Civil Liability Bill [ Lords ] (First sitting)
Tuesday 11th September 2018
(6 years, 2 months ago)
Public Bill CommitteesRead Full debate Civil Liability Act 2018 View all Civil Liability Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 September 2018 - (11 Sep 2018)
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Chair
If they wish, hon. Members may remove their jackets. It is warm in here and we are trying to open a window. Please ensure that electronic devices are turned off or switched to silent. Tea and coffee are not allowed during sittings. We will first consider the programme motion on the amendment paper, which was agreed by the Programming Sub-Committee yesterday. If there are any matters of interest to declare, we will do that afterwards. We will then consider a motion to enable the reporting of written evidence for publication. In view of the limited time available, I hope we can take those motions without too much debate.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 11 September) meet—
(a) at 2.00 pm on Tuesday 11 September;
(b) at 11.30 am and 2.00 pm on Thursday 13 September;
(c) at 4.30 pm and 7.00 pm on Tuesday 9 October;
(2) the proceedings shall be taken in the following order: Clauses 1 to 10; new Clauses; new Schedules; Clauses 11 to 14; remaining proceedings on the Bill;
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 10.00 pm on Tuesday 9 October.—(Rory Stewart.)
Jo Stevens (Cardiff Central) (Lab)
On a point of order, Mr Stringer. It is a pleasure to serve under your chairmanship. I refer the Committee to my entry in the Register of Members’ Financial Interests. My partner is a solicitor and a chief executive of a personal injury law firm, which is relevant to the matters under consideration.
Robert Courts (Witney) (Con)
Further to that point of order, Mr Stringer. I would like to make a similar declaration, because I used to practise as a personal injury barrister.
Gloria De Piero (Ashfield) (Lab)
Further to that point of order, Mr Stringer. I declare the advice that I have received from Thompsons Solicitors, which will be entered in the register.
Craig Tracey (North Warwickshire) (Con)
Further to that point of order, Mr Stringer. I declare an interest as chair of the all-party parliamentary group on insurance and financial services, and as a former insurance broker.
David Hanson (Delyn) (Lab)
Just to be on the safe side, I am sponsored by the union USDAW, which has made representations to the Committee, and which I may speak on in due course.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Rory Stewart.)
The Chair
Copies of the written evidence that the Committee receives will be made available in the Committee Room. The selection list for today’s sitting is also available in the room.
Clause 1
“Whiplash injury” etc
Gloria De Piero
I beg to move amendment 8, in page 1, line 4, leave out clause 1 and insert—
“Definition of whiplash injury
(1) In this Part ‘whiplash injury’ means an injury, or set of injuries, of soft tissue in the neck, back or shoulder that is of a description specified by the Chief Medical Officer of the Department of Health.
(2) For the purposes of this Part a person suffers a whiplash injury because of driver negligence if—
(a) when the person suffers the injury, the person—
(i) is using a motor vehicle other than a motor cycle on a road or other public place in England or Wales, or
(ii) is being carried in or on a motor vehicle other than a motor cycle while another uses the vehicle on a road or other public place in England or Wales,
(b) the injury is caused—
(i) by the negligence of one or more other persons, or
(ii) partly by the negligence of one or more other persons and partly by the negligence of the person who suffers the injury, and
(c) where the negligence of the other person or persons consists in an act or acts done by the person or persons while using a motor vehicle on a road or other public place in England or Wales.
(3) The fact that the act or acts constituting the negligence of the other person or persons is or are also sufficient to establish another cause of action does not prevent subsection (2)(b) being satisfied.
(4) For the purposes of this section references to a person being carried in or on a vehicle include references to a person entering or getting on to, or alighting from, the vehicle.
(5) In this section—
‘act’ includes omission;
‘motor cycle’ has the meaning given by section 185(1) of the Road Traffic Act 1988;
‘motor vehicle’ means a mechanically propelled vehicle intended or adapted for use on roads;
‘road’ means a highway or other road to which the public has access, and includes bridges over which a road passes.”
This amendment would require the Chief Medical Officer to define “whiplash injury”.
The Chair
With this it will be convenient to discuss the following:
Amendment 9, in clause 1, page 2, line 3, at end insert—
“(iii) unless in respect of 4(a)(i) or (ii) the person is in a motor vehicle during the course of their employment, in which case Clause 1 shall not apply.”
This amendment would exempt people suffering a whiplash injury during the course of their employment from this definition.
New clause 9—Exemption for vulnerable road users and people injured during the course of their employment—
“(1) Nothing in Part 1 of this Act other than Clauses 6 and 7 shall apply to a claim made by—
(a) a pedestrian, cyclist or horse rider; or
(b) a person injured in the course of their employment.”
This new clause would exempt vulnerable road users and people injured in the course of their employment from the provisions of Part 1 of the Bill, except Clauses 6 and 7.
Clause stand part.
Gloria De Piero
It is a pleasure to serve under your chairmanship, Mr Stringer. With amendment 8, we seek to address the Government’s perplexing lack of faith in experts and their overweening belief that their own judgment is right. In the Bill, the Government have chosen to sideline doctors and, as we will see later, judges—two groups rightly held in high esteem in our society. Apparently, the Government know better than them. Quite simply, with this amendment, we say, “This is a medical issue, so ask a doctor.”
Although we have seen the same arrogance that the Government know best and a lack of respect in other areas of policy in recent years, this is the most gratuitous and egregious example I can recall. The only explanation that I can think of as to why they do not want experts involved is that they think that their knowledge is greater and better—or perhaps this is an example of the nanny state that they say they do not believe in.
The Government have chosen not to ban all compensation for whiplash, which indicates that they accept its validity as a medical condition, but they attempt to define it themselves. If they accept that it exists as a medical condition, surely it needs a medical definition. The Minister may tell me that the definition in the Bill comes from doctors. If so, might I ask who? They make no mention of any input from medical experts. Could it be that they have not mentioned their sources because the adviser in this case was all too familiar from almost every other aspect of this Bill? And might the definition of a medical condition in this Bill possibly have come from the insurers, who stand to profit enormously from this huge shift in the law?
On Second Reading in the Commons, the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), alluded to the possibility that in certain parts of the Bill the Lord Chancellor might be acting in a quasi-judicial capacity, although I note that the Minister did not respond to that suggestion. However, even if that were the case, although he might be required to act independently he would not be transformed into a medical expert, which is what is required here.
Before I talk about amendment 9 and new clause 9, can the Minister confirm that vulnerable road users will be exempted from the Bill and from the small claims limit? Also, will he define who a vulnerable road user is?
The Minister of State, Ministry of Justice (Rory Stewart)
Vulnerable road users will be excluded from the Bill and from secondary measures on the small claims court limit. A vulnerable road user is anybody who is neither driving a motor vehicle nor a passenger in one; in other words, the definition includes pedestrians, horse riders, motorcyclists or anyone else on the road who is not in a motor vehicle.
Gloria De Piero
I thank the Minister for putting that on the record.
We absolutely agree that there is a need to act against insurance cheats; no one supports fraudsters. The amendment would not affect the pursuit of those who are claiming fraudulently. By accepting this amendment, the Government can still hit their target. Through this amendment, we simply want to protect those who are injured in the course of their work through no fault of their own. Before it is suggested that this somehow drives a coach and horses through the Government’s intentions, we are not talking about huge numbers of cases.
Thompsons Solicitors deals with workers’ injuries day in and day out. The majority of its work is for the trade unions. Just 16% of its case load consists of injuries from road traffic accidents, and of that number whiplash cases comprise less than 20% of the total. Once we eliminate the large number of these claims that are not work-related, we are left with a tiny percentage of claims related to whiplash that people have suffered in the course of their work.
I have seen no complaint of fraud levelled by the Government against workers nor any suggestion that they are anything to do with the compensation culture of which there has been so much talk, although notably Lord Young said in his report, “Common Sense, Common Safety”, that in any case that view was a perception and not a reality. The Association of British Insurers, which has been very active around this Bill, has produced no examples of fraudulent claims by workers.
This amendment is an opportunity for the Government to exempt employers’ liability claims from the Bill and at the same time exclude them from the small claims limit. If the Government refuse to exempt workers, are they saying that any whiplash claim is evidence of fraud, whoever it is made by? If so, why have they not banned all whiplash claims? If they refuse to exempt workers, are they saying that the police officer, the paramedic, the school bus driver or the firefighter who suffers whiplash while working hard for our communities is scamming it?
Given that the Government have exempted vulnerable road users—horse riders, pedestrians and cyclists—from both the Bill and the associated small claims changes, what is their justification for not exempting workers? Are they saying that vulnerable road users are worthy of more protection than workers? Perhaps the justification is that the cyclist, the pedestrian and the horse rider do not take out motor insurance for their road use, but neither does the professional driver. If the justification for the exemption of vulnerable road users is that they are uniquely exposed, surely the professional driver is, too? For instance, there is the police officer in a high-speed chase or the HGV driver who is on the road for eight hours a day. The reality is that the Government have exempted vulnerable road users because including them would be politically untenable.
Craig Tracey
I just do not see any reason why someone who drives as part of their employment should recover a different sum to somebody else—one of our constituents, for example—who is driving in the normal daily course of their life, because they can still claim loss of earnings. The Bill does not change that, so they can still be compensated if they lose money as a result of being unable to work.
Gloria De Piero
It would be grotesque nonsense for a cyclist or a pedestrian injured through no fault of their own to find themselves subject to a tariff and a £2,000, let alone a £1,000, small claims limit when the target is whiplash and, in turn, apparently fraud. The same applies to workers. What on earth have they to do with whiplash for the purposes of fraud? If the Government will not move on this point, the only conclusion one can draw is that there is one rule for the small number of those wealthy enough to own a horse and another for the tens of thousands who drive for a living, many of them not in well-paid jobs—say, the paramedic or the refuse collector—who run the risk of whiplash when going about their jobs.
It is deeply disappointing that the Government are sneaking through crucial parts of their changes via a statutory instrument in order to avoid this sort of scrutiny. I wish to make perfectly clear today where the Opposition stands on workers for the entire package of measures. Workers, like vulnerable road users, should be excluded from both the Bill and the small claims increases.
Rory Stewart
It is a great privilege to serve under your chairmanship, Mr Stringer. Thank you again for the serious involvement that has gone into the debate. It has been a real privilege, as somebody who is not a legal specialist, to see how many well informed and distinguished colleagues we have on both sides of the House contributing to these interesting questions of definition.
Many of the amendments we are dealing with today reflect the work of the House of Lords and, in fact, of Opposition Members of the House of Lords—Labour Members, Liberal Democrat Members and Cross Benchers—who introduced many of the clauses into this Bill, which were not originally there and which we are now discussing. With your permission, Mr Chair, I will move quickly through amendments 8 and 9 and new clause 9 and then discuss why we feel clause 1 should stand part of the Bill.
The definition of whiplash, which is dealt with in amendment 8, was placed in the Bill after extensive debate pushed by the Delegated Powers and Regulatory Reform Committee of the House of Lords. In the initial version of this Bill, we had not sought to define whiplash. The DPRRC argued carefully and at great length that it felt strongly that it was inappropriate to have legislation of this sort if a definition was not in the Bill. The Committee felt it was not appropriate for any individual, whether a Minister or a chief medical officer, to make this definition on their own. It should be made by Parliament as a whole and it should be made fully explicit.
After a great deal of debate in the House of Lords, we conceded this point. The clause was inserted and everybody—Cross Benchers, Opposition Members of the House of Lords—nodded the amendment through. It was then inserted. The reasons for this are both those brought forward by the DPRRC and, I would add, to assuage some of the concerns put forward by the Opposition. Clause 2 also allows for a review of the definition by the chief medical officer, along with others, every three years to make sure it remains in touch with medical science and medical expertise. The definition is in the Bill and not purely provided by medical experts because, as the House of Lords argued, this is a medico-legal definition. In other words, it is not simply a question for medical specialists; it relates to the operation of law and the way in which the law of tort would operate.
The final reason for which I ask that amendment 8 be withdrawn is that I am afraid it refers only to the chief medical officer for England, whereas, of course, the legislation applies to England and Wales. That is why we feel strongly that clause 2, which refers to the chief medical officer for England and the chief medical officer for Wales and, indeed, the Lord Chief Justice and the Law Society in consulting on the definition of whiplash every three years, is the appropriate way to proceed. On that basis, I respectfully ask that amendment 8 be withdrawn.
It is easy to understand why amendment 9 was tabled and that the Opposition would be concerned. Again, we would respectfully argue that the key point is that the injury has occurred and not why the individual is in the car. The question of why they are in the car would be a distinction without a difference. There are many pressing reasons why somebody might be in a car. I, like many Members here, represent a rural area. Somebody might be in a motor car, for example, because they were having to drive their child urgently to a hospital. They might be in a motor car for any number of reasons that left them with little choice but to be in the car. It would seem invidious to distinguish between them and somebody else who is in the car for the purpose of employment, purely on the basis of the injury. The key is the injury and the fact that the third party who is liable for that injury is held liable.
Jo Stevens
The Minister mentioned choice. The fact is that if somebody is driving in the course of their employment, they do not have a choice because they are doing so on the instruction of their employer. Does the Minister accept that his argument on choice is not relevant when talking about an employer liability claim?
Rory Stewart
The argument I am trying to make is that, in many ways, travelling in a motor car in a rural area is, in effect, not a choice. If you were heavily pregnant and had to get to a hospital, you would have to get into that motor car. You would have no more choice than an individual who was in a car for employment purposes. In my constituency, very sadly, there are simply not the public transport links. People are obliged to be in a motor car, whether or not they are travelling in the course of their employment. Were they to suffer a whiplash injury, travelling in a rural area through no choice of their own, because they were suffering some kind of emergency or they were having to respond, it would seem invidious that they would receive different treatment from an individual who is, for example, driving a postal van.
Ruth George (High Peak) (Lab)
I, too, live in a very rural area with a great scarcity of public transport in recent years. However, the difference between a lot of drivers who drive for a living and those of us who have to drive to get around near where we live, is that drivers who drive for a living are often doing so for eight or even more hours a day. If they are in traffic, it is more likely that they will be involved in a collision with a rear shunt of the sort that creates whiplash. If they accumulate different incidents of minor whiplash, it can cause a much greater injury on the neck than a single incident. People who work for a living put themselves in this situation every day because of their employment. Often, that is their only source of employment and what they feel able to do. Will the Minister reconsider in the light of that point?
The Chair
Order. Before I call the Minister, I remind hon. and right hon. Members that interventions should be short and to the point. We can be relatively relaxed, but not too relaxed.
Rory Stewart
Thank you very much, Mr Stringer. Those two arguments were based on the question of frequency of travel and probability of an accident. Again, the key point in any form of injury claim is the nature of the injury and the liability of the third party that caused it, not the reason someone is in a car. It would be difficult to argue that somebody who travels in the course of their employment is necessarily travelling more frequently than somebody who is not. Somebody in a rural area might, for example, be commuting 5 miles to work in the morning and 5 miles back in the evening. A farmer in my constituency could be travelling between one field and another. There is no necessary reason to feel that they would be travelling more frequently than, for example, a parent taking their child to school in exactly the same area.
Arguments based on frequency or probability of impact should not be relevant. A more fundamental reason is that, in the end, the law is about the injury and the obligation that the third party who caused the injury owes to the injured person, regardless of how frequently that individual is in a car or why they are in a car in the first place. To be blunt, they could simply have gone to the car to get something from it, and could not be driving anywhere, and be struck and suffer whiplash. They would be entitled to exactly the same compensation as an individual driving that car.
Jack Brereton (Stoke-on-Trent South) (Con)
Does the Minister agree that the numbers applicable to amendment 9 would be negligible because most of the claims would be against a third party, not the employer?
Rory Stewart
Yes, I agree, but the key point is the injury, not why someone is in the car. This is a distinction without a difference.
Bambos Charalambous (Enfield, Southgate) (Lab)
The Minister mentioned children. I am conscious that children are not regarded as vulnerable road users. They would still need to go to court and have infant settlements made in their name. What consideration has been given to children who are injured in an accident through no fault of their own, obviously, and who have to go to court for a settlement?
Rory Stewart
In this regard, it is correct that the age of the individual within the motor car is not relevant within the law in assessing the injury, except in so far as the injury is specific to the age of the individual.
Scott Mann (North Cornwall) (Con)
The Minister makes an excellent point about rural areas. Many of my constituents have to travel for at least two hours to visit a GP or a hospital. The point I make is about the frequency of travel. I used to work for Royal Mail, driving for eight hours a day. My driving skill was much higher then than currently. Surely, such a person is less likely to have an accident because they are on the road more?
Rory Stewart
The key point, which goes against both Government and Opposition Members, is not the likelihood of having an accident. That should not affect the level of compensation that someone receives. That should be relative to one thing only: the nature of the injury and the prognosis. It should not be relative to why someone is in the car, how well or how frequently they drive or why they are driving. On that basis, I politely ask that amendment 9 be withdrawn.
New clause 9 reiterates some of the arguments in amendment 9; in other words, it focuses on the question of people injured during the course of their employment. However, it also references vulnerable road users. I have attempted to argue the relevance of someone driving a vehicle in the course of their employment in our discussion on amendment 9. On vulnerable road users, we respectfully request that new clause 9 be withdrawn for the reason I gave in my intervention on the hon. Member for Ashfield—vulnerable road users are already exempted by the Bill, so new clause 9 will be otiose.
On that basis, I respectfully ask that clause 1 stand part. This was a good and serious reform introduced with strong cross-party support by the House of Lords, driven by the DPRRC, which provides a much more accountable, transparent and predictable definition of whiplash to guide the legislation. We owe the Lords a huge debt of gratitude for that. We ask, on the basis that Members of the House of Lords from the Labour party, the Lib Dems, the Cross Benches and the Conservative party all agreed to it, that clause 1 stand part of the Bill.
Gloria De Piero
I have listened to the Government’s arguments, but do not accept them. The Bill’s objective is to reduce fraud. I have not heard anybody suggest that workers injured in the course of their employment are scammers. However, I have heard from Labour Back Benchers that workers drive all day and do not have a choice about whether to drive. I will divide the Committee on the amendments.
The Chair
Before the hon. Lady concludes, does she wish to divide the Committee on amendments 8 and 9?
Gloria De Piero
I beg to move amendment 10, in clause 3, page 3, line 21, leave out “two years” and insert “twelve months”.
This amendment would limit the tariff to injuries lasting less than one year.
The Chair
With this it will be convenient to discuss amendment 11, in clause 3, page 3, line 22, leave out “two years” and insert “twelve months”.
This amendment would limit the tariff to injuries lasting less than 1 year.
Gloria De Piero
The Bill says that if someone’s whiplash injury goes on for up to two years, or if it is thought that it might go on for up to two years, or if it goes on for up to two years because of their failure to “mitigate” their loss—that is, act to get themselves better by taking up an offer of physio, for example—they are eligible for fixed-tariff damages only.
Since 1999, special damages have been exempted from the calculation of whether a claim falls within the small claims limit. I will take this opportunity to nail down the ongoing argument about when the last increase in the small claims limit was. The Government say 1991, which is disingenuous and borders on the dishonest. I can provide quotes from the White Book if the Minister would like to see them. The limit has remained at £1,000 since 1991 but the method of calculating whether a claim falls within that limit changed in 1999 after the Woolf report. If any doubt remains, the evidence can be found in extracts from the White Book before and after the change.
From 1999, a definition of what was included in the £1,000 limit excluded special damages. It contains a helpful example that leaves no doubt that only general damages should be considered to see if a case is within the limit, and special damages are exempted from that time. I am told that special damages in a case add 20% to a claim on average, which means that the change in 1999 increased the limit by 20%. I shall assume that we have now laid that matter to rest and that any calculation from now on will be from 1999, not 1991. We may argue about the appropriate inflation index, or even the percentage increase from the changes made, but there should be no argument about the date from which it applies.
The impact of the clause is that someone could be off sick and losing wages, or having to work reduced hours, because of their whiplash complaint for up to two years before they are taken out of tariff damages. The Office for National Statistics says that the average wage in the UK was £27,200 in 2016-17, so an injured worker could lose more than £50,000 in earnings and still be subject to tariff damages. Someone on the minimum wage of £7.38 who works 35 hours a week for 48 weeks a year might earn £12,400, so they could have no income at all to support themselves and their family for up to two years.
Ruth George
Does my hon. Friend agree that the proposed tariff takes no account of victims’ circumstances? A whiplash injury will have a greater effect on someone in a manual job, who is less likely to be able to perform that job, than someone in a sedentary position, who is more likely to be able to continue to work through minor injury. Someone in a manual job is also likely to have lower wages and be less able to sustain a certain level of loss.
Gloria De Piero
My hon. Friend is completely in touch with the reality of life for working people. That is the argument that we seek to make. In tabling amendments 10 and 11, which bring that two years down to 12 months, we concede that people recover and that that can take time. We are not suggesting a short period, but a reasonable one, and we hope that the Government will concede that it is fair and proportionate.
On amendments 12 to 16, it is proposed that the Lord Chancellor should set the tariffs for pain, suffering and loss—
Bambos Charalambous
The issue of tariffs has been set out in an arbitrary way in the Bill. The criminal injuries compensation scheme was set up in 1991. Since 1995, the scheme has set the damages received for a criminal injury at £1,000 for whiplash that lasts from six to 13 weeks. That was the same figure in 2001, when the scheme was updated, and again in 2008 when the scheme was updated, and even in the current scheme which has not been updated since 2012: the damage for whiplash is £1,000 for more than 13 weeks. That compares unfavourably with the tariff that has been set—£470 for whiplash—so there are two inconsistent schemes operating under Government auspices. Someone is better off if they are injured by another person in criminal activity—for example, during dangerous or careless driving—and then receiving money from the Government. If they are injured negligently in a car accident they would receive far less. It should not be the case that someone receives far less if someone else commits a criminal offence against them than they would as the result of an incident that has occurred through negligence.
Jo Stevens
Does my hon. Friend agree that the Bill is creating tiers of victims of personal injury, so there will be different rates for people injured in Scotland, the workplace and road traffic accidents, and as a result of a criminal act?
Bambos Charalambous
My hon. Friend makes an excellent point. This leads to my next point: the way damages are calculated by judges has evolved over time through the judicial colleges. They have years of experience, yet what we have here is the Lord Chancellor plucking figures out of the air just to make things fit and to satisfy the insurance companies. That is not right. There has to be consistency, and a consistent approach. The measure makes no sense at all, and we should not be a situation in which tariffs are set arbitrarily by the Lord Chancellor that are inconsistent with other parts of the law and even other schemes within the Ministry of Justice.
Ellie Reeves (Lewisham West and Penge) (Lab)
I shall speak to amendments 10 and 11, which have been tabled by Opposition Mems. I stated on Second Reading that Opposition Members had expressed deep concern about the implications of the Bill and the policy agenda that the Government were operating under the cover of cracking down on fraudulent claims. Fraudulent claims are wrong, but we are not in the midst of an epidemic of fraudulent claims as Ministers would have us believe. In fact, insurance industry data show that of all motor claims, 0.17% were proven to be fraudulent in 2016. This is an extremely low percentage.
Craig Tracey
Does the hon. Lady accept that the figure of 0.17% relates to all motor claims, not just those relating to personal injury?
Ellie Reeves
The point about fraudulent claimants is that it is a very low percentage, and the insurance industry has reporting duties. No insurance company has stated that fraud is a material risk. It is not correct to suggest that there is an epidemic of fraudulent claims. Such claims should be tackled, but the way to do that is to go after those who commit fraud rather than innocent victims of road traffic accidents. The implementation of the Government’s package of measures in this Bill and the forthcoming changes to the small claims limit would eviscerate access to justice for many people with genuine injuries. In its current form, the Bill would replace the long-standing and established Judicial Studies Board guidelines with a rigid tariff that would undermine judicial discretion and leave injured claimants worse off.
I agree with the conclusions of the Access to Justice group in its written submissions to the Committee, which state that the increase in the small claims limit and the introduction of a tariff system is punitive and arbitrary. The draft tariff system presented by the Ministry has shown an overwhelming reduction in payments for pain, suffering and loss of amenity for whiplash injuries. In comparison with the 2015 average pay-outs under the existing guidelines, injuries lasting 19 to 24 months would be compensated 13% less, and those lasting 16 to 18 months would be compensated 29% less, while injuries lasting 13 to 15 months would be compensated 45% less. I note that Government amendment 4 would ensure the Lord Chancellor consulted the Lord Chief Justice before proceeding with regulation changes, but it is not satisfactory and would not see access to justice delivered for injured claimants. It misses the point of what is damaging about the move from judicial guidelines.
The Bill classifies injuries dealt with by the proposed tariff scheme as minor. I am not sure by whose definition a minor injury is one that can last up to two years. By most standards, it is surely a significant injury, and I welcome the shadow Front-Bench amendments that would see injuries of more than a year removed from the scope of the tariff system. To grade an injury of up to 15 months as minor and restrict damages to nearly 50% of what they are currently is a clear, ideologically-driven assault on access to justice.
Moreover, the evidence submitted to the Committee by the Carpenters Group showed that 15% of road traffic accident injuries lasted for more than 12 months. We cannot insist that the punitive measures invoked by a move to a tariff system affect the ability of a substantial number of people to access justice. Further, on the secondary legislation changes to the small claims track from £1,000 to £5,000 for road traffic-related personal injury claims and to £2,000 for all other types of personal injury claim, the package of measures, of which this Bill forms part, will see thousands of injured people fall out of scope for free legal advice and potentially denied justice. Current predictions are that around 350,000 injured people will be put off pursuing a claim for an injury that was not their fault. Access to justice is on the line for thousands of genuinely injured people.
Jo Stevens
Does my hon. Friend agree that the impact of the Bill will mean that we are likely to see what happened in the employment tribunals when fees were introduced and there was a drop-off of 90%?
Ellie Reeves
That is absolutely right. If the changes go through, hundreds of thousands of people will simply not be able to pursue claims with legal representation and will be deterred from doing so. The Government’s introduction of employment tribunal fees was found by the Supreme Court to be illegal because they denied people access to justice, and we seem to be going down the same route with the Bill’s further attacks on access to justice and with the related small claims measures. Amendments 10 and11 should be adopted as they provide much needed strength to the legislation and will help protect access to justice for victims of accidents.
The Chair
Order. Minister, as you will have noticed, we have strayed into a stand part debate, so I do not intend to have a separate one. If the Minister wishes to say anything in response, now is the time.
Rory Stewart
I shall focus narrowly on amendments 10 and 11, which focus on the question of reducing the period from two years to 12 months. Perhaps when we move on to amendments 12 to 15, we can talk a little more about the Judicial College guidelines and the question of tariffs.
The hon. Member for Lewisham West and Penge questioned where the word “minor” came from, which is important. It comes from the Judicial College guidelines. The idea that injuries under two years rather than under one year should be separated reflects the process within the Judicial College guidelines and its definition of what constitutes a minor injury. Clearly, that is a legal definition; in no way does the Judicial College intend to suggest that somebody suffering two years of injury is not suffering considerable pain, distress and loss of amenity. It is simply used to make a distinction between an injury that passes over time and an injury that is catastrophic and lasts throughout one’s life. In no way is it intended to denigrate the experience during the two years.
We feel strongly that it is important for the Bill to remain consistent with the definitions within the Judicial College guidelines. In the absence of that, there would be the first problem of imposing a very unfair pressure, which could inflate, on GPs to push through the one-year barrier, but there is a more fundamental problem. Were we to accept the amendments, they would not only take about 11% of cases out, but mean that the provisions on the requirement for a pre-medical offer would then be removed for the one to two-year period. We would suddenly end up with people able to proceed without medical reports for the one to two-year period, which would undermine a lot of the purpose of the Bill.
Ruth George
Surely it is up to insurance companies whether they choose to make pre-medical offers. It is entirely in their hands whether to do so. Whether or not it can be done is for the applicant but the decision is in the hands of the insurance companies; it should not be in the hands of legislation.
Rory Stewart
The hon. Lady puts her finger exactly on the current situation. Currently, the decision is in the hands of the insurance companies. The argument in the legislation is to take that decision away from the insurance companies; it will prohibit them from making an offer without a medical report. That was supported by the Opposition as well as the Government, and that is exactly the intention of the legislation. That is another reason why we will resist amendments 10 and 11.
Gloria De Piero
Does the Minister accept that, although the small claims limit has remained at £1,000, the way that was calculated changed in 1999?
The Chair
Order. Can I just say to the hon. Lady that the Minister had sat down? It is appropriate to intervene when the Minister is on his feet. If the Minister wishes to make a statement in response, I will take it.
Rory Stewart
This is a good challenge. It is not, respectfully, relevant to amendments 10 and 11, but relates to the question of something that will be done by the Procedure Committee, if it were to proceed through secondary legislation—a proposal to raise the limit from £1,000 to £2,000. The hon. Lady is correct that in 1999, changes were made to how the £1,000 limit was calculated, which adds an extra level of complication.
There is also a debate between us on whether CPI or RPI should be used to move that initial 1991 definition and, if so, to what amount. Should the hon. Lady wish to proceed, that is appropriate—not for this amendment or the Bill, but for subsequent measures.
Gloria De Piero
We do not intend to divide on this but we will raise these issues again on Report and Third Reading.
Gloria De Piero
It does, and I thank you for your advice. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Gloria De Piero
I beg to move amendment 12, in clause 3, page 3, line 26, leave out from “amount” to end of line 5 on page 4 and insert
“determined in accordance with the 14th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases or any subsequent revision to these guidelines.”
The Chair
With this it will be convenient to discuss the following:
Amendment 13, in clause 3, page 3, line 33, leave out subsections (3) to (7).
This amendment, together with Amendments 14 to 16, would replace the tariff with the Judicial College Guidelines for the assessment of damages.
Amendment 14, in clause 3, page 4, line 7, leave out
“to which regulations under this section apply”.
See the explanatory statement for Amendment 13.
Amendment 15, in clause 3, page 4, line 9, leave out
“(subject to the limits imposed by regulations under this section)”.
See the explanatory statement for Amendment 13.
Government amendment 4.
Amendment 16, in clause 3, page 4, line 18, leave out subsection (11).
See the explanatory statement for Amendment 13.
Gloria De Piero
The Bill proposes that the Lord Chancellor, rather than judges, should set the tariffs for pain, suffering and loss of amenities. In view of the opposition from those who are judicially qualified and the upholders of the law, can the Minister not see the sense in the point that no politician should be making decisions for which the judiciary is rightly responsible?
To go down that path sets a dangerous precedent. It may be justified by Government when they are the paymasters in the criminal injuries compensation scheme, for example, but in any other sphere of injury compensation it takes away an integral role of the judiciary and introduces another layer of bureaucracy.
The current calculation of damages by both sides—claimant and defendant—is made using the Judicial Studies Board guidelines. Those are based on what judges have awarded in the past—on what is fair. They are used by the parties to guide settlement out of court and by judges in court at trial. That makes the JSB the best guide to what is just and proper in terms of damages awarded. The Government are throwing all that out in favour of the Lord Chancellor—someone with far less expertise and a political agenda.
A lot of people would say that the JSB guidelines are what is just, or that they represent justice for the victim, although I have my doubts about that. After all, although special damages for losses and expenses can put someone back in a position financially, as if the injury had never occurred, general damages can only apologise for what someone has been through and may continue to suffer; they cannot make anyone better. That is at least, for now, something that the courts decide is appropriate; it is not a figure plucked out of the air.
The Government’s attitude is, “What would experts know? It might be a basic tenet of English common law that people are compensated fairly and judges are best placed to assess that but, so what? Let’s rip it up!” That is to ignore Lord Woolf, who said:
“The effect of whiplash injuries, with which we are concerned, can vary substantially according to the physical and mental sturdiness of the victim. This means that the appropriate amount of damages for a whiplash injury can vary substantially…I suggest they are not suited to a fixed cap, as proposed by the Government.”—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1593.]
Ruth George
As someone who has suffered whiplash, I can speak about the amount of pain and suffering it causes and its impact on a victim’s life. As my hon. Friend said, those things can vary from person to person and from accident to accident, but an injury to the ligaments at the bottom of one’s neck, which carry the head all day long, can have a profound effect on someone’s being able to lift anything at all.
At the time of my injury, I found it very difficult to lift my young baby. When I did so, I was in considerable pain for a long time thereafter, and the problem has continued. I am no longer able to lift very much because it gives me a severe migraine. That is the issue we are considering for people with whiplash.
Rory Stewart
If an injury continued, with migraines more than two years after the incident had occurred, it would not be classified as a minor one under the Bill and would not be subject to the tariffs. It would go through the normal court procedures, via a fast track, and the award would be made by judges.
Ruth George
Absolutely, but what I was going to say was that my injury was then exacerbated by physio. It might have cleared up within two years—I had hoped that it would and for most people it does—but it takes a long time and a lot of suffering to get to that point.
For the vast majority of people who suffer whiplash, and particularly when it is of longer duration where there is significant medical evidence—MRI scans and extended x-rays—the Bill, as the Minister said, will prevent pre-medical offers from being made. There will have to be medical reports showing what has been happening to someone’s neck and the impact on them.
It does not make sense that we are considering introducing a one-size-fits-all tariff at a very low rate that takes no account whatever of the amount of pain and suffering, only its duration. It takes no account of the impact on the victim’s life, including on their work and home life. If someone is a carer, works in a nursery or has another manual job, the impact on them will be far greater than on someone with a similar injury who does not have to perform such tasks.
Rory Stewart
This is an important and serious issue, so I wish to clarify something that I am sure all hon. Members on both sides of the House already understand. The legislation purely relates to general damages, which cover pain and loss of amenity. All the examples that were given, such as loss of earnings or being unable to perform a particular job because of whiplash, would be covered by special damages and are not affected by the legislation.
If an individual had an injury that prevented them from going to work, that loss of earnings would be covered under a separate special damages claim. The legislation relates purely to the subjective judgment on the pain experienced—not the physio costs or the loss of earnings. That is all unaffected by the legislation.
Ruth George
Those of us who have worked in the trade union movement will know that compensation for loss of earnings does not always equate to the amount that somebody loses and the impact on their job. Many employers have schemes whereby anyone who is off sick for more than a certain number of days is unable to return, or suffers some other detriment. With many schemes, people have to survive on sick pay. Even if the difference comes to a significant amount, it takes a long time for that to come through. That feeds into the impact not just on somebody’s work, but on their life. The judiciary can take account of that when they set an award, but this tariff takes no account of the amount of pain and suffering—only the duration—or of the impact on a person’s life at the time of the injury.
Bambos Charalambous
Is my hon. Friend aware that under the criminal injuries compensation scheme, which the Lord Chancellor sets the tariff for, there has been no increase for whiplash claims since 1995? I fear that that is what would happen if the tariff scheme for whiplash was set by the Lord Chancellor.
Ruth George
My hon. Friend makes an excellent point. I was dismayed by the huge cuts in 2012 to the criminal injuries compensation scheme, but the amount for whiplash remained at £1,000. Even this Government, who were looking to remove a vast proportion of the costs of the criminal injuries compensation scheme, did not seek to change the tariff for whiplash, because they accepted that £1,000 for a 13-week injury was a fair amount of compensation, even under the criminal injuries scheme paid for by the Government.
However, the Government are now proposing that insurance companies that receive far more than the amount of tariffs per year from many motorists should have to pay out less, and that for a six-month injury someone would receive perhaps £450. For many motorists an insurance premium for six months is more than £450, begging the question: what will they pay insurance for? Where is the value for money, and where is the fairness to victims of accidents in today’s proposals?
Rory Stewart
I thank the hon. Members for Ashfield and for High Peak for their powerful speeches. Before I move on to amendments 12 to 15 and Government new clause 4, I will clarify some points raised by the hon. Member for High Peak.
Many things are covered by insurance besides the ability to get compensation for whiplash. It would be absurd if the entire purpose of an insurance scheme was simply to give someone an annual pay-out for whiplash, and they paid £450 for that insurance when such claims were capped at £450. The hon. Member for High Peak is right that that would be an absurd system, but insurance covers many things besides whiplash claims. In fact, we are trying to move to a world in which the majority of someone’s insurance would cover things other than their whiplash claim.
This goes to the heart of the discussion so far, and to a point made by the hon. Member for Lewisham West and Penge. Fundamentally, the number of road traffic accidents has decreased by 30% since 2005. At the same time, cars have become considerably safer: headrests and other forms of restraints have made it much safer to be in a motor car than it was in 2005. During that same period, whiplash claims have increased by 40%. Whether we define these as fraudulent or simply exaggerated, there is no doubt of the trend. There are fewer road traffic accidents and cars are safer, yet whiplash claims are going up.
David Hanson
We heard a number times in the Justice Committee, when taking evidence from the Minister’s colleague, Lord Keen, the question of the word “fraudulent”. Can the Minister quantify for this Committee how many fraudulent claims he expects there to be on an annual basis?
Rory Stewart
The answer is that judging fraud in whiplash is almost impossible except statistically through the measures that I have used, because for minor whiplash claims of the sort that are covered in the tariff—not the type of whiplash injury that the hon. Member for High Peak experienced—there is no way of proving whether an injury has occurred. That is why The New England Journal of Medicine has done research on this.
There has been interesting research on what happens if someone sits in a motor vehicle with a simulated accident and a curtain behind them, so that they are unable to tell whether the accident has occurred or not. It shows that 20% of people experienced whiplash without the collision actually occurring. This is clearly a complex medico-social phenomenon. The polite way of putting it is that there is an asymmetry of information. It is close to impossible for an insurance company to prove that an individual did not experience whiplash, particularly at the three-month rate.
David Hanson
Could the record show, Mr Stringer, that the Minister, like his colleague in the House of Lords, could not indicate how many claims per annum are fraudulent?
Rory Stewart
I am very happy for the record to say exactly that, provided we explain why that is the case. The nature of this injury is such that it is impossible to know, in most cases, whether the individual is making a fraudulent claim. In the case of the kind of injury experienced by the hon. Member for High Peak—a much more serious injury—it is possible to detect things through MRI scans, but for the majority of injuries that we will be talking about in the three-month to six-month period, no physical evidence can be adduced one way or the other.
In the end, the qualified GP has to sit down and reach some kind of judgment, through discussion with the individual and gathering the evidence of injury, that the balance of probabilities holds that the individual is experiencing subjective pain, but it is impossible to prove that through the kinds of medical evidence that one would adduce in a normal medical case.
Ruth George
An MRI scan will identify where there is soft-tissue injury. At any stage, the point is whether it is worth going for an MRI scan. By reducing the tariff to such a small amount, GPs in many instances, particularly up to 12 months, may well deduce that it is not worth referring a patient for an MRI scan to produce that medical evidence. The tariffs proposed will reduce the amount of medical evidence produced and may well increase the number of fraudulent claims, because there will be less requirement for medical evidence such as an MRI scan.
Rory Stewart
Many whiplash injuries are not detectable on an MRI scan. Many people are currently receiving compensation for whiplash and have experienced whiplash injury, which cannot be caught on an MRI scan. The GPs who will be asked to decide whether someone has had a whiplash injury will not be holding them to the standards of an MRI scan. Were they to do so, we believe that the number of whiplash injuries would decrease very dramatically. Nothing like 550,000 injuries a year would be recorded on an MRI scan, particularly in the three-month to six-month period.
