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(9 months, 4 weeks ago)
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The Deputy Chairman of Committees (Lord Ashton of Hyde) (Con)
My Lords, I do not expect it but, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Digital Markets, Competition and Consumers Bill
Wednesday 31st January 2024
(9 months, 4 weeks ago)
Grand CommitteeRead Full debate Digital Markets, Competition and Consumers Act 2024 View all Digital Markets, Competition and Consumers Act 2024 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 12-IV(b) Amendments for Grand Committee (Supplementary to the Fourth Marshalled List) - (31 Jan 2024)
“Duty of the CMA: Citizens interest provisions(1) The Enterprise and Regulatory Reform Act 2013 is amended as follows.(2) After section 25(3) insert—“(3A) When carrying out its functions in relation to the regulation of competition in digital markets under Part 1 of the Digital Markets, Competition and Consumers Act 2024, the CMA must seek to promote competition, both within and outside the United Kingdom, for the benefit of consumers and citizens.””Member’s explanatory statement
This new Clause would give the CMA a duty to further the interests of citizens—as well as consumers—when carrying out its digital markets functions under Part 1 of the Bill.
Baroness Jones of Whitchurch (Lab)
My Lords, Amendment 80 raises the particular issue that was raised at Second Reading: whose interest is the CMA defending? Is it just the users of the product or service, or is there a wider citizens’ interest that needs to be taken into account? I am grateful to the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, for adding their names to this amendment and I look forward to hearing from the noble Lord, Lord Tyrie, on his amendment.
Part 1 has a specific focus on identifying the big tech companies that are so large and powerful that they can be categorised as having “strategic market status”. From the CMA’s operational plan, we know that it aims to identify three or four of these companies, in the first instance, for deep scrutiny about their behaviours and anti-competitive practices. We have a good idea which companies are likely to be in the frame for all this. They are increasingly fundamental to our lives: they help to run our public services, they store our personal data, they shape our purchase choices and social activities, they underpin our research and innovation, and they help to determine the health of our economy. Their wealth is bigger than that of many of the UK’s trading partners and, if they took their business elsewhere, our economy would certainly suffer.
When Part 1 talks about the CMA having regard
“in particular to the benefits for consumers”
that its conduct requirements will bring, you begin to wonder how it will identify the consumer interest, because, in this context, we are all consumers. We argue that this is no longer a transactional process where an individual consumer buys a product or service from one of these companies. Whether we like it or not, the behaviour of these companies influences all our lives, even if, as individuals, we do not engage in the digital world. Of course, this impact will be magnified as the AI applications speed up across our lives and as public services become digitalised.
Our amendment poses the challenge of why the CMA is acting only for consumers when it should be acting in the interests of all our citizens to ensure protection of the greater good. We raised this issue with Ministers when we met them recently and they helpfully sent a follow-up letter, conceding that the DMU taskforce had recommended that the DMU’s overarching statutory duty should be
“to further the interests of consumers and citizens in digital markets”.
It was recognised that competition in digital markets had deep interactions with a range of other issues, such as data privacy and media plurality.
However, the Government rejected the citizens’ interest proposal on the basis that it created some unhelpful overlaps with other regulators. We accept that there is some overlap with the other regulators, particularly Ofcom, but we argue that there are also large swathes of digital competition that do not easily fit under the remits of other regulators. As such, in many digital activities, no one is protecting the interests of citizens as a whole. Also, there is already a requirement for the DMU to consult key regulators before it makes an intervention, which would enable any overlap to be addressed at that point. While the Government are concerned not to make the remit of the DMU too broad, we counterargue that they risk making it too narrow if they do not add in a citizens’ interest provision.
This is clearly a probing amendment and we may well not have found the right wording, but I would be interested to hear the views of other noble Lords about whether these definitions should be broadened to encompass the interests of all citizens in the deliberation of the CMA. I beg to move.
Lord Tyrie (Non-Afl)
My Lords, as well as speaking to Amendment 80, I will say a few words about Amendment 83A in my name, which is in some ways related.
The point just made was extremely important and correct: in whose interests are these bodies acting? The answer should always be people—all of us. Commissioner Vestager, responsible for competition in Brussels, made exactly this point in evidence on several occasions and in a couple of major speeches. She is a far-sighted and bold competition Commissioner. In practice, we are all consumers, so the word “consumer” should probably catch it, but it may not convey quite as much to the public as we would like.
My amendment was triggered by an exchange that I had with the noble Lord, Lord Vaizey, earlier in the scrutiny of the Bill. In response to a question of his to the Minister, I suggested that the CMA always operates under a duty to be proportionate. When I said that, I had in mind not so much the implications of the Human Rights Act for its effect on proportionality but a more general duty to respect best regulatory practice, under which specialist regulators operate, as far as I know. Usually, this is understood to mean transparency, accountability, proportionality, consistency and, where relevant, action targeted only at cases that really require it. Some people talk about efficiency and economy in the same breath. Although I have not found that in any statute, I expect that it is to be found in various statutes.
I have subsequently checked some of this out with the House of Commons Library and others. First, a duty such as I describe is written into the Water Act, the Gas Act, the Electricity Act and the Communications Act, among others, with very similar wording to that which I have just cited. In other words, Ofwat, Ofgem and Ofcom are all subject to such a duty. I have also checked that these duties are justiciable.
Secondly, I made another, unexpected, discovery. As a result of this legislation, the CMA will become an outlier among these specialist regulators. By this legislation, we are giving the CMA specific specialist responsibilities for the digital sector. In other words, it becomes a sector regulator. But, unlike with the other specialist regulators that I have just listed, no such statutory duty to adhere to the principles of best regulatory practice will be required of it. My amendment would correct that omission.
Late last week I discovered that the City of London Law Society had made roughly the same point in its submission on the Bill. The wording in my amendment is pretty much taken from that submission. At the time I tabled it, I had not discussed it with the City of London Law Society and, since then, I have had time only for a couple of minutes with it on the phone. I cannot think of a good reason for not applying this duty to the CMA, but I can think of plenty of reasons why it should be applied.
These duties on public bodies can appear to be little more than motherhood and apple pie but, as I have discovered over the years, they can influence behaviour in powerful public bodies in quite a big way, and usually for the better. I will illustrate that. Take an accounting officer who comes under pressure to do something that he or she considers inappropriate. That happens not infrequently, as those of us who have been on the inside, or on both sides, of the public body fence will know. With a statutory duty in place, the accounting officer is much better protected and placed to be able to say, “I’m not going to go ahead with that”. That is no doubt one of several reasons why these specialist regulators have these duties imposed on them: they serve as a reminder, a backstop, for securing good conduct from those at the top of organisations, particularly those with a high degree of statutory independence.
Now, the Government—on advice, no doubt—will point in response, probably in just a moment, to codes of conduct, guidelines and other documents that already require good regulatory practice. I can see the Minister smiling. I know most of these documents quite well—as a matter of fact, I contemplated reading them out myself, but I will spare the Committee that pain and leave it to him to take the flak. The department’s impact assessments should work, in principle, to provide some of the heavy lifting as well, and they are audited by the NAO. I have seen that scrutiny in action, and it does far less to improve behaviour than a statutory obligation. It is the latter that really concentrates the mind.
More and more as we examine the Bill, the absence of a general duty on the CMA seems to be of a piece with the approach taken right across the draft legislation. We are creating a body with unprecedented powers and unprecedentedly feeble avenues for the securing of accountability. We are creating ideal conditions for executive overreach. All the necessary ingredients are being put in place as we legislate here.
First, there is the long history of patchy to poor scrutiny by Parliament, particularly by the Commons, of the CMA. As I may have pointed out on more than one occasion, I was its very first chairman ever to appear before the BEIS Select Committee, and I secured my audience by request—I said that I really would like to come along—which gives you an idea of the distance between the committee and the activities of the CMA. Of course—and I do not mean this disparagingly to anybody in this House—it is the Commons Select Committee that really counts when it comes to delivering punchy cross-examination and accountability, or at least counts most.
Parliament could do a better job, which I think was the point that the noble Baroness, Lady Stowell, made on Monday, but it would be a profound mistake, even if we got the improvements that she is proposing, to rely exclusively on Parliament to do the heavy lifting.
The first reason why we need this amendment is that we do not have much parliamentary scrutiny. Secondly, we have a body with a historically weak board, with most of the important decisions already delegated to the most senior executives, mixed-quality governance at best and a history of patchy to poor non-executive challenge of executive decisions. I realise that it is concerning that an ex-chairman should feel the need to put that on record, but it is necessary. Thirdly, as things stand, we are protecting the CMA from any substantive review at all of decisions on digital, which is a discussion we had earlier with respect to JR.
A fourth reason why this amendment is needed is that it now seems that the body is to be exempted from the core duties to conform to best regulatory practice which have been considered essential for all other sector regulators that I have checked out. My amendment would rectify that problem at least. I hope that the Minister will look favourably on the suggestion.
Baroness Kidron (CB)
My Lords, I support Amendment 80, to which I added my name. I will also say a few words about Amendment 83A in the name of the noble Lord, Lord Tyrie.
I fear that the word “citizens” might meet the same fate as the word “workers”. The argument will be made that it extends the CMA’s remit in ways that might overburden, create a lack of focus or overlap. However, the digital world has several characteristics that support the amendment in the name of the noble Baroness, Lady Jones, which would add “citizens” to “consumers”.
Lord Clement-Jones (LD)
My Lords, I strongly support Amendment 80 in the name of the noble Baroness, Lady Jones, which I have signed. She spoke powerfully about the power of big tech and its impact on democracy. My concerns, and those of many news organisations such as the Public Interest News Foundation, the News Media Association and the Professional Publishers Association, are consistent with that: we are all concerned to ensure the plurality of media as far as possible, as the noble Baroness, Lady Kidron, mentioned. She also helpfully reminded us of the duty of Ofcom, in Section 3 of the Communications Act, to
“further the interests of citizens”.
It seems to me that the CMA should be subject to exactly the same duty.
Local, specialist and national publishers are an essential part of the fabric of our society. On these Benches, we may have arguments, post Leveson, with some of the mainstream media about the appropriate legislation that should impact on it, but the media play a key role in promoting democracy, by scrutinising the Government with public interest journalism. Additionally, publishers provide vital support to industries, which often rely on the trade press to inform sectoral decision-making and provide what are described as workflow tools. A duty to further the interests of citizens as well as consumers would allow the CMA much better to prioritise media sustainability and more explicitly target anticompetitive conduct that harms media plurality.
It could be argued—I expect that the Minister is going to marshal his arguments—that the current pure consumer focus still allows the CMA to implement solutions that will help to level the playing field between platforms and publishers, but the concern of many of us is that the absence of an interest-of-citizens duty may mean that the remedies that could support a sustainable and plural media and in turn our democracy will be used less effectively than they could be, or not used at all. The argument is powerfully made that we need to include that duty. We have a precedent and there is absolutely no reason why we should not include that in the duties of the CMA.
Turning to the amendment of the noble Lord, Lord Tyrie, Amendment 83A, I feel that this is perhaps something that he expresses throughout the Bill: he has the scars on his back of being the chair of a regulator. It is a surprising omission that these principles are not included. The noble Baroness, Lady Kidron, like the noble Lord, Lord Tyrie, has done her homework and found that the CMA is exceptional in this respect. They both made an extremely good case.
Beyond those principles, how do the Government impose such things as the Better Regulation Framework on the CMA? After all, that is part of the operational standards, if you like, that are expected of a regulator such as the CMA. Not only do I support what the noble Lord, Lord Tyrie, is putting forward, but I also ask how we make sure that the regulator performs its duties in line with what is a relatively new piece of guidance, the Better Regulation Framework, going forward.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
As ever, let me start by thanking the noble Baroness, Lady Jones, and the noble Lord, Lord Tyrie, for drawing attention to and initiating this fascinating debate on the objectives of the digital markets regime with these amendments. Most speakers have anticipated many of my arguments in advance, but I hope none the less to persuade noble Lords of their value.
Clear objectives shape the work of the CMA, ensuring that its focus is on promoting competitive markets that drive better services, greater choice and lower prices for individuals and businesses. It is essential, in the Government’s view, that the objectives of the new regime are equally clear and support a coherent and effective regime. Amendment 80 proposes a duty for the CMA to further the interests of citizens, as well as consumers, in its digital markets work. As the UK’s competition regulator, the CMA’s existing statutory duty is to promote competition for the benefit of consumers. Consumer benefits are broad, as has been observed; they can include economic growth, innovation, media plurality and data privacy. An additional citizens’ duty that goes beyond the scope of the tools and the remit of the digital markets regime would reduce the clarity of the CMA’s role, create inconsistency with the CMA’s wider competition and consumer functions and overlap with the remit of other regulators. It is essential that the duties of the regime match the scope of its tools.
Noble Lords can all agree with the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, on the absolute, non-negotiable importance of supporting the sustainability of the press in the UK. There can be no doubt about the vital contribution of independent journalism to producing informed citizens and, therefore, democracy in this country. However, it would further confuse the regulatory landscape to require the CMA to consider issues already overseen by other expert regulators, such as online safety and data protection. Instead, the CMA will have a duty to consult other key regulators of digital markets, such as Ofcom and the FCA, where proposed interventions in digital markets impact their regulatory interests. This will ensure that the regime forms part of a coherent regulatory landscape that considers broader policy and societal concerns across digital markets.
I want to reassure noble Lords that the Government considered the advice of the CMA’s Digital Markets Taskforce and its recommendation for a citizens’ objective extensively, before consulting on it in 2021. Those we consulted were generally opposed to a role for the CMA that looks beyond its tried and tested duty to promote competition for the benefit of consumers, since this provides the greatest clarity for the digital markets regime. The CMA has testified in front of the House that it benefits from having a single, clear statutory duty. I again thank the noble Baroness for her amendment and for highlighting these important issues. However, for the reasons that I have set out, I hope that she will feel reassured and comfortable in withdrawing it.
I now turn to Amendment 83A from the noble Lord, Lord Tyrie. It would create a new requirement for the CMA to have regard to the principles of best regulatory practice when carrying out its digital markets functions under Part 1 of the Bill. Let me say at the outset that the Government agree with the spirit of the noble Lord’s amendment. Our 2021 consultation on this regime set out the Government’s principles for the pro-competition regulation of digital markets: that it should be transparent, accountable, targeted and coherent. These principles have informed how the regime is designed in legislation, from the high thresholds that we establish for SMS designation to the targeted and iterative nature of conduct requirements and pro-competition measures. Indeed, we have discussed previously in Committee the wide range of accountability mechanisms for the regime.
Earlier this month, the CMA set out its provisional approach to implementing the new digital markets regime, which aligns with our policy intent. The publication committed to the new regime being targeted, proportionate and transparent. It also included a set of operating principles that reflect the noble Lord’s concerns.
The Government’s strategic steer to the CMA sets out our expectation that the CMA should take a proportionate approach to interventions and minimise burden through transparent engagement with businesses. The CMA explains how it has taken the steer into account in its reporting to Parliament. The CMA’s prioritisation principles and annual plan set out that the CMA will target its work to that which provides the most impact for business and consumers. The proportionality amendments that the Government introduced at Commons Report stage are statutory duties narrowly targeted at conduct requirements and PCIs as the decisions that have the greatest impact on SMS firms. This amendment would introduce a very broad duty for the CMA to have regard to the principles of regulatory best practice for all its digital markets functions. An explicit requirement for the CMA to follow best regulatory practice when carrying out its digital market functions is not necessary.
Lord Tyrie (Non-Afl)
Will the Minister explain why what has been considered necessary for, as far as we know, all the other major sector regulators is not considered necessary for the CMA?
Viscount Camrose (Con)
Indeed. While the noble Lord was speaking, I was trying to look for a counter- example but I have yet to find one. I will look for examples of regimes where this does not apply and communicate that to the noble Lord.
Lord Tyrie (Non-Afl)
I am sorry to intervene a second time. When the Minister is looking for counter- examples, I would be grateful if he kept to the major sector regulators, which are the direct comparator. There are more than 500 significant quangos, and I am sure I would be able to find a few quite quickly.
Baroness Kidron (CB)
Before the Minister stands up, may I ask him whether, if he cannot find a counterexample, this amendment may find some favour with the Government?
Viscount Camrose (Con)
I will actively seek a counterexample and consider the implications of my results.
The CMA has a strong track record of following best regulatory practice across all its functions as an experienced regulator. The Government’s view is therefore that it makes sense to legislate only when it is necessary to do so, and that here there does not appear to be a problem that requires a legislative solution. For these reasons, I hope the noble Baroness feels able to withdraw her amendment.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords who have spoken in support of my amendment. I am very grateful. A number of passionate contributions were made. Once again, I was impressed by the knowledge of the noble Lord, Lord Tyrie, and his doggedness in pursuing and getting to the heart of some of these issues. We always appreciate his contributions and the learning we get from them. We have described a couple of his previous contributions as a bit of a curate’s egg, but not this one. I agreed with every word he said and I thank him for that. He made his point extremely well.
Having listened to the noble Lord, it is hard not to agree that the CMA should have the responsibility to have regard to the principles of best regulatory practice. We were just debating why the CMA has to be an outlier, given that other regulators already have this duty. The Minister said that he will try to find a counterexample. The challenge to the Minister is, if he cannot find one among the 500 or so that could be there, will he agree to take this away again and have another look at the Government’s position on this? I was certainly persuaded by the noble Lord, Lord Tyrie, and I think other noble Lords were as well.
I thank the noble Baroness, Lady Kidron, who made a very thoughtful speech. She has been in this field a lot longer than me. As she said, consumers and citizens are two sides of the same coin and, unlike consumers, citizens have a long-term interest. That is the big difference. We need to take that long-term view. She also rightly asked who is defending the interests of future consumers—that is, children. I am not sure that the Minister addressed that issue. I hope that the CMA would have a responsibility to do that. Both she and the noble Lord, Lord Clement-Jones, made the point that Ofcom already has a duty to further the interests of citizens, so I hope that the Minister bears that precedent in mind.
I listened to the Minister and we agree that the CMA needs clear objectives—it has been a theme running through all our earlier debates—but then we get to how to distinguish between the interests of consumers and citizens. In the digital world, in particular, they run into each other. It is not a simple buyer-and-seller market, but a lot more complicated, as a number of noble Lords have said. It is not clear who are consumers, rather than citizens, and what impact the CMA’s decision is having on them. We argue that we need to revisit this issue in the digital world.
I tried to head off the Minister before he spoke about the problem of regulators’ overlap. The fact is that a lot of the business that we are dealing with is not traditionally covered by other regulators, so there is a regulatory gap and it needs to be addressed.
I can see that I have not persuaded the Minister, but I have not given up. I think we are right and that we will probably carry on pursuing the issue but, as I said at the outset, I am not sure I got the wording of my amendment right. We will reflect on what the Minister said and may come back to this later but, meanwhile, I beg leave to withdraw my amendment.
Lord Offord of Garvel
“(c) references to the supply, provision, acquisition or use of goods or services include the supply, provision, acquisition or use of digital content.”Member's explanatory statement
This amendment confirms that references to the supply, provision, acquisition or use of goods or services include the supply, provision, acquisition or use of digital content.
Lord Clement-Jones
Member's explanatory statement
This amendment would restore exemplary damages for collective proceedings, which subsection (1) seeks to remove.
Lord Clement-Jones (LD)
My Lords, I feel that the first cracks in government certainty are beginning to appear. We live in hope that they will increase as time goes on, with the strength of the amendments being put forward today. I will move Amendment 85 and speak to Amendments 86 and 87. I thank the noble Baroness, Lady Jones, for her support for my Amendment 85.
Clause 125 provides for exemplary damages, but explicitly states that they are not to be available for collective proceedings. The usual category of damages for competition law is breach of statutory duty and compensation for harm done and loss incurred. Where, for instance, a platform illegally harms 1,000 businesses, it harms competition but pays out only to those that plead, prove that their harm was caused by the action of the platform and prove their losses in each case. Abuse of dominance by digital platforms affects thousands of businesses; while platforms make multiple billions in profits, abuse may be identified and fines imposed, but competitive markets are damaged and those harmed are often not compensated. This makes the incentive to breach very high and the incentive for compliance very low.
The purpose of exemplary damages, which strip the wrongdoer of their gains, is to incentivise compliance with the law. They are available only where deliberate breach of the law can be proved. This is more likely where breaking the law makes economic sense for the defendants, such as where it has a major impact on a lot of small players that cannot each afford to take a case. Where many are harmed by deliberate illegal action, there is in fact an even greater case for exemplary damages being available. Government recognition that they should be available should be extended to all cases, including collective proceedings.
Exemplary damages are awarded where the defendant will have known in advance that their actions are likely to break the law but decides to go ahead anyway, as they will make more money from breach of the law than from compliance. This is often the case where a calculation is made about the income generated from many and the risk of claim from only a few. The famous Ford Pinto case, where exemplary damages were awarded, was such a case. Ford’s Pinto had a petrol tank that was prone to catching fire when in a crash. Ford calculated the personal injury costs and claims and, rather than recalling the cars and fixing the problem—which would have cost a lot—decided to leave the car in circulation. The risk of claims and payout was calculated to be less than the cost of fixing it. Ford did a cost-benefit analysis and carried on with production. The US courts awarded exemplary damages to ensure that the law was observed. The idea of the right of a court to award exemplary damages is to prevent the defendant profiting from its own wrongdoing. As such, it strips the wrongdoer of the profits gained from the breach and incentivises the defendant to comply and uphold the rule of law.
Failure to be available in collective proceedings looks to be inconsistent with the principle of incentivising defendants to comply and promote the rule of law. Where exemplary damages are claimed in the case, the claimant can seek disclosure of relevant documents from the defendant. As such, the availability of the prospect of exemplary damages will help to uncover deliberate breach. Any proceeding—including collective proceedings—is equally likely to uncover deliberate breaches. The only difference between collective and other proceedings is that collective proceedings affect a category of claimants.
These amendments would ensure that these damages are available in collective proceedings, which are much more likely to uncover deliberate breaches affecting many people. I look forward to hearing what the Minister has to say, but it seems extraordinary that they have been excluded by Clause 125.
I will not steal any of the thunder of the noble Lord, Lord Tyrie, as regards Amendment 128ZA, but I have a terrible feeling that this is another of his Trojan horses being wheeled into proceedings. I very much look forward to what he has to say and thank him in advance for the copy of his letter to the Prime Minister, which rather gives the game away as regards the consumer duty. I beg to move.
The Deputy Chairman of Committees (Lord Ashton of Hyde) (Con)
My Lords, I must inform the Committee that if Amendment 85 is agreed to, I will not be able to call Amendments 86 and 87 by reason of pre-emption.
Lord Tyrie (Non-Afl)
My Lords, I have a couple of amendments in the group on which I would like to speak. They are only dimly related, although I have started to think about ways of connecting them for the purposes of making things vaguely interesting and coherent to the Committee. It is a fairly hotchpotch grouping on that account.
The first amendment I will speak to is on the review of the CAT that I propose. The Competition Appeal Tribunal is a crucial part of the UK’s competition machinery. Its legal work is highly respected and adds credibility to the framework of law in the area as a whole. High-quality legal scrutiny gives firms confidence that they will be treated fairly. From an international perspective, fairness before the law is arguably the UK’s biggest single asset, well ahead of several others often discussed, such as the nexus of high-quality consultancies, top-flight accounting, the attraction of London as a location, time zones, language and even golf courses, which sometimes get a mention.
Baroness Stowell of Beeston (Con)
I am sorry to interrupt my noble friend—if he will allow me to call him that—who is making some incredibly important points. I know that he is a stickler for these things, but this was just about how much time we have and length of speeches. That is all. I am sure that he does not want to underplay the power of his argument.
Lord Tyrie (Non-Afl)
I have to ask the noble Baroness to bear with me for just a short while. I am being asked to speak to two amendments simultaneously, both of which are quite important, particularly the one that we are on now.
I said a moment ago that I would address some of the objections that Ministers may have heard from the department. One will have been that the CMA’s mission statement and underlying purpose implant a focus on consumers into its bloodstream. It is true that the consumer interest forms part of the CMA’s mission statement—it was found on the walls of its offices when I joined—but it is certainly not in its bloodstream. Few organisations with a responsibility to protect consumers have ever been more remote from consumers than the CMA. The intellectual framework behind the statute that it is trying to enforce is similarly abstract and technical. A consumer duty will put the consumers’ interests firmly into the CMA’s bloodstream.
A second argument against the duty that I think the Ministers will have heard will no doubt be that if the CMA takes action on competition, the consumer will always pick up the benefit. In its pure form, this is straight back to the Chicago school justification for competition policy—the approach rolled out across the world 25 years ago. A heap of academic work has now cast doubt on it. In any case, we do not need the academics, as the evidence is all around us that acting on competition alone has not been enough to stop a growth of consumer detriment and a rise in concentration ratios.
A third argument that no doubt will have been put to Ministers is that a consumer duty will get in the way of the Government’s growth objective, but that is based on the mistaken assumption that there is a trade-off between consumer protection and growth—between a healthy, functioning market with caveat emptor and a nanny state. One might characterise this as the free marketeer case against the consumer duty. I am a free marketeer. Many of our markets are not free at the moment; that is the problem. We have a massive and growing asymmetric power in many markets. Nudge, sludge, drip pricing, loyalty penalties and other rip-offs are on the rise everywhere. It is true that we can reduce these abuses by bringing more competition to these markets and that action is overdue, but it has not been strong enough so far to quell the detriment. On the contrary, abuses of market power, both digital and otherwise, have been growing.
The arguments for some form of consumer duty have been set out over the years by those at the sharp end of dealing with detriment for a very long time, not least the consumer groups. I recognise—this will be a relief to the noble Baroness—that the case I have put has touched on only a very small proportion of the arguments that they have developed in great detail over the years. I am strongly tempted, now I have been provoked, to supply her orally with a few of these, but I will resist the temptation. In any case, I have set out a summary of those arguments in numerous forms in writing in 2019-20, and then again just over two years ago. Not much has changed since then, so I will not rehearse those arguments, but I will end by summarising them.
First, a duty will greatly bolster and increase the effectiveness of the duty of expedition and the scope for interim measures that other parts of the Bill will give the CMA. The effect of all three acting together will be much greater than the sum of the parts. Secondly, it will facilitate a change of mindset that is essential for many of our competition regulators, including the CMA. The mindset of the last quarter of a century—that the CMA should restrict itself to acting directly only on competition—was a lot better than nothing, but it has also caused a lot of problems and been partly responsible for the rise in detriment that we can now see around us. Thirdly, a consumer duty will force the courts, particularly the CAT, to give the CMA more scope to act quickly and directly in the consumer interest. Fourthly, unlike most of what we are doing here, it would give us a better prospect of enabling the Government, of whatever political complexion, to have an opportunity to send a clear message to the public that they can expect powerful, independent bodies such as the CMA to act on their behalf.
Lord Holmes of Richmond (Con)
My Lord, it is a pleasure to follow the noble Lord, Lord Tyrie. The Committee certainly benefits from his expertise and experience and he is certainly never hypertrophic.
I shall speak briefly to my Amendment 106, which proposes a new clause entitled: “CMA permission for private enforcement claims”. It is a fairly simple and straightforward amendment and does exactly what the title says. Claimants have to seek permission from the CMA to bring private enforcement claims to the CAT or the High Court. The reason is clear. It is so that when we get to the end of our deliberations the operation of which forum, at what time and by whom is clear and does exactly what Parliament intended. Without this amendment there is potential to bring actions in various fora with different approaches at the same time, potentially muddying the waters and steaming up the windows and not bringing the clarity of procedure which we are seeking to achieve with the Bill.
It is a very clear amendment to have clarity and certainty about which forum at which time and to give the CMA the right to ensure that there is not muddying within the procedure, which is completely avoidable at this stage. I look forward to the Minister’s response.
Baroness Stowell of Beeston (Con)
I shall speak to Amendment 106 in the name of my noble friend Lord Holmes. Before I do, I should just reinforce my sincerity in saying that I think the noble Lord, Lord Tyrie, is making some really important points in his amendments. My concern was only to make sure that he did not lose us in his exposition, which was brilliant. I felt that some noble Lords were starting to drift away, and I did not think that was doing him any service. I want him to know that I am very interested and was tuned in the whole way through.
The reason I want to speak on Amendment 106 is that last week I raised the issue of private litigation and asked why the so-called Ofcom model had not been adopted for the Bill. Just to recap, I point out that the Ofcom model is a measure in the Communications Act which requires private litigants to seek Ofcom’s permission before making a claim to the courts or a tribunal. Its purpose is to avoid the regulator and the courts considering the same issues simultaneously and reaching conflicting findings, as my noble friend Lord Holmes has just colourfully described.
Since I raised this last week, I am very grateful for the Minister’s letter, which has been circulated to all Peers and is now in the Library, which outlined the Government’s reasoning for not adopting the measure in this digital markets regime for the CMA. As noble Lords will have seen from that letter, the Government argue that it would risk politicising the CMA because decisions about whether to approve someone taking a case to the tribunal or the courts would be appealable through judicial review, in the Government’s mind reducing certainty and clarity for stakeholders. They also argue that these issues are less prevalent for breaches of requirements imposed by Ofcom, as the primary route for redress is through the Communications Ombudsman and there is no equivalent function in the digital regime.
The Minister may make the same arguments in response to my noble friend Lord Holmes’s Amendment 106. The reason why I want to raise this again and am taking the opportunity today of doing so is because, even after getting his letter and having further conversations, I remain concerned that leaving the Bill as it stands threatens the participatory approach of the firms designated SMS, because it would disincentivise them to co-operate with the CMA. That participatory approach is critical to the success of the new regime and one of the ways in which it is considered better than the European model. It is also worth knowing that the Digital Markets Act—in other words, the European Commission’s version of this regime—includes a provision to avoid conflict between national courts and Commission rulings.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords who have spoken in this debate. I have added my name to Amendment 85 in the name of the noble Lord, Lord Clement-Jones. He raised an important point about the loss of exemplary damages which could otherwise be awarded for those involved in collective proceedings. In the cases that will be considered under these regulations there may be thousands of small businesses harmed, but only those which prove that harm was done and losses were incurred would be compensated, as the Bill stands. However, it may well be that smaller players cannot afford to take a case, so there needs to be an overarching remedy to ensure compliance with the law, otherwise the defendant may profit from their own wrongdoing. The noble Lord gave some powerful examples to illustrate that. An amendment along these lines should be considered to incentivise the defendants to uphold the rule of law.
The amendment in the name of the noble Lord, Lord Holmes, raises an interesting challenge about the oversight of claims. We agree that it is important that the regulators continue to have a say on the merits of private cases that go to court. They can already intervene in private actions by submitting written observations to the tribunal. The tribunal itself has a role in which it grants a collective proceedings order before a case can go ahead. However, in recent years there has been an increase in the number of private actions brought to court, often by litigation funding firms. These tend to focus on cases where the funders anticipate the largest returns.
In the meantime, the CMA is still trying to focus its public enforcement on cases that will generate the greatest strategic significance and the widest benefit, but its resources are being stretched as the scope of its enforcement power widens. We have to find the right balance between public and private actions to achieve the widest public benefit. We need to take into account the capacity of the Competition Appeal Tribunal to deal with the increased burden of cases. The noble Baroness, Lady Stowell, pointed out that there is a solution to this: the model that Ofcom already uses, which could be used in this case. There may be other solutions, but we need to find a way forward to get this balance right.
At a recent conference Sarah Cardell, the CEO of the CMA, said that the CMA sees public and private enforcement as two complementary parts of a single overall regime. We agree with this approach and, while we are sympathetic to the proposal of the noble Lord, Lord Holmes, we would like to consider the wider functioning of the CAT first.
This leads to the amendments of the noble Lord, Lord Tyrie, who raised significant issues about the workings of the Competition Appeal Tribunal. He obviously has first-hand knowledge of this issue, and I listened carefully to what he said. He shared with us a very deep understanding of the workings of the CAT and the challenges that it faces but, the more that I listened to him, the more that I felt that trying to resolve this with two amendments to this Bill did not seem the right way forward. It felt that this was a bigger issue for another day. Just as the noble Baroness, Lady Stowell, made a fantastic exposition about the issues at stake, I did not want to put my name to those amendments, as I felt that they were too superficial to address the issues that the noble Lord, Lord Tyrie, raised.
