Draft Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) Order 2018
Draft Proceeds of crime Act 2002 (Cash Searches: Code of Practice) Order 2018
Draft Prceeds of Crime Act 2002 (Recovery of Listed Assets: Code of Practice) (England and Wales and Scotland) Regulations 2018
Draft Criminal Finances Act 2017 (Consequential Amendment) Regulations 2018
(6 years, 11 months ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
I call the Minister to move the first motion and speak to all four instruments. At the end of the debate, I will ask him to move the other motions formally.
The Minister for Security (Mr Ben Wallace)
I beg to move,
That the Committee has considered the draft Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) Order 2018.
The Chair
With this it will be convenient to consider the draft Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order 2018, the draft Proceeds of Crime Act 2002 (Recovery of Listed Assets: Code of Practice) (England and Wales and Scotland) Regulations 2018 and the draft Criminal Finances Act 2017 (Consequential Amendment) Regulations 2018.
Mr Wallace
It is a privilege to serve under your chairmanship, Ms Buck.
Criminals go to great lengths to hide the proceeds of their crimes and exploit any opportunities to frustrate the recovery of such proceeds by the authorities. We need to stay ahead of that problem. That is why the Criminal Finances Act 2017 was passed in April, with cross-party support from the Labour party and the Scottish National party, for which I was grateful. The Act strengthens and extends existing powers to trace and recover criminal assets. The powers most relevant to this debate are those relating to the forfeiture of certain items of property that are either the proceeds of crime or intended to be used to further criminal activity.
Codes of practice protect the public by ensuring the appropriate and proportionate use of new powers. In this case, that includes search and seizure powers, which are used by a wide range of law enforcement officers in connection with various investigations. Three of the draft statutory instruments before the Committee bring into force revised and new codes of practice providing guidance on powers of search, seizure and detention of property to support enforcement of confiscation orders; search powers for criminal cash; and search powers relating to the new power to seize certain listed assets, such as precious metals and stones. The final draft instrument makes a minor technical amendment to an existing provision of the Proceeds of Crime Act 2002 to take account of the creation of a new power to forfeit listed assets. POCA provides tough powers in the fight against all levels of crime and was introduced under a Labour Government.
The use of those powers can involve significant interference in the rights of persons in respect of their privacy and property. The purpose of the codes of practice is to provide guidance to officers who use those powers and an assurance to the public that they are being used correctly. The codes act as a safeguard to ensure effective, consistent and proportionate use of the powers. The POCA powers were significantly strengthened by the Criminal Finances Act 2017. The new, extended and strengthened powers will give officers important tools for the recovery of criminally obtained assets. They form part of the Government’s commitment to making the UK a hostile environment for those who seek to move, use and hide the proceeds of crime and corruption.
Two of the codes before the Committee are revisions of previous codes issued under POCA and closely follow the procedures established in those codes. They also follow a similar approach to the codes issued more widely to police officers under the Police and Criminal Evidence Act 1984. The third code is new, but follows the approach in the existing POCA and Police and Criminal Evidence Act codes. The new powers that give rise to those codes have been debated extensively by both Houses, resulting in the Criminal Finances Act receiving Royal Assent in April. We are therefore not debating the powers themselves, but considering the codes that give guidance about their use.
Importantly, some matters in POCA are devolved to the Northern Ireland Assembly. Members may recall that the Assembly was dissolved during the passage of the Criminal Finances Act, meaning that a legislative consent motion could not be obtained. A commitment was made on the Floor of the House not to commence any legislation relating to devolved matters without the appropriate consent being in place. In line with that commitment, there is nothing in these codes relating to the new powers that is a devolved matter in the competence of the Northern Ireland Assembly. I assure the Committee that we are working with the authorities in Northern Ireland to commence those powers as soon as possible.
A separate combined code of practice has been drafted in respect of searches by constables in Scotland in relation to the civil forfeiture of listed items of property and the civil forfeiture of cash. A public consultation is being undertaken. The code is expected to come into force in the spring, and I hope that it does.
The amendments to POCA that require these new and amended codes of practice are the new power to forfeit listed assets; the expanded powers relating to search and seizure to prevent the dissipation of property that may subsequently be used to satisfy a confiscation order; the extension of search powers to a range of law enforcement agencies, notably the Serious Fraud Office; and the change of the definition of cash for the purposes of cash seizure and forfeiture powers to include gaming vouchers, fixed-value casino tokens and betting slips. During the passage of the Criminal Finances Act, I distinctly remember the Scottish National party raising the issue of betting slips. The Government recognised that and have included related measures in the Act and therefore the codes.
POCA stipulates that the Secretary of State must prepare and publish a draft of any new or revised codes, consider any representations made and modify the draft as appropriate. A public consultation on all the codes before the Committee was carried out this summer and amendments were made to the drafts accordingly. The explanatory memorandum addresses the consultation in detail.
The first order brings into effect a new code of practice, providing guidance on the use of search powers for the recovery of listed assets, such as precious metals and watches, that are suspected to be the proceeds of crime or intended for use in crime. The second code of practice relates to search and seizure powers in England and Wales to prevent the dissipation of property that might be used to satisfy a confiscation order. That has been revised to take account of the extension of powers to the Serious Fraud Office and a change in the authorisation process for the powers for certain civilian financial investigators. Those amendments to the code are both purely consequential.
The final code relates to search powers for the seizure and detention of cash. These amendments are also purely consequential. The code required revision due to three amendments to the cash provisions. These are an amendment to the definition of cash, the extension of powers to SFO officers and an amended definition of senior officers who can provide prior approval for the search powers. The three instruments will bring the codes of practice into effect. We will therefore have safeguards in place on the use of the powers, and that will enable full commencement of the POCA amendments that I have described.
The final instrument makes a technical amendment to an existing provision in POCA. The approach in POCA is that when property has been recovered, it cannot become subject to further recovery action under the Act; that would be recovering the same property twice. Given the new forfeiture powers that have been introduced by the Criminal Finances Act, further powers need to be brought within that safeguard. The regulations provide that property forfeited by the High Court under the new listed items powers cannot subsequently become liable to future civil recovery action.
