Animal Welfare (Sentencing) Bill (First sitting)
Tuesday 23rd July 2019
(4 years, 9 months ago)
Public Bill CommitteesRead Full debate Animal Welfare (Sentencing) Bill 2017-19 View all Animal Welfare (Sentencing) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 23 July 2019 - (23 Jul 2019)
The Chair
Welcome, everybody. Before we begin, I have a few preliminary announcements. First, please switch off electronic devices or put them on silent. I remind you that tea and coffee are not allowed during our sittings. We have copious water, if that is the right adjective, and please feel free to drink it in these temperatures. Date Time Witness Tuesday 23 July Until no later than 10.15 am RSPCA; Battersea Dogs and Cats Home Tuesday 23 July Until no later than 1100 am Metropolitan Police; Bindmans LLP
Today, we will first consider the programme motion, which is on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions, before the oral evidence session. I assume we have to go through that, even though we have no one in the Public Gallery. In view of the time available, I hope we can take these matters formally, without debate.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 23 July) meet—
(a) at 2.00 pm on Tuesday 23 July, and
(b) at 11.30 am on Thursday 25 July;
(2) the Committee shall hear oral evidence in accordance with the following Table:
TABLE
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 2.00 pm on Thursday 25 July. —(David Rutley.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(David Rutley.)
The Chair
Copies of written evidence the Committee receives will be made available in the Committee Room.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(David Rutley.)
The Chair
We will now begin our public sitting and hear evidence from representatives of the RSPCA and Battersea Dogs and Cats Home. I remind Members that questions should be limited to matters within the scope of the Bill and that we must stick to timings—I will be ruthless on that. Do any Members of the Committee wish to declare any relevant interests?
Good morning to our witnesses. Will you introduce yourselves for the record?
Claire Horton: I am Claire Horton, chief executive of Battersea Dogs and Cats Home.
Michael Flower: I am Michael Flower, deputy head of prosecutions, RSPCA.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
Q
Michael Flower: I will start, if I may. It is important that sentencing is increased because the current maximum penalty does not reflect the serious offences that we see in the animal cruelty world. There is a huge upsurge in public opinion, which seems to want increased sentences. We have encountered comments from the judiciary in our prosecutions and they would also like to see higher penalties so that they could deal adequately with the types of offence that have been encountered.
For example, we would be looking for increased sentence in cases such as “man pours lighter fluid on a dog and sets it on fire” and “man puts kitten in microwave, switches it on and kills it”. We have had recent cases involving puppies being kicked to death. We had a recent case involving two men who wanted to kill a dog, with some reason to do so, but rather than take it to the vet, one chap hammered a nail into the dog’s head. Then they buried the dog, and the dog was still alive. I could go on, but I don’t think I need to. Some of the cases we are encountering are, frankly, awful.
Claire Horton: I endorse everything that my colleague has said. I think probably the most significant case that brought it home to me and really kicked this off was Baby the bulldog, which Ms Turley has fought for significantly. That is the most horrific example of animal cruelty: it was filmed on a mobile phone; people joked and laughed and deliberately sought to cause injury to that animal. The sentence that they got was a matter of weeks. The sentences are way too low given the scale that we see this happening: six months is the maximum, with a 20% reduction if a defendant pleads guilty. Battersea, as well as the RSPCA and other animal rescues around the country, sees almost on a daily basis animals coming in as victims of cruelty.
Luke Pollard
Q
Michael Flower: We would have to concede that there are differences with the legislation. The Animal Welfare Act 2006 protects animals that are considered protected animals. Broadly speaking, those are domestic animals. It does include wild animals if they are under the control of man. Some cruelty cases will involve wild animals, such as a badger or a fox, which often are caught during illegal hunting activities. Those animals will have dogs set on them. We had a case in Wales recently where a group of men were involved in that activity, and a young baby badger was skinned alive by two dogs pulling at each end.
Some offences relating to wild animals will be caught by this legislation. Some will not be. The crux is whether the wild animal is under the control of man. In some circumstances that is not the case, whatever cruelty is perpetrated upon them. In an ideal world, at some point in the future I hope there will be some merit in looking at animal-related sentences across the board, because we have the Protection of Badgers Act 1992, the Deer Act 1991 and Wildlife and Countryside Act 1981, which protects wild birds, but all those animals can be caused to suffer in the course of other activities. The Bill does not solve all problems for all animals, but, given that the vast majority of cruelty cases that are prosecuted relate to domestic animals, it is an extremely important first step.
The Chair
Trudy Harrison indicated that she would like to ask a question, presumably on the same theme.
Trudy Harrison (Copeland) (Con)
Q
Michael Flower: I certainly hope so. To my mind, one of the great drives behind the Bill is to try to deter people from committing those offences. I go back a few years working for the RSPCA, and one of the main drives we had for bringing in the welfare offence at the time of the original Act was to introduce to English law preventive measures to stop animals being caused to suffer. The RSPCA is about preventing cruelty, not prosecuting it. We will prosecute it where offences are committed, but we want to prevent it. I hope that, if there is a five-year custodial sentence, that will act as a deterrent. It seems to me that there is a huge difference between an offender serving a 16-week custodial sentence, as is the case at present, and serving two and a half years. That must make some difference to some people, and it can only be beneficial.
Claire Horton: We are aware of research by the University of Birmingham and similar research in Italy that found even a relatively small change in sentences can have a significant deterrent effect. Certainly, given some of the examples we have cited, the sentence at the moment is disproportionate, considering that the sentence for fly tipping is five years, the sentence for theft is seven years and the sentence for driving while disqualified is significantly more than this. For someone who knowingly and determinedly kills animals in the way you have heard about, there has to be a deterrent. There has to be a punishment that fits the crime. At the moment, it just does not at all.
Of course, as was said, there is significant public and cross-party support for this change. I think people recognise that we need to be seen to be taking this seriously and to be acting. Certainly, at the moment, we are the worst of 100 countries in the sentence we offer. Battersea did some research in 2017—I am sure most of you have already seen it, but I have brought some copies for the Committee’s benefit, which I will leave here—that looked at sentencing for animal cruelty in England and Wales. We surveyed 100 jurisdictions around the whole of Europe, the US and Australia, and all of them, including Ireland and Northern Ireland, had higher sentences than England. We really do need to act on this, and we need to do it soon.
Sir Oliver Heald (North East Hertfordshire) (Con)
Q
Michael Flower: The Sentencing Council has actually produced sentencing guidelines for Animal Welfare Act offences already—the most recent version was introduced in 2017, I think—and they contain examples of aggravating features. As a prosecutor, we find them very useful. We would certainly welcome the Sentencing Council revising those guidelines to take account of the Bill, if it is enacted. In fact, I suggest that it is essential that it does. We have had an indication somewhere down the line that it is prepared to look at this fairly quickly if the Bill comes into force. Yes, I would definitely welcome Sentencing Council guidance.
Sir Oliver Heald
Q
Michael Flower: Oh yes, it gives you much more scope, because in that short period of six months, when you take account of discounts for early guilty pleas and so on, you have a very limited band in which to work, so five years should improve the situation quite considerably.
Claire Horton: Yes, we agree with that. Certainly, we are expecting up to five years to be used for the most serious offences, and aggravated offences come under that banner. We would certainly welcome the capacity and the ability to do that.
Sir Oliver Heald
Q
Michael Flower: All those should be aggravating features. Some already are, under current guidelines. The use of an animal to cause injury to another is also an aggravating feature at the moment. Another aggravating feature that already exists, and that should continue to exist, is cruelty to multiple animals. Although the examples I have cited have all been physical abuse of an individual animal, there are some very serious cases involving the wholesale gross neglect of multiple animals. It can be a horse dealer with 100 horses, and the vast majority of them are in a suffering state. In my view, that must become an aggravating feature.
Claire Horton: Of course, the law now is that if an animal—a dog—attacks a service dog, then the owner can receive up to three years’ imprisonment. However, if that owner himself attacks that service dog or any other dog, the owner would get up to six months, and that is it.
Sir Oliver Heald
I think there is an overwhelming case. Thank you very much.
Anna Turley (Redcar) (Lab/Co-op)
Q
Building on Sir Oliver’s point about aggravating, I have an interest in filming and the use of social media. Is the filming of incidents of abuse and harassment for entertainment on the increase? How is that affecting your ability to prosecute or to take cases forward, and could that be an aggravating element in the seriousness of a case?
Michael Flower: We receive quite a number of complaints that make reference to the social media site Snapchat. The figures I have seen show that in 2015 there were 27 complaints that mentioned Snapchat, and in 2018 there were 214. That would tend to indicate that there is a significant increase.
On an individual case-by-case basis, I am often asked why cruelty continues and seems to be increasing, and why serious cruelty seems to be increasing. I do not really know the answer, but I have a very strong suspicion that social media is a contributory factor. I have children who are on Facebook and so on, and a lot of people on these sites seem to live an almost artificial life, where they want to glorify their activities. One way a proportion of people seem to do it is to commit acts of cruelty and then put them on the internet so that others can see it. It is damaging, because it is almost publicising and promoting cruelty. To my mind, this is yet another aggravating feature. I believe that the Sentencing Council will recognise that fact—it has included that in the current sentencing guidelines. That is all positive, but it is an issue and I am sure that it leads to more cruelty.
From an enforcement point of view, it is sometimes helpful, because if we can secure the material that is being posted, we have pretty good evidence of what is being done by which individuals to which animals. It does not always work, because some of the material on these social media sites is deleted very quickly and cannot always be retrieved. It is quite surprising that we have had a number of pretty high-profile cases, including dog fighting. In one of the last cases I dealt with, they were going into fields in Bedfordshire, I think, and staging fights in the middle of the field and filming them. Then they put it on social media, where one of our researchers saw it and we were able to deal with the offending. It is a mixed blessing. It helps to perpetuate cruelty and it does not always solve it.
Claire Horton: We see that in all sorts of other issues. It is not just in animal cruelty; it is in everything. It is people trolling young people and encouraging suicide. Social media has an awful lot to account for. Certainly, anecdotally, I would agree. I agree, actually, that in some places it is quite useful to have that footage. It works as some sort of shock tactic, for many people. It raises awareness for many people, but it also drives copycat behaviour with others. That is probably the real concern. I don’t think it is going away any time soon, but the more we can be clear about our intolerance of that sort of behaviour and how it is punished, that has got to help in tackling these crimes.
Anna Turley
Q
Michael Flower: I do not think it is the social media companies that take them down. From people who know about these things—I am not one of them—my understanding is that on Instagram, for example, where a lot of people seem to post images, it automatically comes off after 24 or 48 hours, so it comes and goes.
Bill Grant (Ayr, Carrick and Cumnock) (Con)
Q
Michael Flower: The footage tends to come to our attention partly by other people who have seen it reporting it. That is particularly common with juvenile offenders of school age, where peers in school will see their friends publicising themselves on one of these sites and are appalled by it, and so they report it. We do have officers who tend to trawl the internet looking for evidence of cruelty, particularly the more organised crime, such as large-scale puppy trading or dog fighting. I cannot recall a time when we have had to go to one of the internet company providers. I do not know what sort of reaction we would get. I am not aware of it being done.
Sarah Newton (Truro and Falmouth) (Con)
Q
My question follows on from the discussion we have just had. It strikes me that there are, as Claire said, a lot of similarities with other types of crime, such as the sexual exploitation of children and how the internet is used there. What lessons should we be learning about raising awareness and educating people that this is absolutely unacceptable in our society? As you mentioned, children, who will be exposed at home and on social media, might be tempted to copycat. What more can we do to raise awareness that it is unacceptable, that these are crimes in our country, and that the people who perpetrate these crimes, or who are associated with them, will encounter the full force of the law?
Michael Flower: When we had discussions with the Department for Environment, Food and Rural Affairs about the Animal Welfare Bill, one of the important things that had to follow its enactment was publicity to educate the public that the law had changed and to make it clear that there were now new requirements for animal care, particularly in relation to the duty of care offence. When DEFRA introduced the codes of practice for domestic animals, that did not really happen.
Were this Bill to be enacted, I would again say that there needs to be a fairly significant media campaign to educate the public—to say that this is a new law with new penalties and that the Government and the country take the crime seriously—and to drive that message home to them. We try to educate people. Most of the work our officers do—although we talk in here about investigations and prosecutions—is about educating and advising people, and providing guidance to resolve problems before we get to the prosecution stage. We can put the message out, and I am sure that other agencies and charities will do so, but the Government need to do that as well—it needs to come from on high.
Claire Horton: I think it is a partnership. We work very closely with the Government in other areas. Certainly, as an animal welfare sector, all the agencies work closely together. We all know each other well and share common ground when it comes to issues such as this. Certainly, we are able to join with the Government to share messaging—it does not matter what sort; we will happily do it.
There is a multitude of messages that we are trying to get out to people. One is how to make wise choices and decisions about the purchase of puppies, because puppy farming and illegal puppy smuggling and dog breeding are always huge issues. How do we make people much more aware of responsible ownership? How do we stop animals getting out and worrying livestock? How do we make people think differently about all manner of things? There is always a danger that messages can get mixed up—that they get muddled and ultimately people become blind to awareness messages that are constantly hitting them. It is about thinking carefully about the nature of the message, how it is put out to the population and what methodology or channel is used, which is quite important.
Earlier, I mentioned copycat behaviour, which worries me a lot, because of the issue of promoting responsible ownership as it relates to animal cruelty and not being cruel to animals. Inevitably, in those messages, we will be giving examples of animal cruelty and there will always be people who pick those messages up in the wrong way and go and do it. None the less, that does not stop us needing to be clear about this.