Having said that, it might be that a fundamental review of the CAT is necessary or that another way could be found to address this in the Bill. I hope that the Minister listened carefully to the noble Lord’s concern and can offer a way to progress the issues raised by him and others in the debate to ensure that they are addressed. I therefore look forward to the Minister’s response.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Scotland Office (Lord Offord of Garvel) (Con)
I thank noble Lords for their thoughtful amendments and considered remarks during this debate. I start by speaking to Amendments 85, 86 and 87 tabled by the noble Lord, Lord Clement-Jones, which would enable the CAT to award exemplary damages in collective proceedings.
Clause 125 amends the Competition Act 1998 to allow the courts and the Competition Appeal Tribunal to award exemplary damages in private competition claims involving individual claimants, but not in collective proceedings before it. The competition collective proceedings regime was introduced in 2015. This is an important mechanism allowing redress to be sought on behalf of large groups of customers. The bar on the availability of exemplary damages in collective actions was one of the many safeguards put in place when the Consumer Rights Act 2015 was enacted, to ensure a balanced system of collective actions before the CAT which will not lead to a culture of undue litigation and US-style class actions. These safeguards ensure that defendants are protected by avoiding vexatious and unmeritorious claims—or fishing expeditions—while allowing legitimate claims for redress to proceed, without defendants feeling pressurised to settle, despite the likelihood of a strong defence.
While Clause 125 reverses the complete ban on exemplary damages introduced by an EU directive in 2017, keeping the bar in place for collective proceedings before the Competition Appeal Tribunal remains appropriate for the same reasons that it was put in place when the regime was introduced in 2015. I thank the noble Lord and the noble Baroness, Lady Jones, for Amendment 85 and I hope that he feels reassured and comfortable in withdrawing it.
I turn to Amendment 106 on private enforcement, tabled by my noble friend Lord Holmes of Richmond. I thank him and my noble friend Lady Stowell for their contributions. This amendment would require complainants in private enforcement claims to obtain prior approval from the CMA to bring their cases in front of the CAT or High Court.
The ability to bring private enforcement claims through the CAT is an important mechanism for consumers to seek redress. This amendment would add an extra hurdle for claimants and might therefore reduce their ability to access redress and potentially limit their access to justice. Adopting an Ofcom-style approach would provide a very broad power to the CMA, which would unnecessarily add to the existing range of functions that it currently discharges. While this approach may exist in other jurisdictions, the complexity and size of competition private actions and the well-established jurisprudence of the CAT mean that it would not be appropriate in this context.
The CAT already has a specialised, well-established legal framework through which it manages cases, including certifying collective actions. This amendment would risk overcomplicating the existing framework and unnecessarily bring the CMA into highly complex and contentious litigation. I hope that my remarks have helped to address the concerns of my noble friend Lord Holmes of Richmond and that, as a consequence, he does not press his amendment.
I move now to the review of the CAT and the two amendments put down by the noble Lord, Lord Tyrie. Amendment 107A would require the Secretary of State to conduct and publish a review of the performance, governance and operation of the CAT. I thank him for his amendment and for the expertise and wisdom he brings to our debates. The CAT plays an important role in the UK’s competition regime and in providing avenues for consumers collectively to seek redress. It is right that we consider how the CAT operates to ensure that it effectively fulfils these important roles.
The CAT is already subject to significant review and scrutiny. Under the Competition Appeal Tribunal Rules 2015, which govern proceedings in front of the tribunal, the Secretary of State has a duty to review the CAT rules, including making an assessment of how the rules meet the objectives they are intended to achieve. Indeed, the Competition Appeal Tribunal Rules 2015 are currently under review following a post-implementation review in 2021. This process will ensure that the CAT continues to deliver first-class justice expeditiously.
The CAT is also in scope for the public bodies review programme, which assesses the governance, accountability, efficacy and efficiency of arm’s-length bodies. Moreover, the CAT is already subject to a variety of forms of scrutiny by Parliament and the Government. This includes laying its annual report and accounts before Parliament, ministerial appointments to the Competition Service board and regular ministerial oversight as part of departmental sponsorship arrangements.
Given the crucial role it plays in the competition system, it is right that the CAT is sponsored by the Department for Business and Trade. However, the DBT recognises the important commonalities with tribunals under the purview of the Ministry of Justice, and the CAT president and chairman are appointed by the Lord Chancellor through the judicial appointments process. We also continue to encourage the CAT to engage with its counterparts in other tribunals to continue to develop best operational practice. The scrutiny currently in place ensures that it continues to function effectively and deliver a world-class competition regime. For these reasons, I hope that the noble Lord will not move this amendment.
The noble Lord’s second amendment, Amendment 128ZA, concerns
“Economic interests of consumers duty”.
It would place a new duty on the CMA and the CAT when carrying out their functions to ensure that the economic interests of consumers and their protection from detriment are paramount. This amendment also places a duty of expedition on the CAT. The Government considered this issue when the noble Lord, Lord Tyrie, proposed such a duty in his recommendations to the BEIS Secretary of State in 2019 and concluded that this would not lead to improved consumer outcomes. There was no compelling evidence that an overarching consumer duty would allow the CMA to do anything it could not already achieve within its existing remit or that it would increase enforcement levels.
I thank the noble Lord for raising this important issue. We are in full agreement on the importance of protecting consumers, and the Bill stands testament to the Government’s commitment. The Bill will support consumers through new and improved rights, as well as enhanced powers for the CMA and the civil courts to enforce these rights. New measures will protect consumers’ hard-earned cash, boosting consumers’ rights so they have confidence in businesses and markets. However, we do not believe that placing a further statutory duty on the CMA is the right approach.
The CMA’s existing primary duty is to promote competition for the benefit of consumers. This places a clear, unambiguous and paramount duty on the CMA to deliver with consumer benefit as the end goal. We can see the impact of this work: in the three years to 2021-22, the CMA’s competition work delivered £2.1 billion in average annual consumer savings. This is important to the Government, and we have given the CMA a strategic steer to prioritise action in its discretionary activities that addresses cost of living challenges to deliver better value for businesses and individual consumers.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for his comprehensive reply. Nevertheless, I found it extremely disappointing in respect of my Amendments 85, 86 and 87. There was clearly a period between 2015 and 2017 when exemplary damages were available in collective proceedings. He did not adduce any evidence that an undue litigation culture, as he described it, suddenly arose in that two-year period. His use of pejorative language about an undue litigation culture is pretty unhelpful when we are talking about groups of consumers. Other than saying that this would all lead to an undue litigation culture, he really did not deal with the substance of the reasons for having exemplary damages in these cases: to disincentivise the big tech companies simply carrying on, knowing that they were in breach, with impunity. He did not address that at all.
I do not need to tackle the other amendments as we probably need to move on fairly swiftly, but the Minister was more on point when he talked about Amendment 106, because there is a difficulty with it. We should be more sympathetic to Amendment 107A from the noble Lord, Lord Tyrie, but I agree with him that it concerns a big issue. It would be extremely helpful not just to read Hansard but to bring together some of the information about the reviews of the CAT that have been conducted. I am afraid that one of the phrases we have to take away from today is “the CAT has strayed” —any innocent observer passing by would not know what the hell we were talking about; indeed, I think the other phrase was “hypertrophic”. Anyway, we live and learn throughout this but we need reassurance about the fact that the CAT is under review, that its rules are being changed and that it is fit for purpose. The noble Lord brought that up exactly.
I was also not entirely convinced about where the accountabilities are between the Lord Chancellor, the Ministry of Justice and the Department for Business and Trade. There is more to be discussed there.
Finally, I know that the noble Lord, Lord Tyrie, is a big fan of consistency, but I am in favour of the status quo here: I do not agree with his amendment. I liked the Minister’s “unintended consequences” phrase because, if we took this seriously, in terms of paramount interests of consumers, we could be talking about short-term interests of consumers; that could be used by those who want to predatory price—to offer low prices for a while and eliminate competition, only to raise the prices later. We have seen behaviour like that. It is a favourite game of, especially, the big players, to exclude competitors only to re-emerge and raise prices. There are dangers in this “paramount” language, but the Minister has answered that question. In the meantime, I beg leave to withdraw my amendment.
Lord Sandhurst
“(1A) In section 47C of the Competition Act 1998 (collective proceedings: damages and costs), after subsection (5) insert—“(5A) An agreement under which—(a) the funder agrees to provide financial services or assistance in relation to—(i) the provision of advocacy services or litigation services, or(ii) costs that the funded party is ordered by a court or tribunal or in arbitration proceedings, or is otherwise legally obliged, to pay to any other party in relation to litigation; and(b) the recipient of financial services or assistance agrees to make a payment to the funder in specified circumstancesis not a damages-based agreement.”(1B) Where, before the passing of this Act, a person has entered into an agreement covered by section 47C(5A) of the Competition Act (inserted by this subsection (1A)), that agreement is not rendered unenforceable (or deemed to have been rendered unenforceable) by virtue of section 58AA(2) of the Courts and Legal Services Act 1990 and the amendment made by subsection (3) of that section is treated as having always had effect.”Member's explanatory statement
In response to the decision of the Supreme Court judgment in R (PACCAR Inc) v Competition Tribunal [2023] UKSC to ensure that third party litigation funding agreements in respect of proceedings in the Competition Tribunal will (with retrospective effect) not be unenforceable in competition and consumer law, so such agreements will be treated as never having been subject to restriction.
Lord Sandhurst (Con)
My Lords, my Amendments 88 and 89 are of real practical importance to injured citizens, to consumers and to businesses which have to fight large entities to recover just compensation. Clause 126 was introduced at a relatively late stage in the other place to overturn, with retrospective effect, at least some, albeit only a small part, of the damage done by a decision of the Supreme Court in July of last year in cartel litigation known colloquially as PACCAR. Clause 126 is inadequate: it does nothing like enough to overturn the damage which has been done. That decision rendered unenforceable third-party litigation funding agreements entered into by claimants with third-party funders who underwrite litigation. It did so in a way that surprised most who practise in this area, including many judges, including in the Court of Appeal.
The Supreme Court in PACCAR held—this is the important point—that if a litigation funding agreement is to be enforceable by the funder, it must, in terms, comply with the damages-based agreement regulations. Those regulations were not designed for and do not fit litigation funding agreements. There are no, or few, litigation funding agreements drafted to meet the regulations, so they are not valid, and it is difficult to draft one that would be valid. That has serious ramifications for existing and future claims, because there is no civil legal aid. The court’s decision means—this is very apposite—that the Horizon sub-postmasters would not have obtained funding: it would have been unlawful.
There are other examples: equal pay cases, including a current third-party funded case seeking to enforce the equal pay rights of over 100,000 women; SMEs, such as those affected by unlawful interchange fees imposed by Visa and Mastercard; the PACCAR case, which, I understand, involves 17,000 often small hauliers seeking compensation in truck cartel litigation for over- charging—excessive pricing—by the truck manufacturers; the Volkswagen NOx emissions group litigation, which secured nearly €200 million compensation for United Kingdom consumers and which began outside the CAT; sports injury claims, such as those in the High Court by 300 rugby players seeking compensation for the impact of head trauma; and financial mis-selling claims, such as mortgage and personal pension mis-selling or pension transfer claims and secret commissions claims. All these are now without funding.
I think we all believe that our citizens having access to justice is an essential component of a democratic society. It is important to get redress for injury and to believe that you at least have a chance of going to court to seek redress. You may lose, in which case you pay the costs. In the case of funders, they have to pay the costs for the cases they underwrite which fail. An essential element of encouraging competition and a free market is to ensure that consumers and SMEs have effective access to challenge and obtain redress from cartels and others that abuse dominant positions. Both require access to justice, which must be effective—particularly, but not always, in the CAT.
There are two types of representative action with the CAT: so-called opt-out and opt-in. Opt-out cases account for the vast majority and include high-profile examples such as the MasterCard and PlayStation cases. I understand that there is one example of an opt-in case currently in the CAT, which is the PACCAR litigation involving the hauliers. Although the current Clause 126 will put matters right for opt-out cases only, it will not help the opt-in cases in the CAT, nor will it address conventional bi-party litigation in the CAT, where a small company has to go to a funder to get support to bring action for redress against abuse by a large multinational. Worse still, as I outlined earlier, outside the CAT—that is, in the High Court—the current Clause 126 will be of no effect: it will do nothing at all, so many claimants will have no effective access to litigation funding. Group litigation is their only practicable means. I respectfully suggest that this is not an undue litigation culture, and I hope we will not hear that terminology in this context. The key issue is that the PACCAR ruling affects litigation funding in all courts, not just the CAT, and it is claimants’ only means of bringing such cases.
My Amendment 88 would restore legitimacy in the CAT to funding arrangements in opt-in proceedings and two-party actions, and Amendment 89 would restore legitimacy for consumer and competition cases outside the CAT, but only in those categories. It will not do anything, for example, for the sub-postmasters, rugby players, equal pay cases and many other types of legitimate group action. There will be no access to justice for them as matters stand. They remain in the cold because my much wider original amendment was ruled out of scope—I do not criticise the clerks. I anticipate that the noble and learned Lord, Lord Thomas of Cwmgiedd, will address noble Lords on that.
Finally, Amendment 89A by the noble Lord, Lord Hodgson, is sensible—I see no problem with regulation—but there is not much to regulate at the moment. We have to go further down the road and start with getting funding arrangements back on track. Regulation can follow swiftly. People have looked at this; I think a working party is looking at it at the moment.
I understand that the noble Lord, Lord Arbuthnot, who is here, supports my amendments but will not waste our time, if that is the right word—I mean no disrespect—by repeating what I have had to say. I beg to move.
Lord Thomas of Cwmgiedd (CB)
I will follow what the noble Lord, Lord Sandhurst, said and not waste any time repeating the arguments he so eloquently put. I agree completely with his analysis of the mistaken decision of the Supreme Court in PACCAR, and with his explanation of why it is so disastrous for access to justice. I also agree with his analysis of why it is necessary to put forward the two amendments in his name, which I have had the privilege to co-sign, but I will go further and deal with the cases that cannot be covered.
I will underline the Horizon litigation. I do not think an awful lot of people really appreciate that the Horizon scandal, and the miscarriage of justice that occurred, would never have been uncovered if there had not been litigation funding to support Mr Bates and others when they brought their complicated action against a very wealthy body. In Mr Bates’s recent article in the Financial Times, noble Lords will see, from the perspective of someone seeking access to justice, why litigation funding is important. In it, he said:
“Combined with the strength and stubborn defiance of my colleagues, such financing allowed us to take our case from Fenny Compton Village Hall to the High Court, securing justice, exposing the truth and clearing our names and reputations”.
It is essential that we put ourselves in a position where, for the future, someone in his position—as well as, as the noble Lord, Lord Sandhurst, said, infected blood claims, the equal pay claims and all claims by SMEs and others, such as rugby players—falls not within the scope of these amendments but rather outside it.
We sought to put forward another amendment to amend Section 58AA(3)(a) of the Courts and Legal Services Act 1990, on “Damages-based agreements”. We wanted to add a paragraph that would have read:
“An agreement under which … the funder agrees to provide financial services or assistance in relation to … the provision of advocacy services or litigation services, or … costs that the funded party is ordered by a court or tribunal or in arbitration proceedings, or is otherwise legally obliged, to pay to any other party in relation to litigation; and … the recipient of financial services or assistance agrees to make a payment to the funder in specified circumstances is not a damages-based agreement”.
This would have contained a further provision dealing with the position that that was to be treated as “always having had effect”. As the noble Lord, Lord Sandhurst, said, this was ruled out of scope. I have written to say that, if this matter cannot be resolved, I intend presently to have recourse to the procedure set out in paragraph 8.67 of the Companion to the Standing Orders and ask the House to consider the issue of scope. I gather that this is a rare procedure—with my inexperience, I have never come across it—so why am I prepared to take us down this road? There are a number of reasons, but I will give three.
First, access to justice is a fundamental right, and although I would love us all to have legal aid and bring back the position that used to exist, the pockets of the Ministry of Justice are somewhat empty and it does not have the funds with which to restore that, nor can I see any incoming Government of whatever complexion having that funding either. Secondly, it simply cannot be right, because Magna Carta says we should give justice to all people, to say, “We will provide access to justice to those who fall within the definition of consumer or who can bring their claims before the CAT, but the rest of you, no”. Thirdly, there is an international aspect and, in touching on this, it may be helpful to the amendment put forward by the noble Lord, Lord Hodgson.
I declare an interest in that I sit on the advisory board to a group at the European Law Institute which is looking at the whole question of third-party funding. It is looking at it simply because this is a worldwide issue. It is a worldwide market. The concern I had in relation to making this change broader than in the current amendments is that I want our citizens to be able to benefit from that market and not to be excluded. It is quite clear that the market is enormous. The working group of the European Law Institute, which is chaired, coincidentally, by Mrs Justice Cockerill, who was Judge in Charge of the Commercial Court until last year, contains a number of academics and practitioners drawn from across the world, including America, where this is a problem, and a judge from Australia. It is being taken forward because there is felt to be a need to have a clear statement of principles because this is now such a large industry. It is really a matter for the noble Lord, Lord Hodgson, to consider further, but the kind of work being done—it is anticipated that this body will report towards the end of this year or the beginning of next—may provide principles that either can be used on a voluntary self-regulating basis or will enable regulators or legislators to put in place principles that should apply. This is a worldwide industry and I do not wish people in this country to be excluded from it.
Although I do not wish to invoke this procedure today, I very much hope that the department, together with the Ministry of Justice, will look at this issue and see how we can bring about access to justice for everyone, not just a few, because a technical point of this kind is totally beyond the comprehension of any member of the British public. In this House we should not act in such a way as not to give equal justice and access to that justice to all people.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I have Amendment 89A in this group. It is self-explanatory, in that it would require the Government to undertake a review of the operations of the third-party litigation funding industry along the lines that the noble and learned Lord, Lord Thomas, has just mentioned. I am afraid that at present it is a rather confused, not to say murky, area of activity in many aspects.
I shall come to that amendment in a moment, but before doing so I shall say a few tentative words about my noble friend Lord Sandhurst’s Amendments 88 and 89. I emphasise “tentative” because I am not a lawyer and this is clearly a highly technical legal area. I stand second to nobody in wishing to see access to justice for people, but I therefore want to proceed with caution, in particular having seen the legal and parliamentary talent who have put their names to these two amendments.
I mentioned my concerns to my noble friend Lord Sandhurst, and I mentioned them to the noble and learned Lord, Lord Thomas, en route to the Division Lobby the other night. I do not oppose the amendments outright because I support increased access to justice, but I am not yet sure that we would be wise to bring amendments in quickly without further consultation. Much more importantly, we should think carefully about widening class actions in an industry that is already pretty uncontrolled, totally unregulated and unaccountable. My concerns about Amendments 88 and 89 are about not so much access to justice but the sort of justice we may be accessing. We would need to consider those issues further.
I will leave those amendments there and turn to my Amendment 89A, which concerns an area that I have been following for some time, notably in a debate in your Lordships’ House on 2 March 2017, when I was grateful to have the support of my noble friend Lord Faulks and, indeed, of the noble Lord, Lord Stevenson of Balmacara, who spoke for Her Majesty’s loyal Opposition, as they then were. To make the record clear, I had to declare an interest in that debate that I was chairman of a company that provided data to companies engaged in third-party litigation funding. It provided data but did not undertake the actions. My term of office has now come to an end so I no longer have an interest to declare. That is shown on the register but I want to get it on the record.
What were we concerned about those seven years ago? The first question was: how are the funders rewarded? What is the waterfall, as it is known in the trade? For example, can the funders be reimbursed for all their expenses before the claimants receive a penny, or are 100% of expenses deducted from the sum awarded before arriving at the way that sum is split? For example, if there was a 75:25 split, with the claimants receiving 75% and the funders 25%, you might say that is okay, but if the costs of the case are 40%—they are often high—then they actually get 75% of 60%, so 45% not 75%. Those sorts of things are not made clear. We have referred to the Post Office computer system and the scandal about it. It is alleged that, of the first £58 million awarded, £46 million of that went to the funders—80%. I am not saying that is wrong—it is access to justice and people got £30 million that they would not have got—but I am not sure that would have received great public approval outside in the wider world.
Secondly, who controls the case? A lot of these cases are put into a pool and a lump of money is raised from them—£200 million to £500 million, and more. The people who run the funds like to be able to present the whole thing finished as quickly as possible. Let us suppose I am running a fund with 10 cases in it. Nine have finished and I have a pretty good record. I will press to get the 10th finished quickly because I can then turn to my investors and say, “I’ve got the whole thing wrapped up and you’ve got this return. Let’s do it again for a bigger sum of money”. Who is watching to ensure that the plaintiffs in that case are being looked after and are not being rushed to settle because the funder says, “I’m going to settle, whatever the rights and wrongs of the likely payout may be”?
Thirdly, there is the question of exposure to costs. If a case is unsuccessful, can there ever be a situation where plaintiffs could be exposed to costs in the event of the funders walking away? I think my noble friend Lord Sandhurst said that could not happen. He is a lawyer and I am not, but there is a concern that the plaintiffs could be left holding a baby without knowing they are holding a baby—without knowing how much.
Things have grown at scale. We now have a situation in which the number of cases has grown from about 46 million in 2016 to 340 million today. That means that every Member of your Lordships’ House will, knowingly or unknowingly, be part of an average five different class actions today.
Lord Fox (LD)
My Lords, I know the Minister is a big fan of innovation, so the introduction of some innovative procedure by the noble and learned Lord, Lord Thomas, will no doubt have filled him with delight. We all look forward to seeing how that wheels out.
It is a pleasure to follow the noble Lord, Lord Hodgson, who seemed, if he does not mind me saying so, to list second-order problems. How much split of the award you get depends on whether you can bring the case in the first place. If there is no case, there is no 50:50 or 75:25. Earlier, as memory serves, we talked about individual litigants and their ability to form groups, and the Government were set against that process. Here, we are again talking about a system that avoids or stops people getting together to fight the fight. We should remember clearly the power balance that we are talking about here. In the digital field, I used the example of the top five platforms. Their revenue is on the level of that of nation states. In order to fight battles with people, companies and organisations such as that, there needs to be some ability to come together and find the funding.
I am not a lawyer, but I am persuaded by the arguments advanced by the noble Lord, Lord Sandhurst, and the noble and learned Lord, Lord Thomas. When it comes to what the noble Lord, Lord Hodgson, said, there are of course code of conduct issues; generally speaking, when I have been involved in legislation, things such as codes of conduct arrive in secondary legislation, not as part of the primary legislation. I hope that he can join in debating the principle. He is right that the details of the principle are important, but I suggest that they are a second-order issue. With that in mind, what the noble Lord, Lord Hodgson, said, combined with his amendment, looks a little like long grass—
“Make me pure, Lord, but not yet”.
We need to have the debate that will be initiated by the noble and learned Lord, and others, before we start worrying about the industry code of conduct that comes behind it.
Lord Bassam of Brighton (Lab)
My Lords, the Committee should be enormously grateful to the noble Lords, Lord Sandhurst, Lord Arbuthnot and Lord Carlile, and to the noble and learned Lord, Lord Thomas, for bringing forward this group of amendments dealing with litigation costs in group actions. There is real and practical importance for those who will potentially benefit from this when seeking redress. The noble Lords have persuasively argued the case for the amendments in their names. Indeed, the noble Lord, Lord Sandhurst, gave notice that he would bring forward such an amendment with others at Second Reading. He has been good to his word.
At the time, the Minister, the noble Viscount, Lord Camrose, argued that the Government had,
“urgently addressed the potential implications of the judgment”,—[Official Report, 5/12/23; col. GC 1452.]
in the PACCAR case, which had then recently been decided by the Supreme Court. However, the Government’s solution to the problem is, as we have heard from noble Lords this evening, limited to addressing the issue for some claims in the Competition Appeal Tribunal, leaving a big problem for litigation funding agreements—LFAs—used in other proceedings. We note the Government’s view that the Bill is not the right place to deal with the wider issues, but, as currently drafted, this will create a two-tier system in the UK, whereby claimants would have different rights and different access to financial backing, and therefore different legal support, depending on the court in which they pursued their claims. Having listened to noble Lords, that cannot be right if we are to ensure equal access to justice. As the noble and learned Lord, Lord Thomas, argued, the proposed amendment to Clause 126 goes some way to addressing the issue, by widening the scope of agreements that will be placed in the pre-PACCAR position, but it does not solve the problem for cases outside the CAT.
Of course, back in early December, few of us understood the true import of LFAs, but that was before the TV drama, “Mr Bates vs The Post Office”. Now, of course, we are far more conversant with them, and so are the public. Without such arrangements, the sub-postmasters and sub-postmistresses would not have been able to challenge the Post Office in the courts, and that cannot be right.
Currently, for an LFA to be enforceable by the funder for opt-in and opt-out cases, it must comply with the Damages-Based Agreements Regulations 2013. Those regulations were introduced to deal with contingent fee agreements between claimants and lawyers, not funding arrangements with third-party funders. As I have already said, Clause 126 deals with only CAT opt- out cases. I am persuaded that we need a comprehensive solution to the problem.
We understand, as the noble and learned Lord, Lord Thomas, explained, that the noble Lords who have tabled these amendments were unable to bring forward a more comprehensive solution to the PACCAR ruling at this stage of the Bill. I was very interested in what he said because he referenced the Standing Orders of the House and the ability of your Lordships’ House to determine a Bill’s scope. It is, as he said, done rarely but we certainly did it once or possibly twice in my time as Opposition Chief Whip, to the benefit of the House. On those occasions, we sought counsel’s legal opinion, which we posted in the Library of the House. I do not think that we need counsel’s opinion on this case, having a former Lord Chief Justice and other eminent lawyers making the argument.
Assuming that the Minister is unable to offer a solution today, I assure the noble Lords behind this amendment that we will willingly support amendments brought forward to resolve the issue. Since the “Mr Bates vs The Post Office” drama, government Ministers have suddenly woken up to the salience of the issue. There is surely enough goodwill in the political system for colleagues to agree a way forward on this. Legislative time is at a premium, as the Minister will no doubt tell us, and we see this as an opportunity not to be missed and to be used.
I turn to the amendment in the name of the noble Lord, Lord Hodgson, on which he gave a very brilliant exposition. I tried to follow most of it, but I can see the force of his argument. His amendment is eminently supportable. As the noble Lord, Lord Fox, points out, it has the upside for the Government of kicking the issue into the long grass, but there is clearly a need for some review at some stage. However, I hope that the amendment in the name of the noble Lord, Lord Hodgson, becomes otiose if we can see a way forward with the route that has been pointed out by the noble Lord, Lord Sandhurst, and the noble and learned Lord, Lord Thomas, this afternoon. We should be very grateful for those noble Lords, and it is nice to know that, in the noble Lord, Lord Arbuthnot, we have a star of the silver screen in our midst. I am sorry that he is not here to hear the arguments put to his benefit. With that, I look forward to the Minister’s response.
Lord Offord of Garvel (Con)
I turn first to litigation funding and Amendments 88 and 89. I thank my noble friend Lord Sandhurst and the noble and learned Lord, Lord Thomas of Cwmgiedd, for their passionate and eloquent contributions on this important issue, both in this Room and outside.
On Amendments 88 and 89, tabled by my noble friend Lord Sandhurst, I thank him for tabling these two amendments and for giving Members the opportunity to discuss this important issue. It has offered the unique opportunity to hear from a number of noble Lords with unparalleled expertise on the UK’s legal system. As my noble friend outlined, these amendments would reverse the effect of the Supreme Court judgment in PACCAR for competition and consumer claims. This would remove the requirement for litigation finance agreements in these cases to comply with the damages-based agreements regulations.
To be clear, it is government policy to return to the pre-PACCAR position at the earliest legislative opportunity. We are committed to delivering that reversal for all the reasons that noble Lords rightly highlighted, there perhaps being no better example of the benefit of litigation funding than the case of the postmasters impacted by the Horizon scandal. That is why the Government acted within weeks of the Supreme Court’s judgment to mitigate its impact on live collective actions before the CAT.
I and my ministerial colleagues at the Ministry of Justice have been pleased to receive my noble friend’s representations regarding his amendments and the Government’s position on PACCAR. I recognise the efforts that he and colleagues have made, working within the scope of the Bill, to return proceedings in front of the CAT to their pre-PACCAR condition. However, any action taken through the Bill must be aligned with the Government’s intention to return to the pre-PACCAR position across the whole of the justice system, as publicly set out by the Lord Chancellor. I assure noble Lords that we and our colleagues in the Ministry of Justice are examining this matter urgently and considering the best possible way to achieve this objective. In the meantime, I ask my noble friend not to press his amendments, with the assurance that the Government will continue to work closely with him, ahead of Report, to identify opportunities to address his laudable concerns, within the scope of the Bill or elsewhere.
I turn to Amendment 89A on a review of the litigation funding industry, I thank my noble friend Lord Hodgson of Astley Abbotts for tabling this amendment and for his contribution to the debate in this Committee on this important issue. My noble friend raises some important considerations about the litigation funding sector. Ensuring that access to justice is maintained and properly managed is a critical issue, and I welcome this debate.
As my noble friend outlined, this amendment would require the Secretary of State to conduct a review of the application of litigation funding arrangements to competition and consumer law matters. My noble friend’s amendment sets out the factors that he believes such a review should consider. To be clear, although there has been much debate about litigation funding during the passage of the Bill, responsibility for litigation funding remains a matter for the Ministry of Justice. Although I appreciate the limited remit of this amendment, it is right that any review considers the application of litigation funding across the entire justice system.
On competition matters, I note that the CAT rules and guide to proceedings provide for significant scrutiny of funding agreements in collective proceedings, which are looked at as part of the tribunal’s consideration of whether it is just and reasonable for a person to act as a class representative. The CAT has also extensively considered the application of these rules, including in the light of the PACCAR ruling. Although this is not a matter for my department, I assure my noble friend that the Government are already considering options for a wider review of the litigation funding market and its regulation. The Civil Justice Council may be asked to undertake such a review, given the need to ensure access to justice and the attractiveness of the jurisdiction. Given its independence, it may be unhelpful to specify the scope and timing of such a review at this stage. However, I expect colleagues from the justice department to update this House once that review is agreed. To that end, I thank my noble friend Lord Hodgson and hope that he is sufficiently reassured not to move the amendment.
Lord Sandhurst (Con)
My Lords, I am very grateful for the words of my noble friend the Minister. I should perhaps say this in respect of what my noble friend Lord Hodgson had to say: I accepted at the beginning that it is time now for regulation. Funding has been around since at least 2003 and I know, because I acted as leading counsel—I have no interest now—for funders in the case of Arkin. It was, in effect, a failed competition case, and the question was whether it was lawful and so on. To cut a long story short, the Court of Appeal said that the agreement was perfectly lawful; the case having been lost, it ordered the funders to pay the defendant’s costs up to but not exceeding the amount that they had underwritten—a cap, known as the Arkin cap. It is not always followed, but that is the general rule. It may well be that it is time for a review.
I remind the Committee of something that I drew attention to in my Second Reading speech, namely the statement by the then Parliamentary Under-Secretary of State, my noble friend Lady Neville-Rolfe, in Committee on the Consumer Rights Bill on 3 November 2014. In respect of legal litigation funding agreements, as opposed to damages-based agreements, she said that
“there is a need for claimants to have the option of accessing third-party funding so as to allow those who do not have a large reserve of funds or those who cannot persuade a law firm to act pro bono to be able to bring a collective action case in order to ensure redress for consumers. Blocking access to such funding would result in a collective actions regime that is less effective … Restricting finance could also create a regime which was only accessible to large businesses. This would weaken private enforcement in competition law, which is of course not the Government’s wish or intention”.—[Official Report, 3/11/14; col. GC 583.]
