Victims and Prisoners Bill (Thirteenth sitting)
Tuesday 11th July 2023
(10 months 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 11 July 2023 - (11 Jul 2023)
The Chair
Before we begin, I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted during sittings of this Committee, except for the water provided. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk or passed their written speaking notes to the Hansard colleague in the room. It is very hot, so people are welcome to remove their jackets if they so wish.
Ellie Reeves (Lewisham West and Penge) (Lab)
I beg to move amendment 93, in clause 35, page 32, line 9, at end insert—
“(aa) manslaughter;”
The Chair
With this it will be convenient to discuss the following:
Amendment 92, in clause 35, page 32, line 22, at end insert—
“(fa) an offence under section 6 of that Act (assault of a child under 13 by penetration);
(fb) an offence under section 8 of that Act (causing or inciting a child under 13 to engage in sexual activity);
(fc) an offence under section 47 of that Act (paying for sexual services of a child) against a person aged under 16;”
Amendment 91, in clause 35, page 32, line 25, at end insert—
“(ha) an offence under section 19 of that Act (sexual assault on a young child by penetration);
(hb) an offence under section 20 of that Act (sexual assault on a young child);
(hc) an offence under section 21 of that Act (causing a young child to participate in a sexual activity);”
Amendment 94, in clause 35, page 32, line 29, at end insert—
“(ja) an offence under Article 13 of that Order (assault of a child under 13 by penetration);
(jb) an offence under Article 15 of that Order (causing or inciting a child under 13 to engage in sexual activity);”
Amendment 95, in clause 36, page 34, line 40, at end insert—
“(aa) manslaughter;”
Amendment 97, in clause 36, page 35, line 10, at end insert—
“(ea) an offence under sections 6 to 51 of that Act;”
Amendment 119, in clause 36, page 35, line 12, at end insert—
“(ga) an offence under sections 2 to 11 of that Act against a mentally disordered person, as defined by section 17 of that Act;
(gb) an offence under Part 4 or Part 5 of that Act;”
Amendment 98, in clause 36, page 35, line 17, at end insert—
“(ia) an offence under Part 3 or Part 4 of that Order;”
New clause 22—Referral of release decisions to the Court of Appeal: life prisoners—
‘After section 32ZA of the Crime (Sentences) Act 1997 insert—
“Referral of release decisions to Court of Appeal
327ZAA Referral of release decisions to Court of Appeal
(1) This section applies where—
(a) a prisoner is serving a life sentence imposed in respect of an offence specified or described in section 32ZAB (the “relevant sentence”),
(b) the Parole Board is required to make a public protection decision about the prisoner under section 28(6)(b) or 32(5A), and
(c) the public protection decision relates to the relevant sentence.
(2) Where the Parole Board has made a decision in a case to which this section applies—
(a) the Secretary of State may refer the decision to the criminal division of the Court of Appeal, or
(b) a victim may apply to the Secretary of State to request that the prisoner’s case be referred to the criminal division of the Court of Appeal.
(3) Within [30 days] of an application being made under paragraph (2)(b), the Secretary of State must—
(a) exercise the power under subsection (2)(a) and refer the prisoner’s case to the criminal division of the Court of Appeal, or
(b) provide to the victim a written statement explaining why they have decided not to exercise that power.
(4) This section applies in relation to a prisoner whose sentence was imposed before, as well as after, this section comes into force.
(5) But nothing in this section affects the duty of the Secretary of State to release a prisoner whose release has been directed by the Parole Board before this section comes into force.
(6) In this section, “public protection decision” has the meaning given by section 28ZA(2).
327ZAB Offences for purposes of Court of Appeal referral
(1) The offences specified or described in this section (for the purposes of section 32ZAA) are—
(a) murder;
(b) manslaughter;
(c) an offence under section 5 of the Domestic Violence, Crime 10 and Victims Act 2004, where a child has died as a result of the prisoner’s unlawful act;
(d) an offence specified in any of paragraphs 41 to 43 of Schedule 18 to the Sentencing Code (specified terrorism offences other than inchoate offences);
(e) an offence that is not an inchoate offence and was determined to have a terrorist connection, within the meaning given by section 247A(7A) of the Criminal Justice Act 2003;
(f) an offence under section 1 of the Sexual Offences Act 2003 (rape);
(g) an offence under section 5 of that Act (rape of a child under 13);
(h) an offence under section 6 of that Act (assault of a child under 13 by penetration);
(i) an offence under section 8 of that Act (causing or inciting a child under 13 to engage in sexual activity);
(j) an offence under section 47 of that Act (paying for sexual services of a child) against a person aged under 16;
(k) an offence under section 1 of the Sexual Offences (Scotland) Act 2009 (asp 9) (rape);
(l) an offence under section 18 of that Act (rape of a young child);
(m) an offence under section 19 of that Act (sexual assault on a young child by penetration);
(n) an offence under section 20 of that Act (sexual assault on a young child);
(o) an offence under section 21 of that Act (causing a young child to participate in a sexual activity);
(p) an offence under Article 5 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)) (rape);
(q) an offence under Article 12 of that Order (rape of a child under 13);
(r) an offence under Article 13 of that Order (assault of a child under 13 by penetration);
(s) an offence under Article 15 of that Order (causing or inciting a child under 13 to engage in sexual activity);
(t) an offence that—
(i) is abolished, and
(ii) would have constituted an offence referred to in paragraphs (a) to (s) if committed on or after the date on which it was abolished.
(2) A sentence in respect of a service offence is to be treated for the 35 purposes of section 32ZAA as if it were a sentence in respect of the corresponding offence.
(3) In subsection (2)—
(a) “service offence” means an offence under—
(i) section 42 of the Armed Forces Act 2006,
(ii) section 70 of the Army Act 1955 or the Air Force Act 1955, or
(iii) section 42 of the Naval Discipline Act 1957;
(b) “corresponding offence” means—
(i) in relation to an offence under section 42 of the Armed Forces Act 2006, the corresponding offence under the law of England and Wales within the meaning of that section;
(ii) in relation to an offence under section 70 of the Army Act 1955 or the Air Force Act 1955, the corresponding civil offence within the meaning of that Act;
(iii) in relation to an offence under section 42 of the Naval Discipline Act 1957, the civil offence within the meaning of that section.
327ZAC Powers of the Court of Appeal
(1) On a referral of a prisoner’s case under section 32ZAA, the Court of Appeal may—
(a) direct the Secretary of State to release the prisoner on licence as soon as is reasonably practicable in all the circumstances including, in particular, the need to make arrangements in connection with any conditions that are to be included in the licence, or
(b) decide that the prisoner should remain confined and direct the Secretary of State accordingly.
(2) In making a decision under subsection (1), the Court of Appeal must have regard to whether there is no more than a minimal risk that, were the prisoner no longer confined, the prisoner would commit a further offence the commission of which would cause serious harm.
(2A) In making a decision under subsection (1), the Court of Appeal must consider—
(a) any statement made by the Parole Board as to the reasons for its decision,
(b) the evidence considered by the Parole Board in reaching its decision,
(c) any representations made to the Parole Board by the Secretary of State, by a victim, or on behalf of the prisoner,
(d) any transcript made of a Parole Board hearing in respect of the case.
(3) No judge shall sit as a member of the Court of Appeal on the hearing of a reference under this section in respect of a sentence they passed.”’
New clause 23—Referral of release decisions to the Court of Appeal: fixed-term prisoners—
‘(1) After section 256AZB of the Criminal Justice Act 2003 insert—
“Referral of release decisions to the Court of Appeal
256AZBA Referral of release decisions to the Court of Appeal
(1) This section applies where—
(a) a prisoner is serving a fixed-term sentence imposed in respect of an offence specified or described in section 256AZBB (the “relevant sentence”),
(b) the Board is required to make a public protection decision about the prisoner under a relevant provision of this Chapter, and
(c) the public protection decision relates to the relevant sentence.
(2) Where the Parole Board has made a decision in a case to which this section applies—
(a) the Secretary of State may refer the decision to the criminal division of the Court of Appeal, or
(b) a victim may apply to the Secretary of State to request that the prisoner’s case be referred to the criminal division of the Court of Appeal.
(3) Within [30 days] of an application being made under paragraph (2)(b), the Secretary of State must—
(a) exercise the power under subsection (2)(a) and refer the prisoner’s case to the criminal division of the Court of Appeal, or
(b) provide to the victim a written statement explaining why they have decided not to exercise that power.
(4) This section applies in relation to a prisoner whose sentence was imposed before, as well as after, this section comes into force.
(5) But nothing in this section affects the duty of the Secretary of State to release a prisoner whose release has been directed by the Parole Board before this section comes into force.
(6) In this section—
“corresponding power of direction” , in relation to a relevant provision, is the power of the Board to direct the Secretary of State to release the prisoner, for the purposes of which the public protection decision is made (see section 237B);
“public protection decision” has the meaning given by section 237A(2);
“relevant provision” has the meaning given by section 237B.
256AZBB Offences for the purpose of Court of Appeal referral
(1) The offences specified or described in this section (for the purposes of section 256AZBA) are—
(a) manslaughter;
(b) an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004, where a child has died as a result of the prisoner’s unlawful act;
(c) an offence specified in any of paragraphs 41 to 43 of Schedule 18 to the Sentencing Code (specified terrorism offences other than inchoate offences);
(d) an offence that is not an inchoate offence and was determined to have a terrorist connection, within the meaning given by section 247A(7A);
(e) an offence under section 1 of the Sexual Offences Act 2003 (rape);
(f) an offence under section 5 of that Act (rape of a child under 13);
(g) an offence under sections 6 to 51 of that Act;
(h) an offence under section 1 of the Sexual Offences (Scotland) Act 2009 (asp 9) (rape);
(i) an offence under section 18 of that Act (rape of a young child);
(j) an offence under sections 2 to 11 of that Act against a mentally disordered person, as defined by section 17 of that Act;
(k) an offence under Part 4 or Part 5 of that Act;
(l) an offence under Article 5 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)) (rape);
(m) an offence under Article 12 of that Order (rape of a child under 13);
(n) an offence under Part 3 or Part 4 of that Order;
(p) an offence that—
(i) is abolished, and
(ii) would have constituted an offence referred to in paragraphs (a) to (o) if committed on or after the date on which it was abolished.
(2) A sentence in respect of a service offence is to be treated for the purposes of section 256AZBA as if it were a sentence in respect of the corresponding offence.
(3) In subsection (2)—
(a) “service offence” means an offence under—
(i) section 42 of the Armed Forces Act 2006,
(ii) section 70 of the Army Act 1955 or the Air Force Act 1955, or
(iii) section 42 of the Naval Discipline Act 1957;
(b) “corresponding offence” means—
(i) in relation to an offence under section 42 of the Armed Forces Act 2006, the corresponding offence under the law of England and Wales within the meaning of that section;
(ii) in relation to an offence under section 70 of the Army Act 1955 or the Air Force Act 1955, the corresponding civil offence within the meaning of that Act;
(iii) in relation to an offence under section 42 of the Naval Discipline Act 1957, the civil offence within the meaning of that section.
256AZBC Powers of the Court of Appeal
(1) On a referral of a prisoner’s case under section 256AZBA, the Court of Appeal may—
(a) direct the Secretary of State to release the prisoner on licence as soon as is reasonably practicable in all the circumstances including, in particular, the need to make arrangements in connection with any conditions that are to be included in the licence, or
(b) decide that the prisoner should remain confined and direct the Secretary of State accordingly.
(2) In making a decision under subsection (1), the Court of Appeal must have regard to whether there is no more than a minimal risk that, were the prisoner no longer confined, the prisoner would commit a further offence the commission of which would cause serious harm.
(3) In making a decision under subsection (1), the Court of Appeal must consider—
(a) any statement made by the Parole Board as to the reasons for its decision,
(b) the evidence considered by the Parole Board in reaching its decision,
(c) any representations made to the Parole Board by the Secretary of State, by a victim, or on behalf of the prisoner,
(d) any transcript made of a Parole Board hearing in respect of the case.
(4) No judge shall sit as a member of the Court of Appeal on the hearing of a reference under this section in respect of a sentence they passed.”’
Ellie Reeves
I want to say from the outset that part 3 of the Bill had no pre-legislative scrutiny and there was a lack of consultation with the Parole Board. What that really shows, as I understand it, is that this policy was driven by the previous Justice Secretary. The current Justice Secretary is very reasonable; I hope that, along with his colleagues, he will look at these measures again and be open to our proposals.
The decisions to release John Worboys, Colin Pitchfork and Tracey Connelly rightly caused public outrage and undermined confidence in the Parole Board, but the proposals in clauses 35 and 36 are not the right approach. I will set out why new clauses 22 and 23 are so important. They both seek to give victims more of a voice and provide a mechanism for a check on Parole Board decisions, but they do so in a way that would give victims confidence. They would not undermine the separation of powers or the independence of the Parole Board, nor would they lead to the politicisation of Parole Board decisions.
Clauses 35 and 36 effectively give the Secretary of State a veto over a release decision on top tier prisoners. Our new clauses would give the Secretary of State a power to appeal a Parole Board decision to the criminal division of the Court of Appeal; give victims the power to refer their case to the Secretary of State to make an application on their behalf to the Court of Appeal; and expand the top tier cases in scope so that more victims could benefit. Likewise, the amendments would also expand the top tier.
The new clauses are far preferable to the current measures in the Bill, for the following reasons. First, the Parole Board acts as a quasi-judicial, independent and impartial body. Giving the Secretary of State the veto on its decisions would undermine that, and fundamentally change the application of the constitutional principle of the separation of powers between the judiciary and the Executive.
Nobody wants dangerous criminals to be released, but allowing a politician power over a release decision will leave them vulnerable to public or party opinion, which can run counter to the actual risk of reoffending. That could lead to decisions being made because they are politically or publicly expedient, not because they are properly considered or based on a fair assessment of risk. As the former Conservative Prime Minister Sir John Major recently stated in his lecture to the Prison Reform Trust,
“I do not see how (or why) the Justice Secretary would be able to reach a more just decision than the Parole Board. Any single Government Minister—however able or well-meaning—would be far more vulnerable to public campaigns and, under pressure, to make a harsher decision to appease them. This is a very slippery slope. I do not think that any politician should have that power, and I hope the new Justice Secretary will reconsider or—if he does not—that Parliament will deny it.”
He is absolutely right. That is why new clauses 22 and 23 seek to give power not to the Justice Secretary, but to the Court of Appeal, which will not bow to political pressure. That would maintain the separation of powers.
Clauses 35 and 36 are also likely to be incredibly costly. The Ministry of Justice’s impact assessment assumes that 20% of top tier Parole Board decisions to release will be vetoed, suggesting that about 150 people a year will not be released. The central estimate outlines that that will require an additional 640 prison places to be built, at a cost of £238.3 million and an annual running cost of £28.7 million. In total, the central estimate puts that policy at just shy of £0.5 billion. It is disappointing that in a Bill that is supposed to be about victims, the only money that can be found is for prisoners.
Furthermore, as the Justice Committee outlined in its letter to the Justice Secretary after its evidence session, the only way it could see the Justice Secretary being able to make release decisions to the same standard as the Parole Board would be, in effect, to create a shadow Parole Board in the Ministry of Justice. How much resource and focus would that take?
New clauses 22 and 23 are likely to be far more cost-effective. They would not need the creation of a shadow Parole Board to ensure that the Secretary of State could make decisions effectively; the Court of Appeal is already expert in such work. Allowing an appeal mechanism to the criminal division is likely to be much less expensive than creating a complex veto process, which is full of legal risk for the Government.
In addition, clauses 35 and 36 do not give a mechanism for a victim to challenge release decisions; they only give the right to the prisoner and the Secretary of State. New clauses 22 and 23 would give victims, who are supposed to be at the heart of the Bill, more rights by allowing them to ask the Secretary of State to put in an appeal against Parole Board decisions. In effect, that would mirror the unduly lenient sentence scheme and, if a referral were not possible, those victims would be given reasons why. Their rights would also be increased by the new clauses through the expansion of the top tier of cases. The other amendments in this group would do the same.
Under the Government proposals, only murder, rape, causing the death of a child, and serious terror offences are in the top tier for which a referral can be made. New clauses 22 and 23 and our amendments would expand the top tier to include sexual offences against children that fall short of rape. Most people would agree that all sexual offences against children should be treated with the utmost seriousness, and their exclusion from the list of top tier cases risks diminishing that. Under our new clauses and amendments, the top tier would also include manslaughter. That is particularly important, because many men who kill their partners or ex-partners are convicted of manslaughter and not of murder.
I turn to the impact of clauses 35 and 36 on victims. The independent Victims’ Commissioner for London, Claire Waxman, outlined in her written evidence to this Committee that she believed the clauses would compound victims’ trauma and suffering. In oral evidence, she said of victims:
“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.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 30, Q68.]
Maria Eagle (Garston and Halewood) (Lab)
Does my hon. Friend agree that, as well as giving false hope, the measures would extend the length of time it takes to get the decisions made, therefore extending the agony that people feel while not knowing what a decision will end up being?
Ellie Reeves
That is absolutely right. Not only do the measures give a false hope, but they will cause a huge amount of delay in the system before those primary decisions are ever arrived at. That is incredibly detrimental to victims.
The Ministry of Justice’s impact assessment supports the view of the London Victims’ Commissioner. Its estimates suggest that 75 cases a year will, after a lengthy process, result in the Secretary of State’s decision being overturned and the prisoner released. That does not suggest that clauses 35 and 36 will give victims more confidence in the justice system. In fact, the opposite is likely. As the solicitor Andrew Sperling outlined in his evidence to the Justice Committee, that is because the reforms would create a three-tier system of Parole Board, Secretary of State and upper tribunal. He said:
“What you have here is a system being set up that says that there needs to be a three-tier system, and that the Parole Board should not be capable of making decisions in the most serious cases.”
As the Law Society outlined in its written evidence, delays could have the result that
“fewer prisoners serving fixed sentences will be released on licence, instead being released automatically when their sentences end”.
That would create a public safety concern, as prisoners would return to the community without probation supervision, which would be concerning for victims and at odds with what the Bill is supposed to be about, as well as putting the public at risk. New clauses 22 and 23 would prevent those issues from arising, as they would create a more truncated route to a final release decision. Under our proposals, the Court of Appeal would make the final decision, rather than the Secretary of State, with the prisoner then having the right to appeal.
It is worth noting that in 2019 a reconsideration mechanism was introduced that allows parties to a Parole Board case to challenge a release decision. As Martin Jones, the Parole Board chief executive, outlined in an evidence session of the Justice Committee on the Bill, since the mechanism was introduced the Secretary of State has made 50 applications of reconsideration. Mr Jones said that
“in the last four years, the Secretary of State has been concerned about 50 of our decisions, of which, following reconsideration by a judge of the Parole Board, 12 have subsequently been set aside and then reheard.”
He went on to tell the Select Committee that, under the new proposals,
“20% of top-tier decisions may subsequently be set aside by the Secretary of State. That is in stark contrast to the fact that over the last four years, they have sought reconsideration for only 50 decisions. I am not sure how you jump from doing 12 a year to seeking to set aside hundreds of our decisions each year.”
I am aware that the Justice Secretary recently used the mechanism to request a reconsideration of the decision to release Colin Pitchfork, which I welcome, but new clauses 35 and 36 will seemingly make the mechanism irrelevant. New clauses 22 and 23 would complement the mechanism and provide another important check on Parole Board decisions by the Court of Appeal.
Finally, the Prison Reform Trust and a number of other stakeholders outlined in their written evidence that clauses 35 and 36 could lead to poorer, less transparent decision-making. We do not know what criteria the Justice Secretary will follow in exercising the new power. We do not know whether it will be exercised directly by the Secretary of State or under authority delegated to an official. If a prisoner released without the Secretary of State exercising their veto goes on to commit a serious further offence, we do not know whether the Secretary of State or their officials will be subject to the serious further offence review process or held accountable for any errors.
That brings us back to the point made by nearly every stakeholder providing evidence on part 3: why is the Secretary of State better placed to make a release decision than the Parole Board, which has heard the evidence and whose job it is to do this professionally? The reforms will risk poorer decision-making. At the moment the buck stops with the Parole Board, but, if it knew that the final decision rested with the Secretary of State, that could drive down parole decisions, conversely leaving the public less safe. As Caroline Corby, the chair of the Parole Board, stated when she gave evidence to the Justice Committee, the clauses
“could have an unintended consequence of making it more difficult for us to recruit judicial members,”
as the role could be seen as downgraded. That could risk the board losing such valuable expertise. Our new clauses would ameliorate those issues.
For all those reasons, I strongly urge the Government to look at their proposals again. They have attracted widespread concern and will undermine the separation of powers, risk the politicisation of police decisions and cost vast sums to implement. They could cause victims more harm and leave the public less safe. New clauses 22 and 23 would give the Secretary of State the power to appeal against a Parole Board decision in cases where they think that the decision is wrong, ensuring that another check is in place. Victims would also be empowered to ask the Secretary of State to appeal to the Court of Appeal. The amendments and new clauses would expand the top tier of cases, increasing victims’ rights and ensuring that some of the worst crimes are treated with the seriousness that they deserve. I hope that the Government will consider that carefully, and look again at their proposals.
The Minister of State, Ministry of Justice (Edward Argar)
It is a pleasure to serve under your chairmanship on a Bill Committee once again, Mrs Murray. I am grateful to the shadow Minister for her amendments, which would add sexual offences against a child, sexual offences against those with mental disorders and manslaughter to the list of offences to which the ministerial decision-making power would apply.
To remind the Committee, the ministerial decision power in clauses 35 and 36 imposes a new safeguard—a check and balance—on the release of the most serious offenders in the top tier. It will allow the Secretary of State to intervene on behalf of the public and take a second look at the release decision. I recognise, as I am sure Members on both sides do, that all crimes are serious, especially to their victims, and the top tier in the Bill is not an exhaustive list of serious crimes. Sexual offences committed against children and those with mental disorders cause long-lasting harm to their victims. Those who commit manslaughter have caused immeasurable grief to their victims’ families. The impact of these offences cannot be understated, and the entire parole system needs to be robust in protecting the public from those who commit such grave offences.
The Parole Board does its difficult job well and has a very good track record of assessing risk. Over 99% of offenders directed for release do not go on to commit a serious further offence. It is clear that in the overwhelming majority of cases the Parole Board gets it right. However, the root and branch review of the parole system, published in March 2022, found that a small number of cases have demonstrated the need for an additional safeguard. Some offenders present a heightened risk to the public due to the nature of their crimes, and their release should be approached with even greater caution. They are murderers, rapists, the most serious terrorists and those who have caused or allowed the death of a child.
The top tier cohort has been carefully chosen to capture these offences, and we do not think it is proportionate to widen the cohort of offenders to which the power applies beyond these four offence types. These are the cases that the root and branch review deemed to carry the greatest risk to the public, and they are the cases that most greatly affect public confidence in the justice system.
New clauses 22 and 23 would seek to replace the ministerial decision-making power with a new power to allow the Secretary of State to instead refer a case directly to the Court of Appeal for review, which would determine whether the prisoner was safe to release. The new clause introduces a statutory right for victims in the referral process, expands the offences included in the top tier, and removes the power for the Parole Board to be able to refer cases directly without making a decision. I will come on to these changes in turn, but let me first say that the principle behind the new powers in the Bill is that the most serious offenders should be subject to additional scrutiny before they are released, in order to reinforce our focus on public protection and bolster public confidence. While I recognise our differences in approach, I believe there is a degree of agreement across both sides on that underlying principle.
I turn to the principal difference in the new clause. Let me begin by explaining the different approaches. Clauses 35 and 36 would allow the Secretary of State to call in a top tier case to retake a release decision, with an onward route of appeal to the upper tribunal. We will come on to this route of appeal and its destination in later clauses. The new clause would instead provide a new power for the Secretary of State to refer a top tier case directly to the Court of Appeal, instead of making a decision themselves.
On the principle of whether it is right that Ministers themselves should directly take decisions, I believe that the public rightly expect a role for Ministers when it comes to the release of the most serious offenders. Keeping the public safe is the Government’s first duty, and it is not unreasonable for Ministers to act as an additional safeguard—as a check and balance in the system. That is why the approach in the Bill is for Ministers to apply the additional safeguard themselves, with an onward route of appeal.
The new clause would introduce a new statutory role for victims in the referral process, by creating a power for them to apply to the Secretary of State to request that the prisoner’s case is referred to the Court of Appeal. Within 30 days, the Secretary of State would be required to either refer the case to the Court of Appeal or provide a written statement explaining to the victim why they have decided not to exercise that power. I understand the concern that victims often feel about the potential release of an offender, and as we implement the reforms in the Bill we will ensure that they are able to make their voices heard as part of the process.
Let me give an example of how we already do this in our existing processes. Under the pre-existing reconsideration mechanism, victims are able to submit a request to the Secretary of State asking them to apply to the Parole Board for a decision to be reconsidered. HM Prison and Probation Service will respond on behalf of the Secretary of State to each victim to confirm whether an application for reconsideration has or has not been made, with an explanation of why. This is an operational process, rather than one set out in primary legislation. I am grateful to the shadow Minister for highlighting the need to ensure that we build the right processes and support for victims into whatever new ministerial or other decision-making model is in place, but I do not consider it necessary to set that out in primary legislation.
Jess Phillips (Birmingham, Yardley) (Lab)
I wonder whether, potentially before Report, the breakdown of the number of killings of women in their homes deemed to be manslaughter, rather than murder, could be provided to the Committee. Is there an impact assessment that we could see on the disproportionate use of manslaughter charges in cases such as domestic homicide?
I am afraid to say there are lots of problems with the way that we tier crimes. For example, if a person murders someone in their own home, the starting tariff is 15 years; if a person murders somebody with a knife they have taken out of the house, the starting tariff in our country is 25 years. At the moment, 70% of women who are killed are killed in their homes. With this Bill, we should not be creating another two-tier system in which the killing of women simply is not as important.
Edward Argar
I am grateful to the hon. Lady, but I do not think anyone is suggesting what she suggested in her final sentence. She is right to highlight the tariff difference, which is reflective of something that Parliament decided it wished to do, recognising that it would create a disparity in the tariffs, in the light of the Kinsella murder. Parliament was cognisant of that. Whether that should be looked at is a perfectly reasonable point. In that context, I pay tribute—as I know the hon. Lady would—to the Goulds and Deveys for the campaign they are undertaking on the issue, and to the Killed Women campaign more broadly. Wherever this lands, they are provoking an important public debate on this very important issue and the disparity between whether a knife is taken to the scene of a crime in a public place or is already there.
I will be cautious on the hon. Lady’s specific question about the statistics, because I do not know whether that level of granularity is available, but I will take that away and look. If the data is recorded in a way that answers her question and is publicly available, I will be happy to share it with her.
Finally, the new clause would remove the discretionary referral power, which would allow the Parole Board to send a case directly to the Secretary of State without taking a first-instance decision or, in this instance, directly to the Court of Appeal. The intention behind this route of referral is to allow the Parole Board to refer a case where, for whatever reason, it is unable adequately to make an assessment of risk and so cannot make a robust decision. I recognise that the Justice Committee, as referred to by the hon. Member for Lewisham West and Penge, has also raised concerns about this route of referral, and we are carefully considering the issues raised and the broader point of the Justice Committee in its very swift—for which we are grateful, and I know the Lord Chancellor is grateful—one-off inquiry into part 3 of the Bill.
In subsequent debates, I will outline what we believe is the most appropriate route of referral and why we do not believe that the Court of Appeal is the right route. We believe that that remains the upper tribunal, but that is addressed specifically in subsequent amendments and clauses. I am grateful to the shadow Minister for her amendments and new clauses, but I am afraid that at this stage we must resist them.
Ellie Reeves
I am particularly disappointed that the Minister does not seem amenable to expanding the top tier, particularly to include those serving sentences for manslaughter. My hon. Friend the Member for Birmingham, Yardley set out very clearly why that is so important. As I said in my speech, so many men who kill their partners or ex-partners are in prison for manslaughter rather than murder, and it sends completely the wrong signal.
I am disappointed that the Government are not minded to accept our amendments. I will not push them or the new clauses to a vote, but I hope that the Minister and the Justice Secretary will reflect on the points we have made as the Bill progresses. I beg to ask leave the withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 35 reflects the views of the root-and-branch review by amending the Crime (Sentences) Act 1997 to create a top tier cohort of indeterminate-sentenced offenders who have committed some of the most serious crimes and whose release from prison will be subject to additional safeguards. In the same way, clause 36 amends the Criminal Justice Act 2003 to create a top tier cohort of fixed-term offenders. As the clause applies to offenders serving determinate sentences, murder is not included in the list of offences for referral, as life sentences are mandatory in all murder cases in any event. The top tier therefore consists of offenders serving sentences for murder, rape, certain terrorism offences, or causing or allowing the death of a child—again, as I have alluded to, this reflects the root-and-branch review’s approach.
The clauses contain a new power for the Secretary of State for Justice to intervene in the release of the most serious offenders, providing for a second check by taking or retaking release decisions. Once a prisoner has been referred to the Parole Board to decide whether they are safe to be released, there are two routes by which such decisions may come before the Secretary of State. First, the clauses contain a provision that will allow the members of the Parole Board to refer a top tier release decision to the Secretary of State, instead of making a decision themselves. They can do so for any reason that they consider appropriate, including if, for whatever reason, they are unable to adequately assess risk in a particular case. The Secretary of State would then make a decision about release for that offender. We expect that this power will be used in very rare cases only.
Jess Phillips
I welcome the fact that the Minister thinks the power will be used only in very rare cases. When assessing the risk, what will the Secretary of State have that the Parole Board does not have? Is the Secretary of State imbibed with some great risk-assessment power that the Parole Board and all the people on it are not?
Edward Argar
The Secretary of State will have information from the Parole Board and the Parole Board’s view but, ultimately, we believe it is right that the Secretary of State is accountable to the public in such cases. We therefore believe that that is the appropriate route by which someone who is accountable, and to whom I suspect the public would look in the most serious cases, can ensure public protection where the Parole Board feels that it is unable to do so.
Jess Phillips
I will not trouble the Committee too much longer. I am not sure that a public mandate allows me, as somebody elected by the people, to be somebody with expertise in risk management. I am, but that is nothing to do with the mandate that I got from the good people of Birmingham, Yardley. What I am trying to get at is that few people in this place have done more than the Secretary of State for Justice to remind people about the separation of powers between the judiciary and Parliament. Few people are greater advocates of that than our current Lord Chancellor, and I wonder why we are now leaning on a public mandate to assess risk, rather than on what we have always done before.
Edward Argar
The shadow Minister says “what we have always done before”, but the powers and the approach—the so-called separation of powers—are relatively new, and I believe came in under the last Labour Government. If I recall correctly, the Home Secretary under previous Conservative Governments in the ’80s and ’90s had a number of the relevant powers. I take her point, but it is not how this has always been done; it is a relatively new innovation—that is not to say it is a bad one, but I would exercise a degree of caution about whether it is from time immemorial. We have the principle of a separation of powers, of course, but in this space, historically, there has always been a lack of clear delineation—for want of a better expression—in such matters.
Clauses 35 and 36 also allow the Secretary of State to call in a top tier case if the Parole Board has directed release. Around 1,900 top tier cases come before the Parole Board each year and, on average, the board directs release for about 650 of those offenders. In any top tier cases in which release has been directed, the Secretary of State may decide to call in the case and, by doing so, quash the decision of the Parole Board. The Secretary of State will then retake the decision as to whether that offender should be released. If a case is not called in, the decision of the Parole Board stands and the Secretary of State is required to give effect to that release decision as soon as reasonably practicable in the circumstances.
For either of the two routes, the Secretary of State will make a decision about whether the offender is safe to be released by applying the full release test, as set out in clauses 32 and 33, based on all the evidence and advice before them. If the Secretary of State decides that the offender should remain in prison, they must notify the prisoner of the reasoning behind their decision and of the prisoner’s right to appeal. We will turn to that right of appeal in the debates on later clauses.
The new power provides an additional safeguard to the release of the most serious offenders, an issue that particularly affects public confidence in the parole process. Victims are often anxious about whether a prisoner who caused them harm is released, out of concern not only for themselves and their families but for the wider public. Allowing the Secretary of State to apply an additional check and balance to such decisions will help to ensure that those who present the highest risk to the public remain in prison.
