investigate suspected infringements
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that clauses 173 to 176 stand part.
Kevin Hollinrake
Clauses 172 to 176 set out a range of new enforcement powers for the CMA to determine whether certain consumer laws have been breached and, if so, to direct compliance and impose remedies and penalties. These powers correspond to powers available to the civil courts under chapter 3 of this part of the Bill to make consumer protection orders, but are available in relation to certain consumer protection laws only.
Clause 172 gives power to the CMA to conduct an investigation into suspected infringements under its direct enforcement regime. This acts as a trigger for the use of the CMA’s direct enforcement powers under chapter 4 of part 3. To use its direct enforcement powers, the CMA must have reasonable grounds for suspecting an infringing practice has occurred, is occurring, or is likely to occur.
Clause 173 allows the CMA to issue provisional infringement notices to enforcement subjects. It provides that enforcement subjects have a right to know the claims against them and be given an opportunity to make representations in a meaningful manner before a final decision is taken by the CMA. That ensures that the direct enforcement process is fair, with appropriate safeguards to protect the legitimate rights of the enforcement subject.
Clause 174 is fundamental to the direct enforcement regime and gives the CMA a discretionary power to issue a final infringement notice. To do so, the CMA must be satisfied that the infringing conduct has occurred, is occurring or is likely to occur. As well as giving directions to prevent or stop infringing practices or require enhanced consumer measures, a final infringement order may impose monetary penalties. That may be up to £300,000 or, if it is higher, 10% of the subject’s total turnover, in relation to past or ongoing infringing conduct.
Clause 175 empowers the CMA to include enhanced consumer measures as part of a final infringement notice if it considers them to be just, reasonable and proportionate.
Clause 176 empowers the CMA to issue an online interface notice to avoid the risk of serious harm to the collective interest of consumers. To exercise that power, the CMA needs to be satisfied that no other tools under the direct enforcement regime, nor the court’s power to make interim online interface orders, would be wholly effective.
An online interface notice may be given to the infringer or to any relevant third party. For example, an online interface notice may require a third party to remove, modify or restrict access to content that can be found on an online interface, such as a website. An online interface notice may be given to an overseas third party if the third party satisfies the UK connection test at subsection (3)(c). This clause therefore takes into account the global nature of online commerce, but does not give the CMA unfettered extraterritorial jurisdiction. I hope hon. Members will agree that it is appropriate that this provision has cross-border reach to websites, platforms and applications that direct their business activities to consumers in the United Kingdom.
Seema Malhotra
Clause 172 introduces provisions empowering the CMA to begin an investigation where it has reasonable grounds for expecting that a person has engaged, is engaging or is likely to engage in a commercial practice that would be considered a relevant infringement. That power acts as a trigger for the use of the CMA’s direct enforcement powers. Under subsection (3), the CMA would be able to publish a notice of investigations setting out what and whom it is investigating and indicating the investigation timetable. If, after giving such a notice, the CMA decides to close the investigation, it would be required to publish a notice of termination.
The clause is welcome. It is a vital part of the new consumer protection regime, and we need to ensure is properly enforced. While I am glad the provisions are being introduced, I note again that it will be a long time before they are in operation. It is not until 2025 that some of the provisions come into force.
It does not appear that publishing of the notice of investigation would be mandatory in all cases. Are there any times or examples of when a notice should not be published? If so, could the Minister share those with the Committee?
Under clause 173, the CMA would be empowered to give an enforcement subject a provisional infringement notice where the CMA has started an investigation under clause 172, which continues. The provisional infringement notice would need to contain certain information, including the grounds on which it is given and the enforcement subject’s acts or omissions that give rise to the CMA belief that there has been an infringement. It must also include the CMA’s proposed directions specifying the conduct required to ensure compliance. If the proposed directions include enhanced consumer measures considered by the CMA to be just, reasonable and proportionate, the notice will also need to state that and include details of those measures.
The notice must also include the process for the enforcement subject to make representations to the CMA about the notice, including the means by which and the time by which representations must be made by the enforcement subject. That must also include a hearing if the enforcement subject decides to make an oral representation and, if the CMA is considering monetary penalties, the detail of that penalty.
This is an important clause in enabling co-operation through the enforcement regime, but I would welcome clarification in a few areas. Subsection (3) sets out how the CMA may give the respondent a notice. Are there any scenarios in which the CMA will not need to give the respondent an infringement notice? If not, is this intended to be a power rather than a duty?
Subsection (4) states that the infringement notice must specify the time by which representations must be made. Does the Minister have in mind an expected time range for those representations to be made? I am sure that there is an intention that this all happens as quickly as possible, but there is no specification or guidance as to what some of the timelines might be. It would be helpful to understand the Minister’s intentions on that further.
Clause 174 grants the CMA a discretionary power to issue a final infringement notice to the enforcement subject. In deciding whether to issue a final infringement notice, the CMA will be required, under the clause, to consider whether an undertaking has been given and, if so, whether the enforcement subject has complied with its terms. A final infringement notice may impose on the enforcement subject a requirement to comply with such directions as the CMA considers appropriate to rectify an infringement and achieve compliance, and/or a requirement to pay a monetary penalty. Subsection (6) sets out that the monetary penalty must be a fixed amount not exceeding £300,000—I think that was described in earlier discussions as the middle of the pack—or, if higher, 10% of the total value of the enforcement subject’s turnover.
Under subsection (8), a final infringement notice could require the enforcement subject to publish the notice and a corrective statement. I ask the Minister—again, in the interests of transparency—why this subsection says “may require” rather than “will require”. I ask in the interests of consistency and transparency for consumers, so I would be grateful for the Minister’s response.
Clause 175 empowers the CMA to include in a final infringement notice enhanced consumer measures that it considers to be just, reasonable and proportionate. This clause is welcomed by the Opposition as an important part of the consumer protection regime.
Under clause 176, the CMA will be able to issue an online interface notice to any person whom the CMA believes has engaged, is engaging or is likely to engage in a relevant infringement. This includes third parties with a connection to the UK—for example, UK nationals and residents, UK-established businesses, and businesses carrying on business in the UK or targeting UK consumers. The purpose of this notice would be to prevent serious harm to consumers where there has been or is likely to be an infringing practice. In effect, the notice would force the infringer or any third party to take down content that is harmful to consumers. Subsection (4) sets out what the directions could include: removing content from, or modifying content on, an online interface; disabling or restricting access to an online interface; displaying a warning to consumers accessing an online interface; and deleting a fully qualified domain name.
Use of those powers has been described as a last resort. Will the Minister clarify whether this would therefore be after a period of notices and whether there is a timeline in which it might be undertaken? If a business was not responsive, would the Minister expect relatively quick use of the powers in order to protect consumers and to deter any further consumer detriment? Also, is it the Minister’s intention that the powers are just for the CMA? Considering some of the discussion that we have been having in relation to trading standards, I wonder whether use of the powers may be open in the future to other enforcers.
Kevin Hollinrake
In terms of publication of a notice, I think that that is a judgment for the CMA. There may be public interest in making a notice public—for example, to inform traders or consumers about practices of concern. Why would it not publish a notice? Well, it might be, for example, that that might prejudice the CMA’s investigation, which is clearly not something that we would want to happen.
The hon. Lady asked about the timescale for response. That will be something that the CMA consults on, in terms of how the process will happen, and stakeholders will be able to input into that consultation. However, we expect clear timelines to be set for responses.
Why would the CMA not give an infringement notice? Well, it might be that it decides, for example, that another enforcer might be better placed to take forward enforcement in that area. Circumstances will vary widely from case to case, and the CMA will be the best judge of whether publication is desirable in any given situation.
What about other consumer enforcers? We believe that the CMA has a leading and co-ordinating role in both the public enforcement of consumer law and in tackling market-wide practices that hinder consumer choice. The new direct enforcement model will enable the CMA to act faster and take on more cases on behalf of the public, resulting in an estimated further tens of millions—or potentially hundreds of millions—of pounds of direct benefit to consumers. Improving the speed and responsiveness of the CMA’s interventions has the greatest potential to safeguard the wider interests of consumers right across the economy.
Question put and agreed to.
Clause 172 accordingly ordered to stand part of the Bill.
Clauses 173 to 176 ordered to stand part of the Bill.
Clause 177
Undertakings
Kevin Hollinrake
I beg to move amendment 60, in clause 177, page 118, line 12, at end insert—
“(2A) Subsections (1) to (6) of section 156 (inclusion of enhanced consumer measures in undertakings) apply to an undertaking under this section as they apply to an undertaking under section 155(2).”
This amendment ensures that requirements imposed by undertakings given under clause 177 may include the taking of enhanced consumer measures (as defined by clause 213).
The Chair
With this it will be convenient to discuss the following:
Clauses 177 to 180 stand part.
Government amendment 61.
Clauses 181 and 182 stand part.
Kevin Hollinrake
Government amendments 60 and 61, and clauses 177 to 182, govern the acceptance and enforcement of undertakings by the CMA under its direct enforcement regime. Clause 177 provides a framework for the CMA to accept an undertaking as an alternative to giving a final infringement notice or online interface notice. The CMA may not accept undertakings unless they include provisions that effectively stop the conduct of concern. The more co-operative nature of the undertakings procedure can lead to faster resolution of consumer protection concerns and shorten the enforcement process.
Government amendment 60 adds a provision to clause 177 empowering the CMA to include enhanced consumer measures—or ECMs—in undertakings that it accepts under its direct enforcement powers. The power to add ECMs to undertakings is available to the CMA, and other enforcers in the court-based regime, under clauses 155(3) and 156 of the Bill. The inclusion of ECMs in undertakings has been a valuable part of the toolkit available under the court-based regime. The amendment makes it expressly clear that the power already available in the court-based regime is also available to the CMA under its direct enforcement powers under chapter 4 of part 3.
Clause 178 prevents the CMA, once it accepts an undertaking under clause 177, from giving a final infringement notice or an online interface notice to the same enforcement subject in relation to the same matter. The CMA can still give those notices if they relate to matters or persons not addressed in the undertaking, if circumstances have materially changed since the undertaking was accepted, or if the CMA suspects the undertaking has been breached or was based on false or misleading information.
Clause 179 sets out the process that the CMA must follow to make a material variation or to release a person from an undertaking once it has been accepted. The clause is important for procedural fairness, and ensures that the CMA cannot significantly modify or release persons from undertakings without giving notice to the other party and considering their views. Clause 180 allows the CMA to start a process to enforce compliance if it has reasonable grounds to believe that a person has breached at least one term of an undertaking. As with the majority of the CMA’s direct enforcement powers under this part, any assertion or sanctions for wrongdoing must be preceded by a provisional notice. That includes, for example, proposed directions and proposed penalties, and an invitation to make representations.
Neil Coyle
Within clause 181 there is the option for someone who is potentially identified as selling rogue or dangerous products to use a reasonable excuse. Can the Minister better define what a reasonable excuse might be? Companies and individuals could choose to prolong the timeframe involved in order to sell more goods that are hooky while the process is followed.
Kevin Hollinrake
As I said earlier, there are measures to ensure that any representations are given earnestly. A reasonable excuse might be that the trader was not aware of some of the difficulties surrounding the product. There may be various circumstances. When implementing and enforcing legislation, we always try to ensure that the CMA can apply discretion in different circumstances where an honest mistake has occurred.
Neil Coyle
To be clear, I am not looking for a list of what companies or individuals might use as an excuse for selling dangerous goods; I wondered whether the Minister would set out the timeframe, as the clause, and associated clauses, are not clear about how long companies and individuals get to provide information or remove dangerous products. What is there to prevent someone from saying, for example, “We have this product on our online marketplace, but it is manufactured in another country. We have been trying to contact the manufacturer, and it has taken some time to identify the specific individual.”? In that time, of course, the individual could have sold more counterfeit and dangerous goods, or have changed their email and other addresses in order to avoid the removal of their products online.
Kevin Hollinrake
We are now getting into the weeds of this. We have similar views about online marketplaces and their responsibilities. In our view, their responsibility as a distributor requires them to ensure that products are safe before they are placed on the marketplace in the first place. There should be no excuse for a distributor not checking the validity of a standards marking, for example. That is a responsibility that I have discussed with various platforms. We want to get to the position where products are verified before they enter the marketplace, through checks and balances. Rather than working reactively, platforms should work proactively in such instances, but part of that crosses over into work that we are doing in the product safety review, which we have discussed previously and will, I am sure, discuss again.
If the CMA is satisfied that a breach occurred without a reasonable excuse it can impose a penalty. That ensures that there are meaningful consequences to breaching an undertaking, to deter unscrupulous traders. Clause 182 states the types of penalties and the maximum penalty amounts that can be imposed by the CMA through a final breach of undertakings enforcement notice. The penalty imposed can be the higher of a fixed amount up to £150,000 or 5% of total turnover. A daily rate penalty can be up to £15,000 or 5% of the total value of the daily turnover, whichever is higher, accruing over the days in which non-compliance continues. Both a fixed amount and a daily rate penalty may be imposed, but they must not exceed the fixed amounts that I have just referenced. I hope that hon. Members will support Government amendment 60, and clauses 177 to 182 standing part of the Bill.
Seema Malhotra
The Opposition support the inclusion of clause 177. We welcome any measures that enable co-operation between enforcement bodies and subjects. I will, however, ask the Minister about timescales. The legislation as it stands contains little in the way of specifying timescales. The Minister might tell me again that this might be relevant for the consultation that the CMA undertakes on the process, but I think this will end up being relevant also for the resources that are in place, the expectations of how quickly all the procedures will be able to operate, and certainly how long it could take during the course of an initial infringement notice and a final infringement notice to reach an undertaking.
Although the inclusion of these provisions is necessary to make the regime a co-operative one, it is important that their inclusion in the Bill does not lead to unnecessary delay by enforcement subjects who might have no genuine intention to reach a commitment with the CMA. I would welcome the Minister explaining how he believes that will operate effectively.
Government amendment 60 ensures that the requirements imposed by undertakings given under clause 177 may include the taking of enhanced consumer measures, as defined by clause 213. We welcome this amendment, which should bring further consistency in the enforcement regime.
Clause 178 is consequential on clause 177. It prevents the CMA, once it has accepted an undertaking under clause 177, from giving a final infringement notice or an online interface notice to the same enforcement subject in relation to the same matter. The explanatory notes explain that the underlying policy intent is that undertakings are an alternative to final infringement or online interface notices and therefore the effect is that a person cannot be subjected to multiple enforcement resolutions of the same matter. Subsection (3) provides the necessary flexibility for the CMA. The CMA can still give a final infringement notice or an online interface notice to the extent that it deals with different matters from the undertaking. We welcome the clause.
Clause 179 sets out the process to be followed when the CMA needs to change or end an undertaking. Where the CMA proposes to accept a material variation of an undertaking or to discharge an undertaking, under this clause the CMA would be required to first give notice to the enforcement subject. If, after considering any representations made in accordance with the notice the CMA decides to take the proposed action, it would have to give further notice to the enforcement subject of that decision. We think this is an important clause.
Under clause 180, the CMA would be able to give a provisional breach of the undertakings enforcement notice where it has reasonable grounds to believe that the enforcement subject has failed to comply with one or more of the terms of the undertaking. It also sets out what the provisional breach of an enforcement notice must include. We welcome this clause as an important provision. It is important for the CMA to be clear on its intentions, for the enforcement subject to have no means of saying it was a misunderstanding, and for transparency for consumers.
Clause 181 introduces provisions enabling the CMA to issue a final breach of undertakings enforcement notice in circumstances where the deadline for the enforcement subject to make representations to the CMA in accordance with the first notice has expired, and if, after considering representations, the CMA is satisfied that the enforcement subject has committed an infringement. The clause also lists what must be included in the enforcement notice.
Subsection (4) lays out the threshold for a monetary penalty. It states that the penalty
“may be imposed only if the CMA is satisfied that the failure in question is without reasonable excuse.”
Like my hon. Friend the Member for Bermondsey and Old Southwark, I want the Minister to expand on the word “reasonable”. Will further definition be required? Does he think there will be some case law or further guidance? This is an important matter, because it can lead to questions about whether the CMA’s interpretation of “reasonable” is reasonable. We do not want to go down that route; we want a clear regime that provides less wriggle room for enforcement subjects that have no intention of complying and will use any excuse not to do so. I hope the Minister will look at that further and will give the House confidence that the apparent vagueness of the term will not enable companies that are in breach of their undertaking to escape the monetary penalties that, under the regime, they ought to pay.
Government amendment 61 requires that the information contained in a final breach of undertakings enforcement notice includes information about rights of appeal. We welcome it as a common-sense addition to what must be included in the final breach notice.
Clause 182 sets out the maximum monetary penalty that can be imposed for a breach of undertakings notice under clause 181. It amounts to a fixed amount of £150,000 or, if higher, 5% of the total value of the enforcement subject’s turnover. In the case of a daily rate, it is £15,000 or, if higher, 5% of the total value of the daily turnover of the enforcement subject. We have debated that previously. I assume that that amount relates to this being an enforcement penalty. Will the CMA continue to be the only body that has such fining powers? Will other enforcers, such as trading standards, be able to pursue penalties only through other routes? I would appreciate clarification from the Minister on that.
Kevin Hollinrake
The Opposition make a reasonable point about the reasonable excuse. We have left the threshold pretty broad to reflect the range of situations that could prevent compliance. We feel that a closed list on the face of the Bill would bind the CMA’s hands and make the measure less effective. As hon. Members know, the Bill requires the CMA, in the guidance on exercising its direct enforcement functions that it produces under clause 205, to provide information about the factors it takes into account in determining whether a reasonable excuse exists, and that will include examples.
The hon. Lady asked how soon after a provisional notice the CMA will issue a final breach of undertakings enforcement notice. She pre-empted my response to that: it will, again, be subject to consultation. Of course, it is at the discretion of the CMA. The CMA will set out its approach to determining the period within which representations have to be made in forthcoming guidance, preceded by the public consultation.
Seema Malhotra
I will take what the Minister said on reasonableness, and we will have a look at it. We may return to this matter, in order to ensure that there is not a gap between what an enforcement subject could argue and what the CMA intends, but I thank him for his response.
Kevin Hollinrake
It is perfectly reasonable that we have that debate, but we will do so we when we discuss clause 205. It is right that the Opposition challenge us and the CMA to ensure that the guidance is clear, and covers all bases.
Amendment 60 agreed to.
Clause 177, as amended, ordered to stand part of the Bill.
Clauses 178 to 180 ordered to stand part of the Bill.
Clause 181
Final breach of undertakings enforcement notice
Amendment made: 61, in clause 181, page 121, line 28, at end insert—
“(e) state that the respondent has a right to appeal against the notice and the main details of that right (so far as not stated in accordance with paragraph (d)).”—(Kevin Hollinrake.)
This amendment requires that the information contained in a final breach of undertakings enforcement notice includes information about rights of appeal.
Clause 181, as amended, ordered to stand part of the Bill.
Clause 182 ordered to stand part of the Bill.
Clause 183
Provisional breach of directions enforcement notice
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that clauses 184 to 188 stand part.
Kevin Hollinrake
Clauses 183 to 188 principally deal with the enforcement of directions imposed by the CMA in its final infringement notices, online interface notices, and final breach of undertakings enforcement notices. Clause 183 empowers the CMA to enforce compliance with enforcement directions by giving a provisional breach of directions enforcement notice. That allows the enforcement subject to know the case against them and to make representations.
Clause 184 allows the CMA to give a final breach of directions enforcement notice, if it is satisfied that a direction has been fully or partially breached without a reasonable excuse. The notice must follow a provisional breach of directions enforcement notice and can be given only after the period to make representations has expired and the CMA has considered any representations received. Given the seriousness of the situation and the late stage in the process of enforcing compliance with consumer protection law, the Bill sets out that the CMA will impose a monetary penalty each time it gives a final notice under the clause.
Clause 185 provides for the types of penalties and the maximum penalty amounts that can be imposed by the CMA through a final breach of directions enforcement notice. The total penalty amount can be a fixed amount up to £150,000 or 5% of total turnover, whichever is higher. It can also be a daily rate penalty up to £15,000 or 5% of the total value of the daily turnover, whichever is higher, and accruing over the days while non-compliance continues. It can also be a combination of both, but that must not exceed the maximum penalty amounts in both separate cases.
Clause 186 gives the CMA an alternative means of enforcing compliance with directions given in final infringement notices, online interface notices and final breach of undertakings enforcement notices by enabling applications to court for an order to require compliance. It also provides a backstop power for the CMA to apply for a court order where it considers a person has failed to comply with a direction given in a final breach of directions enforcement notice.