Ultimately, the biggest deterrents will be a much harsher sentence, a much more serious punishment and naming and shaming. One of the interesting things about the internet and some of the cases we have heard about is that when those perpetrators’ identities become public, life can get difficult for those people simply because of the public reaction. I make no comment on that, other than that it can clearly work in different ways when people or the issue are exposed.
The Chair
I will come to Sandy Martin and then the Minister. We have 15 minutes left, so perhaps you can ensure that the Minister has plenty of time to ask his questions.
Sandy Martin (Ipswich) (Lab)
Q
Michael Flower: No, I can’t say I have encountered that. From my experience, the courts tend to consider the nature of the offence, rather than the animal, which is entirely right. You cannot really differentiate between extreme cruelty to a dog, cat, fox or badger—if it is cruel, it is cruel, and that is the way the courts tend to look at this, which is the right approach.
Claire Horton: I cannot give an answer to that I am afraid, as I have no experience of court sentencing.
Sandy Martin
Q
Michael Flower: Yes, I think that is right. There is already a clear distinction, and legitimate pest control continues. The Animal Welfare Act 2006 does not prevent that, and the Bill does not change that situation. I do not think the RSPCA has an issue with pest species animals being killed if that is done humanely—that is key. Cruelty is causing suffering unnecessarily, and there is a clear distinction.
Sandy Martin
Q
Michael Flower: I think it would be sensible, and I believe an amendment has been tabled that there should be a review after two years. I am not convinced that there will be sufficient data in two years to do that properly. If the Bill were to be enacted in the next three or four months, it would be a couple of years before results started filtering through the court system. A review would be welcome from our point of view because there might be anomalies between the Animal Welfare Act and other animal welfare protection legislation, such as the badgers Act. If this Bill is enacted, we must consider how sentencing can be applied to other areas.
Claire Horton: I agree with that. The Bill is clear and has been introduced because of the recognition that animal cruelty is a serious issue. We would be concerned by anything that slowed its progress. It is fairly uncontentious, and I urge Members to get this bit through, and to consider issues of review and inclusion once we have more evidence further down the line.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (David Rutley)
Q
Michael Flower: Yes, that would definitely be our view. Personally, I think that increasing sentencing is long overdue; it was unfortunate that that was not included in the Animal Welfare Act 2006. It is now clearly overdue, and needs to be implemented as soon as possible. The extremely narrow scope of the Bill should make it easier to push it through quite quickly, which would be very welcome from our point of view.
David Rutley
Q
Claire Horton: Very much so.
David Rutley
Q
We had a bit of a conversation about sentencing guidelines in terms of Anna’s important amendment, and views and concerns about videos. Are you convinced that the guidelines help you in your job and will have teeth? I have that confidence, but it is important for Committee members to hear, particularly from the RSPCA, that in the work that you do and more generally there is a view that the guidelines can be of assistance and are meaningful.
Michael Flower: They certainly are from the RSPCA’s point of view. Those of us who deal with prosecutions for the RSPCA will frequently refer to the guidelines because they give a clear indication of how society in the broader context may view these types of offence. The aggravating factors, which we referred to, are listed. Obviously, the more aggravating factors there are for a particular behaviour, the greater the likelihood of prosecution should be. They tend to give us a very useful steer.
David Rutley
Q
Claire Horton: Absolutely, and I would agree. The entire welfare sector is of the same view. We are very comfortable.
The Chair
In the absence of any further questions from Members, I thank both witnesses for their evidence, and move on to the next panel.
Examination of Witnesses
Mike Schwarz and Inspector Paddy O’Hara gave evidence.
The Chair
Good morning. We will now hear from a representative of Bindmans LLP—is it Bin-dmans or Bind-mans?
Mike Schwarz: Bind-mans.
The Chair
There was a 50:50 chance of getting it right first time. We will also hear from a representative of the Metropolitan police. Will the witnesses please introduce themselves for the record?
Inspector O'Hara: Good morning. I am Inspector Paddy O’Hara from the Metropolitan police. Today, I represent the national policing lead for dangerous dogs and companion animals.
Mike Schwarz: My name is Mike Schwarz. I am a solicitor, working in the criminal system. I am a consultant at Bindmans.
Luke Pollard
Q
“concerns about the impacts of a significant increase of potential sentences in one area of animal protection law, but not in other comparable areas.”
Is that about what happens with domestic animals versus wild animals? If that is the case, why do you have those concerns, and what might the implications be of increasing sentences in one area?
Mike Schwarz: Yes, it is precisely that: the danger of disparities and distortions, and even confusion, caused by the ramping up—that is not a critical comment—of maximum sentencing in one area, which is the domesticated and under-control-of-man area, while leaving well behind the maximum sentence in other areas. As you know, the disparity is between six months in most other areas—in the Hunting Act 2004, it is even less—and five years under the Bill. That may cause problems when it comes to sentencing.
The root of the problems is the Criminal Justice Act 2003, which is about sentencing, and two provisions in particular. The first is section 143, which says that the essential issues when it comes to sentencing are the culpability of the offender—that is not so relevant to today—and the “harm…caused”. That term begs the question why harm, cruelty and suffering in one sector are sentenced at a more serious level than in another. That is one provision that sparks potential problems.
The other provision is in section 152 of the same Act, when the court is required to look at whether the threshold for custody is passed. It is not a helpful comment—it is rather circular—but the section asks whether custody is justified and whether a fine or a community sentence is not appropriate. That begs the question whether the sentencing and custody threshold should be passed in one area when similar activity in another that causes similar suffering and harm might not reach the threshold. I can develop that if you like, but you might want to ask another question. I am happy to continue with that.
You know as well as I do that the “unnecessary suffering” provision in the Animal Welfare Act 2006 is perhaps key to today’s discussion. As far as I can see, “unnecessary suffering” is not significantly different in terms of cruelty from the animal affected in all the other areas of animal welfare and wildlife law. One thinks of the Wildlife and Countryside Act, the Protection of Badgers Act and the Hunting Act. We are talking about the same sort of serious offence and the same cruelty, so there is nothing to distinguish between the activities and the suffering caused in those areas.
That brings us to the obvious point, which is that different sectors of the same activity—animal welfare, animal care, animal husbandry—are treated differently. I cannot think of an area, although I am happy to be corrected and I might be wrong, where there is that difference in sentencing when it comes to the same offence. I am not an expert in the area, but one thinks about health and safety law and the same principal offences that apply. Obviously, the sectors are regulated differently, but it would be unusual in that and similar areas for the sentences to be significantly different for the same offence and the same mischief in one area than another.
Luke Pollard
Q
Mike Schwarz: Obviously, we are talking about sentencing here rather than defences. That is the starting point for now, but I agree entirely with your example about the rabbit, or the hare. If we think of a rabbit or a hare that is kept in a hutch by a child and that is being mistreated by the father, why should he be liable to such a significantly greater sentence than if he had just gone into a field to injure and be deliberately cruel to a wild hare? One can think of lots of other examples. You have heard the evidence already, but that encapsulates the problem of, why should things be treated differently? But it goes wider than that.
One disparity, which I am sure you are aware of, is that if one increases the sentence beyond six months—again, I am not saying that that should not happen; in fact, quite the opposite—that entitles a defendant to a Crown court trial. Therefore, a defendant—let us say the abuser of the rabbit in the hutch—would be entitled to a Crown court trial, whereas the abuser of the rabbit or hare in the field would not. That starts playing into the substance of the criminal justice process where one is entitled to a jury for apparently random reasons as a result of this perhaps artificial, though it appears inevitable, distinction that has been drawn.
One can think of other ways that the system is distorted, particularly for judges when they come to sentencing, or even for prosecutors when they decide whether to prosecute. For example, in the case of catching a badger or a fox for no other reason than for dogs to kill it, if one focuses on the impact on the fox, that is, arguably, in the wildlife area where there is a maximum sentence of six months. The fox dies. If one looks at the impact on the dogs that are controlled by a hunt or the abusers, they are “under the control of man”, as the Act says, and therefore if one focuses on the injury to the dogs, which invariably will survive, the maximum will be five years. That throws up another point, which is the question that was discussed earlier: what “under the control of man”, according to the terms of the Act, means.
For what it’s worth, and this has no legal weight as I don’t have any legal authority for saying it, my view is that just because a badger or a fox is caught, and if it is caught simply for the purpose of baiting and killing it, that does not make it not a wild animal, because that is part of the offence, otherwise every single offence would be caught by the protected species and domesticated animals provision. It might be different. If, for example, the fox or the badger was already in a domesticated or controlled setting and was then set upon, it might be different, but that plays into the point that because of the disparities in sentencing, any prosecutor in court, and particularly a judge sentencing, would need to bear in mind those considerations about what exactly is the definition of “under the control of man”.
Luke Pollard
Fantastic. I would like to come back to Inspector O’Hara later when other Members have put their questions.
Sir Oliver Heald
Q
Do you think there is a case for making the situation of the service animal clearer in the sentencing guidelines, and making it absolutely clear that it is an aggravating feature to attack a service animal? Inspector O’Hara might like to start on that.
Inspector O'Hara: Obviously, the service animal provision is relatively new, and we have yet to see how that will play out in court. I take quite a pragmatic view that the courts will be able to read between the lines with what is specifically written in the guidelines, to come to a correct conclusion in that regard.
Sir Oliver Heald
Q
Inspector O'Hara: Clearly, it is a matter for the judiciary, and not necessarily the police, to put that forward. We have certainly called over the past couple of years for an increase in penalties. That is something that we put forward with the Environment, Food and Rural Affairs Committee on companion animals a couple of years ago. I just think that we have not got the evidence base at the moment, with the service animals notion particularly, to suggest that it is posing a particular problem that requires a review.
Sir Oliver Heald
Q
The aim of the change in the law and, I hope, this increase in sentence is to have something that is more tailored to the situation. Is that something that you would recognise as worth while? Do you not think that the sentencing guidelines would need to be looked at in those new circumstances?
Inspector O'Hara: With any change in legislation or provision, a review of the subsequent sentencing is useful, because five years is a long period.
Sir Oliver Heald
Q
Mike Schwarz: That was obviously an important piece of legislation and I know you are rolling it out. I think the sentencing guidelines—the 2017 ones—on the Animal Welfare Act do cover that point. They say that if the animal is being used in public service or as an assistance dog, there is an aggravating feature, but that might not have the priority that you and others might wish to accord it.
Sir Oliver Heald
Q
Mike Schwarz: I would not come here either as an expert or a politician, but my personal answer is, “Yes, but.” The “but” may come in the proposed amendments, recommending a report or a review to see what disparities and distortions may be caused, with a view to that being the trigger to further analysis of the whole sector—or both sectors.
As I understand it, though others here will know better than I do, there was the existing wildlife law and then Labour passed the Animal Welfare Act to get domesticated animals on the same level. As you know, that makes things more advantageous for prosecutors in one sector, leaving another behind. That would be a reason for trying to build in some sort of process, such as a report or a review, to try to get the other sector back up to speed with the first.
Rosie Duffield (Canterbury) (Lab)
Q
Inspector O'Hara: Some research from the US in particular tends to suggest a link between animal-related violence and human-related violence. I do not know that we are quite so far advanced in this country to have the dataset available to help us understand that, but the five-year penalty broadly brings causing suffering to an animal in line with actual bodily harm, which is the human equivalent. That is something we strongly suggested at the last EFRA Committee.
Rosie Duffield
Q
Inspector O'Hara: I don’t know whether it would prevent that. We do not have a dataset that we can rely on in that regard, but it would certainly be a deterrent.
Alex Chalk (Cheltenham) (Con)
Q
Mr Schwarz, can I ask briefly about your helpful point on an apparent inconsistency between domestic and wild animals and explore a little bit about how much that matters? I am conscious that, if a robbery takes place and there are two robbers, one of whom is 18 years and one day old at the time of the offence and the other is 17 years and 360 days, they will be sentenced under different regimes, even though, as far as they are concerned, they are two young men of effectively identical age. Equally, if there is a traffic offence and a prosecutor decides the driving fell far below the standard of a reasonably careful and competent driver, they get charged with dangerous driving. Equally, if another prosecutor says, “Well, I don’t think it quite crosses ‘far below’, but it was below the expected standard, so I’m going to charge it as careless driving,” that offending would be sentenced under different regimes. Have the courts not shown themselves to be well able to deal with such discrepancies without any real manifest injustice to anyone?
Mike Schwarz: I can see I have struck a lawyer here. There is a difference, actually, and it is one of substance. There is a principle behind treating adults differently from juveniles, and a principle behind treating careless driving differently from dangerous driving. As we all know, the law has to draw a line because there is a reason for doing so. The distinction between the sectors of domesticated and wildlife animals, and treating them differently in terms of sentence, does not appear to have a principle, unless Parliament is saying that the animal suffers less in the wild as the result of unnecessary cruelty, or that it is more important to punish suffering in the domesticated area. For what it is worth, I think the suffering is the same, and it is for Parliament to decide whether the two should be distinguished from each other. That is where the distinction lies.
It begs the question of what the animal welfare legislation is generally about. It seems to be about protecting animals, punishing bad behaviour by humans and stopping it being propagated elsewhere. In the sentencing guidelines and the offences, however, there is no demarcation between sectors to say that one sector is more worthy of protection than the other is, which is why I go back to the point on the level playing field across the two areas.
Alex Chalk
Q
Mike Schwarz: Obviously I accept that the legislation can and should be passed, but with the health warning that it is creating a disparity. It is not an artificial, in-principle, lawyer’s type of disparity; it creates problems for judges to have a judge in the Crown court sentencing on one set of facts and in the magistrates court on another. If one looks at the guidelines, how is a judge going to sentence someone who has committed a very heinous act against a wildlife animal if his or her sentencing powers lead to the conclusion that the sentence should be lower than for a less heinous act in another area?