The board will continue to risk assess offenders in the same way that it does now, independently of the Government, and will continue to make the final decision about release for most parole-eligible offenders. The board does that difficult job well in the vast majority of cases. However, in the few cases where it is necessary, clauses 35 and 36 will allow the Secretary of State to intervene to provide additional scrutiny to release decisions and to further bolster public confidence in the system.
Ellie Reeves
When discussing new clauses 22 and 23, I spoke at length about why I do not think that clauses 35 and 36 are the right approach. I will not repeat those concerns; they are on the record already. I will simply add to them by quoting from the speech of the former Conservative Prime Minister Sir John Major to the Prison Reform Trust:
“In the thousands of decisions to be made each year, there is no way that Ministers could possibly match the experience and knowledge of the 350 Parole Board members.”
I listened to what the Minister had to say but I am not reassured. He talked about the Secretary of State providing a check. Under our proposals for an appeal to the Court of Appeal, there would be referrals, so there would still be a role for the Secretary of State, but the referral would be to the Court of Appeal, which we think is a far more sensible and proportionate response. I hope that the Minister has listened to the concerns expressed right across the political spectrum and that he will reflect on them as the Bill makes progress.
Edward Argar
I am grateful, as ever, to the shadow Minister for her tone and approach. I do not want her to feel left out as we have already debated parts 1 and 2—I am always happy to work with her, too, over the course of the summer. She is very welcome, along with the hon. Member for Rotherham, the hon. Member for Garston and Halewood and other shadow Ministers, to meet me over the summer, along with the Minister of State, Ministry of Justice, my right hon. Friend the Member for East Hampshire (Damian Hinds), who is the policy Minister for this part of the Bill. I commend clauses 35 and 36 to the Committee.
Question put and agreed to.
Clause 35 accordingly ordered to stand part of the Bill.
Clause 36 ordered to stand part of the Bill.
Clause 37
Procedure on referral of release decisions
Question proposed, That the clause stand part of the Bill.
Edward Argar
Before I start, I should make a correction: I think I just inadvertently took away membership of the Privy Council from the right hon. Member for Garston and Halewood. I restore it swiftly, with an apology.
Clause 37 will insert a new section into the Criminal Justice Act 2003, setting out what the Secretary of State must consider as part of their decision making on referral of a case from the Parole Board to them, and allowing the Secretary of State to take any evidence necessary for decision making.
Section 239 of the Criminal Justice Act 2003 sets out the requirements of the board in considering an offender’s case, including that it must consider all documents put before it by the Secretary of State, as well as any other evidence obtained, and that, if it deems it necessary to make the decision, it can interview the prisoner. Clause 37 would ensure that the same procedural requirements are replicated for the Secretary of State, including that he or she must consider all the evidence that was before the Parole Board in reaching a decision. The Secretary of State may also make their own findings of fact as appropriate.
The clause also provides for the Secretary of State to make rules on the procedure to be followed by the Secretary of State when making release decisions, akin to the Parole Board rules, which are made in secondary legislation and govern the proceedings of the Parole Board. That means that, post the commencement of the legislation, there will be a robust and clear legislative procedure in place for the exercise of the Secretary of State’s power to provide an additional check on the release decisions of the most serious offenders.
Ellie Reeves
Clause 37 will allow the Secretary of State to make their own findings of fact, without being bound by previous findings of the Parole Board. The clause also sets out what evidence the Secretary of State must consider in reaching their decision. I have already set out at some length, when speaking on proposed new clauses 22 and 23, why I consider the Secretary of State to be the wrong person to make parole decisions. I will not repeat those concerns, as they are already on the record.
It is clear that under clause 37 the Justice Secretary, unlike the Parole Board, will not have had the benefit of interviewing the prisoner before making a decision about their parole. They could authorise someone to conduct an interview on their behalf, but are not compelled to do so. It is difficult to see how, when the Parole Board has interviewed the prisoner, often for many hours, the Secretary of State, who has not interviewed them, would be in a better position to make an assessment of risk, as the Chair of the Justice Committee made clear on Second Reading:
“I do not think the Secretary of State would normally feel happy acting on hearsay in such circumstances, because at the end of the day it is second-hand evidence and he would have to substitute his judgment for that of those who had heard first-hand evidence.”—[Official Report, 15 May 2023; Vol. 732, c. 603.]
That further brings into question whether the Secretary of State is the right person to make parole decisions. I hope the Minister will reflect on that as the Bill progresses.
Edward Argar
I always reflect very carefully on all points made to me by the shadow Minister.
Question put and agreed to.
Clause 37 accordingly ordered to stand part of the Bill.
Clause 38
Appeal to Upper Tribunal of decisions on referral: life prisoners
Ellie Reeves
I beg to move amendment 99, in clause 38, page 37, line 18, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
The Chair
With this it will be convenient to discuss the following:
Amendment 100, in clause 38, page 37, line 31, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 101, in clause 38, page 37, line 36, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 102, in clause 38, page 37, line 37, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 103, in clause 38, page 38, line 4, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 104, in clause 38, page 38, line 8, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 105, in clause 38, page 38, line 14, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 106, in clause 39, page 38, line 26, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 107, in clause 39, page 38, line 39, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 108, in clause 39, page 39, line 4, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 109, in clause 39, page 39, line 5, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 110, in clause 39, page 39, line 10, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 111, in clause 39, page 39, line 14, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 112, in clause 39, page 39, line 20, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 113, in clause 40, page 39, line 36, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 114, in clause 40, page 39, line 39, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 115, in clause 41, page 40, line 8, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 116, in clause 41, page 40, line 9, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Amendment 117, in clause 41, page 40, line 12, leave out “Upper Tribunal” and insert “criminal division of the Court of Appeal”.
Ellie Reeves
I have already explained at length why clauses 35 and 36 do not set out the right approach. The Government may be determined to push forward with them, but I am concerned that the upper tribunal may not be the correct forum to hear an appeal against the Secretary of State’s decision to deny parole. The amendments seek to change the approach, so that any appeal would be to the criminal division of the Court of Appeal.
Unlike criminal courts or the Parole Board, the upper tribunal has no experience of assessing the risk of harm to the public. It is not a fact-finding body; rather, it is there to deal with points of law. Therefore it is unclear why the Government believe that the upper tribunal would be best placed to make such assessments. A more appropriate mechanism for dealing with appeals against decisions by the Secretary of State would be via the Court of Appeal. That view is shared by many.
In evidence to the Justice Committee, his honour Peter Rook KC, a former Old Bailey judge and current vice chair of the Parole Board, outlined that, given the likely need for the calling of evidence from witnesses, any appeal should go to the Court of Appeal criminal division. That is because, unlike the upper tribunal, the Court of Appeal criminal division has experience of such matters.
The Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), made a powerful contribution on Second Reading. He made the point that an appeal can be made on judicial review grounds, which requires a permission stage, or on the merits, which does not require permission. As a result, it is likely that any prisoner who appeals the Secretary of State’s decision will do so on the merits. That will then effectively require a rehearing, which the upper tribunal would be ill equipped to deal with.
A letter from the Justice Committee to the Lord Chancellor stated:
“While there is no doubt that it is right that the final decision on release should lie with an independent court or tribunal, the proposed appeal mechanism in the Bill is flawed. We can see that there could be a case for a merits-based appeal mechanism from the Parole Board, but in our view that should be to the Court of Appeal criminal division rather than to the Upper Tribunal.”
The letter goes on:
“It was pointed out to us that the appeal, particularly on merits, will logically have to be by way of a re-hearing and may frequently involve taking oral evidence. The Upper Tribunal has no experience in or procedures for dealing with this, whereas the Court of Appeal criminal division does.”
I hope that the Government will reflect on that, and reconsider whether the upper tribunal is the appropriate forum for any appeal, or whether the criminal division of the Court of Appeal would be better suited.
Edward Argar
I am grateful to the hon. Lady for her amendment, which would change the appellate chamber for appeals of any Secretary of State decision to refuse release to the Court of Appeal, rather than the upper tribunal. I know that the Justice Committee has also heard evidence that suggests that the Court of Appeal might be the appropriate venue for referral appeals. The hon. Lady and I may disagree on the underlying point about the role of the Secretary of State, but in looking specifically at which is the most appropriate appellate route, the Government feel, for specific procedural and legal reasons, that the Court of Appeal is the wrong route. It may help the Committee if I set out the Government’s position on that point.
The appeals in question will be where the Secretary of State has called in a Parole Board decision to release a top tier offender, or the board has referred a case to the Secretary of State for an initial release decision. I appreciate that other amendments tabled by the hon. Member for Lewisham West and Penge propose the direct referral of a decision by the Parole Board, but the principle is the same in either case: a judicial body with the correct powers and expertise, whether that is the upper tribunal or the Court of Appeal, would ultimately be required to assess the decision. Top tier offenders, as we have already debated, are those who have committed the most serious crimes, such as murder and rape, so it is only right that there is a second check on any decision to release them.
The Government’s view is that the public will be further reassured if that check is made by the Secretary of State or another Minister acting on their behalf. Although I say “check”, it will, of course, be much a more thorough review than that term might imply. The procedure set out in part 3 for verifying whether an offender is suitable for release will require the Secretary of State to apply the public protection test in full and to reach a decision as to whether the offender, if released, would pose
“no more than a minimal risk”
of committing an offence that would cause “serious harm.” That test is the very same release test that will be applied by the Parole Board, which is set out in clauses 32 and 33, which we considered on Thursday.
Even though the Secretary of State and the Parole Board will have applied the same test, there may be occasions when the Secretary of State reaches a different conclusion from the Parole Board and judges, such that a top tier offender has not satisfied the threshold for release and should therefore remain in prison. In such cases, part 3 enables the offender to appeal against the Secretary of State’s decision not to release them. It is right that an appeal should be possible. The ability to challenge a decision is a crucial mechanism and safeguard in our justice system, and it provides a route for ensuring that decisions have been taken correctly and fairly.
The grounds on which an appeal may be brought forward are laid out in clauses 38 and 39. They are straightforward and comprehensive. An appeal may be made either on the grounds that the Secretary of State’s decision is flawed in some way—for example, it is irrational or there has been an error of fact—or it may be made on a merits ground, that is, on the grounds that the prisoner believes they meet the minimal risk threshold for release. The
“no more than a minimal risk”
ground will require the appellate court, whether that be the upper tribunal or the Court of Appeal, to apply the public protection test to determine whether the prisoner is safe to release. That may involve a fresh hearing of the case, if the upper tribunal considers it necessary, and may require the taking of oral evidence.
The amendments require us to consider which appellate court is best placed to fulfil these functions and hear appeals. The Court of Appeal is a statutory body that has its powers set out in the Criminal Appeal Act 1968. It primarily considers appeals from the Crown court against conviction or sentence. Section 2 of the 1968 Act explains that the court may allow an appeal against conviction if it thinks the conviction is unsafe; otherwise it has to dismiss the appeal. It also has powers under section 3 of the 1968 Act to substitute a conviction for another offence.
In determining these issues, and other matters under the 1968 Act, the Court of Appeal does not need to give any consideration to whether a prisoner is safe to release, nor does it conduct re-hearings on the facts. If the Court of Appeal were to be the venue to hear appeals from a decision of the Secretary of State not to release, substantive amendments would have to be made to the 1968 Act and training would have to be given to the Lords Justices of Appeal. Taking on this additional work could have a detrimental effect on the timescale in which the court can hear appeals from those who consider that they have been wrongly convicted and who are serving prison sentences as a result.
On the other hand, the upper tribunal has wide-ranging powers already extant under section 25 of the Tribunal, Courts and Enforcement Act 2007, facilitated by the Tribunal Procedure (Upper Tribunal) Rules 2008, which gives it the same powers as the High Court in terms of attendance, examination of witnesses, production and inspection of documents, and broad scope to conduct and administer hearings. The tribunal has experience in hearing oral evidence and in making decisions in the light of such evidence. For example, it takes oral evidence in appeals against decisions of the Disclosure and Barring Service, and occasionally may also do so to remake a decision after setting aside a decision of the first tier tribunal.
We therefore conclude that, on balance, the upper tribunal is best placed, in terms of the existing legislative powers, to hear appeals against the new ministerial decision-making power, and the Court of Appeal does not appear to be as suitable a venue in this context. I appreciate that the shadow Minister may form a different view, but I think this is a balanced judgment and I would urge her not to press her amendments.
Ellie Reeves
I am grateful to the Minister for setting out why he considers the upper tribunal to be the correct forum. Although I have heard what he has said, we do still have concerns about the appropriateness of the upper tribunal to hear these cases, particularly because most of the appeals are likely to be on substantive grounds. However, we do not propose to press the amendments to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
We have already discussed clauses 35 and 36, which create a new power for the Secretary of State to intervene in release decisions for the most serious offenders. It is only right that if the Secretary of State refuses release, there is recourse to an independent review. Clauses 38 and 39 therefore set out that a prisoner whose release is refused by the Secretary of State under the new provisions can appeal the decision to the upper tribunal. Clause 38 covers life prisoners and clause 39 is for fixed-term prisoners.
There are two routes of appeal available. First, appeals can be made on the grounds that the decision was flawed because it was illegal, irrational, procedurally improper or the Secretary of State made an error of fact that was fundamental to the decision they reached. Subsection (4) clarifies that a decision should not be found to be irrational by the upper tribunal unless it deems that no reasonable Secretary of State could have made that decision. In such cases, permission must be sought from the upper tribunal for the appeal to proceed. If the appeal is upheld, the matter is referred back to the Secretary of State for another decision, in line with other public law decision-making processes; otherwise, the Secretary of State’s decision is upheld and the prisoner remains confined.
Secondly, an appeal is also available on full-merits grounds—that is, whether it is necessary for the protection of the public that the prisoner remain confined. That would allow the tribunal to examine the evidence and re-take the release decision from first principles by applying the same release test, without referring the case back to the Secretary of State. There is no permission stage for this route of appeal. Ongoing post-tariff detention requires determination of lawfulness by a court, in accordance with article 5(4) of the European convention on human rights. The appeal process will ensure that the referral process is robust and there is a proper check and balance on the use of the Secretary of State’s power.
I urge that clauses 38 and 39 stand part of the Bill.
Ellie Reeves
I have set out at length why I do not think that the Secretary of State’s veto is the right approach, but if the Government press ahead with this aspect of the Bill, it is of course absolutely right that there is an appeal mechanism. It is also right that it should be possible to appeal on judicial review grounds or on the substantive merits. As I have said, I anticipate that most appeals will be on the merits, as that will not require a permission stage.
Edward Argar
As I have said, I am always happy to take into account and reflect on—as I know the Lord Chancellor will—the points raised by the shadow Minister. I know that, as well as my rereading the transcripts of our many hours spent in this room, the Lord Chancellor will want to read them carefully to see the points raised by the shadow Minister, so that he may reflect on those points as he considers next steps as the Bill continues its progress.
Question put and agreed to.
Clause 38 accordingly ordered to stand part of the Bill.
Clause 39 ordered to stand part of the Bill.
Clause 40
Licence conditions of life prisoners released following referral
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 40 amends section 31 of the Crime (Sentences) Act 1997 to make provision for the decision maker to decide on the required licence conditions for a top tier indeterminate prisoner. Clause 41 amends section 250 of the Criminal Justice Act 2003 for the same purpose for top tier fixed-term prisoners.
Offenders who are released after a parole decision are managed in the community on licence. That can include conditions such as curfews or exclusion zones, which enable the probation service to continually manage and monitor risk. Licence conditions are set for each offender after a comprehensive assessment of risk. Victims can also request licence conditions, such as an exclusion zone, as part of their victim personal statement.
Setting licence conditions is a key factor in determining whether an offender can safely be managed in the community, and therefore whether the public protection test has been met. The decision maker therefore has the power to set licence conditions. Where the Parole Board makes a release decision, it is responsible for setting licence conditions, on the basis of the recommendations and evidence set before it, including representations from victims. For a top tier case, if a Secretary of State is taking a decision about whether an offender is safe to be released under the provisions in clauses 35 and 36, this clause gives the Secretary of State the necessary power to set the licence conditions in the same way as the Parole Board would, based on the recommendations and evidence before them.
Likewise, if that decision is appealed, these clauses give the upper tribunal this power, so that it can effectively make a public protection decision. Licence conditions may be varied after an offender leaves prison to reflect changing circumstances and risk, and these clauses also facilitate the proper authority having responsibility for this. These clauses ensure that decision makers can protect the public by setting appropriate licence conditions, so that offenders are released only when they can be safely managed in the community. I urge that clauses 40 and 41 stand part of the Bill.
Ellie Reeves
I have already set out why we do not think that the Secretary of State referral is the right approach. These clauses kick in if the Secretary of State orders a release following a referral, or if the upper tribunal orders a release following a refusal by the Secretary of State. I am concerned as to the appropriateness of either the Secretary of State or the upper tribunal setting licence conditions, given the lack of experience that either one has in doing so. Setting licence conditions is a key part of the Parole Board’s responsibilities; licence conditions are crucial to public safety and confidence. It is a matter that, aided by recommendations from the probation service, the board devotes a great deal of time and thought to. It is difficult to see how the Secretary of State will be able to give individual cases the same level of scrutiny as experienced Parole Board panels. Equally, the upper tribunal has no experience of undertaking this kind of work, nor is it clear whether it has the resources to do so effectively.
That also raises the question of how the Secretary of State will be resourced to perform this role, as making informed decisions about what licence conditions are needed is a complex and highly important task. For example, some licence conditions are standard, but others are made at the discretion of the Parole Board. These discretionary conditions will often be closely related to the board’s assessment of the prisoner’s relationship with his probation officer. In practice, they set requirements for the probation officer as well as the prisoner. The risk is that this process will make it impossible for the Secretary of State to give individual cases the same scrutiny as the Parole Board panel. In reality, therefore, they will be heavily dependent on the probation service’s advice on licence conditions. The danger is that an overstretched probation officer may wish to avoid requirements that are too onerous in themselves or, where they have a good relationship with the prisoner, may recommend licence conditions that are insufficiently cautious.
My concern with these clauses is that important licence terms could be missed, which could lead to the public’s being made less safe. I am also concerned by the written evidence from the Prison Reform Trust about the Bill, in which it outlines that, currently,
“victims can make representations to the Parole Board on the content of licence conditions which the board must have regard to.”
There appears to be no mechanism for that to happen under these clauses, which is a regressive step for a Bill that is meant to be about victims.
I hope that as the Bill progresses the Minister will look at these concerns and outline how the Secretary of State will be resourced to do a task that is normally a matter for experienced Parole Board members, how they will ensure that this does not weaken victims’ current rights, and how the public will be kept safe.
Edward Argar
I am happy to reassure the shadow Minister that as the Bill continues its passage we will continue to review how each of those duties would work in practice, and if any of the points that she raises give us further cause for reflection, we will of course consider them carefully.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
Clause 41 ordered to stand part of the Bill.
Clause 42
Section 3 of the Human Rights Act 1998: life prisoners
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clauses 42 to 44 will disapply section 3 of the Human Rights Act 1998 from prisoner release legislation. Specifically, clause 42 disapplies section 3 from chapter 2 of part 2 of the Crime (Sentences) Act 1997, which governs life sentences; clause 43 disapplies it from chapter 6 of part 12 of the Criminal Justice Act 2003, which covers fixed-term sentences; and clause 44 disapplies it from section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which contains a power to amend release for certain cohorts of offenders by secondary legislation.
Let me begin by saying that I and the Government acknowledge that these clauses may have caused some concern and a degree of debate. I entirely understand that and will listen carefully to any points raised by right hon. and hon. Members in our debate and will subsequently, with the Lord Chancellor, reflect on them very carefully. It may, however, be helpful if I first explain the purpose of section 3 of the Human Rights Act and its potential impact on prisoner release legislation.
Section 3 requires primary and subordinate legislation to be read and given effect in a way that is compatible with the European convention on human rights, in so far as it is possible to do so. When a court considers section 3, it is required to go further than usual when interpreting legislation that is otherwise incompatible with the convention rights. At times, this has required courts to depart from the unambiguous meaning of legislation. It has required courts to adopt interpretations of legislation that depart from the intention of Parliament when it passed that legislation.
The requirement in section 3 is not only for courts; anyone, including public authorities, applying legislation has a duty under section 3 to interpret it in a compatible way. It is therefore possible that, at some future point, a court interprets release legislation in a way that is contrary to that which Parliament intended. To prevent any such unintended consequences, we are removing the duty in respect of prisoner release legislation. That will ensure that, should the courts find the provisions incompatible, they will apply the section as it was intended to be applied, and not through the prism of section 3 to alter the interpretation. That is part of our approach to ensure that public protection is always at the core of the system. In such cases, declarations of incompatibility under section 4 of the Human Rights Act will be available.
Clause 45 sets out the approach a court should take if a challenge has been raised on human rights grounds regarding the release of a prisoner. That situation could arise, for example, due to a judicial review, and in that situation the court is required to consider the convention rights of a person in relation to a release decision. The relevant release legislation is the same as for clauses 42 and 43, in chapter 2 of part 2 of the Crime (Sentences) Act 1997 or chapter 6 of part 12 of the Criminal Justice Act 2003, and subordinate legislation made under both of those chapters.
Clause 45 sets out that, when considering a challenge of that kind, the court must give the greatest possible weight to the importance of reducing risk to the public from the offender. That requirement does not apply to the non-derogable rights set out in article 2, on the right to life; article 3, on the prohibition of torture; article 4(1), on the prohibition of slavery; and article 7, on no punishment without law.
Of course, courts already consider risk to the public. However, the Bill ensures it is given greatest possible weight in the circumstances under consideration, further reinforcing the focus on public protection. I reiterate what I said at the outset, which is that the Secretary of State and I will continue to carefully reflect on points made in Committee and will more broadly review the impact that this section, and others, will have in the context of the legislative framework.
Ellie Reeves
It is worth mentioning that the Government’s Bill of Rights, which sought to rip up our Human Rights Act, has thankfully been dropped. A vast amount of parliamentary time and, I am sure, Government bandwidth was taken wrestling with that Bill, until the decision to scrap it was rightly made. My concern is that the clauses may be another way for the former Justice Secretary, the right hon. Member for Esher and Walton (Dominic Raab), to dilute our human rights framework through the backdoor.
Section 3 of the Human Rights Act requires courts to interpret legislation compatibly with rights under the European convention on human rights as far as is possible. The clauses would disapply section 3 to prisoners as a group when it comes to legislation about their release. A number of groups have rightly raised concerns about that. The Prison Reform Trust said:
“The introduction of specific carve-outs from human rights for people given custodial sentences contradicts one of the fundamental principles underlying human rights—their universality and application to each and every person on the simple basis of their being human. Moreover, it is precisely in custodial institutions like prisons that human rights protections are most vital, because individuals are under the control of the state.”
In its written evidence to the Committee, the Bar Council stated:
“There is no evidence of any systemic impairment due to the HRA of the Parole Board’s ability to make high-quality, safe, decisions about prisoners—no statistical analysis of recidivism/public safety concerns from prisoners released due to interpretation of legislation in line with Convention principles.”
In his speech on Second Reading, the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill) said:
“Whatever one’s view of the Human Rights Act, there is no evidence that this is a problem in such cases. In fact, the evidence we heard from practitioners, from both sides, is that it can be helpful to have to have regard to section 3 in these hearings. These clauses seem to be trying to solve a problem that does not exist, and I wonder whether we really need them. It is perfectly possible to have a robust system that still complies with section 3. This is a needless distraction that sends the wrong signal about a certain desire to pick unnecessary fights, which I know is not the current Secretary of State’s approach.”—[Official Report, 15 May 2023; Vol. 732, c. 604.]
I think that sums it up really well.
Clause 45 directs courts to give the greatest possible weight to the importance of reducing risk to the public when a question arises as to whether a person’s rights under the ECHR have been breached in relation to a release decision. The Law Society’s written evidence states:
“It is not clear what the ‘greatest possible weight’ will mean in practice and will require interpretation by judges. We are concerned that this will lead to an increase in litigation challenging this new standard.”
Edward Argar
I am grateful to the shadow Minister for her words and for the approach she is taking. She knows that my right hon. and learned Friend the Lord Chancellor is, quite rightly, fiercely attached to and a strong defender of the rule of law. My right hon. and learned Friend always seeks to adopt a measured tone, and I am grateful to the hon. Lady for adopting a measured tone in return.
Question put and agreed to.
Clause 42 accordingly ordered to stand part of the Bill.
Clauses 43 to 45 ordered to stand part of the Bill.
Clause 46
Parole Board rules
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clause is the first of two covering the Parole Board, and it will enable two changes to be made to the Parole Board rules, which are in secondary legislation. Let me begin with subsection (2), which is concerned with amending the power in section 239(5) of the Criminal Justice Act 2003. The power allows the Secretary of State to make rules via secondary legislation about the Parole Board’s proceedings. At the moment, the provision permits rules to be made about how many members deal with particular cases, or that specified cases be dealt with at specified times. The Government want to specify that the rules may also cover which types of Parole Board member must sit on cases.
In “Root and Branch Review of the Parole System”, the Government committed themselves to increasing the number of Parole Board members from a law enforcement background. We will shortly consider clause 47, which will enable that to happen. The review also committed the Government to ensuring that every parole panel considering a case involving a top tier offender would have a law enforcement member.
The Government recognise that each and every type of Parole Board member brings different experience and skills. That range and diversity contribute to generally effective risk assessments and sound decision making. However, members with law enforcement experience, such as former police officers, have particular first-hand knowledge of the impact and seriousness of offending. In addition, they have the ability to interpret and analyse broad ranges of evidence, and many have direct experience of the probation system, including, for example, licence conditions and the likelihood of an offender’s compliance with such conditions.
Law enforcement members are, therefore, uniquely well-placed to inform and enrich the Parole Board’s assessment of risk in top tier cases. To fulfil the commitment made in the root and branch review to have law enforcement members on the parole panels for top tier prisoners, subsection (2) will enable the Secretary of State to make the secondary legislation needed to achieve that goal.
Let me turn to subsection (3), which will enable the Secretary of State to make rules relating to the new power in clauses 35 and 36 that will allow the Parole Board to refer top tier parole cases to the Secretary of State to determine, instead of taking the decision itself.
As I set out when we considered clauses 35 and 36, we anticipate that the Parole Board will refer cases to the Secretary of State only on very rare occasions. However, the power to make referrals is unfettered, so subsection (3) addresses that by giving the Secretary of State the power to make rules in secondary legislation that set out the parameters for the board making a referral. That could include, for example, a requirement that a certain stage in the proceedings must have been reached before a referral could be made. Setting that out in secondary legislation, rather than in primary legislation, allows for greater flexibility should the need arise at some future point to amend, remove or add to the steps needing to be taken before referring a case. I commend the clause to the Committee.
Ellie Reeves
It is important to note from the outset that police officers already serve on the Parole Board, alongside other members with expertise, including judges, psychologists, psychiatrists and others. They are an incredibly important part of the board’s membership. I would be interested to know from the Minister what evidence there is for this change and what he hopes to achieve by mandating that at least one member with law enforcement experience sits on top tier cases.
In the Justice Committee’s evidence session on part 3 of the Bill, solicitor Andrew Sperling said:
“I am not sure what the evidence of need is here. Is it being suggested that there is a deficiency in Parole Board decision making that will be corrected by importing more police officers?”
The mandating seems to be a backward step. The Ministry of Justice’s 2019 review of the Parole Board rules states:
“Restrictions on which panel members can hear particular types of case have gradually been lifted over…to allow greater flexibility and timeliness in listing the right cases for the right panel members and we do not wish to undo the improvements this has achieved.”
That point was echoed by Martin Jones, the Parole Board chief executive, in this Committee’s oral evidence sessions, when he said 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”.––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 54, Q106.]
The risk of undoing current practice was also outlined by Caroline Corby, the chair of the Parole Board, at the Justice Committee’s evidence session. She said that
“we deal with 2,000 top-tier cases a year. If we had to put a person with a law enforcement background on every single case, I think that could build delays into the system.”
The Prison Reform Trust also said it shared that view in its written evidence to this Committee.
In addition to delays, the other issue is experience. I know that the Minister agrees that complex parole cases demand particular care, and require the skills and experience of individual board members. If this clause is used to appoint new members with law enforcement backgrounds, we could have a situation where top tier cases are heard by newer members who, by definition, are inexperienced in making parole decisions. Ms Corby made that point in her evidence:
“It is not the way we currently do things—to put our newest members on our most serious cases. People tend to work their way into the cases”.
With all that in mind, I hope the Minister recognises the risk. I am interested to hear his response and how those unintended consequences will be mitigated.
Edward Argar
The hon. Lady alluded to the fact that people with law enforcement experience already sit as Parole Board members, so, on her last point, there is already a pool, which can be augmented and built up over time. That will allow those who are already experienced in Parole Board decision making to sit on some of the most serious cases. That therefore mitigates her concerns.
We are seeking to ensure that the views of those experienced in law enforcement are considered, and we will strengthen that further. That is not a factor that will determine the outcome, but we want to ensure that those voices are heard more consistently and that the process is more formalised than at present. We believe the clause strikes the appropriate balance in ensuring that the board has that perspective at its disposal in any particular case, as well as other relevant perspectives, to aid it in reaching the decision it chooses to reach.
Question put and agreed to.
Clause 46 accordingly ordered to stand part of the Bill.
Clause 47
Parole Board membership
Janet Daby (Lewisham East) (Lab)
I beg to move amendment 120, in clause 47, page 43, line 6, leave out from “office” to end of line 9 and insert
“only on grounds of proven misconduct or incapacity”.
This amendment would allow the Secretary of State to remove the Chair of the Parole Board only on the grounds of misconduct or incapacity.
I want to begin by providing some context about the justification for removing the Parole Board chair from office. The Parole Board is rightly independent from the Executive. That independence is well established in several court rulings and is crucial to how the board functions. There are elements of the Bill that would undermine that independence. The Minister will know that I am not alone in voicing those concerns, given that Members of his own party also did so on Second Reading.
The Minister has been open to hearing and taking on board the concerns of Members throughout our time in Committee, and I know that that has been much appreciated. Therefore, I hope that he will reflect on the concerns raised on protecting the independence of the Parole Board. A balance needs to be struck. Although Members on both sides of the Committee will recognise the need for the Secretary of State to have the power to remove the chair, what matters is how that is done. I do not wish to recount too much the circumstances of the removal of Nick Hardwick as chair of the Parole Board—Members will likely already be familiar with those—but it is important to recognise the challenge that placed on the independence of the Parole Board. The powers of the Executive must be appropriate. I consider the termination protocol devised after Nick Hardwick’s time as chair to have the better level of that appropriateness.
The current grounds on which the chair may be removed are set out in a clear way, and the criteria that must be satisfied are reasonable and measurable. There is a procedural fairness in how a recommendation for removal can be made. That is not to say that it is a perfect mechanism. It does not, for example, consider misconduct as a criterion for the chair’s removal, nor does it fully address the concerns raised by the High Court regarding recourse and appeal in the removal of the chair. Furthermore, it does not recognise the potential impact of removing the chair on the independence of the Parole Board. All these merit further consideration in determining how a removal mechanism should operate.
As it stands, I do not believe that the power being given to the Secretary of State to remove the chair addresses those points adequately. Its current wording is narrowly focused and too broadly interpreted. Maintaining the public’s confidence in the parole process is a perfectly reasonable aim, but it should not be the sole consideration in whether the chair is fit to perform the functions of the role.
If the clause ends up on the statute book, how will the Secretary of State measure public confidence? Will it be on the basis of a decision made on an individual case? Clause 47 goes on to say that the chair must not “play any part” or “influence the recommendations” in relation to an individual case. That would clearly make it unfair to dismiss the chair because of a decision taken on a single case.
The Parole Board’s job is to take decisions on complex and occasionally controversial cases. In a small number of examples, that may result in a certain level of unease, but unfettered ministerial power to remove the chair on fairly broadly interpreted grounds is not the proper way to resolve that unease.
Sarah Champion (Rotherham) (Lab)
I am very supportive of the argument that my hon. Friend is making, because there needs to be absolute confidence that the Parole Board is acting for the right reasons. Any indication of political influence would undermine public confidence in the system. That is why I support her amendment.
