Church of England (Miscellaneous Provisions) Measure (HC 341)
Church of England Pensions (Application of Capital Funds) Measure (HC 342)
(3 months, 3 weeks ago)
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The Second Church Estates Commissioner (Andrew Selous)
I beg to move,
That the Committee has considered the Church of England (Miscellaneous Provisions) Measure (HC 341).
The Chair
With this it will be convenient to consider the Church of England Pensions (Application of Capital Funds) Measure (HC 342).
Andrew Selous
It is a pleasure to serve under your chairmanship, Mr Gray. I hope that these two measures will not detain the Committee for long.
The Church of England (Miscellaneous Provisions) Measure is the latest in a series of such Measures. It makes provision for a range of matters concerning the Church of England that do not merit separate free-standing legislation. It includes provisions relating to the General Synod, ecclesiastical offices, ecclesiastical jurisdiction, Church property, elections to representative bodies, the functions of the Church Commissioners, appointments to the Church of England Pensions Board and the conduct of various types of meeting. I do not propose to take the Committee through all its 22 clauses in detail, but I will elaborate on its most significant provisions.
Clause 1 will put on a permanent basis the ability of the General Synod of the Church of England to hold remote or hybrid meetings. Temporary provision was made during the covid pandemic for the General Synod to meet and conduct its business on a remote or hybrid basis. Experience has shown that the ability to hold remote meetings, particularly hybrid meetings, is of continuing value, particularly given the inability of some members to attend meetings of the Synod for reasons of health or disability. We envisage that the Synod is most likely to continue to hold hybrid meetings with most members physically present.
Clause 2 amends the Legislative Reform Measure 2018 by removing a sunset provision. The Legislative Reform Measure enables the Archbishops’ Council—with the approval of the General Synod, and subject to the negative procedure in Parliament for statutory instruments—to make legislative reform orders that can amend ecclesiastical legislation contained in Acts of Parliament and Church Measures, within certain limits. The power to make legislative reform orders would expire in March of this year without the amendment made by clause 2 to repeal the sunset provision. The Church has found the power to make legislative reform orders a useful one; three significant orders have been made since the power came into being. This amendment will ensure that the power to make further orders remains available. The orders made so far have related to the exercise of patronage, the constitution of the Church of England Pensions Board and certain procedures of the Church Commissioners.
Clause 7 and schedule 1 make it possible for those cathedrals that wish to do so to appoint lay residentiary canons. The residentiary canons of a cathedral, all of whom must currently be ordained as priests or deacons, constitute the principal group of individuals who exercise ministry and form the praying heart of a cathedral. For some time now, the Church has sought to recognise and encourage the ministry of lay people, both in parishes and in cathedrals. The ministry of readers, who are now often called licensed lay ministers, and of lay workers is recognised and regulated by the canons of the Church of England. Some cathedrals wish to include experienced lay ministers among their residentiary canons; this Measure will enable them to do so. I should point out that no cathedral will be obliged to have lay residentiary canons.
Clauses 9 to 12 update the practice and procedure of the Church’s courts and statutory tribunals in various ways. These include provisions designed to increase diversity among those appointed as ecclesiastical judges and impose mandatory training requirements for ecclesiastical judges; to expedite decisions on permission to appeal from the decisions of tribunals; and to put the live broadcast of proceedings in Church courts on a statutory footing. Members of the Committee may be interested to know that these courts principally cover matters relating to planning permission-type issues in relation to the use and development of church buildings and churchyards, as well as clergy discipline matters.
Clause 20 and schedule 2 make provision for a range of Church of England bodies at the local as well as national level to hold their meetings remotely or to hold hybrid meetings. These include parochial church councils, diocesan synods, deanery boards, parochial church meetings, parishioners meetings to choose churchwardens, cathedral chapters, diocesan boards of education, the church buildings council, and boards of patronage under pastoral schemes.
The Church of England Pensions (Application of Capital Funds) Measure is a much shorter, technical measure. If passed, it will extend the Church Commissioners’ currently time-limited power to spend capital to meet their pensions obligations—mainly to clergy—for service carried out before 1998. Under the current legislation, the power to do so will expire at the end of 2025. This measure will extend the period for a further seven years, until the end of 2032. The ability to apply capital as well as income to meet pensions obligations gives the commissioners much greater flexibility in their asset allocation policy.
Mr Philip Hollobone (Kettering) (Con)
I am enjoying my hon. Friend’s excellent and entertaining speech. Why 2032? Normally, these things are extended by five, 10 or 15 years. Why seven?