Defence lawyers, as you and others know, would have field day with that, saying that the principles of proportionality and fairness require examination. I heard that there was feedback from the judiciary about the existing law. One can only think about what the feedback might be, pending a formal review or report, or not, if this disparity were not only passed—and I am not saying it should not be—but passed without a commitment to reviewing and evening up the playing field.
Alex Chalk
Q
Mike Schwarz: I think that would happen, but it might bring the law into disrepute when, in the next court, something similar—
Alex Chalk
I take that point. Thank you very much. That is all I wanted to explore.
Anna Turley
Q
Inspector O'Hara: The majority of offences that I have seen prosecuted by the police are probably not cases that would hit the higher end of the sentencing bracket. They are largely cases involving an animal hoarder—generally somebody who has some mental health problems or another underlying reason for amassing 20 animals in a property. It is that sort of offence that we typically see day in, day out. At the last count, when I ran the figures for the EFRA Committee inquiry report a couple of years ago, broadly speaking—this is from memory—around 85% of the prosecutions were done by the RSPCA and about 15% by police or local authorities, with the burden of that shared by the police.
That typically tends to be my experience. We have not had any tail-docking cases that I can think of in London, but we have ear-cropping mutilations and general animal cruelty rather than organised crime or that more serious end of it. All those cases have been dealt with in a magistrates court so far, but the sentencing in London is fairly consistent because all those cases go to one court, although elsewhere in the country it is probably not so. Most of those cases are dealt with by way of a fine or other ancillary orders rather than imprisonment.
Anna Turley
Q
Inspector O'Hara: It is a very small number.
Mike Schwarz: I do not know whether I can add to that. The only point I would make, triggered by that thought, is about the position in Northern Ireland, where the unnecessary suffering provision in section 4 is not limited to domesticated animals but applies across the board. There would be a significant disparity of sentencing for exactly the same facts for a case in Northern Ireland compared with England and Wales if the Bill is passed. That is the only helpful contribution I can make, other than to refer to the existing sentencing guidelines, which are very helpful.
Sandy Martin
Q
Mike Schwarz: I would like to think the points I make are sound in principle and therefore one does not need a great deal of evidence in order to have that review. I am not being vain about it, but there are flaws in the structure of the Bill which, if recognised, merit a review. Having said that, I would not dismiss evidence or views, particularly from the judiciary.
You mentioned how the judges might be grappling with this. Suppose the Bill were passed today, the first prosecutions might come about in the next six to 12 months, particularly they were Crown court cases. After 12 months, there might be some instances where problems—or lack of problems—emerge. I see that there were about 700 or 800 prosecutions in 2018 under the Animal Welfare Act. During that year, there was likely to be a significant proportion of helpful cases. Soundings could be taken of the judiciary and it could be advised after the Bill passes that Parliament would be assisted by view.
It would take perhaps a year, if one attaches importance to evidence, but sooner if it is accepted that, as a matter of principle, the absence of a level playing field needs to be addressed earlier.
Sandy Martin
Q
Inspector O'Hara: Most definitely.
Sandy Martin
Q
Inspector O'Hara: It is not really my area of expertise. I generally stick to companion animals and the position on that should probably come from wildlife crime. I suspect it dovetails very much into Mike’s point around the disparity of the two genres, for want of a better phrase.
David Rutley
Q
Inspector O'Hara: The guidelines play a very important role for any offence because they are the starting point at which the court will look upon sentencing as to where the offence will sit along with any mitigating or aggravating factors. It is really key that those guidelines are there and that they are robust. Having them in place will ensure consistency across the board, depending on which courthouse the matter sits.
Mike Schwarz: As you know, there are two sets of guidelines: one is the overarching principles for sentencing in all criminal cases, which I referred to earlier when I talked about harm and culpability; then, as has been mentioned a number of times, there are the specific guidelines of the Animal Welfare Act and animal welfare laws. I think they are very good, but nothing should escape review. It is important that it is reviewed with the passing of this legislation.
Earlier we heard that the point that when the threshold for custody is passed is now more important, bearing in mind the threshold goes up and the length of sentencing goes up. So far, the guidance is just in section 152 of the Criminal Justice Act 2003, but the sentencing guidelines for animal welfare would benefit from some guidance on when the custody threshold is reached and what sort of sentences should lead to what greater lengths of custody. That exercise may throw up the disparity between the two areas, which is why I think a review is important and probably quite urgent.
Luke Pollard
Q
Inspector O'Hara: Typically in this topic, media have been led and have focused on case results and outcomes, on the back of some successful prosecutions with high sentencing. I think there is a key prevention message that can go out before the legislation comes through. There is one thing that worries me slightly: I have not known many people charged with animal welfare offences to enter a guilty plea at the first hearing. I can see that there will be quite a lot of cases, particularly if sections 4 to 8 are charged, where somebody will elect to go to Crown court, so it will be some considerable time down the road before we get those sentences coming through, but you might find that the cases that go up to the Crown court get no more severe a penalty than they would have got in a magistrates court. We have to manage our expectations of what that will bring.
In my other area of work, dangerous dogs, following the legislation changes in 2014 and the 14-year penalty that came in for a dog dangerously out of control causing death, we have not seen significant sentencing increases as a result of that legislation. While the current provisions are very good, and we very much support them and hope they will come in quickly, expectations in the court outcomes will need to be managed.
Luke Pollard
Q
Inspector O'Hara: I certainly do not think it will cause people to be more hesitant; the British public are a nation of animal lovers, and nothing riles people more than animal cruelty. I do not see a negative effect as a result.
Luke Pollard
Q
Inspector O'Hara: It is a difficult question because we are starting to see, and have been seeing for a number of years, a reduction in the number of section 1 dogs in particular coming to notice as status-type symbols. However, people are moving on to non-prohibited breeds, and we see quite a lot of those. Simple possession is not an offence in any way, so whereas a pitbull terrier would have been a typical dog in the past, there are now people with, for example, dogs that are larger than a pitbull terrier. Typically, we do not see a lot of dog fighting, and we do not see a lot of mutilations and ear-croppings, although we do see them occasionally, and they do come to note. If I look at my animal welfare offences prosecuted alongside the Dangerous Dogs Act 1991 offences, I am not necessarily sure that there is a real strong parallel. If anyone is charged with a Dangerous Dogs Act 1991 offence, mostly there are not really cruelty offences on top of that, other than in the odd case.
Thangam Debbonaire (Bristol West) (Lab)
I want to follow up some of the questions asked by Members. You may be aware of the wildlife law report from the Law Commission—There was a consultation, and recommendations were published in 2015. Among those recommendations was one that the patchwork of existing legislation be replaced by a single statute. This Bill does not cover wildlife, as we have said, but as mentioned by my hon. Friend the Member for Plymouth, Sutton and Devonport said, to our constituents that distinction would not be quite so understood. I do not see how our constituents who care greatly about animal cruelty will understand why there is a distinction, and why there is still effectively a patchwork. Whilst we welcome this Bill, it does seem to be doing that. Do you have any thoughts on the differences and the continued existence of what seems to me and to the Law Commission to be a patchwork?
Inspector O'Hara: It seems to me that we are pressed for time to put this Bill through. It would be a great shame, in my view, if we were to do that consolidation work now at the expense of this Bill. With the Animal Welfare (Service Animals) Act 2019 there has been a split into piecemeal chunks to get them through, essentially, and to get them in. There could perhaps be a review at a later date, as mentioned today in the Committee. A review could look at a consolidation piece of work, along with any other bits that needed tidying up.
Mike Schwarz: I agree entirely with the thesis that there needs to be some systematic review. Animal cruelty has the same effect on animals regardless of where the animal lives, and whether it is husbanded. The impact on the humans involved is the same, and the culpability of the humans is the same. We all know that the way of inflicting injury, cruelty or death on animals varies according to the sector, but the disparity of sentences and the patchwork nature of the current legislation risks distortions, as I said earlier, and even risks bringing the law into disrepute when there is not a sense of fair prosecution and sentencing. It may help judges and the public understand the situation, as they may have difficulty piecing together the legislation as well.
Thangam Debbonaire
Q
Inspector O'Hara: I got the feeling from the other questions raised around the table, and the earlier session, that there was a lack of parliamentary time to bring the matter forward.
Thangam Debbonaire
Interesting. I wonder, where could that have come from? Thank you.
The Chair
I am not sure that the issue is really within the scope of the witnesses to comment on, but you made the point. If there are no further questions from Members, I thank the witnesses for their evidence. That brings us to the end of our oral evidence session. The Committee will meet again this afternoon to begin a line by line scrutiny of the Bill.
Ordered, That further consideration be now adjourned. —(Iain Stewart.)
Animal Welfare (Sentencing) Bill (Second sitting)
Tuesday 23rd July 2019
(4 years, 9 months ago)
Public Bill CommitteesRead Full debate Animal Welfare (Sentencing) Bill 2017-19 View all Animal Welfare (Sentencing) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 23 July 2019 - (23 Jul 2019)
The Chair
I remind everyone to switch electronic devices off or to silent mode, and that teas and coffees are not allowed in the room. We now begin our line-by-line consideration of the Bill. We must proceed in the order set out in the programme order agreed by the Committee this morning.
Clause 1
Mode of trial and maximum penalty for certain animal welfare offences
Anna Turley (Redcar) (Lab/Co-op)
I beg to move amendment 1, in clause 1, page 1, line 10, at end insert—
“(2A) After subsection (1) insert—
‘(1A) Subsection (1B) applies where the court is considering for the purposes of sentencing the seriousness of an offence under any of sections 4, 5, 6(1) and (2), 7 and 8, and the person guilty of the offence—
(a) filmed themselves committing the offence, or
(b) posted online a video of themselves committing the offence.
(1B) The court—
(a) must treat the fact mentioned in subsection (1A)(a) or (b) as an aggravating factor (that is to say, a factor that increases the seriousness of the offence), and
(b) must state in open court that the offence is so aggravated.’”
It is, as always, a pleasure to serve under your chairmanship, Mr Bailey. Before I move on to the specifics of the amendment, I beg the indulgence of the Committee to say a few words of thanks to everyone who got us to this position. As I did on Second Reading, I thank my constituents, who responded so powerfully to the death of Baby the bulldog in such terrible circumstances with petitions, campaigns, floral commemorations and so on. They really have been moving and inspiring.
The fact that we are here in Committee shows this place at its best. There is a lot of cynicism in politics at the moment—a lot of people are getting angry and shouting at each other, there are threats of violence and so on—and it is very easy for people to feel frustrated and disempowered by the system and to think that the things that happen here do not make a difference. However, the progress of the Bill shows that, when there is a problem that needs fixing, if we are positive, we campaign, we are constructive, we petition and we work together collectively across parties—I am proud of the way we have done that—we can change the law and make things happen.
That sends a powerful message back to the public: “Don’t get angry; get even. Change the law. Work with your politicians—campaign and go and see your MP—and you can really change things for the better.” I thank my constituents for what they have done, and I thank Committee members. My colleagues have supported me so much in this process, but the Government have responded considerately and collaboratively. As an Opposition Back Bencher, I am proud to have been able to work with them to make this happen. I also thank all the organisations that we have received evidence from and that have supported the campaigning over the past couple of years. Collective thanks are due to so many people.
I am very happy with the Bill, but I would never want to miss an opportunity to add an extra couple of thoughts. As much as anything, my intention with the amendment was to stimulate a bit of debate. One of the most overwhelming issues in the case of Baby the bulldog was the fact that the young men involved filmed themselves undertaking the abuse, laughing as they did it. The filming was part of the abuse—part of what made the incident so horrific was that they glorified it and thought it was something worth capturing, saving and possibly even sharing.
The other side of the social media aspect is that, because the abuse was videoed and stored on a chip in a mobile phone, which was subsequently found on a supermarket floor, we had evidence that enabled us to bring those young men to justice. There is something very powerful about the role of social media and video in tackling the scourge of this cruelty, as we are seeking to do. That was why I wanted to raise awareness of the role of social media through my amendment. Although we are all outraged at any animal abuse, the use of social media and the sharing of video is a horrible aspect of abuse, which as a society we cannot condone and must not allow to continue. Videos of abuse must not be allowed to be shared and amplified in this way.
My amendment seeks to require courts, where people filmed themselves committing the offence or posted online a video of themselves committing the offence, to treat that as an aggravating factor in sentencing. In explaining the amendment, I want to set out some of the examples I came across in the course of my research that made me more determined to raise awareness. Again, I beg the Committee’s indulgence. We have already heard some horrible evidence—I know we have all had our fill of seeing and hearing about horrific abuse—but I want to demonstrate the severity of what we are dealing with and what social media has done.
Three men in the Forest of Dean were jailed for filming their dogs while they mauled badgers to death. The judge described that as “medieval barbarity”, and there is sickening footage showing the young men in peals of laughter as their dogs slaughtered the badgers. They had a total of 447 video clips of animal cruelty on their phone, but were jailed for just 22 weeks.
A pony was removed by police after video footage showed it being mounted by a man and falling backwards to the ground, which caused widespread outrage on Facebook. That was in Tunbridge Wells in Kent. Two teenage girls in Scotland admitted animal cruelty after a video showing them abusing a snake went viral. A Snapchat video of the couple, who were clearly drunk, showed them laughing as they tortured the reptile, which sparked online outrage. A video was shared on social media showing a black and white dog being thrown off a cliff into the sea. The dog is then seen swimming back to the shore. That video was shared widely on Snapchat, as we heard this morning. In June this year, another video was circulating online of a man laughing as he violently beats a terrified cat: he smacks it in the face and throws it down on the bed so hard that the video is absolutely horrific to anyone who watches it.
