Draft Northern Ireland Act 1998 (Section 75 - Designation of Public Authority) Order 2020
(3 years, 10 months ago)
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The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
I beg to move,
That the Committee has considered the draft Northern Ireland Act 1998 (Section 75 – Designation of Public Authority) Order 2020.
It is a pleasure to serve under your chairmanship, Mr Stringer. The purpose of the order is to ensure that the Independent Monitoring Authority for the Citizens’ Rights Agreements, which was established under the European Union (Withdrawal Agreement) Act 2020, is covered by the statutory duties on a public authority set out in section 75 of the Northern Ireland Act 1998. Let me deal with that in stages.
For those not familiar with the IMA, I point out that article 159 of the EU-UK withdrawal agreement and article 64 of the EEA EFTA separation agreement required the United Kingdom to establish a new independent authority to monitor the UK’s application and implementation of the provisions in those agreements relating to the rights of citizens living in the UK and Gibraltar after the transition period. In plain English, that was to ensure that their rights were properly taken account of. The IMA was duly established under the 2020 Act on 31 January this year. The IMA is operationally independent of Government and sponsored by the Ministry of Justice. That the IMA will be accountable to Parliament through the Ministry of Justice reflects its role in supporting the principles of the rule of law and access to justice.
The Government recognise the enormous contribution that EU and European economic area and European Free Trade Association citizens living here make to the UK, and that is exactly why we have given an unequivocal guarantee to those citizens by protecting their rights in British law, now that we have left the EU, through the withdrawal agreement, the EEA EFTA separation agreement and the European Union (Withdrawal Agreement) Act 2020. As I have said, the IMA’s role is to assist in protecting those rights by monitoring the implementation and application of the citizens’ rights parts of the withdrawal and separation agreements. To do that, the IMA will have the power to conduct inquiries, receive complaints and initiate legal proceedings. It will also have a role in reviewing the effectiveness of the citizens’ rights legislative framework—for instance, by reviewing draft legislation.
I am pleased to say that full delivery of the IMA is progressing well. An important milestone was the appointment of the interim chief executive in March. Since then, the choice of the IMA’s premises in Swansea has been finalised and the IMA has begun to recruit staff. The recruitment process for the chair and other non-executive members will be launched soon.
Let me turn to the purpose of the order specifically. The IMA’s role, which will be commenced at the end of the transition period, will be UK-wide. Therefore, the IMA will carry out functions in relation to Northern Ireland, which is what this delegated legislation relates to. The purpose of the order is to ensure that the IMA’s functions in relation to Northern Ireland are covered by the relevant statutory equality duties as set out in section 75 of the 1998 Act. That section requires public authorities carrying out their functions relating to Northern Ireland to have due regard to the need to promote equality of opportunity between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation, between men and women generally, between persons with a disability and persons without, and between persons with dependants and persons without, and to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group.
The order designates the IMA for the purposes of section 75. That will ensure that the IMA is covered by the equality duties applicable to a public authority carrying out functions in relation to Northern Ireland as set out in section 75. I hope that stakeholders, particularly in Northern Ireland, will welcome the assurance that those functions must be carried out in accordance with the important section 75 duties. Applying those duties to the IMA will also be consistent with the public sector equality duty under the Equality Act 2010, which has already been applied to the IMA by the European Union (Withdrawal Agreement) Act 2020.
To conclude, the order ensures that the IMA’s functions in relation to Northern Ireland will be covered by the relevant equalities legislation.
Peter Kyle (Hove) (Lab)
It is a pleasure to serve under your chairmanship for the first time, Mr Stringer.
The official Opposition support this instrument, which designates the new Independent Monitoring Authority for the Citizens’ Rights Agreements—IMA—as a public authority, for the purposes of section 75 of the Northern Ireland Act 1998. It does so by giving public authorities that carry out functions relating to Northern Ireland the statutory duties of equality of opportunity among the nine equality categories and the good relations between persons of different religious belief, political opinion and racial group.
The IMA will be an important public authority in Northern Ireland, so it is right that we give it the same statutory duties that other public authorities have. The IMA will have a crucial role to play following our departure from the European Union. It will be an important safeguard for the rights of the EU27 citizens in the UK after the end of the implementation period.
Being the single authority with responsibility for monitoring the implementation of the citizens’ rights provisions of the EU-UK withdrawal agreement is no small task. We have all been contacted by constituents who want reassurance that citizens’ rights will not be at risk. We expect that the Government will keep to their commitments on the IMA, and that it will be an organisation with genuine teeth when it begins its operations in Swansea later this year. During the debates on the withdrawal agreement, it was promised that the IMA’s independence would be valued and that it would be not be a perfunctory organisation. I hope the depth of feeling that has been generated as a result of the EU settlement scheme will be reflected when the IMA begins its role.
The power to bring legal action against the Government or a public body that has failed to implement or apply citizens’ rights correctly is crucial. Subjecting the IMA to section 75 duties will make it a better organisation and put it within the remit of the Equality Commission for Northern Ireland to investigate if it does not follow its duties as set out.