Clause 187 gives the CMA the power to require evidence from the enforcement subject to substantiate factual claims made as part of its commercial practices under investigation. This applies where the CMA gives a provisional notice concerning a suspected breach of the unfair trading prohibitions in chapter 1 of part 4 of the Bill. By placing the burden of proving the accuracy of claims on the trader, the clause is crucial in stopping unscrupulous traders from spreading wild promises or getting the CMA bogged down in disproving claims that should be backed up by evidence.
Clause 188 sets out the process that the CMA must follow for proposing to materially vary or revoke any directions. The clause gives flexibility to the CMA to direct compliance while requiring it to provide a sufficient notice period and clear information to guarantee fairness to the person involved.
Seema Malhotra
Clause 183, in conjunction with clause 184, sets out the CMA’s powers to enforce compliance with enforcement directions. It introduces provisions enabling the CMA to issue a provisional breach of directions enforcement notice where it has reasonable grounds to believe that the enforcement subject has without reasonable excuse failed to comply with the direction. We support the clause.
Under clause 184, the CMA would be able issue a final breach of directions enforcement notice requiring the payment of a monetary penalty upon completion of the process laid out in the clause. We support this clause. Clause 185 is consequential on clause 184 and sets out the maximum monetary penalty that the CMA may impose for a breach under clause 184. Again, we support the clause.
Clause 186 provides the CMA with the power to apply to an appropriate court when a person or company has failed to comply with a direction given under clause 184. Under the clause, the CMA would be able to apply to the court for an enforcement order, an interim enforcement order, an online interface order or an interim online interface order. That would enable the court to act in respect of any practice or conduct that would amount to a “relevant infringement” by making a consumer protection order in addition to or instead of making an order in respect of the breach of directions. We welcome this clause, as it provides a necessary backstop for the CMA to enforce its judgments and penalties.
Clause 187 would enable the CMA to require evidence from traders substantiating the factual claims used in their commercial practices with consumers, which are at issue in a provisional notice involving alleged contravention of the new consumer protection regime. Where the CMA has issued a provisional notice to an enforcement subject and the enforcement subject makes representations to the CMA in response to that notice, the CMA may require the enforcement subject to provide evidence as to the accuracy of any claim made. For the reasons that we debated earlier, we welcome this clause and this power as they will enable the CMA to carry out its functions more effectively on behalf of consumers.
Clause 188 introduces provisions enabling the CMA to make a material variation of, or to revoke, directions that it has given under other clauses as specified. We support the inclusion of clause 188 in the Bill. I hope that what the clause provides for will be able to be done at speed and that we do not see any delays in the use of these powers where needed.
Question put and agreed to.
Clause 183 accordingly ordered to stand part of the Bill.
Clauses 184 to 188 ordered to stand part of the Bill.
Clause 189
Provisional false information enforcement notice
Question proposed, That the clause stand part of the Bill.
Kevin Hollinrake
I notice that England just bowled Australia out, which is very good news.
Kevin Hollinrake
Of course—sorry, Dame Maria.
Clauses 189 and 190 empower the CMA to give a provisional false information enforcement notice, followed by a final notice imposing a monetary penalty of up to £30,000 or, if higher, 1% of total turnover. They allow the CMA to enforce against, and penalise, the provision of materially false or misleading information to the CMA without reasonable excuse.
Seema Malhotra
Clause 189 introduces provisions granting the CMA a discretionary power to issue a provisional false information enforcement notice if it has reasonable grounds to believe that a person has provided to the CMA materially false or misleading information. It also lists what would be included in this enforcement notice. It would obviously be a really serious matter if false or misleading information was provided to the CMA. We therefore support this clause.
Clause 190 enables the CMA to issue a final false information enforcement notice. This clause is consequent on clause 189 and we therefore welcome its inclusion in the Bill. Clause 190(4) sets out the maximum monetary penalty for a false information infringement. It is important that there is a sufficient deterrent and also the ability for significant enforcement where it is found that false information has been provided to the CMA and that has been proven.
Question put and agreed to.
Clause 189 accordingly ordered to stand part of the Bill.
Clause 190 ordered to stand part of the Bill.
Clause 191
Statement of policy in relation to monetary penalties
Question proposed, That the clause stand part of the Bill.
Kevin Hollinrake
Clauses 191 to 194 cover appeal rights and other requirements for the CMA that will ensure that it exercises its direct enforcement powers proportionately and transparently. I will also discuss clauses 195 to 199, which make supplementary provision for the monetary penalties imposable by the CMA and the civil courts under part 3 of the Bill.
Clause 191 requires the CMA to produce and publish a statement of policy relating to its exercise of powers to impose monetary penalties. The statement of policy must cover the considerations relevant to whether to impose a penalty and the nature and amount of the penalty. When preparing or revising that statement, the CMA must consult the Secretary of State and other relevant stakeholders. The statement, or its revised form, cannot be published without the Secretary of State’s approval. Finally, the CMA will be required to have regard to the most recent published statement approved by the Secretary of State when deciding whether to impose penalties under this chapter, as well as deciding the penalty’s nature and amount.
Seema Malhotra
Clause 191 requires the CMA to produce and publish a statement of policy regarding its powers to impose monetary penalties under this part. When the CMA decides on a penalty, it must take into account the statement. The Opposition strongly welcome the clause because it greatly increases the transparency of the monetary penalty system. It should ensure that there is clarity around the regime, thereby increasing its legitimacy. I would be grateful if the Minister will comment on the timeframe to which he expects the statement of policy to be published, whether it will follow a period of consultation, and where it will be published. Will it be publicly available, and will it be laid before this House?
Clause 192 introduces provisions giving the CMA a discretionary power to make the requirements of a final enforcement notice binding upon one or more members of the same interconnected corporate group, where the CMA considers it just, reasonable and proportionate to do so. We welcome that common-sense addition to the Bill. Clause 193 on record-keeping and reporting requirements introduces important transparency into the enforcement process. As such, we welcome its inclusion. It requires the CMA to keep a record of the undertakings that it has accepted, the enforcement directions that it has given, and reviews that it has carried out in relation to the effectiveness of such undertakings and directions.
Subsection (2) introduces provisions requiring the CMA to prepare a report for the Secretary of State on the effectiveness of undertakings and enforcement directions, and the number and outcome of appeals under clause 194. That again is important because it will enable the Government to continue to monitor the effectiveness of the new regime after Royal Assent. The question is whether it goes far enough. We have not tabled amendments to the clause. It is important to begin a discussion, which we will continue as we consider further parts of the Bill, about the reporting, and the transparency of how the measures are used in the CMA’s operations in practice.
Subsection (2) states:
“If requested to do so by the Secretary of State, the CMA must prepare a report on…the effectiveness of undertakings and…the number and outcome of appeals brought under section 194”,
yet we do not know what the Secretary of State might intend in relation to that. The wording implies that the report is not a duty on the CMA, but that the CMA has a duty to keep the information. If somebody deems that information to be in the public interest, or parliamentarians want to know what is happening under the regime, would they be required to undertake freedom of information requests? That does not seem appropriate. If the CMA collects that information, it ought to prepare a report to which Parliament has access.
It would be helpful for the Minister to inform the Committee what the Government intend in terms of report requests by the Secretary of State, and what information he would expect the CMA to share in relation to the regime, and the operation of some of the powers in the Bill. Does he agree that it would be in Parliament’s interest to have sight of that information? I would be grateful for his response on whether clause 193(2) should go further.
Clause 194 introduces provisions that would ensure that all appeals of CMA first-instance direct enforcement decisions are heard by the court. Under the clause, a person may appeal against a decision to impose a monetary penalty, the nature or amount of any such penalty and the giving of directions. We welcome the principle of the clause in allowing for a right of appeal. Again, we have questions on a timeframe for that and whether it will be part of the CMA’s consultations, as the Minister has alluded to, in relation to some of the operations of the regime.
Clause 195 sets out the information that must be included in an order made by the court, or a final notice given by the CMA, that includes a requirement to pay a monetary penalty. The information includes the amount of the penalty, the grounds of the penalty, details such as when it is to be paid and so on. Subsections (3) and (4) additionally set a time limit of 14 days from when the order is imposed for enforcement subjects to apply to change the date or dates by which the penalty must be paid. We welcome the inclusion of the clause in the Bill.
Clause 196 introduces a definition of turnover into the bill for the purpose of calculating a penalty based on turnover. This appears to be a technical clause, specifically in the inclusion of turnover both in and outside the United Kingdom in applying the definition. Subsections (3) and (4) grant the Secretary of State delegated powers to make further regulations on how a person is to be treated as controlled by another person, and to make provision for determining the turnover of a person for the purposes of this part. I must ask the Minister: why is it that these further regulations have been left to secondary legislation and are not on the face of the Bill? I would be grateful if he could confirm and explain that, and also clarify why these powers are subject to the negative procedure rather than the affirmative. We have not sought to amend the clause, but we want to understand the reasons behind it so that we are confident that it should go forward unamended.
Clause 197 introduces a delegated power to the Secretary of State to make regulations to amend the maximum fixed penalties and daily penalties in this part. The regulations will be laid subject to the affirmative procedure, which we welcome. The explanatory notes state:
“The effect would be that any updated amounts specified by the Secretary of State will offset the erosion of the real value of the fixed maxima through inflation.”
That is important, particularly in the current context of spiralling inflation after the disastrous economic management of successive Governments over the last 13 years. Can the Minister provide any clarification on how regularly the amendments will be made? Will it be yearly, or more or less frequently? I would be grateful for the Minister’s confirmation of that, so that it is clear for the House and the CMA.
Under clause 198, “Recovery of monetary penalties”, when the deadline for an enforcement subject to make an appeal against a monetary penalty has expired, or when an appeal has been made and rejected, the CMA would be able to commence proceedings to recover the penalty and any unpaid interest as a civil debt. We welcome the clause and its detail as a necessary element of a new, more robust regime.
Clause 199 introduces provisions setting out further details regarding the payment of monetary penalties. It provides for interest at the statutory rate to be incurred on the balance if the penalty imposed is not paid by the deadline. In addition, it sets out how the penalty is not payable while an appeal application is ongoing. We welcome the clause, but I seek some assurance from the Minister that appeal applications will have a timeline, and will not lead to lengthy, protracted processes, and payments going unpaid because of them.
Kevin Hollinrake
I fear that I may have missed one or two of the hon. Lady’s points, but I think I got most of them. Guidance under clause 191 will be publicly consulted on, giving those potentially affected by it an opportunity to comment directly. That consultation will happen post Royal Assent, and when finalised it will be published on the CMA’s website. On the Secretary of State requesting reports, clearly we do not know what we do not know. The Secretary of State has flexibility on when they might consider that a report is required under clause 193. The CMA already publishes regular impact assessments and other public reports, including its annual report to Parliament, and scrutiny will continue by traditional means, such as through Select Committees.
Seema Malhotra
The Minister will know that so much has gone to the Business and Trade Committee that there will be great concern about how frequently, and in what level of detail, it will be able to scrutinise all the work done under the regime. It will be a pretty tall order to do that job. I have a question for the Minister that I think is important. We have heard in previous debates about the frequency of reporting and what would be in the CMA’s report for all the new regimes and units that it will undertake. We obviously do not want to overload the CMA with unnecessary reporting, but there should be an expectation about what might be in the annual report, and there should be clarity on what the Secretary of State might expect in a report on the new regime.
Surely Ministers will want to have confidence in what is happening under the regime, and to have some data reported to them if the CMA is collecting it. Will the Secretary of State expect a, perhaps annual, report on the new regime, perhaps for a few years, to know whether it is operating effectively? Secondly, will clause 193(2) give the Secretary of State the ability to request additional or more detailed reports if there are concerns about aspects of the regime’s implementation? I understand the power to ask for more reports, but not having any report requested through the course of the implementation of the operations strikes me as a serious gap, particularly—
Kevin Hollinrake
I thought that perhaps I had to intervene on the hon. Lady.
Seema Malhotra
Particularly in relation to the early implementation of the regime—I was on my last sentence.
Kevin Hollinrake
That was a very comprehensive intervention. I think that we are saying the same thing. Of course the CMA will continue to report annually, and of course we would expect it to report on the new powers that it has been granted through the Bill. In addition to that, the Bill gives the Secretary of State the power to request additional reports as he or she sees fit. We think that that achieves an appropriate balance. We do not think that it is right to get in the way of the CMA doing its job by obliging it to report on a more frequent basis. Of course, as part of my role, or my successor’s role if I move from this position back to the Back Benches or wherever, we regularly have meetings with the CMA to discuss its activities and where it is using its powers. Indeed, we write an annual letter to the CMA, which sets out where we expect its focus to lie.
The hon. Lady asked a fair question about the appeals timelines. They will not be consulted on, but they will be subject to the civil procedure rules, and relevant rules in other UK jurisdictions. The civil procedure rules will be amended as part of the implementation of the provisions through the Civil Procedure Rule Committee in the usual way. Of course, we will want appeals to take place as expeditiously as possible, provided that they are fair.
Question put and agreed to.
Clause 191 accordingly ordered to stand part of the Bill.
Clauses 192 to 199 ordered to stand part of the Bill.
Clause 200
Investigatory powers of enforcers
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that schedule 15 be the Fifteenth schedule to the Bill.
Kevin Hollinrake
Clause 200 introduces schedule 15 to the Bill, which contains amendments to schedule 5 to the Consumer Rights Act 2015, relating to the investigatory powers of consumer protection enforcers. Schedule 15 amends provisions in schedule 5 to the Consumer Rights Act to ensure the enforceability of statutory information notices given to a person under paragraph 14 of schedule 5.
The amendments made through schedule 15 come in two parts. First, we are providing the courts with a new power to impose a civil monetary penalty where the court finds there has been non-compliance, without reasonable excuse, with an information notice given by any consumer enforcer. Secondly, we are providing a new direct enforcement power for the CMA to decide whether an enforcement notice it has issued has been complied with and, if not, to impose a civil monetary penalty for any non-compliance without reasonable excuse.
The schedule also sets out the extraterritorial reach of enforcers’ power to request information by notice. We are legislating to ensure that enforcers can obtain all the necessary information from parties in and outside the UK to inform their analysis and ascertain breaches of the law, subject to certain conditions. The schedule also ensures that a warrant may be granted in relation to material that may be remotely stored in the cloud but still be accessible from the premises. I hope hon. Members agree that the schedule completes the largely successful modernisation of the investigatory powers of consumer law enforcers made by the Consumer Rights Act in 2015.
Seema Malhotra
Clause 200 introduces schedule 15 to the Bill, which amends schedule 5 of the Consumer Rights Act 2015, which in turn details the information-gathering powers available to consumer enforcers for the purposes of civil enforcement of consumer protection law. We support the clause, but I will make a few more remarks on schedule 15.
Schedule 15 makes limited amendments to schedule 5 of the Consumer Rights Act 2015 so that an enforcement notice would have to specify the circumstances in which non-compliance with the enforcement notice could result in a financial penalty. The amendments would apply where an enforcer has given an information notice to a person and the enforcer considers that the respondent has, without reasonable excuse, failed to comply with the notice. In such circumstances, the enforcer would be able to make an application to the court.
The Opposition welcome the schedule, but there are questions related to those we have asked in relation to other clauses, specifically around the absence in the Bill of the updating of trading standards authorities’ powers for the digital economy and the 21st century. That is important. We have raised before the ability for trading standards to obtain information online and so on. Can the Minister have a look at that in more detail? In the course of further clauses next week, we may come on to some other amendments as well, but I would be grateful for the Minister’s response.
Kevin Hollinrake
It is our contention that trading standards do have the powers that they need to access information. There are concerns; I have concerns—I want to ensure that trading standards have sufficient powers in terms of take-down powers. That is something that we are looking at and, as the hon. Lady says, is probably something that we will discuss as the Bill proceeds.
Question put and agreed to.
Clause 200 accordingly ordered to stand part of the Bill.
Schedule 15 agreed to.
Clause 201 ordered to stand part of the Bill.
Clause 202
Notices under this Part
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 203 to 207 stand part.
Government amendments 62 to 64.
That schedule 16 be the Sixteenth schedule to the Bill.
Clause 208 stand part.
Government amendment 65.
That schedule 17 be the Seventeenth schedule to the Bill.
Clauses 209 to 215 stand part.
Kevin Hollinrake
Clause 202 provides for the practicalities of giving notices. It sets out the permissible means for the CMA and other enforcers to give a notice: by delivering it to the person; by leaving it at the person’s address; by post; or by email.
Clause 203 empowers the CMA to make rules about procedural and other matters in connection with its direct enforcement functions. This clause expressly permits the CMA to delegate decision making for its direct enforcement functions to its board, panel and/or staff. The clause provides the CMA with a vital tool with which it can establish the technical details of a robust and predictable direct enforcement process that will achieve the stronger enforcement that we need without compromising fair process or certainty for traders.
Clause 204 requires that the CMA’s rules must be publicly consulted on, and given the approval of the Secretary of State through regulations, before coming into force. Public consultation will ensure that the views of all stakeholders, including consumer groups and traders, are adequately considered as rules are prepared. The Secretary of State also has the ongoing power to vary or revoke rules, which will ensure that the wider needs of the economy continue to be reflected in the operation of the direct enforcement regime. This clause ensures that the CMA’s discretion to make technical rules governing its direct enforcement functions is exercised in a balanced way that serves the needs of the economy.
Clause 205 requires the CMA to prepare and publish guidance about its general approach to the carrying out of its direct enforcement functions, and to keep under review the guidance, which it may update from time to time. The CMA is required to publicly consult, and obtain the Secretary of State’s approval, before issuing its first guidance.
Clause 206 provides that, for the purposes of the law of defamation, absolute privilege applies to anything done by the CMA in the exercise of its direct enforcement functions. There are strong precedents for that approach: judicial or tribunal proceedings are protected from defamation. There is also protection from defamation for the CMA’s direct enforcement regime for competition law and its merger and market investigation powers. Those suspected of infringing are not unfairly prejudiced by this clause, which merely reflects the long-standing principle that the exercise of regulatory and judicial functions should not give rise to defamation claims.
Clause 207 formally introduces schedule 16 and its contents within the body of the Bill. Schedule 16 makes numerous minor and consequential amendments to other legislation. This schedule is important to provide for the smooth functioning of the enforcement regimes and to ensure legislative consistency.
Government amendments 62 and 63 add a reference to chapters 3 and 4 of part 3 of the Bill to schedule 14 to the Enterprise Act 2002. These amendments will ensure legislative consistency.
Government amendment 64 is a consequential amendment. It includes part 4 of the Bill in the list of enactments in respect of which investigatory powers under schedule 5 to the Consumer Rights Act 2015 are conferred.
Clause 208 introduces schedule 17, which makes transitional and saving provision in relation to the court-based and CMA direct enforcement regimes. Schedule 17 provides for the general rule that the new law will apply to conduct that takes place on or after the commencement date of chapters 3 and 4 of part 3 of the Bill. Conversely, as a general rule, the “old law”—that is, part 8 of the Enterprise Act 2002 and related provisions—will continue to apply to conduct that takes place before the commencement date of chapters 3 and 4 in part 3 of the Bill.
Schedule 17 also makes specific rules for continuing conduct that is essentially an act or omission that starts before the new law has commenced but is repeated or continues after the new law’s commencement. In such a scenario, as well as applying to the post-commencement conduct, the new law will apply to the pre-commencement conduct for the purpose of enabling enforcement action under part 3 of the Bill.
However, no requirements or penalties can be imposed on a person for the pre-commencement parts of the continuing conduct, unless such a requirement is already imposable under part 8 of the Enterprise Act 2002. Similarly, the court and the CMA will not be able to use their new powers to impose penalties for breaches of any undertakings given under part 8 of the 2002 Act.
Seema Malhotra
Clause 202 sets out the process for giving notices under part 3 to persons within and outside of the UK, including business entities registered or operating outside the UK. It defines acceptable means of service and the meaning of a recipient’s proper address. We welcome the clause.
Clause 203 allows the CMA to make rules, subject to approval by the Secretary of State through secondary legislation, to set out the procedural administrative details of the CMA’s enforcement regime. The rules supplement the framework provided in chapter 4 of part 3. We welcome the clause and the clarification, and also the important points made in the explanatory notes, including the point that the rules will cover “arrangements for complaints’ handling”. The clause is a common-sense provision.
Clause 204 sets out the process for the exercise of the rule-making power under clause 203. We welcome the fact that the CMA will be required to consult with stakeholders during the preparation of the rules, and we discussed that in relation to earlier clauses. The CMA will also be required to obtain the Secretary of State’s approval before bringing any rule into operation or varying a rule. We welcome that measure too.
Under 204(5), the Secretary of State will be empowered to vary or revoke rules or to direct the CMA to vary or revoke rules, and regulations made under the clause will be subject to the negative parliamentary procedure. Although we welcome the clause, will the Minister clarify why that has been left to the negative procedure? The inclusion of affirmative and negative procedures in the Bill seems to be slightly random, so I would be grateful for that clarification.