A Sunderland poacher is now behind bars after making shocking videos of his whippet brutally killing wild foxes. He posted graphic photographs and videos of him forcing his dog to chase the foxes, which he claimed was for sport. Three girls were arrested in March after shocking footage showed two kittens being abused and hurled into the air, and a man has been jailed and disqualified for life from keeping animals after appalling videos showed him setting his dog on a cat and a fox. This is happening, and we only have to tap something like “animal cruelty” into a search engine to see an awful lot of those horrendous videos.
It is clear that people are posting this stuff for clicks or likes, or as a way of making themselves notorious. It is awful to see: not content with simply inflicting injury on animals, these people are motivated by the prospect of their films going viral and being shared. It is grotesque and horrific, and demonstrates a greater level of malicious intent, which is why I felt we ought to debate the possibility of a specific deterrent. My amendment would make these crimes subject to an aggravated sentence for those who film themselves undertaking such an attack.
I found the evidence submitted by the Royal Society for the Prevention of Cruelty to Animals very powerful. We heard its representative say during this morning’s Committee evidence that, in 2015, the RSPCA investigated just 27 cruelty complaints related to videos and social media. By 2017, that figure was 167—a fivefold increase over just two years. That shows the scale of this issue and, as ever with legislation, we are struggling. Sometimes, we are on the back foot when it comes to catching up with changes in society and technology. This is our chance to get on the front foot.
Even more strikingly, the RSPCA’s evidence included a statistic from a recent survey showing that 48% of young people have witnessed some form of animal cruelty. Only 3% of those witnessed it directly, but a huge number—23%—had witnessed it on social media. What effect does exposing our young people to this material have on them? Does it have a normalising effect—glamorising, even—or lead to dehumanisation and lack of empathy? What effect will it have on our young people, particularly given the role of social media, with videos, clicks, likes and going viral seen as a means of success and of being popular? I worry that this is enabling and facilitating a nasty streak in society that we would not want to expose our children to, and would not want them to witness.
That is all I wanted to say to share why this deserves to be discussed and debated in this place. It is a great concern to me and, I think, anyone who cares about animal welfare and wants sentencing to reflect the severity and gravity of the action. I just hope that, in the course of this discussion, we get a sense of how serious this is.
I say up front that I do not intend to press the amendment to a vote, because I hope the Minister will reflect on it. He has already been very responsive to my questions. However, when considering such a Bill, it is important to talk about the context and the role of technology to make sure that when we are drafting it, every “t” is crossed and every “i” is dotted, so that these actions cannot slip through the net and be allowed to happen without any consequence. I appreciate having been given time to speak to the amendment.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
I support the statements of my hon. Friend the Member for Redcar, but I would also like to raise a further matter for the Minister to reflect on in his reply: the possibility of including in the Government’s online harms White Paper elements that would address the online distribution of abuse images and videos.
The Government have rightly made much effort to tackle online abuse, address mental health concerns and deal with offensive imagery and online behaviours—a critical issue, especially for our young people. However, when I skimmed through the online harms White Paper in advance of this Committee sitting, I found no mention of animal welfare or of the distribution of the kind of images that my hon. Friend mentioned. There is an opportunity for the Minister to reflect on how a conversation between the Department for Environment, Food and Rural Affairs and the Department for Digital, Culture, Media and Sport might help to support the collective Government effort against the sharing of these disgusting images and videos, and create a more comprehensive system.
Alex Chalk (Cheltenham) (Con)
I pay tribute to the hon. Member for Redcar. No one has done more than she has to advance this legislation. I entirely endorse the spirit and intention behind what she proposes, and simply want to volunteer some thoughts by way of context.
It is important to note that the recording of an offence is already set out as an aggravating factor in certain other criminal offences such as rape and sexual assault. As we know, the Sentencing Council publishes guidelines that the court is obliged to take into account. It is therefore important to ensure that the Sentencing Council has the widest possible rein to reflect the full spectrum of aggravating features in respect of this offence, as it has done with other offences.
My only question mark relates to whether there is a risk that, if we legislate for one particular aggravating feature, the Sentencing Council might not have as broad a remit as it might like. I say that because its guideline on the Animal Welfare Act 2006 lists “Other aggravating factors”, including “Use of a weapon” and “Use of another animal”. My rhetorical question is whether, in focusing legislation purely on one aspect, however heinous an aggravating feature it is, we risk inadvertently downplaying other aggravating features.
While I respectfully and entirely endorse the hon. Lady’s intention and the spirit of her amendment, I venture to suggest that the Sentencing Council has shown itself well capable of reflecting the issue of degradation through publication, and well attuned to the need to do so. Inevitably, I think it would include that factor, but it would also include other aggravating features such as use of another animal, use of a weapon, or whether the victim—so to speak—was a public service dog. That would ensure that the offending received the condign punishment it deserves.
Sue Hayman (Workington) (Lab)
It is a pleasure to serve under your chairmanship, Mr Bailey.
The main thing that I want to make clear is the Opposition’s support for the Bill, for which we have waited a long time. We also support the intention behind the amendment of my hon. Friend the Member for Redcar, who has done so much to bring the Bill forward. We believe strongly that increasing the maximum penalty for the worst offences is important in order to send a clear message that society simply will not tolerate the gratuitous cruelty to defenceless animals that she described so vividly on Second Reading—to be honest, it nearly brought us to tears in the Chamber.
We know that perpetrators of such abuse are five times more likely to have a violent crime record and are more likely to engage in domestic violence against women and children. We need penalties to create a very effective deterrent, right at the beginning, when people do these appalling crimes. We do not necessarily expect many more people to be locked up for longer, but the sentence has a deterrent purpose. If people think they will get a maximum of only six months—or only 22 weeks, as has happened in the past—they are less likely to take their crime seriously as a criminal offence.
We need to ensure that the Bill gets a speedy Royal Assent. The Animal Welfare Act was brought in to level the playing field for animal cruelty penalties. That includes domestic pets, farmed animals and other wild animals, so that they all have the same sentence. Unfortunately, it has been only a six-month maximum, which has not acted as a deterrent as it was designed to do. Northern Ireland led the way in 2016 with a maximum five-year sentence for the worst cases. That also applies to causing unnecessary suffering to any animal. The equivalent under the England Wales and Animal Welfare Act is limited to protected animals, commonly defined as domesticated, under the control of man, or not living in a wild state.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (David Rutley)
I want to put on record our sincere thanks to the expert witnesses who took their time to present to us in the evidence sessions this morning. I think everybody benefited from that and we are all grateful to them. It is a pleasure to serve with you, Mr Bailey, in the chair once again.
Amendment 1 would oblige the court to consider whether the accused filmed themselves committing the offence or posted a video of themselves committing the offence online when establishing the seriousness of the offence. Subsection (1B) means that this consideration would be treated as an aggravating factor and would be stated as such in open court. This would be used by the court to determine the appropriate sentence and result in an upward adjustment of the sentence for those who conducted such filming activity. I am aware of and am horrified by the abhorrent actions of some people who film animal cruelty with the aim of sharing and uploading videos on social media. The hon. Member for Workington highlighted how terrible that was.
I think we all recognise that the hon. Member for Redcar movingly explained her concerns, fears and worries. In the best traditions of the House, she explained the issues in a non-partisan way. As she spoke about the need to introduce guidelines and how to approach this, it was interesting that everybody on both sides of the Committee said: “Good point”. That is very unusual in this place, so well done. One of the great things in this place is when we see somebody has a grip on an issue and brings people with them. I congratulate her for doing that.
There are many other great examples of Back-Bench support in the Committee, including the work done on the mighty Finn’s law in North East Hertfordshire. There is some really good work going on, and that should inspire people about what can be done in this place.
Sir Oliver Heald (North East Hertfordshire) (Con)
I also want to pay tribute to the campaigners for Finn’s law, including Sarah Dixon, who was the leader of the campaign in many ways, and who is with us today.
David Rutley
Of course—congratulations, and I thank her. It is such campaigning zeal that enables us to make the case to take this legislation through when there are competing demands. Full credit should go to our team of Committee members today; many of them have served in Committee on other animal welfare legislation. There is a commitment to get this legislation through Parliament, but we can do that because we have made the case collectively and there is common ground. I am thankful for all the campaigning work that has gone on to make it possible.
I believe that any cruelty caused to an animal should be met with a proportionate response. That is why we are here today to encourage the passage of the Bill. Aggravating factors are most often dealt with in the sentencing guidelines, as was highlighted and supported by the witnesses this morning, and not always in statute. The amendment tabled by the hon. Member for Redcar would create a statutory aggravating factor. Statutory aggravating factors are used only for the most heinous criminal offences, such as domestic violence or terrorism. For other offences, it is normal for other aggravating factors to be included in the sentencing guidelines, which the courts are required to follow when determining the appropriate sentence in a particular case.
There are sentencing guidelines for animal cruelty, drawn up by the independent Sentencing Council, and they were last reviewed and updated in April 2017, following a public consultation. Under those guidelines, the use of technology to publicise or promote cruelty is already considered an aggravating factor, as has been referred to. Officials from the Department for Environment, Food and Rural Affairs have been in contact with the Sentencing Council. As the Bill will change the maximum sentence available for animal cruelty, the sentencing guidelines for animal cruelty will be subject to review by the Sentencing Council, which will publicly consult on the updated guidelines.
My hon. Friend the Member for Cheltenham was, I think, concerned about the question of statutory guidance. Our view is that this behaviour will be one of the other aggravating factors. The good news is that it is already included in the Animal Welfare Act guidelines, so, as the hon. Member for Workington said, we hope that it will be more straightforward. The fact that DEFRA officials are speaking to the Sentencing Council gives us real cause for optimism.
The hon. Member for Plymouth, Sutton and Devonport made an interesting point about the online harms White Paper. Based on that suggestion, we will be meeting the Department for Digital, Culture, Media and Sport and talking closely with it about what we can do in that area. It is scary when we see what people—young or old—are watching now. They seem to get relative highs on really disgusting material, animal cruelty being one. That has to stop, and hopefully we can make some inroads on that.
The proposed aggravating factor of filming an offence is already taken into account by the courts when sentencing for certain relevant offences. For example, the sentencing guidelines on “Robbery—sentencing children and young people” includes the following other aggravating factor:
“filming of the offence…or circulating details/photos/videos etc of the offence on social media or within peer groups”.
That is for consideration by the court when sentencing the offender. I assure the hon. Member for Redcar that DEFRA will raise that issue and will continue to engage with the Sentencing Council, which I am sure takes this matter very seriously.
In addition to the guidelines on sentencing, existing legislation provides an offence that covers filming animal cruelty. Section 127(1) of the Communications Act 2003 creates a specific offence of sending grossly offensive, indecent, obscene or menacing messages over a public electronic communications network. It is a matter for the Crown Prosecution Service to decide which charges to bring, but it is possible that someone filming an act of animal cruelty could be charged with an offence under section 127(1). That would result in a maximum sentence of six months simply for the offence of posting abhorrent or offensive material online. Evidently, there are options to ensure that the offenders who film and upload or distribute footage of their animal cruelty are met with an appropriate response. When this Bill is passed, these pre-existing options could enable courts to impose a higher sentence. It is useful to see what legislation is out there in the round and also what guidelines are there.
Committing animal cruelty is repugnant and filming it to share with others is beyond comprehension. As mentioned, we will discuss this matter further with the Sentencing Council. When they review the guidelines, we will ensure that this point is raised during the public consultation. On that basis, I ask the hon. Lady whether she would be kind enough to consider withdrawing her amendment.
Anna Turley
I appreciate the Minister’s thoughtful and considered response, which was very helpful. I thank his civil servants for their work in responding to my amendment. I am pleased to hear that the sentencing guidelines will have a big role in deciding aggravating factors and it was interesting to hear that we tend only to put things on the statute books when they are major issues, such as terrorism. I was also particularly interested to hear about the fact that those responsible for animal cruelty films could already be prosecuted under the Communications Act 2003. As we move towards Royal Assent, in terms of the promotion of, and education and awareness about, the issues we have discussed in the Bill, I hope that that will be pushed further. I am particularly pleased to hear that as a consequence of the Bill the Sentencing Council has confirmed that it will have a public consultation and update the guidelines with reference to filming and sharing. I appreciate the Minister’s consideration and beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
David Rutley
Before I discuss clause 1, I want to comment on and welcome the widespread support that the Bill has received, across the House and beyond. It was clear on Second Reading that the Bill has strong backing across the House, which was unified in its view that there is no place for animal cruelty in this country and that we must deal with it in the strongest possible terms. I welcome the spirit in which our discussions today have taken place. I am sure that that is part of our collective view that the United Kingdom should continue to be a world leader on animal welfare.
The Government committed to increasing maximum sentences for animal cruelty offences in September 2017 and I am pleased to see hon. Members who have supported this measure here today. I know that some hon. Members will feel that we should have moved faster, but collectively we have moved quickly in recent weeks to see much animal welfare legislation move forward and I am grateful for that.
As was made clear on Second Reading, under the Animal Welfare Act 2006 the current maximum penalty for animal cruelty offences is six months imprisonment and/or an unlimited fine. This Bill amends the Animal Welfare Act to extend the maximum penalty available to five years imprisonment and/or an unlimited fine for the worst animal cruelty offences relating to animal welfare in England and Wales. We heard this morning just how important it is that this Bill reaches the statute book as soon as possible.