Jo Stevens
I practiced in this area for nearly 30 years. Every day, I saw the impact of motor accidents and soft-tissue injuries on young and old people from all sorts of backgrounds. What the Minister is saying is absolute nonsense. GPs are able to determine whether someone has suffered an injury—they have been doing so for many years and will continue to do so for many years. This is simply an excuse to increase insurance companies’ profits.
Rory Stewart
There is a fundamental issue—we may get on to it later in the debate—about the different understanding of insurance companies on opposite sides of the House. Two arguments are put forward. The hon. Member for Jarrow (Mr Hepburn), for example, suggested in his speech in the House that the insurance industry worked on a binary basis—that the objective of the insurance industry was simply to increase the premiums as much as possible to sky-high levels, and reduce payouts.
We would argue, as does the Competition and Markets Authority, that there is a third crucial factor—competition—in understanding the impact of the legislation. What prevents premiums endlessly going up and an insurance companies never paying out is that people simply would not go to that insurance company and would go elsewhere. The insurance markets were very carefully studied by the Financial Services Authority and the Competition and Markets Authority. They are confident that 80% of the associated savings in costs will be passed on to consumers through the mechanism of competition and agencies advertising to get customers.
One way in which we seek to demonstrate that point publicly is through inserting an amendment to get the insurance companies to come forward with clear information on the amount of money they have received and the amount they have paid out. We can then have an open debate in Parliament to discover which of us is right—whether the Competition and Markets Authority is right or whether, as the hon. Member for High Peak and the hon. Member for Jarrow argue, it is a purely binary process.
Bambos Charalambous
Is the Minister aware that the insurance companies settle the vast majority of whiplash claims without going to court and pay up without even trying to fight the claims? If the Minister is correct that the claims are hard to detect, why are the insurance companies not fighting more of them and taking people to court?
Rory Stewart
The answer is exactly for that reason. Because they are so hard to detect, they are almost impossible to fight, and therefore insurance companies have historically made that decision. They often do not even get a medical report because it hardly seems worth while to do so. When somebody comes forward with a whiplash claim, the procedure has often been to settle without going to court in order to reduce the legal fees and the associated costs, exactly because it is incredibly difficult.
Whiplash claims are extremely controversial medically. A lot of articles are written about this—I quoted the New England Journal of Medicine in the House, which is particularly stark. Cassidy’s article argues very strongly that the absence of compensation for pain and loss of amenity is associated with a much improved prognosis and reduced duration in the whiplash injury itself. In other words, the New England Journal of Medicine points to the fact that this is not purely a medical phenomenon. It has social and legal dimensions, of which compensation is a part.
Gloria De Piero
Is the Minister familiar with the quote from the head of the City of London police insurance fraud enforcement department? He said in the Insurance Post:
“It would be wrong to say that I believe there is a compensation culture or an insurance fraud culture in general.”
Another expert denied?
Rory Stewart
Such arguments would be more powerful if Opposition Members could explain why the number of whiplash claims has gone up by 40% since 2005, when the number of motor vehicle accidents has declined by 30% and cars have got much safer? A lot of things have been introduced in cars since 2005. Nearly 85% now have the safety features specifically designed to reduce whiplash that only 15% had in 2005. There are fewer accidents and much better protection around the individual.
Rory Stewart
Absolutely. Let me just articulate the question and the hon. Lady can perhaps answer it exactly. Why has the number of road traffic accidents reduced dramatically—cars have got safer so people are much less likely to experience injury, and there are fewer accidents—yet the number of claims has gone up by 40%? Why is she confident that the operation of claims management companies is not associated with the extraordinary increase in whiplash claims? Presumably, we have all received calls from claims management companies. An average of 600,000 claims are made a year—almost one in 100 citizens in the United Kingdom make a whiplash claim. How can that be possible when the number of road traffic accidents is reducing?
Ruth George
The Minister makes an excellent argument for regulating claims management companies properly. He has made no argument for blaming and making innocent victims of road traffic accidents. On Second Reading, we heard that many people are phoned by claims management companies. In many instances, their details are given out by the insurance companies to whom they make an honest claim. The insurance companies, which are linked to those claims management companies, give those details. If the Minister wants to act on the problem of whiplash, he should look at those claims management companies and their tactics of cold calling, as the Bill does in banning pre-medical offers, and end the links between insurance companies and claims management companies, rather than making innocent victims suffer.
Rory Stewart
With permission, I will proceed. There is still no answer to why the number of claims has risen, particularly when the number of road traffic accidents has dropped. The hon. Lady suggested that she would answer the question but did not. I look forward to someone answering that question, but I would like to make progress.
David Hanson
In Committee, it is normal to take interventions. As a Minister I never refused an intervention in Committee. I hope the Minister will accept this intervention. He mentioned the increase in claims being made. How many of those claims does he expect are fraudulent? That is the key. If they are not fraudulent, they are genuine claims, whether they are through a claims management company or from an individual.
Rory Stewart
The statistics suggest very strongly that what happened to an individual in a motor car in 2005 would, on average, have been much more severe than what happens to an individual in a motor car in 2018. A 30% reduction in the number of road traffic accidents, combined with the improvement in safety procedures, would suggest that an individual having a motor vehicle accident today would be considerably less likely to suffer whiplash than would have been the case in 2005. Therefore, the fact that the number of claims has increased by 40% is a very peculiar anomaly that requires explanation, which nobody has produced so far. Will somebody please explain why the number of claims has increased by 40% when there has been no physiological change in the human body since 2005 and motor cars have, if anything, got safer?
David Hanson
The Minister still has not answered the question. How many of those additional claims does he suggest are fraudulent? If a claims management company takes forward a claim, there might be issues about the claims management company but, ultimately, if the claim is not correct it will not be approved. Therefore, how many of those extra claims are fraudulent? He needs to tell the Committee.
Rory Stewart
In 2016, there were 7,572 confirmed fraudulent motor claims and 58,576 suspected claims, resulting in 66,147 detected motor fraud claims. However, my point goes much wider. Because of the asymmetry of information and because it is impossible to prove whether the injury has occurred—particularly at the three to six-month period—it is impossible to put a precise number on it. We can be confident, through the soaring inflation in the number of these claims, that many are exaggerated, to put it mildly, even though we cannot prove the exact number beyond the 66,147 that are actually fraudulent.
Craig Tracey
I spent 20-odd years on the frontline dealing with these types of claims and acting on behalf of the client rather than the insurance company. For genuinely injured people, we found that financial compensation was a minor consideration in the overall claim. They wanted to feel better and get put right. Is it not right that insurance companies should focus on rehabilitation, treatment and proper diagnosis rather than worrying so much about value?
Rory Stewart
I absolutely agree. It is very important to keep reminding the House that we are focusing on general damages, not special damages. In other words, we are focusing on what ultimately must be a difficult, subjective judgment about the level of pain that an individual experiences, and not loss of earnings or other forms of treatment.
Robert Courts
I repeat my declaration that I practised in this area until I was elected two years ago, and I remain a door tenant at my chambers. Having practised in this area for more than 10 years, I too have experience. Does the Minister accept that there is a danger that the Committee is confusing two issues? According to the guidance notes, the manifesto gave a commitment to
“reduce insurance costs for ordinary motorists by tackling the continuing high number and cost of whiplash claims.”
This is not solely about fraud. It is also about perfectly genuine claims where the costs have become very expensive. Are the Government seeking to provide redress for those who have been injured, but to do so in a cost-proportionate manner?
Rory Stewart
Fundamental to decisions that the Ministry of Justice has to make under any Government is the need to think seriously about balancing different types of interest—in this case the interests of the claimant, the third party and the taxpayer, as well as those of road users and people who take out motor insurance. It is therefore appropriate for us to question the overall cost of the system, and—particularly for motorists in rural areas—the fact that the premium could be as much as £35 a year extra, and considerably more for a young driver, because of the hundreds of thousands of people each year who make whiplash claims.
Gloria De Piero
Insurers have never mentioned fraud as a material risk in their financial report. If it were such a serious concern, would they not be required to report it to the Financial Reporting Council?
Rory Stewart
The question of what constitutes a material risk in a financial report is driven primarily by the financial stability of the company, so the question of whether fraud is defined in that way relates purely to the cost of the fraud. The question is a financial one, not one of honesty.
Amendments 12, 13, 14 and 15 relate to the Judicial College guidelines. This debate has had quite a long consultation period—it has been going on for more than three years. We are grateful to the Association of Personal Injury Lawyers and many others, including the Law Society, who have fed in to this consultation, and we have arrived at a compromise. The Opposition were extremely uncomfortable with the initial proposals, and we have made a lot of concessions—that is why I will be asking hon. Members to withdraw their amendments.
The initial proposals by the Chancellor of Exchequer in his Budget speech were to remove general damages entirely, and for no compensation to be offered for pain, suffering and loss of amenity. There was also a proposal to have no judicial involvement whatsoever in setting levels of compensation, and the third element of controversy was about whether it was appropriate to have tariffs at all.
We have made significant concessions on the first two points—in the House of Lords for the second proposal, and before that stage for the first proposal. Under pressure from many people, including Opposition Members, we have accepted that there should be general damages, and that principle has been reinserted. Secondly—this is why I will ask for support for clause 4—we will push ahead with the proposal that the Lord Chief Justice should be consulted on the level of the tariffs. That brings in the judiciary so that it will not be done purely by the Lord Chancellor, which brings us to the question of whether there should be tariffs at all.
A tariff system is relatively unusual in English common law although, as the hon. Member for Enfield, Southgate pointed out, an equivalent exists for criminal injury compensation cases, which creates some paradoxes and contradictions. At the moment, someone who suffers a criminal injury could receive a different level of compensation than if they suffer exactly the same injury without a criminal act. The same is true if someone in a motor vehicle suffers from a terrorist attack. The Government could give someone considerably more compensation if they are the victim of a terrorist attack than if they suffer the injury in a different way.
However, tariffs are not unusual: they have been introduced very successfully in Italy, France and many other European jurisdictions. Under the proposals in the Bill, there will be judicial discretion on the tariffs. That is judicial discretion that we have consulted on closely and will return to under later amendments. It is in line with what the European Court of Justice believes should be the appropriate degree of judicial flexibility when applied to a tariff system.
Bambos Charalambous
Let us assume for a moment that we accept that the tariff system is the right one. Does the Minister not agree that the inconsistencies are just unacceptable and that there needs to be a review of the levels that have been set out, because there seems to be no rhyme or reason to them? Can he explain to me how the levels have been arrived at? I cannot see where they have come from.
Rory Stewart
This goes to the heart of the concerns that the judiciary raised when the first criminal injury compensation schemes were introduced and, indeed, when compensation for a terrorist act was introduced. As the hon. Gentleman suggests, it is perfectly legitimate to question whether, within the tradition of tort in the English common law, it is appropriate to distinguish between an injury suffered at the hands of a criminal or a terrorist and an injury simply suffered at the hands of another third party who is liable, but that is a much deeper philosophical jurisprudential debate than I think we can proceed with here. With that, I respectfully request that the amendments be withdrawn or not pressed and I ask the Committee to support Government amendment 4.
Gloria De Piero
I am afraid that I am going to disappoint the Minister. We feel so strongly, because we are led by the independent experts, by the Select Committee on Justice and by some people in the Minister’s own party, whom I quoted earlier, that we believe that the Committee needs to divide on amendments 12 to 16.
Question put, That the amendment be made.
The Chair
As I indicated, we have debated clause 3 sufficiently not to require any separate stand part debate.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4 ordered to stand part of the Bill.
Clause 5
Uplift in exceptional circumstances
Gloria De Piero
I beg to move amendment 18, in page 4, line 30, leave out Clause 5 and insert—
“Power of court to uplift the amount of damages payable
(1) A court may—
(a) determine that the amount of damages payable for pain, suffering and loss of amenity in respect of a whiplash injury or a minor psychological injury is an amount greater than the tariff amount relating to that injury;
(b) determine that the amount of damages payable for pain, suffering and loss of amenity in respect of a whiplash injury and one or more minor psychological injuries, taken together, is an amount greater than the tariff amount relating to those injuries;
(c) in a case where the court considers the combined effect of—
(i) an injury or injuries in respect of which a tariff amount is specified by regulations under section 3(2) or (4), and
(ii) one or more other injuries, determine that an amount greater than the tariff amount is to be taken into account when deciding the amount of damages payable for pain, suffering and loss of amenity in respect of those injuries.
(2) In this section ‘tariff amount’ means—
(a) in relation to a whiplash injury, the amount specified in respect of the injury by regulations under section 3(2);
(b) in relation to a whiplash injury and one or more minor psychological injuries, the amount specified in respect of the injuries by regulations under section 3(4).”
This amendment would allow judges to increase the amount of damages payable where they determine the tariff amount to be insufficient compensation, rather than capping judges ability to increase compensation awards to a percentage specified by the Lord Chancellor as the Bill currently does.
Gloria De Piero
This amendment would allow judges to increase the amount of damages payable where they determine the tariff amount to be insufficient compensation, rather than capping judges’ ability to increase compensation awards to a percentage specified by the Lord Chancellor, as the Bill currently does. Once again, I want to point out the long-standing tradition of trusting judges, rather than having politicians interfere with the discretion of the courts—a tradition that the Government are inexplicably undermining with this Bill.
Clause 5(3) states that if the court thinks there should be an uplift from the tariff because of the severity of the injury, the amount by which the court can increase the payment is limited according to a cap set by the Lord Chancellor. Not only are the courts being fettered by a tariff, but when they consider the tariff to be inappropriate, they will get their judicial wings clipped again. This reduces judges to little more than errand boys for the Lord Chancellor.
Many Lord Chancellors these days are not lawyers. They will rely on the advice of their officials, who need not have legal training either. If the Tories do not trust the judges, who do they trust? What are they scared of? What evidence do they have that judges will behave badly and award huge sums? What court cases can they point to in which that has happened? I can find none at all, and nor can the experts whom my team and I have consulted.
I suspect the insurers fear that without a cap, every tariff award will be taken to court, where judges will apply an uplift and blow up their tariff. If that is what they fear, it suggests that they secretly accept that the proposed tariffs are too low. Perhaps the reason for all these restrictions—all these fetters on what a judge can decide for themselves—is that the Government and the insurance industry are running scared that judges will, indeed, rebel against them. Not because judges are intrinsically rebellious—far from it, some would say; they are conservative with a big and a small c—but because they have a duty to be impartial and deliver justice, and the Government’s proposed tariff does not even remotely do that. Amendment 18 would restore judges’ lost autonomy.
Rory Stewart
I thank the hon. Lady for her speech. This amendment relates to the fundamental question of the tariff system and the relationship between the judiciary and the tariff system. Clause 5 provides a pragmatic compromise between a strict tariff system and judicial discretion by allowing the judges to lift that tariff in exceptional circumstances. However, as the European Court of Justice accepted in the arguments made in the Italian case, there needs to be a limit. If there were no limit to judges’ discretion, the tariff system would become unworkable.
In so far as we disagree about whether there should be a tariff system in the first place, I completely understand where Opposition Committee members are coming from. However, given that the fundamental cornerstone of the Bill is that there should be a tariff, we need to strike a pragmatic compromise between the tariff and giving some discretion to judges. Therefore, we propose that the Lord Chancellor will set a percentage of discretion for judges to uplift the tariff. We also propose that he will consult the Lord Chief Justice on the appropriate level of discretion. We will look carefully at the rulings of the European Court of Justice and the decisions that it has made in other countries where tariffs exist to arrive at that figure.
Bambos Charalambous
The tariffs range from £235 to £3,910, which are incredibly small amounts in the great scheme of things. To try to fetter the judges’ discretion on such small amounts, for exceptional circumstances that have yet to be defined, is to use a sledgehammer to crack a nut. We just accepted an amendment to the effect that the Lord Chancellor must consult the Lord Chief Justice. Does the Minister not think that it would be better to use that mechanism, rather than “exceptional circumstances”, to set the tariffs?
Rory Stewart
We certainly will move to introduce an amendment exactly in relation the hon. Gentleman’s question—he has campaigned well on this, as have other hon. Members—setting out that we should consult the Lord Chief Justice on the level of tariffs as well as on the percentage uplift for judicial discretion. Those are two important concessions that I hope will reassure the Opposition.
David Hanson
Before the Minister sits down, can he give some further detail about how he intends to consult the Lord Chief Justice on making the regulations? How much notice will he give the Lord Chief Justice? Will the Lord Chief Justice’s comments be public? Will they be published so that other hon. Members can see them prior to any decision being taken? What happens if the Lord Chief Justice disagrees with the Government’s suggestions? Could the Minister give some outline of those circumstances?
Rory Stewart
As the right hon. Gentleman is aware, clause 5(5) merely states:
“The Lord Chancellor must consult the Lord Chief Justice before making regulations under this section.”
We intend that to be done in an accountable, responsible, transparent and predictable fashion that would give the Lord Chief Justice a serious amount of time to consider and respond, but, ultimately, it is a consultation and the power of decision rests with the Lord Chancellor, as is implied in the legislation.
David Hanson
Will the Lord Chief Justice’s comments on the consultation be public? Will other people apart from those two parties be able to see both their comments?
Rory Stewart
That remains to be determined by regulations introduced by the Lord Chancellor and is not included in the Bill.
Jo Stevens
Why not take the pragmatic approach and just leave it to the judges to decide? They are the experts. Why should a politician influence what is happening?
Rory Stewart
The answer goes to the core of the entire legislation. The proposed tariff recognises that what we are dealing with—or at least, what we believe we are dealing with—in relation to whiplash, with the peculiar anomalies since 2005 and the increase in whiplash claims, is not exclusively medical or legal, but has strong social and political dimensions in terms of insurance premiums and the cost to the public purse, which is why quite a lot of part 2 of the Bill deals with the NHS. The introduction of the tariffs is designed precisely to reduce the amount paid out in the specific case of general damages for minor whiplash injuries. Simply to stick with the judicial college guidelines would obviate the entire purpose of the Bill and undermine the medical, legal, social and political arguments that underlie the legislation.
Ellie Reeves
Under the proposals, an uplift would be allowed only if the whiplash injury was exceptionally severe or the circumstances were exceptional. Does that not hugely undermine the principle of judicial discretion and take away judges’ ability to assess cases and make appropriate awards for damages? The threshold in these proposals has to be far too high.
Rory Stewart
Clearly, a system of the sort we propose, which is modelled on the existing tariff systems in places such as France and Italy, is designed to set in law, through the actions of an accountable Minister, the level of the tariff. The argument is absolutely right. As the hon. Lady suggests, that will remove discretion from judges except in exceptional circumstances. The reasons for that are to do with our policy objective of dealing with the whiplash claim culture. Our intention is to reduce the damages paid for minor whiplash injuries, which are defined in the Judicial College guidelines as those that last less than two years. That will result in general damage payments lower than those currently awarded by judges. However, in exceptional circumstances, judges will be able to increase the award.
Gloria De Piero
What is the fear here? Is it that judges will make awards above the tariff set?
Rory Stewart
The Judicial College guidelines are simply a historical record of awards by the courts. It is a fact that those awards to date have been higher than the awards we propose in the tariff. The policy intention is to reduce the general damages paid, particularly for people at the three-to-six-month level. As we get closer to the two-year level, awards under the tariff come closer to the Judicial College guidelines, but at the lower end, as was suggested, there is a disagreement between the Government and the current practice of judges about the appropriate award for pain, suffering and loss of amenity.
There has been a lot of discussion about experts, but right hon. and hon. Members must remember that we are discussing general damages, not money for loss of earnings or to pay for physiotherapy. We are discussing a judgment of exactly how many pounds and pence someone should receive for a whiplash injury—for the subjective experience of pain in their neck or shoulder. It is difficult to argue that there is particular expertise on the question of the subjective experience of pain. Indeed, as the hon. Member for Enfield, Southgate suggested, it is impossible for anyone—whether they are a Minister, a judge or a doctor—to suggest that the money that is paid can remove the pain. The pain remains. Money paid in general damages is intended simply as an acknowledgement of the existence of pain, suffering or loss of amenity. It cannot, as would be the case with special damages, remove the pain itself. On that basis, I politely request that the amendments be withdrawn and the clause be accepted.
Gloria De Piero
We do not accept the Minister’s arguments, so will divide the Committee.
Question put, That the amendment be made.
Gloria De Piero
I beg to move amendment 19, in clause 6, page 5, line 37, after “injuries” insert—
“provided by an accredited medical expert selected via the MedCo Portal”.
This amendment, together with Amendments 20 and 21, would ensure that any medical evidence of a whiplash injury must in all cases be provided by a person registered on the MedCo portal website.
The Chair
With this it will be convenient to discuss the following:
Amendment 20, in clause 6, page 6, line 1, leave out subsection (3)
See explanatory statement for Amendment 19.
Amendment 21, in clause 6, page 6, line 22, at end insert—
‘(7) In this section, the “MedCo Portal” means the website operated by Medco Registration Solutions (company number 09295557) which provides a system for the accreditation of medical experts.’
See explanatory statement for Amendment 19.
New clause 3—“Recoverability of costs in respect of advice on medical report, etc.—
‘(1) For the purposes of civil procedure rules, the costs recoverable by a claimant who recovers damages in a claim for a relevant injury which is (or would be if proceedings were issued) allocated to the small claims track include the costs of the items set out in subsection (2).
(2) The items are—
(a) legal advice and assistance (including in respect of an act referred to in paragraph (a) or (d) of section 6(2)) in relation to the quantum of damages in the light of a medical report or other appropriate evidence of injury; and
(b) in a case where liability for the injury is not admitted within the time allowed by any relevant protocol, legal advice and representation in relation to establishing liability.
(3) For the purpose of ascertaining the amounts recoverable in respect of those items, the claim is to be treated as if it were allocated to the fast track.
(4) In this section “relevant injury” means an injury which is an injury of soft tissue in the neck, back, or shoulder, and which is caused as described in paragraphs (b) and (c) of section 1(4) (negligence while using a motor vehicle on a road, etc.), but does not include an injury in respect of which a tariff amount is for the time being prescribed under section 2.’
This new clause would ensure that a successful claimant is able to recover costs incurred for legal costs in respect of advice sought in relation to determining the quantum of damages following a medical report or the establishment of liability where it is in dispute.
Gloria De Piero
The amendments would ensure that any medical evidence of a whiplash injury must in all cases be provided by a person registered on the MedCo portal website. The Government say in clause 6 that cases should never be settled until the claimant has been medically examined. We fully agree, but amendments 19 to 21 would go even further. The Government say that the Lord Chancellor can decide what constitutes appropriate evidence, but it is very simple. The only form of appropriate evidence must come from a proper doctor registered as such on the portal website of MedCo, the umbrella organisation through which doctors in all personal injury cases are currently chosen. Why on earth would the Government not go through the currently accepted route for all other personal injury cases and the same process that insurers accept in every other case? The only people to gain from offers without a medical are defendant insurers who get cases off their books at an undervalue.
Lawyers for the claimant are obliged to put any offer to the client. Reputable lawyers will always advise against acceptance until there is a medical, but some clients are desperate and reject their advice. Unsurprisingly, and heartbreakingly, it tends to happen when a client’s sick pay runs out or perhaps near Christmas when people have been off sick and are desperate. Any downgrading of the requirement for a medical certificate by a medical registered doctor—this is the risk without the amendments —is just another way that vulnerable workers who have to take time off because of their injuries could be harmed by insurers who make record profits.
We suspect that the vagueness about what qualifies as proper medical advice might be an attempt to allow the use of physiotherapists for the evidence. Insurers have long pushed for that. Physiotherapists are great people doing wonderful work in an extremely important part of post-accident rehabilitation, but they are not doctors and are not able to assess and provide a long-term prognosis.
We fear that if we do not specify in the Bill who should provide the medical reports we will have injured people being prescribed a couple of sessions of physiotherapy and then being described by the insurers as malingering when they are not back to full health following the limited treatment, when in reality their condition might require far more intense rehabilitation efforts over a longer period. In some cases, the insurers might see a financial gain to employing a physiotherapist or owning a rehabilitation company. Without the amendments, that would suggest the insurers control not only the payment of damages, but the medical process leading to the award. Let us avoid that conflict. Let us trust doctors and specify where a medical report should come from. Any deviation from the gold standard of a medical doctor would negate the good that is done by effectively banning the settlement of whiplash claims without medical evidence, as this part of the Bill attempts to do.
On new clause 3, the Government say that the cases they intend to sweep into the small claims track are minor, straightforward and simple. We do not think that that is so, or that the injured claimant left on their own to fight insurance companies—let us be in no doubt that insurers will fight—will think that their cases are either small or simple. The new clause would ensure that, at the very least, when the injured person gets a medical report, as the Government in clause 6 rightly say they should, they can get independent legal advice on what the report means in terms of the value of their claim, so that, if they remain fighting on their own, they settle at an appropriate sum. How else would they know what their case is worth?
The Government might say that insurers will not rip people off and that they always pay what is fair. If that is the case, they have nothing to fear in ensuring that the injured get advice paid for that reassures them that that is the case. There is a societal benefit. If people settle at an undervalue or their conditions are not properly recognised, they will fall back on the state—the NHS or the benefits system—and the taxpayer will foot the bill that should properly have been met by the negligent party. The polluter will end up not paying and we will all pay through our taxes.
The same principle applies to cases where the insurers do not admit liability. The Government think that, when a claimant chooses to fight a case, the injured person will have the confidence to fight on. Facing a denial of liability, the claimant will, the Government think, be equipped to fight on, but, without help, we do not think they will be.
Rory Stewart
I very strongly support the basic principles and philosophy of amendments 19 to 21. I have huge respect for MedCo—right hon. and hon. Members will be aware that it is a non-profit portal designed to select at random an expert witness in order to testify in whiplash injury claims. I can reassure them that the intention is for MedCo to be the appropriate channel through which advice is sought.
The only reason we have not put MedCo on the face of the Bill is to provide for the eventuality that, in 20 or 30 years’ time, an entity other than Medico might exist— as hon. Members will see in clause 6(4), we are specifying the form of evidence, the person, the accreditation and the regulations. That was on the advice of counsel, which has had strong experience over the last century, that defining a non-profit on the face of the Bill could cause massive challenges if something unforeseen happens to it. We absolutely agree that MedCo is the appropriate body to use at the moment. All the arguments made by the Opposition are accepted, but on counsel advice, we respectfully advise that it would be better to allow flexibility rather than defining MedCo on the face of the Bill, and therefore ask them to withdraw those amendments.
New clause 3 argues for an individual to be able to reclaim their legal costs while pursuing their whiplash claim. This is a fundamental point of debate and disagreement, and goes against the fundamental principle of the small claims court, the idea of which is that an individual should be a litigant in person and not in a position to recover their legal costs. The argument made is that, under the level proposed—which in the case of certain kinds of damages is £10,000, in relation to whiplash would be £5,000 and in relation to personal injury could be as much as £2,000—we believe that the nature of the claims, particularly with a medical report in place, should be relatively straightforward. We have made some concessions about the online portal and the roll-out, all of which, we think, makes it inappropriate to ask for the reclaim of legal costs.
Ellie Reeves
Are we not going to be in exactly the same situation we were with employment tribunal fees? For people pursuing claims, fees, whether they are court fees, legal fees or medical costs, will put people off pursuing claims and therefore undermine their access to justice. The Government were called out on this by the Supreme Court regarding employment tribunal fees and we seem to be going back down the same route.
Rory Stewart
This will be entirely different. The disagreement is only about whether one can employ a lawyer and recover the cost of the lawyer. The individual will be able to recover from the insurer the medical costs on the report they got—for example if they spent £140 going through the MedCo portal. The small claims court cost of registering the claim would also be recoverable. However, in the vast majority of cases at the moment—we consider that this will be true in the future—cases do not go to court at all. In the vast majority of cases, a claimant will get a medical certificate, follow the path of the online portal and the settlement will come without them having to proceed to court.
Jo Stevens
The Minister’s impact assessment, which I referred to on Second Reading, explicitly states that the measure will affect the number of people who will bring cases, and that the number of cases will go down. Will he comment on that please?
Rory Stewart
Absolutely. The Government’s contention is that some of the cases currently being brought forward are fraudulent or exaggerated claims motivated by a desire to get a payout when either an injury has not been experienced or the injury experienced was considerably less than claimed in court. We believe that, by reducing the level of tariffs that paid out and by removing the industry of lawyers whose costs can currently be reclaimed through the process, it will be less likely that an individual who has not suffered an injury will go through the inconvenience of seeking a medical report, and less likely that they will proceed to the small claims court or go through the online portal to receive payment for an injury that did not occur. They would not be supported and encouraged by the legal profession or, more likely, claims management companies in proceeding down that path.
Jo Stevens
Will the Minister clarify? Is he saying that, although his impact assessment states that the number of cases will go down, the measure will apply only to fraudulent cases? Is he saying that no genuine victim of injury will not pursue a claim because they are not able to recover their costs?
Rory Stewart
The impact assessment, which is based on an enormous amount of expert evidence and discussion, boils down to a pretty straightforward assumption about human behaviour. Under the proposed new system, if someone has a car crash and injures themselves, they will proceed to their insurance company, register the fact that they have genuinely injured themselves, be directed towards MedCo, which would provide a report, go to the online portal and, in an effective, efficient and transparent fashion, proceed towards a predictable tariff based on their medical reports. If the medical reports say that the prognosis is six months, a fixed tariff would be paid out.
The experts’ contention is that, if someone has a car crash and genuinely nothing happens to them, it would be unlikely, in the absence of a claims management company encouraging them to do so, that they will tell the insurance company that they have a whiplash injury, or be coached to mislead a doctor in the MedCo process to get some kind of report suggesting they have a whiplash injury. Therefore, somebody who either did not experience an injury or experienced an injury so minor that they were not interested in pursuing compensation would not proceed. We believe that, under the current system, the practice of some claims management companies is to encourage people who either have not experienced an injury or have experienced a considerably more minor injury to make a fraudulent or exaggerated claim. We believe that those claims will be not entirely excluded but reduced.
Bambos Charalambous
Does the Minister accept that there has to be a hearing to settle children’s claims, and that infant settlements require representation? Children often sue their parents if there has been a road traffic accident that is no fault of their own. Will he consider exempting them from the scope of the Bill? They require solicitors, because there has to be a hearing for there to be a settlement.
Rory Stewart
Perhaps we can return to that very interesting point on Report. It has not been raised in any of the amendments tabled so far, but I would be very interested to see an amendment tabled and to discuss the matter outside this Committee.
On the basis of the arguments I have made about MedCo, I respectfully request that the Opposition withdraw amendments 19, 20 and 21.
Gloria De Piero
Will the Minister say a bit more about the advice he has received from counsel and about why he will not accept the amendments?
Rory Stewart
It is pretty straightforward. MedCo is a non-profit organisation set up relatively recently as a portal funded by the insurance industry. We intend the Bill, like any law we pass, to have sustainability and resilience. Potentially, it will last 50 or 100 years. It is very difficult, looking forward over that period, to be confident that the exact portal or organisation by which doctors qualify to provide an assessment of whiplash will be called MedCo—it may be called something else. The measure provides the flexibility, through regulations from the Lord Chancellor, to define the form of evidence, the person, the accreditation and the regulation necessary to proceed. We think it would give a hostage to fortune to put the brand name of a specific non-profit on the face of the Bill. On that basis, I request that amendments 19, 20 and 21, and new clause 3, be withdrawn.
Civil Liability Bill [ Lords ] (Second sitting)
Tuesday 11th September 2018
(6 years, 2 months ago)
Public Bill CommitteesRead Full debate Civil Liability Act 2018 View all Civil Liability Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 September 2018 - (11 Sep 2018)
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 9 - Question accordingly negatived.
The Chair
Members may remove their jackets if they wish. Will everyone ensure that their telephones are switched to silent? Tea and coffee are not allowed during sittings.
Clause 6
Rules against settlement before medical report
Amendment proposed (this day): 19, in clause 6, page 5, line 37, after “injuries” insert—
‘provided by an accredited medical expert selected via the MedCo Portal’.—(Gloria De Piero.)
This amendment, together with Amendments 20 and 21, would ensure that any medical evidence of a whiplash injury must in all cases be provided by a person registered on the MedCo portal website.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 20, in clause 6, page 6, line 1, leave out subsection (3).
See explanatory statement for Amendment 19.
Amendment 21, in clause 6, page 6, line 22, at end insert—
‘(7) In this section, the “MedCo Portal” means the website operated by Medco Registration Solutions (company number 09295557) which provides a system for the accreditation of medical experts.’
See explanatory statement for Amendment 19.
New clause 3—Recoverability of costs in respect of advice on medical report, etc.—
‘(1) For the purposes of civil procedure rules, the costs recoverable by a claimant who recovers damages in a claim for a relevant injury which is (or would be if proceedings were issued) allocated to the small claims track include the costs of the items set out in subsection (2).
(2) The items are—
(a) legal advice and assistance (including in respect of an act referred to in paragraph (a) or (d) of section 6(2)) in relation to the quantum of damages in the light of a medical report or other appropriate evidence of injury; and
(b) in a case where liability for the injury is not admitted within the time allowed by any relevant protocol, legal advice and representation in relation to establishing liability.
(3) For the purpose of ascertaining the amounts recoverable in respect of those items, the claim is to be treated as if it were allocated to the fast track.
(4) In this section “relevant injury” means an injury which is an injury of soft tissue in the neck, back, or shoulder, and which is caused as described in paragraphs (b) and (c) of section 1(4) (negligence while using a motor vehicle on a road, etc.), but does not include an injury in respect of which a tariff amount is for the time being prescribed under section 2.’
This new clause would ensure that a successful claimant is able to recover costs incurred for legal costs in respect of advice sought in relation to determining the quantum of damages following a medical report or the establishment of liability where it is in dispute.
Gloria De Piero (Ashfield) (Lab)
It is a pleasure to serve under your chairmanship, Sir Henry. The Minister had just concluded his remarks, and I had started to say that we would press the amendments in the group to a Division.
Question put, That the amendment be made.
Gloria De Piero
I beg to move amendment 17, in clause 8, page 7, line 15, at end insert—
‘(4A) The Treasury must, within one month of the passing of this Act, make regulations specifying that the Financial Conduct Authority is to require all insurers holding a licence to offer UK motor insurance to publish a report—
(a) on the loss cost savings achieved as a result of the provisions of Part 1 of this Act; and
(b) how, and the extent to which, such savings have been applied to reduce motor insurance premiums.
(4B) The first such report from insurers must cover the period of 12 months beginning with the first day of the month immediately after the commencement of Part 1 of this Act and must be sent to the Financial Conduct Authority by the end of the period of 15 months beginning with the commencement of Part 1 of this Act.
(4C) The Financial Conduct Authority will require further annual reports.
(4D) The Financial Conduct Authority, within the period of 18 months after the commencement of Part 1 of this Act, must make and publish a reasoned assessment of whether it is satisfied that every insurer covered by this section is passing on to customers any loss cost savings made by those insurers arising from Part 1 of this Act.
(4E) Regulations made under subsection (4A) must make provision for the Treasury to grant powers to the Financial Conduct Authority to enforce a requirement for insurers to pass on loss cost savings, achieved as a result of the provisions of Part 1, from insurers to consumers through a reduction in the cost of premiums if, after the period of 30 months following the commencement of this section, the Financial Conduct Authority advises the Treasury that such powers are necessary.”
This amendment would require the Financial Conduct Authority to require insurers to report on the savings they have made as a result of this Bill and the extent to which such savings have been passed on to insurance consumers.
The Chair
With this it will be convenient to discuss the following:
Government new clause 2—Report on Effects of Parts 1 and 2.
New clause 6—Passing on savings made by insurers.
‘(1) Any savings made by any insurer as a result of anything in this Act or associated changes by regulation shall be passed to policyholders by way of reduced premium.
(2) The Financial Conduct Authority shall require all such insurers to submit an annual report detailing the savings they have made and how all those savings have been used to reduce policyholder premiums.
(3) In this section—
“savings” means any reduction in an insurer’s outlays in damages or costs paid in personal injury claims from the time this Act receives Royal Assent;
“insurer” means any insurer holding a licence to offer UK motor insurance;
“policyholder” means the holder of a policy of motor insurance with the insurer;
“premium reduction” means a reduction in the annual cost of a policy of motor insurance taken out by a policyholder.”
This new clause would require insurers to pass on to insurance consumers all savings made as a result of these changes.
Government amendments 5 and 6.
Gloria De Piero
Amendment 17 would require insurers to report on whether savings have been passed on to consumers. New clause 6 would require insurers to pass on all savings as a result of the changes to consumers. Unlike the Government’s over-wordy, over-complicated new clause 2, which I will discuss shortly, amendment 17 and new clause 6 are straightforward. They would require the Financial Conduct Authority to insist that insurers report on the savings they have made as a result of the Bill, and the extent to which such savings have been passed on to policy holders. There are no caveats, no get-outs—it is a straight-line requirement to do the right thing.
The Bill is the latest in a long line of Government handouts to the insurance industry. Back in 2012 in a closed-door meeting at No. 10, the insurers—in return for being able to set the fixed costs in the new fast track that the new Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced—promised to reduce insurance premiums. Since then, insurers have saved more than £11 billion; those are Association of British Insurers figures, not my own. As the Minister must concede, motor insurance premiums are higher now than they were then. So much for those promises.
In the Bill, the Government have, again, swallowed hook, line and sinker the insurers’ promises that they will reduce premiums. History is repeating itself. Insurers are making record profits: Direct Line’s profits in 2017 jumped by 52% to £570 million and Aviva recorded a profit of £1.6 billion. No, that is not all motor related, but in the case of Direct Line it will largely be so.
Meanwhile, insurer CEOs are on multimillion pound packages—Paul Geddes from Direct Line and Mark Wilson from Aviva made more than £4.3 million each in 2017. We are now discussing measures that will save the insurers £1.3 billion a year. Of that, the insurers might—if the wind is blowing in the right direction and none of the ludicrously large get-out clauses in new clause 2 apply—hand across up to 80%. Notably, the cuts to insurance premiums of £35 a year, which insurers are promising now, are much lower than the previous estimates of £50 per year promised in the Prisons and Courts Bill. The Government represent a party that claims to oppose red tape: here is a chance for them to avoid it. Let us have a simple clause that does what it says on the tin.
That leads me to Government new clause 2, which is as full of red tape as it is holes. Perhaps my most fundamental question to the Minister is this: what is wrong with the word “will”? The new clause is peppered with the word “may”. If the Government are genuinely committed to ensuring that savings are passed to consumers, why do they not insist that that happens? Paragraph 3 includes provision for all kinds of ways in which, by regulation, insurers should provide information. Is there any reason why that information should not be made publicly available?
Paragraph 4 is a catalogue of reasons why insurers could wheedle out of being transparent and evade passing on the very substantial savings that the Government’s impact assessment makes clear they will be making. The truth is that all the Government have managed to extract from the insurers, who stand to gain massively from this Bill, is a vague promise that they will pass on savings.