I ask the Committee to approve the orders, thereby giving effect to the codes of practice and making the small addition to the safeguard in POCA against double recovery.
Carolyn Harris (Swansea East) (Lab)
Thank you, Ms Buck, for chairing the Committee. The Opposition generally support such measures, but with some reservations. We of course welcome any new provision to prosecute, prevent and seize the assets of criminals. However, amid continued cuts to public services, I am interested to hear exactly how the measures will be fully and robustly enforced. There have been staff cuts in literally every agency carrying out this work, from the police to Border Force, to revenue officers.
I remind the Minister of Labour’s argument that agencies involved in exercising civil recovery powers should have enough resources to do their job properly. He may recall that we requested a distinct and clear annual report, detailing the resources that are allocated to agencies strictly for carrying out the recovery powers. The Conservatives objected to that during the early stages of the Proceeds of Crime Act, on the grounds that the asset recovery incentivisation scheme would allow frontline agencies to keep 100% of the illicit value that they recover. In theory, the agencies could retain the total value recovered, but as was made clear by the Public Accounts Committee at the time in its progress review of confiscation orders and by the Home Affairs Committee in its review of POCA, the agencies’ recovery rates have been poor. Although the measures appear to convey greater powers to the agencies, there is no guarantee that they will improve their recovery rates. Given the failure to achieve that in recent Bills, we had hoped that these orders might go further.
We also note with concern that the said powers will be conferred on immigration officers. Although that makes sense in theory, will the Minister explain whether that includes agents of the state such as G4S and Serco? I remind the Government of the complete lack of trust in those agencies, following recent revelations in immigration detention centres, such as Brook House and Yarl’s Wood. If we cannot trust those individuals to deal with human beings professionally, that clearly indicates that we may not be able to trust them with other matters. Those matters aside, which we would appreciate the Minister’s assurances on, we will support the orders.
Mr Wallace
I am grateful for the points made by the hon. Member for Swansea East. I can set her mind at rest: we are not in any way envisaging that G4S, Serco or anyone else will be empowered by these new powers. I have heard her points about resourcing the correct individuals to pursue the proceeds of crime. There are two parts to that. First, there were many valid points in reports published by the Public Accounts Committee and the Home Affairs Committee about 18 months ago. I have used those reports as a reference to try to push for better recoveries. Some of those points were about basic day-to-day processes that have not always been undertaken, such as police officers not routinely loading confiscation orders on to the police national computer. Those orders are a matter of public record, so it would not be obvious to a police officer who stopped someone driving around in Lancashire in a brand new Range Rover that they happened to have a confiscation order outstanding. We are on our way to improving that.
On reinvesting, we took a decision in line with our manifesto to return 100% of ARIS funds—the proceeds of crime that were taken—above the baseline of the assets recovered last year when the amount returned was 50%. At the moment, any money taken off organised crime by regional organised crime units, for example, goes back only into the asset recovery part of that organisation. Some police lobby for it to go across the broader spectrum, and others have said it must be incentivised and remain in the proceeds of crime part of the organisation. We are trying to unlock more money to address that issue.
Alongside resourcing is the issue about powers. POCA was a good Act, but it has to be kept up to date. Some of the decline in recovery is partly because some bad guys switched from cash to mobile stores of value—betting slips, jewels and all the other things—which is why we have to move to stay one step ahead. We have also started doing quite a lot. With the National Crime Agency and HMRC, we have invested in an international network to try to ensure we get assets when they are overseas—I have been abroad to visit some of that and recover some of the assets.
One of the challenges with recovering the proceeds of crime is that sometimes dirty money has already been washed, so it is not as straightforward as just grabbing it. That is why we included unexplained wealth orders in the Criminal Finances Act 2017, which effectively reverse the burden of proof. If someone rocks up as unemployed who owns a £1 million house—we all have some of those people in our communities—they have to prove how they got it. That is an important message.
I understand the issue about resource and ensuring that we give the police the powers and resources they need. We recognised that in the last spending round by protecting police spending, but I also recognise the increasing pressures on our police, so I would still like to see more. We hope that the Criminal Finances Act goes a long way towards giving them those extra powers and building on POCA. Part of the challenge has been that POCA is massively complicated and requires lots of specialists to interpret it because the criminals are massively complex in hiding their money. I wish there was an easy answer.
This is the right step. These codes of practice are as much about protecting our constituents to ensure that police and other people do not overstep how they use the powers—some of which are quite powerful—as they are about making it easier for a detective sergeant or whoever to go after the money in the first place. We will be pushing them; I push them quite a lot to get more. I ask them the questions and, where there is a resource issue, I try to address it; I hear what the hon. Member for Swansea East said.
Question put and agreed to.
DRAFT PROCEEDS OF CRIME ACT 2002 (CASH SEARCHES: CODE OF PRACTICE) ORDER 2018
Resolved,
That the Committee has considered the draft Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order 2018.—(Mr Ben Wallace.)
DRAFT PROCEEDS OF CRIME ACT 2002 (RECOVERY OF LISTED ASSETS: CODE OF PRACTICE) (ENGLAND AND WALES AND SCOTLAND) REGULATIONS 2018
Resolved,
That the Committee has considered the draft Proceeds of Crime Act 2002 (Recovery of Listed Assets: Code of Practice) (England and Wales and Scotland) Regulations 2018.—(Mr Ben Wallace.)
DRAFT CRIMINAL FINANCES ACT 2017 (CONSEQUENTIAL AMENDMENT) REGULATIONS 2018
Resolved,
That the Committee has considered the draft Criminal Finances Act 2017 (Consequential Amendment) Regulations 2018.—(Mr Ben Wallace.)