The Labour party looks forward to reading the equality scheme that this new organisation will put forward in due course. Can the Minister give assurances that this secondary legislation confirms the Government’s commitment to the IMA and that the powers allowed in the European Union (Withdrawal Agreement) Act 2020 to transfer the functions of the IMA to another body that is a relevant public authority will not be used?
As the end of the transition period draws nearer, are there any updates that the Minister can give us on how the formation of the IMA is progressing in light of the current coronavirus situation? I hope that it has not been delayed.
The order gives the IMA the statutory foundation it needs to function as a UK-wide body. Labour welcomes it, and we hope that it represents another step forward in the formation of the IMA as the truly independent and effective body that it desperately needs to be.
Alex Chalk
I thank the hon. Gentleman for his remarks. Yes, I am in a position to say that the British Government are committed to the IMA, and we are committed to it because we recognise, first, that we have a legal obligation in keeping with our international undertakings. The IMA is also a very powerful statement of intent that we want to ensure that those people who are in our country get the message loud and clear that we not only say that we value them but are providing the legal underpinning so that they are able to assert the rights that we want them properly to enjoy in our country.
The hon. Gentleman asks whether we are on track, in light of the coronavirus outbreak, to ensure that the IMA operates on time. Again, I can give him that assurance, as I already have in my initial remarks. Recruitment is proceeding well and the IMA will be in a position to do what we ask of it the moment that the transition period ends.
In those circumstances, I hope that the hon. Gentleman will feel able to give this measure his support today.
Question put and agreed to.
Draft Terrorism Act 2000 (Video Recording with Sound of Interviews and Associated Code of Practice) (Northern Ireland) Order 2020
(3 years, 10 months ago)
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The Chair
Before we start, I am double checking that everyone is sitting at a designated space. I think everyone is, but I may have to repeat myself if anyone else comes in. I remind Members that they can sit on the Government or Opposition sides. I ask Members to send their speaking notes to hansardnotes@parliament.uk to assist our Hansard reporters.
The Minister of State, Northern Ireland Office (Mr Robin Walker)
I beg to move,
That the Cttee has considered the Draft Terrorism Act 2000 (Video Recording with Sound of Interviews and Associated Code of Practice) (Northern Ireland) Order 2020.
It is a pleasure to serve under your chairmanship, Ms Buck. The order puts into place a revised code of practice governing the recording with sound of interviews of persons detained at a police station in Northern Ireland under section 41 of, or schedule 7 to, the Terrorism Act 2000. A copy of the draft revised code of practice was laid before Parliament on 8 June 2020. The purpose of the code of practice is to provide protection to both the person being interviewed and the officers conducting the interview.
I begin by assuring hon. Members that the revisions will not change in any way the way in which interviews are conducted. The changes are uncontentious, relating mainly to technical matters intended to allow the Police Service of Northern Ireland to begin using digital recording technology in line with the practice commonly adopted in England, Wales and Scotland. The changes to the code of practice will impact how interviews are recorded and how recording is stored.
The code is being changed, first, to allow the Police Service of Northern Ireland to use modern digital recording technology. The current code of practice allows for the use of Super VHS tape, disc or any other format producing a record equal or superior to those. That is clearly outdated. The proposed update allows for recording media or a secure digital network to be used instead. That involves taking an original interview video recording and storing it instead as a digital multimedia file on a secure file server accredited by the national accreditor for police information systems. This revision will bring Northern Ireland into line with the technology used in the rest of the UK. It is worth noting that the Police Service of Northern Ireland already possesses the necessary technology and utilises it for other non-Terrorism Act interviews.
Secondly, the code of practice is being changed to shadow closely the equivalent code of practice for Great Britain. While that means some changes to language and format, the purpose and key content of the code remain the same. It is worth noting that the draft code does not exactly replicate the code in Great Britain, reflecting the devolution of police and justice functions in Northern Ireland and consequent differences of approach adopted in different jurisdictions. I draw hon. Members’ attention to the fact that the code for Great Britain, for example, contains references to post-charge questioning provisions as set out in the Counter-Terrorism Act 2008, but the proposed code does not, because the 2008 Act stipulates that before its provisions on post-charge questioning can be commenced, police and criminal evidence codes must be amended to reflect how post-charge questioning should be dealt with and recorded. While the Home Office amended the PACE codes for Great Britain in 2012, that function in Northern Ireland falls to the devolved Department of Justice. To date, that has not been done, so it has not been possible to commence post-charge questioning provisions under TACT.
I reassure hon. Members that the Government ran a 12-week public consultation on proposed changes to the code of practice. We received six responses, all of which were in favour of the revisions. Three respondents suggested other slight amendments to the code, which were duly considered, and most were accepted. The full details of those suggestions were published in our consultation response document. The Police Service of Northern Ireland, in its response to the consultation, suggested the addition of remote monitoring to the code. Remote monitoring is routinely used in the TACT serious crime suite at Musgrave police station, which uses technology to enable the senior investigating officer, interview co-ordinator or any other person with justification to monitor the interview process from another room. As remote monitoring is routinely used in TACT interviews, the PSNI recommended including it in the code of practice.