Andrew Selous
My hon. Friend, who is well versed in biblical history, will know the significance of seven in the Old Testament, and indeed in the new. It has just been the case that this measure has been rolled on for seven consecutive years, so my hunch is that it has theological origins.
The pensions measure will enable the Church Commissioners to invest in a broad range of asset classes, including those where most, and in some cases all, of the investment returns come from capital appreciation—an increase in the value of the holdings, rather than from income distributions, for example dividends and interest. The ability to apply capital in this way has been a crucial enabling factor in the strong returns the commissioners have generated for the Church of England’s endowment fund. Those returns have fed through to increased support for the Church’s mission and ministry.
From 2020 to 2022, the commissioners were able to make £150 million of additional funding above the level that might have been expected. As reported to the General Synod last July, in the current spending period, 2023 to 2025, the commissioners plan to distribute 30% more than was distributed in the period 2020 to 2022. Looking over a longer period, planned distributions by the commissioners in 2023 to 2025 are more than double the equivalent in 2017 to 2019. The power provided by this measure to apply capital towards the cost of the commissioners’ historical pensions liabilities will enable them to continue to manage the endowment in the way that best serves the Church, both now and sustainably into the future. The Ecclesiastical Committee of Parliament has reported on both measures and found them both to be expedient.
Mark Tami (Alyn and Deeside) (Lab)
It is a pleasure to serve under your chairmanship, Mr Gray.
May I first thank my colleagues for their support this morning? The Second Church Estates Commissioner may be surprised to know that we will not be oppose the measure, but I want to raise a couple of general points. On the pension issue, which he has raised, my right hon. Friend the Member for East Ham (Sir Stephen Timms) raised some concerns in oral evidence about using capital sales to fund pensions. I know that that applies only up to 1997, but I understand that the sums already expended run to £130 million a year. That amounts to £900 million, which seems quite a lot. Does the Second Church Estates Commissioner have any views on the matter?
On the sale and care of property, the Church of England (Miscellaneous Provisions) Measure refers to churches and land. Does it also cover other Church property such as houses? There is quite a lot of concern about the upkeep of such properties. Anyone who has seen ex-vicarages up for sale knows that most of them look as if no one has touched them since 1950. Does the Measure cover them? What is being done on keeping properties? Even if they are to be sold, their value will be higher if they are looked after properly—let alone the wellbeing of the people who have to live in them.
Andrew Selous
The right hon. Member for Alyn and Deeside (Mark Tami) can have great confidence in the investment management capability in respect of the Church Commissioners’ funds, which in recent years have increased substantially to approximately £10 billion. Very careful stewardship is exercised; I have sat in on many assets committees in my time as a commissioner. We are extremely prudent in the way we manage the fund, and we have managed to use capital appreciation and grow the value of the fund at the same time. Although we have distributed some capital gains for the mission and ministry of the Church, we have always managed—in recent years, anyway, because of our excellent chief investment officer and the highly skilled investment team at Church House—to grow the endowment while doing so. A number of measures are in place to carefully guard the stewardship of the intergenerational endowment fund for the Church.
On Church property, the commissioners do sell individual properties—they are often farm cottages, because the commissioners own farm land and so on—but we do so where it makes sense. We want our property to be in good repair: that is an obligation that is extremely important to the commissioners. Vicarages are, in principle, the responsibility of the diocese concerned rather than of the commissioners, but dioceses take that responsibility very seriously and really do their best to maintain vicarages. I am not saying that every repair is always made as quickly as the vicar and her or his family would like—possibly they are not—but I know that dioceses take their duty seriously.
I hope I have reassured the right hon. Gentleman that there is careful stewardship; that we absolutely accept a high responsibility and a duty of care to those who live in our agricultural dwellings; and that dioceses take their obligations to clergy and their family extremely seriously in respect of the properties in which they live, and will always do so.
Question put and agreed to.
CHURCH OF ENGLAND PENSIONS (APPLICATION OF CAPITAL FUNDS) Measure
Resolved,
That the Committee has considered the Church of England Pensions (Application of Capital Funds) Measure (HC 342). —(Andrew Selous.)
Draft Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023
(3 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Justice (Gareth Bacon)
I beg to move,
That the Committee has considered the draft Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023.
It is a pleasure to serve under your chairmanship, Mr Vickers. Last July, my right hon. and learned Friend the Lord Chancellor made a written statement to this House announcing the publication of the full Government response to the independent domestic homicide sentencing review undertaken by Clare Wade KC. The response announced a package of proposed reforms to ensure that the seriousness of domestic homicides is reflected in our sentencing framework. The draft regulations before us today are the first step in implementing those important changes.