Draft Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) Order 2018
Draft Proceeds of crime Act 2002 (Cash Searches: Code of Practice) Order 2018
Draft Proceeds of Crime Act 2002 (Recovery of Listed Assets: Code of Practice) (England and Wales and Scotland) Regulations 2018
Draft Criminal Finances Act 2017 (Consequential Amendment) Regulations 2018
(6 years, 11 months ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
I call the Minister to move the first motion and speak to all four instruments. At the end of the debate, I will ask him to move the other motions formally.
The Minister for Security (Mr Ben Wallace)
I beg to move,
That the Committee has considered the draft Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) Order 2018.
The Chair
With this it will be convenient to consider the draft Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order 2018, the draft Proceeds of Crime Act 2002 (Recovery of Listed Assets: Code of Practice) (England and Wales and Scotland) Regulations 2018 and the draft Criminal Finances Act 2017 (Consequential Amendment) Regulations 2018.
Mr Wallace
It is a privilege to serve under your chairmanship, Ms Buck.
Criminals go to great lengths to hide the proceeds of their crimes and exploit any opportunities to frustrate the recovery of such proceeds by the authorities. We need to stay ahead of that problem. That is why the Criminal Finances Act 2017 was passed in April, with cross-party support from the Labour party and the Scottish National party, for which I was grateful. The Act strengthens and extends existing powers to trace and recover criminal assets. The powers most relevant to this debate are those relating to the forfeiture of certain items of property that are either the proceeds of crime or intended to be used to further criminal activity.
Codes of practice protect the public by ensuring the appropriate and proportionate use of new powers. In this case, that includes search and seizure powers, which are used by a wide range of law enforcement officers in connection with various investigations. Three of the draft statutory instruments before the Committee bring into force revised and new codes of practice providing guidance on powers of search, seizure and detention of property to support enforcement of confiscation orders; search powers for criminal cash; and search powers relating to the new power to seize certain listed assets, such as precious metals and stones. The final draft instrument makes a minor technical amendment to an existing provision of the Proceeds of Crime Act 2002 to take account of the creation of a new power to forfeit listed assets. POCA provides tough powers in the fight against all levels of crime and was introduced under a Labour Government.
The use of those powers can involve significant interference in the rights of persons in respect of their privacy and property. The purpose of the codes of practice is to provide guidance to officers who use those powers and an assurance to the public that they are being used correctly. The codes act as a safeguard to ensure effective, consistent and proportionate use of the powers. The POCA powers were significantly strengthened by the Criminal Finances Act 2017. The new, extended and strengthened powers will give officers important tools for the recovery of criminally obtained assets. They form part of the Government’s commitment to making the UK a hostile environment for those who seek to move, use and hide the proceeds of crime and corruption.
Two of the codes before the Committee are revisions of previous codes issued under POCA and closely follow the procedures established in those codes. They also follow a similar approach to the codes issued more widely to police officers under the Police and Criminal Evidence Act 1984. The third code is new, but follows the approach in the existing POCA and Police and Criminal Evidence Act codes. The new powers that give rise to those codes have been debated extensively by both Houses, resulting in the Criminal Finances Act receiving Royal Assent in April. We are therefore not debating the powers themselves, but considering the codes that give guidance about their use.
Importantly, some matters in POCA are devolved to the Northern Ireland Assembly. Members may recall that the Assembly was dissolved during the passage of the Criminal Finances Act, meaning that a legislative consent motion could not be obtained. A commitment was made on the Floor of the House not to commence any legislation relating to devolved matters without the appropriate consent being in place. In line with that commitment, there is nothing in these codes relating to the new powers that is a devolved matter in the competence of the Northern Ireland Assembly. I assure the Committee that we are working with the authorities in Northern Ireland to commence those powers as soon as possible.
A separate combined code of practice has been drafted in respect of searches by constables in Scotland in relation to the civil forfeiture of listed items of property and the civil forfeiture of cash. A public consultation is being undertaken. The code is expected to come into force in the spring, and I hope that it does.
The amendments to POCA that require these new and amended codes of practice are the new power to forfeit listed assets; the expanded powers relating to search and seizure to prevent the dissipation of property that may subsequently be used to satisfy a confiscation order; the extension of search powers to a range of law enforcement agencies, notably the Serious Fraud Office; and the change of the definition of cash for the purposes of cash seizure and forfeiture powers to include gaming vouchers, fixed-value casino tokens and betting slips. During the passage of the Criminal Finances Act, I distinctly remember the Scottish National party raising the issue of betting slips. The Government recognised that and have included related measures in the Act and therefore the codes.
POCA stipulates that the Secretary of State must prepare and publish a draft of any new or revised codes, consider any representations made and modify the draft as appropriate. A public consultation on all the codes before the Committee was carried out this summer and amendments were made to the drafts accordingly. The explanatory memorandum addresses the consultation in detail.
The first order brings into effect a new code of practice, providing guidance on the use of search powers for the recovery of listed assets, such as precious metals and watches, that are suspected to be the proceeds of crime or intended for use in crime. The second code of practice relates to search and seizure powers in England and Wales to prevent the dissipation of property that might be used to satisfy a confiscation order. That has been revised to take account of the extension of powers to the Serious Fraud Office and a change in the authorisation process for the powers for certain civilian financial investigators. Those amendments to the code are both purely consequential.
The final code relates to search powers for the seizure and detention of cash. These amendments are also purely consequential. The code required revision due to three amendments to the cash provisions. These are an amendment to the definition of cash, the extension of powers to SFO officers and an amended definition of senior officers who can provide prior approval for the search powers. The three instruments will bring the codes of practice into effect. We will therefore have safeguards in place on the use of the powers, and that will enable full commencement of the POCA amendments that I have described.
The final instrument makes a technical amendment to an existing provision in POCA. The approach in POCA is that when property has been recovered, it cannot become subject to further recovery action under the Act; that would be recovering the same property twice. Given the new forfeiture powers that have been introduced by the Criminal Finances Act, further powers need to be brought within that safeguard. The regulations provide that property forfeited by the High Court under the new listed items powers cannot subsequently become liable to future civil recovery action.
I ask the Committee to approve the orders, thereby giving effect to the codes of practice and making the small addition to the safeguard in POCA against double recovery.