I hope hon. Members agree that while the revisions are technical, they are important, aligning the code of practice used in Northern Ireland with that used in the rest of the UK. They allow the Police Service of Northern Ireland to use digital recording technology in terrorism interviews and future-proof the code.
Louise Haigh (Sheffield, Heeley) (Lab)
It is a pleasure, Ms Buck, to serve under your chairmanship. I thank the Minister for his constructive approach and the helpful briefing that he and his office provided. As he has outlined, the amendments relate to technical matters. They are intended to allow the PSNI to use the latest digital recording and will bring Northern Ireland into line with the technology used in the rest of the UK. It is important that we continue to provide the tools necessary for the PSNI to do its job, and I want to place on the record my thanks to the Chief Constable and PSNI officers for the work that they have done, particularly during an extremely challenging period in Northern Ireland.
It is welcome that the Government have accepted the suggestions placed on record during the consultation and the response from the Independent Reviewer of Terrorism Legislation, the Northern Ireland Human Rights Commission and the PSNI. We are happy to support the order today.
I want to press the Minister on a couple of issues, particularly on the implications that stem from the further digitisation of interviews under caution. Can he confirm the standard under which digital evidence must be stored, as there are clear implications for cyber-security and the effective storage of digital evidence? On interpreters, which the amended code of practice covers, in order to enable those being questioned to fully understand the updated code of practice—this was an issue raised by the Northern Ireland Human Rights Commission—what discussions has he held with the PSNI to ensure that it has sufficient resourcing so that the provision is made available and all those interviewed under caution are fully aware of their rights?
Given that maintenance of the old recordings was becoming difficult, as the explanatory memorandum makes plain, has the Minister been reassured that the existing evidence will remain technically viable? If not, what plans does the PSNI have to update and refresh the existing stock of evidence? That is important more broadly as the decay of existing records presents a significant challenge for legacy investigations, which are currently conducted by the legacy investigations branch, and the PSNI will clearly take another form when the Government introduce their new legacy proposals, as proposed in the ministerial statement on 18 March.
Many of the cases date back as much as four decades to the beginning of the troubles, and evidence currently held on VHS or tape will remain viable only for so long. However, the effort and manpower required to update and refresh the thousands of recordings that relate to legacy investigations will be substantial, as will the digitisation of evidence over the period of the troubles. The PSNI has estimated that this could cost many millions of pounds, so can the PSNI be reassured that Ministers will provide the resources necessary to undertake this mammoth task, which will be pivotal to the success of any legacy process? We simply cannot proceed with investigations over this period in any form if investigators do not have access to all relevant evidence.
There are implications not only for legacy investigations, but for legacy institutions, particularly the oral history archive, as laid out in the Stormont House agreement and underpinned by an international treaty signed with our partners to the Good Friday agreement, the Republic of Ireland. The proper archiving of the material is no small task, particularly for institutions such as the PSNI, and a concerted effort should be made to facilitate and enable the long-term preservation of any relevant material. This necessitates updating and aggregating the existing collection and proposing sensible workable accommodations with regard to the legal requirements of the deposit of collections. Can the Minister reassure us that the PSNI will get the support needed to undertake that work as well? It would be wrong to lose out on a vital piece of evidence when an important historical record with its contemporaneous recordings begins to decay. I will not hold the Committee up any longer. We are happy to support the order.
Mr Walker
I welcome the hon. Lady to her place and echo her thanks to the PSNI and the Chief Constable for all the work that they have been doing during the recent difficult period and for the feedback that they gave us as part of the consultation for the review. She has raised some important issues. On the security of digital network interview records, there is detail in the code of practice, which I will briefly run through.
Section (g) states that interview record files must be
“stored in read only format on non-removable storage devices, for example, hard disk drives, to ensure their integrity. The recordings are first saved locally to a secure non-removable device before being transferred to the remote network device. If for any reason the network connection fails, the recording remains on the local device and will be transferred when the network connections are restored…Access to interview recordings, including copying to removable media, must be strictly controlled and monitored to ensure that access is restricted to those who have been given specific permission to access for specified purposes when this is necessary. For example, police officers and…lawyers involved in the preparation of any prosecution case, persons interviewed if they have been charged or informed they may be prosecuted and their legal representatives.”
I hope that that provides some reassurance about the handling of the security risk .
On the issue of interpreters being included, the hon. Lady will recognise that that was a recommendation of the NIHRC. The PSNI was closely involved in the drafting and preparation of the measure as well as in responding to consultation. We put the issue of interpreters to it and it had no reservations about accepting it. It is likely that someone who would need help with interpreting the code would also need the help of an interpreter at interview, so no extra resource should be required.