Clause 1 is the Bill’s main clause and outlines the mode of trial and maximum penalty for certain animal welfare offences. As it is proposed that the maximum custodial sentence is extended to five years, these offences will become triable either in the magistrates court or the Crown court, depending on the severity of the offence. Specifically, clause 1(2) changes the maximum custodial sentence for the most serious offences under the 2006 Act. These are: causing unnecessary suffering to a protected animal; carrying out a non-exempted mutilation; docking the tail of a dog, except where permitted; administering a poison to an animal; and involvement in an animal fight—a dog fight or something similar, as we talked about earlier today.
Under the Animal Welfare Act 2006, which this Bill amends, all protected animals are covered. In its legal definition, a protected animal is a vertebrate animal of a kind commonly domesticated in the British Isles. Animals not commonly domesticated, such as wildlife, are “protected animals”, but only to the extent that they are under the control of man or are not living in their wild state.
Sue Hayman
As I said before, we are pleased to support the Bill and the increase in sentences. It is good finally to see it here and I hope we can get it on the statute book shortly. As I said on Second Reading, we have no intention of voting against it, but would rather seek to improve it where we can through amendments such as that tabled by my hon. Friend the Member for Redcar.
As I mentioned, we are concerned about the scope of the Bill and its narrowness, because it applies only to the Animal Welfare Act 2006, and therefore does not apply to wild animals. I will come on to that in more detail when we reach new clause 2.
I will not say much, because it is important that the Bill moves forward as swiftly as possible. We welcome the fact that it will increase maximum sentences to five years and the fact that that brings England and Wales more into line with the rest of the UK. The Minister mentioned that Northern Ireland has moved on to five years. Scotland, as we know, has been consulting on doing the same. It is important we are not left behind in England and Wales.
As we have heard, public consultation was an important part in getting the general public and animal welfare organisations to support the work that the Government are doing. I know that Battersea Dogs and Cats Home, the Dogs Trust, the RSPCA and many others have worked with us and the Government to support the Bill and enable it to come forward. I know that a lot of people have worked very hard to get us to the place we are at now. I thank all those who have worked on this Bill.
The Environment, Food and Rural Affairs Committee’s 2016 report on animal welfare referred to the increasing disparity in sentencing powers on a range of offences relating to animals. That report also included the recommendation to increase the maximum sentence for cruelty offences against animals to five years.
Sir Oliver Heald
Does the hon. Lady agree with me and the evidence we heard this morning that one great advantage of increasing the sentence is that in the horrible cases where there is torture, where a service animal is attacked, or where a number of animals are killed or badly treated, it is possible to mark that if the maximum sentence is five years, so those aggravated features can be reflected in the sentence?
Sue Hayman
The right hon. and learned Gentleman makes an extremely important point. One thing that has been quite difficult when looking at the evidence is some of the extraordinary cruelty against animals of which people are capable. The work he did with other colleagues on Finn’s law was really important, because service animals put themselves in front of their police officers or whoever they are working with to protect them. It is important that that has now been recognised.
It is important that we are finally giving judges the tools they need to start handing out the kind of sentences that are required if we are to have not only a punishment that will act as a deterrent, but a punishment that is right for the crime. We do not have that at the moment. In conclusion, the Opposition will support the Bill, and I thank everyone for their work on it.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Extent, commencement and short title
Question proposed, That the clause stand part of the Bill.
David Rutley
Clause 2 provides the extent, commencement and short title of the Bill. Clause 2(1) provides for the Bill’s extension to England and Wales only. Animal welfare is a fully devolved matter, but in this case the Welsh Government have confirmed that the maximum penalty will apply in Wales. The Bill is drafted on that basis. The Welsh Government are preparing a legislative consent motion so that the Bill can be extended and applied in Wales, which is excellent news.
Clause 2(2) provides the date and commencement of the Bill. The Act will come into force two months after Royal Assent. The clause also ensures that the application of revised maximum penalties is not retrospective and is not applied to offences committed before the Bill comes into force. It specifies the short title of the Bill, that being the Animal Welfare (Sentencing) Act 2019.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
New Clause 2
Report on effects
‘(1) The Secretary of State must publish a report on the effects of the provisions of this Act.
(2) The report must include assessments of—
(a) trends in sentencing practice;
(b) the effects of this Act on animal welfare;
(c) the extent to which this Act has had a deterrent effect on animal welfare offences;
(d) the coherence and adequacy of animal welfare legislation in aggregate in the light of the operation of this Act.
(3) The assessment under subsection (2)(d) must include consideration of—
(a) the welfare of animals that are not “protected animals” under section 2 of the Animal Welfare Act 2006;
(b) sentencing for offences under—
(i) all sections of the Animal Welfare Act 2006;
(ii) the Wildlife and Countryside Act 1981;
(iii) the Deer Act 1991;
(iv) the Protection of Badgers Act 1992;
(v) the Wild Mammals (Protection) Act 1996; and
(vi) the Conservation of Habitats and Species Regulations 2017 (S.I.2017/1012).
(4) The report must be laid before Parliament within two years of this Act coming into force.’—(Sue Hayman.)
This new clause would require the Secretary of State to lay before Parliament, within two years of the Act coming into force, a report on the effectiveness of the Act, including specific assessments of its effect on animal welfare, the overall coherence of animal welfare legislation, and other matters.
Brought up, and read the First time.
Sue Hayman
I beg to move, That the clause be read a Second time.
New clause 2 would provide for an assessment of the effectiveness of the Act, and for a report to be laid before Parliament. I hope the Minister agrees that it is good practice for our legislation to be reviewed, and for Parliament to have the opportunity to consider the extent to which it is achieving its objectives, and indeed to consider whether any adjustments might be needed. Within that, we believe that there is a specific need to examine the level of penalties available to the courts for cruelty offences across animal welfare legislation as a whole.
The Bill improves the deterrence impact of penalties for cruelty under the Animal Welfare Act 2006, but introduces a two-tier system—maximum penalties for cruelty offences under the legislation listed in new clause 2 remain at six months. It is clear that offenders do not discriminate between wild and domestic animals in inflicting cruelty. The RSPCA has a shocking catalogue of offences, just a few of which I will mention: a wild rabbit hit with a log and stabbed with a pen; a sheep beaten to death with a gold club; a goldfish’s eye cut out; a squirrel set on fire; a cat chocked and suffocated; and two hens beaten to death. I find it extraordinary that anyone can behave like that.
How do we work out what maximum penalty should be available to the court in each of those cases? If a person kicks their pet rabbit, it should be clear that, under the Bill, the maximum penalty would be raised to five years, but what if the poor animal that has been kicked to death is a wild rabbit in the middle of a field? The nature of the offence is arguably identical, and most people would agree that the offender should face the same penalty, but would they? What about the case we heard about from the hon. Member for Southend West (Sir David Amess) on Second Reading, of a driver who put down chips in a road to attract wild birds so that he could then run them over? Should wild birds, squirrels or hedgehogs be regarded as under the control of man in a situation such as that, and would they come under this penalty? What about people putting out poisoned foods at a wild bird feeding station? What if wild chickens are taken and tortured? Is it different if chicks are taken from a hedgerow or from a garden nest box? These are genuine questions and I find the definitions confusing.
My hon. Friend the Member for Bristol East spoke on Second Reading about cruelty committed against game birds that are specifically reared for shooting before being released in the wild. Where does that sit within an offence of cruelty? What concerns me is that guilty offenders might well seek to persuade a court that a lesser sentence should be imposed if the victim could be classed as a wild animal.
We heard in evidence from Mr Schwarz that the two-tier approach could end in confusion for both the judiciary and prosecutors. We need to consider carefully whether the Bill’s good intentions to deter the worst acts of cruelty could unintentionally lead to offenders targeting more wild animals. The Opposition are pretty clear that all animals are equal and deserve to be treated with respect and kindness. As our animal welfare plan stated:
“Our vision is one where no animal is made to suffer unnecessary pain and degradation and where we continue to drive up standards and practice in line with the most recent advances and understanding.”
Our preference would be for the Bill to set a maximum sentence according to the level of cruelty in the offence, rather than whether the animal is domestic or wild, which I have discussed with the Minister. New clause 2 offers the option of looking into that and giving Parliament an opportunity to consider it once the Act has taken effect. As I have said, we do not want to delay the Bill—we want it on the statute book quickly, which is why we are asking for a review. I hope the Minister considers it and I look forward to his response.
Sandy Martin (Ipswich) (Lab)
It is a pleasure to serve under your chairmanship, Mr Bailey. I believe that the evidence we heard this morning from both the Royal Society for the Prevention of Cruelty to Animals and the lawyer and police officer made it fairly clear that there was confusion about which offences come under the Bill. Clearly, there are questions about whether an offence relates to a feral cat or a domestic cat, or a wild rabbit or a tame rabbit, but there are also questions about organised crime. We heard from the police officer about dog fighting, which would come under this Act. Serious and organised cases of cruelty can now be prosecuted and a sensible and serious sentence incurred, yet the equally serious and equally organised crime involved in hare coursing probably would not.
All sorts of issues need to be tested in the courts. Very often in this place we seek to tie all the knots, cross all the t’s and dot all the i’s, but it is not always effective. We need to test these issues in the courts, but if they are to be tested in the courts, we need to review the result in order to establish whether the Act is doing what we intended it to do.
We heard from Mike Schwarz that serious issues will be aired by members of the public as a result of the sentences that will be handed down if, as we suspect, the sentences for domestic and wild animals are suddenly, obviously and publicly very different. We have heard on several occasions from the Minister that the Bill needs to be passed as soon as possible. We could not agree with him more. In fact, we could not have agreed with him more if he had said that 18 months ago, when we could have passed it. There is no good reason why, if we accept proposed new clause 2, that would add a single minute to the length of time it takes for the Bill to pass into law.
I urge us to accept the amendment and ensure that, whatever the results in the courts, we review them swiftly and effectively with a view to ensuring that we get consistent sentencing for consistent levels of cruelty.
David Rutley
New clause 2(1) and (2) would create a statutory obligation for the Government to report to Parliament on the effectiveness of the Act within two years of it coming into force, including specific assessments of its effect on animal welfare and the overall coherence with animal welfare legislation, including sentencing under specified Acts relating to wildlife.
It is important to note that the Animal Welfare Act 2006 was subject to review by the Select Committee on Environment, Food and Rural Affairs in 2010 and informally through its domestic animals inquiry in 2016.
The 2010 assessment concluded that there was broad agreement that animal welfare had been improved as a result of the 2006 Act by bringing together diverse legislation and adding a preventative measure that allows action to be taken without animals suffering unnecessarily. The 2016 inquiry encouraged the Bill and the proposed increase in maximum penalties.
New clause 2(3)(a) would commit the Government to including an assessment of the welfare of animals that are not protected animals under section 2 of the Animal Welfare Act 2006. Subsection (3)(b) would commit the Government to look at sentencing for offences under various pieces of legislation pertaining to wildlife.
Wildlife legislation that protects animals in a wild state is a separate matter and, as we know, not in the scope of the Animal Welfare Act 2006. All animals that come under the control of man, whether domesticated or wildlife, will be subject to the maximum penalty. Indeed, there are separate pieces of legislation that focus specifically on wildlife, with appropriate sentences and penalties.
Relevant points are being made here and, of course, we want to respond to them. I do not think we know the general consensus but we need to move forward with the Bill. We do not want to let the perfect be the enemy of the good. We have heard that before but it certainly applies to the Bill. Notwithstanding that the courts will have to make some interpretation, as is always the case, I reinforce the fact that any act of serious cruelty against a wild animal would most likely, by its very nature, entail that animal being under the control of man, and so would be caught by the Animal Welfare Act 2006.
Some of the deeply upsetting cases we heard about this morning, such as putting an animal in a microwave—if one could ever consider somebody doing that—could be committed only if the animal were under control of man. Although I understand the concerns, and that there are lawyers in the room, I am sure that courts will be well able to identify the most serious acts.
Sir Oliver Heald
I do not know whether the Minister would agree with me on a point that may need further consideration. If an animal is under a person’s control, does that not give that person a duty towards that animal? In those circumstances, is it not part of the wrongdoing that, having control of an animal, a person abuses it?
David Rutley
As I said, we have distinguished lawyers in the room for a reason—they make important points such as that one, which only my right hon. and learned Friend could make with such eloquence. I completely agree that there is an added responsibility. It is a privilege to be able to look after animals and, when we do, we should expect higher standards of ourselves. There are laws that are relevant to other wild animals but, when these animals are in the control of man, a higher standard needs to be adhered to.
I do not really want to mention these cases, but I am trying to provide clarification and confidence to members of the Committee. We heard the example of a rabbit being kicked in a very serious way. Whether a rabbit is wild or not, rabbits are commonly domesticated, and that would be covered by the Bill. Similarly, if other animals were mistreated under the control of man, they would be covered. I understand that there are concerns, but I reassure members of the Committee that the courts will be in a better position, as a result of this legislation, to hold people to account and put the right sentences in place. They will be able to make judgments that will help domesticated animals and, in many cases, wild animals too—I will come to the point about wild animals more broadly in a second.
A review of wildlife legislation has already been conducted. At the request of the Department for Environment, Food and Rural Affairs, the Law Commission commenced in 2011 its wildlife law project to develop proposals for a modern, simpler and more flexible framework. The commission published its report and draft Bill in November 2015, and recommended that the existing pieces of wildlife legislation be replaced with a single statute.