In 2021, Clare Wade KC was commissioned to review sentencing in domestic homicide cases to establish whether the law and sentencing guidelines were fit for purpose. That followed concerns raised by a number of stakeholders, including the Domestic Abuse Commissioner and the Victims’ Commissioner, and by Carole Gould and Julie Devey, the mothers of two young women, Ellie Gould and Poppy Devey- Waterhouse, who were tragically murdered by their former partners in 2018 and 2019 respectively. I would like to take this opportunity to pay tribute to Carole and Julie for their tireless campaigning following the deaths of their daughters, and to Clare Wade KC for her work on this important review.
About a quarter of all homicides in England and Wales are classed as domestic: that is, they are committed by the partner or ex-partner or a relative of the victim. Over the past 10 years, that represents an average of nearly 160 homicides a year, with almost 90 of those being committed by a partner or ex-partner. The majority of domestic homicides are committed by men against women. In many of these cases, the victim has been subjected to years of abuse before their death and many also involve sustained and excessive violence towards the victim, which I will refer to in this debate as “overkill”. When female perpetrators commit domestic homicide, they have often, although not exclusively, been the victims of abuse and have killed their abuser.
The legal framework for sentencing for murder is primarily contained in schedule 21 to the Sentencing Act 2020. Schedule 21 was first introduced in the Criminal Justice Act 2003, more than 20 years ago, and contains the factors to which the court must have regard when assessing the seriousness of murder. Although it always remains open to judges to consider aggravating and mitigating factors not contained in schedule 21, the schedule does not include any specific consideration of the seriousness of domestic homicides and the abuse that often precedes such cases. Over the last 20 years our societal and legal understanding of domestic abuse has evolved. The Government have made controlling or coercive behaviour in an intimate or family relationship a criminal offence under the Serious Crime Act 2015, and introduced the landmark Domestic Abuse Act 2021, which created a legal definition of domestic abuse for the first time and made non-fatal strangulation a criminal offence.
We are also delivering on our rape review action plan, tackling violence against women and girls strategy and tackling domestic abuse strategy, and more than quadrupling funding for victim and witness support services by 2024-25, up from £41 million in 2009-10. However, as Clare Wade KC highlights in her review, our sentencing framework for murder does not yet fully reflect the increased seriousness that society now recognises in offending committed in a domestic context. Nor does it adequately account for the reduced culpability of a victim of abuse who snaps and kills their abuser. The measures that the regulations introduce will change that.
First, the draft regulations introduce both a statutory aggravating factor and a statutory mitigating factor for murder in relation to controlling or coercive behaviour. Cases of domestic murder are rarely isolated incidents. They are often the culmination of years of abuse underpinned by coercion and control. In the majority of cases, although not all, the abuse has been committed by the perpetrator of the murder, who is usually a man, against the victim, who is usually a woman. The new statutory aggravating factor will apply in those cases where an abusive partner or family member has killed their victim, in recognition of the seriousness of the preceding abuse and the experience of the victim before death.
However, a minority of cases involve a victim of abuse who has killed their abuser, often after years or even decades of abuse. In most of those cases, the perpetrator of the killing and the victim of the abuse is a woman. The new statutory mitigating factor will apply in those cases where a victim of abuse has killed their abuser, in recognition of their experience of abuse which preceded the killing and its impact on their culpability.
Secondly, the statutory instrument introduces a statutory aggravating factor for murder in relation to overkill, which it refers to as “sustained and excessive violence”. The prevalence of overkill in domestic murders is striking. It was identified in more than half the murder cases analysed for the review. In all but one of those cases, the perpetrator was male, and in more than two thirds, the perpetrator had also exhibited coercive or controlling behaviour towards the victim. Overkill causes intense distress to victims’ families. The horror of overkill, and the anguish that knowing that the body of their loved one was violated in such a way causes victims’ families, will now be recognised in statute.
Although the SI is an important first step in the Government’s response to the domestic homicide sentencing review, it forms part of a wider package of measures that we are taking forward in response to the recommendations made by Clare Wade KC.
The final legislative measure in the package is being taken forward separately in the Criminal Justice Bill. It will make the connection between a murder and the end of a relationship, or the victim’s intention to end a relationship, a statutory aggravating factor. In 40% of the murder cases analysed for the review, the murder occurred at the end, or perceived end, of the relationship. In all those cases, the perpetrator was male. Killing in those cases is the final controlling act of an abusive partner and its seriousness will now be recognised in law.
Kevin Brennan (Cardiff West) (Lab)
When describing the overkill provision in the statutory instrument, the Minister referred to the body of the victim. That matter was raised in our recent consideration of the Victims and Prisoners Bill. Is the provision applicable when such desecration took place after death, or does it apply only if it happened during the course of the murder?