I think that is enough said, in the light of my noble friend the Minister’s observations about my noble friend’s Amendment 89A. I am very grateful for what has been said by the Minister about my amendments. I say only this: something will have to be delivered by the time we get to Report, or it will be a very interesting day out in the main Chamber. I beg leave to withdraw my amendment.
Lord Offord of Garvel
“(4) In subsection (7), after “(3)” insert “, (3A)”.8A (1) Section 40 (section 39: supplementary) is amended as follows.(2) In subsection (4), after “section 39(3)” insert “or (3A)”.(3) In subsection (5), before “or (4)” insert “, (3A)”.”Member's explanatory statement
This amendment would amend sections 39 and 40 of the Enterprise Act 2002 so that extensions under the new subsection (3A) of section 39 (inserted by paragraph 8(3) of Schedule 5 to the Bill) are treated in the same way as extensions under subsection (3) of that section.
Lord Offord of Garvel
Member’s explanatory statement
This amendment would make it clear that a period extended under any subsection of section 39 of the Enterprise Act 2002 can also be extended under any other subsection of that section (rather than just specified subsections).
Lord Offord of Garvel
Member’s explanatory statement
This amendment is for consistency with my amendment to Clause 130.
Lord Offord of Garvel
Member’s explanatory statement
This amendment would clarify that references in 40A of the Competition Act 1998, as amended by this Schedule, to maximum amounts of daily penalties are maximums per day, not in total.
Member’s explanatory statement
This amendment would clarify that references in section 111 of the Enterprise Act 2002, as amended by this Schedule, to maximum amounts of daily penalties are maximums per day, not in total.
“24A In section 120 (review of decisions under Part 3), in subsection (2), in paragraph (a), for “(3)” substitute “(1A)”.”Member’s explanatory statement
This amendment would amend the reference in section 120(2)(a) of the Enterprise Act 2002 to section 110(3) of that Act so that instead refers to section 110(1A) of that Act (which this Bill is replacing it with).
Member’s explanatory statement
This amendment would clarify that references in section 174D of the Enterprise Act 2002, as amended by this Schedule, to maximum amounts of daily penalties are maximums per day, not in total.
Lord Offord of Garvel
Member’s explanatory statement
This amendment would clarify that references in new section 35B of the Competition Act 1998, inserted by this Schedule, to maximum amounts of daily penalties are maximums per day, not in total.
Member’s explanatory statement
This amendment would clarify that references in new section 94AB of the Enterprise Act 2002, inserted by this Schedule, to maximum amounts of daily penalties are maximums per day, not in total.
Member’s explanatory statement
This amendment would clarify that references in new section 94AB of the Enterprise Act 2002, inserted by this Schedule, to maximum amounts of daily penalties are maximums per day, not in total.
“12A In section 120 (review of decisions under Part 3), in subsection (2), in paragraph (a), for “94A(1)” substitute “94AA(1)”.”Member’s explanatory statement
This amendment would amend the reference in section 120(2)(a) of the Enterprise Act 2002 to section 94A(1) of that Act so that instead refers to section 94AA(1) of that Act (which this Bill is replacing it with).
Member’s explanatory statement
This amendment would clarify that references in new section 167B of the Enterprise Act 2002, inserted by this Schedule, to maximum amounts of daily penalties are maximums per day, not in total.
“18 In section 179 (review of decisions under Part 4), in subsection (2), in paragraph (a), after “section” insert “167A(1) or”.”Member’s explanatory statement
This amendment would provide that decisions under new section 167A(1) of the Enterprise Act 2002 are not “decisions” for the purposes of section 179 of that Act (because they would instead be able to be appealed under section 114 of that Act, as applied by new section 167B(6) of that Act).
Lord Offord of Garvel
“(za) omit “Regulations made by the Secretary of State under section 68A or”;”Member’s explanatory statement
This amendment, and my other amendment to this Schedule, are to take account of an amendment made by the Energy Act 2023 to section 124(5) of the Enterprise Act 2002 (which this Schedule also amends).
Member’s explanatory statement
See the explanatory statement to my other amendment to this Schedule.
““consumer” means—(a) a person (“P”) acting for purposes that are wholly or mainly outside P’s business, or(b) a person acting in the name of, or on behalf of, P in relation to P’s purposes;”Member’s explanatory statement
This amendment would expand the definition of a consumer to make it explicit that it includes third parties working on behalf of a consumer, as is the case for traders.
Lord Fox (LD)
My Lords, I congratulate the Deputy Chairman of Committees, who once again did a magnificent job. I speak on behalf of my noble friend Lord Clement-Jones to move Amendment 108 and speak to all the other amendments in this group that are in his name—seven in total. Talk has rightly centred on the CMA’s role in standing up for consumers. This whole group focuses on an important area where consumers are in danger of not getting the best possible treatment as a result of the flexing of market power. The amendments are designed to probe the competitive relationship between providers of a service and legitimate third-party agents who sell those services on.
Online intermediaries in marketplaces can serve a valuable role, helping consumers exercise choice and explore a wider range of options for their needs, ultimately supporting competition and innovation, as long as this is done in a transparent manner. Perhaps the most obvious arena for this sort of activity is the travel industry: flights and hotel bookings. There is of course a natural struggle between the provider of services—the airline, for example—online travel agencies or OTAs, and the third player, which is the platform. This is usually Google.
The question that this group poses is: what is the CMA’s role in the competition between these parts of the industry? It also asks: how is consumer choice maintained or enhanced in that activity? My noble friend’s amendments are designed either to explore the need to protect consumers who make bookings through a third-party agent, or to ban activity that could mislead consumers about the merits of booking through a third-party agent. There are of course other elements to these relationships, and I hope this debate can flesh those out as well.
There is certainly evidence that some low-cost airlines are extensively using their market power to advance their own commercial gain while potentially eroding protection and choice and inflating prices for millions of UK holidaymakers. For example, since December 2023, most OTAs have been prevented by Ryanair from booking flights on behalf of consumers. This rendered the OTAs unable to fulfil holidays that include a Ryanair flight. I understand that a consequence of this is that it is almost impossible for consumers to book an ATOL-protected package holiday that includes a Ryanair flight. I do not have full confirmation of that, but that is my belief. It is difficult not to conclude that this blocking was designed to push customers towards booking hotels as well as flights through Ryanair, rather than as part of a package holiday through an OTA. It is easy to conclude that Ryanair was able to do this because of the market power it holds over its routes.
For its part, in a regulatory announcement Ryanair welcomed the removal of its flights from OTA websites, promising lower fares “where necessary” to encourage all passengers to book directly on ryanair.com. The fact that it did not reference the fact that it had caused the removal of the OTAs in the first place, and its use of the phrase “where necessary” regarding pricing, are clear indications of its instinct in this move. I use this example to demonstrate how serious and real things are for this sector and the consumers it serves.
The question for debate here is: how could and should the CMA act to balance the relationships that surround service providers and third-party agents? The relevant provisions here are in Clause 223, on the prohibition of unfair commercial practices, and Schedule 19, on
“Commercial practices which are in all circumstances considered unfair”.
Together, these provisions set out a list of conduct to which the consumer protections in Part 4 will apply automatically in all cases.
The list in Schedule 19 is relatively granular, so it can be extended in scope easily to deal with these issues. For example, as set out in Amendment 136, Schedule 19 could include:
“Refusing to enter into (or otherwise blocking) a transaction with a consumer on the basis that the consumer is acquiring the trader’s product through a third party acting on its behalf”.
Secondly, it could include:
“Refusing (or otherwise blocking) third party agents, acting on a consumer’s behalf, the necessary means to make or manage the consumer’s purchase”,
thereby degrading the consumer experience. Thirdly, it could include:
“Making a materially inaccurate or disparaging claim about third party alternatives through which a consumer could otherwise acquire the trader’s product”.
Fourthly, it could include:
“Imposing higher prices for a consumer who chooses to acquire a trader’s product through a third party acting on its behalf than for a consumer who acquires that product directly, in particular without providing such consumer with a clear, accurate and complete explanation as to the reason for such a price increase”.
Fifthly, it could include:
“Any act or omission which deprives a consumer of sufficient freedom to make an informed choice as to whether to purchase a product directly from a trader or to engage a third party to make such purchase on their behalf”.
We then need to ensure that the protections afforded by Part 3, on enforcement of consumer protection law, and Part 4, on consumer rights and disputes, apply equally to consumers irrespective of whether, for example, they have made flight bookings through OTAs acting as consumers’ agents or they have booked directly with the airline. The relevant provisions of the Bill relating to the definition of a “consumer” are in Clause 147, on relevant infringements, and Clause 223, on the prohibition of unfair commercial practices.
In both cases, the definition of “trader” is already explicitly extended to circumstances in which a person is acting personally or through another third party on their behalf. This concept of indirect consumer-trader relationships should be extended to the definition of “consumer”. A new paragraph should be introduced in Clauses 147 and 223 to make it explicit that it is immaterial for the purposes of that definition whether a consumer chooses to engage with a trader directly or through a third party acting on the individual’s behalf as an agent. These proposed changes are set out in Amendments 108 and 129.
Other references to indirect booking need to be provided for—again, to include the provision that it is immaterial whether a consumer engages with a trader directly or through a third-party agent. The relevant clauses here are Clause 230, on rights of redress, and Clause 243, on the meaning of “transactional decision”. Amendments 145 and 146 would make it explicit that the protections in Part 4 apply to contracts entered into by the consumer with traders, both directly and indirectly.
Given the sort of behaviour already in the market, we also need to introduce the concept of misleading or aggressive commercial practices by a trader, which are designed either to deter consumers from booking through third parties—including OTAs, which book flights on consumers’ behalf as their agents—and/or to prevent such third parties from making such bookings. In other words, we need to outlaw those practices.
This time, the relevant provisions of the Bill are in Clause 224, “Misleading actions”, and Clause 226, “Aggressive practices”. These clauses deem commercial practices to be unfair if they involve misleading actions or aggressive practices that cause the average consumer to take a transactional decision they would not have taken otherwise. A new subsection should be introduced in each of Clauses 224 and 226 to make explicit that, for the purposes of Clause 224(1)(a), “misleading information” includes
“an action where the overall effect is to deter the average consumer from using third party agents to conclude transactions on their behalf, including disparagement relating to such third parties”.
For the purposes of Clause 226, in the context of determining whether a commercial practice uses harassment, coercion or undue influence, account should be taken of
“whether the practice significantly impedes the average consumer’s freedom of choice in respect of whether they choose to make a booking directly with a trader or to use a third-party agent to conclude transactions on their behalf”.
This is the effect of Amendments 139 and 141. The Minister will understand that this is an important example of the potential misuse of market power, to the detriment of consumers. We await his response.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank the noble Lord, Lord Fox, for that introduction. He made an excellent argument about why we should include third parties working on behalf of consumers in the remit of the Bill. As he described, this particularly relates to package travel firms.
Whether using a legacy airline or a low-cost carrier, all of us will have booked flights online. These days we have unprecedented freedom to fit our travel arrangements to our specific requirements and then pay for them at home, at the office or on our phones. But how many of us have had the far less welcome experience of discovering, a few minutes later, that our deal was not as good as we thought and that there were cheaper fares for the same flight? This is frustrating and unfair, and, unfortunately, it is due to deliberate anti-competitive practices, many of which the noble Lord described.
Low-cost airlines—LCAs—have transformed the aviation landscape. They have disrupted the market, offering travellers unprecedented choice and competition. Their rise in the UK has empowered consumers, democratising air travel and making it affordable for a much broader demographic than used to be the case. The greater availability and lower cost of flights to and from the United Kingdom has, in turn, led to the rise of online travel agencies and tour operators, known as OTAs. These offer travellers a wide array of pre-packaged holiday options, which include flights, accommodation and add-on activities. The convenience of being able to plan and book an entire trip from the comfort of one’s home has fuelled the popularity of online package travel. OTAs are becoming extremely popular and convenient ways for families to plan, book and pay for their holidays.
However, in recent years the low-cost airlines, themselves once the industry disruptors, have felt threatened by the newer online travel agencies. The industry is witnessing a growing trend of complex anti-competitive actions aimed at stifling competition. One such tactic is curtailing seat availability to specific destinations, which renders them inaccessible through OTAs or individual bookings unless bundled as airline packages. Another anti-competitive tactic is to introduce cumbersome verification procedures for passengers who book through OTAs rather than directly with the airlines, adversely affecting the consumer experience. Unfortunately, in this battle for market share between the LCAs and the OTAs, the consumers are often the casualties.
The situation is made still more opaque for consumers by the existence of 13 different types of airfare. I am grateful to my noble friend Lord Leong, who has looked into this. He tells me—I will mention only the most common six—that there are normal fares, point-to-point fares, excursion fares, APEX fares, PEX and super-PEX fares, and branded fares. Additionally, some come with specific restrictions, some are non-refundable, others cannot be exchanged or transferred, and none of these restrictions is immediately obvious or consistent with ticket types.
Lord Offord of Garvel (Con)
My Lords, this group of amendments concerns package travel. I will address Amendment 108, along with Amendments 129, 136, 139, 141, 145 and 146. I thank the noble Lord, Lord Clement-Jones, for tabling them and the noble Lord, Lord Fox, for speaking to them so eloquently. These amendments cover the same theme: the use of third parties in contracts between consumers and traders.
I reassure the noble Lord that the protections sought in these amendments are mostly provided for in other parts of consumer law, which I will detail. For example, Clauses 224 and 226 prohibit traders using misleading information or aggressive practices. This prohibition would already cover situations involving a consumer’s decision on whether to use a third-party agent. Similarly, Amendments 145 and 146 seek to make clear in the legislation that a consumer enjoys consumer rights, whether they purchase from a trader directly or via a third-party agent. However, in either situation the contract is between the trader and the consumer, and therefore the consumer benefits from the relevant consumer rights. Amendment 146 focuses on the transactional decisions related to purchases from a trader. Whether the decision is carried out by the consumer themselves or a third party is not relevant. The consumer that the contract is with will receive the relevant consumer rights. The practical effect of Amendments 145 and 146 is already achieved through consumer law.
I shall record two instances in which these amendments would have an adverse and unintended effect and thus why the existing wording of consumer law is set out the way it is. Consumer protection requires a consumer-to-trader relationship for consumer rights to apply. If, as suggested in Amendments 108 and 129, the definition of a consumer were changed to include third-party agents, they would in effect also become consumers in the eyes of the law. That means that the consumer’s relationship with the agent would be classed as a consumer-to-consumer relationship instead. Should there be an issue between the consumer and the third-party agent, the consumer would then no longer benefit from the same consumer rights as ordinarily apply. The amendment suggested by the noble Lord would broaden a very established principle of consumer law with this unintended effect.
I shall conclude my response—including the matters raised by Amendment 136—with reference to travel agents and the sale of package travel holidays, as I believe that may have inspired some of the noble Lord’s amendments. This is a sector in which it is common for consumers to use agents on their behalf. I am aware that issues have arisen between online agents and flight operators. Ministers in my department were pleased to meet representatives from an online travel agent and an airline recently to understand the issues from all perspectives.
Through our markets regime, the Government have ensured that the CMA has significant powers to investigate and act if it finds that businesses are behaving anti- competitively in a market. It is right that those matters are for the CMA to determine itself.
Separately, the Department for Business and Trade carried out a call for evidence on the Package Travel and Linked Travel Arrangements Regulations 2018 during September-December 2023. Those rules set the consumer protection framework for package holidays. It is vital that consumer protections for package holidays, as a key consumer leisure activity and expense, provide strong protections and that regulations support consumers to access choice and a competitive market. I am pleased to confirm that we are now analysing a substantial volume of responses, including from consumer groups, package organisers and suppliers, such as airlines. The operation of airlines and travel agents is governed by PTRs and ATOL. Those are being reviewed. That is the appropriate way to consider these issues.
Given the noble Lord’s interest, once further analysis has been undertaken, I will be eager to share with him the Government’s response to that consultation. I hope that, in light of what I have set out, he will be comfortable to withdraw his amendments.
Lord Fox (LD)
I thank the Minister for his response and for his offer to look through the data, which we will be happy to pick up. I thank the noble Baroness, Lady Jones, for her support and for enlightening me on the intricacies of airline ticketing. I suggest that there may well be a new class Z, which she and I will get, where our luggage gets lost as a result of what we have been saying here today.
Central to the Minister’s response is that all this exists already in some form or other, or the words have not been quite crafted correctly. Saying that the existing protections are there belies the fact that there are problems today. If those existing protections were 100% where they should be, doing what they should, the noble Baroness and I would not be able to stand up and list the problems that exist. It behoves us and the Minister to talk between Committee and Report, including my noble friend Lord Clement-Jones, to set out where there are clear issues at the moment and where there could be changes, even if we did not use the words contained in these amendments.
There are problems, and it would help if the Minister acknowledged that. The existing wording and the use and interpretation of those laws is not solving those problems, so there is something to sort out here, one way or another. With that said, I beg leave to withdraw the amendment.
“(c) the collective interests of consumers include avoiding any detriment that might be incurred by consumers if the United Kingdom does not reach a level of net zero carbon emissions by the year specified in section 1 of the Climate Change Act 2008.”Member’s explanatory statement
This amendment would mean that part of the test of whether a commercial practice had committed an infringement would be whether the commercial practice had failed to protect consumers from any detrimental effects arising from a failure to achieve net zero by the year specified in the Climate Change Act 2008 (currently 2050).
Baroness Jones of Whitchurch (Lab)
My Lords, I shall also speak to Amendment 134 in my name. I am grateful for the support from the noble Lord, Lord Clement-Jones, and the noble Baronesses, Lady Kidron and Lady Bennett, in doing so. I also support the amendments in the name of the noble Baroness, Lady Hayman, and the noble Lord, Lord Holmes, on the issue of the right to repair, and I look forward to hearing their contributions shortly.
Amendment 109 focuses on Part 3 of the Bill, which addresses the enforcement of consumer protection law. It sets out what would be a relevant infringement of the law by a commercial practice or trader. Our amendment would add a simple but important addition to that list. It says that the collective interest of consumers would be harmed by a company if by their actions they prevented the UK from reaching net zero emissions by 2050 as defined by the Climate Change Act.
We know from the latest reports of the Committee on Climate Change and the Office for Environmental Protection that the Government are missing a number of the key targets that would get us to net zero in an organised and timely manner. There are numerous missed opportunities for action, such as slowing down the rollout of electric vehicles and the failure to retrofit homes to save energy. This has not been helped by the decision to create new gas drilling licences in the North Sea.
However, it is not just a government responsibility to deliver net zero; it falls to companies to play their part. For example, every fossil fuel company that ignores its responsibility to move towards renewable energy, and every company that sells products created by the destruction of the Amazon rainforest, is contributing to consumer detriment as global warming impacts the planet. All the advertising companies that promote these products have a responsibility to protect consumer interests too.
In the UK, we are already seeing the adverse impact of global warming, as more extreme weather events become commonplace. Communities that might have been flooded once in a generation now face the heartbreak of properties being flooded every couple of years. Farm crops are being destroyed by drought or flooding, losing farmers their livelihoods. Of course, there are many other examples.
My point is that individuals and communities should have some redress under consumer law for the detriment caused by the companies and traders that deliberately delay or reverse our progress to net zero. This is what our Amendment 109 would go some way to achieve. It may be that we have not got the wording right—this is a probing amendment—but it nevertheless raises a fundamental issue about consumer rights that needs to be addressed.
Amendment 134 adds to the list in Schedule 19, which covers commercial practices which are, in all circumstances, considered to be unfair. It specifies that greenwashing actions, such as those giving the impression that a product is sustainable, is recyclable or has a low carbon footprint when these claims are not supported by evidence, should be considered unfair.
This continues to be a widespread practice. Consumers, particularly young people, want to do the right thing, but they are given no help in making informed choices. The EU has already identified around 230 separate sustainability labels and 100 green energy labels, half of which have weak or non-existent verification. The situation in the UK is no different.
Meanwhile, the Advertising Standards Authority has been slow to act and has ruled against only a tiny number of adverts. Many complaints of greenwashing are not investigated and the barrage of spurious environmental claims is falsely persuading consumers that corporations have embraced their environmental concerns. This greenwashing is all around us and we are not convinced that the existing regulators, including the Adverting Standards Authority, have the resources or the determination to hold the perpetrators to account.
When this issue was raised at Second Reading, the Minister replied:
“This is indeed an important issue, which we hope is already covered by existing regulations”.—[Official Report, 5/12/23; col. 1453.]
This is our point: if it is covered by existing regulations, they are not effective. Therefore, adding greenwashing to the list of banned practices would give consumers new opportunities to challenge the misleading product descriptions and adverts that are commonplace.
I look forward to hearing from other noble Lords who have amendments in this group but, in the meantime, I beg to move Amendment 109.
Baroness Hayman (CB)
My Lords, I declare my interest as chair of Peers for the Planet. I have Amendments 128A and 145A in this group but, before I speak to them, I will say just a couple of words about Amendments 109 and 134, on which the noble Baroness, Lady Jones of Whitchurch, just spoke. I very much support them both. I would certainly have added my name to that on greenwashing, had I not been later to the party than others. Along with the taxonomy for green investments, this is something that the Government have to take seriously if people are to be given the right choices and not deceived about the choices that they make.
My Amendments 128A and 145A cover the right to repair, an issue that Amendment 201, in the name of the noble Lord, Lord Holmes of Richmond, also addresses. They are cross-party amendments, and I am grateful to the noble Baronesses, Lady Ritchie of Downpatrick, Lady Harding of Winscombe, and Lady Bakewell of Hardington Mandeville, for their support. The intent of these amendments is to set a timetable for government to ensure that consumers can more easily and affordably repair their electrical and electronic devices by ending the practices that cause premature and planned obsolescence and ensuring that repair information and affordable spare parts are made available.
Lord Holmes of Richmond (Con)
My Lords, it is a real pleasure to follow the noble Baroness and agree with every word that she said. I particularly applaud the specificity around software and hardware becoming obsolete by software not being maintained by the manufacturers who, in effect, make obsolete well before its time the hardware that sits alongside that.
I rise to speak to my Amendment 201. In many ways, the only build I would put on what the noble Baroness has said is around expanding to broader sectors the whole concept of right to repair. Perhaps before my time, or perhaps not, there used to be a symbol, a mark of quality, on many products: “Made in Britain; built to last”. That can go well beyond these shores, but it is not a bad line to consider when we think about right to repair.
All that my Amendment 201 seeks is for products to have their proper, natural and appropriate life cycle. We are in the middle of an environmental emergency, with difficult macroeconomic headwinds and a cost of living crisis. Right to repair speaks to all these issues. In no sense is it the silver bullet, but it is an important part of what we can practically and effectively and should do. It is not increased, burdensome regulation; it is taking a very British approach to a particular problem and with very little difficulty solving it within this Bill.
Amendment 201 proposes changing the Consumer Rights Act 2015 by inserting a right to repair so that, before a purchase is made, information must be provided on the repairability of a good, including whether it has been produced with repairability in mind, whether there are spare parts and how to access them, and the likely cost involved. Similarly, in situations where repairs can be performed safely by the purchaser, the information required includes whether information exists on how to do so, and, if so, how the purchaser can get their hands on it. It is straightforward and it makes economic, environmental and social sense.
To echo what the noble Baroness said, it is—this is positive—a particularly British way of going about things. We can cut those piles of unnecessary electric waste, change how technology operates and have a positive impact across so many sectors of our economy, positively benefiting our society. I look forward to the Minister’s response; this would be a good amendment to accept.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Lord, Lord Holmes; I agree with the intent if not exactly the detail of his amendment—I will come back to that. It is also a great pleasure to take part in the debate on this group of amendments, so ably introduced by the noble Baroness, Lady Jones, and following the powerful arguments presented by the noble Baroness, Lady Hayman. As at Second Reading, much of what she said about right to repair is exactly what I would have said, so I will not say it again; I will just cross-reference her speech, as I did at Second Reading on the same subject.
I have attached my name to Amendment 109 in the name of the noble Baroness, Lady Jones, as well as her Amendment 134 on greenwashing. Had there been space, I would also have attached my name to the amendments on right to repair. The noble Baroness, Lady Hayman, and I have been having a little race in various groups.
I start with Amendment 109. It is worth reflecting for a moment on the fact that, as a country, we have legally binding climate and emissions targets. The Committee on Climate Change has been awaiting a new chair for 18 months—reports suggest that at least two Members of your Lordships’ House are in line for that and waiting to find out their fate—and its chief executive has just stood down. Despite all that, it put out a statement yesterday—handily, given the timing of today’s Committee—stressing strongly that, following COP 28,
“the obligation on every country is now to push even harder”
on climate action. It said that the UK needs
“even greater domestic climate ambition to reinforce the UK’s international standing”—
something that the Government are often concerned about. Crucially, it noted
“a significant delivery gap to the UK’s Nationally Determined Contribution (NDC) of reducing emissions by 68% by 2030”.
The independent Committee on Climate Change is saying that we are not doing enough, what we have now is not sufficient and we are not meeting the international obligations that we have signed up to. It is in that context that we need to look at Amendment 109, which could be hugely powerful. We are talking about commercial practices failing to protect consumers in the promotion and supply of goods and services by digital means. This relates to the detailed discussion we had on the previous group of amendments about flights and package holidays and the ways in which they are promoted and people are given information about their environmental impacts.
Since our conference in Brighton last autumn, the Green Party has been calling for a ban on high-carbon advertising. The noble Baroness, Lady Jones, may not entirely thank me for this, but I suggest that this amendment, in essence, implies a ban on high-carbon advertising. For the avoidance of doubt, this is a suggestion not that we should stop anyone flying or taking any action that they need to, but about whether we should allow expensive, continual bombardment—on the internet, from digital screens everywhere we go, on public transport and from every quarter—to purchase things that we might not otherwise have purchased.
Lord Lucas (Con)
My Lords, I very much like Amendment 134 and hope that the Government will find their way to supporting it. It seems to me important that, since it is well drafted, we should go down this route of making sure that claims of environmental effectiveness are real.
In that context, I was delighted by the exposition of the noble Baroness, Lady Bennett of Manor Castle, on Amendment 109, which makes it clear that it is a bit of greenwashing: a Labour Government, should we ever have one, would not put this amendment into effect because it is so broad, all-encompassing and dangerous that they would never do it. Labour is merely proposing it now so that it can seem a bit green.
I like the electrical repair direction. When I moved my daughter into her student flat, I was able to test the fire alarm by turning on the Hoover. I am cautious about amateurs repairing electrical goods and, if we did anything along that line, I would want to make sure that it was focused on professional repairs. It is iniquitous that mobile phones are being made with glued-in batteries so that you cannot renew them. Therefore, I very much support the direction that my noble friend Lord Holmes has taken, as something that is implementable now—I like its breadth too—to make sure that consumers are given the information about whether the product they are buying can be repaired and, therefore, will have a good second-hand value and a long life. As we start to focus on the iniquity of throwing stuff away, it will start to move manufacturers, because such products will become more popular.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I speak in support of the noble Baroness, Lady Hayman, on Amendments 128A and 145A—inserting a new clause on the right to repair—to which I added my name. The noble Baroness set out very clearly the arguments that support this detailed and transparent amendment. I regret that I was unable to take part at Second Reading.
I declare my interest in being married to an engineer who believes, as did my father before him, that everything should be capable of repair, and who suffers frustration and fury when he finds that a product has been designed in such a way as to deliberately prevent this from happening. “Planned obsolescence” is the phrase that manufacturers use to justify their manufacturing methods.
As a country, we are already committed to the right to repair through EU regulations of 21 June. This is limited to fridges, dishwashers, washing machines and TVs. However, this provides no consumer protections on the cost of parts, and limits consumer rights of repair to a small number of specified operations. It deprives them of the right to buy parts or even see repair manuals. There is no timeline for extending the right to other electrical or electronic products. We need a general right to repair all electronic and electrical products now. Otherwise, we will wait until 2030 just to legislate for a few consumer products at a time. Consumers are struggling to make their money go round; repair and reuse would help them now.
The evidence suggests that the UK is falling behind. The EU has legislated for access to software updates for five years, and spare parts and manuals for mobile phones and tablets for at least seven years after a product is withdrawn. It mandates repairability information for consumers at the point of sale, and it is now in trilogues on a more far-reaching right to repair, including prioritising repair over replacement inside guarantee, and the right to repair at a reasonable cost outside guarantee.
As has been said, this is not limited to the EU. Six US states have already legislated for right to repair, with 10 more considering legislation to start this year. These right-to-repair laws cover a range of products, from smartphones to farm equipment, and offer consumers access to spare parts, tools, and repair information to enable repair for minimum periods.
The Government’s argument against this amendment is that it will be burdensome for manufacturers, especially smaller manufacturers, but its effect would be to require firms to retain some spare parts and manuals, and make arrangements for paid-for repair, as they already have to for some kitchen goods and TVs for five to seven years. This is not disproportionate.
Current restrictions on the right to repair favour larger firms over smaller employers, such as independent repair companies and parts suppliers. This is why the amendment proposes banning within one year the most egregious anti-competitive and anti-consumer measures pursued by larger firms. The legislation allows five years for the Government to legislate for the right to repair in order to get the legislation right. Were the Government minded, they could exclude the smallest manufacturers to give them more time to comply.
I am at a loss to see how this might stifle innovation by industry. The amendment would put consumers in the driving seat by enabling them to choose when to switch to more innovative products when it is in their interest, rather than be forced to do so by prohibitively expensive or unavailable spare parts, or by perfectly functional products that stop working only due to software updates. Surely the Government want the consumer to be in control.
The right to repair is genuinely popular. Research by Cardiff University found that 65% of respondents are regularly frustrated by products that break before they should; 62% believe products are currently too difficult to get repaired; 75% agree that the Government should require manufacturers to make products more repairable; and 85% support expanding the right to repair to cover all consumer products. Men’s sheds and repair shops are springing up all over the place in our market towns. Repair is popular.
I know from my own experience that a quote for a repair can be eye-watering and that I can buy a cheaper model that does the same job, especially when it comes to washing machines, dishwashers, and fridge-freezers. Households on tight budgets are forced into a cycle of regularly replacing cheap machines with new cheap machines, rather than repairing existing machines to keep them in use for longer. This also leads to the cost of disposal of the redundant machine, often resulting in fly-tipping—the scourge of the countryside.
Throwaway products are fuelling climate change, growing our toxic waste mountain and ripping off the British public. People are stuck in a cycle of throwing things away and then buying costly new electronics, which is bad for their wallets and bad for the environment. Right now, the UK is the second-largest producer of electronic waste in the world per capita, as the noble Baroness, Lady Hayman, said; it is worth repeating. Too often, inefficient waste management is prioritised over waste prevention. This has to be minimised. This amendment would address these issues.
I turn to the other amendments in this group. Amendment 201 in the name of the noble Lord, Lord Holmes of Richmond, is very similar in essence to Amendments 128A and 145A. We support it as a means of ensuring that consumers are protected in terms of repair and maintenance.
Amendments 109 and 134, in the name of the noble Baroness, Lady Jones of Whitchurch, attempt to ensure that consumers are protected. They would help the country move towards net zero and would assist with climate change mitigation. Consumers are reliant on the information provided for them and this has to be accurate. Greenwashing tactics need addressing. Both the Government and the CMA must ensure greenwashing does not happen, or is at least minimised. We support all the amendments. We are all singing to the same tune; there is cross-party support across the Committee and I look forward to the Minister’s positive response.
Lord Offord of Garvel (Con)
My Lords, on this group of amendments on net zero and the collective interests of consumers, I thank the noble Baronesses, Lady Jones and Lady Bennett, for their Amendment 109, which would explicitly provide that consumers’ collective interests include avoiding any detrimental effects that they may incur by not reaching net-zero carbon emissions by 2050. I am grateful to the noble Baronesses for raising the important issue of protecting consumers during the transition to net zero. At present, where environmental issues arise, the court or enforcers already have the requisite powers to take action, including by tackling misleading green claims which affect consumers’ purchasing decisions. In addition, in its annual plan, the CMA listed
“helping to accelerate the UK’s transition to a net zero economy”
as one of its priorities.