Under clause 205, the CMA will be required to prepare and publish guidance about its general approach to carrying out its direct enforcement functions. The guidance will provide more detailed information to traders and other stakeholders about how the direct enforcement regime would work in practice. The Opposition welcome the clause because it introduces more transparency and clarity into the regime, but will the Minister tell the Committee what timeframe is considered appropriate for the publication of the guidance? He said that he saw publication happening after Royal Assent, but does he expect it to happen within a certain period of time? I am sure that he wants the legislation to be implemented as soon as possible, as do I.
Clause 206 would protect the CMA against actions for defamation as a result of the exercise of functions under part 3. We welcome the clause. It is important that the CMA is protected in carrying out its job as the co-ordinating enforcement authority.
Clause 207 introduces schedule 16, which contains minor and consequential amendment in relation to part 3. We support schedule 16 and do not consider the consequential amendments contentious. We also support Government amendments 62 and 63.
Clause 208 introduces schedule 17, which provides transitional and saving provisions in connection with part 3. Those provisions concern the operation of the new law introduced by chapter 3 and CMA direct enforcement powers under chapter 4 of part 3. They also relate to the operation of the old law, which constitutes part 8 of the Enterprise Act 2002. It lays out how the new law would apply to conduct that takes place on or after the commencement date of the Bill, and to conduct of concern that a person is likely to engage in, where such conduct is likely to take place on or after the commencement date. The old law would continue to apply to conduct that takes place before the commencement date, as well as to various other forms of conduct. We welcome this technical schedule and clarification, and we support amendment 65.
Clause 209 introduces definitions for references to supply of goods or digital content as used across part 3 and we support the clause. Clause 210 defines how references to the supply of services should be construed across part 3 and we support the clause. Clause 211 defines what is meant by an accessory to the commercial practice of a body corporate. Will the Minister clarify whether he is confident the clause adequately captures anyone who may act as an accessory and how the definition was brought together? Was it through consultation? That will provide full clarity on what constitutes an accessory.
Clause 212 defines what constitutes having a special relationship with a body corporate, covering two scenarios outlined by the Minister. As such, we support its inclusion in the Bill. Clause 213 defines three types of enhanced consumer measures, referred to as redress, compliance and choice measures. I am grateful to the Minister for outlining some detail on that and the definitions, so that those set out in subsections (2) to (4) are straightforward and clear, and that that also applies to their interpretation by consumers. We thus welcome the clause’s inclusion in the Bill.
Clause 214 defines other terms for the purposes of this part, including the definitions of “businesses”, “goods”, “enforcement orders”, “subsidiary” and “supply”, which are important, and we support their inclusion. Further, clause 215 sets out an index of defined expressions and we welcome and support it.
Kevin Hollinrake
I will make a couple of points, the first of which is on the negative procedure. On regulations, there is a combination in clause 204 of public consultation followed by review by the Secretary of State, which will allow for a significant level of scrutiny. On that basis, we feel the negative procedure is justified and appropriate.
On the guidance, the CMA must undertake several actions, including a public consultation on the practices. This may take some time, and we expect that the guidance may be ready by autumn 2024, but that will depend upon a number of factors. We clearly want it in place as quickly as possible, but we must ensure that it is fit for purpose.
The definition of “accessory” in clause 211 is consistent with, and restates with minor clarifications, the current definition in part 8 of the Enterprise Act 2002.
Question put and agreed to.
Clause 202 accordingly ordered to stand part of the Bill.
Clauses 203 to 207 ordered to stand part of the Bill.
Schedule 16
Part 3: minor and consequential amendments
Amendments made: 62, in schedule 16, page 329, line 17, leave out sub-paragraph (b).
See explanatory statement for Amendment 63.
Amendment 63, in schedule 16, page 329, line 23, at end insert—
“5A In Schedule 14 (provisions about disclosure of information) at the appropriate place insert—
‘Chapters 3 and 4 of Part 3 of the Digital Markets, Competition and Consumers Act 2023.’”.
This amendment, which is made for drafting consistency, inserts a reference to Chapters 3 and 4 of Part 3 of the Bill into Schedule 14 to the Enterprise Act 2002 instead of achieving the same effect by adding that reference into section 238(1) of that Act.
Amendment 64, in schedule 16, page 337, line 2, at end insert—
“Part 4 of the Digital Markets, Competition and Consumers Act 2023.”.—(Kevin Hollinrake.)
This amendment adds Part 4 of the Bill to the list of enactments in the new paragraph 20A of Schedule 5 to the Consumer Rights Act 2015 (inserted by paragraph 8(10) of Schedule 16), with the effect that authorised enforcers will be able to exercise the investigatory powers conferred by Part 4 of Schedule 5 to CRA 2015 in connection with infringements of Part 4 of the Bill.
Schedule 16, as amended, agreed to.
Clause 208 ordered to stand part of the Bill.
Schedule 17
Part 3: transitional and saving provisions in relation to Part 3
Amendment made: 65, in schedule 17, page 338, line 1, leave out from “means” to end of line 11 and insert “—
(a) Part 8 of EA 2002, as that Part had effect immediately before the commencement date, and
(b) any provisions of law (including in particular Schedule 5 to CRA 2015) relating to Part 8 of EA 2002, as those provisions had effect immediately before the commencement date.”.—(Kevin Hollinrake.)
This amendment clarifies that the definition of “the old law” for the purposes of the transitional provisions in Schedule 17 to the Bill includes Schedule 5 to the Consumer Rights Act 2015 (which confers investigatory powers on enforcers).
Schedule 17, as amended, agreed to.
Clauses 209 to 215 ordered to stand part of the Bill.
Ordered,
That the Order of the Committee of 13 June be varied by the omission from paragraph 1(f) of “and 2.00 pm”.—(Mike Wood.)
Ordered, That further consideration be now adjourned. —(Mike Wood.)
Energy Bill [ Lords ] (Eighteenth sitting)
Thursday 29th 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 29 June 2023 - (29 Jun 2023)
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Chair
Before we begin, I remind Members that Hansard colleagues would be grateful if you could email your speaking notes to hansardnotes@parliament.uk. Please switch your electronic devices to silent. Tea and coffee are not allowed during sittings. The only refreshment permitted in the Committee is the water that is available in the room.
New Clause 86
Investment protection agreements and climate change targets
“Within six months of the day on which this Act is passed, the Secretary of State must—
(a) initiate procedures for the United Kingdom to withdraw from the Energy Charter Treaty;
(b) lay before Parliament a report setting out—
(i) the list of investment protection agreements to which the UK is a party which offer protections to the energy sector, and
(ii) an assessment of the risks they pose to the Secretary of State fulfilling duties in this Act with regard to the achievement of targets set by the Climate Change Act 2008.”—(Olivia Blake.)
Brought up, and read the First time.
Olivia Blake (Sheffield, Hallam) (Lab)
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under your chairship, Mr Sharma. It is the first time, I think, that we have been in the room together for this Bill. New clause 86 requests that the UK Government commence withdrawal from the outdated investment provisions of the energy charter treaty, which risk undermining our Climate Change Act 2008 targets, internationally agreed emissions reductions and duties in this Bill in respect of the impact of energy production on habitats, species and the climate.
As many Committee members are aware, the energy charter treaty is an investment agreement between 50 countries for the energy sector. The investor-state dispute settlement mechanism in the treaty allows foreign companies to sue Governments outside the national legal system in somewhat secretive tribunals. The amounts at stake can be in the billions, and the ECT has already generated at least 135 claims, making it the world’s most litigated ISDS agreement. In the most recent Intergovernmental Panel on Climate Change report, UN climate scientists warned of the risk that ISDS agreements are
“able to be used by fossil-fuel companies to block national legislation aimed at phasing out the use of their assets”.
The report even name-checked the energy charter treaty, yet the UK continues to be party to it.
The treat is not just a potential risk. There have already been several high-profile cases of fossil fuel companies suing Governments through the treaty. For example, German energy giant RWE is suing the Netherlands for €1.4 billion over its coal phase-out. The UK oil company Rockhopper won a case this summer against Italy over a ban on offshore oil drilling. It won more than £210 million—more than six times what it had spent on the project. UK fracking firm Ascent Resources launched legal action against Slovenia over requirements for an environmental impact assessment, which is quite a benign ask of any project. It has also launched legal action over Slovenia’s subsequent ban on fracking, introduced by its Parliament, and that case is still pending.
The energy charter treaty poses a huge threat to climate action. As states take the necessary steps to phase out or phase down fossil fuels, more and more fossil fuel giants will turn to such mechanisms to sue Governments. It has been estimated that if the UK Government follow the International Energy Agency’s recommended pathway and cancel oil and gas projects that are in the pipeline, they could face claims of up to £9.4 billion from the ECT alone.
Globally, there is a risk of up to $111.5 billion in claims, but that is clearly not the only risk. The most recent IPCC report warns that there is a risk of regulatory chill from investment agreements, and again it particularly highlights the ECT. The fear of being sued is causing Governments to delay or decide against taking the necessary action on climate. Last year, two countries acknowledged that that is already happening.
Countries across Europe are seeing the risks for what they are and are already taking action. Towards the end of 2022, there was a cascade of announcements from countries planning to exit the ECT. Germany, France, the Netherlands, Spain, Poland, Slovenia, Luxembourg and Denmark all said that they are leaving, and Italy has already left. The European Parliament has voted for a co-ordinated withdrawal of all EU countries, and the European Commission is now recommending that as well, because reform of the treaty has not worked and will not work. Current proposals for modernising the treaty are weak and do not have the support of many countries. They will mean that existing fossil fuel projects will remain protected for at least 10 years, and that some gas projects will be protected until 2040. Projects that have just been given new or extended licences, such as the Cambo oilfield, will be protected and all existing projects can still continue.
Reform has ultimately been a failure, and exiting the treaty is now the only option. Germany, France, the Netherlands, Spain and Slovenia have all referred to the incompatibility of the ECT with the Paris climate agreement and climate goals, and the EU Council recently decided that it will not support reform. If countries exiting the ECT do so in co-ordination, as seems to be happening, they could agree between each other not to apply the 20-year sunset clause, as has been suggested by several countries that are leaving.
In June, the Energy Minister at the time, the right hon. Member for Chelsea and Fulham (Greg Hands), said:
“The UK cannot support an outdated treaty which holds back investment in clean energy and puts British taxpayers at increased risk from costly legal challenges.”
That was stated in a press release on 24 June 2022. Back then, the Government wanted to put their trust in the reform proposals to fix the problem, but we have since seen country after country doing its own assessment and concluding that reform is not possible or has failed.
If the UK does not step up and become part of the vanguard for exiting the ECT, it could be left behind in an obsolete and collapsing treaty, bearing all the risks while others move on. Put simply, while we are still members of the ECT we will not be able to achieve the aims of the Bill and meet our net zero obligations without facing huge costs from the agreement. A co-ordinated withdrawal is the most effective way to protect taxpayers’ money, the planet and our future from this damaging treaty, and I urge the Minister to have a rethink.
I will not push this probing new clause to a vote, but I hope that it will allow the Minister the opportunity to set out the Government’s position on this very important issue. It is right that it is considered in this debate, but I accept that I probably will not get the support of Government Members in a vote.
The Parliamentary Under-Secretary of State for Energy Security and Net Zero (Andrew Bowie)
It is a pleasure to serve under your chairmanship, Mr Sharma, on the last morning that we gather together in this room to debate the Bill. I thank the hon. Member for Sheffield, Hallam for tabling her important new clause, which relates to an issue that I addressed in a Westminster Hall debate not that long ago.
The UK is committed to addressing the urgent need for climate action at home and abroad through our ambitious net zero targets and international commitments. The new clause would initiate procedures for the United Kingdom to withdraw from the energy charter treaty. His Majesty’s Government completely recognise that the treaty needs to be updated to reflect the current energy landscape, which is why we worked hard for two years at negotiating to modernise it; hence, the comments to which the hon. Lady referred—by the former Energy Minister, my right hon. Friend the Member for Chelsea and Fulham (Greg Hands)—were absolutely correct.
We wanted to bring the treaty into line with modern energy priorities, international treaty practice and international commitments on climate change. Unfortunately, the European Union and its member states were unable to endorse the adoption of modernisation at the energy charter conference. Yes, the European Parliament has voted to update the treaty, and the European Commission is advising that member states or the organisation withdraw, but the EU Council was unable to reach an agreement on modernisation, which is why we are where we are today.
Since the energy charter conference, we have engaged with stakeholders across business, civil society and Parliament, and we are carefully monitoring the positions of the other contracting parties—including the countries to which the hon. Lady referred—and the EU, in relation to the adoption of modernisation. In a context that continues to develop near weekly, we are carefully assessing how to take forward our priorities in relation to the treaty, but we cannot accept the new clause, which would require the UK to initiate procedures to withdraw. As I said, we will carefully consider where we stand.
The new clause would also require the Government to lay before Parliament a report detailing UK investment treaties covering the energy sector and the risks that they pose to the Secretary of State fulfilling their duties under the Climate Change Act. The UK has investment agreements with around 90 trading partners, and the agreements are the responsibility of the Department for Business and Trade. The Government’s right to regulate in the public interest, including in areas such as the environment and labour standards, is recognised in international law, and the Government are clear that when negotiating trade and investment agreements we will continue to protect our right to regulate.
I hope that that provides the hon. Member for Sheffield, Hallam with the reassurance she needs, and I humbly ask that she consider withdrawing her new clause.
Olivia Blake
I thank the Minister for his response. He will not be surprised that I am not satisfied with it, but I will not press the new clause to a vote. There are many risks in this area. Other countries have already taken the lead, and we are being left behind, which exposes us to a higher level of risk. I hope that the Minister will not only continue to consider the modernisation of the ECT but consider withdrawing from it. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 87
Government support for community energy
“(1) Within three months of the passage of this Act, the Secretary of State must publish and lay before Parliament a report setting out the financial, policy and other support that the Secretary of State plans to make available to widen the ownership of low carbon and renewable energy schemes and increase the number of such schemes owned, or part owned, by community organisations.
(2) The report must set out—
(a) all policies, programmes or other initiatives with which the Secretary of State plans to support the development and construction of new low carbon community energy schemes;
(b) the level of financial support which will be made available for—
(i) the Rural Community Energy Fund,
(ii) the Urban Renewable Energy Fund, and
(iii) any other fund or support package designed to support the development of new low carbon community energy schemes;
(c) all policies, programmes or other initiatives the Secretary of State intends will increase community ownership of local low carbon energy schemes through shared ownership schemes;
(d) the steps the Secretary of State is taking to develop new market rules to make it easier for low carbon community energy schemes to sell the energy they generate;
(e) the number and the capacity of the new community energy schemes the Secretary of State expects to be constructed as a result of the measures set out in the report.
(3) Not less than twelve months after the publication of the report, and not later than the end of each subsequent period of twelve months, ending five years after the publication of the report, the Secretary of State must lay before Parliament and publish an assessment of the progress made by the policies, programmes and other initiatives set out in the report.
(4) The assessment must set out—
(a) the total amount of financial support provided by the policies in the report;
(b) the number and capacity of low carbon community energy schemes —
(i) completed, and
(ii) in development;
(c) the number and capacity of new shared ownership schemes;
(d) any changes the Secretary of State proposes to make to the policies, programmes and other initiatives included in the original report.”—(Olivia Blake.)
This new clause is intended to replace clauses 272 and 273, if those clauses are removed as indicated by Government Amendments 15 and 16. It would require the Government to report annually for 5 years on the support it is providing to Community Energy schemes and the number and capacity of such schemes that are delivered.
Brought up, and read the First time.
Olivia Blake
I beg to move, That the clause be read a Second time.
I redeclare my interest: my husband is a company secretary of an organisation called Sheffield Renewables, which is a community benefit society that funds, develops, owns and operates renewable energy systems in Sheffield.
It might seem strange that I tabled new clause 87, given that the Lords passed Labour’s much stronger new clause on community energy. I am extremely disappointed that the Government voted to strike out any attempt to use the Bill to further support community energy schemes. Although the Minister made some comments about wanting to support community energy, the Bill is somewhat lacking in that regard. New clause 87 gives the Government an opportunity to support some elements of community energy schemes.
A Bill that talks about energy security but fails to help many community groups across the UK that are raring to provide clean, green energy seems to have failed from the outset. Many community groups are being offered funding, but they are unable to take up the opportunities because they are unsure and there is uncertainty in this space. I spoke last week about the huge and growing public support for community energy projects and the failure of Government policy to respond to it. I hope that my new clause, which I admit does not go nearly far enough, will focus minds on this important issue.
The new clause is quite straightforward: it gives the Minister three months to report on what support will be provided for community energy for the next five years. I chose that timescale because Ministers often assure us that the Government’s review of electricity market arrangements, or REMA, will improve community energy’s access to markets and thus improve its viability. I am therefore asking for reports on the stop-gap measures that are needed before those arrangements come in and for an extension to the period to deal with any delays.
I have to be honest: I am almost embarrassed by the new clause. With sky-high energy bills and the climate crisis, we should be acting, not reporting, but perhaps reports will stimulate a bit of growth in action on the Minister’s part. The new clause also does not propose new policies to support community energy. I stress that that is not because such policies are not needed. Were we to have a Labour Government, there would be something much more robust in the Bill on this policy area, like clauses 272 and 273, which the Opposition defended last week but the Government were successful in stripping from the Bill.
The new clause asks the Minister to report on how he will refinance and restart the urban and rural community energy funds, which closed when the initial money allocated was used up. In its former shape, his Department supported those schemes at the time, so there is no reason why, if the Minister wants to see more community energy, he could not relaunch them now, or look into doing so. The new clause leaves scope for other initiatives to be included in the report, whether new funds, new policies or a new approach to allowing community groups to buy into and benefit from larger commercial schemes in their area. It would require assessments of progress and updates to be done annually for five years after the report is published, to check that we are on track.
As I say, we should be doing so much more with the Bill in this space, but I would love to hear the Minister’s response to the new clause and to the idea that the Government should, at the very least, restart the support schemes that they have let lapse and report on progress until REMA is completed.
Alan Brown (Kilmarnock and Loudoun) (SNP)
It is a pleasure to serve under your chairmanship, Mr Sharma. I want to say a few words in support of new clause 87. As the hon. Member for Sheffield, Hallam outlined, it is not even that onerous, as it is about reporting going forward, although I always find that clauses that require reporting still have the Government running a mile, because they do not like to commit to it.
Government Members voted to remove from the Bill clauses 272 and 273, which were in favour of community energy schemes and putting in place arrangements to procure them. The argument from the Minister was:
“Introducing a fixed price would be a step backwards, as it requires all energy consumers to pay more than the market price for electricity to subsidise local communities that benefit from community energy projects.”––[Official Report, Energy Public Bill Committee, 20 June 2023; c. 357.]
I do not think it is too onerous to ask all billpayers to help to subsidise a few community schemes. Will the Minister write to the Committee to outline what additional costs the Government think would go on to all billpayers’ bills if there was a fixed price guarantee for local energy schemes? It is really important that we understand what the Government think the extra costs would be for billpayers.
The Government happily tell us that the regulated asset base model in the Nuclear Energy (Financing) Act 2022 will add £10 to every single bill in the UK. If that is the case and it is okay for nuclear, why do they not look at what the costs and benefits overall for local community energy schemes would be? That is my main point.
Will the Minister also write to the Committee to outline the amount of community energy that has been deployed each year in the last decade? That will allow us to understand the trends and how easy it is for community energy schemes to access the grid and the system and whether there are any blockers.
Finally, perhaps the Minister does not need to write to us on this, but will he spell out what he thinks the flaws are now in the original Local Electricity Bill that he did not see at the time, when he signed up as a supporter and sponsor of the Bill? What are the defects, since he is now against such a concept?
Andrew Bowie
I thank hon. Members for their contributions, and especially the hon. Member for Sheffield, Hallam for tabling new clause 87, which seeks to create a new community energy strategy, to be followed up with annual reports to Parliament on progress for the sector. The Committee discussed community energy in great detail last week—and a very enjoyable debate it was too. I reassure the Committee that the Government are, as we speak, looking closely at this matter. I urge all Members to watch this space.
Nevertheless, I remind Members that the Government’s general approach to community energy is already laid out in the net zero strategy and the net zero growth plan. As such, we do not see any added value in mandating a dedicated community energy strategy or annual report in the manner set out in the new clause. Instead, we believe it is more beneficial to the community energy sector for the Government to continue our approach to help local authorities and community energy groups to work together to develop funding for projects across the net zero agenda, with funding from existing sources such as UK growth funding schemes.
For example, the UK shared prosperity fund provides £2.6 billion in funding for investment in places, including for community infrastructure projects. Ofgem supports community energy projects and welcomes applications to the industry voluntary redress scheme. Through our local net zero hubs, we are supporting local authorities and community energy groups to work together, including by funding a pilot programme that supports local authorities to develop community-led energy groups and projects.