Gareth Bacon
It will be applicable if the desecration took place after death as well as during the course of the murder, because the state of the body causes anguish to the relatives who are left behind.
As part of the Government’s response to the review, my right hon. and learned Friend the Lord Chancellor wrote to the independent Sentencing Council to propose that they revise their guidelines in the light of the recommendations and the Government’s response to them. I am glad to inform hon. Members that in response, the Sentencing Council is consulting on amending the aggravating and mitigating factors in the manslaughter sentencing guidelines to include a history of controlling or coercive behaviour. That consultation also seeks views on adding an aggravating factor to the manslaughter sentencing guidelines for strangulation, suffocation or asphyxiation.
Finally, the Lord Chancellor has invited the Law Commission to undertake a review of the use of defences for murder in cases involving domestic abuse, and to consider in particular whether there is any evidence to suggest that defences are used in different ways, or to different effect, depending on the gender of the defendant.
Although I hope that hon. Members will support the Government’s important changes in response to Clare Wade KC’s review, I recognise that some Members may want us to go further. We have therefore launched a public consultation to ensure that all options are fully explored. We recognise that there are issues and options that would benefit from further consideration, beyond the recommendations made in the review. The consultation seeks views on a minimum term starting point for murders preceded by controlling or coercive behaviour against the victim, and for all murders committed with a knife or other weapon. The consultation will close on 4 March and the Government will carefully consider the responses to determine whether further reform is required. We will update the House on the outcome of the consultation in due course.
Murder is the most serious crime that a person can commit, and we must ensure that in every case the sentence is commensurate with the seriousness of the crime. Our sentencing framework must reflect the seriousness of violence and abuse committed by those closest to the victims.
I commend the regulations to the Committee.
Kevin Brennan
I thank the Minister for explaining the statutory instrument that we are considering today, and I echo his comments about Carole and Julie and their campaign, which is partly responsible for this change in the law. It is a great pleasure to serve under your chairmanship for the first time, Mr Vickers.
As the Minister stated, the statutory instrument adds two aggravating factors and one mitigating factor to schedule 21 of the Sentencing Act 2020—the sentencing framework for murder—to recognise the seriousness of excessive violence and the preceding abuse that is so common in domestic abuse cases. It addresses some of the recommendations in Clare Wade KC’s domestic homicide sentencing review to give, for the first time, domestic homicides specialist consideration in the sentencing framework for murder.
I will not repeat the statistics that the Minister gave about those, predominantly women, who are victims of domestic homicide and lose their lives annually at the hands of a current or former partner. The crime leaves families engulfed in profound grief, and it is high time that the law specifically addressed its magnitude.
We are grateful to Clare Wade KC for carrying out the independent review in 2021. It was a crucial and complex task. Labour supports moving forward with reforms aimed at ensuring that domestic homicides are distinctly recognised and appropriately addressed in murder sentencing guidelines. That includes acknowledging controlling and coercive behaviour as a factor that both exacerbates the severity of the crime and, in certain contexts, might mitigate sentencing.
The pattern of domestic abuse, which is often characterised by escalating violence and manipulation, predominantly affects women, but it is also crucial to recognise instances where women, after enduring prolonged abuse, sometimes resort to violence. It is therefore important that preceding abuse can be a mitigating factor in sentencing, as envisaged in the SI.
I want to probe the Minister on a few things and make a few general comments. The SI addresses recommendations 5 and 8 of Clare Wade’s review with three measures: overkill, controlling and coercive behaviour as an aggravating factor, and the experience of such behaviour being a mitigating factor in killing by a victim.
The Minister has clarified that overkill would be applicable when sustained and excessive violence took place after the victim’s death. I welcome that clarification because the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) raised the matter during consideration of the Victims and Prisoners Bill. He had a particularly horrifying constituency case. Perhaps the Minister will confirm that overkill is applicable not just in the context of domestic abuse, but in all cases of murder. In the case that the hon. Member for Carmarthen East and Dinefwr mentioned, his constituent, Mr Michael O’Leary, was murdered in a carefully planned way in January 2020 and his body was subsequently desecrated. I will not go into the details this afternoon—it is a horrific case—but the family has campaigned to try to ensure that there is a specific crime in relation to that sort of activity. I hope that the SI will go some way towards meeting their concerns, even if they would like the law to go further.
The review gave the Government 17 different recommendations, so will the Minister inform us about progress on all the other recommendations? He specifically mentioned one of the other recommendations. A fourth measure—to make murder at the end of a relationship an aggravating factor in sentencing—is covered in the Criminal Justice Bill. I would therefore be interested to know why that was not covered in this statutory instrument and why it required a separate piece of primary legislation. The Government are taking the recommendations forward, but that just means they will be implemented at a later date, should that Bill make its way through both Houses unamended. Will the Minister explain why we are not covering that off today with these other offences? Is there a specific reason?