We are already making strong progress towards net zero by 2050. The UK has reduced its emissions further and faster than any other major economy. To that end, we feel that there are sufficient measures already in place to protect consumers during the transition to net zero. I hope that the noble Baroness, Lady Jones, will feel sufficiently reassured to withdraw her amendment.
On the right to repair, I thank my noble friend Lord Holmes and the noble Baroness, Lady Hayman, for their Amendments 128A, 145A and 201 and, in the latter case, for our recent discussion on the issue, where we had much of a meeting of minds.
The Consumer Protection from Unfair Trading Regulations 2008 are being restated in the Bill and prohibit unfair commercial practices. These include misleading actions which are likely to affect a consumer’s decision-making, so consumers are already protected from misleading statements made by traders on the availability of spare parts. Furthermore, there is a range of activity across government presently which support the aims of the proposed amendments, which in summary focus on sustainability and ensuring that products are repaired, where feasible.
The Department for Energy Security and Net Zero’s eco-design initiative aims to encourage the uptake of products which use less energy, resources and materials through product-specific regulations. The Department for Environment, Food and Rural Affairs is responsible for waste and resources policies, including preventing waste occurring in the first place. Both departments work with the DBT to ensure that, over their lifetime, products use less energy. This ultimately saves carbon, reduces waste and helps households and businesses to reduce their energy bills.
New and updated eco-design measures introduced in summer 2021 have, for the first time, included requirements for manufacturers to make spare parts available and replaceable with commonly available tools, as well as to provide information to professional repairers to assist with repairs. These new requirements cover dishwashers, washing machines and washer-dryers, refrigeration appliances, televisions and other electronic displays. The measures will help to establish a “right to repair” for consumers, as part of a more resource-efficient economy. Defra has recently set out aims in its new waste prevention programme to move to a circular economy by keeping goods in circulation for as long as possible and at their highest value. This includes increasing the reuse, repair and remanufacture of goods. We are consulting now on reforms to the Waste Electrical and Electronic Equipment Regulations and will consult later this year on reforms to the batteries regulations. We have also launched a separate call for evidence on reforms to the WEEE regulations to seek views on how they can further support the circular economy by incentivising more sustainable product design and higher levels of reuse of electrical products.
Further, from 29 April 2024, the new product security regulatory regime will require manufacturers to publish information on the minimum length of time that security updates will be provided for consumer connectable products. However, mandating a minimum security update period before the impact of these measures is known could run the risk of imposing obligations on businesses disproportionate to a product’s lifespan and any associated security benefits. The Government have committed to a post-implementation review of these new measures to understand their impact before any further action is considered.
Similarly, adding rights to repairability to consumer law now will oblige retailers to pre-emptively seek information from the manufacturers of products that they sell. More work is required before this is suitable for the Government to ask. In the meantime, it would mean greater costs and a reduction in choice for consumers. It may also have implications for our WTO and international treaty compliance, as it would constitute a new technical barrier to trade about which we would need first to notify and consult partners.
Lord Fox (LD)
I welcome what the Minister says, in some respects. Will the issue of updating electrical and electronic products be part of that review, too? In other Bills, we have discussed who has the obligation to maintain software updates for equipment from the perspective of safety as well as longevity. I hope that the review takes that into consideration, too.
Lord Offord of Garvel (Con)
I thank the noble Lord, Lord Fox, for that. There is a lot of information, and it is reasonable that I write to the noble Lord about the gamut of the consultation that is going on. As I said in response to the noble Baroness, Lady Hayman, a lot of consultation work is going on in the two main departments—business and Defra. It is therefore only fair that we spell that out, and we are happy to do so.
To finish what I was saying, I hope, on the basis of what I have said and those assurances, that noble Lords will not press their amendments.
I turn now to Amendment 134, on greenwashing, for which I am grateful to the noble Baronesses, Lady Jones of Whitchurch, Lady Kidron and Lady Bennett of Manor Castle, and the noble Lord, Lord Clement-Jones. The amendment would add specific greenwashing claims to the list of banned practices in Schedule 19. Misleading consumers about the environmental qualities or impact of goods and services so that it leads them to take a different purchasing decision is already against the law. Further, initiatives are under way, including the CMA’s draft guidance on sustainability agreements between businesses, which are aimed at helping to achieve environmental goals. The CMA has also published guidance on environmental claims on goods and services to help businesses understand how to communicate their green credentials without misleading consumers.
Part 3 of the Bill will strengthen consumer protection enforcement by allowing public enforcers to make applications to the court, which will not only stop the infringing conduct but allow the imposition of financial penalties. In addition, the Bill introduces new powers for the CMA to take action more quickly against bad business practices, without needing lengthy court action, and to give penalties of up to 10% of turnover for those breaking consumer law.
In summary, given that greenwashing is already prevented in law, our priority is to keep these existing interventions under review to observe their impact before rushing into further legislative action. For these reasons, I hope that noble Lords will feel comfortable not to press this amendment.
Baroness Bennett of Manor Castle (GP)
My Lords, before the Minister sits down, I come back to his response to Amendment 109 about not meeting our net-zero targets. I can probably paraphrase what he said as, “It’s all fine here and everything’s on track”. How would he align that with the statement from the Committee on Climate Change yesterday that there are significant delivery gaps for our NDCs for 2030?
Lord Offord of Garvel (Con)
I thank the noble Baroness for that. This is not a perfect science. We are on a journey to net zero and will get there by 2050. We have been very clear on the milestones that we need to hit along the way. As far as the UK is concerned, there is absolutely no going back on our commitment to hit that target, but it is a transition, and it will take a generation. I am very clear that we will get there.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords for their support for my amendments on achieving net zero, tackling those who get in the way of it and tackling greenwashing. I must say that the noble Baroness, Lady Bennett, had a wider interpretation of my Amendment 109 than I had intended. As I said at the outset, it was only a probing amendment, and she has given me good cause to go away and look at the wording of all that again, because it certainly was not going that far. It has provoked a good debate, and we had some genuine issues out on the table on it.
I also thank the noble Baroness, Lady Hayman, the noble Lord, Lord Holmes, and others for making the case so eloquently on the right of repair. We have had a really good debate on this, and I cannot possibly hope to acknowledge all the important points that noble Lords made. Those who know me will know that I have long been an advocate for the circular economy and for the right of repair as an essential part of that strategy, but it feels that action is painfully slow: it is estimated that there are enough unused cables in UK households to go around the world five times, along with 20 unused or redundant electronic items in each. But, instead of having a policy to repair and reuse, electronics manufacturers continue to use up the earth’s scarce resources producing new products, the latest models, which often replace perfectly functioning earlier models.
We cannot go on consuming at this level, as we will run out of the materials needed to produce the goods in the first place, so we need to go back to the design phase and product manufacturing, tackle the scourge of built-in obsolescence, and make spare parts and repair services the norm rather than the exception. The Government’s latest eco-design standards are a step forward, but they deal with only one part of the market. That is why a more comprehensive action plan is needed.
On this issue and others, the Minister said not to worry as they are already covered by current legislation. But it is obvious to all of us that, whatever the wording in the legislation, this is not working in practice. He gave the example of Defra having a policy on, or aiming for, the circular economy, but it has been aiming for this for a long time now. What it needs is action to ban the practice of firms deliberately preventing repair. Consultation, which is what is being proposed, is really not enough. I hope that the Minister can understand our frustration on this. These issues have been around for a long time. They are not new, and it does not feel that sufficient action is being taken.
The Minister said that this is a burden on business, but I do not think it is. It is an opportunity for innovation and new jobs, and an opportunity to save materials and money. We need to ensure that we do not have more waste and that we use the resources we have to best effect. A lot of businesses understand that but not all, and that is the problem.
I also thank the Minister for his response to my amendments. I genuinely believe that he understands and supports the environmental challenge but, again, that is not enough: we need to address the regulatory failings that are allowing greenwashing and global warming to continue. Whatever the current regulations and laws, it is quite clear that those regimes are not properly addressing their responsibility in these areas. Again, we need to look further at that. There is huge frustration that policies are not being translated into action and leading to enforcement. Where are the examples of these policies being enforced?
House of Lords
(9 months, 4 weeks ago)
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Homelessness: Veterans
(9 months, 4 weeks ago)
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Baroness Taylor of Stevenage
To ask His Majesty’s Government what assessment they have made of the increasing levels of homelessness among former armed forces personnel; and what steps they are taking to tackle homelessness among veterans.
The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
The Government doubt that the statistics available prove that there is an increasing level of homelessness among veterans. However, any homelessness among veterans needs to be tackled, which is why we have established a number of policies to achieve this important objective. We are committed to ensuring that no veteran is rough sleeping due to a lack of provision.
Baroness Taylor of Stevenage (Lab)
My Lords, we surely all agree, across your Lordships’ House, that the very least we owe those who have served this country in our Armed Forces is that at the end of their service they should have either affordable supported housing with wraparound support or a General Needs home. Sadly, because of the national housing crisis, that is no longer the case. Last year, in spite of the pledges made under Operation Fortitude, there was an increase in homelessness among Armed Forces veterans of 14%, with 2,110 households affected, up from 1,850 the previous year. What steps are the Government taking to join up the work done by the Ministry of Defence, DLUHC and local government to ensure that no one who has served our country ends up sleeping on the streets?
Baroness Neville-Rolfe (Con)
I should say first that the level of veteran homelessness remains very low: less than 1% of households are owed a homeless duty. I agree with everything the noble Baroness has said about the importance of looking after our veterans. The increase can mainly be attributed to improved recording at local authority level. Local authorities now report on all support needs and relevant life experiences, rather than current support needs only. She rightly asks what we are doing. We have a large package of measures. There is Operation Fortitude, a hotline to support veterans into housing—the first of its kind—which has housed over 477 veterans. We have a dedicated £8 million fund, establishing 900 units of veteran supported housing. There is a whole range of help, including online help by the Veterans UK helpline, which helps to join up what we are doing. These different packages were championed by Minister Mercer, but co-ordinated very much with DLUHC and the MoD.
Lord Robathan (Con)
My Lords, everyone regrets anyone being homeless, especially veterans. As a veteran myself, I can say that. When I was the Minister responsible for veterans in the Ministry of Defence, which was immediately after the Labour Government left office, there was a lot of talk about veteran homelessness then. I went to see Veterans Aid, an excellent organisation that operates out of London. The man in charge of it, an ex-RAF wing commander, said, “Not everyone who says they’re a veteran actually is one, but they get better treatment if they are”. Does my noble friend agree that, as she has so rightly said, not everyone who says they are a veteran is one, but they get better benefits if they are?
Baroness Neville-Rolfe (Con)
The way I look at it, we need to help veterans. We have the veterans covenant, to say that those who serve or have served in the Armed Forces, and their families, are treated fairly. It was right that we changed the law in 2012 so that veterans with urgent housing needs are always given high priority for social housing. Of course, local authorities have to make sure that people who say they are veterans are veterans, but we must move forward and not be deterred by the odd difficultly. It is great that so few veterans are homeless; we should celebrate that.
Baroness Smith of Newnham (LD)
My Lords, as the Minister pointed out, it is right we ensure that veterans are not homeless. One thing that it is important to remember is that the vast majority of veterans transition into civilian life without difficulty. However, for those who come from certain backgrounds, there must be opportunities, all the way through their serving life to talk about transitioning to civilian life and to think about future accommodation. A recent report funded by the Forces in Mind Trust put forward proposals for a road map to end veteran homelessness. Has the Minister had a chance to look at the report? Are the Government thinking about ensuring the opportunity for service personnel, while they are serving, to think about housing post-service?
Baroness Neville-Rolfe (Con)
I have not seen the report but I would be very interested to look at it, and I thank the noble Baroness. In my former life as a private-sector employer in the retail industry, we had many veterans working for us. As their term of duty comes to an end, service personnel must look forward and think about opportunities. The discipline that they learn in the Army, and so many skills, can bring great things to the workforce.
Lord Stirrup (CB)
My Lords, homelessness among veterans is not an isolated issue; very often it is connected with other problems, such as mental health challenges. These are challenges that often present years after veterans have left service. What action are the Government taking to ensure that these various aspects of the problem are being dealt with in a holistic way and not just in stovepipes?
Baroness Neville-Rolfe (Con)
I certainly agree. We try to be as holistic as possible in the help we provide. On mental health in particular, we invest £17 million a year in an amazing scheme called Op Courage. We have had 30,000 referrals, which shows the scale of the issue, and we are working now with NHS England on a public awareness campaign to promote Op Courage and what we can do in places such as GP surgeries and trusts in the way that the noble and gallant Lord has suggested.
Baroness Williams of Trafford (Con)
My Lords, shall we hear from my noble friend Lady Lampard, followed by the noble Lord, Lord Browne?
Baroness Lampard (Con)
My Lords, I declare my interest as the chair of GambleAware. Veterans are 10 times more likely than non-veterans to experience gambling harms, and to gamble as a way of coping with distress. The financial consequences of gambling harms are more than likely to contribute to homelessness among veterans. Third sector organisations such as Beacon Counselling, which was commissioned by GambleAware as part of the National Gambling Support Network, do brilliant work to reduce the impact of the heightened risk to the Armed Forces community. Can the Minister tell the House how the Government intend to address the need to protect veterans from experiencing gambling harms and, to that end, how they intend to work in partnership with charities doing vital work in this area?
Baroness Neville-Rolfe (Con)
Veterans can access a range of support, including via the 24/7 Veterans’ Gateway, which deals with gambling, as well as housing and so on. There is also, of course, a national gambling helpline giving advice. There is dedicated support through Op Courage for mental health, which is often linked to gambling. The other things that I have mentioned can all help with this difficult issue, which obviously goes much wider than veterans.
Lord Browne of Ladyton (Lab)
My Lords, the data that supports the conclusion that homelessness among veterans is increasing is uniquely English data. The Scottish data, which was most recently published in August 2023 and relates to the period between 2008 and 2022, shows that the number of veterans assessed as homeless or, importantly, at risk of homelessness has halved from 1,335 to 640. Would it not, on this occasion, be an idea to find out what Scottish councils, NGOs and the Scottish Government are doing to have achieved this?
Baroness Neville-Rolfe (Con)
I am always glad to hear of good practice, wherever it is, but, as I tried to explain at the beginning, we have changed the way that we are counting veteran homelessness in local authorities. That does not mean that we should not do more or not learn from the devolveds when they do things better. A result that halves numbers is very good. However, as I said, there are almost no veterans rough sleeping now, due to the variety of provision that this Government have provided and the underpinning of the priority that homeless veterans get for social housing, which I think everybody supports.
Lord Houghton of Richmond (CB)
My Lords, I sometimes worry that Questions such as this convey a wider impression that military service somehow leads to long-term social disadvantage. That is just not the case. A glance at the figures on the national census from England and Wales shows that, if you have not done military service, you have a 20% chance of reaching the age of 65 and only a 5.1% chance of passing the age of 80. By comparison, a military veteran has a 53% chance of reaching 65 and a 31.8% chance of passing 80—a remarkable statistic, even by the standards of this House. Does the Minister therefore not agree that, at a time of grave recruiting challenges, such irresistible evidence of the life benefits of military service should be celebrated and more widely reported?
Baroness Neville-Rolfe (Con)
I can agree that military service leads to many advantages, not only full-time military service but working in the reserves. We should encourage young people to look at this option.
Prisons: Suicides
(9 months, 4 weeks ago)
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Lord Harries of Pentregarth
To ask His Majesty’s Government what steps they are taking to reduce the number of suicides in prisons in England and Wales.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, every self-inflicted death in custody is a tragedy. We continue to do all that we can to improve the safety of prisoners. Our vision, set out in the Prisons Strategy White Paper, includes plans to make prisons safer for staff and prisoners. We have also announced additional funding to expand the prison workforce to enable a greater focus on creating a regime that supports safety.
Lord Harries of Pentregarth (CB)
I thank the Minister for his reply. In the 12 months to last September, there were 93 deaths by suicide in prison, an increase of 22% on the previous year. This is paralleled by the huge increase in self-harming in prison, which is at 10 times the rate of the wider community. One of the factors in this is of course the extent of mental health problems among prisoners—nine out of 10—and the slowness with which they are referred to the appropriate medical services. What steps have the Government taken to speed up the process whereby those with mental health problems are pointed in the direction of those who can offer them help, so that they do not spend so long in isolation in segregated units?
Lord Stewart of Dirleton (Con)
My Lords, we published the National Partnership Agreement for Health and Social Care for England on 23 February 2023, setting out a shared priority to deliver safe, decent and effective care, and improve health outcomes for people in prison and on probation. As part of the measures we have taken, new prison officers are trained in measures to assess and identify persons potentially at risk. The existing cohort of prison officers is receiving additional training, as understanding of the complex nature of this problem develops. There are increased facilities for sharing knowledge so that individual insights are passed between prison staff, the medical and psychological staff assisting them and the prisoners themselves, because we have measures to allow prisoners to mentor one another.
Viscount Hailsham (Con)
My Lords, would my noble friend agree that the number of suicides in prisons is likely to fall if we could reduce the number of people with mental health issues being sent to prison and, furthermore, if we could increase the amount of meaningful out-of-cell activity offered to prisoners?
Lord Stewart of Dirleton (Con)
My Lords, I agree wholeheartedly with both points raised by the noble Viscount. The range of opportunities for activity outwith the prison estate, and within the estate by way of leisure and recreation, is an important matter that the Government are looking at.
Lord Harris of Haringey (Lab)
My Lords, it has been nearly a decade since the Minister for Prisons asked me to undertake a review of the self-inflicted deaths of young people in the prison estate. Since then, things have got worse. The reality is that prisons are more overcrowded. The very positive suggestions that the Minister made in answer to the noble and right reverend Lord, Lord Harries of Pentregarth, about how people will be trained to provide support, will work only if there are sufficient numbers of staff who stay sufficiently long in the job for it to work.
The Minister has also just said that efforts are made for rehabilitation, training and education. Again, if prisons are so overcrowded and there are such staff shortages that people cannot be escorted to the extracurricular activities he described, how on earth is this going to work? Is not the reality that this Government have lost control of prisons and of the fundamental responsibility to rehabilitate people into society?
Lord Stewart of Dirleton (Con)
My Lords, as of 30 September 2023, there were 23,058 prison officers in bands 3 to 5. That is an important cohort, because those are the bands who have access to prisoners in the areas and respects of which the noble Lord has spoken. That is an increase of 1,441 officers on the previous year, which amounts to an increase of 6.7% in the number of officers in that cohort in full employment.
Lord Farmer (Con)
My Lords, one-third of all prison suicides occur very early—within the first week in custody. Research shows that isolation from relationships or a breakdown in communication can play a decisive role. Prison receptions can be very chaotic places and it can take days, rather than hours, to establish contact with family members, who are also very worried. What are the Government doing to improve care when people arrive in prison and, in particular, to ensure that early contact with families is made?
Lord Stewart of Dirleton (Con)
My Lords, I am grateful to my noble friend for that question and for the informal discussion we had prior to Questions today. We know that the risk of suicide can be higher when prisoners are on remand and in the early days of their sentence, when the experience of prison is new and shocking, or for that matter when they have been recalled to custody. We have digitally streamlined the reception processes to flag risk information earlier, in the manner I was describing earlier to the noble Lord.
We are promoting supportive conversations between staff and prisoners. All incoming prisoners are interviewed in reception areas to assess their risk of self-harm. There is a risk identification toolkit—a training measure for officers—which helps staff assess risk effectively and provides appropriate support to manage identified risk. We are rolling out a peer support project—this is the sort of work I was discussing with the noble Lord earlier—where prisoners mentor one another, thereby, most importantly, inculcating supportiveness and strengthening and encouraging self-worth.
Lord Ponsonby of Shulbrede (Lab)
My Lords, in recent weeks, I have met two young female prison officers who have dealt with suicide and attempted suicide. We have heard from the noble and right reverend Lord, Lord Harries of Pentregarth, about the increase in suicide and self-harm. My noble friend Lord Harris alluded to the reduction in experience of prison officers. The figures are that the number of prison officers with 10 years’ or more experience fell from 34% to 28% in the 12 months to December 2023. Does the noble and learned Lord accept that these two facts are linked? What is he doing to try to increase the length of time that prison officers stay in the service?
Lord Stewart of Dirleton (Con)
My Lords, as I said in response to a previous question, the number of officers in key cohorts has increased over the past year. As to the rest of the question that the noble Lord poses, I do not have the information to hand but, with his indulgence, I shall write to him, or have the Minister in the responsible department write to him, on the subject.
The Lord Bishop of London
My Lords, the recently announced proposed change to the recall period for serving IPP sentences is welcomed. What assessment has the Minister made of the Prisons and Probation Ombudsman’s recommendation that prisoners’ IPP status should be considered as a potential risk factor for suicide and self-harm?
Lord Stewart of Dirleton (Con)
My Lords, I am grateful to the right reverend Prelate for that question. IPP prisoners are a matter of concern to many noble Lords. It remains a priority for the Government that all those on IPP sentences receive the support they need to progress towards safe release from custody. The Government continue to focus on the rehabilitation of IPP prisoners through a refreshed and updated action plan, published in April 2023, providing a robust and effective sentence plan tailored to individual needs and recognising the difficulties, of which the right reverend Prelate is aware, of persons facing a very long period of incarceration and the attendant difficulties that that causes them emotionally.
Lord Marks of Henley-on-Thames (LD)
My Lords, the House will understand the answers given by the noble and learned Lord in relation to the training of individual officers, but that does not deal with the problem of increasing suicides attributable to really serious staff shortages. Increased numbers of staff have to be taken alongside increasing prisoner populations. So what is being done to improve the detection and diagnosis of mental ill-health of prisoners and, crucially, what steps are being taken to improve or reduce waiting times for psychiatric treatment and placement of prisoners in hospitals where hospital placements are needed for mentally ill prisoners?
Lord Stewart of Dirleton (Con)
My Lords, most prisoners with mental health needs are able to receive the care and treatment that they need within prison. The group to which the noble Lord refers, those with acute problems requiring treatment in hospital, have to be referred, assessed and transferred to hospital under the Mental Health Act. We are determined to ensure that these transfers take place in a timely manner. We are working with health and justice partners and will continue to work to provide a non-statutory independent role designed to improve oversight and to monitor delivery of the 28-day time limit for transfers set out in NHS England’s good practice guidance. There is also a pilot health and justice hub in the north-east of England, improving the way in which courts, health services and prisons work together at local levels better to support those with severe mental illness, with a view to smoothing their pathway into the correct treatment.
UK-EU Trade: Small and Medium-sized Enterprises
(9 months, 4 weeks ago)
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Baroness Quin
To ask His Majesty’s Government what plans they have, if any, to meet representatives of small and medium-sized enterprises to discuss non-tariff barriers to trade between the United Kingdom and European Union.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Scotland Office (Lord Offord of Garvel) (Con)
I thank the noble Baroness for her Question. We engage extensively with representatives of small and medium-sized enterprises and trade associations across the UK. This includes engagement that I and my fellow Ministers undertake. As Minister for Small Business, Minister Hollinrake routinely meets these representatives and business leaders. As Minister for Exports, I spend a lot of effort meeting SME exporters. We are leading a whole-government effort to break down barriers, including non-tariff barriers with our partners in the EU and across the world.
Baroness Quin (Lab)
When the former Prime Minister, Boris Johnson, announced his trade deal with the EU in 2020, he said there would be no non-tariff barriers to trade between us and the EU. That claim has turned out to be spectacularly false, given the extra bureaucracy and costs that many businesses, particularly small businesses, are facing as a result of that deal. As we know, these burdens are due to get worse, not better, in the coming months. Given that in a supplementary question I cannot list all the businesses that I know have been badly impacted, I ask the Minister whether, if I send the details of those firms, his department will look at these things urgently and see in what ways the burdens can be reduced or removed.
Lord Offord of Garvel (Con)
I thank the noble Baroness. There is no question that there has been friction in our trade, especially with the EU 27. We have tariff-free trade; a lot of the friction is not of our doing, but we must deal with it.
Lord Offord of Garvel (Con)
There is a huge amount of effort going on in the department to break down these trade barriers. We have already removed 178 trade barriers—48 of those are worth £6.5 billion alone. Within all our country embassies we have a team working directly with our SMEs to remove these barriers. This will ease the process.
The Earl of Kinnoull (CB)
My Lords, the trade and co-operation agreement has a structure of 24 committees, trade specialised committees included, which are meant to work together to produce mutually beneficial improvements in the process of trade. The snappily named Trade Specialised Committee on Technical Barriers to Trade looks into this area, I assume. That committee met only once last year. I realise that committees can work when they do not meet, but will the Minister comment on the fact that it met only once? Can he assure the House that all of the mechanics of the trade and co-operation agreement are sweating hard to try to improve the situation?
Lord Offord of Garvel (Con)
I thank the noble Earl. Yes, indeed, there are many committees in Europe—it is one of the reasons we decided to come out. Where we are working most effectively is country by country, and we are finding that, for example, when we deal with Belgium we can solve the problem with British lawyers working in Belgium. We can do the same in Luxembourg. With Sweden we work hard directly with its team on our chilled and frozen food. With Austria we are working on training permits for our staff to move there. We are much more effective on a country-by-country basis than at the higher committee level.
Lord Fox (LD)
My Lords, the Minister will have seen yesterday’s reports in the FT that average businesses are facing extra costs of £100,000 to navigate this friction. The Minister has painted a very optimistic and active picture of what his department is doing, but the effects do not seem to be working through. The British Chambers of Commerce and Make UK say that nine out of 10 organisations have seen little progress over the last three years. Does the Minister accept that more has to be done and that perhaps he does have to engage with those committees he just derided?
Lord Offord of Garvel (Con)
I thank the noble Lord. We have 5.5 million companies in the UK, of which 3 million are sole traders which operate underneath the VAT threshold. We have 2.5 million SMEs, of which 300,000 export. I meet exporters regularly and what I find when I do the Made in the UK, Sold to the World roadshows in Cardiff, Belfast, Lisburn, Glasgow, Dundee, Birmingham and around the country is that the SMEs are the most innovative when it comes to selling internationally. They are getting around these problems. DBT is working with them. We have a network of international trade advisers who come to their businesses regularly. We have the in-house teams in the embassies. We are working through these issues and, when we move through it, trade will be greatly expanded.
Lord Lilley (Con)
My Lords, does my noble friend recall that when the single market began in the early 1990s, the Secretary of State for Trade and Industry at the time—it was me—made many bullish speeches about the beneficial impact this would have on our exports to the EU. Sadly, over the ensuing quarter of a century, our goods exports to the EU stagnated, growing by less than 1% per annum. By contrast, our exports under WTO terms to the rest of the world grew by 90%. Would it not be surprising if, given that membership was not a great benefit to our exports, leaving would do us much harm? Indeed, the Library figures show that our exports to Europe have held up better than our exports to the rest of the world since the referendum.
Lord Offord of Garvel (Con)
I thank my noble friend for sharing his great expertise in this area. As we discussed yesterday, Europe’s share of global trade is declining: it has halved from one-third to 16%, and it is heading towards 10%. That is why we are striking trade deals around the world, such as the CPTPP and with India, which we could not do when in the EU. SMEs are enthusiastically taking full advantage of that. I met a company recently that sells high-end tennis wear to US consumers; when it was built during Covid, it could not sell to Australia because it was too expensive and difficult. Now that we have signed a free trade agreement with Australia, the margins have gone up, the time limit has come down and it is trading successfully there.
Lord Leong (Lab)
My Lords, small businesses have reported that access to export markets has been hindered lately by import licences and EU regulations and they have either retreated or considered retreating to domestic markets. In addition to the Minister’s meetings with exporters, have the Government made any assessment of the impact of such decisions, and what consideration have they given to possible ways of maintaining access to European markets for these businesses?
Lord Offord of Garvel (Con)
I thank the noble Lord. As I said yesterday, Europe remains a massive part of our trade—41% with the EU 27 and 48% with the euro 34—and that will continue to be the case. However, the growth areas for our markets will be the US and the rest of the world. SMEs recognise that and are pivoting to the Indo-Pacific region. DBT is putting a lot of effort into helping them get there fast and profitably.
Baroness McIntosh of Pickering (Con)
Will my noble friend make sure that there is complete fairness between exports of food and agricultural products from Great Britain to the EU and those from the EU to this country? Will he update the House on the position of seed potatoes? Can we export them directly to the EU at this time?
Lord Offord of Garvel (Con)
I thank my noble friend. Seed potatoes are a specialised area so I will need to write to her on that.
Lord Watts (Lab)
My Lords, the Minister says that trade with Europe is as important today as it was three years ago, and it is. However, the Government’s refusal to negotiate positively with the European Union is causing major problems for many industries. Is that not what we are hearing from every source other than the Government?
Lord Offord of Garvel (Con)
The reality, as we said yesterday, is that our economy is 80% services and 20% goods, but our exports are 50/50, because our goods are good. We make things that people, especially in Europe, want to buy. European countries are coming to us and saying that they want to get rid of these barriers because they want our goods imported. We are working on a country-by-country basis and it is improving all the time.
Lord Purvis of Tweed (LD)
My Lords, yesterday the Minister admitted to me that UK trade with the EU has declined but said that UK trade in services and goods with the rest of the world was going “gangbusters”. I looked up two things this morning. First, UK trade with the EU has declined by 1.4%, which is regrettable, but UK trade with the rest of the world has also declined, by more than 4%. The second thing I looked up was the definition of “gangbusters”, which means “very well”. Would he like to correct the record? Given that EU trade with the rest of the world has gone up while ours has gone down, why does he think that that is the case?
Lord Offord of Garvel (Con)
I thank the noble Lord for that stat-fest. I said yesterday that the most difficult part of the pie chart is the 24% of our manufactured goods to the EU 27, but the other 70% is increasing in particular services, which have gone up by 19% over the last five years, relative to inflation. That is why I said that the rest of our exports are trading very well.
Baroness Meacher (CB)
My Lords, will the Minister reassure the House that we will now spend far more time working with the European Union to enhance our trade with our closest trading neighbours, particularly bearing in mind that the EU represents a pretty high proportion of our trade?
Lord Offord of Garvel (Con)
I can absolutely assure the noble Baroness of that. My DBT colleague in the other place, Minister Hands, is putting a huge amount of effort into breaking down these barriers with individual European countries, getting faster access and getting rid of the friction in Europe.
Temporary Accommodation Costs
(9 months, 4 weeks ago)
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The Lord Bishop of Manchester
To ask His Majesty’s Government what assessment they have made of the impact on local authority finances caused by the rising cost of temporary accommodation.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)
My Lords, local authorities deliver vital homelessness services, and we recognise the pressure that the cost of temporary accommodation places on councils. As we announced recently, total core spending power for councils in England will rise by 7.5% for 2023-24 to 2024-25—an above-inflation increase. In addition, we are providing more than £1 billion over three years to councils through the homelessness prevention grant, with a further £120 million UK-wide funding in 2024-25, announced at Autumn Statement, to help prevent homelessness.
The Lord Bishop of Manchester
I thank the Minister for that Answer. I recently visited a secondary school in Manchester which now has to make significant bespoke provision out of its school budget for pupils who are living in bed and breakfast hotels. Those students are only a tiny fraction of nearly 140,000 children in temporary accommodation, which represents a 14% rise in the last year. What assessment, if any, have the Government made of this issue? Will the Minister commit to improving the data available so that the impact of living in temporary accommodation on children, particularly on their education, can be fully understood, and local authorities can be supported to enable their schools to address and minimise it?
Baroness Scott of Bybrook (Con)
I thank the right reverend Prelate for that question. No one wants to see families with children in temporary accommodation, and I am sure that every local authority across the country is doing everything they can to stop it happening. But sometimes, in emergency situations, it is important for the short term that those families have a roof over their head, a safe and secure place to go. We continue to work with the Local Government Association and local authorities on how many there are in such accommodation, and what more we can do—for instance, stopping people going into temporary accommodation in the first place. With the £1 billion grant for local authority homelessness prevention, we can also start to improve the quality of any temporary accommodation that we might have to use.