Janet Daby
I thank my hon. Friend for everything she just said, and I absolutely agree. Those are absolutely the points that I am making as well. I fear that the power is too subjective and, with respect to the Secretary of State, may be misapplied if not handled carefully. In evidence to this Committee, the chief executive officer of the Parole Board himself said that this risked the Parole Board’s independence, and the measure fails to note that the chair may need to be removed on grounds of proven misconduct or incapacity.
Although I do not intend to take amendment 120 to a vote, I hope that it will encourage the Minister to rethink how this clause is drafted, tighten up the removal mechanism, give greater consideration to protecting the Parole Board’s independence and privilege misconduct or incapacity as reasons for removing the chair.
Ellie Reeves
I welcome the comments of my hon. Friend the Member for Lewisham East. First, it is right that if someone is not up to the job as chair of the Parole Board, there should be a way of removing them—the public would not expect any less—but clause 47 goes a great deal further than that. Amendment 120 seeks to address that. In his evidence to the Committee, Martin Jones, the Parole Board chief executive, stated:
“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.”––[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 55, Q107.]
Caroline Corby, the chair of the Parole Board, stated at the Justice Committee’s evidence session:
“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.”
That is because parole decisions, by their very nature, are sensitive and controversial. Removing the chair because a decision in an individual case is unpopular would likely influence the panel’s decision making, thereby undermining the independence of the board in its judicial decisions. Given that, Ms Corby argued that
“the chair of the Parole Board needs more protection than pretty much any other chair of any arm’s length body.”
For those reasons, the Justice Committee concluded in its letter to the Justice Secretary that there should not be a statutory power to enable the Secretary of State to dismiss the chair of the board in the manner and terms proposed. I would be interested to hear what the Minister has to say about these points and what reassurances he can give me and my hon. Friend the Member for Lewisham East.
Edward Argar
I am grateful to the hon. Member for Lewisham East for her kind words, for the approach she has adopted throughout the passage of the Bill and for her amendment, which gives us an opportunity to debate this issue alongside clause 47. The Bill creates a new power for the Secretary of State to dismiss the Parole Board chair on the grounds of public confidence, and the amendment would change the grounds of that dismissal power to misconduct or incapacity.
There is already a process for terminating the appointment to the chair due to misconduct or incapacity. The agreed protocol allows an independent panel to make a recommendation to the Secretary of State on whether the chair should be dismissed on the grounds of absence, if they have been convicted of an offence or are an undischarged bankrupt, or if they are unfit or unsuitable to continue in their role. The protocol extends to all board members, not just the chair, and is an essential recourse, where necessary, for maintaining the high standards required of board members. The amendment would effectively replace an existing process, albeit only for the chair and without requiring the involvement of the panel.
The purpose of clause 47 is not to replace that important process but to create a new route for dismissal on grounds that are not already incorporated in the agreed protocol—namely, public confidence. The Parole Board is a high-profile public body that makes important decisions on public protection every day. I do not underestimate in any way the difficulty of its job, and in general—as we have alluded to in debates on previous groups—the board do it very well. However, it is right that the Secretary of State for Justice should have the levers to change the leadership of the board if a situation arose whereby public confidence in the overall work of the board had been irreversibly damaged, because public confidence goes beyond individual decisions.
The chair is responsible for ensuring that the board takes proper account of guidance provided by the responsible Minister or the Department, for ensuring that the board is well run and is delivering high standards of regularity and propriety, and for promoting public awareness of the work of the board. As there already exists a process for the chair of the Parole Board to be dismissed on the grounds of misconduct or incapacity, I am grateful to the hon. Member for Lewisham East for saying that she does not intend to press the amendment to a Division, but I understand the context in which she tabled it. Notwithstanding what I may say in a moment on clause 47, I am happy to have a further conversation with her outwith the Committee, if she thinks that would be helpful.
Janet Daby
Again, I thank the Minister for his very mature approach. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 47 amends schedule 19 to the Criminal Justice Act 2003, which governs the membership and operation of the Parole Board. The clause makes important changes to the Parole Board’s membership and leadership. Let me begin by confirming that subsection (10) means that any changes in respect of the chair of the Parole Board do not impact on the appointment or functions of the current chair, Caroline Corby. She has led the board well since her initial appointment in 2018, and the Ministry is grateful to her for her effective leadership in this high-profile and, at many times, challenging role. She will step down as chair in October next year, and it is at that point that the functions of the chair as set out in the clause will come into force.
I now turn to the specific provisions of the clause. Subsection (3) increases the statutory minimum number of Parole Board members from five to seven. In practice, the board, of course, has many more members than that, and its current membership stands at about 300. I take this opportunity to thank the board’s members more broadly for the difficult, but crucial work they do in keeping the public safe from harm.
The Government are increasing the minimum membership of the board for two reasons. First, to make the position of vice chair a statutory role, which is necessary because of the changes the clause makes to the chair’s functions. Secondly, as we touched on when considering clause 46, to require the board to include a law-enforcement member in its core membership. The requirement for a law-enforcement member is in clause 47(4), with a definition of the role in the proposed new section (2A) to be inserted into the Criminal Justice Act 2003 by clause 47(5).
The overall effect will be for the Parole Board to be made up of a minimum of seven members: a chair, a vice chair, a law-enforcement member and four other statutory members, one of whom must have judicial experience, one must have knowledge of probation, one must be an expert in prisoner rehabilitation and one must be a psychiatrist. Requiring the board to have access to that range of expertise as a minimum will ensure that risk is assessed as effectively as possible and that offenders are released only when it is safe to do so. The board will remain free to recruit members from other fields and to appoint independent members, as it deems appropriate.
Jess Phillips
With regard to risk and its assessment, I cannot help but notice, from my many years in the field, that one of the greatest risks on prisoner release is that to women and children, usually those related to the prisoner and/or those they resettle with. I wonder why there is no expertise specifically on understanding that sort of risk—specialist expertise in domestic or sexual violence.
Edward Argar
I set out key—for want of a better phrase—broad categories of skillsets in terms of judicial experience, probation and psychiatry, but I did say that the board remains free to recruit members from other fields and to appoint independent members it deems appropriate. In the context that the hon. Lady sets out, the board might well deem it entirely appropriate to appoint someone with that sort of expertise to sit on particular cases.
Sir Oliver Heald (North East Hertfordshire) (Con)
I just want to remark—I do not know if the Minister would want to—that the vice-chair of the Parole Board, Peter Rook, wrote a leading text on sentencing in sexual offences. He also did an inquiry into the prosecution of them, so he is very knowledgeable in that area.
Edward Argar
I am grateful to my right hon. and learned Friend for his intervention and, as ever, his knowledge. I am grateful that he offers it in his capacity as a Member of this House, rather than being on the clock as a very senior King’s counsel.
The clause also inserts proposed new sub-paragraphs (2B) to (2E) into schedule 19 to the Criminal Justice Act. Those provisions concern the chair and vice chair of the Parole Board. Proposed new sub-paragraph (2B) puts in statute for the first time the period of appointment for the leadership roles, and it aligns the period so that both appointments are for five years, with the possibility of reappointment for a further five years. Currently, the practice is that the chair’s appointment is for three years, and may be extended for the same period, whereas the vice chair’s appointment is for five years, with a five-year extension. The longer period for the vice chair reflects their additional role as an active panel chair and aligns with the usual tenure of appointment for other board members.
We want to align the chair’s period of appointment with that of other members, thereby offering additional protection to the post holder as well as reducing any risk to the smooth running of the board that might arise if its leader were to change relatively frequently. That said, there might be a rare occasion when requiring a change of chair before the end of their appointment period is the best or only option. For that reason, proposed new sub-paragraph (2C) gives the Secretary of State a power to remove the chair from office if it becomes necessary to do so for reasons of public confidence.
A mechanism already exists for the Secretary of State to ask an independent panel to consider dismissing the chair if there are concerns about the post holder’s performance or their ability to do the job effectively. That route remains our preferred approach in the unlikely event that a dismissal is required. This measure in the clause, which enables the Secretary of State to act independently and without referral to a panel, is a last-resort measure to be applied only in the event of a need for Government to act swiftly and decisively. It is not a power that any Secretary of State would ever use lightly, and ideally there will never be cause to use it at all.
Proposed new sub-paragraphs (2D) and (2E) of schedule 19 to the 2003 Act confirm that the chair and vice chair may not return to those posts once their period of appointment has ended except when they are re-appointed immediately after their initial tenure has ended. However, either postholder may be appointed to another role in the Parole Board.
Finally, I turn to clause 47(7), which sets out the functions of the Parole Board’s chair in statute for the first time. The overall intention is both to define the chair’s role as a strategic leadership role and to make it clear that the postholder does not play any part in the board’s decision making when it comes to considering individual parole cases. Proposed new sub-paragraphs (2A)(1)(a) to (g) of schedule 19 provide a non-exhaustive list of functions to be carried out by the chair. Proposed new sub-paragraphs (2A)(2) and (3) prevent the chair from involvement in individual cases. Although it is for the board to decide who will take on any functions currently carried out by the chair that are related to individual cases, we anticipate they will pass to the vice chair or another member of the board.
Ellie Reeves
I associate myself with the Minister’s comments about Caroline Corby and her dedicated leadership of the Parole Board, and I thank her and all the other members of the Parole Board for their important work.
Most of what the Minister has set out is broadly sensible. I have already set out my concerns when speaking to amendment 120, but I want to briefly add that clause 47 also prohibits the chair of the Parole Board from being involved in individual parole cases. That seems to unnecessarily hinder the chair in their role. In evidence to the Justice Committee, Professor Shute said:
“it is…hard to lead the board unless you have experience of sitting on panels…I think it is helpful, if you are going to lead the board, to have first-hand experience of sitting on panels, but this provision is going to prohibit a chair from doing so.”
It its letter to the Justice Secretary, the Justice Committee concluded that
“prohibiting the Chair from sitting on cases would potentially undermine their leadership of the Board, and make the role less attractive to suitable candidates in the future.”Clause 47 seems broadly sensible, but I urge the Minister to consider and reflect on those points.
Edward Argar
I am grateful to the hon. Lady, to whom I listened carefully. I will always reflect.
Question put and agreed to.
Clause 47 accordingly ordered to stand part of the Bill.
Clause 48
Whole life prisoners prohibited from forming a marriage
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clauses will prohibit prisoners who are subject to whole life orders from being able to marry or enter a civil partnership while in prison. Whole life orders are the most severe punishment in the criminal law of England and Wales and are reserved for offenders who have committed the most heinous crimes. Those offenders are the most dangerous and cruel criminals in our prisons—often serial or child murderers who have robbed others of their chance at happiness and a family life and can expect to spend the rest of their life behind bars. As the law stands, prison governors cannot reject a prisoner’s application to marry, however horrific the prisoner’s crime, unless it creates a security risk for the prison. Allowing the most dangerous criminals to marry in custody rubs salt into the wounds of victims and their families and damages public confidence in our justice system.
Clause 48 will prohibit prisoners in England and Wales who are subject to a whole life order from marrying while in prison or another place of detention. The Secretary of State may grant an exemption in truly exceptional circumstances. We believe that that is a common-sense move that will help to restore faith in the justice system by ensuring that we can deal appropriately with the most serious offenders in our prisons.
Clause 49 will prohibit prisoners in England and Wales who are subject to a whole life order from forming a civil partnership while in prison or another place of detention. As with Clause 48, which makes provision for an equivalent prohibition for marriage, the Secretary of State may grant an exemption in truly exceptional circumstances.
Clause 50 is a technical clause, which will allow the Secretary of State to make any further minor and consequential legislative changes needed to implement the prisoner marriage and civil partnership clauses. We have made extensive efforts to identify where such changes are needed, but marriage law is complex and historical references in the statute book may only become apparent at a future time. Use of this power will be limited to what is necessary to implement clauses 48 and 49.
Ellie Reeves
I rise to support clauses 48, 49 and 50. At present, 66 prisoners are serving whole-life sentences in England and Wales. Those sentences reflect some of the most despicable crimes imaginable—ones so serious that the prisoner will never be released from prison. For families trying to rebuild their lives after the devastation of a crime caused by that group of offenders, hearing news that they have been able to conduct a relationship in prison is unimaginable.
There is also often a safeguarding issue. Given the history of the prisoner, it is right that their motivation in pursuing a marriage is examined, as we know that such people often have great capacity for coercion and exploitation. I note the recent case of serial killer Levi Bellfield, who is serving a whole-life sentence for the murders of Marsha McDonnell, Amelie Delagrange and Millie Dowler, as well as the attempted murder of Kate Sheedy. He also had a long history of domestic violence and remains a suspect in other crimes. News that he has met someone, and has been able to marry her behind bars, has rightly been met with public outrage.
I can only imagine how the news has impacted Bellfield’s victims and their families, and it is concerning that he was introduced to his now wife by a fellow serial killer and was able to propose marriage in the prison visitors’ centre. Under current legislation there are no sufficient powers to prevent that from happening. I therefore welcome these clauses, which will put appropriate legislation in place to ensure that something like it does not happen again.
Sarah Champion
It is a pleasure to serve under your wise counsel, Mrs Murray. I am standing against clauses 48, 49 and 50, and against my Front-Bench team in doing so. I do not think that they should be in the Bill, and I would like to explain why.
First, fundamentally, everything I have done in this place is to support victims and survivors and their rights. At my very core, human rights and equality is what motivates me and gets me out of bed every day. It is because of that that I am challenged by these three clauses. Sometimes, we see legislation coming through that is, to quote the Minister, “common-sense legislation”, but it is brought forward for an emotional—or indeed a headline—reason. That does not make it good legislation, and I am concerned that that could be happening in this case.
I also seek to understand how the Government maintain that these measures are compliant with their obligations under the European convention on human rights. For me, the Secretary of State is coming over as God-like, to put it simply. I do not think that we have the right to take away someone’s right to get married or to have a civil partnership, and I question what the benefits of that will be.
I want to believe that there is a restorative purpose for people going to prison. I want to know that by maintaining one relationship, they are able to change and improve. The fact that someone may be seeking marriage gives me hope that there is potential within some of the most wicked and deplorable people whom I have ever had the misfortune to come across. There is hope that they might be able to maintain a meaningful relationship.
Jess Phillips
I truly appreciate my hon. Friend’s fundamental point: everybody hopes for rehabilitation. With this, the only case we have to debate is that of Levi Bellfield, as mentioned. Having worked with some of his direct victims and the families of those victims, while I do not disagree that we sometimes chase headlines and make bad legislation in doing so, with his case I am not sure, from previous behaviour, that I would categorise it as rehabilitation. I would categorise it as behaviour to get headlines. The desire in Levi Bellfield’s case, as has been put to me by many of his victims, is that these schemes keep him constantly in the media, and that is incredibly painful for them. There is a bit from both sides of the argument in this debate: trying to stop the headlines and allowing rehabilitation.
Sarah Champion
My hon. Friend makes a strong argument that I agree with on many levels. It also confirms my suspicion that the provisions could be around an individual, and responding to the horror of that individual. Therefore, I want the Minister to explain to me all the consideration of unintended consequences on this. There are two subsections that allow a prisoner to get married if they have written permission from the Secretary of State. There are also conditions as to why the Secretary of State may be unable to give that permission. Can the Minister tell us again what the exceptions for giving permission, or being unable to give permission, are? Those are not clear in the Bill or in what he has said in Committee.
The Prison Reform Trust was deeply concerned in its written evidence, stating:
“The introduction of specific carve-outs from human rights for people given custodial sentences contradicts one of the fundamental principles underlying human rights—their universality and application to each and every person on the simple basis of their being human.”
Despite the actions of certain offenders, we should not prevent people from having their human rights.
The Prisoners’ Advice Service also stated in its written evidence that the practice will have very little impact:
“A whole life tariffed prisoner will die in prison, and the nature of their crimes renders them unlikely to ‘progress’ to open conditions or to access resettlement facilities such as unescorted release on temporary licence from prison into the community. Thus any marriages or civil partnerships contracted by such prisoners, before or after their conviction leading to the whole life tariff, will in practice have little or no impact on the conditions of imprisonment—and would have no significant impact on victims or their families. It is a point of principle only, ostensibly to show the public that the Executive is not ‘soft’ on those who commit the worst crimes. Behind this flashy headline, is another attempt by the Executive to remove a basic human right from a group of people who are unpopular with sections of the population and the press, for political advantage.”
Given the arguments that those organisations have put forward, I do not think the Minister has made a clear enough argument for why the provisions need to be in the Bill. I ask the Minister to explain the logic, the exceptions and whether the provisions apply retrospectively to people already married. Fundamentally, people have a right to practice their religion, and marriage is part of their religion. I am very concerned that the Minister is looking to take that right away.
Edward Argar
I am grateful to the shadow Minister and the hon. Member for Rotherham for their comments.
On chasing flashy headlines, I have to confess that in my eight and a half years in this place, five of them as a Minister, I have sought to do everything I possibly can to avoid them—I was not overjoyed, then, that I found myself appointed as a Health Minister three months before a pandemic—but the hon. Member for Rotherham raises important points. I do not think anyone could ever question or call into doubt the decency, sincerity and integrity with which she makes points in this Committee and more broadly throughout the House in championing the causes that she does.
On the question of whether the measures make law based on an individual case, I do not think that is the case. On occasion, an individual case may shine a light on something, which then reflects a broader concern or issue. We in this House should always seek to legislate for the general, rather than for the specific individual, and I think we are doing that in this case. It just so happens that an individual case has thrown a light on the matter.
I do not always disagree with the hon. Lady—I possibly agree with her rather more often than not—but I do disagree with her on this issue. I find it challenging to accept that those whose actions have robbed others of any opportunity of happiness believe that they should be able to pursue it irrespective of what they have done in the past. To address a point that the hon. Lady raised, my understanding is that the change is not retrospective. I take her point that tough cases can make bad law, if we look at them individually, which is why we are looking at the matter more broadly.
The shadow Home Office Minister, the hon. Member for Birmingham, Yardley, spoke about individual cases and alluded to something that I want to develop a little more. Although I take at face value what the hon. Member for Rotherham said about redemption and people wishing to reform, I do not underestimate the cynicism of some of these offenders, their manipulative and exploitative behaviour or the potential that, in pursuing marriage, they seek to exploit an opportunity that, in effect, could create another victim further down the line. I believe that the Bill strikes a proportionate balance.
The hon. Member for Rotherham asked about possible exemptions—I think I saw the shadow Minister mouthing it and she was absolutely right—and those would be, for example, deathbed marriages if someone has a long-term partner but they are not married, in the case of a terminal illness or similar, at the end of life. It would, though, be exceptionally rare in those circumstances.
Sarah Champion
Why is it all right for someone who is dying but not for someone who is not? I do not understand that distinction, and I am a woman who used to run a hospice.
Edward Argar
The point is that the only circumstance in which I could envisage the provision being used is where the long-term partner is also a whole-life prisoner and both are in prison at the end of life. Even then, I am not necessarily anticipating that the Secretary of State would give permission, but the hon. Lady asked for a hypothetical example of how it might work, given the concerns expressed by the shadow Home Office Minister, by myself and by others. That is an illustrative example for her. She knows that I have huge respect for her and her integrity and sincerity, but we approach this issue from slightly different perspectives. I am afraid that on this occasion I must resist her entreaties to either withdraw or change the clause, but I am grateful to her for airing her views.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clauses 49 and 50 ordered to stand part of the Bill.
Clause 51
Financial provision
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clauses are in part 4, which contains the Bill’s general provisions, and set out the regulations that may be made under the legislation, the territorial extent of its measures, and its commencement and short title.
Clause 51 creates a money resolution for the Bill to allow for new public expenditure incurred by the measures in it. We have published impact assessments that set out the financial implications of each part of the Bill. For part 1, on victims of crime, the additional costs incurred are attributable to the new and expanded functions placed on public authorities—such as code compliance functions for police and crime commissioners—and on local authorities, integrated care boards and PCCs in England to carry out their responsibilities under the duty to collaborate. Further costs may be incurred for criminal justice inspectorates to allow them to carry out joint thematic needs assessments.
Anna McMorrin (Cardiff North) (Lab)
I rise to offer a reflection on the clauses from the Opposition Front-Bench team. Given that victims services and stakeholders throughout the country are crying out for more support, it is a shame that more provision is not distributed in part 1 of the Bill, with the Ministry of Justice absorbing the costs. The only costs associated with the Bill relate to parts 2 and 3. This is supposed to be purely a victims Bill, which we have been waiting years and years for. I thank the Minister for outlining the rest of the detail in the clauses.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clauses 52 to 55 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Fay Jones.)
Digital Markets, Competition and Consumers Bill (Fourteenth sitting)
Tuesday 11th July 2023
(10 months 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 11 July 2023 - (11 Jul 2023)
The Chair
Before we begin, I have a few reminders. Clearly, given the heat, please feel free to remove jackets. Please switch electronic devices to silent. No food or drink is permitted during the sitting, except for water. Any notes can be passed to Hansard colleagues.
Clause 283
Meaning of “ADR” and related terms
The Parliamentary Under-Secretary of State for Business and Trade (Kevin Hollinrake)
I beg to move amendment 83, in clause 283, page 189, line 5, leave out subsection (9) and insert—
“(9) For the meaning of “exempt ADR provider” and “exempt redress scheme” see section 287.”
The amendment provides a signpost for the reader to clause 287, which identifies who are exempt ADR providers for the purposes of Chapter 4.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Government amendments 84 to 89.
Clauses 284 and 285 stand part.
Government amendments 90 and 91.
Clause 286 stand part.
Kevin Hollinrake
It is a pleasure to serve under your chairmanship on hopefully the last day of this Bill Committee, Dame Maria. Chapter 4 of part 4 of the Bill aims to strengthen the quality of alternative dispute resolution available to consumers. The chapter replaces EU-derived regulations on ADR with a stronger regime that requires ADR providers to be accredited. Clause 283 defines ADR, which includes mediation, arbitration, early neutral evaluation and action under an ombudsman scheme, and who is an ADR provider. It applies only where ADR is provided in the context of a consumer contract dispute.
Government amendment 83 makes a consequential change to clause 283 in connection with amendments to clause 287. Clause 284 defines consumer contracts and consumer contract disputes. Consumer contracts include suppliers of electricity, gas, water and heat. Government amendments 84 to 88 add references to Scottish and Northern Irish legislation in relation to the supply of those utilities, which were omitted on introduction. Government amendment 89 removes a superfluous definition. Clause 285 prohibits ADR providers from carrying out ADR unless they are accredited or acting for someone who is. That is subject to the exemptions provided in clause 287. It also prohibits ADR providers arranging for third parties to carry out ADR on their behalf unless their accreditation or exemption permits that.
Clause 286 restricts the fees that accredited ADR providers may charge consumers to fees approved by the Secretary of State and those that are published. That will prevent excessive fees and ensure transparency in fee charging. Government amendments 90 and 91 clarify that the limited conditions under which fees may be charged apply only to accredited ADR providers. I commend the clauses to the Committee.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
It is a pleasure to serve under your chairship, Dame Maria. I thank the Minister for his opening remarks. This is an important part of the Bill. Clause 283 defines ADR and related terms for the purposes of the chapter. Part 4 makes accreditation of ADR providers compulsory unless an exception applies. It includes examples of ADR, such as mediation, arbitration, early neutral evaluation and action under an ombudsman scheme. In her evidence, Tracey Reilly from Consumer Scotland welcomed measures in the Bill as making it
“easier for consumers to seek redress through ADR systems that are appropriately regulated and standardised.”––[Official Report, Digital Markets, Competition and Consumers Public Bill Committee, 13 June 2023; c. 36, Q49.]
We welcome the straightforward definitions, as well as the broader chapter, which will hopefully increase trust in and use of ADR services in disputes between businesses and consumers. The Government’s policy paper on ADR released in April highlights that
“46% of consumers using alternative dispute resolution had problems including concerns over the time the process took, customer service or a perception that the process favoured the business. 54% of cases took longer to resolve than the 3 months allowed—16% of consumers who went to court did so because the business refused to comply with a previous alternative dispute resolution decision.”
That demonstrates the scale of the challenge that we face in reforming ADR provisions so that they work for consumers. We welcome this chapter as a first step in seeking to meet that challenge.
As Graham Wynn, of the British Retail Consortium, noted in his evidence,
“the accreditation system and making sure that companies abide by what they are supposed to do in ADR is vital to have confidence in general.”––[Official Report, Digital Markets, Competition and Consumers Public Bill Committee, 13 June 2023; c. 51, Q84.]
Not having a full assessment of ADR providers has been an issue with the current arrangements.
Amendment 83 provides a signpost to clause 287, which identifies who are the exempt ADR providers for the purposes of chapter 4. We recognise that this amendment provides greater clarity in the legislation.
Clause 284 defines other terms for the purposes of this chapter, and they include “Consumer contract” and “Consumer contract dispute”. We welcome these definitions, and we support amendments 84 to 89.
Clause 285 introduces provisions prohibiting a person from carrying out alternative dispute resolution in relation to a consumer contract dispute unless they are accredited or exempt, or acting under “special ADR arrangements”. The explanatory notes state:
“Special ADR arrangements are designed to cover ADR schemes under which the ADR is provided through persons who might, for instance, be styled as ‘case handlers’, ‘adjudicators’ or ‘ombudsmen’”—or women—
“who are employed, or engaged by, or on behalf of, an ADR provider running the scheme. In that case, the person providing the ADR would not need accreditation, so long as the ADR provider running the scheme is accredited or exempt and is permitted to make special ADR arrangements.”
We will need to ensure that there is clarity in distinction and that there is cover in terms of regulatory cover and also expectations of quality, and we recognise that this clarity about special ADR arrangements will be important for that purpose. This is a welcome clause, ensuring that ADR providers are accredited and not liable to act against the interest of a consumer seeking redress. With regard to the exemptions, I will make a few remarks on clause 287.
Clause 286 limits the fees that accredited ADR providers may charge consumers to those charged in accordance with provisions approved by the Secretary of State, and published in a way likely to come to the attention of consumers. Although the Opposition welcome the provisions limiting the fees that consumers can be charged, I would welcome the Minister expanding on this clause slightly. I would, for example, welcome further explanation of the process by which the fees will be approved by the Secretary of State, and their transparency. It is important that there is predictability, fairness, consistency and transparency for consumers when it comes to any fees around ADR, so it will be important to have clarity from the Minister in this regard.
Finally, we support amendments 90 and 91.
Kevin Hollinrake
Clearly, the Bill sets out the fact that ADR providers are restricted in what they can charge for. It is therefore very much the assumption that the fees that they charge will be fair and transparent; that is the basis of this. I am not sure what clarification the hon. Lady might be seeking other than on those particular points.
Seema Malhotra
This is more about ensuring that there is a fair process and that it is clear, so that we do not have a situation in which consumers are being charged more than they ought to be because there has not been clarity about the Government expectations as to how those fees will be set. I was just seeking clarity on that.
Kevin Hollinrake
I do not have anything further to add. Perhaps we can have a discussion about this offline.
Amendment 83 agreed to.
Clause 283, as amended, ordered to stand part of the Bill.
Clause 284
Other definitions
Amendments made: 84, in clause 284, page 189, line 34, leave out “(the gas code)” and insert “, or by section 12(1) or (2) of the Energy Act (Northern Ireland) 2011 (2011 c. 6),”.
The provisions of the Gas Act 1986 referred to in clause 284(3)(b) do not extend to Northern Ireland. This amendment would add a reference to the corresponding legislation in Northern Ireland.
Amendment 85, in clause 284, page 189, line 39, leave out “(the electricity code”) and insert “or by paragraph 3(1) or (2) of Schedule 6 to the Electricity (Northern Ireland) Order 1992 (S.I.1992/231 (N.I.1))”.
The provisions of the Electricity Act 1989 referred to in clause 284(3)(d) do not extend to Northern Ireland. This amendment would add a reference to the corresponding legislation in Northern Ireland.
Amendment 86, in clause 284, page 190, line 4, at end insert “or Part 2 of the Electricity (Northern Ireland) Order 1992”.
Part 1 of the Electricity Act 1989 does not extend to Northern Ireland. This amendment would add a reference to the corresponding legislation in Northern Ireland.
Amendment 87, in clause 284, page 190, line 6, at end insert “or Part 2 of the Gas (Northern Ireland) Order 1996 (S.I.1996/275 (N.I.2))”.
Part 1 of the Gas Act 1986 does not extend to Northern Ireland. This amendment would add a reference to the corresponding legislation in Northern Ireland.
Amendment 88, in clause 284, page 190, line 8, at end insert—
“(b) a person supplying water under a water services licence within the meaning of the Water Services etc. (Scotland) Act 2005 (asp 3), or
(c) a water undertaker within the meaning of the Water and Sewerage Services (Northern Ireland) Order 2006 (S.I.2006/3336 (N.I.21)).”
The definition of “water supplier” in Part 1 of the Water Industry Act 1991 only extends to England and Wales. This amendment would add references to the corresponding suppliers in Scotland and Northern Ireland. In the current text of the definition, the words after “means” will become paragraph (a).
Amendment 89, in clause 284, page 191, leave out line 4.—(Kevin Hollinrake.)
The amendment deletes an unnecessary word: the term “business” does not need to be defined as it is not used in Chapter 4 of Part 4 of the Bill.
Clause 284, as amended, ordered to stand part of the Bill.
Clause 285 ordered to stand part of the Bill.
Clause 286
Prohibitions relating to acting as ADR provider
Amendments made: 90, in clause 286, page 191, line 39, after “the” insert “accredited”.
This is a drafting amendment to clarify which ADR provider is referred to in clause 286(2)(a).
Amendment 91, in clause 286, page 192, line 4, after “the” insert “accredited”.—(Kevin Hollinrake.)
This is a drafting amendment to clarify which ADR provider is referred to in clause 286(2)(c).
Clause 286, as amended, ordered to stand part of the Bill.
Clause 287
Exempt ADR providers
Kevin Hollinrake
I beg to move amendment 92, in clause 287, page 192, line 11, leave out subsection (1) and insert—
“(1) In this Chapter—
“exempt ADR provider” means a person who—
(a) is listed (or of a description of persons listed) in Part 1 of Schedule 22, or
(b) is (when carrying out ADR or making special ADR arrangements) acting under or for the purposes of an exempt redress scheme;
“exempt redress scheme” means a scheme or other similar arrangement which is listed (or of a description listed) in Part 1A of Schedule 22.”
The amendment reflects the approach proposed by the government amendments to Schedule 22 to have two lists: Part 1 will list particular authorities (or descriptions of authorities) who are (if and to the extent they carry out ADR or make special ADR arrangements) exempt ADR providers. Part 1A will list “exempt redress schemes”. A person who carries out ADR or makes ADR arrangements under or for the purposes of an exempt redress scheme will be an exempt ADR provider.
The Chair
With this it will be convenient to discuss the following:
Government amendments 93 to 96.
Clause stand part.
Government amendments 108 to 111.
That schedule 22 be the Twenty-second schedule to the Bill.
Kevin Hollinrake
Clause 287 and schedule 22 exempt various bodies that, so far as they provide ADR, it is not considered appropriate to regulate, and also exempt ADR under statutory redress schemes regulated by other legislation. Clause 287 allows the exemptions to be reviewed and updated.
Government amendments 92 to 96 amend clause 287, and Government amendments 108 to 111 amend schedule 22. They distinguish more clearly between the two categories of exemption. They also add exemptions for the local government and social care ombudsman, the Independent Adjudicator for Higher Education, the Parliamentary Commissioner for Administration and redress schemes for social housing, lettings agencies and property management.
Seema Malhotra
Clause 287 introduces schedule 22 into the Bill, which sets out the persons exempt from ADR provisions. I will also make a few remarks on schedule 22. Clause 287 also introduces a provision for the Secretary of State to add or remove from the list of exemptions. I want to clarify with the Minister why this delegated power has been left to the negative procedure. There may be a good reason for that decision, but it would be helpful to understand that.
We support amendments 92 to 96; the Minister has spoken to them. Schedule 22 sets out the list of ADR providers exempt from the regulations. As the explanatory notes explain and the Minister said:
“These include persons or bodies providing, or administering, dispute resolution services which are regulated under other legislation, who are exempted in order to avoid duplication or conflict between statutory regimes”.
That is important because obviously we do not want to have over-regulation or confusion between different parts of statute.