Will the Minister also explain what is happening to the other 15 recommendations from Clare Wade’s review? There is some concern out there that the Government have taken a bit of a piecemeal approach to sentencing—this might be evidence of that—which could have the potential to lead to unintended and unwelcome consequences. Page 40 of the “Domestic Homicide Sentencing Review” states:
“Schedule 21 remains a product of its time and frozen in 2003 since when it has been amended in a piecemeal fashion… There is an argument that there should be a wholesale reform of schedule 21, with guidance being issued by the Sentencing Council.”
That does raise the inevitable question as to why the Government are not undertaking a wholesale reform of schedule 21, rather than continuing with this piecemeal approach.
Our approach, expanding on that in new clause 6 which I tabled to the Sentencing Bill, would commission a review into the effectiveness of current legislation and sentencing policy. It would focus in particular on increasing sentences for domestic homicide and abuse, but also examine other areas of concern in the current framework, including sexual violence and other violent crime, assaults on frontline and emergency workers and offences against children, and tougher sentences, including minimum custodial sentences, a greater minimum custodial sentence for rape, and whole life orders for any adult offender found guilty of rape, abduction and murder of a stranger.
Sometimes these measures pass quite quickly in such Committees without a great deal of scrutiny, but it is important for all the members of the Committee to keep in mind that the Government’s best estimate of how much this statutory instrument will cost, as contained in the impact assessment, is nearly £100 million. That is the middle estimate over the next 40 years. It is not an insignificant commitment of resource from the Government, albeit over a relatively long period of time. There is quite an interesting observation within the impact assessment, which states:
“All the cost estimates…have been assessed using HM Treasury guidance”
It then lists the conventions adopted in that process, one of which reads:
“Where appropriate, 20% optimism bias has been applied to future costs.”
Now, it might explain a thing or two about the former Chancellor and current Prime Minister if an automatic optimism bias is built into the estimates before us this afternoon, but that would be a trite point to make at this stage in our proceedings. However, it is significant that we are talking about having to commit £100 million as the middle estimate for what this SI will cost.
A lot of that, of course, relates to the fact that, according to the impact assessment, between 66 and 190 additional prison places will be required to cater for longer sentences as a result of this measure. Even with those extra places, the impact assessment says that one of the non-monetised costs is
“a risk that offenders spending longer in prison… may compound prison capacity and overcrowding”.
That underscores the consequences of the profound neglect of our criminal justice system in recent years. It is a direct consequence of inadequate investment in our Prison and Probation Service, which is only now beginning to receive belated attention. That additional burden could have been averted with a more consistent, pragmatic emphasis on investing in our public infrastructure from the outset. How do those financial implications align with the current budget? Will the Minister say more about that?
What measures will the Minister take to monitor and evaluate changes in sentencing patterns, prison population, and the overall justice system? I accept that it will take considerable time before the full effects of the SI come into force. What is the Government’s plan to monitor its effectiveness? I would be grateful if he informed the Committee when we can expect all the other recommendations from the review to be implemented and whether the views and concerns of victims’ advocacy groups, legal professionals, and other relevant organisations will be considered in such changes.
Will the Minister clarify the position of the proposed exemption from new restrictions on parental responsibility for those who commit murder but are victims themselves of domestic abuse? That is not contained in the SI, but what is happening to that exemption? When and how will it be enacted? If he cannot tell me this afternoon, I would be happy for him to write to me. I accept that he may not have prepared that point.
We will support the adoption of the SI instrument today, but it falls short of the comprehensive and less piecemeal approach that the Government should take to support victims.
Gareth Bacon
I thank the hon. Member for Cardiff West for the Opposition’s support for an important SI. He raised several points, which I will attempt to answer in order.
We covered one aspect of overkill. The hon. Gentleman asked whether it would apply to all cases of murder. The short answer is that it will. All statutory aggravating factors in schedule 21 apply to all murders, and that will be the case for overkill. We anticipate that most cases captured by the change will be domestic murders, but the provision will apply in every case.
The hon. Gentleman asked about progress on the other recommendations. He specifically asked why all the measures in response to the DHSR are not being introduced in the same legislative vehicle. The new aggravating factors in the SI were announced in the Government’s interim response to the DHSR last March. At that time, no primary legislative vehicle was available, so we committed to acting quickly and introducing the legislation as soon as we could. The measure in the Criminal Justice Bill to make murder at the end of a relationship a statutory aggravating factor was announced in the Government’s full response to the review in July and was included in the King’s Speech. It was not possible to include the measure in the SI without delaying its introduction due to the consultation that is required. That is why we have done that in a slightly different way. We decided to proceed with the SI to ensure that important changes could be made as soon as possible, and to include the final measure in the Criminal Justice Bill.