Carolyn Harris (Swansea East) (Lab)
Thank you, Ms Buck, for chairing the Committee. The Opposition generally support such measures, but with some reservations. We of course welcome any new provision to prosecute, prevent and seize the assets of criminals. However, amid continued cuts to public services, I am interested to hear exactly how the measures will be fully and robustly enforced. There have been staff cuts in literally every agency carrying out this work, from the police to Border Force, to revenue officers.
I remind the Minister of Labour’s argument that agencies involved in exercising civil recovery powers should have enough resources to do their job properly. He may recall that we requested a distinct and clear annual report, detailing the resources that are allocated to agencies strictly for carrying out the recovery powers. The Conservatives objected to that during the early stages of the Proceeds of Crime Act, on the grounds that the asset recovery incentivisation scheme would allow frontline agencies to keep 100% of the illicit value that they recover. In theory, the agencies could retain the total value recovered, but as was made clear by the Public Accounts Committee at the time in its progress review of confiscation orders and by the Home Affairs Committee in its review of POCA, the agencies’ recovery rates have been poor. Although the measures appear to convey greater powers to the agencies, there is no guarantee that they will improve their recovery rates. Given the failure to achieve that in recent Bills, we had hoped that these orders might go further.
We also note with concern that the said powers will be conferred on immigration officers. Although that makes sense in theory, will the Minister explain whether that includes agents of the state such as G4S and Serco? I remind the Government of the complete lack of trust in those agencies, following recent revelations in immigration detention centres, such as Brook House and Yarl’s Wood. If we cannot trust those individuals to deal with human beings professionally, that clearly indicates that we may not be able to trust them with other matters. Those matters aside, which we would appreciate the Minister’s assurances on, we will support the orders.
Mr Wallace
I am grateful for the points made by the hon. Member for Swansea East. I can set her mind at rest: we are not in any way envisaging that G4S, Serco or anyone else will be empowered by these new powers. I have heard her points about resourcing the correct individuals to pursue the proceeds of crime. There are two parts to that. First, there were many valid points in reports published by the Public Accounts Committee and the Home Affairs Committee about 18 months ago. I have used those reports as a reference to try to push for better recoveries. Some of those points were about basic day-to-day processes that have not always been undertaken, such as police officers not routinely loading confiscation orders on to the police national computer. Those orders are a matter of public record, so it would not be obvious to a police officer who stopped someone driving around in Lancashire in a brand new Range Rover that they happened to have a confiscation order outstanding. We are on our way to improving that.
On reinvesting, we took a decision in line with our manifesto to return 100% of ARIS funds—the proceeds of crime that were taken—above the baseline of the assets recovered last year when the amount returned was 50%. At the moment, any money taken off organised crime by regional organised crime units, for example, goes back only into the asset recovery part of that organisation. Some police lobby for it to go across the broader spectrum, and others have said it must be incentivised and remain in the proceeds of crime part of the organisation. We are trying to unlock more money to address that issue.
Alongside resourcing is the issue about powers. POCA was a good Act, but it has to be kept up to date. Some of the decline in recovery is partly because some bad guys switched from cash to mobile stores of value—betting slips, jewels and all the other things—which is why we have to move to stay one step ahead. We have also started doing quite a lot. With the National Crime Agency and HMRC, we have invested in an international network to try to ensure we get assets when they are overseas—I have been abroad to visit some of that and recover some of the assets.
One of the challenges with recovering the proceeds of crime is that sometimes dirty money has already been washed, so it is not as straightforward as just grabbing it. That is why we included unexplained wealth orders in the Criminal Finances Act 2017, which effectively reverse the burden of proof. If someone rocks up as unemployed who owns a £1 million house—we all have some of those people in our communities—they have to prove how they got it. That is an important message.
I understand the issue about resource and ensuring that we give the police the powers and resources they need. We recognised that in the last spending round by protecting police spending, but I also recognise the increasing pressures on our police, so I would still like to see more. We hope that the Criminal Finances Act goes a long way towards giving them those extra powers and building on POCA. Part of the challenge has been that POCA is massively complicated and requires lots of specialists to interpret it because the criminals are massively complex in hiding their money. I wish there was an easy answer.
This is the right step. These codes of practice are as much about protecting our constituents to ensure that police and other people do not overstep how they use the powers—some of which are quite powerful—as they are about making it easier for a detective sergeant or whoever to go after the money in the first place. We will be pushing them; I push them quite a lot to get more. I ask them the questions and, where there is a resource issue, I try to address it; I hear what the hon. Member for Swansea East said.
Question put and agreed to.
DRAFT PROCEEDS OF CRIME ACT 2002 (CASH SEARCHES: CODE OF PRACTICE) ORDER 2018
Resolved,
That the Committee has considered the draft Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order 2018.—(Mr Ben Wallace.)
DRAFT PROCEEDS OF CRIME ACT 2002 (RECOVERY OF LISTED ASSETS: CODE OF PRACTICE) (ENGLAND AND WALES AND SCOTLAND) REGULATIONS 2018
Resolved,
That the Committee has considered the draft Proceeds of Crime Act 2002 (Recovery of Listed Assets: Code of Practice) (England and Wales and Scotland) Regulations 2018.—(Mr Ben Wallace.)
DRAFT CRIMINAL FINANCES ACT 2017 (CONSEQUENTIAL AMENDMENT) REGULATIONS 2018
Resolved,
That the Committee has considered the draft Criminal Finances Act 2017 (Consequential Amendment) Regulations 2018.—(Mr Ben Wallace.)
Draft Scotland Act 1998 (Insolvency Functions) Order 2017
(6 years, 11 months ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Deputy Leader of the House of Commons (Michael Ellis)
I beg to move,
That the Committee has considered the draft Scotland Act 1998 (Insolvency Functions) Order 2017.