Exit from the EU provides an opportunity to re-examine our regulatory framework and how it works so that it is fit for purpose to meet our national needs in the future and to fulfil our international obligations. As hon. Members may be aware, much of our wildlife law stems from EU directives. That is why EU exit would provide an opportunity to take that wider look. We will need to consider the implications of EU exit for our approach to wildlife policy before deciding whether and how to implement the Law Commission proposals.
In addition to the existing reviews of the Animal Welfare Act 2006, the Ministry of Justice regularly publishes criminal justice statistics. Under the 2006 Act, data on prosecutions, convictions and sentencing speak to the impact of higher penalties on animal welfare.
In summary, I completely understand the point made by the hon. Member for Workington, but the Bill focuses on the most heinous crimes involving animals, including wildlife, under the control of man. The penalties for wildlife crimes that focus on animals in their wild habitat are separate from this legislation. Welfare groups have long called for an increased maximum sentence for the serious crimes under the 2006 Act. It is important that we get this change of an increased maximum penalty on to the statute book as soon as possible and without amendment.
I would be happy to commit to meeting the hon. Lady in the very near future to discuss different maximum sentences for Animal Welfare Act offences and offences relating to the welfare of wildlife. In line with our normal, standard procedure, we will look at the impact of the Bill in three years’ time. On that basis, and with a commitment to hold an early meeting, I ask the hon. Lady to consider withdrawing her new clause. I hope she can support the passage of this important Bill at this stage without amendment.
Sue Hayman
I thank the Minister for his considered response. He will probably think that I am a bit odd, but I have a copy of the report and the proposed legislation from the Law Commission by my bed. [Hon. Members: “Hear, hear!”] Thank you.
I would very much appreciate a meeting to discuss how we take this matter further. Some of the Law Commission work is excellent, and it would be good to see how we move forward. On that basis, I am happy to beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Bill to be reported, without amendment.
Courts and Tribunals (Online Procedure) Bill [ Lords ]
Tuesday 23rd July 2019
(4 years, 9 months ago)
Public Bill CommitteesRead Full debate Courts and Tribunals (Online Procedure) Bill [HL] 2017-19 View all Courts and Tribunals (Online Procedure) Bill [HL] 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 23 July 2019 - (23 Jul 2019)
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Chair
Welcome, colleagues. Before we begin scrutiny, I have a few preliminary points to make. Please switch all your mobile phones and so on to silent. Tea and coffee are not allowed during sittings. If you had not already guessed, jackets may be removed, as we are going to have the hottest day of the decade.
First, we will consider the programme motion on the amendment paper. Then we will consider a motion to enable the reporting of written evidence for publication. In view of the limited time available, I hope we will take those matters without too much debate. We will then begin line-by-line consideration of the Bill.
The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped together for debate; amendments grouped together are generally on the same or a similar issue. Decisions on amendments do not take place in the order they are debated, but in the order they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause to which the amendment relates. I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following debates on the relevant amendments.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 23 July) meet—
(a) at 2.00 pm on Tuesday 23 July;
(b) at 11.30 am and 2.00 pm on Thursday 25 July;
(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 25 July. —(Paul Maynard.)
Ordered,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Paul Maynard.)
The Chair
Copies of written evidence that the Committee receives will be made available in the room.
We will start with amendment 1 to clause 1, with which it will be convenient to debate clause 1 stand part. For clarity, that means there will not be a separate debate on clause 1; it will be debated now along with the proposed amendment to it. Members who wish to discuss clause 1 should seek to catch my eye.
Clause 1
Rules for an online procedure in courts and tribunals
Yasmin Qureshi (Bolton South East) (Lab)
I beg to move amendment 1, in clause 1, page 2, line 9, at end insert—
‘(6A) A person’s choice to initiate, conduct, progress or participate in proceedings by electronic means, does not prevent them from then deciding at a subsequent stage to continue by non-electronic means.”
The amendment would allow persons who have started the specified kinds of proceedings by electronic means, to change to non-electronic means.
Yasmin Qureshi
It is a pleasure to serve under your chairmanship, Sir Gary.
We have tabled amendment 1 to allow people to continue to conduct proceedings on paper. While we accept the advent of digitalisation and that increased use of the technology available is helpful and appropriate for our court procedures, making matters easier and perhaps saving time, it is also important to ensure that people are aware that they can use conventional paper methods and procedures.
Members will be aware that many members of the public, in particular the older population —I do not mean this disrespectfully—are not very computer savvy. They may not have the internet at home, and they might be confused about the procedures to adopt, where to file things online and whether they have to get the internet installed at home. All those challenges arise, so they must be able at the beginning of proceedings and during the course of proceedings, if it becomes appropriate, to switch to the paper system. The amendment would deal with that issue.
The Parliamentary Under-Secretary of State for Justice (Paul Maynard)
It is a pleasure to serve under your chairmanship, Sir Gary. It is important to recognise, as we all do, that the eyes of the world and the nation are upon us in this room, as we are the most important political event of the day. I am sure we will try to live up to that level of scrutiny.
As we are considering the entirety of clause 1, I will make a few preliminary comments. The clause deals with the foundations of the new approach to the online procedure. It provides that there are to be online procedure rules that require specified civil, family or tribunal proceedings, including proceedings in employment tribunals, and that the employment tribunal should be subject to the online procedure. It allows those kinds of proceedings to be initiated, managed and resolved by electronic means. Rules may provide for all or any part of the procedure for conducting proceedings online, including starting and defending proceedings or participating in hearings. Different rules may be made for different proceedings and for circumstances in which rules are not to apply or cease to apply. This allows flexibility and proportionality in giving effect to all procedure rules and ensuring that the right types of proceedings are supported by the right types of rules.
The clause also permits rules to provide for specified proceedings to be taken in a different court or tribunal from the one that would normally take them, and for central proceedings that would normally be heard in different courts or tribunals to be taken together. To ensure that the online procedures rule committee works for the benefit of all users, the power to make these rules is to be exercised in so far as it ensures that the procedure is accessible and fair, the rules are simple and simply expressed, disputes are resolved quickly and efficiently, and the rules support the use of innovative measures on resolving disputes.
The requirement for clear, accessible, simple and intelligible rules will make it easier for ordinary court users to navigate the system and access justice. Although the rules have been designed to be of particular benefit for ordinary court users, we expect them to be equally helpful for IT technicians and legal practitioners to make overall sense of the underlying framework of the IT and online service. It also strengthens the emphasis on innovative methods of dispute resolution, which might include online tools that support parties in resolving their issues without having to resort to a formal court hearing. The Government believe that these innovative methods are likely to widen access to justice further, to a wider cohort of users than now.
The clause also requires that when the committee make the rules, it must have regard for
“the needs of those who require support in order to initiate, conduct, progress or participate in proceedings by electronic means”,
to ensure that the committee is always aware of people who are digitally disadvantaged. Clause 1 specifies that if the online procedure rules require someone to participate in proceedings by electronic means, the rules must also provide for them to participate by non-electronic means. That was an amendment that the Government added in the House of Lords, and it demonstrates our commitment to paper proceedings.
Clause 1 gives effect the schedule 1, which deals with practice directions. These powers are similar to those that are currently provided in the Civil Procedure Act 1997, the Courts Act 2003, the Tribunals, Courts and Enforcement Act 2007 and the Employment Appeal Tribunal (Amendment) Rules 1996. The powers will enable the Lord Chief Justice or his nominee, with the approval of the Lord Chancellor, to issue practice directions in civil and family proceedings to which online procedures apply.
Amendment 1, which stands in the name of the hon. Member for Bolton South East, is designed to to give users the ability to opt out of using online services at any time, and switch instead to a paper route. Our ambition is to develop online services that are so easy to navigate that, over time, digital channels will become the default choice for the majority of our users. Nevertheless, I absolutely agree that it is right to ensure that people can choose a paper option at different stages throughout proceedings, and vary that choice at different points where that is their preference. I must clarify that the Bill already provides for this—indeed, we amended the Bill in the other place to ensure that this is absolutely clear.
Subsection (6), inserted by the Government amendment in the other place, provides that
“Where Online Procedure Rules require a person to initiate, conduct, progress or participate in proceedings by electronic means”,
the rules
“must also provide that a person may instead choose to do so by non-electronic means.”
Litigants will not be tied to a particular channel. There is nothing in the Bill that requires a litigant who begins proceedings online to continue to do so throughout the entirety of their case. The Government are aware that some litigants might be less able or confident in using some parts of our digital services, so we will allow them to transact with us easily via a mix of paper and digital channels. To be clear, litigants will be able to choose to use paper or online options at different points during the same proceedings if they wish to do so, and Her Majesty’s Courts and Tribunals Service’s approach is built around providing and supporting that choice. The amendment is therefore unnecessary. It does not add anything to the Bill, so I urge her to withdraw it.
The Chair
Order. Mr Lloyd Russell-Moyle has caught my eye. It is usually preferable to speak before the Minister responds and then he can respond to your excellent points as well.
Lloyd Russell-Moyle
Thank you, Sir Gary. I am sorry for catching your eye a bit late.
The point of amendment 1 is to spell out in the text of the Bill that there is the ability to change pathways of submission during a proceeding. What the Minister has said is reassuring, but we are to have a new Government, probably with many new Ministers, in a few days’ time, and the Bill will last for many generations, so it is prudent to ensure that in 10 or 20 years’ time, when new online systems have superseded the online systems that the Minister talks about, it is very clear in the text of the Bill that people can still change. The amendment is friendly rather than hostile. It does not take anything away, so the Government could simply accept it rather than ask for it to be withdrawn.
Daniel Zeichner (Cambridge) (Lab)
I, too, apologise for rising at the wrong point, Sir Gary.
I support this friendly amendment. Last year when the Government considered the future of the magistrates court in my city of Cambridge, I visited the courts. A comment consistently made was that new technology was not always reliable. Is the Minister confident that any new system will be robust? In the absence of such confidence, having an alternative is reassuring for many people.
Paul Maynard
I thank the hon. Member for Brighton, Kemptown for his observation about the new Government. I hope the Bill is not the first to fall victim to a catastrophic U-turn, because that would be a great disappointment to us all.
On the point about the reliability of technology, the Bill is an insurance policy against any unreliability, not because of any particular system being inherently unreliable, but because occasionally someone might not plug something in—it could be as simple as that. I recognise that it is important to have alternative means available.
We could put many provision in the Bill that do not necessarily need to be in the Bill. We cannot see where technology will take us in 10 to 20 years’ time. Who knows? Who foresaw the internet in the early ’80s, for example? The point is that whenever anyone engages with the online systems, the opportunity to use non-electronic means is a clearly advertised joined-up process. It does not need to be in the Bill. Indeed, such a provision might be outdated in a few years’ time.
Also, and more important, the Bill sets up an online procedure rules committee. I do not want to fetter the decision-making powers of that committee on the correct online procedures for every type of case that it deals with. It will have to deal with this question on a case-by-case basis. As much as I love Christmas trees, turning every Government Bill into a Christmas tree on which we hang our own individual baubles is equivalent to erecting a gravestone over our political efforts, so I once again ask that the amendment be withdrawn.
Yasmin Qureshi
No one on the Opposition Benches is asking for their own baubles on a Christmas tree. The amendment is sensible and friendly. We want it written into the Bill so that the provision is crystal clear. I therefore want to press the amendment to a vote.
Question put, That the amendment be made.
Yasmin Qureshi
I beg to move amendment 2, in clause 4, page 4, line 13, after “proportionate” insert
“including, but not limited to, a free help-line”.
This amendment would require the establishment of a free help-line to provide support to digitally excluded people.
Yasmin Qureshi
Essentially, amendment 2 is designed to protect people who are normally digitally excluded. The clause refers to a “proportionate” level of support, which we believe should include, but not be limited to, a free helpline. As I said earlier, there are people who do not have internet facilities in their home, have no access to the internet or cannot use computers—people have different challenges.
The helpline should be free because the very same people who are excluded from the internet also tend to be those who are financially in the worst position. Quite often, the helpline numbers for Government and other bodies or public officials may charge 3p, 4p, 5p or 10p a minute, which amounts to a lot of money for someone on a very limited income who has to spend half an hour or 40 minutes on the telephone. We therefore ask for a free telephone helpline for those people, so that they can make calls and get the information they need. We hope it will assist them, but at least it will not cost them.
I do not know whether other hon. Members have the same experience, but in my constituency there are many people who do not have a contract phone. They are often on pay-as-you-go, because it costs the least, and they try as far as possible not to use up too much credit. Not everybody has a contract phone that gets them free calls to certain numbers, and even for people who have one, many numbers are not free. That is why we are asking for a free helpline; it would probably not cost the Ministry of Justice that much more, but it would ensure that people who are digitally excluded can access free legal advice and assistance without having to pay either for the billing costs or for having someone help them.
Lloyd Russell-Moyle
We’ve all experienced it haven’t we? We have all phoned up a Government helpline, waiting hours on hold while listening to crummy music. When we see our phone bill afterwards, it is in the tens, hundreds, or—for one of my constituents who has used immigration helplines—thousands of pounds, when all we are trying to do is access Government services. We have had numerous scandals in the past, including universal credit helplines charging extortionate amounts.
I am sure that, in a moment, the Minister will say that he does not want to tie the hands of the new-spangled committee that he is setting up, the truth is that committees and processes have time and again failed the poorest in this country. Those committees have failed them because they are populated by people who think it is not a problem to spend a few pounds on a telephone line, or who have an all-inclusive package. They very often do not understand the day-to-day concerns of our poorest constituents. I am not making a presumption about who will make up the committee, but looking at what has happened in the past with numerous telephone helplines.