The new statutory mitigating factor relating to controlling or coercive behaviour was announced in the Government’s full response in July. Due to its similarity to the equivalent aggravating factor, it was possible to include it in the consultation with the Sentencing Council without delaying its introduction. That is a long way of saying that speed led to its inclusion.
The hon. Gentleman asked whether we should have wholesale rather than piecemeal reform. We do not accept that the SI represents a piecemeal change. It is part of a package of reforms that the Government are introducing at the same time to update schedule 21 in response to an independent review. As he knows, it was an in-depth review, which Clare Wade KC undertook, that involved extensive research and engagement with stakeholders across the sector. The review found that schedule 21 needed to be updated to reflect our improved societal and legal understanding of fatal domestic abuse. That is exactly what we are doing. That does not preclude a future review of schedule 21, but the Government took the view that the priority was to change the law now, rather than delay.
The hon. Gentleman touched on cost and the £100 million. As he said, that is over 40 years. The Ministry of Justice’s annual budget is £14 billion, so although £100 million sounds like a lot of money in isolation, compared with the overall budget, it is not as much as he suggests.
The hon. Gentleman asked about longer sentences and pointed out that the impact assessment estimates that the measures will require a set number of prison places. The good news is that that will not be for at least 15 years because the measure will not kick in as an aggravating factor until beyond the minimum term for a murder conviction, which is 15 years.
The hon. Gentleman also mentioned public infrastructure, particularly with regard to prison places. The Government are currently engaged in the largest expansion of the prison estate since the Victorian era, with £4 billion being invested in creating 20,000 additional prison places.
The hon. Gentleman was correct that I do not have a brief on his final point about parental responsibility because it is not within the confines of the SI. As he suggested, I will write to him by the end of next week with a full response on that.
Question put and agreed to.
Draft Investigatory Powers Act 2016 (Remedial) Order 2023
(3 months, 3 weeks ago)
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The Minister for Security (Tom Tugendhat)
I beg to move,
That the Committee has considered the draft Investigatory Powers Act 2016 (Remedial) Order 2023.
It is a pleasure to serve under your chairmanship, Mr Hosie. The order was laid before the House on 18 October 2023. Maintaining our national security and keeping the public safe is a priority for the Government. The Investigatory Powers Act 2016, or the IPA, provides extensive and robust privacy safeguards in relation to investigatory powers. We rightly have world-leading standards in place on transparency, privacy, redress and oversight to accompany the exercise of these important powers.
The order will make necessary amendments to the IPA following the judgment of the Grand Chamber of the European Court of Human Rights in May 2021 in the case of Big Brother Watch and Others v. the United Kingdom, which I will refer to as BBW. The Grand Chamber ruling related to the bulk interception regime under the Regulation of Investigatory Powers Act 2000, known as RIPA, which was was the predecessor to the IPA. The Grand Chamber found that there were violations of articles 8 and 10 of the European convention on human rights, which I will refer to as “the convention”.
Although most of the incompatibilities were addressed through the introduction of the IPA, one further change required primary legislation to implement. To be compliant with article 10 of the convention, the IPA’s bulk interception regime needed to include a requirement for prior independent authorisation for the use of criteria to select intercepted material for examination. Such a requirement applied where a purpose of the search was to find confidential journalistic material or information that could identify a source of journalistic material. The requirement also applied to searches carrying a high likelihood of confidential journalistic material or sources of journalistic material being selected for examination.
Finally, prior independent authorisation is also required for the retention of items containing confidential journalistic material or sources of journalistic material. Bulk interception warrants authorised the interception in bulk of communications. That material is then retained for the minimum amount of time necessary for the authorised purposes. Criteria are used to search through that material to find material useful for operational purposes. Useful material is then retained for the minimum amount of time necessary for the authorised purposes. It is the use of these criteria that will require judicial authorisation if a purpose of using them is to identify confidential journalistic material, or to identify or confirm a source of journalistic material, or if the use of them is highly likely to lead to such outcomes. Currently, section 154 of the IPA, which covers the journalistic safeguards for bulk interception, requires only that the Investigatory Powers Commissioner be informed if material thought to contain confidential journalistic material or sources of journalistic material is retained following examination for a purpose other than its own destruction.