The draft order, which was laid before the House on 20 September 2017, is part of a package of measures aimed at updating and modernising corporate insolvency in Scotland, particularly the insolvency rules that apply to the winding up of companies. It follows on from the recent modernisation of company insolvency rules in England and Wales that culminated in the Insolvency (England and Wales) Rules 2016.
To briefly give some background, I should explain that the law on corporate insolvency in Scotland and the division of legislative responsibilities between the Scottish and UK Parliaments and Governments is complex, particularly in relation to winding up. For business associations, for example, the general legal effect of winding up is reserved, but the process of winding up is excepted from the reservation. In practice, it is not always clear whether a winding-up matter relates to a reserved aspect or a devolved aspect.
In an effort to facilitate the efficient, effective and user-friendly modernisation of Scotland’s insolvency rules, particularly those that relate to companies, both Governments have therefore agreed that it would be of benefit to lawmakers and practitioners alike if the complicated exercise of assessing which rules relate to a reserved matter, and which do not, could be avoided. Accordingly, both Governments have agreed to the preparation of a combined order under sections 63 and 108 of the Scotland Act 1998. Section 63 enables an order to
“provide for any functions…exercisable by a Minister of the Crown in or as regards Scotland, to be exercisable…by the Scottish Ministers concurrently with the Minister of the Crown”.
Conversely, section 108 enables an order to
“provide for any functions exercisable by a member of the Scottish Government to be exercisable…by a Minister of the Crown concurrently with the member of the Scottish Government.”
The draft order will allow for the mutual conferring of functions on Scottish Ministers and a Minister of the Crown so that both have the power to introduce, as appropriate, rules or regulations on winding up for companies, incorporated friendly societies and limited liability partnerships in Scotland, irrespective of whether those rules or regulations relate to reserved matters under schedule 5 to the 1998 Act.
Under the draft order, a Minister of the Crown and the Scottish Government Ministers must reach agreement before either can make rules or regulations on the winding up of companies, incorporated friendly societies and limited liability partnerships under the functions that it confers. That approach will enable each Administration to make provision on winding-up matters without any doubt being cast on the scope of the relevant enabling powers. Users of winding-up legislation will also benefit, because the draft order furthers our aim that the rules on the winding up of companies in Scotland be contained in a single instrument rather than split between two. The immediate intention is that the Scottish Government, with the consent of the UK Government, will introduce an instrument to make provision for both the reserved and devolved aspects of winding up, as part of the current project to replace the Insolvency (Scotland) Rules 1986 with updated and modernised rules.
I hope the Committee agrees that this is a sensible approach that will enable the modernisation of corporate insolvency in Scotland to move forward in an effective manner. I believe it provides an excellent example of our two Governments working together to make the Scottish devolution settlement work for people and industry in Scotland.
Martin Whitfield (East Lothian) (Lab)
I am grateful to the Minister for his excellent explanation of the draft order. Has a procedure been envisaged to deal with disagreement between Ministers in Westminster and in Holyrood?
Michael Ellis
All these matters are carefully considered. It is anticipated that whatever happens, the process enabled by the draft order will be preferable to the current situation, which is clearly rather confused.
I commend the draft order to the Committee.
Lesley Laird (Kirkcaldy and Cowdenbeath) (Lab)
It is a pleasure to serve under your chairmanship, Mr Chope. As the Minister set out, the order is part of a package of measures aimed at updating and modernising corporate insolvency in Scotland, particularly insolvency rules for companies. The law on winding up in Scotland is complex because it is a mixed area of competence. Section C2 of schedule 5 to the 1998 Act provides:
“In relation to business associations…the general legal effect of winding up”
is reserved, but
“the process of winding up, including the person having responsibility for the conduct of a winding up or any part of it, and his conduct of it or of that part”
is excepted.
It is not always clear whether a winding-up matter relates to the general legal effect of winding up, or whether it falls within the exception provided for the process of winding up. Accordingly, rather than attempt the complicated exercise of trying to assess, as part of the modernisation process, which rules relate to a reserved matter and which do not, the draft order provides for the mutual conferral of functions on a Minister of the Crown and Scottish Ministers under sections 63 and 108 of the 1998 Act, so that each can make winding-up rules for company insolvency in Scotland irrespective of whether they relate to reserved matters. This approach makes it clear that each Administration has the power to make, in the exercise of those powers, all subordinate legislative provision on winding-up matters without any doubt being cast on the scope of the relevant enabling powers. The Labour party therefore supports the draft order.
Question put and agreed to.
Draft Pharmacy (Preparation and Dispensing Errors - Registered Pharmacies) Order 2018
(6 years, 11 months ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Health (Steve Brine)
I beg to move,
That the Committee has considered the draft Pharmacy (Preparation and Dispensing Errors – Registered Pharmacies) Order 2018.
I do not believe we have danced before, Mr Brady, so it is very much a pleasure to serve under your chairmanship. The order was laid before Parliament on 13 November and extends to the whole of the United Kingdom. Its purpose is to create, for registered pharmacy professionals working in a registered pharmacy, new defences to the criminal offences set out in sections 63 and 64 of the Medicines Act 1968. The order makes those defences available in defined circumstances to pharmacy professionals making genuine dispensing errors. This marks an important step forward in addressing barriers to providing a safer, higher-quality service. Let me make it clear that the order does not cover pharmacy professionals working in non-registered hospital pharmacies. That will be addressed in a separate order that we intend to consult on early next year.
The Mid Staffordshire inquiry highlighted the importance of putting patient safety at the heart of everything we do and achieving a careful balance between assuring accountability to the patient and developing a culture of openness and transparency, so that we learn from errors and improve practice and safety. Indeed, Professor Don Berwick stated:
“The most important single change in the NHS in response to this report would be for it to become, more than ever before, a system devoted to continual learning and improvement of patient care.”
The order very much follows that philosophy.
Pharmacy professionals are highly regulated individuals —in relation to dispensing errors, more so than any other healthcare professionals. Indeed, they are subject to triple jeopardy in the event that they commit a dispensing error. They face prosecution for strict liability offences under sections 63 and 64 of the Medicines Act 1968, prosecution for offences under general criminal law and sanctions under professional regulation requirements. That can lead, we believe, to defensive practices. It has been demonstrated in other industries where safety is critical that working under such threat of sanction is a hindrance to the reporting of errors and accidents and therefore to wider learning.