I ask the Minister for assurances that consumers using exempt providers will be able to expect the same level of protection from those that are non-exempt ADR providers. We do not have time in Committee to go through all the comparable regulations that exempt providers will be subject to, but from a consumer perspective the expectation should be that the protections, in terms of expectations of service and the regulations, will be comparable. I would be grateful for the Minister’s confirmation of that, and an assurance that the analysis has been done, because legislation is passed at different times and we want to be sure of that consistency.
Amendment 108 alters the list of persons in part 1 of schedule 22. There are other changes within amendments 108 to 111. We have no issue with any of those amendments, and we support them.
Kevin Hollinrake
On the use of the negative procedure, we feel that these are technical and mechanical changes, just to ensure that the statute remains up to date and clear, and to prevent excessive use of parliamentary time. Clearly, ADR providers are regulated by other means. We see no duplication in their regulation. The Financial Ombudsman Service, for example, is already regulated and overseen by the Financial Conduct Authority. We think that it would be needless to duplicate that kind of oversight.
Amendment 92 agreed to.
Amendments made: 93, in clause 287, page 192, line 19, leave out subsection (3) and insert—
“(3) Regulations under subsection (2) may, in particular—
(a) provide for an entry in Part 1 of Schedule 22 to apply to a specified person or to any person of a specified description;
(b) provide for an entry in Part 1A of that Schedule to apply to a specified scheme or any scheme of a specified description;
(c) limit the scope of the exemption given to a person by virtue of an entry in Part 1 or IA of that Schedule, whether in relation to carrying out ADR or making special ADR arrangements (or both).”
This amendment clarifies the scope of the power to make regulations under clause 287(2). The effect of the exemption given to a person by an entry in Part 1 or 1A of Schedule may be limited, for example by reference to the purposes for which an otherwise prohibited activity is carried out or to the kinds of otherwise prohibited activity that are (or are not) exempt.
Amendment 94, in clause 287, page 192, line 34, leave out subsection (5) and insert—
“(5) Subject to any limitation on its scope provided for by Schedule 22—
(a) an exemption given to a person by virtue of an entry in Part 1 of that Schedule covers anything done by the person in the exercise of the person’s functions that would otherwise be prohibited, and
(b) an exemption given to a person by virtue of an entry in Part 1A of that Schedule covers anything done under or for the purposes of an exempted redress scheme that would otherwise be prohibited.”
The amendment clarifies the general scope of an exemption that will apply by default, unless there is provision in the Schedule for it to be more limited.
Amendment 95, in clause 287, page 192, line 37, after “section” insert
“—
‘prohibited’ means prohibited by section 285(1) or (2);”.
The amendment defines “prohibited” for the purposes of the clause by reference to clause 285.
Amendment 96, in clause 287, page 193, line 1, leave out subsection (8).—(Kevin Hollinrake.)
The amendment omits a subsection that is no longer needed as a result of the other government amendments to clause 287 and Schedule 22.
Clause 287, as amended, ordered to stand part of the Bill.
Seema Malhotra
On a point of order, Dame Maria. I would be grateful for your guidance. The Minister made some remarks in response to my questions and I did not get the chance to intervene on him. I know that we have moved on, so is it best that I write to him on the questions that he did not answer on comparable regulation?
The Chair
I think that it would be easier for the Committee were you to deal with those things outside of the Committee now that we have moved on, but obviously if pertinent issues are raised by further parts of the Bill, you might be able to cover some of those issues then.
Schedule 22
Exempt ADR Providers
Amendments made: 108, in schedule 22, page 356, leave out from beginning of line 31 to end of line 11 on page 357 and insert—
“List of exempt persons
The Commission for Local Administration in England (also known as the Local Government and Social Care Ombudsman) and each Local Commissioner within the meaning of section 23(3) of the Local Government Act 1974
The Consumer Council for Water
The Health Service Commissioner for England
The Legal Ombudsman
The Northern Ireland Public Services Ombudsman
The Office of the Independent Adjudicator for Higher Education (registered company number 04823842) in relation to its functions as the designated operator under section 13 of the Higher Education Act 2004
The Parliamentary Commissioner for Administration
The Pensions Ombudsman”.
This amendment alters the list of persons in Part 1 of Schedule 22. The listed persons will, subject to any limitation on their exemption provided for in the Schedule, be exempt from the prohibitions in clause 285. The first, sixth and seventh entries are new. Other entries currently in Part 1 are omitted because they are superseded by entries in Part 1A of Schedule 22 as proposed by Amendment 109.
Amendment 109, in schedule 22, page 357, line 15, at end insert—
“Part 1A
Exempt redress schemes
An approved estate agents redress scheme
An approved postal operators redress scheme
An approved social housing ombudsman scheme
Approved public communications provider dispute procedures
The Financial Ombudsman Scheme
A qualifying lettings agency work redress scheme
A qualifying property management work redress scheme
A qualifying redress scheme for the gas or electricity sector”.
The amendment inserts a Part 1A in Schedule 22 listing schemes or similar arrangements that are to be “exempt redress schemes” for the purposes of Chapter 4 of Part 4 (ADR).
Amendment 110, in schedule 22, page 357, line 18, leave out “Part 1” and insert “this Schedule”.
This amendment is consequential on the insertion of Part 1A of Schedule 22 proposed by Amendment 109.
Amendment 111, in schedule 22, page 357, line 28, at end insert—
“‘approved social housing ombudsman scheme’ means a scheme which is approved for the purposed of Schedule 2 to the Housing Act 1996;
‘qualifying lettings agency work redress scheme’ means a redress scheme which is approved as mentioned in section 83(1)(a), or is a government scheme for the purposes of section 83(1)(b), of the Enterprise and Regulatory Reform Act 2013;
‘qualifying property management work redress scheme’ means a redress scheme which is approved as mentioned in section 84(1)(a), or is a government administered redress scheme for the purposes of section 84(1)(b), of the Enterprise and Regulatory Reform Act 2013;”.—(Kevin Hollinrake.)
The amendment defines three expressions used in entries in Part 1A as proposed to be inserted by Amendment 109.
Schedule 22, as amended, agreed to.
Clause 288
Applications for accreditation etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
Government amendments 97 to 100.
Clauses 289 and 290 stand part.
Government amendment 101.
Clauses 291 and 292 stand part.
That schedule 23 be the Twenty-third schedule to the Bill.
Clause 293 stand part.
Government amendments 102 to 105.
Clause 294 stand part.
Government amendment 106.
Clause 295 stand part.
Government amendment 107.
Clause 296 to 300 stand part.
Government amendment 112.
That schedule 24 be the Twenty-fourth schedule to the Bill.
Clause 301 stand part.
Kevin Hollinrake
Clauses 288 to 292 and schedule 23 cover the accreditation process for ADR providers, which ensures that standards are high and providers perform well. Clause 288 covers the application process and application requirements, including fees, must be published.
Clause 289 covers the outcome of those applications. Applicants will be accredited only if they satisfy the accreditation criteria, which I will explain in the context of clause 292. The Secretary of State can reject, limit or impose conditions on an accreditation, and the applicant must be told why.
Government amendments 97, 98 and 99 clarify that, in extending a limited accreditation at a later date, the Secretary of State can impose new conditions or alter existing ones. Government amendment 100 provides that conditions can be imposed to make an ADR provider responsible for the acts of a third party carrying out ADR on its behalf.
Clause 290 sets out how non-compliant ADR providers can be suspended, or their accreditation limited or revoked. It contains safeguards, including the right for ADR providers to make representations before these sanctions are imposed. Clause 291 allows the Secretary of State to charge accredited ADR providers for the cost of their ongoing accreditation.
Government amendment 101 corrects a drafting error regarding those fee provisions. Clause 292 and schedule 23 specify the accreditation criteria. These encompass standards relating to accessibility, expertise, fairness, independence, impartiality and transparency. Clause 292 allows the criteria to be kept under review and, if necessary, modified.
Clause 293 empowers the Secretary of State to issue enforcement notices to ADR providers who operate without accreditation or violate key obligations. Non-compliance with that notice can be enforced as if it were a court order. The clause contains safeguards, including giving the ADR provider an opportunity to make representations before an enforcement notice is issued.
Clause 294 allows the Secretary of State to make regulations requiring ADR providers and others to provide information about ADR to the Secretary of State or publish it for consumer awareness. The clause limits the purposes for which the Secretary of State can require provision of information. Government amendments 102 to 105 ensure that those limits will apply if the Secretary of State’s functions are conferred on another person under clause 298.
Clause 295 allows the Secretary of State to direct ADR providers and regulators to provide information. This allows the provision of specific information from a person when circumstances require it.
Government amendment 106 removes a definition of data protection legislation that is not needed as it is defined elsewhere. Clause 296 allows the Secretary of State to publish or disclose information they hold in relation to this chapter, subject to data protection.
Government amendment 107 is a drafting improvement to recognise that clause 296 contains several disclosure powers. Clause 297 defines terms used in clauses 294 to 296.
Clause 298 allows regulations to confer functions on persons other than the Secretary of State. This might, for instance, be used to confer accreditation functions on a regulator within the sphere of its regulatory activities.
Clause 299 requires traders, when responding to a consumer contract complaint, to inform consumers about any ADR or dispute resolution arrangements in which that trader is required to participate. Clause 300 and schedule 24 revoke the EU-derived ADR regulations of 2015 and amend other legislation.
Government amendment 112 is a drafting amendment to ensure there is an accurate description of the content of paragraph 11 of schedule 5 to the Consumer Rights Act 2015. Clause 301 makes transitional arrangements, including to ensure that chapter 4 does not apply to ADR already in progress when it comes into force.
I hope that hon. Members will support Government amendments 97 to 107 and Government amendment 112. I commend the clauses and schedules to the Committee.
Seema Malhotra
As the Minister outlines, clause 288 sets out how persons or companies wishing to become accredited as ADR providers should apply for accreditation under chapter 4. Specifically, the clause sets out how a person wishing to be accredited must apply to the Secretary of State.
I want to raise a concern with the Minister about some of the details that are lacking in the Bill and, from what I could see, the Bill’s supporting documentation; he may want to direct me to other documentation that we have missed. My question concerns subsection (4), which states:
“The Secretary of State may determine the procedure to be followed in relation to an application for accreditation.”
Subsection (5) then lists some criteria, but the procedure is still very open. If a consumer wants to know how people or organisations are accredited, the Bill does not provide clarity. That gives rise to concerns about what scrutiny will be possible if the procedure is not, for example, set out in detailed regulations. I would therefore be grateful if the Minister could explain what further detail there is.
The providers will have quite a significant role in dealing with disputes. As I have said previously, we have heard about the Government’s research into consumers’ experiences, and the quality of ADR providers will be in part determined by the quality of the process by which they are accredited. That is why this issue is important. I would be grateful for the Minister’s response, because a lot could be left to the Secretary of State’s discretion. The Minister might become the Secretary of State—we do not know, although obviously that would be a great thing for the Minister—but we have to make legislation that is future proof for future regimes, so that people can have confidence in it.
If further detail on the procedure is to be published, when might that happen? Will it be after the Bill has attained Royal Assent, which, according to the impact assessment, may not happen until 2025? If further guidance is needed on what people need to do to be accredited, that will cause further delays. Are we potentially talking about 2026 before ADR providers are in place? That feels like quite a long way away.
The ADR provisions are important for increasing consumer protection, and we welcome them. However, this key part of how we ensure the quality of that provision, which would deal with the issues of confidence I referred to in my previous remarks, should be more clearly addressed. If necessary, more detail should be in the Bill itself.
Clause 289 deals with how the Secretary of State would determine applications for accreditation or for the extension of an accreditation, but does not provide us with detail about how those decisions will be made. That relates to the same points I raised in relation to clause 288, and the Minister may therefore want to address it directly.
Amendment 97 makes it clear that new accreditation conditions imposed when extending an accreditation are not limited to any particular part of the extended accreditation. We support the amendment.
Amendments 98 and 99 are drafting amendments to clarify which accreditation conditions can be varied or removed by the Secretary of State when extending an accreditation. I would be grateful to discover whether any of the changes that might be made for ADR providers will be published so that they are on the public record. I do not know whether there will be a public record of ADR providers, so perhaps the Minister will also clarify that. If there is to be a public list, where will it be? That point relates to other issues, such as how people will be aware of those who might be able to provide the service.
Government amendment 100 will make it clear
“that accreditation conditions can be worded so as to make an accredited ADR provider directly responsible for things done by another ADR provider who carries out ADR under special ADR arrangements made by the accredited provider under its accreditation. This could enable regulatory action under clause 290 or 293 to be taken against the accredited ADR provider in relation to acts of the other ADR provider.”
This is important. It is a common-sense amendment, and it will extend protections for consumers.
Clause 290 will enable the Secretary of State by notice to revoke, suspend or limit an accreditation, or impose further conditions on a previously accredited ADR provider. Will the Minister clarify how that might come about? I should say that ADR providers could apply to have their accreditation revoked, and there are grounds on which the Secretary of State could apply specified sanctions. How will the changes come about? How will the information need to be received to meet a condition under subsection (3), listing contraventions? Might one route be through a consumer complaints system on the ADR process? How will that work?
Perhaps I missed it, but I am not clear about when a consumer with concerns might challenge an ADR provider’s service or whether that is a route through which such matters might come to the notice of the Secretary of State in order to revoke, suspend or limit an accreditation or impose further conditions. Will the Minister clarify how the system is joined up from the perspective of the consumer and how the process will be managed? That would be extremely helpful. Otherwise, we welcome the clause as a necessary element of the new ADR provisions and as necessary to ensure that any ADR providers not fulfilling their duties to protect consumers can be stopped from acting as such a provider.
Clause 291 sets out how the fees that accredited ADR providers will be required to pay to the Secretary of State will be determined. We recognise the need for the clause, and the potential need for ADR providers to pay periodic fees to maintain their accreditation and commitment to remaining accredited. However, I would welcome further explanation from the Minister because we are not clear about the amount to be paid in fees, the frequency of the fees or their purpose—where they will go. That is not clearly set out in the Bill or in the accompanying paperwork. Will the Minister clarify whether some of these issues will come back in secondary legislation or whether we can identify the answers to those questions in other parts of the supporting paperwork?
I think the legislation might suggest that the fees cover the costs of the functions under the chapter, but it is important for legislative scrutiny that we have clarity on that. Small businesses might be involved, and we want clarity and fairness in the process.
Amendment 101, which we support, will correct a mistake in clause 291. We support clause 292. Schedule 23 sets out the criteria for an ADR provider to become accredited, including the provision of information to consumers, the independence and impartiality of the provider, and so on. We welcome the schedule in ensuring that there are important and clear criteria for people acting as ADR providers.
Kevin Hollinrake
The hon. Member for Feltham and Heston has raised a number of points for me to respond to. As an overarching point, we are moving from a voluntary to a mandatory system of ADR regulation, so we should not look at it as if we were starting from scratch. We are improving an existing system, which should give us some assurance that this is an improvement, not a step back from improving standards in this area.
One of the hon. Lady’s principal points was about the criteria that we apply for accrediting an ADR provider. They have to be kept high-level, because there are a wide variety of different providers, so it would be wrong to be too specific about the criteria we apply. However, clause 292 and schedule 23 both set out the principles behind what accreditation will look like at every scheme level, including standards on accessibility, expertise, fairness, independence, impartiality and transparency. Clause 292 will allow the criteria to be kept under review and to be modified if necessary and appropriate. On the public record, yes, there will be a list of ADR providers.
Seema Malhotra
I recognise what the Minister says about moving to a mandatory system and the improvements being made, which is why it is important that we do not leave gaps. However, I want to push him on my point about expertise.
Kevin Hollinrake
I will come to that. Criterion 3 in schedule 23 clearly sets out that a provider will be required to have the relevant expertise. Has the hon. Lady read that criterion?
Seema Malhotra
I have, and I quoted it to the Minister. What I asked him was how he will determine expertise, because in other legislation on ADR that we have debated, there has been some process. Have the providers been accredited? Is it based on experience? Do they have particular qualifications? Otherwise, expertise can be very subjective. That was the question I asked.
Kevin Hollinrake
And that was the question I answered. In response to the hon. Lady’s points, I said that the criteria have to be kept high-level. It would be wrong to be too specific about how we judge “expertise”, because of the wide variety of different ADR providers. What we all need to do is trust the process, which the Secretary of State oversees, of trying to make sure that each provider has the relevant expertise in each scheme area. As I said, there are schemes already in place that we are now putting under the mandatory regime. Of course, expertise will be judged on a scheme-by-scheme basis, but it is difficult to set out exactly what expertise we will require in any particular scheme, other than that we would expect the person to have the relevant experience and expertise.
Seema Malhotra
Of course I will trust the process, where I am sure that the process is a robust one. I do not think that we need to debate the issue much further, but it is not resolved, if I may say so. As I mentioned, I have been involved—it may have been with the Minister’s predecessor—with previous legislation relating to the ADR process. Anyone can say that they have expertise in something, but the important question is what their qualification is and how it is determined. I will look again at the issue, and I may follow up with the Minister in writing.
The Chair
May I just remind members of the Committee that interventions should be pithy?
Kevin Hollinrake
I am happy to continue the debate with the hon. Lady and to correspond with her on the matter.
There is a broader picture here, which I am trying to set out in my response to the hon. Lady. There will certainly be the public list of ADR providers that she referred to. Where people are most likely to find that list will be in dealing with a particular trader in a particular scheme, regarding the requirement set out in clause 299 for a trader responding to a consumer contract complaint to inform consumers about the ADR process. That is where we expect people to be most likely to find the ADR scheme available.
The hon. Lady asked how somebody can complain about ADR schemes. That ties in with a broader point about how we manage the whole process, and to other points that she made. People can, of course, complain directly to the Secretary of State if they are dissatisfied with an ADR provider. However, I think a complaint is more likely to come through other routes such as Citizens Advice, which is largely funded by the Government, through trading standards or through letters to Government Ministers from Members of this House; I often respond to such letters that raise concerns. That is how we build a picture of the efficacy or otherwise of a particular ADR scheme. We would expect that at that point, if there are a number of complaints about an ADR provider, the Secretary of State will intervene and use their capabilities under the Bill.
As the hon. Lady set out, the Bill provides for ADR providers to pay fees to cover the cost of processing applications and their ongoing accreditation. Under the existing accreditation regime, the Department for Business and Trade charges fees at a pro rata daily rate of £750. That is the context in which we expect fees to be set.
The hon. Lady asked what we will do about ADR providers who do not do the right thing and do not provide the proper service. Revocation is available to the Secretary of State. The accreditation criteria will ensure, among other things, that ADR providers meet standards of expertise, fairness and impartiality. If ADR providers do not meet those standards, their accreditation may be revoked or suspended, or additional conditions may be put in place to improve their performance. We have tackled the issue of sufficient expertise, on which we may agree to differ.
The hon. Lady raised clause 294, which allows the Secretary of State to make regulations requiring the provision of information about ADR. As clause 294 sets out, that can be for the benefit of consumers, but it can also be with regard to the operation of particular schemes. Again, that is a reason why the information might be requested. It might not be suitable for public consumption, or there could be other reasons, such as commercial sensitivity or data protection, why that information might not be published, but it can be published if the Secretary of State sees fit.
The hon. Lady referred to clause 298, which allows regulation to confer functions on persons other than the Secretary of State. That provision might be used, for instance, to confer accreditation functions on a regulator. It gives broad oversight of other areas of the ADR regime that are not directly covered by this legislation.
Question put and agreed to.
Clause 288 accordingly ordered to stand part of the Bill.
Clause 289
Determination of applications for accreditation or extension of accreditation
Amendments made: 97, in clause 289, page 195, line 3, leave out “as extended”.
This is a drafting amendment to make clear that new accreditation conditions imposed when extending an accreditation are not limited to any particular part of the extended accreditation.
Amendment 98, in clause 289, page 195, line 4, leave out “condition on the existing” and insert “existing condition on the”.
This amendment and Amendment 99 are drafting amendments to clarify which accreditation conditions can be varied or removed by the Secretary of State when extending an accreditation.
Amendment 99, in clause 289, page 195, line 21, leave out “condition on the existing” and insert “existing condition on the”.
See the member’s explanatory statement for Amendment 98.
Amendment 100, in clause 289, page 195, line 26, at end insert—
“(14) Where an accreditation covers the making of special ADR arrangements, conditions on the accreditation may be framed so as to secure that the accredited ADR provider is responsible for acts or omissions of other ADR providers who carry out ADR under special ADR arrangements made by the accredited ADR provider.”—(Kevin Hollinrake.)
This amendment would clarify that accreditation conditions can be worded so as to make an accredited ADR provider directly responsible for things done by another ADR provider who carries out ADR under special ADR arrangements made by the accredited provider under its accreditation. This could enable regulatory action under clause 290 or 293 to be taken against the accredited ADR provider in relation to acts of the other ADR provider.
Clause 289, as amended, ordered to stand part of the Bill.
Clause 290 ordered to stand part of the Bill.
Clause 291
Fees payable by accredited ADR providers
Amendment made: 101, in clause 291, page 197, line 9, leave out “potential applicants for accreditation” and insert “accredited ADR providers”.—(Kevin Hollinrake.)
The amendment would correct a mistake in clause 291(3) which should refer to accredited ADR providers, as they are the persons who pay fees under the clause.
Clause 291, as amended, ordered to stand part of the Bill.
Clause 292 ordered to stand part of the Bill.
Schedule 23 agreed to.
Clause 293 ordered to stand part of the Bill.
Clause 294
ADR information regulations
Amendments made: 102, in clause 294, page 199, line 1, after “(1)(a)” insert “or (b)”.
This amendment, with Amendments 103 to 105, would ensure that the power in subsection (1)(b) of clause 294 is subject to similar constraints to those currently provided for by subsection (3) in relation to the power in subsection (1)(a). The regulation making powers in clause 294(1) are not to be available for imposing requirements to provide information for purposes other than those set out in subsection (3)(a) to (c).
Amendment 103, in clause 294, page 199, line 3, leave out from “following” to end of line 4.
See the explanatory statement for Amendment 102.
Amendment 104, in clause 294, page 199, line 5, leave out
“provided to the Secretary of State”.
See the explanatory statement for Amendment 102.
Amendment 105, in clause 294, page 199, line 10, at end insert—
“(3A) It is immaterial for the purposes of subsection (3) whether the publication, monitoring or evaluation is carried out by the Secretary of State, by a person with functions conferred by regulations under section 298 or by any other person acting under arrangements made with that other person by the Secretary of State or a person with such functions.”—(Kevin Hollinrake.)
See the explanatory statement for Amendment 102.
Clause 294, as amended, ordered to stand part of the Bill.
Clause 295
ADR information directions
Amendment made: 106, in clause 295, page 200, line 13, leave out from “legislation” to end of line 14.—(Kevin Hollinrake.)
The amendment would omit words that unnecessarily duplicate a definition in clause 297(6).
Clause 295, as amended, ordered to stand part of the Bill.
Clause 296
Disclosure of ADR information by the Secretary of State
Amendment made: 107, in clause 296, page 200, line 35, leave out
“power conferred by this section is”
and insert
“powers conferred by this section are”.—(Kevin Hollinrake.)
The amendment would clarify that the words at the end of subsection (4) apply to both of the powers conferred by the clause.
Clause 296, as amended, ordered to stand part of the Bill.
Clauses 297 to 300 ordered to stand part of the Bill.
Schedule 24
Chapter 4 of Part 4: consequential amendments etc
Amendment made: 112, in schedule 24, page 360, line 22, leave out “duties and powers” and insert “legislation”.—(Kevin Hollinrake.)
This is a drafting amendment to ensure there is an accurate description of the content of paragraph 11 of Schedule 5 to the Consumer Rights Act 2015.
Schedule 24, as amended, agreed to.
Clause 301 ordered to stand part of the Bill.
Clause 302
Provision of investigative assistance to overseas regulators
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 303 to 308 stand part.
That schedule 25 be the Twenty-fifth schedule to the Bill.
Kevin Hollinrake
Chapter 1 of part 5 of the Bill enhances the UK’s ability to co-operate internationally on competition and consumer matters, as open and fair competition globally ensures the best opportunities for UK businesses and consumers. Clause 302 would introduce a new power for the Competition and Markets Authority and certain consumer protection regulators to provide investigative assistance to an overseas regulator. This power will apply to civil investigations or proceedings related to competition and digital markets and consumer protection.
The clause sets out three core requirements that must be met before investigative assistance is provided. First, the overseas regulator requesting assistance must be carrying out a function that corresponds to a function that the UK regulator has under UK law. Secondly, the UK regulator must assess whether it would be appropriate to provide the assistance requested by the overseas regulator, using the conditions set out in clause 304. Thirdly, the Secretary of State must have authorised the UK regulator to provide the assistance in accordance with clause 305.
Clause 303 sets out that the request must be made in writing by the overseas authority, describe the matter for which assistance is requested, and detail any potential penalties that might be imposed following the overseas investigation. Clause 304 provides a framework for UK authorities to assess whether it is appropriate to provide the investigative assistance requested by an overseas authority; it also sets out the circumstances in which a UK authority has no discretion and must reject an incoming request for investigative assistance—for example, if there is no reciprocity and no overriding public benefit to the UK in providing the assistance in any event.
Clause 305 outlines the factors that the Secretary of State must consider in deciding whether to approve a request for assistance. For example, the Secretary of State may reject a request for assistance where they consider that it would be more appropriate for any investigation to be carried out by the UK authority solely for its own purposes. Clause 306 requires the UK authority to notify the Secretary of State where it has received for assistance and considers it appropriate to provide the requested assistance.
Clause 307 places a duty on the CMA to publish guidance in connection with requests for investigative assistance and the provision of that assistance. Any regulator with the powers to provide investigative assistance must have regard to that guidance, which must be approved by the Secretary of State. Clause 308 and schedule 25 amend the existing legislative framework to ensure that the new investigative assistance regime slots in properly and runs smoothly. For example, the usual time limits for the CMA to be able to impose civil penalties for failures to comply with merger information notices would not work in cases where the CMA is providing assistance, so schedule 25 creates a bespoke time limit specifically for such cases.
Seema Malhotra
Clause 302 acts as a gateway to investigative assistance provisions. This is an important provision, enabling regulators in the UK to assist an overseas regulator. The Minister outlined the conditions under which the UK regulator may assist. We understand that the issues around consumer protection and competition must increasingly be dealt with internationally, because they are increasingly digital in nature and when they arise abroad can impact consumers here, as well as the other way around. As we have gone through these matters with short remarks today, my overall comment is that while we need this provision, the safeguards that might be needed and what is or is not to be published are less apparent.
Kevin Hollinrake
There are just a couple of points to make, I think. On clause 302, the hon. Lady asked whether the police would be involved in any of the investigations. The clause sets out clearly that those are civil matters, not criminal matters. The overseas regulator requesting system is supposed to carry out a function that corresponds to a function that the UK regulator has under UK law.
Seema Malhotra
Either I was not clear, or the Minister mistook me. I was not talking about the police being involved. I was asking whether there are processes of sharing information akin to the way that information is shared with police, so that it can be done in more confidence. The question was about what will be known to those whose information may be shared, if there is that request.
Kevin Hollinrake
In the course of anybody’s work, if there is evidence of criminal activity, we would expect an enforcement agency or regulator to share that with the relevant enforcement authorities, including the police. Was that the point the hon. Member was trying to make?
Seema Malhotra
If I can put it a bit more simply, my question was about how the information will be shared, who will know that the information is being shared, and what that information is being shared about?
Kevin Hollinrake
If the hon. Lady has any further points that she wants clarified, perhaps she will write to me, as I am not quite sure what she is referring to.
The hon. Lady asked about safeguards and the considerations to be taken into account when agreeing to requests for assistance. The clauses provide significant safeguards with regard to the conditions that the authority itself needs to consider and, when it comes to the authorisation by a Secretary of State, consideration of appropriate protections, for example, around confidentiality and other considerations set out in the Bill.
Further details about the process and how investigative assistance will work in practice will be set out in detailed guidance. That is another point that the hon. Lady referred to—discussions between the regulator and the Secretary of State—that we expect to see in guidance. We expect the regulators and the Secretary of State to engage closely in considering whether to provide assistance. Guidance will be put in place and agreed between the regulators and the Secretary of State to set out how the measure will work in practice.
Question put and agreed to.
Clause 302 accordingly ordered to stand part of the Bill.
Clauses 303 to 308 ordered to stand part of the Bill.
Schedule 25 agreed to.
Clause 309
Disclosing information overseas
Question proposed, That the clause stand part of the Bill.
Kevin Hollinrake
Clause 309 provides clearer rules and more efficient gateways for information sharing between UK authorities and their overseas counterparts. The powers will apply to all UK public authorities covered by part 9 of the Enterprise Act 2002—primarily authorities with functions in connection with competition and consumer protection law. The existing overseas disclosure gateway in part 9 will be replaced with three new gateways. Under the first, a relevant UK authority may share information with an overseas authority for the joint purpose of facilitating both its own statutory functions and the functions of the overseas authority.
Under the second new gateway, a relevant UK authority can share information only to facilitate the functions of an overseas authority. When deciding whether to make a disclosure under the two gateways, the UK public authority will need to have regard to a number of factors, such as whether the laws and the practices of the other country can ensure that confidential information is appropriately stored and protected.
When deciding whether to make a disclosure to facilitate the functions of the overseas public authority only, the UK authority must give due regard to an additional layer of considerations. That includes whether the reason for the request is sufficiently serious to justify the disclosure of information. The Secretary of State will retain a power to modify, add to, or remove any of the considerations for each gateway. That is to ensure that the list of considerations remains balanced and appropriate.
There are restrictions that apply to the use and further disclosure of any information that is shared under the two gateways. The restrictions mean that, unless the disclosing authority provides its consent, information disclosed must not be used by the overseas authority for any purpose other than the one for which the information was originally disclosed; nor may the information be passed on to a third party. The Secretary of State will retain the existing power to prevent overseas disclosure of information if they consider the relevant proceedings or investigation would be more appropriately brought or carried out by authorities in the UK or in another country.
Finally, the clause introduces a new gateway for overseas disclosures by a UK public authority for the purposes of facilitating the terms of a designated co-operation arrangement. The Secretary of State will have a power to designate suitable co-operation arrangements in regulations if they are satisfied that they meet the safeguards set out in the legislation.
Seema Malhotra
I thank the Minister for his detailed remarks on clause 309. I will keep my remarks brief. I have concerns about some of the detail. The clause deals with disclosing information overseas. It will amend part 9 of the Enterprise Act by replacing the current overseas disclosure gateway in section 243 with new provisions governing the ability of the CMA and other UK public authorities to exchange information with overseas public authorities.
As the Minister outlined, there will be three new gateways that allow for overseas disclosures in defined circumstances, with safeguards to protect specified information. We welcome the clause. It will be important to see how it is taken forward in the guidance. It is important to have this provision in legislation, not least because tackling competition issues requires us to play an active role in global competition and consumer protection policy.
Question put and agreed to.
Clause 309 accordingly ordered to stand part of the Bill.
Clause 310
Duty of expedition on the CMA and sectoral regulators
The Chair
With this it will be convenient to discuss that schedule 26 be the Twenty-sixth schedule to the Bill.
Kevin Hollinrake
Clause 310 introduces a statutory duty of expedition in relation to the CMA’s competition and consumer law functions, including the functions relating to the new digital competition regime. Schedule 26 makes changes to the legislation that empower the sector regulators to exercise their concurrent competition powers so that they are under an equivalent duty when they do so. The new duty will require the CMA to have regard to the need for making a decision, or taking action, as soon as is reasonably practicable. It will apply to casework functions and decision making, but will exclude auxiliary functions such as the publication of guidance.
The impact of the new duty of expedition will vary on a case-by-case basis. For example, if a business asks for repeated extensions to deadlines for providing information, the duty will bolster the CMA’s ability to move the investigation along. The CMA will need to continue to ensure fair process and make evidence-based robust decisions. Parties will continue to have a right to appeal against decisions made by the CMA.