Embarrassed by the lack of hard evidence for a commitment, the Government have tabled this new clause, which is riddled with get-outs and opportunities for insurers to worm their way out of the flimsy commitments they have made. We know—and if the Government are honest, so do they—that insurers will seek to avoid paying the savings that they make back to policy holders. That is what happened when they last made promises in 2012. Given the weakness of the new clause, that is what will happen again.
In truth, the Government have rolled over and the new clause is simply a fig leaf to cover their embarrassment. The answer, I suggest, is to include a simple clause that—and I use a phrase from Conservative Back Benchers on Second Reading—will
“hold the insurance industry’s feet to the fire.”—[Official Report, 4 September 2018; Vol. 646, c. 111.]
Our new clause would mean that any savings made by any insurer as a result of anything in this Act, or associated regulation, will be passed to policy holders by way of reduced premiums. What could be simpler? The Minister may notice that our proposed new clause quite deliberately refers to
“savings made…as a result”
of changes by this regulation.
The Government have refused to include in the Bill the small claims changes that they propose; we will come back to that issue later in our other amendments. What is crucially different between the Government’s new clause 2 and our new clause 6 is that our new clause is not only simpler but mentions the savings that insurers will make from the small claims changes.
In calculating the £1.3 billion in savings that the insurers will make every year, the Government’s impact assessment includes the savings created by the increase in the small claims limit as a result of the so-called wider package of measures. For the Government not to include the savings made from the small claims limit changes in their new clause 2 renders it virtually worthless, and undermines their much-vaunted and fundamental promise that motor insurance premiums will drop by £35 a year.
David Hanson (Delyn) (Lab)
It is a pleasure to serve under your chairmanship today, Sir Henry.
I know it is a long time ago, but I will take the Committee back, if I may, to 25 November 2015, when George Osborne, as he is now known, was the Member for Tatton and serving as Chancellor of the Exchequer. At that time, he said—it was recorded in Hansard:
“We will bring forward reforms to the compensation culture around minor motor accident injuries, which will remove… £l billion from the cost of providing motor insurance.”
And here is the crucial bit:
“We expect the industry to pass on this saving, so that motorists see an average saving of £40 to £50 per year off their insurance bills.”—[Official Report, 25 November 2015; Vol. 602, c. 1367.]
When this Bill was introduced to the House of Lords and subsequently to this place, the Ministry of Justice’s impact assessment indicated at first that the figure would now be £40, not £50—not between £40 and £50, but £40. However, when the general election was fought last year, the figure had miraculously gone from £40 to £35.
In October last year, one of the insurance companies that the Minister in another place, Lord Keen of Elie, has been fond of quoting—Liverpool Victoria or LV=—spoke. Caroline Johnson, director of third party and technical claims at LV=, spoke at the Motor Accident Solicitors Society’s annual conference in Sheffield, which must have been an important place to say this; it was not just said off the cuff, but at the conference. She said, “The £35 may or may not be achievable”.
I ask my first question today in support of the new clause tabled by my hon. Friend the Member for Ashfield and to start the testing of the Minister’s new clause. In his response, can the Minister give the latest Government assessment of what the £50/£40/£35/possibly-not-achievable £35 is as of today? We are expected to take on trust the figures that he has given.
There is no doubt that the insurance companies will save £1.3 billion a year. That figure has been accepted by the Government and the insurance companies, and I suspect that it will be cited again—not only by my hon. Friend the Member for Ashfield, but by others who will say that it is the saving, the prize, that the Government seek. My concern is not the insurance companies and the £1.3 billion; my concern is how much, if there are savings to be made in the areas we are concerned about, of that £1.3 billion will land in the pockets of those individuals who would then have lower premiums as a result.
I am very pleased to sit on the Justice Committee, just as I was very pleased to sit coterminously this morning with this Committee; I have to say that was very interesting. The Justice Committee carried out an investigation into this area and came to a conclusion as a whole—it was not just the Labour members of that Committee. It is chaired by the hon. Member for Bromley and Chislehurst (Robert Neill), who is a Conservative; it has a Conservative majority; and it has unanimous support for the recommendations it made in this very area. The Committee said:
“As obtaining insurance involves a commercial transaction with a private sector body...there is little that the Government can do to enforce lower premium rates without significant change to present policies.”
My question to the Minister is about his proposed new clause 2. There is something I cannot find in it—it may be hidden in there within the legalese—but, if it is, could he please put it in simple language for the Committee? What happens if this investigation proves that the insurance companies have made a saving of anything between nothing and £1.3 billion? What steps will the Government take at that stage to enforce their policy objective of ensuring that £50/£40/£35/possibly £35 goes into the pockets of individuals who pay the insurance companies?
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Is it not the case that the best time for an assessment to be made would be in the first year following the changes—not years down the line?
David Hanson
My hon. Friend makes a valid point; it is one I had not thought of and I am grateful to him for bringing that to the Committee’s attention. If this saving is going to be made, it would be sensible to say whether it is made early on, because downstream, as my hon. Friend indicated, there will no doubt be a tapering.
To be honest with the Committee, the Minister is only proposing new clause 2 because he got done over in the other place by Members of the House of Lords and could not get the Bill through the House of Lords without this new clause. He got done over in the other place because the Justice Committee unanimously called for
“the Financial Conduct Authority to monitor the extent to which any premium reductions can be attributed to these measures and report back to us after 12 months.”
I go back to the all-party Justice Committee, chaired by a Conservative MP, with a Conservative majority, which said in its report on this Bill that there should be a report within 12 months. We have been helpfully reminded by my hon. Friend the Member for Brighton, Kemptown why we suggested that at the time: because we wanted to see the impact within 12 months.
On the amendment tabled by Lord Sharkey in the House of Lords, Lord Keen, the Minister dealing with this in the other place, said on Report:
“the Government are not unsympathetic to the underlying intention of Amendment 46, as tabled by the noble Lord, Lord Sharkey. The point is that having made a firm commitment, insurers should be accountable for meeting it.”—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1632.]
That is what this Minister’s colleague said in the House of Lords, and I do not disagree with it. I only say to the Minister that April 2024 seems a tad far in the future to secure the proposals that he is putting to the Committee today.
The Minister needs to say firmly to the Committee what he anticipates the savings to be now, how he will monitor what the insurance companies are making—not just now, but in the next five years—and how he will hold the insurance companies to account. How will he ensure that, whatever date we end up with—be it 1 April 2024 or, if the amendment of my hon. Friend the Member for Ashfield is accepted, as I hope it will be, an earlier date—they meet their obligations and give the money back to the people who are funding it in the first place?
The Minister of State, Ministry of Justice (Rory Stewart)
It is a great honour to serve under your chairmanship, Sir Henry. I am grateful to right hon. and hon. Members for bringing proposing the amendments and new clauses.
Effectively, as the right hon. Member for Delyn has pointed out, new clause 2 was introduced with a lot of influence from the House of Lords—it was driven by Opposition Members of the House of Lords to meet exactly the concerns raised by right hon. and hon. Members. Therefore, I am tempted to argue in my brief argument that amendment 17 and new clause 6 are, in fact, unnecessary. The noble Lords did a good job in new clause 2 of addressing many of the concerns raised in the debate, which is why the Government are keen to ask for the Committee’s support.
At the heart of this, the Committee will discover, is a fundamental disagreement about the nature of markets, which will be difficult to resolve simply through legislation. There are profoundly different views on both sides of the House about what exactly is going on in a market. Again and again, all the arguments—from the hon. Member for Jarrow (Mr Hepburn) right the way through to the eloquent speech by the right hon. Member for Delyn—rest on the fundamental assumption that every company, insurance or otherwise, in the country is simply involved in trying to charge their consumers as much as possible and provide as few services as possible, and that there is nothing to prevent their doing that.
Of course, what prevents companies from doing that ought to be competition. It does not matter whether that is the insurance industry or, to take a more straightforward question, why Tesco’s does not charge £50 for a loaf of bread and try to produce one slice. In the end, the decision on what premiums are charged will be driven by competition between different insurance companies. All the arguments, whether in relation to these or other amendments, are based on that fundamental misunderstanding. The Labour party is again effectively pushing for a prices and incomes policy. They are trying to get the Government to fix the prices of premiums and control the prices that insurance companies charge because they simply do not trust the Competition and Markets Authority, the FCA, the insurance industry or any other business to pass on savings to consumers.
David Hanson
With respect to the Minister, in this case the Labour party is just asking for confirmation of what the Government want to do. They said that they want to save £1.3 billion, and in November 2015 said that they would give back £50 as premiums. That figure has changed. All I am asking is this: what is their estimate of the figure today? The Minister should be able to give an estimate because he has done so on two previous occasions—in an assessment of the Bill’s financial implications in the Conservative party manifesto, and in the Chancellor’s statement to the House of Commons.
Rory Stewart
Unfortunately, something is being missed in the way the right hon. Gentleman is framing his arguments. He is suggesting that there is a fixed, stable situation—the Chancellor of the Exchequer offered £50, nothing changed, and now it is £35. If that were true, it would indeed be a disgrace, but the reality is that, following the negotiations that took place in the consultation and in the House of Lords, the savings that the insurance companies will realise and will be in a position to pass on to the man or woman paying the premium have been considerably reduced.
When the Chancellor of the Exchequer—[Interruption.] The right hon. Gentleman might be interested in listening to the answer rather than talking to somebody else. When the Chancellor of the Exchequer spoke, he of course suggested that all general damages would be entirely removed. His proposal was that there would be no general damages at all. It is therefore perfectly reasonable. If no general damages at all were paid, the insurance company’s savings would be considerably larger, and the savings passed on to the consumer might indeed have been £50.
Due to the very good work that the Opposition and the noble Lords put in, there have been a number of compromises to the Bill, which mean that the savings passed on to the insurers, and from the insurers in the form of premiums, will be considerably reduced. One of those compromises is that, whereas in the past there were going to be no general damages paid to anybody getting a whiplash injury of under two years, there is now a tariff for money to be paid out. As it gets closer to two years, the tariffs paid out will be much closer to the existing Judicial College guidelines, so the savings will be considerably less.
Bambos Charalambous (Enfield, Southgate) (Lab)
We have been here before with the Domestic Gas and Electricity (Tariff Cap) Act 2018, in which the Government fixed the energy price cap and said that the big energy companies would give money back to the consumers, even though the money is not as high as we expected. Then it was £100, and now it is about £70. Why does the Minister not want to do that with insurance companies?
Rory Stewart
That is a very good question. The hon. Gentleman and the right hon. Member for Delyn are essentially asking the same question. Indeed, that is what this whole debate is about. The question is about the extent to which the Government wish to interfere in the market to fix prices. As the hon. Member for Enfield, Southgate suggested, a very, very unusual and unprecedented decision was made about the energy companies following a suggestion originally made by the Labour party that we should get involved in fixing prices. That is something about which, from a policy point of view, we generally disagree with Labour because—this deep ideological division between our two parties goes back nearly 100 years—we are a party that fundamentally trusts the market.
The Financial Conduct Authority and the Competition and Markets Authority argue that the insurance companies are operating in a highly competitive market. The reason why we did not initially suggest that we need to introduce anything equivalent to new clause 2 is precisely that we believe that the market is operating well, and that the savings passed on to the insurance companies will be passed on to the consumers, as happens in every other aspect of the market. I have not yet heard a strong argument from the Opposition about why they believe that not to be the case. Logically, Opposition Members can be making only one argument: they must somehow be implying that the insurance companies are operating in an illegal cartel.
Rory Stewart
I give way to hear why the Opposition believe that is not the case.
Jo Stevens
The Minister has said that the Opposition want to fix the market and prices. He also mentioned trust, which is exactly what this is about, because we have been in this situation before. Previously, insurers promised to return savings to consumers and did not. Why is it different this time? Why does the Minister think we can take insurers at their word this time when they have not returned savings previously?
Rory Stewart
Recent evidence on the cost of motor premiums shows that, after the implementation of the last set of reforms, there was a flattening off in the increase in the insurance premiums that was lower than inflation. The reason we believe this mechanism works—this was all part of the evidence put forward by the Competition and Markets Authority—is that it is a very mobile market. Currently, 72% of policyholders have switched their motor insurance provider—it is not a static market where people do not move between providers, which gives a very strong incentive to compete on the premiums. Fifty per cent. of insurance customers are going to comparison websites to compare the premium prices.
Gloria De Piero
Does the Minister accept that, since the changes made in 2012, insurance companies have saved £11 billion?
Rory Stewart
I am not in a position to accept or reject that figure—I am not familiar with that figure and I am not clear how it has been arrived at. I am happy to look at that in more detail before Report stage of the Bill.
Craig Tracey (North Warwickshire) (Con)
The Minister mentioned the reforms of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but is it not right that, in the two years following those reforms, insurers passed on £1.1 billion of savings, and that average premiums dropped by £50?
Rory Stewart
Again, the Competition and Markets Authority is our best guide. Its job is to look very closely at the operations of its industry. It believes that this is a very competitive industry, which is why it is confident that the reforms introduced led to savings that were passed on to customers and why it believes that the current reforms will lead to the same. If that does not happen, it would be interesting to hear Labour Members’ theories about why competition is not operating in this market and why they believe there is a cartel. If that is the argument they wish to make, they will be assisted and not impeded by the Government new clause, which will enable them to gather the information with the Treasury and the Financial Conduct Authority in order to make precisely that case.
Jo Stevens
Perhaps I can help the Minister on the figure that my hon. Friend the Member for Ashfield mentioned—the £11 billion of savings after the 2012 changes. That is an Association of British Insurers figure. That figure was saved in claims costs over six years, according to its evidence, but premiums are now higher than ever.
Rory Stewart
I will return to the fundamental disagreement between right hon. and hon. Members. We can all agree that there were significant savings to the insurance industry. We can all agree that some of those savings were passed on to customers and that premiums ceased to rise at the rate at which they had been. There is some disagreement between the two sides of the House about whether enough of those savings were passed on—we argue that the industry passed on sufficient savings—and whether premiums went up more than they should. However, without Government new clause 2, the evidence or information will not be available to people in order to make such arguments.
It is not enough to produce a general figure, saying, “Here is £11 billion, and this is how much was passed on in premiums.” That is why the new clause has no less than 11 subsections that detail the kind of data that would need to be extracted from the insurance industry by the date recommended in order to prove that case. I was asked why reporting would not be done annually. The answer, of course, is that a claim can be brought any time within three years of an accident. The date takes into account that the law is due to come into effect in 2020. We add three years to that for the claim, and then time for the data and evidence gathering in order to report in 2024.
David Hanson
If the Bill comes into effect in 2020 and we add three years, that is 2023. However, new clause 2(7) says:
“Before the end of a period of one year beginning with 1 April 2024”.
That means that the report may not be done until the end of March or April 2025. It may be published by the Government after that, and then there will be discussion. Therefore, even on the Minister’s timetable, we are talking about three years past the 2023 deadline that he indicated to the Committee a moment ago. He should reflect on that and table an amendment to his new clause on Report that brings forward the proposed date considerably.
Rory Stewart
The reason why I respectfully request that the Government amendments are supported and the Opposition amendments are withdrawn is that pushing for one-year rather than three-year reviews and attempting to price fix the result would leave the opposition amendments open to judicial review and create an enormous, unnecessary burden on the market. Our contention is that the market already operates—we have the Competition and Markets Authority to argue that that is the case—and, by introducing our new clause, we will be able to demonstrate that over time. It is a very serious thing.
I remain confident that, if insurance companies are compelled to produce such a degree of detail and information to the Financial Conduct Authority and the Treasury, they will pass on those savings to consumers because, were they not to, they would be taking a considerable legal risk. The industry initially resisted this move, and understands that it is a serious obligation.
Ruth George (High Peak) (Lab)
As the Minister said, the insurance companies have said that they will pass savings on to consumers, and the Government have been actively engaged in trying to ensure that all insurance companies sign up to a pledge to reduce premiums, which in itself is a way of fixing the market. However, if it will take insurance companies seven years from now to produce the information, from what date will premiums be reduced? When will consumers see payback from the policy?
Rory Stewart
We would expect, because of the nature of competition, for premiums to begin to reduce soon—almost immediately—as insurance companies anticipate the nature of the changes and move to drop premiums to compete with each other and attract new customers. In fact, following legislation in 2012, premiums dropped from £442 in 2012 to £388 in 2015.
Ruth George
If the Minister expects premiums to drop so soon, why can the Government not report to the House on those premiums dropping?
Rory Stewart
The premiums dropping will be assessed and published in the normal fashion. The requirement in new clause 2 is much more complex. The new clause requires a prodigious amount of information about all forms of income streams, the number of claims and the number of premium holders so the Treasury and the Financial Conduct Authority can develop a sophisticated and detailed picture in order accurately to address the concerns of Opposition Members that, over the period—particularly the three-year period that will be affected by the introduction of the Bill—insurance companies will not pass on savings to consumers. We believe they will, which is why we are comfortable pushing for this unprecedented step of gathering that information to demonstrate that the market works.
On that basis, I politely request that the Opposition withdraw their amendments and support Government new clause 2, which after all was brought together by Opposition Members of the House of Lords and others, and which achieves exactly the objectives that the Opposition have set out.
Gloria De Piero
The Minister talked a lot about where the Committee disagrees, but there are things we can all accept as fact—the facts that insurance profits are up massively and that these changes will save insurance companies £1.3 billion, for instance—and we all want premiums to come down. We believe only amendment 17 and new clause 6 will deliver that, so we seek to divide the Committee.
Question put, That the amendment be made.
Ellie Reeves (Lewisham West and Penge) (Lab)
I beg to move amendment 24, in clause 10, page 9, line 20, leave out from “SCHEDULE A1” to end of page 14, and insert—
“SCHEDULE A1
Assumed Rate Of Return On Investment Of Damages: England And Wales
Periodic reviews of the rate of return
1 (1) The Lord Chancellor must instruct the expert panel to review the rate of return periodically in accordance with this paragraph.
(2) The first review of the rate of return must be started within the 90 day period following commencement.
(3) Each subsequent review of the rate of return must be started within the 5 year period following the last review.
(4) It is for the Lord Chancellor to decide—
(a) when, within the 90 day period following commencement, a review under sub-paragraph (2) is to be started;
(b) when, within the 5 year period following the last review, a review under sub-paragraph (3) is to be started.
(5) In this paragraph—
‘90 day period following commencement’ means the period of 90 days beginning with the day on which this paragraph comes into force;
‘5 year period following the last review’ means the period of five years beginning with the day on which the last review under this paragraph is concluded.
(6) For the purposes of this paragraph a review is concluded on the day when the Lord Chancellor makes a determination under paragraph 2 as a result of the review.
Conducting the review
2 (1) This paragraph applies when the Lord Chancellor is required by paragraph 1(2) or (3) to instruct the expert panel to conduct a review of the rate of return.
(2) The Lord Chancellor must instruct the expert panel to review the rate of return and determine whether it should be—
(a) changed to a different rate, or
(b) kept unchanged.
(3) The expert panel must conduct that review and make that determination within the 140 day review period.
(4) When deciding what response to give to the Lord Chancellor under this paragraph, the expert panel must take into account the duties imposed on the Lord Chancellor by paragraph 3.
(5) During any period when the office of Government Actuary is vacant, a reference in this paragraph to the Government Actuary is to be read as a reference to the Deputy Government Actuary.
(6) In this paragraph ‘140 day review period’ means the period of 140 days beginning with the day which the Lord Chancellor decides (under paragraph 1) should be the day on which the review is to start.
Determining the rate of return
3 (1) The expert panel must comply with this paragraph when determining under paragraph 2 whether the rate of return should be changed or kept unchanged (‘the rate determination’).
(2) The expert panel must make the rate determination on the basis that the rate of return should be the rate that, in the opinion of the expert panel, a recipient of relevant damages could reasonably be expected to achieve if the recipient invested the relevant damages for the purpose of securing that—
(a) the relevant damages would meet the losses and costs for which they are awarded;
(b) the relevant damages would meet those losses and costs at the time or times when they fall to be met by the relevant damages; and
(c) the relevant damages would be exhausted at the end of the period for which they are awarded.
(3) In making the rate determination as required by sub-paragraph (2), the expert panel must make the following assumptions—
(a) the assumption that the relevant damages are payable in a lump sum (rather than under an order for periodical payments);
(b) the assumption that the recipient of the relevant damages is properly advised on the investment of the relevant damages;
(c) the assumption that the recipient of the relevant damages invests the relevant damages in a diversified portfolio of investments;
(d) the assumption that the relevant damages are invested using an approach that involves—
(i) more risk than a very low level of risk, but
(ii) less risk than would ordinarily be accepted by a prudent and properly advised individual investor who has different financial aims.
(4) That does not limit the assumptions which the expert panel may make.
(5) In making the rate determination as required by sub-paragraph (2), the expert panel must—
(a) have regard to the actual returns that are available to investors;
(b) have regard to the actual investments made by investors of relevant damages; and
(c) make such allowances for taxation, inflation and investment management costs as the expert panel thinks appropriate.
(6) That does not limit the factors which may inform the expert panel when making the rate determination.
(7) In this paragraph ‘relevant damages’ means a sum awarded as damages for future pecuniary loss in an action for personal injury.
Determination
4 When the expert panel makes a rate determination, the expert panel must give reasons for the rate determination made.
Expert panel
5 (1) For each review of a rate of return, the Lord Chancellor is to establish a panel (referred to in this Schedule as an ‘expert panel’) consisting of—
(a) the Government Actuary, who is to chair the panel; and
(b) four other members appointed by the Lord Chancellor.
(2) The Lord Chancellor must exercise the power to appoint the appointed members to secure that—
(a) one appointed member has experience as an actuary;
(b) one appointed member has experience of managing investments;
(c) one appointed member has experience as an economist;
(d) one appointed member has experience in consumer matters as relating to investments.
(3) An expert panel established for a review of a rate of return ceases to exist once it has responded to the consultation relating to the review.
(4) A person may be a member of more than one expert panel at any one time.
(5) A person may not become an appointed member if the person is ineligible for membership.
(6) A person who is an appointed member ceases to be a member if the person becomes ineligible for membership.
(7) The Lord Chancellor may end an appointed member’s membership of the panel if the Lord Chancellor is satisfied that—
(a) the person is unable or unwilling to take part in the panel’s activities on a review conducted under paragraph 1;
(b) it is no longer appropriate for the person to be a member of the panel because of gross misconduct or impropriety;
(c) the person has become bankrupt, a debt relief order (under Part 7A of the Insolvency Act 1986) has been made in respect of the person, the person’s estate has been sequestrated or the person has made an arrangement with or granted a trust deed for creditors.
(8) During any period when the office of Government Actuary is vacant the Deputy Government Actuary is to be a member of the panel and is to chair it.
(9) A person is ‘ineligible for membership’ of an expert panel if the person is—
(a) a Minister of the Crown, or
(b) a person serving in a government department in employment in respect of which remuneration is payable out of money provided by Parliament.
(10) In this paragraph ‘appointed member’ means a person appointed by the Lord Chancellor to be a member of an expert panel.
Proceedings, powers and funding of an expert panel
6 (1) The quorum of an expert panel is four members, one of whom must be the Government Actuary (or the Deputy Government Actuary when the office of Government Actuary is vacant).
(2) In the event of a tied vote on any decision, the person chairing the panel is to have a second casting vote.
(3) The panel may—
(a) invite other persons to attend, or to attend and speak at, any meeting of the panel;
(b) when exercising any function, take into account information submitted by, or obtained from, any other person (whether or not the production of the information has been commissioned by the panel).
(4) The Lord Chancellor must make arrangements for an expert panel to be provided with the resources which the Lord Chancellor considers to be appropriate for the panel to exercise its functions.
(5) The Government Actuary’s Department, or any other government department, may enter into arrangements made by the Lord Chancellor under sub-paragraph (4).
(6) The Lord Chancellor must make arrangements for the appointed members of an expert panel to be paid any remuneration and expenses which the Lord Chancellor considers to be appropriate.
Application of this Schedule where there are several rates of return
7 (1) This paragraph applies if two or more rates of return are prescribed under section A1.
(2) The requirements—
(a) under paragraph 1 for a review to be conducted, and
(b) under paragraph 2 relating to how a review is conducted, apply separately in relation to each rate of return.
(3) As respects a review relating to a particular rate of return, a reference in this Schedule to the last review conducted under a particular provision is to be read as a reference to the last review relating to that rate of return.
Interpretation
8 (1) In this Schedule—
‘expert panel’ means a panel established in accordance with paragraph 5;
‘rate determination’ has the meaning given by paragraph 3;
‘rate of return’ means a rate of return for the purposes of section A1.
(2) A provision of this Schedule that refers to the rate of return being changed is to be read as also referring to—
(a) the existing rate of return being replaced with no rate;
(b) a rate of return being introduced where there is no existing rate;
(c) the existing rate of return for a particular class of case being replaced with no rate;
(d) a rate of return being introduced for a particular class of case for which there is no existing rate.
(3) A provision of this Schedule that refers to the rate of return being kept unchanged is to be read as also referring to—
(a) the position that there is no rate of return being kept unchanged;
(b) the position that there is no rate of return for a particular class of case being kept unchanged.
(4) A provision of this Schedule that refers to a review of the rate of return is to be read as also referring to—
(a) a review of the position that no rate of return is prescribed;
(b) a review of the position that no rate of return is prescribed for a particular class of case.”
This amendment would require that the discount rate was set by the expert panel, not the Lord Chancellor.
The Chair
With this it will be convenient to discuss the following:
Amendment 22, in clause 10, page 10, line 13, at end insert—
“( ) the expert panel established for the review;”
This amendment, together with Amendment 23, would require the Lord Chancellor to consult the expert panel before the initial discount rate determination, rather than just the subsequent ones as currently required.
Amendment 23, in clause 10, page 10, line 21, at end insert—
“( ) The expert panel must respond to the consultation within the period of 90 days beginning with the day on which its response to the consultation is requested.”
See explanatory statement for Amendment 22.
New clause 5—Review of assumptions on which calculation of the personal injury discount rate is based—
“(1) Within 3 years from the date on which this Schedule comes into force, the Lord Chancellor must arrange for the expert panel to review the assumptions on which the personal injury discount rate is based, and review how investors of relevant damages are investing such damages.
(2) The review must report to the Lord Chancellor whether the assumptions on which the personal injury discount rate is based should be changed and set out recommendations.”
This new clause would require the Lord Chancellor to arrange for the expert panel to conduct a review of the assumptions on which the discount rate is based in light of how claimants are in practice investing their compensation.
Clause stand part.
Ellie Reeves
The personal injury discount rate is a pivotal part of the compensation process. It must be carefully reviewed, calculated and set. The rate is critical as it helps to determine what an injured person receives following what can often be life-changing injuries. Damages are paid to individuals, usually as a lump sum, to account for the losses caused by an injury. The level at which the personal injury discount rate is set is based on assumptions about the risk of the recipient’s investment of the damages they are awarded, which helps to ensure that any future market fluctuations are accounted for. The rate ensures that recipients ultimately receive the level of compensation that was intended and do not enter a state of extreme over or under-compensation.
The need for the rate to be set correctly is clear. An individual involved in a major car crash who breaks their back and may as a result never work again might need to adapt their home and pay for care, and might have loss of earnings. When they receive their compensation as a lump sum, they would need to invest it. At present, injured individuals are treated as very risk-averse investors, rightly so given the impact that a major injury would likely have on one’s perception of risk. Also, they are not investors looking at the stock market. Their future quality of life depends on ensuring that they have enough money to live on and to provide important care. It is therefore imperative that the rate is set at the correct level to ensure that compensation awards are delivered as intended—based on the risk of the investments that the sums are put in.
Bambos Charalambous
Let us be clear what we are talking about with the discount rate: damages for people who have suffered catastrophic, life-changing injuries. The lump sum they receive is to last them their entire life and is to pay for urgent treatments, care, support, adaptations—a whole host of things. We need to be very careful how we deal with this, as very small variations in the discount rate can have serious impacts.
As an example, I have been advised by a leading law firm that it settled a claim in 2015 for a client in her 30s who suffered cardiac arrest and irreparable brain damage due to negligence. She was awarded £9.95 million when the discount rate was 2.5%. That award was to pay for extensive medical treatments, childcare and live-in carers for the rest of her life. Had the claim been settled in 2017, when the discount rate was changed to -0.75%, it would have resulted in a settlement of £20 million.
Such cases are relatively few in number, but when they do occur, we must make sure that they are dealt with as precisely as possible, without leaving such large fluctuations to chance. We would all agree that the time between the setting of the two discount rates was far too long. I very much support a shorter period of time for that to take place. Someone who receives such a lump sum would surely choose to invest it in as low risk a manner as possible—they would not want any risk if possible—because it has to last them their entire life. The discount rate should be set on the basis that the investment will be very low risk.
In setting the discount rate, the Lord Chancellor is given wide-ranging discretion. That opens up potential for other factors to influence the Lord Chancellor, which could adversely impact the compensation received by someone who has suffered catastrophic injuries. We need to be clear about the reasons why the Lord Chancellor will be setting the rate. As my hon. Friend the Member for Lewisham West and Penge mentioned, the Justice Committee recommended setting up an independent panel of experts to advise the Lord Chancellor on setting the rate. It also recommended that the panel’s advice be published in full. The Bill has removed that transparency. I have grave concerns about the reasons for that and how the rate will be set. We need to know how the rate has been set. When the Bank of England sets interest rates, it has a panel of experts and it gives reasons why. A similar system should apply here.
I support the amendments and new clause. It would be right and proper for the power to be taken away from the Lord Chancellor and for the rate to be set by an independent panel of experts, at regular periods.
Rory Stewart
I have enormous sympathy for the amendments, in particular the arguments on amendments 24, 22 and 23. As the hon. Member for Lewisham West and Penge and the hon. Member for Enfield, Southgate have clarified, we are dealing here with people who have suffered catastrophic, life-changing injuries and we have a very particular responsibility, particularly since some of those people can be immensely vulnerable. They can include children who have catastrophic, life-changing injuries. We all have an obligation to ensure that the principle of 100% compensation is met.
The discount rate can seem a slightly technical mathematical formula. It is there to try to hedge effectively against inflation and the expected rate of investment returns in setting an award. As the hon. Member for Enfield, Southgate pointed out, a shift in the discount rate could mean a difference between an award of £10 million and an award of £20 million—a very significant difference.
In setting the discount rate, our first obligation has to be to the very vulnerable individuals who have suffered a catastrophic or life-changing injury. We need to ensure that they are able to make an investment that does not carry substantial risk. We cannot guarantee everything because inflation and markets can move. Insofar as we can do so in advance, we should attempt to arrive at a rate that fairly reflects the likelihood of their getting the compensation that it was anticipated they would receive from the judge. That means that we should not aim to chase a median rate. We should aim to chase a rate on the basis of advice from the Government Actuary and later from the expert panel, to determine the fair rate of return.
In that case, why are the Government challenging amendments 24, 22 and 23? The answer is that amendments 22 and 23 reflect the original position of the Government on the Bill, so we are slightly going round in circles. We had originally suggested in the version of the Bill that we presented to the House of Lords that the Lord Chancellor should consult the expert panel before setting the rate. Under pressure from Opposition Members in the House of Lords, in particular Lord Sharkey, the Lords pushed us into a position where we agreed that, instead of an expert panel, it should be the Government Actuary, working with the Lord Chancellor, who set the first rate.
The argument made by the Lib Dem peer and backed by others, including Lord Beecham, was that the problems for the NHS caused by the discount rate are so extreme and the costs on the public purse so extreme, that the first change in the discount rate should happen relatively rapidly, on the advice of the Government Actuary. Were we now to reject that amendment, which we accepted after long negotiation in the House of Lords, we would have to go back to the drawing board and set up the expert panel again, leading to a very significant delay, which would impose costs on the NHS.
We are in the ironic position that the Opposition are now proposing as amendments the original Government position, which the Opposition struck down in the House of Lords. We are slightly in danger of going round in circles. We are where we are and, given the problems of time, I suggest that the pragmatic compromise is that the Government Actuary, who is an independent individual with enormous expertise, works with the Lord Chancellor on the first setting or the rate, and that for subsequent settings of the rate, the expert panel comes in, as the House of Lords recommended.
That brings us to the lengthy amendment 24, which the hon. Member for Lewisham West and Penge introduced with great eloquence. That essentially argues that the rate should be set by the expert panel alone and not by the Lord Chancellor. We disagree fundamentally with that because the expert panel and the Government Actuary would argue that it is not their position to set the rate. It is their position to provide actuarial advice on different investment decisions that could be made, the likely rates of inflation and the likely rates of return.
Ultimately, a Minister accountable to Parliament should set that rate, because they have to balance some very different issues: our obligation towards vulnerable people who have suffered catastrophic life-changing injuries and our obligation on the costs to the national health service, which run into billions of pounds, and balancing these different public goods.
It simply would not be fair to expect an actuary to make those kinds of political and social decisions. It is entirely appropriate to expect actuarial experts to provide the expert advice on what the range of options would be, and to reassure individuals that the Lord Chancellor is not likely to make a decision that would have a significant negative impact. It is only necessary to look at what the Lord Chancellor did two years ago in setting the rate of -0.75%. If it had been the case that the Lord Chancellor was fundamentally driven by Treasury calculations and was not interested in defending the vulnerable individual, they would not have moved the rate from 2.5% to -0.75%, effectively doubling the compensation paid. The Lord Chancellor, in setting this rate, on the advice of the expert panel, will be acting as the Lord Chancellor, not as the Secretary of State for Justice.
Bambos Charalambous
The Minister said there was a big change when a previous Lord Chancellor set the rate at -0.75%. I wonder what advice and from whom she received in setting that rate. Clearly, she would have had some advice, rather than plucking that figure out of the air. I wonder what the situation is now.
Rory Stewart
At the moment, the advice received would be from actuaries. Ultimately, we commission the Government Actuary’s Department voluntarily to provide the best advice on what the rate should be. It then arrives at a gilt rate, which drove us towards -0.75%. The Bill puts the role of the Government Actuary into law, so it is no longer voluntary but compulsory. It will be obligatory for the Lord Chancellor to consult, and in future there will be a broader expert panel around the Government Actuary.
Gloria De Piero
My learned and experienced colleagues have spoken in great detail about our issues with the amendments, so I do not anticipate making a long speech. I wholeheartedly concur with the comments that my hon. Friend the Member for Lewisham West and Penge made about the importance of periodical payment orders and a proper, timely review of the personal injury discount rate. As everybody who has contributed has said, we are talking about the most seriously injured. They cannot and must not be let down by our playing politics or by insurers seeking to save money.
In amendments 22 and 23, we say that, if an expert panel is appropriate for subsequent reviews, why should not expert opinion from the panel be appropriate for the initial determination of the rate of return? That is why we will press them to a Division.
Ellie Reeves
I thank the Minister for his response to the points that I made. For the reasons that I and my hon. Friend the Member for Enfield, Southgate set out, I want to press amendment 24 and new clause 5 to a Division.
Question put, That the amendment be made.
Gloria De Piero
I beg to move, That the clause be read a Second time.
New clause 1 deals with one of the most important effects of this package of measures. It says that the whiplash small claims limit can increase only in line with inflation based on the consumer prices index. It specifies that the limit can increase only when inflation has increased the existing rate by £500 since it was last set.
The Government have been disingenuous in trying to sneak through these changes to the small claims track limit by using delegated legislation, which restricts the proper scrutiny that such significant changes deserve. With the new clause, we ask the Government to do the right thing and to put it on the face of the Bill, enshrining the terms that a plethora of experts agree on: the use of CPI over the retail prices index when it, and using 1999 as a start date for any recalculation of the limit for a small claims track.
The White Book that I showed the Minister shows that there was a 20% increase in the small claims limit in 1999 when special damages were removed from the calculation of the limit. Lord Justice Jackson, in his “Review of Civil Litigation Costs: Final Report” said that the only reason to increase the personal injury small claims limit would be to
“reflect inflation since 1999. As series of small rises in the limit would be confusing for practitioners and judges alike.”
He made it crystal clear that the limit should remain at £1,000 until inflation warrants an increase to £1,500.
The Government admitted to me this morning that there is a difference of opinion in their own ranks about which of these years should be the benchmark. We say again that they must listen to the Lord Justice Jackson and the Justice Committee chaired by one of their own, the hon. Member for Bromley and Chislehurst (Robert Neill), who agrees with him. We should state on the face of the Bill that 1999 must be the start date for any recalculation of the small claims limit, not 1991. The Government accepted all the key recommendations in the Jackson report save the recommendation that there should be an increase in the small claims limit to £1,500 only when inflation justifies it.
To turn to another aspect—the Government have admitted that it has caused a dispute among Ministers—I want to make the case, as I have done before, that CPI and not the RPI is the correct measure to apply for inflation. It seems that the Government use RPI when it suits and use CPI when it suits. CPI is what we use for the pensions and benefits paid to injured workers while they are pursuing justice for that injury through the claim. Even the Chief Secretary to the Treasury agrees with me. When asked at the House of Lords Economic Affairs Committee whether she agreed that RPI was an inadequate measure, she said:
“We certainly agree that it is not the preferred measure of inflation. CPI is a much better measure of inflation… we agree that it is not the preferred method, and we are seeking to move away from RPI”.
Why are we moving towards it here? The Government say they wish to apply RPI to the small claims limit because RPI is applied to updating damages—the same damages that they are taking an axe to with the new tariff.
Perhaps some in the Conservative party are persuaded, like me, that CPI is the best option, because of yet another expert who has lined up to say so. On 30 January 2018, the Governor of the Bank of England, Mark Carney, said:
“At the moment, we have RPI, which most would acknowledge has known errors. We have CPI, which is what virtually everyone recognises and is in our remit.”
It is perfectly clear that we need to enshrine CPI as the key measure on the face of the Bill. The amount of £1,000 from 1999 would now be worth either £1,440 if CPI is applied, or £1,620 if RPI is applied. Lord Jackson said that it should not go up to £2,000, as the Government suggests, until inflation warrants it.
I trust the Minister will not be as dismissive as Lord Keen was when he said in his evidence to the Justice Committee:
“We do not feel that there is a material difference between setting it at £1,700 today and seeing it drop behind inflation next year, and setting it at £2,000 without the need to review it again for a number of years.”
Try telling the nurse, the caretaker or the bus driver that there is no material difference between £1,700 and £2,000. For those on real wages, that has a real impact.
Rory Stewart
Relatively rapidly, I would say that we have five types of disagreement with the amendments. Broadly speaking, those are political, philosophical, economic, financial and constitutional. The political disagreement is that the amendment would go to the heart of the Bill. The entire concept of the Bill is to try to effect a change in the current practice and process around whiplash claims by moving the claim limit to £5,000. That is part of the entire package—the tariffs and small claims limits are related to that.
Philosophically and fundamentally, we are not arguing that the shift to £5,000 is fundamentally a question of inflation. There are many other reasons why the small claims limit has been moved in the past. Indeed, in relation to some types of claim, as you will be aware Sir Henry, as one of our learned friends, some of the claims have been moved to £10,000, which goes a long way beyond inflation.