Evidence suggests that patient safety and service quality can be improved through increasing the rate of reporting and learning from dispensing errors. That will have benefits to patients locally and throughout the NHS. By removing the fear factor of a strict liability offence for inadvertent dispensing errors, our aim is to create a much more open and transparent culture, which in turn should help to improve learning and prevent mistakes from happening in the first place. We will be working closely with pharmacy regulatory and professional bodies across the UK to make that a reality.
Let me be clear that registered pharmacies already have a range of systems and procedures in place to prevent dispensing errors from occurring. More than 1 billion prescription items are dispensed every year, and it is a testament to the professionalism of pharmacy staff that errors occur in only a very small proportion of cases. Dispensing errors can, however, occur within a registered pharmacy for a variety of reasons. For example, there are many thousands of medicines, and some have very similar names and brandings. Medications may also have complicated dosing schedules.
The order is not about accepting the inevitability of error in the system. It seeks to ensure that we collect information on errors that do occur and think hard about how they can be prevented in the future, including through spotting trends at a national level. That may involve improving systems and procedures and designing out errors as far as is practicable, but without knowledge of what has gone wrong that is just not possible.
We are not removing all safeguards for patients. There will remain offences under general criminal law—for example, in cases of gross negligence and manslaughter—and sanctions under professional regulation, as I have said. In such circumstances, the professional regulators, the General Pharmaceutical Council and the Pharmaceutical Society of Northern Ireland, can still subject individuals to regulatory fitness-to-practise procedures. Sanctions would depend on the circumstances of the error but could ultimately include the individual being removed from the professional register and no longer being permitted to practise.
The order is well supported: it was overwhelmingly endorsed during the public consultation, including by patients, the public and groups such as Action against Medical Accidents, who will now want to see pharmacy professionals play their part and demonstrate increased learning from, and reporting of, errors. The order has also been some five years in gestation, so I am pleased to attempt to land it today through the Committee. I am fully committed to ensuring that that happens, and we have already taken action in that regard.
In each of the four home nations, a number of initiatives to support reporting and learning have been introduced, such as medication safety officers or champions, and national reporting systems. Regulatory and professional bodies in pharmacy have also put in place standards and guidance to support the desired culture change, with community pharmacy trade bodies encouraging their members to follow those standards and encouraging pharmacy teams to report, learn, act, share and review.
Action is also being taken in each of the home nations on medication error more generally throughout their healthcare systems. It is a sobering fact that 5% to 8% of all hospital admissions are medication-related. In September, the Secretary of State for Health and the chief pharmaceutical officer for England launched an initiative that focuses on reducing prescribing and medication errors throughout the national health service in England. The programme will look at a number of areas, including how we use technology, understanding how best to engage patients in their medicines and advancing the transfer of information between care settings.
As I mentioned at the start, while the order provides a defence for pharmacy professionals working in registered pharmacies, it is important to recognise that pharmacy services can occur outside of those settings, and therefore that not all pharmacy professionals will be able to avail themselves of the defences set out in the order. That is deliberate. Work is progressing to develop similar measures for pharmacy professionals working in hospitals and other care settings. That will ensure that, regardless of their position in the healthcare system, pharmacy professionals will be encouraged to report and learn from errors.
In summary, the order supports improved patient safety by encouraging a culture of candid and full contributions from those involved when things go wrong. Within that culture, pharmacy professionals—I have to say, they are some of the most motivated and professional people I have met in our national health service during my time as an MP and a Minister—can increase their learning from dispensing errors and identify mitigating actions to make reoccurrence much less likely. I commend the order to the Committee.
Julie Cooper (Burnley) (Lab)
It is a pleasure to serve under your chairmanship, Mr Brady, and to respond on behalf of the Opposition to the important order in front of us.
As the wife of a retired community pharmacist—I have no interest that I am obliged to declare—I have to say that 24 years’ experience of owning and running a community pharmacy has given me an in-depth understanding of the sector and the challenges that community pharmacists and their staff face every day. As the Minister mentioned, more than 1 billion prescription items are dispensed every year—the vast majority from community pharmacies—and the trend is that prescription numbers will increase each year, reflecting the general increase in demand in the national health service and the ageing population. An average community pharmacy dispenses between 300 and 500 prescriptions a day.
It is important to consider that that volume of work is only one part of the role performed by community pharmacists. They are an integral part of the primary care team and make a huge contribution, including giving advice on a range of health and wellbeing issues; providing support for public health initiatives, such as those employed to reduce smoking, drug abuse and obesity; medication use reviews; diagnostic testing; diabetic and asthmatic care; and minor ailment schemes. The list is endless.
In that context, genuine errors will happen occasionally. As the Minister mentioned, it is a credit to the profession that those are very few and far between, but it remains a fact that pharmacy professionals are one of the few health professional groups to face criminal conviction and potential imprisonment, for an inadvertent dispensing error—that is, where there is a discrepancy between the prescription and the medication supplied to the patient. The prosecution of pharmacists and dispensing technicians is very rare, but it does occur, so pharmacy professionals always have that fear hanging over them.
The principal beneficiaries of the order will be professional community pharmacists and registered dispensing technicians practising in registered premises—and, of course, patients. The draft order, which will amend the Medicines Act 1968, will be welcomed by community pharmacists, technicians and their professional bodies. I am aware that the National Pharmacy Association, the Pharmaceutical Services Negotiating Committee, the Royal Pharmaceutical Society and patient groups support the proposed changes; I am sure they agree that they are long overdue.
Most products are prepared outside registered premises and arrive ready to be dispensed. Errors in such cases may take the form of selecting the wrong product or providing incorrect dosage instructions. However, there are still many instances in which pharmacy staff members are required to prepare medications on site, in which case errors may take the form of miscalculation of required quantities, addition or subtraction of necessary ingredients or incorrect instructions for use. The order will introduce a new defence against criminal liability that will apply to both preparation and dispensary errors and will be open to pharmacy professionals who can prove that the error occurred when they were acting in the course of their profession.