Seema Malhotra
The Minister has outlined the detail of the clause. Again, I will keep my remarks brief. Clause 310 would insert a new schedule into the Enterprise and Regulatory Reform Act 2013 to provide for a statutory duty of expedition in relation to specified CMA competition, consumer law and digital markets functions. The new provisions expand and replace the duty that previously applied in relation to the CMA’s functions. A new provision inserted by the clause specifies that, in making any decision or taking any action for the purposes of any of its functions within the new schedule, the CMA must have regard to the need to do so as soon as is reasonably practicable. That obligation would apply to all steps of the relevant investigatory, regulatory or enforcement process. The clause also introduces schedule 26, which imposes a duty of expedition on sectoral regulators in respect of their competition functions that are exercisable concurrently with the CMA. We support the schedule.
Question put and agreed to.
Clause 310 accordingly ordered to stand part of the Bill.
Schedule 26 agreed to.
Clause 311
Interpretation
Question proposed, That the clause stand part of the Bill.
Kevin Hollinrake
Clause 311 defines various terms used throughout the Bill, such as “digital content” and “firm”.
Clause 312 provides that expenditure incurred by the Secretary of State or CMA as a result of the Bill is to be met from funds provided by Parliament.
Clause 313 gives the Secretary of State a power by regulations to make any provision that is consequential on the Bill or any provision made under it. The power can be used to amend any legislation, but it is limited to primary legislation passed or made before the end of the parliamentary Session in which this Bill is passed. This limitation also applies to any secondary legislation made under the primary legislation.
Clause 314 makes further provision in relation to powers to make regulations under the Bill, including interpretative provisions about the relevant parliamentary procedures. This clause does not apply to commencement regulations.
Clause 315 sets out that the Bill will apply to England, Wales, Scotland and Northern Ireland.
Alex Davies-Jones (Pontypridd) (Lab)
As we know and as the Minister said, the clause sets out the meanings of various terms used in the Bill. Throughout the debates in Committee, we have raised fundamental questions on several points where we feel that the interpretation of the Bill requires further confirmation. I welcome the Minister’s clarity on a number of those issues. In the rest of the clauses in the group, we see clarity around financial provisions, regulation, extent and the short title—all as is fairly standard.
We all understand the need for this Bill and welcome many of the provisions. That is why Labour has been generally supportive as we have proceeded through Committee. I hope we can also agree that the measures in the Bill must come into force as soon as is reasonably possible. That is particularly important when we know that the digital markets unit has essentially been operating in shadow form for a number of years. It must be compelled to draw on the lessons learned and able to act meaningfully from day one. All things said, we obviously support this grouping, and we look forward to the Third Reading of the Bill before supporting its progression to the other place.
Question put and agreed to.
Clause 311 accordingly ordered to stand part of the Bill.
Clauses 312 to 315 ordered to stand part of the Bill.
Clause 316
Commencement
Neil Coyle (Bermondsey and Old Southwark) (Lab)
I beg to move amendment 136, in clause 316, page 221, line 25, at end insert—
“(3) Sections 245 to 273 come into force from April 2026.”
This amendment provides an explicit implementation period for the subscription contract provisions.
The amendment suggests the need for an explicit implementation period for the subscription contract provisions debated earlier in clauses 245 to 273. That comes about for several reasons. The Government say and Ministers tell us that they have consulted businesses, but I note that the Federation of Small Businesses has raised concerns about the provisions in the Bill, including timing and coverage, as have Sky and other larger organisations. There seems to be a concern that there is no specific time or date. In an earlier sitting, we heard the Minister tell us that some provisions would be immediate and some provisions would be for new contracts, not for existing contracts, but business organisations and representative organisations were unaware of the Government’s plans, despite the need to prepare to implement provisions and allow for the costs of new regulations to take effect on businesses.
Businesses have said that the Bill goes further than the Government’s initial consultation expected, including on things such as clauses 245 to 273 and reminders. I think that this correspondence went to all members of the Committee, but Sky suggests that
“measures have shifted away from a high level, principles-based approach”—
which was in the consultation initially—
“with government opting instead for highly prescriptive requirements on the face of the Bill itself. This change was made without any substantive consultation with businesses, despite the material difference such an approach makes to compliance and implementation costs.”
That is from Sky, which has 12,000 jobs focused on this issue, so it is in a better position than smaller companies to get on with that work. Its concern is that the Bill does not do what the Government said it would do, and that new costs will be imposed.
It is not just the FSB that has raised concerns about the costs. Sky said that the Government’s impact assessment suggests that the new requirements
“will cost UK business £400 million to set up and £1.2 billion in the first year alone.”
This is not a benign set of requirements in legislation; it is a costly endeavour. The amendment seeks to give UK businesses space to prepare to implement the provisions and absorb some of the costs, which would not have been in their business plans if they were set some time ago.
In an earlier sitting, I asked the Minister about the timeframe, and the amendment attempts to achieve some clarity about that. It would be good to hear how the Government will address the concerns of the business community, which has been surprised—let me put it that way—by what the Government have come forward with, in terms of the level of the measures, the fact that the requirements are on the face of the Bill, and the lack of a timeframe to prepare to deliver them.
I politely suggest that Ministers take a bit more time to work with the business community before the Bill goes any further to ensure UK businesses are ready, are not hit with further costs, and are prepared to implement the provisions of the Bill.
Kevin Hollinrake
I thank the hon. Gentleman for his amendment, which is very sensibly thought out. It proposes that the new rules for subscription contracts come into effect from April 2026. I very much admire his wish to balance the needs of businesses and consumers; that is exactly what we should be doing. Competitive markets that rely on business investment are good for consumers too, so there is a delicate balance to strike.
The hon. Gentleman seeks to ensure that businesses have clarity about the start date and know when the new rules will come into effect so they can make appropriate preparations. We have listened very closely to the needs of business. I met Sky and others that will be affected by the change to hear their concerns.
The hon. Gentleman said that the proposal goes further than other measures set out previously. They do not go as far as his Front-Bench colleagues would like them to go, in terms of cost to business. We believe we have struck the right balance.
Our opinion about notifications differs from that of the various providers that have made submissions. We think notifications are important because we want users to understand the contracts they are in and the methods of exiting them. The basic principle is that it should be as easy to exit a contract as it is to enter one. Some providers still want to require the customer to ring a call centre. We are having discussions, but we think we have struck a reasonable balance.
There are certainly issues relating to cooling-off periods, which the hon. Gentleman and I have discussed previously. We want to ensure that consumers cannot game the system by entering a contract, benefiting from it by downloading lots of information or content, watching it, and then cancelling without paying. We are dealing with that through secondary legislation.
The hon. Gentleman talks about the cost to business. Yes, there is a cost to business: the expectation is that the annual business impact will be about £170 million a year, but there are establishment costs too. It is not exactly a zero-sum game, because we want competition to develop through the provisions in the Bill. That will be good for consumers and businesses, so we believe there will be a net gain from this legislation. We want to ensure that consumers are treated fairly. Businesses should do well, but not at the expense of unfairly treated consumers. We seek to strike that balance.
Neil Coyle
If this is about balance and fairness, businesses are right to say that there is an annual reminder system for other regulated services, such as broadband and telephones. The Bill proposes a six-monthly reminder system for new services, so is the Minister saying that other services should be better regulated and that the reminder system should be more frequent to help consumers get fairness, or is he saying that businesses are being treated better in some circumstances than the Bill will allow? I am confused about which bit of Government policy he does not support in that domain.
Kevin Hollinrake
I think there are differences in different sectors, and the hon. Gentleman referred to things such as mobile phone contracts. Lots of people subscribe to things they do not know about, as set out in the impact assessments and the various different evidence we have had from different parties. There are differences, and we believe it is right to have slightly more frequent requirements, such as six-monthly notifications, but we are continuing to discuss these issues. Yesterday we met a representative of the media industry, who raised similar concerns, and we are listening to them. We certainly hope to strike the balance that the hon. Gentleman seeks, but we think it is wrong to put a commencement date on the face of the Bill, given that there is quite a lot of work to do to get it to pass through both Houses.
Again, the balance we need to strike must not delay the commencement of the Bill, because it will benefit consumers, and we are also making sure that stakeholders, including businesses, have time to understand and implement the new rules. We will continue to engage to make sure that both we and they fully understand the operationalised impact of the new rules. I hope the hon. Member will withdraw his amendment on the basis that we will keep those conversations ongoing.
Neil Coyle
I think the point has been made that businesses need space to make sure that they can implement what the Government are asking them to do without undue cost, while also trying to retain the benefits of the greater consumer provisions. I hope that the Minister’s meetings and further consultation garner better business confidence in the Government’s plans, which the other place will see later. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Kevin Hollinrake
Clause 316 makes provision regarding commencement of the Bill. Part 6 and powers to make regulations will commence at Royal Assent, and all other parts will commence by way of regulations made by the Secretary of State. Clause 317 establishes the short title.
Alex Davies-Jones
We have no further comments, Chair.
Question put and agreed to.
Clause 316 accordingly ordered to stand part of the Bill.
Clause 317 ordered to stand part of the Bill.
New Clause 1
Decision not to make final offer order
“(1) The CMA may decide not to make a final offer order in relation to the transaction where it has reasonable grounds to believe that there has been a material change of circumstances since the final offer initiation notice was given.
(2) For the purposes of this section and section 42(3) a material change of circumstances includes an agreement between the designated undertaking and the third party with respect to terms as to payment in relation to the transaction.
(3) Where the CMA decides not to make a final offer order, it must give a notice to that effect to the designated undertaking and the third party.
(4) The notice must include the reasonable grounds referred to in subsection (1).
(5) As soon as reasonably practicable after giving a notice under subsection (3), the CMA must publish a statement summarising the contents of the notice.”—(Kevin Hollinrake.)
This new clause, together with Amendment 10, ensures that the CMA can end the final offer mechanism without making a final offer order at any time after giving a final offer initiation notice. It would appear after clause 41.
Brought up, read the First and Second time, and added to the Bill.
New Clause 8
Limit on secondary ticketing
“(1) The Consumer Rights Act 2015 is amended as follows.
(2) After section 91 (prohibition on cancellation or blacklisting) insert—
‘91A Limit on secondary ticketing
(1) This section applies where a person (‘the seller’) re-sells a ticket for a recreational, sporting or cultural event in the United Kingdom through a secondary ticketing facility.
(2) The operator of the facility must—
(a) identify the maximum number of tickets available for a consumer to buy from the primary market for any event for which tickets are being re-sold through their facility; and
(b) check that the seller has not bought more tickets than they are permitted to buy as set out in subsection (2)(a) with the intention to re-sell, unless the seller provides proof that they have bought more tickets than they are permitted to buy from the primary market with the consent of the event organiser.
(3) The operator of the facility must not allow the seller or any associate of the seller to list more tickets for an event than can be bought by a consumer through the primary market.
(4) If the operator breaches its duties in subsections (2) and (3), they are jointly liable with the seller for enforcement action against them as set out in section 93’”.—(Seema Malhotra.)
This new clause would amend the Consumer Rights Act 2015 to introduce provisions banning sellers on secondary ticketing sites from selling more tickets than can be bought by consumers on the primary market.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 9—Secondary Ticketing: duty to verify seller’s details—
“The Consumer Rights Act 2015 is amended as follows—
‘After section 90 insert—
‘90A 90A Duty to verify seller’s details
(1) The operator must—
(a) obtain from any seller using their facility the information set out in subsection (2), and
(b) verify that information.
(2) That information is—
(a) proof that the seller owns the ticket they are intending to sell through the facility,
(b) proof that the information specified in section 90(3) is accurate; and,
(c) the seller’s address.
(3) If the operator breaches the duty under subsection (2), the operator is jointly liable with the seller for enforcement action against them as set out in section 93.’’”
This new clause amends the Consumer Rights Act 2015 to impose a duty on secondary ticketing platforms to verify further details from sellers using their platform.
New clause 10—Secondary ticketing regulation: reporting requirement—
“(1) The Secretary of State must—
(a) prepare a report on the merits of introducing a new regulatory function for regulating the secondary ticketing sector; and,
(b) lay a copy of this report before parliament.
(2) The report must include consideration of the recommendation to introduce a new regulatory function to the secondary ticketing sector as set out in the CMA’s ‘Secondary Ticketing’ report published in August 2021.
(3) The report must be laid within the period of 12 months beginning with the day on which this Act is passed.”
This new clause would introduce a reporting requirement on the Secretary of State to produce a report on the merits of introducing a new regulatory function in the secondary ticketing sector, as recommended by the CMA in their August 2021 ‘Secondary Ticketing’ report.
Seema Malhotra
These new clauses all relate to the secondary ticketing market. In particular, they aim to further regulate the market in order to protect consumers in a sector where they are all too often left to fend for themselves. I do not plan to press these new clauses to a vote today, but I do want to speak to them. The Minister’s response will determine how we choose to move forward on Report or in further stages, because this is an important issue.
New clause 8 would amend the Consumer Rights Act 2015 to introduce provisions banning sellers on secondary ticketing sites from selling from more tickets than can be bought by consumers on the primary market. That is a direct recommendation from the CMA’s August 2021 “Secondary ticketing” report. The intent is simple: it would filter out sellers who have obtained tickets through the use of illegal bots with the intention to sell them on at a significantly inflated price. It would also reduce the risk of consumers being sold fake tickets.
New clause 9 would amend the Consumer Rights Act 2015 to impose a duty on secondary ticketing platforms to verify details from the sellers who use them. That would make it harder for bad actors who intend to scam or rip off consumers to use secondary ticketing platforms, as it would be far easier to track their details. That is also a direct recommendation from the CMA’s 2021 report. New clause 10 would introduce a requirement on the Secretary of State to produce a report on the merits of introducing a new regulatory function in the secondary ticketing sector, as recommended by the CMA in its report.
I will take a step back from the specifics of the new clauses to briefly address the broader picture of the secondary ticketing market, where consumers are continually ripped off or put at risk of falling victim to a scam. I am sure that many Committee members, and those who may be watching our proceedings, will have either had their own experiences or heard of constituents being ripped off or scammed for tickets to musical or sporting events. That is not to say that every person who resells on the secondary ticketing market is attempting to scam or rip off consumers—far from it. However, the Minister will know that when those scams and rip-offs occur, there is little in the way of enforcement against either the seller or the platforms that host and legitimise them.
The CMA’s 2021 report helpfully outlined the major areas of concern in the current secondary ticketing market. It said:
“We are concerned that some approaches used by professional resellers to buy up tickets may be illegal – involving committing fraud and/or breaching legislation introduced to prevent the bulk purchase of tickets using computer bots...Such illegal activity will reduce the number of tickets available at face value on the primary market – and increase the number of tickets advertised through secondary ticket platforms at significantly higher prices. The CMA often receives complaints about these practices but does not have the powers to tackle them.”
It went on to say:
“We are concerned that professional resellers may be i) speculatively advertising tickets that they do not own and ii) advertising tickets with inaccurate information about the ticket or the seller’s identity, which sellers are required to provide, by law, when listing tickets for sale. The CMA’s recent enforcement cases required viagogo and StubHub to put in place certain safeguards to ensure key information was gathered and displayed to consumers and that where such information was being displayed inaccurately this could be addressed. However, even if platforms comply in full with these obligations, speculative listings and inaccurate information may still appear if the resellers do not provide correct information to the platforms about themselves and/or the tickets they are listing.”
In each of those cases, there is a clear risk of consumer detriment, through being scammed or ripped off. As a result, the CMA in the same report made a series of recommendations to Government that would enable more robust enforcement in the sector. But shortly before the Bill was introduced, the Minister wrote to the CMA, stating that the Government would not adopt its recommendations. Specifically, and as part of what seems to be the quite weak rationale by the Government for not adopting those proposals, there was the suggestion that the conviction of just two ticket touts three years ago acts as a robust enough deterrent to bad actors. That seems more like the Government kicking the can down the road and failing to act in the interests of consumers, which was so powerfully highlighted by my hon. Friend the Member for Washington and Sunderland West (Mrs Hodgson) on Second Reading.
I urge the Government to consider seriously these new clauses. This need not be party political; in fact, it is far from that. They are direct recommendations from the CMA, given the work that it has done and that it does. It is a regulator whose judgment we all clearly and rightly value, considering the increased powers—and expectations for its work—granted in the Bill. The new clauses are cost free and would significantly increase the protections available to consumers using the secondary ticketing market in the UK—they would dramatically increase protections for all consumers. I look forward to the Minister’s response.
Kevin Hollinrake
Two of these new clauses seek to add further regulation on secondary ticketing and platforms. The third would provide for a report on the introduction of a new regulatory function for the secondary ticketing market, to be prepared within 12 months of the Bill receiving Royal Assent. I thank the hon. Member for these new clauses. I am also grateful for the work of her colleague, the hon. Member for Washington and Sunderland West, who has worked so hard in this space.
The new clauses reflect the recommendations made by the CMA in its secondary ticketing report from 2021, as the hon. Member for Feltham and Heston said. She also referred to our position, which we set out on 10 May 2023. At this point, it is too early, we believe, to bring forward further regulation on secondary ticketing.
One overarching point that I think it is fair to make here is that we should all encourage the primary market to do more to inhibit touting and report breaches of existing law. If anybody went to Glastonbury recently, they would have found great difficulty in—in fact, the impossibility of—selling on tickets, because they are limited to the person who bought the tickets in the first place, so it is clear that primary markets can do more to clamp down on secondary ticketing malpractice where it exists.
The Bill, under part 3, will itself give more powers to the CMA and other public enforcers to enforce existing consumer protection law, which includes legislation applicable to the secondary tickets sector. The shadow Minister referred to good work that is going on in this area, including existing laws. As she said, the National Trading Standards eCrime Team successfully prosecuted two ticket touts for fraud and consumer law breaches. They received prison sentences of four years and two and a half years and were subject to a £6.2 million confiscation order. Despite the imposition of additional regulation by the Breaching of Limits on Ticket Sales Regulations 2018, it is those general consumer protection law powers that the regulators have tended to use most effectively.
New clause 8 would make the platform liable where the number of tickets resold on a platform by an individual seller exceeded the maximum set by the event organiser in the primary market. It is already an offence to use automated software to buy more tickets for events than permitted, with a view to financial gain. If the rules are applied, there should be no need for further action on the secondary market, such as that proposed. However, we will work with the CMA to monitor the market and technological developments to assess whether the measure is both practical and necessary.
New clause 9 seeks to put a strict obligation on a secondary ticketing facility to verify certain information provided to it by a seller. The CMA acknowledges that placing a strict liability on platforms in this way would be an unprecedented step. Moreover, thanks to previous enforcement work of the CMA and others in the secondary ticketing market, choices and associated costs are more transparent than they were five years ago. Therefore, it is not clear to me that the proposal would amount to proportionate regulation.
Seema Malhotra
I thank the Minister for his response. I think his overall message is that the existing legislation is enough and is proportionate. I take on board that he will keep it under review. He will know that there are different views on whether the regulations are enough, and it will be important to do further work with stakeholders on this. If there are ways that existing regulations can be used further to deal with at least some of the challenges, we would obviously all want to see that.
The principle of not having regulation that we do not need if it can be dealt with by existing regulation is an important one that we all share. I think the question is whether it is enough, because currently the story suggests that it is not. However, I will not press the new clause to a vote today. We reserve the right to bring it back on Report, by which time we will have had further discussions with stakeholders on this. I hope it will be an issue on which we can move forward with the Government if we can demonstrate that there is a need to do more. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
The Chair
I gently remind the Committee that we have a hard stop at 11.25 am.
New Clause 11
Annual Report on Operation of CMA Functions Under Parts 2 and 3
“(1) The CMA must, within 12 months of this Act being passed and every 12 months thereafter, prepare a report on—
(a) the effectiveness of the operation of the CMA’s functions under Parts 2 and 3,
(b) the impact of the operation of those functions on maintaining competition in digital markets, and
(c) the impact of the operation of those functions on the enforcement of consumer protection law.
(2) The CMA must arrange for a copy of the report prepared under subsection (1) to be laid before each House of Parliament
(3) This new clause would introduce an annual reporting requirement on the CMA to report to Parliament on the operation of their functions under Parts 2 and 3 of the Act.”—(Seema Malhotra.)
This new clause would introduce an annual reporting requirement on the CMA to report to Parliament on the operation of their functions under Parts 2 and 3 of the Act.
Brought up, and read the First time.
Seema Malhotra
I beg to move, That the clause be read a Second time.
New clause 11 would introduce an annual reporting requirement on the CMA to report to Parliament on the operation of their functions under parts 2 and 3 of the Act, complementing the new clause debated earlier in Committee that would have introduced such a report in relation to part 1 of the Bill. Specifically, the report under new clause 11 would need to include the effectiveness of the operation of the CMA’s functions under parts 2 and 3 and the impact of the operation of those functions on maintaining competition in digital markets and on the enforcement of consumer protection law.
The report would have to be laid before both Houses of Parliament and be produced annually. The core principles behind the new clause—principles I would hope the Minister agrees with—are transparency and scrutiny. The legislation rightly confers significant powers on various regulatory bodies in the UK, not least the CMA. However, to ensure those powers are used as effectively and as fairly as possible, Parliament must be able to fully scrutinise their use and effectiveness in achieving their aims.
There is also the question of where the report goes and who scrutinises it on behalf of Parliament and the public. While I appreciate and recognise that the CMA will have frequent communication and contact with various Departments and Secretaries of State, opportunities for scrutiny are more disparate. With the former Regulatory Reform Committee being subsumed by the Business and Trade Committee, much of the opportunity for scrutiny is supposed to lie there. However, House of Commons Library research highlights that in the past five years, the CMA has appeared before the Committee just five times, and three times since 2021. The CMA does an incredibly significant job in our economy. While an average of one Select Committee appearance a year is appreciated, with the new functions granted by the Bill, one cannot help but feel that the oversight and scrutiny need to become more frequent and detailed to ensure parliamentarians and the public are as informed of the CMA’s work as possible.
I note the Regulatory Reform Group, made up of MPs from the Minister’s own party, has recently called for a cross-party Committee to oversee the performance of regulators and to offer a systematic appraisal of the UK’s regulators that cover key economic sectors. Its members are not the only ones concerned by the overall lack of transparency and scrutiny of the performance of regulators and competition authorities. There is a need for better mechanisms to allow issues to be identified earlier and reforms to be made.
Clearly, there is appetite in Parliament for further scrutiny of our regulators, not least the CMA. That is not to criticise the regulators in any way, but it is a reflection of their increased importance, our increased responsibility and the growing impact of their work in a digital economy, subject to that greater scrutiny. As a result, I hope the Minister agrees that parliamentary scrutiny of the kind that the new clause would provide is important for the effective operation of this new regulatory regime. I urge him to consider supporting the new clause—I know he has been sympathetic to similar clauses in earlier parts of the Bill—so that we see reports and discussion on the scrutiny measures of this House.
Kevin Hollinrake
I wholeheartedly agree that the CMA should be firmly accountable to Parliament across its digital competition and consumer functions. However, that is already the case. The CMA is already required to present an annual report to Parliament. That includes a survey of developments relating to its functions, assessments of its performance against its objectives and enforcement activity, and a summary of key decisions and financial expenditure. The CEO and chair of the CMA regularly appear before the relevant Select Committee—five times as the hon. Member said. Most recently, they appeared before the House of Lords Communications and Digital Committee. Indeed, they meet me on a regular basis, and we also provide an annual strategy steer.
In relation to the CMA’s new consumer direct enforcement functions under part 3 of the Bill, clause 193 gives the Secretary of State the power to request a report from the CMA from time to time on the effectiveness of interventions. Such a report must also be published by the CMA, so that it is available to parliamentarians and the public. I noted her points on the Regulatory Reform Group. I met Lord Tyrie and my hon. Friend the Member for Hitchin and Harpenden (Bim Afolami). They made some interesting points, which I am sure the wider House will have heard. These matters should be kept under review, but for these reasons, I hope the hon. Lady will withdraw the new clause.
Seema Malhotra
I thank the Minister for his remarks. New clause 11 was inspired by new clauses with a similar purpose in the United Kingdom Internal Market Act 2020, so there is an important precedent. I will not press the new clause to a vote, but we will keep the matter under review. I take this opportunity to thank all the Clerks who have been involved in the Committee. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Kevin Hollinrake
On a point of order, Dame Maria. I put on the record my thanks to all the Clerks and the many people who worked on the Bill, including all the officials and my private office, for doing a tremendous job. I thank Opposition Members for their constructive dialogue.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Further to that point of order, Dame Maria. The Under-Secretary of State for Science, Innovation and Technology, the hon. Member for Sutton and Cheam agreed in our proceedings to send a letter and told the Committee that a letter had been sent. No letter has been received and no letter is in the Library. Will the Minister please send the letter as promised?
The Chair
I will leave the Minister to deal with that outside the sitting. The Committee has finished its work.
Bill, as amended, to be reported.
Victims and Prisoners Bill (Fourteenth sitting)
Tuesday 11th July 2023
(10 months 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 11 July 2023 - (11 Jul 2023)
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
We now move on to the new clauses. The selection grouping list shows the order of debates for the new clauses, which have not yet been debated. For the new clauses that have already been debated, decisions will be taken in the order they appear on the amendment paper. As we come to each new clause, I will invite the lead Member to indicate whether they want to press it to a Division. This is not an opportunity for further debate.
New Clause 4
Information relating to victims
In Part 2 of the Police, Crime, Sentencing and Courts Act 2022 (prevention, investigation and prosecution of crime), after Chapter 3 insert—
“Chapter 3A
Requests for information relating to victims
44A Requests for information relating to victims
(1) A victim information request must be made in accordance with this Chapter.
(2) In this Chapter, a ‘victim information request’ means a request by an authorised person to another person to provide information which relates to a third person who the authorised person has reason to believe is or may be—
(a) a victim, or
(b) at risk of being a victim.
(3) A victim information request may be made only if the authorised person—
(a) has reason to believe that the person to whom the request is made holds the information sought,
(b) has reason to believe that the information sought is relevant to a reasonable line of enquiry which is being pursued, or is to be pursued, by the authorised person or another authorised person, and
(c) is satisfied that the request is necessary and proportionate to achieve the purpose of preventing, detecting, investigating or prosecuting crime.
(4) The reference in subsection (3)(c) to crime is a reference to―
(a) conduct which constitutes one or more criminal offences in England and Wales, or
(b) conduct which, if it took place in England and Wales, would constitute one or more criminal offences.
(5) Subsection (6) applies if the authorised person thinks that, in making the request, there is a risk of obtaining information other than information necessary to achieve a purpose within subsection (3)(c).
(6) The authorised person must, to be satisfied that the request is proportionate, be satisfied that—
(a) there are no other means of obtaining the information sought, or
(b) there are such other means, but it is not reasonably practicable to use them.
(7) In making a victim information request or deciding whether to make such a request (including giving notice under section 44B or deciding whether to give such notice) an authorised person must have regard to the code of practice for the time being in force under section 44D.
(8) In this section—
‘criminal offence’ includes—
(a) a service offence within the meaning of the Armed Forces Act 2006, and
(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);
‘victim’ has the meaning given by section 1 of the Victims and Prisoners Act 2023.
(9) This section is subject to sections 44B (notice requirements for victim information requests) and 44C (content of victim information requests).
44B Notice requirements for victim information requests
(1) The authorised person must (subject to subsection (5)) give notice of a victim information request to the person to whom the information sought relates (‘V’).
(2) Notice under this section must be in writing—
(a) specifying or describing the information sought by the victim information request,
(b) specifying the reason why the information is sought, and
(c) specifying how the information will be dealt with once it has been obtained.
(3) Notice under this section must be given—
(a) on or before the date on which the victim information request is made, or
(b) if that is not reasonably practicable, as soon as is reasonably practicable after that date.
(4) If V is a child or an adult without capacity, notice under this section is given to V by giving it to—
(a) a parent or guardian of V or, if V is in the care of a relevant authority or voluntary organisation, a person representing that authority or organisation, or
(b) if no person described in paragraph (a) is available, any adult who the authorised person considers appropriate.
(5) The authorised person need not give notice under this section, or specify a particular matter when giving notice, if the authorised person considers that doing so―
(a) is not reasonably practicable in the circumstances,
(b) might interfere with the investigation or enquiry for which the information is sought or any other investigation or enquiry which is being pursued, or is to be pursued, by the authorised person or another authorised person, or
(c) might risk causing serious harm to V or another person.
(6) In this section―
‘adult’ means a person aged 18 or over;
‘adult without capacity’ means an adult who, within the meaning of the Mental Capacity Act 2005, lacks capacity to understand a notice under this section;
‘child’ means a person aged under 18;
‘harm’ includes physical, mental or emotional harm and economic loss;
‘relevant authority’ has the same meaning as in Chapter 3 of this Part (see section 38(11));
‘voluntary organisation’ means a body (other than a public authority) whose activities are not carried on for profit.
44C Content of victim information requests
(1) A victim information request must be in writing―
(a) specifying or describing the information sought,
(b) specifying the reason why the information is sought, and
(c) specifying how the information will be dealt with once it has been obtained.
(2) The authorised person need not specify the matters mentioned in subsection (1)(b) or (c) if the authorised person considers that doing so―
(a) is not reasonably practicable in the circumstances,
(b) might interfere with the investigation or enquiry for which the information is sought or any other investigation or enquiry which is being pursued, or is to be pursued, by the authorised person or another authorised person, or
(c) might risk causing serious harm to the person to whom the information sought relates or another person.
44D Code of practice
(1) The Secretary of State must prepare a code of practice for authorised persons about victim information requests and compliance with this Chapter.
(2) The code may make different provision for different purposes or areas.
(3) In preparing the code, the Secretary of State must consult―
(a) the Information Commissioner,
(b) the Commissioner for Victims and Witnesses,
(c) the Domestic Abuse Commissioner, and
(d) such other persons as the Secretary of State considers appropriate.
(4) After preparing the code, the Secretary of State must lay it before Parliament and publish it.
(5) The code is to be brought into force by regulations made by statutory instrument.
(6) A statutory instrument containing regulations under subsection (5) is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) After the code has come into force the Secretary of State may from time to time revise it.
(8) A failure on the part of an authorised person to act in accordance with the code does not of itself render the person liable to any criminal or civil proceedings.
(9) But the code is admissible in evidence in criminal or civil proceedings and a court may take into account a failure to act in accordance with it in determining a question in the proceedings.
(10) References in subsections (2) to (9) to the code include a revised code, subject to subsection (11).
(11) The duty to consult in subsection (3) does not apply in relation to the preparation of a revised code if the Secretary of State considers that the proposed revisions are insubstantial.
44E Authorised persons
(1) In this Chapter, each of the following is an ‘authorised person’—
(a) a constable of a police force in England and Wales;
(b) a member of staff appointed by the chief officer of police of a police force in England and Wales;
(c) an employee of the Common Council of the City of London who is under the direction and control of a chief officer of police;
(d) a constable of the British Transport Police Force;
(e) an employee of the British Transport Police Authority appointed under section 27 of the Railways and Transport Safety Act 2003;
(f) a constable of the Ministry of Defence police;
(g) a National Crime Agency officer;
(h) a member of the Royal Navy Police, the Royal Military Police or the Royal Air Force Police;
(i) a person designated by the Director General of the Independent Office for Police Conduct under paragraph 19(2) of Schedule 3 to the Police Reform Act 2002;
(j) a person who has been engaged to provide services consisting of or including the obtaining of information for the purposes of the exercise of functions by a person mentioned in any of paragraphs (a) to (i).
(2) The Secretary of State may by regulations made by statutory instrument amend subsection (1)—
(a) so as to add a reference to a person;
(b) so as to remove a reference to a person;
(c) so as to modify a description of a person mentioned.
(3) Regulations under subsection (2) may contain transitional, transitory or saving provision.
(4) A statutory instrument containing regulations under subsection (2)(a) or (b) (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(5) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”.—(Edward Argar.)
This new clause requires police officers and other authorised persons, when requesting information about a victim or potential victim of crime from a third party, to ensure that the request is relevant, necessary and proportionate for law enforcement purposes and to follow new procedural safeguards.
Brought up, and read the First time.
The Minister of State, Ministry of Justice (Edward Argar)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
Amendment (a), after new clause 44A(3)(c) insert—
“(d) is satisfied that the victim has been informed of their rights in relation to the request.”
Amendment (b), after new clause 44C(1)(c) insert—
“(d) including a full statement of the victim’s rights in relation to the request.”
