Energy Bill [ Lords ] (Twelfth sitting)
Tuesday 20th June 2023
(10 months, 3 weeks ago)
Public Bill CommitteesRead Full debate Energy Act 2023 View all Energy Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 20 June 2023 - (20 Jun 2023)
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Chair
Before we begin, I remind colleagues that Hansard would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Once again, I am happy to unilaterally give my permission for the removal of jackets, because it is hot in here. Please switch electronic devices to silent. Tea and coffee are not permitted, but there is a lot of water around—fizzy as well as still.
Clause 256
Application to the territorial sea of requirement for nuclear site licence
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Government amendments 120 and 121.
Clauses 257 to 259 stand part.
Government amendments 124 to 126.
Government amendment 132.
Government amendments 127 to 129.
That schedule 20 be the Twentieth schedule to the Bill.
The Parliamentary Under-Secretary of State for Energy Security and Net Zero (Andrew Bowie)
It is a genuine pleasure to serve under your chairmanship, Dr Huq, and to be back here for day seven of this Bill Committee.
A geological disposal facility, or GDF, is a highly engineered facility capable of isolating and containing radioactive waste within multiple protective barriers deep underground, so that no harmful quantities of radioactivity ever reach the surface environment. It is vital to the successful decommissioning of the UK’s civil nuclear legacy and to our new-build nuclear programme, which will support the UK Government’s net zero ambitions and energy security strategy.
Clause 256 makes it clear that certain nuclear sites—including a GDF, once prescribed in regulations—located wholly or partly in or under the sea, and within the boundaries of the UK’s territorial sea, require a licence and are regulated by the Office for Nuclear Regulation. I want to make it clear that no part of a GDF will be in the sea itself, nor will radioactive waste be dumped in the sea—that is banned by international conventions, including the London convention and protocol. The process to find a site for a GDF is under way, so it is vital that we have a clear legal framework to ensure that such a site will be licensed and subject to oversight by the Office for Nuclear Regulation.
Alan Brown (Kilmarnock and Loudoun) (SNP)
Given the Government’s plan for a quarter of electricity to be generated by nuclear by 2045, how much additional nuclear waste does the Minister predict? How much additional nuclear waste will be stored at the new geological disposal site, and what is the estimated cost of the new facility?
Andrew Bowie
The costings of any geological disposal facility will be presented to Parliament for scrutiny, but the process is under way to find a site that will be large enough to cope with any increase in waste from our civil nuclear fleet. The hon. Gentleman might be interested to learn that Finland has just opened, and is beginning to utilise, a new GDF. That is the model that we in the UK would like to follow.
Mark Jenkinson (Workington) (Con)
I hope the Minister is going to propose that the Committee visit the facility in Finland. Does he agree that it is unhelpful that our detractors cannot seem to distinguish between legacy waste from a number of programmes and waste from new nuclear establishments, for which we have well-established protocols?
Andrew Bowie
Absolutely—I could not agree more with my hon. Friend. I would be delighted to propose a trip to Finland for all Committee members, but it is not within my gift to organise such a trip. If anybody who is able to host us is listening, I would be keen to engage on that.
I agree with my hon. Friend’s comments regarding new nuclear waste. The excellent work being done in Sellafield—I know that is not in his constituency, but it is certainly in his part of the country—is an example to the world of how we regulate and dispose safely of nuclear waste that has been created. When we talk about a GDF, we are talking about new nuclear waste, which will come about as part of the exciting, new, world-leading and revolutionary investment in a civil nuclear fleet that the United Kingdom is engaged in right now. The north-west of England will be at the very heart of that.
Alan Brown
Will the Minister explain the process for looking for a new geological disposal site? Will consultants do it? Will it be desktop-based to start with, and then involve intrusive site investigations? Will people bid to have a site? How will the process work?
Andrew Bowie
That is a good question. In fact, I was just coming to the process. The GDF siting process is a consent-based approach that requires a willing community to be a partner in the project’s development. The siting process is already under way. Four areas have entered the process: three areas in Cumberland—in Copeland and Allerdale—and one in East Lindsey in Lincolnshire.
Government amendment 120 removes superfluous wording in new section 3A of the Nuclear Installations Act 1965. A licensed disposal site, as defined for the purposes of the new section, is not a nuclear installation within the meaning given by section 26(1) of the Act, so does not need to be mentioned explicitly in subsection (3). The amendment therefore removes it from the clause to correct this error. Amendment 121 is consequential on amendment 120 and removes the unnecessary definition of a licensed disposal site from new section 3A of the Nuclear Installations Act 1965.
The UK’s nuclear decommissioning programme is accelerating as older nuclear sites approach the end of their life cycle. As the first major nuclear sites will reach their final stages of decommissioning in the 2030s, it is essential that our nuclear legal framework is fit for purpose, while continuing to ensure an absolute focus on safety and security as the key priority. The Nuclear Installations Act 1965, which provides such a framework for nuclear safety and nuclear third-party liability, was written before serious consideration was given to decommissioning.
Clause 257 will amend the procedures for exiting nuclear third-party liability. Currently, the 1965 Act has the effect of requiring nuclear sites to remain subject to nuclear third-party liability for longer than is required by internationally agreed standards. The clause implements an alternative route based on internationally agreed recommendations and will apply to nuclear installations in the process of being decommissioned. It adopts a simpler and equally safe route out of the NTPL regime for non-nuclear parts of the nuclear site, such as laboratories, workshops, offices, car parks and land.
Clause 257 changes procedures for ending nuclear licences and regulation by the Office for Nuclear Regulation. It will require the licensee to apply to the ONR to end the licence and will require the ONR to consult the Health and Safety Executive before accepting an application. The ONR will accept an application when it considers that all nuclear safety matters have been resolved. Once the licence has ended, the ONR’s regulation of the site will cease. HSE will pick up responsibility for regulating the health and safety of work activities, while the relevant environmental agency will continue to regulate environmental matters for years or even decades after the end of the nuclear licence.
The clause has the effect of removing a barrier to the on-site disposal of suitable low or very low-level radioactive waste and avoiding the unnecessary excavation and transport of this material. Demolition work results in the creation of large amounts of rubble and waste, a small percentage of which may be lightly contaminated with radioactivity. Excavating that material can create radioactive dust, which is a hazard for workers. Transporting waste to disposal facilities can have noise and traffic impacts for local residents.
The existing environmental legislation, which the clause does not modify, was developed with land remediation in mind. It allows the operator to apply to the relevant environmental agency for a permit to dispose of suitable low or very low-level radioactive waste on site. Applications are subject to robust analysis, and an environmental permit would be granted only if disposing of the waste on site would be a safer and more sustainable option than excavating it and transporting it to disposal facilities elsewhere.
Finally, the clause will allow operators to apply to the ONR to exclude those disposal facilities for nuclear waste that do not require a nuclear licence from the nuclear licensed site boundary. To be clear, the clause does not constitute a relaxation in the standards for public protection. It aligns with UK radiological protection law, international standards and UK Health Security Agency guidance.
Clause 258 will bring an international agreement on nuclear third-party liability into UK law. Its aim is to lower the financial and regulatory burden on low-risk radioactive waste disposal facilities. Sites that meet the criteria will be exempted from the requirement to make provision for third-party claims. Injuries or damages will instead be covered by ordinary civil law, which is robust, proportionate and established. The clause allows the Secretary of State to set out by regulation the conditions that must be met to be excluded from nuclear third-party liability under the OECD Nuclear Energy Agency’s criteria.
The clause includes limits for radioactivity concentration that disposal facilities must meet. Only facilities with sufficiently low concentrations of radioactivity and negligible nuclear risk will be exempted from the requirement to hold nuclear third-party liability. The measures will help to ensure that the UK has sufficient disposal facilities for low and very low-level waste as the decommissioning of the UK’s legacy facilities accelerates and new nuclear projects are developed.
Clause 259 gives effect to schedule 20, which amends the Nuclear Installations Act 1965 to enable UK accession to a second international nuclear third-party liability treaty called the convention on supplementary compensation for nuclear damage. Nuclear third-party liability regimes aim to ensure that victims of a nuclear incident have access to adequate compensation. They also support investor and supply chain confidence by channelling liability to the nuclear operator and placing limits on their liability. The UK already has a robust nuclear third-party liability regime, being party to the Paris and Brussels agreements. The schedule 20 amendments to the 1965 Act that enable UK accession to the CSC will enhance the existing UK regime. Accession to the CSC enhances several of the benefits of our current nuclear third-party liability regime.
Government amendments 124, 125, 126, 127, 128, 129 and 132 make minor and consequential changes to schedule 20 to ensure the accurate implementation of the CSC. They will ensure that, following accession to the CSC, the UK does not inadvertently close off routes to compensation for nuclear damage. That applies to countries and victims that are currently able to claim under our existing nuclear third-party liability regime. To establish that, they seek to remove unnecessary consequential amendments as a result of the further amendments tabled. The changes also ensure that victims from a non-nuclear CSC state can claim under the appropriate conventions.
Dr Alan Whitehead (Southampton, Test) (Lab)
It is a pleasure to serve under your chairmanship again, Dr Huq. It is also a pleasure to hear the Minister rattle through the Government amendments at really high speed. As he identified, this part of the Bill is about civil nuclear sites. Among other things, it is about the repository that we do not have at the moment—in other words, we have not yet found a repository. It would be helpful if the Minister were able to tell us where we are in that search. Does he think the clauses take that process further forward? Or do they impede or lengthen that search?
I am sure the Minister recalls that, some while ago, his party indicated that no new nuclear development would be signed off and authorised until a repository had been located and established. Now, of course, two civil nuclear sites are under active development. Hinkley C is under active development—the reactor core is in place and connected works are under way. I visited the site a little while ago and it really is in a very advanced state, so we can anticipate that nuclear power will come on stream in, I guess, about 2026. I have been guessing that it will come on stream every year since 2017, but we hope that will happen.
Advance discussions and some initial site works have been done for Sizewell C. The reactor that is going in is essentially the twin of the Hinkley C reactor, and a lot of the site works are being replicated to speed up that process a bit. I have not visited Sizewell C yet because—rather like in the story I told a while ago about the underground cable—there is not a great to deal to see at the minute, but we can anticipate that we will have four new nuclear reactors onstream by the early 2030s. All that is taking place alongside a process for a nuclear repository—a final solution for the issue of long-term nuclear waste.
Alan Brown
Does the hon. Gentleman agree that there is a real paradox here? Allegedly the site rate for Hinkley Point C already has built into it the decommissioning costs for the storage of nuclear waste at the end? We are told that the estimates for Sizewell C will include all the costs of decommissioning and disposal up front, but how can EDF properly allow for those costs when it does not even have the new geological disposal facility that it needs to access?
Dr Whitehead
The hon. Member makes a good point. I would think that it is very difficult under the present circumstances. I was about to talk about that briefly. On both those sites the question arises, as he alluded to, of what we do with the nuclear waste from their operation, and what plans are in place for their eventual decommissioning at the end of their lifetime. Having served on various Bill Committees with me, the hon. Member will recall that in a recent nuclear Bill the question was raised of ensuring that a reasonably accurate built-in planning arrangement for decommissioning would be in the programmes that are agreed for nuclear power plants. The plans both for decommissioning and for what happens to nuclear waste as we go along are rather important to get right, given that there is no geological repository either under way, unlike the new nuclear power stations, or finally identified.
We could say that the provisions apply to something that is not really there. It may be there in a little while, or it may not be there for quite a while. Meanwhile, the two nuclear power stations are getting under way and being build. We know that quite a lot of the nuclear waste that has arisen from activities around Sellafield is stored in ponds, which are open to the surface and are safe to the extent that the nuclear waste is firmly stored underwater and there is no risk of it spilling out, except if someone planted a bomb in the pond. The pond would then disperse its contents, but obviously a geological facility is proofed against that occurring. The question is about what sort of planning the new nuclear power stations are likely to undertake for the storage of nuclear waste during their operation, and for its storage and disposal when they are eventually decommissioned.
Mark Jenkinson
May I suggest that the hon. Gentleman arranges a visit to Sizewell B to see exactly how we store new nuclear waste from relatively new facilities? Sizewell B was also under an obligation to deal with the cost of its waste in advance.
Dr Whitehead
I appreciate that Sizewell B is already storing nuclear waste, and I understand that it is doing so quite effectively, although I have not actually been to see it. Obviously, Sizewell B is the newest nuclear power station in the fleet, even though it is not that new. The storage of newer nuclear waste is pretty good and, as the hon. Member rightly points out, the amount of nuclear waste is much lower than in, say, the old Magnox reactors. The issue of the storage of nuclear waste is largely about legacy waste, not new waste, but that is not to say that a fair amount of both high-level and low-level nuclear waste will not arise in the operation of new power stations—Sizewell C and Hinkley C—and, as is clear in the amendments that the Bill makes to nuclear legislation, there is still an obligation, upon full decommissioning, to ensure that there is no hazard whatever on the site from any radiation. That is quite a high bar. I am sure that is something we would all support.
Do the planners and organisers of new power stations—Hinkley C and Sizewell C—plan for on-site storage over the next period and for forms of disposal upon decommissioning that are not geological disposal sites, as a contingency in the event that we still do not have a geological disposal site when those plants are up and running? Or do they rely on the idea that there might be a geological site coming along, although we do not quite know when? We think it might be in the not-too-distant future, but we have not quite got there yet.
As the hon. Member for Kilmarnock and Loudoun correctly points out, that creates quite a difficulty in planning contingency, when building a nuclear power station in the first instance, for decommissioning and the safe storage and disposal of waste nuclear material. I am not sure how that has been resolved in the protocols that have been agreed with the power stations that are under way at the moment, and nor am I exactly up to date with where we are on the geological disposal site. I think I am up to date to the extent that we have not actually found one yet and that, although we have offered favourable terms to several communities to host a nuclear geological disposal site, we have yet to receive support to get it under way.
It would help us to judge the clauses a little better to get a brief rundown of where we are in that process and what plans the Government have either to accelerate it or to determine it in the end, so that as we develop our new nuclear programme we can be reasonably certain that the protocols in place for disposal and decommissioning will be reliable in future. I would be grateful if the Minister would let the Committee know that information.
I have a query and concern of a rather different order about schedule 20. As the Minister said, schedule 20 is about accession to the convention on supplementary compensation for nuclear damage. That international convention, which eventually came into force in 2015, having been agreed, I think, in 1997, sets out the supplementary compensation for nuclear damage on an international tariff basis, so that there is consistency in how compensation is dealt with in the event of accidents or other problems at civil nuclear installations in different parts of the world. So far, so good—it is a good convention and it is important that we are part of it. Indeed, the schedule ensures that we are fully a part of that convention.
There is a bit of a puzzle here. The Government have inserted into the Nuclear Installations Act some proposed new subsections about
“further non-CSC-only claims to compensation”
and have denominated all those claims, and how the provisions about them work, in euros. That is in the Bill. Proposed new subsection (3BA), for example, states that
“the appropriate authority may be required to satisfy them up to the equivalent in sterling of 1,500 million euros”.
Proposed new subsection (3BB) states:
“To the extent that further non-CSC-only claims for compensation are CSC claims, the appropriate authority may be required to satisfy them up to the equivalent in sterling of the aggregate of 700 million euros”.
Proposed new subsection (3BC) states:
“To the extent that further non-CSC-only claims for compensation are both special relevant claims and CSC claims, the appropriate authority may be required to satisfy them up to the equivalent in sterling of the aggregate of 1,500 million euros”.
I do not know whether this is the secret explanation for why the then Secretary of State for Business, Energy and Industrial Strategy, the right hon. Member for North East Somerset (Sir Jacob Rees-Mogg), withdrew the Bill during its passage through the Lords—because he thought that this was a plot to move against Brexit—but it is a bit odd that compensation is denominated in euros, when of course the rate is variable and we would be in a position to vary claims according to the relationship of sterling to euros. In any event, this is an international convention. Perhaps there is a simple explanation, which I hope the Minister has in front of him, but we are signed up to an international convention, not a European convention.
It may be—I do not know—that these measures are a hangover from our membership of Euratom, which we of course de-acceded from at the time of Brexit. It be that if we were a party to Euratom, Euratom would take the place of national membership of the convention and therefore everything would be denominated in euros, but of course we are not now a member of Euratom—we are our own actor, as far as various conventions relating to nuclear safety and activity are concerned—yet we are still denominating things in euros.
While I do not wish to amend the Bill so that we do not denominate claims in euros—I am concerned that the Minister’s career may be in jeopardy if he does not do the job of creating instruments that get us out of being in thrall to the EU and euros—I gently point out that it looks a bit odd. Is there an intention at any stage to regularise that procedure?
Andrew Bowie
The hon. Member’s concern for my career is welcome, and I thank him for expressing it in such kind terms. However, I reassure him and every person in this room—and, indeed, anybody else who might be following the proceedings—that the Government are not secretly taking us into the eurozone through accession to the CSC. It is not an EU treaty. The reason that the sums involved are denominated in euros is simply that the moneys referred to in the treaties that we are currently signed up to—the Paris convention and the Brussels supplementary convention—are expressed in euros. This is just a continuation of the same process. The CSC is an international convention, and we are therefore using the same denominations as in those other conventions. I am sure the hon. Member will be relieved to hear that there is no secret plot. The CSC, of course, is under the International Atomic Energy Agency.
Dr Whitehead
So the Minister can state that all signatory countries to the CSC denominate their compensation in euros, just the same as we do.
Andrew Bowie
I would think that those that are signatories to the Paris and Brussels conventions may. I am led to believe very strongly that it is not the case that all signatories denominate in euros, but we do, as a result of our current membership of the Paris and Brussels conventions.
Dr Whitehead
So we do not have to denominate these things in euros, because a number of signatories to the CSC do not, and presumably their membership of the CSC is not in jeopardy as a result. Presumably, we would have the opportunity not to use euro denomination, like those other members, but we nevertheless we do.
Andrew Bowie
I feel that we may be going round in circles. The Paris convention is a base convention. That is why there is carry-over into the new convention that we are acceding to—the CSC—to maintain the denomination in euros. However, I would suggest that those who are seeking compensation do not really care in which denomination their compensation is paid as long as they receive it in the end for any damage that is caused. I think we have spent quite enough time debating the denomination in which people will receive compensation.
Dr Whitehead
I hope that my comments about the fact that we do not yet have a community that has said it will support a geological waste facility does not necessarily mean that there is not support for the facility to be sited in various parts of the country. It is just that, as I understand it, no authority has actually said, “Yes, we’re happy to have this facility in our area and we wish to proceed with it.” I assume that that is a factor in the question I was trying to get at: when can we expect a geological facility to be timetabled, developed and finally established, and to what extent does that timeline cohere in the context of the nuclear power stations that we are presently commissioning and will bring online in the future?
Andrew Bowie
I thank the hon. Gentleman for his question and for clarifying his earlier comments. As I said, we are at the beginning of the process of identifying a geological disposal facility. Surveys are under way. We are working with communities that have already expressed an interest and we will continue to do so as we move forward.
Question put and agreed to.
Clause 256 accordingly ordered to stand part of the Bill.
Clause 257
Decommissioning of nuclear sites etc
Amendments made: 120, in clause 257, page 223, line 15, leave out
“or a licensed disposal site”.
This amendment corrects a minor and technical drafting error in new s.3A of the Nuclear Installations Act 1965: a licensed disposal site (as currently defined for the purposes of the new section) is not a nuclear installation (within the meaning given by s.26(1) of the Act) and so the carve out in subsection (3) is not necessary.
Amendment 121, in clause 257, page 224, leave out lines 5 to 8.—(Andrew Bowie.)
This amendment, consequential on Amendment 120, removes the unnecessary definition of “licensed disposal site” from new section 3A of the Nuclear Installations Act 1965.
Clause 257, as amended, ordered to stand part of the Bill.
Clauses 258 and 259 ordered to stand part of the Bill.
Schedule 20
Accession to Convention on Supplementary Compensation for Nuclear Damage
Amendments made: 124, in schedule 20, page 374, line 9, leave out sub-paragraph (4).
This amendment and the Minister’s other amendments to Schedule 20 make minor and consequential changes to that Schedule to ensure accurate implementation of the CSC.
Amendment 125, in schedule 20, page 375, line 7, leave out
“, (3BA), (3BB), (3BC), (3BD) or (3BE)”
and insert
“or, in a case where the relevant reciprocating territory is also a CSC territory (as defined by section 16AA), (3BB)”.
See the Minister’s explanatory statement for Amendment 124.
Amendment 126, in schedule 20, page 377, line 4, at end insert—
“(c) a country mentioned in section 26(1B)(b),
(d) an overseas territory mentioned in section 26(1B)(c) or (d), or
(e) a relevant reciprocating territory.”
See the Minister’s explanatory statement for Amendment 124.
Amendment 132, in schedule 20, page 378, line 11, at end insert—
“(as amended or supplemented from time to time)”.
This amendment ensures that the definition of “the CSC” in Schedule 20 is to the Convention on Supplementary Compensation for Nuclear Damage as amended or supplemented.
Amendment 127, in schedule 20, page 379, line 13, leave out
“In section 26 of the 1965 Act (interpretation),”
and insert—
“(1) Section 26 of the 1965 Act (interpretation) is amended as follows.
(2)”.
See the Minister’s explanatory statement for Amendment 124.
Amendment 128, in schedule 20, page 379, line 27, at end insert—
“(e) after the definition of ‘overseas territory’ insert—
‘“the Paris Convention” means the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January 1964, by the Protocol of 16 November 1982 and by the Protocol of 12 February 2004;’.”
This amendment sets out a definition of the Paris Convention for the purposes of the amendments to the Nuclear Installations Act 1965 to which Amendment 129 relates.
Amendment 129, in schedule 20, page 379, line 27, at end insert—
“( ) In subsection (1A)(a)—
(a) in the opening words, for ‘a relevant international agreement’ substitute ‘the Paris Convention’;
(b) in sub-paragraph (i)—
(i) for ‘relevant international agreement’ (in each place it appears) substitute ‘Convention’;
(ii) for ‘agreement’ (in the third place it appears) substitute ‘Convention’;
(iii) for ‘agreement’s’ substitute ‘Convention’s’;
(c) in sub-paragraph (ii), for ‘relevant international agreement’ substitute ‘Convention’.”—(Andrew Bowie.)
See the Minister’s explanatory statement for Amendment 124.
The Chair
We now come to the Question that schedule 20, as amended, be the Twentieth schedule to the Bill. [Interruption.] Dr Whitehead, anything else?
Dr Whitehead
Sorry, Dr Huq, I was making a comment from a sedentary position.
The Chair
Chuntering is a bad habit.
Schedule 20, as amended, agreed to.
Clause 260
Provision of additional police services
Dr Whitehead
I beg to move amendment 162, in clause 260, page 230, line 23, at end insert—
“(d) the provision of the additional police services in question is within the competence and in accordance with the usual operational practices of the Civil Nuclear Constabulary”.
The Chair
With this it will be convenient to discuss the following:
Amendment 163, in clause 260, page 230, line 33, after “Secretary of State”, insert “or the Police Authority”.
Clause stand part.
Clauses 261 to 263 stand part.
Dr Whitehead
I remain quite amused that we smuggled a euro or two into our flexibility structure a moment ago. I am sure that that will go down in history.
Clauses 260 to 263 relate to the Civil Nuclear Constabulary. For those who do not know too much about that constabulary, as I must admit that until recently I did not—
Mark Jenkinson
I am sorry for taking up so much of the hon. Gentleman’s time this morning, but on that note, I have a drop-in with the Civil Nuclear Police Federation at 12 o’clock today in room Q in Portcullis House. I encourage all colleagues to attend.
Dr Whitehead
That is a very helpful intervention, because among other things it means that our business will have to be finished by 12 o’clock this morning to facilitate our collective visit to the drop-in to be better informed about the Civil Nuclear Constabulary.
The Civil Nuclear Constabulary was established under the 1965 Act. It has about 1,500 officers nationally; they occupy eight sites in England and three in Scotland. There is a headquarters in Culham, with a chief constable and so on. It is just like a police authority, only not geographically in one place. Its prime responsibility is not guarding nuclear sites—that is for the Ministry of Defence police and the Army, basically—but the security of the sites and all that goes with policing around nuclear sites. I think it has jurisdiction up to 5 km away from nuclear sites. I will be interested to hear more about this, but as I understand it, it is a very specialised force.
All members of the Civil Nuclear Constabulary are routinely armed and are trained to that extent. They undertake virtually no arrests. A couple of years ago, they made a total of 24 arrests; last year I think they made 10, two of which turned out not to be arrestable. In comparison, an ordinary police force of the same size, such as Dorset police, would make about 7,500 arrests in an average year. The profile of the Civil Nuclear Constabulary’s activity and specialities is very different from that of an ordinary police force.
That is not saying very much about the Civil Nuclear Constabulary, other than that it is a specialist force, has jurisdiction relating to nuclear sites and, as far as I understand it, does a very good job at what it is asked to do. The clauses before us are not about the Civil Nuclear Constabulary itself, but about the extent to which its officers might, as it were, be rented out to other police forces. “Rented out” sounds a rather pejorative way of putting it; it is not intended to be, but that is really the only way I can describe it.
The clauses concern the circumstances under which officers can be seconded—I would say rather more than seconded—to other forces, subject to a decision of the Secretary of State. Clause 260(1), which will amend the Energy Act 2004, states:
“The Constabulary may, with the consent of the Secretary of State, provide additional police services to any person”,
which basically means to any other police authority.
Clause 260 also states that the Secretary of State
“must not give consent for the purposes of subsection (1) unless satisfied, on an application made by the Police Authority”,
which I assume means the Civil Nuclear Police Authority, that the application
“is in the interests of national security”
and
“will not prejudice the carrying out of its primary function under section 52(2)”
of the 2004 Act.
The establishment of the Civil Nuclear Police Authority is a little anomalous, by the way. It was originally under the jurisdiction of the Department for Business, Energy and Industrial Strategy and has now effectively been transferred to the jurisdiction of the Department for Energy Security and Net Zero, rather than the Home Office, as is the case with ordinary police forces.
Dr Whitehead
If we go to room Q, we will find out more, but civil nuclear constables are special police. They are recruited and trained in a different way, their responsibilities are different, and the activities they undertake are normally different. That gives rise to questions about whether civil nuclear constables can easily be transferred to other police authorities. I assume that the rental agreement would state whether they should undertake the ordinary activities that constables in comparable authorities undertake. Are they to be rented out on the basis that they will become ordinary police constables in a particular authority, or on the basis that they have special arrangements? They clearly will not have special arrangements concerning arresting people, so I imagine that the arrest rate of a police authority that had recruited police constables from the Civil Nuclear Constabulary for additional services would not go through the roof. Such constables are routinely armed, so there is also a question about whether they would be disarmed for the purpose of undertaking their duties in other police forces.
The answers to such questions do not appear in the clauses before us. There is just an arrangement that police constables can be rented out, that compensation can be paid for them, that the Secretary of State can intervene if he or she thinks there are problems, and that the police authority has to be consulted about renting out and, as it were, de-renting—that is all that the clauses cover.
I do not necessarily imagine that our amendments will be pursued to a great extent, but I would very much like to hear the Minister’s response to what they are trying to do. On the renting out of police, amendment 162 would clarify that
“the provision of the additional police services in question is within the competence and in accordance with the usual operational practices of the Civil Nuclear Constabulary”.
That is, those police who are rented out are not to be turned into ordinary police, and the circumstances of the renting out should be within the competence of the Civil Nuclear Constabulary, so we should not reasonably expect them to turn out to be ordinary policemen in other police authorities.
Also, we want the Civil Nuclear Police Authority to be rather more involved in decisions as to whether to continue renting out, so amendment 163 would add the words “or the Police Authority” after “Secretary of State”. We are trying to tighten up both the concept and the practice of these arrangements, to ensure that there is respect for the fact that the Civil Nuclear Constabulary is a specialist service, with staff who have special skills, qualities and qualifications that may differ from those of police in other forces. Renting-out arrangements should respect that. We should be a little careful to ensure that we do not put a square peg in a round hole through this renting out, even though there may be circumstances where a freer interchange of police between the Civil Nuclear Constabulary and county police forces could take place, and would benefit both sides.
I appreciate that clauses 260 to 263 to some extent supply what was left out from the Energy Act 2004, in which the Civil Nuclear Constabulary was defined, but I am not sure that the clauses do the job completely, and make sure that the strengths and qualities of the Civil Nuclear Constabulary are properly reflected in any renting-out arrangement, and that its constables are not expected to do things for which they are not trained, or in which they do not have experience, if they are seconded to other constabularies.
Andrew Bowie
First, as the Civil Nuclear Constabulary will be in room Q, Portcullis House, at midday today, at a meeting hosted by my hon. Friend the Member for Workington, I pay tribute to all the officers and staff who serve so diligently in that constabulary. I had a very enjoyable and informative meeting with Chief Constable Simon Chesterman and the chairman of the Civil Nuclear Police Authority, Susan Johnson, a couple of weeks ago. The constabulary serves this country and does incredibly important work protecting our civil nuclear fleet. It is incredibly well trained for that.
The hon. Member for Southampton, Test, referred to “ordinary” policing. Yes, Civil Nuclear Constabulary officers are highly trained in armed policing, and in the specialties that they have to be trained in to carry out their job, but they are also trained in what he described as ordinary—unarmed—policing, and are held to stringent College of Policing standards, such as those set out in the authorised professional practice armed policing guidance. That is consistent across the organisation, regardless of which site an officer is deployed to, and that would remain the case if there was any expansion of the constabulary’s services.
The Secretary of State must consult the chief constable before providing consent to the constabulary providing additional services. That ensures that the views of the person who is arguably best placed to assess competence and operational arrangements is taken into consideration. Should the CNC take on additional responsibilities outside the civil nuclear sector—we have been talking about that today—the chief constable will be responsible for ensuring that any additional training requirements are identified and delivered. I hope that addresses the concerns of the hon. Member for Southampton, Test, on that point.
The Civil Nuclear Constabulary is a crucial component of our civil nuclear security system, as the specialist armed police force dedicated to the protection of our most sensitive civil nuclear facilities, and of civil nuclear material in transit. In the evolving national security and energy landscape, we want to ensure that we are making the best use of our resources to protect the UK’s essential services and critical national infrastructure, as well as our wider national security interests.
Dr Whitehead
The Minister addressed the overall subject of the Civil Nuclear Constabulary well, but I do not think that he entirely addressed our questions, which were not about the competency of the constabulary, or its establishment or function. Our questions were about the new provision that the Government are seeking to introduce regarding the extent to which police personnel could perform a wider function, depending on circumstances in the Civil Nuclear Constabulary.
By the way—this may be a reasonable topic for discussion in a drop-in—I would not like the Civil Nuclear Constabulary to be assumed to be an ancillary police force with some special responsibilities. It is clearly a very specialised and highly trained police force with a particular set of duties. By and large, it should have the necessary number of police constables to perform its duties. If over time—this may be something for the Department to consider, since it has special responsibility for the constabulary—the general conclusion is reached that this is a police force to which, to put it a bit unpleasantly, other forces can help themselves when they are in periods of stress, that would not be very good for the future of the constabulary.
There is another alternative. As the Minister mentioned, the police authority has to carry out three-year reviews. If during those reviews it is thought that substantial numbers of the police force had been rented out over the review period, there may be a temptation for a future Secretary of State—not present Ministers; I am sure they have a very close eye on what the Civil Nuclear Constabulary is doing and how it carries out its role—to say, “The Civil Nuclear Constabulary does not need all these people. Let’s reduce its size. Let’s cut it down to a smaller number, because that will do for its operations—we can see that it is renting out quite a lot of its force for other purposes.” That would be a retrograde step.
The Minister prayed in aid, as a reason not to pass the amendment, proposed new section 55A(4)(c) of the Energy Act 2004, in which the Secretary of State must judge that
“it is reasonable in all the circumstances for the Constabulary to provide those services.”
That is a bit of a problematic, I would have thought; how do we judge what is
“reasonable in all the circumstances”?
For that to apply, the officers must be “surplus to requirements”, but most reasonable judgments would be, “Well, they are not surplus to requirements. They are a key part of the Civil Nuclear Constabulary and they are doing a good job.” I would therefore expect that there would be a fairly high bar as to what was
“reasonable in all the circumstances”,
but that is not defined. Our amendment attempts to define that effectively, by saying that the release of these officers would be
“within the competence and in accordance with the usual operational activities of the Civil Nuclear Constabulary.”
We do not want to press the amendments to a vote, but I would like the Minister to give some assurance on the record that the
“reasonable in all the circumstances”
judgment would, in practice, be a full and close partner to the definition we attempted to apply to the leasing arrangement through amendment 162. Unless that is stated on the record, we will worry about the temptation to play fast and loose with the Civil Nuclear Constabulary when there are pressures elsewhere.
Andrew Bowie
To clarify, the expansion of the CNC will not in any way affect the CNC’s core mission. We are absolutely not playing fast and loose with the Civil Nuclear Constabulary. The CNC’s priority and core function will remain the protection of civil nuclear sites and material, in line with the UK’s international obligations. Before granting consent for the CNC to take on additional services, the Secretary of State must be satisfied that the CNC’s core nuclear supervision will not be prejudiced in any way. This legislation includes an ongoing statutory duty for the CNC’s chief constable to ensure that that remains the case. I hope the hon. Member will withdraw his amendment on that basis.
Dr Whitehead
I thank the Minister for that intervention. Following the assurances he has given on that basis, among others, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 260 to 263 ordered to stand part of the Bill.
Clause 264
Civil nuclear industry: amendment of relevant nuclear pension schemes
Kerry McCarthy (Bristol East) (Lab)
I beg to move amendment 103, in clause 264, page 234, line 31, at end insert
“, or on benefits in deferment or pensions in payment;”
This amendment means that the Secretary of State may not put a cap on revaluation of benefits in deferment or pensions in payment.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clauses 265 to 269 stand part.
Kerry McCarthy
It is a pleasure to see you in the Chair, Dr Huq. These clauses relate to nuclear pension schemes, and the amendment would provide certainty that Nuclear Decommissioning Authority pensions would not be capped. There is some ambiguity in the drafting of the Bill, and the door has been left open for the introduction of regulations to cap pension increases when that is not part of what has been agreed in the past among Government, unions and nuclear workers.
I say the door has been left open for such regulations because subsection (3) (c ) of the clause specifies that only increases for revaluation—that is, active deferred members—cannot be capped. It does not mention pensions in payment. The wording is
“not involving imposing a cap on any revaluation or revaluation rate”.
The amendment would mean that the Secretary of State could not put a cap on revaluation of benefits in deferment or pensions in payment, as well as the other schemes I have mentioned.
The provision as it stands is contrary to the heads of terms agreement between BEIS and the NDA, which explicitly states that pension increases will be in line with inflation, as measured by the consumer prices index, with no reference to any cap. It is also important to note that, although members of recognised trade unions in the NDA group voted in favour of the reforms that these measures facilitate, I am told that there was by no means an overwhelming endorsement. Many voted in such a way because they feared the Government would impose even worse reforms, which had been threatened, if they did not agree to what is now on the table. They felt that that was the best deal they could get, but they feel that the promises made to them have been broken and they are not happy. Given that, it is even more important that we ensure that the Bill reflects the compromise agreement that was reached.
It is also wrong to say that these reforms would bring pension provision across the NDA group into line with wider public sector pensions, which I think is what the Minister in the Lords said. Those pension schemes underwent much more radical reform long before Lord Hutton’s review of public sector pensions, and they have been closed to new entrants for many years. Lord Hutton recommended that public sector pension accrual remain on a defined-benefit basis, but pension provision across the NDA group is mostly on a defined-contribution basis. I have been approached by representatives of trade unions who are eager to meet the Minister to ensure that reforms are fully consistent with Lord Hutton’s review. I do not know whether the Minister can offer today to meet those representatives, so I can take that back to them.
An amendment is necessary to remove any doubt about the status of nuclear workers’ pensions. I am sure we all agree that the effectiveness of the Civil Nuclear Constabulary is essential to maintain the UK’s nuclear security, and that the work of everyone at the NDA is really important, as we have already heard this morning. Those people are integral to keeping the public safe, and that should be recognised when legislation is being determined.
I hope the Minister accepts that the amendment has been tabled in a constructive spirit. It is designed to remove any uncertainty, and I hope he will accept it.
Andrew Bowie
I am searching in vain for a second Minister to take some of this Bill. Unfortunately, they do not seem to be available. I thank the hon. Member for Bristol East for moving her amendment and allowing us to debate an important issue, especially for employees of the Nuclear Decommissioning Authority. I recently had a constructive meeting with trade unions representing workers from the NDA and was happy to discuss the issues they are concerned about in depth and specifically the one we are debating today.
The Nuclear Decommissioning Authority agreed with unions as part of negotiations that the consumer price index should be used for revaluations and that it should not be capped. Both the reference to the CPI and that revaluations should not be capped are referenced in the clause. As the clause sets out, revaluations include pensionable earnings, benefits in deferment and pensions in payment. Pensionable earnings relate to the pension payments contributed by employee and employer while they are working. Benefits in deferment are those benefits that have been built up by an employee who has left the pension scheme but has not yet accessed it. Pensions in payment relate to those receiving their pension.