As the hon. Lady said, the statutory instrument is largely technical. It is important for policing in Northern Ireland. She raised issues about legacy, including the oral history archive, which is part of our legacy proposals. As I think she will recognise, we will debate those issues another time, with other statutory instruments. It is right to focus on the purpose of the statutory instrument before the Committee, which relates to evidence taken from the point when it is passed. It is about evidence taken, and the recording of interviews, under the Terrorism Act, going forward from this point. I am glad that we seem all to agree that we should go ahead with that. I commend the order to the Committee and thank the hon. Lady for the constructive approach that she has taken.
Question put and agreed to.
Draft Higher Education (Fee Limits and Student Support) (England) (Coronavirus) Regulations 2020
(3 years, 10 months ago)
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The Minister for Universities (Michelle Donelan)
I beg to move,
That the Committee has considered the draft Higher Education (Fee Limits and Student Support) (England) (Coronavirus) Regulations 2020.
On 4 May 2020, the Secretary of State for Education announced a package of stabilisation measures for the higher education sector in response to the covid-19 pandemic, one of which was the introduction of temporary student number controls. Higher education providers in England and institutions in the devolved nations have been allocated individual SNCs—a set number of students that we believe constitutes a fair maximum share of student recruitment for the academic year 2020-21.
If a provider in England recruits beyond its SNC this coming year, the regulations provide for a reduction in the maximum tuition fees that it can charge for the academic year 2021-22, the percentage of which depends on the extent to which it has exceeded the SNC. If an institution is in a devolved nation and recruits English-domiciled students in excess of its SNC in the coming year, the maximum tuition fee loan amounts for the new entrants only will be reduced by the same percentages in the academic year 2021-22. The SNC reflects the maximum number of students that the Government consider reasonable for providers, based on the provider’s predicted growth or the national average for those with that forecast, plus an extra 5%, which will still generously allow for providers to grow.
The regulations will set out in law what the restrictions in the maximum tuition fee and tuition fee loan amounts will be. They simply allow the Government to redress the imbalance where a provider has gained extra taxpayer-funded income through aggressive recruitment practices this year. Such recruitment practices have threatened to destabilise the sector, and mean that some providers are at risk of collapse. The change in recruitment practices has the potential to be to the detriment of students who have been encouraged to accept an offer from a provider that may not best suit their needs.
It is right that the Government control the taxpayer-funded student loans system in this way. This is about the effective and appropriate distribution of public money during a time of unexpected financial crisis. Providers recruiting additional students aggressively secure the tuition fee income attached to them, and consequently disproportionally increase the public funding flowing to them through the taxpayer-funded student loans system.
The Government’s policy position is that it is reasonable to conclude that, where a provider has chosen to exceed its SNC, it has taken more than its fair share of taxpayer funding. The Government and the taxpayer should be able to redress that imbalance in the following academic year. The Government have chosen to address this issue through the fee system, as it is where we best have the ability to control the flow of public funds to higher education. These short-term measures are necessary as a targeted response to the unprecedented circumstances caused by the covid-19 pandemic. The regulations will be in place for only one academic year.
I recognise the concerns of colleagues across the devolved Administrations, who say that the UK Government are interfering in a devolved matter. I have to make it very clear that that is not the case. The funding of English-domiciled students is not a devolved matter. It is right and fair that the policy should apply as consistently as possible wherever they are studying in the UK.
Student number controls for institutions in the devolved nations apply only to English-domiciled students, whose tuition fees will be supported through Student Finance England. Providers in the devolved nations will continue to be free to set their own fees, as they do now. The UK Government simply determine the level of student finance available to support English-domiciled students. That is not encroaching on devolution; in fact, it respects it, while ensuring that the higher education system is stable, ensuring that students have a positive experience and that public money is spent in the most effective way possible as we seek to recover and rebuild following the covid-19 pandemic.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
Briefly, I thank the higher education sector for its incredible work throughout the covid-19 pandemic on research, providing students for the frontline and creating personal protective equipment, while rapidly switching to online provision, supporting students and meeting the greatly increased demands on hardship funds and welfare services. It has done an incredible job.
The expected fall in the number of international students has led to a predicted loss of up to £2.5 billion, and the Office for Budget Responsibility identified higher education as the sector most likely to take the hardest hit from the crisis. That led to calls for some form of student recruitment controls from English universities alarmed at the news of a dramatic increase in the number of unconditional offers being given out by a handful of institutions.
The calls for a cap were formalised in the Universities UK sector-wide support proposals “Achieving stability in higher education sector following Covid-19”. Labour supports the principle of the cap. Indeed, evidence was emerging that aggressive recruitment was beginning to occur. However, we have concerns about the implementation and criteria for setting the cap in the regulations, so we seek reassurances and clarification from the Minister on a number of points.
The UUK proposals were for English universities only; there had been no call from anyone in the sector for an extension of the cap on English domiciled students to Welsh, Scottish or Northern Irish universities. Will the Minister outline what actions the UK Government are taking to prevent further changes to student number controls being imposed on Welsh and Scottish universities without adequate consultation? What discussions occurred before the laying of these regulations?