There are additional safeguards in the interception code of practice that require the relevant intelligence agency to seek the agreement of a senior official within a warrant-granting department before the agency may select material for examination in order to identify or confirm a source of journalistic information. This remedial order therefore strengthens the existing safeguards. It does this by requiring that approval from the Investigatory Powers Commissioner be obtained before any criteria are used, with the purpose of that being to select material for examination that is confidential journalistic material or a source of journalistic material or where it will be highly likely to do so. The retention of confidential journalistic material or sources of journalistic material must also be authorised by the Investigatory Powers Commissioner. There is also an urgency provision, which I will come to later. [Interruption.] It is an honour to see my hon. Friend the Member for Gloucester.
It is necessary that the Government make this change to the IPA, so that our intelligence agencies can maintain their ability to carry out bulk interception. It is an important operational tool, used to identify threats to national security—it was recognised by the Grand Chamber as such—tackle serious crimes and maintain the United Kingdom’s economic wellbeing.
The Investigatory Powers Commissioner already provides oversight of confidential journalistic material and sources of journalistic material obtained under bulk interception, but legislative change is needed to mandate those safeguards within the IPA. Failure to amend the IPA could result in applications for bulk interception warrants being refused.
The draft remedial order will reform three different areas of the IPA, by amending section 154, inserting proposed new section 154A, and making a minor amendment to section 229(8). The amendment to section 154 will introduce enhanced safeguards relating to the criteria used to select material for examination that will identify confidential journalistic material, or identify or confirm sources of journalistic material derived from material acquired through bulk interception. The permission of the Investigatory Powers Commissioner will be required before such material can be purposefully selected for examination, or knowingly retained for a purpose other than destruction.
Proposed new section 154A introduces an urgency process for dealing with requests that need to be approved out of hours for authorisations to use criteria to select material for examination. Such authorisations will be subject to subsequent judicial authorisation if the relevant condition is met. Activity must cease if that is not the case, so urgent applications will still be subject to rigorous judicial scrutiny.
The amendment to section 229(8) is a consequential amendment that includes references to the new functions of the Investigatory Powers Commissioner in section 154 and proposed new section 154A, so that they are treated consistently within the IPA. Section 229(6) and (7) require judicial commissioners not to act in a way that is contrary to the public interest, national security, the prevention or detection of serious crime, or the economic wellbeing of the United Kingdom. Subsection (8) then disapplies that requirement when the judicial commissioner is exercising various functions, such as considering whether to approve the authorisation of a bulk interception warrant.
Section 229(8) is amended by this draft statutory instrument to include decisions by the judicial commissioner under section 154, as amended, and proposed new section 154A. That is consistent with similar judicial commissioner functions in other parts of the IPA, and ensures that judicial commissioners can exercise their functions properly.
In summary, the changes will ensure that the United Kingdom is meeting its obligations under the convention and that the bulk interception regime is compliant with article 10 of the convention. The changes will also further strengthen the privacy safeguards contained in the IPA, in line with the BBW judgment, while continuing to give our intelligence agencies the powers and flexibility to keep our country safe. I commend the draft order to the Committee.
Dan Jarvis (Barnsley Central) (Lab)
It is a particular pleasure to serve under your chairship, Mr Hosie.
I thank the Minister for his remarks. As he set out, this statutory instrument, the draft Investigatory Powers Act 2016 (Remedial) Order 2023, came about after the European Court of Human Rights ruling on the case of Big Brother Watch and Others v. the United Kingdom on 25 May 2021. We do not intend to oppose this statutory instrument, and I do not intend to detain the Committee any longer than is necessary, but while these matters can be technical, they are also important. I have a couple of points to make and a couple of questions for the Minister to respond to.
It is also worth noting that the Investigatory Powers (Amendment) Bill has its Report stage in the other place today. I look forward to debating it with the Minister when it reaches this place in the not-too-distant future.
On the substance of the matter, the ECHR ruling found that parts of the bulk interception regime under the UK’s Regulation of Investigatory Powers Act 2000—RIPA—were incompatible with article 8 on private and family life and article 10 on freedom of expression in the European convention on human rights. Most of the incompatibilities were addressed with the introduction of the Investigatory Powers Act 2016—IPA—which superseded RIPA. While I will always pay tribute to the men and women serving in our intelligence and security services, in government and in our police, on this occasion, as this remedial order is designed to include additional protections in relation to confidential journalistic material, it is also right on this occasion to pay tribute to the journalists who hold the powerful to account, including Government, Parliament and the Opposition. At its heart, journalism is a noble profession, and journalists have a crucial role to play in our democratic system, not least when there are those who would seek to mislead, obfuscate and, frankly, lie.