The Government are content, therefore, that the legislation as drafted does not exclude benefits in deferment and pension in payment from the non-capping of the revaluation of earning by CPI. It is therefore in line with the agreed scheme. However, I am happy to put on record that in the new scheme, both benefits in deferment and pensions in payment will be uprated by CPI and will not be capped. While I appreciate the hon. Member for Bristol East raising the issue and the importance of ensuring that those with benefits in deferment and pensions in payment do not have their revaluations capped, I do not think the amendment is necessary.
Kerry McCarthy
Can the Minister confirm that when he discussed this with the trade union representatives, they were happy to accept his assurances that that is what the Bill says? Certainly, they have not communicated that to us. As far as I am concerned, they still believe that getting our amendment into the Bill is still important.
Andrew Bowie
That specific element was not discussed or brought up in the meeting, but I am happy to meet trade unions again to continue the discussion on the matter.
Kerry McCarthy
If there is some ambiguity, is there a reason why he feels that putting a clarification in the Bill to spell it out and give those reassurances would not be acceptable? The amendment does not seek to change his position as I understand it; it just seeks to make sure that that is clear.
Andrew Bowie
I understand why some Members, including the hon. Lady and trade unions, would find that helpful. We do not believe it is necessary because I have stressed today on the record—it will be in Hansard—that it is the Government’s position that those benefits in deferment and pensions in payment do not have revaluations capped and that they will be uprated by CPI. We do not think it is necessary because that is already the Government’s position. It is on the record and I am happy to stand by that.
Turning to clause 264, the 2011 report by Lord Hutton of Furness started the Government on the road to the reform of public sector pensions. While the Public Service Pensions Act 2013 made a large number of reforms, it did not cover all public sector bodies, including those within the NDA group. The NDA is the statutory body responsible for the decommissioning and safe handling of the UK’s nuclear legacy, with 17 sites across the United Kingdom, including Sellafield. Even though the NDA was created in 2005 via the Energy Act 2004, many of its sites have been operating since the middle of the 20th century. That lengthy history has led to a complicated set of pension arrangements, which include two pension schemes that, while closed to new entrants since 2008, provide for final salary pensions and are in scope for reform. They are the combined nuclear pension plan and the site licence company section of the Magnox Electric Group of the electricity supply pension scheme.
In 2017, the Government and the NDA engaged with trade unions to agree a reformed pension scheme that was tailored to the characteristics of the affected NDA employees. That resulted in a proposed bespoke career average revalued earnings scheme which, following statutory consultation with affected NDA employees and a ballot of union members, was formally accepted by the trade unions. Subsequently, a formal Government consultation was launched in 2018, with the Government publishing a response in December of that year confirming the proposed change.
The reformed scheme still offers excellent benefits to its members. Notably—and unusually compared with other reformed schemes—it still includes provision for members to retire at their current retirement age. For nearly everybody, that will be 60 years old. However, the complicated nature of the pension schemes, in the context of the statutory framework that applies to pension benefits across the NDA estate, means that specific legislation is needed to implement the new scheme.
Clause 264 provides the Secretary of State with the power to make secondary legislation designating a person who will be required to amend the provisions of a nuclear pension scheme. That is necessary, as at the current time the scheme rules limit the NDA’s ability to make changes to pension scheme arrangements. Clause 264 uses the phrase “relevant nuclear pension scheme” to describe the types of schemes that a designated person could be required to amend by virtue of that amendment. Clause 265 explains what is meant by that phrase. Clause 265 also clarifies the UK Atomic Energy Authority pension schemes and pension schemes that benefit persons specified in the Public Service Pensions Act 2013 are not relevant pension schemes.
Clause 266 relates to the provision of information. In order to implement the proposed pension reforms, the NDA—and, in the case of the MEG-ESPS, Magnox Limited—will need information from others. Clause 266 gives a person who has been required to amend a relevant nuclear pension scheme the power to require persons holding any information they might reasonably require to provide that information. That could include the number of members in a pension scheme, and the salaries and ages of those members.
Data protection legislation may still prevent the information from being shared. The clause specifies, however, that in making that assessment, the requirement to disclose imposed by the clause must be taken into account. The clause also provides that disclosure does not constitute a breach of confidence or breach of any other restriction on the disclosure of information.
Clause 267 sets out definitions relevant to the clauses about amendments of relevant nuclear pension schemes. Clause 268 relates to the protection that is in place that would currently block any change of pension. Although the reformed pension to be provided to affected NDA workers is still excellent, it has always been clear that the reforms to public sector pensions would result in lower levels of benefits to members than is currently the case. Although that is the acknowledged effect of Government policy in this area, it does bring it into conflict with existing legislation. Both schedule 8 of the Energy Act 2004 and regulations made under schedules 14 and 15 of the Electricity Act 1989 effectively mean that any change to NDA pensions must be “no less favourable”.
Clause 268 effectively expands a power made under an earlier clause, providing the ability for regulations made by the Secretary of State to amend or disapply schedule 8 of the Energy Act 2004 and regulations made under schedules 14 and 15 of the Electricity Act 1989. Given that this is not a hybrid Bill, we believe it is more appropriate for those powers to be exercised via regulation rather than primary legislation.
Clause 269 relates to the procedure for the regulations under this chapter. The Government believe it is right and proper for regulations under this chapter to be subject to the affirmative procedure. We also believe that these regulations should not be subject to the hybrid instrument procedure. There has been considerable consultation with those affected, and the policy is in line with pension reform across the public sector.
Kerry McCarthy
I welcome the Minister’s assurances and his offer to meet the unions to discuss this point. I have spent a lot time looking at the wording. Although I agree that it could be interpreted in the way the Minister says, that is arguable. I still feel it would be best to have clarity in the Bill and, therefore, would like to press the amendment to a vote.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
Clauses 271 to 273 stand part.
Government new clause 52—Principal objectives of Secretary of State and GEMA.
Andrew Bowie
I will start with the good news and first speak to clause 271 and Government new clause 52. The Government have maintained the view that Ofgem’s principal objective makes its role in achieving the net zero target clear. However, we have carefully considered the effect of clause 271 with Ofgem and sought legal advice to ensure that the Lords amendments would not impact the hierarchy and intended effect of Ofgem’s duties. We are therefore content to clarify Ofgem’s duties by making specific reference to the net zero target in the Climate Change Act 2008.
The Government new clause is equivalent in substance to clause 271, but includes some minor drafting changes to ensure that the duty works in practice. First, it clarifies the authority’s role in supporting, rather than enabling, the Government to meet their net zero target. Secondly, it clarifies the net zero targets and carbon budgets specific to sections 1 and 4 of the 2008 Act. The new clause does not change the intention of clause 271. I thank my right hon. Friend the Member for Kingswood (Chris Skidmore) for the recommendation in his report entitled “Mission Zero”, Baroness Hayman in the other place and the energy industry for working constructively with the Government to bring forward this significant change.
I now turn to clause 270, which was also added to the Bill in the Lords on Report. The clause would prohibit the opening of new coalmines and extensions to existing coalmining in Great Britain. After carefully considering this addition, I tabled my intention to oppose the clause standing part of the Bill on 17 May. The Government are committed to ensuring that unabated coal has no part to play in future power generation, which is why we are phasing it out of our electricity production by 2024. Coal’s share of our electricity generation has already declined significantly in recent years—from almost 40% in 2012 to around 2% in 2021.
Alec Shelbrooke (Elmet and Rothwell) (Con)
Does my hon. Friend the Minister agree with me that although, as he rightly says, electricity production by coal has been as little as 1% and huge amounts of work can be done to reduce that carbon dioxide output, it is vital, with electricity generation, to maintain a baseload? As we saw recently when a gas turbine power station was turned off and we were relying on wind power, the baseload could not be maintained and the system tripped out for a large area of the country. Does the Minister agree with me that the objectives are fine, but physics and reality come in at some point?
Andrew Bowie
I could not agree any more wholeheartedly with or put it any better than my right hon. Friend. For energy security reasons, it is vital that we maintain all options that are open to us. That does not in any way impede, get in the way of or stand contrary to our overarching net zero ambition.
Alan Brown
On that point, as the Minister agrees with his colleague, is the Minister saying that he needs to keep coal generation as an option, on the table, beyond the planned phase-out date? Because that is what I just heard.
Andrew Bowie
No, the planned phase-out date of October 2024 is extant and something that we are working towards. However, it is important that we ensure that, as part of our electricity baseload, we have access to the relevant energy sources so that we ensure this country’s energy security. Given the situation with energy security in central Europe and, indeed, worldwide, that should be understood by everyone.
Alan Brown
If the Government allow the licensing of a new coalmine, how will that help energy security? The Minister has just committed to phasing out the use of unabated coal by October 2024, so, by the time a new coalmine is operational, it certainly will not add any energy security.
Andrew Bowie
The hon. Gentleman heard my answer to that very point. I do not think I need to labour it much more.
Dr Whitehead
Is the Minister saying that we should have access to those supplies in order to back the system up? And by the way, I do not think that tripping out, which came up a little while ago, was just about coal.
Dr Whitehead
It was a gas turbine that tripped out. It was not about coal, as far as I understand.
Is the Minister saying that we should have access to those supplies until, but not after, 2024? We will not have anywhere to burn them after 2024 because the intention is to have phased out coal by then. What exactly is the Minister saying? By the way, coal is unlikely to be burned in a UK power establishment in the future, if such establishments survive.
Andrew Bowie
This is the Energy Bill, so I understand why the focus has been on energy and energy security. However, coal is not just required for energy purposes, and that is another reason why we will vote against the clause.
Mark Jenkinson
I have a constituency interest in a new coalmine in a neighbouring constituency in west Cumbria. Its planning condition is to produce metallurgical coal, which is used in steel plants. The Minister was recently in Sweden, as I was just a couple of months ago. We hear a lot about HYBRIT—hydrogen breakthrough ironmaking technology—which is a green steel project. I was relieved to hear that HYBRIT requires coking coal, even in electric arc furnaces with direct reduced iron, and that it will continue to be used for some time. Does the Minister agree that we should not close off avenues for UK-sourced coking coal?
Andrew Bowie
I entirely agree with my hon. Friend. His expertise in the area, his experience in Sweden and his constituency interest have proved invaluable in ensuring that everybody is fully aware of the situation, the technology and, indeed, the science behind all of this.
Even when we phase out coal power stations, domestic demand for coal will continue in industries such as steel, cement and heritage railways, and that demand can be met by domestic resources on existing lines of deployment. A full prohibition of coal extraction, regardless of the circumstances or where that coal is going to be used—be that in steel, cement or a heritage railway—is likely to prevent extensions to existing operational mining, even where an extension would enable site restoration or deliver public safety benefits; cut across heritage mining rights in the Forest of Dean, which are important to its tourism offer; and, importantly, prevent domestic coal extraction projects from progressing that are seeking to supply industries that are still reliant on coal.
Andrew Western (Stretford and Urmston) (Lab)
The Minister has set out a series of perceived advantages. On the flipside, the proposed new coalmine at Whitehaven would emit 9 million tonnes of carbon dioxide each year, so does he agree that that would have serious implications for our net zero ambitions?
Andrew Bowie
I very much question the figures that the hon. Gentleman has just put to the Committee. I stress that it is really important that we ensure that the industries in the United Kingdom that rely on coal are able to rely on a domestic source for that coal—British coal—and not on imports from overseas, which will actually increase carbon emissions.
The Chair
Order. May I just point out that some of these interventions are getting a little bit lengthy? We have a whole debate—one other Member has already indicated that she wants to speak—so colleagues can make speeches if they wish.
Alan Brown
I will be brief, Dr Huq. On the Minister’s point, is it not the case that up to 85% of the coke that will be exported to the EU is coming out of coal in Cumbria? Does he agree with the figures of Lord Deben, the chair of the Committee on Climate Change, which state that the new Cumbrian coal mine will emit about 400,000 tonnes of CO2 a year, equivalent to 200,000 cars being added to the road?
Andrew Bowie
Now I am getting confused, because I have some figures coming from over there and other figures coming from over there. It is important that we ensure that industries that rely on a source of coal are able to rely on domestic sources of coal. This clause, proposed by the Labour party, would prevent that from happening, harm future investment, harm jobs and harm our progress.
Katherine Fletcher (South Ribble) (Con)
This is one of the most jaw-dropping moments I have ever had in my parliamentary career. The Scottish National party and the Labour party are arguing against domestic jobs, our proud coalmining heritage and energy security for this country. Is that not flabbergasting?
Andrew Bowie
I am actually close to speechless. Labour likes to describe itself as the party of the workers. Well, it is anti-workers, anti-jobs and anti-investment in British industry.
Andrew Bowie
That is demonstrated by the clause, and that is why I believe that now is not the right time to make the changes suggested by the Labour party. We will oppose the clause.
Finally, I will address clauses 272 and 273 on community energy, which I also oppose. I recognise that several Members spoke in support of these clauses on Second Reading. However, the Government continue to believe that this is a commercial matter that should be left to suppliers, and further work is needed before considering whether primary legislation is needed.
In evidence submitted to the Committee and published on 13 June, Energy UK set out its in-principle support, much like the Government, for community energy, and recognised the role that it will play in our energy system. However, it asks that
“these measures be removed to give the Government, the regulator, and the industry time to fully consider the best approach to integrating community energy effectively, protecting consumers and preventing additional costs being added to all consumers’ energy bills on behalf of a currently small portion of the population.”
Kerry McCarthy
Does the Minister accept that the wording inserted in the Bill by the Lords reflects the exact same wording of a private Member’s Bill—I think it is the Local Electricity Bill—that more than 120 Conservative MPs previously pledged to support? I checked to see whether any members of the Committee supported that Bill, and apparently the hon. Members for Hyndburn and for West Aberdeenshire and Kincardine were among those 120 MPs. I think the rest of the Committee gets off the hook on that. Would the Minister like to explain why he has changed his mind?
Andrew Bowie
The hon. Lady is hearing me explain at great length why the position of the Government is what it is.
Clause 272 seeks a minimum export guarantee scheme. Community energy projects can already access power purchase agreements, which are arrangements for the continuous purchase of power over a given period with market-reflective prices. For example, Younity, a joint venture between Octopus and Midcounties Co-operative, already purchases electricity from more than 200 community groups of all sizes. It has PPAs of varying contract lengths, from six months to five years. Renewable Exchange has also enabled more than 100 community projects to sell electricity via PPAs since 2018.
When we introduced the smart export guarantee, we consciously moved from a consumer-funded subsidy model to a competitive market-based system with cost-reflective pricing. That was in line with the vision to meet our net zero commitments at the lowest net cost to UK taxpayers, consumers and businesses. Introducing a fixed price would be a step backwards, as it requires all energy consumers to pay more than the market price for electricity to subside local communities that benefit from community energy projects. An electricity export guarantee indexed to the wholesale price is inconsistent with the Government’s aim to decouple renewable generation from a wholesale price linked to the marginal cost, usually fossil fuel generation or gas. A static export price could also dampen price signals needed in the system, for example, in the use of intraday batteries.
History suggests that such a support scheme would have only a minimal impact on deployment. For example, deployment of community energy projects over the final five years of the much more generous feed-in tariff subsidy scheme was still very low. These projects are also typically more expensive than larger utility-scale renewable projects, with small solar and onshore wind projects between 50% and 70% more expensive. The proposal would be mandatory for suppliers with more than 150,000 consumers, and would therefore introduce a huge new administrative burden. Suppliers would face the additional one-off costs of putting in place process and IT infrastructure, as well as ongoing costs of managing the scheme, which would be passed on to consumers in higher bills. It is likely that it will disproportionately impact smaller suppliers, sitting just above the 150,000 customer threshold.
Similarly, on clause 273 it is the Government’s view that a local tariff is unlikely to result in a better price for consumers. Suppliers would incur potentially significant costs in setting up and delivering the scheme. They would also have to recoup the additional costs, which we anticipate would be via the service fee and would therefore be recoverable only from local consumers. A small-scale low-carbon generator is also unlikely to guarantee a supply of electricity to local consumers at all times. Suppliers would have to buy additional wholesale energy to cover all local consumer demand, while continuing to charge for all other supply costs incurred. The local tariff would also need to reflect the export price paid to the generator. Presumably that is intended to ensure that local consumers benefit from cheaper export prices, but it would create an unintended outcome whereby higher export prices benefit the generator and increase the tariff price.
I hope that I have explained at length why I, as the Member for West Aberdeenshire and Kincardine, am espousing this position. I reassure the Committee that I am working with my officials to explore what other credible options are available to support the community energy sector. Indeed, work continues as we speak. We are taking these issues seriously, but for the reasons that I have provided I will oppose the clauses.
Alan Brown
The Minister says that he is working with his officials, but assuming that the Government majority on the Committee will reject clauses 272 and 273, what opportunity is there for mechanisms to be introduced to support local energy?
Andrew Bowie
As much as I know that we are all aghast at the thought of the Committee finishing and the Bill going back to the House, that will not be the end of our journey together. We will gather again on Report and Third Reading, so there will be ample opportunity for the hon. Gentleman to speak on the Bill at that stage, and for any changes that might be required to it.
The Chair
There is a drop-in session in room Q in Portcullis House at noon, but it is entirely voluntary.
Ordered, That the debate be now adjourned.—(Joy Morrissey.)
Digital Markets, Competition and Consumers Bill (Fifth sitting)
Tuesday 20th June 2023
(10 months, 3 weeks ago)
Public Bill CommitteesRead Full debate Digital Markets, Competition and Consumers Bill 2022-23 View all Digital Markets, Competition and Consumers Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 20 June 2023 - (20 Jun 2023)
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Chair
To avoid anybody expiring, please remove your jackets, if that would help. Please ensure that electronic devices are in silent mode. No food or drink is permitted during the sittings of the Committee, except for the water provided. Hansard colleagues would be incredibly grateful if Members could email their speaking notes or pass their written speaking notes on to the Hansard colleague in the room.
Today, we begin line-by-line consideration of the Bill. The selection list for today’s sitting is available on the table in front of me. It shows how the selected amendments have been grouped together for debate, and I urge colleagues to examine it carefully, because some clauses are grouped together, which will make things a little more complicated as we move forward. Amendments grouped together are generally on the same or a similar issue. Please note that decisions on amendments do not take place in the order they are debated, but in the order that 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. Decisions on new clauses will be taken once we have completed consideration of the existing clauses of the Bill. Members wishing to press a grouped amendment or new clause to a Division should indicate when speaking to it that they wish to do so. If colleagues want to speak to an amendment or take part in a stand-part debate, they should indicate that to me in the normal way, so that I can ensure that everybody who wishes to participate does so.
Clause 1
Overview
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Science, Innovation and Technology (Paul Scully)
It is a pleasure to serve under your chairmanship, Dame Maria, and to address the Committee today. I thank all its members for volunteering to serve on this Committee, and I look forward to our discussions over the coming days and weeks.
Part 1 of the Bill provides for the pro-competition regime for digital markets. This is a targeted regime that will establish new, more effective tools for the Competition and Markets Authority and, in turn, the digital markets unit. That will allow them to proactively drive more dynamic digital markets and prevent harmful practices.
Clause 1 is purely introductory and provides an overview of part 1. I hope that hon. Members agree that this clause will therefore assist readers to navigate this part. I will briefly explain some of the language I will use in this series of debates. First, the Committee will hear me referring to the digital markets unit, or the DMU, which is a new administrative unit of the Competition and Markets Authority—the CMA. While the legal functions of the regulator under part 1 of this Bill remain those of the CMA, in practice it is likely that most of the responsibilities under part 1 will be carried out by staff within the DMU. Therefore, for consistency and ease, I will be referring to the DMU throughout the debates. The exception to that is the merger functions in chapter 5 of part 1, which will generally be carried out by those staff who deal with mergers more broadly.
Secondly, I will use the words “firm” and “undertaking” interchangeably. “Undertaking” is the word used in this part of the Bill and is an economic concept that is already used in the Competition Act 1998. The concept of an undertaking covers any person engaged in economic activity, regardless of its legal status and the way in which it is financed. “Persons” may be corporate bodies, and an undertaking may encompass multiple corporate bodies when they form a single economic unit under competition law. The Government’s view is that an undertaking will often encompass the entirety of the relevant corporate group, but it may sometimes be a smaller subset of the corporate group.
I hope that that helps to clarify the language that the Committee will hear over the coming days.
Alex Davies-Jones (Pontypridd) (Lab)
It is a genuine privilege to serve under your chairship, Dame Maria. I look forward to the weeks ahead. I imagine that the debates will be healthy but, in a real rarity for this place, relatively collegiate too. With that in mind, I will keep my comments on this clause brief. We all agree that this is an important that we will not seek to delay. Competition is vital to encourage innovation, and consumers deserve the best possible protections and value. We all want to get this right, and the Minister knows that. I want to say clearly that the Opposition welcome the Bill in principle. However, it will come as no surprise that we have some concerns that the Bill is lacking in some areas and could go further. We will explore those concerns in the hours and weeks ahead, and I look forward to debating the Bill further.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Designation of undertaking
Alex Davies-Jones (Pontypridd) (Lab)
I beg to move amendment 55, in clause 2, page 2, line 25, at end insert—
“(5) An SMS investigation in subsection (4) may take account of analysis undertaken by the CMA, on similar issues, that has been the subject of public consultation, within the five years prior to Royal Assent of this Act.”
This amendment and Amendments 56 and 57 ensure that the CMA is able to draw upon analysis and consultations that took place before the passing of this Act.
The Chair
With this it will be convenient to discuss the following:
Amendment 56, in clause 13, page 7, line 18, at end insert—
“(3) Consultation on matters relevant to a decision under section 14(1) undertaken before this Act is passed is as effective for the purposes of subsection (1) as consultation undertaken after it is passed, unless the CMA considers that there has been a material change of circumstances.”
See statement for Amendment 55.
Amendment 57, in clause 47, page 26, line 10, at end insert—
“(3) Consultation on matters relevant to a decision under section 14(1) undertaken before this Act is passed is as effective for the purposes of subsection (1) as consultation undertaken after it is passed, unless the CMA considers that there has been a material change of circumstances.”
See statement for Amendment 55.
Alex Davies-Jones
With your permission, Dame Maria, I will make some general points about clause 2 before turning to the amendments. Clause 2 gives the CMA the power to designate undertakings, as defined in clause 115, as having strategic market status in respect of a digital activity. Of course, only those undertakings designated with SMS will be subject to the digital markets regime.
The clause is vital in establishing the CMA’s new functions that will allow it to regulate digital markets. We welcome efforts to put the previously established digital markets unit on a statutory footing, and we see it as a key step in establishing the CMA’s responsibility for overseeing digital businesses of a certain size and status operating in the UK. As colleagues will note, this part of the Bill is seen by many as the UK’s version of the EU Digital Markets Act as it has many similarities to it. For an undertaking to be designated as having SMS, the following conditions need to be met: the undertaking carries out a digital activity, which means either providing an internet service or digital content; that digital activity is linked to the UK; and the undertaking must have substantial and entrenched market power. The latter condition requires the CMA to look five years ahead and imagine future developments. The undertaking must also have a position of strategic significance in that it generates £25 billion in global turnover or £1 billion turnover in the UK.
We see those as sensible barometers for SMS status, but I want to take this brief opportunity to press the Minister further on the CMA’s ability to look to the future. He will know—and, I am sure, agree—that the sectors we seek to regulate are often incredibly fast moving. We will debate this further shortly in clause 5, but I would be grateful for the Minister’s thoughts on this particular point, especially around his assessment of the CMA’s capacity and ability to essentially predict how changes across industries will emerge.
Amendments 55 to 57 would ensure that the CMA would be able to draw on analysis and consultations that took place before the passing of this Act. The amendments are critical to ensuring that the CMA is able to draw on the work that it did in shadow form once the Bill lands on the statute books. We cannot risk further delay to implementing this regime when we already know that the lack of competition regulation is having a significant impact on both consumers and businesses.
Last week we heard evidence from Professor Myers, who is a visiting professor in practice at the London School of Economics and Political Science. He had some interesting comments to make on the timeline for the Bill so far which I feel are worth reiterating here. Professor Myers said that
“this legislation has taken a while to come to fruition. At one point the UK looked like it was going to legislate before the European Union, but the CMA has done a lot of preparatory work, and I am sure that it recognises that it needs to hit the ground running as soon as this legislation is passed.”––[Official Report, Digital Markets, Competition and Consumers Public Bill Committee, 13 June 2023; c. 46, Q72.]
That is why the amendments are so important, because they would allow the CMA to reflect on the lessons learned in the various consultations and analysis that it has already undertaken. I hope the Minister can see that these simple amendments would make sense for all involved.
The Chair
Before we proceed, I note that the shadow Minister has efficiently covered clause 2 stand part, so perhaps the Minister could also do so in his response, in the interests of time.
Paul Scully
Amendments 55 to 57 relate to ensuring that the DMU will be able to use, in its digital markets investigation, evidence that was gathered and consultations that were undertaken before the Bill becomes an Act. I am grateful for the opportunity to explain this really important aspect of the regime.
To provide some context, clause 2 will give the DMU the power to designate undertakings with strategic market status with regard to a specific digital activity. It sets out that, to designate a firm with SMS in respect of a digital activity, the DMU will need to be satisfied that a number of conditions detailed in clauses 3 to 8 are met. SMS designation is the gateway into the digital markets regime. Only the very small number of firms that are designated will be subject to the rules of the regime. The DMU will only be able to designate a firm following an evidence-based SMS investigation, which must include a public consultation that allows the firm itself and wider stakeholders to provide input on the designation decision. I explained earlier that I would use “firm” and “undertaking” interchangeably. Accordingly, when I say a “firm with SMS” or an “SMS firm”, that is the same thing as a “designated undertaking”.
Turning to amendment 55, I strongly support the point that the CMA should not have to repeat work that it has already done. It is for the DMU to decide what is and is not relevant analysis to its investigations, and it should be able to draw on insight from previous analysis or consultations when carrying out an SMS investigation where it is appropriate and lawful to do so. I am happy to confirm that the Bill does not prevent the DMU from doing that, provided that it acts in accordance with general public law principles, which would, for example, require it to ensure that evidence remained relevant. As such, I do not believe this amendment is necessary to ensure the DMU can reflect its existing evidence, understanding and expertise in its designation investigations. Further, the amendment could restrict the DMU’s ability to draw on analysis that had not been the subject of consultation, even if the DMU considered that analysis to be relevant to an investigation.
Amendments 56 and 57 relate specifically to consultations on proposed decisions as part of the DMU’s SMS and pro-competition intervention investigations respectively. The DMU can launch PCI investigations into suspected adverse effects on competition. We will return to PCIs when debating the clauses in chapter 4.
Consultation is a fundamental feature of the regime. It ensures that the decisions are based on the best available evidence and that the regime is transparent. For SMS and PCI investigations, the DMU must consult on the specific decisions that it intends to take at the end of its investigation. That will ensure that all relevant parties have an opportunity to feed in views and perspectives on what the DMU is proposing on the decision at hand, not simply on the general operation of the market.
As I have highlighted, it is absolutely right that the DMU will be able to draw on broader knowledge during the course of its investigations, but it should not be able to do away with the consultations entirely. The consultations are a necessary part of the procedural safeguards that ensure good decision making. I know that the Coalition for App Fairness said that it would raise that in its evidence. I am grateful for its evidence. I totally agree with it that the consumer should not start with a blank piece of paper, but I do not think that it is necessary to amend the Bill in order to be able to be able to use that existing analysis where it is there.
I will now turn to clause 2, which will give the DMU the power to designate undertakings with SMS with regard to a specific digital activity. To do that, the DMU will need to be satisfied that a number of conditions are met. The concept of “digital activities” is detailed in clause 3. To be in scope of the regime, the turnover condition must be met. That is explained in clauses 7 and 8.
The DMU must also consider that the digital activity is linked to the UK, and that the undertakings meet the SMS conditions in respect of the digital activity. That is to say that the firm has, in respect of the digital activity, substantial and entrenched market power, and a position of strategic significance.
Jerome Mayhew
It is a pleasure to serve under your chairmanship, Dame Maria. I will deal first with whether clause 2 should stand part of the Bill. It is of course axiomatic. Right at the heart of the purpose of the Bill is the designation of undertaking. Importantly, it references clause 7, which deals with the turnover of an undertaking. I am looking forward to what the Minister has to say about clause 7, particularly with reference to the levels of revenue or turnover for an undertaking. The Minister has given definitions for “undertaking” and “firm”. I look forward to his further comments about those definitions, particularly when it comes to the classification of worldwide turnover and the revenue being undertaken within the United Kingdom. I am straying slightly into clause 7, but because there is reference to it in clause 2, I hope that is acceptable.
I am just flagging that there may be consideration under clause 7 as to the possibility of the manipulation of turnover where there is a global undertaking with global turnover of less than £25 billion, but where the turnover associated with the United Kingdom is approaching the £1 billion mark. It is foreseeable that we could start to have economically significant manipulation associated with the definition of turnover—I flag that because it is referred to in clause 2. Of course, the main body of clause 2 is right at the heart of the Bill. I welcome the constructive opening comments from the hon. Member for Pontypridd, and I look forward to engaging with her and the other Members of the Committee on that basis over the coming days and, I am afraid to say, probably weeks. [Laughter.]
I turn to amendment 55. This Bill is already hundreds of pages long, and it was often noted in my former career at the Bar that legislation gets longer and longer as it seeks to become more and more specific. However, there is a risk with seeking to list all the elements that we wish to cover. By having a list, we encourage exemptions and the seeking out of elements that are not quite on the list. Through that mechanism, undertakings can avoid the intention while complying with the letter. In my submission, the approach taken by the Government in the current drafting of clause 2 is the right one, because, as the Minister has already mentioned, it gives the DMU the wide scope it needs to take account of work that has already been done without constraining it by having a specific list, as amendment 55 would require. Proposed subsection (5), which the amendment would insert, says that an SMS investigation
“may take account of analysis undertaken by the CMA, on similar issues, that has been the subject of public consultation, within the five years prior to Royal Assent of this Act.”
Who could object to that? However, the Minister made the point that it is already encompassed within the powers of the DMU under the current drafting of the Bill. If we say that this is specifically included in the body of text, it prompts the question: what if someone is just outside that but would otherwise properly be within the consideration of the DMU? It raises arguments that will be explored via litigation, particularly by organisations that have substantial turnover and considerable economic interests to defend, as we heard in oral evidence over the past week.
The last thing we want is to have legislation that invites clarification by the courts. Although I and the Minister are very sympathetic to the intentions behind amendment 55, I fear that it might have the unintended consequence of increasing the chances of prolonged litigation as we seek to explore what exactly is and is not within scope of the DMU. For that reason, I do not support the amendment.
Alex Davies-Jones
I welcome the comments from the hon. Gentleman and the Minister, but we would like to press the amendment.
Alex Davies-Jones
We do not oppose clauses 3 to 8, on the basis that they set out what constitutes a digital activity for the purpose of part 1 of the Bill. Clause 3 is an important clause with a number of subsections that clarify the exact definitions of digital activities and provision of services. These are all critical to empowering the DMU, which, if properly supported, has the potential to be a world-leading regulator and is ultimately the critical first step in modernising our competition policy.
We can all agree that the UK has the potential to be recognised as a global leader in technology and innovation, and capitalising on that is vital to our economic growth, yet the current situation, which sees a small number of firms dominate digital markets, is reducing competition for other businesses. Ultimately, it is consumers who are paying the price in the products and services we all receive.
This clause is crucial to defining exactly which digital activity will fall under the regulation, and it is welcome. After all, Labour has been clear and has long called for measures to regulate the digital space more widely. We specifically support the clause, as it gives us all clarity on how we can define digital activity.
Subsection (3), which outlines how the regime will give the CMA the power to treat multiple digital activities carried out by a single undertaking as a single digital activity, is particularly welcome. For different activities to be grouped together, they must either have substantially the same or similar purposes—for example, a social media provider offering a number of internet services under different brands with a common function, allowing users, such as advertisers and publishers, to interact and communicate with each other; or can be carried out together to fulfil a specific purpose—for example, services and products that are part of the same supply chain, such as services selling advertisements and the provision of an advertising platform. We all know the rapid rate at which companies can develop and expand, so it is particularly welcome to see this subsection.
Subsection (4), which sets out that where the CMA is required to give or publish a notice or other document under part 1 of the Bill, it may describe the digital activity by reference to the nature of that activity, brand names, or a combination of these, is also vital to the success of the regime. We clearly support the clause, which we regard as crucial to establishing the barometers of the CMA’s regulatory powers, and we have therefore not sought to amend it at this stage.
Clause 4 sets out the ways in which a digital activity could be linked to the UK for the purposes of designation. We are pleased to see that the clause considers the number of UK users in its criteria, as we have all read the reports of tech firms threatening to leave the UK if other legislation places requirements on them in future. That is why, with regard to pro-competition law, the UK user base must be considered when it comes to implementing this regime.
Once on the statute book, the DMU will be empowered to oversee a new regulatory regime for the most powerful digital firms, promoting greater competition and innovation in these markets and protecting consumers and businesses from unfair practices. It is vital that UK-specific connections are established in the Bill. The clause is also an important opportunity to highlight the significant impact that inaction is having on our digital markets in the UK. As we know, these markets are characterised by having just a few big tech firms with entrenched market power and the ability to shape the market to the detriment of consumers and smaller businesses. The 2020 CMA market study said:
“Both Google and Facebook grew by offering better products than their rivals. However, they are now protected by such strong incumbency advantages—including network effects, economies of scale and unmatchable access to user data—that potential rivals can no longer compete on equal terms.”
The current balance of power means the big tech companies often have an unfair advantage over their competitors and dominate key markets. For example, virtually all UK smartphones run either Apple or Google operating systems. In 2018, Google had a more than 90% share of the UK search advertising market, and Meta owns 50% of the UK’s digital display advertising space. Thanks to their dominance, Apple and Google made in excess of £4 billion of profits from their mobile businesses in 2021. The CMA estimates that Facebook and Google made profits of £2.4 billion above what would be considered a fair return in the digital advertising market in 2018. On Meta’s market dominance, the CMA noted:
“Facebook’s average revenue per user in the UK has increased from less than £5 in 2011 to over £50 in 2019.”
The consequence is worse outcomes for smaller businesses and consumers. That is why we welcome the clarity in the clause and support its inclusion.
Clause 5 requires the CMA to look at the next five years when assessing whether an undertaking has substantial and entrenched market power in respect of a digital activity. Specifically, it must be satisfied that the undertaking’s market power and influence in the digital activity is neither small nor transient. Although we welcome that requirement—ultimately, none of us wants companies to be stifled to their detriment—I hope the Minister will flesh out exactly how he thinks the clause will work in practice. The CMA is clearly well placed to assess digital firms’ plans for progression and development over the next five years, but we are concerned that the clause is broadly asking the impossible, given the rate at which technological developments and expansion can occur in this space. I would therefore welcome the Minister’s assessment.
The clause further outlines that the CMA must take into account expected or foreseeable developments if it does not designate the undertaking as having strategic market status in respect of the digital activity to which the investigation relates. Again, that is the kind of welcome and balanced approach to designation that we would expect of a new regulatory regime, but will the Minister confirm how the Bill will ensure that such decisions and designations are made public so that the transparency of the regime as a whole is enhanced? It would be helpful for all of us—parliamentarians, firms, civil society bodies and stakeholders in the sector—to understand how designations are made, and transparency is central to that. I hope the Minister will address those points. We seek some assurances, but I am sure we will be happy to support the clause as it stands.
Clause 6 sets out the terms by which an undertaking has a position of strategic significance. It sets out a number of conditions, including size, scale and the role the firm plays in terms of digital activity more widely. We support the need for flexibility in the regime, so paragraphs (c) and (d) are particularly welcome. Paragraph (c) is intended to cover circumstances in which the undertaking can use its position in the digital activity to leverage or expand into a range of other activities. That is vital, because companies have to be agile to dominate a variety of markets, and they can abuse that. Paragraph (d), which is intended to cover scenarios where an undertaking’s position enables it to determine or substantially influence how other undertakings operate—in other words, to set the rules of the game—is equally important.
It would, however, be remiss of me not to highlight our slight concerns about subsection (2), which gives the Secretary of State the power to vary the conditions set out in the Bill. The success of the regime relies on scrutiny and direction from the Government, but will the Minister clarify exactly what type of scenario would require the Secretary of State of the day to vary the conditions?
As I have said, we support an agile approach to regulation. After all, even across other jurisdictions, the idea of regulation and encouraging pro-competition across our digital markets is a complex process for legislation. We wholeheartedly support the need to get this Bill on the statute book—it is something Labour has long called for—but none of us wants the regulator to be undermined or constrained by the opinions of the Secretary of State of the day, so I would appreciate some reassurance from the Minister on that point before proceeding.