The calculation of student number controls is not equitable across the nations. In the case of English institutions, the data used for setting the SNC—we are all fine with that acronym—come from the higher education students early statistics survey for 2019-20, and the base growth rate for each university was derived from forecasts submitted by English providers to the Office for National Statistics as part of their annual financial returns. However, such individual forecasts were not available for Welsh, Scottish or Northern Irish institutions. Instead, their base growth rate was set at 1.5% across the board, with the figure derived from an average of the HESES19 data provided to the Office for Students by English universities. I know of no justification for using data for English universities to set limits for those from Wales, Scotland and Northern Ireland apart from no other data being available. Will the Minister clarify whether any attempts have been made to establish direct equivalence or to make adjustments that might be necessary?
This year, covid-19 delayed student recruitment activity across the sector, so UCAS extended the usual May offer deadlines so that students and institutions alike had a little more time to respond. There are concerns that, having not waited for the UCAS deadline—the point at which universities make offer decisions and applicants make choices—the safeguard algorithm for the SNC has created an unfair admissions process for students who might take longer to make their decisions. Statistically, such students are disproportionately from widening participation backgrounds. Will the Minister reassure us that her Department will analyse the impact of the SNC on students from widening participation backgrounds and take any mitigating steps needed?
The proposed penalties for exceeding the SNC for institutions are incremental reductions in the maximum allowed fee level on all entrants in the following year. An over-recruitment of English domiciled students of between 0% and 6% results in a 3% reduction, over-recruitment by 6% to 12% results in a 9% reduction, and over-recruitment by more than 12% results in a 15% reduction in the maximum fee level in England or the loan amount in Scotland, Wales and Northern Ireland for 2021-22.
The draft explanatory memorandum accompanying the legislation states:
“An Impact Assessment has not been prepared for this instrument because, while the fee reductions are judged to have a financial impact on those higher education providers that exceed their SNC, the direct effects of the instrument will last for less than 12 months.”
That is a little surprising. Will the Minister explain what consideration has been given on the effects of SNC on student growth in 2021? The proposed sanction of a cut in maximum fees makes the affected institution a cheaper option for students in 2021, and it should be remembered that the cost of additional students is affected by scale—that is to say, the cost of 100 students is not necessarily twice that of 50 students; there are economies of scale to be made. In fact, recent analysis showed that certain institutions could deliberately over-recruit this year and still come out of the process ahead financially. Those in the study who potentially stand to gain by breaking the cap are large providers with sizeable international recruitment in a normal year who have experienced year-on-year growth in English domiciled recruitment in the past few years. Can the Minister give a detailed justification for choosing this method of tuition fee reduction as a sanction for exceeding the SNC? What understanding does she have of the effect of the proposed sanctions, and how can she ensure that the right levels are fixed to act as an effective deterrent?
Although this is beyond the scope of the SI and is not mentioned in the draft explanatory memorandum, it should be noted that the OFS has had the power to levy sanctions on institutions not acting in the best interest of the sector since it was formed. What conversations has the Minister had with the OFS to ensure the proposed deterrent works, if she is allowed to reveal them?
The original calls for SNCs came from English universities only, so I would like to hear from the Minister a meaningful justification for their extension to Wales, Scotland and Northern Ireland. I note with concern the possible unintended consequences of the SNCs as applied, damaging the opportunities of children from disadvantaged backgrounds through their effect on widening participation, and would like the Minister to assure us that those unintended consequences will be analysed and mitigations made. Similarly, I note the possible opportunities for some institutions to game the SNCs to their advantage, to the detriment of others, and invite the Minister to explain how she will ensure that this does not happen. The SNCs called for by the sector were to be temporary and limited to this year only, so I ask the Minister to reiterate that this will remain the case.
Michelle Donelan
I am grateful to the hon. Member for Kingston upon Hull West and Hessle for her contribution. I echo the sentiment she has expressed regarding the work that universities and the further education sector have done over the past few months to cope with the coronavirus pandemic, and the support they have given to both students and staff. I will try to address some of the questions that were raised.
The first question was about consultation with devolved Administrations. My right hon. Friend the Secretary of State for Education and I have had regular meetings with Ministers from all devolved Administrations about higher education issues. Those discussions included the development of student number control policies, and my officials have kept in regular contact with their counterparts, with weekly meetings and discussions. I will continue to work closely with the devolved Administrations on strengthening and stabilising the higher education system following the coronavirus pandemic. It is important to stress that we needed a policy that would be fair across the UK and would work in practice.
The hon. Lady pointed out discrepancies in way in which the figures are calculated. For an English institution, they are based on that institution’s projected figures if they have been submitted; otherwise, the sector average will be used. For the DAs, we went for the sector average plus an additional 5% to make the policy workable, because these are not the figures of their total student population but of their projected English-domiciled students, so it is a harder figure for them to have already submitted.
The hon. Lady also mentioned the impact on those students who come from disadvantaged backgrounds and may be accepting late offers. It is important to note that these SNCs are extremely generous in their allocations: they are not only based on the sector average or the individual institution’s predicted growth, but have a buffer of 5%. In addition, institutions in England can apply for at least 5,000 places for nursing and allied healthcare professional courses, and there is a 5,000-place allocation that they can bid into across the UK for specific courses. I believe that the ramifications of the fee structure we have outlined are proportionate.