Such a defence really is overdue. In 2009, the chairman of the Pharmacists’ Defence Association warned:
“Inappropriate use of the criminal sanction will lead to defensive practice…less innovation”.
During the passage of the Health and Social Care Bill in 2011, Earl Howe said that the legislation needed to be reviewed so that criminal liability did not arise as a result of genuine dispensing errors.
Ensuring the right to legal defence against prosecution in cases relating to an inadvertent error will undoubtedly remove some of the fear burden and lead to a greater willingness to admit errors. It will also assist in promoting a culture of transparency that will help to inform future learning and improve protocols for the dispensing and preparation of medicines. The better practice learned will result in fewer errors and improved patient safety and is therefore eminently desirable.
The order will offer protection to pharmacists and dispensing technicians, but its main purpose is quite rightly to improve patient safety. Proposed new section 67B(5) will require the accused to prove in their defence that on discovery of the error, every step was taken to report it at the earliest opportunity to the person in receipt of the medication. That provision will give pharmacy professionals the chance to minimise the effect of errors and will positively incentivise them to admit them, as the act of so doing will aid their defence. This new duty of candour has the potential to lead to a major cultural change.
Pharmacy professionals who show deliberate disregard for patient safety will not benefit from any of the defences in the order. Where they are found to be wilfully negligent or intent on causing deliberate harm, they will continue to face criminal prosecution. The order will protect only those practising in registered premises who are already subject to professional regulation. For the sake of the protection of patients, it will not provide a defence for other groups or individuals external to registered premises involved in the medicine supply chain.
The Opposition welcome the order and believe firmly that it is a step in the right direction, but it does not go far enough. Even after it is implemented, pharmacists will still not be on a level playing field with other healthcare professionals; they may benefit from access to improved defences, but as the Pharmacists’ Defence Association maintains, they will still face the prospect of a police investigation and a lengthy trial. They will have to hold on to the hope that they can successfully use the defences, but they may still face prosecution under other provisions of the 1968 Act. I hope that the Minister will consider further legislation to ensure that inadvertent errors are totally decriminalised. I welcome his comment that the situation for pharmacy professionals not covered by the order will be consulted on early next year; I ask that it be looked at as early as possible, because pharmacists in hospitals need these defences.
There is an omission in the order. We know that learning from reported errors is anticipated, but there is no formal requirement in the order to deliver on that. It is reliant upon good will. I am sure that many pharmacists and pharmacy dispensary technicians will want to take it upon themselves to improve their existing protocols so that errors cannot reoccur, but there is no formal requirement in the order for them to so do.
As we all want to prioritise patient safety and wellbeing, I hope the Minister will undertake further work to positively promote patient safety within the pharmacy setting. One really useful suggestion I would like to make is to allow pharmacies full read and write access to patient records. All health professionals involved in the care of a patient surely need access to the fullest information, without the danger of knowledge gaps or incorrect information regarding past medications. That would aid continuity of care and contribute to safer patient outcomes.
There is so much more to do, but we welcome the order as a starting point and look forward to the Minister bringing forward further improvements.
Dr Philippa Whitford (Central Ayrshire) (SNP)
I, too, and the Scottish Government welcome the order, as does our Scottish chief pharmaceutical officer. This is an anomaly that is being corrected, and the key thing is that it leads to more reporting. We understand that there were almost 21,000 reported errors in 2016, but it has been suggested that a considerably higher number were not reported. I echo the argument that risk to patients is increased if pharmacists are not flagging up simple things such as poor labelling, things that are difficult to read or mistakes that someone else has made. That is where everyone wants to get to.
I am keen to support the shadow Minister’s point that the obligation to report should be formalised, rather than pharmacists just having to contact the patient. That is how they will be able to utilise the defence, as they must show that they have taken every possible action to contact the patient and correct the mistake. That changes a defensive reason to hide errors into a reason to report errors, but it really needs to happen through a reporting system. I am interested in what the national reporting system will be and whether it will be across the UK, so that lessons can be shared as widely as possible.
The order will amend sections 63 and 64 of the Medicines Act, which contain a power that has hung over pharmacists, even though it has rarely been used. The Secretary of State for Health talks a lot in the Chamber about getting away from a blame culture and moving to a learning culture. I do not think there is any argument about that, but I want to know how mistakes will be reported.
I also echo the point about information sharing. In Scotland, we have had community pharmacies providing minor ailments treatments and other treatments, including a chronic medicine service, for about 10 years. We are moving to a point where patients are registering with their community pharmacy, in the same way they do with their GP and dentist, so that records are shared. We also use e-prescribing widely in general practice and hospitals. That technology helps to reduce errors right from the prescriber, which is what I used to be, to the patient. The system simply flags up the danger of prescribing penicillin to someone who is allergic, using the wrong dose or bad interactions. Using technology in that way, to prevent system errors right through from the prescriber to the patient, needs to proceed as quickly as possible. A lot of that comes back to data sharing and getting the confidence of the public back.
I agree with the shadow Minister’s call for the Minister look at other areas of pharmacy. If we start to have a single system through e-prescribing, that will become easier. Although it is suggested that that will be brought forward early next year, the legislative burden in this place is a tad heavy at the moment, and I certainly would not like to see it delayed for another five years. In essence, we welcome the order but want to know exactly what the reporting system will be and when the move to things such as e-prescribing will be made.
Paul Flynn (Newport West) (Lab)
This is a fascinating piece of legislation in that by far the greatest pressure on us in most areas of law is to make punishments more severe, but here we have an order that calls for an intelligent approach of drawing back from what appear to be excessively severe punishments for errors, mistakes, crimes or whatever they may be, in the knowledge that, human nature being what it is, there will be an atmosphere of more openness. That seems an entirely beneficial and persuasive argument and a good reason for putting the order forward.