The Government have also reintroduced the community energy contact group to strengthen our engagement with the sector. I have already outlined our arguments as to why the new clause would not be fair, so I am afraid that I cannot commit to writing to the Committee, as the hon. Member for Kilmarnock and Loudoun asks me to. In relation to why my own personal position may be now what it is, I have always been, and remain, committed to supporting community-led energy groups across the country. That is why we are working to implement schemes to support those projects across the entire UK. We will continue to do so, and I will be their biggest champion.
Alan Brown
It was positive to hear the Minister say, “Watch this space” because the Government are reviewing things. However, I reiterate my request that he writes to the Committee to outline what he thinks the costs will be. That must be a Government concern if they are considering how to provide further support to community energy schemes. That is a serious request—I am not trying to be awkward. Also, how much community energy is being deployed each year?
Andrew Bowie
I would be delighted to engage in further discussion with the hon. Gentleman and other interested hon. Members. I will commit to ongoing engagement, but we do not believe that the new clause provides any added value.
Dr Alan Whitehead (Southampton, Test) (Lab)
The Minister said, “Watch this space”. It would be very helpful if he were to give us an outline of what the content of the space might actually look like.
Andrew Bowie
Far be it from me to spoil the enjoyment for hon. Members! I said this when we debated it last week, and I say it again: we continue to work on this. We continue to look at what more the Government can do to support community energy projects across the United Kingdom, and I will commit to provide an update on the next steps ahead of Report. I hope that is suitable for hon. Members. I do not believe that this new clause would add any value, so I encourage—indeed, I humbly beg—the hon. Member for Sheffield, Hallam to withdraw her new clause.
Olivia Blake
Beg the Minister might, but I will be pushing this new clause to a vote. The comments made by the SNP spokesperson, the hon. Member for Kilmarnock and Loudoun, and the Opposition spokesperson, my hon. Friend the Member for Southampton, Test, show why we are not completely confident that information from the Minister will be forthcoming, but I welcome his comments and his statement that he is currently looking at this and that there will be something ahead of Report. However, I truly feel that this new clause is the bare minimum requirement in this space, so we will push it to a vote.
Question put, That the clause be read a Second time.
Dr Whitehead
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under you, Mr Sharma, and I hope we will complete this Committee stage under your chairmanship today. New clause 88 involves a little bit of Energy Bill archaeology. I will explain what I mean by holding up a copy of the Energy Bill as it first appeared. Archaeology is necessary because it first appeared on 6 July 2022—we have been working on the Bill for that long.
Among the 270-odd clauses in the original Bill, clause 161 sought to extend the domestic gas and electricity tariff cap. Under the Domestic Gas and Electricity (Tariff Cap) Act 2018, the tariff cap has a defined life, and the original Bill would have amended the arrangements. The Act also introduced a carefully calibrated procedure to determine how long a cap should last. Ofgem is required to produce an annual report on the tariff cap and, if during that time market conditions have become more straightforward, it can recommend its removal. The report goes to a Minister, who then decides what will happen. This approach started in 2020. If Ofgem reports that market conditions have not returned to normal, the same procedure is carried out again the following year.
That process was time-limited to 2023. Quite clearly, market conditions have not returned to normal, so it is important to extend the mechanism. Essentially, that was what clause 161 in the original Bill did: it extended the arrangements to 2024 and 2025. Again, that was time-limited, with a sunset of 2025. As I recall, that important provision assured the industry and various others that the cap was being actively looked at. That gave a little bit of certainty to the industry, and its reaction was informed by the understanding that a reasonably objective test would carried out for the continuation or otherwise of the price cap.
I will roll forward rapidly to the end of September 2022 and the propitious day on which the right hon. Member for North East Somerset (Sir Jacob Rees-Mogg) became the Secretary of State for Business, Energy and Industrial Strategy. He lost no time in seeking to vandalise this provision by opportunistically inserting a stand-alone schedule to the Energy Prices Act 2022—which it had become necessary to pass—which addressed the enormous rise in prices, what Government intervention might look like and how it could be regulated.
Katherine Fletcher (South Ribble) (Con)
I appreciate that the hon. Gentleman is trying to bring some colour to his remarks, but does he agree that alluding to acts of physical violence in something so important is not a brilliant plan?
Dr Whitehead
I would agree if that were not my metaphorical way. Of course I do not believe that the former Secretary of State for Business, Energy and Industrial Strategy is going to take the Minister into a cupboard and do him over; it is a metaphor that I hoped might convey some of the possible lingering influence of the right hon. Member for North East Somerset on our present considerations. I am sure that the Minister will want to put that lingering influence out of his mind when considering what to do today.
After all the work that has been done on getting this clause back into the Bill, I confidently expect the Minister to greet it with acclamation. He does not have to do any work on it now, because it is ready to go. He can proceed with a Bill he can be proud of through its remaining stages in this House.
Andrew Bowie
For the record, let me make it absolutely clear that I have only the greatest respect for my right hon. Friend the Member for North East Somerset and that he has never expressed any desire to take me into a cupboard and, metaphorically or not, do me over. We enjoy a very good relationship. Although we disagree on some points of principle, we are broadly in agreement on the general direction of travel that is needed for the betterment of this country. I put on record my thanks for his service in supporting the Government in the various offices in which he served.
I also thank the hon. Member for Southampton, Test for tabling new clause 88. I note that it reflects the clauses that were in this Bill when it was first published in July last year, as he has pointed out. However, I am sure that it will not have escaped his notice that a great deal has happened to energy prices since then. Last September, the Government announced a massive package of support for consumers. As part of the work to deliver that package, the Domestic Gas and Electricity (Tariff Cap) Act 2018 was modified by the Energy Prices Act 2022, which received Royal Assent on 25 October.
Those modifications were made so that the tariff cap could function both as a cap to ensure that prices are efficient and as the reference price for the subsidy payments to households under the energy price guarantee. Although energy prices have now fallen below the level at which energy price guarantee payments are being made, it will remain in force until the end of March 2024 to protect households from price spikes. To ensure that the support rates under the energy price guarantee could be set and delivered effectively and quickly, the Energy Prices Act removed the requirement on Ofgem to carry out a review and to produce a report and recommendation to inform annual decisions by the Secretary of State on whether to extend the cap. As a result, there is now no automatic end date for the cap and the Secretary of State will give notice of when the tariff cap will end, but that does not change the fact that the tariff cap was always intended to be a temporary measure. It remains so, for now; as stated in the Government’s energy security plan, we intend to consult later this summer on the future of the price cap. In the light of my remarks, I hope that the hon. Member for Southampton, Test will feel that he can withdraw the new clause.
Dr Whitehead
I thank the Minister for his remarks. Water has indeed flowed under the bridge since the original intentions of the Bill were set out, but I think he has rather missed the point that I was trying to make. We are not saying that there should not be a price cap or that there should be no protection against price spikes and so on, which is what the price cap does at the moment. Nor are we saying that the market has returned to normal. What we are saying is that there was a perfectly good procedure in place, which could work perfectly well under the present circumstances, to give confidence to industry and various others that the price cap would be considered fairly carefully during its progress. That has been replaced by an occult process whereby the Secretary of State just has an idea or does not have an idea.
The whole framework of proper discussion, proper argument, proper reporting and proper consideration has been knocked away. The Minister says that there will be consultation on the future of the price cap at some stage, but I think he will agree that that is not a proper substitute for the clear arrangements that were originally in place under the 2018 Act and that were supposed to be in place under the Bill.
That is the point that we are trying to make: not that under the present circumstances the price cap has somewhat changed its function in terms of being a back-up to other measures that are in place for pricing, but that the long-term issue of the price cap itself was previously under careful consideration and now is not. That is the fundamental difference between the legislation as it was and the legislation as it is now, on a half-baked, un-thought-out basis, in the medium term.
I am both encouraged and disappointed by what the Minister has had to say. We want it on the record that we would like the proper procedures for price cap management to be reinstated. We have produced a method that can and will work, which I think hon. Members will agree is probably superior to a half-promise that something might happen at some stage, with some consideration being given to consultation. On that basis, we would like to press new clause 88 to a vote, so that at the very least we can place it on the record that we think it important and that we are disappointed that the Government do not appear to have taken our argument on board.
Question put, That the clause be read a Second time.
Dr Whitehead
I beg to move, That the clause be read a Second time.
The Committee will be delighted to know that I do not intend to detain it for any length of time on the new clause, which follows on from our earlier debate about the setting up of the independent system operator.
We think something is missing from the otherwise pretty comprehensive and good arrangement for the setting up, organisation and running of the independent system operator, which we completely support; although we would like to see the independent system operator playing more of a system architect role than is presently envisaged, in general we are absolutely for setting up the ISOP in the way that has been described. What ought to follow is at least a consideration of whether the arrangements between the ISOP and the distributed network operators, on which we tabled some amendments at the time, are sufficiently robust to enable a system operator function to operate at all levels of grid delivery. As I said a little while ago, there are decreasing distinctions between the lower-level grid operated by the DNOs and the high-level grid, which is the function of the National Grid ESO at the moment.
The possibility arises that it will be possible—more than possible—to establish regional independent system operators to perform, in conjunction with the ISOP, the same sort of function that is presently envisaged for the ISOP itself. That would be a slightly different function, inasmuch as the regional system operators could be responsible for what is increasingly likely to happen with regional balancing, ancillary services and other such things that are part of the emerging structure of the grid as a whole, as we move from a centralised to a much more decentralised grid arrangement.
RISOs, as I call them, would be able to play a substantial role in that. All new clause 88 suggests is that the Secretary of State produce a report on the advisability of establishing regional independent system operators. I called them RISOs a moment ago, but RISOs are actually duplicating machines favoured by those with left-wing tendencies producing leaflets; these would be RISOPs, which could be established to provide that important link arrangement between the high-level grid and the low-level grid for the future.
That is all, really, as far as the new clause is concerned. It does not require anything earth-moving to take place in the immediate future—just consideration of this arrangement. It may well be that just by raising the matter I will have put the thought in the Secretary of State’s mind that maybe we should consider going in that direction; it is certainly a direction the Opposition would consider going in if our roles on these Benches were reversed. My purpose in tabling new clause 89 was to raise the issue and see what the Minister has to say about it; I certainly do not intend to press it to a vote.
Andrew Bowie
For the record, may I point out that it is not just leaflet publishers of left-wing tendencies who are au fait with risograph printers? I have spent many hours standing by a RISO producing leaflets for those of centre-right tendencies.
I may be wrong but, according to my notes, this is the last new clause or amendment the hon. Member for Southampton, Test will speak to, so I thank him and the shadow team for the very collegiate way in which they have proceeded through Committee stage. I look forward to engaging with the hon. Gentleman again on Report and Third Reading, and indeed in the interim, when I am sure we will be corresponding. I thank all hon. Members for their contributions thus far.
New clause 89 speaks to the creation of a new set of bodies to deliver regional system operation and planning, and in many ways repeats the intentions of amendment 97, which the hon. Member for Southampton, Test tabled. As with that amendment, the new clause creates powers relating to the operation of distribution systems.
Ofgem has recently consulted on the future of local energy institutions and governance, with a focus on the creation of regional system planners specifically. That consultation closed on 10 May, and I suggest that this new clause prejudges the outcome of that work.
Alongside Ofgem, the Government will carefully consider the proposals we are consulting on. If we then proposed legislative or licence changes that affected the relationship between the ISOP and distribution networks, any additional functions accruing to the ISOP would be covered by the wording in clause 119(2)(b) and clause 134(3)(a). That is because those clauses allow for other functions to be conferred on the ISOP under, or by virtue of, legislation other than part 4.
I hope that puts the mind of the hon. Member for Southampton, Test at ease and that he feels able to withdraw his new clause.
Dr Whitehead
I have no further comments to make, other than to thank the Minister for his comments. There are indeed consultations under way through Ofgem, and I look forward to seeing what those have to say. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 90
Objections by planning authorities to applications for consent under section 36 or 37 of the Electricity Act 1989
“(1) Schedule 8 to the Electricity Act 1989 is amended as follows.
(2) Omit paragraph 2.
(3) In the cross-heading before paragraph 3, omit ‘by other persons’.
(4) In paragraph 3, omit sub-sub-paragraph (2)(a).”—(Alan Brown.)
This new clause would remove the ability of a local planning authority automatically to cause a public inquiry to be held by objecting to an application to the Secretary of State for consent under section 36 or 37 of the Electricity Act 1989, instead leaving Ministers to decide whether a public inquiry should be held.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 91—Variations of consents under section 37 of the Electricity Act 1989—
“(1) The Electricity Act 1989 is amended as follows.
(2) After section 37, insert—
‘37A Variation of consents under section 37
(1) The person for the time being entitled to the benefit of a section 37 consent may make an application to the Secretary of State for the consent to be varied.
(2) Regulations made by the Secretary of State may make provision about the variation of a section 37 consent, including in particular provision about—
(a) the making and withdrawal of applications;
(b) fees;
(c) publicity and consultation requirements;
(d) rights to make representations;
(e) public inquiries;
(f) consideration of applications.
(3) Regulations under subsection (2) may provide for any statutory provision applicable to the grant of a section 37 consent to apply with specified modifications to the variation of a section 37 consent.
(4) On an application for a section 37 consent to be varied, the appropriate authority may make such variations to the consent as appear to the authority to be appropriate, having regard (in particular) to—
(a) the applicant's reasons for seeking the variation;
(b) the variations proposed;
(c) any objections made to the proposed variations, the views of consultees and the outcome of any public inquiry.
(5) Regulations may make provision treating, for prescribed purposes, a section 37 consent varied under this section as granted in its varied form when the original consent was granted (rather than when the variation was made).
(7) In this section—
“section 37 consent” means a consent granted under section 37 (consent required for overhead lines), whenever granted;
“statutory provision” means a provision of or made under an Act, whenever passed or made; and for this purpose “Act” includes an Act of the Scottish Parliament and an Act of the Assembly.’”
This new clause would introduce into the Electricity Act 1989 provision for applications to vary consents under section 37 (consent required for overhead power lines), which currently, unlike consents under section 36 (construction, extension or operation of generating station), require a new application to be made for consent.
Alan Brown
The Committee must have been delighted that I managed to table two new clauses right at the deadline. Hopefully I will not detain the Committee too long.
These two new clauses derive from liaison and discussions that I had with Scottish and Southern Electricity Networks, which is responsible for the transmission system in the north of Scotland. Its work and infrastructure are clearly going to be integral to having a system that gets renewable energy from the north of Scotland to elsewhere in Great Britain and, in the case of surplus energy, to Ireland and Europe for export. The Minister is obviously well aware of that, given that it relates to his constituency, but hopefully he is also aware of the need to have a streamlined process that facilitates the deployment of critical grid infrastructure and has thought about the issues that the new clauses cover.
Taking offshore wind in the round, there is a target of 50 GW of deployment by 2030, although it has to be said that that was set largely on a whim by Boris Johnson, who raised the target from 30 GW, to 40 GW and then suddenly to 50 GW. Now, I am all for that ambition and that target, and if we achieve the deployment of 50 GW of offshore wind energy by 2030, that would be fantastic, but we need the policies and support in place to make that happen. Right now, even the Government’s own offshore wind champion, Tim Pick, says we are not going to hit that 50 GW target. So is the offshore wind champion still a champion who knows his stuff, or will the Minister explain why Tim Pick is wrong and why that 50 GW target will be achieved by 2030?
Tim Pick said that there is more likely to be 40 GW of deployment by 2030, which arguably would still be a significant achievement, but it would represent only 80% of the current target. The reality is that we have 14 GW of offshore wind deployed at the moment, so if we are to hit 50 GW by 2030, we need 5 GW of new offshore wind to come onstream every year until 2030.
Andrew Bowie
I thank the hon. Gentleman for his contributions on the new clauses. I have said in Committee, on the Floor of the House and elsewhere that this is the biggest challenge we face—connectivity and improving capacity in the grid—if we are to reach our targets, not just on our net zero commitments but in becoming more energy secure and delivering cheaper bills for the British people.
I recognise that the speed of electricity consenting in Scotland is critical to those aims and to the whole UK economy, as I have just suggested. It is important to enable rapid deployment of renewable energy generation and of the transmission lines needed to transport it to consumers across the country. With that goal in mind, we are aware that areas of the Scottish planning system need to be reviewed—specifically the ones that the hon. Member for Kilmarnock and Loudoun just mentioned—and we are committed to speeding up planning decisions across the UK wherever possible.
I am sure, however, that we are all in agreement—I know the hon. Gentleman is—that the issues are incredibly complex and multifaceted, and that any potential changes need to be carefully considered to ensure they are the right ones for consumers and the network. For example, as the Electricity Act 1989 applies to projects in England and Wales less than 132 kV and 2 km, and to all transmission projects in Scotland, we need to be certain that any amendments to the Bill would not have unintended consequences elsewhere. Moreover, we would not want to remove an automatic inquiry trigger without understanding what could replace that process.
The Government share the concerns of the hon. Member for Kilmarnock and Loudoun and we want to find a solution. I have had constructive discussion with the Energy Minister in the Scottish Government and within my Department on how to resolve this issue moving forward, but I am interested to meet the hon. Gentleman and anyone else he might suggest so that we can work together on a solution to this complicated issue. I therefore do not feel that we can accept his new clauses, and I would be grateful if he did not press them to a vote.
Alan Brown
I was shocked when the Minister said that he could not accept the new clauses—I did not see that coming! I am having to think on my feet, because I am completely thrown. Column 1 Column 2 A Minister of the Crown Section (Power of OGA to require information and samples) or (Sanctions: information powers) His Majesty’s Revenue and Customs Section (Power of OGA to require information and samples) or (Sanctions: information powers) The Competition and Markets Authority Section (Power of OGA to require information and samples) or (Sanctions: information powers) The Scottish Ministers Section (Power of OGA to require information and samples) The Welsh Ministers Section (Power of OGA to require information and samples) A Northern Ireland Department Section (Power of OGA to require information and samples) The Office for Budget Responsibility Section (Power of OGA to require information and samples) An enforcing authority Section (Power of OGA to require information and samples) or (Sanctions: information powers) The Statistics Board Section (Power of OGA to require information and samples) or (Sanctions: information powers) The GEMA Section (Power of OGA to require information and samples) or (Sanctions: information powers) The Crown Estate Section (Power of OGA to require information and samples) A manager of the Crown Estate in Scotland Section (Power of OGA to require information and samples)
To make a serious point, I appreciate the Minister’s offer of a meeting, and I would like to take that up. I suggest that we have someone from the industry there as well. I am happy to work with the Minister to see how we can resolve the matter. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Schedule 1
Permitted disclosures of material obtained by OGA
“Disclosure by OGA to specified persons
1 (1) Section (Prohibition on disclosure) does not prohibit a disclosure of protected material by the OGA which—
(a) is made to a person mentioned in column 1 of the table below,
(b) is made for the purpose of facilitating the carrying out of that person’s functions, and
(c) is a disclosure of protected material obtained by the OGA under a provision mentioned in the corresponding entry of column 2 of the table.
(2) In the table—
‘enforcing authority’ has the same meaning as in Part 1 of the Health and Safety at Work etc Act 1974 (see section 18(7)(a) of that Act);
‘manager of the Crown Estate in Scotland’ means a person who for the time being is discharging functions in relation to the management of any property, rights or interests to which section 90B(5) of the Scotland Act 1998 applies;
‘Minister of the Crown’ has the same meaning as in the Ministers of the Crown Act 1975.
(3) Section (Prohibition on disclosure) does not prohibit a disclosure of protected material by the OGA which—
(a) is a disclosure of protected material obtained by it under section (Power of OGA to require information and samples),
(b) is made to the Natural Environment Research Council, or any other similar body carrying on geological activities, and
(c) is made for the purpose of enabling the body to prepare and publish reports and surveys of a general nature using information derived from the protected material.
(4) A person to whom protected material is disclosed by virtue of sub-paragraph (1) or (3) may use the protected material only for the purpose mentioned in sub-paragraph (1)(b) or (3)(c) (as the case may be).
(5) Section (Prohibition on disclosure) does not prohibit a person mentioned in sub-paragraph (4) from disclosing the protected material so far as necessary for the purpose mentioned in that sub-paragraph.
(6) The Secretary of State may by regulations amend the table in sub-paragraph (1)—
(a) to remove a person from column 1,
(b) to add to column 1 a person to whom sub-paragraph (7) applies, or
(c) to add, remove or change entries in column 2.
(7) This sub-paragraph applies to—
(a) persons holding office under the Crown;
(b) persons in the service or employment of the Crown;
(c) persons acting on behalf of the Crown;
(d) government departments;
(e) publicly owned companies as defined in section 6 of the Freedom of Information Act 2000.