I stress again that this is a temporary policy designed to help mitigate the challenges that the higher education sector faces because of the coronavirus pandemic. Its fundamental goal is to stabilise that sector and protect the interests of students. As we all know, the pandemic has been extremely disruptive to every sector of society, and as Minister of State for Universities, Science, Research and Innovation, I will continue to do everything I can to maintain the health of the higher education sector. The introduction of temporary SNCs, together with these regulations, is part of the Government’s actions to tackle this issue and ensure stability. These necessary steps will help to ensure that we can stabilise the sector, provide value for money for the taxpayer, and above all maintain freedom of choice and a positive higher education experience for all our students.
I commend the regulations to the Committee.
Question put and agreed to.
Draft Human Rights Act 1998 (Remedial) Order 2019
(3 years, 10 months ago)
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The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
I beg to move,
That the Committee has considered the draft Human Rights Act 1998 (Remedial) Order 2019.
It is a pleasure to serve under your chairmanship, Sir Charles. The draft remedial order was laid before this House on 15 October 2019, in the last Session of Parliament. It was laid to implement the decision of the European Court of Human Rights in the case of Hammerton v. United Kingdom.
The draft order amends section 9(3) of the Human Rights Act 1998 to enable damages to be awarded under the Human Rights Act in respect of a judicial act done in good faith which is incompatible with article 6— the right to a fair trial—of the European convention on human rights. It provides the power to award damages where a person is detained and would not have been detained for so long, or at all, were it not for the incompatibility.
The Government consider this limited amendment to be an appropriate balance that implements the judgment of the European Court of Human Rights and takes into account the views of the Joint Committee on Human Rights, while also respecting the important constitutional principle of judicial immunity and the constraints provided by section 9(3) of the Human Rights Act, namely the right to an effective remedy.
To turn to the background of Hammerton v. United Kingdom, the particulars of the case are that, in 2005, Mr Hammerton was committed to prison for three months for contempt of court, after breaching an injunction and undertaking during child contact proceedings. However, he was not legally represented at the committal proceedings, due to procedural errors. The Court of Appeal quashed the finding of contempt and the sentence, finding that he had spent extra time in prison as a result of procedural errors during his committal proceedings, which were such that his rights under article 6, the right to a fair trial, were breached.
In 2009, Mr Hammerton lodged a claim for damages in respect of his detention. The High Court held that the lack of legal representation had led to Mr Hammerton spending about an extra four weeks in prison. However, he was unable to obtain damages to compensate for the breach of article 6 in the domestic courts, because section 9(3) of the Human Rights Act does not allow damages to be awarded in proceedings under the Act in respect of a judicial act done in good faith, except to compensate a person to the extent required by article 5(5) of the convention, which is on deprivation of liberty.
In 2016, the European Court of Human Rights considered the case and found a breach of article 6. The court also found that the applicant’s inability to receive damages in the domestic courts in the particular circumstances of his case led to a violation of article 13, the right to an effective remedy, and awarded a sum in damages. That sum has been paid. We are obliged, as a matter of international law, to implement the judgment of the European Court of Human Rights and, in this case, to take steps to implement the judgment in respect of the breach of article 13, to ensure that similar violations will not arise in the future.
To set the draft order in context, the Human Rights Act gives individuals the ability to bring proceedings to enforce their convention rights, or to rely on those rights in other proceedings, and gives courts and tribunals the ability to grant any relief or remedy within their powers, as they consider just and appropriate. I pause to note, as I am sure is not lost on anyone in the Committee, that the European Court of Human Rights is completely different from the European Court of Justice, which of course has no jurisdiction over the United Kingdom any more.
The award of damages is often not necessary to afford just satisfaction for breaches of convention rights. In the majority of cases in which a judicial act done in good faith leads to a violation of an individual’s convention rights, it can readily be remedied by an appeal and other forms of relief, such as release from custody. Therefore, it will be only on rare occasions that the statutory bar in section 9(3) of the Act will constitute a barrier to a victim receiving an effective remedy, as required by article 13 of the convention.
The bar on paying damages in cases such as this one is in primary legislation and, to implement the judgment, it is necessary to amend the relevant primary legislation, in this case the Human Right Act 1998. The Act sets out the procedure for remedial orders, such as the one we are discussing today, and in 2018 the Government laid a proposal for a draft remedial order to make a narrow amendment to section 9 of the HRA.
That amendment provided for damages to be payable in respect of a judicial act done in good faith where, in proceedings for contempt of court, a person does not have legal representation, in breach of article 6, that person is committed to prison, and the breach of article 6 results in the person being detained for longer than he or she otherwise would have been. The Government considered that that addressed the specific findings of the court, while at the same time taking account of the need to preserve the important principle of judicial immunity—a constitutional principle that should rightly be preserved.