The need for impartial journalism is critical. Two matters have recently brought this into sharp focus: the fact that highly professional and hugely committed journalists on the BBC’s “Newsnight” programme are at risk of redundancy, and the concerns raised on both sides of the House about the future ownership of The Daily Telegraph. It is also worth noting that, in the ruling on Big Brother Watch and Others v. The United Kingdom, the European Court of Human Rights is a guarantor of those freedoms.
Given that an ECHR ruling has shaped this remedial order changing UK law, I want to briefly touch on the context of this statutory instrument. The Minister will know that the UK was one of the founding signatories of the ECHR in 1950, and has had a fundamental role to play in guaranteeing rights and freedoms for over seven decades now. I know the Minister agrees with me on this because when he was asked about his party’s policy on remaining in the ECHR on 2 October last year, he said that the prospect of leaving it raises
“some pretty big questions, whether that’s about the Good Friday Agreement, whether it’s about the devolved administrations, whether it’s about our relationships with other countries, including, in fact, the TCA and the Windsor Agreement with the European Union.”
Have the Minister’s questions have been answered, and will he confirm the Government’s long-term commitment to the ECHR?
I do not intend to detain the Committee for much longer, so I will make one further point about this statutory instrument. While the IPA 2016 replaced the relevant parts of RIPA that make express provision for bulk interception in the existing section 154 of the Act, this remedial order substitutes a new section 154 that includes a requirement for the Investigatory Powers Commissioner’s approval before criteria are used for certain purposes to select material for examination acquired under a bulk interception warrant; the public interest test that the commissioner must consider in these cases; and provision, when there is an urgent need for an approval of such criteria, that it may be done by a senior official acting on behalf of the Secretary of State.
Delegation of powers when there is an urgent need for an approval is essential to meet operational requirements. I know this matter has already been discussed in some detail during the progress of the Investigatory Powers (Amendment) Bill in the other place, and I look forward to discussing this with the Minister in due course. But given these are important and really quite technical matters, it would be helpful to the Committee if the Minister gave an assurance that these arrangements are fit for purpose and, if not, if he can say what work is under way to ensure that they are.
Keeping our country safe and protecting our basic freedoms is not always an easy balance to strike. The Opposition are under no illusions about the challenges in striking this balance, but we will work constructively with the Government on them.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is very good to see you in the Chair, Mr. Hosie. I am grateful to the Minister for his explanation of the order before us today, and I join the shadow Minister in sending our praise and thanks both to the security services and to the journalists who also serve this country.
As you know better than anyone, Mr Hosie, the SNP has regularly raised concerns about the vast scope of some bulk interception powers and various others in our investigatory powers legislation, as well as the inadequacy of certain oversight arrangements and protections. For those reasons, we welcomed the European Court judgment in the Big Brother Watch case, which emphasises the importance of that institution and remaining part of the convention. We note that in this Parliament the Joint Committee on Human Rights has supported the draft order. For the reasons set out by that Committee, the SNP supports the remedial measure proposed today, which aims to make our arrangements compliant with the Big Brother Watch judgment.
I emphasise that the draft order does not fix all our concerns about the sweeping powers enjoyed by our services under the Investigatory Powers Act, but our ongoing concerns are a matter for another day. For the time being, we support the order.
Tom Tugendhat
I am grateful to the Labour and SNP spokesmen for their comments, especially my friend the hon. Member for Barnsley Central, who correctly set out the reason why oversight is so important. It is right to place on the record my extreme gratitude to journalists in this country who, correctly, see their role as one of the guardians of our unwritten constitution. It is essential that we maintain the integrity of our political process, and journalism—good journalism—is part of doing that.
The hon. Gentleman tempts me to take various other lines, and of course it would be wrong of me not to praise the Scottish Conservatives, who have made such a fantastic impact on our national life, and who I look forward to seeing returned in much greater number after the coming election.
Tom Tugendhat
I pay huge tribute in particular to Viscount and later Earl of Kilmuir, David Maxwell Fyfe, who was not only the first Home Secretary to have MI5 reporting to him rather than the Prime Minister, but one of the principal drafters of the European convention on human rights and a key individual in building the post-war order, in which British justice was used as the template for a new European convention.
Richard Graham (Gloucester) (Con)
Does this remedial order and its compliance with the ECHR worry or reassure allies with whom we share intelligence?
Tom Tugendhat
When we make it clear that the work we do, necessarily in secret, is supervised and checked against a legal basis, it hugely reassures our friends and partners. It assures them as well that we are not just a partner to be trusted, but a partner with which intelligence can be shared very freely, because of the clear legal oversight. This is a strong element in building the security and building up the trust that we need to keep our people safe. I commend the order to the Committee.
Question put and agreed to.