(8) Regulations under sub-paragraph (6) are subject to the affirmative procedure.
Disclosure required for returns and reports prepared by OGA
2 (1) Section (Prohibition on disclosure) does not prohibit the OGA from using protected material obtained by the OGA under section (Power of OGA to require information and samples) for the purpose of—
(a) preparing such returns and reports as may be required under obligations imposed by or under any Act;
(b) preparing and publishing reports and surveys of a general nature using information derived from the protected material.
(2) Section (Prohibition on disclosure) does not prohibit the OGA from disclosing protected material so far as necessary for those purposes.
Disclosure in exercise of certain OGA powers
3 (3) Section (Prohibition on disclosure) does not prohibit a disclosure of protected material if it is made in the exercise of the OGA’s powers under section (Publication of details of sanctions) (publication of details of sanctions).
Disclosure after specified period
4 (1) Section (Prohibition on disclosure) does not prohibit protected material obtained by the OGA under section (Power of OGA to require information and samples) from being—
(a) published, or
(b) made available to the public (where the protected material includes samples),
by the OGA or a subsequent holder at such time as may be specified in regulations made by the Secretary of State.
(2) Regulations under sub-paragraph (1) may include provision permitting protected material to be published, or made available to the public, immediately after it is provided to a person.
(3) Before making regulations under sub-paragraph (1), the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(4) Sub-paragraph (3) does not apply if the Secretary of State is satisfied that consultation is unnecessary having regard to consultation carried out by the OGA in relation to what time should be specified in regulations under sub-paragraph (1).
(5) Regulations under sub-paragraph (1) are subject to the affirmative procedure.
(6) In determining the time to be specified in respect of protected material in regulations under sub-paragraph (1), the Secretary of State must have regard to the following factors—
(a) whether the specified time will allow owners of protected material a reasonable period of time to satisfy the main purpose for which they acquired or created the material;
(b) any potential benefits to the [carbon storage] industry of protected material being published or made available at the specified time;
(c) any potential risk that the specified time may discourage persons from acquiring or creating carbon storage information or carbon storage samples;
(d) any other factors the Secretary of State considers relevant.
(7) In balancing the factors mentioned in sub-paragraph (6)(a) to (d), the Secretary of State must take into account the principal objectives of the Secretary of State set out in section 1(1).
(8) For the purposes of sub-paragraph (6)(a), the owner of protected material is the person by whom, or on whose behalf, the protected material was provided to the OGA under section (Power of OGA to require information and samples).
Disclosure with appropriate consent
5 (1) Section (Prohibition on disclosure) does not prohibit a disclosure of protected material if it is made with the appropriate consent.
(2) For this purpose a disclosure is made with the appropriate consent if—
(a) in the case of disclosure by the OGA, the original owner consents to the disclosure;
(b) in the case of disclosure by a subsequent holder—
(i) the OGA consents to the disclosure, and
(ii) where the protected material in question was provided to the OGA under section (Power of OGA to require information and samples), the OGA confirms that the original owner of the material also consents to the disclosure.
(3) For the purposes of sub-paragraph (2), the original owner of protected material provided to the OGA is the person by whom, or on whose behalf, the protected material was so provided.
Disclosure required by legislation
6 Section (Prohibition on disclosure) does not prohibit a disclosure of protected material required by virtue of an obligation imposed by or under this or any other Act.
Disclosure for purpose of proceedings
7 (1) Section (Prohibition on disclosure) does not prohibit a disclosure of protected material by the OGA for the purposes of, or in connection with—
(a) civil proceedings, or
(b) arbitration proceedings.
(2) Section (Prohibition on disclosure) does not prohibit a disclosure of protected material by the OGA for the purposes of, or in connection with—
(a) the investigation or prosecution of criminal offences, or
(b) the prevention of criminal activity.”—(Andrew Bowie.)
This new schedule contains provision about permitted disclosures of material obtained by the OGA for the purposes of NC14.
Brought up, and read the First and Second time, and added to the Bill.
New Schedule 2
Carbon storage information and samples: appeals
“Part 1
Appeals against decisions relating to information and samples
Appeals in relation to information and samples plans
1 (1) A person affected by any decision of the OGA to which effect is given by the preparation of an information and samples plan may appeal against it to the Tribunal—
(a) on the ground that the decision was not within the powers of the OGA, or
(b) on the ground that the plan is unreasonable.
(2) On an appeal under this paragraph the Tribunal may—
(a) affirm, vary or quash the decision under appeal,
(b) remit the decision under appeal to the OGA for reconsideration with such directions (if any) as the Tribunal considers appropriate, or
(c) substitute its own decision for the decision under appeal.
Appeals against notices requiring provision of information or samples
(1) A person affected by any decision of the OGA to which effect is given by the giving of a notice requiring the provision of information or samples under section (Power of OGA to require information and samples) may appeal against it to the Tribunal—
(a) on the ground that the decision was not within the powers of the OGA, or
(b) on the ground that the length of time given to comply with the notice is unreasonable.
(2) On an appeal under this paragraph the Tribunal may—
(a) affirm, vary or quash the decision under appeal,
(b) remit the decision under appeal to the OGA for reconsideration with such directions (if any) as the Tribunal considers appropriate, or
(c) substitute its own decision for the decision under appeal.
Part 2
Appeals relating to enforcement of sanctionable requirements
Appeals in relation to sanction notices
(1) Where a sanction notice is given under section (Power of OGA to give sanction notices) in respect of a failure to comply with a sanctionable requirement, an appeal may be made—
(a) under paragraph 4 (on the ground that there was no such failure to comply);
(b) under paragraph 5 (against the sanction imposed by the notice).
(2) Where an appeal is made in relation to a sanction notice, the notice ceases to have effect until a decision is made by the Tribunal to confirm, vary or cancel the notice.
(3) Where, on an appeal made in relation to a sanction notice—
(a) the Tribunal makes a decision to confirm or vary the notice, and
(b) an appeal is or may be made in relation to that decision,
the Tribunal, or the Upper Tribunal, may further suspend the effect of the notice pending a decision which disposes of proceedings on such an appeal.
Appeals against finding of failure to comply
4 (1) An appeal may be made to the Tribunal by the person, or by any of the persons, to whom a sanction notice is given in respect of a failure to comply with a sanctionable requirement, on the grounds that the person, or persons, did not fail to comply with the requirement.
(2) On an appeal under this paragraph, the Tribunal may confirm or cancel the sanction notice.
(3) Where sanction notices are given on more than one occasion in respect of the same failure to comply with a sanctionable requirement—
(a) an appeal under this paragraph may be made only in relation to the sanction notice, or any of the sanction notices, given on the first of those occasions, and
(b) appeals in relation to sanction notices given on subsequent occasions in respect of that failure to comply may be made only under paragraph 5.
Appeals against sanction imposed
(1) Where a sanction notice is given in respect of a failure to comply with a sanctionable requirement, a person mentioned in sub-paragraph (2) may appeal to the Tribunal against any of the decisions of the OGA mentioned in sub-paragraph (3) (as to the sanction imposed by the notice) on the grounds mentioned in sub-paragraph (4).
(2) The persons who may appeal are—
(a) the person, or any of the persons, to whom the notice was given, and
(b) in the case of an operator removal notice under section (Operator removal notices), the licensee under whose carbon storage licence the exploration operator operates.
(3) The decisions against which an appeal may be made are—
(a) where an enforcement notice has been given, the decision as to—
(i) the measures that are required to be taken for the purposes of compliance with the sanctionable requirement, or
(ii) the period for compliance with the sanctionable requirement;
(b) where a financial penalty notice has been given, the decision—
(i) to impose a financial penalty, or
(ii) as to the amount of the financial penalty imposed;
(c) where a revocation notice has been given, the decision to revoke the storage permit;
(d) where an operator removal notice has been given, the decision to require the removal of the exploration operator.
(4) The grounds on which an appeal may be made are that the decision of the OGA—
(a) was unreasonable, or
(b) was not within the powers of the OGA.
(5) On an appeal under this paragraph against a decision made in relation to an enforcement notice, the Tribunal may—
(a) confirm or quash the decision, in the case of a decision mentioned in sub-paragraph (3)(a)(i) (remedial action), or
(b) confirm or vary the decision, in the case of a decision mentioned in sub-paragraph (3)(a)(ii) (period for compliance),
and confirm, vary or cancel the enforcement notice accordingly.
(6) On an appeal under this paragraph against a decision made in relation to a financial penalty notice, the Tribunal may—
(a) confirm or quash the decision, in the case of a decision mentioned in sub-paragraph (3)(b)(i) (imposition of penalty), or
(b) confirm or vary the decision, in the case of a decision mentioned in sub-paragraph (3)(b)(ii) (amount of penalty),
and confirm, vary or cancel the financial penalty notice accordingly.
(7) The Tribunal must have regard to any guidance issued by the OGA under section (Financial penalty notices) (6)(a) when deciding whether to confirm or vary a decision as to the amount of a financial penalty under sub-paragraph (6)(b).
(8) On an appeal under this paragraph against a decision to revoke a storage permit or to require the removal of an exploration operator the Tribunal may—
(a) confirm the decision,
(b) vary the decision by changing the revocation date or the removal date, as the case may be, or
(c) quash the decision,
and confirm, vary or cancel the sanction notice in question accordingly.
(9) Where a decision is quashed under sub-paragraph (5)(a), (6)(a) or (8), the Tribunal may remit the decision to the OGA for reconsideration with such directions (if any) as the Tribunal considers appropriate.
Appeals against information requirements
(1) A person to whom a notice is given under section (Sanctions: information powers) may appeal against it to the Tribunal on the grounds that—
(a) the giving of the notice is not within the powers of the OGA, or
(b) the length of time given to comply with the notice is unreasonable.
(2) On an appeal under this paragraph the Tribunal may—
(a) confirm, vary or cancel the notice, or
(b) remit the matter under appeal to the OGA for reconsideration with such directions (if any) as the Tribunal considers appropriate.”—(Andrew Bowie.)
This new schedule contains provision about appeals in connection with the new Chapter intended to be formed by NC8 to NC28 (see the explanatory statement for NC8).
Brought up, read the First and Second time, and added to the Bill.
Clause 274
Power to make consequential provision
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 114, in clause 275, page 242, line 31, at end insert—
“(10A) The Secretary of State may not make regulations under this Act which would affect any matter within the competence of the Scottish Parliament unless the Secretary of State has first—
(a) consulted the Scottish Ministers on a draft of the regulations; and
(b) obtained the consent of the Scottish Parliament to the regulations.”
Clauses 275 to 277 stand part.
Government amendments 171, 172, 123, 133, 131 and 175.
Clause 278 stand part.
Government amendment 17.
Clause 279 stand part.
Andrew Bowie
I have just a 3,000-word speech—[Laughter.]
Government amendment 171 is consequential on the previously debated new clauses associated with providing powers to the Secretary of State to design and allocate a RAB as part of the hydrogen transport business model. It sets out that these new clauses come into force two months after Royal Assent.
Government amendment 172 is consequential on the previously debated Government new clause 72, associated with providing powers to the Secretary of State to modify the Gas Act 1986 in relation to hydrogen. It sets out that Government new clause 72 comes into force two months after Royal Assent.
Government amendments 123 and 133 are consequential and necessary to ensure that the previously debated Government new cause 52, on the Ofgem net zero duty, and new clauses 53 and 54, on energy-intensive industries, come into force two months after Royal Assent.
Government amendment 131, alongside Government new clause 55, which we have already discussed, will provide the Secretary of State with the power to make changes to the Nuclear Installations Act 1965 regarding the convention on supplementary compensation for nuclear damage and other relevant legislation, if required in the future. That would be by means of an order made through the affirmative procedure. This power will come into force two months after Royal Assent.
Government amendment 175 means that the new clauses relating to Great British Nuclear come into force two months after Royal Assent. Government amendment 17 removes the privilege amendment added to the Bill by the Lords. That is standard procedure.
Clauses 274 to 279 are general tidying-up provisions at the end of the Bill. Clause 274 provides the Secretary of State with a regulation-making power to make consequential amendments that arise from the Bill.
Clause 275 provides that regulations made under the Bill are to be made by statutory instrument. Clause 276 provides information on how terms that are used throughout the Bill should be interpreted in the Bill. Separate interpretation provisions are found in other parts of the Bill where those terms appear only in those parts.
Clause 277 sets out the territorial extent of provisions in the Bill. Clause 278 sets out when the provisions in the Bill come into force. Finally, clause 279 confirms the short title by which the Bill may be cited.
Dr Whitehead
I also have a 3,000-word speech, but I will not give it today. The Government amendments and clauses are wholly unexceptional, and are essential for the speed of the Bill. I have nothing further to add to what the Minister said.
Alan Brown
I will be brief. Amendment 114 is about getting the consent of Scottish Ministers before the passing of regulations. I could have tabled it to any number of previous clauses, but this is the most appropriate clause for it to relate to, because it relates to the regulations made under the whole Bill.
There has been talk of collegiate working—the two Governments working together—and the Minister said that he wants to find a different process, but there remain concerns that unless there is a firmed-up process, there is a risk that, somewhere down the line, policies and regulations will be proposed against the consent of Scottish Ministers.
The Scottish Government support the Bill; we are working together in these policy areas. It is not about trying to give the Scottish Government some sort of veto but about working together and ensuring that processes are in place that allow for not just consultation but taking the advice and wishes of the Scottish Government on board.
I know that the word “consent” always makes the Westminster Government very nervous, because they think it gives too much power to the Scottish Parliament, but it is not about that. It is not about political fights; it is about working together and ensuring that the wishes of the Scottish Government in respect of energy matters and considerations are taken on board.
Andrew Bowie
I thank the hon. Member for Kilmarnock and Loudoun for amendment 114. I highlight the fact that the UK Government have worked closely and constructively with the devolved Governments during the preparation and passage of the Bill. As I have said already, I recently met the Scottish Minister for Energy and the Environment, Gillian Martin, to discuss the topic of this amendment. As I mentioned, the negotiations on the legislative consent motion are still ongoing, and I would not want to prejudge any of those discussions.
The Bill has been carefully designed to respect the devolution settlements. We have already included consultation requirements with the devolved Governments in areas where the Bill provides powers to make regulations in devolved areas, and we have offered to enhance them. Those requirements provide Scottish Ministers with appropriate opportunities to contribute to the development of regulations. Indeed, British Government officials regularly engage with their Scottish Government counterparts and share information on any upcoming UK Government secondary legislation that legislates on devolved matters in Scotland. We will, of course, continue to do so.
Amendment 114 would require consent from the Scottish Parliament for each regulation. I and the Government believe that imposing a blanket consent procedure and a lengthy process on future secondary legislation is unnecessary, creates additional administrative burdens and risks the making of future legislation. I hope that, with those comments, the hon. Gentleman will find it within himself to withdraw his amendment.
Alan Brown
I do not think it would be an unnecessary legislative burden, to be honest. If it is some simple process, consent will be equally simple to achieve, so I do not think it would unduly delay things or overcomplicate them. I will not press amendment 114, but I reserve the right to table it on Report, because I really want to ensure that things are resolved to the satisfaction of each side.
Question put and agreed to.
Clause 274 accordingly ordered to stand part of the Bill.
Clause 275
Regulations
Amendment made: 19, in clause 275, page 241, line 35, after “State” insert “, the Treasury”.—(Andrew Bowie.)
This amendment provides for regulations made by the Treasury to be made by statutory instrument. This will affect regulations under paragraph 9 of Schedule 7.
Clause 275, as amended, ordered to stand part of the Bill.
Clauses 276 ordered to stand part of the Bill.
Clause 277
Extent
Amendments made: 168, in clause 277, page 243, line 6, at end insert
“, except section (Power to modify Gas Act 1986 in relation to hydrogen)”.
This amendment is consequential on Amendment 170.
Amendment 169, in clause 277, page 243, line 16, at end insert—
“(aa) sections (Key definitions for Part), (Designation), (Designation: procedure), (Revocation of designation), (Grant, extension or restriction of gas transporter licence by Secretary of State), (Applications for grant etc of gas transporter licence), (Modification of gas transporter licence by Secretary of State), (Scope of modification powers under section (Modification of gas transporter licence by Secretary of State)), (Procedure etc relating to modifications under section (Modification of gas transporter licence by Secretary of State)), (Information and advice), (Conditions of gas transporter licences for conveyance of hydrogen), (Secretary of State directions to the GEMA) and (Repeal of Part);”.
This amendment provides for the new clauses that are intended to form a new Part inserted after Part 2 to extend to England and Wales and Scotland.
Amendment 170, in clause 277, page 243, line 17, at end insert—
“(ba) section (Power to modify Gas Act 1986 in relation to hydrogen);”.
This amendment provides for NC72 to extend to England and Wales and Scotland.
Amendment 174, in clause 277, page 243, line 22, at end insert—
“(h) sections (Great British Nuclear), (Crown status), (Great British Nuclear’s objects), (Financial assistance), (Secretary of State directions and guidance), (Annual report), (Annual accounts), (Transfer schemes), (Transfer schemes: compensation), (Transfer schemes: taxation), (Transfer schemes: provision of information or assistance), (Reimbursement and compensation in connection with designation) and (Pension arrangements in connection with Great British Nuclear);”.—(Andrew Bowie.)
This amendment means that the new clauses relating to Great British Nuclear extend to England and Wales and Scotland.
Clause 277, as amended, ordered to stand part of the Bill.
Clause 278
Commencement
Amendments made: 171, in clause 278, page 244, line 7, at end insert—
“(ba) sections (Key definitions for Part), (Designation), (Designation: procedure), (Revocation of designation), (Grant, extension or restriction of gas transporter licence by Secretary of State), (Applications for grant etc of gas transporter licence), (Modification of gas transporter licence by Secretary of State), (Scope of modification powers under section (Modification of gas transporter licence by Secretary of State)), (Procedure etc relating to modifications under section (Modification of gas transporter licence by Secretary of State)), (Information and advice), (Conditions of gas transporter licences for conveyance of hydrogen), (Secretary of State directions to the GEMA) and (Repeal of Part);”.
This amendment provides for the new clauses that are intended to form a new Part, to be inserted after Part 2, to come into force two months after Royal Assent.
Amendment 172, in clause 278, page 244, line 9, at end insert—
“(ea) section (Power to modify Gas Act 1986 in relation to hydrogen);”.
This amendment provides for NC72 to come into force two months after Royal Assent.
Amendment 123, in clause 278, page 244, line 10, at end insert—
“(ea) section (Principal objectives of Secretary of State and GEMA);”.
This amendment provides for NC52 to come into force two months after Royal Assent.
Amendment 133, in clause 278, page 244, line 12, at end insert—
“(ga) sections (Electricity support payments for energy-intensive industries) and (Levy to fund electricity support payments);”.
This amendment provides for NC53 and NC54 to come into force two months after Royal Assent.
Amendment 131, in clause 278, page 244, line 16, at end insert—
“(l) section (Convention on Supplementary Compensation for Nuclear Damage: implementation power).”.
This amendment provides for NC55 to come into force 2 months after Royal Assent.
Amendment 175, in clause 278, page 244, line 16, at end insert—
“(l) sections (Great British Nuclear), (Crown status), (Great British Nuclear’s objects), (Financial assistance), (Secretary of State directions and guidance), (Annual report), (Annual accounts), (Transfer schemes), (Transfer schemes: compensation), (Transfer schemes: taxation), (Transfer schemes: provision of information or assistance), (Reimbursement and compensation in connection with designation) and (Pension arrangements in connection with Great British Nuclear);”.—(Andrew Bowie.)
This amendment means that the new clauses relating to Great British Nuclear come into force 2 months after Royal Assent.
Clause 278, as amended, ordered to stand part of the Bill.
Clause 279
Short title
Amendment made: 17, in clause 279, page 244, line 29, leave out subsection (2).—(Andrew Bowie.)
This amendment removes the privilege amendment inserted by the Lords.
Clause 279, as amended, ordered to stand part of the Bill.
Title
Andrew Bowie
I beg to move amendment 11, in title, line 3, leave out “industrial”.
This amendment is consequential on Amendment 10.
Andrew Bowie
The amendments simply make changes to the Bill’s long title to reflect amendments made in Committee. The amendments reflect the introduction of measures on greenhouse gas removals, hydrogen transport and storage, and energy-intensive industries, and ensure that they are reflected in the Bill’s long title.
Amendment 11 agreed to.
Amendments made: 173, in title, line 4, after “production” insert “and transportation”.
This amendment makes a change to the long title to reflect NC59, NC60, NC61, NC62, NC63, NC64, NC65, NC66, NC67, NC68, NC70 and NC71 (which are intended to form a new Part to be inserted after Part 2).
Amendment 134, in title, line 7, after “codes;” insert—
“about financial support for persons carrying on energy-intensive activities;”.—(Andrew Bowie.)