Largely, the driver of whether or not something is on a small claims track is to do with the nature of the claim, not the nature of inflation. However, if we worked on the narrow question of inflation, the Judicial College guidelines are currently on RPI as opposed to CPI. I respect the arguments that the hon. Member for Ashfield made but that is not the fundamental argument the Government are making.
The amendment would have curious financial implications. It would create a strange syncopated rhythm, whereby movements in CPI are not necessarily reflected in the triennial review except in £500 increments which, over time, mathematically will lead to peculiar results.
The fundamental reason we oppose the amendment is the final argument I mentioned, which is constitutional. This is business for the Civil Procedure Rule Committee, as it always has been, and it is not suitable to put in the Bill. On the basis of those political, philosophical, economic, financial and constitutional arguments, I respectfully request that the amendments be withdrawn.
Robert Courts (Witney) (Con)
I want to make a few brief comments. I entirely understand the force of the comments made. As someone who started his practice in the small claims court before progressing to other courts, I have seen how they work. I have a couple of pertinent points—the Minister alluded to the first. For some very complicated cases, particularly commercial ones, there are already limits of £10,000. As other Members who have practised will realise, the fact that someone is in a small claims court and not represented does not mean that they are completely unassisted. The district judges who hear those claims are solicitors or barristers and are extremely competent and experienced in their own right. Therefore, there is every reason to believe that they will be able to hear those claims, which will have justice as their case is heard.
Jo Stevens
I take the hon. Gentleman’s point but judges are not there to represent in that case, whereas a solicitor would be there to represent. Does he agree that he is comparing apples with pears?
Robert Courts
The hon. Lady is absolutely right. I know she has a long history of practising, as do I. That is, of course, absolutely correct, but it does not mean that they are simply left to sink or swim on their own. I have seen countless cases in my practice where a district judge, although not representing someone, clearly points out arguments that may wish to be made. District judges frequently bend over backwards to ensure that the correct points are made by claimants. Although that is true and I accept the force of the hon. Lady’s point, I suggest that the overall thrust of enabling justice, but at a reasonable and proportionate cost, is being addressed.
Ellie Reeves
Is it not the fact that district judges increasingly have to assist litigants in person when people cannot get legal representation, and that that is putting a huge burden on the courts and district judges? That is not their role but they are increasingly having to do that, which puts an extra burden on them and increases court costs.
Robert Courts
The hon. Lady makes an excellent point. Clearly, cases where judges have to assist claimants are likely to take longer. However, this comes down to ensuring that claimants in cases at the lower end of the scale—I do not for a moment downplay the seriousness of people having been hurt in this way—can be heard at proportionate cost, and that the court’s resources, particularly for the payment of costs, go to cases at the higher end. Ultimately, the costs burden is what denies access to justice.
Ruth George
Is it not the case that the district judges set out in their response to the Government consultation back in 2015 that courts would become clogged with litigants in person if this change were made? It simply will not be possible for district judges to support those litigants given the number of claims. Have Government Members read that powerful submission and listened to the arguments of those judges?
Robert Courts
Although I understand the arguments made by district judges, I have faith in their ability to deal with cases efficiently, because I have seen that happen so often. In an ideal world, I would of course prefer everyone to be legally represented. That would be more efficient and would mean that people had someone to argue for them. However, it is not practical within the costs regime under which we live.
Ruth George
I spent more than 20 years working for the Union of Shop, Distributive and Allied Workers. In many claims involving road traffic accidents and workplace injuries, claimants were referred by their union to a solicitor who gave them the support they needed to bring a case. As the hon. Gentleman set out, lawyers are experienced and often give claimants the advice they need about whether they can take a claim forward or whether that is not worth doing, and therefore protect district judges and the court system. Projections show that there will be an extra 36,000 cases a year in the small claims court. With the best will in the world, district judges, who are already struggling, will not be able to cope with that additional workload. That is what the district judges themselves said in response to the consultation. [Interruption.] They said it whether the Minister chooses to shake his head or not.
Many younger claimants and those who do not have experience of dealing with the legal system will find it much harder to bring a case themselves. This is not just a question of compensation up to the level we are discussing for minor cases. We have debated the figure for general damages but, as the Minister said, there are exceptional circumstances payments and compensation for loss of wages on the back of that, so an individual’s total claim may be much higher than the limit on small claims. I note that even someone with a claim for a whiplash injury that lasted up to two years will fall under the £5,000 small claims limit. Even someone who suffered an injury that prevented them from working for two years will not be able to take their case to the general court, but will have to represent themselves in the small claims court. The associated loss of wages may have a huge impact on their life and wellbeing.
I hope the Minister looks again at this measure, which will severely disadvantage people who are not able to take claims through themselves. People often need a lawyer to support them. That would make the system more efficient and effective, and that is what we argue for.
Question put, That the clause be read a Second time.
Ellie Reeves
I beg to move, That the clause be read a Second time.
To understand the importance of new clause 4, we must understand the significance of the use of periodical payments to compensate those who have been injured through negligence, often catastrophically, with little or no capacity for work and with considerable care costs.
More often than not, successful claimants are paid a lump sum, which is intended to compensate them for the rest of their life. However, the benefits of periodical payments, rather than a lump sum, are threefold. First, periodical payments are index-linked so they go up in accordance with rising costs of living or care. Secondly, in such cases, there are often arguments about life expectancy. If the court accepts that a victim of a catastrophic injury is likely to live until 42 but medical advances mean that they actually live until 80, a lump sum will run out many years earlier. With periodical payments, the injured person is compensated every year for the rest of their life. Thirdly, receiving an annual periodical payment rather than a lump sum means that injured people do not have to make difficult investment decisions and, equally, it removes the risk that they will spend the money all at once.
The setting of the discount rate is highly relevant to periodical payments. When the rate stood at 2.5%, it was far more attractive for defendants to pay a lump sum that was discounted by 2.5% than to pay index-linked annual payments. That meant that in all but the most serious cases, periodical payments often met huge resistance from defendants. A rate that assumes a much lower level of investment risk by injured people may well result in an increase in the use of periodical payments, particularly in cases not at the most catastrophic level where resistance from defendants has been greatest. The benefits to the injured person are clear, and the benefits to the state of not having to pick up the bill for care or housing, if and when the money runs out, are obvious.
On Second Reading, the Minister said that he welcomed the use of periodical payments. Can he tell us the percentage of personal injury claims in which they are used? It is my understanding that the figures are astoundingly low, often due to resistance from defendant insurers. New clause 4 makes it incumbent on the Civil Justice Council, with its expert knowledge, to review the impact of part 2 and the discount rate on the prevalence of periodical payments being awarded. If we agree that periodical payments are a good thing, surely we can agree that their use must be monitored so that appropriate and evidence-based action can be taken where necessary. This would benefit injured people and the Treasury alike.
Rory Stewart
Once again, I want to take this opportunity to praise the hon. Member for Lewisham West and Penge. The arguments for PPO are very strong. It is absolutely correct that the ideal thing is to give someone a PPO. The problem at the moment with receiving a large sum with a discount rate is that one could end up overcompensated or undercompensated. Overcompensation means a huge cost to the NHS and the taxpayer. Undercompensation can be catastrophic for one’s lifetime care costs. Rather than taking a lump sum, the PPO ensures that one gets the amount of money required to look after one’s costs. Therefore, we agree with the nature of this argument.
The disagreements with this amendment are technical. The 18-month period from Royal Assent is too short to take real effect. Regarding the basic question the hon. Lady has raised—whether the Civil Justice Council should look at the use of PPOs and the impact of discount rates on PPOs—we have written directly to the Master of the Rolls to request that the Civil Justice Council look at the use of PPOs. We remain open to doing that again, once the new review of discount rate is introduced.
It is absolutely right that we should encourage more uptake and challenge the insurance companies, which have said publicly that they want more use of PPOs, to ensure that more PPOs are given out. That is the best way to protect an injured person. There are some narrow cases where it is not appropriate—somebody may not have sufficient insurance or the financial weight to deliver a PPO—but when it is paid out, it ought to be paid and that is why we are grateful that, for example, the NHS continues to use the PPOs in the case of catastrophically injured children. I request that the hon. Lady withdraw the amendment.
Ellie Reeves
I thank the Minister for that response and, to some extent, his assurances. However, given that the Bill seeks to make big changes, if we are committed to periodical payments and their use, there should be a mechanism for review built into the legislation. I shall press the new clause to a Division.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 8—Restriction on increase in small claims limit for relevant personal injuries suffered by people during the course of employment—
‘(1) In this section, the “PI small claims limit” refers to the maximum value (currently £1,000) of a claim for damages for personal injuries, specifically general damages, for which, in accordance with Civil Procedure Rules, the small claims track is the normal track.
(2) Civil Procedure Rules may not increase the PI small claims limit in respect of relevant injury claims to an amount above £1,000 for the first time unless—
(a) the Lord Chancellor is satisfied, and has certified in writing, that on the day the rules are to come into force, the value of £1,000 on 1 April 1999 adjusted for inflation, computed by reference to CPI, would be at least £1,500, and
(b) the rules increase the PI small claims limit to no more than £1,500.
(3) Civil Procedure Rules may not increase the PI small claims limit in respect of relevant injury claims on any subsequent occasion unless—
(a) the Lord Chancellor is satisfied, and has certified in writing, that on the day the rules are to come into force, the value of £1,000 on 1 April 1999 adjusted for inflation, computed by reference to CPI, would be at least £500 greater than on the day on which the rules affecting the previous increase were made, and
(b) the rules increase the PI small claims limit by no more than £500.
(4) In this section—
“CPI” means the all items consumer prices index published by the Statistics Board;
“relevant injury” means an injury which is an injury of soft tissue in the neck, back, or shoulder suffered during the course of employment which is caused as described in paragraphs (b) and (c) of section 1(4) (negligence while using a motor vehicle on a road, etc.);
“relevant injury claim” means a claim for personal injury that consists only of, or so much of a claim for personal injury as consists of, a claim for damages for pain, suffering and loss of amenity caused by a relevant injury, and which is not a claim for an injury in respect of which a tariff amount is for the time being prescribed under section 2;
“general damages” shall mean damages for pain, suffering and loss of amenity.’
This new clause would limit increases in the small claims track limit in relation to people who have suffered a whiplash injury during the course of their employment to inflationary rises in increments of £500 only.
Gloria De Piero
The Government have refused to allow the small claims changes, which will have a fundamental impact on access to justice for hundreds and thousands of injured people every year, into the Bill. New clause 7 is designed to ensure that vulnerable road users are exempted as the Minister has promised. New clause 8 would do little more than reflect the recommendations of Lord Justice Jackson in his civil justice review. The Minister agreed this morning that there had been a change to the small claims limit in 1999. New clause 8 says that 1999 is the date from which any change to the small claims limit should be calculated and that the increase should be by no more than £500 at any one time. As I have said, that reflects the recommendations of Lord Justice Jackson.
There is a difference between us on the appropriate level of inflation. We say CPI—the consumer prices index. There is absolute logic in that because that is the inflation rate applied by the Government to benefits paid to injured people. It is also, of course, the rate that the Governor of the Bank of England recommends.
Rory Stewart
Given that we are coming towards the end of the proceedings, I again pay tribute to right hon. and hon. Members on both sides of the Committee for the quality of debate. It has been quite testing personally: a lot of very learned friends have asked a lot of fundamental questions, ranging from inflation rates to the good challenges from my friend the right hon. Member for Delyn (David Hanson), who keeps me on my toes. I thank them very much for their various contributions.
With the final group of amendments, we come to questions that relate to some of the debates that we have had already, in different forms. This in effect is a subset of the arguments made on new clause 1. As right hon. and hon. Members will remember, new clause 1 involved an argument that the reductions should be made in relation to all personal injury claims. These proposals take the same arguments and apply them to two subsets of people who are injured: vulnerable road users and people injured in the course of employment. On both those things, there are some differences between us, again, on the correct level at which to set the rate, but there are also some important concessions that are worth bearing in mind. They were made in the House of Lords and in the subsequent process.
In relation, first, to people injured in the course of employment, personal injury claims that are not as a result of whiplash, we have listened very carefully to right hon. and hon. Members. They will remember that in the initial consultations there were suggestions about raising the limit to £10,000 or £5,000. The agreement has been that for non-whiplash-related injuries, it is kept at £2,000.
There is some discussion about whether it is correct to see that in terms of CPI or RPI—the retail prices index—but broadly speaking, it is not very significantly different from the rates that were set in the 1990s when inflation was applied, although there is some disagreement between the two sides of the House, to the extent of a few hundred pounds, on the extent of headroom put on top of inflation. There could be a broader argument, which was raised earlier, about the fundamental principle that compensation should be paid for the injury rather than on the basis of why somebody was present on the scene, whether in the course of employment or another activity. However, that goes beyond the scope of the amendment.
The real concession has been made in relation to vulnerable road users, which I hope hon. Members on both sides of the House will welcome. We listened carefully to representations made primarily not by people who own horses—although I remind hon. Members that there are more than a million horses in the United Kingdom, so it is not quite as much of a minority pursuit as some might like—but by cyclists, who led a strong campaign arguing that they are particularly vulnerable on the roads. They are: they are not encased in a sheet of metal. We accept that the same argument also applies in spades to pedestrians—as a proud pedestrian, I feel that very strongly—and to people on motorcycles, who are not encased in metal either.
We are delighted to confirm that vulnerable road users will be excluded in respect of the small claims limit and the Bill. On that basis, with many thanks to everybody for their prodigious and learned contributions, I politely ask that the amendment be withdrawn.
Gloria De Piero
I will disquiet the Minister one more time and press the new clause to a Division.
Question put, That the clause be read a Second time.
Rory Stewart
I beg to move amendment 7, in clause 14, page 16, line 6, leave out subsection (2).
This amendment removes the privilege amendment inserted by the Lords.
The amendment is procedural. It is a privilege amendment that changes subsection (2) of the short title. The House of Lords has said that nothing in the Act shall impose any charge on the people or on the public funds. Bringing it to the House of Commons means the Ministry of Justice should be liable for any charges to the funds. The House of Commons is able to take on the terms of the fund. This is a normal procedural amendment for when something comes from the House of Lords to the House of Commons, so we ask that Government amendment 7 is accepted.
Amendment 7 agreed to.
Clause 14, as amended, ordered to stand part of the Bill.
Bill, as amended, to be reported.
Offensive Weapons Bill (Tenth sitting)
(6 years, 2 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Chair
We now recommence the line-by-line consideration of the Offensive Weapons Bill. We will of course give it due consideration, but none the less might be able to rattle through it in good time.
New Clause 3
Prohibition on the possession of a corrosive substance on educational premises
‘(1) A person commits an offence if that person has a corrosive substance with them on school premises or further education premises.
(2) It shall be a defence for a person charged with an offence under subsection (1) to prove that they had good reason or lawful authority for having the corrosive substance on school premises or further education premises.
(3) Without prejudice to the generality of subsection (2), it is a defence for a person charged in England and Wales or Northern Ireland with an offence under subsection (1) to prove that they had the corrosive substance with them for use at work.
(4) Without prejudice to the generality of subsection (3), it is a defence for a person charged with an offence under subsection (1) to show that they had the corrosive substance with them for use at work.
(5) A person is to be taken to have shown a matter mentioned in subsection (4) or (5) if—
(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and
(b) the contrary is not proved beyond reasonable doubt.
(6) A person guilty of an offence under subsection (1) is liable—
(a) on summary conviction in England and Wales, to an imprisonment for a term not exceeding 12 months, to a fine or to both;
(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months, to a fine not exceeding the statutory maximum or to both;
(c) on conviction on indictment, to imprisonment for a term not exceeding 4 years, to a fine or both.
(7) In relation to an offence committed before the coming into force of section 154(1) of the Criminal Justice Act 2003 (maximum sentence that may be imposed on summary conviction of offence triable either way) the reference in subsection (7)(a) to 12 months is to be read as a reference to 6 months.
(8) A constable may enter any school or further education premises and search those premises and any person on those premises, if they have reasonable grounds for suspecting that an offence under this section is, or has been, committed.
(9) If, in the course of a search under this section, a constable discovers a corrosive substance they may seize and retain it.
(10) The constable may use reasonable force, if necessary, in the exercise of entry conferred by this section
(11) In this section—
“corrosive substance” means a substance which is capable of burning human skin by corrosion;
“school premises” means land used for the purpose of a school, excluding any land occupied solely as a dwelling by a person employed at a school; and “school” has the meaning given by—
(a) in relation to land in England and Wales, section 4 of the Education Act 1996;
(b) in relation to land in Northern Ireland, Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986 (SI 1986/594 (NI 3).
“further educational premises” means—
(a) in relation to England and Wales, land used solely for the purposes of—
(b) in relation to Northern Ireland, land used solely for the purposes of an institution of further education within the meaning of Article 2 of the Further Education (Northern Ireland) Order 1997 (SI 1997/ 1772 (NI 15) excluding any land occupied solely as a dwelling by a person employed at the institution’.—(Stephen Timms.)
Brought up, and read the First time.
Stephen Timms (East Ham) (Lab)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss:
New clause 4—Offence of threatening with corrosive substance on educational premises—
‘(1) A person commits an offence if that person threatens a person with a corrosive substance on school premises or further education premises.
(2) In this section—
“corrosive substance” means a substance which is capable of burning human skin by corrosion;
“threatens a person” means—
(a) unlawfully and intentionally threatens another person (“A”) with a corrosive substance, and
(b) does so in such a way that a reasonable person (“B”) who was exposed to the same threat as A would think that there was an immediate risk of physical harm to B.
“school premises” means land used for the purpose of a school, excluding any land occupied solely as a dwelling by a person employed at a school; and “school” has the meaning given by—
(a) in relation to land in England and Wales, section 4 of the Education Act 1996;
(b) in relation to land in Northern Ireland, Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986 (SI 1986/594 (NI 3).
“further educational premises” means—
(a) in relation to England and Wales, land used solely for the purposes of —
(b) in relation to Northern Ireland, land used solely for the purposes of an institution of further education within the meaning of Article 2 of the Further Education (Northern Ireland) Order 1997 (SI 1997/ 1772 (NI 15) excluding any land occupied solely as a dwelling by a person employed at the institution”.
(3) A person guilty of an offence under subsection (1) is liable—
(a) on summary conviction in England and Wales, to an imprisonment for a term not exceeding 12 months, to a fine or to both;
(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months, to a fine not exceeding the statutory maximum or to both;
(c) on conviction on indictment, to imprisonment for a term not exceeding 4 years, to a fine or both.
(4) In relation to an offence committed before the coming into force of section 154(1) of the Criminal Justice Act 2003 (maximum sentence that may be imposed on summary conviction of offence triable either way) the reference in subsection (7)(a) to 12 months is to be read as a reference to 6 months’.
Stephen Timms
Thank you, Mr Gray, and I bid you a warm welcome back to the Chair of our Committee. One of the welcome contributions in the Bill is bringing the law on acid and corrosive substances into line with the law on knives, so that possession without good reason is an offence. There is evidence that, in some cases, criminal gang members have switched from knives to acid because, since possession of acid has not been an offence, it has been less risky for them to carry it than to carry a knife. In my view, the Bill is absolutely right to bring the law on acid into line with the law on knives.
However, there are two respects in which, if the Bill is not amended, the law on acid will still be less demanding than it is on knives. I think they should be aligned throughout, which is what new clauses 3 and 4 are designed to achieve. Proposed new clause 3 makes it an offence to possess a corrosive substance on educational premises. It has long been an offence to have a knife in school. Clause 21 relates to section 139(a) of the Criminal Justice Act 1988 and rightly extends the current ban on possession of knives in schools to cover further education colleges as well. The ban in schools was introduced in the Offensive Weapons Act 1996 when Michael Howard was Home Secretary—that is the second occasion I have had to refer to something he has done. The same ban should cover corrosive substances. It is a lengthy new clause, but with a straightforward effect. I hope that the Minister will recognise the validity of the attempt and be able to accept it, or something very like it.
New clause 4 would extend to corrosive substances the prohibition on threatening people with knives that already applies in schools. It has been an offence in schools since 2012, since the Legal Aid, Sentencing and Punishment of Offenders Act. Again, the Bill is extending the existing prohibition on knives from schools to further education premises, which is the right thing to do. New clause 4 applies the same prohibition to corrosive substances.
I suggest that neither of the proposed new clauses is contentious—none of us wants people to have corrosive substances or threaten other people with them in schools or further education colleges. The new clauses extend to acid existing measures that cover knives and I hope the Minister agrees to them.
It occurred to me that another way of achieving the same result might be to widen the definition of “offensive weapon” to include corrosive substances, because the wording in the existing prohibitions is about offensive weapons. If one said that corrosive substances are offensive weapons, that might have the same effect as proposed new clauses 3 and 4. I would be interested to know whether that was considered. This is an offensive weapons Bill—it does not say anywhere that corrosive substances and corrosive products are offensive weapons and I appreciate that there might be technical difficulties in doing so. In the absence of that, the two new clauses would deal with the gap. I hope the Minister feels able to commend them.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
It is a pleasure to serve under your chairmanship, Mr Gray. As the right hon. Gentleman has set out, there are existing offences under section 1 of the Prevention of Crime Act 1953 and section 139A of the Criminal Justice Act 1988, which deals with incidents of threat or possession on school premises. The Bill extends these offences to cover further education premises as well as school premises.
The intention behind the amendments seems reasonable, but there are several reasons why we did not consider it necessary to extend the corrosive substance provisions in this way when developing the Bill. First, the scale of knife crime is significantly higher than that involving a corrosive substance. There were more than 18,000 recorded offences of knife possession last year and more than 40,000 recorded knife offences involving a bladed article. By contrast, there are only around 800 attacks a year using corrosives.
The impact of any crime using a knife or a corrosive substance is devastating, but the scale of the problem is different. In drawing up the Bill, we tried to keep in mind the proportionate use of corrosives. We wanted to take action against the possession of corrosives on the street because there is little evidence to suggest that possession of corrosives on educational premises was an issue. However, I accept that crime and crime types change. We were reassured by the fact that existing offences that can already be used in relation to possession of corrosives on school premises, and in future on further education premises, cover the situations to which the right hon. Gentleman referred.
For example, if a student is carrying a corrosive cleaning fluid on school premises and there is evidence that they intend to use it as a weapon, such as indicating on social media or through talking to friends that they intend to do that, the offence of possessing an offensive weapon on school and further education premises would apply. Similarly, decanting the corrosive into another container to make it easier to use as a weapon would also be covered by that offence. Carrying any corrosive substance on the way to school or college would also be an offence under clause 5.
The only scenario in terms of possession that is not covered is where a student has a corrosive substance on school or further education premises in its original container and there is no evidence that they intend to use the substance to cause injury. This is a very discrete possibility, but one that the right hon. Gentleman has alerted us to. As I have already indicated, I will be happy to consider this further.
Louise Haigh (Sheffield, Heeley) (Lab)
I do not quite follow how that instance qualifies as possession of an offensive weapon. My right hon. Friend the Member for East Ham made the case that we could extend the definition. Is it the case that corrosive substances are now considered as offensive weapons under all other offensive weapons legislation because they come under this Bill? Will the Minister clarify that point?
Victoria Atkins
As I was saying, this is a discrete exception to the definition. I accept the point made by the right hon. Member for East Ham that there seems to be a gap in the law on the small area where corrosive substances are in their original container on further education premises and there is no evidence that they are intended to be used to cause injury. That is why I will take that point away to consider.
Louise Haigh
That was not the example I was referring to; I was referring to the example that the Minister gave first. I think she said that if an individual had expressed—for example, on social media—that they were going to use the substance to commit an offence, that would therefore come under possession of an offensive weapon on school premises. Will she explain why that would fall under possession of an offensive weapon, given that the legislation relates to the possession of corrosive substances? Corrosive substances do not fall under the definition of an offensive weapon under the legislation.
Victoria Atkins
I am just looking into the detail of that. The fact of the intention makes it different from the very limited set of circumstances that I have just dealt with, where the substance is in the original container and there is no evidence that the person intends to use it to cause injury.
On new clause 4, and the creation of a new offence of threatening with a corrosive substance on school and further education premises, the gap is perhaps even smaller. It is already an offence to threaten someone with an offensive weapon on school premises, which will be extended by the Bill to cover further education premises. Any student threatening someone with a corrosive substance would be caught because they clearly intend the corrosive to cause injury.
As I said, I will continue to consider new clause 3. On that basis I invite the right hon. Member for East Ham to withdraw it.
Stephen Timms
I am grateful to the Minister for agreeing to consider further the content of new clause 3 with, I presume, a view to come back to it on Report.
I thought the argument that she used at the beginning of her remarks was a bit disappointing. She seemed to say, “Well, there aren’t that many acid attacks, therefore we don’t need to legislate on it.” Thankfully that view, which has long been held by Government, has changed, and I very much welcome the fact that the Bill makes the possession of acid an offence without a requirement for evidence that somebody intends to injure somebody with it. That has always been the difficulty: simply possessing acid has not, up until now, been an offence. Thankfully it is made an offence by the Bill, and I welcome that.
The argument for new clause 3 is that possessing acid in schools ought to be an offence as well, because how can a school or further education college show that a student with acid intends to injure somebody with that acid? That is exactly the difficulty that the police have always had. Nevertheless, the Minister has said that she will give the matter further consideration and come back to us on Report. On that basis, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 7
Prohibition of air weapons on private land for those under the age of 18
“(1) Section 23 of the Firearms Act 1968 is amended in accordance with subsections (2) to (3).
(2) Omit subsection (1).
(3) Omit subsection (3).”—(Karin Smyth.)
This new clause would amend the Firearms Act 1968 to prevent a person under the age of 18 from having an air gun on private land other than as part of a sporting club.
Brought up, and read the First time.
Karin Smyth (Bristol South) (Lab)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 8—Report on the use of air weapons—
“(1) The Secretary of State must, within six months of this Act receiving Royal Assent, lay a report before Parliament on the safe use of air weapons.
(2) The report under subsection (1) must consider, but is not limited to—
(a) whether existing legislation on the use of air weapons is sufficient;
(b) whether current guidelines on the safe storage of air weapons needs revising;
(c) whether the current age restrictions surrounding the possession and use of air weapons are sufficient.”
Karin Smyth
I am pleased to be able to explain my reasoning for introducing these clauses, following a long-standing issue in my constituency regarding a toddler who was very badly injured by an air rifle.
This subject has been discussed several times in the House over many years. We have had a good discussion on statistics and age limits; I hope that some of the discussions in Committee can inform this Bill and others. The statistics on air weapons are not routinely recorded, although we know that 2014-15 was the first year since 2002 in which there was an increase in offences on the previous year. That is a worrying development, but we do not know whether that trend has continued.
There is also no published data on the victims of air gun offences. Data shows the age of victims of crimes involving firearms, but specifically excludes air weapons, which does not seem particularly helpful.
Louise Haigh
I rise briefly to support the timely new clauses, and to congratulate my hon. Friend the Member for Bristol South on tabling them. It is indeed time for a public debate on airgun regulations in England and Wales, first because of the role they have played in fatal incidents in recent years, and secondly because of their increasing use in other types of crime.
The inquest into the tragic death of Ben Wragge, who was fatally wounded on 1 May 2016, aged just 13, heard that he had been playing with a group of friends at a friend’s home when the incident that was to take his life took place. The court heard that the friend did not even think he had fired the airgun—there was no safety catch on the weapon. After the incident, Ben’s relative Zoe Wragge said:
“Following the tragic death of Ben, we very strongly feel that had the law on the licensing, registration and storage of airguns been amended in the past, Ben’s death could have been prevented.”
The coroner, Dr Dean, asked the Home Office to review the laws relating to airguns, which it is in the process of doing. It is frankly unacceptable that we are still waiting for the publication of that review. In the summer, a further incident involving an airgun killed a six-year-old boy from east Yorkshire, although with an inquest ongoing, it would not be appropriate to comment further on the circumstances.
Such tragic incidents demonstrate the potential power of airguns. It is appropriate that we therefore consider whether Parliament has done enough to ensure that under-18s, in particular, are protected. Many have argued that trigger locks should be mandatory or that there should be increasing regulations on the storage and control of ammunition. Once again, the Committee has to return to the fundamental balancing act that politicians have to achieve. Given what we know the risks, are we satisfied that regulation of access to and use of air weapons is sufficient in this country, while acknowledging that they are legitimately used by tens of thousands of young people who pose no threat to the public at all?
We are concerned that the balance is currently off kilter—away from public safety—but we do not need to tip it far the other way to correct it. We have substantial and compelling evidence from the medical profession that these weapons are easily capable of penetrating human skin and causing serious injury. A report in The BMJ, now some years old, stated:
“At first sight, air guns and air rifles may appear relatively harmless but they are in fact potentially lethal weapons. They use the expanding force of compressed air (or gas) to propel a projectile down a barrel and have been in general use since the time of the Napoleonic wars. The projectiles are usually lead pellets or ball bearings. Technological refinements have increased the muzzle velocity and hence the penetrating power of these weapons. In a review of experimental studies”—
it was—
“concluded that the critical velocity for penetration of human skin by an air gun pellet was between 38 and 70 m/sec...Most modern air weapons exceed this velocity and many air rifles can deliver a projectile with similar muzzle velocity to a conventional hand gun.”
Potentially of even greater significance are the findings in relation to emergency admissions involving air weapons. The article’s authors found that almost half of admissions were for patients under 18, and the majority were the result of accidental shooting, usually in the absence of adult supervision. The full data found that between 1996 and 2001, 73 injuries were caused by air weapons, and 36% were aged 18 or under. That is old data, but as my hon. Friend has said, the data is missing. It is for the Home Office to collect updated data in order to form a proper picture of whether the Government should accept the amendment. Given that these weapons have a similar muzzle velocity to conventional hand guns and that there is evidence of skin penetration and, where the injury is accidental, of incidents predominantly involving under-18s, the question for the Minister must surely be what the justification is for allowing under-18s to have access to air weapons, even with supervision on private land.
Victoria Atkins
I am extremely grateful to the hon. Member for Bristol South, who has been campaigning on this issue because of the experience of a family in her constituency who were so terribly affected by an air rifle being used in circumstances that we cannot begin to imagine. The Government recognise concerns about air weapon safety, particularly with regard to access by under-18s and in terms of security in the home. The Minister for Policing and the Fire Service announced a review of the regulation of air weapons in October last year, following the death of Ben Wragge, who we have just heard about. The review has received more than 50,000 representations.
A large proportion of the responses concerned the shooting with air weapons of domestic cats and other animals, and we recognise that air weapon safety and regulation is a topic that arouses strong feelings. Naturally, the strongest feelings are among those who have been affected by air weapon shootings and, of course, the Members of Parliament who represent them. We will announce the outcomes of the review shortly.
New clause 7 seeks to abolish two of the exceptions, namely that which permits persons aged 14 and over to have an air weapon on private land with the consent of the occupier, and that for persons under the age of 18 when under the supervision of a person aged at least 21. If the new clause were implemented, it would mean that under-18s could possess air weapons in only two circumstances, namely if they shoot either as a member of an approved target shooting club or at a shooting gallery, such as at a fairground, where the only firearms used are air weapons and miniature rifles not exceeding .23 inch calibre.
I listened with great care to what the hon. Lady said. I am also conscious of the fact that the review has received many responses. The issue is being considered very carefully by the Policing Minister, and I, in turn, would like to consider the merits of restricting access to air weapons for under-18s. I will go away and consider it and I ask the hon. Lady not to press the new clause.
New clause 8 would require us to publish, within six months of the Bill receiving Royal Assent, a report on the safe use of air weapons, and it specifies the topics that the report must cover. The review is considering the specified topics, particularly safe storage and access by over-18s. It is also considering other topics, including manufacturing standards, post-sale modification and the merits of introducing a licencing system. We will publish the outcomes of the review shortly and I would therefore ask hon. Members not to press the new clause.
Karin Smyth
I am grateful to the Minister for her comments and for saying that she will consider the age issue, for the sake of consistency. My right hon. Friend the Member for East Ham has made some excellent points about all offensive weapons, so I am grateful for that assurance. We look forward to the report appearing shortly or soon—I am not sure which is quickest. On that basis, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 10
Payment for corrosive substances
“(1) It shall be an offence for a seller to receive payment for a corrosive substance except—
(a) by cheque which under section 81A of the Bills of Exchange Act 1882 is not transferable; or
(b) by an electronic transfer of funds (authorised by credit or debit card or otherwise).
(2) In this section ‘corrosive substance’ means a substance which is capable of burning human skin by corrosion.
(3) A person who is guilty of an offence under subsection (1) is liable—
(a) on summary conviction in England and Wales, to a fine;
(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding level 5 on the standard scale.”—(Stephen Timms.)
Brought up, and read the First time.
Stephen Timms
I beg to move, That the clause be read a Second time.
I will speak briefly to new clause 10. I am worried that it is extremely easy to buy acid and other corrosive substances. They are often very cheap and they can readily be purchased in DIY shops. Recently, one of my constituents brought to me a product that was essentially sulphuric acid, which he had bought extremely cheaply in a pound shop down the road. I welcome the fact that the Bill will make it a bit harder to obtain such substances by banning their sale to under-18s, as well as the step already taken in April to promote sulphuric acid from the lower to the higher category in the explosive precursors regulations, meaning that, since April, the purchaser requires a licence.
New clause 10 goes a step further, making it a requirement that corrosive substances should not be paid for by cash. They would need to be bought either by cheque or by credit or debit card. There are two reasons for taking this step. First, it would end what we have seen too often, which is somebody on the spur of the moment buying a corrosive substance extremely cheaply by cash and therefore completely anonymously, quite likely with no prior intention of doing so. Something gets into their head, they decide to go along and buy this stuff and then go on to cause enormous harm to somebody by throwing it over them. Introducing the requirement for a bit of a pause before making the purchase and having to use a debit or credit card might stop some people taking that spur-of-the-moment step and regretting it for the rest of their lives. It would also mean that when substances are purchased, the purchaser will be traceable. That in itself will cause some potential perpetrators to pause before going ahead, making their purchase and then going on to inflict dreadful injuries on somebody.
Tulip Siddiq (Hampstead and Kilburn) (Lab)
My right hon. Friend the Member for East Ham has made an important speech and I rise to support his proposed new clause 10. At present we seem to have a policy framework that encourages those selling corrosive substances to sign up for voluntary commitments, rather than one that compels them to follow very clear rules on receiving payment. To illustrate this, I looked at the report that the Home Office published in July, detailing voluntary measures to which retailers should commit. They included sensible measures such as agreeing to comply with the Poisons Act 1972, promoting staff awareness about what it means to sell corrosive products, and agreeing not to sell to under-18s products that contain potentially harmful levels of acid. Where appropriate, that would include applying Challenge 21 and Challenge 25 policies when asking for age identification.
Those are very sensible voluntary commitments, but they are far weaker than my right hon. Friend’s proposed new clause, whose measures should have been enshrined in law a long time ago. Preventing the sale of these substances by cash would make it less likely for young people to get drawn into purchasing such products. Presumably, ensuring that payments are conducted electronically would also help the emergency services in any retrospective investigation into individuals who are accused of an offence. The only thing I would wish to add to the proposed new clause is that it may be worth preventing such transactions from being conducted through contactless payments, given that corrosive products are often cheaper than £30 and today’s debit cards, if stolen, can be used for a whole range of purchases without chip and PIN verification.
I believe that the point at the heart of the proposed new clause is that all sales of corrosive substances should be traceable to the individual at the address to which the bank account or credit card is registered. I hope the Government will see fit to support this sensible and reasonable proposal.
Victoria Atkins
I am grateful to the right hon. Member for East Ham for tabling the new clause. This is another one where we have had to conduct a balancing exercise. I very much understand the intention, but on balance we have concluded that the new clause falls a little too heavily on businesses without necessarily having the positive impact that he intends. The hon. Member for Hampstead and Kilburn has hit on our first concern: namely, because we can simply tap a card nowadays, there is not necessarily the traceability that there might have been in years gone by. Cheques are rarely used anymore. Even when a person has used a credit or debit card and has entered a PIN code, that does not help the emergency services when a perpetrator has decanted the product into another bottle to conceal it. We have given the proposal some thought, but have concluded, on balance, that it is probably too much of a burden for businesses, given the small amounts of money that some of these corrosive substances cost.
If the substance has been put into another container, there is not necessarily the evidential trail to help the police anyway. Our focus in the law is on preventing sale to under-18s in the first place, and if they carry the substances in a public place then that is an offence in and of itself as well. I regret that I must resist the new clause.
Stephen Timms
I am grateful to the Minister for her explanation, and to my hon. Friend the Member for Hampstead and Kilburn for the telling points she made. Her point about contactless payment is absolutely right and needs to be considered.
The Government could take one step here to force people to pause and think a little before making a spur of the moment purchase of one of these substances and going on to inflict appalling injuries on someone else—and, as I said, for the perpetrator probably to regret having done so for the rest of their life. I am glad that the Government are legislating on corrosive substances, and this is a serious issue that we need to get to grips with now before it becomes even worse in the future, so I want to press new clause 10 to a vote.
Question put, That the clause stand part of the Bill.
Stephen Timms
I beg to move, That the clause be read a Second time.
On 8 January 2018, The Sun reported the case of 32-year old Andreas Christopheros. He was the victim of an acid attack on his doorstep in 2014. He lost 90% of his face and will need 10 years of facial reconstructive surgery. He lost the sight of one eye, and is in danger of losing it in the other in due course. As it turned out, it was a case of mistaken identity. The perpetrator wanted revenge on somebody for an alleged assault on a relative but knocked on the wrong door. Mr Christopheros had no connection at all with the incident for which revenge was being sought, but he has a lifetime of problems ahead as a result of the injuries inflicted on him. Given what has happened to him and his future prospects, he talked a great deal of sense during the interview published in The Sun, and he made the point that
“one bit of legislation which I’d really love to see be pushed through is a decanting legislation; to make it an offence to decant acid from its original, well-labelled bottle, into any other receptacle.”
In his case, the acid was held in a beaker by the person who knocked on his front door and then just thrown over him. New clause 11 is another measure that aims to make it a bit harder to use acid to commit a crime. New clause 11 says that a container in a public place holding acid in circumstances in which it is in the public place for good reason must be clearly marked or labelled as containing a corrosive substance. It would be an offence, as in my view it certainly should be, to carry acid around in, for example, a Lucozade bottle, which, as we have heard, has happened too often over the last year or two.
On its own, new clause 11 will not solve our problem, but I think it could help. It will constrain a little the ready and cheap access to liquid capable of inflicting appalling injuries, which is part of the backdrop for the rapid growth in this crime over the past five years.
Victoria Atkins
I am grateful to the right hon. Member for East Ham for tabling this new clause on making it an offence to have a corrosive substance in an unmarked container. I assume that he has introduced it because of concerns that clause 5 does not go far enough. I assure him and others that there is no need for this amendment, because under section 1 of the Prevention of Crime Act 1953, anyone who is in possession of a corrosive substance can be prosecuted as being in possession of an offensive weapon, where it can be proved that they are carrying it with the intention of causing injury. The definition is set out in section 1, whereby an offensive weapon means
“any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person”.