An amendment that includes a provision for free access to telephone help and support, but is not limited to that—one that also ensures a telephone cannot be the only method of non-digital engagement—is important. It is important because, in the past, we have seen similar processes fail and our constituents charged extortionately. I therefore support the amendment.
Ian C. Lucas (Wrexham) (Lab)
I support my hon. Friend. As a former practising solicitor, I have always thought it is very important to get things in writing—I often give that piece of legal advice.
The development of phone lines and helplines, as described by my hon. Friend, is unhelpful. There are no obligations in the clause on the nature of the support given to those who use the system. That leads to what is out of order in the broader support system within the legal aid structure, but we need to be much more specific about the range and type of support that will be given to people. They have real needs, and are just as entitled to use the justice system as are people of very considerable means.
Paul Maynard
I am rather disappointed that the hon. Member for Brighton, Kemptown regards Wolfgang Amadeus Mozart or Johann Sebastian Bach as “crummy”; far from it.
The hon. Gentleman is slightly concerned about fettering the committee.
Ian C. Lucas
My hon. Friend is right. Even Wolfgang Amadeus Mozart sounds crummy down a phone line.
Paul Maynard
Wolfgang Amadeus Mozart had a hearing problem. Perhaps the hon. Member for Brighton, Kemptown needed an induction loop to avail himself fully of the facility.
Paul Maynard
Thank you, Sir Gary.
The hon. Member for Brighton, Kemptown made a more important point in his concern that we should not seek to fetter the committee. It might help if we take a step back and think about what the Bill seeks, which to establish a committee that, in and of itself, will make a range of rules around how the court functions, the processes within the court and what the judge can and cannot do in a wide range of circumstances, which neither the hon. Gentleman nor I, nor any other member of the Committee, can predict.
Not every single legal process within a courtroom, or the entire judicial system, can be predicted. It is not sensible to try to cram as much as possible into the Bill so as to pre-empt the ability of the rule committee to decide what is appropriate for the various range of online procedures that we will roll out in years to come. It is not sensible to try to capture in the Bill the technology of 2019 in the hope that that lasts above and beyond wherever technology might take us.
I agree with the spirit of the amendment, but I believe we made changes to the Bill in the other place that make the amendment unnecessary. I will try to provide assurance—it may be a vain hope, but let me try. Her Majesty’s Courts & Tribunals Service has committed to providing a comprehensive package of assisted digital support through a number of different means, which includes telephone support. We have a network of trained call handlers dealing with telephone queries and helping to signpost people to relevant information. Those handlers assist with the completion of online forms, answer general queries and identify circumstances in which a person might benefit from more focused face-to-face support.
The use of webchat is also being trialled for those purposes, and we are testing screen-sharing software so that support staff can see the screen of callers to help point and highlight, and provide support in turn. Like all our new services, assisted digital support has been piloted, tested and improved on the basis of continuous user feedback, to ensure that it is targeted at those who need it most.
Let me also clarify that clause 4 is a legally binding duty on the Lord Chancellor to arrange for the provision of appropriate and proportionate support to those litigants who may be digitally excluded. As I have explained, telephone support is already a key component of meeting that obligation. HMCTS already provides a telephone helpline for litigants who require help, and there are no plans to remove that service.
Further, the hon. Lady clarified that, from her perspective, any helpline must be free for use. I agree that that is important, and can confirm that HMCTS does not charge for the telephone service, although admittedly some mobile networks might levy a call charge. Consequently, we are working on approaches to minimise those costs where they are an issue. We already call people back when requested and are exploring the introduction of an automated message to advise people as early as possible in their call of that option.
It is my view that the combination of support that the Government are providing to litigants with the legal duty in clause 4 means that the amendment is unnecessary, and I urge its withdrawal.
Andy Slaughter (Hammersmith) (Lab)
What the Minister says, along with the text of the clause, indicates a potential problem. This is a major change and problems are anticipated. The Minister has put something on the record today, but where are the Government going to set down, if not in the Bill, the package of measures being introduced to ensure that people can have comfort that their needs will be addressed? Will that be in regulations? Will there be a code of conduct? Will it simply be in a letter sent to us by the Minister? I am not sure that what the Minister has said so far is sufficient.
Paul Maynard
I am always nervous when telling the hon. Gentleman, who is an experienced lawyer, how the courts work. He has spent far more time in courts than I have in my life. If I may rehearse my earlier point, clause 4 is a legally binding duty on the Lord Chancellor to arrange for the provision of appropriate and proportionate support to those litigants who may be digitally excluded.
In my view, that legally binding duty will encompass telephone supportbut it will be for the procedure rule committee to determine in each and every example where it has to formulate rules for online procedures whether that should include at least telephone support or over and above that. It will be within the ambit of the Committee to stipulate whether it wishes to do so, and whether a wider range of means of support may be appropriate for the technology of the time when it seeks to make those rules.
Yasmin Qureshi
I am not trying to be difficult, but we will push the amendment to the vote for two reasons. First, clause 4 states:
“The Lord Chancellor must arrange for the provision of such support as the Lord Chancellor considers to be appropriate and proportionate, for the purpose of assisting persons to initiate…”
Do we know what “appropriate and proportionate” mean? Although the rule committee presumably will decide what is appropriate and proportionate, it is important for it to know that our amendment adds the consideration of a free helpline. The support is not limited to that—other things could be included. It is important to include free phone lines so that the rule committee is assured that it can look at all possible options, including free telephonic support at the point of use.
Question put, That the amendment be made.
Yasmin Qureshi
I beg to move amendment 3, in clause 5, page 4, line 29, leave out paragraph (c) and insert—
“(c) one of each of the following—
(i) a barrister in England and Wales, and
(ii) a solicitor of the Senior Courts of England and Wales, and
(iii) a legal executive appointed to the Committee by the Lords Chancellor in concurrence with the Lord Chief Justice;
(iv) a magistrate of England and Wales appointed by the Lord Chief Justice; and”
This amendment would require that the Online procedure rule committee has representatives from different parts of the legal professions.
The Chair
With this it will be convenient to discuss the following:
Amendment 4, in clause 5, page 4, line 31, leave out “two” and insert “three”
Amendment 5, in clause 5, page 4, line 37, at end insert “and;
(iii) one of whom must have experience representing the views of people who are digitally excluded.”
This amendment is consequential on the earlier amendment. The amendment would require a members of the Online procedure rule committee to have experience representing the views of people who are digitally excluded.
Yasmin Qureshi
We believe that the procedure rule committee should be larger than currently proposed and that members should be a member of the Bar, a solicitor, a legal executive or magistrate. The reasons for that are twofold. First, it is surprising that the Government envisage the Online procedure rule committee as having a very small number of members, yet the Family procedure rule committee and the Civil procedure rule committee have somewhere in the range of 11 to 16 members. The Online procedure rule committee seems to have by my calculation about five members. We believe that is too small a number to be able to deal with a committee that is going to be pretty revolutionary in what it is designing. It would be wrong to exclude a legal executive, solicitor, barrister or magistrate from that, because the idea behind the committee is to deal with the smaller cases from the civil and criminal courts, and it is legal executives and solicitors who are often involved in the preparation of those cases.
Andy Slaughter
It is a pleasure to serve under your chairmanship, Sir Gary. Two weeks ago, the Select Committee on Justice heard evidence from the Master of the Rolls, the Lord Chief Justice and the Senior President of Tribunals on the matter of online courts. They were very persuasive, although it would be a sad state of affairs if they were not—we would all be in a difficult position. Despite that, Committee members on all sides were left with some residual feeling that perhaps this eminent and learned Government may not have had much recent experience in, say, Hendon magistrates court or the Clerkenwell county court—I use those as examples because they are where my constituents have to travel since the wholesale court closures programme began—so they may not have experience of the difficulty of day-to-day business in the way that some members of this Committee will have as a result of dealing with their constituents’ legal problems.
How do we address that? The Minister’s earlier comments show that he is open to addressing the real concerns of people who are digitally excluded or who have practical difficulties even when dealing with relatively straightforward legal matters. One way to address that is to put matters in the Bill, as earlier amendments seek to do, but that appears to be a route that the Government do not wish to go down. The other way is to ensure that the committee has a range of experience and abilities, and includes those who have dealt with litigants’ practical problems on a daily basis, such as barristers, solicitors and legal executives. That is a sound and sensible way of dealing with this.
No one wishes to make committees too large, but it has been pointed out in briefings we have had from representatives of legal bodies that the Civil procedure rule committee has 16 members, including nine judges. This committee, despite a slight increase in size, is still much smaller than that, so the amendment does not seem unreasonable. We have had briefings about the Bill from the Law Society, the Bar Council and the Magistrates Association, who clearly know what they are talking about. It would be helpful if each of those bodies, or someone who represents those branches of the profession, were included. The same can be said of certain organisations, since we have had representations from Mind that people with disabilities are far more likely to be digitally excluded. Even among the general population, the estimate is around 18%. Those are not negligible figures.
I am not a luddite; I welcome matters being dealt with online where possible, and I was at least partially persuaded by the evidence that the Justice Committee heard that there may be more opportunities to litigate—that must be a good thing—because of the ease with which those who can use online systems can put matters forward. I am told there will be an effort to make forms simpler, to deal with those issues. That is all well and good, but a significant part of the population will find it difficult. It is right that their interests are protected and heard in the committee on an ongoing basis as it makes decisions. These amendments are modest and reasonable to achieve that aim.
Ian C. Lucas
I want to make one brief point: the jobs of barristers, solicitors, legal executives and magistrates are all very different. We need input on the effect on practitioners to be reflected in a committee that makes decisions that affect them all. We need to recognise the different roles in the committee that sets things up.
Paul Maynard
The hon. Member for Bolton South East points out that her amendment is common sense. When someone tells me that, it normally means that I should subject it to triple scrutiny. My antennae start to twitch at that concept.
The hon. Lady also said that she wanted a diverse committee. That probably means having slightly more than 10 people on it, which could well be a challenge too. The point made by the hon. Members for Hammersmith and for Wrexham was totally fair, and I hope to explain how the widest possible range of people, with experience germane to the issues that the committee will consider, can play the role in the committee that they seek.
The Government support the need for a small, focused and agile committee to make new court rules that are easy to understand and tailored for ordinary users. The committee will initially have six members, including a representative from the legal profession and members from the judiciary, IT and the lay advice sector. I believe that that set-up will allow for the creation of simple, effective rules that support all users throughout their journey.
It is not just the Government who have decided that that is the appropriate number but the judiciary. However, it is not set in stone. We recognise that sometimes a variety of expertise may be needed, so we expect that over time the Lord Chancellor will wish to make use of clause 7 to change the composition of the membership. The committee will need to draw on expertise from across disciplines and jurisdictional boundaries, reflecting the type of proceedings that are being considered at any moment in time.
We believe that that approach will allow us to ensure that rules are always made by those most suited to the task, without hampering the committee’s efficiency. As the first online procedure that the committee will consider will be online civil claims below £25,000, it seems sensible to begin with a committee best suited to developing procedures relative to that particular type of case. Furthermore, it should be noted that clause 8(1) requires the committee to
“consult such persons as they consider appropriate”.
That is another route to ensure that the committee will have access to the relevant knowledge and expertise needed.
Adopting amendment 3 would create an imbalance in the number of members who could be appointed by the Lord Chancellor in comparison with the number that could be appointed by the Lord Chief Justice. That is something that Members of the other place, and the previous Lord Chief Justices in particular, specifically did not want to happen. I therefore urge the hon. Lady to withdraw the amendment.
Amendments 4 and 5 propose adding a member to the committee to represent the views of people who are digitally excluded. I have heard the many representations made, and I agree that we must ensure that proper consideration is given to the needs of those who require support to access digital services. As colleagues will be aware, we amended the Bill in the other place to ensure that all members of the committee always consider the needs of those who struggle to engage digitally.
I fully agree that digital support for those who want to access online services but struggle to do so for a variety of reasons is paramount if the system is to be effective. The committee already includes someone with IT expertise and someone from the lay advice sector with knowledge of user-specific experience. Considering that, alongside the fact that all members must now consider the needs of digitally excluded people, I do not consider that the amendments are required.
It is also important to recall once again that clause 7 provides a power to vary the membership of the committee, so if in the future it was felt appropriate to reflect a particular expertise permanently on the committee, that can be provided for. Under clause 8, the committee must also consult those it considers appropriate, so can readily avail itself of any expertise needed. I therefore urge the hon. Lady not to press amendments 4 and 5, nor amendment 3.
Yasmin Qureshi
We want the amendments to be put to a vote because we want to make it clear to the Government that these issues are important, and not only to us; they are fundamental to a proper Online procedure rule committee. Although the Minister says that the committee may do this and that, that is all open, and up in the air. We want concrete specifics, and for that to be written into the text of the Bill that such people must be part of the committee. Otherwise, the committee could say, “Well, we don’t need so and so. We don’t need such and such.” Alternatively, they might say, “If the Government wanted us to consult other people, or call on other people to become members of the committee, they would have put it in the legislation.” Because it is not in the legislation, there is no reason why they should be looking at other people. We say that the experience that legal executives, magistrates, solicitors, barristers and digitally excluded persons have is crucial to the committee, in being able to come up with a good set of rules. That is why it important to us to put these amendments to a vote.
Question put, That the amendment be made.
Yasmin Qureshi
I beg to move amendment 6, in clause 7, page 7, line 35, leave out “negative” and insert “affirmative”.
This amendment provides that regulations made under Clause 7 which allow changes to certain requirements relating to the Committee are subject to the affirmative resolution procedure.
The Chair
With this it will be convenient to discuss amendment 7, in clause 8, page 8, line 18, at end insert—
“and subject to the affirmative resolution procedure.”