In November 2018, the Joint Committee on Human Rights reported on the draft remedial order and was of the view that the proposed amendment was too narrow and did not fully remove the incompatibility of section 9 with article 13. It recommended that we consider redrafting the order to make damages available for any breach of human rights caused by a judicial act where otherwise there would be a breach of article 13, whether or not that leads to a deprivation of liberty. In other words, the Committee said we were not extending it enough and should go broader than the specific facts of the case.
In response, the Government accepted the point that other situations could arise outside committal proceedings where a judicial act done in good faith could potentially amount to a breach of article 6, where that breach could result in the victim spending longer in detention than they should, and where damages would be unavailable, contrary to article 13. The order before the House today is slightly wider in scope, taking into account the need to balance addressing the incompatibility identified by the European Court of Human Rights with the need to protect the principle of judicial immunity. I am grateful to the Joint Committee on Human Rights for its scrutiny of the order and its careful consideration of the more recent draft order issued, and we welcome the Joint Committee’s recommendation that Parliament approve the order.
Hon. Members will have heard me mention just now the need to protect the principle of judicial immunity, and I want to say a few words about that. Judicial independence and the principle of judicial immunity must be protected, and any intrusion needs to be stringently justified. That is why we engaged with the judiciary to ensure that it was fully sighted on the judgment and our plans for the remedial order.
Finally, given that the Human Rights Act 1998 applies to the whole of the United Kingdom, the order would apply UK-wide. Officials have worked closely with the devolved Administrations during the process.
The order ensures that, in certain limited additional circumstances where our domestic courts find that a judicial act done in good faith has breached an individual’s article 6 rights to a fair trial and led to them spending longer in detention than they should, the courts are able to determine and properly consider whether an award of damages should be made for any such breach.
Peter Kyle (Hove) (Lab)
It is good to serve under your chairmanship once again, Sir Charles, and to see the Minister as well. Take this as you will, Sir Charles, but I seem to spend more time with the Minister than with my friends and family these days.
The Labour party supports the remedial order, which amends the Human Rights Act 1998. The case of Hammerton v. United Kingdom showed a situation none of us would have expected. Mr Hammerton’s rights were violated by a judicial act done in good faith, and there was no effective remedy for the wrong suffered as a result of that violation. It is only right and fair that when someone’s rights are violated, they can seek redress through the courts.
The right to an effective remedy is protected by article 13 of the European convention on human rights. Mr. Hammerton was committed to prison for contempt of court, despite having no legal representation. At a family court hearing, he was unrepresented, as his legal aid certificate was under review following receipt of a post-divorce financial award. The lack of inquiry into that, and other procedural errors, meant that the court breached article 6 of the European convention on human rights—the right to a fair trial.
Mr Hammerton went to prison for six and a half weeks, which would not have been the case if he had been represented. We should thank him for persevering with his case since his imprisonment in 2005. By taking it to the European Court of Human Rights, he has made us examine how we view our courts. Judges are only human, so, in very rare cases, their decisions will result in the need for remedy. It is only right that damages can be claimed in those extremely rare cases where no other remedy is possible.
Mr Hammerton could not receive damages, owing to the operation of section 9(3) of the Human Rights Act, which prevents damages as a result of a judicial act done in good faith. The rationale behind section 9(3) is to preserve the judicial immunity that promotes the judicial independence we all value so much.
In Mr Hammerton’s circumstances, the damage done to him by being imprisoned could not be rectified by an appeal or other routes, as he had already spent time in custody by the time the errors were realized. Damages were the only appropriate remedy for what he had gone through. The Human Rights Act in this case explicitly prevented the courts from awarding him the damages he sought and that he deserved.
It is a shame that the Government attempted to address this incompatibility with the draft Human Rights Act 1998 (Remedial) Order 2018. That draft order laid out extremely narrow circumstances where damages could be awarded. The circumstances were so specific that they only applied to Mr Hammerton’s case and other circumstances if they were identically replicated. The Joint Committee on Human Rights rightly rejected that draft order. As it pointed out, other situations could occur that could result in the need for damages.
It is important to stress that judges will not be personally liable for any award of damages as a result of this remedial order. The Labour party champions the independence of our judiciary and the immunity of the judiciary is key. However, as stated by the Joint Committee, depriving judges of the power to award damages against the state does not strengthen independence. The new remedial order, now redrafted, allows damages to be awarded to judicial acts done in all proceedings and in relation to all breaches of article 6 that have led to a person spending time in prison or being detained.
The Joint Committee on Human Rights concluded that the remedial order before us today adequately addresses the incompatibility between the European convention on human rights and section 9(3) of the Human Rights Act. We agree with the Joint Committee’s conclusion and therefore support the order. However, we also agree with the Joint Committee that circumstances might arise in the future where further incompatibility could be found beyond the scope of the order and hope that the Government will address that point, too.
I pause to note the correspondence that many of us have had in recent days from Professor Richard Ekins of Oxford University. He was concerned that, on assessing the secondary legislation before us, only fresh primary legislation would fulfil the demands of the Court. The Labour party accepts the recommendations of the Joint Committee, but I wanted to note Professor Ekins’ points, and I invite the Minister to reassure the Committee that those points have been taken into account.