This amendment is consequential on NC53 and NC54. It reflects those new clauses in the Bill’s long title.
Question proposed, That the Chair do report the Bill, as amended, to the House.
Andrew Bowie
Thank you, Mr Sharma, for your excellent chairing of the Committee this morning, and thank you to Mr Gray, Dr Huq and Ms Nokes for their equally excellent chairmanship over the course of the Committee.
I pay special tribute to the Clerks and to my officials for their tireless work on what is quite a hefty piece of legislation. I also thank Members on both sides of the Committee for the constructive, thoughtful and insightful debate on this landmark Bill. I have already thanked the shadow Minister, the hon. Member for Southampton, Test, for his overall support, and for our way of working in Committee, which has been collegiate and good mannered—well, not good mannered. [Interruption.] Bad mannered! [Laughter.] Although we have not agreed on every detail, I thank him for his knowledgeable contributions.
The Energy Bill will provide a clear, more affordable and more secure energy system. It will liberate private investment, including in technologies, reform our energy system so that it is fit for purpose, and ensure its safety, security and resilience. I look forward to working with everyone present to take the Bill through Report stage and on to Royal Assent.
Dr Whitehead
I associate myself with the Minister’s remarks concerning your excellent chairing, Mr Sharma, and that of your colleagues the hon. Member for North Wiltshire (James Gray), my hon. Friend the Member for Ealing Central and Acton (Dr Huq) and my constituency neighbour the right hon. Member for Romsey and Southampton North (Caroline Nokes). I hope that you can convey to them the thanks of all Committee members for their excellent work in bringing the Committee to its conclusion.
I also thank, beyond the normal level of thanks, the Committee Clerks, who have been of tremendous assistance to me in bringing forward the sinews for debate by way of the amendments and new clauses, all in perfect order and debated accordingly. In my relatively long experience of taking Bills through the House, their work has been way beyond the call of duty, for which I am very grateful to them.
I believe the Minister is the record holder of fastest House of Commons runner in the London marathon ever.
Dr Whitehead
I think it was ever, but perhaps we should have a rerun. It is rather appropriate that we have got through this marathon Bill in good order and in good time. The Minister is very substantially responsible, not least with his speed-reading skills, for managing us through that lengthy process, and I thank him for that. I also thank him for his good humour, collegiality and careful consideration of the points that we have put forward.
We of course do not agree with everything that has come out of the Committee, and we will pursue some of those things during the Bill’s later stages, but I hope that I can say on behalf of the whole Committee that, overall, we have between us delivered a Bill that fundamentally we pretty much agree on through to its next stages in relatively good order. That is not always the case in this place, and it is something we can all be quite proud of. That is the end of my thanks. I hope that everyone will be happy with having the afternoon off, now that we can move forward to Report stage.
Alan Brown
Thank you, Mr Sharma. I echo the thanks to you as Chair, and to the other three Chairs. Special thanks go to the Clerks, particularly those in the Public Bill Office. It is amazing how what I think is a simple, two-line email request becomes a full page of amendments. I thank them particularly for helping me to get new clauses 90 and 91 sorted on Monday. That diligence is appreciated, although apparently not by all Government Members.
I thank the Doorkeepers. It is a remarkable skill to have the patience to sit here in these Committees and listen to the often dry debate. I find that listening to politicians is quite tedious at times—[Hon. Members: “No!”] Okay, but it is a special skill, so thanks to the Doorkeepers.
The Bill has been welcomed on a cross-party basis. As the shadow Minister said, from our perspective there are still some outstanding issues, which hopefully we can iron out on Report. Let us get going.
Question put and agreed to.
Bill, as amended, accordingly to be reported.
Victims and Prisoners Bill (Eighth sitting)
Thursday 29th 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 29 June 2023 - (29 Jun 2023)
The Minister of State, Ministry of Justice (Edward Argar)
I beg to move amendment 27, in clause 2, page 3, line 15, leave out
“function of a relevant prosecutor”
and insert “prosecution function”.
This amendment and Amendment 28 substitute a reference to persons exercising a prosecution function for the defined term “relevant prosecutor”. The victims’ code may not make provision requiring anything to be done by such persons.
The Chair
With this it will be convenient to discuss the following:
Government amendment 28.
Clause stand part.
Edward Argar
Amendments 27 and 28 are minor technical amendments that have been tabled to better meet our intention to prevent the victims code from interfering with independent prosecutorial decision making. Clause 2 sets out that the victims code cannot place requirements on relevant prosecutors in relation to their prosecutorial discretion. This is an important safeguard, which reflects our constitutional arrangements, and allows the code to set expectations in relation to service provider procedures and how they should treat victims, but not to interfere with prosecutorial discretion to make decisions in particular cases.
The Bill currently refers to a relevant prosecutor, which is defined under section 29 of the Criminal Justice Act 2003, and includes service providers such as the police and the Crown Prosecution Service. However, some other service providers under the current code also have a prosecutorial function and are not covered by the existing list, including bodies such as the Health and Safety Executive and the Competition and Markets Authority. These service providers have functions in relation to the investigation or prosecution of specific types of offences or offences committed in certain circumstances. To ensure all service providers are covered now and in the future, the amendment sets out that the code cannot interfere with prosecutorial discretion, regardless of which prosecutor is involved.
Maria Eagle (Garston and Halewood) (Lab)
The Minister will be aware that there have been controversies surrounding private prosecutions—the Horizon scandal springs to mind—but that there are also other private prosecutors who in individual cases might decide to take prosecutions. Will these amendments do enough to cover all of them?
Edward Argar
My understanding is that they will, but will the right hon. Lady allow me to confirm that? If at any point I have inadvertently misled the Committee, I will make a correction in the usual way.
Clause 2 provides the legal framework for the victims code and places an obligation on the Secretary of State to issue a code of practice setting out the services to be provided to victims by different parts of the criminal justice system. It also sets out the overarching principles that the victims code must reflect. These are the principles that victims should: be provided with information to help them understand the criminal justice process; be able to access services which support them, including specialist services; have the opportunity to make their views heard; and be able to challenge decisions that directly affect them. We know that those principles are important for victims, and our consultation showed us that most respondents believe them to be the right ones to focus on.
Placing those overarching principles in legislation will send a clear signal about what victims can and should expect from agencies within the criminal justice system. This will help to future-proof the code and ensure that it continues to capture the key services that victims can expect, while still allowing a degree of flexibility in the code itself. We have retained the more detailed victims’ entitlements in the code, as this offers a more flexible way to ensure that they can be kept up to date, rather than by placing them in primary legislation on the face of the Bill. Agencies are already expected to deliver the entitlements in the code and they will be required to justify any departure from it if challenged by victims or by the courts.
To safeguard the topics that the code should cover, the clause allows for regulations to be made about the code. We will use the 12 key entitlements contained in the current code to create a framework for the new code and regulations. This will enhance parliamentary oversight of the code by setting the structure out in secondary legislation, and will allow more flexibility than primary legislation to make any necessary changes in the future if the needs of victims require changes in policies or operational practices. The power to make regulations has appropriate safeguards set out in the clause, in that regulations can only be made using this power if the Secretary of State is satisfied that they will not result in significant weakening of the code in terms of the quality, extent or reach of services provided.
Rather than specifying the details of particular entitlements for particular victims, the clause allows the code flexibility to make different provision for different groups of victims or for different service providers. That means they can be tailored appropriately, such as to provide for the police to give certain information more quickly to vulnerable or intimidated victims. We have published a draft of the updated victims code as a starting point for engagement, and will consult on an updated victims code after the passage of the Bill, so that it can reflect issues raised during parliamentary consideration.
Finally, the clause makes it clear that the code relates to services for victims and cannot be used to interfere with judicial or prosecutorial decision making. That will protect the independence of the judiciary, Crown Prosecution Service and other prosecutors in relation to the decisions they make in individual cases. I commend the clause to the Committee.
Amendment 27 agreed to.
Amendment made: 28, in clause 2, page 3, leave out lines 18 and 19.—(Edward Argar.)
See the explanatory statement to Amendment 27.
Clause 2, as amended, ordered to stand part of the Bill.
Clause 3
Preparing and issuing the victims’ code
Anna McMorrin (Cardiff North) (Lab)
I beg to move amendment 11, in clause 3, page 3, line 29, at end insert
“and the Commissioner for Victims and Witnesses.”.
This amendment would require the Secretary of State to consult the Commissioner for Victims and Witnesses when preparing a draft of the victims’ code.
The Chair
With this it will be convenient to discuss the following:
Clause 3 stand part.
Amendment 12, in clause 4, page 4, line 24, after “Attorney General” insert
“and the Commissioner for Victims and Witnesses”.
This amendment would require the Secretary of State to consult the Commissioner for Victims and Witnesses when revising the victims’ code.
Clause 4 stand part.
Anna McMorrin
Amendments 11 and 12 address the same issue. Amendment 11 falls under clause 3 concerning the drafting of the victims code, and amendment 12 falls under clause 4, which concerns its revision. Clause 3 outlines that it is the responsibility of the Secretary of State to prepare the draft code and, in doing so, must consult the Attorney General. Amendment 11 would place a duty on the Justice Secretary also to consult the Victims’ Commissioner. Amendment 12 would place a duty on the Justice Secretary to consult the Victims’ Commissioner on any future revision of the code. These are the first of several amendments I have tabled to strengthen the powers and authority of the Victims’ Commissioner.
The Victims’ Commissioner is a public office established by Parliament in the Domestic Violence, Crime and Victims Act 2004 to encourage good practice in the treatment of victims and witnesses in England and Wales. It is independent of Government and works to raise awareness of issues faced by victims, conduct research, promote good practice and hold agencies to account on the treatment of victims. I pay tribute to Dame Vera Baird, the former Victims’ Commissioner, who resigned in September last year after three years in post. Dame Vera was integral to shining a spotlight on the harmfully low number of prosecutions, and she secured safeguards against excessive requests for victims’ mobile phone data in rape investigations. If the Government accept both my amendments, they would go a long way towards demonstrating that they understand the value and authority of the Victims’ Commissioner’s office by ensuring it is integral when looking at the revised victims code.
During the evidence session last week, when asked if the Victims’ Commissioner should be consulted in the drafting and revision of the victims code, Dame Vera said,
“Yes, it is imperative... To be fair, the Government did consult us. It took about two years to get the victims code together. In fact, I am not sure if Mr Argar was not the Victims Minister when it started the first time around. It took a very long time... although I have to say we brought no change. There must be meaningful consultation, but the Victims’ Commissioner has to be in there.”
She went on to say,
“in all the provisions about drafting codes and making changes, where it says you should consult the Attorney General, you have to consult the Victims’ Commissioner as well. This is about victims.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 28, Q63.]
The Victims’ Commissioner has a statutory duty to keep the code under review, but the Secretary of State for Justice is not obliged to consult the Victims’ Commissioner on revisions of the code. I am not sure how they are not mutually exclusive. The Victims’ Commissioner is established to be
“a promoter, an encourager, and a reviewer of operational practice, and is the only statutory public body with these overarching duties in relation to victims”.
The Victims’ Commissioner has the singular responsibility to introduce a degree of accountability to how agencies, including central Government, treat victims and witnesses. If victims are given their rightful recognition as participants in the system, their rights must be fully respected and delivered at each stage of the process. Currently, the Victims’ Commissioner has the widest remit of any commissioner but the most limited powers. The powers relating to the victims code should be strengthened, so that the Victims’ Commissioner is consulted alongside the Attorney General.
Amendments 11 and 12 would make it obligatory for the Secretary of State to consult the Victims’ Commissioner on the preparation and revision of the victims code, rather than having the commissioner make proposals. This would also form part of the functions of the Victims’ Commissioner under section 49 of the Domestic Violence, Crime and Victims Act 2004—promoting the interests of victims and witnesses and keeping the code under review. It would also ensure that there is accountability and compliance with the victims code, and that standards are maintained at all levels. I hope the Minister will consider agreeing to the amendments.
Edward Argar
I thank the shadow Minister for tabling amendments 11 and 12, which would place a statutory duty on the Secretary of State to consult the Victims’ Commissioner when preparing and revising the new victims code. The Victims’ Commissioner and their office are a vital and powerful voice for victims, and part of the commissioner’s statutory duty is to keep the operation of the code under review. In highlighting that, I will go a little further than the hon. Lady by paying tribute not only to Dame Vera Baird, but to Helen Newlove and Louise Casey. I think Louis Casey was the original Victims’ Commissioner, and Helen followed her in that role. In their different ways, all three have brought a huge focus and passion to the role, and I want to put on the record my gratitude to them all.
We have routinely engaged with the Victims’ Commissioner’s office on matters concerning the code since last September, and we will continue to do so when a new Victims’ Commissioner is appointed. As I highlighted in the previous sitting—I think it was after being prompted by a question from the shadow Minister, the hon. Member for Cardiff North—a recruitment process is under way, with the new Lord Chancellor taking a very close interest so that we get the right person into this vital post. I am keen to see it filled as swiftly as possible with someone of the calibre of the three individuals who have already held the post.
We recognise that it is essential that we consult experts, including the Victims’ Commissioner, when preparing or revising the code to ensure that it continues to reflect the needs of victims. The Bill already requires public consultation on the draft code under clause 3(4) and, naturally, the Department engages thoroughly with the Victims’ Commissioner and their office as part of that process, as we always have done in the past. Public consultation provides an opportunity for a wide range of relevant stakeholders, practitioners and victims to make representations to the Government. For that reason, we do not consider it necessary to formally list each relevant stakeholder in legislation, including the Victims’ Commissioner, as the amendments would do.
I do recognise—the shadow Minister, the hon. Member for Cardiff North, may have alluded to it—that one role is listed for consultation: the Attorney General. That consultation is required ahead of the public consultation on the code and is explicitly included to reflect the Attorney General’s shared responsibility for the delivery of the criminal justice system and for the impact of the code. As hon. Members will know, ministerial responsibilities across the criminal justice system involve the Lord Chancellor and Secretary of State for Justice, the Home Secretary and the Attorney General. By practice, the Secretary of State for Justice will consult the Home Secretary as part of the process of preparing, issuing and revising the code. The Home Secretary, as the other Minister with direct operational delivery responsibilities, is not explicitly referred to because the technical drafting convention is that different Secretaries of State are not named in legislation.
I hope that I have provided assurance that the Victims’ Commissioner and their office will continue to be engaged on matters concerning the code, and that the hon. Member for Cardiff North will find those assurances satisfactory.
Anna McMorrin
I thank the Minister for his response to these provisions. The Victims’ Commissioner has a statutory duty to keep the code under review. Because the Secretary of State, however, is not obliged to consult them, it is an area of the Bill that needs strengthening. The powers of the commissioner related to the victims code must be strengthened so that the Victims’ Commissioner is consulted alongside the Attorney General when the code is drafted and revised. That seems to me to be an essential part of the process to ensure that victims’ experiences are listened to and then represented in the drafting and revising of the code. That would also form part of the functions of the Victims’ Commissioner under section 49 of the Domestic Violence, Crime and Victims Act 2004—promoting the interests of victims and witnesses and keeping the code under review.
Importantly, the measures would also ensure accountability. The Minister alluded to that in terms of Parliament, but it is vital that the Commissioner is included formally within the process in the Bill. Although I will not press the amendment to a Division, I hope that as we move forward through the Bill we can look at how the role of the Victims’ Commissioner can be strengthened. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 3 and 4 ordered to stand part of the Bill.
Clause 5
Effect of non-compliance
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 47, in clause 6, page 4, line 37, leave out “take reasonable steps to”.
This amendment would place a duty on criminal justice bodies to promote awareness of the Victims Code, rather than only requiring them to ‘take reasonable steps’ to promote awareness.
Amendment 13, in clause 6, page 5, line 6, after “services” insert
“in accordance with the victims’ code”.
This amendment would clarify that criminal justice bodies must collect information about their provision of services for victims in accordance with the victims’ code.
Clause 6 stand part.
Clauses 7 to 9 stand part.
New clause 2—Duty to co-operate with Commissioner for Victims and Witnesses—
“(1) The Commissioner may request a specified public authority to co-operate with the Commissioner in any way that the Commissioner considers necessary for the purposes of monitoring compliance with the victims’ code.
(2) A specified public authority must, so far as reasonably practicable, comply with a request made to it under this section.
(3) In this section “specified public authority” means any of the following—
(a) a criminal justice body, as defined by subsection 6(6),
(b) the Parole Board,
(c) an elected local policing body,
(d) the British Transport Police Force,
(e) the Ministry of Defence Police.
(4) The Secretary of State may by regulations amend this section so as to—
(a) add a public authority as a specified public authority for the purposes of this section;
(b) remove a public authority added by virtue of paragraph (a);
(c) vary any description of a public authority.
(5) Before making regulations under subsection (4) the Secretary of State must consult the Commissioner for Victims and Witnesses.
(6) A statutory instrument containing regulations under subsection (4) may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”
This new clause would place a duty on specified public authorities to co-operate with the Commissioner for Victims and Witnesses.
Edward Argar
Clause 5 makes it clear that failure to comply with the victims code does not in itself give rise to liability in criminal or civil proceedings, but it also makes it clear that the code is admissible in evidence in proceedings and that a court may take a failure to act in accordance with the code into account when determining a question in the proceedings. We think individual liability for non-compliance would be disproportionate, but the clause does not prevent non-compliance from being addressed, nor does it prevent victims from being able to make or escalate a complaint. Their being able to do so is vital to ensure that victims are being given the right standard of service.
The measures in the Bill are designed to enable new oversight of compliance with the victims code and to drive improvements in victims’ experiences when engaging with the criminal justice system. We will discuss those measures when we reach the relevant clauses, but we believe the framework is the right starting point to drive real change locally and at system level, so that victims are treated in the right way. It is essential that there are consequences for non-compliance, clear oversight structures and complaints processes for victims, and this is the first time that such a comprehensive legislative framework has been put in place. It is right that it is done at local and national level and that the Bill does not allow for litigation against individuals. The clause is necessary to set that out.
I will speak to the amendments when I sum up, when I will have heard what those who tabled them have had to say. I will now speak to the other clauses in the grouping.
Clause 6 puts two duties on criminal justice bodies, namely the police, the Crown Prosecution Service, His Majesty’s Courts and Tribunals Service, His Majesty’s Prison and Probation Service, and youth offending teams. First, it requires them to take reasonable steps to promote awareness of the victims code among service users, including victims or those supporting victims, and the public. That is essential because—Opposition Members remarked on this, I think—just 23% of victims and 22% of the public were aware of the code in 2019-20. That is clearly not good enough. We want victims to be clear about what they can and should expect from the criminal justice system and to feel empowered to ask for that when criminal justice bodies fall short.
Secondly, clause 6 requires criminal justice bodies to keep their compliance with the code under review. That will include collecting and sharing information, which will be set out in regulations. They will also be required to jointly review that information with police and crime commissioners and other criminal justice bodies in their local police area. Where issues are identified by police and crime commissioners or bodies, operational agencies can and should take action by using local forums to drive improvements.
Those measures are the heart of the Bill. As we have discussed in Committee, it is essential that we monitor code compliance. Victims do not always receive the level of service to which they are entitled. In 2019-20, 45% of victims felt that the police and other criminal justice agencies kept them informed, and only 18% of victims recall being offered the opportunity to make a victim personal statement. The duty will improve local information collection, allow for effective local solutions and help us track the performance of criminal justice bodies to pinpoint areas that need improvement.
To deliver consistency across England and Wales, we will use regulations to specify the necessary code compliance information to be collected, and issue guidance on how criminal justice bodies should carry out their duties. We are using regulations and guidance to enable more detail and flexibility to update the provisions than primary legislation would allow. It will be crucial the get the data requirements in the regulations right, and we are working with bodies subject to the duties and those who represent victims to develop them. By implementing standardised data collection and reporting practices, we can build a national picture of the delivery of victims code entitlements throughout the criminal justice system. Such a data-based approach has been used effectively by the criminal justice system delivery data dashboards to enable data-informed discussions and to feed into action plans at local level to drive change. Together, the duties will promote compliance with the victims code and therefore better outcomes for victims.
Clause 7 is a crucial part of the new framework for better local oversight of victims code compliance. It strengthens the role of police and crime commissioners and enables issues to be identified and escalated where necessary by requiring police and crime commissioners to review compliance information jointly with criminal justice bodies in their local area, and to share information and insights into local performance with the Secretary of State. Together with the new requirements in clause 6 for criminal justice bodies to share compliance information with police and crime commissioners, that measure addresses concerns we heard that police and crime commissioners did not have the mechanisms in place to deliver on their role to monitor local code compliance.
The Government recognise the vital role police and crime commissioners already play in bringing agencies together to oversee the code locally. Further empowering police and crime commissioners and harnessing their convening powers will lead to a more collaborative and effective approach to solving local issues. Where issues are identified by police and crime commissioners or bodies, operational agencies can and should take action, using local forums to drive improvements.