Clause 7 outlines the turnover conditions that must be met for the CMA to designate an undertaking as having strategic market status in respect of a digital activity. Subsection (2) sets out that the turnover condition is met if the CMA reasonably estimates that the undertaking’s UK turnover in the relevant period exceeds £1 billion or that its global turnover in the relevant period exceeds £25 billion. We welcome the clarity that only one of these thresholds needs to be met for the turnover condition to be met and, if the undertaking is part of a group, the turnover of that pooled group should be considered, which is a matter we will come to when we debate clause 114.
I will take this opportunity to highlight the fact that while the £1 billion and £25 billion turnover figures may seem high, they show the sheer market dominance that certain firms have over our digital markets. Setting the conditions at the current rate will not act as a deterrent for growth, which, of course, none of us want to see. We particularly welcome subsection (5), which requires the CMA to keep the thresholds under review and, from time to time, to advise the Secretary of State as to whether they are still appropriate and proportionate.
It would be helpful for all of us in the room and those listening elsewhere to understand how the Minister envisions that this will work in practice. Will it be on an annual review basis, and when will we have clarity on that? Will the reviews be made public to ensure proper and appropriate scrutiny? These are small points, but given the lack of transparency around the regime as it stands, I would be grateful for the Minister’s assurances. Despite that, again, we support the clause as it stands and do not seek to amend it at this stage.
Finally—thank you for your indulgence, Dame Maria—clause 8 makes provision about the value of an undertaking’s or a group’s UK or global turnover in the relevant period for the purposes of the turnover condition. We see this as a fairly procedural clause, which outlines the definition of global turnover by which the CMA will make its decisions on designation. We note that subsection (4) gives the Secretary of State the power to make regulations providing further detail about how the total value of an undertaking’s or a group’s UK turnover or global turnover is to be estimated for the purposes of the turnover condition. Again, we feel that this could be problematic, and I would welcome the Minister’s reasoning as to why and in what instance the Secretary of State would need to make regulations to provide that further detail.
If the CMA is to be trusted to make reasonable decisions on a group’s turnover for the purposes of the turnover condition, it seems odd to give the Secretary of State the power to provide further detail when the merits or even the content of such further detail is so ambiguous. I hope the Minister can provide clarity and expand on that point. That aside, we support the clause because the turnover point is crucial for designation. The clause should remain and it should stand part of the Bill.
Jerome Mayhew
I briefly made mention of clause 7 in my earlier remarks. I am interested in the Minister’s view, particularly on clause 7(2)(b) and the definition of UK-related turnover being £1 billion or more. There is a legitimate question to be asked, because while that is a substantial amount of money, it is not that great in terms of global business. As I mentioned, I could foresee a situation whereby when a global undertaking’s global turnover is substantially less than £25 billion and its UK-related turnover is approaching the billion-pound mark, there might be a perverse incentive to direct investment and activity away from the United Kingdom because of that cliff-edge definition. I would love to propose a better alternative—it is above my pay grade—but I highlight that as being an issue we might need to take into account.
Paul Scully
I will cover most of the points in my main speech, but the reasons for designation of SMS status will be published, so that will be public. I will cover the points on the Secretary of State and on turnover. Clause 3 sets out what constitutes a digital activity for the purposes of the digital markets regime. Digital activities are defined as the provision of digital content, such as software, operating systems or applications; services provided by means of the internet, such as an e-commerce platform; and any other activity carried out for the purposes of providing digital content or internet services, such as background processes.
A firm can only be designated with SMS in respect of a digital activity. The restriction to digital activities is appropriate for the new regime, which responds to the specific characteristics of digital markets, such as network effects and data consolidation, which makes them extremely fast-changing as well as prone to tip in favour of a few firms. With all of this, the definition of digital activities has been designed so that our regime will be able to handle the complexities of different and fast-evolving digital business models, and that is reflected in the powers given to the Secretary of State.
Clause 4 sets out when the DMU will be able to consider a digital activity as being linked to the UK for the purposes of designation. As we have heard, the global nature of digital markets means that business actions in other countries can impact on consumers and businesses in the UK, so it is important to allow the DMU to address harm to competition in the UK, even when all or part of a firm’s physical operations are located elsewhere.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
The Minister may have explained this elsewhere, but I am wondering about the thresholds of £1 billion and £25 billion. Will those thresholds be assessed over time, because firms’ turnover and so on can change from year to year? When is the point at which assessment is made, and will the threshold change subsequently if turnover drops?
Paul Scully
The hon. Lady makes a good point, which relates to what my hon. Friend the Member for Broadland said about fluctuation of turnover and what companies may do with their turnover. It might be a good time to tackle that.
First, the turnover of the whole corporate group needs to be considered. That approach will help to avoid complications in revenue allocation, which could result in firms avoiding investigation and designation by virtue of their corporate structure or accounting practices. The DMU will be able to consider the past two periods of 12 months, not just the more recent one when calculating turnover—that should cover fluctuations, which the hon. Member for Feltham and Heston asked about. Markets can fluctuate, and turnover is not the same as market power; it is just part of the definition. The flexibility will also reduce the likelihood of the figures being manipulated and circumvented for the purposes of the turnover threshold.
Importantly, the use of the turnover thresholds will provide certainty to the vast majority of firms that they cannot be in scope of the regime, as they will easily be able to determine that their turnover is below the thresholds. However, if a firm meets the turnover threshold that does not necessarily mean that it will be subject to an investigation. The DMU will also need to have reasonable grounds to consider that the firm meets the two SMS conditions in respect of a digital activity that is linked to the UK—that is, that it has substantial and entrenched market power, and a position of strategic significance in respect of that activity.
Clause 7 will give power to the Secretary of State to amend those thresholds. That will ensure that they remain relevant as digital markets develop, evolve and grow over time. The DMU will be required to keep the thresholds under review and advise the Secretary of State whether they are still appropriate. The Government anticipate that the DMU may take into account factors such as inflation and currency fluctuation when doing so, using its expertise and while having its finger on the pulse of digital markets. As was the case for clause 6, the affirmative resolution procedure is the appropriate mechanism, as this is a significant power that would alter the scope of the regime.
Clause 8 relates to the turnover condition and sets out further details about the meaning of global and UK turnover. Any activity of the firm will be considered when estimating global turnover. Both digital and non-digital activities will be considered, making it easier for firms to know whether they are in scope without having to distinguish between different types of activity.
For UK turnover, any activity of the firm will be considered, but the turnover must relate to UK users or UK customers. The clause also gives the Secretary of State the power to make provision about how turnover should be estimated, including provision about amounts that should or should not be regarded as comprising turnover. That level of detail would not be suitable for primary legislation. We believe a negative procedure is most appropriate because of the technical and non-controversial nature of any regulations.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clauses 4 to 8 ordered to stand part of the Bill.
Clause 9
Initial SMS investigations
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 9 relates to initial SMS investigations. It sets out the circumstances under which the DMU can start an initial SMS investigation. An initial SMS investigation is for circumstances in which a firm either is not designated at all or is designated but in a different digital activity. The DMU can open an investigation only if it has reasonable grounds for considering that the tests for designation may be met—that is to say, most importantly, the tests of substantial and entrenched market power and a position of strategic significance in respect of a digital activity. Clause 9 does not require the DMU to open an investigation as it should be able to prioritise investigations to ensure its resources are targeted at the most pressing competition issues.
Clause 10 relates to further SMS investigations—the other type of SMS investigation. A further investigation is an investigation into whether to revoke an existing designation or designate a firm again in respect of the same digital activity. A further SMS investigation may also look at whether to designate a firm in respect of a similar or connected digital activity. The investigation will consider whether to make provision about existing obligations, which I will say more about on clause 17.
It is important that a designation should not continue indefinitely. That is why the DMU must review any designation before the end of the five-year designation period. The DMU will need to open a further SMS investigation at least nine months before the end of the five-year designation period if it has not already done so. It will either revoke a designation, if the firm no longer meets the criteria, or decide to designate the firm again for another five-year period. The DMU will be able to open a further investigation at any point during an existing designation. For instance, if the DMU considers that a firm no longer has substantial and entrenched market power in the digital activity, then it is important that the designation can be reviewed and, if necessary, revoked early.
Clause 11 sets out the procedure that the DMU must follow for either an initial or a further SMS investigation. To ensure that the regime is fair and transparent, the DMU will be required to give the firm a notice when it starts an investigation, stating the purpose and scope of the investigation as well as its length. For initial SMS investigations, the notice must set out the DMU’s reasonable grounds for considering that the designation tests may be met. The DMU must also publish a statement summarising the notice in order to make the wider public aware that it is opening an investigation. That notice will trigger the start of the investigation period.
Clause 12 sets out that the DMU may close an initial SMS investigation at any point before reaching a final decision on designation. It is important that that option is available to the DMU for initial investigations as there may be situations where flexibility is needed. For instance, unexpected circumstances may arise while an investigation is ongoing. The Government believe that in order to reprioritise resources if needed, the DMU should have the discretion to close an initial SMS investigation before reaching a final decision.
Clause 13 sets out that the DMU must consult on its proposed decisions as part of an SMS investigation. It is important that the firm under investigation, as well as all relevant parties, has an opportunity to feed in views and perspectives to the DMU’s investigation process. That consultation is also important in providing for a transparent regime that builds on the best evidence available.
Clause 14 sets out what the DMU must do at the end of an SMS investigation. For a further SMS investigation, the DMU must decide whether the existing designation should be revoked or whether the firm should continue to be designated in the same activity. The DMU must also decide whether to make provision in relation to existing obligations. If relevant, the DMU must decide whether the firm should be designated in a similar or connected activity.
For an initial investigation, the DMU should also reach a decision when it has not closed the investigation early under clause 12. The DMU will need to give the firm a notice of its decision on or before the last day of the investigation period, which lasts up to nine months. It must also publish a summary statement. If for some reason the DMU does not give the decision notice to the firm by the deadline, by default the firm is not designated, or is no longer designated, in the relevant digital activity.
Clause 15 sets out the requirements for decision notices when the DMU decides to designate a firm as having SMS in respect of a digital activity. The decision notice needs to be given to the firm. Among other things, the notice should include a description of the firm, a description of the digital activity, any provision made regarding existing obligations, per clause 17, and the DMU’s reasons for its decisions.
Clause 16 sets out the requirements for decision notices when the DMU decides to revoke an existing designation following a further investigation. A designation will no longer be appropriate once a competitive environment has developed. The decision notice needs to be given to the firm, as set out in clause 14(2).
Clause 17 gives the DMU the power to apply transitional arrangements to obligations revoked as a result of the DMU’s ending an SMS firm’s designation in relation to a digital activity, but only for the purpose of managing impacts of the revocation on persons who benefited from those obligations, and only in a way that appears to the DMU to be fair and reasonable. That will help ensure a smooth transition for wider market participants.
Clause 17 also allows the DMU to continue to apply existing obligations, such as conduct requirements or pro-competition orders. That is for cases where the new designation is in respect of the same digital activity, or an activity that is similar or connected to the previous designated digital activity. The clause will ensure that existing obligations do not automatically end where they still remain appropriate following a further SMS designation. The power to continue to apply obligations will be subject to the DMU’s ongoing duty to monitor and review obligations, which means that the DMU cannot continue to apply obligations that are no longer appropriate.
Finally, clause 18 sets out that a firm will be designated as having SMS in respect of a digital activity for five years, beginning with the day after the day on which the SMS decision notice is given. We believe that five years strikes the right balance between giving enough time for the regulatory interventions to have an impact on the one hand, and making sure the obligations on the firm do not last longer than necessary on the other.
Alex Davies-Jones
Labour broadly welcomes this grouping. I will make some brief comments about clauses 9, 10 and 11 before addressing my amendments, and will then come on to clauses 12 to 18.
As we know, and as the Minister has outlined, clause 9 concerns initial SMS investigations. We see the clause as an important start point that will allow the CMA to have clarity over exactly how it will begin the designation process for the regulatory regime. Subsection (1) sets out that the CMA may begin an initial SMS investigation where it has reasonable grounds to consider that it may be able to designate an undertaking in accordance with clause 2. We believe that that is vital and that the CMA is given the statutory powers to investigate fully. We agree that “reasonable grounds” are an important way to capture the beginnings of the process.
It is clear that the regime will apply only to firms with significant market dominance, as we have already discussed, but it is right that the CMA should use a logical approach to establish SMS firms from the outset. We also agree that it is right that where the CMA considers that the digital activity is similar or connected to a digital activity in respect of which the undertaking is already designated, it may instead begin a further SMS investigation.
Similarly, we agree with the wording of subsection (3), which clarifies that the CMA has the power to open a designation investigation in respect of a digital activity even if it has previously decided not to designate the undertaking as having SMS in respect of that digital activity. That would include circumstances where a previous designation had ended or where a previous decision had been taken not to designate the undertaking in respect of that digital activity. It is incredibly important that the CMA should not be restricted in terms of its designations, so this clarity is welcome.
The Chair
Order. I ask the hon. Lady to restrict her comments to the stand part debate on clauses 10 to 18. We debate the amendments a little later.
Alex Davies-Jones
Yes, Dame Maria.
I turn to clause 11. We see the clause as important in establishing exactly how the CMA should carry out an SMS investigation. It is important for all involved—from the CMA to regulated firms—that there should be some transparency over exactly how the CMA will begin an SMS investigation, and under what circumstances. We particularly welcome provisions for investigation notices; it is important that all parties are given adequate time and notice in order for this regime to fully succeed.
As I have already noted, we particularly welcome subsection (5), which sets out that as soon as reasonably practicable after giving an SMS investigation notice, or a revised version of the notice, the CMA must publish a statement summarising the contents of the notice and give a copy of the statement to the Financial Conduct Authority, the Office of Communications, the Information Commissioner, the Bank of England and the Prudential Regulation Authority. That is an important point for transparency—a common theme, I am afraid, to which I will continue to return as the Bill progresses through Committee.
As we all know, there are certain aspects of digital markets that make them prone to creating tipping points, where very large online platforms have huge and entrenched market power. The lack of transparency is a particularly problematic issue, and one that the Bill must seek to address. For example, in online advertising a complicated bidding process may take place very quickly—advertisers may not able to scrutinise decisions about where their ads are placed and how much they cost. That has a knock-on impact by exacerbating other competition problems, as people and businesses are unable to make informed choices.
We see the transparency and publication of these investigation notices as an important part of the package around getting the regime right. We welcome the fact that the Financial Conduct Authority, Ofcom, the Information Commissioner, the Bank of England and the Prudential Regulation Authority will all have sight of such notices, but what assessment has the Minister made of making these notices public? Of course, Labour recognises that there is a difficult line to toe here in terms of publishing information that could impact markets and potentially cause detriment to companies’ market share or worth. However, could a sensible middle ground be reached?
I move on to clause 12. Labour welcomes clause 12, which outlines the circumstances in which an initial SMS investigation may be closed without a decision. We recognise that giving the CMA that flexibility is important. None of us wants undue time limits to be placed on its decision-making and designation process. Central to the success of the regime is that the CMA should be empowered to take decisions within its remit. We all recognise that the CMA is a proactive regulator that currently seeks to use its soft power alongside its formal powers, but it is currently being hampered by its existing legal powers. That is causing a disparity between its ability to enforce competition and consumer law—a significant issue that stakeholders, including Which?, Citizens Advice and others, have repeatedly raised, including during our evidence sessions.
We see clause 12 as an important clause that gives the CMA the ability to work in an agile manner, according to workload and priorities. As with previous clauses, we particularly welcome subsections (2) to (4), which set out that if the CMA decides to close an initial SMS investigation, it must give the undertaking under investigation notice of the closure, including the reasons, and publish a statement summarising the contents of the notice. Labour supports the clause, and we have not sought to amend it at this stage.
Clause 13 requires the CMA to consult on any decision that it is considering making as a result of an SMS investigation. Subsection (1) requires the CMA to carry out a public consultation and bring it to the attention of such persons as it considers appropriate. Of course, there is a balance to strike here: public consultation is an important part of any regulatory regime, but none of us wants to see the CMA bound by delays and, as a consequence, unable to regulate effectively. I would be grateful for some clarity from the Minister on his understanding of the “appropriate” person, as outlined in subsection (1), which reads:
“The CMA must—
(a) carry out a public consultation on any decision that it is considering making as a result of an SMS investigation (see section 14(1)), and
(b) bring the public consultation to the attention of such persons as it considers appropriate.”
I imagine the Secretary of State will be one such person, but will the Minister clarify who else he envisions will be privy to the public consultations? In addition, I would be grateful if the Minister again confirmed whether the public consultations will be published. Consultation is an important part of any regulatory regime, particularly this one, which aims to do a colossal thing in regulating our digital markets and, ultimately, to encourage competition. Labour recognises the extent of the challenge, and there is a fine balance to be struck between consultation and stifling action. We do not want to see consultations get in the way of the regime more widely. We have had enough delay as it is, and I am sure the Minister will not mind my highlighting just how many consultations the Bill has endured on its journey so far.
In 2018, the Government established a digital competition expert panel to examine competition in digital markets. In 2021, the DMU was set up within the CMA to oversee competition in the digital markets sector. Between July and October of that year, the Government ran a consultation on plans for a new regime. Almost a year on, in May 2022, the Government responded to the consultation, setting out the final position on a new regime. There has already been significant delay to getting the Bill to this stage, and we already know from its impact assessment that the regime is unlikely to be fully operational until 2025, so I would be grateful if the Minister could reassure us all that the CMA will not be delayed by consultations, as the Government seemingly have been. That point aside, we understand the value of the clause and will support it.
Clause 14 sets out what the CMA must do at the end of an SMS investigation. It broadly clarifies the actions and decisions that the CMA must take in deciding whether an undertaking will be designated as SMS in respect of its digital activity. Again, we welcome subsection (2). We also support subsection (5), which sets out that the CMA must publish a statement summarising its contents as soon as reasonably practicable after giving an SMS decision notice. This is an important clause, which we see as a practical outline of how the CMA will be empowered to act on concluding its initial SMS investigations.
Clause 15 sets out a requirement for SMS decision notices where the CMA decides to designate an undertaking as having SMS in respect of a digital activity. We welcome the clarity afforded in subsection (2), which outlines on the face of the Bill the exact contents that the SMS decision notice must include. This ranges from a description of the designated undertaking to a statement outlining the designation period and the circumstances in which the designation could be extended.
It is also worth referring specifically to subsection (4), which clarifies that giving a revised SMS decision notice to provide for the designation of an undertaking does not change the day on which the designation period in relation to that designation begins. That is a welcome clarification, which I know will be useful for undertakings and civil society to understand as we seek to establish the regime in full.
Although Labour supports the clause, I am interested to know the Minister’s thoughts on subsection (5), which states:
“As soon as reasonably practicable after giving a revised SMS decision notice, the CMA must publish a statement summarising the contents of the revised notice.”
Again, that is rather vague, so will the Minister clarify what he considers to be “reasonably practicable”? Ultimately, companies and consumers alike would benefit from a timely and transparent approach to the regulation. Although I am reassured by the CMA’s ability, we and many others have slight concerns about its capacity and resource, as I have previously outlined, so I would be grateful for the Minister’s assurances on that issue.
Clause 16 sets out the requirements for SMS decision notices where the CMA decides to revoke an existing designation as a result of a further SMS investigation. There is no need for me to repeat myself. We support the clause, and it is important for the CMA to be empowered to act flexibly, particularly given the ever-changing nature of digital markets. Again, we welcome clarification that the CMA will provide for the revocation to have effect from an earlier date—for example, where the undertaking has already ceased to engage in the relevant digital activity. None of us wants to see overregulation, so we support the clause and have not sought to amend it. While I am all for a collegiate approach to legislating, I assure the Minister and my Whip that we do not agree with the Bill in full, as can be seen from the amendment paper. However, on the points covering designation, we welcome the progress and clarity of the clauses, which we see as fundamental to the regime’s wider success.
Labour supports clause 17, which aims to define the nature of an existing obligation, which is any conduct requirement, enforcement order, final offer order or pro-competition order applying when a designation is revoked or another one is made after a further SMS investigation. We particularly welcome subsections (3) and (4), which set out that the CMA may apply any existing obligation in respect of a new designation, may modify that obligation in respect of a new designated activity, and may make transitional, transitory or saving provision in respect of that obligation. Again, we see that as standard procedure to allow the regime to operate in full and have not sought to amend the clause.
Finally—colleagues will be pleased to hear that—clause 18 establishes that where the CMA decides to designate an undertaking as having SMS in a digital activity, the designation period is five years, beginning the day after the day on which the SMS decision notice is given. We welcome other provisions later in the Bill on the circumstances in which the designation period may be extended or revoked. Labour recognises that assessing the regulatory regime in digital markets will take some time, so we believe a designation period of five years is a sensible approach. Given certain undertakings’ market dominance, we think five years is a reasonable timeframe to allow pro-competition mechanisms to take effect and consumers to see that reflected in the options and prices afforded to them. We therefore support the clause and have not sought to amend it.
Paul Scully
On the two questions of what is reasonably practical and practicable in terms of time, we do not want to set an artificial deadline but want to make sure that the DMU can act as quickly as possible. As the hon. Member for Pontypridd rightly says, and we have said all the way through, technology and digital markets move really quickly. That is why we want to make sure that decisions are out of the door as quickly as possible, so that people can see what is happening as soon as possible. The decisions will go to the appropriate persons as described, which are relevant third parties and the SMS firms themselves. It is for the CMA to determine who is a relevant third party, but that will clearly include any challenger tech companies that may be affected by the initial SMS designation.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clause 10 ordered to stand part of the Bill.
Alex Davies-Jones
I beg to move amendment 46, in clause 11, page 6, line 36, at end insert—
‘(6) The CMA must provide a copy of the SMS investigation notice to any person who requests a copy.’
This amendment and Amendments 47 to 52 aim to ensure access to information relevant to the regime is available publicly.
The Chair
With this it will be convenient to discuss the following:
Amendment 47, in clause 12, page 7, line 9, at end insert—
‘(5) The CMA must provide a copy of the notice under subsection (2) to any person who requests a copy.’
See the statement for Amendment 46.
Amendment 48, in clause 14, page 7, line 36, at end insert—
‘(5A) The CMA must provide a copy of the SMS decision notice to any person who requests a copy.’
See the statement for Amendment 46.
Amendment 49 in clause 26, page 14, line 19, at end insert—
‘(3A) The CMA must provide a copy of the SMS decision notice to any person who requests a copy.’
See the statement for Amendment 46.
Amendment 50 in clause 28, page 15, line 20, at end insert—
‘(5) The CMA must provide a copy of the notice to any person who requests a copy.’
See the statement for Amendment 46.
Amendment 51 in clause 30, page 16, line 13, at end insert—
‘(4A) The CMA must provide a copy of the notice to any person who requests a copy.’
See the statement for Amendment 46.
Amendment 52 in clause 46, page 25, line 38, at end insert—
‘(5) The CMA must provide a copy of the PCI investigation notice to any person who requests a copy.’
See the statement for Amendment 46.
Alex Davies-Jones
These important amendments to clause 11 that we have tabled are designed to encourage a more transparent approach to SMS investigations. As repeatedly stated, transparency, openness and accountability have to be central to the Bill working in practice and in reality. The Minister will note that this is a simple set of amendments, which will broaden the regime’s openness. Labour firmly believes that a transparent approach where possible and where the impact on markets is limited will be vital to its success. Will the Minister share his thoughts on our amendments? They seek to make the Bill more transparent for everyone and I look forward to some clarity.
Paul Scully
Amendments 46 to 52 would require that the notices the DMU must provide to an SMS firm in respect of an SMS designation, conduct requirements and PCIs should be made available on request to third parties. We agree with the hon. Member for Pontypridd that transparency and accountability are essential to the new regime, and we will always look for ways to make sure that it is open and at the core of what we do.
The Bill already provides that the DMU will be required to publish online a statement summarising the contents of those notices whenever they are provided to a firm. That is, it will need to set out required elements of the notice, such as describing its decisions and the reasoning behind them, in a shortened form. In the statements, the DMU will provide the key information from the notice about its decisions to other businesses, consumers and the wider public, in line with public law principles. The DMU may redact commercially sensitive information.
For example, the summary notice for a conduct investigation must give details about the conduct requirement and the behaviour suspected of breaching that requirement, and it must provide information about the investigation period and the timeframe for making representations for third parties.
Peter Dowd (Bootle) (Lab)
I completely understand where the Minister is coming from, but the Labour Front Bench is trying to push this question of transparency and I am concerned about what the Minister just said. The hon. Member for Broadland talked in relation to another issue about the courts becoming involved. The last thing we want is to create a need for clarification from the courts. Is there not a danger that, unless this area is transparent and the statements are more significant than just a summary, we will get into needing clarification by the courts?
Paul Scully
Third parties can clearly get involved and approach the DMU, which I will cover in a minute, so we do not necessarily need to get to court stage. I have talked about some of the specifics that will be in the summary notices, which will have quite a considerable amount of detail anyway. We do not want to add extra resource requirements that take away from the core tasks of the DMU.
The summary statements are just one of the ways in which the DMU will inform and involve stakeholders in its decision making. The DMU will be required to publicly consult before making major decisions, which include designating a firm with strategic market status in a digital activity, making pro-competition orders, and imposing conduct requirements. It will also be required to publish guidance on how it will take those decisions.
Should a third party be unsatisfied with the DMU’s summary statement, they can request the full notice through a freedom of information request. As a public authority, the CMA is required under the Freedom of Information Act 2000 to provide the public with information it holds when requested to do so, subject to the relevant exemptions, which include a requirement to protect commercially sensitive information. We agree that public transparency for the new digital markets regime is vital. The drafting ensures that the right information will be made publicly available. I hope I have set out our position to hon. Members and that they feel able to withdraw their amendments.
Alex Davies-Jones
I have listened to the Minister carefully outline the Government’s position. I do recognise that a balance needs to be struck, yet we feel that our amendments would seek to increase transparency, openness and accountability. For that reason, we will press them to a vote.
Question put, That the amendment be made.
Alex Davies-Jones
I beg to move amendment 54, in clause 19, page 11, line 17, after “CMA,” insert—
“(ab) where the designated undertaking has been given an SMS decision notice under section 14(2), must come into force no later than three months of the SMS decision notice being given”.
This amendment introduces a timeline for the enforcement of conduct requirements set out on the face of the Bill and in CMA Guidance.
With your permission, Dame Maria, I will also speak to clause 19, in the interests of efficiency.
Alex Davies-Jones
Clause 19, which outlines the CMA’s power to impose conduct requirements on a designated firm, is very welcome indeed. It is an important clause that aims to prevent harm that may result from the market position of undertakings with strategic market status.
In practice, these conduct requirements are essentially instructions given to a designated undertaking to conduct digital activities in a manner that promotes competition. The requirements can be prescriptive or prohibitive in nature; they are essentially the dos and don’ts, except that the requirements do not apply automatically to every undertaking having SMS and instead apply on a case-by-case basis. The DMU therefore has wide discretion to impose conduct requirements on specific SMS firms, as long as they fit within a list of purposes that are listed in clause 20.
Vicky Ford (Chelmsford) (Con)
I am very fond of the hon. Member and she has a beautiful voice, but she did complain earlier about how long it had taken this Bill to get to market. I urge her to remember that we want to get through the Bill as quickly as possible, for consumers. Repeating every single thing that we can already read in the explanatory notes and in the Bill does not seem to me to be the most efficient use of all of our time.
Alex Davies-Jones
I am grateful for that intervention. The hon. Member will know I am also fond of her and her voice. I think it is important to clarify exactly what we are debating, and why we are reasoning as we are. I will happily refer to certain clauses if that would please the hon. Member, but it is important that we outline exactly why we have come to the rationale that we have on the Bill as it stands before us.
Potential examples of prescriptive conduct requirements include having effective processes for handling complaints, trading on fair and reasonable terms, or giving users options or default settings. Conversely, some examples of prohibitive conduct requirements may be preventing abuse of dominance practices, such as treating its own products more favourably, using data unfairly, tying practices, restricting interoperability, refusal to grant access and so on.
We particularly welcome subsection (5), which provides that the CMA may impose conduct requirements only for certain objectives. However, we have concerns about subsection (10), which says that a conduct requirement
“(a) comes into force at a time determined by the CMA, and
(b) ceases to have effect—
(i) in accordance with a decision of the CMA”—
as Members can read in the Bill.
For swift implementation, it is right that the Bill’s approach allows for conduct requirements to be written alongside an SMS designation investigation, but we need a statutory time limit for the initial set of conduct requirements to be implemented. As it is likely that the DMU will have considered the three conduct objectives before the SMS designation decision is made, the DMU should be required to impose the initial set of conduct requirements either at the same time as the SMS designation or within three months of its date.
A central feature of the new regime is to enable the DMU to revise its rules as time goes on, so the deadline should apply only to the initial set of conduct requirements, so as not to hinder the DMU in revising or adding to them subsequently. Amendment 54 would introduce a timeline for the enforcement of conduct requirements set out in the Bill and in CMA guidance.
Peter Dowd
Given that subscription traps cost between £28 billion and £34 billion a year, my constituents in Bootle are perfectly entitled to listen to my hon. Friend ram home this point time after time, because £28 billion out of their pockets in someone else’s pocket is not appropriate, not reasonable and not fair, given the current cost of living crisis. My hon. Friend should speak as much and as long as she wants.
Alex Davies-Jones
I am grateful for that intervention. It is important that we get the Bill right. It is a very technical Bill. It is incredibly wordy—Members will have heard me trip over my words a number of times. It is important that we are able to portray the nature and benefits of the Bill to those listening at home or elsewhere, for the future and for the CMA, so that they understand what we as legislators mean when we speak in this place. That could influence decisions later. It is important for our constituents, who will be positively—we hope—impacted by the Bill. It will enable to have them more choice to hear exactly what we as legislators in this place mean.
The amendment introduces a timeline. It is important and we have given it some serious thought. I hope that the Minister has given it serious thought, too, because it would be helpful to ensure that the CMA is forced to act swiftly, as we have all discussed. I look forward to hearing his comments. I hope that he sees how beneficial this simple amendment could be. It is not meant to trick him; it is meant to make the legislation as positive and as beneficial as it can be.
Paul Scully
Thank you, Dame Maria. I will cover the clause first. It enables the DMU to introduce conduct requirements to govern the behaviour of SMS firms. That will help manage the effects of their market power by protecting the businesses and consumers that rely on their services. The tailored rules will be used to promote fair dealing, open choices, and trust and transparency, which mean that the DMU will be able to ensure that SMS firms treat consumers and other businesses fairly, not subjecting them to unreasonable terms and conditions. It will also mean that the regulator is able to intervene to ensure that users can choose freely and easily between different products and providers. Finally, the DMU will be able to intervene to ensure that users have the information they need to understand what is on offer, and to make their own decisions about whether they want to use the SMS firm’s products.
The clause sets out that, where the DMU imposes a conduct requirement, it must send a notice to the SMS firm and publish that notice online as soon as reasonably practicable. That will ensure that the obligations and responsibilities will be made clear to the SMS firm and to those businesses and consumers who rely on them.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
My hon. Friend the shadow Minister has been accused of repetition, but she made a point about resources. The Minister is making further comments about the capacity and tasks of the regulator, so perhaps he could come back to the earlier question on resourcing, about which a lot of concern was expressed last week in the evidence sessions. Will the Minister address some of that and tell us how the new body will be resourced to fulfil all the tasks that he is discussing?
Paul Scully
That is a good point. The hon. Gentleman will be aware that that is one of the reasons why we have set the DMU up in shadow form, to start building up its capacity and expanding on its expertise. Currently, the DMU stands at about 70 people, and it is able to lean in on expertise as required. In the evidence session last week, we heard from the chief executive of the CMA that she feels that they have the expertise and the resource able to make the clear decisions needed in a complicated area of competition. The whole point about digital markets is that they are not like the analogue competition regime that we have been used to for so many years. That is complex enough, but it is well established and matured; in digital markets, things happen very quickly.
The Opposition are absolutely right when they say that we need to make decisions quickly, transparently and in a way that holds the confidence of consumers and the challenge attackers, to ensure that this is a place where people can grow and scale a company, even to the size of those companies that are likely to have entrenched market power and to have SMS in the first place.
The clause enables the DMU to vary conduct requirements as firms and markets change, ensuring that they remain appropriately tailored and proportionate. Without the clause, the DMU would not have the means to regulate the most powerful tech firms appropriately, and consumers would continue to be not adequately protected from harms in digital markets.
Neil Coyle
The Minister made reference to the analogue competition. That equivalent is trading standards and physical competition, but last week they told us that they had had a cut of 50% in their capability to tackle problems. The Minister is talking about powers to investigate, to assess, to recall, to monitor and to review, all within a fixed timetable, against companies with very significant resources, so what capacity will there be to review the powers and resources of the new body and how will it be kept up to date in terms of its skills?
Paul Scully
I have talked about the fact that the CMA will publish on a regular basis—on an annual basis—its report about what it is doing and how it is working. The Under-Secretary of State for Business and Trade, my hon. Friend the Member for Thirsk and Malton, has regular meetings with the CMA and with the Competition Appeal Tribunal as well. We will meet regularly the digital markets unit to talk through the issues of capacity and its decision making, but it is not just for us to be talking to it “behind closed doors”, within the Department. The regular reports from the CMA and the decision-making reports, which will be published as well, will absolutely highlight why the decisions have been taken and how they have been taken, and therefore we can take a judgment on what resources it needs and whether it is under-resourced.
Over the three years of my ministerial career, I seem to have been giving the CMA jobs to do. I say that having done the Bills that became the United Kingdom Internal Market Act 2020 and the Subsidy Control Act 2022 and now this. The hon. Member for Bermondsey and Old Southwark is right to say that the CMA has expanded. But it has expanded in accordance with the expertise that it has.
Jerome Mayhew
We had three days of oral evidence last week and were lucky enough to have the chief executive of the CMA come and give evidence to us. I do not have a copy of Hansard with me, so I stand to be corrected, but I believe that I am right in saying that Ms Cardell, when she gave her evidence, was directly questioned about the level of resource that the CMA had and her degree of confidence as to whether it would be sufficient to carry out the tasks anticipated in the Bill. The words that stick in my mind and that I ascribe to Ms Cardell—again, I stand to be corrected—were that the CMA is well resourced and more than capable of undertaking these activities.
Peter Dowd
Does the Minister agree with me that we have to learn lessons from history? The Committee considering the Bill that became the Criminal Finances Act 2017, on which I served, took evidence from the enforcement and regulatory authorities and they said at the time, “Oh yes, we have all the resources we need,” but that proved not to be the case. If the chief executive of the CMA is saying that, let us come back in 12 or 18 months’ time and see whether it is actually correct. Will the Minister agree to a review of it in perhaps 12 or 18 months’ time, when this Bill has bedded in?
Paul Scully
The hon. Gentleman is absolutely right that we have to keep all these things in our purview, because if we get this wrong, that just embeds the entrenched power that we are talking about. It is absolutely the case that we have to ensure that the CMA, as an important body—I am thinking of not just the digital markets unit, which we are discussing here, but the entirety of its operation—has the capacity to do its work. As I said, we will clearly continue to look at the resources, capacity and expertise of the digital markets unit.
Amendment 54 would introduce a duty on the DMU to impose conduct requirements within three months of a decision notice being given, as we have heard. I absolutely share hon. Members’ interest in ensuring that conduct requirements are imposed quickly so that businesses and consumers can be protected. Indeed, we anticipate that conduct requirements will be in place from the day a firm is designated—or if not, much sooner than the three months proposed in the amendment. That is because the DMU can develop tailored conduct requirements informed by, and alongside, the designation investigation. That is facilitated by clauses 13(2) and 24(3), which enable the DMU to carry out the public consultation on strategic market status designation alongside the public consultation on any proposed conduct requirements.
Although we expect conduct requirements to be imposed as soon as a firm is designated, the Government have not included a statutory deadline. That is because the DMU needs the flexibility to deal with the complexities of developing targeted obligations. That includes taking the time necessary to consult and consider all the views shared by interested stakeholders.
Vicky Ford
I want to be quick. I really care about this Bill, because it is incredibly important for our constituents, who are consumers, to ensure that they are offered fair choices and fair prices. The clause is important, because it means that when a company acts inappropriately, the CMA, through the digital markets unit, can tell it what to do. Can the Minister give an example of a case where it might need more than three months for that telling it what to do to be done?
Paul Scully
That is a very good point. I do not think that I can give my right hon. Friend a specific example. If particular technicalities are involved, we do not want to put an arbitrary time limit such as three months, because we want the decision to be right. The Government absolutely expect the decision to be taken either on the day of designation or very shortly afterwards, but by binding ourselves there may be examples—I am afraid I am not nimble enough to think of a specific example, but I am sure one will come down the line. The whole point of this Bill is that it is flexible, proportionate and gets things right. At the end of the day, that is what we are trying to do, rather than putting in a timescale.
Vicky Ford
For the record, when the DMU tells a company what to do, does the Minister agree that that should always be done as quickly as possible, given that there may be technical changes to get things done as well? This is not a suggestion that decisions or actions should be delayed.