Lord Forsyth of Drumlean (Con)
My Lords, the right reverend Prelate is quite right to draw attention to the pressure on local authority budgets. Given the hundreds of millions of pounds that we are spending on accommodating illegal migrants, might a possible solution for the right reverend Prelate and his colleagues be to go through Division Lobbies and support the Rwanda Bill?
Baroness Scott of Bybrook (Con)
My Lords, I do not think that is within this Question. I will leave it to my noble friend to fight his corner on that one.
Baroness Watkins of Tavistock (CB)
My Lords, many housing associations have been encouraged to develop homes for shared ownership, yet current trends illustrate that there has been a reduction in applications for this type of accommodation due to increases in mortgage rates and concerns regarding responsibility for maintenance—relating to the Grenfell Tower event. Can the Minister say whether capital could be made available for councils to purchase some of those empty properties and reduce temporary accommodation used for families?
Baroness Scott of Bybrook (Con)
Through their powers, local authorities can look to purchase accommodation. In the last two Budgets, we have given special dispensation to local councils, first, on special borrowing and, secondly, on their moneys from the right to buy. It is up to local authorities to look at the ways they can provide those houses, but I will take that back to the department as an idea.
Baroness Pinnock (LD)
My Lords, as the Minister has rightly said, the Government are allocating £1 billion to reduce homelessness. Unfortunately, it is clearly not working, as homelessness is at a 25-year high, with the result that local authorities have to spend increasing proportions of their budget on their statutory duty—which they want to undertake—to house people without a home. For example, Eastbourne Borough Council has an annual budget of £15 million but is spending £4.9 million each year on its statutory homeless duty. That is not sustainable. What are the Government to do?
Baroness Scott of Bybrook (Con)
As I have said, on 24 January, the Government announced additional measures for local authority funding worth £600 million, including £500 million of new funding for adult and children’s social care. It means that core spending powers will be up by £4.5 billion next year. This is what we are doing to help local authorities with all the pressures on their budgets at this time.
Lord Khan of Burnley (Lab)
My Lords, local councils across the UK have warned that they are increasingly facing bankruptcy because of the rising cost of preventing homelessness. The National Housing Federation predicts that the number of children living in temporary accommodation will rise from 131,000 to 310,000 by 2045. It says that social housing waiting lists will grow to 1.8 million households by 2045—an increase of more than 50%. What practical steps are the Government taking to tackle the tremendous cost of temporary accommodation and homelessness?
Baroness Scott of Bybrook (Con)
I think I have already answered most of that. We have increased the amount of money going to the base budgets of local authorities across the country this year. We are giving money to prevent homelessness—which is as important as dealing with the issue. As I have said, we are giving money to councils so that they can build better properties and access better temporary accommodation. We are doing all we can in what has been quite a difficult economic climate. However, we are coming out of it, things are beginning to look better, and houses are being built.
Lord Young of Cookham (Con)
My Lords, my noble friend will not be surprised to hear that I think we should be building a lot more houses. In the meantime, should we not consider amending the Renters (Reform) Bill, now in another place, to increase substantially the amount of long-term institutional investment in private renting and relieve some of the pressures on the market that we have been hearing about?
Baroness Scott of Bybrook (Con)
My noble friend is absolutely right. The Government will support institutional investment in the private sector as well as in the social rented sector, provided, of course, that they stick to the rules and we can regulate them. That includes Build to Rent homes, which can boost supply and drive up standards. We are offering support through the £1.5 billion levelling up home building fund being delivered through Homes England to provide loans, equity investment and joint ventures to encourage such institutional investment companies and to support new Build to Rent developments. I think they will be a growing part of the market.
Lord Best (CB)
My Lords, I declare an interest as chair of the Devon Housing Commission. I can confirm that the rise in temporary accommodation is not just in London and the conurbations. Devon is deeply affected, and that affects the budgets of local authorities. What progress is being made with the Government’s proposals to enable local authorities to limit the switching or changing of use of ordinary private rented accommodation into Airbnb holiday accommodation and short-term lets, which is having a huge effect in Devon and elsewhere?
Baroness Scott of Bybrook (Con)
The noble Lord is right. I am aware of this issue. I do not have the up-to- date facts with me so, if he does not mind, I will write to him.
Lord Watts (Lab)
My Lords, the last Labour Government almost did away with homelessness. It is a Conservative policy which has created this scandal for the British people. Does the Minister have a plan? If so, can she tell the House how much it would cost to end homelessness and how that money would be allocated? Otherwise, it will continue to be a blight on society.
Baroness Scott of Bybrook (Con)
My Lords, I wish it were as simple as that. Yes, we have a plan to build more houses in this country—importantly, more affordable houses and houses for social rent. As I said, at a time when we have been through a difficult economic situation, we have more people needing temporary accommodation. It is important that we are there to pick up those who need emergency roofs over their heads. They need to feel safe and secure. Quite honestly, I think they would rather be in temporary accommodation than on the streets.
Media Bill
Wednesday 31st January 2024
(9 months, 4 weeks ago)
Lords ChamberRead Full debate Media Act 2024 View all Media Act 2024 Debates Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 30 January 2024 - large print - (30 Jan 2024)
Post Office Network Subsidy Scheme (Amendment) Order 2024
(9 months, 4 weeks ago)
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Lord Offord of Garvel
That the draft order and regulations laid before the House on 11 December 2023 be approved.
Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 30 January.
Combined Authorities (Mayors) Filling of Vacancies Order 2017 (Amendment) Regulations 2024
(9 months, 4 weeks ago)
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Baroness Scott of Bybrook
That the draft regulations laid before the House on 11 December 2023 be approved. Considered in Grand Committee on 30 January.
Telegraph Media Group: Proposed Sale to RedBird IMI
(9 months, 4 weeks ago)
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Lord Bassam of Brighton (Lab)
My Lords, I find myself in the somewhat novel position of fiercely defending the interests of the Telegraph newspaper group and the Spectator in the interests of press freedom.
There was a fairly remarkable debate in the Commons yesterday because, on a Question about transparency and protecting democracy, the Minister’s answer was mainly that she could not answer any questions. I must gently say that this questioning is not designed to trip Ministers up; these are serious concerns, put forward thoughtfully by Members of all parties right across the House. I therefore hope the Minister will be able to answer two of those questions today. First, can the Minister point to any existing examples of a nation state with “differing media values”—as the chair of the Foreign Affairs Committee delicately put it yesterday—acquiring a major newspaper of another country? Secondly, and in the light of the proposed sale, do His Majesty’s Government have any plans to review existing rules on media ownership, and if not, does the Minister think they should?
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
I am grateful to the noble Lord for his questions and welcome him to the ranks of Telegraph and Spectator readers—I hope he will enjoy what he sees in their pages. He will understand that the Secretary of State is acting in a quasi-judicial capacity following the provisions laid out in the Enterprise Act 2002. She is considering whether mergers raise media public interest concerns. She has issued public interest intervention notices, reflecting the concerns that she continues to have that there may be public interest considerations in this case: the
“accurate presentation of news; and … free expression of opinion”
as set out in Section 58 of the Enterprise Act, which are relevant to this planned acquisition. I hope the noble Lord will understand that, as she is acting in a quasi-judicial capacity, it is essential that she does not take into account, and that there be no perception that she has taken or is taking into account, any political or presentational considerations. I therefore find myself in the same position as my honourable friend Julia Lopez in another place yesterday in being limited in what I can say while that quasi-judicial process unfurls.
Baroness Stowell of Beeston (Con)
My Lords, as the noble Lord, Lord Bassam, alluded to, the strength of feeling against this deal in the House of Commons yesterday was widespread and from all quarters of that place, and I would be surprised if there was much support in this House for the deal going ahead. Notwithstanding what my noble friend said about the Secretary of State acting in a quasi-judicial capacity in considering this matter, could he none the less give us an indication of how soon the Secretary of State can reach her decision? It seems to most people that the reasons for objecting to this deal are fundamental and points of principle, not necessarily points of technicality, and it should not require a great deal of time for her to reach her decision.
Lord Parkinson of Whitley Bay (Con)
The public interest intervention notices which the Secretary of State issued trigger the requirement for the Competition and Markets Authority to report to her on jurisdictional and competition matters and for Ofcom to report to her on the specified media public interest considerations. She has asked them to submit their reports by 9 am on 11 March 2024.
Lord Storey (LD)
My Lords, my noble friend Lord Clement-Jones tabled an amendment on Monday on the issue of media plurality. The Minister’s reply was that:
“The Government are currently reviewing the recommendations on changes to the media public interest test in Ofcom’s 2021 statement”.—[Official Report, 29/1/24; col. GC 291.]
That is over two years ago. Following on from the previous contribution, when does the Minister now expect to respond, and can he not expedite this? Of course, cynics say that he will now be able to do this because it is the Daily Telegraph; if it was the Guardian or the Independent, we would be waiting much longer.
Lord Parkinson of Whitley Bay (Con)
As the noble Lord said, the Government are currently reviewing the recommendations on changes to the media public interest test that were set out in Ofcom’s 2021 statement on media plurality to ensure that we fully understand the implications of such changes, including on the industry, whatever the title. I am confident that this work will be completed soon, which will allow the Government to respond in due course.
Lord Moore of Etchingham (Non-Afl)
My Lords, I declare an interest as an employee of the Daily Telegraph. May I ask the Minister a couple of points that I do not think depend on the quasi-judicial process? First, can he confirm that, when this was an auction organised by Lloyds Bank, before it took its current form, the Government stipulated that there should be no more than a 25% maximum owned by a Middle Eastern power? Can he also tell us whether, in the investigations going on, there is any investigation of this issue from a national security point of view?
Lord Parkinson of Whitley Bay (Con)
I will be careful in what I say to the noble Lord because of the quasi-judicial role which the Secretary of State is following as she awaits the views of the Competition and Markets Authority and Ofcom, as I set out, but she issued a new public interest intervention notice on 26 January, following RedBird IMI making changes to the corporate structure of the potential acquiring entities of the Telegraph Media Group. That created a new limited partnership which would hold all shares in RB Investco, the proposed purchaser of the Telegraph Media Group. Having considered representations, the Secretary of State came to the conclusion that this corporate restructure created a new relevant merger situation and that, therefore, a new public intervention notice should be issued. The one she issued previously on 30 November in relation to the anticipated acquisition remains in force; that is because it covers a different relevant merger situation. Ofcom and the CMA will report on both to her by the deadline that I set out.
Lord Bellingham (Con)
My Lords, is the Minister aware that Stephen Welch, who is the independent director at the Telegraph and Spectator tasked with steering the sale through, has recently been named as a defendant in a case against the FTSE company ICG in the Dublin High Court? ICG and other defendants, including Stephen Welch, have been accused, inter alia, of intimidation, conspiracy and misrepresentation. Does the Minister agree that he should stand down from the Telegraph while he clears his name in this other case?
Lord Parkinson of Whitley Bay (Con)
The Secretary of State is making her decision in a quasi-judicial capacity under the stipulations of the provisions of the Enterprise Act 2002.
Baroness Falkner of Margravine (CB)
My Lords, I will not ask the Minister to respond about the Secretary of State’s role, but the Minister will be aware that assurances have been reported in the papers that RedBird IMI would provide an independent advisory board to ensure journalistic independence. Can he tell us his assessment of the word “independent” going alongside “advisory”? Will he contemplate what the impact of that board will be, given that Meta’s advisory board has done nothing to improve Meta’s standing?
Lord Parkinson of Whitley Bay (Con)
I hope the noble Baroness will forgive me, but I think it is important that I and other Ministers do not opine on anything while the Secretary of State is making her decision in the capacity she is making it in. As I say, it is important that there should be no perception that she is taking into account any political or presentational considerations. She is, of course, considering all of the relevant information as set out under the Enterprise Act.
Lord Forsyth of Drumlean (Con)
My Lords, I declare an interest, as many years ago I had to make decisions as a Secretary of State in a quasi-judicial capacity and I understand the difficulties the Minister has. But, for goodness’ sake, it is an absolute no-brainer that you do not wish a national newspaper to be owned, however indirectly, by what is proposed. Why should it take so long for Ofcom and everyone else to come to the obvious conclusion and put us all out of our misery?
Lord Parkinson of Whitley Bay (Con)
Ofcom and the Competition and Markets Authority have functions set out under the Enterprise Act. They are carrying out those functions at the moment. The Secretary of State looks forward to receiving their reports by the deadline that she has set out. She will then take into account what they recommend to her.
Victims and Prisoners Bill
Wednesday 31st January 2024
(9 months, 4 weeks ago)
Lords ChamberRead Full debate Victims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 31-II(Rev) Revised second marshalled list for Committee - (30 Jan 2024)
Lord Hodgson of Astley Abbotts (Con)
My Lords, I am grateful for the chance to participate—I thought I was going to be cut off at the knees at the end of the last session when the Committee was adjourned promptly. I also apologise to the Committee because I did not participate in the Second Reading debate. I intervene this afternoon to support Amendment 14 tabled by the noble and right reverend Lord, Lord Harries, and supported by my noble and learned friend Lord Garnier, the noble Lord, Lord Blunkett, and the noble Baroness, Lady Hamwee, and the other amendments concerned with restorative justice or RJ.
I have quite a personal reason for this because when I came into your Lordships’ House some years ago, my best friend rang me to say that his best friend from school had just been made a chief constable and was very interested in this thing called restorative justice, and would I be prepared to go and meet him? I said I would, of course. I knew virtually nothing about RJ at that time. I went to meet the chief constable and he explained to me how he thought we were missing a trick in not using RJ more widely to deal with what he described as our lamentable record in reoffending.
He arranged for me to go and get involved in some cases, hear the facts and even, with the permission of the participants, sit in as a facilitator on one or two cases. I got a great deal of first-hand experience of how RJ might or might not work. All he said when I finished was, “Will you just repay me by raising RJ and speaking about it in the House of Lords in the future?”. So here I am this afternoon, keeping faith with my friend, the chief constable. From my great experience, then, the key issue—this important point was made by the noble and right reverend Lord, Lord Harries—was that it works only if each participant, on the two sides of the argument or the case, is prepared to get inside the head of the other. That was an important part of what I learned while I was there.
I will not talk at length about what I learned specifically, but it is worth briefly recounting one case. A confirmed drug user with a charge-sheet as long as your arm saw an empty house and thought he would break in, find a piece of electrical equipment, take it, flog it and use the proceeds to feed his habit. Unfortunately for him, the house was not empty. The owner of the house, a designer, had a small studio upstairs on the second floor. He came downstairs to find this man in the hall and asked, “What are you doing?”. The man said, “I’ve come to read the gas meter”. The owner said, “Bad idea, because there’s no gas in this house. We don’t have gas”. A struggle ensued, during which the owner of the house hit the man over the head with a flowerpot. There are pictures of the person with blood streaming down his face when the police arrived and arrested him.
From this unprepossessing, unlikely beginning, a case of RJ was introduced. The men met a few times then, as was inevitably right, the burglar got a custodial sentence. The men corresponded while he was in prison and a degree of agreement and understanding—the ability of both sides to put the past behind them and do better in future, from the point of view of the perpetrator —was arrived at. When I talked to the perpetrator, I asked, “What was it?”. He said, “You can see my charge-sheet. All I saw on it were names but, this time, when I met the owner of the house, he said, ‘Do you know what you’ve done? You’ve terrified my family. My two teenage daughters will no longer sleep in separate bedrooms upstairs; they share a room next door to me and my wife. My wife has every single door and window locked—everything locked. You have completely wrecked our security as a family. What do you think about that?’”. Although he did not put it this way, it was a bit of a lightbulb moment for him.
On the other side, when I talked to the owner of the house, he said, “When we began to talk to the chap, he had had a hopeless start. He had a single mum—not much of a single mum, really—and was in and out of care, with little to no educational achievement. Inevitably, his life was largely devoted to crime”. From these two understandings came an ability to work together; it put them, in particular the perpetrator, to an important and life-affirming task to live better and have a worthwhile lifetime.
That is a great, moving story but I said to the chief constable, “There must be a but”. He said, “Of course there’s a but”. He was anxious then, as I think I would be anxious today, not to put too much weight on restorative justice. He said, “There are two things you can do to make sure that RJ does better”. The first is that you need—these are the words from the briefing, not the chief constable—“voluntary and honest participation” by both sides. That is straightforward.
Not in the briefing is the second point that he made: you need expert, trained facilitators. Being expert and trained means, first, that you move the conversation forward but not so that you avoid tackling the awful, painful issues that lie at the heart of the problem; and, secondly, that you are tough enough to blow the whistle when you believe that somebody is not trying. This is not always easy to do because, sometimes, a bit of effort has been invested and people are reluctant to let the case go, but someone has to realise that there are cases in which people will, in the famous phrase, swing the lead in the hope of a reduced sentence. The facilitator needs to be well trained. As the chief constable would say, “A facilitator cannot take on too many cases because they’re quite emotionally exhausting if you get really stuck into these people’s lives”.
The chief constable, if he were standing here, would say, “I certainly would not want RJ to be presented as a silver bullet”—the point made by my noble and learned friend Lord Garnier. “Above all,” he would say, “I don’t want it to be presented as a cheap silver bullet because it isn’t—at least, not in the short run. However, if you can turn a number of cases round, the long-term savings and benefits to society are incalculable.
Our re-offending rates remain too high—the same situation as when I met the chief constable. We surely have an opportunity now to be imaginative in our thinking about how to reduce offending rates. We need new tools in our toolbox, and restorative justice would be an important one. I hope my noble and learned friend the Minister will react sympathetically to Amendment 14. That would give me great pleasure, because it would mean that I have kept faith with my friend the chief constable.
Baroness Hamwee (LD)
My Lords, does the noble Lord agree that his faith will be even better kept if he keeps on advocating RJ? Does he also agree that it has its limitations, one of which is that there is a need, in the case he has described, for drug addiction treatment to go alongside it in some way? One must look at the underlying causes, as he has well indicated.
Lord Hodgson of Astley Abbotts (Con)
I could not disagree with that. I suspect that there are a whole host of issues behind habitual offending which we need to think about, of which drug addiction is one. People involved in this policy area are clearly more experienced than I am.
Baroness Brinton (LD)
My Lords, this is the first group of amendments which really gets into victims’ rights—not just what is expressed in the victims’ code, but ensuring that they can access it. The noble Baroness, Lady Gohir, started the group with the important issue of a victim’s right to challenge decisions, including but not only relating to multiple perpetrators. I thank her for that, because that and some of the cultural issues she raised are important in ensuring that victims’ services are tailored to victims’ needs and are not a tick-box exercise.
I thank Restorative Justice for All for its briefing, and all noble Lords who have spoken in this debate. I will not repeat it all, but we know that restorative justice is a well-established and evidence-based alternative that certainly does not let offenders off the hook; it is as difficult for offenders as it often is for the victims. Restorative Justice for All wrote to us because it is concerned about how long it has been since issues about the right to restorative justice were addressed. It goes back to an EU directive of 2012, yet there is still no absolute right available. That needs to be remedied.
Unfortunately, under this Bill there is no obligation for criminal justice agencies to inform harmed parties about restorative justice systems. When we come to later amendments, we will be fighting hard to ensure that that does become a requirement, because victims deserve no less. The other part of this group also talks about signposting of services. I am grateful to the noble and right reverend Lord, Lord Harris of Pentregarth, who believes that the perpetrators need restorative justice as much. The right reverend Prelate the Bishop of Manchester said that being told there is a code is a start, but much more is needed. I suspect that the Minister will try to say that having such a system would be expensive. However, we know that not having the alternative is even more expensive not just in terms of the consequences for victims’ lives, but for the criminal justice system, parole and stopping recidivism. Without restorative justice, all those costs will continue to pile on.
I do hope that the Minister will bring us some good news. I gently remind him that in the costings for this Bill we were reminded that Part 4, on prisoners, will cost around £0.5 billion, but only a very token amount is allocated for victims’ services. Perhaps that balance is not yet quite right.
Baroness Thornton (Lab)
My Lords, I agree with the noble Baroness, Lady Brinton, as I often do, that we are now digging into how this legislation can be improved for victims. I congratulate the noble Baroness, Lady Gohir, on raising the issue of the gap in proceedings whereby, if there are multiple perpetrators, some of whom are not charged and some of whom are, the victim does not have the right to challenge why people are not being charged. That clearly needs to be remedied, and I look forward to hearing the Minister’s suggestion.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank all noble Lords who have spoken to this group of amendments. The Government appreciate the considerable work that goes into preparing amendments and arguments and bringing issues before this House.
By way of a brief reminder, in general terms the Government have a threefold approach to the Bill. The first is to set out general principles of the victims’ code included in Clause 2(3), supplemented by regulations in subsection (4). The second approach is to put the detail and the operational information that victims need in the code, rather than in the Bill. I commend to your Lordships the latest draft version of the code, published in June 2023, which sets out the 12 rights in a particularly user-friendly way. The third approach is to create a system whereby victims are aware of the code, and the relevant criminal justice bodies comply with their obligations under the code. The mechanism for this is set out in Clauses 6 to 10, supplemented by guidance under Clause 11.
I have reiterated that framework because, in the Government’s view, a lot of the debate we have had today is about what should be in the Bill and what should be in the code, in guidance or elsewhere in the framework. There may be no disagreement in principle about the importance of many of the things we are discussing, be it restorative justice or the right to object to a charging decision, but the question we are on now concerns the way the Bill should be drafted. The broad view of the Government on most of the amendments in this group and subsequent groups is that the matter is either already covered in the code or should be covered in the code, rather than being expressly on the face of the Bill. That is the Government’s broad position.
Turning to the amendments, I take first the amendment moved by the noble Baroness, Lady Gohir, relating to multiple perpetrators and the fact that in some cases if only one perpetrator is charged, the victim may be aggrieved because other perpetrators were not charged. First of all, this is a good example of how it should work; the principle of a right to challenge, from the victim’s point of view, is set out in Clause 2(9). The implementation of that principle in this context is in code right 6, which refers to the victim’s right of review scheme in respect of various police and CPS decisions. The noble Baroness rightly draws attention to an apparent lacuna in the CPS part of the scheme, which currently does not cater for the situation where only one of several perpetrators is charged. The Government are very happy to look again at that issue and to discuss with the relevant agencies how that lacuna should be addressed.
As the Government see it, this is a very good example, rightly drawn to public attention, of a possible gap in the code that should be addressed by making improvements to the code rather than putting the issue directly in the statute. The draft code itself, in its present form, will be subject to further consultation anyway under Clause 3 if and when the Bill is passed. That is essentially the Government’s position on Amendment 13.
I take next the important issue of restorative justice, of which the Government are wholly supportive. Amendment 14, in the name of the noble and right reverend Lord, Lord Harries, and Amendments 16, 17, 22, 32 and 52, in the name of, in particular, the noble Baroness, Lady Bennett, aim to ensure that on the face of the Bill victims should have access to restorative justice—that is the broad thrust of it—and that the Secretary of State should issue guidance about that.
The Government entirely accept that restorative justice is extremely important; again, I salute, if I may, the words of my noble friend Lord Hodgson in raising this issue so eloquently. However, important though it is, the Government do not feel that restorative justice should be elevated above all the other victim services by being specifically included in the Bill. Once you start including specific services in the Bill, either you have a very long list or you have to prioritise certain things. The Government’s view is that the structure should be that the Bill contains short principles, and almost everything else is in the code or guidance. To do otherwise is to introduce rigidity and might have the somewhat perverse effect of concentrating what are admittedly limited resources on some specified kind of support at the expense of other, equally valuable, kinds of support.
Lord Harries of Pentregarth (CB)
I think we are all very sympathetic to the idea that a huge amount could go in the code and the guidance, certainly as far as restorative justice is concerned. But the third part of what the Minister said the purpose of this Bill was is to ensure that the criminal justice system knows what its responsibilities are. Surely some things could go in there, including restorative justice. Will the Minister look particularly carefully at the evidence produced by the noble Baroness, Lady Newlove, about how at least 27% of people would have taken up restorative justice if they had been asked? Would he not come to the conclusion, perhaps, that it is only if it is on the face of the Bill that that situation will be remedied?
Lord Bellamy (Con)
My Lords, as the noble and right reverend Lord invites me, I will look again at that evidence and the whole argument. However, in relation to this aspect, noble Lords should be aware that access to all the supporting services and processes in the criminal justice system are already part of the principles under Clause 2(3). In the implementation of those rights, access to justice is already specifically provided for under right 3 in the present draft code, which, among other things, requires the police to provide all the information you need to exercise that right.
Baroness Brinton (LD)
My Lords, the problem with Clause 2(2) is that it is followed by Clause 2(3), which starts by saying, “The victims’ code must” but then in all its sub-paragraphs says simply that things “should” be provided, so it is watered down. I apologise for being pedantic on this point but it goes to the heart of what the Minister is trying to do. I believe he is saying to us that there is enough in the Bill that will support victims in regulation, but the problem is that there is no watertight “must” in the Bill as it stands.
Lord Bellamy (Con)
My Lords, I think we will come to the “must”/“should” point a bit later when we discuss the amendments proposed by the noble Baroness, Lady Chakrabarti. If I may, I will deal with that issue in general, in an umbrella way, in that context.
Baroness Bennett of Manor Castle (GP)
My Lords, I want to pick up the point made by the Minister about victim services going into the code rather than into the Bill. I feel I should apologise that although I have three degrees, none of them is in law—I often regret that these days—so perhaps I am wrestling with some technical questions here.
It seems to me that we are not just talking about restorative justice as a victim service. If you have been a victim of a crime, it goes to court, the police investigate and the criminal is punished; all those might be regarded as victim services but they are all in other Acts—they already exist as an absolute legal right that is laid down. What we do not currently have in any Bill is a right to restorative justice that is balanced. We are saying that restorative justice needs to be in there with an equal or at least appropriate level of weight, and it will not have that unless it is in the Bill.
Lord Bellamy (Con)
My Lords, if I may say so, what one should put in the Bill and in the code are matters of judgment and balance. In relation to restorative justice, which we are on, there have already been extensive discussions in the other place. The Government have said, first, that the code should include the right of victims to receive more information about restorative justice, particularly at the point of sentence, and that the importance of restorative justice services should be included in guidance to police and crime commissioners under Clause 11. I think that partly meets, and maybe substantially meets, the point made by the noble and right reverend Lord, Lord Harries, that you need to have in writing somewhere an emphasis on supplying restorative justice. The Government’s position on restorative justice is that that is a proper recognition of the importance of restorative justice.
One should also bear in mind in this context that restorative justice does not just happen; it also needs the consent of the offender, and is quite a delicate operation. You need a facilitator, and so forth. It is one of many services, mechanisms and procedures that are available. The Government’s position is that we should not spell out in the Bill all the mechanisms and procedures that are available but we should work hard to ensure that the code itself, the guidance thereunder and the arrangements for awareness that we will be discussing in due course together raise the profile of restorative justice so that it has its proper place in the system among other things. That is the Government’s position. No one is denying the importance of restorative justice. No one is saying it is a waste of time or should not be there; on the contrary, we are saying that its profile should be raised. The only argument is about how we do that, and Government’s position is that we do not do it by an amendment to the Bill itself.
Baroness Hamwee (LD)
My Lords, I am quite a localist normally, but is this not the very point? A single point of contact that is not prescribing what is available locally but is “signposting”—to use the right reverend Prelate’s word—should be provided, so that any victim, anywhere, will know where to go. They might not necessarily take the step of taking advantage of it, but it seems to me pretty central to the way services are made known that something such as this should go into the Bill.
I should also say that my noble friend Lady Brinton was trying to email me something, but it has not come through, so she may have another point.
Lord Bellamy (Con)
I shall not be attempting to answer the email that has not yet come through until it does, but my general answer to the noble Baroness is that the whole thrust of the Bill is that each criminal justice body must take reasonable steps to promote awareness of the victims’ code among users of those services and other members of the public, et cetera. I cannot conceive how you could discharge that duty of raising awareness without informing people how to access or go to whatever services they need, so it is implicit in the operation that that sort of information will have to be provided. The way in which it is provided and the detail of it is not for the Bill but for the code and the guidance.
Lord Hogan-Howe (CB)
My Lords, I am sorry to delay things, but there is one thing I am not clear about. Restorative justice at the moment is available for the suspect as an alternate to going to court, with the agreement of the victim. If the right is to be given to the victim to insist on restorative justice, is that an addition to a potential court appearance or an alternate? If the Crown Prosecution Service has decided that there will be a prosecution but the victim insists on their right to restorative justice, does that change that decision? I am not quite clear from the amendments, nor the Minister’s response, how that dilemma is resolved. It may be that I have just misunderstood, in which case I apologise, but I do not quite understand how that gets resolved.
Lord Bellamy (Con)
My Lords, I may be as underinformed as anyone but my understanding is that the classic case of restorative justice is that once there has been a prosecution and a conviction, there is a process for some kind of reconciliatory interaction between the victim and the offender—for example, of the kind that my noble friend Lord Hodgson so eloquently described—in a way which enables both parties to process and come to terms with what has happened. It is not typically an alternative to having a prosecution in the first place, as I understand it, although that might arise.
Lord Blunkett (Lab)
My Lords, I know there is an unwritten convention that noble Lords should not intervene when they were not able to be here at the beginning of a group, which in this case was last week, but I do not think that convention prevents me asking a question. Is it not really important that people in the prison system are able to understand what they can do for themselves, and for the victim, by engaging with restorative justice? That is one of the reasons I put my name to Amendment 14. The right honourable Stephen Timms in the other place is an excellent example: he has corresponded with, and is arranging to meet, the perpetrator of the attack on him many years ago. That will, I hope, assist them both—the perpetrator in her release and her future—and give some consolation through her coming together with the victim, who in this case was Stephen Timms.
Lord Bellamy (Con)
My Lords, I thank the noble Lord, Lord Blunkett, for his question. I would obviously not dream of making any procedural point, as it is a very fair question. I do not think it is clearly envisaged in the Bill or the code, as it stands at the moment, that it should be the perpetrator who is seeking some sort of restorative justice, rather than it being something that the victim is entitled to. The noble Lord’s point is well made and we should think further about it.
Baroness Gohir (CB)
I thank noble Lords who have spoken on this group and those who supported Amendment 13. I thank the Minister for his response on the concerns raised in the group, particularly on ways to address the gaps in victims’ right to review. Although I am encouraged, I remain concerned, so I hope that the Minister will be able to share a draft code and continue the discussions. For now, I beg leave to withdraw Amendment 13.
Baroness Coussins
“(3A) Where interpreting and translation services are needed, the victims’ code must specify that specialist, qualified and experienced professionals must be engaged.”
Baroness Coussins (CB)
My Lords, I will speak to the four amendments in the second group in my name, which are supported by the noble Lord, Lord Ponsonby, the right reverend Prelate the Bishop of Leeds and the noble Baroness, Lady Benjamin. These amendments concern the issue of interpreting and translation in relation to the victims’ code. I gave an outline of my case at Second Reading, so I shall not of course repeat that today.
Since then, the noble and learned Lord, Lord Bellamy, has been kind enough to meet me to discuss my amendments. I am very grateful to him for taking the time to hear me out. I should first declare my interests as co-chair of the all-party group on modern languages, and vice-president of the Chartered Institute of Linguists. I am indebted to the chartered institute, to the National Register of Public Service Interpreters and to the Bell Foundation for their helpful background briefings, constructive proposals and hard evidence of why these amendments are needed.
Amendment 18 adds an extra specification to the face of the Bill about what the victims’ code must do, in addition to what is already listed in Clause 2(3). The current interim code states that victims have the right of
“access to interpretation and translation services”
if needed.
As a technical aside, the word currently used in the code is “interpretation” rather than “interpreting”. However, I have used the word “interpreting” as it is the more accurate word and the word already used in other MoJ contexts. I have discussed with the Minister why this word should be brought into the text of the code itself. In case other noble Lords are beginning to nod off and think that I am splitting hairs unbearably, I will explain. The word “interpretation” implies analysis and paraphrasing, whereas the word “interpreting” explicitly means repeating in another language exactly, accurately and only what the speaker has said, without any commentary, advice or suggestions—all of which would be totally unprofessional and anathema to any properly trained and qualified interpreter.