This amendment provides that rules made by the Committee are contained in statutory instruments subject to the affirmative resolution procedure.
Yasmin Qureshi
We think the Government are being a bit naughty in not allowing Parliament an oversight—[Interruption.] My hon. Friend the Member for Warwick and Leamington expresses surprise. Clause 7 states at the end:
“Regulations under this section are subject to negative resolution procedure.”
Members of the Committee know what that implies. It basically means that it does not come to Parliament, does not get a full discussion, does not get a full hearing, and goes through the on the nod procedurally. When the power is given to change things relating to the committee, the legislature must make a decision—at the end of the day, Parliament is supreme. We accept that a number of different people will be consulted. We have asked for a small amendment to the effect that we have an affirmative resolution procedure rather than a negative resolution procedure.
All parliamentarians should push for that. We should show that we have a complete say. We accept that clause 7 refers to the fact that a number of different people will be spoken to, that discussions will be held and that decisions will be made but, at the end of the day, Parliament is supreme and therefore we ask that, whatever changes are made, and whatever changes are made by the Lord Chancellor under clause 7, they should be subject to an affirmative resolution procedure and not a negative one.
Paul Maynard
Amendment 6 seeks to change the negative procedure to the affirmative procedure whenever the Lord Chancellor wants to make a change to the committee’s membership. As I have explained, we envisage that the new committee will be agile, focused and flexible—I fear that those words will be chiselled on my gravestone.
Over time, as the scope of the online procedure widens, the Lord Chancellor may wish to make changes both to the number and to the expertise of committee members. The amendment would have the effect of hampering the committee’s ability to respond quickly and effectively to new situations. If the committee needed to draft new rules in a new area, it may decide that additional expertise is required, and may need new members to help to form a considered view. The amendment would mean that a debate in both Houses of Parliament would need to take place before an additional person could become a member of that committee. That would be an inappropriate use of parliamentary time, and is counter to our aim of ensuring that the online procedure rule committee can always access the expertise it needs quickly and efficiently.
Requiring changes to membership of the online procedure rule committee by way of an affirmative procedure would also be inconsistent with provisions for amending the membership of the civil, family and tribunal procedure rule committees. I urge the hon. Lady to withdraw amendment 6 because of that.
Amendment 7 seeks to change the negative procedure to the affirmative procedure when the committee makes court or tribunal rules. In the other place, a number of concerns were raised by noble Lords about the constitutional implications of the Bill. I take this opportunity to assure hon. Members that the Bill has been drafted precisely to ensure that the existing constitutional balance is protected.
The Bill mirrors the existing rule-making powers in legislation for the civil, family and tribunal procedure rule committees, which means that the process for making rules follows the traditional and usual method, in which the committee holds regular meetings and consults appropriate persons before making rule changes. Once drafted and signed by the committee, the rules are then allowed by the Lord Chancellor. Finally, the Lord Chancellor lays a statutory instrument in Parliament subject to the negative resolution procedure. It is clear that, if rules are drafted and agreed by the committee as well as by the Lord Chancellor, we do not need to have two further debates.
If rules laid before Parliament under the powers were subject to the affirmative resolution procedure, it would not only place the new committee out of step with existing procedure committees, but significantly reduce the flexibility of the committee and hamper its ability to support in a timely fashion new online services as they quickly adapt and improve. In addition, minor changes to the rules are made regularly throughout the year, so requiring a debate in both Houses of Parliament every time a change is made would be time-consuming and disproportionate. I consider that the negative procedure strikes the right balance between ensuring sufficient parliamentary scrutiny and allowing the new committee to operate effectively. I urge the hon. Lady to withdraw amendment 6 and not to press amendment 7 to a Division.
Yasmin Qureshi
We will press the two amendments to a Division. Parliament spending time looking at procedures does not waste time or clog up the parliamentary timetable. In fact, the parliamentary timetable is quiet, so we have enough time to deal with a few more regulations. I am not sure the Minister’s argument is the best one. We believe that Parliament should be able to see what is happening and therefore should be able to subject such regulations to the affirmative resolution procedure.
Question put, That the amendment be made.
Paul Maynard
I beg to move amendment 9, in clause 9, page 8, line 32, leave out subsection (4)
Subsection (4) requires the appropriate Minister to obtain the concurrence of the Lord Chief Justice before giving notice to Online Procedure Rule Committee requiring it to make rules.
The Chair
With this it will be convenient to discuss the following:
Amendment 8, in clause 9, page 8, line 33, at end insert—
“(4A) The Committee may decline, with written notice, the appropriate Minister’s request to create Online Procedure Rules to achieve a purpose specified if deemed inappropriate or unnecessary by the Committee.”
This amendment would allow the Online Procedure Committee to decline a Minister’s request to create Online Procedure Rules.
Government amendments 10 to 12.
Paul Maynard
It is a pleasure to go first for a change. On Third Reading, the other place voted to amend clauses 9 and 10 so that the Lord Chancellor and the Secretary of State for Business, Energy and Industrial Strategy must obtain the concurrence of the Lord Chief Justice when the Lord Chancellor or the BEIS Secretary gives notice requiring the committee to make rules to achieve a specified purpose, or the Lord Chancellor makes consequential amendments to existing legislation to ensure that the online procedure rules operate properly. Previously, the Lord Chancellor could use the powers without the need to obtain agreement from the Lord Chief Justice. The powers originally reflected the legislative procedures in place for the existing rule committees, which have worked well for many years, and which I believe should be retained.
The amendments in the other place have also altered the constitutional position. I do not consider it acceptable to use the Bill as a vehicle for significant constitutional reform. I also strongly believe that the amendments made to clause 9 in the other place fetter the Lord Chancellor’s power to give effect to Government policy through the online procedure rules. The clause now requires the Lord Chief Justice to take a decision on the implementation of that policy, which contradicts the traditional role of the independent judiciary and the concordat: a long-standing agreement between the judiciary and the Executive that specifically refers to the Lord Chancellor’s power to require committees to make rules to achieve a specified purpose.
The concordat also refers to the power to amend, repeal or revoke any enactments governing practice and procedure to facilitate the making of rules considered necessary or desirable following consultation with the Lord Chief Justice, as was originally provided for in clause 10. It is important that the Bill reflects the position in the concordat. The Lord Chancellor is directly accountable to Parliament for any rules that are made, so it is right that the responsibility lies with him alone. Therefore, with amendments 9 to 12, the Government seek to overturn the amendments made in the other place and to revert to the original wording. When these amendments are seen alongside Government amendments tabled in the other place, I hope Members will agree that there are sufficient safeguards in the Bill to allay concerns.
We amended the Bill in the other place so that before laying regulations to bring new types of proceedings online, the concurrence of the Lord Chief Justice and the senior president of tribunals is required. That is in addition to the requirement already in the Bill of an affirmative vote in each House agreeing to any such regulations. The regulations set out the framework in which the rules will operate, and the Lord Chief Justice must agree to that framework. The Lord Chancellor cannot direct the rule committee to make rules outside the framework that the Lord Chief Justice has agreed to, so the safeguards in clauses 2 and 3 provide the requisite assurances.
Furthermore, the power under clause 10 can be used only for changes that are consequential on the online rules, or that are necessary or desirable to facilitate online rules. We therefore consider that there are sufficient safeguards to ensure the appropriate use of the powers, and there is no need to provide for concurrence with the Lord Chief Justice and senior president of the tribunals in clauses 9 and 10 as well. We have actively engaged with the peers who had concerns and we will continue to discuss this part of the Bill with them ahead of its returning to the other place, where I am hopeful of achieving agreement to the changes.
Amendment 8, tabled by the hon. Member for Bolton South East, seeks to allow the committee to decline a ministerial direction to make rules on a specified topic. It is my position to ensure that lawful government policy can be given effect to and that the relevant Minister should be able to direct the Committee to make rules. The rules might be required to ensure that the online procedure is operable, and so might need to be made urgently, without additional procedure. Concern was raised about the clause on Second Reading, and I hope to be able to assure hon. Members that it is not a power grab by the Executive. The power already applies to existing rule committees and to other procedural rules not subject to the Bill.
Clause 9 reflects similar provisions agreed between the then Lord Chancellor and Lord Chief Justice under the concordat of 2004 and given effect in the Constitutional Reform Act 2005. In practice, the power is not frequently used—indeed, there is just one example of its having been used in the existing civil procedure rule committee. Nevertheless, it is an important power and reflects the established constitutional arrangement. The amendment could cause a problematic constitutional situation whereby a rule committee could refuse to draft rules following the written request of a Minister who sought to implement a specific policy. There would be democratic concerns if a committee was able to refuse to prepare rules on a policy that the Government had been elected to deliver. Such a situation would risk embroiling the judicial members of the committee in a political debate. We should all seek to avoid that.
The proposed amendment would also lead to a situation in which the new committee operates differently from other committees that deal with civil, family and tribunal proceedings. It would diminish the power of the appropriate Minister to respond rapidly to changing circumstances, and would effectively give the new committee a power of veto to make rules, which could lead to delays for users who are required to engage with the justice system or for HMCTS in delivering the reforms. As the Minister is the one who is answerable to Parliament, ultimate decisions on policy making should be in their hands, not in the hands of the committee. I urge the hon. Lady not to press amendment 8, and I commend amendments 9 to 12 to the Committee.
Yasmin Qureshi
We think amendment 8 is important to ensure that there is no control by the Executive. If it is asked by the Minister to change the rules, the committee that has been charged with the task of preparing the procedures should be able to decline the request. That is important because it ensures that the committee is independent of the Executive, the Lord Chancellor and the Ministry of Justice. The committee should be free to do as it wishes. The Opposition therefore believe that the amendment is an important safeguard for the OPRC to be able to determine the rules as it wishes. It will give written notice to the appropriate Ministers, and I am sure it will explain its rationale. We believe that it should ultimately be a procedure committee’s decision whether to change a procedure because of a request from a Minister; the Minister should not be able to take control of that. It is a power grab by the Executive, and we have to avoid that as far as possible.
Daniel Zeichner
I am one of the few people in the room who does not have a legal background. I have an IT background, and I used to spend a lot of my time trying to explain to people that IT cannot always do the magical things that they think it can. One of the flaws in this discussion is that there is nothing about the digital infrastructure that underpins the Bill. The proposed amendment is actually rather sensible, given that the only IT expertise in this process seems to sit with the OPRC. I would like reassurance from the Minister that some thought has been given to the processes that will underpin the Bill. Has he considered whether it would be sensible in some cases for the Committee to say, “Actually, this is not going to work.”?
Andy Slaughter
I strongly disagree with Government amendment 9. It is very common practice for there to be dual control—the Lord Chancellor and the Lord Chief Justice—in relation to a variety of matters. It seems sensible and is an important safeguard. Nowhere should that be more self-evident than when one is dealing with the practical operations of the courts and ensuring, as the Bill does, that new systems coming into operation have that practical guidance. Having perhaps accepted in principle the arguments that were very well made in the other place, particularly by Lord Judge, I cannot see that the Government now wish to weaken that by simply having consultation rather than concurrence. As the Minister often says to our Front Benchers, I would urge him to think about this again and see what he is gaining or has to be worried about in these provisions. It seems an unnecessary bit of control-freakery by the Government.
Paul Maynard
The hon. Member for Hammersmith makes a valiant effort to ask why we should retain these clauses. For all the reasons I have set out, I beg to differ that this is not the place to attempt constitutional innovation. That is not how the other procedure committees function either.
The hon. Member for Cambridge makes a perfectly valid point, but this is not the place to achieve his objective. HMCTS, being in charge of a £1 billion court reform programme, is subject not just to the scrutiny of the Justice Committee, on which the hon. Member for Hammersmith sits, but that of the Public Accounts Committee and mine as Minister.
There are vast reams of evaluation, picking up what is and is not working. There are also vast reams on how to evaluate, to establish what is and is not working. There is no lack of scrutiny. The online procedure rule committee has had to look at what rules should govern the operation of the IT, but HMCTS has the ultimate responsibility of examining whether a particular online tool functions.
Question put, That the amendment be made.
Paul Maynard
I beg to move amendment 13, in clause 15, page 12, line 11, leave out subsection (7).
This amendment removes the words inserted by the Lords to avoid questions of privilege.
Very briefly, the amendment removes the words added in the Lords that relate to a money resolution, in order to avoid questions of privilege.
Amendment 13 agreed to.
Clause 15, as amended, ordered to stand part of the Bill.
Schedules 1 and 2 agreed to.
Paul Maynard
On a point of order, Sir Gary. I will be as brief as I can, because I know that colleagues wish to yodel and ululate at the Queen Elizabeth II Centre imminently. May I thank you, Sir Gary, for chairing the Committee, and the officials who have got us through it so speedily?
I also thank my Bill team, who successfully worked through the weekend, delivering me acres of notes; my Parliamentary Private Secretary, my hon. Friend the Member for North Devon, for delivering one note that proved that it was worth his turning up as a member of the Committee; and my Whip, my hon. Friend the Member for Boston and Skegness, who guided me through every step of the way. I also thank all Members who made their individual contributions—even those who do not like Mozart and Bach.
Yasmin Qureshi
Further to that point of order, Sir Gary. I echo the Minister’s sentiments. I thank you, Sir Gary, for your chairmanship, and those in the Public Bill Office for all their help in tabling our amendments, and assisting us in preparation. I thank all Members who attended the Committee. Specifically, I thank Opposition Members who helpfully supported me and intervened at the right junctures. I welcome their support in considering the Bill. We now await the next part of proceedings.
Bill, as amended, to be reported.