Paul Scully
I totally agree. That is exactly the point. Let us make it quickly, but we do not want an arbitrary timescale so that we rush and get the decision wrong. It is more important to get the answer right. For those reasons, I hope that the hon. Member for Pontypridd will withdraw her amendment.
Alex Davies-Jones
I have listened to the robust debate we have had. I still feel that having a timeline on the face of the Bill would provide transparency, clarity and certainty. Therefore, we will press the amendment to a vote.
Question put, That the amendment be made.
Alex Davies-Jones
I beg to move amendment 53, in clause 20, page 12, line 11, at end insert—
“(ca) carrying on activities in an area of its business other than the relevant digital activity, which if they were done in relation to the relevant digital activity would be prevented under the provisions of this section.”
This amendment prevents a designated undertaking from carrying on activities that would be prevented by the provisions of section 20 from being done in a different area of its business.
Amendment 53 aims to prevent a designated undertaking from carrying on activities that would be prevented by the provisions of section 20 from being done in a different area of its business. We feel that the amendment gets to the heart of the issues at hand, and we urge the Minister to consider it carefully. It will prevent a Whac-A-Mole situation in which the regulator is always having to define new activities to catch up, and we see it as an essential part of the Bill.
Paul Scully
I am trying to work out the intention of the amendment. It seems that it would add a permitted type of conduct requirement in order to expand the ability of the DMU to intervene outside the designated digital activity; I am not sure that I understand whether my understanding of that is clear.
The regime is explicitly designed to address competition issues in activities when a firm has strategic market status—that is, when it holds substantial and entrenched market power and a position of strategic significance. In some circumstances, SMS firms may use other, non-designated activities to further entrench their market power in the designated activity. Clause 20(3)(c) allows the DMU to create conduct requirements to address that; however, it is important that the DMU does not intervene in non-designated activities beyond that.
SMS firms are likely to be active in a large range of activities, and in many of them will face healthy competition from other firms. The amendment would allow the DMU to intervene outside the designated digital activity, without any requirement to show that there is a link to the firm’s market power in any given activity. That could be harmful to competition, consumers and innovation.
We are worried about whether the regime can tackle retaliatory conduct. It is important that that ability is built in, because a retaliatory action is likely to be captured under conduct requirement categories to ensure fair dealing, such as those that prevent discriminatory treatment or unfair terms and conditions. We want the DMU to be able to take firm action against retaliatory conduct, whether or not that is within the scope of designation, but only if it can prove the link between the two. It is really important that that step happens first.
Alex Davies-Jones
I appreciate the Minister’s comments, although I disagree with him on the reasoning. We see the leveraging principle as critical to the success of the pro-competition regime. It is important to clause 20, which is a mammoth clause. Our amendment would prevent a designated undertaking from carrying on activities that would be prevented by the provisions in the clause. It is really important that the amendment is included so we will press it to a vote.
Question put, That the amendment be made.
Alex Davies-Jones
I beg to move amendment 58, Clause 20, page 12, line 22, at end insert—
“(i) discriminating against a recognised news publisher by withholding from an internet service material produced by the recognised news publisher.”
This amendment would allow a conduct requirement to be used to stop a designated undertaking withholding news from a recognised news publisher from its platform.
The Chair
With this it will be convenient to discuss new clause 2—Recognised news publisher: definition—
“(1) In section 20, ‘recognised news publisher’ means any of the following entities—
(a) the British Broadcasting Corporation,
(b) Sianel Pedwar Cymru,
(c) the holder of a licence under the Broadcasting Act 1990 or 1996 who publishes news-related material in connection with the broadcasting activities authorised under the licence, and
(d) any other entity which—
(i) meets all of the conditions in subsection (2), and
(ii) is not an excluded entity (see subsection (3)).
(2) The conditions referred to in subsection (1)(d)(i) are that the entity—
(a) has as its principal purpose the publication of news-related material, and such material—
(i) is created by different persons, and
(ii) is subject to editorial control,
(b) publishes such material in the course of a business (whether or not carried on with a view to profit),
(c) is subject to a standards code,
(d) has policies and procedures for handling and resolving complaints,
(e) has a registered office or other business address in the United Kingdom,
(f) is the person with legal responsibility for material published by it in the United Kingdom, and
(g) publishes—
(i) the entity’s name, the address mentioned in paragraph (e) and the entity’s registered number (if any), and
(ii) the name and address of any person who controls the entity (including, where such a person is an entity, the address of that person’s registered or principal office and that person’s registered number (if any)).
(3) An ‘excluded entity’ is an entity—
(a) which is a proscribed organisation under the Terrorism Act 2000 (see section 3 of that Act), or
(b) the purpose of which is to support a proscribed organisation under that Act.
(4) For the purposes of subsection (2)—
(a) news-related material is “subject to editorial control” if there is a person (whether or not the publisher of the material) who has editorial or equivalent responsibility for the material, including responsibility for how it is presented and the decision to publish it;
(b) ‘control’ has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act.
(5) In this section—
‘news-related material’ means material consisting of—
(a) news or information about current affairs,
(b) opinion about matters relating to the news or current affairs, or
(c) gossip about celebrities, other public figures or other persons in the news;
‘publish’ means publish by any means (including by broadcasting), and references to a publisher and publication are to be construed accordingly;
‘standards code’ means—
(a) a code of standards that regulates the conduct of publishers, that is published by an independent regulator, or
(b) a code of standards that regulates the conduct of the entity in question, that is published by the entity itself.”
This new clause is linked to Amendment 58.
Alex Davies-Jones
The amendment would allow a conduct requirement to be used to stop a designated undertaking withholding news from a recognised news publisher from its platform. None of us want to see in the UK situations like those occurring elsewhere across the globe. Colleagues will be aware that Google and Meta have attempted to ward off fair negotiations in Australia and Canada by restricting or threatening to restrict access to domestic trusted news that is the antidote to online disinformation. Denying citizens access to reliable information to avoid payment serves only to emphasise the primacy that such firms place on profits, rather than citizens’ interests. The Government must absolutely not give in to similar threats in the UK.
As the EU and other jurisdictions have forged ahead with similar but ultimately less agile and effective digital competition regulation, there is a danger that the UK will become a rule taker and not a rule maker. I urge the Minister to consider carefully the principles of the amendment and new clause 2, which further outlines a favourable definition of a recognised publisher that Labour supports. I look forward to hearing the Minister’s comments, but if we are not reassured, we will press the amendment to a vote.
Paul Scully
As we have heard, amendment 58 and new clause 2 are intended to strengthen the regime’s protections for news publishers by defining “recognised news publisher” and introducing a specific power to protect them from discrimination. I understand and appreciate the sentiment behind the amendment and what the hon. Member for Pontypridd is striving to do. It is important that news publishers can benefit from the robust protections offered by the new regime. I am confident that the Bill, as drafted, will make an important contribution to the sustainability of the press. I hope the hon. Lady will understand when I expand on that, because the DMU’s tools, including all permitted types of conduct requirement, are designed to rebalance the relationship between SMS firms and those who rely on them, including firms and sectors across the economy. They are drafted in a sector-neutral way for that reason.
Alex Davies-Jones
Is the Minister reassured that the Bill will not allow the emergence of a situation like those in Australia and Canada, where online disinformation is pumped around constantly because of the lack of clarity on platforms highlighting recognised news publishers?
Peter Dowd
Does the Minister agree that this is an exact replica of what happened when ITV tried to stop Sky advertising on ITV platforms, in terms of competition? That was stopped: it was not fair and it was not reasonable. Is this not sort of similar? We cannot give the power to the platform itself to decide what it does or does not do and what people’s access to news is.
Paul Scully
No, I do not agree. To answer the question asked by the hon. Member for Pontypridd, I absolutely believe that it does, because the conduct requirements can be tailored to instruct SMS firms on how they should treat consumers and other businesses, including publishers. In the case of publishers, that could, for example, include conduct requirements on SMS firms to give more transparency to third parties over the algorithms that drive traffic, or it could oblige firms to offer third parties fair payment terms for the use of their content. Examples of that have come up time and again, both in evidence and in my conversations with publishing representatives.
Freedom of contract is a crucial principle, but withdrawal of service by an SMS firm could be considered anti-competitive if the behaviour is discriminatory or sufficient notice is not given. In such a scenario, the DMU could take appropriate action through conduct requirements or PCIs. There are plenty of general examples, and the Bill very much accounts for the examples of Australia and Canada. We are just shaping it in a different way, in as flexible—
Neil Coyle
The Minister’s assertion is not shared by the News Media Association. The Opposition amendment tries to address some of the concerns around timeframes of designation and final offer mechanisms. Will the Minister tell us why he thinks the News Media Association’s briefing is inaccurate?
Paul Scully
At the end of the day, this is an interpretation of the Bill. The amendment names a number of specific news publishers; our approach is sector-unspecific. All those will come within the regime of the Bill, but specifying just one sector would risk skewing the conduct of the regime and the way it works towards that sector. I think the question that was asked was whether those news publishers and the kind of behaviour that has been described come under the regime of the Bill, as drafted. We believe they absolutely do.
Alex Davies-Jones
I appreciate the Minister’s rationale, but leaving the interpretation of the Bill so ambiguous could mean certain platforms allowing news publishers that are not relevant news publishers to cause harm and damage to society and the public, as we have seen elsewhere in the world. It is imperative on us as legislators to get it right, and we have that opportunity in the Bill.
We have always said that we want this law to be world-leading. We wanted to be able to do things differently from the EU. This amendment gives us the flexibility to make that change and do things differently, which is why we will press it to a vote.
Question put, That the amendment be made.
Paul Scully
The DMU will be able to use conduct requirements to address and prevent practices that exploit consumers and businesses or exclude innovative competitors. Clause 20 sets out an exhaustive list of permitted types of conduct requirement that the DMU can impose in order to address and prevent harm to businesses and consumers in digital markets. It ensures that the regime can adapt to future challenges by empowering the Secretary of State to amend this list, subject to parliamentary approval.
The list reflects insights drawn from the CMA’s market studies and regulatory expertise. It captures 13 well-evidenced types of anti-competitive behaviours including self-preferencing, tying and bundling, and the unfair use of data. Conduct requirements could be used to ensure that SMS firms interact with users of all kinds on fair and reasonable terms; that consumers are not discriminated against; or that competitors do not lose out because an SMS firm has used data unfairly. The list of permitted types of requirement reflects the competition issues we see in digital markets today, but these markets are fast-moving.
It is vital that the Secretary of State is able to amend the list in future, with Parliament’s approval, to ensure that consumers are protected from whatever new challenges arise. Setting out the types of permitted requirement in the legislation, rather than specifying the requirements themselves, means that the regime will be flexible and responsive. It will make it possible to impose targeted and tailored interventions that address harms to consumers, while avoiding unnecessary burdens and unintended consequences for SMS firms.
Alex Davies-Jones
Clause 20 is a mammoth clause that sets out an exhaustive list of permitted types of conduct requirement. Labour welcomes the clarity in the clause—as, I am sure, will the CMA and firms likely to be designated. Ultimately, pro-competitive interventions will tackle the causes of market power and are a necessary step to addressing the characteristics of these markets, such as network effects and economies of scale that tip some digital markets towards a single firm. Those interventions could also include mandating that consumers have greater choice over the collection and use of their personal data. They could even look at ownership separation. However, some digital markets cannot be made competitive, and in such cases the effects of market power must be managed. To do this, the DMU needs sufficient powers. We see the clause as central to getting that balance right.
Clause 20 states that conduct requirements may prevent the SMS firm from
“carrying on activities other than the relevant digital activity in a way that is likely to increase the undertaking’s market power materially, or bolster the strategic significance of its position, in relation to the relevant digital activity”.
The leveraging principle is critical to the success of the pro-competition regime. Without it, the DMU will find itself unable to address harmful conduct and will meet arguments about where—meaning in which activity—a piece of conduct occurs, because the DMU will be unable to touch conduct that occurs outside the SMS activity even if it is closely related to the SMS activity.
A stronger leveraging principle would prevent designated firms from simply moving their service fees from one location in the ecosystem to another, such as from app store service fees to an operating system licence—the stealth tax that we heard about during our evidence sessions. It would prevent a whack-a-mole situation in which the regulator always has to define new activities to catch up.
We have already debated our amendment, with which we were seeking a stronger principle. Sadly, it was not accepted by the Government, but we will push this further as the Bill progresses.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clause 21
Content of notice imposing a conduct requirement
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clauses 21 to 25 set out the procedural aspects in relation to conduct requirements, because it is really important that SMS firms, and the people and businesses who rely on them, understand what obligations are being imposed and why. The DMU is required to give notice to the SMS firm and then publish the notice online as soon as is reasonably practicable. Clause 21 sets out the information that must appear in the notice.
Given the rapid pace of change across businesses and digital markets, it is important that the DMU can adapt conduct requirements to ensure that they remain targeted and proportionate, so clause 22 will establish the DMU’s power to revoke a conduct requirement, helping to ensure that conduct requirements remain targeted and proportionate as markets and firms change.
Clause 23 will allow the DMU to facilitate the smooth transition into or out of a conduct requirement. Without the clause, there is a risk of disruption or harm to businesses and consumers where a conduct requirement comes into force or ceases to have effect without a sufficient transition period.
The conduct requirements in clause 24 will impose tailored, enforceable obligations on SMS firms. It is only right that consumers and businesses, including the SMS firms themselves, have a chance to share their perspective on those obligations, so clause 24 requires the DMU to carry out a public consultation on its proposed decision before it can impose, vary or revoke a conduct requirement.
Clause 25 requires the DMU to keep conduct requirements under review, ensuring that requirements remain effective, targeted and proportionate. It also ensures that the DMU monitors where breaches may have taken place.
Alex Davies-Jones
Clause 21 sets out the information that the CMA is required to publish as part of the notice imposing or varying a conduct requirement. Labour supports the clause, which we feel is important for clarifying the details around the content of potential conduct requirements. Again, I am keen to understand exactly who will have access to such information. As ever, I would appreciate the Minister’s thoughts on that point. That aside, we see the clause as integral to the Bill, so we have not sought to amend it at this stage.
As with clause 21, we support clause 22 and its intentions in full. The only point that I feel is worth raising with the Minister is the slight ambiguity around the timeframes. It will be helpful for all involved if the regime is not only flexible, but rapid and able to evolve for changing markets. Can the Minister assure us that the clause will support this in practice?
Clause 23 is important and serves a vital function in establishing the transitional provisions related to conduct requirements. An example would be if a conduct requirement were imposed from a particular date, but some allowances were made in relation to certain aspects of that conduct requirement so that they had effect from a later date to smooth the transition for the benefit of a designated undertaking. That speaks to the nature of the regime: we all want to see it as flexible and fair, but it is therefore only right that the CMA be given appropriate statutory powers to vary its conduct requirements where required. We also welcome subsection (2), the details of which will enable and empower the CMA to investigate and enforce against historical breaches. That is vital, as we seek to establish a regime that will be sufficiently agile for breaches both past and present.
Clause 24 is also incredibly welcome. It imposes a duty on the CMA to consult publicly before imposing, varying or revoking a conduct requirement. The consultation must be brought to the attention of such persons as the CMA considers appropriate. We have already discussed who is an appropriate person, but sadly the transparency and commitment to consultation is not mirrored elsewhere in the Bill, which is frustrating. Given the broadly collegiate nature of our debate thus far, I hope that the Minister can consider some adjustments, and I look forward to hearing from him shortly. By and large, though, Labour welcomes the provisions in subsection (3), which provide that the CMA will be allowed to carry out a consultation on proposed conduct requirements before making a decision on designation. As we know, that makes it possible for the CMA to impose conduct requirements at the same time as issuing a decision on designation, or very shortly afterwards. We consider that to be a sensible approach, and we therefore support the clause.
Again, there is no need to repeat myself. Labour supports clause 25, which places a duty on the CMA to consider, on an ongoing basis, the effectiveness of any conduct requirements in place and how far the designated undertaking is complying with them. The CMA will also need to consider, on an ongoing basis, whether to impose, vary or revoke a conduct requirement, and whether it would be appropriate to take action against a breach of any conduct requirement. It would be helpful for us all to have an idea of how regularly the reviews will happen. It cannot and should not be the case that one SMS firm has its conduct requirements reviewed more regularly than any other, so I am keen to hear the Minister’s assessment of how that will work fairly and equitably in practice.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Mike Wood.)
Digital Markets, Competition and Consumers Bill (Sixth sitting)
Tuesday 20th June 2023
(10 months, 3 weeks ago)
Public Bill CommitteesRead Full debate Digital Markets, Competition and Consumers Bill 2022-23 View all Digital Markets, Competition and Consumers Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 20 June 2023 - (20 Jun 2023)
The Chair
Clauses 22 to 25 were debated this morning. With the leave of the Committee, I will put the Questions together on clauses 22 to 25 stand part.
Clauses 22 to 25 ordered to stand part of the Bill.
Clause 26
Power to begin a conduct investigation
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Science, Innovation and Technology (Paul Scully)
It is a pleasure to serve under your chairmanship, Mr Hollobone. Clauses 26 to 35 are about the enforcement of conduct requirements. The participative approach within the pro-competition regime means that the digital markets unit will aim to resolve issues with firms with strategic market status without the need for formal enforcement action. Where that is not possible, clause 26 will empower the DMU to investigate suspected breaches of conduct requirements by SMS firms and, where it finds a breach, consider what action can be taken. That is necessary to ensure that SMS firms comply with requirements.
Opening an investigation allows the DMU to make use of the full range of information-gathering powers set out in chapter 6. Where the DMU begins an investigation, certain information must be given via a notice to the SMS firm, and a summary of that notice must be published. Clause 27 will require that before the DMU can make a finding of the breach, it must consider any representations that an SMS firm makes in relation to the conduct investigation.
Clause 28 will allow the DMU to close a conduct investigation at any time without making a finding as to whether a breach has occurred. The DMU will need to explain why it is closing the investigation and account for its decision. That power is needed as it allows the DMU to react to changes during the investigation process. That could be, for example, needing to divert resources to an emerging high-priority competition issue elsewhere.
Clause 29 sets out the countervailing benefits exemption. The DMU’s objective is to promote competition for the benefit of consumers, and that will shape the design of its regulatory interventions, meaning that the DMU will take consumer benefits into account when designing conduct requirements in the first place. However, the inclusion of the countervailing benefits exemption provides a backstop to ensure that, if needed, consumer benefits can be explicitly considered at the enforcement stage, too.
During a conduct investigation, an SMS firm will be able to put forward evidence that its action brings about benefits for consumers that outweigh the potential harm to competition. That will reinforce that consumers are at the heart of the regime. The clause is not about pursuing textbook-perfect economic outcomes; it is about real-world outcomes for consumers.
Clause 30 will place the DMU under a duty to notify an SMS firm of the outcome of a conduct investigation within a six-month investigation period. That will ensure that investigations are executed within reasonable timeframes. That does not apply if the DMU has accepted a voluntary binding commitment from the firm relating to the conduct under investigation, or if the investigation is closed with no findings made. The duty to give a notice to an SMS firm and subsequently publish a summary online is vital to inform the firm under investigation of the outcome and keep relevant parties informed of DMU action.
Clause 31 will give power to the DMU to impose an enforcement order on an SMS firm where it has found a breach of a conduct requirement. Those orders will most often be cease-and-desist orders requiring bad behaviour to stop, but they can also require more complex behavioural changes where that is a more appropriate way to remedy a breach. When imposing or varying an enforcement order, the DMU has a power, rather than a duty, to consult those persons it considers appropriate. That will allow the DMU to consider relevant third-party and SMS representations on proposed enforcement action, while ensuring that enforcement orders requiring the SMS firm to simply stop bad behaviour are not delayed by a requirement to consult.
Clause 32 will grant a power to the DMU to introduce enforcement orders on an interim basis. The DMU needs to be able quickly to address immediate harms that may occur from suspected conduct breaches in order to prevent significant damage, prevent action that would make subsequent remedies ineffective, or protect the public interest. The clause will enable intervention before irreversible change occurs and will ensure that options to restore competition are maintained.
Clause 33 makes provision for the duration of enforcement orders and interim enforcement orders, and for the circumstances in which they cease to have effect. Clause 34 will establish the DMU’s power to revoke an enforcement order, ensuring that the enforcement orders in place remain targeted and proportionate. The DMU needs the flexibility to remove enforcement orders where they are no longer appropriate, so that SMS firms are not subject to unnecessary or inappropriate rules.
Finally, to ensure that enforcement orders are effective, targeted and proportionate, it is important that the DMU considers how they function and whether changes are necessary. Clause 35 will require that the DMU monitors the effectiveness of the enforcement orders in place. That includes assessing whether SMS firms are complying with existing enforcement orders, whether variation of an order is required and whether further enforcement action is needed.
In conclusion, clauses 26 to 35 set out robust enforcement provisions to make sure that the impacts of conduct requirements are realised.
Alex Davies-Jones (Pontypridd) (Lab)
It is an honour to serve under your chairship this afternoon, Mr Hollobone. With your permission, I will make some brief comments on the clauses, in response to the Minister.
Clause 26 is very welcome. It is an important clause that outlines the circumstances in which the CMA will be able to begin an investigation into a suspected breach of a conduct requirement, more formally referred to in the Bill as a conduct investigation. It is an important and positive addition. For too long, the CMA has not had the legislative teeth to make positive change in our digital markets. Ensuring that it has reasonable and sufficient powers such as those outlined in the clause is central.
Labour particularly welcomes the provisions and thresholds outlined in subsection (1), which make it clear that the decision to begin a conduct investigation will be grounded in empirical evidence, whether from complaints submitted by third parties or from the CMA’s own market studies. None of us wants to see overregulation or businesses stifled, but it is important that when the CMA has reasonable grounds to carry out a breach of conduct requirement, it has the tools available to act swiftly.
We note that subsections (3) and (4) outline the requirement for the CMA to give a notice to the undertaking about the investigation and set out the content required for that notice. We welcome the provisions entirely, as we do the clarification on the period in which a statutory investigation can take place. We think six months is reasonable, and we are pleased to see clarity on when the timeframe can be extended—a matter we will come to later when we address clause 102.
The current wording of subsection (6) states:
“As soon as reasonably practicable after giving a conduct investigation notice, the CMA must publish a statement summarising the contents of the conduct investigation notice.”
Could the Minister clarify exactly where, and to whom, that notice will be published? As I have previously stated in reference to other parts of the Bill, there are some grounds for making that information public, at least to those who request it. We appreciate the market sensitivities, but ultimately it is businesses that will be facing regulation over their digital practices, broadly for the first time, and they deserve access to that information. It will be a valuable tool for learning and best practice.
I will keep my comments on clause 27 brief because I think, or at least hope, that we all agree that it is an important clause that makes sure that the CMA is required to consider representations from the undertaking being investigated before making a decision on whether the undertaking has breached conduct requirements. I am keen to hear from the Minister exactly what sort of information he believes will be appropriate for the CMA to consider. A balanced approach to the regime is critical, but we do not want the CMA’s investigatory powers delayed by big firms who may choose to delay or overwhelm the process in any way. That aside, we support the clause and have not sought to amend it at this stage. Sincere apologies to Committee members for my repetition, but this is a far more collegiate Committee than others I have sat on.
We support clause 28 and its intentions. As we know, the clause provides that the CMA can choose to close a conduct investigation without making a decision about a breach, and sets out the process and timing for giving a notice to the undertaking about the closure and publishing a summary of the notice. We welcome provisions and clarity over this process. The CMA could summarise the contents of the notice provided to the relevant designated undertaking, while allowing it to redact some information for confidentiality purposes. However, we feel that there is a strong argument, once again, for making that information public to anyone who wishes to request a copy.
Labour welcomes the intentions of clause 29, which outlines the procedure that the CMA must follow where a breach of a firm’s conduct requirement results in net benefits for consumers. This is an important clause, and it is vital that we have such an exemption to ensure that the regime does not inadvertently harmfully impact consumers. However, the countervailing benefits exemption must not be drawn too broadly. If the exemption is too broad, SMS firms will be able regularly to avoid conduct requirement compliance by citing security and privacy claims, as well as spamming the CMA with numerous studies, thus diverting its resources, which, as we have discussed, are very precious. This would undermine the entire regime by severely limiting the efficacy and efficiency of the conduct requirements. I therefore wonder whether the Minister has considered including in the Bill an exhaustive or non-exhaustive list of acceptable grounds for exemption.
Broadly speaking, though, Labour welcomes the Government’s approach, which has similarities with the approach taken in the Competition Act 1998. It would be remiss of me not to remind the Minister that that important Act came into being thanks to a Labour Government. The reality is that Labour has always been committed to getting this balance right. We want to support big businesses, while also protecting consumers and encouraging innovation. These principles do not have to be mutually exclusive. That is why we particularly welcome clause 29(2), which sets out the criteria for the exemption, including that the benefits need to be
“to users or potential users of the digital activity in respect of which the conduct requirement in question applies,”
and must
“outweigh any actual or likely detrimental impact on competition resulting from a breach of the conduct requirement”.
As we know, some examples of benefits may include lower prices, higher-quality goods or services, or greater innovation in relation to goods or services.
Clause 29 also makes it clear that it must not be possible to realise the benefits without the conduct, which means that the CMA must be satisfied that there is no other reasonable or practical way for the designated undertaking to achieve the same benefits with less anti-competitive effect. That is an important clarification, which is once again a sensible approach that we feel is crucial to getting the balance of this regime right.
Although I know that colleagues will be aware of the example highlighted to us all in the Bill’s explanatory notes about a default internet browser receiving security updates possibly being an exemption, I wonder whether the Minister can give us additional examples of situations in which he would see the clause coming into effect. That aside, we support the intentions of clause 29 and see it as a positive step in terms of putting consumers and common sense first.
We see clause 30 as being fairly procedural, in that it outlines the circumstances in which the CMA must give notice about the findings of a conduct investigation. We are pleased to see that a period of six months has been established; none of us wants to see this process going on unnecessarily. We note, however, that in subsection (1), and in the Bill generally, we truly believe that more transparency is required. As it stands, the Bill is missing an opportunity to afford civil society, academics, businesses and consumers alike the opportunity to learn from the regime and ultimately to improve best practice in our digital markets more widely.
We welcome clause 31. However, we note that subsection (4) specifies information that the enforcement must contain, while subsection (5) requires that the CMA
“may consult such persons as the CMA considers appropriate before making an enforcement order”,
or varying one. Again, the wording is very subtle, but I am most interested to hear from the Minister exactly why the consultation process is a “may” rather than a “must”.
Throughout the Bill in its current form, there appears to be a lack of points for stakeholders to engage with the CMA decisions through consultation. Although the CMA being able to design rules and interventions for each firm could result in more effective remedies, it also increases the risk of regulatory capture, whereby SMS firms write their own rules and get them rubber-stamped by the regulator. That makes proper consultation essential. I would appreciate clarification on that point from the Minister.
Clause 32, as its title suggests, gives the CMA the power to make enforcement orders on an interim basis. This is an important tool to allow the CMA to act rapidly where a potential breach is concerned. It is particularly welcome that subsection (1)(b) lists the circumstances under which interim enforcement orders can be made, and that these are broadly around preventing damage to a person or people, preventing conduct that could reduce the effectiveness of the CMA, or protecting the public interest. It is important for all of us with an interest in the Bill that that is clearly outlined in the Bill, so that is very welcome indeed.
Clause 33 makes provision for enforcement orders and interim enforcement orders to come into force, and outlines the circumstances in which they cease to have effect. We see this clause as, again, a fairly procedural one. We welcome the clarity of subsection (4), which will ultimately enable the CMA to take action against historic breaches. That is imperative, given the pace at which our digital markets and regulated firms can shift. We therefore support the clause and believe that it should stand part of the Bill.
On clause 34, as with previous clauses, there is no need for me to elaborate at great length. In essence, we agree with the clause.
As we know, clause 35 outlines that the CMA must keep the enforcement orders and interim enforcement orders that it has made under review, including whether to vary or revoke them, and also the extent to which undertakings are complying with them and whether further enforcement action needs to be taken. This is an incredibly important point. The CMA must review its own homework, as we expect all regulators to do. However, I wonder what assessment the Minister has made of making those reviews public. The CMA must have a degree of accountability, particularly to Parliament. We feel that that is somewhat lacking in the Bill as it stands.
More widely, that points to the lack of opportunities for stakeholders to engage with the CMA and its decisions through consultation, as I have previously said. This is a significant problem, given the nature of the regime. On the one hand, the flexibility and agency that the DMU has to tailor its regulatory approach depending on the nature of the firm should allow it to design more effective remedies. On the other, it increases the danger of regulatory capture by SMS firms. I would appreciate the Minister clarifying that point so that we get this right.
Paul Scully
The publication of notices will be online. The reason that there will be two separate versions is that one might be redacted, for example for things like commercial sensitivity, but it is right that the SMS firm understands the full reasons. Beyond that redaction, there will be one separate online publication for people to see, including the challenger firms themselves.
The hon. Lady spoke about the length of time. The DMU will decide the length of the period during which an SMS firm can make representations, because it will vary from case to case. It is not for us to set an arbitrary timeline, because some will be comparatively simple and others will be incredibly complex and technical. That will ensure that the DMU can run investigations efficiently, without unnecessary delays due to late representations, but the DMU has to tell the SMS firm in the notice opening the investigation about the length of the period.
The implementation of any conduct requirements will be preceded by a public consultation, alongside ongoing engagement between the SMS firm and the DMU about compliance with those requirements as part of the regime’s participative approach. However, there is no statutory requirement to consult on enforcement orders, because we are giving the DMU the discretion to consult where appropriate. Requiring consultation would not be proportionate for straightforward cease-and-desist orders, for example. Such orders, which we expect to be the majority of orders made, simply require firms to stop breaching the original conduct requirement that has already been consulted on, meaning that undertaking a consultation would be unnecessary.
That is where we are coming from on that—there is no deeper reason beyond ensuring that we can keep things proportionate for all sides. Third parties with a view or with evidence will be able to communicate those to the DMU during the conduct investigation itself, or once the enforcement order statement is published.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clauses 27 to 35 ordered to stand part of the Bill.
Clause 36
Commitments
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
That schedule 1 be the First schedule to the Bill.
Clause 37 stand part.
Paul Scully
I turn to the clauses on commitments related to conduct requirements. The ability of the DMU to accept commitments, which are voluntary and binding obligations, from SMS firms is important to support the participative approach to regulation that I have spoken about. That approach promotes greater efficiency and the swift resolution of investigations.
Clause 36 will allow the DMU to accept commitments from a firm during a conduct investigation. Firms will be able to offer commitments to the DMU to propose a solution to a suspected breach of conduct requirements. There will be robust safeguards in place to ensure that commitments are used appropriately. The DMU will need to publicly consult on any proposal to accept a commitment. Commitments can be varied to reflect changes in circumstances and will remain in force until either the DMU decides to release the SMS firm from the commitment or the conduct requirement to which the commitment relates comes to an end.
Clause 37 will ensure that the DMU is required to monitor the commitments that are accepted. That includes assessing the appropriateness of the commitments; whether SMS firms are complying with the commitments; and whether further enforcement actions are needed. To ensure that commitments are accepted, varied or revoked in a transparent way, schedule 1 sets out the procedures relating to commitments.
The procedures in schedule 1 also apply in relation to commitments for pro-competition interventions, but I will speak about those at a later stage. Schedule 1 ensures that the DMU publishes a notice detailing the commitment or proposed varying or revocation of the commitment and the reasons for its decision. The DMU must also consider any representations made in accordance with the notice before accepting, varying or revoking commitments. Without the ability to accept commitments, the DMU would have to use greater resources to further investigate breaches, and then develop and impose enforcement orders to fix them. The swift and effective resolution through binding commitments will be beneficial for the DMU, affected firms and ultimately consumers.
Alex Davies-Jones
Labour supports the intentions of clause 36, which ensures that the CMA can accept binding voluntary commitments from an undertaking during a conduct investigation to bring the investigation to an end. Once again, we feel that that is critical to a flexible and fair regulatory regime. It is only right that the CMA is empowered to continue an investigation into other behaviour and, when it can, investigate the same behaviour again. Therefore, we particularly welcome subsection (4).
That being said, there is no mention of consultation regarding the accepting of commitments from SMS firms, even though that will close a conduct requirement investigation and the commitments accepted will impact stakeholders. There is also no consultation when the CMA chooses to release an SMS firm from the commitments. Again, we feel that those points are worth clarifying. I would be grateful if the Minister could outline exactly why the Bill fails to place a duty on the CMA to consult appropriately on that important point.
Schedule 1 and its provisions relate to the commitments on firms, and it is very welcome. The schedule outlines the duty on the CMA to publish a notice, and consider any representations made in accordance with the notice that are not withdrawn. That is a logical and sensible approach. We also welcome the range of provisions in the schedule that provide extensive clarity on the CMA’s responsibilities in relation to its decision making. We have repeatedly called for more clarity with a number of amendments, so I hope the Minister will carefully consider our reasonable requests. Overall, schedule 1 is an important part of the Bill that further clarifies the CMA’s responsibilities, and we support its inclusion.
Without mirroring the comments that were made when we considered clause 25, Labour supports clause 37. It is vital for the regime to function now and into the future that the CMA has a duty to review those commitments. I am interested to know the Minister’s thoughts on how frequent the reviews should be, but ultimately this is the right approach if we are to ensure and encourage total compliance. I hope that the Minister will assure us that the Government are open to improving the Bill when it comes to transparency, including parliamentary oversight. With that in mind, we do not have any specific amendments to clause 37 at this stage, but that could change.
Paul Scully
To answer the hon. Lady’s point about consultation in clause 36, I will point her to schedule 1(2), which requires the DMU to consult on commitments before they are accepted or varied. Although that requirement is not in clause 36, it is in schedule 1.
Question put and agreed to.
Clause 36 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 37 ordered to stand part of the Bill.
Clause 38
Power to adopt final offer mechanism
Paul Scully
I beg to move amendment 1, in clause 38, page 20, line 32, leave out “proposed”.
See the explanatory statement for Amendment 4.
The Chair
With this it will be convenient to discuss the following:
Government amendments 2 to 4.
Government amendment 45.
Government amendment 6.
Government amendments 8 and 9.
Government amendment 11.
Paul Scully
Government amendment 4 redefines what transactions can be dealt with under the final offer mechanism. It is accompanied by several consequential amendments to clauses 38 to 41. One of the conditions for the use of the final offer mechanism as currently drafted is that it can be used only in relation to a “proposed” transaction, where an SMS firm provides goods or services to the third party, or uses or acquires goods or services from the third party.
However, for the final offer mechanism to be most effective, it is crucial that the definition of “transaction” includes the future performance of an existing transaction, as well as new transactions that will happen in the future. That will ensure that parties who are already transacting with each other but on unfair and unreasonable payment terms are not excluded by the conditions for using the final offer mechanism. These are consequential, technical amendments that have been produced alongside feedback from the CMA.
Alex Davies-Jones
We welcome the first group of Government amendments, which we see as important clarifications to ensure that the final offer mechanism can be applied in relation to the future performance of an ongoing transaction. We support their inclusion, as those changes should stand part of the Bill.
Amendment 1 agreed to.
Amendments made: 2, in clause 38, page 21, line 1, leave out “proposed”.
See the explanatory statement for Amendment 4.
Amendment 3, in clause 38, page 21, line 7, leave out “proposed”.
See the explanatory statement for Amendment 4.
Amendment 4, in clause 38, page 21, line 13, at end insert—
“(4A) In subsection (1), ‘transaction’ means—
(a) a future transaction, or
(b) the future performance of an ongoing transaction,
whether in accordance with a contract or otherwise.”
This amendment, together with Amendments 1, 2, 3, 6, 8, 9, 11 and 45 means that the final offer mechanism could be applied in relation to the future performance of an ongoing transaction.
Amendment 45, in clause 38, page 21, leave out line 20 and insert—
“‘the transaction’ means the transaction mentioned”—(Paul Scully.)
See the explanatory statement for Amendment 4.
Question proposed, That the clause, as amended, stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 39 stand part.
Government amendment 7.
Government amendment 10.
Clauses 40 to 43 stand part.
Government new clause 1—Decision not to make final offer order—
New clause 3—CMA annual report on final offer mechanism—
‘(1) The CMA must, once a year, produce a report about the final offer mechanism.
(2) Each report must include information about—
(a) the number of final offer orders the CMA has made over the previous year;
(b) for each final offer order—
(i) the amount of time taken between final offer initiation notice being given and the final offer order being made.
(ii) whether bids were submitted by both the undertaking and the third party, and
(iii) the outcome of the process; and
(3) The CMA may provide the information in such a way as to withhold any details that the CMA considers to be commercially sensitive.
(4) The first report must be published and laid before both Houses of Parliament within one year of this Act being passed.’
This new clause requires the CMA to publish an annual report on the workings of the final offer mechanism. The report will be made publicly available and will be laid in both Houses of Parliament.
Paul Scully
Clauses 38 to 43 will allow the DMU to use the final offer mechanism as a backstop enforcement measure to other regulatory tools. The final offer mechanism will help the DMU to resolve breaches of conduct requirements requiring fair and reasonable payment terms when there has been sustained non-compliance by an SMS firm. The inclusion of these clauses in the Bill is essential to provide the DMU with a more effective alternative to setting prices directly, which could be complex and time-consuming in fast-moving digital markets.