Edward Argar
I will give way first to the hon. Member for Birmingham, Yardley.
Jess Phillips
I hear the good words in the Minister’s explanation, but I am still not entirely sure exactly what will happen. Are we going to get local forums to make it better if it is bad? That does not seem enough to me to ensure compliance or any change from the situation we have at the moment.
Edward Argar
I am grateful to the shadow Minister. I will come on to how this will work in practice, but I suspect hon. Members may wish to return to it in their contributions to their amendments. I give way to the hon. Member for Rotherham.
Edward Argar
I suspected that might be the case.
The requirement to share compliance information and to report to the Secretary of State on the joint review of this information will enable a clear national picture to be formed of how the criminal justice system is delivering for victims. It is important to remember that police and crime commissioners are directly elected and directly accountable to their local communities.
The requirement provides a means to escalate issues that cannot be solved locally and will enable Government to establish a new national governance system to pinpoint and intervene to address any systemic problems. The Victims’ Commissioner and inspectorates will be asked to participate in the new national governance system to ensure that victims’ needs and their perspectives are reflected. This will, of course, be covered in the relevant statutory guidance that will set out the operational detail across these clauses and the wider oversight framework.
Clauses 8 and 9 put two duties on the British Transport police and Ministry of Defence police respectively that mirror those placed on criminal justice bodies in clause 6. The duties are to promote awareness of the victims’ code and keep their compliance with the code under review. This ensures parity between local, national and non-territorial police forces. British Transport police meet victims of crime every day, including those mentioned by the hon. Member for Rotherham who are involved in child criminal exploitation, such as through county lines.
Instead of jointly reviewing information with police and crime commissioners, the British Transport police will be required to jointly review information with the British Transport police authority, which is the appropriate oversight body for them. Similarly, the Ministry of Defence police will do so with the Secretary of State, which in practice will mean that the Secretary of State for Defence is the appropriate oversight body for them. It is important that all police forces that have contact with victims, and therefore have responsibilities under the code, are responsible for promoting awareness of and complying with the code to help support victims. If I may, Ms Elliott, I will address amendments 47 and 13 and new clause 2 in my wind-up remarks. I commend clauses 6 to 9 to the Committee.
Sarah Champion
I have tabled what I hope is a straightforward amendment that would place a stronger duty on criminal justice bodies to promote awareness of the victims code, rather than just asking them to take reasonable steps. Clause 6(1) states that,
“Each criminal justice body which provides services in a police area must…take reasonable steps to promote awareness of the victims’ code among users of those services and other members of the public”.
The amendment would remove the words “take reasonable steps” and make the clause stronger. For example, a reasonable step could be a poster in a police office reception, so that when asked about this during the compliance process, they could say, “Yes, we have taken a reasonable step. Everyone that comes into the police office can see that. It is a reasonable step.”
As other Members and I have already pointed out, compliance and awareness of the existing victims code is worryingly low. I look to the Minister to do something more robust to get that awareness into the public domain. Victim Support’s “Victim of the system” report found that as many as six in 10 victims do not receive their rights under the victims code; 20% of victims are not referred to support services, 46% do not receive a written acknowledgement of the crime, and 60% do not receive a needs assessment. The status quo is not working. For victims to access their rights, they must first be aware of them.
Anna McMorrin
I will speak to amendment 13 and new clause 2 together. Amendment 13 would insert
“in accordance with the victims’ code”
after “services” in clause 6. It is a relatively small correction that would, I hope, improve the Bill by making it clear that criminal justice bodies must collect information about their provision of services for victims in accordance with the victims code. I am concerned about the current provision in clause 6. The amendment would clarify that the information collected by each criminal justice body in a police area, and shared with other criminal justice bodies, would have to be in accordance with the victims code.
I thank Dr Ruth Lamont, senior lecturer in law at the University of Manchester and co-investigator for the victims’ access to justice project funded by the Economic and Social Research Council, for working with me on this issue. I am also pleased that the amendment is supported by Victim Support. During evidence last week, Rachel Almeida, assistant director for knowledge and insight at Victim Support, stated:
“The Bill refers to regulations being introduced to collect prescribed information. It needs to be more explicit that that applies to every single right. We want compliance with every single right to be monitored. From evidence we have seen, that will not necessarily happen, so it needs to be really clear that the regulations cover every single right.”— [Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 72, Q151.]
As amended, clause 6(2) with reference to the code would add elected accountability for provision of victims’ services. The elected local policing body—most commonly police and crime commissioners, but also metro mayors—are responsible for the commissioning of victim support services in their policing area. The amendment would specify the nature of the information to be provided. Police and crime commissioners do an awful lot of work on different aspects of policing and are responsible for its totality, so it is eminently sensible to focus the collection of prescribed information about the provision of services in accordance with the victims’ code. That would also support awareness of the code among agencies, which my hon. Friend the Member for Rotherham brought up under another amendment. Does the Minister agree with that? That way, police and crime commissioners would have a specific path to follow, with a clear outline of what they need to collect and what they do not, thus streamlining resources and saving time. It also enables a very clear feed of data up to the Victims’ Commissioner for the purposes of reporting as the scope is defined.
It is imperative that code compliance is reviewed and monitored by criminal justice bodies and I support the introduction of that measure in the Bill. However, failing to identify the scope will have an undesired impact, as it could either prevent the desired data from being collected altogether or could have an adverse effect on PCCs by overstretching their resources. Overall, consistent data collection in accordance with the victims’ code guarantees that criminal justice agencies are complying, and if they are not, it will expose areas where improvement is needed. It would also make available information on whether victims are aware of their rights in the victims’ code and which rights are being accessed and required the most. The only way in which criminal justice bodies can respond to the needs of victims in their respective areas and deliver is through the proposed data collection and by sharing different methods for delivering the guarantees of the code. The process could also inform the reform of services and the commissioning choices made by the elected policing bodies.
As previously outlined, the Victims’ Commissioner for England and Wales would also be able to use data collected by criminal justice bodies in each police area to produce a national survey that could be fed into both the commissioner’s annual report and general advocacy engagements with Government. It is beneficial for victims that the system is better informed and evidence-based policy can then be drafted because of that specified data collection.
New clause 2 would place a duty on specified public authorities to co-operate with the Commissioner for Victims and Witnesses. The clause would allow the commissioner to request a specified public authority to co-operate with them in any way they consider necessary for the purpose of monitoring compliance with the victims’ code. It also places a duty on the specified public authority to comply with that request. I am grateful to Victim Support, which supports that too, for outlining in last week’s evidence session that the clause would increase the powers and authority of the Victims’ Commissioner in line with those of the Equality and Human Rights Commission, the Independent Anti-Slavery Commissioner and the Domestic Abuse Commissioner, who is the most recent commissioner to be granted that power.
The Domestic Abuse Act 2021 gives the Domestic Abuse Commissioner specific powers that enable her to fulfil that role and places legal duties on public sector bodies to co-operate with her and respond to any recommendation she makes to them. The powers are essential for the commissioner to drive forward change and hold agencies and national Government to account for their role in responding to domestic abuse. It is therefore perfectly reasonable to grant the Victims’ Commissioner the same authority. I hope the Minister agrees. Especially when considering just how many victims of crime there are out there, I am sure he will agree that that simply strengthens the Bill.
Edward Argar
I am grateful to hon. Members for their contributions. I will respond on amendments 47 and 13 in turn, and will then touch on new clause 2.
I am grateful to the hon. Member for Rotherham for amendment 47. I understand that she seeks to require relevant bodies to raise awareness of the code, rather than taking “reasonable steps” to do so. I reassure her that our intention is, of course, that victims will be made aware of the victims code. The “reasonable steps” term is commonly used and well understood in legislation. The use of it here seeks to replicate section 24 of the Domestic Abuse Act 2021, which states that a senior police officer must “take reasonable steps” to discover the victim’s opinion before giving a domestic abuse protection notice. It appears similarly in the Homelessness Reduction Act 2017.
Sarah Champion
I am feeling the way the Minister is going with this. Might I make an on-the-hoof addition of the phrase “all reasonable steps”?
Edward Argar
The hon. Lady knows me well; she may have had a sense of the direction I was heading in and be seeking to gently see me off from it midway. I will return to her point in a second.
The reason why we have introduced a reasonableness requirement is to retain operational flexibility, to allow for circumstances in which it would not be reasonable or operationally possible to expect the code to be actively promoted to certain victims. For example, when a criminal justice agency is communicating with a victim, sometimes that victim may be too distressed to process information about or want to engage with the code, or they may be in a public environment. In such instances, we would expect the reasonable step to be to share the information, but at a more appropriate time for the individual.
That in-built flexibility recognises that those working in the system, day in, day out, have considerable expertise and can deploy that to determine the most appropriate moment and method for sharing the code with vulnerable victims. It is absolutely our intention that all victims are made aware of the code, but there is a sensitivity about how and when.
I know that, separately, more can be done to improve criminal justice agencies’ communications with victims. We will use statutory guidance to set out further detail on our clear expectations as to when and how relevant agencies should make victims aware of the code. That will also point to appropriate training so that staff working with victims are confident and comfortable to share it at the right time. We are working closely with stakeholders to ensure that that guidance is robust, ambitious and practical. My fear is that being prescriptive in asking agencies when they communicate with victims, through removing “reasonable steps” from the clause, may lead to less sensitive and effective sharing in order to meet the duty, but I am happy to reflect on the points that the hon. Lady has made.
Amendment 13 seeks to amend the clause 6 requirement on criminal justice bodies to collect prescribed information. It would add that the requirement to collect prescribed data must be in relation to services provided in accordance with the victims code.
I agree with the shadow Minister, the hon. Member for Cardiff North, that our intention is absolutely for this information to be relevant to how they deliver services in accordance with the code, rather than how they provide services more generally. However, I fear that the clarificatory amendment she has tabled is not necessary, because we believe the duties contained in subsection (2) are already sufficiently limited to be clear about the code under the preceding subsections.
To demonstrate the point, I am happy to clarify that the duty to collect prescribed information is supplementary to the overarching duty in subsection (1)(b), which requires the criminal justice bodies to keep under review how their services are provided in accordance with the victims code. It follows from the reference in subsection (1)(b) that the services referred to are only those that are relevant to how services are provided in accordance with the victims code.
Our view is that amendment 13 would overly limit the duty to collect prescribed information, and requiring the collection of only information about the provision of services in accordance with the code would not allow for the collection of related relevant information. That information could include, for example, contextual information on the systems in place to ensure an accessible complaints process, which would give a greater understanding of compliance with code right 12 to make a complaint about rights not being met. Therefore, on what I accept is a technical point, I encourage the hon. Member for Cardiff North not to press the amendment to a Division.
Finally, I will touch on new clause 2. I agree that it is vital that relevant bodies co-operate with the Victims’ Commissioner so that they can fulfil their statutory role to keep the operation of the victims code under review. We carefully considered whether updates were needed to the important functions and duties of the Victims’ Commissioner, to align them, where necessary, with those of more recently established commissioners—for example, the Domestic Abuse Commissioner. That is why this Bill already introduces key updates, such as a requirement that the Victims’ Commissioner’s annual report must be laid in Parliament and that relevant authorities must respond to recommendations that the commissioner makes in any report.
Jess Phillips
I just wonder what would happen if we were discussing a school in my constituency—let us say my own children’s school—and Ofsted just got to say, “Yeah, you’ve just got to hope for the best, really. Let’s just hope for the best, with a little bit of improvement.” There are no powers; this process does not go anywhere. I am not sure that I can see how there is any gumption behind any of these particular improvements, other than just, “They’ll respond”.
Edward Argar
As I say, our experience is that the Victims’ Commissioner—I suspect that this is by virtue both of the office itself and the strength of personality of all three Victims’ Commissioners—has tended to be successful in obtaining the information they need to do their job and shine a light on particular issues or individual system challenges. Therefore, we do not believe that it is necessary or proportionate to alter their powers further in the way that has been discussed.
We intend for the Victims’ Commissioner to have access to relevant compliance information collected and shared under clauses 6 to 9, both via national governance forums and through the duty on the Secretary of State to publish compliance information. That may not go the full way, but I hope it goes some way to reassuring the hon. Lady that the Victims’ Commissioner will have access to information on the code. We do not believe that additional powers to collect such information are required.
Sarah Champion
The Minister is a reasonable man and I am a reasonable woman, so I will not press amendment 47.
The Chair
We now come to amendment 13, which has just been debated. Does Anna McMorrin wish to move the amendment formally?
Anna McMorrin
I am not going to press the amendment, but I would like to work with the Minister on how we see this issue going forward. He has given some assurances, but it would be good to clarify those.
Clause 5 accordingly ordered to stand part of the Bill.
Clauses 6 to 9 ordered to stand part of the Bill.
Clause 10
Publication of code compliance information
Anna McMorrin
I beg to move amendment 14, in clause 10, page 8, line 37, at end insert—
“(1A) The Secretary of State must share compliance information with the Commissioner for Victims and Witnesses (‘the Commissioner’) within 2 days of receipt.
(1B) The Commissioner must use compliance information received under subsection (1A) to prepare an assessment of compliance with the victims’ code, including—
(a) an assessment of compliance in each police area,
(b) identifying any instances of systemic non-compliance with the victims’ code,
(c) identifying opportunities for improvement in compliance with the victims’ code, and
(d) identifying best practice in respect of compliance with the victims’ code.
(1C) The Commissioner must include a summary of the assessment made under subsection (1B) in their annual report prepared under section 49 of the Domestic Violence, Crime and Victims Act 2004.”
This amendment would require the Secretary of State to share information about compliance with the victims’ code with the Commissioner for Victims and Witnesses and require the Commissioner to prepare an assessment using that information.
Anna McMorrin
Amendment 14 would place a duty on the Secretary of State to share all information collected regarding compliance with the victims code with the Commissioner for Victims and Witnesses. Clause 10(1) states:
“The Secretary of State must publish such compliance information as…will enable members of the public to assess…code compliance”.
Although I welcome clause 10 and agree that the public should be aware of agencies’ compliance with the victims code, the clause fails to provide information on how members of the public should be expected to interpret this data. I would welcome it if the Minister’s response addressed how that will be interpreted.
Amendment 14 would use the oversight by the Victims’ Commissioner to enable national analysis and oversight of compliance with the victims code, closing the feedback loop. Currently, although there is reporting, there is no independent reporting back of analysis to elected local police bodies or criminal justice bodies, or sharing of best practice.
The amendment would allow the Victims’ Commissioner to make an assessment on compliance across all police areas under the following categories: failures of reporting, areas of systemic non-compliance with the victims code, areas for improvement in compliance with the victims code, and evidence of best practice. The key focus has to be on ensuring the effectiveness of the oversight by the Victims’ Commissioner of compliance with the victims code throughout the whole of England and Wales. The reporting process would be both to the public and to criminal justice agencies, and it should encourage and support the development of higher standards for the protection of victims’ needs and interests.
Each of the four categories to be reported on by the Victims’ Commissioner is directed at a different aspect of identifying whether there is meaningful compliance with the requirements of the victims code. Such reporting should provide an overarching assessment of how effectively the victims code is working for victims. If a criminal justice agency fails to provide requested evidence regarding compliance with the code without just cause, this must be highlighted and publicly reported to provide accountability and encourage consistent reporting.
Through the Victims’ Commissioner’s oversight of criminal justice agencies reporting on the code, problem areas where there is evidence of non-compliance could be identified. For example, if there were consistent problems in providing for a category of victim, that could be highlighted and addressed as an issue across criminal justice agencies, rather than focusing on just one body. The process would naturally inform areas for improvement to ensure compliance with the code and enable support for criminal justice agencies in developing their practice in relation to victims. At the moment, however, there is no formal sharing of best practice in supporting victims in the justice system and meeting the expectations of the code. There is a lack of information for criminal justice agencies about the most effective services and processes to provide for victims under the victims code.
Reflecting on the evidence of compliance provides the commissioner with an important opportunity to share examples of best practice, including valuable services, procedures or approaches. This process would provide an environment in which positive developments could be identified, promoted and fed back to agencies that are doing well. We know that the agencies should seek to provide, and often do provide, the best service they can to victims, and that the process of reporting on compliance should encourage the development of effective services. The amendment would both promote the role of the code and provide resources for criminal justice agencies to draw on in developing their services for victims.
In evidence to the Committee last week, Caroline Henry, the police and crime commissioner for Nottinghamshire, stated:
“We need to increase transparency around whether the victims code is being complied with. We all need to be talking about victims more, and keeping victims at the heart of this”.––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 43, Q83.]
I am sure the Minister agrees that this relatively minor amendment would absolutely do that.
Edward Argar
I am grateful to the shadow Minister for enunciating the rationale for amendment 14. I shall first address her amendment and then move on to clause 10.
I agree that access to information on victims code compliance will help the Victims’ Commissioner to assess the operation of the code. I also agree that that information should inform their annual report. The amendment would require the Secretary of State to share the code compliance information that they receive from relevant bodies with the VC. I reassure the Committee that we not only intend to share information with the Victims’ Commissioner, but we will make sure that we use their expert insight to interpret what the data shows and what it means in practice. That will be covered in the new national governance structure that is intended to oversee the new code compliance framework put in place by the Bill.
We will set out more details about the structures in supporting guidance as we continue to test and develop proposals with stakeholders—the shadow Minister is welcome to contribute to that process. However, as relevant data will be shared in that forum, and the Victims’ Commissioner will also be able to access the published information, we do not see that additional data sharing arrangements are necessary in the Bill.
On the proposal that there should be a requirement on the Victims’ Commissioner to assess compliance and consider specific issues, that is exactly what we are seeking to achieve through the slightly different mechanism of the national governance forum on which the Victims’ Commissioner, among other important voices in the criminal justice system, will sit.
The Victims’ Commissioner has existing legislative responsibility to keep the operation of the victims code under review and existing powers to make reports and recommendations. The broad approach to the existing requirements for the Victims’ Commissioner means that all annual reports have already included a section on the victims code, and the increased overview and data will support further reporting on compliance.
We want to keep the potential topics that the Victims’ Commissioner can choose to cover as broad as possible. Being overly prescriptive could reduce the flexibility and independence in the role. We want to give the Victims’ Commissioner the flexibility to determine themselves which topics they wish to look at and cover. I hope that gives the shadow Minister some reassurance that the Bill as drafted will allow the Victims’ Commissioner access to code compliance information, and to use it to inform their annual report. We expect the Victims’ Commissioner to be a key lever in driving improvement in the system within the new national oversight structure.
Clause 10 ensures that we have appropriate transparency of code compliance data—first, by requiring the Secretary of State to publish victims code compliance information, which will allow the public to assess whether bodies are complying with the code; and secondly, by requiring police and crime commissioners to publicise that information in their local areas. We know that data transparency across a range of public functions can drive performance, and we heard at pre-legislative scrutiny that it was important to provide greater certainty that the compliance information would be published.
Publishing compliance information will allow victims, stakeholders and the public to understand how well bodies are complying with the code, as well as allowing for benchmarking and comparison across areas to identify disparities, share best practice and help drive improvements. I appreciate that right hon. and hon. Members might have concerns about the publication of sensitive information. Some information collected, such as feedback from victims that might be identifiable, may not be suitable for publication because it would infringe on privacy rights and potentially compromise victims’ confidentiality.
The clause therefore allows the Secretary of State a degree of flexibility in determining what information should be made public to allow effective assessment of code compliance while also protecting the identities of victims.
Anna McMorrin
I thank the Minister for his response to amendment 14. The issue is to ensure that the Victims’ Commissioner’s oversight role is strengthened, which is what the amendment would do. I am not sure whether the Minister gave me the assurance that there would be a strengthening. The previous Victims’ Commissioner, Dame Vera, was explicit about the fact that she lacked the data to ensure compliance throughout her tenure. I would like a bit more assurance that the Bill will do that. I will not seek to push the amendment to a vote today, but I would like to work to see how we can strengthen the Bill on that specific issue. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 ordered to stand part of the Bill.
Clause 11
Guidance on code awareness and reviewing compliance
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
New clause 5—Improving accessibility and awareness of the Victims’ Code—
“(1) In preparing the draft of the victims’ code under section 2, the Secretary of State must take all practicable steps to ensure that the code is fully accessible to all victims and to promote awareness of the code among those victims and associated services.
(2) For the purposes of this section the Secretary of State must by regulations prescribe—
(a) that criminal justice bodies must signpost victims to appropriate support services, and
(b) that appropriate training is delivered to staff in criminal justice bodies, including by specialist domestic abuse services.
(3) The steps taken under subsection (1) must include steps aimed at ensuring that victims who—
(a) are deaf,
(b) are disabled,
(c) are visually impaired, or
(d) do not speak English as their first language,
are able to understand their entitlements under the code.”