Intent to cause injury can be inferred from the context of the circumstances surrounding the offence, for example, transferring it into a container that is easier to carry or to use as a weapon. The Crown Prosecution Service has refreshed its guidance to prosecutors on offensive weapons, which includes references to the carrying and use of acid and other corrosives. The guidance covers the appropriate charges and public interest considerations to ensure that any decisions reflect the seriousness of these crimes.
Furthermore, clause 5 strengthens the powers available to the police and the CPS in cases where people are carrying corrosive substances for use as a weapon or to threaten people. By making it an offence to possess a corrosive substance in a public place, we are removing the burden on the police and the prosecution to prove that the person was carrying the corrosive with the intent to cause injury. It puts the onus on the individual to prove that they were carrying a corrosive substance in a public place with good reason or with lawful authority.
I hope that I have persuaded the right hon. Gentleman that the amendment is not required and invite him to withdraw it.
Stephen Timms
I am not convinced. The problem is that the Minister is again going back to the argument about the 1953 Act and the fact that if someone intends to cause injury, it has always been an offence to carry acid. That is true, but if we accept that argument—if the Minister accepts it—we would not have measures in the Bill making possession of acid an offence. I am glad that she has got over the previous argument for not doing that and that the Bill now makes the possession of acid an offence.
I am concerned about the sort of situation where somebody is lawfully carrying acid, because they have a legitimate purpose to use it, and then, for whatever reason, the container falls into the wrong hands. I think we should be very cautious about this stuff. If it is on the streets, it should be clearly marked as a corrosive substance dangerous to life and limb and liable to cause injury. It should therefore be a requirement that the containers in which it is being carried are properly marked accordingly. I do not think the Minister has set out—
Victoria Atkins
In the scenario the right hon. Gentleman has set out, the acid or the corrosive substance is in the possession of someone who has lawful authority or good reason to carry it, and it then falls into other hands—I think those were his words. Of course, the moment it falls into other hands—perhaps someone swipes it in the street, or something—if that other person taking possession of it does not have good reason or lawful authority and they are in a public place, they fall foul of clause 5. I would argue that that is a very simple possession offence. We have included the defence to cover, for example, people going about their lawful business and buying cleaning products because they want to use them at home with no ill intent whatever, but the simplicity of clause 5 is deliberate, in order to cover the sort of scenario where the person is carrying the acid from the shop in a carrier bag and it is stolen. I hope that helps.
Stephen Timms
Let us suppose that someone who is legitimately carrying acid for work purposes has it in a Lucozade bottle, and they put it down beside them while they are doing their work and someone else picks it up. It might be that someone steals it from them, or there might be some accidental reason why it comes into the possession of somebody else. My point is that that bottle ought to be properly marked as a dangerous substance—not Lucozade or whatever else the container might say on it, but a corrosive substance that can cause serious injuries.
I entirely accept that the person who has the corrosive substance will be behaving completely lawfully and properly; I am arguing that it should be their responsibility to ensure that the receptacle they are carrying this stuff in is clearly marked to show what it is. Otherwise, there is a danger that if, for whatever reason, it falls into someone else’s hands, it could cause injury.
I am grateful to the Minister and I appreciate the fact that she has responded seriously to my proposal, but I think an issue remains, and for that reason I will press new clause 11 to a vote.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 31—Offence of hosting a seller on a platform, online third-party reseller or online marketplace used to sell offensive weapons or corrosive products to children online—
“(1) The owner of a platform, third-party reseller or online marketplace commits an offence if that platform, third-party reseller or online marketplace hosts a seller on a website used to—
(a) sell an offensive weapon to a person under the age of 18; or
(b) sell a corrosive product to a person under the age of 18.
(2) The platform, third-party reseller or online marketplace must operate a system for checking that persons who bought corrosive products or offensive weapons on a platform, third-party reseller or online marketplace were not under the age of 18.
(3) A person guilty of an offence under subsection (1) is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 51 weeks, to a fine or to both;
(b) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding six months, to a fine not exceeding level 5 on the standard scale.”
This new clause is a probing amendment to discuss the responsibility of platforms, online third-party resellers or online marketplace e.g. Facebook Marketplace, eBay or Amazon to ensure that sales by sellers who operate on their platform are compliant with the provisions of this Bill.
Stephen Timms
The Minister pointed out to us last Tuesday that under section 141 of the Criminal Justice Act 1988, the sale and import of disguised knives is illegal, yet these dangerous weapons are freely available, certainly on eBay, but also on other platforms. Anyone in the UK wishing to buy one simply needs to click on that item and enter their credit card or PayPal account details, and the weapon will arrive in the post. The Bill will change nothing. My new clause 12 is intended to address that, and I am grateful to the Clerk for helping me to draft it. It makes it an offence
“to advertise, list or otherwise facilitate the sale of an offensive weapon capable of being disguised as something else.”
In other words, it would make it illegal to do what eBay and all the other platforms are freely doing.
It is extraordinary to me that a reputable company such as eBay has on sale in the UK products that it is illegal to purchase in the UK. I was dumbfounded to discover that that is the case. I have not had a discussion with eBay or any of the other platforms about it, but I cannot see how it is possible to defend having these things on sale when it is illegal to purchase them in the UK.
In our debate on new clause 9 last Tuesday, I referred to the availability on eBay of an “Ultralight Self Defense Tactical Defense Pen Outdoor Glass Breaker Writing Pen”. It is rather a long name. The tags are all required, which is why words like “pen” occur a couple of times. It is available on eBay for £2.84, and it looks like a pen but is actually a dangerous weapon. It was drawn to my attention my Mr Raheel Butt, whom I have mentioned on a number of occasions in Committee. I am pleased to inform the Committee that that particular product is no longer there, which shows that at least somebody is paying attention to what we say in Committee.
Unfortunately, all the other items that Mr Butt pointed out to me but which I have not previously mentioned are there: “Tactical pen Tungsten steel head Self Defense Woman anti wolf weapons” are available for £5.99 from a Chinese supplier. There is also a “Six inch Tactical Pen Glass Breaker Self Defense” tool, which is described as a “Tactical Pen Great for Self Defense!” and is available for £3.38 from a different Chinese firm. There are a great many more. I looked on gov.uk to find which other weapons it would be an offence to import. The Minister told us that it was an offence to import disguised knives, and there is a long list of other things it is an offence to import, including butterfly knives, flick knives, gravity knives, stealth knives, zombie knives, swords, sword-sticks, push daggers, blowpipes, telescopic truncheons and batons. I looked to see which of them I could buy on eBay, and each one was there. A butterfly knife is on eBay for £4.95. Flick knives are there. Gravity knives are apparently available from a UK firm, which is clearly committing an offence by selling these things in the UK. Telescopic truncheons are available for £11.69 on eBay from a Chinese supplier.
I did not go through the whole list, but it looks as if the great majority of these things—which it is illegal to import into the UK—are being sold on eBay, not to mention other places as well. I am astonished at how this can have been allowed to happen. I am pretty sure that I cannot buy hard drugs or child pornography on eBay, which makes sure that those things are kept off its platform, so why does it allow on weapons that are illegal in the UK? I do not know the answer to that question and have not had the opportunity to discuss it with eBay. Is it because the rules for ebay.co.uk are taken not from UK law but from US law? No doubt it is not illegal in the US to purchase any of these weapons, but it is in the UK.
It has been widely accepted that it is illegal to purchase these things in the UK and nobody has seriously argued that it should be lawful to purchase them, so surely it cannot be disputed that it ought to be illegal to advertise, list or otherwise facilitate their sale in the UK. The new clause deals only with disguised knives, not the other things on the gov.uk list, but its effect would be to make it illegal to advertise, list or otherwise facilitate for sale disguised knives. This is a difficult area to get right technically, and there are lots of reasons to be cautious about increasing regulation on the internet, but the case seems to be very strong. That would be the effect of new clause 12; I hope the Minister will be sympathetic to it.
Louise Haigh
I congratulate my right hon. Friend the Member for East Ham on bringing forward such an important amendment and on his forensic examination of the legislation and his detailed research—although I recommend that he deletes his internet search history once the Bill Committee has concluded.
New clauses 12 and 31 get to the heart of our debate about overseas sellers and platform liability. We have received multiple pieces of evidence—we just heard about some from my right hon. Friend—about weapons that are already illegal under UK law being freely available on platforms such as Amazon, eBay and Facebook Marketplace. I have seen examples on the app Wish, which is free to download for anybody of any age. It makes available for as little as 99p knives that are disguised as credit cards, bracelets and knuckle dusters. My understanding is that the Bill will do nothing to prevent under-18s from accessing these things, because they are already accessible, even though their sale is currently illegal.
Unless we take action on platforms and platform liability, the other measures in the Bill, however well-intentioned, will be next to useless, because under-18s will still be able to access these very offensive weapons on these platforms. My right hon. Friend is right that the debate about platforms is complex for many reasons. There are many reasons why we have not managed to crack down properly on child protection issues and online pornography issues, although the Minister was right to highlight the Home Secretary’s important speech last week. Because the problems are complex, we have not yet got to the point where we can deliver legislation. There is an understandable difficulty in labelling a platform as liable in law, as it cannot be held responsible for all the content because it is not the owner of the content, it is merely a host. However, whether a platform is a publisher needs to be clarified in law.
The debate is further complicated by issues of free speech and the boundary with hate speech, and even by the regulation of online pornography—we keep making the comparison with the Digital Economy Act 2017. When we ask platforms to take responsibility in these areas, we are asking them to make judgment calls, which is inappropriate. The Government and the courts need to make those judgment calls, not private companies. However, none of those sorts of arguments are applicable in this case. There are no issues of free speech, liability or judgment calls. These weapons are offensive and we want to ban their being made available to under-18s. We want to ban some of them being available to anybody in the UK.
We have banned, or are now banning, the sale of bladed articles and corrosive substances to under-18s. There should be absolutely no need and we should be making sure that there is no way for under-18s to access these substances or articles for sale online. We are asking the platforms to take a relatively straightforward measure: to develop algorithms that restrict to over-18s the viewing of all adverts, whether on eBay, Amazon or Facebook, that contain these offensive weapons or articles.
I genuinely believe that the Government are serious in their intention to limit access of these weapons to under-18s, but they will never be successful unless they are prepared to take on the platforms. I find it bizarre that they are putting so many burdens on small businesses and online retailers while leaving this gaping hole in the market and failing to take on the tech giants that are profiting from the sale of such horrendous weapons to children. I appreciate that the Minister has said that the Government are looking at wider internet safety and will come forward with proposals in the near future. However, if this legislation is to be at all meaningful, they must consider extending it to explicitly cover platform liability.
Victoria Atkins
I am grateful to the right hon. Member for East Ham for tabling new clause 12, on one of the most difficult issues of our time—how we police the internet and ensure that those who profit from the exchange of information and ease of sales on the internet conduct their business in a socially responsible way. I am also grateful to the hon. Members for Sheffield, Heeley and for Lewisham, Deptford for new clause 31.
Let me say at the outset—because it sets the scene for my answer—that the Home Office is working jointly with the Department for Digital, Culture, Media and Sport on the forthcoming White Paper on online harms, which will be published in the winter. It will set out the details on the legislation to be brought forward to tackle the full range of online harms, both legal and illegal. Serious violence, including the consideration of the depiction of weapons, falls within its scope, and we are looking at what more we can do to ensure that persons or companies act responsibly and do not facilitate sales of “articles with a blade or point” or “corrosive products” in their platforms. The White Paper will establish a Government-wide approach to online safety that will deliver the digital charter’s ambition to make the UK the safest place in the world to be online while also leading the world in innovation-friendly regulation that supports the growth of the tech sector. The White Paper will include a review of the code of practice—which we are already asking technology companies to abide by—to establish transparency reporting. We should therefore consider the new clauses in the light of this major piece of ongoing work.
On new clause 12, as the right hon. Member for East Ham will know, it is already an offence to sell or hire—or to offer to sell or hire—offensive weapons to which section 141 of the Criminal Justice Act 1988 applies. That includes disguised knives. The new clause seems to be aimed at ensuring that the owner of the website where the item is listed is also liable for the offence, and not just the seller. I absolutely agree that website owners and marketplace platforms must comply with the law and should not allow sellers to advertise prohibited weapons in their marketplaces. However, section 141 already makes it a criminal offence to supply an offensive weapon to which it applies, or to offer to do so, and the offence is worded in such a way—this is certainly the CPS view—that it is sufficiently flexible to include the owner of a website on which the article is offered for sale.
Louise Haigh
Does the Minister accept that that legislation is clearly not remotely sufficient, given the proliferation of weapons that the Committee has seen and that are out there on these platforms now? Can she give the Committee an example of a successful prosecution against a platform that was taken forward in the manner that we are attempting to achieve with this new clause?
Victoria Atkins
As I said at the start of my speech, the backdrop to this debate is the major piece of ongoing cross-governmental work on the online harms White Paper. My officials have certainly been looking at the adequacy of existing offences as part of that review, but we already have in place legislation that applies to sales, be they face-to-face or remote, and it would be for the CPS to answer how many offences have been prosecuted under the relevant section. I hope that this debate has enabled the Committee to give comforting reassurance to those who investigate and prosecute that they can and should look at online platforms under the 1988 Act.
Stephen Timms
I am encouraged by what the Minister is saying, but last week she did draw a distinction between platforms—I think she gave the example of Amazon—that were themselves selling a product and those that were simply facilitating the sale of a product from another supplier or seller, perhaps in China. Is she now suggesting that, under the current law, both activities are illegal? Or is it only the former, as she suggested last week?
Victoria Atkins
I am coming to that. It is also possible to bring charges under sections 44 to 46 of the Serious Crime Act 2007—that is, for intentionally encouraging or assisting an offence, encouraging or assisting an offence believing it will be committed, or encouraging or assisting offences believing one or more will be committed. It is possible that a website that facilitates sales, either by selling directly or through a marketplace model, could be prosecuted for allowing an advertisement to sell a prohibited weapon on the website, even if the site is not the seller. Powers are currently in place for persons or companies that list, advertise or facilitate the sale of an offensive weapon through a website registered under their name. In the circumstances and against the backdrop of the online harms White Paper, new legislation to criminalise such behaviour is not required at this stage. I invite the right hon. Gentleman to not press the new clause to a vote.
Subsection (1) of new clause 31 refers to offensive weapons. Those who have looked at it in detail wonder whether, in fact, the intention was to refer to articles with a blade or point, which are subject to age restrictions under section 141A of the Criminal Justice Act 1988. The new clause uses the term “offensive weapon” and, like new clause 12, duplicates existing legislation. It is already an offence under section 141 of the 1988 Act to advertise, list or sell offensive weapons to which the section applies, regardless of the age of the buyer. We consider that if any company or person who owns the website were proven to be selling, offering to sell or exposing for the purpose of sale offensive weapons listed in the Criminal Justice Act 1988 (Offensive Weapons) Order 1988, they would have committed an offence under section 141. On age-restricted sales of articles with blades or points, it is an offence under section 141A of the 1988 Act for any person to sell to a person under the age of 18 an article to which the section applies.
Louise Haigh
I seek the same clarification as my right hon. Friend the Member for East Ham. I take the Minister’s point that the new clause probably should refer to bladed articles. Is she confirming that, under existing legislation, a platform that hosts a seller who is selling an offensive weapon is committing a criminal offence? Will the platform be committing a criminal offence in that instance? If not, new clause 31 would not duplicate existing legislation.
Victoria Atkins
Section 141 of the Criminal Justice Act 1988 applies to weapons listed in the Criminal Justice Act 1988 (Offensive Weapons) Order 1988, which include any knife that has
“a concealed blade or a concealed sharp point and is designed to appear to be an everyday object of a kind commonly carried on the person or in a handbag, briefcase or other hand luggage”.
The offence applies to all kinds of sales, be they face-to-face or remote. We consider that a website selling directly, or using a marketplace model to allow sellers to use a website, would probably be caught under the wording of the legislation. The Crown Prosecution Service agreed with this analysis—in fact, I have just been handed information that says that there seem to have been no such cases. This is an untested area of law, but the Crown Prosecution Service seems to be of the view that the legislation already covers this area.
Last week, we discussed kitchen knives—or rather, knives that have a legitimate purpose and are not offensive unless they are used with an offensive intent.
Stephen Timms
I am encouraged that the Minister is saying that eBay and all the other platforms—I think this will come as quite a surprise to them—are currently breaking the law. Does she have any idea why there have not been any prosecutions? What would it take to initiate a prosecution of eBay? There is absolutely no dispute: these things are legal, they are all on the website at the moment, and no doubt people are making purchases of them. What would it take to initiate a prosecution?
Victoria Atkins
I just want to clarify that the language of the legislation—I am looking for assistance on this—in relation both to articles with blade or point and to corrosive products, refers to a person who “sells”, and we consider that, unlike section 141 of the Criminal Justice Act 1988, it would not apply to a person or company that facilitates the remote sale but is not the seller. I commend the right hon. Gentleman for finding an area of law that we have yet to discover, if I may put it that way, and as the Court of Appeal puts it when they overturn a previous judgement. I would like this to be clarified and I will write to the Committee tomorrow, if I may, with clarification on the legal advice, as it is an important point and there seem to be many manifestations of the advice.
We can see the difficulties of this legislation and I accept that, but we come back to the fact that the White Paper seeks to address many different types of online harms. We would like that to be a consolidated and considered piece of work, and during the couple of months that the Bill makes its way through the House, we propose to stick with the law as it is and we invite the Opposition not to press new clause 31.
Stephen Timms
I hope that the Minister was right that these people are all currently committing offences. We await with interest her letter tomorrow setting out a considered view. This is a matter that we ought not to let drop. It is clearly a significant part of the problem, and it is a significant part of the reason for these dreadful weapons being on the streets and in the wrong hands. I take her point that the issue is terribly complicated. I will return to the issue on Report, but I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 13
Offensive weapons and online videos
“(1) It shall be an offence for a website to host online or distribute a video in which a person displays an offensive weapon in a threatening manner.
(2) No offence is committed under this section if—
(a) the website removes the video within 24 hours of the registered owner of the website being informed that the video includes a person displaying an offensive weapon in a threatening manner.
(3) In this section, ‘threatening manner’ means that the person (‘A’) uses the weapon in such a way that a reasonable person (‘B’) who was exposed to the same threat would think that there was an immediate risk of physical harm.”—(Stephen Timms.)
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss amendment (a) to new clause 13, line 10 at end add—
“(4) The person guilty of an offence under subsection (1) is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 51 weeks, to a fine or to both;
(b) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding six months, to a fine not exceeding level 5 on the standard scale.”
Stephen Timms
On 5 May 2018, Rhyhiem Ainsworth Barton, age 17, was shot dead while playing football with friends in Kennington. He was popular and, by all accounts, idealistic and his dream was to be an architect. A couple of days later, scrubbing his blood from the pavement where he died, his distraught mother made a heartfelt public plea that her son should be the last to die in this way.
Rhyhiem’s story was told in a harrowing edition of the programme “Panorama” on 3 September 2018. He lived on the Brandon estate in Camberwell and was a talented rapper and a member of the rap group Moscow17, which plays drill music. They were long-running rivals of another comparable group, Zone 2, based in Peckham. They both posted videos with music and lyrics that threatened each other. Rhyhiem’s family had known that he was in some danger because of all this, so he spent some months in Jamaica with relatives. He was safe there, but he felt he was missing out on opportunities in London, so he returned. Within a few months of returning, he had been killed.
On 2 August 2018, Incognito—another member of Moscow17—was also murdered. His real name was Siddique Kamara. On 18 August, four more teenagers were stabbed in a fight on the Brandon estate. What is going wrong? Why is there this unending stream of deaths among young people, particularly young black men, and what are we going to do about it?
Tulip Siddiq
All Members across the Committee will probably agree that legislation is constantly playing catch-up with the social media giants. It is a fact of life that guides my amendment (a) to the new clause. I do not want to repeat what my right hon. Friend has said. Everyone will probably agree that his detailed forensic examination of the Bill is superior to mine and everyone else’s. I just want to explain why I think the offence he has discussed should come with the liability set out in proposed subsection (4)(a), which my amendment would add to the new clause.
Before I do so, I want to point out that for many the gut reaction to the creation of a new liability, such as that outlined in the amendment, would be concern over free speech. That is something I have heard over many years. There is no doubt that platforms such as YouTube offer a great opportunity for individuals to publish creative content, air their political views and research, and so on. However, as a result, whenever fines or legislation against such websites are suggested, it creates controversy. That happened last year when the German Bundestag legislated to introduce fines of about £45 million for social media companies that did not remove hate crimes from their sites in under 24 hours.
Just to clarify matters, my amendment does not create liabilities for a website’s failure to remove hate crimes, although there are good reasons to support that too. Instead, it is intended to create a sense of urgency among platforms and publishers about removing content in which offensive weapons, as defined by the Bill, are paraded and celebrated. By introducing summary convictions or fines we would be legislating in support of the reasonable assumption that a person who displays an offensive weapon in a threatening manner is acting illegally. It surely follows that those who provide the platform should moderate their content effectively, and should face sanctions for failing to do so.
I think intense concern is shared across the House at the failure of some social media companies—particularly Facebook and Twitter—to act on threatening content. Only last year, Mr Speaker addressed anger over Google’s failure to remove the content of proscribed groups such as National Action, following a Home Affairs Committee exchange in which it promised to do so. My right hon. Friend the Member for East Ham has expressed concern about associated issues to do with gangs using music videos to threaten their rivals.
The problem has been acknowledged at the highest level of the Metropolitan police. Commissioner Cressida Dick said that
“we have gangs who make drill videos…they taunt each other and say specifically what they are going to do to who.”
That is very worrying, and the police are working closely with YouTube. There has been a significant degree of success, with the Evening Standard reporting that half the violent music videos flagged by Scotland Yard have been removed. That is welcome, as is the fact that YouTube has also developed its own policies.
However, YouTube is far from being the only online platform on which an individual can parade offensive weapons, and legislation should make it clear that allowing the spreading of violent material to continue for more than 24 hours will come with a serious liability.
The Chair
I call Sarah Jones, although conventionally one should stand up to catch the Chair’s eye—it is the best way to do it.
Sarah Jones (Croydon Central) (Lab)
Thank you for clarifying that, Mr Gray.
I support new clause 13 and amendment (a). Jermaine Goupall, a 15-year-old boy from Croydon, was stabbed to death last year. Jermaine was from Thornton Heath, and although he was not involved in gangs he was targeted because of tensions between the CR7 and CR0 postcodes. His killers, themselves teenagers, were convicted earlier this year. The trial was notable because of the emphasis the prosecution placed on the role of social media and the drill music genre.
The court heard how Jermaine’s killers—particularly one 17-year-old who published music under the name M-Trap 0—had been posting videos fuelling tensions with the CR7 postcode of Thornton Heath. Some of the videos, featuring lyrics such as “Push the shank straight through”, amassed thousands of views. I support the new clause because we cannot ignore the role that social media, and particularly video content, can sometimes play in escalating or triggering youth violence.
I want to make it clear, however, that I do not believe such videos should be considered a root cause of knife crime. The all-party parliamentary group on knife crime held a roundtable earlier this year looking specifically at the issue. Social media companies, young people, charities and those involved in the drill music scene all attended. It was clear from that discussion that the content that had been produced and shared through social media, much of it to an extremely high standard, is more often than not reflective of the social realities and violence many people are facing, rather than being a root cause of that violence. As one young person told me:
“It’s not like they are saying go and do this or do that. It’s more them just saying it how it is. In my opinion, growing up as a teenager, especially in London, it’s a mess. You have got people coming out like ‘I might not get home alive today.’”
They are reflecting their lived experience. However, it is also clear that in some situations, such as in Jermaine’s death, social media can be the trigger or catalyst that sparks real-world violence. In this, I agree with experts such as the Youth Violence Commission, academics such as Keir Irwin-Rogers and Craig Pinkney and many others.
Ultimately, it seems to me that we cannot expect social media companies to move at the required pace without strengthening legislation. Sometimes, they have a difficult job, because the line between artistic expression and inciting violence can be blurry. Sometimes, it can be coded lyrics or hand gestures that spark things off—things that only young people in particular areas will understand. Sometimes, however, it is very clear. If someone is displaying a weapon in a threatening manner in a video, that is not allowed. That is what the new clause seeks to ensure—that content should not be online.
The key point is that many websites already ban this type of content and the clause would simply ensure they apply their own rules properly. As already mentioned, YouTube’s community guidelines state,
“we draw the line at content that intends to incite violence or encourage dangerous or illegal activities that have an inherent risk of serious physical harm or death.”
The Home Secretary has admitted that YouTube and others have been improving their response to content that incites terrorism, which I heard a lot about when I was on the Home Affairs Committee. I have met Google, Facebook and others several times to discuss their work around knife crime and there is some progress, but it is far too slow. For example, I highlighted one music video to Google, which was on YouTube, and which they subsequently removed. The rapper in this video is known as A6 and he can be seen here—I have got a picture—carrying a knife.
The Chair
Order. The hon. Lady should not use a picture because it cannot be recorded in Hansard. It is possible to describe it, but it is not possible to show it to us.
Sarah Jones
I was not aware of that. It does not matter if we cannot see it because you can get it on YouTube now. Earlier, it was removed from YouTube. The rapper’s real name is Alexander Elliot-Joahill and he was jailed last year for 15 years after stabbing someone 13 times. These screenshots were taken in the last few days, so a different YouTube account uploaded the same video and it now has thousands of views yet again. Some of the videos featuring Jermaine Goupall’s killers showed similar scenes of knives accompanied by similar lyrics, with up to 80,000 views. They were removed only after his family spoke out in the media weeks after his killers’ convictions.
There needs to be a bigger incentive for social media companies to act on this type of content. When I first met Google last year, the company refused to say how many staff were employed to review content. Eventually, after repeated pressure from the Home Affairs Committee, it emerged that Google employed just 200 staff directly to view content. It said it had another 4,000 agency staff at other companies who “worked on content moderation”, but it is unclear whether they are full-time staff and none is based in the UK. Compare that with Germany, where strict laws mirroring what is proposed in new clause 13 have been introduced. Social media companies have stepped up their game: Facebook reportedly hired hundreds of new staff in Germany to handle their new responsibilities.
I urge the Minister to consider this new clause, but, as I mentioned before, some videos are more nuanced and difficult to set a line for. Social media companies talk about the importance of context and they are completely averse to being the judge of what is and is not acceptable if they can avoid it. Other platforms pose challenges because of their instancy. Snapchat and Instagram stories disappear after 24 hours. Snapchat has been used to document attacks—the actual attacks and their aftermath, such as the killing of drill rapper Showkey in Peckham, which was shared widely on social media. If you google him, you can see a video of him dying on YouTube. It is there now. It is absolutely horrific and nothing has been done about it. I also ask the Minister to consider some of the other proposals that have been raised via the all-party parliamentary group’s roundtable and my work with the family of Jermaine Goupall. I spoke to the Minister and she agreed to meet the family, so we need to set that up.
The Minister may be aware of my proposals on the use of criminal behaviour orders to prevent young people who are convicted of a knife offence and have an online presence or persona from posting publicly on social media as part of their punishment. By doing that we can draw a clear distinction between creative expression, which is in many cases brilliant and in most cases not wrong or offensive, and those who wish to use music videos simply to incite violence.
It is clearly not about censoring music. The value of that approach is that it allows us to say to young people, “You are free to make drill or any other type of music. We’re not censoring you, but if you offend, this is one of the ways we can punish you.” That reflects the value of such creative expression for young people while clearly setting a line. Most of these young people want to be in the studio making music, but they need to do it safely and not let violence spill over into the real world.
Nigel Huddleston (Mid Worcestershire) (Con)
I will speak very briefly. I used to work for Google, and therefore for YouTube. Many people do not know this, but Google owns YouTube. I am sometimes accused of being a bit of a poacher turned gamekeeper, because I assure hon. Members that I am not here to defend or support the actions of Google. I am here to criticise them, along with many colleagues.
The intent of the proposals is supported across the House, and hon. Members will be aware that the matter is being investigated as part of the internet safety strategy of the Department for Digital, Culture, Media and Sport. I therefore wonder whether the amendment is in the right place. The intent is very clear. Colleagues have highlighted that it is a very complicated situation, with 133 hours of content uploaded to YouTube every second, and 46,000 hours viewed. It is very difficult for human beings to monitor and assess that volume of activity. The solution therefore has to be some kind of electronic assessing.
I agree with the vast majority of the comments that colleagues have made today. We have to work, and are working, together across the House to try to reach a solution. The reality is that social media companies are not doing enough to tackle the problem. We need to look carefully at solutions being examined in other countries such as Germany, which may or may not offer a model that we wish to follow.
I absolutely support the intent expressed by all colleagues today, but I wonder whether this amendment in this Bill is the right place to try to sort out the problem.
Victoria Atkins
I am extremely grateful to my hon. Friend for bringing his expertise into the Committee Room. He has summarised the Government’s position. We understand the concerns voiced about drill music and videos. We are very concerned about the impact that some types of drill videos can have—inciting violence and winding different gangs up. The commissioner, when she speaks on this subject, talks about how the rise of aggression is speeded up by drill videos. Yet we must ensure that our approach is not piecemeal, and that we take a good long look at the responsibilities of online companies, not just in this case but all sorts of cases of online harms. That is why the piece of work later this year will be so important.
In the meantime, however, we are doing a great deal to tackle the use of social media to encourage, facilitate and perpetuate violence. Our serious violence strategy sets out the role of social media as a driver of serious violence, and the range of actions we have committed to in order to tackle it. Through discussions on the serious violence taskforce, in June the Home Secretary announced a new fund to support national police capability to tackle gang-related activity on social media. The new social media hub will be established within the Metropolitan Police Service, transforming the current capability and extending its reach to other forces. It will bring together a dedicated team of approximately 20 police officers and staff to take action against online material, focusing on investigative, disruption and enforcement work against specific gang targets, as well as making referrals to social media companies so that illegal and harmful content is taken down.
Again, I raise here the responsibility of those who advertise online to ensure that their legitimate business interests are not inadvertently or knowingly exploited on some of these channels. These channels can earn the gangs themselves huge amounts of money; they can be a source of profit in themselves, let alone the harm that they perpetuate. We have heard about the extraordinary viewing figures that some of these videos have—though that is not really a matter for the Committee to discuss today. The right hon. Member for East Ham said that they can be up to 2 million. We have to ask ourselves what it is about these videos that people are viewing—perhaps not just once, but repeatedly—and why they are doing so. To my mind, looking at early intervention is part of the rounded approach to serious violence.
We have established a new action group that meets regularly to bring together Government, social media companies, police and community groups to tackle violent material online. The group’s aim is to deliver real operational action that will help forces across the country with their work.
Stephen Timms
As before, I thank the Minister for giving way. I agree with a great deal of what she is saying. She talked about efforts to remove illegal material online. The difficulty here is that, as far as I know, the material we have been talking about is not illegal. It is not against the law to host a music video where another gang is threatened. The purpose of the new clause is to make it illegal. Can the Minister hold out the prospect that the Government are going to change the law in this area so that it will become illegal, given the cross-party support that the hon. Member for Mid Worcestershire referred to?
Victoria Atkins
Any video that incites violence—and we have heard awful examples today—is committing an offence. We have a very simple principle, which emerged from the consultation that was conducted earlier this year by the Department for Digital, Culture, Media and Sport—namely, that if it is illegal offline, it is illegal online. Those are principles of which we remind the tech companies repeatedly—not just in this field but in others, such as terrorism and child pornography. We heard that the Home Secretary has rightly praised the large tech companies for their work in tackling terrorism, but it is our expectation that the lessons they have learned in that field are spread to other areas where harms are caused online.
It is already an offence to incite, assist or encourage criminal offences. Indeed, social media companies have policies in place on incitement and threats and we are working with the sector to ensure that those are applied in a timely manner, without delay. We believe that the offences are there in law in terms of incitement; we are very much approaching this in a cross-governmental, holistic way, with the online harms White Paper later this year. I therefore invite the right hon. Gentleman to withdraw the new clause.
Stephen Timms
I am grateful to Committee members for their support. My hon. Friend the Member for Hampstead and Kilburn is absolutely right to press for specific penalties for hosting videos of the kind that we have been talking about. I am grateful to my hon. Friend the Member for Croydon Central for her well-informed observations and her expertise in this area, developed through her work on the Home Affairs Committee and in the all-party parliamentary group. I must say, I did not know that Germany had laws along these lines already, and I am grateful to her for pointing that out to us. I am also grateful to the hon. Member for Mid Worcestershire for affirming the cross-party support in the Committee for action in this area.
My worry about what the Minister said is that I do not think a prosecution of YouTube for one of the videos that my hon. Friend the Member for Croydon Central said are currently available would be successful. I may be wrong, but there certainly have not been any prosecutions, and I do not think that, if there were one, it would succeed. That is why I think the law should be changed, as set out in new clause 13, so it is clear that hosting material that directly, or sometimes rather subtly, incites violence between groups of young people is against the law. That would give the action groups and taskforces that my hon. Friend has been describing the tools they need to get on with their job.
I recognise that this is a rather complicated issue, so I will withdraw new clause 13, but I hope that something else will come forward on Report to enable us to make progress. The hon. Member for Mid Worcestershire said that this is perhaps not the right place to make the change. I do not think it really matters where it is done, as long as it is done. This Bill gives us an opportunity, and I hope that in due course it will be taken. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 14
Enforcement
‘(1) It shall be the duty of every authority to which subsection (4) applies to enforce within its area the provisions of Clauses 1, 3, 4, 15 and 18 of this Bill.
(2) An authority in England or Wales to which subsection (4) applies shall have the power to investigate and prosecute for an alleged contravention of any provision imposed by or under this section which was committed outside its area in any part of England and Wales.
(3) A district council in Northern Ireland shall have the power to investigate and prosecute for an alleged contravention of any provision imposed by or under this section which was committed outside its area in any part of Northern Ireland.
(4) The authorities to which this section applies are—
(a) in England, a county council, district council, London Borough Council, the Common Council of the City of London in its capacity as a local authority and the Council of the Isles of Scilly;
(b) in Wales, a county council or a county borough council;
(c) in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(1);
(d) in Northern Ireland, any district council.
(5) In enforcing this section, an enforcement authority must act in a manner proportionate to the seriousness of the risk and shall take due account of the precautionary principle, and shall encourage and promote voluntary action by producers and distributors.
(6) Notwithstanding subsection (5), an enforcement authority may take any action under this section urgently and without first encouraging and promoting voluntary action if a product poses a serious risk.”—(Stephen Timms.)
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 15—Investigatory powers for trading standards—
‘(1) Schedule 5 of the Consumer Rights Act 2015 is amended in accordance with subsection (2).
(2) In Part 2, paragraph 10, at end insert—
(none) “section (Enforcement)”.”
This new clause is consequential on NC14.
Stephen Timms
In the evidence that the Committee took before the summer, we heard from Trish Burls, the head of trading standards in Croydon—the borough represented by my hon. Friend the Member for Croydon Central—who is the lead in London for the Chartered Trading Standards Institute on test sales of knives. The institute has made it clear that it welcomes the new measures in the Bill, but it also argues—in my view, rightly—that the Bill would be a good deal more effective if trading standards officers, not just police officers, have powers to enforce its provisions.
We have talked today about the fact that the police are woefully overstretched, and the National Audit Office reminded us of that forcefully this morning. Local authority trading standards departments can also make a very valuable contribution in such areas, but to do so they need new powers. As it stands, the Bill omits those powers. These new clauses would insert the power for trading standards officers to act in respect of the sale of corrosive products to under-18s, the delivery of corrosive products to persons under 18 and residential premises, and the delivery of bladed products to residential premises and people under 18.
Unlike the police, who derive their powers from the Police and Criminal Evidence Act 1984, trading standards officers have to be given powers for each piece of legislation they are called on to enforce. My case to the Committee is that they should have powers to enforce the measures we have been debating. I am quite surprised that the powers were not in the Bill when it was first drafted. They certainly should be there, as I hope the Minister will accept.
New clause 14 is based on similar provisions in earlier legislation. New clause 15 amends the Consumer Rights Act 2015 to confer investigatory powers on the enforcers listed in new clause 14. I think there is agreement across the Committee that the powers in the Bill are welcome, but if they are to have the effect we all want them to have, they will need to be properly enforced. It is not realistic to expect the police to do everything. A number of the new powers are exactly the kinds of things that trading standards officers do already and of which we know they can make an excellent job. Let us give them the tools to enable them to do that here as well.
Sarah Jones
I congratulate my right hon. Friend the Member for East Ham on his new clauses, which I support. They would resolve a major failing in the Bill that has the potential to undermine any benefits of the legislation by allowing breaches of it to go unpunished. As he said, there is no point passing Bills if they cannot be properly enforced. The Bill rightly places greater responsibility on retailers and delivery companies, but does not give the relevant authority—trading standards—the statutory powers to investigate breaches properly.
I recently represented the Opposition on the Tenant Fees Bill Committee, where we had a similar problem with the Government not seeming to understand the importance of the role played by trading standards; they had set out a very small amount of funding for a very significant increase in workload. In this Bill, the Government have not given trading standards teams legal powers to enforce the new laws.
The role that trading standards can play in enforcing the Bill, if they are given the powers to do so, is illustrated by the leading work being done by Croydon Council. For years, Croydon Council and Croydon trading standards have been at the forefront of work with retailers to improve their understanding of the law around knife sales through training, to encourage them to go further than required by law through greater responsible retailer agreements and by catching traders willing to break the law on underage sales using test purchasers, both in person and online. Croydon trading standards now has 145 retailers signed up to their responsible retailer agreements. They ran eight “Do you pass?” training sessions with retailers over the past year, encouraging additional measures such as Challenge 25 and the responsible display of knives in stores. The training sessions are a good indicator of which retailers are keen to work responsibly and which might not be. Finally, they have carried out 61 test purchases of knives in the past year to identify those retailers who are not complying with the law.
As Croydon’s trading standards manager pointed out to us in evidence, without statutory powers, much of their work on this area will be reliant
“on retailers’ good will and common sense.”––[Official Report, Offensive Weapons Public Bill Committee, 17 July 2018; c. 26, Q42.]
The Committee also heard from trading standards that the additional responsibilities will create
“a large resource issue that will no doubt have an impact.”––[Official Report, Offensive Weapons Public Bill Committee, 17 July 2018; c. 26, Q46.]
As with the Tenant Fees Bill, I hope the Minister can look at providing trading standards with adequate resources to enforce the provisions of the Bill. I recognise that the serious violence strategy released by the Home Office contained the promise of a prosecution fund for trading standards—a fund for two years to support targeted prosecution activity against online and instore retailers in breach of the laws on sales of knives to the under age—but the strategy is not clear about how much funding will be made available, and it gives no clarity to trading standards about support two years down the line.
The pressure on trading standards is increasing at a time when budgets are stretched to an unprecedented degree. As well as the Tenant Fees Bill and the new requirements in this Bill, there is a new burden on trading standards regarding the use of wood burners and the Government’s clean air strategy. Meanwhile, the budget for trading standards teams has been cut by half since 2009, from more than £200 million to barely £100 million. The number of trading standards officers has fallen by 56% in the same period.