The final offer mechanism is a backstop that can be used when normal enforcement processes have not brought about a timely resolution. The DMU must prevent SMS firms from imposing unfair and unreasonable terms in the first place and incentivise constructive negotiations. That will ultimately drive the best outcomes for consumers, which is why there is a high threshold set out in clause 38 for the use of the final offer mechanism.
On the occasions when the tool is used, the DMU will ask the SMS firm and relevant third party to each submit what they believe are fair payment terms—their final offers—and the DMU will then choose one. The regulator will not be able to amend or replace the offers. To ensure the timely resolution of the breach, clause 40 establishes that the upper time limit for the entire final offer process is six months, as well as providing for a power for the Secretary of State to amend that time limit in future. The clauses also establish clear requirements on the DMU to publish key notices and statements upon issuing any orders, ensuring public transparency and accountability about the tool’s use.
It is important when discussing these clauses to mention the role of the DMU in facilitating the preparation of the final offers. Under clause 39, the DMU can both gather and share crucial information between the two parties, allowing both sides to prepare a well evidenced final offer. The outcome of the final offer mechanism will be confirmed through a final offer order, which will instruct the SMS firm to give effect to the terms decided through the tool.
Government amendment 7 makes provision for how final offer payment terms are to be given effect for the purposes of the transaction. The amendment makes explicit that the final offer order will not set out specific terms that must be incorporated word for word into the terms of the transaction; rather it will set out the outcome for the transaction for the SMS firm to achieve. I therefore encourage Members to support its inclusion. The clauses also contain key provisions for ensuring that the use of this tool is proportionate, allowing the DMU to revoke a final offer order where there has been a material change in circumstances.
On that topic, I turn to Government amendment 10 and new clause 1. Taken together, they will ensure that the DMU can end the final offer mechanism without making a final offer order, at any time after giving a final offer initiation notice where there has been a material change in circumstances. Such a change in circumstances may include a privately negotiated agreement being reached between the disputing parties, or evidence of duress becoming known to the DMU. This amendment will therefore ensure the tool is not used where it is not appropriate to do so, and that the DMU has suitable flexibility to make that decision. I therefore invite the Committee to support these clauses and the relevant Government amendments.
Alex Davies-Jones
As we know, there are several provisions contained in the Bill that could form the basis of new rules regulating agreements between UK news media and digital platforms, akin to the news media bargaining code in Australia. However, the formulation of those rules will be at the discretion of the DMU, and would apply on a case-by-case basis. As we have debated, the Bill currently enables the DMU to impose conduct requirements that are for the purposes of obliging undertakings to
“trade on fair and reasonable terms”.
Those undertakings could also be obliged by the DMU to not carry on activities other than their digital activities in a way that could be anti-competitive. That could be the case where carrying out that non-digital activity is likely to increase an undertaking’s market power materially or bolster the strategic significance of its position in relation to its digital activity.
The Bill also provides an arbitration process called a final offer mechanism. Under that mechanism, the DMU will invite the SMS firms and third parties to submit a payment terms offer that they regard as fair and reasonable. The DMU is then required to choose one party’s offer only, without any ability to determine alternative offers. That process has been adopted in Australia for the purpose of arbitrating bargains between digital platforms and news media providers, although it has not yet been used. While there is no provision for a media bargaining code in the Bill, the mere existence of this mechanism will hopefully drive tech platforms to negotiate sincerely with media providers in that context to reach an agreement independently, rather than risk the CMA choosing the final offer. We entirely welcome this clause, and the additional relevant ones to follow.
In the digital media sector, Google and Meta’s overwhelming market power means that publishers are not compensated fairly for the significant value that their content creates for platforms, which is estimated at about £1 billion per year here in the UK. Google Search and Meta’s Facebook rely on news publishers to attract and engage users, as professional news content is reliable and regularly updated. It is absolutely right that the CMA will be empowered to make pro-competition interventions. While the conduct reviews will hopefully prevent the worst abuses of market power, PCIs will allow the DMU to implement remedies that address the root cause of that market power. For example, a CR could prevent an SMS firm from self-preferencing its own businesses in the digital advertising market, which has negative impacts including locking businesses into products and taking an unfairly large cut of revenues, whereas a PCI could require a functional separation to remove the incentive for self-preferencing. Labour sees that as a hugely important tool. We want to see and support an empowered DMU, so we are pleased to support the clause and believe it should stand part of the Bill.
Again, we see clause 39 as important: it sets out the process that the CMA must follow if it decides to use a final offer mechanism. In theory, the DMU should support publishers, who will now be able to negotiate fair and reasonable terms for the value that news content brings to platforms. If SMS firms refuse to comply, a final offer mechanism will be available, with each party submitting bids and the fairest offer being selected. The DMU will ensure that publishers receive a fair share of revenues for the advertising that is shown around their content. Publishers will also be able to receive user data when consumers interact with their content on platform services, in a manner compliant with data protection law. In theory, unfair commissions on app store sales will be prevented, ensuring that publishers can build sustainable digital subscription businesses.
These are all very welcome developments indeed. We particularly welcome subsection (3), under which the CMA must specify if it is considering taking any other action to address the underlying cause of the breach that led to the use of the FOM—for example, a pro-competition order instructing a designated undertaking to provide access for third parties to consumer data held by that undertaking, which could rebalance bargaining power within that digital activity. It will come as no surprise that I ask the Minister, once again, to clarify whether such statements will be published in the public domain. This important point is worth clarifying, so I look forward to hearing about the adequacy of the transparency provisions in this part of the Bill.
Government amendments 7 and 10 are linked to Government new clause 1. They clarify that parties can still settle outside formal processes once the FOM stage has begun. Given that the aim of the final offer mechanism is to incentivise parties to come to a deal without direct CMA intervention, it seems right that parties are still able to come to a deal outside this formal process. This may allow for more favourable terms to be reached, as the platforms will be under pressure in the FOM process, and it will mean that publishers can avoid the uncertainty of the CMA picking one of the two offers.
There will always be a concern that the asymmetry of resources might mean that publishers compromise too far when faced with the uncertainty of an FOM decision but, ultimately, Labour supported these provisions when they appeared in clause 40, and moving them to ensure that a deal can be reached outside the FOM at any time after a final offer intention notice has been issued seems to make good sense. We therefore support the Government amendments.
Unsurprisingly, Labour also welcomes clause 40, which establishes the process that the CMA must follow with regard to the outcome of the FOM process. We need not go into much detail on this clause, as we view it as a fairly standard and effective way of ensuring that proposed transactions are fairly processed by the CMA.
At this point, I must press home the wider importance of these final offer mechanisms because, if they are implemented correctly, they could have incredibly positive benefits. Indeed, we know that Google and Meta have attempted to ward off fair negotiations in Australia and Canada by restricting, or threatening to restrict, access to domestic trusted news, which is the antidote to online disinformation. Denying citizens access to reliable information to avoid payment serves only to emphasise the primacy that these firms place on profit, rather than citizens’ interests. The Government should not give in to similar threats here in the UK, and I hope the Minister is listening.
As the EU and other jurisdictions have forged ahead with similar, but less agile and effective, digital competition regulations, there is a danger that the UK will become a rule taker, not a rule maker. Delayed or weakened legislation will leave UK businesses at a competitive disadvantage internationally, and will deny UK consumers lower prices and more innovative products. In contrast, a strong, forward-looking DMU regulation will ensure that digital markets live up to their potential, allowing consumers to enjoy the full benefits that technology can deliver. I hope that the Minister can reassure us that the Government will not bow to pressure and that the CMA will rightly be compelled to intervene where necessary.
Labour supports the intention of clause 41, which we also see as standard practice. Colleagues will note that subsection (1) provides that a final offer order must impose obligations on the designated undertaking that the CMA considers appropriate for giving effect to the final offer payment terms it has decided, and they must be included in the proposed transaction.
Again, subsection (2) sets out exactly what information the CMA must give to the parties, and we welcome the provision. I further note that subsection (3) requires the CMA to publish a statement summarising the final offer order, and this transparency is also welcome. It is unclear who will have access to these statements, so I am keen to hear the Minister’s assessment of the value of making such documents public to anyone who wishes to seek them. This aside, we support clause 41 and believe it should stand part of the Bill.
Labour supports clause 42 and particularly welcomes subsection (3). This is an important clause as it empowers the CMA to take action on both historical and live breaches. Concerns reported to us by tech companies include requiring clarity on the terms of these final offer mechanisms. It is well known that many users sign up to digital platforms, via terms and conditions, to access a service with no monetary exchange as part of the agreement. Does the Minister see this counting as a contract that is challengeable via the final offer mechanism under the DMU regime? Although the regime appears clear, the final offer mechanism relates to pricing disputes and there are concerns that it could be drawn wider. Clarity on this point is vital and is worth establishing on the record, so I am keen for the Minister to address it.
I do not have any specific comments to make on clause 43. As we have previously said, Labour believes it is important that the CMA must be legally obliged to keep these final offer orders under constant review. This is the nature of a workable, agile regime, and we therefore support the clause standing part.
We tabled new clause 3 to require the CMA to publish an annual report on the workings of the final offer mechanism. This report should be made publicly available and should be laid in both Houses so that Parliament has its say.
We recognise that the final offer mechanism is fairly unique, and it is therefore only right that the CMA is required to update the House each year, with findings on the number of SMS firms that are subject to these investigations. The Minister mentioned that the CMA will be obliged to provide an annual report to Parliament; I want it to be clear that what we have set out in new clause 1 on the final offer mechanism would be part of that report so that Parliament could scrutinise how many were made, for example. This would add to and support the other transparency measures we have pursued, so I hope the Minister not dismiss the new clause, but will consider it carefully. We feel that that is an important matter to get on record in any annual review.
Paul Scully
I appreciate the spirit in which the hon. Lady has engaged in our debate on these clauses. I shall try to answer her questions in turn.
Publication will be online, so people will be able to see it. It will be public. The hon. Lady’s second question was: will I listen? Absolutely yes, I will. On her third question—will I not bow? I will bow to her, but not to pressure, because I think we have largely got this right. I cannot remember her last question—
Paul Scully
Oh yes. It is important that we examine the efficacy of the final offer mechanism, so it is appropriate that that will be covered in the CMA’s review of all its work, and that we will get to see and assess that work as well. I can stand here and tell the Committee that I think we have got it right now, but things change. Yes, it is flexible, and yes, it is proportionate, but we want to make sure that it stays world beating.
Question put and agreed to.
Clause 38 accordingly ordered to stand part of the Bill.
Clause 39
Final offer mechanism
Amendment made: 6, in clause 39, page 21, line 32, leave out “proposed”.—(Paul Scully.)
See the explanatory statement for Amendment 4.
Clause 39, as amended, ordered to stand part of the Bill.
Clause 40
Final offers: outcome
Amendments made: 7, in clause 40, page 22, line 25, leave out
“included as terms of”
and insert
“given effect for the purposes of”.
This amendment means that terms as to payment are to be given effect for the purposes of the transaction, or of any substantially similar transaction, rather than having to be “included” as terms of the transaction.
Amendment 8, in clause 40, page 22, line 26, leave out “proposed”.
See the explanatory statement for Amendment 4.
Amendment 9, in clause 40, page 22, line 28, leave out “proposed”.
See the explanatory statement for Amendment 4.
Amendment 10, in clause 40, page 22, line 36, leave out subsections (6) to (10).—(Paul Scully.)
See the explanatory statement for NC1.
Clause 40, as amended, ordered to stand part of the Bill.
Clause 41
Final offer orders: supplementary
Amendment made: 11, in clause 41, page 23, line 19, leave out “proposed”.—(Paul Scully.)
See the explanatory statement for Amendment 4.
Clause 41, as amended, ordered to stand part of the Bill.
Clauses 42 and 43 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Mike Wood.)
Victims and Prisoners Bill (First sitting)
Tuesday 20th June 2023
(10 months, 3 weeks ago)
Public Bill CommitteesRead Full debate Victims and Prisoners Bill 2022-23 View all Victims and Prisoners Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 20 June 2023 - (20 Jun 2023)
The Chair
We are now sitting in public and the proceedings are being broadcast. Before we begin, I have a few preliminary announcements. First, it is very warm, even after the thunderstorm, so if people want to remove their jackets or cardigans, that is fine. Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. Date Time Witness Tuesday 20 June Until no later than 9.55 am Domestic Abuse Commissioner Tuesday 20 June Until no later than 10.40 am Rape Crisis England & Wales; Southall Black Sisters; SafeLives Tuesday 20 June Until no later than 10.55 am Children’s Commissioner for England Tuesday 20 June Until no later than 11.25 am Dame Vera Baird DBE KC; Victims’ Commissioner for London Tuesday 20 June Until no later than 2.45 pm Nottinghamshire Police and Crime Commissioner; Association of Police and Crime Commissioners; National Police Chiefs’ Council Tuesday 20 June Until no later than 3.00 pm Parole Board Tuesday 20 June Until no later than 3.30 pm Crown Prosecution Service Tuesday 20 June Until no later than 4.00 pm Local Government Association; NHS England Tuesday 20 June Until no later than 4.45 pm National Association for People Abused in Childhood; Victim Support; We Are Survivors Thursday 22 June Until no later than 12.00 noon The Right Reverend James Jones KBE; Ken Sutton Thursday 22 June Until no later than 12.15 pm Lord Wills Thursday 22 June Until no later than 12.45 pm Nick Hurd; Tim Suter Thursday 22 June Until no later than 1.00 pm Refuge Thursday 22 June Until no later than 2.30 pm Jenni Hicks Thursday 22 June Until no later than 2.45 pm Dr Stuart Murray; Grenfell Next of Kin Thursday 22 June Until no later than 3.15 pm Sophie Cartwright KC
We will first consider the programme motion 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 questions before the oral evidence session. In view of the time available, I hope we can get through these matters quickly, as I am sure we will.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 20 June) meet—
(a) at 2.00 pm on Tuesday 20 June;
(b) at 11.30 am and 2.00 pm on Thursday 22 June;
(c) at 9.25 am and 2.00 pm on Tuesday 27 June;
(d) at 11.30 am and 2.00 pm on Thursday 29 June;
(e) at 9.25 am and 2.00 pm on Tuesday 4 July;
(f) at 11.30 am and 2.00 pm on Thursday 6 July;
(g) at 9.25 am and 2.00 pm on Tuesday 11 July;
(h) at 11.30 am and 2.00 pm on Thursday 13 July.
2. the Committee shall hear oral evidence in accordance with the following Table:
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 11; Clauses 16 to 21; Clauses 12 to 15; Clauses 22 to 33; Schedule; Clauses 34 to 55; new Clauses; new Schedules; remaining proceedings on the Bill.
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 13 July.
The Chair
The Committee will therefore proceed to line-by-line consideration of the Bill on Tuesday 27 June at 9.25 am.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Edward Argar.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room and will be circulated to Members by email.
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.—(Edward Argar.)
The Chair
We will now go into private session for a few moments to discuss lines of questioning.
The Chair
We are now sitting in public again and the proceedings are being broadcast. Before we hear from the witness, do any Members wish to make declarations of interests in connection with the Bill?
Elliot Colburn (Carshalton and Wallington) (Con)
I am chair of the all-party parliamentary group on restorative justice.
Rob Butler (Aylesbury) (Con)
I would like to declare, in the interests of full transparency, that prior to my election I was a non-executive director of what was then Her Majesty’s Prison and Probation Service and a member of the Sentencing Council. I was also a magistrate for 12 years and previously a member of the independent monitoring board of HMP Young Offenders’ Institution Feltham. I hope that covers the full gambit.
Jess Phillips (Birmingham, Yardley) (Lab)
In that case, I should probably declare that I have run sexual violence services, domestic abuse services, female offender services, human trafficking services and sexual exploitation services, as well as being the chair of the all-party parliamentary group on children at the centre of the family court and the vice chair of the all-party parliamentary group on domestic abuse. I think that is it.
The Chair
Thank you. I am happy to take declarations throughout proceedings if any Member thinks there is something they need to declare as we go through.
I welcome our first witness this morning, Nicole Jacobs, the Domestic Abuse Commissioner. We will now hear her oral evidence.
Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill and that we stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 9.55 am. Could I ask Nicole Jacobs to introduce herself for the record, please?
Nicole Jacobs: Good morning, everyone. I am Nicole Jacobs. I am the Domestic Abuse Commissioner for England and Wales.
Jess Phillips
Q
Nicole Jacobs: Thanks for having me today. In general, I have huge hopes for this Bill. If amended and changed, which I am sure we will talk about, it could really produce momentous change for victims of domestic abuse. I am here to talk about victims of domestic abuse. You obviously have a wider scope of victims to consider, but victims of domestic abuse are highly prevalent; in my mind, that also includes and has a very strong link to so-called honour-based abuse, forced abuse, sexual violence, stalking and harassment, because, for the vast majority of people in those categories, you would find that their perpetrator is either a current or former partner.
It is hugely important to think about, in each and every part of the Bill, where we could improve and how we could go further to make it more meaningful on the ground. That is my interest. As things stand now, my topline view is that there is a lot to work with here, particularly regarding the duty to collaborate. That has huge potential to transform services on the ground, if the provisions are implemented correctly, which is what we need to spend some time talking about.
Jess Phillips
Q
Nicole Jacobs: First, I hope you will consider the mapping report that my office produced; I will tell you a little about it. When I became commissioner, that was one of the responsibilities of my role, and last year we produced a mapping report of services for England and Wales. That is a very important document, partly because we have not had one before. It brought together information from commissioners, from domestic abuse services on the ground, and, really importantly, from thousands of victims who fed back about their experiences of seeking services in the last three years—on what they wanted, what they got, and what is actually out there. We have not had that information at our disposal before. We have a sense of what is out there and we have other types of reports, but this is pretty comprehensive.
The report showed how huge the gaps are. Part 4 of the Domestic Abuse Act 2021 brought us the accommodation-based duty, which of course was a huge step forward, but we have to appreciate that 70% of victims go to community-based services, which is what you are looking at in this duty to collaborate and how it is funded. We know that the vast majority of victims—over half—were not able to find services that they wanted or needed in that category. There are higher rates when it comes to services for children, and lots of variability regionally in services for children and domestic abuse. We are looking at huge gaps in mental health counselling and therapeutic support, and in services for perpetrators to change.
The stark reality that I want to get across to you—although you will know this, because you have constituents—is that there are huge gaps. We have come a long way in our thinking and our legislation about domestic abuse, but the services are not sustainably funded. That is simply the reality. I ran services myself, before I was in this role. To give you a sense of things, the charity I ran had about 34 different funding streams, which were always cutting off, with cliff edges at various points. It was a struggle to make ends meet and to keep services continuing. That is what the services are doing. They are not sitting in core budgets. Money is coming to them—and the good news is that, in particular in the past few years, we have had great money through the Ministry of Justice and other sources—but it comes to the local area in a not very coherent way for the services to plan and think about filling the gaps.
The duty to collaborate, therefore, is potentially truly transformational, but to be so it is not as simple as saying, “You must collaborate”, which is how I read some of the Bill as it stands. Services will have to plan for collaboration and bring partners together, while sometimes the geographical mix does not fit exactly and certainly the timescales do not fit. There has to be a joint strategic needs assessment, which sounds administrative, but it is the only way to make the best of such duties. That takes some time. Under part 4 of the Domestic Abuse Act, money was set aside for the needs assessment of housing and accommodation-based planning, and we have seen that in other types of things, like our serious violence duty. A very practical way to make sure that the duty is implemented well is to have the joint strategic needs assessment.
Also, very importantly, when partners get together and look around the table, cobbling everything together and getting everything in line as perfectly as they can, inevitably they will find that they do not have funding for certain things that we would all agree that we need—services for children particularly, or for domestic abuse. They will then need some kind of mechanism to feed back to us here and to decision makers in Government to say, “We have this gap. How is it going to be filled?” There has to be some kind of responsibility back and forth. That is the only way we will move in any kind of meaningful way to fill the gaps.
Jess Phillips
Q
Nicole Jacobs: Absolutely, and there needs to be some kind of language that creates a responsibility for when the gap remains and how it is dealt with at the national level.
One other quick thing to point out from the mapping is the need for “by and for” services. What I mean by that is services that are very specific to particular groups: deaf and disabled survivors; black and minoritised survivors; LGBTQ+ survivors. What we found in our mapping is good news—that they are, by any measure, the most effective services for victims. We can see that because in our survey we could compare people who got to those services and how they felt with people who did not. That is very unusual, because usually we hear from reports and surveys of all people who made it to a service; it is great to hear about that effect, but in this mapping we could compare the two groups, so we can see how effective the services are.
We can also imagine how those services could be not effectively funded at the local level, because their geographic footprint might be a little larger, so the planning needs to be more regional or national. Another thing that has to be recognised at this stage is that there is a need for a “by and for” pot, which would help to supplement what is then implemented locally.
Jess Phillips
Q
Nicole Jacobs: Certain parts of it could. Of course, that is highly dependent on what kinds of services are out there and what they are funded to do. On the definition of an independent domestic violence adviser and an independent sexual violence adviser, that work really needs refining, as does the duty to collaborate in terms of community-based services. You are absolutely right: most victims do not report to the police. The reality is that it is probably one in six. We published a report where we scoped specifically which community-based services are oriented to criminal and family court proceedings. For the family court, it is much less—around 18%. We can send that to the Committee.
Jess Phillips
Q
Nicole Jacobs: I would, and I would go even further. You will spend a lot of time in this Committee hearing from people who will tell you about how to correct the criminal justice response as if it starts only with our statutory partners—the police, the Crown Prosecution Service and others. I beg you to realise—I have done this work myself—that the real meaningful work for a victim is when you have the community-based service, the IDVA or ISVA, in the mix and interacting with the police and those partners on a daily basis. That is where the problem solving is. You will get to a point where you will not have to worry as much about invoking the victims code because everything is taken care of.
Jess Phillips
Q
Nicole Jacobs: That is a really important point. Imagine that you are on a team at a local level—that was my reality before I came into this role. In central London, in the year before I was appointed, 4,000 victims were referred to the service. They cannot be supported by a team of IDVAs as if that is all that is needed. The most successful teams are ones that are surrounded by other types of role that recognise that not all people will interact with the police or the criminal justice system, but they will need help and very practical support. I do not know whether I am putting that in the right way.
These roles have huge caseloads, just like a lot of our frontline services. They cannot be everything to everyone. A big step forward in the process would be to carve out and be clear. I am not as concerned about what roles are called; it is about the skills and knowledge that one needs to be at the table advocating with and alongside victims in the criminal justice system and other systems—housing, health and children’s social care. What are the skills and knowledge, and what tables should they sit at? The best work that I have ever done was when I was in a working system where I knew that there was an operational group with the police, the CPS and others that was oriented to that work. You could problem-solve. You could bring issues to the table that everyone grappled with together. You cannot do that without the advocate for the victim being in the mix and being supported to do that.
There is another thing that, if it were in the statutory guidance or provisions, would allow a huge step forward. We have done a lot of funding of these roles, but not a lot of development of what that really means. What is the salary? What are the skills and knowledge? What is the practice development for this type of criminal justice advocacy or family court advocacy? That would move us substantially forward. Those are all possibilities that we can achieve in the Bill if we get the guidance, funding and language right.
Jess Phillips
Q
Nicole Jacobs: No. I had heard something along the lines of there being an interest in making sure that there were improvements to parole. I was surprised, and I understand the arguments made about the optics of it. On a practical level, I feel strongly that we really have to achieve the ambition of the Bill.
On the parole reforms, I talk to families, particularly bereaved families, and they often do not have a very good experience of the parole system, in terms of feeling informed and feeling that their concerns about release are being dealt with. One of the things that I am most curious about regarding the last-minute changes is how strong the parole provisions will be and how the family liaison care will be improved. I am very interested in what mental health assessments will be required when prisoners are released who have committed domestic abuse or murder. You are right: my thinking about this is probably less developed, because this was added on quite quickly.
Sir Oliver Heald (North East Hertfordshire) (Con)
Q
Nicole Jacobs: I think broader is really positive. If you were to limit the definition to people who are accessing criminal justice remedies, then when it comes to domestic abuse, for example, that would narrow it way too much. Of course, the Domestic Abuse Act has a definition of children as victims in their own right. I am quite comfortable with the definition and feel good about what it is signalling, which is that in the victims code we want support for all victims, regardless of whether they engage with the police, for example. Services should be there.
One of my main concerns when it comes to genuinely providing services for all is that with domestic abuse, you are still leaving out migrant survivors and people who are in this country as students or with some other visa status; they have trouble accessing domestic abuse services. That could be fixed quite simply by allowing recourse to public funds for domestic abuse services for the period when a migrant is here—often victimised by a citizen here, let’s keep in mind. Having the provision of care that any other victim has: that is the one key thing I would highlight.
Sir Oliver Heald
Q
Nicole Jacobs: When I think of the impact of the victims code, the broadening of the victim definition impacts the fact that we want services for all in terms of what they need. A victim of domestic abuse, for example, may not ever have talked to the police, but may need housing support or support for their children and all sorts of things. Having that in place is really important. When you are talking about the obligations in the code in relation to people being informed about their case and all those things, to some degree quite a lot of victims will not need that if they are not engaging. In other words, I do not think it adds a huge amount of pressure that does not already exist on the statutory services in that regard.
Sir Oliver Heald
Q
Nicole Jacobs: I would not want the Committee to believe that there are not existing ways of training. Earlier in my career, I myself was part of developing the core training for IDVAs and doing that initial training, so I am fairly familiar with that. It is an accredited training. A lot of commissioners at the local level will require that level of training when they are tendering for community-based domestic abuse services, for example. I think you will hear from some charity CEOs later who can give you some more detail. Where we are is that while that is often included in commissioning standards, we need something more specific, more uniform, so that we—and, frankly, all our statutory partners—are really clear on what skills and knowledge these roles bring. I feel that we have this ability and need to carve out very specifically for criminal justice work and family court work what the skills and knowledge are that you need in particular.
The Chair
You have three minutes left.
Nicole Jacobs: Sorry. This is my job—I could talk about it all day. I think there is real scope to better define what good looks like for that, and that will impact the victims code and compliance with it. It impacts the multi-agency working at the local level. That would be a huge step forward.
Sarah Champion (Rotherham) (Lab)
Q
Nicole Jacobs: The skills.
Sarah Champion
Q
Nicole Jacobs: No, I see that a lot more as a role at the local level.
Sarah Champion
Q
Nicole Jacobs: I would have thought the Secretary of State, but I don’t know. You will be the best people to decide those kinds of things.
Sarah Champion
Q
Nicole Jacobs: Of the services that domestic abuse victims access, 70% are community-based services. Having worked at them, I can say that you do not need to compel them to fill the gaps. They exist only to provide those services, and they desperately want to provide more. They will engage with absolutely any process that would help fill gaps for the people they are working with.
Sarah Champion
Q
Nicole Jacobs: I would expect there to be a meaningful assessment at the local level—a joint strategic needs assessment—where the potential funders come together alongside service providers and experts in their area and think very critically about what opportunities they have. That will not be totally precise, because some of it would depend on bidding, so they would have to decide together.
Sarah Champion
Q
Nicole Jacobs: The Bill could open recourse to public funds to all survivors. It could also create a firewall between the police and immigration enforcement so that people who are desperately needing protection would not fear calling or talking to services because of negative repercussions. They would just know that they would be made safe. They would have safety before status.
The Chair
I am afraid that that brings us to the end of the time allotted for the Committee to ask questions. I thank the witness, on behalf of the Committee, for giving evidence this morning.
Examination of Witnesses
Jayne Butler, Ellen Miller and Dr Hannana Siddiqui gave evidence.
The Chair
There is a slight technical problem, so we will start with the witnesses who are here, and we will continue to try to get the other witness online as soon as possible.
We are now going to hear oral evidence from Jayne Butler, chief executive officer of Rape Crisis England and Wales; Dr Hannana Siddiqui, head of policy and research, Southall Black Sisters; and, if we manage to get the technology working, Ellen Miller, interim chief executive officer of SafeLives, via Zoom. Could the witnesses quickly introduce themselves for the record?
Jayne Butler: I am Jayne Butler, chief executive of Rape Crisis England and Wales.
Dr Siddiqui: I am Dr Hannana Siddiqui, head of policy, campaigns and research at Southall Black Sisters.
The Chair
Lovely. We now have Ellen joining us as well. Ellen, could you introduce yourself, please? [Interruption.] Ah. We will carry on, and hopefully Ellen will be able to join us as time progresses. Can I ask Anna McMorrin to ask the first question, please?
Anna McMorrin (Cardiff North) (Lab)
Q
Ellen Miller: I hope you can hear me okay. I am Ellen Miller, interim CEO at SafeLives.
Anna McMorrin
Jayne, can you tell the Committee what you think the Bill will do to tackle the historic low rates of rape prosecutions? Can you set out what you have said in your report today?
Jayne Butler: We had a lot of hope that the Bill would really change things for victims, particularly given the commitments that were made two years ago in the rape review. While there has been some positive progress on some things, there has been nowhere near enough to make a difference to the figures, and to the people on the ground who experience sexual violence and go to court. We can see that in the stats. It is evident, and does not really need me to speak to it.
There are still huge issues to do with the charges, conviction rates and use of scorecards. We talked in our report about the lack of understanding of who is using the criminal justice system and how, and a range of other things to do with victims and the specific legislation. For example, currently we do not have protection for counselling notes when victims come to court, and the Bill will not solve that. We do not have the security that victims will get support throughout the process and beyond. We hear time and again from people who report through the criminal justice system, then get to the end of the process and feel discarded. Those are the ones who are coming in, which we know is a tiny proportion of those affected by these crimes.
We feel that there is no genuine legacy in the Bill for ISVA roles, which have been really prioritised by the Government and funded at a much higher level than they were previously. They are highly regarded roles, but we still do not see the impact of them on the ground, and there is nothing to change that in the Bill. We see lots of hints at rights in the Bill that will not necessarily result in a genuine change for victims on the ground, because they will not have a way to pursue them—for example, through having independent legal advice that would help victims to challenge decisions that are made on their behalf, and to deal with it when the interests of the criminal justice agencies do not necessarily align with their own. That needs to be there, too. There is a whole raft of things; I could be here all day.
Anna McMorrin
Q
Jayne Butler: We know that rights are effective only if they go with equivalent responsibilities and accountabilities for not being upheld. To really make the rights in the Bill meaningful, and to actually change things for anyone who is pursuing a sexual violence issue within the criminal justice system, we would need an independent legal advice model that supports victims in understanding what is happening to them and how to make challenges. The Bill provides rights to people, and the idea that you can make a challenge—but no funding, no support and no way of actually making those challenges.
We are in a system where the criminal justice agencies are failing victims. The Bill gives victims more rights, but what does it do to support those already failing agencies to change anything? Right now, the responsibility for doing that falls time and again to the voluntary sector—to services that are underfunded and that constantly need to do more, challenge more and pick up issues and failures that come from individual cases and from systemic issues. Without any funding or decent proposal to give victims advice, the Bill leaves victims with nothing, and the voluntary sector with not enough funding and massive demand to pick up.
Anna McMorrin
Q
Jayne Butler: Sure. We would like to see a national hub provided for legal advice. We are not looking for that legal advice to give victims party status in legal proceedings; that is not what we are asking for. It is much more about ensuring that every time a victim has a problem to overcome, they can get some legal advice about how to challenge it. That might be a right to review; it might be a disclosure request for counselling notes or something else that is being asked for that they do not feel is relevant and that they feel is invasive and further traumatising them within the system.
We want it to be an independent service that will operate outside the current criminal justice agencies to ensure that victims feel that they have somebody who will act in their interests. A pilot has already been successful in Northumbria, and there is a strong evidence base that such models exist in other jurisdictions, including Australia, California and Ireland. We have put in a really detailed written submission to the Committee about this.
Anna McMorrin
Q
Jayne Butler: Not as it stands, no. Our concern is that it will not really deliver any improvements to victim services, partly because there is no funding attached to it. How do you ask people to collaborate around a massive demand without actually putting money in to provide those services? Often, we find in commissioning processes in this sector—and probably in others too—that as commissioners gain responsibilities, they pass some of the risk on to a provider, so we will start to see services being commissioned to deliver x within three working days for very small money. We have seen this across the board in other sectors before, and that is the real concern around this—that the duty to collaborate is not strong enough to give victims’ services, usually provided by the voluntary sector, a decent enough voice in talking about what is needed, demonstrating the demand and getting those service actually available for victims.
Anna McMorrin
Q
Jayne Butler: Potentially, yes. It is not necessarily my area.
Jess Phillips
Q
Jayne Butler: If it is one, I will be surprised. It is probably not—
Jess Phillips
Q
Jayne Butler: Not that I am aware of.
Jess Phillips
Q
Hannana, I will come on to you. My first question is: do you think that migrant victims of domestic abuse are currently included in the Bill?
Dr Siddiqui: Definitely not. The whole Bill is lacking, properly and in any meaningful way, any inclusion of protected characteristics. Black and minority women, for example, are not included, and migrant victims are definitely not included. The migrant victims should be central to the victims code, the definition of the victim and throughout the Bill. It is the only way that we can ensure all victims are provided for by the Bill.
Jess Phillips
Q
Dr Siddiqui: No. I think that most migrant victims do not approach the police or the criminal justice system to report domestic abuse and other forms of violence, primarily because they can be treated as an immigration offender and become criminalised, or they can be arrested, detained and deported. The fear of deportation is often the reason that prevents migrant victims coming forward. That is why a firewall, which is a total separation of the data sharing between the police and immigration enforcement, is absolutely necessary in order for them to come forward.
Jess Phillips
Q
Dr Siddiqui: Yes, there has to be a firewall and other legal reforms—for example, around no recourse to public funds. That needs to be lifted, so that victims can go to statutory agencies such as the police for help and support without the fear that they will be destitute as well as deported.
Jess Phillips
Q
Dr Siddiqui: There are hardly any. I mean, I would say that there should not be a statutory definition of IDVA and ISVA because it excludes most advocacy services that we have in community-based organisations, including “by and for” services. Southall Black Sisters, which is a pioneering organisation in advocacy services, does not fit the current MOJ model, which is very criminal-justice focused and largely looks at high-risk cases. We provide holistic services for victims of domestic abuse and a lot of that is advocacy work that sits outside the current definitions. You know, IDVAs and ISVAs also need development. They need guidance and improvement in pay and conditions. But I do not think that that needs to be done through a statutory definition. They definitely need more funding and you definitely need to give more funding for the “by and for” services with a wider definition of what an advocate is.
Jess Phillips
Ellen, can you hear me? I do not know whether I should make this declaration, but Ellen went to the same school as me. Ellen? Okay, I cede the floor if Ellen cannot hear me.
Elliot Colburn
Q
Dr Siddiqui: There is a duty to collaborate, but there is actually a lot of collaboration at a local level with funding agencies at the moment, but unfortunately they do not support migrant victims or victims from black or minority communities sufficiently to provide adequate services. You cannot have a duty to collaborate without having a duty to fund community services. More specifically, you need to fund specialist “by and for” services that are at the frontline in the community, providing services to enable migrant and other minority women to access mainstream services, including the criminal justice system.
There is also a need to change the law. The Bill on its own will not do it. You need to be able to remove the no recourse to public funds requirement for victims of domestic abuse so that they are able to come forward to and present themselves at the police, social services and elsewhere for help and support. At the moment, they cannot do that because they are frightened of being destitute or being treated as immigration offenders and deported. If you are going to look at protected characteristics, you have to look at migrants, at their specific experiences and at how they cannot use the criminal justice systems and local services. There is a need not only to improve funding for services, but to change the law.
Elliot Colburn
In the interest of time, I will cede the floor to my colleague.
Sarah Champion
Q
Jayne Butler: The announcement made in the Bill does not specifically mention counselling material. In our opinion, it does not bring about any new protections, but just effectively reinforces what already exists in law around the Data Protection Act.
Sarah Champion
Q
Jayne Butler: What we would like to see is a model that changes the legal threshold for access to survivors’ counselling records. This is not a blanket ban. What we are asking for is a test of substantive probative value. Again, we have seen this be successful in other jurisdictions. It would mean that CJS agencies have to make applications for access to a judge. There would be judicial scrutiny at two stages: a first one at the stage of access to the police, and a second one if it gets to the stage of being disclosed to the defence. It really protects that without, we believe, compromising any right to a fair trial or any rights that a defendant might hold in that circumstance. We have put a detailed written submission in to the Committee about this.
Sarah Champion
Q
Dr Siddiqui: There should not be a statutory definition, because under the current meaning of ISVAs and IDVAs, they tend to be criminal justice-focused and only deal with high-risk cases. They do not deal with the wider forms of advocacy services we provide, which tend to be on the whole more holistic and do not just focus on the criminal justice system; they look at the family court, the health and welfare system and provide services over a long period of time to women. It also does intersectional advocacy, which is about looking at a whole range of different issues, but it also looks at equalities.