Edward Argar
This is our first opportunity to debate Government new clause 4, which will make provisions to ensure that the police and other specified law enforcement organisations request information from third parties in respect of victims of criminal conduct only when it is necessary and proportionate and in pursuit of a reasonable line of inquiry.
It is, in the interests of a fair trial, sometimes necessary for police and other law enforcement bodies to request information about a victim of criminal conduct from a third party to support investigations in a variety of crime types, including in rape and serious sexual offences. The material can include a range of personal records that can provide valuable insight into an offence and support allegations as well as eliminate suspects.
However, we have heard considerable evidence that requests for information about victims of criminal conduct can sometimes be excessive, seeking information that is not relevant to a case, with records being requested that date back long before the allegation was made, or being used to test victim credibility. Those inappropriate requests mean that victims do not always feel confident in coming forward to report crimes due to unnecessary invasions into their privacy, or feel disenfranchised by the criminal justice process. Through the end-to-end rape review, we committed to limiting all requests for victim information to what is necessary and proportionate in pursuing a reasonable line of inquiry in support of a fair trial. The amendment fulfils that commitment.
The new clause will address the issue of unnecessary and disproportionate requests for third party material and it inserts a new chapter 3 into part 2 of the Police, Crime, Sentencing and Courts Act 2022. The proposed new section 44A of that Act will set out in law the core requirement that third party material requests in respect of victims of criminal conduct are made only where the information requested is necessary and proportionate in line with a reasonable line of inquiry.
The addition of proposed new section 44B means that the police will be required to give notice to victims when their information is requested. Aside from in very limited circumstances, victims must be informed about what information is being requested, and why and how the information will be used. Provision is made for notifying an alternative adult, such as a parent or guardian, where the victim is a child or an adult who lacks capacity.
The increased transparency of the process will ensure that the police provide clear and consistent information to victims. That will ensure that victims are better supported and have the confidence that their records will not be accessed unless it is necessary and proportionate to the investigation. It will also ensure that victims feel confident in the handling of their sensitive personal information through access to clear and comprehensive information about the request being made.
The addition of proposed new section 44C will ensure that the police provide clear and detailed information to accompany victim information requests to third parties, ensuring transparency between law enforcement and third parties. The police must provide specific details about the information being sought, and why and how the material will be used. There are limited exceptions, such as where the provision of information would interfere with an investigation or risk causing serious harm to an individual.
Additionally, third parties might previously have struggled to return material quickly. Ensuring that requests are properly set out and made only when necessary and proportionate is expected to have a positive effect on timeliness, which may help to combat lengthy investigations that can be traumatic to victims, especially in relation to rape and other sexual offence cases. A consistent approach is needed to ensure that victims of crime are supported no matter where they live. The clause will do exactly that.
The addition of proposed new section 44D makes provision for a new power for the Secretary of State to prepare a code of practice to which authorised persons must have due regard when requesting third party material. We will publish a draft of the code to coincide with later stages of the passage of the Bill.
The code will also give best practice guidance to law enforcement when obtaining victim information. It will add further clarity and consistency to help law enforcement agencies to fulfil their commitments to both victims and third parties when requesting material. The new clause also sets out the obligation on the Secretary of State to consult the Information Commissioner, the Commissioner for Victims and Witnesses, the Domestic Abuse Commissioner, and such other persons as the Secretary of State considers appropriate, about the content of the code of practice. That will ensure that the views and insights of those expert bodies are fed into the code.
Finally, proposed new section 44E sets out the authorised persons who are bound by these new obligations. They include police forces in England and Wales, the British Transport Police, the Ministry of Defence Police, the National Crime Agency and the service police. A power is taken for the Secretary of State to add, remove or modify a reference to a person on this list by statutory instrument, which will ensure that the new clause captures the right law enforcement bodies—for example, if a new investigative body is established or an existing body changes its name.
The new clause is a significant step forward in creating a space where victims feel confident that our criminal justice system will support them in coming forward to report crimes, including those such as rape and other serious sexual offences. This is the first time that law enforcement will have a clear and consistent approach to requesting victims’ information, which will help to ensure that a victim’s right to privacy is balanced with a defendant’s right to a fair trial. I will respond to the amendments to the new clause in my wind-up speech.
Anna McMorrin (Cardiff North) (Lab)
I thank the Minister for expanding on new clause 4 and I welcome the Government proposals to protect third-party materials. However, new clause 4 does not go far enough, as it just reinforces what is already in law. It does not offer new protections for therapy notes, which is a critical issue for many stakeholders and survivors.
Take my own constituent Sarah, who was sexually assaulted. After a three-year wait, she finally had her day in court. During the trial, the defence barrister used therapy notes from bereavement counselling that Sarah had received when she was a child to illustrate an apparently damaged mental state. The defence barrister then went on to use counselling notes from Sarah’s therapy following a near-fatal car accident. Sarah said of her trial:
“I felt like I was being publicly beaten and humiliated. I wouldn’t advise anyone to go through it. They destroy you.”
In fact, Sarah was cross-examined for two days, with those therapy notes being used to weaken and discredit her case.
Additional safeguards specific to therapeutic records are essential because such records are uniquely private. If such safeguards are not introduced, survivors will continue to be harmed and retraumatised by the system, just as Sarah was. There are some serious concerns about new clause 4 that need to be addressed; I hope that the Minister will listen and acknowledge the severity of what could happen if the new clause passes unamended.
The Centre for Women’s Justice has also expressed concerns about this matter and the Government’s new clause should correctly reflect existing UK law. However, the wording of the new clause is not based on the consent of the survivor; the survivor is only given notice rather than being asked for their consent. If in sexual violence cases the basis is not consent, the data is usually sensitive data. According to the Data Protection Act 2018, there is a higher threshold of “strictly necessary” for sensitive data.
However, the new clause does not accurately reflect the correct Data Protection Act test; it applies a lower threshold of only “necessary and proportionate”. I understand that the new clause applies to all offences, and not just sexual and violent offences against women and girls. However, the failure to include the higher threshold for sensitive personal data will particularly adversely impact sexual offence investigations.
The new clause is not only insufficient but incredibly damaging. I hope that the Minister will agree that it should be amended to add provision for sensitive personal data.
Sarah Champion (Rotherham) (Lab)
I really welcome the Minister’s attempt to tackle the misuse of information relating to victims as set out in the Government’s new clause 4; I thank him for making this happen.
I have called for action on this issue for years, as have most of my colleagues. It is simply unacceptable that victims and survivors who have been subjected to the trauma of sexual violence or abuse have had some of their most private and personal material requested via their counselling service. That is then trawled through by all manner of unknown people, in order for that material to be used to undermine, discredit and even humiliate victims and survivors through the court process. We know that when survivors refuse to hand over the material, cases have been dropped and discontinued. While I appreciate that rape convictions are at an all-time low, justice for rape and abuse survivors cannot be contingent on the violation of their privacy.
Even when victims willingly give notes, the impact is still traumatic. I will give the example of someone who I will call Alex. Alex is a survivor of sexual violence and emotional abuse by an ex-partner. After a lengthy police investigation, during which blanket requests were made for Alex’s counselling notes, the suspect was eventually charged. When describing the impact that accessing her personal records had on her, Alex said:
“I’d given my phone, my therapy records, my social care records, my everything to this case. I feel like I am the one being investigated whilst he roams the streets. This has been horrific for my mental health…I spent a long time with him being traumatised yet even longer by the police and CPS being re-traumatised.”
Sadly, Alex’s experience is not uncommon. Although pre-trial therapy guidance encourages victims and survivors to access the support that they need, and does that to prioritise wellbeing, if someone fears that their notes from sessions can still be routinely accessed and misused, that will undermine the safe healing space that I know the Minister is trying to create. We hear day in, day out, how many victims feel that they have to choose between accessing therapy or accessing justice.
When justice agencies request counselling notes, that fundamentally compromises the central role of counsellors, which is to create a safe and confidential space to explore issues in. One Rape Crisis counsellor explained the difficulty of having to monitor what the victims share. She said:
“it seems to go against the foundation of therapy—that it is an open and non-judgemental space—when your notes could be taken literally to judge you.”
We must also ensure that the police fully understand guidance and laws. Police professionals receive little-to-no training in the new CPS guidelines, and are continually telling survivors that they cannot or should not access pre-trial therapy sessions. There is also currently no monitoring in place around the advice that police are giving to survivors about pre-trial therapy, or follow-up on actions when therapy is accessed.
The Bluestar Project states that the previous CPS guidance, from 2002, has led to the mistaken belief that accessing therapy before the criminal justice process has finished will cause the criminal case to fall. That belief persists even though new guidelines were published in 2022. The CPS has conducted little dissemination of the new guidelines and limited training, and there is no formal evaluation of the impact on survivors’ access to services or multi-agency awareness of the new changes. We currently have no way of knowing any difference that the guidelines are or are not having.
The Bluestar Project understands that staff in the CPS have received some training about trauma-informed care, but most lack an understanding of how survivors access therapy, the benefits of it and how therapy sessions actually work with clients. That continues to contribute to inappropriate and blanket requests for notes as a form of evidence. Multi-agency training is the fastest way to reduce fear and misconception around pre-trial therapy. Will the Minister say what steps he will take to counter that lack of awareness and understanding, both within the CPS and the police?
On how Government new clause 4 is worded, there is still some concern that the survivor is only given notice rather than being asked for consent. What is more, according to the Data Protection Act 2018, in sexual violence cases the data is usually deemed “sensitive data”. As the Minister will be aware, there is a higher threshold of “strictly necessary” for sensitive data. That language is used in the Information Commissioner’s Office guide to law enforcement processing. However, the Government new clause does not accurately reflect the correct test from the 1998 Act, as it applies a lower threshold of only “necessary and proportionate”. I would like the Minister to consider and speak on that.
Furthermore, Government new clause 4 applies to all offences, not just sexual offences. While the protection of the information of all victims is welcome, it is crucial that the Government recognise the particular problems faced by victims of sexual offences—not least that they are much more likely to face this practice than other victims of crime. Additionally, the failure to include the higher threshold for sensitive personal data will particularly adversely affect sexual offences investigations. I urge the Minister to strengthen this wording if at all possible when the Bill returns.
Edward Argar
I am grateful to the shadow Minister, the hon. Member for Cardiff North, and the hon. Member for Rotherham. Having set out the rationale behind our new clause, I will confine myself to addressing the amendments subsequently spoken to. I am grateful to Opposition Members for amendments that seek to ensure that before making a victim information request, the authorised person is satisfied that the victim has been informed of their rights in relation to the request for their personal records, and the rights of the victim are outlined in the victim information notes. I will turn briefly to some of the broader points made by the shadow Minister and the hon. Member for Rotherham at the end.
The purpose of the Victims and Prisoners Bill is to put victims at the heart of the criminal justice system. The proposed clauses will ensure that law enforcement requests for victim information do just that. They will be further supported by the code of practice, but as we—and, indeed, the hon. Member for Rotherham—have made clear, we must seek to strike an appropriate balance while not compromising the right to a fair trial. The statutory code of practice will contain guidance on how to carry out the duties outlined by the legislation. That will include best practice around making requests and informing victims. The police must have due regard to the code when making requests.
Alongside the code of practice, we have developed a notice for law enforcement to use to inform victims about any requests for their personal records. This notice has been designed to ensure that law enforcement can meet their legal obligations regarding informing victims, outlined in the new duties. The code of practice will recommend authorised persons to use this notice. To accompany the notice, we have also developed a Q&A that law enforcement should provide to victims alongside the notice to enable them to understand the terminology and what is actually being asked for. That will include answers to common questions that victims and survivors might have, as well as information regarding their rights. It will be clear in the code of practice that it is best practice to use this notice and to provide the associated guidance to victims.
The resources above will ensure that victims are suitably informed of their rights and of the request. Officials will work closely with the National Police Chiefs’ Council to ensure that the police are fully aware of, and trained in, their responsibilities under the legislation with respect to ensuring that victims are aware of their rights.
Jess Phillips (Birmingham, Yardley) (Lab)
I am not sure how many rape cases the Minister has personally handled, but as somebody who has handled thousands, I have to say that if the police just check a box by saying to a victim in front of them, “We’re going to have to ask for your medical records and any other counselling records,” she is likely to say, “Okay, okay,” without having any understanding of or guidance on exactly what that means.
Will the police, following this ABC guide, say, “If you have ever said anything about your sexual behaviour, completely separately from the fact that this person raped you, it will be used against you in court”? The police will not sit down with a rape victim and talk at length through exactly what might be used. The police do not know, for a start. Also, victims do not know what is in their counselling notes: they do not see them or have them. I want to put a burst of reality into a theoretical argument.
Edward Argar
I am grateful to the hon. Member for Birmingham, Yardley, who knows whereof she speaks, having worked extensively in this area. We believe that this is the appropriate approach. Our code of practice will ensure that victims are made aware of their rights and that the police are aware of their responsibilities under the new duty, including the responsibility to inform victims. We will publish the wording of the draft code of practice during the Bill’s passage, prior to its conclusion in this House and the other place, to enable colleagues to comment.
I turn to the specific points made by the hon. Member for Rotherham. I reassure her that new clause 4 will in no way replace the requirements of the Data Protection Act 2018, which will continue to apply for lawful processing once the police receive the material from a third party. The code makes it clear that the Act imposes additional legal requirements, over and above those in the code, and that when police make a request they are required to take those requirements into account to ensure that the processing of the data is compliant with the Act.
More broadly, may I gently push back on the argument that this is routinely asked for? The whole purpose of the clause is to ensure that it is asked for not routinely, but in specific circumstances.
Sarah Champion
I can speak only as a constituency MP, but it routinely comes across my desk, so I must challenge the Minister on that point.
Edward Argar
The reason I push back on the hon. Lady is that this is the purpose of the new clause: to highlight the limited circumstances in which it should be happening.
The hon. Lady raised a number of broader points about the appropriate mechanism. She raised the New South Wales model and a range of others. I know that there are lots of campaigns around this. I will make only two points. First, as we have made clear throughout, we must strike the appropriate balance between a fair trial and confidentiality, and its impact. Secondly—this is the key point—it would be wrong to prejudge, in making an important step forward, the broader work being undertaken by the Law Commission and Professor Penney Lewis in this space, the scope of which I know will range more widely.
This is an important step forward in the context of the vehicle that we have before us. I put on the record my gratitude to the Home Office officials who have done so much work to get us to this point.
Question put and agreed to.
Clause accordingly read a Second time.
The Chair
Does the hon. Member for Rotherham wish to move either amendment in the group?
Sarah Champion
On the basis of what the Minister says, I will not move my amendments (a) and (b).
New clause 4 added to the Bill.
New Clause 6
Duty to develop a single core data set of victims of child sexual abuse
“(1) The responsible authority must make arrangements to develop a shared, single core data set concerning victims of child sexual abuse and child sexual exploitation in England and Wales.
(2) In accordance with subsection (1) the responsible authority must direct children’s social care and criminal justice agencies to collect consistent and compatible data which includes—
(a) the characteristics of victims and alleged perpetrators of child sexual abuse, including—
(i) age,
(ii) sex, and
(iii) ethnicity,
(b) the factors that make victims more vulnerable to child sexual abuse or exploitation, and
(c) the settings and contexts in which victims have experienced child sexual abuse or exploitation.
(3) The responsible authority must ensure that the data is published each month.
(4) For the purposes of this section, the responsible authority is—
(a) in England, the Secretary of State; and
(b) in Wales, the Welsh Ministers”.—(Sarah Champion.)
Brought up, and read the First time.
Sarah Champion
I beg to move, That the clause be read a Second time.
The new clause embodies the first of the key final recommendations of the independent inquiry into child sexual abuse. It is worth remembering that IICSA was paid for by the taxpayer and commissioned by the Government, so for me it carries a lot of weight. The Government have now responded to the inquiry, but despite accepting the recommendation that forms the basis of the new clause, they have not gone far enough in acting on the recommendation. The Government response stated:
“We accept that robust data collection on the scale and nature of child sexual abuse is critical to underpin and drive a more effective response to child sexual abuse. We have made a number of improvements in data collection and will additionally be driving further improvements to police performance data.”
The Government go on to list the data that they are using: the Centre of Expertise on Child Sexual Abuse report, “Child Sexual Abuse in 2021/22: Trends in Official Data”; data collected by the tackling organised exploitation programme to catch perpetrators; Office for National Statistics data on child sexual abuse, which was last published in 2020; and work by the Department for Education to improve the use of data in safeguarding and children’s social care.
I say to the Minister, with respect, that that is not a single core dataset, as the inquiry suggested; it is a list. Most of that data was already being published when the inquiry made its recommendation. Clearly that list is not what IICSA intended. Its report states:
“Even where abuse is reported and recorded, the data may not reveal the complete scale of abuse. In respect of understanding patterns and trends in child sexual abuse over time, the Inquiry has not been helped by the inadequacies of the existing data collection systems”—
the same data that the Government list as covering that requirement. The report continues:
“Different organisations have developed their own approaches to categorising and recording data. As a result, operational data from different organisations cannot be brought together and consolidated in a way which aids an overall understanding of the problem and the institutional response.”
For example, some forms of data do not distinguish between child sexual abuse within the family setting and that which is committed outside the family setting—very different crimes. They also do not distinguish child sexual abuse committed outside the family in institutional settings, as opposed to child sexual exploitation, so there are no official estimates of the serious criminal activity taking place in those two key areas.
There are many more examples. The inquiry stated:
“Local authority data relating to child protection plans present only a partial picture of the scale of child sexual abuse.”
Research by the Office of the Children’s Commissioner for England suggests that
“among children who had been sexually abused according to police data, more were recorded by children’s services under the categories of neglect (32%) or emotional abuse (29%) than under sexual abuse”,
showing the real problem that we have trying to understand the scale. IICSA stated that the lack of consistent data requires urgent action from the Government to make
“improvements to the data collected about child sexual abuse and the regular publication of that improved data.”
Instead of providing an adequate response, the Government’s reply simply points out all the data that agencies are already asked to collect.
Hundreds of millions of pounds were spent on the inquiry, yet the Government still do not fully accept even the most basic recommendation to collect data in one place on child abuse in this country. Will the Minister discuss that point with his colleagues in the Home Office and push for one single core dataset on child sexual abuse and exploitation, so that we know exactly who the victims of that crime are and therefore how many people need support under the legislation?
Jess Phillips
I cannot stress enough how disappointing it is that somebody has to stand up in this place every single time and say that there is not the data to tell us about these sorts of abuses. There is almost no proper data. In every inquiry, every domestic homicide review, every serious case review and every child sex abuse inquiry where we have all been through the wringer, the same thing gets said every single time, whether it is about Telford, about Rotherham or about the whole nation: “We don’t know the scale of the problem, because there isn’t a single data source.” That is no longer acceptable.
I don’t know how to say this without swearing—don’t worry, I will find a way. In my experience, the reason these things go wrong is usually a mess-up rather than a conspiracy: the lack of ability to collate data, or the problem being too big, difficult or complicated. But I have to say that on this point, I am starting to believe that there is actually a conspiracy not to collect the data. Knowing the full scale of child abuse would be terrifying for the country; Members of Parliament like my hon. Friend the Member for Rotherham and I are certainly only too aware that there is child sexual abuse on every single street in this land. That is the reality of situation. I am starting to believe that the lack of a single solid data source is to try to hide that.
I cannot understand why the Government would not address IICSA’s most basic ask. The Government claim to have undertaken 19 of the 20 recommendations, but the advisory board run by survivors who gave evidence has counted three. The Government have agreed to three of the 20 recommendations made by IICSA, as my hon. Friend has pointed out, at a huge cost to the nation. A previous Prime Minister was really kind about the amount of money that was spent on it.
We count what we care about. Throughout the passage of the Bill, we have debated the difference between criminal child exploitation and child sexual exploitation. At the moment I am afraid to say that foggy data is kept by the Home Office: all children who are being exploited get talked about as one big anomaly. The result is that when we do Redthread interventions in police stations around knife crime because of criminal exploitation in places such as Birmingham and London, we do not have any specialised policy for the girls involved in gang activity who are sexually exploited, because we not demark the data. There are all sorts of practical reasons why that is harming children who are being sexually abused, because we do not have a proper response in those circumstances.
Sarah Champion
It is about the victims and survivors, but it is also about preventing crime. To do that, we need to know who the perpetrators are.
Jess Phillips
I absolutely agree. So much attention is given in our country to who exactly the perpetrators of sexual abuse are, but it is often not based on data. We need to know where our children are safe. I want to know where my children are safe. I just want to know where the best places are for me to allow them to go— institutions, for example. No one is asking for it to be historical; we are all asking for today to be the point at which we say, “This is the standardised form, like we all have an NI number. If you see child abuse, this is the form you fill in and the information goes into a national data source.” It would not be that onerous.
I commend all my hon. Friend’s work and support her new clause 6.
Edward Argar
It is important at the outset to highlight IICSA’s hugely important work on this issue. When any large inquiry conducts its work, it remains for the Government, whatever their complexion, to be the arbiter and decide which recommendations to accept, rather than automatically accepting all the inquiry’s recommendations.
I know that a lot of thought has gone into the Government response. That is evidenced not least by the nudges from the hon. Member for Rotherham at various points to say, “So when is it coming?” Although I appreciate her frustration, the length of time reflects the amount of thought and consultation across Government because it goes to the point made by the shadow Minister, the hon. Member for Birmingham, Yardley, about the breadth of the organisations and Departments involved.
New clause 6 reflects recommendation 1 in the final report of the independent inquiry into child sexual abuse. In the Government response to the report and its recommendations, as the hon. Member for Rotherham said, we set out an extensive programme of work, including our response to the recommendation of a single dataset on child sexual abuse.
As set out in our formal response, we accept that robust data collection on the scale and nature of child sexual abuse is critical to underpinning and driving a more effective response to child sexual abuse. We have made a number of improvements on data collection. Crucially, we will make further improvements to performance data.
The Department for Education is driving forward an ambitious agenda to improve the use of data in safeguarding and children’s social care and will deliver a report to Parliament in the summer. It will set out ways to improve information sharing between safeguarding partners—as required by the Health and Care Act 2022, which I had the pleasure of taking through this Committee Room, among others, at length—and, crucially, how that data will be better brought together. It may not go all the way to what the hon. Member for Rotherham would want, but I hope that it will give her a degree of reassurance. I know that she will interrogate the report carefully when it is published.
The Department for Education will also publish the first part of its children’s social care data strategy at the end of the year. It is working to develop it with the sector and experts to deliver a statement of strategic intent and, crucially, a road map that sets out the departmental vision for children’s social care datasets and how they can be brought together. The Department is also learning best practice from local authorities and others on how they are using existing child exploitation data to inform future practice through predictive analytics.
The Home Office is another key element of the picture. It funds the independent Centre of Expertise on Child Sexual Abuse, with which I know the hon. Member for Rotherham is familiar. The centre produces a report on the scale and nature of child sexual abuse and trends in official data. The Home Office is also working with the Office for National Statistics to improve data collection and granularity on child sexual abuse.
At the policing end of the lens, we are working with the police to drive improvements in the collection, analysis and use of data on child sexual abuse and exploitation, including factors such as ethnicity data and how forces record data for the annual data requirement consistently. The Home Office is funding dedicated child sexual abuse analysts in every policing region to help to bring this data together; funding the tackling organised exploitation programme to bring together local, national and regional data so that it can be shared and interrogated to help police uncover exploitation; and a national policing vulnerability knowledge and practice programme to improve policing’s overall response to vulnerability and to identify and promote best practice between forces.
In addition, the Home Office works with police forces to improve the consistency with which, and the way in which, they record data for the annual data requirement. For example, through the national data quality improvement service computer-assisted classification programme—now there’s a mouthful—we are working to improve and refine the identification of child sexual abuse crimes in police-recorded crime data consistently across police forces and datasets.
The Government continually add to and develop a suite of analytical outputs according to guidance from the code of practice for statistics. As part of that effort, we added additional variables into the criminal court outcomes by offences data tools in 2017, to include identifiers such as the ethnicity of defendants, and subsequently updated age variables to provide greater detail. The Government remain committed to bringing child sexual abuse further out of the shadows. We know that, as the shadow Minister said and the hon. Member for Rotherham has campaigned on since she was first elected in 2010, child sexual abuse is under-identified and under-reported, and in the past was under-recorded and under-reacted to by the police, if I can put it that way. That is why one of our core objectives is to see year-on-year increases in the volume of police-recorded crime for such offences and in the volume of successful charges.
The Government are also determined to provide proper support to all victims and survivors and to deliver real and enduring change. That is why we are working to strengthen the collection of data and how it is used, the consistency in that respect and the ability to pool or share data to increase awareness of child sexual abuse. Crucially, we need to understand what is working to respond to and address it and—to the hon. Member for Rotherham’s point—seek to prevent it where possible.
The Government’s position is that we are meeting the spirit of the inquiry’s recommendation through the numerous improvements that I have set out and enunciated for the Committee, and we will continue to drive further improvements to police performance data. We will endeavour to continue to engage with victims and survivors, child protection organisations, the hon. Member for Rotherham, I suspect, and Professor Alexis Jay in her work.
Sarah Champion
I listened to what the Minister said and I give him some grace, because I know that a lot of this work falls under the Home Office, but the spirit of improvement is not enough: I want actual improvement. Given that £186 million of taxpayers’ money was spent and the inquiry came up with one primary recommendation of a single dataset on child abuse, for the Government to really not shift much on that is poor. If the Minister was minded to say that there would be a drop-down for local authorities and police to tick to record where child abuse was occurring, we could change this. They have that facility at the reporting desk. I will not push the new clause to a vote, but I am aware of the support of my Front-Bench colleagues and the support the measure has in the Lords. On that basis, I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 10
Review into provision of support for children
“(1) The Secretary of State must, within 3 months of this Act being passed, conduct a review into the current state of support for children who are victims.
(2) The review must consider, in particular—
(a) the current volume of provision,
(b) the current volume of unmet need, and
(c) the current level of investment in these services.
(3) Upon completion of the review, the Secretary of State must publish and lay before Parliament a report setting out—
(a) the findings of the review, and
(b) the action that the Secretary of State proposes to take in response to the review.”—(Sarah Champion.)
This new clause would require the Secretary of State to publish a report on the current volume, need and investment in support services for children who are victims.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 13—Duty to commission support for children and young people—
“(1) It is the duty of relevant local authorities to commission specialist children and young people’s support services for victims in accordance with need.
(2) The services provided under subsection (1) must include, but are not limited to—
(a) services for victims of child criminal exploitation, and
(b) services for victims of child abuse.”
This new clause would require local authorities to commission sufficient and specific support for children and young people who are victims.
Sarah Champion
New clause 13 aims to ensure that commissioners provide specific and sufficient support for children who have experienced or are experiencing crime, by placing on them a duty to commission support rather than simply having regard for children in their commissioning plans. The duty would be further strengthened by new clause 10, which would require the Secretary of State to commission a review of the current volume of, need for, provision of and investment into support services for children who are victims of crime. That will ensure full transparency in how the appropriate bodies respond to the needs of children.
Although current legislation states that commissioners should have due regard to the needs of children while creating their commissioning plans, there is no actual duty on them to do so. That could leave child victims subject to a postcode lottery, caught between commissioners who choose to provide for children and those who do not or do not understand the need to.
A freedom of information request submitted by the NSPCC to local authorities in England and Wales found that 77% of them offer no specialist support for children who have experienced child sexual abuse. Young victims and witnesses require a specific response that is well resourced to respond to their individual needs; however, research has shown that mental health services available to child victims of crime tend to be generic rather than specific. The same study found that almost three quarters of respondents reported not having accessed any support services, while just over a quarter of participants had received some sort of support, advice or treatment.
Jess Phillips
Has my hon. Friend, like me, found that when councils and sometimes health authorities are dealing with adult victims of domestic abuse, they feel they should commission specific services, yet when children are victims of domestic abuse, sexual abuse or other crimes, the authorities feel that responsibility should immediately fall to children’s safeguarding, which provides absolutely no service unless the threshold of imminent risk of death is met?
Sarah Champion
Sadly, I completely agree. I have deep sympathy for the local authorities that are trying to provide these services without the resources and with ever-increasing need placed on them. I really welcome the fact that children are now regarded as victims under the Domestic Abuse Act 2021, but support services need to be rolled out on that basis.
Sexual abuse has a far-reaching impact on society. It is estimated to cost more than £3.2 billion per year. In 2021, calls to the NSPCC helpline about child sexual abuse and exploitation reached a record high. The victims code of practice already enshrines
“the Right to be referred to services that support victims…and to have…services and support…tailored to meet your needs”.
Those responsible for upholding the code include police and crime commissioners, the Crown Prosecution Service and police witness care units, so ideally we should already be seeing sufficient and specific support being commissioned across England and Wales. In reality, however, provision is patchy and victims are being left with no support. A legal duty to commission sufficient and specific support for children and young people would push responsible parties to act in the best interests of all children.
It is concerning that the independent inquiry into child sexual abuse found that some statutory agencies responsible for commissioning support services
“have conflated the concepts of actual harm and risk of harm”,
leading to a failure to identify and support children who have been victimised or are at risk of being victimised. In conflating the two, commissioners improperly resource and fund support services, minimising the likelihood that victims will be able to process their trauma and recover from their experience. A duty must be placed on the Secretary of State to commission a review of the current volume, need, provision and investment in special services for children who have been victims of crime.
Currently, data on the provision of services is collected by police and crime commissioners. However, PCCs do not have the authority to mandate that other commissioners share that data with them. As a result, the understanding of the national picture on support for children who are experiencing harm is unclear. The Secretary of State could require all commissioners to share that data and thereby improve the national understanding of the volume of, need for, provision of and investment in special services for children.
New clause 10 would also require the Secretary of State to lay the review’s findings before Parliament and outline the steps he would take in response. That is vital to ensuring that all children receive the support they need, and to ending the postcode lottery that they currently face.
Anna McMorrin
I pay tribute to my hon. Friend the Member for Rotherham for her commitment to ensuring that child victims remain at the forefront of this debate. She has done an enormous amount of work on the issue. I echo her concern that child victims can be subject to a postcode lottery in respect of those commissioners who choose to provide for children and those who do not.
Children experience crime differently, as we have heard so many times in this Committee, so the support that they receive needs to adequately reflect that. If it does not, we will be leaving some of the most vulnerable victims in our society to just fend for themselves. I agree with my hon. Friend’s intention to ensure that all child victims throughout the country receive the support that they not only deserve but are entitled to.
Edward Argar
I am grateful to the hon. Member for Rotherham for speaking to new clauses 10 and 13. New clause 10 would require the Secretary of State to publish a report on the current volume of, need for and investment in support services for child victims, and new clause 13 would require local authorities to commission sufficient and specific support for child victims. I am grateful to the hon. Lady for raising this issue and reassure her that the Government are absolutely committed to ensuring that there is adequate provision of support for children who are victims.
The Bill aims to improve the support offered to children and young people. We have made several key changes to the victims measures in the Bill since it was published in draft, based on feedback received during pre-legislative scrutiny by the Justice Committee and its members. In order to better consider the needs of child victims of crime, we have clarified who is covered by part 1 of the Bill to align with the Domestic Abuse Act’s definition of a child victim of domestic abuse.
The Bill also sets out, under the duty to collaborate, that commissioners must consider any assessment of the needs of children when developing their joint commissioning strategy in respect of victim support services for victims of domestic abuse, sexual abuse and serious violent crimes. Statutory guidance will support commissioners in doing that. The publication of the joint commissioning strategies will then give insight into the levels of service that children are receiving in each police area across England and an assessment of how areas are making improvements against local objectives or key performance indicators.
We are committed to understanding the current needs and provision of support for children who are victims. As needs will vary locally, we provide police and crime commissioners with grant funding to commission practical, emotional and therapeutic support services for victims of all types of crime at a local level. PCCs are expected to carry out needs assessments, which will allow them to ascertain the level of need and demand in their area, including in relation to support for children. This process informs local commissioning decisions. I gently remind the Committee of my comments in previous sittings on the joint strategic needs assessment approach put forward by the Domestic Abuse Commissioner, which I have said I am happy to reflect on more broadly in considering the picture of support.
We recognise that across the commissioning landscape we need a more co-ordinated and strategic approach to funding services for victims, including child victims, so that they receive the support they need. That is why we published the victims funding strategy in May 2022, setting out our approach. The strategy introduced national commissioning standards, which will encourage an expected level of service for victims. It also introduced core metrics and outcomes to be collected on all Government funding, to ensure that we are building a comprehensive evidence base that will allow us to generate a much clearer picture of the needs and experiences of victims using support services.