As Labour’s communities and local government team pointed out in a recent local government health check on trading standards, those cuts have led to the downgrading of the protections that consumers depend on, and the tradition of routine inspections and sampling work has given way to a system based on consumer complaints. Relying on such a system is not an effective way to enforce laws, particularly those related to the purchase of knives or corrosives, which, by their nature, are unlikely to result in a complaint from buyer or seller. I end with a plea to the Minister not to allow this important piece of legislation to be nothing more than words in the statute book because it cannot, in the end, be enforced.
Victoria Atkins
As always, I am extremely grateful to the right hon. Member for East Ham for tabling these new clauses. It is important to note that it is possible for the legislation to be enforced by the police and that the Crown Prosecution Service can prosecute retailers who have breached the law if appropriate. On several occasions in my previous career, there were joint prosecutions—not necessarily just with the CPS, but with the Health and Safety Executive and local councils—and in the old days, prosecutions on housing benefit fraud. There are already powers in law to enable that to happen; the Bill can be enforced through those measures.
It might be helpful briefly to explain how trading standards officers and local authorities enforce the legislation on the age-restricted sale of knives. Local authorities have taken action in the past, and prosecute the sale of knives using the general powers in section 222 of the Local Government Act 1972. Section 222 provides powers to local authorities in England and Wales to prosecute or defend legal proceedings
“Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area”.
Those powers have been used to prosecute retailers in this context. Between 2013 and 2017, there were 71 prosecutions of sellers who sold knives to persons under 18. Although it is not possible to identify from the records whether the prosecution was brought by a local authority or the CPS, because the organisations do not maintain a central database that can run a report by specific offence, we understand that it is likely that the majority were brought by trading standards. Indeed, National Trading Standards has agreed to manage the prosecution fund that was introduced as part of the serious violence strategy, and it will work with local authorities in areas hit by knife crime to conduct test purchase operations and prosecute retailers if appropriate.
Stephen Timms
My understanding is that the powers the Minister has referred to could not be used to undertake prosecutions of offences under this legislation. That is the reason for tabling these new clauses—to ensure that trading standards officers have powers to act on the matters covered by the Bill. My understanding is that current powers would not allow that. Can she confirm whether I am right about that?
Victoria Atkins
My next paragraph reads: there is no reason why trading standards could not use the general powers under the Local Government Act 1972 to enforce the provisions in the Bill in relation to the sale of knives and corrosives. Of course, it is possible for the police and the CPS to use it, but I will seek further confirmation of that important point—it is quite right for the right hon. Gentleman to have raised it.
When I think back to the cases I prosecuted with local authorities, usually on behalf of the Health and Safety Executive, I was always struck by how well such organisations could work together and ensure that the needs of the local community were met. We know that the police often have all sorts of issues with time and resources, and it is helpful to have extra resources available through trading standards officers and local councils to assist in prosecuting these sorts of cases. Of course, trading standards officers will have the expertise in these cases, and will not only be experienced in test purchase operations but—
Paul Scully
The Minister is talking about trading standards. Last year, when I was going round Sutton high street with a couple of anti-knife charities, we saw that there are still a lot of large stores—well-known stores, rather than just the small ones—openly displaying knives, which could be stolen. Under-18s could access them; they should be behind lock and key. There is more that we can do to get those shops to use the voluntary code, but if that is not working we can do more through trading standards and local authorities. Does she agree?
Victoria Atkins
I am extremely grateful to my hon. Friend—in more ways than he could possibly know—for making that point. I know how much work he has done in his constituency, not only to understand the depth of this problem locally but to help law enforcement, and others, in his local area to meet the needs of the local community.
My hon. Friend is right. In due course, we will come on to measures such as cabinets. However, we have been very keen to ensure that if retailers sign up to the voluntary code, they can use measures such as ensuring that their displays help us in tackling this terrible crime.
Kevin Foster (Torbay) (Con)
I thank the Minister for giving way. Of course, she will know of my own background in local government. At times, I had responsibility for Coventry City Council’s legal services, which regularly carried out entrapment—some people call it that, but test purchases is the best way of putting it, dealing with those people who wish to sell products to under-18s that are not suitable for them.
Does she agree that, in considering such things, there would at least have to be some discussion with the Local Government Association beforehand, given the potential burden placed on councils, although I suspect that they would be keen to do this kind of work? That is why we also need to have the same age restrictions as we have for alcohol and other products, so that there would not have to be the same exercise by an enforcement officer for different ages.
Victoria Atkins
I am extremely grateful to my hon. Friend for the expertise that he brings to the Committee and I also thank him for his point about age. We have seen the complexity of the law in this area in general. I very much understood why the right hon. Member for East Ham tabled an amendment on age and the purchase of corrosives, to try to ensure that trading standards officers could apply the law in a meaningful way on the ground, but this complexity was one of the reasons we felt unable to support it.
I have an answer on whether section 222 can be used—confirmation, it is fair to say, of what I have said already to the Committee. The section does not appear to be restricted. Indeed, we are told that it has been used by trading standards previously for age-restricted products. I hope that satisfies the Committee, and for the reasons that I have given I hope that the right hon. Gentleman can withdraw the new clause.
Stephen Timms
I am grateful to the Minister for that response. I tabled the new clause because the Chartered Trading Standards Institute felt that it should be in the Bill.
At the very least, there is certainly some uncertainty, which was perhaps reflected in the pause before the point was answered, about quite what the legal position is. It ought to be very clear; trading standards officers ought to get on to this work as soon as the Bill is on the statute book. I cannot see any reason why we would not want to make the position absolutely clear that trading standards officers have these powers, and we could do that in the same way that it is has been done in other pieces of legislation.
I am encouraged that the Minister says that even without the new clauses trading standards officers will be able to act, but I think it would be right to put the provision in the Bill so that there is no uncertainty. I would, therefore, like to press new clauses 14 and 15 to a vote.
Question put, That the clause be read a Second time.
The Chair
Am I right in thinking that the right hon. Member for East Ham wishes to press new clause 15 to a Division?
Stephen Timms
I think, Mr Gray, that that purpose has been served by the vote on new clause 14.
Louise Haigh
I believe that we have had this debate with similar intention in other parts of our proceedings, so I will not move the motion.
New Clause 17
Prohibition of bladed product displays
“(1) A person who in the course of a business displays a bladed product in a place in England and Wales or Northern Ireland is guilty of an offence.
(2) The appropriate Minister may by regulations provide for the meaning of “place” in this section.
(3) The appropriate Minister may by regulations make provision for a display in a place which also amounts to an advertisement to be treated for the purposes of offences in England and Wales or Northern Ireland under this Act—
(a) as an advertisement and not as a display; or
(b) as a display and not as an advertisement.
(4) No offence is committed under this section if—
(a) the bladed products are displayed in the course of a business which is part of the bladed product trade;
(b) they are displays for the purpose of that trade; and
(c) the display is accessible only to persons who are engaged in, or employed by, a business which is also part of that trade.
(5) No offence is committed under this section if the display is a requested display to an individual age 18 or over.
(6) The appropriate Minister may provide in regulations that no offence is committed under section 1 if the display complies with requirements specified in regulations.’—(Louise Haigh.)
Brought up, and read the First time.
Louise Haigh
I beg to move, That the clause be read a Second time.
New clause 17 introduces the simple requirement of prohibiting the display of bladed products in shops. The clause is the result of a huge amount of work, led by my hon. Friend the Member for Lewisham, Deptford, who is not only the Opposition Whip on the Committee but the chair of the Youth Violence Commission. Due to the horrendous number of deaths in her constituency in the very short time since she and I were elected to Parliament in 2015, she has been leading on this work with Members from across the House, academics, practitioners, youth service workers, the police and experts from the whole range of people connected with youth violence. She is probably one of the foremost experts in this room, if not in Parliament now, on the causes of youth violence and what we need to do to tackle it. I very much commend to the Committee and to any observers of our proceedings the work of the Youth Violence Commission and the report that my hon. Friend recently published.
One of the commission’s basic and important recommendations is the prohibition of knife displays in shops, a matter that was discussed when experts gave evidence to the Committee. We asked USDAW, the Union of Shop, Distributive and Allied Workers, whether it believed that putting knives behind displays would be helpful. Doug Russell, representing USDAW, said:
“It would be. Obviously, now big retailers are increasingly going down the route of making it more difficult for customers to get their hand on the product until they have been age-checked and it is a transaction is safe. The problem with it, of course, is that all sorts of bladed things are being sold and it is about where you draw the line.”––[Official Report, Offensive Weapons Public Bill Committee, 19 July 2018; c. 98, Q239.]
Clearly, we want retailers to check people’s ages properly when they seek to purchase knives, but the fact of the matter is that many young people who want to access knives will go into shops and steal them if they are readily available. If they want to get their hands on a knife, they will get their hands on a knife, and if knives are readily available in a shop, not behind any kind of restriction or control, young people will steal one if they want to commit a crime with one.
Similarly, we have spoken to the British Retail Consortium, which has concerns about the definition of bladed products, as we discussed under earlier clauses. New clause 17 is in no way a reflection on the excellent work that the consortium has done on a voluntary commitment on open sale, which went some of the way towards restricting the ready availability of knives. Retailers have to ensure that knives are displayed and packaged securely, as appropriate, to minimise risk. This will include retailers taking practical and proportionate action to restrict accessibility, avoid immediate use, reduce the possibility of injury and prevent theft. However, that only covers those retailers that are signed up to the voluntary agreement. We would like to see those measures go further and to limit the open sale of knives altogether. Ultimately, there is little point in having the provisions in this Bill, and putting all these restrictions and burdens on online retailers, if we are not asking face-to-face retailers or platforms to abide by the same regulations as well.
There are a number of restrictions under law relating to other products, most obviously the extremely restricted provisions relating to the sale of tobacco, which prohibit the display of tobacco products in the relevant shops and businesses in England, except to people over the age of 18. Many believe—as I did before researching the issue—that general display is forbidden, but actually the Tobacco Advertising and Promotion Act 2002 specifically references under-18s, so the principle already exists in law to protect under-18s from harm by prohibiting the open display of goods. We see no reason why that should not be extended to bladed products, given that that is the definition elsewhere in the Bill. Given that the Government are so committed to clamping down on online sales, we hope that they recognise that face-to-face sales is a clear issue that needs further consideration.
Victoria Atkins
I thank the hon. Member for Sheffield, Heeley for raising those important points. The issue of the display of knives was raised by the British Retail Consortium and the British Independent Retailers Association during the Committee’s oral evidence sessions. We note their concern about the potential cost implications for small retailers of having to operate the secure displays and install the fixtures and layouts in their stores. The voluntary agreement with retailers, including larger retailers already sets out a requirement in relation to the display of bladed articles.
Sarah Jones
A couple of months ago someone in Croydon tweeted me, because Poundland, which has signed up to the voluntary code, had a large display of knives in its shop window. I wrote to Poundland and it removed the display, apologised and said it should never have happened—but it did happen. The fear with the voluntary code is that we can never be sure that people are doing what they say they will do.
Victoria Atkins
I was not aware of that specific example, but I appreciate the concerns. I am told that we would have to have a full public consultation on such a measure. That is certainly something about which I would like to think further, to see what can be achieved within the realm of the public consultation and so on. I would like us to keep the pressure up on those retailers that are already signed up to the voluntary agreement. I will consider this point in further detail.
Louise Haigh
Given the importance of the new clause and the fact the Minister has agreed to go away and look at the details, I am content to leave it and return to the issue on Report. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 19
Controls on miniature rifles and ammunition
“(1) The Firearms Act 1968 is amended as follows.
(2) Omit subsection (4) of section 11 (Sports, athletics and other approved activities).’—(Louise Haigh.)
This new clause would amend the Firearms Act 1968 to prevent persons being able to acquire an unlimited number of .22 rifles and ammunition without background checks or making the police aware.
Brought up, and read the First time.
Louise Haigh
I beg to move, That the clause be read a Second time.
New clauses 19 to 21 consider various loopholes that we know law enforcement officials are concerned about. We know that the architecture of firearms law in this country is incredibly strong, but there are still weakness in that armour that it is always necessary for Parliament to review and consider. As we have heard, as the supply of guns becomes ever more restricted, the lengths to which determined criminals and organised crime are prepared to go in order to find guns become ever more sophisticated.
National counter-terrorism police are concerned about a particular loophole, which our new clause 19 seeks to fix. The concern is focused on the section 11(4) exemption of the Firearms Act 1968, which allows for non-certificate holders to acquire and possess miniature rifles not exceeding .23 calibre and ammunition in connection with the running of a miniature rifle range. It is the strong belief of law enforcement that that exemption needs to be repealed to avoid persons completely unknown to the police having access to firearms and ammunition.
There are concerns that persons who have been convicted for firearms offences, who would not be granted a firearm or shotgun certificate under any other circumstances, could be acquiring .22 rifles using the section 11(4) exemption. Let me outline the concerns of the National Ballistics Intelligence Service. Section 11(4) allows a person claiming they are running a miniature rifle range to acquire an unlimited number of .22 rifles and ammunition without any background checks being completed or the police being aware. Those persons or clubs operating under the section 11(4) exemption are able to allow members of the public immediate access to firearms and ammunition, on payment, without any backgrounds checks having taken place.
The Home Office scheme for the approval of shooting clubs is specifically designed not to allow day membership, and limits the number of guest days. Yet the section 11(4) exemption continues to undermine that important control, and we know of incidents where such rifles have been stolen from commercial premises and used in crimes. I am genuinely interested to hear whether the Government intend to support the new clause. It is of clear concern to the national counter-terror police, and it is vital that the loophole is dealt with.
Victoria Atkins
The new clause would remove the provision in the Firearms Act 1968 that exempts from control the operators and users of miniature rifle ranges and shooting galleries. For those who are not familiar with firearms, those are less powerful than other weapons under clause 28.
Section 11(4) of the 1968 Act allows a person conducting or carrying on a miniature rifle range or shooting gallery at which only miniature rifles and ammunition not exceeding .23 inch or lower-powered air weapons are used to purchase, acquire or possess miniature rifles or ammunition without a firearm certificate. Additionally, a person can use those rifles and ammunition at such a range without a certificate. The 11(4) provision is used extensively by small-bore rifle clubs, and by some schools and colleges. There are smaller clubs, which do not meet the criteria to qualify as Home Office-approved clubs, that would be severely affected by removal of the exemption.
Exemption certificates issued by the National Small-bore Rifle Association or the Showmen’s Guild do not have legal force, but the Home Office firearms guide indicates that they may be considered proof that a person is operating a miniature rifle range or shooting gallery when, for example, a person relying on the 11(4) provision is purchasing a firearm from a registered firearms dealer. The exemption from certificate control for miniature rifle ranges and shooting galleries has been in place for many years, and removal of the provision did not feature among the recommendations for legislative change made by the Law Commission in its December 2015 report.
Louise Haigh
Will the Minister confirm whether she has received representations from NABIS or counter-terrorism police that the exemption be removed?
Victoria Atkins
I have not.
Many of the Law Commission recommendations were subsequently acted on by Government, with the aim of strengthening firearms controls and protecting public safety, in the Policing and Crime Act 2017. The Bill’s priorities must be to address the areas that present the most risk to public safety. On that basis, I invite the hon. Member for Sheffield, Heeley to withdraw the new clause. However, it is vital that firearms law is kept under review. We will continue to assess the position relating to section 11(4) and listen carefully to the advice of law enforcement personnel and any concerns they have about how the provision operates.
Louise Haigh
I find it very odd that NABIS would recommend this new clause and tell the official Opposition but not the Government that it needs it. I trust that it needs it and I believe the evidence it has presented to us, so I will press the new clause to a vote.
Question put, That the clause be read a Second time.
Louise Haigh
I beg to move, That the clause be read a Second time.
This is a simple probing new clause. Like the previous new clause, it deals with an area where there is a potential loophole in the law. It attempts to close the loophole of section 9 of the Firearms Act 1968, which provides an important exemption for auctioneers. Again, law enforcement authorities are concerned that the loophole means that there is significant potential for firearms to be stolen. Under the exemption, auction houses and carriers are exempt from firearms checks, which means that individuals who have not had any background checks completed on them or any of their employees have access to large quantities of section 1 and 2 firearms.
We would welcome a report on the exemption, which has been in place for many years, perhaps by the new firearms committee, which we hope to establish in new clause 21. We must consider what further safety measures must be put in place to prevent such weaknesses in the architecture of the firearms law. I look forward to the Minister’s response.
Victoria Atkins
New clause 20 would require the Home Secretary to review the exemption under section 9 of the Firearms Act 1968, which relates to auctioneers, carriers and warehousemen, and to report back to Parliament within six months. The exemption allows auctioneers, carriers, warehousemen and their servants to possess firearms and ammunition in the ordinary course of their business, without needing to hold a firearm or shotgun certificate.
However, there are some controls relating to the exemption. Section 14 of the Firearms (Amendment) Act 1988 requires that an auctioneer, carrier or warehouseman must take reasonable precautions for the safe custody of the firearms or ammunition in their or their servants’ possession. The loss or theft of any such firearm or ammunition must be reported to the police immediately. Failure to comply with those requirements is an offence carrying a maximum penalty of six months’ imprisonment. Before an auctioneer can sell firearms or ammunition by auction, they must either be registered with the police as a registered firearms dealer, or they must have obtained a permit from the police for that purpose.
It is also worth noting that the exemption does not apply where those people want to possess prohibited weapons or ammunition. In such circumstances, they must first obtain the Secretary of State’s authority under section 5 of the 1968 Act. The Government are not aware that the exemption is causing any public safety problems, and nor have the police and wider law enforcement agencies identified it to us as a priority for Government action. I have noted, however, what the hon. Member for Sheffield, Heeley said. Although I invite her not to press the new clause, I will take that point away for confirmation. Of course, we keep all aspects of firearms law under review in order to maintain public safety and to tackle crime.
Louise Haigh
I am grateful to the Minister for that response. This was a probing amendment and I am satisfied, so I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 21
Firearms Advisory Committee
“(1) There shall be established in accordance with the provisions of this section a firearms consultative committee consisting of a chairman and no fewer than 12 other members appointed by the Secretary of State, being persons appearing to him to have knowledge and experience of one or more of the following matters—
(a) the possession, use or keeping of, or transactions in, firearms;
(b) weapon technology; and
(c) the administration or enforcement of the provisions of the Firearms Acts 1968 to 1997.
(2) Subject to subsection (3) below, a member of the committee shall hold and vacate office in accordance with the terms of his appointment.
(3) Any member of the committee may resign by notice in writing to the Secretary of State; and the chairman may by such a notice resign his office as such.
(4) It shall be the function of the committee—
(a) to keep under review the working of the provisions mentioned in subsection (1)(c) above and to make to the Secretary of State such recommendations as the committee may from time to time think necessary for the improvement of the working of those provisions;
(b) to make proposals for amending those provisions if it thinks fit;
(c) to advise the Secretary of State on any other matter relating to those provisions which he may refer to the committee; and
(d) to make proposals for codifying the law on firearms.
(5) The Committee shall make particular reference to the working of the provisions in relation to counter-terrorism, serious organised crime and crimes of violence.
(6) The committee shall in each year make a report on its activities to the Secretary of State who shall lay a copy of the report before both Houses of Parliament.
(7) The Secretary of State may make to members of the committee such payments as he may determine in respect of expenses incurred by them in the performance of their duties.”—(Louise Haigh.)
This new clause would establish a firearms advisory committee empowered to make recommendations to the Secretary of State concerning firearms law and the codification of that law.
Brought up, and read the First time.
Louise Haigh
I beg to move, That the clause be read a Second time.
The purpose of the new clause is to ensure that changes in firearms legislation are considered on an expert basis in a way that does not further confuse and fragment the legislation. I accept that the Minister says that firearms legislation and the exemptions are kept under constant review, but the advisory committee was in existence until the last Government abolished it, and we are suggesting it be re-established because it played an important part in advising Government on firearms legislation from a variety of experts.
This issue has been a key concern of the Law Commission, particularly in relation to the codification of the legislation. The view of law enforcement, from a counter-terror perspective, is that the Firearms Act 1968, as amended, is not fit for purpose given the nature of the current threat.
There are a number of glaring examples of how vulnerable public safety is from potential acquisition of firearms and ammunition from the lawful community. We have already debated some of them in relation to miniature rifles and auctioneers, and we will come on to another in the next clause on the component parts of ammunition. There is also a system for issuing visitor firearm permits to non-residents of the UK, to permit them to travel to the UK with their firearms and ammunition. However, UK police make minimal background checks and the whole scheme assumes that their country of origin has a robust licensing scheme in place. I cannot quite wrap my head around the folly that the police would assume that any other country in the world would operate a similar licensing scheme as robust as ours, given that we are proud of the fact that we have such strict controls on firearms in this country.
It is of great concern that there is no system in place at our borders to ensure that firearms and ammunition brought into the UK by virtue of visitor firearm permits are actually taken back out of the UK by the visitor. The Law Commission recommended codification of the Firearms Act in its December 2015 report, but so far the Home Office has not progressed that—I would have thought that the Offensive Weapons Bill would be a convenient vehicle for doing just that. The purpose of the re-establishment of the firearms committee is to allow for expert consideration of such loopholes in the current law in the light of the current threat environment and to allow for consideration of the implementation of the codification of firearms law.
Victoria Atkins
A firearms consultative committee existed for a number of years following the introduction of the Firearms (Amendment) Act 1988. It consisted of representatives from shooting organisations, law enforcement, technical experts and other interested parties. The purpose of the committee was to keep the workings of the Firearms Acts under review, following the terrible shootings by Michael Ryan in Hungerford in 1987 and the subsequent introduction of the 1988 Act.
The committee was discontinued in 2004, so it is something for which the coalition Government cannot be blamed. Thereafter the views of interested parties and experts have been sought by Government when particular issues arise. For example, the Government have held meetings and sought views widely when developing policy on issues in relation to antique firearms and fees for prohibited weapon authorities, and we will shortly be conducting a public consultation on the introduction of statutory guidance to the police on firearms.
This consultative approach continues in a more flexible way than is envisaged through the proposed introduction of a statutory consultative committee. There would inevitably be greater administration and cost associated with introducing and supporting the functioning of a statutory body to which particular members are appointed, and potentially less flexibility and speed of response than there is with the current approach, whereby the Government consult interested parties swiftly as firearms issues arise. I therefore invite the hon. Lady to withdraw the new clause.
Louise Haigh
I apologise to the Committee, to the Government and to the previous Government—the abolition took place under the previous Labour Government. I am normally one to hold my hand up to mistakes made by former Labour Governments. I am comforted by the Minister’s assurance that the Government will consult on the codification. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 22
Possession of component parts of ammunition with intent to manufacture
‘(1) Section 1 of the Firearms Act 1988 is amended as follows.
(2) After subsection (5) insert—
“(6A) A person commits an offence if—
(a) the person has in his or her possession or under his or her control the component parts of ammunition; and
(b) the person intends to use such articles to manufacture the component parts into ammunition.
(6B) A person guilty of an offence under this section is liable—
(a) on summary conviction—
(i) in England and Wales to imprisonment for a term not exceeding 12 months (or in relation to offences committed before Section 154(1) of the Criminal Justice Act 2003 comes into force six months) or to a fine or both;
(ii) in Scotland to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding five years, to a fine, or to both.’—(Louise Haigh.)
Brought up, and read the First time.
Louise Haigh
I beg to move, That the clause be read a Second time.
The new clause proposes a simple change that I hope the Government will support, on something that came to light during the evidence session. I think that many Committee members were surprised to hear about the ease with which individuals could get their hands on deactivated or antique weapons. They can manufacture ammunition, and no offence has been committed until the ammunition is viable and capable of being used. Over the summer there was also a good documentary—I believe it was a “Panorama” one—on antique weapons, which demonstrated clearly the ease with which people could get their hands on them without committing an offence and be in possession of deadly weapons.
Everything up to that point—purchasing deactivated or antique weapons and collecting component parts from which ammunition can be manufactured—is perfectly legal. As Gregg Taylor of NABIS stated about the case of Paul Edmunds, a rogue firearms dealer who sold weapons to gangs:
“The ammunition was actually key to that case. As I said, guns are exempt from the Firearms Act if they are kept as a curiosity or an ornament. If ammunition is made to fit the gun, that is when it reverts back to being a prohibited weapon, so the making of the ammunition is key. That is what we see in criminal use right now. People out there make ammunition to fit these obsolete guns, and there are no restrictions on the components of the ammunition. It is only when the ammunition is made as a whole round that it becomes licensable, but the actual components, and the sourcing of them, can be done freely on the internet.”––[Official Report, Offensive Weapons Public Bill Committee, 17 July 2018; c. 39, Q91.]
That is clearly unjustifiable in the current climate. Our restrictive gun laws are leading to criminals attempting to find—and easily finding—plausible ways around the lack of supply of legal weapons.
Gregg Taylor was extremely critical of the loopholes in the law. He also said:
“There is a lack of control and legislation around purchasing and acquiring ammunition components. People can freely acquire all the equipment they need to make ammunition; the offence kicks in only once you have made a round.”––[Official Report, Offensive Weapons Public Bill Committee, 17 July 2018; c. 42, Q99.]
Mark Groothius of counter-terrorism policing said:
“In respect of the ammunition…I think we need to go further, in so much as we find people with the primers. The possession of a primer is not an offence. Possession of the cartridge case is not an offence. Possession of bullet heads is not an offence. With the question of the powder, there probably is an offence, but it is one of those offences hidden in the explosives regulations and it is difficult to actually prosecute. If we had a new offence for possession of component parts with intent to manufacture, that would assist us greatly. We do not have that at the moment.”––[Official Report, Offensive Weapons Public Bill Committee, 17 July 2018; c. 44, Q102.]
The Opposition in Committee heard that evidence. We want to assist the counter-terror police and NABIS greatly in their work and in their aim to stop organised criminal gangs getting hold of weapons that they can turn into deadly ones as easily as they can now. We therefore hope that the Minister will be willing to support our simple amendment.
Victoria Atkins
I thank the hon. Lady for this new clause, which addresses an issue raised in Committee by the police during the evidence sessions.
Those who look at such things and know about drafting are of the view that the new clause as drafted is probably technically defective. It would insert the new offence into section 1 of the Firearms (Amendment) Act 1988, although that section amends section 5 of the Firearms Act 1968 to extend the class of prohibited weapons and ammunition and to enable the Secretary of State to add weapons or ammunition to section 5 by order.
The key components of ammunition are the gunpowder, which burns rapidly to propel a projectile from a firearm, and the primer, which is an explosive chemical compound that ignites the gunpowder. The remaining components are the cartridge case and the projectile itself, which are inert metal. Primers are controlled by the Violent Crime Reduction Act 2006. Under section 35, it is an offence to sell or purchase primers unless the purchaser is authorised to possess them, for example, by being a registered firearms dealer or by holding a firearms certificate authorising them to possess a firearm of the relevant kind. The maximum penalty for this offence is six months’ imprisonment.
Louise Haigh
We have heard evidence from law enforcement that the clause would help them in their ability to disrupt gang networks and access to lethal weapons. Although I appreciate that there may be issues with the drafting of the amendment and there is legislation that covers some of it, I have not heard a good argument for why we should not bring this in to help law enforcement even more.
Victoria Atkins
I am not saying this critically, but we can only vote on the clause we have before us. On the substantive point, we are looking at these issues in the context of antique firearms. The Government intend to introduce regulations later this year. On that basis, unless there is anything else, I ask the hon. Lady to withdraw the clause.
Louise Haigh
We will come on to clauses on antique weapons. It is quite frustrating that we are waiting for the regulations to come forward, but we will have to wait for them to be able to scrutinise them properly. I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 23
Antique Firearms
‘(1) The Firearms Act 1968 is amended as follows.
(2) In section 16A (1) (Possession of firearm with intent to cause fear of violence) for “or imitation firearm” substitute “, imitation firearm or antique firearm”.
(3) In section 19 (carrying a firearm in a public place), after subsection (d) insert—
“(e) antique firearm.”
(4) In section 20 (1) (Trespassing with firearm) for “or imitation firearm” substitute “, imitation firearm or antique firearm”.
(5) In section 20 (2) (Trespassing with firearm) for “or imitation firearm” substitute “, imitation firearm or antique firearm”.’—(Louise Haigh.)
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 24—Antique Firearms (No. 2)—
‘(1) The Firearms Act 1968 is amended as follows.
(2) In section 17 (1) (Use of firearms to resist arrest), for “or imitation firearm” substitute “, imitation firearm or antique firearm”.
(3) In section 17 (2) (Use of firearms to resist arrest), for “or imitation firearm” substitute “, imitation firearm or antique firearm”.
(4) In section 18 (1) (Carrying firearm with criminal intent) for “or imitation firearm” substitute “, imitation firearm or antique firearm”.
(5) In section 18 (2) (Carrying firearm with criminal intent) for “or imitation firearm” substitute “, imitation firearm or antique firearm”.’
New clause 26—Offence of buying antique firearms for cash etc—
‘(1) A person commits an offence if they purchase an antique firearm other than by—
(a) a cheque which under section 81A of the Bills of Exchange Act 1882 is not transferable; or
(b) by an electronic transfer of funds (authorised by credit or debit card or otherwise).
(2) The Secretary of State may by order amend subsection (1) to permit other methods of payment.
(3) In this section paying includes paying in kind (with goods or services).
(4) If an antiques dealer (“the purchaser”) is in breach of subsection (1), each of the following is guilty of an offence—
(a) the antique dealer;
(b) any person who makes the payment acting for the dealer.
(5) It is a defence for a person within subsection (4)(a) or (b) who is charged with an offence under this section to prove that the person—
(a) made arrangements to ensure that the payment was not made in breach of subsection (1); and
(b) took all reasonable steps to ensure that those arrangements were complied with.
(6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.’
New clause 27—Compulsory register of transaction in antique firearms—
“(1) Any person who by way of trade or business manufactures, sells or transfers antique firearms must provide and keep a register of transactions and must enter or cause to be entered therein the particulars specified by order of the Secretary of State.
(2) Every entry required by subsection (1) of this section to be made in the register shall be made within 24 hours after the transaction to which it relates took place and, in the case of a sale or transfer, every person to whom that subsection applies shall at the time of the transaction require the purchaser or transferee, if not known to him, to furnish particulars sufficient for identification and shall immediately enter the said particulars in the register.
(3) Every person keeping a register in accordance with this section shall (unless required to surrender the register under section 38(8) of the Firearms Act 1968) keep it for such a period that each entry made after the coming into force of this subsection will be available for inspection for at least five years from the date on which it was made.
(4) Every person keeping a register in accordance with this section shall on demand allow a constable or a civilian officer, duly authorised in writing in that behalf by the chief officer of police, to enter and inspect all stock in hand, and must on request by an officer of police so authorised or by an officer of customs and excise—
(a) produce the register for inspection; or
(b) if the register is kept by means of a computer, produce a copy of the information comprised in that register in a visible and legible form for inspection
provided that, where a written authority is required by this subsection, the authority shall be produced on demand.
(5) Every person keeping a register in accordance with this section by means of a computer shall ensure that the information comprised in the register can readily be produced in a form in which it is visible and legible and can be taken away.
(6) It is an offence for a person to fail to comply with any provision of this section or knowingly to make any false entry in the register required to be kept thereunder.
(7) A person guilty of an offence under subsection (6) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”
Louise Haigh
The Minister just mentioned the recommendations of the Law Commission, which formed the consultation last year. In the “Panorama” documentary that I just referred to, the police suggested that it was irrational to impose greater obligations on scrap metal dealers than upon those who sell firearms, albeit antique ones. At present, an antique firearm can be bought for cash with no verification of the identity of the purchaser. That means there is no way of tracing who has purchased an antique firearm.
This state of affairs seems particularly unsatisfactory when one considers that by virtue of section 12 of the Scrap Metal Dealers Act 2013, which was mentioned by my right hon. Friend the Member for East Ham, a scrap dealer must not pay for scrap metal except by cheque or electronic funds transfer, including by credit or debit card. Additionally, by virtue of sections 11 to 15 of the Act, scrap metal dealers must record each transaction, the method of payment and to whom the payment was made, having verified their identity.
The benefit of imposing a similar obligation upon those who sell antique firearms is that it would aid the investigation of crimes in which such items are used, and that is what new clause 26 is designed to do. The Law Commission provisionally provides that the sale of antique firearms ought to take place by cheque or electronic funds transfer. The National Ballistics Intelligence Service and the Crown Prosecution Service are in favour of imposing such an obligation. Although we realise that dealers and collectors have expressed serious misgivings, we believe the balance should tip in favour of keeping the public safe.
New clause 24 seeks to change the offences in sections 17 and 18 of the Firearms Act 1968 to make it absolutely clear that antiques are covered by that Act. The Law Commission stated that, on one interpretation, the Act exempts antique firearms
“from every other provision in the Firearms Act 1968, including the offences contained in sections 16 – 25. This part of the Act is entitled Prevention of crime and preservation of public safety. The relevant offences are…possession of a firearm with intent to cause any person to believe that unlawful violence will be used against him or her…use of a firearm with intent to resist or prevent the lawful arrest or lawful detention…carrying a firearm with intent to commit an indictable offence…carrying a firearm in a public place…trespassing with a firearm…purchasing or selling firearms to minors…supplying a firearm to a minor…supplying a firearm to a person drunk or insane.”
I do not know whether we use such language in legislation any more.
The Law Commission continued:
“To take one example, the effect of section 58(2) might be that it would not be an offence contrary to section 17 to use an antique firearm to resist arrest. This strikes us as a loophole that ought to be closed.”
This is similar to our discussion about imitation firearms. The commission added:
“If it is an offence to use an imitation firearm to resist arrest, then it should also be an offence to use an antique firearm…The offences in section 16 – 25 could be amended to put beyond doubt that they can also be committed by someone with an antique firearm. This…we believe…would have no detrimental impact upon legitimate antique firearms collectors.”
Victoria Atkins
The Government share the concerns expressed about the increasing use of antique firearms in crime, and we are committed to strengthening controls to tackle the problem. That is an important part of our work to tackle gun crime, as set out in the “Serious Violence Strategy”.
It may help to explain our position on the new clause if I explain the background to this issue and what the Government are doing to address it. As has been stated, in 2015 the Law Commission carried out an independent review of firearms law. It raised the issue of the increasing use of antique firearms in crime and recommended that the exploitation of the definition of “antique firearm” to obtain old, functioning firearms should be addressed by introducing a statutory definition. The Government accepted that recommendation and included provisions in the Policing and Crime Act 2017 to define “antique firearm” in regulations by reference to a firearm’s propulsion system and the type of cartridge it was designed to use. A cut-off manufacture date, after which a firearm cannot be considered an antique, can also be specified.
Late last year, the Home Office undertook a full public consultation to seek views on the detail of the regulations. As I said, we are considering the responses we received, many of which were unnecessarily technical, and it is our intention to lay regulations before Parliament by the end of the year. I hope that reassures the Committee that the Government are taking steps to tackle this serious issue.
New clauses 23 and 24 would add antique firearms to the scope of specified offences in the Firearms Act 1968. I am pleased to say that the new clauses are not necessary, since their effect is covered by existing legislation. Section 126(3) of the Policing and Crime Act 2017 will amend the 1968 Act by extending the offences in sections 19 and 20 of that Act to antique firearms. Section 126 will be brought into effect early next year. The remaining offences covered by the two new clauses already apply to antique firearms because those offences require the weapon to be used with criminal intent. Anyone using an antique firearm in that way would not be possessing it as a curiosity or ornament and the exemption for antique firearms would therefore not apply. The Law Commission reached the same conclusion in 2015.
New clause 26 would make it an offence to purchase antique firearms by cash and other non-traceable methods. That is intended to provide a record of transactions involving antique firearms that would enable the police to trace the supply chain when they are recovered in crime. The Law Commission considered that aspect of the controls in 2015. It concluded that although stopping cash payments might in theory allow the police to trace a purchaser, it could work only if they knew who the seller was. The owners and dealers of antique firearms are not licensed and so are not known to the police or other authorities. In that light, the Law Commission made no recommendation on that point.
The new clause would therefore not be effective—it would require a form of licensing of antique firearms and those who deal in them and there are no current plans to introduce such a licensing scheme. The vast majority of owners and dealers are law abiding and do not present a public safety risk. We want to be proportionate in controlling antique firearms, targeting criminal misuse while recognising legitimate collectors and dealers. We are none the less strengthening the controls on antique firearms by defining them in law. We have also proposed arrangements regularly to review the controls, to give us a chance to monitor how they are working and, if necessary, to consider further measures.
New clause 27 would require anyone who trades in antique firearms to keep a register of transactions. Like new clause 26, it is intended to provide an audit trail of transactions to allow the police to trace the supply of antique firearms that are recovered in crime. The Law Commission considered that and made no recommendation. As with the cash payments proposal, it could work only if the police knew who the seller was. In the absence of any licensing or registration of owners and dealers, it is not possible. New clause 27 would therefore not work.
As I set out, we are actively strengthening the controls on antique firearms by defining them in law. We are also committing to regular reviews of the controls involving law enforcement and other stakeholders. I am grateful to the hon. Member for Sheffield, Heeley for tabling the new clause. I hope the explanation of the Government position has helped with the complexities of this important issue and therefore ask her to withdraw the proposals.
Louise Haigh
I am grateful to the Minister for her comprehensive reply. I am satisfied and pleased to hear that new clauses 23 and 24 are not necessary given their introduction in the Police and Crime Act 2017—the Government have beaten me to it. However, I am not convinced by the argument against new clauses 26 and 27. An audit trail when purchasing firearms, be they antique or otherwise, is vital. That a licensing or registration scheme for antique firearms dealers does not exist to make it workable does not mean that we should not introduce one. If people want to sell weapons that can be used as deadly weapons on our streets to maim and kill children in every one of our constituencies, we should be able to establish who they are selling them to. We could return to that on Report and possibly when the regulations are introduced, before the end of the year. For now, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
The Chair
We have debated new clause 24, which I presume the shadow Minister does not wish to move. We then come to new clause 25, which was debated in an earlier group, and new clause 26, which was debated a moment ago, but she does not wish to move them formally. Clause 27 is also not moved.
New Clause 28
Controls on purchase or acquisition of shotgun ammunition
“(1) The Firearms Act 1968 is amended as follows.
(2) In section 1(b) (Requirement of a firearm certificate) after “to have in his possession” leave out “to purchase or acquire”.
(3) After section 1(b) insert—
“(c) to purchase or acquire, any ammunition to which this section applies without holding a firearm certificate in force at the time, or otherwise than as authorised by such a certificate, or in quantities in excess of those so authorised.”
(4) After section 1(4) insert—
“(5) Notwithstanding subsection 1(3) and 1(3)(a) shotgun ammunition within the meaning of this Act is not exempt from an offence under 1(c).”’—(Louise Haigh.)
This new clause would make it an offence to purchase or acquire shotgun ammunition without a valid firearm certificate.