Not all of them fit into the current definitions, and I think that if you define it, it will narrow what the definition is of an ISVA or IDVA. That means that the local commissioning bodies may not fund those services. The current services, of which a lot are run as “by and for” services that do not fit the current definitions, will not get funding. Historically, they are underfunded anyway, so they could disappear as a result.
Sarah Champion
Q
Dr Siddiqui: Yes, I think that a range of services—holistic services—are what the IDVAs should be dealing with. That is not just for high-risk cases. I would include medium and standard-risk cases, because risk changes rapidly. The models that exist for the community that are provided by the “by and for” sector include a whole range of things, including support services, outreach services, helpline advice and advocates. They do not fit the current models. The current model has always been restricted, and we have said so. Defining it in law means we could lose the funding we currently have for the range of services we offer.
Sarah Champion
Q
Dr Siddiqui: We would like a ringfenced fund that provides sustainable, multi-year funding to the “by and for” sector from central Government. There should be a duty to fund those services. I think the DA Commissioner estimates that there is about £300 million you need to give for the by and for sector. Imkaan, which is a voluntary umbrella organisation, estimates that £97 million is needed just for the “by and for” sector in black and minority communities. There needs to be sufficient funding that is long-term and provides holistic services that victims need in the community.
Sarah Champion
Q
Dr Siddiqui: No, most of the women we help do not actually know about the victims code. There needs to be far greater awareness, and it needs to be more inclusive in terms of language. It needs to be very explicit about protected characteristics and around migrant victims in order for it to reach and include everyone.
Rob Butler
Q
Dr Siddiqui: I wish I had the time to do that. I do not have an estimate, but I know that others have done those calculations. The Domestic Abuse Commissioner has done a calculation, which is about £300 million. Women’s Aid, Rape Crisis and Imkaan are all organisations that have done an analysis of what is needed.
Rob Butler
Q
Jayne Butler: I do not. There is a piece of academic work going on at the moment to estimate this. We all know that it is less than what these crimes cost society. What it costs to deal with victims and the long-term impact of these crimes in society is a lot less than victim support services. We would ask for more things. We have not talked about prevention. We want to see these crimes stop and that will cost money.
Rob Butler
Do you think we are talking tens of millions, hundreds of millions, or even more?
Jayne Butler: Hundreds of millions.
Rob Butler
Q
Jayne Butler: We have definitely seen incremental funding increases and recognise that those have been made. I do not think it is yet enough. We still have this really patchy provision of services. There are long-term issues around organisations that have been funded in the past and therefore exist versus where there are gaps. A lot more is needed to fill some of those gaps. Our waiting list in Rape Crisis is some 14,000 a year and increases constantly. We have seen an increase in demand of about 38% in the last year. We are seeing huge demand for those services, but that funding never quite touches it.
We also need to acknowledge that some of the delays in the last few years in the criminal justice system have really exacerbated things and mean that sometimes that new funding is not about helping new people. It is about the cost that they sit in the system for so much longer. I would like to know more about to what extent it is really making a difference to help more people.
Rob Butler
Q
Jayne Butler: I don’t think that people do always understand. It depends on what access to support they have had along the journey and who they are, but there is definitely more work that could be done on that and also in terms of how their individual cases are communicated. We hear time and again from people who have found out at a day’s notice that their court case has been postponed for months, if not years. So it is not only about knowing what is going to happen, but about being told when there is a variance and when that is changing for them individually.
Rob Butler
Dr Siddiqui?
Dr Siddiqui: I think you need an advocate to help you navigate the system. The information provided by the criminal justice system or by the courts generally is usually very little and victims do not really know what to expect. The fact that we are there as advocates and as a specialist service means we are able to give them the confidence to move forward. That is critical throughout the pre-trial, during trial and after trial. Nobody really cares about the aftermath except us. We are the ones who have to give them the ongoing support after the trial, so it is essential that the two work together.
Janet Daby (Lewisham East) (Lab)
Q
Dr Siddiqui: As I have said before, the victims code needs to be very clear about protected characteristics, particularly for migrant victims who lack the trust and confidence in the system to use it and to come forward. You need a wider definition of what a victim is. It needs to include witnesses. Also, a lot of our cases are transnational. When you are talking about what a victim is, you have to include families, friends and victims who have been dealing with international cases, which at the moment are not really being addressed. A lot of forced marriage cases and honour killings, for example, may take place overseas, but the families do not get any support in this country from the police and other agencies when they try to bring justice, even though the perpetrators may live in this country.
There is another thing that we need to include in the victims code when trying to define what a victim is. We know that a lot of women are falsely accused of perpetrating domestic abuse by their abuser, or defend themselves against abuse and may be treated as offenders as opposed to victims. It is really important that victims who defend themselves or who are falsely accused are seen as victims by the system. Groups such as the Centre for Women’s Justice are even asking for a statutory defence when women are driven to kill a violent partner out of self-defence. There is a need to look at our defences, and how we should treat those people as victims, not perpetrators.
Jayne Butler: To double what Dr Siddiqui just said, in terms of prevention work, we clearly do not want people to keep becoming victims. A whole host of work has been done on that. I refer back to the recent report of the independent inquiry into child sexual abuse on the ongoing scale of such abuse. We also see huge numbers of adult rapes, with vast numbers of people affected, so it is obvious that we ought to be doing some prevention work. We had the Enough campaign through the Home Office, but we do not have a wholescale approach. Possibly some kind of public health approach is needed, because this is such a big issue, which continues to affect so many people.
In terms of gaps and counselling, the ISVA role gets a lot of focus. That is really important because support for victims of sexual violence who are going through the court process is invaluable, but people also need access to therapy. Often those services are not funded. Most of our waiting lists are for counselling as opposed to ISVA support, because the funding has been put into the ISVA side of things, without the need. Charlie Webster wrote an open letter recently, which I think was mentioned on Second Reading, about her and Katie’s experiences. They just did not get that kind of support.
Janet Daby
Q
Jayne Butler: Our waiting list for therapy is about 12,000 people across services across England and Wales.
Janet Daby
Thank you. Ms Elliott, I should have declared that I am the chair of the all-party parliamentary group on children in police custody, and I sit on the Justice Committee.
Siobhan Baillie (Stroud) (Con)
Q
Dr Siddiqui: I do not know how the firewall could be abused. It is important that, if there were a firewall, it would give victims the trust and confidence to come forward and seek help, and would ensure that the perpetrator was held accountable. At the moment, a lot of the victims—because they have insecure status—are told by the perpetrator that they have no rights in this country. Usually, that means that if they go to the police and are arrested for being an offender, or are reported to the Home Office, what the perpetrator has said is reinforced by the system. Basically, the perpetrator is able to weaponise victims’ status to control and trap them. David Carrick is a high-profile example: he trapped a woman with an insecure status. He told her that if she went to the police, no one would help her. That is true for many cases we deal with.
Some of the evidence for how many people are being caught out by that is from The Guardian, which did some FOI research with the police. It found that in a period of two years, about 2,500 people facing serious crimes including domestic and sexual abuse, as well as trafficking, were being reported to the Home Office. A lot of women were in that: in one quarter, about 130 women who were victims of domestic abuse were served with an enforcement order. We are talking about a hostile environment for migrants, and we must remove all barriers to victims of abuse being able to access their rights to protection, safeguarding and justice by giving them the whole toolkit that they need to access those rights.
The firewall—where there is complete separation from sharing of data between the police and statutory agencies, and immigration enforcement—is one way of increasing trust and confidence among migrant victims. I do not see a problem. If they are referred to agencies like ourselves, usually we will help them to report the abuse, but we do it by being their support and being able to advise them, and dealing with any issues that might arise with the police when they report it.
After getting legal advice on their immigration status, migrant victims are able to think more clearly along the lines of, “Yes, I should report it, because I want safeguarding and some justice. I want to hold this perpetrator to account.” At the moment, perpetrators have impunity, because they know that the women will not get any help from the police, even if they turn to them.
Siobhan Baillie
Q
Dr Siddiqui: If the migrant victims have done a crime, the police do their normal duties to investigate crime. It depends what that crime is. If they are seen as immigration offenders first and foremost, rather than victims first and foremost, they will not get any of the help and support they need. They do not even have a chance to get legal advice on their immigration status before they are reported. They do not have a chance to go to a “by and for” organisation to get any support or advocacy, so it is essential that they have the chance to do that before there are any kinds of communication with the Home Office. Usually, that communication should be done through their legal representatives, rather than by the police.
A lot of police officers say to us that they do not agree with the fact that there is no firewall. A lot do not even realise that there could be negative consequences if they report migrants. There is some international work, and even some in the UK, on having good guidance or a firewall. For example, there has been work in Amsterdam and in Quebec showing that a firewall works. The potential for abuse is minimised. In Northumbria and Surrey, the police are all looking at ways for how to improve responses to migrant victims without reporting them to the Home Office as their first response.
Sarah Champion
Q
Dr Siddiqui: If they have committed a crime, of course they need to be investigated like anyone else.
Sarah Champion
Q
Dr Siddiqui: Yes; there is no automatic sharing of data.
Sarah Champion
Q
Dr Siddiqui: No, I think there is a postcode lottery. “By and for” services, in particular, are very thin on the ground. Even in areas where there is a high black and minority population, “by and for” services are not necessarily commissioned locally. That is why I am saying that the duty to collaborate is not enough. You have got to have a duty to fund and you have got to have ringfenced funding, particularly for “by and for” services and specialist services, for that to work. At the moment, the system does not work and I do not think that this will necessarily improve it enough.
The Minister of State, Ministry of Justice (Edward Argar)
Q
Dr Siddiqui: A joint SNA is important if you are going to have collaboration at a local level and it will help to highlight which gaps could be filled by which agency, but at the moment some of that work is being done locally and some of the gaps are still not being filled. For those with no recourse to public funds, there are hardly any services on the ground. For those from black and minority communities, or “by and for” services, there is hardly any funding in the local area—so even where a gap may have been identified, there is not the funding to fill it.
Jayne Butler: There has been a little bit of work done on this, in terms of the recommissioning of the rape support fund and thinking about how to share that geographically. The result, when you have the same pot overall, is that you end up reducing services in some areas. If we start to look at where the gaps are, but we do not put any more funding in, and we are just revisiting what is already there, the result will be that some services that are funded now, which have high demands, will be reduced. There is nobody sitting there who is seeing people within a week, or sometimes even a month or six months.
Edward Argar
Q
Dr Siddiqui: Our demand has really rocketed, particularly after the covid pandemic, and it has not really gone down. It has doubled in size. We deal with 20,000 cases and inquiries every year. Before, we had half that.
We must remember that the mapping report by the DA Commissioner has shown that only 6% of Government funding was being made available to the “by and for” sector. Even though the demand has gone up, the funding has not gone up. In fact, a lot of “by and for” services are in crisis and are having to close down or reduce their services.
The cost of living crisis is adding to the problem. Services are not able to pay their staff enough. They have to find more resources for service users. We are having to find money to supplement the rent and subsistence of victims with no recourse to public funds. Although we have money from the support for migrant victims pilot project at the moment, that is temporary and it does not give us enough money. It does not give a universal credit rate. It does not give us enough money to pay rent for a refuge. It does not give enough to cover living expenses. We are having to find that extra money in the cost of living crisis situation. That is really not sustainable.
The Chair
Order. I am afraid that brings us to the end of the time allotted for this panel. I thank our witnesses, Dr Hannana Siddiqui and Jayne Butler, for answering questions in the room. I also place on record our thanks to Ellen Miller, who was on Zoom, intermittently without sound, and gave up her time this morning to try to give evidence.
Examination of Witness
Dame Rachel de Souza gave evidence.
The Chair
Could I ask you to introduce yourself for the Committee, Rachel?
Dame Rachel de Souza: I am Rachel de Souza, Children’s Commissioner for England. I am very grateful to be here.
Anna McMorrin
Q
Dame Rachel de Souza: Absolutely. I have been a big supporter of the Bill. I have to say that the ministerial team’s civil servants have worked incredibly well with us throughout the Bill’s passage. One of the things we have been pressing them on is making sure that children’s voices and experiences as victims are at the centre of the Bill. That is obviously why I am here today. I am happy to see the duty to collaborate there, but I would like a bit more accountability around it, which goes the last person’s comments. I am really pleased that they are there, but if we are going to put children as victims in the Bill, we have to make sure that we recognise that they experience crime and being victims differently. What we need to put around them to make sure they are supported, and can process things and get justice, is different. I would almost like a duty of accountability as much as a duty to collaborate.
Anna McMorrin
Q
Dame Rachel de Souza: I had intended to reserve my comments to children as victims, because that is what I am here to talk about. I do not want to let perfection be the enemy of good. I want a victims Bill that has children at the centre and understands children’s unique experiences. From what I saw yesterday, there is a lot of work to do. There is a lot of work to do in terms of defining children as victims, looking at the support they need and making sure that the victims code of practice is in the right place for children. That is what I want to focus on.
Anna McMorrin
Q
Dame Rachel de Souza: Yes, absolutely. I was going to bring that up with the definition of children as victims. When I go around the country and talk to children, wherever they are—whether that is being held in police cells or children who are involved in drugs or whatever—I realise just how complex the situations are. You realise that these children are as much victim as perpetrator. Children tell me all the time that their experiences with the police make them feel like they are not victims but criminals. That is what we need to sort out.
Anna McMorrin
Q
Dame Rachel de Souza: I have seen some very diverse and excellent services. I would first point out The Lighthouse, which I am sure you are all familiar with and which is a superb example of services coalescing around children’s needs and understanding where children are. Some of the sexual assault referral centres for peer-on-peer sexual abuse are also fantastic, but we do not have a national network so that every child gets the same experience. Every child should get the best support, and it is just not there.
Anna McMorrin
Q
Dame Rachel de Souza: I have made an initial examination of what has been proposed around Jade’s law. We have to protect children. Obviously we need to ensure that there are not unintended consequences and we need to look in detail, but I would say, on the face of it, that the protection of children must have primacy, so I support it.
Anna McMorrin
Q
Dame Rachel de Souza: That is a deeply complex question, but I would be deeply concerned. Children in those situations are often the victims of abuse themselves, and we must protect them. I would not say that I can read the mind of any particular father, but we find time and again that everyone in the household has had that experience.
The Chair
We have less than eight minutes left and five Members are indicating that they wish to come in, so please keep questions brief.
Rob Butler
Q
Dame Rachel de Souza: I was pleased to see the victims code published yesterday. There is more work to do on it, particularly in relation to having a clear definition of children and ensuring that it is child friendly all the way through. We have been working with the team to try to do that, and there is a lot more work to do.
Rob Butler
Q
Dame Rachel de Souza: I think there is, but it is wider than that. We also need to look at children with special educational needs and ensure that we take into account and make use of the expertise around working properly for those children.
Rob Butler
Q
Dame Rachel de Souza: Yes. When you talk to children who are victims you very quickly discover that they do not necessarily understand or report their experience in the same way as adults. Often, there is often quite a lot of delay in their coming forward, and the kind of support they need is far more complex, which is why I am so keen on an approach like that of the Lighthouse, where the services really see the child as an individual and coalesce around them. Children talk to me a lot about having to tell their story lots of times. They experience the courts completely differently. I have pages and pages of testimony of young people who have had dreadful experiences in the courts, because the courts just do not understand that they are children.
Rob Butler
Some of us tried.
Dame Rachel de Souza: Yes, but kids say, “I gave them my texts, I gave them my statements, but look—they’re not taking it forward.” We need the advice around the child to recognise what it is to be a child; they do not necessarily have that step-back view.
We need to do more. I was pleased to see the mention of advocacy; we could develop that a lot more, rather than just say, “This public service needs to deal with it, or that one.” It is about the individual child advocate and the services coming together around the child. It does not necessarily have to be introduced at vast new expense. I think there is a question about how we can regroup services to work in a way that works.
Rob Butler
Okay. I am going to interrupt you, if you do not mind, because I know that so many colleagues want to pick up. But thank you very much.
Janet Daby
Q
Dame Rachel de Souza: First off, and it is the point I made before, it is about recognising in the definition of victims children who have been criminally exploited; that comes up time and again. If I had more time, I could give you pages of quotes from children who, because of their experiences—whether it was being strip-searched or something else—have spent years feeling that they were in the wrong when they were actually the victims. That definition would be protective in itself, to start.
However, we also need to recognise that children get very worried if they have not come forward to the police to say they have been victims. We need to make sure that they are recognised in the victims code as well. I think that would help and I have some definitional changes and some word changes that I can write to the Committee about, which I think could help there. Often, it is about just two or three words, but it could make that work.
Elliot Colburn
Q
Dame Rachel de Souza: We heard a lot from the people before me about how services really are not set up for children, and we have started to talk about how they can be set up to deliver for children. Ultimately, of course, Government and Government Departments have a responsibility, but I think it is about ensuring accountability at local level as well. It is always going to have to be multi-agency, because there are different strands of support for children, but we need to find a way, and with children it is probably in relation to the victims code. There is some value in focusing on youth justice holding that, but we need to try to go for the holy grail, which is to make multi-agency support work. I do not want to sound like a broken record, but I think that looking at how the Lighthouse has done it in Camden, where it has drawn together the different strands of health, social care, policing and youth justice, and actually made that work, can give us a blueprint for how to go forward.
Sarah Champion
Q
Dame Rachel de Souza: Yes. I was so delighted during the passage of the Bill that Daisy’s law was taken seriously; we worked with Daisy. I think that is a really important step forward, and I feel similarly about children of paedophiles, because it will be the same argument.
Siobhan Baillie
Q
Dame Rachel de Souza: We have good intentions, but what will be important is that that is in the VCOP and that we operationalise it properly, because I absolutely agree with you that when these situations arise, the earliest possible intervention to deal with parental conflict is what needs to happen.
I think we have—
The Chair
Order. I am afraid that brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank Rachel de Souza for her evidence this morning.
Examination of Witnesses
Dame Vera Baird and Claire Waxman gave evidence.
The Chair
Q
Dame Vera Baird: I am Dame Vera Baird KC.
Claire Waxman: I am Claire Waxman, independent Victims’ Commissioner for London.
Anna McMorrin
Q
Dame Vera Baird: No, it does not. First and most important for me, it does not deal with people who suffer from serious antisocial behaviour. Despite the fact that the behaviour is often criminal, it is not dealt with as criminal by the police, but is instead called antisocial behaviour. I am particularly worried about people who are persecuted at home. It is not about every bit of antisocial behaviour—if someone chucks a can into my garden, I do not expect to have victims code rights—but this Government legislated well to introduce something called the community trigger about seven years ago. It says that when it escalates to a particular level, you have a series of remedies to get all the agencies together to put it right. If it gets to that level, then it is seriously persecuting, and there are people who are suffering that.
I had cases when I was an MP years ago but they still came to me when I was the Victims’ Commissioner. A woman is in her home; lads sit outside drinking beer and chuck the can into her garden. If she complains, they chuck something at her window. They stamp on her plants. They kick the ball against the gable end all the time. They shout abuse. They have just picked a place to mess around, but often the person affected is already vulnerable. That is very worrying, but it is not treated as criminality; it is treated as antisocial behaviour. But if we look at it, stamping on the plants in her garden is criminal damage; chucking something at her, if it might hurt her, is an assault; much of this behaviour is likely to cause a breach of the peace, but it is never dealt with like that. Since the key to the Bill appears to be that you are a victim of criminal behaviour, the question is: who makes that decision?
If I go to Victim Support and say, “Please help me. This is happening at home,” does the fact that it is obvious that part of it is an assault make me a victim or not? I think that is a key question to answer in the Bill. Who decides what is criminal behaviour? Often, it is wrapped up exactly as I have described but dealt with quite differently by the police. If someone pinches a spade from my garden, I am entitled to my victims code rights, but if someone behaves like that to an older person, they have nothing. That is a very serious omission. It is very widespread and it is very scary for people.
Anna McMorrin
Q
Dame Vera Baird: Yes, it is imperative. Of course it is. To be fair, the Government did consult us. It took about two years to get the victims code together. In fact, I am not sure if Mr Argar was not the Victims Minister when it started the first time around. It took a very long time. We wrote back four or five times, although I have to say we brought no change. There must be meaningful consultation, but the Victims’ Commissioner has to be in there. Indeed, in all the provisions about drafting codes and making changes, where it says you should consult the Attorney General, you have to consult the Victims’ Commissioner as well. This is about victims.
Anna McMorrin
Q
Dame Vera Baird: I feel that they should be elevated. The third duty of the Victims’ Commissioner is to keep the code under review. They cannot do that unless they can bespeak data. That is not in the Bill. What happens to the data is that it is collected by police and crime commissioners, promoted locally—that is fine—and if it has failed locally, it is promoted to the Secretary of State. It needs to go to the Victims’ Commissioner as well; otherwise the Victims’ Commissioner cannot perform that bit of their statutory role unless the Secretary of State chooses to give them the data. That is obviously the wrong way around, because the commissioner will want to have a say in how it is collected, what the nature of it is, and what to do with it. I think that definitely needs elevating.
Anna McMorrin
Q
Dame Vera Baird: You are talking about the duty to collaborate?
Anna McMorrin
Yes, the duty to collaborate in the Bill.
Dame Vera Baird: I think the main deficit in that duty is that it needs to be a joint needs assessment, rather than a duty to collaborate in some way after each individual organisation has decided what its needs are. There is a role for a victims’ champion in every police and crime commissioner area. We have a fabulous example of a Victims’ Commissioner who is a victims’ champion here, but we do not need a full-time person in a little place like Durham, or a relatively minor place like Northumbria. You need somebody charged with the task, however, so locally they can pursue the interests of the victim.
Anna McMorrin
Q
Dame Vera Baird: It will do nothing to bring change—if that is really your question. I am happy that there will be a duty to promote it to the public and to victims. Actually, it is a very odd, one-sided duty to promote it to everybody except the agencies that have to deliver it. There is no duty to promote it within the agencies themselves, and they do not know much about it.
There is a statistic—from 2020, I think—that 70% of people who have been through the criminal justice system as victims have never heard of the victims code. We used Office for National Statistics data in 2021 and showed that 80% of victims who had gone through the entire criminal justice system had never heard of the victims code. The first code was in 2006, so it has been completely ignored for 18 years. The agencies that are obliged to deliver it have no duty in the Bill to promote it themselves. They have no budget to train their staff, because, as I understand the Bill, there is absolutely no funding of any kind behind it—I think it is called financially neutral. Any training, development or promotion has all got to be done out of somebody’s back pocket.
Anna McMorrin
Q
Claire Waxman: Sadly, no, not in its current form. I spearheaded the campaign nearly 12 years ago for a victims’ law; the ambition was to give victims legally enforceable rights to justice and support. We have had the code in place since 2006. Compliance with the code has always been low, and even though the Government have reformed the code four or five times now, that has not driven better compliance. This Bill is the legislative opportunity to improve that. I remind everyone that even delivering the code is a minimum level of service to victims. Even if agencies are complying and delivering it, it is still a minimum level.
The Bill is a legislative opportunity to transform the way that victims in this country are treated once they report and come into the criminal justice system. It is an opportunity to help them easily access support services to help them through recovery and their justice journey. Unfortunately, the Bill in its current form, when it is translated into practice, will not have any meaningful impact for victims who are going through the criminal justice system or trying to access support services.
Anna McMorrin
Q
Claire Waxman: I think it has a huge impact on the Bill. As I said, the original ambition was to give victims legally enforceable rights. Part 1, which is where it should be addressing that, is very thin, weak and insufficient. A lot more focus has now been put on to part 3. A huge amount of funding has been allocated to Parole Board measures—more than the entire Parole Board budget, I think—and what has been put forward in the measures is not what victims or families have called for.
I work directly with bereaved families in London and the agencies that support them, and not one bereaved family has actually called for these measures. The Government have said that it is about public safety, but if it really is about public safety then where is the reform on probation, which is underfunded and understaffed? That is a public safety issue that needs tackling, but that is not in the Bill.
Part 3, I am sorry to say, is a vanity project. I think it is a power grab by our previous Justice Secretary. We have a Parole Board in place who are the right people to make the decision on release. I am with families who have been eight years in the process; it comes around for them every four or five months. They can barely recover. They are in this process and it is relentless. Putting these measures in gives them a false sense of hope. We are telling them that there is a chance that the Justice Secretary can veto the Parole Board decision and that the prisoners will not be released.
What will actually happen in reality is that, yes, the Justice Secretary might veto, but that prisoner will then have legal aid to appeal the decision. They will appeal every decision, pulling the bereaved families into even more distress and trauma. When I asked the officials in the Ministry of Justice what allocation had been given to provide extra support to the families during this process, no support had been given—only to the prisoners to appeal. I have to say very strongly that part 3 is nothing short of shameful.
Anna McMorrin
Thank you. That is pretty strong.
Claire Waxman: Yes, because this is a victims Bill and we are here for victims.
Anna McMorrin
Q
Claire Waxman: Absolutely. Sadly, I work with too many victims of domestic abuse, rape and stalking who have tried to leave abusive relationships. Many will not have the courage to report to the police, so they just want to flee and leave the abusive relationship. If children are involved, unfortunately those victims are then pulled into family court proceedings, which are retraumatising and place them and their children at further risk because there is no support provision in the family court to identify who the real victims are and what support is in place to protect them.
If they do report to the police, the two jurisdictions do not work together. You can be a victim in the criminal court but be accused of parental alienation in family court, and your victimisation has been dismissed. I see far too many victims who are victims of crime, may not have had the confidence to come forward to the police, and are being treated very poorly in family court. Unfortunately, this Bill will not address anything for those victims.
Anna McMorrin
Q
Claire Waxman: I have published two London rape reviews and heard from many, many rape victims in London. One of the biggest issues that comes up for them is the request for their personal records, especially their counselling records. Many victims will decide to withdraw from the process and feel pushed out because they have to make a decision as to whether they are going to pursue justice or hand over their counselling records, which are about their thoughts and feelings and trying to recover from the crime.
I know the Government have brought forward some measures now, but those measures are already in place. The police and CPS should be requesting these personal records only if absolutely necessary. We need to have judicial oversight, and that is where the Bill needs to go further. We need to ensure that therapy notes are only requested and that the judge makes a decision around that. Yesterday the Government announced that the CPS would meet rape victims before going to court, to raise confidence, but that is not going to work if we are requesting therapy notes from rape victims. That alone—just requesting those notes—is a deterrent and will push many rape victims out of the justice system, and then we will be allowing serious offenders to act with impunity.
Anna McMorrin
Vera, may I invite you to comment on that issue?
Dame Vera Baird: I think back to being a barrister more than a decade ago, when there was no pursuit whatever of this kind of material. It simply was not done. Very occasionally, if it came up in evidence that there was some issue about someone’s medical records, for instance, they would be sought, because it was directly relevant. There would be an occasional case, but none of this was ever looked for.
What the issue is about is what Operation Soteria, the new way of policing rape, talks about—there not being investigation departments for rape in police stations, but there being credibility investigation departments for complainants. Before the tendency to want to question the credibility by looking at the most intimate details about the complainant emerged, the conviction rate was actually better, very considerably better, than it is now. It dropped catastrophically in about 2016, and that was about the time when this started to emerge. So if we can do fair trials without that material, we do not need to get it.
In order to deal with this now, there can be no complete ban, clearly. After a decade or more in which the police and the CPS have treated it as axiomatic that you take these documents from a complainant, we must make someone else take that decision. It has to go to the court, so that a provisional hearing can decide whether the material should be accessed by the Crown and whether it should go to the defence. And of course the complainant needs to be represented fully at that hearing.
What is badly missing from this Bill—well, a whole range of things are. I completely concur with Claire that it is not going to make any difference to the ordinary victim, because there is no means of enforcing their code rights. But for victims of rape, the announcement that Alex Chalk made recently will make not a jot of difference as long as it is the same police and CPS that are using the test and it is the test that has been there throughout.
Independent legal advice is missing. You need to just put that counselling stuff into the court, and that is that: you need a good reason for accessing it, and the court will decide. As for the need for representation in that court, there is a need for representation at an earlier stage so that, if possible, we can avoid the cumbersome court. If you have, as we piloted in Northumbria a couple of years ago, independent legal advice when the material is requested by the police in the first place, you can often negotiate it away by just asking forceful questions about what is necessary about it. Independent legal advice could serve that purpose, but then would offer representation if there was a serious demand for the material.
This has been happening in New South Wales, with an identical jurisdiction to ours, since 1998 and is in every other state in Australia, save for Queensland, which is taking it on. Claire has been to Canada, and I believe it is very effectively run in Canada, too. In the end, of course, it deters people from pursuing this kind of material, because they take a second look at whether they need it. And that might put us back where we ought to be.
In short—never a ban; always judicial oversight. We do need to get rid of this massive deterrent. I think that according to some figures that possibly you, Anna, or someone else in the Labour party produced, 70% of those who accuse people of rape now withdraw. A huge factor—a huge factor—is when they realise that their most intimate secrets are going to be disclosed to a CPS and police force that, for quite understandable reasons, they do not see as their allies. And then, perhaps, the material goes on to—even worse—the defendant, who caused them their trauma in the first place.
Anna McMorrin
Q
Claire Waxman: I very much support Jade’s law. I worked with a family many years ago whose daughter was murdered, and they tried to adopt the grandchild. The prisoner—the murderer—had the right from prison to stop that adoption, and to cross-examine the bereaved family as well. He got legal aid. They did not get anything. At that point there is a presumption of no contact—of course he did not get contact—but they were still pulled into the most inhumane proceedings after their daughter had been killed. We need to stop that and to ensure that those convicted of murder do not have parental rights to access those children for the duration of the prison sentence. That needs to be reviewed very carefully to ensure that the family are well protected from engaging with the prisoner.
Edward Argar
Q
I will ask a couple of questions if I may. One might be specifically for you, Vera, and I think the other will be broader. Adding to what you have already said, are there any other aspects of the role of Victims’ Commissioner, in the context of the legislation, that you would wish to see elevated? I know we used to talk about, for example, your report being put before Parliament and similar. There is a lot more here than that, but what other aspects would you wish to see elevated in terms of the role?
Dame Vera Baird: It is nice to see that the Victims’ Commissioner must lay their report before Parliament; we have done that for the past two years. We had to crusade our way in, but it seemed important to me that victims’ rights were elevated to a parliamentary responsibility, and that the report did not just go to the Secretary of State. That is already being done, and it is good that it is in the legislation.
The most critical thing is to get data in the way I have already explained, but a big gap—make no mistake, you do need to put this right—is that there is no means to enforce any of the rights under the victims code: not one. It is not even expressed in terms of rights.
Let me give one quick example; I am a nerd on this, even though I have tried to forget in the last couple of months. Right 8.5 allows you as a victim to have a separate entrance and a separate place to wait from the defendant at court. That could not be more important. If my child had been run down by some driver, the last person I would want to meet when I walked through the door of the Crown court would be him—still less with his posse round him, which often does happen.
That is a very good right, and the right continues, but most courts do not have separate entrances and waiting areas. If you let the court know you are worried, it will do its best, but this is supposed to be a right. Many, many times—I am sure Claire will confirm this from an up-to-date perspective—people do come face to face with the defendant as they walk into court, and it is quite terrifying. You have to put the victims code in terms of rights in the first place, but you also have to be able to enforce it. If in default that ultimately must come to the Victims’ Commissioner, so be it.
I have a completely different plan for how we should enforce the code, but there is a statutory rule stopping the Victims’ Commissioner from being involved in individual cases. We still have 70 or 80 cases a month individually sent to us, so there would be a lot if that were done centrally. My notion is that we should have a local victims’ commissioner in the PCC’s office. That need not be a draconian imposition on a PCC; it could be someone who was there for two days. Truly, in Durham, where there are about 1,000 police officers, you do not need a Claire. You need a much smaller status of person.
That person could be the recipient of the complaint, but their working practice ought to be that they have a duty to promote, which needs to be put into the legislation, with respect to victim support services and the use of the code, which is not there properly either. Obviously, you have to have a duty to promote the code internally, so the CPS, the police and the court know they have to deliver it. Then, the victims’ services commissioned by the PCC could argue that a certain person needed an interpreter, or ask whether they had been guaranteed a separate entrance to court. If that was not happening, you could go to the PCC’s office with a working practice of trying to put the problem right in the case. I would not want to meet the person and be able to complain afterwards that I had met him by accident. I would never want to see him.
If you have that local resolution, ultimately for complaints but in the first place to try and intervene through local tentacles—PCCs are quite powerful people now—then you could stop a lot of this damaging material. If you do not, the recipient of the complaint in the first place could be that Victims’ Commissioner champion, who would then take on dealing with that on a local basis.
In the end, I think there have to be penalties. I think police officers should be docked pay; I think the CPS should have something done to them. The first code was in 2006. Now it is 2023 and 80% of people have never heard of it, even though they have gone right through. It is not just that there is nothing to impel it; there is a culture of disregard built on there. You need to change that. If you started there, then somebody has got to take a complaint that is not reconcilable locally up higher and that could go to the Victims’ Commissioner, if that were an appropriate route.
Edward Argar
Q
One of the things you have both talked about is the need for people to be able to understand their rights, access them and know what they are, particularly in the context of the legal advice point for victims and complainants. I would be interested to hear both your perspectives. I know, Vera, that you ran a pilot programme on this up in Northumbria when you were PCC, which was done through you as the PCC. Were that to happen, what would be the right model for it? Would it be PCCs doing that, a national service or a regional service? To both of you: how do you think that might look were such a provision to be made, whether on a pilot basis and then extended or otherwise?
Dame Vera Baird: Two sentences. We could only do it the way we did it by recruiting solicitors from solicitors’ firms because we could not offer people contracts beyond the time of the pilot. So that is how we did it. However, the best way, in my view, is to have a lawyer in a place where independent sexual violence advisers—ISVAs—are also working so that the lawyer is steeped in the ethics and culture of what is going on and has that to draw on for cases coming through. Claire, you probably have more to say.
Claire Waxman: Looking at how this role has worked in London gives us a really good example and evidence of what should be changing. Some of the key issues that we see with victims is that, while the Bill is putting a duty on partners to promote the code to victims, we are still leaving the onus on victims to try and claim their rights. Victims who are just recovering or trying to get over a crime and go through the criminal justice system are not going to be in any state to claim those rights. We need someone to help them navigate that system.
On Vera’s points, first, there is no enforceability; the code is not even really defined as legally enforceable in the Bill and that is an issue. Secondly, there is no enforcement mechanism either. Most victims want to see some redress on their cases. They do not want to go through a lengthy complaints process. What is missing is having that separate entity or agency that works alongside the police and the CPS, so that the moment the victim reports to the police, there is someone supporting all the agencies to ensure that those rights and entitlements are being delivered to victims at the right time. We take the onus off victims to try and battle their way through the criminal justice system and claim those rights.
We also pick up problems if rights are not being delivered, as to how we tackle it there and then in order to keep the case moving all the way through the justice system. That is missing and those are really important mechanisms if we want victims to access their rights and we want to see better justice and recovery outcomes for victims. It is critical that we look at the Bill and how we can use this legislative opportunity to really transform the way victims are treated through the criminal justice system.
The Chair
Order. We have 15 seconds left, so that brings us to the end of this morning’s allotted time for asking questions. I thank the witnesses on behalf of the Committee for their evidence.
Victims and Prisoners Bill (Second sitting)
Tuesday 20th June 2023
(10 months, 3 weeks ago)
Public Bill CommitteesRead Full debate Victims and Prisoners Bill 2022-23 View all Victims and Prisoners Bill 2022-23 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 20 June 2023 - (20 Jun 2023)
The Chair
We are now sitting in public again, and proceedings are being broadcast. Before we start, I am happy for people to take off jackets, cardigans or whatever; it is very hot today, particularly in this room.
We will now hear oral evidence from Caroline Henry, Emma Barnett and Sophie Linden. I ask the witnesses to introduce themselves for the record.
Caroline Henry: Good afternoon. I am the police and crime commissioner for Nottinghamshire, and because of that I would just like to take a moment to mention the terrible events in Nottingham last week. I repeat again to the families and friends of those affected: you are in our thoughts.
This Bill proposes to introduce a requirement to collaborate. Partners are already working together to support victims in Nottingham, and in many other parts of the country.
Sophie Linden: Good afternoon. I am deputy Mayor for policing and crime in London, but I am joint lead on victims for the Association of Police and Crime Commissioners.
DCC Barnett: Good afternoon. I am the deputy chief constable of Staffordshire police, but I am the National Police Chiefs’ Council lead for victims and witnesses under the criminal justice co-ordination committee.
The Chair
Thank you. I ask people to speak up, because the acoustics in this room are dreadful.
Jess Phillips (Birmingham, Yardley) (Lab)
Q
Caroline Henry: We, as PCCs, absolutely welcome the duty requiring agencies to share data and to collaborate. PCCs take a big role in that. As police and crime commissioner for Nottinghamshire, I started a local criminal justice board, and I see those boards as an excellent forum where agencies can meet and collaborate.