I would also like reassurance from the Government that the championing of the judiciary that they displayed in their response to the Joint Committee on the order is a course that they will stay on. It was welcome to hear in the Government’s response to the Joint Committee’s report into the first draft remedial order, a reaffirmation that an
“independent and impartial judiciary is one of the cornerstones of a democracy”.
I hope that is a view they keep to when they return to the constitution, democracy and rights commission that they announced in their manifesto, with comments about how judicial review can be used,
“to conduct politics by another means or to create needless delays.”
Our judicial system is the best in the world, which means that cases such as Mr Hammerton’s are incredibly rare, but it is right that the order legislates for errors that can occur and allows victims to receive damages where it is appropriate.
Mr David Jones (Clwyd West) (Con)
Thank you, Sir Charles, for giving me the opportunity of addressing the Committee, although I am not a member of it.
I have concerns about the draft order. My objection is not to the substance of the change that the order would make, but rather to the lawfulness and constitutional propriety of making such changes in this way.
As the hon. Member for Hove pointed out, in a paper published by Policy Exchange only last month, Professor Richard Ekins of Oxford University made a powerful case for the proposition that the Human Rights Act does not authorise its own amendment in the way that is proposed today. I suggest, therefore, that the order, if made, would be of doubtful legal validity. Section 10 of the Act is an extraordinary power that authorises Ministers to amend primary legislation by executive order. Traditionally, the courts have interpreted such powers narrowly. The order would be lawful only if section 10 of the Act applies to the Act itself.
As we have heard, the Human Rights Act gives effect to the European convention on human rights in UK law on terms prescribed by Parliament. If the Government’s reading of the Act is correct—that is, that it permits amendment of the Act itself—I suggest that that opens the door to allow any future Government to undo the terms of the Act. For example, the Act was intended to apply to events that took place only after it came into force, in October 2000. Applying the Government’s apparent reasoning, there would be nothing to prevent them from making the Act totally retrospective by application of the section 10 power.
Similarly, if Parliament were to legislate in future to limit the application of the Act, the order, if made, would set a precedent whereby a future Government could simply undo Parliament’s changes by another order. That cannot be right. If the scheme of the Act is to change, it should be only when Parliament has agreed to it after proper scrutiny. With respect, the process for approving statutory instruments does not provide adequate scrutiny or debate for that purpose. It seems clear to me that, as Professor Ekins argues in his Policy Exchange paper, the order is of doubtful validity and, at the very least, is a startling use of the section 10 power. There are serious issues for concern and the matter needs fuller debate.
My concerns are made all the greater by the fact that the order, as we have heard, concerns the scope of judicial immunity, which is relevant to the principle of judicial independence. Parliament should think carefully before permitting any Government to make changes to the Human Rights Act that possibly undermine judicial independence by an executive order. If the Government think that the Act should be amended—and, as I say, I have no issue with the mischief that the order seeks to address—they should introduce a short Bill that would allow for the sort of scrutiny that is not possible in the time available to the Committee today.
I shall be grateful for the Minister’s observations on those points.
Alex Chalk
I thank the hon. Member for Hove and my right hon. Friend the Member for Clwyd West (Mr Jones) for their helpful observations, which I will deal with in turn. On the reassurances that were sought about the Government’s adherence to the principle of an independent, impartial judiciary, I am more than happy to give those cast-iron assurances.
Indeed, it was because of specific concerns about the need to uphold the impartiality and independence of the judiciary that we were extremely careful to ensure that, in so far as there was any encroachment on judicial immunity, it was as modest and proportionate as possible. On that basis, the JCHR actually asked us to go further, but we are taking a small C conservative approach in that regard, because we recognise that a key bulwark of our freedoms in a free democratic society is the impartial judiciary which is, in the overwhelming majority of cases, of unimpeachable integrity. Long may that continue.
The steps that we are taking today are modest and proportionate. They are designed simply to ensure that our convention obligations are adhered to. On the points helpfully made by my right hon. Friend, it is absolutely right to say that Professor Ekins has identified an issue in the legislation, but some important countervailing representations can be made. First, in respect of the section 10 power that he refers to, which provides to Ministers the power to ensure that in effect legislation takes effect only in so far as it is in compliance with the convention, it would be odd if that power were to exist in respect of all other legislation but not the Human Rights Act itself.
Secondly, when the Human Rights Act was enacted, its whole purpose was to ensure that the legislative framework that existed in the UK was compatible with the convention. That is why it creates powers for making declarations of incompatibility and so on. Again, it would be curious if the very vehicle that is intended to ensure compatibility is itself a roadblock to compatibility. That cannot be right and cannot have been the intention of Parliament in 1998.
The third point that we would pray in aid is that the Joint Committee on Human Rights, which, as the hon. Member for Hove said, considered the matter with care, also reached the conclusion that the Government have the power—the vires, to use the jargon—to amend the Human Rights Act in this way. Overall, the steps that we are taking are modest, proportionate and calibrated. This House should see its way to making these modest adjustments in the way that I have set out.
Question put and agreed to.