Overall, the Ministry of Justice is more than quadrupling funding for victim and witness support services by 2024-25 compared with 2009-10, and that includes support for child victims. We have committed £154 million of that budget per annum on a multi-year basis until 2024-25, to allow victim support services and those commissioning them to provide consistency to victims receiving support. In addition, in June last year the Home Office also launched its support for the victims and survivors of child sexual abuse fund—or SVSCSA fund—for 2022 to 2025, providing grant funding of up to £4.5 million to voluntary sector organisations in England and Wales who work in this specific area.
We accept that child victims of sexual abuse must be able to access effective systems for the provision of therapeutic support. In response to a recommendation of the independent inquiry into child sexual abuse, we have committed to elicit views on the future of therapeutic support, including possible systemic changes to provision, through extensive engagement and consultation.
We remain of the view that the Bill’s current wording is the appropriate wording, as opposed to compelling a duty, as in the wording of the new clause. Equally, in respect of the broader engagement around the IICSA recommendation, I invite the hon. Lady to engage with me and others—including Home Office colleagues, probably more specifically—on that. With that, I encourage the hon. Lady not to press the new clauses to a Division at this point.
Sarah Champion
I am content at this point with the movement that the Minister has offered. I therefore beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 14
Independent legal advice for victims of rape
“The Secretary of State must develop proposals for a scheme to give victims of rape access to free, independent legal advice.”—(Ellie Reeves.)
Brought up, and read the First time.
Ellie Reeves (Lewisham West and Penge) (Lab)
New clause 14 seeks to introduce independent legal advocates for rape victims. Although it is always awful to be a victim of any crime, seeking justice after a rape is particularly traumatic, not just because of the desperately low chance of the offender being charged—it is currently just 1.6%—or because rape cases take the longest of all crimes to get to court, but because rape and other sexual offences are the only criminal offences in which the victim’s credibility can become the focal point of the police investigation and the trial.
In no other crime would the complainant’s lifestyle, online presence or sexual history be considered relevant to a jury. Coupled with the fact that victims have no right to their own legal support, that can mean that they find themselves trying to navigate a complex and opaque system on their own. That is why one of the things that survivors tell me time and again is that they feel the criminal justice system is working against them, compounding the trauma they have already suffered.
Given the pressures, it is no wonder that nearly 70% of survivors who report a rape drop out of the justice system. I recognise that the Minister has outlined the fact that he is looking at independent legal advice for rape victims, specifically in relation to disclosure. Although I welcome that, the remit needs to be much wider. Too often, the interests of rape victims are not properly protected in the criminal justice process. When that happens, rape survivors need somewhere to turn to get expert legal help, and that is where legal advocates come in.
The alleged offender has a defence lawyer acting and advocating in their interests, but the rape victim has no such support, and that causes many survivors to drop their cases. An independent scheme of legal advocates would help to tackle that. This proposal would not give victim survivors party status in legal proceedings, and would not conflict with fair trial rights and the duty of the Crown to act in the public interest.
It is important to note that independent legal advice schemes for victims already exist in many other jurisdictions, including many European countries, Australia, Japan, California and Ireland. The UK is an outlier in that respect. As it stands, the only specialist independent legal advice for rape survivors in the UK comes from the groups Centre for Women’s Justice and Rights of Women. They do brilliant work, but can assist only a very limited number of survivors. They cannot deliver the full service that survivors often require, so there is a significant level of unmet need.
A pilot scheme of legal advocates was trialled in Northumbria between 2018 and 2020. The survivors who took part gave positive feedback, as did most of the police and prosecutors directly involved with the lawyers in the scheme. One survivor, Susan, said that
“100% in all of this the saving grace has been”
the lawyer,
“without a doubt, without a doubt my saving grace”.
Police and prosecutors were also clear that the accused’s right to a fair trial was not affected. Overall, the pilot found that the legal advocates substantially improved best practice in the police and CPS, and led to an improved victim experience.
Academic research by Dr Olivia Smith of Loughborough University shows that expanding the roll-out of the pilot to every police force in England and Wales would cost just over £4 million a year. The Home Office estimates that the emotional and wellbeing consequences alone of sexual offences, and the inadequate responses to those crimes, cost £9.8 billion. Given that, and the bulk of research showing that legal advocacy improves criminal justice satisfaction, health and employment outcomes, the cost of an independent legal advocate scheme is far from prohibitive, and would likely make huge savings elsewhere across the economy.
I turn to the remit of legal advocates. It is important to outline that, given the complexity and range of the legal issues that survivors encounter, legal advocates need to be trained lawyers, as opposed to independent sexual violence advocates. They need to be able to properly advise survivors on the issues they encounter, as well as conduct legal casework, such as reading police and CPS documents and preparing written representations. They have to be in an organisation entirely separate from any criminal justice bodies, to uphold their independence and, if necessary, liaise directly with the police and the CPS on the survivors’ behalf. However, we are not proposing that legal advocates assist victims at trial or represent them before the court. We are also not proposing that they play a role in the day-to-day communications between police and survivors. Rather, they would support the victim on specific issues that arise where legal expertise is required, from the moment they report their case to the police right through to trial. Importantly, they would be available free of charge.
Edward Argar
I am grateful to the shadow Minister for the new clause, which would require the Secretary of State to develop proposals for a scheme to give victims of rape access to free and independent legal advice. I know that we agree on the importance of ensuring that victims have confidence that they will be treated with sensitivity and dignity they deserve when reporting crimes such as rape. Integral to building that confidence is ensuring that victims are adequately supported, their credibility is not questioned without good reason, they are informed of their rights and that those are protected.
The proposed new clause would mean the development of proposals for a scheme that would enable victims of rape to access free and independent legal advice. We have some drafting concerns, and I am grateful that some of those were clarified in the hon. Lady’s speech. She did not specify what the legal advice would relate to: my understanding is that it could cover a range of matters, including advice for victims to help them understand requests for personal information and, where needed, to question those requests. She elaborated more broadly on that point and approach in her remarks, which was helpful.
The Government continue to take action to improve the criminal justice system response to rape, through the rape review action plan, and through this Bill we are taking broader action to support victims of all crime. It is critical that we allow for those changes to take effect. For that reason, and one I will come to, we do not support the amendment as drafted at this time, but I will elaborate further on that in a moment. [Interruption.] It is an amendment introducing a new clause; I was seeking to be dextrous, but was quite rightly called out by the right hon. Member for Garston and Halewood on a point of terminology.
I do agree that victims being aware of their rights is an extremely important issue, particularly when supporting victims who are interacting with personal information requests, and preparing for trial. For rape victims in particular, I recognise that requests for personal information, and the trial itself, can be daunting and retraumatising experiences. That is why improving victim support, the court experience and requests for third-party material make up three of our eight key levers in the rape review action plan.
Yesterday, we published our fourth progress update, outlining the significant progress we have made in improving the criminal justice system response to rape, and better support for victims. It was only yesterday, though it feels longer. The sustained progress we are making to rebuild victims’ confidence in the criminal justice system should not be understated. We have already exceeded our initial ambition to return the volumes of adult rape cases reaching court to 2016 levels, but as everyone here would agree, although that is progress, it is not sufficient in and of itself.
Just before turning specifically to the new clause, she highlighted letter quality in this context, as an illustrative point. That is true of CICA as well. She was right to highlight the two years, but it can be extended in exceptional circumstances or for particular reasons. On quality of communication, I think it was 2018 when the hon. Member for Rotherham and I sat down with copies of the standard letters that CICA used to write to people, and basically rewrote them ourselves, suggesting there might be a better way to communicate. To the best of my knowledge, they still use our letters, but I might check that.
Edward Argar
In the latest progress update, we also recognised that there is more to do. I want to be very clear on the record that I am not unsupportive of what the hon. Member for Lewisham West and Penge seeks to achieve with her amendment. Indeed, to better understand whether independent legal advice and representation is required, and how it could work in practice alongside our wider reforms and in broader interactions with the system, we have asked the Law Commission to explore the merits of independent legal advice and representation, and how that would work in practice, recognising among other things the specific challenges in cases of rape and serious sexual offences, in terms of third-party material and similar. We also hope that the Law Commission will consider in the round why one particular set of cases should attract it while others would not, and whether that would be an equitable approach. There are very specific reasons in the case of RASSO cases, but we have asked the Law Commission to look at it carefully.
The Law Commission’s consultation on the use of evidence in sexual prosecutions was published on 23 May and will run until the end of September. I suspect that it will cover this matter and a wide range of other matters that we have discussed. I look forward to closely reviewing the Law Commission’s findings and, through gathering that additional evidence, arriving at a well-informed position on this important issue, and how it might be practical to deliver on such a commitment, subject to what the Law Commission says, and to decisions by the Lord Chancellor. To continue our improvements to third-party material requests through the Bill, we are also introducing duties on policing, which we debated when considering new clause 4. In addition, the victims code will introduce an entitlement for adult victims of rape and serious sexual offences to be offered a meeting with the prosecution team once they have been notified that the case is proceeding to trial. That will give victims the opportunity to discuss what happens next and to ask any questions that they have about the process.
On supporting victims to access the right to review process, the CPS notifies victims by letter of decisions not to charge or to stop a case, and offers eligible victims the right to request a review and gives details on how to do that. I will suggest to my right hon. and learned Friend the Attorney General that she and the Director of Public Prosecutions undertake an exercise akin to the one that the hon. Member for Rotherham and I did to look at how—often standard—letters are worded and framed, to ensure that they are sensitive and communicate clearly. That would be a matter for the Attorney General’s office.
In our view, it is slightly premature at this stage to propose a specific approach to free legal advice without taking into account the findings, and the expert advice, of the Law Commission’s important work on these issues. In the light of that work, we will probably return to these questions when it reports.
Ellie Reeves
I thank the Minister for his comments. I take some comfort from him saying that he is unable to support the new clause “at this stage” and that it is premature rather than something that is not being looked at. It is an incredibly important issue. I note that the Law Commission is looking at it. I would not want to see the issue kicked into the long grass.
Edward Argar
May I offer to meet the hon. Lady to discuss this in advance of the Law Commission work, so that the two of us can discuss it further, as Minister and shadow Minister?
Ellie Reeves
I would very much welcome that, and I am grateful for the offer. I will not press the new clause to a vote in the light of what the Minister has said. He acknowledges on the rape review that came out yesterday that there is more to do. I gently suggest that this is one of the key things that could be done so that we start to see some real progress. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 20
Data-sharing for immigration purposes: exemption for victims
“(1) The Secretary of State must make arrangements to ensure that personal data of a victim, as defined by section 1 of this Act, that is processed for the purpose of that person requesting or receiving support or assistance under the Victims Code is not used for the maintenance of immigration control.
(2) Paragraph 4 of Schedule 2 to the Data Protection Act 2018 shall not apply to the personal data to which subsection (1) applies.
(3) For the purposes of this section, the Secretary of State must issue guidance to—
(a) persons providing relevant victim support services, as defined by section 12 of this Act;
(b) persons exercising any function of the Secretary of State in relation to immigration, asylum or nationality; and
(c) persons exercising any function conferred by or by virtue of the Immigration Acts on an immigration officer.
(4) In this section “immigration control” means United Kingdom immigration control and includes any United Kingdom immigration control operated in a prescribed control zone outside the United Kingdom.”—(Sarah Champion.)
Brought up, and read the First time.
Sarah Champion
I beg to move, That the clause be read a Second time.
I wonder if it will help to start by saying that the Deputy Speaker has said that the debate in the Chamber will go all the way to 5 pm—I will preface my quite long speech with that, but I will keep it moving.
Janet Daby (Lewisham East) (Lab)
It is very disturbing to hear the example that my hon. Friend has brought before us. Does she agree that what that lady has experienced is double jeopardy—with a sense of being totally undermined by the police, not being believed and being accused? The revictimisation in that situation sounds absolutely appalling.
Sarah Champion
I completely agree. People talk, and that sends out a chilling message to the whole community, keeping people with their abusers. I urge the Minister to consider this new clause, because unless we get the firewall in place, we allow perpetrators of violence and abuse to continue their unique and specific reign of terror.
Jess Phillips
I do not really need any notes, because I am about to make a briefer than normal speech that I have made what feels like a hundred times. One day, what we are asking for will happen.
I cannot stress enough the importance of the words of my hon. Friend the Member for Rotherham about the need for a firewall between immigration services and the police. At the moment, we say, largely to women, “If somebody tries to kill you, tries to rape you or does rape you and you call the police, we are going to call enforcement on you,” so what happens is that they do not call the police and I read out their names in March.
My brilliant constituent was part of the super-complaint. She faced a very real and credible threat to her life by a man who had abused her horrendously to the point that she had to be moved into a safe house because he was such a danger to her. She does not speak very good English. The police came round to her house; I had called them to go there because her husband had sent violent and threatening letters to both me and her, saying what he was going to do to her and to her family in Pakistan. The next thing I knew, I got a phone call from her and she kept telling me she was in Bradford. I did not understand because she did not speak very good English. She was in Bedford, because she had been put in Yarl’s Wood detention centre.
My constituent had not said anything about her immigration status, which, by the way, was completely legal. She had every right to be in our country. She now has indefinite leave to remain and is working towards British citizenship. The man who attempted to kill her was a British citizen. She had not said anything about her status, but the police had seen the papers on the side from the Home Office and thought, “I know, let’s detain this woman.” The next time her husband tries to kill her, she will not bother calling the police, will she? And neither would I—and it was me who called them in that instance.
The way we behave in this country is a disgrace. The idea that someone could come in and say they had been raped, and we would ring immigration enforcement—that the first thought is “We’ve got another one!”—is unbelievable, yet it happens. But there is a perfectly good, well practised and well measured way of stopping it happening. The Government’s response on this particular issue—which, unfortunately, I have also heard a hundred times—is that sometimes we have to speak to immigration for the benefit of the victim. Now, I speak to immigration on behalf of victims all the time. It is par for the course that I might help a victim with their immigration status. In fact, I helped the woman in the constituency case I just described. She now has indefinite leave to remain and is working towards becoming a British citizen.
It is not that I do not speak to immigration; what I do not do is ring immigration enforcement to cart these people away. There is this idea that the police are helpfully getting in touch with immigration. Well, they do not do that in other cases. When I call the police, nobody asks me, “What’s your immigration status.” Nobody asks me whether I am a British citizen when they come to my house when there has been a crime against me. Why on earth are we doing this? I am afraid that it is part of the very hostile environment towards migrants in our country. How low must we have to be to get our low-hanging fruit from a rape victim or a domestic abuse victim who has every right to live in our country?
The Government’s mealy-mouthed response is no longer acceptable. I hate to change the tone of our debates, but I am so cross about the slow progress when every expert—the Domestic Abuse Commissioner, everybody—has said again and again why the policy is dangerous. The Home Office response is weak, woeful and immoral. I support the new clause.
Edward Argar
I am grateful to the hon. Member for Rotherham for her amendment, and to the shadow Minister, the hon. Member for Birmingham, Yardley. I say this in a nice way: the shadow Minister has not nothing that I have not heard from her before, as I think she acknowledged in her remarks.
The amendment would prevent the sharing of victims’ data between organisations and individuals providing services under the victims code and those enforcing immigration laws. As the hon. Member for Birmingham, Yardley knows, that is a matter for the Home Office, but of course we are all one united Government, so I am responding as the Bill Minister, but I highlight my gratitude to the Home Office for the input that it has provided today.
The Government are fully committed to protecting all victims of crime, regardless of their immigration status. We are also duty-bound to maintain an effective immigration system, to protect our public services and to safeguard the most vulnerable from exploitation because of their insecure immigration status. Immigration enforcement will always seek to protect and safeguard any victim before any possible enforcement action is taken. Indeed, the Home Office routinely helps migrant victims by signposting them to legal advice to help them regularise their stay.
It is important to remember that every case is different and that an insecure immigration status does not automatically mean that somebody will be detained or removed. The decision on what may be the most appropriate course of action is based on many factors that require a full assessment of the individual circumstances. Evidence of vulnerability is an essential part of that assessment and is necessary to ensure effective safeguarding plans to protect victims from harm.
There can on occasion be benefits to sharing information, such as preventing perpetrators of domestic abuse from using a person’s insecure status against them as a means of coercion and control. But I note the counter point put by the shadow Minister, the hon. Member for Birmingham, Yardley, and the hon. Member for Rotherham. According to Home Office figures, of the 211 migrant victims of domestic abuse referred by the police to immigration enforcement between April 2020 and March 2021, none has been detained or removed as a result of that referral.
With regards to support services, the Government are clear that victims of crime are victims first and foremost, and must be able to access support, regardless of their immigration status. There is no mandatory requirement for victim support services to disclose the personal data of victims to immigration authorities; nor is data routinely requested from such services for the purposes of maintaining immigration control.
Jess Phillips
I just gently point out the reason that I think nobody has been detained or deported in that period. It is because there is nowhere to detain them; there is no space in the detention estate.
Edward Argar
I take the hon. Lady’s point, but I would say “or removed” as a result of that referral. Support is provided to migrant victims of domestic abuse in the UK through our destitution domestic violence concession, which enables victims who have entered the UK on a partner or spousal visa to access public funds for three months, which can be used to fund safe accommodation.
Sarah Champion
May I take the Minister back to the point made by my hon. Friend the Member for Birmingham, Yardley? The freedom of information request shows that between May 2020 and September 2022 the details of 600 victims of VAWG were shared with immigration enforcement. The Minister has said that no one was detained or deported on the basis of that, which makes me think that it was not only wrong but incorrect of the officers to collect and share that data because it came to no material outcome. Has the Minister had conversations about that, or can he reassure us that he will look at the College of Policing’s guidance for officers regarding when, how and for what purpose they share such information? Clearly, something is going very wrong in the system.
Edward Argar
I will make two points. First, the data that the hon. Lady was talking about in the FOI covers a different period than the data I was referring to. She is not comparing apples to apples, but I take her underlying point. Officers will follow the guidance and make referrals, but it is not necessarily for them to make fine judgments about the ultimate immigration status or appropriate action. They may make a referral, but it is ultimately not for police officers to make that decision on whether there are grounds for no further action to be taken; that would be for the immigration service.
Sarah Champion
This is a really serious topic. Something is going wrong with the guidance that police officers are, or are not, following. Will the Minister commit to looking into the guidance that officers are being given to see whether it is appropriate to safeguard victims, and to ensure that all the changes he has been working to put in place in the victims code can be operated?
Edward Argar
I will make two points again. First, the data sharing and what is required of the officers is clear. If an action is not taken subsequently to detain or remove someone, that does not mean that the officer was wrong in sharing the information; it is not necessarily for them to make that judgment. Secondly, on the hon. Lady’s request, I am happy to ensure that the Immigration Minister, who is probably on his feet in the House at the minute, is made aware of her point.
Edward Argar
I suspect that he might be. Migrant victims can also apply for settlement—indefinite leave to remain—under the domestic violence indefinite leave to remain rules. The intention is to safeguard victims of domestic abuse by offering them secure status and financial support, independent of their abusive partner. We know that victims of domestic abuse with insecure immigration status can face additional barriers in seeking support from agencies, professionals and others. That is why in April 2021 the Government launched the support for migrant victims scheme, which is being run by Southall Black Sisters and their delivery partners. The scheme provides wraparound support for migrant victims, including accommodation, subsistence and counselling, and is backed by £1.4 million in funding. More than 950 victims have been supported through the scheme since its introduction.
Supporting victims regardless of immigration status, especially victims of domestic abuse, is a key commitment of the Government, but I am afraid that my colleagues in the Home Office and I do not see the hon. Lady’s new clause as the right way to further that work. The victims code touches on every aspect of our criminal justice system, so the new clause’s inclusion of personal data that is processed for the purpose of requesting or receiving support or assistance under the victims code is extremely broad. It would apply a blanket approach to a complex and vast amount of data, regardless of what the data is, where it has been sourced from and why it was originally collected.
Retaining operational discretion so that each case is considered individually, plus ensuring that support is available to those who need it, is the right approach. Knowing the hon. Lady well, I understand the sentiment and intent behind the new clause. It is important that we look at what more can be done to make clearer to victims what is available to them and the processes that they can expect. That is why the Government are committed to introducing an immigration enforcement migrant victims protocol for migrant victims of crime. The protocol will give greater transparency to migrant victims and their dependants on how their data will be shared, and will set out that no immigration enforcement action should be taken against that victim while investigation and prosecution proceedings are ongoing, and while the victim is receiving support and advice to make an application to regularise their stay. As I say, I understand the sentiment behind the new clause, but I regret that we will have to resist it on this occasion.
Sarah Champion
The situation that we are in pains me, and it pains me that the Minister is unable to move forward on this. It is not enough to inform those vulnerable victims; I need to see the police being informed of what they ought, and ought not, to be doing. I will withdraw the new clause, but I assure the Minister that it will come back. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 21
Prisoners: suspension of parental responsibility
“(1) After section 2 (parental responsibility for children) of the Children Act 1989, insert—
‘2A Prisoners: suspension of parental responsibility
(1) This section applies where—
(a) a person (“A”) is convicted of the murder or voluntary manslaughter of another person (“B”); and
(b) A and B had parental responsibility for the same child (“C”) at the time at which the offence was committed.
(2) Subject to the exceptions in subsection (3), A ceases to have parental responsibility for C while A is serving a custodial sentence in a prison or other place of detention in respect of the murder or voluntary manslaughter of B.
(3) The exceptions are where a conviction for manslaughter was made—
(a) as a result of the partial defences provided for in section 54 (partial defence to murder: loss of control) of the Coroners and Justice Act 2009, or
(b) on the grounds of diminished responsibility
in circumstances in which, on the balance of probability, A was a victim of coercive and controlling behaviour by B at the time of the killing or at a time reasonably proximate to it.’
(2) The Secretary of State may by regulations make provision that is consequential on this section.
(3) The power to make regulations under subsection (2) may (among other things) be exercised by modifying any provision made by or under an enactment.
(4) Regulations under this section—
(a) may make transitional and saving provision;
(b) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”—(Ellie Reeves.)
Brought up, and read the First time.
Ellie Reeves
I beg to move, That the clause be read a Second time.
Under the law, if a father is found guilty of killing his children’s mother, he retains parental responsibility over the children. That means that after ending their mother’s life and destroying the children’s lives, such killers still have power over their children—power to be involved in decisions affecting their lives and power to continue controlling and abusive behaviour over the family of their victim. The new clause would end that dreadful situation.
The new clause would reverse the situation in which the onus is on the victim’s family to prove, often through protracted legal proceedings, why the perpetrator’s parental responsibility should be revoked. Instead, the killer’s parental responsibility would be automatically removed for the period they were in prison, and the onus placed on them to go through the legal hoops to prove that they deserve that responsibility. That would apply to all those found guilty of the murder or voluntary manslaughter of the other parent.
The loss of a parent to violence creates deep trauma. We have no official figures for how many children lose their mothers in that way, but we know that two women are killed by their partner or former partner each week. One trauma specialist I spoke with, who has worked with hundreds of children whose mothers were killed by their fathers, estimates that about 50 mothers are killed by the father per year. In those cases, the children are dealing not just with grief, but with the loss of their parent—the mother is almost always the victim in such cases—and with the feelings of anger, shame and confusion that accompany having a father who has committed such an abhorrent act.
Retaining parental responsibility, however, allows those men to continue to exercise control over the children and surviving family from their prison cells. That results in an indefensible situation—his permission must be sought for things such as schooling or medical treatment, or before the children can be taken abroad. That forces the children’s carers, who are often the only stability the children have left, to engage with the killer and his wishes. That can be hugely distressing and, in turn, can potentially destabilise the children’s recovery.
Some abusive fathers even try to block maternal family members from gaining custody of the children they love, leaving the children to grow up in the care system instead. That has left some families unable to see their loved nieces, nephews or grandchildren—for months on end, as legal battles go through the courts—at the exact time when they are needed most to support the children.
The fact that a convicted killer’s parental responsibility cannot be suspended without protracted legal battles is a huge injustice. What greater dereliction of duty towards a child can there be than to rob them of their mother and burden them with a lifetime of trauma? Many are raised knowing that the perpetrator retains intimate knowledge of and access to their lives, which undermines their recovery. For some, that results in fear—they might themselves be in danger—and for others, in decisions made not in their best interest but rather to deprive them of opportunities out of sheer spite.
Children Heard and Seen, a charity that supports children impacted by parental imprisonment, reports that the retention of the father’s rights is a significant traumatising factor in those children’s lives. Children need stability, and their guardians having to fight in the family courts runs counter to that. As I have outlined, our new clause would end that.
I now turn to the case that helped shape the new clause: that of Jade Ward. Jade was 27. She had recently left her former partner when she was murdered by him in her home. Her four young sons were all in the house at the time. Jade’s killer was given a life sentence last year, with the judge calling the attack “merciless”. However, Jade’s family were horrified to find that their daughter’s killer retained rights over the children.
Jade’s parents said that her killer started to cause ripples not long after being sentenced, asking to see the boys’ school reports and attendance notes. They were then informed by social workers that, if they wanted to take the children on holiday, he would have to be consulted, and that he still had the power to take decisions on medical treatment. Jade’s mother said:
“He had lost control of Jade so he did what he did, and now he has still got control because he is controlling the boys and controlling us and it is horrific…He is in prison, but his presence is still looming. Any rights should have been taken away from him the moment he took away their mother…You cannot put into words the added worry and the stress because of him. It means we still can’t move on.”
Jess Phillips
Does my hon. Friend agree that if we were to walk up to anybody in the street and ask them whether a murderous father could decide whether his children could go on holiday, they would think we were mad? Yet that is so clearly the case.
Ellie Reeves
I have spoken to countless people about this situation and frankly, when I say that a dad can retain from his prison cell parental responsibility when he has killed the kids’ mum, they look aghast. They cannot make sense of it; it does not make sense. That is why this new clause is so important.
Sir Oliver Heald (North East Hertfordshire) (Con)
I understand the general point that the hon. Lady is making. Surely there are powers in social services and in the courts to completely remove the parental responsibility in question here. Is that not something that should be exercised? Can the hon. Lady not imagine also that there could be a case where a mother who had been brutalised over a period lost control or perhaps just defended herself so vigorously that it became a manslaughter? In circumstances such as those, we could imagine that the mother’s parents might be looking after the child and she might want to see school reports.
Ellie Reeves
In relation to the right hon. and learned Gentleman’s first point, yes, families can go through the family court to get a special guardianship order. I will say a bit more about that later. However, it puts the onus on the victims’ families to go through protracted, costly and often opaque family law processes for that to happen. That can take years.
Ellie Reeves
But parental responsibility remains, so while that goes on, the dad still has a say.
Ellie Reeves
But they are not heard urgently; it takes years, as in the case of Jade Ward and other survivors and families I have spoken to.
In relation to the second point, I will go on to speak about how those people are specifically protected. Under the new clause, those convicted of manslaughter with a defence of loss of control or diminished responsibility and who at the time of the offence were subjected to coercive or controlling behaviour by the person they killed would not be caught, as there is specific carve-out. I will talk a little more about that as I go on, but I want to end what I was saying about Jade Ward by paying tribute to her family in highlighting the situation and trying to stop other families from facing the suffering they have faced.
I now want to talk about Mumtahina Jannat, known as Ruma, as her case also outlines the injustice that is occurring. Ruma was murdered by her violent ex-husband. On hearing the news, Ruma’s niece, the renowned children’s author Onjali Raúf, went straight to the house to find the children, but they had already been taken straight from school into foster care. She was not allowed to know where the children were or to make contact with them, while from his jail cell the killer was given the phone number of the foster parent and allowed to make contact with them, sending them letters. That is despite the fact that Ruma turned to Onjali and her mother for help when she fled with her children to a refuge five years earlier. Onjali said:
“We saw those kids every other day…Our home was a refuge for them. We would watch films with them and take them on holiday. They were part of our family…We didn’t see the children for over a year. After we were finally reunited with them, they asked us questions that gave us hints about the lies they were being told in those letters. Lies that tried to justify his murder of their mother…That youthful confidence was sucked out of them. And of course they had trouble trusting us again—why would they?”
Commenting on the current situation, Onjali said:
“Until it happens to you, you don’t know how broken the system is…You don’t know it’s geared towards this violent person, who has all the protections and all the rights…There’s no justice. ‘Justice’ isn’t the right name for this system.”
For Onjali’s family, new clause 21, which would change the law on parental responsibility, would be a step towards justice.
There is a school of thought that says that children always benefit from contact with their parent, but that is contrary to the available evidence. I met with Diane Clarke, whose mother was killed in 1978 when Diane was just 10 years old. Her father was charged with murder, which he denied, although he admitted manslaughter. He was sentenced at Birmingham Crown court to just three years in prison.
When her father was released, Diane was sent to live with him. She told me that at the time she felt that that was what she wanted, yearning for a normal family set-up, but as a child she did not recognise the domestic abuse she had witnessed for what it was or that she had been groomed by her dad to disrespect her mum. Only now, as an adult, does she realise the further harm inflicted on her by this living arrangement. She says that she realised she lived in fear that she would anger him and he would kill her too. Let us be clear: this was not an irrational fear, given that he had already killed someone he claimed to love.
New clause 21 would deliver protections for cases such as Diane’s, as it contains provisions for those convicted of voluntary manslaughter to have their parental responsibility suspended. That is necessary, as so many cases of domestic homicide result in a manslaughter rather than a murder conviction. This is often despite long histories of domestic abuse featuring in these cases.
Take, for example, the case of Joanna Simpson. She was killed by her estranged husband, Robert Brown, in 2010. The attack began when Brown was returning their two children, aged nine and 10, after a half term visit. Brown used a hammer he had packed in the children’s bag and bludgeoned Joanna repeatedly. He then put her body in the car with the children in it and took her to the site of a pre-dug grave, where he buried her. Joanna’s friends and family all describe the killing as taking place in the context of long-term abuse, but Brown was convicted of manslaughter rather than murder. It is vital that killers such as Robert Brown are prevented from causing more harm to their children, regardless of what the conviction for killing ends up being. New clause 21 would ensure that.
All the cases I have referred to involve men who have killed women. However, it is right to acknowledge that there are some women in prison for manslaughter having killed their partner after suffering years of domestic abuse—a point made by the right hon. and learned Member for North East Hertfordshire. We recognise the very specific nature of those crimes and that, in such circumstances, the risk to the children presented by the killer is not the same. Therefore, in new clause 21 we have included an exemption where a manslaughter conviction is made on the grounds of loss of control or diminished responsibility and the prisoner had, on the balance of probabilities, been a victim of coercive and controlling behaviour by the person killed at or near the time of the killing. In these rare cases, I do not consider that the mother should automatically lose their parental responsibility. That is why new clause 21 contains the exemption.
I turn to the current system. I appreciate that new guardians can already seek a special guardianship order over the children, meaning that their parental responsibility would trump the perpetrator’s, although they would still need to consult him on some things and would not be able to do certain important things without his consent. However, that still places an extra burden on the family in terms of legal proceedings. Given the abysmal court delays, that is another hurdle for a family that has already been through legal proceedings in the criminal court.
I also understand that the family can seek an adoption order, but that can feel uncomfortable for families as it legally alters the relationship between the children if they are with the family. For example, if they are adopted by their grandmother, she legally becomes their mother and their birth mother legally becomes their deceased sister. But that is beside the point. As Onjali says,
“Why do we even think murderers should have parental responsibility? They forfeited that ‘responsibility’ when they killed their children’s mother. It’s beyond logic.”
New clause 21 would remove the burden of lengthy, stressful proceedings in the family court and give children the security they so desperately need: that their new guardians have responsibility for them and that they are safe.
To conclude, the research is clear that adverse childhood experiences have a huge impact on how children grow and develop. New clause 21 is about doing what is best for the children left behind: safeguarding their rights, protecting them from abusers and trying to give them the best possible means to thrive. It is about valuing the rights of children over those of abusers.