Brought up, and read the First time.
Louise Haigh
I beg to move, That the clause be read a Second time.
This new clause is also based on the compelling evidence that the Committee received early on, particularly from Mark Groothuis from counter-terrorism policing, who said:
“It is actually relatively easy to obtain shotgun ammunition. If you want to purchase it, you must produce a shotgun certificate, but I can give shotgun ammunition to a person who is 18 or above without a shotgun certificate. In theory anyone in this room could possess up to 15 kg net explosive quantity of shotgun cartridges, which is a huge quantity—probably in excess of 10,000 rounds—with no certification at all. The controls around shotgun ammunition are particularly loose. The control is there to purchase, but not to be given”—
that is, not to supply. He continued to say that, as another witness had said,
“if you have shotgun ammunition, you can take the shooter’s powder out of it and use it for other purposes.”––[Official Report, Offensive Weapons Public Bill Committee, 17 July 2018; c. 43, Q102.]
That is what the amendment seeks to address. I appreciate why the exemption is already in law, because when someone is out on a hunt, they should not be criminalised for passing shotgun cartridges or ammunition to a fellow hunter or shooter, but surely that threshold of 15 kg is far too high and creates unnecessary loopholes in the legislation. I hope the Government will seriously consider our amendment and maybe give us just one little win.
Victoria Atkins
I am tempted. I thank the hon. Lady for tabling the new clause, but again—I feel sorry to point this out—those who know about these things believe the wording to be technically defective. The relevant certificate would be a shotgun certificate rather than a firearm certificate, for example.
On the substance, we believe that the new clause is unnecessary, because legislation already contains an appropriate level of control on shotgun ammunition. It is not subject to licensing, and therefore does not have to be entered on a certificate in the same way as firearm ammunition, but section 5 of the Firearms (Amendment) Act 1988 applies an important check at the point of sale by making it an offence to sell shotgun ammunition to anyone who is not a registered firearms dealer or a shotgun certificate holder. The maximum penalty is six months’ imprisonment.
A purchaser must present a valid shotgun certificate to a dealer before she or he can be sold shotgun ammunition, or must otherwise demonstrate their entitlement to be sold the ammunition. It is true that that does not prevent someone who has lawfully purchased shotgun cartridges from subsequently gifting them to a non-certificate holder, but we are not aware that that is happening in practice or that it is causing a serious public safety problem. If it is, we would be keen to see the evidence so that we can consider what might be done in response.
Louise Haigh
Will the Minister explain to the Committee why the threshold is so high, at 10,000 rounds of shotgun ammunition? If the exemption is there to allow me to pass ammunition to a fellow shooter, why does it have to be at 10,000 rounds? It seems completely excessive.
Victoria Atkins
That is a very interesting question, and one that I might need to reflect on. If I may, I will take the chance to reflect on it now, because that does seem like a very large number of shotgun cartridges. I do not shoot myself, but I know those who do.
Kevin Foster
I am conscious that the Minister may be about to get official advice, but does she agree that one of the reasons for the threshold might be to ensure that no one was innocently caught out? To do that, it would have to be set at a level that was clearly well beyond that, at a point where a jury would be only too happy to convict someone and could be beyond reasonable doubt that that person clearly had no good reason to be passing the ammunition on, other than to avoid firearms legislation.
Victoria Atkins
That is a very interesting suggestion. The explosives regulations also come to mind, because the limit on holding gunpowder is set by those regulations, and these are the limits set by those regulations. I will take away the suggestion that perhaps the regulations need to be looked at to ensure that they meet the public safety test and expectations that we all have. That will be consistent with us keeping firearms law under review, as always, and examining any significant vulnerabilities that are brought to our attention. I hope the hon. Member for Sheffield, Heeley will withdraw her amendment.
Louise Haigh
Although I am still unsatisfied as to why the threshold should be so excessively high, I will go back and look at the explosives regulations and perhaps we will return with further amendments on Report. For now, I beg to ask leave to withdraw the new clause.
Clause, by leave, withdrawn.
Louise Haigh
Like the other new clauses, new clause 29 has been covered in our consideration of other amendments and in other debates, so I shall not move it now.
New Clause 30
Aggravating factor
“(1) Where a court is considering for the purposes of sentencing the seriousness of an offence under subsection 5(1), and either of the facts in subsection (2) are true, the court—
(a) must treat any fact mentioned in subsection (2) as an aggravating factor (that is to say, a factor that increases the seriousness of an offence), and
(b) must state in open court that the offence is so aggravated.
(2) The facts referred to in subsection (1) are that, at the time of committing the offence, the offender was—
(a) the driver of a moped or motor bicycle, or
(b) a passenger of a moped or motor bicycle.
(3) For the purposes of this section, “moped” and “motor bicycle” have the same meanings as in section 108 of the Road Traffic Act 1988.”—(Tulip Siddiq.)
Brought up, and read the First time.
Tulip Siddiq
I beg to move, That the clause be read a Second time.
I am also aware that everyone wants to leave, so I will try to be as quick as I possibly can be—[Interruption.] At least I have one agreement from Government Members so far.
Subsection 5(1) argues that a person commits an offence if they have a corrosive substance with them in a public place. I tabled new clause 30 to force a court to consider, for the purposes of sentencing the offence set out in subsection 5(1), that the use of a moped is an aggravating factor. This would mean that if the offender was in possession of corrosives while driving a moped, or while a passenger on a moped, they would face a longer sentence.
Aggravating offences, as set out by the Sentencing Council, already include
“Use of a weapon to frighten or injure victim”
and
“An especially serious physical or psychological effect on the victim”.
Attacks using corrosive substances are clearly intended to frighten and, as we have discussed, they cause especial physical and psychological effects on a victim. However, I would like to see mopeds, as defined in subsection (3) of my new clause, explicitly listed as an aggravating factor for possession.
I do so for four key reasons: one, an individual who carries a corrosive substance on a moped poses an additional risk to the public; two, corrosive substance attacks committed from a moped uniquely heighten the physical and psychological effect on the victim; three, mopeds are deliberately chosen by offenders to escape detection and conviction; and, four, conviction rates for moped-related crimes are especially low, and explicitly listing mopeds as an aggravating factor will serve as a future deterrent.
In my constituency of Hampstead and Kilburn, moped crimes and offensive weapons have wreaked havoc in the lives of local residents, especially the attacks in recent months on two local councillors, who were both coming home from late-night council duty and were both targeted by people on mopeds.
The statistics are alarming, not only for my constituency but for London generally. In Brent, 512 crimes using offensive weapons took place between July 2016 and July 2018, and in Camden in the same time period 394 crimes using offensive weapons took place, which represented an increase of 16% between July 2017 and July 2018. In June 2017 alone, Camden suffered 1,363 moped crimes. In 2017-18, there were over 20,000 moped-related crimes in London.
The correspondence from my constituents at the height of these crimes has often been desperate and angry in equal measure. I will quickly give two examples from the many, many emails that I have received on this topic. Jessica from Belsize Park said:
“I have never written to my MP before but I am growing increasingly concerned about the spate of violent moped attacks taking place across London. I had a near-miss last week and almost didn’t report it to the police as I felt that there was nothing they could or would do.”
Gaurav from Hampstead Town said:
“I am frankly appalled at how inaction is emboldening gangs to strike with impunity. This has to stop. I feel scared about my family and children walking in the area.”
Sarah Jones
I apologise to the Committee for what will be a brief intervention; I just wanted to stress the point that my hon. Friend is making. Last week, I met a couple who had been walking along the street in Croydon with their young daughter, and two people on mopeds who were wearing masks came up to them and held a knife at the neck of the daughter, who is about seven years old. Fortunately, in the end nobody was hurt and the police are doing what they can, but my hon. Friend is making a really serious point. This is a real issue and it would be very useful if the Minister could consider accepting the new clause.
Tulip Siddiq
I thank my hon. Friend for that intervention and I am sorry to hear about what happened to her young constituent; it must have been quite frightening. That also leaves a huge impact afterward as people think about what happens as someone is speeding past. I know that now when I walk past any moped I quickly hide my phone; I think many of my constituents have started to do the same as well. I am hardly going to be able to fight anyone off—I am aware of my strengths there.
Returning to my point, I have had dozens of emails similar to the ones that my hon. Friend describes, and they all describe the sense of fear created by those committing offences under subsection 5(1) from the back of mopeds. Many of my constituents see the use of a moped in such a circumstance as unduly reckless, negligent and therefore threatening, and would naturally agree that perpetrators of those offences should face tougher sentencing in the courts.
I believe that the recent case of Derryck John illustrates the threat of carrying corrosive substances on the back of mopeds. Mr John was convicted in March after being found guilty of carrying out six acid attacks against moped riders in less than 90 minutes. He sprayed his victims with a poisonous liquid, leaving one man with 30% sight loss in one eye. He stole two mopeds and tried to take another four from their owners before being arrested. Mr John was able to cause such significant damage to his victims in such a short period of time precisely because he was using a moped.
Coming back to my constituency, it is worth saying that moped crimes have plummeted about 80% since their peak. That is because of the innovative responses from the Metropolitan Police: Operation Attrition, the increase in unmarked Q cars, the use of spray-tagging of mopeds, motorcycle patrols and tactical collusions have all proved effective. However, the figures for detection and conviction rates for moped crimes remain astonishingly low. In 2017-18, detection rates for offences resolved through a sanction stood at just 2.6%, which means that more than 97% of moped criminals escaped justice in that year. That is appalling and unjust.
My new clause may not dramatically reverse that picture—after all, criminals must be caught before they are brought to trial—but it will definitely act as a deterrent to those who would be so reckless as to possess offensive weapons, particularly corrosive substances, in a public place on a moped. There can be no excuse for it, and the process of sentencing should reflect the additional fear and risk posed by the use of a moped in such instances. That is what my new clause is intended to do, and I hope that Government Members will see fit to support it.
Stephen Timms
I rise briefly to support the new clause tabled by my hon. Friend the Member for Hampstead and Kilburn and to welcome the fact that she has raised this in the Committee.
There is certainly a close link between acid attacks on one hand, and the use of mopeds on the other. I will highlight one particular group of victims here, which is moped delivery drivers. I think the series of attacks that she referred to was aimed at a group of drivers, a number of whom I have met. In particular, I pay tribute to Mr Jabed Hussain, who was himself a delivery driver with UberEats and was the victim of one of these attacks. He has since joined the International Workers Union of Great Britain to bring together the very vulnerable people who work delivering meals and all sorts of things around London. There are large numbers of them now, but they are pretty exposed, and if people come after them with acid they are in a dangerous situation.
When I last spoke to him, Mr Hussain had not yet been able to get back to his work because of the trauma he had suffered as a result of the attack inflicted on him. I am grateful to my hon. Friend for raising this important issue and I hope the Minister will be able to respond sympathetically to what she has said.
Victoria Atkins
I am grateful to the hon. Member for Hampstead and Kilburn for tabling this new clause. We understand why she and the right hon. Member for East Ham, and those from other constituencies, are rightly concerned about the use of motorcycles, mopeds and scooters to commit crime. We know also that the use of corrosive substances in these circumstances is a worryingly frequent occurrence. Indeed, the fear, and short-term and long-term effects that such attacks can have, were made clear to me when the constituent of the right hon. Member for East Ham, Mr Jabed Hussain, came to talk to me about the effects that such attacks have on him and his fellow delivery drivers.
Tulip Siddiq
I appreciate the Minister’s response, and the sympathy she has expressed for victims. I, too, commend the work of the Metropolitan police, but I do not feel that the legislation is strong enough to tackle the kind of crime I have described. The conviction rates are too low not to press the new clause to a vote.
Question put, That the clause be read a Second time.
Victoria Atkins
On a point of order, Mr Gray. As we are nearing the end of our deliberations, may I say a few words of thanks to everyone who has been involved in the scrutiny process? We have scrutinised the Bill seriously and thoroughly, and have had plenty of time to consider it in great detail. I am grateful to you, Mr Gray, and to Mr Gapes, for the excellent chairing, keeping us all in order in what has been a very warm Committee Room.
I am incredibly grateful to all Committee members for the constructive way in which they have approached their deliberations. I am also grateful that, despite points of disagreement, the Committee’s passion and determination to help law enforcement and others to tackle these serious crimes has come through very strongly. I am particularly grateful to the hon. Member for Sheffield, Heeley and the right hon. Member for East Ham for their many considered and expert contributions, and to—wish me luck—the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. He is not even here to appreciate my efforts, but he brought a different perspective to the issues we have been debating.
I also thank my officials. Our consideration of the issues has demonstrated how complex their job has been, both in preparing the Bill and as we have been scrutinising it. I also thank everyone who has supported the Committee, including the Doorkeepers, the Hansard reporters and, of course, the Committee Clerks. I am sure that our deliberations in Committee have put us in a good place as the Bill progresses.
Louise Haigh
Further to that point of order, Mr Gray. I, too, thank you and Mr Gapes for keeping us in order and for your invaluable guidance in Committee. I thank the Minister for her thoroughness and graciousness in taking our interventions and providing us with thorough responses. I also thank all Committee members who have engaged in such a constructive, thoughtful debate. I believe we have scrutinised the Government’s legislation before us and brought forward additional clauses that we think the Bill is lacking. We hope that will continue as the Bill passes through Parliament.
I thank in particular my fantastic team on the Opposition side—sorry to the Government Back Benchers—and my fantastic Whip, my hon. Friend the Member for Lewisham, Deptford, who is such an expert in this area as chair of the Youth Violence Commission. I think I am uniquely blessed in that I have a team of people who wanted to be on the Bill Committee and have such personal expertise and interest in this area. I hope the others will not mind if I thank in particular my right hon. Friend the Member for East Ham, who has schooled us all in scrutiny of the legislation and brought his personal expertise and experience, which is sadly born out of the horrific experience and events in his constituency.
I also thank the officials, the Clerks, the Doorkeepers and Hansard as well as everyone who gave evidence to the Committee, who have been heard. They might not all be satisfied with the outcomes, but we have listened and considered all the evidence submitted. If I may, Mr Gray, I will also thank my researcher, Danny Coyne. The Government have an entire team of civil servants, but my poor researcher has been up till midnight most nights helping me write my speeches.
The Chair
Of course, both points of order were entirely bogus, but none the less they were extremely welcome.
Victoria Atkins
On a point of order, Mr Gray. I hope this is a legitimate point of order. As we have finished earlier than anticipated, I would be grateful if the Committee would give me leave to submit a letter tomorrow that will provide a note on the English votes for English laws conditions.
So that I do not get into trouble, I will also take this chance to thank my Whip, the Lord Commissioner of Her Majesty’s Treasury, my hon. Friend the Member for Blackpool North and Cleveleys.
The Chair
The Minister has asked for the Committee’s permission to raise that letter after the Committee has finished sitting. Unless I hear to the contrary, I presume that the Committee is content that she should do so.
Bill, so far as amended, to be reported.
Offensive Weapons Bill (Ninth sitting)
(6 years, 2 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Chair
Before we begin, Members should take their jackets off if they wish; it is incredibly hot in here. That includes officials and anybody else here. Please do not feel inhibited. I also ask Members to make sure that their phones are on silent or are switched off. We will now resume line-by-line consideration of the Bill.
Clause 28
Prohibition of certain firearms etc: England and Wales and Scotland
Question proposed, That the clause stand part of the Bill.
Louise Haigh (Sheffield, Heeley) (Lab)
It is a pleasure to serve under your chairmanship for the first time in the Committee after recess, Mr Gapes. Welcome back to our scrutiny of the Bill. We now turn to the measures relating to firearms and, particularly, amendments to the Firearms Act 1968.
Opposition Members have received numerous representations relating to this part of the Bill; indeed, several of my hon. Friends have received even more representations in the last couple of weeks relating to several of our amendments. I say to those watching the Committee’s proceedings that if they wish to persuade politicians of the merits of their holding firearms and firearms licences and the genuine, legitimate uses for which they use those firearms, they should stay away from veiled threats and aggressive language and should genuinely seek to persuade us. We are persuadable.
I have no prejudice against legitimate shooting activities, although I have to say that I have not been exposed to them much. I grew up in the middle of Sheffield. Not much shooting goes on around there, other than illegitimate shooting, sadly. We have no prejudice on this side of the Committee, but it is the job of Parliament and of this Committee to ensure that we get the right balance between allowing people to participate in legitimate shooting activities and ensuring that the public are as free as possible from risk. The Bill is designed to strike that balance, and it is the Committee’s job to ensure that we get that balance right. The Opposition believe that clause 28 gets that balance right at the moment. We received evidence to the contrary, but we also received significant evidence in support of the measures brought forward by the Government in the clause.
I reassure the Minister that the Opposition fully and wholeheartedly support the prohibition of .50 calibre rifles with a kinetic energy of more than 13,600 joules. It is important to say exactly why we support the measures. The range and penetrative power of .50 calibre rifles makes them more dangerous than other common firearms. Their use in criminal or terrorist activities would present an absolutely unacceptable threat to the public and would be uniquely difficult for the police to control.
Following the theft of one of these large-calibre rifles, the police drew the attention of the Government and the Committee to the potential dangers of such a weapon being available for civilian use and have made the case that such a threat outweighs the arguments made by those who use these weapons for target practice and other undeniably legitimate hobbies. The issue is that such weapons hold the potential to pose a significant danger to public safety, given that .50 calibre rifles were originally designed for military use, to allow for firing over long distances in a manner capable of damaging vehicles and other physical capital. They are also designed to be able to penetrate armour worn by soldiers.
Some submissions argued that the specific ammunition needed to penetrate armour over a long distance are already prohibited. That is right, but if these rifles were used in a criminal capacity, it would allow for the penetration of police body armour and defensive protections, which would not be possible with lower calibres. Even the Fifty Calibre Shooters Association recognises that it is possible for the rifles to immobilise a light or medium-sized vehicle or truck at 1.8 km, and that is at the minimum end of the scale.
The police told the Committee that the weapon has a maximum range of 6.8 km, according to Ministry of Defence data. We know that, according to the National Ballistics Intelligence Service, no protective equipment in the police’s arsenal would guard against a .50 calibre rifle. We are extremely sympathetic to the concerns of NABIS and others around legally held firearms being stolen and subsequently used in crime. The threat is that we see an increasing trend of legally held firearms being stolen from certificate holders.
The number of guns being stolen is increasing. So far this year we know from the national firearms licensing management system that 39 rifles from a range of calibres—although none of them .50 calibre—and 165 shotguns have been stolen. Again, we are seeing an increase in the use of firearms in crime—mainly shotguns, as they are the volume guns being stolen. However, there have been examples of rifles coming into use by criminals. This is not fearmongering; firearms, including rifles and shotguns, are being stolen and used in criminal and violent activity. One was used to murder our colleague, Jo Cox, and a .50 calibre rifle was stolen in an incident that was provided to this Committee, an example that provided the basis for their outright ban.
Criminals have shown that they are increasingly determined to steal the weapons of lawful firearm holders. The truth is that we can either pretend that this is not happening and do a severe disservice to our constituents, or we can act to take the most powerful and dangerous weapons out of public hands altogether. Furthermore, we know that the terror threat is sustained and growing. There has been a dramatic upshift in the terror threat, which the director-general of the MI5 described as
“the highest tempo I have seen in my 34-year career”,
and which is,
“especially diverse and diffuse within the UK”.
We should not doubt the determination of terrorists to get their hands on firearms. Twenty Islamist terror attacks have been disrupted since 2013. The plotters have discussed or planned the use of a variety of firearms. The trend in terrorist incidents is to target political symbols, police officers or members of the armed forces or, crucially, areas with large numbers of people. That is why rapid-firing rifles, such as the vz. 58 manually actuated release system rifle, will also be banned under this clause. This rifle can discharge rounds at a much faster rate than conventional bolt-action rifles and is therefore closer to self-loading rifles, which are currently prohibited for civilian ownership. The fire rate of these rifles means that they are capable of inflicting large amounts of casualties or damage within a very short period of time.
In the light of the destructive power of these weapons, we agree that clause 28 strikes exactly the right balance. Nevertheless, I understand that depriving firearms holders of these weapons is an important step by this Parliament, and I want to ensure that during this debate we are fully engaged with the concerns and comments of the Fifty Calibre Shooters Association and others who have expressed concerns. I have read the evidence of all those who are opposed to the move to prohibit this weapon. What I fear is misunderstood by those opposing this move is that it is an assessment of risk by us as parliamentarians.
Finally, I want to deal with a few other queries and points raised with the Committee. Some have argued that other lever firearms have the capacity to fire as quickly as a MARS or lever-release rifle, but will remain legal after the passage of the Bill, so why the focus on MARS and lever-release rifles? NABIS has told us:
“In terms of lever action rifles, they can fire rapidly, but only in the hands of highly skilled experts. They are also very slow to reload. The MARS is much easier to fire rapidly by someone who is not experienced and, using a detachable magazine, they are rapid to reload”.
In addition, we are not convinced of the case for the semi-automatic rifles chambered in calibre .22 to remain legal while other MARS or lever-release rifles are being prohibited for justifiable reasons. The .22 calibre was recently used in a double murder, according to NABIS. While NABIS argued that there has been no request for the semi-automatic .22 to be prohibited, if the concern is over a weapon’s rapid fire capability—that is certainly the justification for prohibiting the .50 calibre—that justification would seem to carry over to the .22 calibre semi-automatic as well. Do the exact same principles behind these provisions not also apply to this weapon?
There is undoubtedly an urgent need to tackle violent crime and mitigate the threat of powerful firearms getting into the hands of organised criminals and terrorists. We therefore wholeheartedly reaffirm the Opposition’s support for these proposals.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
It is a pleasure to serve under your chairmanship, Mr Gapes.
It is widely acknowledged that the United Kingdom has some of the strongest gun controls in the world. Nevertheless, it is important to keep those controls under review. Clause 28 seeks to strengthen the controls on two specific types of powerful rapid-fire rifles. Both are currently available for civilian use or ownership under general licensing arrangements administered by the police under section 1 of the Firearms Act 1968, which means they can be owned only by somebody who has a firearms certificate for which they have been vetted. However, following advice from experts in the law enforcement agencies, we believe it is important to take action to ensure that the controls around these weapons are tightened.
One option is to add these weapons to the list of prohibited firearms provided for in section 5 of the 1968 Act. Such weapons are subject to more rigorous controls than other firearms and may be possessed only with the authority of the Secretary of State. All firearms are by their very nature potentially lethal, but these two types are significantly more powerful than other firearms permitted for civilian ownership under section 1 of the 1968 Act. It is not our intention to unnecessarily restrict the lawful use of firearms, such as for legitimate sporting purposes; however, we are concerned about recent rises in gun crime and the changing threats and heightened risk to public safety.
As my right hon. Friend the Home Secretary explained at the start of Second Reading, the proposals were based on concerns about the potential for serious misuse of these weapons if they were to fall into the hands of criminals or terrorists. That is not to say that there is an imminent threat that they are about to be used by them, but in view of the threat assessment received, the Government have a clear duty to consider the need for these particular types of firearms to be more strictly controlled. However, the Government also recognise that the vast majority of people in lawful possession of firearms use them responsibly and that any controls need to be proportionate. In line with the undertaking given by my right hon. Friend the Home Secretary, we should continue to listen and consider further whether there are other effective alternatives to banning high-powered rifles, such as requiring enhanced security for their storage and use.
Turning to MARS rifles, as they have been called, or rapid-fire rifles, our focus is on weapons that can discharge rounds at a much faster rate than conventional bolt-action rifles, which are permitted under licence and are normally operated manually with an up and back, forward and down motion. The definition refers to the use of the energy from the propellant gas to extract the empty cartridge cases. That brings them much closer to self-loading rifles, which are already prohibited for civilian ownership under section 5 of the Firearms Act. Indeed, the National Ballistics Intelligence Service witness who gave evidence to the Committee, Mr Taylor, described them as being designed to “get around” the UK’s firearms legislation. That is why this measure is in the Bill.
The other change we propose to make to section 5 of the 1968 Act relates to bump stocks. Bump stocks were used in the Las Vegas shootings on 1 October 2017, in which 58 people were killed and more than 800 injured. The gunman used them to significantly increase the rate of fire of his self-loading rifles. The Government responded quickly to the shooting by placing an import ban on bump stocks from 4 December 2017. There are no legitimate uses for bump stocks and we do not think there are any in the UK. The import ban is designed to keep it that way.
Kevin Foster (Torbay) (Con)
I completely support the proposals for banning bump stocks, which have absolutely no legitimate purpose, but we should also be clear that the weapons used in Las Vegas are already illegal under our law. It obviously makes sense to make bump stocks illegal under our current legislation as well.
Victoria Atkins
My hon. Friend is quite right; this is about ensuring that we go further and control the manufacture and possession of bump stocks, which are already controlled in terms of importation, because we acknowledge that there is a criminal underworld. We want to make it absolutely clear to those indulging in that sort of activity—and to give powers to the police—that if they are found in possession of a bump stock, that in itself is an offence, let alone all the other offences that that person might be being investigated for. That is what the clause aims to do. It will make the unlawful possession, purchase, manufacture and sale of a bump stock subject to a maximum of 10 years’ imprisonment and a minimum sentence for adults of five years’ imprisonment.
The hon. Member for Sheffield, Heeley asked me about .22 self-loading rimfire rifles. The lever action will be banned only if they meet the definition. The classic lever-action rifle seen in western films will not be caught; those that use a small lever next to the trigger will be. It is not our intention to ban .22 self-loading rimfire rifles, which, like all rifles and firearms, have the potential for danger, but are less powerful and are used extensively for pest control.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Clause 29
Prohibition of certain firearms etc: Northern Ireland
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 29 makes equivalent provision to clause 28 in respect of Northern Ireland, through amendments to the Firearms (Northern Ireland) Order 2004, which sets out the controls on the possession and use of firearms that apply there.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Clause 30
Consequential amendments relating to sections 28 and 29
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 30 sets out the consequential amendments in the Bill relating to section 28 on prohibition of certain firearms in England, Wales and Scotland, and section 29 relating to the prohibition of certain firearms in Northern Ireland. The consequential amendments are set out in schedule 2.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Schedule 2
Consequential amendments relating to sections 28 and 29
Question proposed, That the schedule be the Second schedule to the Bill.
Victoria Atkins
Schedule 2 sets out the consequential amendments to various Acts as a result of the prohibitions in clauses 28 and 29.
Question put and agreed to.
Schedule 2 accordingly agreed to.
Clause 31
Surrender of prohibited firearms etc
Question proposed, That the clause stand part of the Bill.
Louise Haigh
I wonder whether the Minister could provide a bit more detail on the timeframe that she anticipates chief officers will provide holders of firearms that will become prohibited under clause 28 with the requirement to surrender to a designated police station in their police force area.
My understanding is that firearms prohibited under proposed new paragraph (5)(2)(ag) to the Firearms Act 1968—that is, rifles
“with kinetic energy of more than 13,600 joules”—
are used only in specific licensed areas. I do not know the right terminology. Would it not be more appropriate for the police to go and collect them from those areas, sporting clubs or whatever they are, rather than ask the licence holders to transport them to a police station to deposit? Will the Minister provide clarification on whether that would be a more appropriate surrender for those weapons?
Victoria Atkins
Clause 31 makes provision for those who currently hold firearms that will become prohibited to hand in those weapons and ancillary equipment to designated police stations. Detailed guidance on how owners surrender firearms and equipment will be published alongside compensation regulations, which will be laid following Royal Assent. We are working at the moment on the premise of a three-month period in which to hand in weapons. If I may, I will return to the hon. Lady on her question about the method by which weapons are collected by the police. I commend the clause to the Committee.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clause 32
Payments in respect of surrendered firearms other than bump stocks
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 32 provides for compensation arrangements. It is right and fair that owners of previously legally held firearms who hand them to the police for safe disposal should be compensated. I will provide a draft of the compensation regulations in due course and there will be an opportunity to scrutinise the arrangements when they are laid before the House following Royal Assent. I commend the clause to the Committee.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Clause 33
Payments in respect of prohibited firearms which are bump stocks
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
The Government have legislated and banned the importation of bump stocks into the UK—it came into effect from 4 December 2017. Clause 28(3) will move to prohibit their possession to ensure a complete prohibition on those items but it is recognised, as previously, that where members of the public are required to surrender weapons that they hold lawfully, they should be fully compensated for their property. Clause 33 provides for the Secretary of State to set out in regulations the arrangements for payment of compensation to owners who are legally in possession of bump stocks and are required to surrender them as a result of their prohibition under clause 28(3). I commend clause 33 to the Committee.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Clause 34
Payments in respect of ancillary equipment
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 34 provides for the Secretary of State to make arrangements for compensation payments to be made to owners of ancillary equipment in order that they be properly compensated. As before, a draft of the regulations will be provided as appropriate in due course. I commend the clause to the Committee.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35
Interpretation of sections 28 to 34
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 35 provides for the interpretation of sections 28 to 34 of the Act. In respect of section 28, or in sections 31 to 34 as they apply in relation to England and Wales and Scotland, any expression used and which is defined in the Firearms Act 1968 has the same meaning as in that Act. In respect of section 29, or in sections 31 to 34 as they apply in relation to Northern Ireland, any expression used and which is defined in the Firearms (Northern Ireland) Order 2004—S.I. 2004/702, N.I. 3—has the same meaning as in that order. I commend clause 35 to the Committee.
Question put and agreed to.
Clause 35 accordingly ordered to stand part of the Bill.
Clause 36
Consequential amendments relating to armed forces
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 36 makes consequential amendments relating to the armed forces in respect of provisions within the Bill. Clause 36 amends the Armed Forces Act 2006 to provide that the criminal conduct offences that can be dealt with at summary hearings will include the new offences provided for by this Act in relation to the possession of offensive weapons and corrosive substances and delivery of corrosive products. I beg to move that clause 36 stand part of the Bill.
Question put and agreed to.
Clause 36 accordingly ordered to stand part of the Bill.
Clause 37
Regulations
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 37 sets out the detail of where regulations may be made, and by which authority, in relation to the Bill. Full details are set out in the delegated powers memorandum to the Bill. In broad terms, subsection (1) stipulates that any power or duty of the Secretary of State to make regulations under this Act is exercisable by statutory instrument. Subsection (2) further stipulates that any statutory instrument containing regulations under this Act made by the Secretary of State may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament through the affirmative procedure. The remaining subsections relate to where regulations may be made by the devolved Administrations. I commend the clause to the Committee.
Question put and agreed to.
Clause 37 accordingly ordered to stand part of the Bill.
Clause 38
extent
Amendments made: 38, in clause 38, page 32, line 37, at end insert—
“() subsection (3A) of section20, so far as it makes provision in relation to an offence under section 50(2) or (3) of the Customs and Excise Management Act 1979, and subsection (1) of that section so far as relating to that provision made by subsection (3A);”.
See the explanatory statement for Amendment 35.
Amendment 39, in clause 38, page 33, line 7, at end insert—
“() subsection (3A) of section 20, so far as it makes provision in relation to an offence under section 1(1) or (1A) of the Restriction of Offensive Weapons Act 1959, and subsection (1) of that section so far as relating to that provision made by subsection (3A);”.
See the explanatory statement for Amendment 35.
Amendment 29, in clause 38, page 33, line 13, at end insert “() section11(1B);”.
See the explanatory statement for Amendment 21.
Amendment 30, in clause 38, page 33, line 22, leave out paragraph (b) and insert—
“() section11(1), (1A) and (2) to (4);
() section12;”.
See the explanatory statement for Amendment 21.
Amendment 31, in clause 38, page 33, line 26, at end insert—
“() section (Presumptions in proceedings in Scotland for offence under section 1, 3 or 4);
() section (Presumptions in proceedings in Scotland for offence under section 5);”.—(Victoria Atkins.)
See the explanatory statement for Amendment 14.
Clause 38, as amended, ordered to stand part of the Bill.
Clause 39
commencement
Amendments made: 32, in clause 39, page 34, line 13, at end insert—
“() section 5;
() section 9;”.
This amendment confers power on the Scottish Ministers to bring Clauses 5 and 9 (possession of corrosive substances) into force so far as those clauses extend to Scotland.
Amendment 33, in clause 39, page 34, line 13, at end insert—
“() section (Presumptions in proceedings in Scotland for offence under section 1, 3 or 4);
() section (Presumptions in proceedings in Scotland for offence under section 5);”.
See the explanatory statement for Amendment 14.
Amendment 34, in clause 39, page 34, line 16, leave out paragraph (c).
This amendment confers power on the Secretary of State rather than the Scottish Ministers to bring Clause 19 (definition of “flick knife”) into force so far as that clause extends to Scotland.
Amendment 40, in clause 39, page 34, line 18, after “20” insert—
“except so far as it makes provision in relation to an offence under section 50(2) or (3) of the Customs and Excise Management Act 1979”.
See the explanatory statement for Amendment 35.
Amendment 41, in clause 39, page 34, line 27, leave out paragraph (e) and insert—
“() section 20(4) to (6);
() sections 21 to 23;”.—(Victoria Atkins.)
See the explanatory statement for Amendment 35.
Clause 39, as amended, ordered to stand part of the Bill.
Clause 40
short title
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 40 sets out the short title on Royal Assent, which is the Offensive Weapons Act 2018. The scope of the Bill is limited to those matters relating to offences involving offensive weapons. The Bill is not a general Bill about violent crime or crime more generally. It is limited to the criminal use of weapons such as knives, corrosive substances and firearms.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
New Clause 5
Presumptions in proceedings in Scotland for offence under section 1, 3 or 4
‘(1) This section applies for the purposes of any trial in proceedings for an alleged offence under section 1(1), 3(2) or (3) or 4(4).
(2) Where—
(a) a substance is found in a container (whether open or sealed), and
(b) there is on the container a description of the contents of the container,
the substance found is to be presumed to be a substance of that description.
(3) Where an open container is found which—
(a) is empty or contains an amount of a substance which is insufficient to allow analysis of it,
(b) was sealed at the time it was sold or delivered, and
(c) has on it a description of the contents of the container,
the container is to be presumed to have contained, at the time it was sold or delivered, a substance of that description.
(4) At the trial, any party to the proceedings may rebut the presumption mentioned in subsection (2) or (3) by proving that, at the time of its sale or delivery, the substance in the container was not of the description on the container.
(5) A party may lead evidence for the purpose of rebutting the presumption only if the party has, not less than 7 days before the date of the trial, given notice of the intention to do so to the other parties.’—(Victoria Atkins.)
See the explanatory statement for Amendment 14.
Brought up, read the First and Second time, and added to the Bill.
New Clause 6
Presumptions in proceedings in Scotland for offence under section 5
‘(1) This section applies for the purposes of any trial in proceedings for an alleged offence under section 5(1).
(2) Where—
(a) a substance is found in a container (whether open or sealed), and
(b) there is on the container a description of the contents of the container,
the substance found is to be presumed to be a substance of that description.
(3) Subsection (4) applies where—
(a) an open container is found,
(b) a substance has been poured out of, or otherwise removed from, the container,
(c) the container is empty or contains an amount of the substance mentioned in paragraph (b) which is insufficient to allow analysis of it, and
(d) the container has on it a description of its contents.
(4) The container is to be presumed to have contained, immediately before the action mentioned in paragraph (b) of subsection (3) was taken, a substance of the description mentioned in paragraph (d) of that subsection.
(5) At the trial, any party to the proceedings may rebut the presumption mentioned in subsection (2) or (4) by proving that, at the time the offence is alleged to have been committed, the substance in the container was not of the description on the container.
(6) A party may lead evidence for the purpose of rebutting the presumption only if the party has, not less than 7 days before the date of the trial, given notice of the intention to do so to the other parties.’—(Victoria Atkins.)
See the explanatory statement for Amendment 14.
Brought up, read the First and Second time, and added to the Bill.
New Clause 1
Annual report on corrosive substance attacks
‘(1) The Secretary of State must, within twelve months of this Act receiving Royal Assent, publish an annual report on the data available on the number of corrosive substance attacks in the UK in each of the last five years.
(2) The annual reports published under section 1 must include, but are not limited to—
(a) the location of the attacks;
(b) the corrosive substance used; and
(c) any other information as may be available on each attack.”—(Stephen Timms.)
Brought up, and read the First time.
Stephen Timms (East Ham) (Lab)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss:
New clause 25—Report on the causes behind youth violence with offensive weapons—
‘(1) The Secretary of State must, within six months of this Act receiving Royal Assent, lay a report before Parliament on the causes behind youth violence with offensive weapons.
(2) The report under subsection (1) must consider, but is not limited to—
(a) the effect of the reduction in police numbers on the levels of youth violence with offensive weapons;
(b) the effect of the reduction in public spending on—
(i) children’s services;
(ii) Sure Start;
(iii) state-maintained schools;
(iv) local authorities;
(c) the effect of changes in the numbers of—
(i) school-excluded children;
(ii) looked after children;
(iii) homeless children.
(3) The report under subsection (1) and the considerations under subsection (2) must consider the benefits of the public health approach to violence reduction.
(4) The report must publish all departmental evidence held relating to subsection (2).’
This new clause would require the Secretary of State to review the causes behind youth violence with offensive weapons.
Stephen Timms
I am delighted to be serving under your chairmanship, Mr Gapes. Your constituency adjoins mine and you are familiar with the challenges with which this Committee is grappling.
New clause 1 is a straightforward proposition: that, every year, there should be publication of up-to-date basic data on corrosive substances attacks—the acid attacks—carried out over the previous five years. As we heard last week, the number of acid attacks has risen sharply during the past few years. There was no particular reason to pay them special attention five years ago, but the dramatic increase means that we need to pay much more attention and ensure that essential data about them is available. What little data is available has come from various ad hoc freedom of information requests. I referred last week in Committee to the informative answer received by Councillor James Beckles, a member of Newham council in my borough, to a freedom of information request made by him last summer. The answer contained a lot of useful information about acid attacks across the whole of London, not just in Newham, going back to 2002.
We need that information to be collected and published much more systematically in future. The answer showed that, in London, the number of violent acid offences was 145 in 2002 and 107 in 2003. It stayed below 100 for the best part of a decade from 2004 to 2012 then started to rise: in 2013 it was 142; in 2014 it was 130; in 2015 it was 275; and in 2016 it was 416. During the first nine months of 2017, the number had risen to 411. It is clear that we have a serious problem on our hands in London and elsewhere. In March 2017, in a written question, I asked how many acid attacks there were.
Tulip Siddiq (Hampstead and Kilburn) (Lab)
It is a pleasure to serve under your chairmanship, Mr Gapes.
I support much of the Bill, which is why I rise to contribute to the debate on new clauses 1 and 25. If we are to ensure that vital clauses protecting young people are effective, it is of huge importance that the Government proceed with transparency and that Parliament receives a report from the Secretary of State on progress.
My experience of the High Speed 2 Bill is defined by a lack of redress for my constituents, because there is no requirement for the Secretary of State to report on the construction process. I realise that I raise my angst with High Speed 2 in this House at every opportunity, but I genuinely believe that the same principles apply to this Bill.