We have clearly had a legacy of excessive and unreasonable punishments hanging over pharmacies, but that is not to say that all is well in the prescription of drugs in this country. In 2003, a COX-2 inhibitor drug called Vioxx was identified as a problem in America because the Food and Drug Administration there published a report saying it believed that the drug, which was not a life-saving one at all, had caused 120,000 heart attacks and strokes, many of which had led to death. I wrote to the regulatory body here asking why we did not spot that and how many prescriptions had been issued in 2003. I was told that there were 4,500 prescriptions, but there had been only half a dozen reports of bad reactions. We have errors and weaknesses in our system for spotting issues of that kind, and I believe that if we are doing something wise, generous and sensible as far as pharmacists are concerned, we might look to them to play a fuller part in future as the frontline in identifying bad reactions to drugs such as the COX-2 inhibitors. They can also help us to avoid the great scourge in America at the moment, which is now coming here: the misuse and overuse of opioid drugs. That has become a greater killer in America than traffic accidents or gun crime, and we are seeing an increase in deaths from opioid drugs and addiction to them here.
I believe we would all say that we welcome the order, but there is a great deal more to be done to protect the public from the dangers of prescribed drugs, and pharmacists could play a major role in that.
Steve Brine
I thank my shadow, the hon. Member for Burnley, and the hon. Members for Central Ayrshire and for Newport West for their contributions and their support for this measure.
I am well aware that the hon. Member for Burnley has in-depth understanding and knowledge of this issue from her previous life supporting her partner, a community pharmacist. She is absolutely right to highlight the wide portfolio that community pharmacists hold. I sometimes think it is even wider than mine, and I have said in the House, and will say again now, that community pharmacists are absolutely central to me and to the primary care objectives that I hold in this job for primary care and for the public health and prevention agenda. Primary care and public health are pulled together under my portfolio for a reason, and community pharmacists sit together as a hub in the middle of those two bits of my work.
The hon. Lady is absolutely right to say that the order will be welcomed—I think alongside the hashtag #abouttime. For many people in the community pharmacy sector, the changes are long overdue. I spoke to the Royal Pharmaceutical Society’s conference in the summer—I suspect she was there—and I said that this was long overdue and that I would sort it. I have tried to remain true to my word, and I have.
I think the defences in the order strike the right balance, which the hon. Lady outlined coherently, while not leaving the door wide open. We still have to make sure that patient safety is protected—the current Secretary of State above all would say that—but I do believe that it strikes the right balance. I note her request for early work in respect of hospital pharmacists, and I am very amenable to that. I do not want that to drag on for many years; I want it sorted quickly, and officials know that.
On read and write access to patient records, many pharmacists already have read access and some already have write access. I am interested in making the change, and I am exploring more with officials how to make it happen; it is of some frustration to me that it seems to be an IT issue as much as anything else. If pharmacists are to be integrated within our primary care system as much as I want them to be, I suggest that that is very important.
Julie Cooper
This all centres on acknowledging that pharmacists are the experts when it comes to medication. I think that most GPs who work alongside pharmacists day in, day out will hold their hands up and say that. GPs used to be regularly on the phones to us saying, “Can I just ask you about this? I am thinking of prescribing this, but I am not sure. Is this best, or would it be better with something else?” That is good teamwork between people who are specialists in their areas.
In the light of that, it is quite ridiculous that pharmacies cannot record their advice and intervention on a patient record for other health professionals to see. It would be entirely in the patient interest, and in the interests of making sure that patients do not fall through the gaps between the different health professionals.
I will make one further point about recognising that expertise, if you will allow me to, Mr Brady. Pharmacists could be used to do more, as I have said many times in the House. When he talked about protections, my hon. Friend the Member for Newport West reminded me of the work that is happening on antibiotics and a recent Westminster Hall debate on their overuse and the development of antimicrobial resistance. Pharmacists could lead on that in the interests of wider patient wellbeing and safety.
Steve Brine
The hon. Lady is absolutely right. Pharmacists have been absolutely brilliant, focused and motivated supporters of the “Keep Antibiotics Working” campaign. I responded to that Westminster Hall debate on antibiotics, as she knows.
On the hon. Lady’s wider point, I believe, and I believe the evidence backs me up, that in the best health economies, the three planks—secondary care, primary care and pre-primary care, which is where we could see a community pharmacy as being—work hand in hand. The sustainability and transformation partnerships are supposed to be a one-NHS solution for different areas and different health economies to help the population achieve good health when they become unwell, but also to practise good preventive health. I absolutely agree with her that pharmacists know their patients and customers, and that they spot things because they see those patients much more regularly than GPs do. That is why they are absolutely central.
On the point about the obligation to report, which was mentioned by the hon. Members for Central Ayrshire and for Burnley, I said in my opening speech that the Government are already working with the regulators and professional bodies to ensure that pharmacy professionals are supported in the implementation of the order. An absolutely critical part of that is making sure that they report errors, because if they do not, this will all be somewhat wasted. There are a huge number of examples that I could give; maybe I can write to the hon. Member for Burnley with the details. The national reporting and learning systems were established in England to collect data and report on safety incidents. The health service safety investigations Bill, which is in draft and undergoing pre-legislative scrutiny at the moment, also adds power to this argument.
I think that, with this order, we have something of a rare gem in Committee Room 9: it is something that we all agree is needed. We are delivering it as a Government, as I promised we would. It will add further impetus to the work already under way to reduce medical errors across the health service and will provide much-needed assurance to pharmacy professionals that they can do their job with confidence. I know they have that confidence, but there has been this little niggling thing undermining them. I hope the order addresses that.
As the Whip next to me coughs—I am sure that was purely accidental, as opposed to a hint—I will finish by saying that, should both Houses approve the order, commencement orders will be drafted to enact the changes in England, Scotland, Wales and Northern Ireland. I thank hon. Members for their attentiveness, their interest and their contributions, and I commend the draft order to the Committee.
Question put and agreed to.