With the technical detail over, I go back to Amendment 18. It is vital that this overarching requirement be enshrined in the Bill and not left to the code, guidance or regulations. As I said at Second Reading, it is completely unacceptable that unqualified, underqualified or inexperienced individuals should be used as interpreters, especially in situations which are dangerous, sensitive, emotional or otherwise challenging for victims.
We know from thoroughly documented experience in the criminal justice system, and other areas of the public sector such as the health service, that a general or vague commitment to interpreting and translation services does not always deliver what is needed or required in practice. If it is left to guidance only, we also know from the NHS experience that there is no monitoring of whether the guidance is observed. Public service interpreters are specialist, qualified and trained professionals. A member of the family does not count. A teenage child certainly does not count. A neighbour does not count. A court official who happens to speak the same language at home does not count. Google Translate certainly does not count.
Put simply, fair access to justice for non-English speakers should be a legal right, not a guideline, recommendation or piece of good practice advice. If the need for a professionally qualified interpreter is stated only in a code or piece of guidance, it is in practice effectively optional. If it is on the face of the Bill, it becomes mandatory and enables us to put a stop to bogus or unqualified people pretending to be interpreters. In the world of public service delivery, that makes all the difference.
We know from various surveys, including one commissioned by the noble Baroness, Lady Newlove, that awareness that the code even exists is at very low levels. How much lower must the awareness levels be for people with poor or no English?
At the same time, different scenarios might legitimately demand different levels of qualification or experience. This is why the MoJ, in the light of discussions that I held with the Minister’s predecessor, the noble Lord, Lord Wolfson, over the Police, Crime, Sentencing and Courts Bill, embarked on a thorough independent review of the qualifications and experience required of court and tribunal interpreters. I believe that it is close to publication, in time for the issuing of the next invitation to tender for contracted-out language services.
The Lord Bishop of Leeds
My Lords, I apologise that I was not able to be present at Second Reading—the day job had to take precedence. I rise to endorse thoroughly what the noble Baroness, Lady Coussins, said in her speech. I wish not to speak to each amendment but to add a bit of heft to what she said. I do not exactly declare this as an interest, but I was a professional linguist before I went into the Church, so language has been important to me right the way through.
We heard in the Minister’s response earlier that victims must get the information they need. They also must get it in a form they are able to read, or hear, and understand. In this country language is often misunderstood or not taken as seriously as it ought to be, or as one might find in some countries in continental Europe, for example, where you live on boundaries and have to operate in a number of languages. Because we are an island nation, this is something we do not necessarily experience.
Having trained as a translator and interpreter—these are very different skills and professions—I understand the problems of inaccuracy and of getting even nuance wrong. We are talking here about victims who are already seriously disadvantaged. That disadvantage, that damage, should not be exacerbated by running the risk of them simply not being able to be understood, or to understand what is being represented to them.
There is something here about professionalism. If noble Lords do not believe that this is important, I hope they watched the funeral of Nelson Mandela, where the deaf interpreter simply went awry—it looked like he was conducting an orchestra, but badly. He said afterwards that he was simply overawed by the experience, but many people doubted that he had the skill to do what he had been signed up and paid to do. It really matters. I found it very entertaining but not very edifying, so I emphasise the need for professionalism in this.
The noble Baroness, Lady Coussins, referred to Google Translate, which most linguists go to for a bit of a laugh and to see what it suggests. When I lecture in German at German universities, I often run my texts through it for the entertainment value, but it is rarely accurate. Now we have translation by AI systems—Google Translate is that, really—which can be entertaining too. They can be helpful if you need a bit of a boost, but you would not rely on them for something that was important for life and death.
That is why the national register is so important. My understanding is that this country has a shortage of not only linguists—I could say much more about that—but qualified linguists able to go on the register and do what we are asking them to do. That triggers a different question. We cannot just say that we do not have the qualified people and therefore must make do; we have a bigger challenge to emphasise the importance of language learning, which has many knock-on effects for how we understand people and culture. As I often repeat, the former German Chancellor Helmut Schmidt, when giving advice to younger Germans asking him about going into politics, wrote: “Don’t even consider it unless you have at least two foreign languages to a competent degree, because you can’t understand yourself and your own culture unless you look through the lens of another. For that you need language, because language goes deep”. Some things cannot be translated; you need a degree of expertise to deal with them.
There is a wider issue, but I will not bang that drum any further now. This is fundamentally a matter of justice. If victims are to be heard and to hear accurately, this ought to be in the Bill.
Lord Wigley (PC)
My Lords, I thank the noble Baroness for bringing forward this amendment. When I spoke at Second Reading, I did not realise that this dimension might arise—clearly it can, and it is important. I address the Committee as one of a small minority here who do not have English as their first language. In fact, I calculated over the Easter Recess that I speak in English less than 10% of the time. This Bill will impact not just England but Wales, where Welsh is an official language. I do not see much evidence in the Bill of any adjustment being made for that purpose.
Fundamentally, the Bill deals with victims. There are perhaps four groups of victims for whom the language dimension is critical. First, there are children; at home in Wales, a large number of children—certainly tens of thousands—have Welsh as their first language. They acquire English as a second language as they get older, but under pressure they will no doubt want to revert to their first language, which is the natural language in which they express themselves. Another group of great importance to me and a number of other noble Lords is disabled people. When put under stress, they need assistance. If there is additional stress from dealing in a language that is not their first, they will need assistance.
That is also true for elderly people. As people get older, they revert to their first language, particularly those who have had strokes. People from Wales have found themselves in residential homes in the south of England; the staff think they are speaking gibberish, but they are reverting to their first language. That group also needs to be brought in. Finally, there is the general group of people who are under stress, whatever their age or background, and need to be helped to express themselves in their first language. This is important in Wales. Reference was made a moment ago to the Children’s Commissioner. We have our own Children’s Commissioner for Wales and our own framework, but I am not sure that the Bill takes that on board. Clearly, provision needs to be made.
The day has now passed when an ad hoc translator would be whistled up for a court case from those who happened to be around—usually a minister or a teacher, who could roughly translate what was being said. I have mentioned before in this House how many people over the centuries—although not in this or the last—were hanged without understanding a word of what was going on in the court that declared them guilty.
Baroness Newlove (Con)
My Lords, I support of all four of the amendments and thank the noble Baroness, Lady Coussins, for a thorough explanation. We are talking about victims in the criminal justice system understanding their rights and entitlements in so many languages. We are talking about understanding the legality of words in the English language, and it is no wonder we find these barriers as we go through the system.
The first right under the victims’ code is:
“To be able to understand and to be understood”.
That seems fairly basic, but for many it is not their experience. I have met many victims of other nationalities who have said the same. I am grateful to the VAWG sector communication barriers working group for its guidance, and in particular to the late Ruth Bashall, who was the CEO of Stay Safe East and a tireless advocate for deaf and disabled survivors. They have consistently raised how disabled victims and other victims of crime—for example, those with English as a second language—are severely disadvantaged in accessing justice by the lack of accessible information, communication support and physical access to buildings or facilities. In this context, disabled victims and other victims have fewer rights than suspects, who have some basic rights under PACE—for example, the right to an interpreter.
Though some adjustments, such as the right to an intermediary, are contained in the victims’ code, they are rarely used. I am disappointed that, six years on from my report looking at the availability of intermediaries, A Voice for the Voiceless, I am still hearing that there are far too few intermediaries to meet the demand, and that this is causing significant delays, with the victim sometimes simply withdrawing.
I often hear that information provided to victims is inaccessible. Both my predecessor, Dame Vera Baird, and I have directly asked the criminal justice agencies to provide victim information in clear, accessible language, as well as in Easyread, BSL and other language versions. All too often, communication with victims is lacking, and there is still a great deal of work to be done by agencies to ensure that victims understand and are understood. It is vital that the criminal justice system is accessible to all victims of crime and that they receive the communication support they need. As a first step, the code itself must be accessible. Although, commendably, the Government took steps to make most recent iteration of the code easier to understand, as well as publishing Easyread, translated and children’s versions, it is still not accessible for a large number of victims. The Government must ensure that the code is accessible to all victims of crime.
I want to end on a personal story from a victim who was raped and trafficked from Albania. She was disabled. In Albania, if you are born disabled, your body parts are very valuable, so a baby tends to be hidden if he or she is disabled. She reported the rape when she was in this country and rehoused. She went to a police station. The police looked for an interpreter. They found one who had the same dialect but who was actually from the trafficking gang. She was mortified. She simply could not believe that she had gone to the police station and that that interpreter was taking over her complaint. She withdrew it.
It is not simply about producing someone who can speak a language; it is about understanding a dialect. We need professional people who can help victims through our criminal justice system.
Lord Hogan-Howe (CB)
My Lords, I support the noble Baroness, Lady Coussins, particularly on the collection of evidence in criminal cases. She is arguing for precision, accuracy and consistency. At the moment, the system suffers in respect of all those three criteria.
The establishing of truth relies on the establishing of accurate evidence. It usually looks for accuracy, precision and consistency, but if we have any doubt about interpretation of another language, all those three things suffer. There is a concern that where the standard of interpreters is not established to a high and consistent level, there is a risk that the obtaining of evidence is damaged. This matters particularly for the police in the initial obtaining of evidence—which is usually an oral account. Eventually, the oral accounts have to be reduced to writing and the written evidence then fed back to the witness or victim to establish whether it relates to what they have told the police officer. If there is a difference in how those are interpreted, the person may not have a proper, accurate account of how they described their experience.
A secondary issue is that if there is not a consistent standard, different interpreters may help the police and the victim during different parts of the process. They may help the victim with the initial account; then there may be a written statement. After an interview with the suspect, the evidence may be checked. It is important that the interpreter is the same person or, if not, that there is a common standard of interpretation. Otherwise, there is a risk that the truth is not established.
Precision matters in obtaining the victim’s or witness’s account. It also matters in interviews to establish the suspect’s account. It matters generally in evidence collection because the person who holds the evidence may not be the person who is going to give it. You need to establish whether the CCTV and all the other digital evidence that is available now is what you want, and to make sure that it is accurate.
Finally, precision matters for juries. They will not only want to hear what is said in court; they will want to compare it with the first account as well. If there is inconsistency, they will want to understand it. If we are not careful, they may judge the victim or the witnesses harshly. In turn, that may impact on the suspect. It is vital that consistency and precision are there. As the noble Baroness, Lady Newlove, said, it matters also for the care of victims and witnesses. If we do not understand how people are living, the challenges they face and the nature of their lives, it is very hard to do what this Bill is trying to establish, which is consistency in care for victims in a way which supports them beyond the event and beyond any criminal prosecution.
The noble Baroness, Lady Coussins, brought out well that this is not only about the interpretation of language—that is, what happened, who said what or who did what—it is also about the legal process. An interpreter may be well qualified to interpret language but may not always understand the legal process. Of course, the victim relies on them to understand both. They need good advice to understand how the process will affect them and its impact; for example, in a court case. The evidence may be challenged in a court case to establish its accuracy, but the victim may take this as an attack. In particular, somebody who has a second language may have an experience of another criminal justice system which may not be like ours. It may be more adversarial—sorry, it could not be any more adversarial than ours, could it? It may search for the truth in a different way. They certainly need to understand how our system works if they happen not to have experienced it before.
For all those reasons to do with evidence collection, precision and accuracy, I support the amendments in the name of the noble Baroness, Lady Coussins. She has been pushing this point for a while. It has not been established; it is time it should be, and this is a great opportunity to do it.
Lord Meston (CB)
My Lords, I also support Amendment 18, which would require the code to provide for interpreting and translation services and, more importantly, for the standards to be expected of the professionals supplying those services.
Good and reliable interpreting and translation is an increasingly necessary part of the justice system in all areas. It is also an expensive part of the system, for which value for money should be important. Most interpreters are good and efficient, but others, regrettably, are less so. A long time ago when in practice, I recall a particularly impatient interpreter helping me and my client who pulled me aside and urged me to get my client to plead guilty, which I politely declined to do. That completely undermined the confidence that either of us could have in that particular interpreter.
At present, as I understand it, court interpreting services are obtained through agencies used by the Courts & Tribunals Service. If this amendment or something like it is enacted, I would assume that the same agencies would be used. In any event, I would hope that care is taken to stipulate, ensure and review the efficiency of the agencies used and the quality of the work they do.
Finally, I would also hope and expect that this amendment, if approved, would be understood to be wide enough to help those requiring sign language and lip-reading assistance. If not, will those requirements be expressly covered by the code?
Lord Marks of Henley-on-Thames (LD)
My Lords, I also apologise for being unable to be present for Second Reading. I will speak very briefly in view of the comprehensive opening speech on this group of amendments by the noble Baroness, Lady Coussins, and the speeches from all other noble Lords. I pay tribute to the noble Baroness, Lady Coussins, for a sustained campaign on the need for professional interpreting and translation services. We have travelled this road before in other contexts, but I hope that the Government will pay the closest attention to her arguments and her justification for these amendments.
The first point is an obvious and a human one. Just as for witnesses, complainants and defendants in formal criminal justice proceedings, so for victims in understanding the code and in securing, receiving and understanding services, the experience of being a victim is extremely traumatic, emotional, often unique in the victims’ experience, and it is very difficult for the victim to comprehend what is happening to them—in short, it is difficult to understand in a human way. These problems are all the more acute for victims whose first language is not English.
However, the main point that the noble Baroness, Lady Coussins, made, and the point of these amendments and the conclusion, while in the context of that initial human point, is thoroughly supported by her arguments. Complete understanding of the language is vital. What is needed, therefore, is a service that as closely as possible diminishes and removes language barriers, so what is written and stated in English is understandable to the victim, and what is written and stated in the victim’s native language is understandable in English. That can be reliably achieved only if the translation is full, accurate and direct.
The stress the noble Baroness places on the distinction between “interpreting” and “interpretation” is of the greatest importance. It is crucial that, just as in courts, when evidence, submissions or judgments are delivered, in the context of victims’ needs the translator’s or interpreter’s view must not be interpolated between the service provider and the victim or between the code and the victim. Translation and interpretation should convey exactly and straightforwardly what is said or written to and by the victim.
There is a risk, which is well known in courts and other contexts, that when non-professional, unqualified or inexperienced translating or interpreting services are involved, the directness and accuracy are compromised, not just because mistakes of meaning may be made but because the translator’s or interpreter’s own ideas and understanding colour, embroider or develop the meaning of what is written or of what is being said. This process may, and often does, reflect the best of intentions on the part of the interpreter—the intentions of those who are genuinely trying to help.
We should not underestimate the temptation for people, including professional service providers, looking for understanding or expression in order to seek or accept help when that is well-meaning but unprofessional, and the risk that those good intentions may involve. That risk, whether well-intentioned, or, as in the example of the noble Baroness, Lady Newlove, of the interpreter in the police station who was effectively on the other side, always needs to be minimised, and these amendments offer a good chance of achieving that minimisation.
Lord Berkeley of Knighton (CB)
My Lords, I support my noble friend’s amendments, and I particularly emphasise the points we have heard about having people with expertise. The right reverend Prelate spoke very clearly about this.
This can also be very much affected by dialect-inflected accents which mean that it can be very hard for everyone, including members of the judiciary, to understand what is being said. I spoke before in your Lordships’ House about an occasion where I actually heard the word “car” misread as “cow”. Of course, you do not really want a collision with either, but the Highway Code can deal with only one of those two. In the interests of justice, clarity is important and interpreters must be well trained. The noble Lord, Lord Wigley, mentioned Wales, where I spend a lot of time. Of course, there is a huge area here for confusion. We need people who are to a certain extent site-specific. For example, if you are in Newcastle or Liverpool, you may well—if you come from London and, like me, from the BBC—have trouble understanding exactly what is going on. But it is imperative in the name of justice that people are well-trained and can really do the job properly, so I strongly support my noble friend’s amendments and I very much look forward to what the Minister has to say about them.
Baroness Brinton (LD)
My Lords, my noble friend Lady Benjamin would have liked to speak from these Benches today, but, unfortunately, she cannot be here. She told me that, in signing all these amendments, she supports the attempt of the noble Baroness, Lady Coussins, to strengthen interpretation, in particular, but also access to services in other languages. Much has been said, and I will not repeat it, but we need to commend the noble Baroness, Lady Coussins, who has from every possible aspect in your Lordships’ House—whether in debates or on legislation—ensured that we think about the importance of other languages that are not our first or our own. One of the key things that has come through this short debate is that that relates to not just the traditional languages that we may have perceived through learning at school or going on holiday but the rights of people who are deaf to have BSL interpreters; to have easy-read or particular interpreter support for children or those with learning difficulties is equally vital.
The right reverend Prelate the Bishop of Leeds reminded us that this is all about fair access for victims, and he talked about “the culture”. I worked at Cambridge University for 20 years in various roles and on two or three occasions had to help foreign-language students when they had been victims of crime. They had good English, but they did not have confident English to deal with what had happened to them in the aftermath of an incident, let alone understand the culture of how our system works—whether it is the police or the criminal justice system. Having an interpreter to whom they can explain what has happened and in return to hear how the process will happen—importantly, that must neutral, as many noble Lords have mentioned—is vital.
I thank the noble Lord, Lord Wigley, for raising the issue of vulnerable groups because that is important too. He might be amused to know that I am now the step-grandmother of a six year-old child for whom Welsh is very much her first language—I am trying to catch up. A child of that age just speaks the language as it comes and even in the family environment it can throw you when you do not understand. How much more important is that when you are navigating a system such as the criminal justice system?
My noble friend Lord Marks set out the important reasons for the criminal justice system that we professionalise language and interpretative services. We absolutely support that on these Benches and I hope the Minister will listen favourably to all the comments that have been made so far.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too thank the noble Baroness, Lady Coussins, for this group of amendments, to which I have put my name. I echo the point that she has had a sustained campaign on this through a number of Bills and I very much hope that this group of amendments will reinforce her campaign, if I can put it like that, and the Minister will look at it favourably. She gave various examples of shortcomings in the court system where interpretations go wrong and I have had personal experience of every single one of the shortcomings that she highlighted. I suspect that anyone else who has worked in the courts, particularly in our metropolitan cities, will have experienced those shortcomings as well.
The right reverend Prelate the Bishop of Leeds spoke about his work as a linguist and I think I am right in saying that he is a Russian linguist—he is nodding his head a bit. It reminded me of when I understood the difference between interpretation and interpreting. That was when I was working in Ukraine and had a Russian interpreter interpreting for me. She was so fluent that she could talk simultaneously in whatever conversation was happening and, she told me, she also did her shopping list in her head at the same time. That is how fluent she was. There really are some remarkable people who do this work. The other thing I learned through various aspects of my life is that there are specialisms within interpreting and it is very important that you recognise the limits of the interpreters one is dealing with at any particular time.
This brings me on to the point made by the noble Baroness, Lady Newlove. She gave the example of an Albanian gang member who was involved in interpreting in a case of alleged rape. One thing I have become aware of in dealing with domestic abuse, particularly when it is minority groups with minority languages, is that you have to be very cautious about who the interpreter is. The information that comes through the interviews with the lawyers and the like can easily leak out into the wider community of that group and can undermine the woman in whatever legal remedy she is seeking. It is a point that I absolutely recognise.
The noble Lord, Lord Hogan-Howe, talked about the processes themselves and the noble Lord, Lord Meston, talked about value for money. He also spoke about sign language and lip-reading, both of which I have experienced in court. It is quite an exhaustive process and I understand that it is quite expensive when you have to have relays of sign language interpreters when one is dealing with particular cases. Nevertheless, there is a fundamental point underlined in this group of amendments from the noble Baroness, Lady Coussins, about access to justice and we need to make sure that the standards are as high as possibly can be obtained.
The noble Lord, Lord Marks, said, “Don’t underestimate good intentions when interpreters are interpreting”. Many times, I have seen them try to help understanding by overexplaining things, which actually undermines one side or another of the case. I understand that this is a difficult, sensitive issue but I very much hope that, when he comes to reply, the Minister will give as much reassurance as he possibly can—both that standards are kept at the highest possible level and that all necessary procedures and protocols are properly reflected—so that the aspirations of the noble Baroness, Lady Coussins, can be fully met.
Lord Bellamy (Con)
My Lords, I thank the noble Baroness, Lady Coussins, for raising this important topic. I join in the general commendation of the way in which she presented her amendments and the way in which noble Lords have subsequently supported them.
In relation to the remarks of the right reverend Prelate the Bishop of Leeds, I will, if I may, trespass on your Lordships’ indulgence. Let me say that, having had to work for several years in an entirely foreign language and an entirely unfamiliar legal system, I am quite conscious of the difficulty that one has. There comes a point—in my experience, at least—when you get stuck between two stools and you cannot say anything in either language in trying to express yourself. So the subject matter of what we are discussing is well understood.
Perhaps we might start with the common ground. It goes without saying that interpreting—I emphasise that word—and translation services must be of the highest quality and clarity in the criminal justice system, as well as tailored to the victim’s needs. As far as the Ministry of Justice is concerned, interpreting and translation services are provided under contracts where the various standards and requirements are laid down. As I think the noble Baroness, Lady Coussins, pointed out, those arrangements have been subject to ongoing and extensive review, which I hope will be completed shortly—at least not before long—to ensure that we have the highest quality. Obviously, the general objective is fairly self-evident: in the justice system, you must have a high standard of interpreting and translation. For the CPS, interpreters must be on the National Register of Public Service Interpreters. That is the first area of common ground.
The second area of common ground is that, for those whose first language is not English, the right to understand and be understood is enshrined in the code. It is right 1—the most important right of all—and is set out on page 15 of the present draft of the code, which says that
“providers must communicate in simple and accessible language and all translation or interpretation”—
I take the point that it says “interpretation” but probably should say “interpreting”—
“services must be offered free of charge to the victim”.
So this is recognised as a right. If it is not always achieved, as the noble Baroness, Lady Newlove, feels, that is, in effect, why we are here. The whole structure of the Bill aims to remedy possible defects and create a system in which we can raise standards progressively and consistently across the country, commissioning bodies can learn from each other and we can improve the service available to victims, generally speaking; that is an operational issue rather than an issue of principle. No one is disputing the broad thrust of the comments that have been made.
Here, once again, we come to what is in some ways the philosophical issue behind everything that we have been discussing: to what extent should we introduce matters in the Bill and to what extent should we deal with the operational and detailed aspects in the code or in guidance? On that point, the common ground tends to be a little more limited, if I may say so.
Baroness Coussins (CB)
My Lords, I am grateful to all noble Lords who spoke in support of my amendments in this group. I also thank the Minister for his reply. He drew a distinction between principles, which he said should be in the Bill, and operational guidance. I would argue that surely it must be a non-negotiable, bottom-line principle that interpreting and translation services should be provided by qualified trained professionals; that to me sounds like a principle. An example of an operational guideline would be specifying a level of diploma qualification for a particular category of case, situation or scenario. So I urge the Minister to be emboldened by the unanimous support around the Chamber for this set of amendments and to negotiate for a bit more room for manoeuvre, particularly on Amendment 18.
To answer his question about Amendment 25 and why we should have consultations in translation, the surveys conducted by the noble Baroness, Lady Newlove, showed that awareness of the code was very low. If we want to know what all victims, not just native English speakers, think about it, we need to consult properly, not partially.
I will beg leave to withdraw my amendment at this stage, but I fully expect to come back at a later stage to press further. I hope that, in the meantime, the Minister might agree to meet me again to see whether we can find any of that room for manoeuvre.
Baroness Brinton
“(5A) Regulations under subsection (4) must make provision for a person to be able to obtain free of charge, on request, a transcript of a trial in which the person was involved as a victim.”Member’s explanatory statement
This amendment aims to provide victims of crime with a right to free transcripts for the trial in which they were involved.
Baroness Brinton (LD)
My Lords, I have tabled Amendment 20 and I thank the noble Lord, Lord Russell of Liverpool, and the noble Baroness, Lady Chakrabarti, for signing it. The background to this amendment is that victims and their family members often feel that they are bystanders in the justice process, unable to have their voices heard and sometimes actively dissuaded from having any involvement in proceedings. We believe that open justice means transparency for the public, but even more so for the victim, because they have arguably the most vested interest in seeing justice done.
My honourable friend Sarah Olney had an Adjournment Debate down the other end and correspondence with Ministers Edward Argar and Mike Freer on this issue. She tabled an amendment to this Bill when it was in the Commons; it was not selected for debate, but she continued to take the matter up and Ed Argar announced in the Commons a one-year pilot scheme to enable victims of rape and other serious sexual offences to request Crown Court sentencing remarks. But this is insufficient, and it is the reason we have retabled this amendment.
We have heard in some of the stories from victims that they are not just actively dissuaded from returning to court after they have given their evidence but that various people in the criminal justice system have told them that they should not return to court. The reason for that is they are told, whether by court officials, their own counsel or even the judge, that their presence in the court will affect the jury’s attitude towards them and, as a result, might mean that the jury would go against them—as if they wish to be voyeurs in the case in which they have been victimised.
Claire Waxman, a long-term victim of stalking, was told repeatedly not to attend her offender’s sentencing as it could make her look vindictive. Another victim said: “I was told I could not watch the court case after giving evidence, as I’d look like I wasn’t scared of the perpetrator and it could harm the jury’s decision”.
After inquiry, we have some data that shows there is a range from about £30 for a copy of a judgment to more than £300 for an original transcript of sentencing remarks. Where a victim requires a transcript of the entire court case, we have seen figures going from about £7,500 to £22,000. That is absolutely unacceptable.
Sarah Olney reported that in 2020 one of her constituents was raped and drugged by a former partner, who was sentenced to 18 years in spring 2022. Her psychiatrist advised her to apply to the court to obtain a copy of the trial transcript, to aid her recovery and understanding. Her application for a free transcript was denied by the court, and she was then quoted £7,500. That was unaffordable, as she has been unable to work following the attack because of PTSD. Unlike many other victims she attended the 10-day trial, but she said she could barely remember what was said due to emotional distress.
Judges need to ensure that the discrimination that is happening is cut out. The Bill cannot address that, but I would be really grateful if the Minister gave some thought as to how we can stop victims being victimised yet again in the middle of their own court process when their case is being debated. The current system of fees flies in the face of open justice, because a victim must pay for the details of their justice. Many will not want it, but some will. The psychiatrist of the lady I just referred to thought it was absolutely key for her to come to terms with what had happened to her, and indeed to her offender.
Technology has moved on, I suspect, since concern was first raised about this. One of the issues is how easy it is to get access to audio in Crown Courts. That would leave the victim, even if they could not get a written transcript, to be able to listen to a judgment, at the very least. We know that this is already available in coroners’ courts—and without charge. Why not in Crown Courts?
Above all, AI technology means that the old days of having to get a stenographer to listen to audio and spend many days typing it, perhaps getting some of it checked back to make sure that names and exact details are right, are long gone. Obviously a court would not want something that had not been checked to go out, but the really long part of it has been completely overtaken by events.
As Mike Freer MP said in the debate in the other place:
“The ability to access transcripts from court proceedings is an essential part of maintaining transparency and accountability within the system”.—[Official Report, Commons, 16/11/23; col. 848.]
From these Benches we really wish the pilot well, but the pilot itself is too narrow and does not cover the wider range of crimes that victims are covered by in Part 1 of the Bill. Secondly, the pilot has not even started and will run for at least a year. I hope that the Minister will consider expanding it a bit—at least for the pilot to cover other crimes, but also to ensure that it is not a wonderful pilot that will then sink into the long grass. I beg to move.
Lord Russell of Liverpool (CB)
My Lords, I support the noble Baroness, Lady Brinton, in this amendment. I pay tribute to her and to Sarah Olney, who has been meticulous in her pursuit of clarity on this issue.
At a trial, the judge’s summing-up and sentencing remarks in particular are of obvious and great importance to victims. As the noble Lord, Lord Marks, said in the debate on the previous group, for many victims the experience of being in court is highly stressful and often quite traumatic, and one would not exactly have total recall of what was going on. Indeed, I suspect that most of your Lordships would not have total recall of many of our proceedings here. The ability to read and review the summing up and sentencing and ensure that they are taken fully on board is surely a fundamental right.
Baroness Chakrabarti (Lab)
My Lords, it is a total privilege as always to dip my first toe into your Lordships’ Committee on this very important Bill. It is a pleasure, not for the first time, to be in support—it is always very loud at that end of the Chamber; I am just saying —of the noble Baroness, Lady Brinton, and the noble Lord, Lord Russell of Liverpool. I would say that they robbed my arguments, but they are their arguments and we share them.
I think the amendment is a no-brainer. It is not partisan and not controversial. In a previous era, the controversy would have been about cost. The argument against it in a previous era would have been, “Goodness me, we would need armies of people”, probably women, “sitting there, typing away with headphones on, to deliver these transcripts in real time”—but of course we are not in that place any more. Even in that previous era I might have argued, because I am who I am, that it was a price worth paying, but we are not in that place.
I also give respect to the noble Baroness, Lady Coussins, whose previous group I heard—she is not in her place at the moment—because in a way my argument and what we are discussing in this group is similar to what I just heard.
The cost implication is not such a problem now because of AI—there is wicked old AI but also positive AI, right? AI is already being used across public services, in the City and in financial services. I have some qualms about AI making decisions instead of humans that have a huge impact, but not when it is supporting transparency. This amendment is, in a way, about translation, just like the last group was. How can victims be part of this process if they do not have a record of what happened?
The noble Lord, Lord Russell of Liverpool, made an analogy with Hansard, and it is quite a good one. Looking at friends around the House, I ask how many times, in honesty, when the adrenaline is going and the heart is pacing, have noble Lords left the Chamber to be glared at or congratulated by friends and colleagues, and remembered word-for-word what happened. And I am talking about noble Lords who have the privilege of being legislators and being in this place. This is the point the noble Lord, Lord Russell of Liverpool, made so well. If that is a problem for us as human beings, imagine not being a noble Lord giving wisdom in your Lordships’ House, but instead a victim of crime with all the pressures we all know about. They go into the court and, in the current underfunded system, do not even know if they will bump into the defendant and the family members, or know what will be said about them or what their community think, et cetera. This applies as much to the previous group on language translation as it does to this important amendment on transcription.
How lucky are we, in this generation, with all the challenges we face, to have the technology that would now allow us to give a transcript to a victim of what happened? This is not a partisan amendment; this is not a difficult amendment. This is something that the Minister—who I know really cares, from a lifetime of public service to the rule of law—and his colleagues could deliver. I really believe that this is so deliverable. Therefore, I urge the Minister and his colleagues, hopefully with the benefit of AI so no one has to take everything down, really to think about this. It is an easy win for everyone. To have a record they could look at after the event with family, friends and lawyers could make such a difference to people who are scared, excluded, have adrenaline rushing and experience the fight or flight of being a victim—sometimes of minor crimes and sometimes very serious crimes. I look at my noble friend Lord Winston. I sometimes think we could do with this when we go into see an oncologist. In these difficult moments in life, if we could have this opportunity, with family, friends and advisers, to look at a record of what happened, it could really help people. As I say, it is not a partisan or ideological amendment, but such amazing 21st-century common sense. I support the noble Baroness.
Baroness Newlove (Con)
My Lords, I am listening to all of this. My brief, from my team, is to correspond with Ministers, but I will speak, I hope in a succinct way—because I do waffle at times and get so distracted because I am that passionate—and as eloquently as other speakers in the Chamber.
I have dealt with transcripts—I am showing my age here—since 1980. This is how I know we should not have to have this discussion. As a committal court assistant, I used to take evidence down and do these transcripts the old-fashioned way with headphones and typing. That got abolished because of cutbacks. I then became a legal PA where I did barristers’ briefs. Again, everything was all there for the client, the defendant and everyone else, indexed.
Then came Garry’s murder. I listened to everything at a 10-week court trial. I listened to my daughters giving evidence. They wanted to come back and sit in the court, but as a mum I advised them it was too brutal for them. I am very glad I did, because five QCs goaded by defenders is not something I want my children to see after seeing their dad kicked to death. So, I know that element of it. I did get a summary of the judge’s direction, but I do not remember that document to be perfectly honest because it is so traumatising. I found a lot more out from the media, believe it or not, because they could see the dock and they give out everything 24/7—even to this day, I check on things because my mind is a blur.