This new clause seeks to ensure the victims’ code is accessible to all victims and associated services.
New clause 11—Monitoring compliance—
“(1) All agencies with responsibilities under the victims’ code have a duty to monitor and report how relevant services are provided in accordance with the victims’ code.
(2) In accordance with the duty in subsection (1), the agencies must provide an annual report to the Secretary of State on their assessment of their compliance with the code.
(3) The Secretary of State must make an annual statement to the House of Commons on the delivery of services provided in accordance with the victims’ code.”
This new clause would place a duty on the Secretary of State to make an annual statement on compliance with the victims’ code.
New clause 12—Compliance with the code: threshold levels—
“(1) The Secretary of State must, by regulations, issue minimum threshold levels of compliance with each right of the victims’ code.
(2) If a minimum threshold is breached by an organisation in a particular area, the Secretary of State must commission an inspection of that body with regard to that breach.
(3) The Secretary of State must, as soon as is reasonably practicable, lay before Parliament the report of any such inspection.”
This new clause would require the Secretary of State to set minimum threshold levels of compliance with each right of the victims’ code.
Edward Argar
I will speak to clause 11 stand part, and in my concluding remarks address the speech that the hon. Member for Rotherham will make when she speaks to her new clauses.
Our approach through the Bill is to provide a framework to drive improvement and to use statutory guidance to set out how to operationalise that framework. That is why clause 11 requires the Secretary of State to issue guidance that will support the bodies subject to the code awareness and code compliance duties in clauses 6 to 10 to discharge those duties. It also requires those bodies to have regard to the guidance, which I hope provides reassurance to the hon. Member for Rotherham that there are sufficient provisions in place to ensure agencies take the statutory guidance on board.
We intend for the guidance to cover topics raised by hon. Members: how relevant bodies can promote awareness of the code, including how to make the code accessible and how to provide training to staff so they can confidently engage with victims; how police and crime commissioners will be required to report to the Secretary of State on their local reviews of code compliance information; and what good or poor performance looks like. It will also cover information on how local and national oversight structures will work, including routes for escalating on issues between them and on how data sharing and publication will work. The frequency of information collection will be set out in regulations and reflected in the guidance as appropriate.
Getting the guidance right is crucial to ensure that the policy works on the ground, so that it is clear what those subject to the duties are expected to do, and to encourage good practice and consistency across England and Wales. We intend to publish details of the guidance during the passage of the Bill to enable parliamentarians to have it to hand as they debate the Bill in its subsequent stages, and we are currently working with bodies subject to those duties and those who represent victims to develop it so that we can be sure it will work operationally. Underlining the importance of considering the views of those affected by the guidance, the clause also requires the Secretary of State to consult relevant stakeholders before issuing the guidance, which will ensure that it is useful and reflects the operational context.
Our approach to setting out the framework for code awareness and code compliance in the Bill, and the detail in statutory guidance and regulations, is the right way to drive improvement in the victim experience. I hope that clause 11 will stand part of the Bill.
Sarah Champion
Clause 11 is a welcome part of the Bill that requires the Secretary of State to issue guidance regarding the code awareness and reviewing code compliance. We know that the guidance may include provision about ways of promoting awareness of the code; how information is collected, shared and reviewed; and the steps that an elected local police body must take to make the public aware of how to access compliance information. That is all vital for ensuring accountability and awareness of these issues, but alone it does not go far enough. It must be on the face of the Bill that the code is accessible to all victims, particularly those who have disabilities or whose first language is not English. The Secretary of State must ensure that code awareness is raised among those groups too.
It is also not enough to publish code compliance and draw public attention to how to access that information. If we want to ensure that victims’ rights are met, we need to actively monitor their enforcement. New clause 5 seeks to ensure that the victims code is accessible to all victims and associated services. The new clause is supported by Women’s Aid and addresses issues raised by charities such as Victim Support, which I thank for helping to draft it.
As we know, the victims code sets out the minimum standards that organisations must provide to victims of crime. However, specialist violence against women and girls organisations have an abundance of evidence that indicates the needs of deaf, disabled and blind victims, as well as victims whose first language is not English, are being overlooked, neglected or at best addressed inadequately. It is truly concerning to hear from Women’s Aid that public bodies, including the police, often fail to comply with their obligations under the Equality Act 2010 to eliminate discrimination, harassment and victimisation when interacting with victims facing communication barriers. Their right under the victims code—
“To be able to understand and to be understood”—
is also not being upheld. We know from specialist “by and for” led organisations that this is having a direct impact on marginalised victims not coming forward. This failure to respond to their communication needs is preventing victims from coming forward. As a result, victims are left with no choice but to stay longer with an abusive perpetrator and are at risk of increased harm while being denied justice.
Rising Sun, a specialist service, highlighted a case whereby a victim’s disability was not factored into the support plan and she was not provided information in Braille. Not only did this impact on her ability to make an application for a non-molestation order; she could not even read the resources provided on domestic abuse. She was left feeling humiliated and embarrassed, and stayed with her abusive partner for a further four weeks before fleeing to emergency accommodation with her children.
As discussed on earlier amendments, by failing to address and respond to communication barriers, there is a risk of the police having incomplete information and evidence from victims due to the lack of support to ensure they were understood. A survivor working with Women’s Aid urged for there to be more training to support those with accessibility needs, such as deaf people. She highlighted that we have a BSL Act but this it is not having any impact on survivors of domestic abuse.
The Government state that one of the first objectives of the Victims and Prisoners Bill is to introduce measures
“to help victims have confidence that the right support is available and that, if they report crime, the criminal justice system will treat them in the way they should rightly expect.”
It is clear, therefore, that new clause 5 is vital to ensure that all practical steps are taken to ensure that the code is fully accessible to all victims, particularly deaf, disabled and blind victims, as well as victims whose first language is not English.
Victim Support has also raised concerns about the need to implement the right to be understood. One woman, Angela—both her name and the languages have been changed—was wrongly arrested when she attempted to seek help from the police after experiencing domestic abuse. Despite taking regular English classes, Angela struggles with language skills in pressured or stressful situations. When she contacted the police to report the abuse, her partner at the time, who was fluent in English, managed to convince the police officers that he was the victim. Angela said:
“They cuffed me, put me in a police car, so I said, why? I was being treated like a criminal, so I was in great shock.”
At no point did the police ask Angela if she understood what was happening or if she needed a translator, even when she started speaking in Romanian. She said:
“They were just saying, ‘speak English, speak English!’”
Angela was arrested and held in police custody. She only got an interpreter at 8 pm, despite asking for one at 2 pm. After explaining what had happened through the interpreter, Angela was, thankfully, released and her partner was later charged. Eventually, the case went to court and the perpetrator was found guilty and issued with a restraining order. However, a copy of the court ruling was only sent in English, and Angela had to pay to have it translated.
It must be on the face of the Bill that the Secretary of State must take all practical steps to ensure that victims who are deaf, disabled or visually impaired, or who do not speak English as their first language are able to understand their entitlements under the code. We cannot allow anyone, in particular vulnerable women such as Angela, to be wrongfully treated and unaware of their rights do to these language barriers.
New clause 5 would also require the Justice Secretary to ensure that criminal justice bodies signpost victims to appropriate support services, and to ensure that appropriate training is delivered to staff in criminal justice bodies, including by specialist domestic abuse services. This is desperately needed, as we know from the examples we have heard over the past few days. I urge the Minister to consider adopting the new clause, or to please give assurances that he will include guidance on not only accessibility and awareness of the code, but on providing training to criminal justice agencies.
I now turn to new clauses 11 and 12. New clause 11 would place a duty on the Secretary of State to make an annual statement on compliance with the victims code, and new clause 12 would require the Secretary of State to set minimum threshold levels of compliance with each right of the victims code. The new clauses aim to strengthen the accountability of the victims code of practice by placing a duty on the Secretary of State to oversee them. They also aim to remove the core responsibility of overseeing enforcement of the code from the police and crime commissioners, who currently do not have sufficient powers and, in many cases, resources to either ensure compliance or hold contributors to the local criminal justice board to account.
New clause 12 would also ensure that the information on regulations covers every right in the victims code so that genuine improvements for victims will be achieved. In 2019, the independent Victims’ Commissioner carried out a review of delivery of the victims code. Sadly, the review found that the code is failing to deliver the improvements and sense of change required, because of fundamental problems that require systemic changes to be fixed. The needs of victims are not being met, and agencies are still struggling to deliver the code. The review called for an urgent reform—and that was in 2019. Wider victims code compliance data is not readily available, but aspects of it, such as being informed of the option to write a victim’s statement, are tested by the Office for National Statistics. That is reflected in the Ministry of Justice’s “Delivering justice for victims” consultation document, which sadly offers no detailed look at code compliance from other data sources.
The new clauses seek to tackle the lack of compliance by addressing the accountability issues denying victims and witnesses their rights and entitlements. The current set-up relies on the local criminal justice boards, the majority of which are chaired by the PCCs. LCJBs were introduced to bring together criminal justice partners to identify priorities, improve the experiences of victims and witnesses and deliver agreed objectives to improve the effectiveness of the local criminal justice system. They are aligned to the police force areas and operate as voluntary partnerships. However, when looking at right 4, for example, regarding support services for victims, the third sector, integrated care boards and sometimes local authorities are missing from this core conversation on the victims code.
In 2016, the Local Government Association undertook a high-level review of the council’s role in providing community safety services. Part of that review scrutinised PCCs and their role in chairing LCJBs. The review found that relationships between local councils and the PCCs were, not surprisingly, varied. It was clear that in some areas relationships are well established, with close work taking place; in others, relationships have proved more difficult to establish and there is very little contact, particularly where local priorities differ between the leading PCCs and the community safety partnerships. The review also found that similar variations were reported regarding the strength of local authority relationships with other statutory partners. In some areas excellent relationships are in place; however, it is clear that that is not universal. In other places, there continue to be concerns about siloed working and core issues such as data sharing. Stronger mechanisms must be in place to ensure that code compliance is on a national scale. We cannot have another postcode lottery being exacerbated due to the lack of accountability.
By placing a duty on the Secretary of State to both gather the data and publicly analyse it, there will be an emphasis for the relevant bodies to both return the data and work to improve it. Additionally, requiring criminal justice agencies to report annually on compliance provides the Secretary of State with a level of necessary oversight to ensure compliance and that victims’ rights and entitlements are upheld. The Secretary of State can then make an annual statement on the current state of code compliance and provide additional support and scrutiny wherever necessary to ensure that the code is working effectively for victims and witnesses. That also allows for more parliamentary scrutiny where necessary.
New clause 12 requires the Secretary of State to set a minimum threshold level of compliance for each right under the victims code. If the threshold for compliance is not met, the Secretary of State must commission an inspection and lay it before Parliament. Core accountabilities of the measures in the Bill must go back to the Secretary of State to ensure that we as parliamentarians can hold him or her to account, reporting the steps taken to correct any issues. That is a vital safeguard for Parliament. It should lead to urgent and tangible change where failures have taken place, and ultimately to a better experience for all victims.
Anna McMorrin
I support my hon. Friend’s new clauses. Victims who are deaf, disabled or blind or whose first language is not English are constantly being failed by the criminal justice system, so new clause 5 is essential. New clauses 11 and 12 raise key issues regarding accountability. It goes back to what I was talking about with my amendments. We need accountability. Treatment for victims is a postcode lottery, dependent on which policing areas see fit to hold services to account and ensure that victims’ needs are put first. I know that the Minister wants to address compliance, so I hope he will respond to my hon. Friend, who has made some important points.
Edward Argar
I am grateful to the hon. Member for Rotherham for tabling the new clauses, and I hope that she will allow me to address them all together. Although they each address different aspects of victims code awareness and compliance, they are interrelated. I wholeheartedly agree with the aims of each new clause, but we believe that the issues are already addressed in the Bill and associated measures. What differs is how the new clauses would achieve what is essentially a shared aim.
Broadly, the new clauses would either place duties in legislation where we instead propose including provision in statutory guidance, or introduce duties that we feel are already provided for in the Bill; I will go through the specifics in a second. As I said, the approach that we have taken to drive up code awareness and compliance is to set up the key structures of the framework in the Bill but to allow for the regulations and statutory guidance that operationalise it to be where the detail is found. Where we have introduced new duties, we have carefully considered how to do so in the way that we believe will be most effective in delivering the improvements in victim experience that I think is a shared objective for everyone in the room.
New clause 5 is intended to improve accessibility and awareness of the victims code and associated services. I share the hon. Lady’s aim of ensuring that all victims have access to the information that they need to support them in engaging with the criminal justice process. The new clause would require the Secretary of State to
“take all practicable steps to ensure that the code is fully accessible…and to promote awareness of the code”.
As right hon. and hon. Members will have seen in clauses 6, 8 and 9, we are placing explicit duties on criminal justice agencies to promote awareness of the code among victims and the public. We have placed that duty on agencies rather than the Secretary of State. Because those agencies are the ones in contact with victims day in, day out, they are best placed to raise awareness directly with victims themselves and to shoulder that responsibility.
Outside the Bill, I agree that there is a role for the Government in promoting code awareness. This is why we have committed to raising awareness of the code among practitioners, victims and the general public. For example, we are looking at a Government communications campaign and similar measures to boost that broader reach.
Sarah Champion
What language is that campaign in? I am holding up my phone to make a point about access to smartphones and smart technology. Translating all the core documents, which could easily be downloaded on a phone or printed out by an officer or support service, does not seem a particularly complex thing to do, if there is the Government will to make it happen.
Edward Argar
I am grateful to the hon. Lady. As I say, I am looking at how we might do this, so I am not in a position to make firm commitments to her, other than that I will bear what she says in mind when we get to the point of being able to do something like this. She made a sensible point and, typically, in doing so she also suggested a possible solution.
Accessibility is hugely important. The code, however brilliant it may end up being, is of limited value if people cannot access it to understand it and know how it relates to them. We know that victims not only need to know about the code, but need to understand it. We recognise the importance of that. We are considering carefully how we can ensure that everyone who needs to understand it can do so. I am happy to work with the hon. Member for Rotherham. My meeting agenda over the summer and in September is getting longer and longer, but I am always happy to spend time with her to discuss such matters.
The hon. Lady’s new clause 5 would also give the Secretary of State the power to make regulations prescribing that criminal justice bodies must signpost victims to appropriate support services and must receive appropriate training, including from specialist domestic abuse services. It is absolutely right that victims should be signposted to appropriate support services. Right 4 under the code contains an entitlement for victims to be referred to support services and to have such services tailored to their needs. Through the new duty on criminal justice agencies to take reasonable steps to make victims aware of the code, more victims should be aware of their entitlements.
I turn to training. Agencies already deliver training on the code to their staff to ensure that they are confident and comfortable sharing it. For example, the national policing curriculum uses interactive and group training methods to deliver training in as impactful a way as possible. That is regularly reviewed and updated as necessary.
Jess Phillips
I do not have the data, and I do not expect the Minister to have it at his fingertips, but does he know how many police officers have actually had that training? Less than 50% have been trained on what coercive control is, for example.
Edward Argar
The hon. Lady slightly pre-empts my answer. If that information is centrally held, I will endeavour to get it and write to her with it.
I am also pleased that the College of Policing has developed the Domestic Abuse Matters programme, which has already been delivered to the majority of forces. It was developed in conjunction with SafeLives and with input from Women’s Aid.
In addition, the CPS will work with specialist support organisations to develop bespoke trauma-informed training on domestic abuse to help prosecutors to understand the complexities that victims experience in those crimes. Information on domestic abuse and how to recognise the signs and provide support is also available to HMCTS staff. To increase the impact that the training agencies already deliver, we are using statutory guidance to set out advice regarding appropriate training so that staff working with victims are confident in how to share the code sensitively and effectively at the right time for the victim.
We are confident that for both training and accessibility, statutory guidance under the existing code awareness duty is the most flexible and effective approach. It can set standards while allowing agencies to tailor it for the different needs of agencies, staff and victims, and it can be kept up to date more easily, which enables us to take a continuous improvement approach. The hon. Member for Birmingham, Yardley is right to make the point that we can have fantastic guidance and training, but the key thing is to ensure that it is engaged with and that practitioners take the training on board and—I have used this dreadful word a few times—“operationalise” it in their day-to-day work. It is right that independent agencies have the expertise to decide how best to design and deliver training, rather than the requirement sitting with the Secretary of State. We already have provisions in the Bill and additional measures to address the aims of new clause 5, so I encourage the hon. Member for Rotherham not to press it to a Division.
New clause 11 would place a duty on all agencies with victims code responsibilities to monitor and report on compliance, and a duty on the Secretary of State to report annually to Parliament. I am grateful for the debate we have had, and I absolutely agree that we must monitor and report code compliance information. That is vital to understanding whether victims are getting the service they should. As I mentioned in our debate on a previous group of amendments, in 2019-20 only 23% of victims and 22% of the public were aware of the code, and only 45% of victims felt that the police and other criminal justice agencies kept them informed. That is why the Bill already legislates for new duties on code awareness and compliance in clauses 6 to 11. We therefore consider that new clause 11 is already covered by the existing provisions.
Sarah Champion
I wonder whether the Minister plans to speak about what enforcement there is if things do not go as he anticipates in the Bill.
Edward Argar
Without testing the patience of the Committee, I have a few more points I intend to make before concluding. I hope that some of what I say may well reassure the hon. Lady. If it does not, I am sure she will return to it at some point.
Together, these clauses set out the new code compliance monitoring framework by requiring key criminal justice agencies to keep their compliance with the code under review through collecting, sharing and reviewing compliance information and by reporting to the Secretary of State—either through police and crime commissioners, for local area reporting across agencies, or via separate routes for the national police forces. As has been outlined, those reports will be fed into a national forum where the data is reviewed, and the Secretary of State will publish relevant information to create as much transparency as possible. We are actively considering how often compliance information and data will be shared, and we will include that in the statutory guidance.
Where the amendment differs is in covering all agencies that deliver services under the code. This is a long list and includes bodies for which direct working with victims of crime is not central to their work. We carefully considered which agencies should come under these important but potentially not un-onerous monitoring and reporting responsibilities. We sought to choose key agencies that work day in, day out with victims of crime and have most responsibilities under the code, for example the police, the CPS, the courts, prisons and probation, and youth offending teams. That is where we want to prioritise resourcing to deliver robust local and national oversight. I agree that the Secretary of State reporting annually to the House is a vital part of accountability. We will continue to test and develop proposals for the new national governance forum, and I am open to considering how the findings and outcomes of that forum can best be reported to Parliament to allow parliamentary scrutiny and debate of such measures.
New clause 12 would require the Secretary of State to set victims’ code compliance thresholds by regulations, trigger inspections if thresholds were breached and require inspection reports to be laid before Parliament. I agree that there should be clear standards for the service that victims should receive, and consequences if service falls below that threshold. Our approach to achieving that is related to, but slightly different from, the proposal of the hon. Member for Rotherham. Although we will use regulations to set out what information must be collected to monitor code compliance, we think statutory guidance should cover the important issues that the hon. Lady has raised, such as thresholds that may trigger escalation to address poor performance. That is particularly appropriate for considering performance thresholds, given how the victims’ code sets out entitlements: they are a mix of what victims should receive, or have the opportunity to receive, and how they should be treated. In this context, the quality of communication and delivery really matters.
We will better understand code compliance, including the quality of delivery, by gathering consistent information from a range of different sources, including victim feedback, quantitative data and process narratives to understand how agencies deliver less measurable entitlements. That basket of evidence will hopefully give us a broader picture of how well local areas are delivering the code. The information on code compliance will allow police and crime commissioners to assess where improvements are needed, what agencies’ plans are to drive these improvements and whether those plans are working. Measuring whether standards are improving in this way will be more effective than setting a potentially arbitrary threshold, against each code right, as to what triggers escalation.
Where local solutions fail or greater oversight is required, police and crime commissioners will be able to escalate systemic issues to the national governance forum. I agree that inspections will help to drive change, which is why the inspectorates will be invited to attend the national governance forum. When systemic issues and poor performance are identified at a national level, that will be an opportunity to use the powers that we have introduced in the Bill for Ministers to direct a joint victim-focused inspection in areas that are consistently not delivering or to examine a range of issues that are clearly challenging in a number of areas, rather than requiring an inspection for each individual breach. In cases where there are individual breaches, there are, of course, complaints processes, and the Parliamentary and Health Service Ombudsman can take appropriate actions to identify the most appropriate route for redress.
Finally, with regard to laying a report in Parliament, inspection reports are already published. As I have said, I am open to considering how the national governance forum reports and work can be fed into Parliament, and I will work with the hon. Member for Rotherham and others across the House to ensure that we get this right. I hope that that gives the hon. Lady some reassurance.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Fay Jones.)