Sophie Linden: You might get on to some of the points that I wanted to raise. We obviously welcome the Bill, but how it will work in practice will depend on what else happens in terms of strengthening the Bill, what the data collection is, what duties there are on other criminal justice agencies to provide the data to police and crime commissioners, and what the mechanisms are for when that data is not provided or for non-compliance with the code. If those mechanisms are not strengthened, there will be no step change in practice and in how victims are supported.
Jess Phillips
Q
Sophie Linden: I do think that, but the Bill could also look at other things. For example, police forces have a duty to provide data to police and crime commissioners, but the other criminal justice agencies do not have that duty. You could look at something like that—each of the different agencies having that duty. Then there has to be the guidance that sits underneath it for the criminal justice agencies to provide that data. The Crown Prosecution Service, for example, will provide data nationally. It is very difficult to get it regionally. The courts do not provide data, so there has to be clear guidance and practice—not just in the Bill—on data being collated in a consistent way and in a way that is useful to the police and crime commissioners. It has to be at force level.
Jess Phillips
Q
Sophie Linden: There is quite a reliance on relationships and the convening power of police and crime commissioners. There needs to be more strength and robustness put into the Bill in terms of enforcement and data collection.
Caroline Henry: You are spot on. What happens if we do not get the data? What do we do? It does not say what happens if we do not get it. That should be stronger.
Jess Phillips
Q
Caroline Henry: We can raise it with the Minister.
Jess Phillips
I am sure the Minister will be thrilled.
Sophie Linden: I am sure he is always pleased to hear from us.
Caroline Henry: There is a duty to collaborate, but there are no penalties if people do not.
Jess Phillips
Q
Caroline Henry: Funding has been talked about, potentially to give us an analyst. I am really keen that there is flexibility on a local level around what we might need, because it depends on your relationships. Analysts are great, and it is very hard to get hold of good analysts; that is a real challenge. But we might also need somebody to support the local criminal justice board as a manager to make sure that everybody collaborates and works together. There should be some flexibility in the funding we can have to help us make sure that we can pull everything together.
Sophie Linden: On the compliance issue, I think there needs to be something in the Bill, or that can flow through the Bill, that is akin to the way the Information Commissioner’s Office can work. If you have escalated it and nothing is happening, the Information Commissioner’s Office can ask for an action plan and impose fines. There has to be something like an end point by which if you have not got compliance and you are not getting the data, there is an escalation and enforcement route.
Jess Phillips
Q
Sophie Linden: I think it should be included in the code. The duty to collaborate is really important, but we have to make sure that what is in this Bill aligns with, and does not duplicate or cause complexities with, the Domestic Abuse Act 2021. There is obviously a duty to collaborate on domestic abuse accommodation, and there is the serious violence duty. From my point of view, speaking as deputy Mayor of London, I would want to see that duty to collaborate made wider for all victims. You should not start with the offence; you should start with the needs of the victim. At the moment, there are three categories, but I think it should be wider for all victims.
Caroline Henry: The definition of victims has been on my mind recently. It is a very tight definition in the Bill. The question is, how much wider do you need to make it? I would like to think about the included areas and get back to you in writing. ASB is one of the things that, as a police and crime commissioner, comes across my desk most. The victims mentioned in here, however, are on a different scale. It is so important that we get this right.
There is the word “victim” as well. I commission a lot of victim care. With what has happened in Nottingham, the word “victim” has put some people off getting help, because they are witnesses or have been traumatised by what they have seen—they are not immediate victims, but they have still been impacted by the terrible events of last week. The word “victim” is quite tricky to define.
Jess Phillips
Q
DCC Barnett: It is a long time.
Jess Phillips
Part 3 of the Bill seeks to increase the number of board members with law enforcement backgrounds, to give a different perspective of offenders. Will that help to strengthen public confidence in the Parole Board?
DCC Barnett: The first thing I would say is that the dealings of the Parole Board are not specifically in my portfolio, although I have a view. It is a very positive thing to include a breadth of perspective in the Parole Board setting and to give confidence on experience of risk management, risk assessment, decision making and so on, which can add value for the Parole Board.
Let me turn to a couple of other points you made at the outset. First, policing welcomes the victims Bill and its intentions. I guess we are in a unique position, because we are very used to the accountability mechanism that is proposed through local PCCs, recognising the independent nature of chief constables and the local accountability that exists through the elected bodies. If the Bill is to be a success, that will be around how that accountability spreads beyond policing across all the agencies, so that the victim’s experience can be understood from the point of reporting to the police right the way through to resolution and even beyond, into the parole setting. We welcome the understanding of where accountability may be strengthened through what is proposed to include the other criminal justice agencies that we work alongside.
We know that in the delivery of some of the rights, for example, our success in delivery is dependent on other agencies supplying us with the information we need to be able to pass on to victims. That is about how we work together and the local arrangements that are put in place. That is the strength of relationships. We welcome the opportunity of good visibility of data to understand compliance.
Jess Phillips
Q
DCC Barnett: I think this is a broader issue around how we collaborate as agencies with all victims. So much of that is based on how information flows, for example, so that we can keep victims updated about the experience of their case, their investigation, their court case and so on. We must have that good understanding of how we can work together to have the information to service the needs of victims.
We have been working closely with the Ministry of Justice on the suitability of metrics and—this is really important, because it is not only about the metrics of compliance with the code—on the victim’s experience: the qualitative information in the victim’s voice, the victim survey and the work of the Home Office to generate a victim satisfaction survey. Again, that is very much focused on policing, but I think it will start to give some good insights into the whole victim experience.
We are confident in a number of compliance measures going forward. We need to understand fully how we go about collating that information, and then passing it on in a transparent way to PCCs and criminal justice boards.
Siobhan Baillie (Stroud) (Con)
Q
Caroline Henry: I agree that not enough victims know that the code exists. That is why we need the Bill; we need to let people know that the code exists.
Siobhan Baillie
Q
Caroline Henry: We need to increase transparency around whether the victims code is being complied with. We all need to be talking about victims more, and keeping victims at the heart of this all the time.
Sophie Linden: As with any Bill, it will come down to practice and how it is delivered. The underpinnings of the legislation, and getting compliance and enforcement right, will help with that. I monitor it from my position in the Mayor’s Office for Policing and Crime; we monitor policing compliance with the code. It is very low, but we have done some work with the Metropolitan police around trying to raise the awareness of officers, and making it much easier for police officers to let victims know what is in the code. For example, we have helped the Met to produce a victims care leaflet. Something as simple as that, which has information about the code in, has started to make a difference with victim satisfaction and with compliance.
There is, however, a long way to go. You need all the agencies to have that legislative framework, so that there is compliance, there is an escalation and then there is enforcement. Those two things together, and proper monitoring, which is going to be down to the police and crime commissioners, should help improve awareness of the victims code among victims, and, importantly, among professionals. It is the professionals who are there to support the victim, and it is their duty and responsibility to ensure that the victims know about that.
DCC Barnett: I would not say anything different. It is key for all police forces. When we launched the revised code back in April 2021, chief constables had a responsibility for how that was delivered across their forces. We have training materials through the College of Policing and all forces will be monitoring their own compliance with the code, as well as the qualitative side through victim satisfaction.
Awareness of the code cannot just be around the agencies turning up to deal with the victim. That is a key part, but it is almost too late at that point. There should be a heightened awareness of the code anyway, so that if people are then unfortunate enough to be a victim there is an understanding of what the code is. It is also about being really clear on what aspects of the code are relevant to a victim at any given time. Obviously, that will change as they go through their experience of the criminal justice system.
Siobhan Baillie
Q
DCC Barnett: I think it is a really positive step forward. One of the real challenges with the delivery of victim rights is when we get to post charge. At that point, you start to bring in a number of different agencies. It goes back to the earlier point around how information flows and communications are delivered; if you are not careful, it can become a very confusing time for victims. I think it is our responsibility as agencies to streamline that process as much as possible and make the communications as effective as possible.
A victim should not have to worry about who, at a particular time, they are entitled to see or who should be supporting them. The notion of the CPS having those visits is really positive. I think they are a good engagement to have, but I think they need to be carefully operationalised around the other contacts and support that might be available to a victim, so that it does not become too confusing or an overload.
Caroline Henry: It is really important that wherever we can we have an independent sexual violence adviser to support and help with CPS contacts—to hold people’s hand as they go through the system.
Sophie Linden: Obviously I really welcome that, but I think it is just part of what needs to happen. At the moment, as I am sure you are all well aware, the victim has interaction with the police, the CPS and the courts. What you really need to look at is how that becomes a seamless service with one point of contact. In London—I am speaking on behalf of London now—we are exploring the victim care hub, which would bring all that together so that there is one point of contact and the victim is able to get updates and understand what is happening right across the piece.
Of course, the individual agencies have their specific roles to play, but the Bill could help that to happen. For it to happen, there has to be the relevant data sharing and there has to be the ability to track the victim through the system—not through policing, then the CPS and then the courts. At the moment you are tracking the crime, you are tracking the case and then you are tracking into court, and those things do not meet. You therefore have different points of contact for the victim, and you need to be able to either—at a minimum—interrogate the different databases or look at how you bring all that together. I think the Bill could make it easier for the agencies to share that data.
DCC Barnett: I would really support that. We look at this—again, I think the Bill does this—as a process of separate agencies, each with its own touch points to a victim’s experience of the criminal justice process, as opposed to looking at it from a victim’s perspective. Where do they get the information that they need? Where do they get the support that they need, whether that is reporting the crime with no further action or whether it goes right the way through to waiting for their court dates, what it means to give evidence in court, the outcome, parole consideration and so on?
Caroline Henry: I would just add that the victims who choose not to go down the criminal justice route or to report to the police still need support from all the agencies.
Maria Eagle (Garston and Halewood) (Lab)
Q
Caroline Henry: I would absolutely like some of it in part 1, but we do need to remember that if you stop people reoffending, you are actually stopping us getting more victims as well. Parole and preventing and managing reoffending are really important.
Sophie Linden: I would always go for additional. But in terms of the duty to collaborate, at the moment it is a duty to collaborate literally on a strategy—there is no additional funding for the services and the gaps that might flow from that in the way that there was for the Domestic Abuse Act 2021 and the duty to collaborate around safe accommodation. There was significant additional money provided for that, which was welcomed.
Also, in terms of code compliance and the analysts that are being talked about by the Ministry of Justice—we are having discussions with them—at the moment my understanding is that it is a one-size-fits-all of two analysts per force area. Now, forces are vastly different in size and—just speaking on behalf of London, West Midlands, Greater Manchester or any other force with more complex arrangements—there are different numbers of organisations that they are going to have to make sure are complying. So this is just not going to be right—you cannot have one size fits all.
Then we have to really look at whether this funding really adds up to what is needed. For example, in London we recently did a needs assessment on sexual violence services. That cost us £110,000. If you add that up for other forces, this is not going to meet what is needed in terms of additional burdens.
DCC Barnett: I would support that in terms of looking again at part 1. With the duty to provide the data, we have a nervousness around the cost implications for forces. A lot of the measures are based on dip samples and having a really close assessment of what has been undertaken. There is no provision at the moment for additional resource to do that or to assist in taking forward the insight that that information gives us. This is an opportunity to work with PCCs to understand the roles that are accommodated and how the data is used.
The other point that I would make is about the demand for our witness care units and witness care officers, who have a lot of responsibility under the code to deliver the information to victims on what is happening with their case post charge and post first hearing. They are under a lot of pressure, given the time it takes for cases to come to court and the additional complexities and vulnerabilities of victims. Anything that helps us with managing those pressures and giving additional training and support, in terms of resourcing, would always be welcome.
Maria Eagle
Q
Sophie Linden: I think they could, but it will be dependent on proper support for victims. It is a difficult thing. There has to be a proper assessment of what victims’ needs are for them to be able to participate. There needs to be proper support for victims to do that, and then there will have to be funding to provide those support services.
DCC Barnett: I would agree. I think it is a very well-intended notion, but there are some risks around the impact on victims as well as around raising expectations.
Maria Eagle
Q
Sophie Linden: I think it could improve, but it is not strong enough. My overarching view is that it needs strengthening, but we welcome the Bill. It needs significant strengthening in the way that I have talked about, in terms of compliance, enforcement, proper data sharing, duty to provide the data and then the ability to access other agencies’ databases, at a minimum. It would be better if we could track a victim through the system, rather than tracking them through policing, then the CPS, then the courts. I hope that there will be significant amendments to strengthen the Bill.
Caroline Henry: It is great that work has been done together already. I would like to thank the Ministry of Justice and yourselves for letting the Association of Police and Crime Commissioners be involved with putting the Bill together. I do think that it will definitely improve things for victims, because it puts things on a statutory footing. That is what we need.
DCC Barnett: If I speak on behalf of the policing role, I think it does put it on a statutory footing, and it is a real opportunity to continue the work we have been doing over recent years to strengthen our overall performance within forces around the service that we deliver to victims. The question mark for me relates to making sure we take the opportunity within the Bill, whether that is through a strengthening arrangement around compliance or the accountability piece, so that we can understand how the victim traverses the criminal justice system and their experience of it. It must not just be—as I think it is at the moment—front-loaded around the code and the policing activities. It has to be seen as a whole. That is an opportunity in the Bill, and if we take that, overall service should improve.
Rob Butler (Aylesbury) (Con)
Q
Caroline Henry: Personally, I feel that I have a directly elected mandate to be the champion for victims in Nottinghamshire and to make sure that they get the justice and support they need. That is what my office does, so I am happy that my office will continue to support victims. I do not think we need a separate victims’ champion; I think it could be confusing locally if that happened.
Rob Butler
Q
Sophie Linden: I know you had Claire Waxman in front of you this morning, and you are well aware of her role as an independent Victims’ Commissioner. It was an incredibly important development, when the Mayor was elected, that we appointed an independent Victims’ Commissioner. There is a very clear distinction between my role in holding the police to account and her role in bringing in the voice of the victim and advocating for victims. There has been no issue with the confusion of roles in London on that.
I am speaking for myself, not on behalf of the Association of Police and Crime Commissioners, because there is a difference of opinion, to be frank, but I think every force should have a victims’ advocate who is there purely as a victims’ advocate. The police and crime commissioner should use that voice coming into the commissioner’s office in order to be able to improve the services we commission.
Rob Butler
Q
Sophie Linden: My experience is that the Metropolitan police take my voice seriously and take Claire Waxman’s voice seriously. I think it makes it more powerful that there is a very clear voice coming in that is absolutely grounded in the experience of victims that she brings with her office and the work she does—for example, the rape review and her own analysis of victims code compliance in London—and then I am there as deputy Mayor and as police and crime commissioner to hold the police to account, having taken her advice.
Rob Butler
DCC Barnett, do you have a view on that?
DCC Barnett: I guess it is about being really clear about the lines of accountability. It is very clear that PCCs hold chief constables to account. That said, someone who brings the voice of the victim is absolutely going to help to shape service delivery. The two roles do not need to be the same. We can be very clear on a distinction around absolute accountability, but there is a wealth of information and experience that a victims’ commissioner can bring to a force area and all the criminal justice agencies.
Rob Butler
Q
DCC Barnett: I guess it may well be covered in other legislation. It is about recognising that there are a number of requirements on policing in order to further an investigation for consideration by the Crown Prosecution Service. I know that a lot of work is done around minimising those requirements, because we would all like to see speedier access to justice. We also recognise that there are good reasons why those requirements are in place. Whether those can be addressed through the Bill, I do not know; I would have to give that a little more thought.
Rob Butler
Ms Henry?
Caroline Henry: I know that the police officers and staff would much rather not be redacting all that information, but be getting on with their job. It would be a great vehicle if it could be included in the Bill. Going back to the independent victims’ champion, one of the ways I listen to victims is through the local criminal justice board; we have a victims sub-group, which feeds into the board. I also go out to speak to people all the time.
Rob Butler
Q
Caroline Henry: Our police work really hard. That wouldn’t be the first thing you’d want to do, would it?
Sophie Linden: An important issue is whether you are enforcing against the institution or the individual. In the Bill, you should be looking at the institution.
DCC Barnett: I absolutely do not support that suggestion. It is not about individuals; this is about the organisation’s ability to deliver. I will say that we have a robust complaints process, so if someone wishes to make a complaint about the police aspect, the code delivery or the service that people have had, they can make a complaint. That will then be assessed—it might be service recovery or quick resolution, or there might be a performance issue with an individual or a conduct issue if it is very extreme—and that works very well in policing. I would not advocate anything like what you suggest.
Janet Daby (Lewisham East) (Lab)
Q
Caroline Henry: I would like to give some written evidence on that, if that is okay, because I have a lot to say.
Janet Daby
Fair enough.
Sophie Linden: On the face of it, that sounds extremely interesting. I would be in favour of looking at how the Bill focuses on children. We know that trust and confidence—coming forward to the police—can be a real issue for young people and children. I would be interested in looking at the Bill to see what it means for children, where that compliance fits in—with the youth offending teams, which is partly there—and how the duty is enforced and monitored.
DCC Barnett: Again, the code defines victims, and that includes children and young people. Whether that is something specifically around how you might define a child when you first deal with them, I do not know. I would have to give that a little more consideration. I will put it in some written evidence. I am not totally sure that I understand exactly where Rachel de Souza is coming from, but perhaps I can understand that a bit more first.
Maggie Throup (Erewash) (Con)
Q
Caroline Henry: The definition of victim here would not include indirect victims who were not a direct witness of, or directly impacted by, the crimes that happened in Nottinghamshire last week, but they so need support too. As a commissioner, I have commissioned Notts Victim Care to be there to pick up the calls from people who are grieving and are traumatised, even though they were not directly impacted. It is having such an impact and such a ripple across our city, and not just our city: people have gone home from university and are all over the country. They might not think of themselves as victims, but what happened last week has made them so.
Maggie Throup
Q
Caroline Henry: It would be nice if there could be something in this Bill, but I am keen for it to get through. There are so many things I want to add on.
Maggie Throup
Q
Sophie Linden: Indeed. There are two things here. The role of an independent public advocate is an important one and we would support it. We should probably get back to you with more detail in terms of looking at the Bill and what we might or might not want for that independent public advocate. It is important because of what Caroline says about when those tragic events happen with a lot of witnesses, and that can be a problem.
In London, the way we have commissioned the London Victim and Witness Service has enabled us to stand up that response for events, but that does not mean—I will put it the other way: we do support an independent public advocate because I think there is a role for them.
DCC Barnett: Again, the Bill describes that role of an independent advocate, which I think is supported. In times of major incidents, as part of the overall response you will get support from family liaison officers, for example, but they also work closely with victim support services to identify those who would benefit from support. As for whether there needs to be more within the Bill itself, I think we would have to give that further consideration.
Sir Oliver Heald (North East Hertfordshire) (Con)
Q
One of the things we have heard from earlier witnesses is that a larger group of people should be covered by the term “victims”. For example, it could cover people involved in anti-social behaviour cases, and somebody suggested that people who are migrants and worried about their status should be dealt with in the Bill in a special way. Of course, the duty to collaborate and the services covered by that duty are quite specific, and there are a limited number of advisers who have been trained in independent domestic violence and sexual violence work. We have heard that there is quite a need to develop those roles—to have some core skills that are understood and so on. Is there a danger that we expand the definition of victim to the point where the services that are available just cannot cope?
Caroline Henry: The independent domestic violence adviser and the independent sexual violence adviser work is very niche and absolutely essential. I would welcome more funding for more. I know we have quadrupled funding for it, but we still have a waiting list, especially because of the court delays.
Sophie Linden: I support the expansion to include victims of anti-social behaviour, because I think it should be the victim, not the offence, that is given the support. The danger is not funding it enough. In order to mitigate that risk, there should be funding; it should not be that you are ringfencing only a certain type or a certain offence. That is where I would come from, because we should be led by the victim’s needs, by their vulnerability and by revictimisation. So I support antisocial behaviour being part of the definition of victims.
From my point of view as deputy Mayor of London, one of the things we are pushing quite strongly and have been lobbying for is that, for migrant victims, we are keen to see in the Bill the ability to keep a firewall for victims who have insecure immigration status. We know that it is putting people off and victims are suffering.
The Chair
Order. I am afraid that brings us to the end of the time allotted for questions. I thank the witnesses on the Committee’s behalf for their evidence.
Examination of Witness
Martin Jones gave evidence.
The Chair
Q
Martin Jones: I am Martin Jones, chief executive of the Parole Board. I have been undertaking that role since 2015.
Ellie Reeves (Lewisham West and Penge) (Lab)
Q
Martin Jones: I certainly think there would have been a benefit. I always think there is benefit in pre-legislative scrutiny. I have taken legislation through in the past as an official and there would certainly be benefit in Parliament understanding what the impact would be.
On consultation with the Parole Board, it would be fair to say that it was very limited ahead of the provisions being introduced to Parliament. The root-and-branch review was published in the spring of last year, setting out what the proposals would be. Ahead of the Bill’s publication, the details of what it contained were shared with us, but I would not say that we were asked for our views on what was contained in the legislation.
Ellie Reeves
Q
Martin Jones: The current release test is set by Parliament. It is a very clear, simple test as to whether the prisoner’s continued detention remains necessary for the protection of the public. That means that public protection is always paramount in our decision making. Of course, when we make those decisions, we have to have regard to all the different factors involved in a prisoner’s case: the progress they have made in custody, the nature of their index offences, whether they have been well behaved in custody, whether they might have taken drugs in custody, and whether they might have done positive work, such as education and training. We take account of all those factors when we reach a Parole Board decision.
I would say that what is on the face of the Bill, in reality, gives effect to what the Parole Board already says in its guidance that we should take into account. We think that the legislation should make no significant changes to our practice.
Ellie Reeves
Q
Martin Jones: The slight danger is that the Parole Board practitioners start to view the matters that are on the face of the Bill as more important than other factors. The Bill is clear that it is not an exhaustive list, and the Parole Board can, of course, take account of whatever factors it believes to be relevant in the individual case, but the fact that Parliament puts a certain set of factors on the face of the Bill means that you will always have to have regard to that.
Allegations is a particularly important area when you are assessing the risk of a prisoner. It most commonly comes to the Parole Board when, for example, you are talking about an allegation of domestic violence. It often comes up, and particularly with somebody being recalled to custody. It may not be a proven allegation, but what the Parole Board may see is a pattern of behaviour with a person being arrested on a number of different occasions, alleging perhaps an assault against a partner. Those charges may not end up being brought to court and may not be proven, but when we are deciding whether someone is to be released, we want to ensure that we understand the pattern of behaviour. It was certainly something that was important to us as part of the DSD case—that is the Worboys case—in relation to how we take account and what weight we add in making those decisions. So previous allegations is a really important point for us.
Ellie Reeves
Q
Martin Jones: It is important to be clear that the Parole Board has always taken the view that it is important that you are able to challenge a Parole Board decision if either the victim, the Secretary of State or a prisoner thinks we have got our decision wrong. Ultimately, our decisions are judicial decisions made independent of Government and based on evidence and the law.
In 2019, the Government introduced a reconsideration mechanism that enables parties to come to the Parole Board and say, “We think you’ve got it wrong.” It is very closely based on the grounds for judicial review, and that provides a way for us to then review that case, normally via a judicial member of the Parole Board looking at all the evidence that the panel took account of and deciding, via a decision that is now published and available for the public to see, whether that decision was rational and fair. We have no problem with people challenging that.
The problem with a block on the decision and the veto amounts to two issues, one of which is: will it subsequently stand up to legal scrutiny? Parliament and the courts have been very clear that the final decision on whether somebody is safe to be released or not has to rest with a court. Until this Bill came along, that court has always been the Parole Board, subject only to judicial review. If you have the Justice Secretary intervening and blocking that release, it will have to go up, according to the Bill, to the upper tribunal to decide whether that decision should stand, and they will apply very similar principles of judicial review to look at the rationality of our decision.
In almost all cases, in my experience, when the Parole Board makes a decision, the reason we release somebody is because the professionals—the offender manager, the prison officers, the probation officer and the psychologists —say that the person is safe to be released. It is really important that we do not make decisions out of the air: they are based on the evidence presented to the panel. In my experience it would be highly unusual for us to go against that. But, of course, we are a court and we have to look at the evidence independently.
It is very difficult to see how, if the decision gets blocked and it goes up to the tribunal, and you look at all the evidence and the evidence is pointing towards release, and it gets blocked, that will withstand a subsequent challenge. The Parole Board has suggested that an alternative way would be to have a substantive appeal—which could indeed be wider than judicial review, if that was what Parliament decided—and that would provide an effective mechanism to stop and have a review of Parole Board decisions if you genuinely think we have got it wrong. That would add additional balance into the system.
My concern would be building up unrealistic hopes in the eyes of victims. I meet loads of victims: they are getting terribly upset and you can understand it. If you have been the victim of a serious crime—20 or 30 years ago you have lost a member of your family—and that person is up for parole, that is always going to be a difficult experience. But I am not sure that simply delaying release by two to three months is good for victims if a significant number of the decisions do not subsequently stand up to scrutiny by the courts.
Ellie Reeves
Q
Martin Jones: You are absolutely right: generally speaking, particularly in what we describe as the tier 1 cases—cases of murder, rape, terrorism, or causing or allowing the death of a child—the average size of the dossier of information provided to the Parole Board will be somewhere between 500 and 1,000 pages. Our members will in most cases ordinarily consist of a judge—a retired judge, sometimes a retired High Court judge; an independent member, who might be a retired police officer, a retired probation officer or prison officer; and maybe a psychologist or a psychiatrist if somebody has a mental health condition. They will consider that in detail and spend anywhere between half a day to a day hearing evidence from all the people at the hearing to determine whether that person is safe to be released or not.
If the Secretary of State then usurps that, how will he get sight of the evidence that the panel has carefully weighed in the balance to make the final decision? Decision letters are normally 15 to 20 pages long, explaining the legal basis of why we think that person is safe to be released or not. You certainly need an equivalent process if that is going to withstand a challenge subsequently in the tribunal.
Ellie Reeves
Q
Martin Jones: That would be an additional challenge. At the moment, I guess the closest approximation you have is the mental health review tribunal, which makes decisions about the release of people from hospital or prison. If you have mental health conditions, that goes up to the tribunal. But this would be new work for the tribunal.
It certainly seems to me that the tribunal would need training in relation to risk assessment. The lifeblood of the Parole Board is understanding the progress that somebody has made and ensuring the processes work. Clearly, if you are going to have, under one part almost, a reconsideration of the case as a whole, that will be quite a complex decision if you are potentially dealing with a significant volume of cases being challenged.
Maria Eagle
Q
Martin Jones: In my seven years of experience running the Parole Board, I cannot think of a single case where we would say that we cannot make that decision. We would say that is our job—take the evidence presented to us, do a risk assessment and decide whether that person is safe to be released—on some incredibly difficult, complex and sometimes controversial cases. I cannot imagine a circumstance in which a Parole Board would not deal with that.
The only circumstance I could possibly imagine is where we did not believe we had the full information to enable us to make the decision—perhaps on a terrorist case where there is sensitive information. But over the last three years, particularly following London Bridge, we have worked very closely with the Department and other agencies to ensure that the Parole Board always sees the most sensitive information in those cases, to make the right decision. That includes ways of seeing very sensitive information without disclosing the full information to the prisoner. That is really important to ensure that the public are kept safe.
Maria Eagle
Q
Martin Jones: First of all, it is important to be clear that we already have police officers on the Parole Board. They are an incredibly important part of our decision making, alongside all the other experience—the judges, the psychologists, the psychiatrists and others. We have had a look at the release rates by different types, and in reality our members are trained and we bring in people who are driven by the evidence, not by their vocation.
I think there is a problem in saying that a particular person must be on the panel for a particular group of cases. Certainly, it adds an additional layer of operational complexity to us to ensure that we have enough police officers. If you look at the numbers in the explanatory memorandum, it is about 2,000 cases a year; we would need quite a lot of police officers on the Parole Board to ensure that those cases are appropriately panelled.
Ultimately, it goes back to the fact that the Parole Board is a court in law. In reality, it is best for the court to decide who are the appropriate people on cases, depending on the complexity. Sometimes, we might have a case in which somebody was convicted as a child and has severe learning difficulties. It might be more important to have someone with that experience on a panel, rather than a police officer.
Maria Eagle
Q
Martin Jones: My concern would be about the nature of the decisions we are asked to make. Parliament has decided that we should decide upon the release of people convicted of the most serious offences. Ordinarily, the classic would be someone serving a life sentence for murder or other very serious offences of rape, terrorism and other things. None of those decisions are easy; none are decisions that will not have caused potential public anxiety and huge damage to the victim.
If you look at the numbers, we make around 16,000 decisions a year about whether people are safe to be released. We release about one in four, so 4,000 people each year. We probably get a controversy and lots of media attention in around five of those decisions, so it is a tiny number of cases. I have been working in public service for 30 years, and I understand why you get that attention on particular decisions if they are high profile, but I think there is a danger in trying to take aim at the chair of the Parole Board, who has had nothing at all to do with the decision in that case. Indeed, under the Bill they would not even decide who should sit on that case, but they could be told that they should be removed.
I would say that, of course, it must be right that if someone is not up to the job, there should be a way of removing them from that job. I think we would all expect that, living in public life. There is already a protocol in place that would allow a Secretary of State to follow a process in a fair way to remove the chair of the Parole Board if they believe they are not fulfilling their functions. My concern is that if it is used simply because the Parole Board has made a controversial decision, that potentially impacts on the independence of the Parole Board.
The Chair
That brings to a close the questions for this session. Thank you for coming this afternoon and answering questions.
Examination of Witness
Jan Lamping gave evidence.
The Chair
Jan, could you introduce yourself for the record, please?
Jan Lamping: Good afternoon. I am Jan Lamping, the chief Crown prosecutor for CPS Service Yorkshire and Humberside and the chief Crown prosecutor with the thematic lead for victims.
Anna McMorrin (Cardiff North) (Lab)
Q
Jan Lamping: The CPS is very positive about the Bill and we support its aims of improving the service to victims. The aims align with our victim transformation programme. We think it is positive that, for the first time, principles of the code are included in legislation.
As far as whether any category of victim is missing, there has been discussion about victims of antisocial behaviour. It would be a matter for Parliament as to whether they were included, but from a CPS point of view, we only consider cases that are referred to us by the police, so if there were a case with a victim of antisocial behaviour, we would apply their code rights in the usual way.
Anna McMorrin
Q
Jan Lamping: Our staff are really committed to complying with the rights. As an organisation, that is really important to us, so our practices and policies are written with that in mind.
Obviously, there can be problems and it is important that victims are able to complain, should they feel their rights have not been met. We have a robust complaints procedure that has several stages. At the first and second stages, the complaint would be dealt with within the local CPS area—at the second stage, by a very senior manager. With a service complaint—non-compliance with code rights would be a service complaint—there is a right for victims to complain to the independent assessor of complaints. The independent assessor has the power to make recommendations about our practices and procedures; to recommend that we give an apology, if we haven’t already; and to make a payment. There is the parliamentary and health service ombudsman as well. That is not the only oversight; there is oversight by our inspectorate as well, and we are superintended by the Attorney General
Anna McMorrin
Q
Jan Lamping: They are two very different things. The “Speaking to Witnesses at Court” guidance says that when witnesses attend court, we would speak to them at that point. When they arrive on the day to give evidence, we introduce ourselves as prosecutors or paralegals, and explain what is going to happen on the day.
The new duty is different, in that it would apply to every rape and serious sexual offence victim after a not guilty plea. It would be a more detailed meeting, so we would make the offer following the not guilty plea. We hope that people would take us up on it. It is an opportunity for us to try to give witnesses confidence in the process, because we know that there is likely to be quite a long time before the trial, to reassure them and to make sure that support is in place, because speaking to witnesses at the court stage would be too late. It is just one part of the service that we are working to provide under the victim transformation programme.
Anna McMorrin
Q
Jan Lamping: The fact that the Bill places a spotlight on all agencies complying with the code will make a difference. Obviously, that is only one aspect, though; we need to work well together, including locally. In my area, we work really closely with our police and crime commissioners and other justice partners. That is not to say that we always agree with one another, but we are working together through our local criminal justice boards to address barriers to providing a better service. I think that collaboration is what is really required.
Anna McMorrin
Q
Jan Lamping: The Bill in itself will not make a big change to the length of time that takes. Other work that is ongoing will hopefully do that, such as Operation Soteria.
Anna McMorrin
Q
Jan Lamping: Well, the Bill is really about compliance with victim code rights, and there are other pressures that lead to, for example, delays in the court process.
Anna McMorrin
Q
Jan Lamping: Obviously, only a part of that—a significant part, I accept—is our responsibility. The meeting with the victim following a not guilty plea is important given that cases are ongoing for longer. As I mentioned, this will be one part of our enhanced service to the victims in greatest need under our transformation programme. It will offer a more tailored, more bespoke service to those people. We completely accept that as cases go on much longer, people will need more support.
Anna McMorrin
Q
Jan Lamping: From a CPS point of view, our part would be to make sure that the right special measures are in place. Obviously, we do not provide the support services; that is not our role. However, we make sure that people are signposted to local support, that the right special measures are in place, and that we have kept people updated. Victims told us that they wanted to be kept updated, even if nothing was happening.
Anna McMorrin
Q
Jan Lamping: As the aims of our victim transformation programme align with the aims in the Bill—
Anna McMorrin
Q
Jan Lamping: I think the Bill, as I said before, puts a spotlight on things. Our work is aligned with that, and the two things go together, along with collaboration across the system.
Anna McMorrin
Q
Jan Lamping: Going back to our transformation programme, we have recognised the need to improve our communication with victims. I appreciate that you are talking not just about the CPS, but communication across a whole system. The principles in the Bill are aligned with what we are trying to do, and we fully accept that we need to improve our service to victims. That is why we commissioned independent research, and that is why we are now on our transformation programme.
Anna McMorrin
I was actually referring specifically to the CPS, because that was raised in the report. Thank you.
Rob Butler
Q
Jan Lamping: We want to ensure that we are responding to what victims need from us. That is why we think it is really important to have some flexibility about who from the CPS meets. There will undoubtedly be times when the right person to meet with the victim is the prosecutor in the case—for example, when a legal concept is to be explained or when we know that a victim has a particular question about a legal aspect. On other occasions, perhaps the victim may have questions about the practicalities on the day, and in those circumstances, it might be more appropriate for the victim to meet with one of our trained paralegals who are at court on a day-to-day basis and are more involved with speaking to victims. I think it is more about what would be of genuine benefit to the to the victim on a case-by-case basis.
Rob Butler
Q
Jan Lamping: No, we are absolutely committed to delivering this. The people who are presenting these cases in court would not be the people meeting with the victims, so—
Rob Butler
Q
Jan Lamping: That person will meet the victim under the “Speaking to Witnesses at Court” guidance, but the person making the decisions in the case is the reviewing prosecutor. I think it is really about what the victim needs from the meeting.
Rob Butler
Q
Jan Lamping: From the information that we have had so far, from the testing that we have been doing under Operation Soteria, victims and support services are telling us locally that the victims find it really useful to meet with the prosecutor.
Rob Butler
Q
Jan Lamping: Prosecutors in the magistrates court will deal with lists and have received them the day before, for example.
Rob Butler
And sometimes it is much shorter notice than that.
Jan Lamping: That is not my own experience. I accept what you say about that from yours.
Rob Butler
Q
Jan Lamping: We are committed to doing that. That is why the victim transformation programme that is aligned with the Bill will help us to work towards that.
Rob Butler
Q
Jan Lamping: In terms of resources, obviously the Ministry of Justice accepts that we will need to have the right resources in place—for example, for the meetings. As far as skills are concerned, we will need to train our people in, for example, how to speak to vulnerable victims, and we will need to use the expertise of those around us—not necessarily within our own organisation —to help us with that.
Janet Daby
Q
Jan Lamping: It is important that where victims feel that they need to have legal representation, they are able to obtain it. We would certainly engage on any proposals in that respect. We understand that issues relating to disclosure of personal information in particular cause anxiety for victims, and while we apply the law as it stands, we would engage on any proposals regarding independent legal advice.
Jess Phillips
Q
Jan Lamping: I was explaining about my personal experience in the areas I had worked.
Jess Phillips
Yes, that was my understanding.
Jan Lamping: We have offered the meetings, and they have tended to take place with an ISVA there as well.
Jess Phillips
Q
Jan Lamping: I accept that not everybody knows what questions to ask. That is why I said we would engage on any such proposals.
Siobhan Baillie
Q
Jan Lamping: As I said, we apply the law as it is now, and our guidance that is in place now should provide adequate safeguards, in that we should request such material only if it is relevant and necessary, and only in pursuance of a reasonable line of inquiry. That should provide safeguards. As for it being a judicial decision, there is a danger that that would introduce further delays. It is important that we follow our guidance and the police follow their guidance, so that victims are protected from unreasonable intrusion into their private lives.
Siobhan Baillie
Q
Jan Lamping: It is difficult to know from a CPS point of view, because we deal with the cases that are referred to us by the police. We do not know what has been a deterrent before that in terms of what the police have asked for, so I do not think that that is something I can comment on. It could be a deterrent, yes.