New clause 1 proposes introducing a report that would shed light on the number of corrosive substance attacks that have taken place in the past five years, not only providing important historical data to establish crime trends but clearly illustrating the scale of the challenge that the Bill seeks to correct, as outlined by my right hon. Friend the Member for East Ham. Any such report would also detail the location of corrosive substance attacks, which would be a positive outcome for my constituency. For one thing, the Metropolitan police would be in a better position to allocate resources more effectively across the worst-affected London boroughs.
New clause 25 would mandate the Secretary of State to report on the causes of youth violence with offensive weapons. Attacks using corrosive weapons are despicable, not only because of the physical ramifications but because of the devastating psychological toll on victims. As we have repeatedly discussed during our consideration of the Bill, acid attacks do not heal quickly and the results are often visible for a victim’s entire life.
When processing the gravity of such attacks, I often ask myself how the perpetrators end up engaging in such awful criminality. It is not sufficient simply to point to drugs or gangs, even though those factors are huge. It must be the job of Government to investigate the root causes of such violence and explain whether or not existing legislation is making the problem worse.
In that regard, new clause 25 covers several vital policy considerations. I will focus on subsections 2(a) and 2(b)(i), which cover the reduction in police numbers and the reduction in spending on youth services. Since 2013, in my constituency, Camden has suffered the reduction of 23 constables, 30 detective constables, 28 sergeants, 10 detective sergeants, five detective inspectors, seven inspectors and two chief inspectors. As I have said, in the first few months of 2018 London suffered double the number of fatal stabbings than in the same period in the previous year and, as I have also said previously, half of the victims were aged 23 or younger. Given those numbers, it is surely incumbent on the Secretary of State to investigate whether or not the corresponding reduction in police numbers has acted as a contributing factor to the despair that we have seen on the streets across London.
Let me turn to subsections (2)(b)(i) and (2)(b)(iv) of new clause 25, which would mandate the Secretary of State to report on the reductions in local authority spending as a cause of youth violence. I looked at the Department for Education’s data, which shows that over the last 12 months councils in England were expected to have spent a total of £460 million on youth services. The BBC reports that that compares with £418 million the previous year and £622 million between 2014 and 2015.
Efforts are being made locally to mitigate the national picture. For example, in my constituency, Camden Council’s community impact scheme offers £1.6 million to local organisations to address youth offending, among other social problems. If the Secretary of State reported to the Commons on whether such efforts were tangibly reducing youth violence, it would help local authorities such as Camden to target their spending better. I think that all hon. Members from across the House wish to see that from local government.
Supporting new clause 25 does not mean giving legislative approval to the notion that reductions in spending or police numbers prompt young people to turn to offensive weapons. Instead, I believe it would satisfy a very clear duty of the Government to consistently measure their policies against points of concern for the public and, in the case of this Bill, to establish how we prevent young people from falling into the clutches of violence.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to serve under your chairmanship, Mr Gapes. I rise to support new clause 1 and new clause 25. The suggestion from my right hon. Friend the Member for East Ham regarding data on acid attacks is very sensible. It will help build public confidence in this legislation if, as hoped, it helps to reduce such attacks. If the legislation does not bring down the number of attacks, it is essential we know that. The main area I want to focus on, however, is new clause 25.
Since I set up the all-party parliamentary group on knife crime last year and began working with my hon. Friend the Member for Lewisham, Deptford on her Youth Violence Commission, it has become clear that the drivers of youth violence are seated far more deeply in our society than simply the accessibility of weapons. We can all agree that tightening up the rules around online knife purchasing, restricting certain types of knives and restricting the sale of corrosives is the right thing to do and we applaud the Government for it. However, we also need to take a step back and look again at the problems we are ultimately trying to solve: the growth in acid attacks by and on young people; the continued increase in knife crime across the country; the age of knife carriers getting younger and younger; and the culture of fear that we know exists among a generation of our young people. Without new clause 25, this Bill makes no real attempt to answer these questions. It seeks to address symptoms without looking for the cure.
I am concerned that by prioritising online knife purchasing in this Bill, the Government are overemphasising its role on teenagers carrying knives. Of course, the death of Bailey Gwynne in 2015 was a horrible and avoidable tragedy—even one death from this loophole is one too many. Aside from Bailey’s death, the only evidence cited in the Government’s impact assessment for the Bill comes from anecdotal reports from the police, trading standards and Members of Parliament about teenagers accessing knives online. It does not appear that the Government actually spoke to young people themselves—and particularly young people who carry knives—about why they are doing so and how they are accessing these weapons.
The summary of consultation responses makes no mention of speaking to young people directly, but the all-party parliamentary group on knife crime has spoken to young people who carry knives. We brought 16 people from across the country to Parliament to meet MPs and peers to talk about why they carry knives. These young people had either been convicted of knife offences or had been victims of knife attacks and, in some cases, both. When asked about their reasons, one young person specifically mentioned online retailers, saying that it is
“so easy, yesterday at Amazon, I swear to go 30 seconds from the homepage to checkout to deliver to my house, about 20 seconds, literally.”
It was very clear from the rest of the young people where the majority of them had got their knives. Let me quote a few of them.
“What’s the knife, it’s just a trip to the kitchen then you can literally just grab it.”
Another young person:
“It’s really easy and you have only got to go to your kitchen drawer and there is a knife”.
Another, asked by an MP where he had got his knife, answered: “Out of the kitchen.” Another young person:
“In Camden, everyone’s going to have one—they put it in a sock—and everyone has one.”
I worry that the Government are focusing too narrowly and ignoring the reality that, for most under-18s, accessing a knife is as simple as walking into their kitchen. That is why new clause 25 is so important. If a young person is getting to the point where he or she is trying to buy a knife online, we have already failed them somewhere down the line. If that same young person is faced with tougher restrictions on online purchasing but still feels the need to carry a knife, as we have just heard, they can simply get one from their kitchen. That is not to say that this legislation is not worthwhile, but we need to think bigger and new clause 25 is the start of that.
The all-party parliamentary group on knife crime, the Youth Violence Commission and a host of experts from Scotland to Chicago have all said that the Government must now treat youth violence as a public health issue. A proper public health approach would treat knife crime like an epidemic. We know that violence breeds violence, so we need to tackle the problem at source while immunising future generations against it. We need to recognise that some young people are more at risk of early criminality than others because of their environments, and we must address those environments, changing the social conditions that lie at the root of youth violence.
Louise Haigh
I rise to support new clause 1, tabled by my right hon. Friend the Member for East Ham, and to speak to new clause 25, tabled in my name and that of my hon. Friend the Member for Lewisham, Deptford.
One small example of why my right hon. Friend’s new clause is so important relates to our debate on the kits available for acid testing and the offence under clause 5 of acid possession. The Sun reported this weekend that officers will be given acid detection kits to help them detect substances that present a danger to the public. The Sun reported that the kits are being manufactured at the Porton Down laboratory, as we heard last week. However, as we know from last week’s discussions, the workability of those possession offences are still a concern. Given the information provided in The Sun, will the Minister now be able to furnish the Committee with the details—on the operationalisation of the Bill in relation to those kits—that she was unable to provide us with last week?
Our discussion last week assumed that the kits will be rationed, which is completely reasonable, but without adequate information for forces and the Home Office—which my right hon. Friend’s new clause would provide—about attack locations, the substances used and anything else that is pertinent, it will be difficult to prioritise such corrosive substance packs for officers, or for policy makers to understand how many might need to be available. It is perfectly obvious that officers in Newham, Walthamstow, Camden and Islington will need them, but is it obvious from existing Home Office data that Avon and Somerset, for example, might require such kits? My hon. Friend the Member for Hampstead and Kilburn discussed that last week.
Disaggregating the data should be perfectly easy; it is not a good enough excuse to say that the Home Office does not collect the data and that it cannot be disaggregated. On the police national computer it should be perfectly easy to tag information on corrosive substances, as is done for a host of other incidents or vulnerabilities. Data is a real issue, in particular for bringing policy to bear. The new clause would help to inform parliamentarians, the Government and the public on the location of attacks and, crucially, on what type of substances are used.
To make policy truly effective, partnership would be required across health services, local authorities and law enforcement. The detailed forensic work done on the type of substances that have been used tends to take place in a healthcare setting, rather than a criminal justice one, so I wonder what discussions the Minister has held to ensure that such detail is routinely fed to the police, in particular in cases where the victim refuses to co-operate—sadly, as we know, that occurs in many such instances, whether they involve corrosive substances or bladed articles.
My hon. Friends have already made a compelling case for new clause 25, which relates to the laying of a report on the causes behind youth violence with offensive weapons. I appreciate what the Minister said in discussion of clause 40—that the Bill is intended to focus on the control and prohibition of offensive weapons—but we cannot have that debate in a vacuum. There are reasons why younger, or indeed older, people carry offensive weapons, and questions about how they access them.
Karin Smyth (Bristol South) (Lab)
I am sure that my hon. Friend, coming as she does from Sheffield, will agree with me, from another city outside London, that what has been happening in London over recent years and the lessons that have been learned through the commission and the all-party group should inform good policy for the rest of the country. We already know some measures that could be put in place.
It is important to highlight the fact that, although London has particular problems, the rest of the country is also seeing many of the same issues, and we need to prevent them from developing further. New clause 25 would help policy makers to ensure that that happens.
Louise Haigh
I am grateful to my hon. Friend. I find it seriously frustrating that so much of the debate focuses on London. As she rightly says, many communities and constituencies outside London have experienced significant increases in youth and serious violence.
Only last night, I was at the launch in Sheffield of Operation Fortify, a multi-agency response to tackle youth violence led by the police—yes, it is located in a South Yorkshire police office, but it will include the local authority, education representatives and agencies from across the spectrum, all of which have responsibility for community safety under a groundbreaking piece of legislation introduced under the previous Labour Government: the Crime and Disorder Act 1998. That Act made it clear that everyone has the job of ensuring community safety.
The point made about ensuring that best practice is rolled out is important. As shadow police Minister, I find it frustrating to go around the country and see so many forces reinventing the wheel time and again—inventing their own pieces of technology when just over the border the police have a completely different system, and the two do not talk to each other. Police are inventing their own responses to issues such as violent crime when just over the border they already have tried and tested methods.
The report proposed in new clause 25 would help to iron out those problems and deliver a level of consistency and the same efficient and effective service to victims, whether in Camden or Cumbria, and, yes, to offenders, whether arrested in Camden or Cumbria. At the moment, there are significant inconsistencies in our criminal justice system and in the service the police are able to deliver. That is our failing, and a failure of the Home Office. The National Audit Office report published today—the most damning report that I have ever read by the NAO—has shown that the Home Office has effectively passed the buck on funding and, in its words, has no idea whether police forces are able to respond to levels of demand locally and nationally because of the way it has approached police funding.
I have been well behaved in this Committee. I have not discussed police officer numbers or police funding at all, because we have had those arguments many times in Committee and the Minister and I are on very different pages. However, given that in this debate the issue is perfectly in scope, and given today’s report by the NAO, will the Minister take the opportunity to respond to that report and perhaps signal a change in the Home Office’s approach when it comes to the delusion that it has been operating under—that police officer numbers bear no relation at all to violent crime?
Serious violence is threatening to overwhelm our communities. As I said, last night I was in Sheffield for the launch of Operation Fortify, where we heard from mothers, wives, children and grandparents who have lost their loved ones to the scourge of knife crime. I was born and bred in the city and it has always been considered very safe, so it is tragic to see so many of our communities there succumb to the contagion of knife and gun crime. Their heartbreaking stories should spur us all into action.
Many hon. Members on both sides of the House have committed the majority of their time in Parliament to tackling the issue, but the numbers that we are faced with are truly horrifying. The number of children aged between 10 and 15 being treated for stab wounds has increased by 69% since 2013. The Children’s Commissioner, who gave evidence to the Committee before the summer recess, has shown that up to 70,000 young people aged up to 25 are feared to be part of a gang network and that 2 million children in need of state support are vulnerable to being exploited by criminal gangs. That means too many young lives wasted, too many families destroyed and too many victims throughout communities as those crimes are committed.
As we have said many times, the conclusion is unavoidable: the structures and safety nets designed to protect a growing, precarious and highly vulnerable cohort of children are failing all at once: it is the perfect storm that we have long feared and warned about. Behind the tragic spate of violence is a story of opportunities to intervene missed as services have retreated; of children without a place to call home being shunted between temporary accommodation with their parents, at the mercy of private landlords; and of expulsions—as my hon. Friend the Member for Croydon Central has mentioned—and truancy ignored until crisis hits. The current surge in serious violence is a textbook definition of whole-system failure, and the only response can be a whole-system one.
These children are the precarious products of austerity and rising poverty—the Home Office’s internal report said as much. It is telling that Ministers still refuse to confirm whether they have had the report that underpinned their serious violence strategy. Some 120,000 children are homeless in this country, and more than 70,000 are in the care system. The Home Office’s report said that those children are more at risk of being exploited by gangs and entering into violent crime.
Many thousands are excluded from school; there has been a sharp rise in exclusions in the last few years. A secondary academy in my constituency has excluded at least a third of its students at least once. Another academy in the same academy chain in Ormesby has excluded 41% of its pupils at least once. The pupil referral unit in Sheffield has 120 spaces. Last year, it received 350 children. As we have heard, criminal gangs exploit pupil referral units. They know that those children, who are in desperate need of help and support, do not have the resources to keep them safe. They know that they can go to those places and find children ready and available to conduct their vicious, pernicious and despicable business needs.
As the Children’s Commissioner has noted, the pursuit of young children is now a
“systematic and well-rehearsed business model”.
We now find ourselves in this state of affairs. These are the problems and complex issues that I freely admit we are trying to tackle—not just with the legislation before us, but as a Parliament.
Nigel Huddleston (Mid Worcestershire) (Con)
It is understandable why the tone of the debate has changed today. We have had a very co-operative cross-party approach so far. However, I hope the hon. Lady will not make the mistake of saying that there is a simple answer. I think she was alluding to this at the end of her speech. There are such things as personal responsibility and parental responsibility for serious crimes and we should not ignore that fact. The Government are spending more than £800 billion this year and Government net spending is increasing, but the most important thing we need to consider is that local decisions are being made. I get the hon. Lady’s point about police numbers, but in West Mercia, for example, we had an announcement yesterday of an increase in police numbers of 100. That is because of the choices that individual police and crime commissioners are making. We need to consider local responsibility as well.
Louise Haigh
I am not suggesting for a second that this is a simple issue—indeed, I believe I said explicitly a few minutes ago that these are very complex issues. No one is suggesting that a simple rise in police officer numbers will stem the surge in serious violence. That is why new clause 25 covers such a wide variety of the issues identified by the Home Office in relation to the rise in serious violence.
Karin Smyth
Further to the point made by the hon. Member for Mid Worcestershire, my right hon. Friend the Member for East Ham and, from the Front Bench, my hon. Friend the Member for Sheffield, Heeley are making a plea for the use of evidence and learning, not just from now but from the past. My constituency of Bristol South was blighted by drug offences throughout the 1990s, but through concerted efforts at learning by my predecessor and many other people in the community, including mothers who set up groups to support the young people who had been exploited, we learned a great deal. That influenced the legislation under the next Government. The plea from my colleagues is that we learn from the past, understand how young people are exploited and come together. That is not simple, but the learning has to be taken very seriously.
Louise Haigh
My hon. Friend is absolutely right. The last national research on why young people carry knives was in 2006. Therefore we do not know the implications of social media, of drill music, which is often blamed in the media and by some politicians, or of austerity, because there has been no research. We are asking the Government to underpin their measures and legislation with evidence—not to pass legislation for the sake of headlines or just to be able to say, “We are doing something about the problem,” but to pass legislation and introduce measures that will tackle the problem.
I hope the Minister accepts the new clauses in the spirit in which they are intended to get to the root of the problems we see in every single one of our communities. Too many of us on both sides of the House have had to speak to families or witnessed the aftermath of the completely avoidable deaths of young people who would have had wonderful lives ahead of them had it not been for the whole-system failure that we are currently experiencing. Therefore, as I said, I hope the Minister accepts the new clauses in the spirit in which they are intended, so that we can get to the root of the issues.
Victoria Atkins
I thank the right hon. Member for East Ham for tabling new clause 1 and very much appreciate the interest he has and the expertise he brings—sadly it is from his own constituency. He and I do not restrict our discussions to activities in the Chamber or parliamentary questions. We of course discuss it outside the formal parliamentary procedures as well, because it is a concern that he, I and other Members of the House share.
The right hon. Gentleman has raised many questions, on Second Reading and in Committee, about the statistical data for corrosive attacks. He will know from the parliamentary questions he has tabled that the Home Office does not collect specific data from police forces on acid and other corrosive attacks as part of its regular data collection. That is going to change. As he said, Assistant Chief Constable Rachel Kearton, the National Police Chiefs’ Council lead on corrosive attacks, has stated that my officials are working with the NPCC to look at how offences involving acid and other corrosives can be captured better in police data, to understand the scale of the attacks.
A bid for a new collection on corrosive attacks has been submitted as part of the annual data requirement return to the Home Office. That bid is currently being considered by a group of Home Office and policing experts. If successful, it will require all 43 police forces across England and Wales to report instances of attacks involving corrosives to the Home Office on an annual basis. The intention is for the data collection to be routinely published. I am happy to look at the factors that the right hon. Gentleman has pressed, not just in new clause 1 but in the relation to the point about age. My officials have heard that and I have asked the police to action that.
The publication of data from police forces alongside data on other crimes involving serious violence is the best way forward to understand and address corrosives attacks. I do not believe that a statutory annual report on statistical data is the best way forward in helping us to understand the issue and prevalence of corrosive attacks. I intend the data to be collected and published and the right hon. Gentleman and others will then obviously have access.
Stephen Timms
I am grateful to the Minister and encouraged by her answer. Will she confirm that, if the bid she described is successful, information about location, substance and age would be accessible not just to the Home Office but to the public, through the way that the statistics are presented?
Victoria Atkins
As I said earlier, my officials have heard what the right hon. Gentleman has said and I will ask for those factors to be included in the assessment of the bid. I do not want to make promises without having spoken to the experts who will making the decision. Clearly, there would be as much as information as possible on a day-to-day basis in collecting the evidence. The data comes from police officers sitting down at a computer entering the data. We need to ensure that officers are using their time at the computer as usefully and productively as possible. I will ensure that the elements he suggests are considered in the assessment of the bid.
The right hon. Gentleman asked for a United Kingdom-wide report. The issue of corrosives used as an offensive weapon is a devolved matter in Scotland and Northern Ireland, and it would therefore be a matter for the devolved Administrations to agree to provide relevant data. Given the great working relationship between the Scottish and UK Governments on this, I am sure we are all heading in the same direction, if I might put it that way. I do not want to pre-empt the Scottish Government but I am sure they will be made aware of this discussion. I hope I have given the right hon. Gentleman enough clarification on the approach ahead in relation to collecting statistical data on corrosive substance attacks and that, on that basis, he will feel able to withdraw new clause 1.
The starting point of new clause 25, which was tabled by the hon. Members for Sheffield, Heeley and for Lewisham, Deptford, sometimes gets lost in the rough and tumble of parliamentary debate. I am grateful to the shadow Minister that that has not been present in this Committee. There has been constructive debate about the Bill because—this is the starting point—we all want this serious violence to stop. I hope Opposition Members believe my sincerity and that of all my colleagues. We may have different ideas about to achieve that but, if we keep returning to that fundamental principle, I am convinced that we will come up with the solutions.
The hon. Member for Bristol South referred to the work of previous Governments and I take on board her learning. That is one reason why we have the serious violence taskforce, which I will come to in more detail in due course. It features not only Home Office Ministers but Ministers from across Government and Members of Parliament from across the House, including Members of the Opposition who have spoken very forcefully on these issues—the right hon. Member for Tottenham (Mr Lammy) is a member of that taskforce, as is my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) because of his experience working with the Centre for Social Justice. There is a willingness to learn from history and other models.
I should clarify one point. The hon. Member for Sheffield, Heeley accused me and other Ministers of never referring to the public health approach. That is not correct. She may not be a regular reader of my blogs, but I wrote only recently on serious violence for The Voice and specifically mentioned the joined-up public health approach of the serious violence strategy.
Sarah Jones
The Minister has talked to education experts. Does she agree that the increase in exclusions is driving some of the youth violence problems we are seeing?
Victoria Atkins
It concerns me greatly. Edward Timpson, a former Minister of State for Vulnerable Children and Families at the Department for Education, is doing a big piece of work. He is conducting a review of alternative provision and the vulnerabilities that may be posed by children being in PRUs. We are very much looking into it just as we are supporting the work of charities such as Redthread and getting youth workers into A&E departments in the major hospitals—they are seeing an increase in young people coming in with serious stab wounds. They get those youth workers into the A&E department to act as a friend to those children at the teachable moment, as they call it, as well as staying with them while they are in hospital recovering from what often turns out, sadly, to be major surgery. We help children through knife crime through the anti-knife crime community fund, and support many charities, including larger ones such as the St Giles Trust, that have specific projects dealing with the issues in specific parts of the country.
I was most concerned to hear the concerns of the hon. Member for Sheffield, Heeley about inconsistencies in delivery and policing. We introduced the system of police and crime commissioners in the coalition Government to try and draw accountability for policing closer to the communities served by police officers. The title is deliberate. Although policing is an important part of the brief, the “and crime” part is also an important part of their responsibilities—the prevention of crime, how they help victims in their locality and so on. If there are concerns about the consistency of delivery of services, I hope that we would all go to the police and crime commissioners and ask them what they are doing. It is our role as parliamentarians to hold them to account, just as they hold us to account.
The College of Policing has been a major step forward in terms of professionalising policing and giving it the status it deserves. These are public servants who often put their lives at risk to serve the public. We want to give them the recognition and status that their day-to-day activities deserve. The purpose of the College of Policing is to achieve that, but also to help spread best practice. The hon. Lady will know that a great deal of work is being done on, for example, county lines. We set up the National County Lines Coordination Centre because we recognise that, while major urban centres may have experience of gang activity, rural areas probably do not. We want to tackle that new phenomenon by helping the police draw together all their experience and intelligence, and ease the lines of investigation between forces.
Louise Haigh
The concerns about inconsistencies are not mine alone—far from it. I spoke at the Police Superintendents Association conference, where the Home Secretary and the Policing Minister are today. The conference theme is failures of collaboration, which drive inconsistency. Her Majesty’s inspectorate of constabulary has consistently—ironically—raised inconsistencies in policing over the last 20 years. I would argue, as would many policing stakeholders, that those inconsistencies have been worsened by the introduction of police and crime commissioners, because they have put further obstacles in the way of collaboration and evening out the issues we see across 43 police forces in the United Kingdom.
Victoria Atkins
Our expectation is that police and crime commissioners should collaborate. I am wandering a bit off my brief because this is technically the Policing Minister’s portfolio, but we have raised the point of collaborating on purchasing uniforms and so on. When I sat on the Select Committee on Home Affairs, I was surprised to learn that my local constabulary had bought the second most expensive trousers in the country. On any view, why would on earth would it do that?
I thank the hon. Lady for mentioning the inspectorate—I was just coming to it—which assesses constabularies’ performance. The message must be repeated to chiefs and PCCs that, when it comes to quality of services, we expect a member of the public, whether they are a victim or not, to receive the same quality regardless of where they live. I hope we can agree across the Committee on that aim. In giving PCCs the powers they have and making them accountable to the public in an election, we hope that the public will be able to judge them at the end of their five or four-year term.
The final piece of the delivery jigsaw is the National Policing Chiefs’ Council itself. The Committee has seen the work that NPCC leads can do and the influence they can have. If there are problems with delivery, I would be happy for colleagues to give me examples from their own constituencies so that we can hold the NPCC and the relevant chief to account. I hope the hon. Lady is reassured by the jigsaw of structures in place.
Victoria Atkins
I have a long way to go, but if it is on that point, I will.
Louise Haigh
The Minister mentioned the serious violence taskforce. Will she inform the Committee how many times it has met and what actions have arisen out of it since its introduction?
Victoria Atkins
If I may, I will come to that in a moment, after I have laid down the basis of the strategy as a whole.
The strategy arose out of the former Home Secretary’s concerns in the summer of last year that serious violence was beginning to rise. A great deal of work went into it. It also includes the assessment of preventative interventions, and our national and local responses to that. The hon. Member for Croydon Central referred to the Bill—perhaps I misheard her. I can reassure her that it is but one strand of the strategy. I know that she has studied it in detail, given her great interest through chairing the APPG, which I would be delighted to attend—she knows that I have been trying.
The strategy looks at early intervention, prevention and drugs as a major driver. Through that we have set up a new early intervention youth fund, which was doubled to £22 million by the Home Secretary in July. Please do not think that the early intervention youth fund is the only funding. Business-as-usual funding, including helping charities such as Redthread, St Giles Trust and so on, will continue. This is in addition. We have also continued our anti-knife crime community fund. As I said earlier, I hope to send a letter to colleagues so that they know the charities in their areas that may have benefited.
We deliberately used that fund to help smaller charities. We listened to people within the youth sector and to parliamentarians who told us that it is sometimes the smaller charities that can do great work in their local area. Indeed, I visited a great charity in Derby earlier this year. It was set up in a local community hall and, interestingly, has close links to the secondary school just down the road. The club acts as a friend—there is almost an older brother or sister relationship between many of its youth workers and the young people it helps. We are keen to help smaller charities as well as the larger charities such as St Giles Trust and Redthread.
Louise Haigh
I appreciate entirely what the Minister says about the burdens on smaller charities in achieving this. However, what evaluation will there be of the outcomes of the charities and organisations receiving grants, and particularly of the education programmes that we deliver in schools? Police forces have told me that they reached 30,000 children in their force area with a narrative or class, as if that is the only measure by which they should be judged. I worry that the performance culture inherent in the police, which I fully accept was a product of the last Labour Government’s obsession with targets, is still there and blocks money being directed in the right ways and to the most effective organisations.
Victoria Atkins
I do not for a moment criticise the officer who may have referred to that in that way. It can be difficult for officers delivering important education programmes on the ground, and it is sometimes difficult for him or her to express how they felt the programme worked.
However, we are clear that this is not a numbers game. I hope the hon. Lady knows of our trusted relationships fund, for example, which offers up to £13 million over four years to help the most vulnerable children, who have probably been let down by most if not all the adults in their lives. The focus is not on the number of children reached but on the qualitative impact the scheme has on each individual. That can involve speaking to youth workers, many of whom have lived experiences themselves, which can be critical in switching on the attention of a young person. The police can obviously play a vital role in education, but we know that for some young people, attitudes to the police are shaped by all sorts of factors outside the police’s control. Their being able to speak to someone who has lived experience and does not wear a uniform can break down the barriers that a police uniform can inadvertently instil.
The hon. Member for Croydon Central asked about young people. Shortly after I came into this role, I invited youth charities, young people and former gang members into the House, and she was good enough to attend. Such meetings are important not only for me as the Minister—I have the pleasure of meeting these young people and charities frequently—but for all colleagues across the House, to whom they are not necessarily available. Inviting people into the House to tell us of their experiences in their own words was part of the engagement exercise not only for the Bill but for the strategy. I want to continue that because it is very valuable. I also visit the many charities that we support, and value each enormously.
Louise Haigh
We had a spike in knife crime and youth violence in 2008, which was not similar or not directly comparable to the current trend, because the current increase has happened over four years. However, during that spike, the Home Office led a similar taskforce to that which the Minister describes, which met weekly to deliver the implementation of a knife crime action plan. Does the Minister think that the current taskforce, having met three times since being set up in April, is sufficient to drive forward the many measures that are clearly needed, not just in the serious violence strategy but beyond it, as we have discussed?
Victoria Atkins
I am not familiar with the detailed workings of the previous taskforce. The current taskforce involves the Mayor of London. I do not know his diary, but I suspect that trying to get him together on a weekly basis with all the other players in the room, including Secretaries of State, the heads of Public Health England and other such organisations, is not easy, which is why we have set our sights on meeting once a month. However, that does not mean that intensive work is not going on in between the meetings. At the moment, the Home Secretary has set the meetings and is content that we are making progress, but it is about what we achieve through them.
The hon. Lady raised the issue of police funding. As she raised it, I will gently rebut her assertions—I hope in a similar tone. We are committed to working closely with the police and have protected police funding over the last few years.
Louise Haigh
Can the Minister confirm whether the Government have protected police funding in real terms in the last few years? What does she mean by the last few years?
Victoria Atkins
When the Prime Minister was Home Secretary, she insisted on that protection. That was in 2015. This year, the Minister for Policing and the Fire Service met or spoke to every chief constable. With the help of police and crime commissioners, we are securing an extra £460 million in overall police funding.
In terms of the numbers, the hon. Lady mentioned the last violent crime peak. I am not sure that it was just 2008—I do not necessarily accept her assertion that that is not comparable with this period. Of course, we had far higher police officer numbers in the mid to late 2000s, yet we had that last violent crime peak. That is why we are steering a middle course by raising police funding as far as we can, and by giving police and crime commissioners the power to recruit more officers if they wish to. Indeed, most police and crime commissioners are recruiting more officers, and we welcome that—that is their decision.
Stephen Timms
Earlier, my hon. Friend the Member for Sheffield, Heeley referred to today’s National Audit Office report, which, as I understand it, makes the point that the Home Office has not made an assessment of the effect of the reduction in the number of police officers and police staff by 44,000 since 2010. In what sense can a reduction of 44,000 be described as protecting police resources?
Victoria Atkins
The right hon. Gentleman will know that in 2010 we had to make changes to the Home Office budget, and other budgets in Government, because of the serious financial situation we found ourselves in. We know the reasons for that. We had to make tough decisions, which have been borne not just by the police but by others. We have to live within our means. As we have seen this year, we have reached a place where we have been able to increase the amount of overall police funding, but if we are going to have this debate, let us not forget the reasons why the coalition Government were in that position in the first place. It is not a fair representation.
Nigel Huddleston
I hope we do not descend into a party political debate after a very constructive Committee, as I said earlier. The nature of crime and policing is changing. For example, one key area of change is the move to cyber-crime and that kind of challenge. All hon. Members present, by virtue of the fact that we are sat here, have extreme empathy and support for everything that we are trying to do in the Bill, but conflating that into a bigger debate and obsessing about police numbers—important as they are—while ignoring the bigger picture that the nature of crime has fundamentally changed, will do none of us any good.
Victoria Atkins
I am grateful to my hon. Friend. Last week, the Home Secretary delivered an important speech about the threat of online child sexual exploitation, which is expanding in a way that was frankly beyond our imagination and worst fears five years ago—reports have risen by 700% in the last few years—because mobile phones make it much easier for paedophiles and others to use the internet to film their disgusting images across the world.
On social media in general, the Home Secretary has set out his expectation that the tech companies will up their game substantially in relation to CSE by November. We have also set expectations of tech companies when it comes to drill music and online videos. This month, a social media hub is being set up—a specialist unit within the Met. It is a pilot unit, and if it works we want to expand it nationally. It is about helping the identification of these violent videos—they are calls to violence, let us be very clear about that.
When police officers have reported such videos, tech companies are expected to take them down. There is an interesting debate more generally regarding the role of wider society and, particularly, businesses. I hope that people who run major corporations are having very serious conversations at board level about how their advertising budgets are spent. We know that legitimate, proper, lawful corporations are paying for advertising and, without their knowledge—usually to their horror—their adverts are appearing on the sorts of websites with which nobody in this room would wish to be associated.
The Chair
May I make a gentle suggestion that applies to all Members? We are having a very interesting debate, but could we move slightly back towards the clauses that we are considering? I do not want a general debate about tech companies and social media.
Victoria Atkins
Of course, Mr Gapes. I apologise—we feel passionately about this subject across the House.
I am very conscious of factors such as homelessness, school exclusions and domestic abuse. We will introduce a draft Domestic Abuse Bill, which I hope will have very positive consequences regarding children entering violent crime as a knock-on effect. Such legislation is all part of our overall strategy on violent crime, and on ensuring that children grow up with good life chances.
I hope that I have given hon. Members enough clarification on how we want to advance the serious violence strategy and I invite the right hon. Member for East Ham to withdraw new clause 1.
Stephen Timms
We have had an interesting and valuable debate, and my hon. Friends have made a compelling cause for new clause 25.
My hon. Friend the Member for Croydon Central was right to draw attention to the problem of growing exclusions from school as a big contributor to rising youth violence. My hon. Friend the Member for Sheffield, Heeley had some troubling statistics from her area about what academy chains are doing on that front. I am glad that the Minister said that she is also worried about that problem as part of the pattern. Alongside that are big worries about community policing resources. I noticed that the National Audit Office said this morning that police and crime commissioners
“received 19% less funding from central and local sources in 2018-19 than they received in 2010-11, in real terms.”
The Minister made a perfectly fair point about what the coalition Government set out to do in 2010, but it is clearly not the case that police resources have been protected; they have been very sharply reduced since 2010, and that is part of the present problem. The cuts in youth services that have been mentioned are an important part of the backdrop. We need a much more serious and substantial, long-term, whole-system response to the problem of youth violence than we have seen so far.
I was encouraged by the Minister’s answer to my remarks on new clause 1. She was unable to give me the cast iron guarantee that I would have liked that all the information will be made public very soon. However, she has persuaded me that she would like it to be if possible. On that basis, I beg to ask leave to withdraw the new clause.
The Chair
To clarify, we will vote on new clause 25 later in proceedings.
Clause, by leave, withdrawn.
New Clause 2
Offence of threatening with a non-corrosive substance
“(1) A person commits an offence if they threaten a person with a substance they claim or imply is corrosive.
(2) It is not a defence for a person to prove that the substance used to threaten a person was not corrosive or listed under schedule 1 of this act.
(3) In this section, “threaten a person” means—
(a) that the person unlawfully and intentionally threatens another person (“A”) with the substance, and
(b) does so in such a way that a reasonable person (“B”) who was exposed to the same threat as A would think that there was an immediate risk of physical harm to B.
(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale”.—(Stephen Timms.)
Brought up, and read the First time.
Stephen Timms
I beg to move, That the clause be read a Second time.
The new clause arises from my discussions with the office of the Mayor of London, Sadiq Khan. I pay tribute to the work of the Mayor on the topic of acid attacks, and also to that of my colleague, Unmesh Desai, who represents east London and the City on the London Assembly and is deputy chair of the London Assembly’s police and crime committee. He has highlighted the problem of acid attacks as one of his priorities.
There is a problem with people pretending to have acid when they just have water or something innocuous, and using that pretence to threaten and frighten people. I have a couple of examples. There was a headline in The Independent on 19 July 2017: “Water thrown at terrified Muslim women in ‘fake acid attack hate crime’ outside Southampton mosque”.
On 8 December last year, The Times quoted Assistant Chief Constable Rachel Kearton, who the Committee has met and to whom we have already referred this morning. That report stated:
“Thieves have taken to faking acid attacks to steal mobile phones, police said as they admitted that officers lack the tools and powers to defend the public from the growing menace. The emerging trend of throwing liquid, which victims presume is acid, to cause fear during robberies or for the purpose of intimidation was highlighted by the National Police Chiefs’ Council yesterday.”
The police should have the tools to deal with such incidents and the new clause provides those powers.
There is precedent for a measure along those lines. Section 16A of the Firearms Act 1968 makes it an offence for a person to possess an imitation firearm with the intent to cause another to believe that unlawful violence will be used against them. We are all are familiar with and have heard examples of offences involving imitation firearms and the law rightly makes them an offence. That measure was inserted into the 1968 Act by the Firearms (Amendment) Act 1994—a very simple, one-clause Act—when Michael Howard was Home Secretary. He was right to put that measure into legislation and I believe it has been effective in the case of imitation firearms. We now need a comparable measure for fake acid, so that if people are intimidated and frightened by people pretending to have acid, they will know that those people who are conducting the pretence are committing an offence. I very much hope that the Minister will accept new clause 2.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
New clause 2 is the first of a number of official Opposition amendments that would create new criminal offences. This may be a good point to repeat what I said when we started line-by-line consideration of the Bill. So far as Scotland is concerned, the Bill is a complex mix of devolved and reserved competencies. The UK and Scottish Governments have agreed that it would be better to combine them in one Bill rather than have parallel Bills going through the Scottish Parliament and here.
Criminal law is a devolved matter and there are some criminal law provisions in the Bill that would generally have been a matter for the Scottish Parliament. They have been carefully considered by both Governments and there has been agreement that they should be included and a legislative consent motion will be sought. Some of the Opposition amendments that we are about to consider would usually be matters for the Scottish Parliament. Some of the amendments make absolutely clear the territorial extent does not include Scotland. Some are a bit unclear about that and some clearly do include Scotland. My support or otherwise for the amendments will not necessarily be a reflection of the spirit behind the amendments, but their impact on devolved matters, and whether they should properly be left to the Scottish Parliament.
New clause 2 is an example of that. It relates to the offence of threatening behaviour. The Scottish Parliament last legislated in that area in 2010 and I believe that the police have the required tools to deal with some of the situations that the right hon. Member for East Ham was referring to. In the absence of a clear argument about why we should be altering the spirit behind the 2010 legislation, I would not be able to support this particular new clause. There may be a similar consideration for some of the other Opposition amendments.
Victoria Atkins
First, may I express my sympathy—and, I am sure, the sympathy of the Committee—for those whom the right. Hon. Member for East Ham described as victims of these fake corrosive attacks, if I may put it that way. I very much hope that they received the support they needed in dealing with those awful and frightening situations.
Cases where a person threatens another with what purports to be a weapon are already criminal offences. The law already provides sufficient powers to the police and CPS to prosecute that type of offending and we would suggest that there is no gap in the law. I am now going to read the detail.
There are various offences that would cover this type of threat—for example, the offence of common assault and the offences available under the Public Order Act 1986. Common assault is any conduct by which a person causes another to apprehend immediate and unlawful personal violence. This offence could be charged where a person threatens another with a substance that that person claims or implies is corrosive.
Section 4 of the Public Order Act 1986 makes it an offence to use threatening, abusive or insulting words or behaviour towards another person with the intent of causing that person to believe that immediate, unlawful violence will be used against him or her. We would argue therefore that these offences would already apply to the scenarios that the right hon. Gentleman has described. Section 5 of the Public Order Act also makes it an offence for a person to use threatening or abusive words or behaviour or disorderly behaviour that is likely to cause harassment, alarm or distress. Again, we would say that such incidents could fall within the definition of section 5.
Finally, I would like to draw attention to the fact that police officers and others can also consider the facts of the case and, if relevant, consider whether the crimes committed fall under the category of hate crime. If the crimes have a racially or religiously motivated intent, courts can impose strong sentences.
I hope that I have answered the very proper points raised by the right hon. Gentleman and alleviated any concerns he may have about a potential gap in the law. I therefore invite him to withdraw his proposed new clause.
Stephen Timms
I am grateful to the Minister for her response. The police view, which is set out clearly in the article from The Times of 8 December, is that
“officers lack the tools and powers to defend the public from the growing menace”.
That is quoting the work of the National Police Chiefs’ Council, naming Assistant Chief Constable Rachel Kearton. It seems to me that there is a problem here and I would like to press the proposed new clause to a vote.
Question put, That the clause be read a Second time.