Parole hearings are where statements are made. People do not know what date the parole hearing will be, they are just asked to do it and it goes off—not into the iCloud, but into something they cannot control. In all of this, the defendants and the barristers for the offender have a copy. The offender has a right to see these copies. In parole hearings, the offender has a right to see what I say about the impact of the crime. Surely, we should be able not to pilot this scheme, but to have the decency to just give a copy. We can go to the Post Office and pay 15p for a photocopy of a document. We have a digital system now even for passport photographs; we can go in a photo booth and give a code number and it appears on GOV.UK. Surely, we can have a copy of the transcript—the direction, the sentencing, how it was all resolved—for whenever a victim decides to pick it up. It is at their discretion, but surely we should not be looking at the monetary value of their damage, of the direction of the sentence and the direction for the judge, because it is so important to victims.
I ask my noble and learned friend: could we have further discussions and make sure that every victim of crime, not just those of rape and sexual abuse, has the opportunity to have that document whether in their hand or digitally? For too long it has been the offender’s right to see everything and surely now, while we are discussing victims legislation, we could have that in this Bill, to say they have a right free of charge, and let them have that document for sound peace of mind.
Lord Meston (CB)
My Lords, what this debate has shown is the need for some clarity about what can and cannot properly be provided to the victim after criminal proceedings. While I understood and supported the provision of a transcript, the conventional view always was, at least until I heard the arguments today, that the provision of a transcript of the whole trial would be very expensive and probably, in many cases, unnecessary and of little benefit. However, if modern technology enables it to be done much less expensively, then so be it. Indeed, the transcript or a recording could and should be provided. Subject to that, clearly a free transcript of the sentencing remarks of the judge or bench, or a transcript of the summing up in cases in which there has been a contested trial and an acquittal, could be of considerable value in helping victims and their families understand what was decided and why.
In particular, the sentencing remarks may help victims and their families to understand what account was taken of the impact on the victim and the court’s assessment of harm. In some cases, a transcript could also be provided to those offering counselling, therapeutic services and treatment to victims, or otherwise offering them professional advice. However, I would like to hear what can now be usefully provided without enormous expense, in the light of modern technological advances.
Earl Russell (LD)
My Lords, I too speak in favour of this amendment on court transcripts. I too pay tribute to Sarah Olney, the Victims’ Commissioner, brave survivors, and others who have been campaigning on this issue.
I once gave evidence, a long time ago. It was extremely difficult and a challenging experience. To be honest, I struggled afterwards to remember a single word that I had said. Courts are not normal places. The language, formality and methods of cross-examination are completely different from anything we experience in everyday life. Some might even argue that giving evidence in court is more intimidating than giving a speech in your Lordships’ House—except that when I speak here, unlike in court, every word is recorded and available online, free of charge.
In a court, you would naturally expect to be able to tell your story, to be listened to and then to be asked some questions. Instead, you are led towards blunt choices and decisive statements. You are often challenged on your credibility, truthfulness and ability to remember, let alone your morality and intimate details of your personal life. Doing this when you have been a victim of a violent or sexual crime must be horrific and re-traumatising. Often, victims are not present in court. They may be scared of facing attackers, wrongly advised or just unable to face it all again.
When the outcomes of legal proceedings are not what was wanted or expected, victims really want to know why. For justice to be done, it must be seen to be done. If there is no transcript, how do victims begin to comprehend what has happened in court, why it happened and how they might set about responding to the results? No money means no record: the victim is victimised again, this time by the justice system itself. The right of a victim to a transcript—a record of a legal case—seems like a fundamental part of our justice system. How did we get to a common place where the most basic of things is so inaccessible to and unattainable by so many people?
We live in a technological world. My laptop can easily be dictated to. AI tools, as other noble Lords have mentioned, are readily available. My phone can make an audio recording. Yet the evidence and testimony of victims, the evidence of their attackers and the summing-up of the judge are all unattainable. They are secret preserves of the legal system alone. What good does this do and how can it be? It cannot be beyond the wit of man and government to provide this information at either no cost or a reasonable cost.
No doubt there are practical problems that need addressing. I am certain that the Government have entered into some poor contracts for court transcripts. Technology has moved on, faster than expected, and now the exorbitant costs and contractual obligations perhaps leave the Government between a rock and a hard place. However, the idea that transcripts of legal cases are being charged at anywhere between £7,000 and £20,000 is just not acceptable. The Bill must set down a marker that the failure of this part of our legal system must end.
I acknowledge that the Government have argued that there are cost implications and have made some concessions. These are welcome, particularly the open justice consultation, and we recognise that a one-year pilot has been announced to enable victims of rape and other serious sexual offences to request Crown Court sentencing remarks, free of charge. This is welcome, but what happens after the pilot? Who assesses it and is there a commitment beyond that? It is too little and does not go far enough.
This service should be available to victims of all crimes, not just one group. We do not want to see a victims’ hierarchy established. As a minimum, all victims must have access to sentencing remarks. Ideally, full court transcripts should be made available when asked for. In the interim, the Government must do more to cover the excessive cost, especially for bereaved victims. I question whether the current contracts for transcript services provide anyone with any value for money. The Government should look to bring them to an end and, instead, work to find better and more cost-effective ways in which this can be done. I hope the Government are aware of the strength of feeling on all sides of the Committee on this issue and are of an open mind, willing to find better and faster solutions then they have up until now.
Baroness Hamwee (LD)
My Lords, it will be abundantly clear what our view is from these Benches, but I am speaking formally from them to support this amendment. The noble Lord, Lord Russell of Liverpool, referred to Sarah Olney as being meticulous—she always is.
The recent public discussion about dissatisfaction with sentences has made me think about this issue. Without wanting in any way to disparage, and I do not, the comments of relatives and the victims of crimes themselves who make public statements on the steps of the court, one wonders how much they have been able to take in. That is no criticism of them, but they are responding to a very emotional experience and will have been emotional while hearing, or possibly not very thoroughly hearing, what has been said. I had a very minor example of that experience myself last week. I went to a medical appointment and a friend came with me. When we discussed afterwards in the car what the consultant had said, our recollections were completely different.
I want to ask the Minister some questions about the pilot which has been announced. I wonder whether he can give some details. Is it in all courts for the category of crimes that has been announced? What monitoring will there be of how the pilot is going and how will it be evaluated? Like other speakers, though, I would like to go straight to a new procedure.
I am not sure whether the technology actually comes within the category of artificial intelligence; it may be a much earlier generation than that. There are other noble Lords in the Chamber who probably could have answered this question, had I thought to ask them before we started the debate, but are the judge’s remarks not normally written down before the judge makes them? That might differ among members of the judiciary —I am looking at the noble Lord, Lord Meston.
Baroness Hamwee (LD)
I suppose it is like our written notes: sometimes we have them, sometimes we do not and sometimes we do not follow them.
We have heard that Minister Freer is looking at how audio recordings can be used. I wonder whether there is any more news on this than has been in the semi-public domain so far. The suggestion of listening to a recording or reading a transcript while supervised reminds me of the arrangements made for a very few senior politicians to read the assessments of the Chilcot inquiry. To me, like to others, that is not a sensible arrangement.
In any event, as I understand it, in magistrates’ courts recordings are not made. For a victim to have to sit in court and listen it is very likely that she or he will be close to the family and friends of the defendant. As my noble friend Lady Brinton said, it is a matter of open justice. This debate confirms that the adversarial system treats the victim as little more than a witness.
Baroness Thornton (Lab)
My Lords, I thank all noble Lords for their contributions. I appreciate that this places the Minister in a somewhat interesting situation; yet again, he finds that the Committee is united on this issue, as I think we are.
As when I last spoke a few minutes ago, when I first read this amendment, I thought, “Oh, for goodness’ sake”. What is the problem with people having access to the transcripts of the case that affects them as victims? As this debate has proceeded, and I have learned more about the barriers and what happens to people—supervised listening and people discouraged from going into court to listen to proceedings—I feel even more that this is an important matter which would enormously strengthen our victims’ code and the way victims are treated.
Let us think about how every single word that is said in public in this place is available to watch, and re-watch if you really want to, and to read—the committee transcripts may take a little while to be published, but they are there—and how important that is for our proceedings and for us to be able to do our job so much better. It is not a difficult thing to do given technology today; it is not difficult for those things to happen in this place. Think how much more important that would be for somebody who was the victim of crime.
In many ways, access to information about the proceedings that affect them is symbolic of victims’ rights. I accept that child victims would need to be considered because, apart from anything else, we would not want a child to be able to be identified through transcripts of their proceedings, but it is not beyond our wit to sort that out. A pilot is good, but there is a matter of principle here that the Government will need to address.
Lord Winston (Lab)
My Lords, as my name has just been mentioned in this short debate, I will make a quick interjection and give the example of medical treatment of patients. It is extremely common to have a detailed conversation with a patient who has listened and apparently understood exactly what has been said, but then you find that they have understood nothing at all and are later really confused about their treatment.
Perhaps I may tell a very short story. I once had an extremely well-off woman who was totally infertile; she had no chance of a pregnancy. I spent an hour and a half talking to her explaining why this was the case and that there was no possibility of her being pregnant. However, 18 months later, she came into my clinic— she had flown in from another country—and said, “Dr Winston, I am pleased to tell you that, as you predicted, I am now pregnant”, and she was. I was a complete fool; I was wrong. It is really important to understand that, because this is a situation that happens quite often, and it is significant in terms of a court when you are very anxious.
Lord Bellamy (Con)
My Lords, it is heartening to hear a story with a happy ending in one respect, as we are generally dealing with unhappy or less happy outcomes.
This Government are very much in favour of open justice as a general proposition, and we are in the middle of a consultation on it. This debate should—I will make sure that it happens—figure in the evidence presented to that consultation so that we can see where we go. Anecdotally and in terms of the shape of things to come, we are already live-streaming the proceedings of the Supreme Court, Court of Appeal and the Competition Appeal Tribunal, which I used to have something to do with many years ago. Hopefully, in the years ahead, this problem will diminish if not be resolved through those kinds of technical developments. The twin obstacles are cost and the state of the technology.
It is true that this House, through the—in historical terms—quite expensive use of the Hansard reporters and the more recent introduction of our technology, is able to read and see what is happening. But we are one place. Every day in this country, hundreds of courts are in operation. To stream, record or make immediately available the proceedings of those courts is quite a challenge.
At the moment, a judge’s sentencing remarks are made freely available in cases of murder, manslaughter or causing death on the road. From this spring, as has been mentioned, we will run a further one-year trial of similar arrangements in cases of rape and serious sexual offences. That will, I hope, further inform which way we should go. I am not in a position to give further details on exactly how many courts will be covered by that pilot and on other matters raised by the noble Baroness, Lady Hamwee. However, I will write to the Committee to fully inform it.
It is less well known, and I do not think it will be an answer to the problem, that a victim can go to a Crown Court building to listen to a tape of the proceedings if that can be suitably arranged. That right is not very well known. It may not be quite in the direction that the technology is going.
To come back to the present situation and our twin obstacles of cost and technology, some of the figures of cost have been mentioned; it is expensive to do it manually. As to the technology, we have made considerable advances in the use of technology during the pandemic. Most courts can operate remote hearings of one sort or another.
Although I hold no ministerial responsibility for criminal justice, in terms of my day job, I was somewhat surprised and worried by some of the comments made by the noble Baroness, Lady Brinton, about witnesses being asked to leave the court and not to listen. I would have thought that in many court buildings these days there would be another room where the victim concerned could watch the proceedings on a screen, for example.
Baroness Newlove (Con)
Unfortunately, there are no rooms available to do that. I would love that—and I welcome my noble and learned friend the Minister’s warm tone in hoping that there were—but there are not. I went past two rooms in the murder trial that were video-link rooms. There are no rooms in our court buildings for families, witnesses or anyone else to watch privately and be taken care of. That is why it is so important that we try to assist them by giving them these scripts, so they can reflect on the proceedings whenever they want to.
Lord Marks of Henley-on-Thames (LD)
That would be enormously helpful in many civil and family cases as well, and it simply is not available.
Lord Bellamy (Con)
I am very grateful for those interventions. I have personally seen this in operation in Manchester, but it may have been that the court had particular availability of rooms that is not generally the case.
Lord Bellamy (Con)
I recognise the nature of the problem.
The modern versions of AI, or whatever generation of technology we are talking about, have opened up recent possibilities for us. Of course, any Government have every incentive to reduce cost. Why should we spend money on transcription, if it can be done more effectively and cheaply? The view currently taken is that a 99.5% accuracy is required. When we last trialled this in 2022 that level was not achieved, so we have not further proceeded with that development at the moment —but it remains a distinct possibility.
There is a specific situation with the magistrates’ courts whereby we do not even have recordings, let alone transcription. But again, if those courts now have screens that can be adapted in some way, the further development of technology is going to be the answer to the problem. At the moment the Government, although very sympathetic to the point, do not feel that they are in a position to accept a statutory obligation to provide a victim with a free transcript of the trial. We are working through the development with regard to sentencing remarks.
Of course, I will keep this under review and discuss it further with my noble friend Lady Newlove and others. The noble Lord, Lord Meston, makes very sensible points about the nature of some of these transcripts. We are going to have to be very careful in some cases. That is a quite separate issue.
With regret, I do not feel that the Government can accept Amendment 20 in its present form, but I hope I have explained the direction of travel as far as the future is concerned.
Baroness Brinton (LD)
My Lords, I thank all noble Lords who have contributed to this debate, particularly the noble Baroness, Lady Newlove, and the noble Earl, Lord Russell, who talked about their personal experiences, which was extremely valuable. I will not rehearse what has been said and repeated by others. I think the Minister needs to understand that the opinion of those who have contributed is somewhat different; certainly, the issue is worth discussing. I hope he will be prepared to have a meeting with those of us who are here. For example, we have just had a debate about the importance of being able to find rooms, but many speakers said that it was still too early for a traumatised victim to be able to take in the proceedings.
To give noble Lords my own experience, when I went into the court to hear my stalker being sentence, I was not just near his family; I was next to him—that far away. The result was that I did not hear a word of the sentencing, so thank goodness journalists covered it. I missed the absolute key bit, because all I was thinking about was how close he was to me. Extra rooms would be enormously helpful, and I believe the court system needs to find a way to make sure juries understand that victims should not be penalised if they wish to listen. I do not have an answer to that but, if the Minister agrees to a meeting, perhaps we will have that as one of the topics for discussion.
My final brief point is that in your Lordships’ House we already use Zoom and Teams. I chair a disability committee for the Local Government Association— I am a vice-president of the LGA—and we have deaf and hard-of-hearing people in the group. I use close captioning for every single one of those meetings, and it can be saved. This is not a future technology; it is available. If the Government and the court system do not recognise where these are, we will lose the benefit of what is happening now by not harnessing the technology available to help victims who really need it. I hope the Minister will agree to a meeting.
Baroness Hamwee (LD)
My Lords, before my noble friend withdraws the amendment, as I suspect she is about to, I ask the Minister whether the Government could make some representations to the Sentencing Council, if that is the appropriate way to do it, after hearing what noble Lords have said about their experiences. This is a matter for sentences as well.
Baroness Brinton (LD)
I am very grateful to my noble friend, and I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
I am going to give the Minister an opportunity to respond, if he wishes.
Lord Bellamy (Con)
Thank you. The Sentencing Council point is an interesting one, which I will reflect on. As for the request from the noble Baroness, Lady Brinton, of course I am prepared to have another meeting.
Lord Hampton
“(8) The victims’ code must make different provision for children and vulnerable and intimidated victims, and may make other different provision including for—”Member’s explanatory statement
This amendment would ensure that the distinct needs and rights of children and vulnerable and intimated witnesses are reflected in the Victims’ Code.
Lord Hampton (CB)
My Lords, this is where I again declare my interest as a state secondary school teacher in east London. I will speak to Amendments 21, 34, 61, 118 and 119 in my name in this group. I thank the Office of the Children’s Commissioner for help with these amendments, as well as the noble Lord, Lord Ponsonby of Shulbrede, and my noble friend Lord Russell of Liverpool for adding their names to them.
At Second Reading, at the Cross-Bench meeting with the Minister and on the first day in Committee, the Minister stuck to his message that the Bill covers all victims, including children. I will try to continue to persuade him otherwise. As the noble Lord, Lord Ponsonby of Shulbrede, said on the first day, we should put children at the top of the hierarchy of victims. I slightly disagree with my noble friend Lord Russell, who said that there should not be a hierarchy of victims. There is a hierarchy of victims, and children should be at the top of it. I am also aware that everything needs to be accessible, accountable and affordable.
We cannot lump all victims together. As the Children’s Commissioner said last week, children do not disclose like adults. It is important that children are treated differently as victims, and that is reflected in the amendments we have proposed. This will bear fruit not only in getting justice and restorative justice but, even more importantly, in repairing the damage done to those young victims and allowing them to become healthy adults. Would it not be lovely if a government department were to make decisions that could save money for other departments in future, and maybe future Governments? Could that be the Minister’s lasting legacy? The amount of work that the Children’s Commissioner, the Victims’ Commissioner, the children’s coalition and many other organisations are putting into this Bill, plus the number of noble Lords speaking to amendments, shows that we have a once-in-a-generation chance to put children first and really invest in our future.
Amendment 21 would make a different provision for children, ensuring that distinct needs and rights of children and vulnerable and intimidated victims were reflected in the victims’ code. They have different needs, and this needs to be reflected in the Bill to make it accessible.
Amendment 34 would insert “including children”. This is a vital amendment, which we talked about on the first day. It would mean that the victims’ code had to be promoted to children specifically, as well as to victims in general, as we need to make children aware—and they are not, at the moment—that if they are victims, they have rights. There should be a statutory obligation to advertise this in schools and possibly online—wherever—as a way of spreading this information so that it becomes widely understood. It would have little or no cost attached to it; it is affordable.
Lord Polak (Con)
My Lords, I shall not detain the Committee. I have my name on several amendments, but they have one theme, which I spoke about last week. It is an honour to follow the noble Lord, Lord Hampton, who is a schoolteacher and knows what he is talking about. I was a youth worker many years ago—that was my profession in my early adult years—so I was pleased to support several amendments and put my name to Amendments 44, 46, 55, 66, 68, 70, 71 and 73.
I will make one contribution, which I hope the Minister will take away and understand why children should be right on the face of the Bill. I remember last week when we discussed this, the Minister kindly turned around and said that he appreciated what we had all been saying and that maybe this is guidance and that we did not want to change the way the Bill looked. Well, we are adding one word: “children”. It means so much to the children’s organisations that are working daily.
Amendment 108 concerns a
“Duty to commission support for children and young people”.
This proposes the inclusion of a new clause after Clause 27, placing a duty on relevant local commissioning bodies to commission specialist support and advocacy services for children and young people who are victims of abuse and exploitation. It is imperative that we address the unique needs of this demographic, whose abuse has a devastating and long-lasting effect on them, on their families and on society more broadly. They cannot, and should not, be left unsupported, or be lost to the broader category of adult victims.
There is a scarcity of support and advocacy services available for child victims. A recent study by the Centre of Expertise on Child Sexual Abuse found that, across England and Wales, there are just 468 services providing support to victims and survivors of child sexual abuse and their families, despite an estimated 500,000 children suffering some sort of abuse every year. There is a clear lack of support services available.
Advocacy services also play a vital role in supporting child victims, helping them to navigate the complex criminal justice and support service systems. Advocacy services include such roles as the child independent domestic violence advisers—the CHIDVAs. I will not repeat the others as your Lordships know them. However, they are few and far between. New freedom of information data from Barnardo’s has found that just 84 child independent domestic violence advisers, and 112 child independent sexual violence advisers were commissioned by police and crime commissioners this year. Its research found that a staggering, additional 1,900 CHIDVAs and almost 500 CHISVAs are needed to support the number of identified children who are victims of domestic and sexual abuse. I emphasise the word “identified”—there are many, I am sure, whom we do not know.
What is available to support children is just a drop in the ocean. Yet we know that these services can have a huge benefit to children and society more broadly. This can include reducing the impact of harm and other future risks, including going missing from home, alcohol and drug abuse, accommodation and housing needs, and interaction with the criminal justice system in the future. As was said just now, a little investment now will save a lot in the future. The Government’s own costings found that the cost of contact child sexual abuse is at least £10.1 billion annually—which, I believe, is a conservative estimate. Investment in support and advocacy services for child victims will reduce these costs in the long term. Barnardo’s and Pro Bono Economics evidence found that for every £1 invested in specific support services for child sexual exploitation, it can save the taxpayer up to £12.
In essence, Amendment 108 is about putting the duty on commissioners to protect and support children who are victims of crime by making funding specific, and directing it toward children’s needs to create a system where no child is left without the necessary support, regardless of their circumstances.
Amendment 109 proposes a duty on the Victims’ Commissioner and Secretary of State to conduct a review and issue a national statement on the current state of support for children who are victims of crime. This review is critical in assessing the adequacy of existing provision, identifying unmet needs, and evaluating the current investment in these services, to ensure transparency for the provision of these services.
The review will cover the current volume of provision and unmet need and the level of investment in these services. This information will then be made public through a report, to be published and laid before Parliament within three months of the Bill becoming an Act. The purpose of this amendment is to foster transparency and accountability in the support provided to child victims. By clearly outlining what is already being provided—where the gaps exist and how much funding is allocated—we can ensure that our efforts are targeted and effective. These two amendments seek to fortify our commitment to the protection and support of children who have suffered at the hands of crime.
If I may, I will repeat the testimony of a very brave young woman called Poppy Eyre—I am honoured that she is sitting in the Chamber—who has made it clear to me and to other noble Lords why these amendments and the others that I have signed are crucial additions to the Bill. Before I continue, I should preface that some may find what I am about to share distressing—and I apologise to Poppy that I probably will not do it justice.
Poppy grew up in the countryside with her siblings and parents: an idyllic setting surrounded by nature and space. Yet, at the far too young age of four, she was molested by her grandfather. While most four year-olds were focused on playing, Poppy was preparing for the end of a CBeebies episode, followed by humiliation and sexual abuse by her grandfather in her own home. Yet how could Poppy truly know or voice that what was happening to her was wrong? She would never question her grandfather, whom she trusted and loved. She assumed it was normal. Yet the shame and negativity that manifested as a result of her abuse led Poppy to develop thoughts of guilt and hatred that led to physical illness and anxiety.
At the age of 11, Poppy found the courage to tell her mother after another sleepless night of physical and emotional anxiety. I want to quote Poppy directly on what opening up about her experience did for her:
“Admitting what had happened was the best thing I think I could have ever done for myself. It’s a funny word admit … it indicates fault, but that was my mindset at the time. For the first time in my life I didn’t feel responsible. This moment in my story is very unusual. The fact I was believed is something that many don’t experience”.
Over time, Poppy was able to gain some understanding of the enormity of what had happened to her and, along with her mother, she decided it was time to go to the police. Only at this point did Poppy begin to understand that she was the victim and survivor of a crime, that that crime was sexual abuse and that her grandfather was the perpetrator. She wanted to seek justice.
Seven years ago, Poppy found herself at the intersection of vulnerability and strength, navigating a court process that, surprisingly, restored her faith in the system. When she approached the police, they embraced her case with gravity and compassion, providing crucial support during the investigation. Poppy was connected with specialist counselling services that became a lifeline in one of the darkest periods of her life. Her healing journey underscored the potential of the justice system to offer assurance and validation. In the courtroom, justice was not merely a word but a tangible reality. Poppy’s age was considered and she was treated with respect and understanding. The system functioned as it should and Poppy received the justice she deserved.
Yet, unfortunately, Poppy’s journey is not representative of all survivors. Too many brave individuals who have come forward with their stories have been denied justice, their pain compounded by a system that failed them. There are far too many heartbreaking stories of those who were just not believed or supported and were denied the closure they deserved. The justice system possesses the power to heal, but it also has the potential to inflict further harm. There is a collective responsibility to acknowledge its flaws and work together to address them. No survivor should be left feeling abandoned or disbelieved. They must have access to support and advocacy services. It is our collective duty to ensure that the justice and support Poppy experienced become the norm, not the exception.
These amendments are one step towards ensuring that all survivors of these crimes are supported like Poppy was. We cannot waste the opportunity of this Victims and Prisoners Bill and let the thought remain that support and advocacy services for child victims are just an optional extra. They are a life-saving necessity and must be available for all child victims.
Baroness Newlove (Con)
My Lords, I support all the amendments in this group on child victims. I thank my noble friend Lord Polak for speaking about Poppy’s story. She is in the Chamber—a very gracious young woman who articulated her story very well. As a mother, when I watched my children have to give evidence, covered in blood, on the actions against their father—my sisters were told to turn in a corner when they were trying to ID on a VIPER parade—I called them “my heroines”. And Poppy is a heroine. As a mum, I felt that evening for her mum because, believe you me, as mothers we want to wrap you in cotton wool to protect you from pain. It was very emotional to listen to, and I send my huge respects to her mum as well.
This Bill needs to take into account the needs of all victims, but especially children. Children need to be recognised in this Bill. They are victims in their own right. As I said, my three daughters witnessed every kick and punch to their father, having to pull his tongue out because he was choking on his blood and say goodbye while he was in a coma. They live with that on a daily basis. They were not treated as children—they were told to act properly, because they were children.
Children who have been victims of crime, especially sexual abuse and exploitation, are among the most vulnerable in our society. This type of abuse can devastate the lives of children, impacting on their mental health, relationships and education. We in this Chamber have a responsibility to make sure that this Bill recognises and provides for them. The needs of children are not the same as those of adults, so they require specific provision that is designed for them, not against them. The victims’ code should consider children’s specific needs. They should be able to access registered intermediaries who can help them give their best evidence and, when they are interviewed, it should be done by people with specialist training in interviewing children.
When I was last in this role, I undertook a report on registered intermediaries. One of its findings was that the police and the CPS had a lack of awareness of the existence of registered intermediaries and how they worked. That was in 2018 and it is still the case now. This Bill gives us an ideal opportunity to make sure that these code rights are secured for our children. They are our future and we must care for them. That is the key here.
Children must have a needs assessment that takes into account their individual requirements, and we must have properly funded victims’ services, such as the “child house” model. This offers children who have experienced sexual abuse a child-focused, targeted response that can support children and their families as they recover from their ordeal—although, to be honest, they never recover; they survive. Currently, there is only one “child house” in the UK, which is the Lighthouse, in London, and, as a northerner, it really gets me to say that.
Children face a postcode lottery when it comes to support services. An FoI request by Barnardo’s to PCCs found that, of all the local authorities that responded, 68% had not in the last 12 months commissioned any support services for child victims of sexual exploitation. That is why I support these amendments, both as the Victims’ Commissioner and as legislator in this House—but, more importantly, as a mother of three daughters who, to this day, suffer from post-traumatic stress disorder because they felt they were not listened to but were told what to do. As a mother, I could not give them a hug because I might persuade them to give other evidence.
This amendment is so important for children and the victims of crime. We need to make sure the Bill provides specialist support services designed for children—in fact, designed for children, by children, because they will know their individual needs and vulnerabilities. We have a duty to help them cope and recover from such horrific and traumatic experiences.
Lord Russell of Liverpool (CB)
My Lords, I will speak briefly and cover all the amendments, as did the noble Baroness, Lady Newlove. I put on the record that I am a governor of Coram, the oldest children’s charity in the United Kingdom, and I am a trustee of the Foundling Museum.
Like other noble Lords, I have had the privilege of listening to some of the child survivors of child abuse. It is difficult for them to speak of their experiences; it is also extraordinarily difficult to listen to them—it really is. I pay tribute to Poppy, who described the trauma she went through in the most brilliant, clear way, without undue emotion or embellishment, and it was far more powerful than anything I—or, I suspect, any of us—will say this evening. It is an honour to try to speak on their behalf, although I fear we are poor substitutes for the way in which they are able to describe what they went through.
What they are asking for is very simple. It is one word: recognition—that is, recognition of the fact that they are not adults. The vast majority of victims whom we are going to talk about during the course of the Bill, including, of course, the part about prisoners, are adults. However, a very significant proportion of victims are not adults, and children have very specific needs and are particularly vulnerable and open to manipulation. They can often have great difficulty in understanding what is going on around them and discerning what is right and what is wrong, depending on who is telling them what. To help them navigate their way through some of the situations which adults—usually—have landed them in, requires particularly sensitive, careful and deeply knowledgeable treatment. At the moment, the reality is that it is a postcode lottery for children.
My colleague on the Cross Benches, the noble Lord, Lord Hennessy, is well known for his theory about some of the difficulties we appear to have got ourselves into in this country. We still seem to subscribe to what might be called the “good chaps” code of government: assuming that, if you tell people what it is they should do, that is what they will do. If one has a law, a code or guidance, the assumption is that people will read the guidance and then follow and adhere to it in a consistent manner. However, the evidence we have is overwhelming. When it comes to the treatment of children, there is a total and utter lack of consistency. There are statistics to back this up, and financial statistics which explain the cost of it. It is unacceptable that large parts of the country are effectively a desert when it comes to helping children who might get into the same sort of ghastly situation that Poppy was in.
As a Cross-Bencher I am not going make a political point, but, if I was a member of His Majesty’s Government, after being in office since 2010 and looking at the state of the way in which children are treated as victims at the moment, it is not a record I would feel proud to defend. It would be nice, for a change, to hear people say, “We have tried various things and spent money on them, but it is not all working and we acknowledge that. We have learned from it and we are doing something about it”. But to try and continue with the “good chaps” version of government—in which you tell people what they should be doing and they do it—is just fantasy. We need to wake up to that and do something about it, for all the poor children who deserve much better.
Baroness Brinton (LD)
My Lords, I will speak on Amendments 108 and 109, in the absence of the noble Baroness, Lady Benjamin, who would have made a contribution. She comments that child abuse and exploitation can happen to any child, in any family, in any location, and, as she would always say, “Childhood lasts a lifetime”. Child abuse and exploitation can have a detrimental impact on children that stays with them for the rest of their lives, harming their mental health, their development and sense of trust. Right at this moment, there is a child experiencing this type of trauma. Of course, it also has a devastating impact on their family and friends, and society as whole. As a country, we still do not provide or fund anywhere near enough for specialist support services to stand up for children’s rights and those who have experienced devastating trauma and abuse. It is shameful that, as a nation, children are left with the horror of abuse, and suffer in silence without any statutory right to support.
Support services are vital for child victims. They give children a space to work through their trauma and begin to recover, offering mental health and counselling services, and advocacy services which help children and their families to navigate the complexity of statutory agencies and the criminal justice system. Child-centred services, such as the Lighthouse, which was described earlier, can also reduce the impact of harm and other risks later in life, including going missing from home, alcohol and drug misuse, homelessness and interaction with the criminal justice system.
In one study, more than eight in 10 male prisoners said they had experienced at least one adverse childhood experience, which includes physical and sexual abuse, and domestic abuse. Yet local services, mostly run by the voluntary and community sectors, are chronically underfunded and undervalued. The Centre of Expertise on Child Sex Abuse, which is hosted by Barnardo’s, has recently published a comprehensive study of the current landscape. I will not go into the detail because the noble Baroness, Lady Newlove, has already covered the results. But just as much as Barnardo’s and the other children’s charities feel that they have a moral duty to support vulnerable children and young people, we cannot continue to see these vital support services as just a charitable add-on that is nice to have. These are life-saving services for a lot of children who have experienced abuse and exploitation. We must ensure that enough are available to support the number of children who, every year, face abuse and exploitation.
From these Benches, we support the amendments tabled by the noble Lord, Lord Polak, which would place a duty on the relevant authorities to commission sufficient child-specific support services for child victims of abuse and exploitation.
My own Amendment 100A in this group follows on from the very thorough report from the Independent Inquiry into Child Sexual Abuse, which gave the Government 20 recommendations, of which the first is a statutory duty of mandatory reporting, by which those in certain employment, whether paid or voluntary, and regulated professions should report allegations of child sex abuse to relevant authorities. The Government have yet to respond on these recommendations. I hope that will change soon.