Janet Daby
Q
Jan Lamping: It is obviously a new concept, and we are interested in what the detail will be. We can certainly see the benefit from the point of view of the people affected by these terrible incidents. There are some things that we would like to work through. Prosecutors would have responsibilities for speaking to, for example, bereaved families in any event, and there are some concerns about whether there might be duplication.
I know there is mention that it could be a community representative who is the independent advocate. That may be fine, but it may be that a community representative does not represent everybody in that community. There are things to be worked through, but we understand why that is being suggested and are certainly happy to work on the detail.
Sir Oliver Heald
Q
Jan Lamping: In what sense?
Sir Oliver Heald
Obviously, you have a duty to the court. The judge is in charge of the procedure and the law. Does that create any limitations for the role of an independent advocate working for a witness?
Jan Lamping: In terms of the independent advocate, for the prosecutor?
Sir Oliver Heald
Well, the prosecutor clearly would want to be in charge of the prosecution, because that is your duty. Is there a limit to what the role of the independent advocate can be, and if so, what would it be?
Jan Lamping: I think there is. From what I have read about it, the independent advocate is more about the link between the people affected by a major incident and the agencies either investigating or prosecuting; it is more that kind of role, as opposed to in court.
Sir Oliver Heald
Q
Jan Lamping: No, not at all.
Sir Oliver Heald
Q
Jan Lamping: When the police refer a case to us, they provide information to us about the conversations they have had with victims about what kind of support would help them to give their best evidence. There are numerous special measures available that we then consider, from live links to giving evidence remotely, giving evidence in private in certain circumstances and pre-recorded evidence.
Sir Oliver Heald
Q
Jan Lamping: It happens at different points. There are initial conversations between the investigating officer and the victim and then conversations between ourselves and the police once we get the information from them, but certainly one point would be at that meeting. It may well be that we have already had the information and special measures are in place, so the meeting might be more of a check of whether those are still the appropriate measures and whether any changes need to be made.
The Chair
There are no more questions, so I thank the witness, Jan Lamping, for coming and giving evidence this afternoon. We will end that session and move on to the next session a few minutes early. I warn people that we are expecting a vote fairly soon, so we will have to interrupt proceedings when that happens.
Examination of Witnesses
Councillor Jeanie Bell, Kate Davies and Catherine Hinwood gave evidence.
The Chair
Can I welcome the witnesses and ask you to introduce yourselves for the record, please?
Kate Davies: Good afternoon, everyone. I am Kate Davies, a national director in NHS England. My formal title is the director of health and justice, armed forces and sexual assault services commissioning, and I have recently taken on a senior responsible owner role for the programme of work that NHS England is doing on domestic abuse and sexual violence.
Catherine Hinwood: Hi everyone, it is lovely to be here. I am Catherine Hinwood, NHS England’s lead on domestic abuse and sexual violence.
Cllr Bell: I am Councillor Jeanie Bell from St Helens Borough Council and I am here representing the Local Government Association.
Jess Phillips
Q
Kate Davies: Thank you very much, Jess. We welcome the Bill and we welcome the duty to collaborate. From the perspective of sitting giving evidence or suggesting amendments, the Bill probably is not as up to date as we in NHS England would like it to be with the new legislation of the integrated care boards, the integrated care partnerships and the different elements of commissioning. There are some additions that would help to strengthen that reality of work that is now happening with 42 integrated care boards. I think that a lot of that was in good faith, and in consultation with the Health and Care Bill becoming an Act in July 2022, but there is certainly more that could be produced to give a clear element of prioritisation and advice to 42 integrated care boards, which ultimately are the population-based commissioning for NHS services.
NHS England has mitigated that collaboration element by putting together a single national programme of work on domestic abuse and sexual violence, which I am pleased to say Catherine Hinwood is the senior lead for, because we take very seriously the fact that we want to support, influence and also use legislation and current Act work to prioritise the needs of the 1.5 million people who are seen by the NHS every day, whether in primary care, hospital trusts, mental health or within some of the services that I directly commission.
I think the answer to the question is, “Yes, that is great,” but the Bill is probably in the past in the way that has been written and put. If we are looking into the future and what we now know, we could look at strengthening that for NHS collaboration with local authorities and also at how the ICPs in particular work across their populations with the voluntary sector, lived experience, the criminal justice sector and police and crime commissioners.
Catherine Hinwood: If I could just add to that, I started leading this programme at the back end of last year. I visited a lot of ICBs and a lot of commissioners and I have spoken to the third sector. There is fantastic collaboration going on in some areas, so I welcome strengthening the collaboration through a duty, but there are a couple of things that I think we need to be mindful of.
The first is the serious violence duty and the duty in relation to prevention, ensuring that whatever we do in terms of thinking about the local structures and local infrastructure that exist—also in relation to the implementation of the Domestic Abuse Act and domestic abuse partnership boards—all comes together to be a really person-centred, locally focused duty that supports and enhances the structures that are already there at the moment, rather than comes in and brings in something new. From my perspective, there is great work that is already being done. Ensuring that collaboration is at the heart of the way in which key local partners work is brilliant, but I want to make sure that whatever we are doing aligns well with what is happening in local structures.
The next thing I would want to say is that I really welcomed the focus in the women’s health strategy on looking at violence against women and girls—in which, of course, we include men and boys as well—as a public health issue. One of the things that I would really like to see through the Bill, and across Government more widely, is thinking about violence against women and girls, domestic abuse and sexual violence through a public health lens, as well as the really important criminal justice lens. I would like to see the Bill thinking a little bit more about, and interacting a bit more with, that public health approach that we are taking to serious violence.
Jess Phillips
Q
Historically, health services have not been a commissioner in this particular space. When Rape Crisis England and Wales gave its evidence earlier, the witness said that she could not think of a mental health trust in the country that commissioned a specialist trauma service for victims of rape and sexual violence, and that has certainly been my experience as well—not that I could not think of one, but that it is very patchy. Kate, I noticed that you said it would be better if they had better advice. Do you think that the duty is strong enough to make the ICBs actually fund any of this work?
Kate Davies: I think one of the reasons why I am also sitting here is that I do commission £50 million-worth of sexual assault referral centres—47 across the country—and NHS England has increased that from what was actually £6 million when it first came in as part of the Act of 2012-13, and also developed all the paediatric services as well as adult services. Most recently, the long-term plan in 2019 increased a baseline of £4 million of mental health trauma-informed services around sexual violence, and in fact, I announced another £2 million for that only last week.
I think the reality with this area of work is that, when you are working within the NHS in a busy hospital trust or a GP’s surgery, of course we give some brilliant support every day of the week to men, women, girls and boys who are victims of rape and sexual assault, and also other elements of violence. However, this could be an opportunity to look at how the resource, generically within the NHS as well as maybe a more targeted element, can support people’s knowledge, people’s understanding and sometimes people’s fear—how that can be an earlier intervention, as well as a targeted intervention. That is why I am sitting here, and that is why we are sitting here for the NHS. I think that answer is yes.
Jess Phillips
Q
Kate Davies: I will have to say yes; I think it will. We would like to see that consistency. One of the works that the national programme does, as well as obviously across ICBs with Steve Russell—who is actually the board sponsor for this work as the chief delivery officer for NHS England; it is a great approach, through both Steve Russell and Amanda Pritchard as chief exec—is to really evidence that importance to our ICBs, for not only patients but staff. We have 1.3 million staff, and certainly from a recent campaign we had a lot of feedback on the improvements we can make and also the good practice.
We have some great work going on. We have just done some audit work around ISVAs in some of our acute trusts and actually found out that we are doing more that is commissioned through the health budgets and through ICBs than we ever realised before. We have to build on that good practice, to be honest with you, but this is a very busy time in the NHS. It is really important that we can maybe use some additional resource that can target how this can be understood and also be focused as part of a planned programme of work.
Jess Phillips
Q
Cllr Bell: I do not know if this will be controversial or not, because I am not sure what everybody else has been saying. Although I tried to tune in as much as I could on my train journeys down, the wi-fi has not been great. I would say that no, actually, I do not think that the duty alone is enough to make the collaboration work. Collaboration is formed on good relationships, good professional relationships and information sharing, and that is developed through strong partnership working practices. You cannot have that unless it is funded properly.
My concerns from what I see in the proposed Bill are that the funding assigned to it is for almost like a convener role to pull things together, whether that is at PCC level, who will help run the meetings and provide the support. Actually, we have local authorities and the NHS with significant capacity issues. I would go as far as to say that PCCs have capacity issues and cannot do everything either, so we cannot get away from that resource and capacity issue. It is an increasingly complex landscape.
We have to be really careful, when we talk about capacity in this context, that we are not duplicating as well. We have talked about the Domestic Abuse Act and the serious violence duty, but we also have collaboration happening through the combating drugs partnership. You have all these additional collaboration duties coming in—which we all want to comply with, because ultimately we all want a better service for victims—but there is no additional funding for victims in all this either, which is a concern.
I suppose the last thing I would say is when we look at the duty to collaborate, that will not solve the problem around the footprint that this will operate on. In terms of PCCs, ICBs, local authorities and violence reduction units—of which you have only 20—you are talking about lots of different organisations, some of which will be operating on different footprints, so how will you ensure that when you talk about the duty to collaborate, you have that flexibility built in to ensure that at a local level you can work in a way that meets the needs of your residents? You will all know from your own constituencies how complex that can be within that footprint, so there has to be a degree of flexibility as well.
Jess Phillips
Q
Cllr Bell: The pressure will increase. I was the previous cabinet member for community safety, which included housing, domestic abuse services, homelessness, asylum and refugees, as well as community safety and our band A properties, which are for most urgent need. Domestic abuse is in that band A category. A person could still be waiting for a minimum of a year.
Ultimately, our refuges fill up very quickly. They remain at capacity and that can be seen right across the country. That is not specific to my authority either, so you will see it right across the landscape. There are not enough houses being built to provide accommodation that is safe for people. I know that that is not necessarily what we are here to talk about today, but you do have to address that. That is why I have a concern about the duty to collaborate. Obviously, I want it to work. I want us all to work together, but I just do not think that the duty alone is enough.
Elliot Colburn (Carshalton and Wallington) (Con)
Q
Catherine Hinwood: I am going to talk to you about the implementation of the serious violence duty and the way in which that worked, and some of the lessons that I think we should learn from that. Under the serious violence duty, police and crime commissioners were given the responsibility of overseeing the implementation of the duty and overseeing all of the funding for labour costs, which were given to responsible authorities for the set-up of the duty, as well as allocating the money for commissioning costs, which, again, were given once a new duty was put on responsible authorities.
What we saw with the way in which PCCs have taken that responsibility is that it has had a very justice-focused lens in the way that they decided to distribute labour costs. We know from the Home Office’s implementation work that a significant amount of money that ought to have been spread evenly across responsible authorities has not gone to ICBs. A significant number of ICBs did not receive their implementation costs.
What we have learned from the serious violence duty is that if you want to have some kind of equality of arms across responsible authorities to be able to ensure that they are all implementing the duty— I think that it is a great point about wanting to see ICBs much more in this space; they are talking about the fact that they want to be more in this space. If you put a PCC, for example, as the lead body—the convener—in relation to this, then the implementation of it needs to be done in a way that you are ensuring that funding is distributed equally and that responsibilities are clearly set out. I am not sure that I would put a lead authority or a lead body in place for the duty. There must be a way of ensuring equality between each of them.
Elliot Colburn
Q
Catherine Hinwood: The way that I have read the legislation and the way that I understand the guidance is being considered is that there will be local flexibility as to what kind of body will be the convening body. For example, one area might say that they will use an integrated care partnership, one might use a violence reduction unit, and another might use a criminal justice board. If you build that flexibility in, I do not know how you can then give one body the oversight for the implementation. It might be that a national body needs to oversee it, I really do not know. But this is the kind of stuff that we need to work through, and work through in the guidance.
The Chair
Order. I will suspend the Committee for Divisions in the Chamber. I will suspend for 15 minutes for the first Division and 10 minutes for the second and any subsequent ones. We are expecting at least two votes, so we will suspend for at least 25 minutes.
The Chair
We shall carry on with the session, and I would like to bring in Siobhan Baillie to ask a question.
Siobhan Baillie
Q
Kate Davies: It is obviously our responsibility within NHS England, when there is a particular area like commissioning some victim services—as I do—to work with Bills as they are coming in. I worked across that with Catherine in a previous role; I declare that as an interest. We are aware of it from working with our colleagues in the Department of Health and Social Care as well. We now realise, because of the Health and Care Act of 2022—there are obviously lots of issues coming in as a Bill turns into an Act—what that means. We know much more than we did then, and I think it is fundamental now to look at how, with ICBs and ICPs, we can make better use of the local authority and NHS population-based commissioning. There is also a requirement with the voluntary sector. One of the objectives with ICBs is about health inequalities.
All those elements are now legislation. All those elements give us a real focus, a real lens, on, in particular, survivors and victims within a population, whether they come through a GP’s door or through a local authority door for something to do with housing. It is a question of that needs assessment at local level to say that we have a duty and the responsibility to work with that population number and also support that, whether that is through collaboration or governance. It goes back to Elliot’s earlier point about ensuring that we come round the table to ensure that that happens. I think the current wording in the Bill is helpful, but does not go far enough to ensure that there is that responsibility, accountability and governance in order to collaborate and provide as part of that needs assessment.
Siobhan Baillie
Q
Kate Davies: There have been discussions with the Department of Health and Social Care recently on that, so I think that is an important element to go back to you on.
Catherine Hinwood: I think we are going to submit written evidence on this, so we are really happy to do that.
Rob Butler
Q
In the context of, frankly, ICBs that are struggling to fulfil their core duties, I wonder how they will really do what is needed for victims through this proposed legislation, because I do not think that they are going to see it as their No. 1 priority. I wonder how you can leverage to ensure that this important legislation and the concepts behind it are delivered on by ICBs.
Catherine Hinwood: ICBs now have a duty to set out in their joint forward plans how they are going to support victims of abuse, and it is specifically set out that they must talk about victims of domestic abuse and sexual abuse. We are starting to work with ICBs to help them. We issued guidance on what they might want to do to be able to fulfil that duty and how they might approach it, but we are starting to work with them in the coming months to assist them in how they are approaching that. I agree that they would be at different levels of maturity, but it is certainly something that we within NHS England have had to focus on in assisting them with and will over the next year, as they grapple with a number of different responsibilities. You are absolutely right: this focus that they have on victims of abuse is a new one. It is a different one and it did not come with any funding—it did not come with any ringfenced funding—so we are helping them to think about how they might be able to mature in this space.
Kate Davies: One of the things at the moment is the maturity of the NHS, with the recovery from covid and everything else. I remember being in a forum during covid and looking at the issues of serious violence, victims and survivors. There are victims and survivors walking through the door of every GP, hospital trust and, perhaps, accident and emergency department. We have too much evidence or representation of people coming in years after they have actually been a victim— this may be related to childhood sexual abuse or to domestic abuse.
It is fundamental that someone in an NHS service has the opportunity to feel safe enough and supported enough to be part of their needs and requirements. They might come in for something else—for example, we have just done some work on cervical screening. I have to say that we are talking about superb interventions through lived experience. How do we get every woman who has cervical screening as part of their requirement also to have the opportunity to say, whether they know this or not, what needs they have or what support they need? This is about, “How can we support you? Have you ever been a victim of rape, sexual assault or domestic abuse?” It is those opportunities that we should be supporting.
I have been with the NHS quite a long time, so I am not saying this because I am sitting in front of the Committee, but there are massive amounts of evidence that people want to do more in this space, because that is part of so many people’s experiences, either personally or professionally; this could be as a clinician, with someone in front of them as a patient. This is a great opportunity to talk about the duty to collaborate, but it is also a great opportunity, as you say, when you have maturity of ICBs at this early stage, to make it a priority.
Lastly, as people are aware, I sat in front of a number of Committees to do with armed forces, as I am the senior commissioner for armed forces. I had exactly the same conversation about that maturity. Four or five years later, we had the armed forces covenant and a really important requirement around armed forces’ mental health and trauma, whereby we have commissioning and supporting a dedicated pathway. That is really why we have been commissioning more mental health enhanced services for sexual abuse recently, through the long term plan. It is a really good opportunity to build on this and build on that good practice, as well as to say where it is not working—we have to be honest about that, too.
Rob Butler
Q
Cllr Bell: Yes, it can. Let me just to come back to add a little more detail. At a local level, we are talking about ICBs and we are quite heavily focused on them. They will be feeding into your health and wellbeing boards on your local authorities. Your community safety partnership should be feeding into your health and wellbeing boards, and there should be a joint commissioning approach to local services running through that process as well. When we talk about not duplicating, we need to look at them; we need to look at what is already in existence and how we can deliver that duty to collaborate without creating additional layers of bureaucracy that may not actually do anything other than exacerbate the pressure on capacity. If we do not have to reinvent the wheel, let us not do so—let us look at what is there already.
Local representation in the ICBs is a funny picture at the moment, because different places are operating in different ways. Let me talk from my experience. Our clinical commissioning group was integrated into our local authority a number of years ago, so we had an integrated health and social care model already. Our director of adult health and social care was also our director at the CCG, and is now the head of our ICB. It works quite well and quite seamlessly. Our cabinet member sits within that structure as well.
Rob Butler
Q
Cllr Bell: I do not want to overstretch. From my experience, it works well in our authority. I am certainly not a health specialist. Those are the people you should speak to, given their knowledge. In my experience, at our level, it has worked extremely well.
The Chair
If there are no other questions, I thank the witnesses for coming along this afternoon and giving evidence, and I apologise for the intervention of democracy. We will now move on to the next panel.
Examination of Witnesses
Gabrielle Shaw, Rachel Almeida and Duncan Craig gave evidence.
The Chair
I welcome the three witnesses. Thank you for coming along. Would you all introduce yourselves briefly for the record, please?
Duncan Craig: Hi, my name is Duncan Craig. I am the founder and chief executive of We Are Survivors, an organisation supporting boys and men, like me, who are affected by sexual abuse, rape and sexual exploitation. Thank you for inviting me.
Rachel Almeida: I am Rachel Almeida, the assistant director for knowledge and insight at Victim Support.
Gabrielle Shaw: Hi, my name is Gabrielle Shaw. I am the chief executive of the National Association for People Abused in Childhood. NAPAC is a national organisation that supports adult survivors of any kind of childhood abuse, trauma or neglect.
The Chair
I repeat what I said earlier: people should speak loudly, because the acoustics in this room are dreadful.
Anna McMorrin
Q
Gabrielle Shaw: This is my “Mastermind” subject—thank you. First and foremost, it is good that we have the Bill. It is imperfect, as you will have heard today, but the fact that it is here and will potentially recognise victim status in statute is great, and there are some really good bits in it. My big thing is around the definition of a victim, because it is not currently explicit that you are a victim if your case has not been reported to the police. Clause 1(4)(b), which defines criminal conduct, states that, although you may be a victim,
“it is immaterial that no person has been charged with or convicted of an offence”.
By omission that implies that you have to have reported the criminal conduct to the criminal justice system. We are automatically cutting out the huge majority of victims.
In its 2020 crime survey for England and Wales, the Office for National Statistics showed that there are more than 8.5 million adult survivors of some kind of childhood abuse or trauma. Colleagues know that only a tiny fraction of survivors will ever report or even disclose their abuse. If the Bill could be made more explicit to include that you do not have to have reported the criminal conduct, it just needs to have happened, what a win that would be. How important it would be to victims and survivors on the ground to think, “What happened to me mattered and I am entitled to support.” As you can probably tell, I am a big fan of making the definition more explicit to cover that.
Rachel Almeida: This Bill is really welcome and has a lot of potential to improve the experiences of victims. We previously heard from the Minister that the Government’s intention is for victims who have not reported to be within scope, but given that there is a question around that, we would suggest that it could be made more explicit so that those who have not reported feel that the rights are for them. We welcome the additions to the definition in the draft Bill, and we would support widening the definition to include victims of non-criminal antisocial behaviour. Similar to what Vera Baird said earlier, we believe that a lot of victims are hugely impacted by persistent ASB. We agree that there needs to be a threshold for it to be persistent ASB, but we believe that their not having any rights means they are unable to access the support that they really need. We welcome the Bill and think it needs to be strengthened.
Duncan Craig: I am really pleased with the Bill. I remember speaking to Minister Argar, and I believe that this is a once-in-a-lifetime opportunity to create something. I absolutely echo what my colleagues have said. As a child abuse survivor, a victim of sexual exploitation and a victim of rape, I have not reported to the police any of what happened to me, despite the fact that I have spent the last eight years training police officers, using my story in various different working groups and sitting on various different boards. Although I hear what Gabrielle is saying and I think there is a really powerful statement in there about strengthening the Bill, what is really important for us victims is to be seen. We can talk about the semantics of it, but it is not about that; it is about being seen and knowing that all of you see people like me.
Anna McMorrin
Q
Duncan Craig: Are you talking about mandatory reporting?
Anna McMorrin
Yes—and a definition.
Duncan Craig: I get a bit nervous around this particular subject, because no matter where I have worked—whether it is the past 15 years within my organisation, or working over in Australia or the States—no one has ever been able to fully explain what it means for adult survivors. I absolutely think that what we need is 100% clarity to make sure that if any individual—professional or volunteer—knows that a child is being harmed, we will use all our powers to stop that happening now. I am not too sure how we carry on with that, to be honest.
Anna McMorrin
Q
Gabrielle Shaw: I am not—
Anna McMorrin
Q
Rachel Almeida: The code is a really important document, which the Bill puts on a statutory footing. We really believe that if the code was put into practice, it would hugely improve the experiences of victims. There are a huge number of valuable rights in there that, if delivered, would provide victims with clear information, confidence in the system that they will hear what will happen to their case and support at court. We know that that does not happen in practice and we want a step change—a systemic change. We know that code compliance is really poor and what we need from the Bill is for that to change. We are concerned that, as the Bill stands, the change that is needed will not happen. A few things need to be done to strengthen the Bill.
The Bill refers to regulations being introduced to collect prescribed information. It needs to be more explicit that that applies to every single right. We want compliance with every single right to be monitored. From evidence we have seen, that will not necessarily happen, so it needs to be really clear that the regulations cover every single right.
We also believe that it should be made clear what level of compliance is acceptable. We know that compliance is quite low and, at the moment, the Bill hangs on the thread of transparency. It mentions collecting data—at the moment, the data will not necessarily be across all rights—giving the PCC oversight, although not powers to drive or compel agencies to comply or improve their compliance; that can be done only with the police, but it should be done across other agencies to drive compliance. That is lacking.
The Bill talks about information and reviewing the data, which is then shared with the Secretary of State. We do not believe that that level of oversight is enough. There is no enforcement mechanism or clarity that, if agencies do not comply across the board—we know that there are systemic issues with compliance—there will be any consequence; that anything will happen. We would like the Secretary of State at a national level to set out, as part of the regulations, a minimum threshold that criminal justice agencies are expected to meet. If they do not reach the required levels of compliance, there should perhaps be a warning period when they are given the opportunity to address the lack of compliance. However, if that compliance does not improve, we would like steps to be taken. For example, an inspection of the agency could be triggered to understand why they are failing to comply. There should also be clear recommendations that they need to remedy, and accountability around that.
That is not the only way it could happen, but we feel that it is a way that could work. Without that, at the moment, it is data being collected and published, but there are not really any teeth, which we would like to see.
Anna McMorrin
Q
Rachel Almeida: Yes.
Anna McMorrin
Q
Gabrielle Shaw: Yes. That is a really good point. I love what you just said about the tangible difference it makes to victims and survivors. It comes back to accountability. Building on Rachel’s points, accountability has to be built in from the start to make the Bill really effective. I was watching the previous session, when the Committee asked many interesting questions about collaboration and the duty to collaborate—ICBs, PCCs. That is great, but how do we measure the effectiveness of that collaboration? Will it just be a meeting once a year with collaborators? It has got to be stronger than that. I like what you are saying about strengthening the Bill. That is really important.
There is currently a duty on PCCs to oversee compliance with the victims’ code of practice—I read it quite a few times to make sure that I knew what I was talking about— but there is no similar duty to oversee compliance with the delivery of victim support services. That goes back to the making a difference on the ground that you mentioned. Compliance is patchy. There is really good stuff, but more consistency across the piece would make that tangible difference.
Anna McMorrin
Q
Rachel Almeida: Definitely. It should be at least on a par with the Domestic Abuse Commissioner’s powers, particularly the powers that criminal justice agencies are compelled to co-operate with. That is really important. Those powers are not currently proposed in the Bill for the Victims’ Commissioner.
Anna McMorrin
Q
Rachel Almeida: It is enabling the Victims’ Commissioner to be that champion for victims and have that independent voice and ability to investigate where there is a lack of compliance, where areas are not improving and where they are seeing issues raised with them. They will have ways to address that and drive forward change.
Duncan Craig: Could I make a comment on the victims code and the question you asked my colleagues? It is really interesting that when we started off talking about victims’ rights, we called it victims’ rights, and then all of a sudden we started calling it the victims code. I think there is something really important about that. All of the 2,500 men who come through our service every year and all of the thousands of women who go through Jayne’s service—Rape Crisis England and Wales—need rights, not a code. In the victims code as it is—again, I do not think it is semantics—section 32(1)(b) says that it relates to “any aspect of the criminal justice system”, but, as I go through the Bill, I see that nobody is holding my organisation to account, and actually somebody should be.
Once we have moved the police out of the way, even though so many people do not report to the police, as well as health and SARCs—in Greater Manchester, only 10% of people who access SARC are males and 83% of those are prepubescent children, so that is exactly where they should be—there is something about ensuring that the rights of the victim are held not just by statutory agencies but by the voluntary sector, who provide the majority of the services that people want and access. So there is something about making sure that the voluntary sector is in here somewhere. We know—I have a really bad personal experience of going to a voluntary sector organisation; it made things worse.
Anna McMorrin
Q
Duncan Craig: Absolutely, and not just locally either, but nationally. There is something about commissioner oversight that should be better anyway—I think we should be spending smarter—but there is definitely something about real consequences for not adhering to victims’ rights.
Anna McMorrin
Q
Duncan Craig: Part 3 was a huge surprise. I had been part of the working group—the task and finish group—for the victims Bill for quite a long time, and I was part of the end-to-end rape review. I think I even asked a question of where that had come from, because it just had not been talked about.
My organisation has services across all 15 north-west prisons commissioned by NHS England, and I just cannot see how this is going to help. It is so easy to draw a line between victims and perpetrators, but the absolute reality is that for so many people there is a really blurred line, particularly in prison. It is quite easy to write certain people off, and it makes me sad that we are doing that, because quite a lot of the women in prison and the men in prison have suffered various things in their lives as well. What we really need to do is help, and it feels like part 3 is more of a hindrance.
Gabrielle Shaw: To add to that, it did come as a surprise—it came out of left field—but at least it is here, and we will work with what we have. Duncan makes an important point about the blurred lines between victims and perpetrators, and the crossing back and forth of it. It could have been, and perhaps could still be, a good opportunity, so let us work with what we have and turn it into an opportunity. In the earlier session, Catherine or Kate said that we need to look at this as a public health issue. If we are going to look at this in the round for victims, let us look at abuse suffered in childhood, what that means for life chances, and what that means if they go on to offend. There is a real opportunity here, and if we can turn it around, I will support that.
Rachel Almeida: I agree that it was a surprise. We expected a victims Bill, and we would welcome it returning to being a victims Bill.
Anna McMorrin
We have been waiting eight years for it.
Rachel Almeida: I feel like the level of scrutiny given to the first part has not been allowed for the other two parts. We obviously suggest that that should happen.
Janet Daby
Q
Duncan Craig: When we talk about paedophilia and child sexual abuse, about 87% of paedophilic offenders are victims, but only about 3% of victims ever go on to offend, so vampire syndrome—the idea that if you have been bitten by a vampire, you will go on to become a vampire—does not exist. All the research shows that that does not stack up.
In my service—I am only talking about 15 north-west prisons, but some have category offenders—I am not necessarily interested in dealing with the offenders and their crime; I am interested in the root cause. My organisation sadly lost one of our survivors the other day. One of the things that I will carry with me about him is that I met him in prison—I was his therapist in prison—and we dealt with a lot of his experiences. I fought for the service to go into that prison because nobody was interested in dealing with his victimhood; they were interested only in dealing with his perpetration of the crimes he committed. That is right, but there is something here that nobody is talking about or dealing with. He was in a small group of people I approached as a survivor, as a therapist, as the chief exec of an organisation. I had a challenge from a couple of our service users, who said, “What are you doing, Duncan, about reducing offending?” and I could not tell them. What we are really good at in victim services—Jess, you know this from all your time in domestic abuse—is cleaning up, but when are we going to stop cleaning up and start preventing?
With part 3 of this Bill, we could do some incredible work in prisons and with prisoners around prevention so that, when people come back out of prison and into the community, there is a better sense of self and better support. What happened was only because I have an amazing commissioner in NHS England North who just took a punt, quite frankly—I am sure there is a proper word for that in commissioning, but it was a punt—and actually, 897 prisoners are now on our waiting list, they are being seen and are dealing with the things they needed to deal with.
Finally, when I started talking to Michael and said, “I think we need to do something; I think we need to do something about that 87%. What do we do about those men?”—they nearly are all men—“How do we make sure that they are not going back out and offending against women, children and other males? Maybe we need to deal with their root cause.” He said to me, “Everything in my body says no. Why should we deal with them?” And then I think, “Maybe if somebody had dealt with the guy who abused you, Dunc—maybe you would not have been abused.” It hits right there in the middle, and I think that this is a phenomenal opportunity for us to not just do stuff around victims but to prevent us from even having victims in the first place. That was a very long answer; apologies.
Janet Daby
Thank you, Duncan. Sorry about your loss, as well.
Duncan Craig: Thank you.
Gabrielle Shaw: Great question. It is a hard act to follow.
To answer your question, there is an opportunity to name it in the very least. That would be such a great start here—to acknowledge the facts that Duncan just set out, and the proportions, and say it is a public health issue and really go hard on the public health and prevention aspect. Otherwise, we all know what is going to happen. If the comms message gets twisted, it will be “Oh gosh, everybody who has been abused as a child is going to go on to become a perpetrator.” We need to be really careful about how we message that. It could be about keeping the generalities—acknowledging the fact that a lot of abuse does come on to being part of a perpetrator—but talking about why we need to deal with it with money, resources, therapy and with all those things we know about, because that prevents and it makes people safer in the future.
At NAPAC, on our telephone support line, we hear from tens of thousands of survivors with many different stories and backgrounds. Survivors are not a homogenous group—there are so many individual stories out there—but I can say that there are key themes that come through. Probably the No. 1 key theme that we hear from survivors is “I wish it had not happened to me and I do not want it to happen to anybody else.” I do not purport to speak on behalf of survivors, but I can relay that theme to you as a Committee and help to tie that to your question. Put it in there; make it count.
Janet Daby
Rachel, did you want to say anything or are you okay?
Rachel Almeida: I am okay.
Siobhan Baillie
Q
Duncan Craig: I did, pre-pandemic. I used to go to the local training school. For a specially trained officer—an old-fashioned Nightingale officer—the 999 call comes in, and they go and lock down the scene, with the scene even being the individual themselves. They used to get five days’ training in forensics and so on, and they would have a whole day with me on working with male victims, because everything else that was talked about was around female victims. Then, on the very last day they would do role play with an actor and get scored. Effectively, it was a bit like an exam.
Now, I go to a university. I have done two classes now. I am really angry about this: in the first class, as I was telling my story—a story that I have told for seven or eight years—an individual put their hand up. There is a picture of me in the room where it happened. They put their hand up and said, “Yes, but do you not think that you should push them all off a cliff?” [Interruption.] I had exactly the same reaction as you; I was absolutely astonished. In seven or eight years, I have never had to kick anybody out of a classroom and I have never been surprised by it. It could just be a one-off, so I spoke to the tutors and said, “Just watch that.” Two weeks later, I went back to the same university, where a new cohort of police officers were being trained, and we kind of got the same thing. I do not know what has happened, other than we have moved from police training school to university, but I am terrified. I am terrified about what we are getting and what I am seeing on the ground now. There used to be a moment in time when I had done some training with every single police officer in my force, and I was really confident. I have zero confidence at the moment, and it is frightening.
Gabrielle Shaw: I come at this from two perspectives. What we hear through the NAPAC support line, from thousands of survivors, is that some of them have disclosed to the police. Of course, people who contact NAPAC are a self-selecting cohort, but over the past five years the number of positive experiences relayed by survivors to NAPAC has risen. I think that is no coincidence, because I know at a national level—I will come to this in a second—there has been a huge drive by national policing to improve response to childhood sexual abuse. The hydrant programme has done a lot of work on this, as well as College of Policing and the NPCC. There has been a huge national drive.
As Duncan described, the issue is how that national drive, the national guidance and all those really good intentions translate down to force level. I can hear the chief constables now saying there is a squeeze on the training budgets and so on, but we need to maintain that pressure and the good intentions that have set at a national policing level, to ensure that trickles down properly. What Duncan described is not a rare or isolated experience at all. There is good practice as well, but there needs to be more consistency to get that real drive across all levels.
Duncan Craig: I am not overly concerned about the current detectives at the moment, because we have a great relationship with them, but they are about to leave because they have done their service. It is exactly like the prevention bit—the bit that I am extremely concerned about is the new people.
Jess Phillips
Q
Duncan Craig: I am a bit conflicted, if I am honest, about whether the Bill should contain the guidance around IDVA—
Jess Phillips
I am not conflicted; I don’t think it should.
Duncan Craig: To be honest, Jess, I am probably leaning more towards your thinking. My organisation had the first male ISVA service nine or 10 years ago, and I know it is really patchy across the country in terms of what the judiciary and different judges will allow ISVA to do and not do, so my happiness about it being contained in legislation is that it is really clear what they are.
My unhappiness is about how restrictive it could be. What about people who have not been trained as ISVAs? What do we call them? Are we creating a hierarchy that does not need to be there? I definitely think we need some level of guidance, not necessarily for the ISVAs and for our services, but for the judiciary. What we do not want to see is an ISVA going into the witness box in an ITV drama and then everybody thinking that that is what ISVAs can do. We want clear guidance. I am worried about it being restrictive.
Jess Phillips
Q
Duncan Craig: Absolutely.
Jess Phillips
Me too, 100%.
Duncan Craig: I think they should be able to do whatever the witness wants them to do.
Jess Phillips
Yes, me too. But Victim Support runs the service that is allowed to sit in the witness box.
Rachel Almeida: Not all of them. Again, it varies hugely. In some areas, there are services where there are two courts, and one they are allowed in and one they are not allowed in. What good looks like is if the guidance could make it really clear that the roles need to be really independent. There is a role there to help establish the independence of the role and that these services should be independent from statutory organisations. The second thing is for the guidance to lead to improved and more consistent access, so that ISVAs can do their role fully and the support the victim-survivor through the court system. That is exactly what is needed. If the victim’s family wants them to sit next to them, they should be allowed to—they should be allowed in the court building—and that role should be recognised.
Jess Phillips
Q
Rachel Almeida: Further, I would say, in relation to section 28—whenever they are cross-examined, which may not necessarily be in the court building but could be in pre-trial cross-examination—that they should also be included in that room. Also, in the introduction of a CPS meeting, the ISVA should be there, invited and included as part of that process.
Duncan Craig: In Greater Manchester, we have been trying, with the deputy Mayor, to do an opt-out of ISVA. As soon as someone is identified, they have an ISVA, partly because, particularly when we are talking about something that happened last night, we seem to ask the individual 25,000 questions when all they want to do is go home, have a shower, go to bed and have nobody talk to them—let alone decide whether they want an ISVA, an IDVA or whatever.
What we learned in some of our discussions with our clients was, if we gave them one, they just accepted—in some way, shape or form—and it meant that we could properly see somebody right through to the end. If we asked, “Would you like an ISVA?” they always say, “No, I’m fine.” Then it is not until three days before going into court that someone has a breakdown and we have to try to fly somebody in. It is about working a little bit with some agencies. I am very proud of our north-west CPS, because its first question is, “Who is their ISVA?” The police need to do a little bit of that and health really needs to do a lot of that.
Jess Phillips
Q
Duncan Craig: That is the next bit. I did not say that we—
Jess Phillips
You could not possibly guarantee that every single rape victim would have one.
Duncan Craig: Completely. It would be nice to.
Jess Phillips
I mean, I would.
Rachel Almeida: I just want to come back to the guidance. Something that we are really keen not to happen is exactly what Duncan said: for it to lead to a hierarchy. A range of roles work in these services, and they are really valuable roles. There is a range of needs and victims, and the guidance needs to make sure that it does not end up excluding certain services or roles from being recognised as important in providing the support that is needed to victims. A concern we have is that all funding is channelled into ISVA roles only and then you lose the expertise and the recognition of the wider roles.
The Chair
If there are no further questions, I thank the witnesses for attending this afternoon and giving evidence. I apologise for the slight delay.
Ordered, That further consideration be now adjourned. —(Fay Jones.)