One year on from the petition for Jade’s law, it is indefensible that men who kill their partners, often after long periods of abuse, are still able to exercise control over the surviving children and their guardians from their prison cell. I note the Justice Minister’s comments today outlining his support after months of campaigning from Labour. I also note his comment that he is looking to find a quicker way to cut off parental rights for killers. Today is that opportunity with new clause 21. By voting for it, we can end an indefensible situation and truly make this a Bill for victims. Failing to do so is a vote for more delay, leaving vulnerable children unprotected and victims’ families having to fight through the backlogged courts. I hope that Government Members will vote to support Jade’s law today.
Edward Argar
I thank the hon. Member for Lewisham West and Penge for her new clause, which seeks the automatic suspension of parental responsibility in the tragic circumstances where one parent of a child has been convicted of murdering or committing voluntary manslaughter of the other for the term of their imprisonment for such an offence. I do of course have the deepest sympathy for families dealing with such a tragic event—including the family of Jade Ward, who have campaigned bravely and tenaciously for the change to be made.
The hon. Lady and I debated the issue in November last year in Westminster Hall, following which the right hon. Member for Alyn and Deeside introduced me to Jade’s parents, who were there to listen to that debate. I suspect that this view will be shared by the shadow Minister: I think everyone in that room was struck by their quiet dignity in the face of everything they have had to put up with and endure while campaigning.
Strengthening measures to ensure the safety of children and vulnerable parents continues to be a top priority for the Government and something we remain deeply committed to. I agree that in such tragic circumstances family members who are stepping in to care for the child or children should be better supported, and that, fundamentally, an abusive parent who has committed such a terrible offence should not be able to use family court proceedings as a further way of exerting control or tormenting a tragically bereaved family. As the Lord Chancellor stated in The Sun today,
“It should be presumed that when one parent murders another, denying their child of a loving parent, they should not have the right to make decisions on that child’s life.”
I agree with the Lord Chancellor. He was clearly setting out the view of His Majesty’s Government. It is now a matter of how that intent is achieved.
As the Lord Chancellor has stated, there will of course be exceptions, as the hon. Lady’s amendment recognises, such as victims of domestic violence and domestic abuse who lash out after years of abuse, for whom automatic restriction would not be appropriate. But restricting the right should be the norm. It is right that time is taken to properly look at the options, however, to ensure that exceptions are captured—I will come on to the legal reasons in the light of a recent case in a minute—and we are looking for the quickest way and most appropriate vehicle. The shadow Minister would say we have one in front of us as we sit in this room today, and that might prove to be the case. However, we do not believe this new clause is the right route to remedy this situation.
Jess Phillips
It is good that the Minister is referencing European human rights law, which parts of the Bill seek to undermine. It is good to see that he does not want to dissociate from this part of that law.
I cannot bear to hear the excuse that this is going to take more time. The first case of a murderer who was given parental responsibility was raised in this House in 2016 by my hon. Friend the Member for Hove (Peter Kyle) in a debate on what was then the Prisons and Courts Bill—if anyone can remember that—before Parliament was prorogued, which was then blocked. It was promised that the issue would be put into that Bill in 2016, which fell at an election; it was then promised that it would be put in the Domestic Abuse Bill, which then again fell because Parliament was prorogued. After the harms review in 2019, we were promised that it would be coming down the line. I am sorry, I cannot sit here and hear “This needs more looking at.” We have been looking for years.
Edward Argar
I am grateful to the shadow Minister, but I will go on to explain why I believe the drafting is not necessarily appropriate. I assure her that there are no plans to prorogue or dissolve Parliament in the immediate future that I am aware of.
I would also like to make clear that the courts do have the power to seriously restrict the exercise of parental responsibility when it is in the child’s best interests. I heard the points made by the shadow Minister in respect of that process. I draw hon. Members’ attention to the recent Court of Appeal judgment in the case of Re A, regarding parental responsibility. In that judgment, the President of the Family Division confirmed that Parliament has already given the court the power to empty a father’s parental responsibility of all content and prevent them from making any future applications to the court, regardless of the marital status of the parent or how parental responsibility was acquired. Courts can and do make use of that power when it is appropriate to do so, but crucially, they are able to do so considering all the unique circumstances of the individual case, with the child’s best interests at the heart of their decision. The new clause potentially would remove that ability. However, I take the shadow Minister’s underlying point about how retraumatising and traumatic going through the family court in that context can be.
As I said earlier, I have huge sympathy for the aims of the amendment, particularly in respect of the processes and procedures that bereaved families have to go through in order to achieve the result they desire. We are committed to taking action to address this issue, as the Lord Chancellor has unequivocally set out. In response to the Ward family’s calls for reform, we have asked the Family Procedure Rule Committee in the interim to make the court process less time-consuming and more straightforward for families applying for special guardianship orders and other orders to restrict the exercise of parental responsibility in these or similar circumstances. The committee is actively considering what changes can be made to deliver that. Also, as of 1 May, the Government have extended the scope of legal aid for making special guardianship orders. That means that in private family proceedings where an individual wishes to become a special guardian, they can receive legally aided advice and representation to help them do that, subject to a means test.
I agree that there is more that can and should be done. That is why we are actively working on what changes could be made to the law on parental to rectify the position that the Ward family have highlighted through their campaign, while avoiding unintended or perverse consequences from those changes. We need to fully consider the recent Court of Appeal judgment in the Re A case as part of that.
I am very concerned about the risk that an automatic suspension of parental responsibility could be deemed to breach the child’s rights under articles 6 and 8 of the European convention on human rights, potentially leading to legal action or undermining what we are all trying to resolve here with minimal legal challenge. It is better that we take the intervening months to carefully consider what is the right approach in the light of that judgment, and return—hopefully swiftly—with a fully drafted and carefully considered proposal that guarantees the core principle of the Children Act that the family court should always have the best interests of the child at heart, but that also seeks to address the underlying point, the underlying intention, of the new clause tabled by the hon. Member for Lewisham West and Penge.
This new clause has, as I hope everyone can agree, an entirely noble and uncontroversial aim. We all have huge sympathy for families in these circumstances and want to do as much as possible to support them. I am happy to work with the hon. Lady on this if she so wishes. I will repeat the words of the Lord Chancellor, which set out the Government’s position:
“It should be presumed that when one parent murders another, denying their child…a loving parent, they should not have the right to make decisions on that child’s life.”
I have to say in response to the final point made by the hon. Member for Lewisham West and Penge, with whom I tend to agree—not all the time, but a lot of the time—that on this, I disagree with her. Voting against the new clause is not a vote for doing nothing or a vote to reject a solution that works. It will be a vote for taking the time to get it right.
Ellie Reeves
I have listened to what the Minister has had to say, but the Government have had ample time to bring forward proposals on this matter. A new clause could have been presented by the Government in relation to this Bill. As my hon. Friend the Member for Birmingham, Yardley said, the issue has been being raised since as far back as 2016. We had the debate last November. Therefore the Government have had more than enough time to bring forward proposals. There is a proposal on the table today to end this situation once and for all. That is why I will press new clause 21 to a vote.
Question put, That the clause be read a Second time.
Janet Daby
I beg to move, That the clause be read a Second time.
In discussing new clause 25, I will focus on the Government’s own equality statement on the Bill. Hon. Members will recognise the problem of disproportionalities in criminal justice. Too often, minority groups face unfairness in how they are treated in the justice system. More action is required to identify those inequalities, and where they are identified, they must be tackled.
The new clause requires the Government to lay before Parliament an annual report covering how the Secretary of State has exercised his powers regarding release decisions for top-tier offenders. The report would include how a case is referred, the decision from that referral, and information about the appeal mechanism after referral. All the information will be broken down by protected characteristics.
I wish to make three brief points. First, black and Asian prisoners and those aged 18 to 20 fall into the top-tier category at a higher rate than other parole-eligible prisoners; they are over-represented. That is why the new clause is required: to record such concerns. For some protected characteristics, such as marital status or pregnancy, it would be difficult to identify the impact of clauses 35 to 39, and the equality statement recognises that. However, the new clause requires reporting on all protected characteristics to catch disproportionalities that are not currently identified, but may arise in future. It is also a tool to address wider concerns of disproportionality. Between Committee and Report stages, I hope the Minister will include that point in his consideration of whether to revise the clauses.
Secondly, following recommendations made in the Lammy review, the Ministry of Justice committed to publishing
“more and better data on ethnicity where possible”.
Let us please follow that principle. If a new power is given, information on how the power will affect ethnic minority groups should be published. In response to the Secretary of State’s new referral powers, therefore, I hope he will publish that kind of data. Unfortunately, new powers are often introduced before Ministers are required to publish regular information on the impact of the powers. I hope the Minister will not make this another such example. It is in the Minister’s interest to produce an annual report and to allow parliamentarians to scrutinise the issue, so that he and his colleagues in the Ministry of Justice have more information and can be proactive in tackling inequalities.
That brings me to my third and final point, on victims and public protection. The equality statement highlights the Government’s belief that confidence in the system must be balanced against the case for rehabilitation—I refer Members to page 30 of the equality statement. Unfortunately, I am not yet convinced by that analysis. Building confidence in the parole process is inherently linked to the rehabilitation of offenders. If it is not—as the Government’s equality statement seems to indicate—it will fail to reassure victims and it will undermine the Government’s aim of prioritising public protection.
The impact assessment for the Bill shows that, in recent years, about a third of those who would be classified as top-tier offenders have been released. Even after the Bill gains Royal Assent, top-tier offenders are expected to be released at a similar rate. That is why rehabilitation is essential for victims and for public protection. We must make best use of: rehabilitation opportunities; key work; the use of open conditions where appropriate; and release on licence to facilitate reintegration back into the community. I accept that that will not always be possible, but I expect that the Minister in his reply will agree that a range of options should be available when making a release decision. Perhaps he could reflect on how creating a top tier of offences might better interact with rehabilitation opportunities. That will reassure victims and protect the wider public.
I hope that the new clause encourages the Minister to acknowledge the issues highlighted in the equality assessment, and to consider how we can resolve them as the Bill passes through Parliament.
Ellie Reeves
I thank my hon. Friend the Member for Lewisham East for moving new clause 25. As I outlined earlier, there is concern across the political spectrum about the impact of clauses 35 and 36. I also share my hon. Friend’s concerns about racial disproportionality in our criminal justice system. The equality impact assessment for the Bill finds that the provision it makes for the creation of a top tier of prisoners will disproportionately impact black and Asian prisoners and young adults. As the Prison Reform Trust’s evidence points out, the Government have made
“no provision to mitigate or prevent that discriminatory impact.”
It therefore seems sensible that the Secretary of State should report annually on the use of the powers on release decisions. I am interested to hear what the Minister has to say.
Edward Argar
I am grateful to the hon. Member for Lewisham East for her new clause 25, which would place a statutory duty on the Secretary of State to publish certain information about the cases on which they or another Minister have adjudicated. I fully appreciate the intent behind the new clause. The exercise of the power of the Secretary of State must be transparent, and every decision must be made objectively and fairly. It is vital that we guard against any discrimination or bias in the system. However, we do not necessarily agree that those aims are best achieved by putting the requirement in primary legislation. For the new approach to parole, we would prefer greater flexibility in how and when information is published.
For the avoidance of doubt, I reassure right hon. and hon. Members that the Ministry of Justice welcomes proper external scrutiny of our work. We routinely publish large amounts of data to assist Parliament and the public in their understanding of how the criminal justice system is performing. Of course, it is open to Parliament, following the implementation of the Bill’s provisions, to provide post-legislative scrutiny in questions or in other forums; I might touch on that point in a minute. We are currently working through the implementation issues for the parole reforms in the Bill. We need to take time to consider the full range of data and other information that will be required to enable us to evaluate the new process and ensure that it runs smoothly. We also need to consider what would be most helpful to Parliament.
I reassure the hon. Member for Lewisham East that we will closely consider the items in her new clause as we develop our performance measures. Her points were typically sensible. I confess that I will look at this particularly carefully out of a degree of self-interest, because as a member of the Justice Committee she has a regular opportunity to summon me before her to answer difficult questions. I hope I have reassured her that I will look carefully at what she is suggesting.
Janet Daby
I reassure the Minister that I will be following through on this point: I am sure he will experience me asking him further questions and pressing him on it. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 26
Access to services for victims with no recourse to public funds
“(1) Notwithstanding the provisions of any other enactment, a victim of domestic abuse who—
(a) has leave to enter or remain in the United Kingdom which is subject to a condition that they do not have recourse to public funds,
(b) requires leave to enter or remain in the United Kingdom but does not have it,
(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking,
is entitled to be provided with services in accordance with the victims’ code.
(2) The Secretary of State may by regulations make provision that is consequential on this section.
(3) For the purposes of this section—
‘domestic abuse’ has the same meaning as in section 1 of the Domestic Abuse Act 2020;
‘victim’ has the meaning given by section 1 of this Act.” —(Sarah Champion.)
This new clause would ensure victims of domestic abuse who do not have recourse to public funds are still entitled to be provided with services in accordance with the victims’ code.
Brought up, and read the First time.
Sarah Champion
I beg to move, That the clause be read a Second time.
In effect, I am trying to help the Minister to reach out to all victims, because some are currently unable to access his excellent new code. Evidence suggests that migrant victims are more vulnerable to experiencing serious crime and, at the same time, less likely to receive redress. Migrant victims encounter multiple barriers to protection and safety. The immigration system and the hostile environment policy create structural obstacles to justice. Migrant victims of domestic abuse often face a stark choice: staying in a violent relationship, or deportation and destitution if they leave. Because of their own or their parents’ insecure immigration status and the no recourse to public funds condition, children may also be trapped in those situations.
Improved legal rights are therefore crucial to enabling migrant victims to access lifesaving services and support to escape abuse and rebuild their lives. Southall Black Sisters have been leading a 30-year campaign, to which I pay tribute, to ensure that migrant victims and their children are able to access safety and support. The campaign is calling for the no recourse to public funds condition to be lifted and for victims of domestic abuse to have the right to stay in the UK. That is critical, so that they can obtain welfare benefits and housing from the local authority to escape abuse on the same basis as those with secure immigration status.
I acknowledge that the new clause does not go that far, but it would ensure that, at the very least, migrant victims can access support services under the Minister’s victims code. The current situation is untenable. Many cannot even enter a women’s refuge if they cannot pay their rent or living costs. Many cannot seek help without the fear of being removed from the UK. Many women risk being sent to countries where women face particular ostracism, harassment and honour-based abuse due to the stigma of being separated, divorced or unmarried.
Over the years, Southall Black Sisters have achieved some major reform to immigration policy and rules for those on spousal or partner visas. The introduction of the domestic violence indefinite leave to remain scheme in 2002 and of the destitution domestic violence concession in 2021 has benefited over 1,000 victims every year. However, the provisions do not cover those on other types of visa or those without documents who may be subjected to domestic abuse by partners or family members: they remain unprotected and vulnerable to domestic abuse within the home or to economic and sexual exploitation outside it, as they become destitute and homeless as a consequence. Undocumented victims are particularly vulnerable to the weaponisation of their status by the perpetrator; they can become overstayers through no fault of their own, because they have few rights in this country.
In April 2021, the Home Office introduced the support for migrant victims pilot scheme to provide support for victims of domestic abuse who have no recourse to public funds. The scheme, which is being delivered in a UK-wide partnership led by Southall Black Sisters, has now been extended for another two years to March 2025, pending a longer-term solution. The extension clearly indicates that the Home Office recognises the vital importance of providing financial support to migrant women with no recourse to public funds. The pilot assisted about 400 victims in the first year and 560 in the second.
The first year of the pilot scheme has been externally evaluated by the Home Office, but the results have not yet been published. However, Southall Black Sisters commissioned the child and woman abuse studies unit at London Metropolitan University to evaluate the pilot for the same period. The unit’s report “Living at the Edge” shows that although providing assistance under the scheme is essential, victims need more money for longer, as the current rates are below those for universal credit, despite a recent rise to deal with the cost of living crisis.
Many victims are still unable to access a refuge in areas where there are high rents. Instead, they are housed with their children in unsuitable accommodation such as bed and breakfasts or hotels. Also, some refuges are reluctant to accept referrals if funding is available for only a short period, particularly in complex spousal/partner visa cases, non-spousal/partner visa cases and undocumented cases.
The evaluation recommends an extension of the destitution domestic violence concession and the domestic violence indefinite leave to remain scheme to protect all migrant victims of domestic abuse. The Domestic Abuse Commissioner also recommends the simple extension of those two schemes, which should be available for six months for all migrant victims, pending longer-term solutions. The commissioner’s report estimates that the social gains of supporting migrant victims in that way would be about £2 billion over 10 years, with about 7,700 victims likely to need refuge or other accommodation. That small amount would not place a significant burden on the public purse. More importantly, it would provide crucial safety and support to vulnerable victims and their children.
Based on all the evidence, an extension to the current provision for those on a spousal or partner visa to all victims, irrespective of their immigration status, would be the most simple and effective way of improving access to vital lifesaving services and support for migrant victims. The new clause would help to end the discrimination and the two-tier system that currently exists between migrant and non-migrant victims. I also ask the Minister to commit to ensuring that all migrant victims can access support services under the victims code and that tailored services for migrant victims are funded and resourced.
Jess Phillips
Again: please see other debates from the past eight years about how important this issue is. At least my hon. Friend the Member for Rotherham and I do not have to keep redrafting the amendments. I thank the people in the drafting office for all their help over the years with drafting the same amendment over and over again to put into Bills.
The Government’s response to this amendment, based on previous experience, has been to carve out parts of the Istanbul convention, which they claim to have proudly signed up to, because it will not allow them to renege on helping migrant victims. I recognise the Minister’s point about the previous firewall amendments; I also heavily recognise that he is from the Ministry of Justice, not the Home Office. It is a bit like I am having an argument with a cloud, because the person I am actually cross at is not here to represent themselves. I feel they know I am cross.
I am afraid to say that one of the things that is problematic about the scheme run by Southall Black Sisters in partnership with Birmingham and Solihull Women’s Aid, where I live, is that the Government have never released the documents assessing it. They repeatedly said that they would, but we have yet to see them—another piece of paper that we are waiting for from the Home Office.
I absolutely support new clause 26. I know that the Minister has already quoted The Sun today, and I will simply say that this is not some sort of woke, woolly liberal concern: it was The Sun that backed the campaign to ensure that when a victim of domestic abuse comes forward, we ask not what stamp is on their passport, but what we can do to help. That is the standard we should set, and not keep on having a pilot that is now in its fourth year of existence.
Edward Argar
I am grateful to the hon. Member for Rotherham for this debate on new clause 26, which would put it on the face of the Bill that victims of domestic abuse who do not have recourse to public funds can still receive services under the victims code. While I fear that some of what I will say may disappoint the hon. Lady, it is none the less important that, like her and the shadow Minister, I put on the record my tribute to the work done by Southall Black Sisters and Birmingham and Solihull Women’s Aid, which I suspect the shadow Minister knows very well.
I emphasise that when a crime is committed, our immediate priority is always the welfare of the victim, irrespective of their immigration status. Victims of crime are victims first and foremost. That is why the victims code states:
“You have the Right to services under this Code regardless of your resident status.”
The code does not contain any eligibility requirements linked to immigration status, and victims who have no recourse to public funds are still able to receive support under the terms of the code. That includes right 4, which is the entitlement to be referred to and/or access services that support victims.
We have, however, heard the important point that in practice the recourse to public funds rules in the Immigration and Asylum Act 1999 affect the ability of victims of domestic abuse with insecure immigration status to access some accommodation-based support services that fall under the provisions of no recourse to public funds, for example in relation to rent charges that are paid for via housing benefit. As Members will undoubtedly know, that is why we have made specific, targeted support available to ensure that migrant victims of domestic abuse in the UK can access the right support services, including access to safe accommodation funding through the destitute domestic violence concession, which enables victims who have entered the UK on a partner or spousal visa to access public funds for three months.
As I have previously set out, the support for migrant victims scheme provides migrant victims with support including accommodation, subsistence and counselling. It has supported more than 950 victims since its introduction in April 2021. The pilot scheme and independent evaluation —I note the comments made by the hon. Member for Birmingham, Yardley—will help to establish the evidence base to inform long-term decisions on policy and funding. That includes establishing a clearer picture of the volume of migrant victims with no recourse to public funds who require accommodation and subsistence. My Home Office colleagues will be listening carefully to the points made by the hon. Member for Birmingham, Yardley and will consider the evaluation and other evidence. We have committed to continuing to fund the scheme until March 2025, ensuring that we maintain support for migrant victims of domestic abuse.
I hope that what I have said goes some way towards reassuring the hon. Member for Rotherham of the various ways in which the Government are supporting victims irrespective of their residency status, especially victims of domestic abuse. Crucially, the code is clear on entitlements for victims applying, irrespective of a victim’s residency or immigration status, and on the measures that we are taking to enable access to the right support services. I encourage the hon. Member not to press her new clause to a Division.
Sarah Champion
Of all the amendments that I have tabled, I have to say that new clause 26 was the one that, from the start, I thought the Minister would not support—not because it is a poor provision, but because of the hostile environment towards people from overseas that we now find ourselves in. It pains me that I seem to have been correct about that, even though the Home Office knows that there is a need because it is funding the pilots, for which I am very grateful.
Edward Argar
May I very gently say two things to the hon. Lady? First, my recollection is that the phrase “hostile environment” was first used by a Labour Home Secretary. Secondly, the no recourse to public funds constraint came about in a piece of legislation passed in 1999, when the Labour party was in power.
Sarah Champion
I hear what the Minister is saying. I will say again that Southall Black Sisters have been pushing for this for 30 years, so it has been an issue across multiple Governments. The Minister also has to recognise that in the current climate, my hopes that the right thing will be done towards migrant women are about as low as they have ever been in these past 30 years.
There is an awful lot of support for these measures. We will not give up, but at this point, as I am a realist, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 27
Victim Contact Scheme: annual report
“(1) The Secretary of State must prepare an annual report on the operation of the Victim Contact Scheme and an assessment of its effectiveness.
(2) A report under subsection (1) must set out—
(a) an assessment of how many victims eligible for the VCS—
(i) became engaged with the scheme in the last year;
(ii) are engaged with the scheme overall;
(iii) made a victim statement of any kind;
(iv) challenged a Parole Board decision;
(v) applied for a licence condition;
(vi) chose not to join the scheme;
(vii) chose to join the scheme at a later date than initially invited to join;
(viii) chose to leave the scheme;
(ix) reported not being invited to join the scheme; and
(x) reported that their contact stopped during the scheme;
(b) how many staff were working in the VCS in the last financial year; and
(c) the ratio between staff and those engaged with the scheme overall.
(3) The first such report must be laid before Parliament before the end of 2024.
(4) A further such report must be laid before Parliament in each subsequent calendar year.”—(Janet Daby.)
Brought up, and read the First time.
Janet Daby
I beg to move, That the clause be read a Second time.
New clause 27 arose from a conversation with the Parole Board about how information can be accessed regarding the parole process. I was concerned to hear that, on an alarming number of occasions, there are reports of those eligible for the victim contact scheme getting lost in the system, not receiving the contact that they have opted into and to which they are entitled, and subsequently being left unable to exercise their rights under the victims code. That should not be the experience of victims, and this probing measure seeks to address those concerns and to ensure that the victim contact scheme operates as fully and effectively as possible.
The victim contact scheme gives the victims or bereaved families of serious violent or sexual offences, where an offender receives a custodial sentence of 12 months or more, the right to be kept updated at key points during the offender’s sentence and parole process. Victims are assigned a victim liaison officer and can determine themselves the extent of information that they wish to receive and how they receive it. That can facilitate victims providing a statement during the parole process, or request a licence condition be applied where a prisoner is released. It is a valuable tool in providing reassurance to victims and ensuring that they can exercise their rights. It is vital that it operates as it is intended to, so that victims and bereaved families do not fall through the cracks.
New clause 27 would require an assessment be made of how many victims report not being invited to join the VCS as they should be, and how many report their contact from the VCS stopping when it should not have done so. It would also require that an assessment be made of how many victims are choosing to opt into the VCS or not, and how many of those who do opt in then go on to make a victim statement or apply for a licence condition.
Essentially, the new clause assesses how victims of the most serious crimes are choosing to access information that they are entitled to and to exercise their rights under the victims code. It is the Secretary of State’s responsibility to ensure that victims can access the information to which they are entitled and that they can exercise their rights. The VCS clearly plays an important role in doing that. That is why it is crucial that it operates effectively and does not see victims falling out of the system. I hope the Minister and other Members share that goal. Through this probing amendment, I hope that the Minister will hear the concerns that are being raised and will consider how remedies to those concerns can be included in the Bill.
Anna McMorrin
I thank my hon. Friend for tabling this new clause. The criminal justice system places such a high burden on victims, in terms of the processes that they are expected to understand and take part in, that we need to do more to ensure that victims properly understand the sentences that are imposed and that the parole process is about the assessment of future risk and not punishment.
As the victim contact scheme is an opt-in scheme, it is likely that many victims do not even know of its existence. There are also countless victims with specific communication and access needs who may find it difficult to access the victim contact scheme. We are not furnished with information about how easy or difficult victims find it to engage with the processes; it is very difficult even to find that information. We do not know whether those victims who do engage find their experience beneficial or not. I agree with my hon. Friend that the only way to improve the victim contact scheme is to fully understand its performance—strengths and failures—so that we can know what improvements to it are needed.
Edward Argar
I thank the hon. Member for Lewisham East for her new clause, which would require the Secretary of State to report annually on the operation and effectiveness of the victim contact scheme, including, for example, specific assessments of the number of victims who have joined or left the scheme, submitted victim personal statements or requested licence conditions, as well as the number of staff working to deliver the scheme.
The role of the victim contact scheme is a vital part of how we ensure that victims receive the information they need to help them to understand the criminal justice process from start to finish. Once they are in the scheme, victims have a dedicated victim liaison officer, who will keep them informed of key updates in their case.
The hon. Member is raising the important issue of clear assessments of whether the scheme is working, and it goes without saying that victims should receive the best service. That is why delivery of the victim contact scheme is covered by right 11 in the victims code—the right to be given information about the offender following a conviction—and it will come under the new duties on code compliance in clauses 6 to 11.
His Majesty’s Prisons and Probation Service already routinely monitors the performance of the victim contact scheme, for example in respect of how many victims elect to receive the service. Although we cannot commit to report on everything mentioned in the new clause, at least in the short term, because not all the data is collected in an appropriate format—or, indeed, in some cases collected at all—I hope that I can reassure the hon. Member by saying that we are considering how best to improve what data is collected in the future, as part of the new code compliance data framework.
The Bill provides for sharing and reviewing code compliance information locally through police and crime commissioners, and nationally via reports to the Secretary of State. Our intention is that a new national governance forum will review the code compliance information to pinpoint areas for improvement, and the Bill requires the Secretary of State to publish relevant information for transparency.
As I have said in relation to other amendments and new clauses on code compliance, reporting to the House is a vital part of accountability. We continue to test and develop proposals for the new national governance forum. As always, I am very open to considering how that forum can best report to Parliament. On the basis of not wanting the hon. Member to feel left out over the summer, I am very happy to talk to her about the underlying intent of her new clause, if she so wishes, and to consider whether there are ways within the code compliance approach that we are adopting whereby we might perhaps be able to adopt some of what she is suggesting in that mechanism, if not necessarily in the Bill itself.
With that, I encourage the hon. Member to withdraw the new clause.
Janet Daby
I thank the Minister for allowing himself to be probed and for being considerate about how best to improve the VCS. I gather that he may be very busy over the summer recess, but I will not move the new clause to a vote. I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
Question proposed, That the Chair do report the Bill, as amended, to the House.
Anna McMorrin
As we have reached the end of the Bill Committee, I would like to take this opportunity to thank everybody who has worked so hard on the Bill over the past few weeks and enabled the Committee to have fruitful and mainly co-operative debates about such crucial issues.
My biggest thanks go to the victims and survivors I have worked with over the past two years in the lead-up to the Bill. Their strength and bravery in sharing their truth is the reason that we can advocate and fight for the changes we want to see. They are the real human cost and impact behind the Bill, and they must never be forgotten or sidelined.
I also thank the various stakeholders I have worked with. There are far too many to mention, and I have thanked them as we have gone through the Bill. I particularly want to mention Dame Vera Baird, Claire Waxman, Nicole Jacobs, Ken Sutton and Dr Ruth Lamont, who have worked closely with me on the Bill.
I thank Committee members for their patience, interest and engagement, and the Whips, who have steadfastly done their job throughout the Bill Committee. I thank my Labour colleagues, whose commitment has enabled a wide-ranging, informed and well-researched debate. I particularly thank my Front-Bench colleagues, my hon. Friends the Members for Lewisham West and Penge and for Birmingham, Yardley, for their support.
I also thank the Minister for his tone and his willingness to work together to improve the Bill as it goes to the next stages—no pressure there. I hope we will work together to vastly improve it.
I would like to say a huge thank you to everyone who has kept the Bill moving. I especially thank my parliamentary researcher, Honor Miller, who is watching, for her dedication and commitment day and night. She and I have dedicated our lives to this Bill over the past weeks and months.
I also thank the Clerks, who are amazing, for putting up with all of us and our sometimes ridiculous questions. I thank the Government officials, Hansard and the Doorkeepers, who are amazing. Last but not least, I am grateful to the Chairs—to you, Mrs Murray, and to Ms Elliott, Sir Edward and Mr Hosie—for their patience and commitment.
Edward Argar
You may know what is coming, Mrs Murray.
I echo the words of the shadow Minister, and I am particularly grateful for her kind words. The approach I have taken may have come at the cost of my summer holidays; none the less, it has been an extremely positive experience.
I thank you, Mrs Murray and, through you, your fellow Chairs of this Committee—Ms Elliott, Sir Edward and Mr Hosie. I thank the Clerks, Hansard and the Doorkeepers, who are the people who really keep this place running; we all know our place in that respect.
I am grateful to the Opposition and all three shadow Ministers. I may take it as a compliment that I have three shadow Ministers up against me. I echo the words of the hon. Member for Cardiff North in thanking the shadow Ministers’ team. I have an army of civil servants to help me work on the Bill but, having served in opposition as an adviser to a shadow Cabinet Minister in the past, I know that the burden of opposition falls on a very small number of people—the Front Benchers and those who work with them. It is important that we recognise that.
I am particularly grateful for the tone of hon. and right hon. Opposition Members and for the offers to look at some areas in more detail between Committee and Report, given this is a carry-over Bill. One area that I would particularly like to draw out is on part 2 and the opportunities I hope we have with the right hon. Member for Garston and Halewood to continue working on that. In the Bill as a whole, but particularly in part 2, there is a genuine desire across both sides of the House to ensure that we do our very best to do right by those who have been victims and to create something that, in the sad eventuality that it is needed again, will do right by future victims and survivors.
I put on record my gratitude to the fantastic Nikki Jones, Bill manager in the Department, who has done a phenomenal job of not only steering the Bill to this point but managing my vagaries in suddenly requesting random pieces of information and tweaking policy, possibly on the hoof occasionally. I am very grateful for her patience, her insight and her brilliance in handling both the policy and the Minister. I also thank my fantastic private secretary Matti Henderson for her work in a similar vein in—for want of a better way of putting it—managing the Minister. I thank the whole Bill team in the Ministry of Justice and across Government because this Bill does involve other Government Departments, some of which were highlighted by the shadow Minister. I am grateful to their officials for the work they have done.
I thank all Government colleagues on the Committee for their forbearance, time, insight and—I suspect the Whip will agree with this—phenomenal attendance record for a Bill Committee. I particularly thank my Parliamentary Private Secretary, my hon. Friend the Member for Newcastle-under-Lyme. I thank the Whip on duty, my hon. Friend the Member for Brecon and Radnorshire, both for her stewarding of this through the Committee and because—who knows?—with a reshuffle incoming it is never unwise to do so.
Most importantly, the hon. Member for Cardiff North highlighted why we are doing this; the greatest thanks have to go to the victims and survivors, campaigners and organisations; we must always remember, as we debate, reach agreement on some areas and disagree on others, what we are doing this for.
This Bill is an important step forward. It builds on a strong track record—from those on both sides of the House, when in government—of supporting victims of crime and enhancing victims’ rights. I hope that, as we continue to see the Bill progress through both Houses of Parliament in its remaining stages, we will continue to work where we can to strengthen and improve it, and that at the end of this process we will have an impressive and important piece of legislation.
Bill, as amended, to be reported.