This Bill is not the right place for an amendment on mandatory reporting. The amendment would provide children and young people with the status of a victim if a person in a regulated profession had a suspicion that they were a victim of child sex abuse. As we have heard from most speakers on this group of amendments, children and adults react differently to trauma. Children need specialist help right from the start. Giving them that recognition as a victim is vital.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the discussion on this group has been remarkable. I agree with everything that all noble Lords have said. Indeed, I went to many of the same meetings about which other noble Lords have spoken so eloquently.
Lord Bellamy (Con)
My Lords, I thank all speakers in this debate. Like others, I particularly salute Poppy and her story. The whole purpose and point of the Bill is that the system should function as it apparently did in Poppy’s case; I am glad that it did. We should bring everything up to that level. It is part of levelling up. The Government have brought forward quite an extensive framework in which the improvement in the rights of victims, victims’ awareness, accessibility of services and the duties of police and crime commissioners and local agencies are being given a tremendous shove. I think that was the phrase I used at Second Reading. I respectfully do not accept the description by the noble Lord, Lord Russell of Liverpool, that this is “good chaps” stuff. This is serious stuff to deal with a serious problem.
I support the last comments of the noble Lord, Lord Ponsonby, that it is a bit sterile to argue whether this word or that word should or should not be in the Bill—whether it should be “must” or “should”—and get all legalistic about it. We should really be discussing the practicalities, the costs and how we do it. That is more about what we do with the code itself than about having a sterile debate on the statutory framework. Those who are pursuing the interests of victims should not, I respectfully suggest, get hung up on exactly what the statute is saying; they should be thinking about what we should do in practical terms. From the government side, I rather welcome that general suggestion from the noble Lord, Lord Ponsonby. Let us get down in the weeds on some of this.
On the general question of the treatment of children in the Bill, I draw your Lordships’ attention to the fact that children are already quite extensively referenced in the statutory framework. Clause 11 is about:
“Guidance on code awareness and reviewing compliance”.
Clause 11(2)(b) says that the guidance may include provision about
“the way in which information is collected (and in particular, how information in relation to children or individuals who have protected characteristics within the meaning of the Equality Act 2010 is collected)”.
Clause 13 is about the crucial stages of needs assessment and the collaboration of the relevant authorities. Clause 13(4) says:
“When making an assessment under subsection (3), the relevant authorities must have regard to the particular needs of victims who are children or have protected characteristics within the meaning of the Equality Act”.
Lastly, as the noble Lord, Lord Ponsonby, has just pointed out, a similar phrase appears in Amendment 74 —the proposed new Clause 15. The same phrase is in the existing clause as well. Talking about guidance about specified victim support roles, proposed new Clause 15(5) says:
“Guidance under this section must (where relevant) make provision in relation to victims who are children or have protected characteristics within the meaning of the Equality Act”.
We already have a statutory framework for getting to where I think all your Lordships would want to be.
What, then, is the next stage? In the Government’s view, it is to make sure that we have it right in the code. The code already deals with children on page 7 and provides that they and other victims who have protected characteristics have enhanced rights, so that you have the right to receive information earlier, or better information, in various ways, and those enhanced rights are there in the code.
What the code does not do at the moment is to distinguish clearly between children and other vulnerable or intimidated persons or those who have protected characteristics under the Equality Act. Therefore, the Government are very open to considering how we develop a section in the code that deals specifically with children, and we are working with that aim, with the Children’s Commissioner, to deliver on that commitment to address children’s needs in the code. We started with a round table activity last week, attended by academics, criminal justice bodies and other important stakeholders, including the domestic abuse commissioner. We have to meld the respective roles of the Children’s Commissioner and the domestic abuse commissioner, who I think jointly wrote an article in the national press not very long ago saying that we must do better—indeed, perhaps arguably, we should.
Baroness Brinton (LD)
This is absolutely no criticism of the Minister himself. The Government have often tended to focus on domestic abuse, but child victims are not always victims through domestic abuse. Can the Minister reassure the House that while it is important that the domestic abuse commissioner is involved, the focus will remain on the experience of the child victim, wherever it has happened?
Lord Bellamy (Con)
I am extremely grateful for that important intervention. As a number of noble Lords pointed out, although from various quarters adults can—sometimes quite vociferously—speak for themselves, children cannot, on the whole. They are the silent ones. We have heroines such as Poppy but on the whole, we are dealing with a cohort that does not have the ability to raise its own profile, for that fairly obvious reason. I am grateful indeed to the noble Baroness, Lady Brinton, for making that point. For myself—I cannot commit the Government—I would say that we need available a part of the code or something that is particularly child friendly, so that at least some children can themselves consult it and understand their rights. So the Government’s door is not at all closed on this point. If I may say so again— I am conscious that sometimes I sound a bit like a broken record—can we please work on the practicalities of the code and on bringing everybody up to the same sort of level, rather than getting hung up on rather dry legal points?
I think I have covered in general terms the spirit, drift and direction of the amendments. I have to make one point on Amendment 100A which it does not at all please me to have to make. The difficulty with that amendment, as the Government see it, is that it relates to cases of suspected abuse. We have in the Bill a definition that turns on the existence of criminal conduct, and if there is criminal conduct, there is a victim. The Government at the moment are reluctant to extend that to suspected criminal conduct. That is a difficulty.
Baroness Chakrabarti (Lab)
But that is not quite right, though, is it? I do not believe that the definition of a victim in the Bill requires there to have been even a charge of criminal conduct, let alone a conviction, so I do not quite understand the reasoning that says we are concerned about suspected criminal conduct.
Baroness Brinton (LD)
Any suspected child sexual abuse would be a crime, as covered under Schedule 1. In that context sexual abuse is covered, particularly that of minors.
Lord Bellamy (Con)
We may slightly be dancing angels on a pin. It may well be that if a regulated professional says to an authority, “I suspect there is criminal conduct”, there is enough there to say that there actually is criminal conduct to enable—
Baroness Chakrabarti (Lab)
For clarity, it is important, given that I intervened on the Minister before, to refer the Committee to Clause 1, “Meaning of ‘victim’”, and to subsection (5) in particular, which says that
“It is immaterial … that … no person has reported the offence”
or that
“no person has been charged with or convicted of the offence”.
Therefore, if no person has even reported the offence but a victim is still a victim, I believe—with huge respect to the Minister—that victims of suspected crime are included in the definition of “victim” that is the foundation of His Majesty’s Government’s Bill.
Lord Bellamy (Con)
My Lords, I am not sure that we are really in disagreement on this. As I think I pointed out several times on the last occasion, criminal conduct does not depend on whether something has been reported; I had a discussion with the noble Baroness, Lady Hamwee, about that before. We are discussing what level of evidence there has to be before somebody has to say that there is criminal conduct. Somebody has to judge whether there is criminal conduct if the thing has not been reported to the police, prosecuted or charged. It may well be that, in the circumstances the noble Baroness, Lady Brinton, refers to, the fact of that kind of reference may be enough to establish criminal conduct. However, if it turns out that the suspicion is wrong, there has not been criminal conduct. That is the only point I am making: it is either covered already, or it should not be extended to the situation being envisaged. I do not think I have made myself very clear, but I was struggling to do so.
Baroness Brinton (LD)
I am grateful to the noble and learned Lord. As the debate we have just had demonstrates, the problem is that we need more clarity. If it is covered in the Bill—we are not convinced that it is, which is why we tabled the amendment—for children it needs to be made clear in the Bill, because of IICSA’s first recommendation about mandatory reporting, which we hope will come in due course. I understand that the Government have not made a decision on that, but at least it would nod to that recommendation, saying, “If somebody in a regulated profession believes that a child is a victim, and has a suspicion or belief that they have been the victim of CSA, then they are a victim”. It would be clear, and I am not sure that it is clear in Clause 1(5).
Lord Bellamy (Con)
My Lords, I need to think about this point. The amendment came in a little later than some of the other amendments, so I will take it under advisement. I see the point that is being made.
Lord Hampton (CB)
That, in my short experience of this House, was the most extraordinarily powerful debate and I thank everybody who took part in it. I was honoured—and I genuinely mean honoured—to hear Poppy speak recently, and anybody who was in that room will carry it with them for the rest of their lives.
I thank the Minister for his advice, and a lot of other people. There have been some extraordinary experiences. The experiences of the noble Baroness, Lady Newlove, have been extraordinary. The noble Lord, Lord Ponsonby, talked about the murders of the people in the court cases. I will go away with the good chaps theory of the noble Lord, Lord Russell, as an example. What I am taking away from this, because I am an optimist, is that the Government’s door is not at all closed. The advice is that we look at the code. There are mentions of children in the Bill, but not many. We will look at the code, but thankfully the Government’s door is not closed, and I beg to withdraw my Amendment 21.
Baroness Chakrabarti
“The victims’ code(1) Schedule (The victims’ code) to this Act contains the code of practice as to the services to be provided to victims by persons having functions relating to—(a) victims, or(b) any aspect of the criminal justice system.(2) In this Part, the “victims’ code” means the code of practice in Schedule (The victims’ code) as from time to time amended by way of subsection (4) below.(3) The victims’ code shall make provision for services which reflect the principles that victims—(a) must be provided with information to help them understand the criminal justice process;(b) must be able to access services which support them (including, where appropriate, specialist services);(c) must have the opportunity to make their views heard in the criminal justice process;(d) must be able to challenge decisions which have a direct impact on them.(4) The Secretary of State may amend the victims’ code by way of regulations made by statutory instrument.(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(6) But the Secretary of State may make regulations under subsection (4) only if satisfied that such amendment would not result in a significant—(a) reduction in the quality or extent of the services provided in accordance with the victims’ code, or(b) restriction in the description of persons to whom services are provided in accordance with the victims’ code.(7) The victims’ code may restrict or vary the application of its provisions to— (a) victims of specified descriptions (including those who are victims by virtue of specific conduct or conduct constituting specified offences);(b) specified persons who have functions of the kind mentioned in subsection (1).(8) The victims’ code may include provision requiring or permitting the services which are to be provided to a victim to be provided to one or more other persons—(a) instead of the victim (for example, where the victim has died), or(b) as well as the victim.(9) The victims’ code may make different provision for different purposes including different provision for—(a) victims of different descriptions;(b) persons who have different functions of a kind mentioned in subsection (1);(c) different areas.(10) The victims’ code may not require anything to be done by a person acting in—(a) a judicial capacity, or on the instructions of or on behalf of such a person; (b) the discharge of a prosecution function, if that function involves the exercise of a discretion.(11) In this section, “specified” means specified in the victims’ code.”Member's explanatory statement
This amendment places the victims’ code on a firmer statutory footing as a Schedule to the Bill, amendable by regulations subject to the affirmative procedure. Another amendment will follow to add the Schedule referred to in this clause.
Baroness Chakrabarti (Lab)
It is an interesting time for me to be beginning this group. I do not know whether the usual channels have had the opportunity to consider timing.
Schools: Financial Education
(9 months, 4 weeks ago)
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Baroness Sater
To ask His Majesty’s Government what steps they are taking to improve the financial literacy of children through the provision of financial education in schools.
Baroness Sater (Con)
My Lords, I am delighted to bring this debate to the House and thank all those who will contribute today. I declare my interest as an officer of the APPG on Financial Education for Young People.
Many of us will remember the world of piggy banks where real cash was kept; you could spend only what you had and no more. With physical money, life was somewhat simpler. Our children are living in a complex world of complicated financial decisions. Buying anything can be a minefield, from tempting credit offers, easy credit store cards and hire purchase to leasing and PCPs, and then there are scams, cyberattacks and payday loans. It is mind-boggling.
Banking is now significantly online. Contactless cards and payment by mobile phone make payments wonderfully easy, but spending is made easier too. It is all too quick to spend beyond your means.
I want to focus on a few things today. First, financial literacy is a life skill vital in preparing our young people for a rewarding life. Schools have an important role to play, so I hope today’s debate will focus on how we can strengthen and support provision in schools.
The London Institute of Banking & Finance reported in 2023 that 68% of children worry about money and their personal finances. Only 8% cited school as their main source of financial education, down from 15% the previous year.
Worrying about money is stressful. A survey of adults in the UK by Santander highlighted that 70% reported that better financial education would have improved their ability to manage their finances during the cost of living crisis, and two-thirds of young people believe that a lack of financial education has led them down the path of debt.
Money worries are the most important cause of anxiety in the UK, according to research from the Mental Health Foundation. Giving children the skills to manage their money and make informed decisions so they understand savings and investments, pensions, mortgages and loans can have a positive impact on their financial security in the future and on their mental well-being.
In 2023, GoHenry with Censuswide and Development Economics reported that prioritising financial education could have a positive impact on the wider economy too, adding nearly £6.98 billion into the UK economy each year and up to £202 billion by 2050. Children and young people are eager to learn. In March last year, the Institute of Banking & Finance reported that 82% would like to learn more about money and finance in school and college, up from 72% a year earlier. Research also tells us that parents want it too.
Secondly, financial education is not a statutory part of the national curriculum in primary schools in England. It is, however, embedded in the primary schools of Wales, Scotland and Northern Ireland. Research by Cambridge University, published by the Money and Pensions Service, indicates that habits and attitudes towards money are formed by the age of seven. Therefore, we should make sure that all primary school children, wherever they may live, have access to financial education.
According to a survey of primary school teachers by EVERFI in 2020, 82% considered teaching financial education to be very important, but 70% of them stated that financial literacy was not given enough importance. Positively, the Centre for Financial Capability identified that one in three primary-aged children receive some form of financial education, and there are some very good examples of financial literacy being taught in primary schools, but this means that in England it is a lottery as to whether you receive it or not. Making financial literacy a statutory part of the primary school curriculum would correct this, so I hope that my noble friend the Minister can make it happen.
It is a different picture in secondary schools. In 2014, provision of financial education became statutory in local authority schools, but delivery is variable and there are gaps. Those gaps are striking. The Money and Pensions Service comments that only 47% of seven to 17 year-olds in the UK—that is around 4.8 million children—receive a meaningful financial education.
The All-Party Parliamentary Group on Financial Education for Young People’s Building Beyond Barriers report in 2023 noted that over half of teachers did not know that financial education was part of the curriculum, yet we know that three in four teachers believe that teachers should play a leading role. The report tells us that financial education is considered challenging by teachers, with training, time and funding being key barriers. A survey commissioned by the Bank of England found that almost two-thirds of teachers felt that there was not enough time or resources to get financial education into the school year. We know that the curriculum is already under pressure with many other priorities, but we also know that teachers want to teach financial education and children want to learn it.
It is important to note that excellent materials are available from third parties and charities which help teachers deliver good financial education. Some of these resources, for example those produced by Young Enterprise and MyBnk, can bring teaching financial education to life by providing real-life situations, but sadly they are not delivered or available across all schools, adding to the lottery of life.
My third area of focus is where the provision of financial education should sit in the secondary curriculum. It presently sits in citizenship and maths programmes but not in PSHE, although it can sometimes be delivered in PSHE for those aged 11 to 16. We welcome the Prime Minister’s recently announced intention to have every child leave school with good numeracy skills. That is important to help them navigate their finances but so too are their values and attitudes towards money.
Financial education is not based on maths alone, and it would be doing it a disservice to try to put most of it within the maths curriculum, as some suggest. The importance of emergency funds—how would you cope if you suddenly lost your income, for example?—or the risk of identity theft are not topics for maths. This debate continues, and the recently announced House of Commons inquiry will no doubt look at this and how we strengthen financial education in all schools.
I turn briefly to Ofsted. It has a role to play. The APPG on Financial Education for Young People recommended that Ofsted undertake deep dives on the subject and be commissioned to map where financial literacy goals align with existing points in the curriculum. The APPG also recommended that Ofsted explore whether financial education should be in the education inspection framework. Those are all good proposals which I hope might gain traction.
The recent announcement by the Government to support financial inclusion through the dormant assets fund is very welcome. From that fund, the Government have pledged £87.5 million, and we are waiting to hear how it will be spent on financial education with a focus on children. The Centre for Financial Capability has made some interesting recommendations on how new funds could be spent, proposing financial education instructors for schools in the most deprived areas, free financial education teacher training, a hub of resources, and long-term evaluation to assess outcomes. Together with creating a financial capability innovation fund to stimulate new ideas, experimentation and collaboration, these are all good ideas. Can my noble friend the Minister provide any update on the dormant asset delivery and when the funds might be distributed?
Things are moving forward. The launch of the Money and Pensions Service’s 10-year strategy 2020-30 goes to the heart of financial well-being and includes a national goal to have 2 million more children and young people getting a meaningful financial education by 2030. This is a positive step forward, but perhaps we are not being ambitious enough. Would it not be good to have all children leave school with a good financial education well before 2030?
What we are doing at present is not enough. From research conducted by MyBnk and Comparethemarket, we know that only two in five young adults—41%—in the UK are financially literate. In some parts of the UK, we do have schools and teachers delivering high-quality financial education, but the education you receive should not be dependent on where in the country you live and the type of school you go to. We want every school and every teacher to be able to deliver a comprehensive and meaningful offer so that all children can leave school having a positive relationship with money and their personal finances.
I hope that this debate takes us a little further in helping to make that happen. We can make a real difference to people’s lives for this generation and for generations to follow. Let us seize the opportunity.
Lord Watson of Invergowrie (Lab)
My Lords, I thank the noble Baroness, Lady Sater, for securing this debate and introducing it so effectively. It is a shame that noble Lords have such a short speaking time this evening but I suppose that is testament to the fact that so many of us feel strongly about the need for young people to be properly prepared in financial literacy. The Education Select Committee feels the same; yesterday, it began its inquiry on this subject.
I want to concentrate on the need to include financial education as a compulsory part of primary education. As the noble Baroness said, research for the Money and Pensions Service suggested that money habits are formed as early as the age of seven, highlighting the importance of starting to educate children about financial matters at primary school. This position was emphasised by organisations such as the Centre for Financial Capability, Kickstart Money, Parentkind and the Centre for Social Justice in briefings for this debate, yet England remains the only part of the UK where financial education is not included in the national curriculum at primary school level.
That point is clearly stated by the Money and Pensions Service, an arm’s-length body of government sponsored by the DWP, which says on its website:
“In England, financial education is included in the national curriculum in secondary schools only”.
Yet, in answer to an Oral Question in your Lordships’ House on 13 March last year, the Minister said that
“at key stage 1, the compulsory curriculum includes helping children understand how they make choices about how to spend, how to save and how to use money”.—[Official Report, 14/3/23; col. 1192.]
If the Minister maintains that position, she is in denial because only around a third of primary school pupils receive any meaningful form of financial education.
The government-funded Money and Pensions Service also said in a report published four months ago:
“The earlier the better—interventions at a young age can positively enhance financial capability”.
So what are we waiting for? The simple answer is this: a Labour Government, who will review the curriculum. I am confident that the embedding of financial education in the primary curriculum will soon be a fact of school life, bringing England into line with the rest of the UK. Future generations and the economy will be the beneficiaries.
Lord Sandhurst (Con)
My Lords, I am grateful to my noble friend for introducing this short debate and doing it so well. I have five points to make in the short time I am allowed.
First, as we have heard, the 2023 MaPS survey showed that children’s attitudes to money have developed by the age of seven. To encourage good habits and discourage bad ones, they need education young. As the noble Lord said, it should start in primary school.
Secondly, financial education is supposed to be part of the secondary school curriculum. The 2023 survey by Comparethemarket and others reported that only 40% of young adult respondents were considered financially literate, while 61% of young adult respondents did not recall receiving financial education at school. Some of them probably did but obviously it was not adequate.
That is not surprising; I come to my third point. It is estimated that 11 to 18 year-olds need at least 30 hours of financial education in a school year to become financially literate. However, in fact, those who do receive such education—somewhere around 50% or 60%—get about 48 minutes a month. I calculate that to be around nine hours a year—well short of the 30 hours necessary. It is too little to too few.
Fourthly, we now know that schools have a vital role from early in life. Financial education is part of the curriculum but the evidence is that two in five teachers are not even aware that it is a required part. It has been found that, of those who are aware, more than half find it challenging to teach. Perhaps that is not surprising because it is not part of their training.
Fifthly, and lastly, we must train teachers and embed this in their continuing professional development. We must ensure that it is taught across all schools and at all ages. The more disadvantaged the child, the greater the need; they will not learn it from their parents. The duty to provide financial education should therefore be put on a statutory basis and include primary schools.
Lord Hampton (CB)
My Lords, I declare my interest as a state secondary school teacher in design and technology. I join in the thanks to the noble Baroness, Lady Sater, for raising this important topic.
As ever, we are talking about the difference between following the curriculum and educating our children. Nick Gibb has been quoted as describing having “good maths” as the gateway to lifelong financial stability, and pointed out that financial knowledge already forms a compulsory part of the national curriculum in secondary school. However, as has been mentioned, only 41% of young adults are financially literate—whatever that means. I would contend that that figure is much lower in reality.
Core skills in maths need to be taught but we also need to get to a stage where students can learn financial skills—such as how to compare offers in a supermarket, read a simple balance sheet, shop around for a mortgage or fill in a tax return—as well as other vital skills that are either ignored or left for excellent charities such as Young Enterprise to fulfil during those rare PSHE days. At this point, I must declare that Young Enterprise used to be a client of mine when I was a photographer many years ago.
Might it be not only that children could learn some very useful skills but that those skills could perhaps be used in later life for them to start a business, employ people and pay their taxes? In fact, I think that every student who leaves school at 18 should have started at least one business while they were at school. Would that not be fun to learn and teach? Might it inspire students to return to school and teachers to enjoy teaching?
The Lord Bishop of Durham
My Lords, I too thank the noble Baroness, Lady Sater, for securing this debate and introducing it so clearly. I declare my interests as stated in the register.
The evidence finds that a child’s attitude towards money is well developed by the age of seven. The foundations of our skills in managing money are laid in these early years. Yet, unlike in the secondary curriculum, financial education is absent from the requirements of the primary curriculum in England. This is seen by 60% of teachers as a key obstacle to its high-quality delivery. Further challenges include training, time and funding. Young Money and City Pay it Forward are examples of external providers supporting teachers with high-quality resources and training.
LifeSavers is the financial education programme delivered to primary schools by the Just Finance Foundation, of which my most reverend friend the Archbishop of Canterbury is president. It provides teachers with training, resources and lesson plans, while its innovative saving clubs give children hands-on experience, enabling them to put money-managing skills into practice. It provides a values-based approach and equips teachers to explore with children not only how to use money but how we think about it—that is, what it means to be wise, generous, just and thankful with money. By 2023, it had worked with 202 schools, reaching 53,257 children nationwide.
What are the Government doing to ensure that teachers are supported and equipped to teach financial education as a requirement of the primary curriculum? Will they adopt a collaborative approach with external schemes? Surely we want all children to learn the skills of wise money management, enabling them to live generously with money and finance not as a god but as a servant of God’s, humanity’s and creation’s good.
Lord Polak (Con)
My Lords, I too thank my noble friend Lady Sater for tabling this important debate. I also thank my friend Vivi Friedgut, who is here in the Chamber, the founder of Blackbullion, an educational technology start-up which is on a mission to empower millions of students to create a better financial future. The company is chaired by my noble friend Lord Fink, who was unable to be here this evening.
In discussion Vivi told me quite clearly that the current system is not working and that everyone seems to be looking for a single and simple panacea. No such thing exists. It is a journey, not a destination. From wanting as ever to be practical, I say to the Minister: we need more teacher education. If teachers are confident, they are best placed to weave it into a variety of subjects to bring them to life. Integrate elements of this financial education into other relevant subjects—maths, history, geography, economics, business, life skills—to create a holistic understanding and complement this with dedicated workshops or group work to provide real-world context.
Forever being practical, I urge the Minister to meet with Vivi and my noble friend Lord Fink. What they have done among students at universities has created a collaboration between the Bank of England and Pearson Education, and the educational help for financial education is enormous. Some 700,000 students, not just in Britain, are benefiting from the information. Surely, we can use that same technology to get this education across to children—because I notice that even primary school children seem to be holding mobile phones. So I urge the Minister, if he has the time, to meet with Lord Fink and Vivi.
Lord Parekh (Lab)
My Lords, I congratulate the noble Baroness, Lady Sater, on securing this debate and introducing it so well.
In two minutes I can do no more than raise three important points about financial education. In a survey, over two-thirds of secondary school teachers did not know that financial education was a curriculum requirement. Nearly two-thirds of young adults did not remember receiving it. As was pointed out earlier, for those who did receive it, it amounted to no more than 48 minutes, as opposed to the 30-hours minimum requirement.
Starting with that kind of base, I want to ask three questions about financial education. First, why does it have such a low profile; why is it not widely known, properly researched and talked about? Secondly, what are the consequences of marginalising financial education in this way? If a child’s attitude to money is shaped by the age of seven, what happens to those children who are past the age of seven but have not been exposed to this kind of education at all?
My third question relates to the content of financial education. What will you teach in financial education? Will it simply be how to spend money and how to save it? If it is to be proper financial education, it must be about the financial system and about explaining to a child what it is to have £1 and how a piece of paper acquires the value of £1 or £5: in other words, explaining to them how our system works and why money is in some sense central to our social system. Once we do this, children will begin to understand how our society is propelled by money, why it is pathologically obsessed with money and what can be done to avoid the consequences of that obsession.
Lord Sarfraz (Con)
My Lords, I thank my noble friend Lady Sater for securing this debate and for her very powerful opening remarks.
Many kids today will be alive and transacting in the year 2100. A child who is in year 4 today will in 2100 be only in their 80s and will probably live another 20 years after that. So, when we design content, it needs to be future-proof and include ideas such as “Making money is not a bad thing. Taking risks and losing money—by starting a business, for example—is not the end of the world”. I declare an interest, having done that several times.
Thinking big about opportunities is good. I remember that, when the Government set out the ambition of the UK being a global science superpower, many Members of your Lordships’ House objected, saying it was arrogant. I cannot get my head around that. Our kids should be unashamedly ambitious. The world’s population in their lifetime will be just under 12 billion. So, if they are lucky enough to make money, we should teach them to be thoughtful and impactful with it.
So let us do all that we can to get third-party providers delivering programmes in schools that focus on the future of money, whether that is decentralised assets or cryptocurrency—not to mention AI, which will completely change insurance, investing and savings as we know them.
The next time your child or grandchild decides to create an avatar to sell virtual cookies, taking payment in cryptocurrency, please do not stop them; let them have a shot at it.
Lord Hannan of Kingsclere (Con)
My Lords, perhaps I can extend the list of desiderata from my noble friend Lord Sarfraz. I would like every pupil, by the time they leave school, to have taken note of some counterintuitive precepts—things that you have to be taught because they do not come naturally. For example, prices are not intrinsic in the way that volume or weight is. That seems an obvious point: if a travel agent puts up its prices during school holidays, it is not because it is being greedy but because it is responding to supply and demand. I feel that I have to say that, having listened to the questions earlier today when people were talking about price gouging and profiteering—vocabulary that I used to associate with authoritarian regimes.
Secondly, imports are a prize, not a concession. Buying high-quality stuff for less money frees up your assets and frees up your time so that you can spend it on other things, buy other stuff—that is what drives the entire economy. It is amazing how many people are against xenophobia in every context except honestly produced, good-value imported goods.
Thirdly, jobs are a burden rather than a gain—or rather, they are a means to an end. The end is to live well. If we can live well working shorter hours as a result of extended supply lines and globalisation, that is a good thing. I wish politicians did not feel the need to defend every deal by saying that it “creates jobs”. You can create jobs by employing people for the state—that does not create wealth. What creates wealth is innovation.
Finally, and most importantly, opportunity costs are real. Things have consequences, even the things that we do not immediately see, what Frédéric Bastiat called
“ce qu’on ne voit pas”—
the unseen things. If, for example, you are strongly in favour of supporting Ukraine, fine, but do not then complain if there is a rise in energy bills. Things have a cost. If you are strongly in favour of preserving unspoilt land and stopping housing around you, fine, but do not then complain if house prices rise. If you strongly supported the lockdown, do not complain about inflation afterwards. If we grasped those things, we would be more informed voters, we would be more fulfilled citizens and, by the time that we came here, we would be more useful legislators.
Lord Davies of Brixton (Lab)
My Lords, I thank the noble Baroness, Lady Sater, for introducing this important debate. I agree with most of what has been said. Clearly, more must be done and the schools have an important role.
At the risk of being a bit of a grouch, I will say that we must recognise the limitations of financial education. It is important that most of our most important financial decisions, the most complex and difficult, tend to be long-term, such as deciding what pension you will have, what sort of mortgage or what to do with an inheritance, should you receive one. These decisions will be taken long after those involved have left school. Of course, good education involves practice, but you cannot practice taking a pension. The nature of what you teach in financial education should be focused on familiarity rather than the actual decisions that are taken in particular circumstances.
I will just add that I sometimes think that legislators cheerfully place difficult financial decisions on people—freedom of choice in pensions is the one I have in mind, but I am sure there are other examples—because they think people will be financially educated. A policy that requires everyone to be financially educated is a bad policy.
The Earl of Effingham (Con)
My Lords, I thank the noble Baroness, Lady Sater, for raising this debate, which I believe is of fundamental importance. As I think we all subscribe to, education has the power and the ability to hold the keys to many amazing things.
There should be four pillars to our education system: food education; physical education; financial education; and academic education. As a general broad-brush view, most people in the UK would aspire to home ownership, a decent upbringing for their children and the ability to retire in later life. All four of those educational pillars will play a key role in this outcome, but financial education arguably plays the most significant one.
Helping the young population now will have the hugely positive effect of helping them to help their own daughters and sons in 20 years’ time. Financial insecurity leads to anxiety, stress, and depression, but financial education at an early age will mitigate these risks.
Compound interest is one of the wonders of the financial world, but without a decent financial education, schoolchildren will not know that by investing only £10 per week from the age of 18, they can potentially have a retirement pot of £400,000 based on an annualised return of 9%. I do not believe it would be a difficult sell to let these children know that, in exchange for £10 per week, they could potentially have £400,000 at the age of 68. It is an easy message to get out there.
So, in this two-minute timeframe, I ask the Minister: what are the Government doing to support parents and carers in this financial education mission? Data shows that the greatest impact comes when the message is delivered by those individuals in the home, as well as those in school, and we should do everything we can to ensure that message reaches the target audience.
Lord Addington (LD)
My Lords, I congratulate the noble Baroness, Lady Sater, on doing most of the heavy lifting, which was just as well considering the sprint relay event that followed it.
The noble Lord, Lord Polak, caught my thoughts most clearly when he said this must be embedded throughout the education system. I was thinking of Jane Austen, who writes about little other than money; if you look at English, and then look at Dickens, they all go there. History records it as well—the fact you have these institutions that come down to us—but it depends on the bit you are doing; the Tudors may not be quite as relevant as the first Labour Government after the war, but it is all there. You need to reinforce the idea—the noble Lord, Lord Davies, caught that as well, that it is an idea you are going for—and the maths behind it, such as compound interest and interest rates, as the noble Earl, Lord Effingham, said, and apply it and put it across.
My question to the Minister is: when does she think this reinforcing of ideas across the curriculum stands a chance of being integrated into a programme of study that most people will come across? We want to make it so that you cannot avoid this subject, and not just fall asleep and write it off because you do not like it—if anybody here says they did not do that during a lesson at school, they are lying to themselves. There are people who will simply not get it, but if the idea is bounced around, some may stand a chance of it being ingrained. This is a big subject with lots of ramifications and tentacles. If you treat it as a one-off lesson substitution, you will annoy everybody who likes the subject that you are cutting, and you will guarantee that some just will not get it at all.
Baroness Twycross (Lab)
My Lords, I too congratulate the noble Baroness, Lady Sater, on securing this interesting debate, which has had a number of similar but significant contributions from across the House.
I echo my noble friend Lord Parekh’s question about why this gets very little attention—everybody here has found it fascinating—and I have been wondering why. As the noble Baroness, Lady Sater, said, worrying about money causes anxiety, and ensuring children get the knowledge they need is vital to equip them for life. A number of speakers, including my noble friend Lord Watson and the noble Lord, Lord Sandhurst, and the right reverend Prelate the Bishop of Durham have noted how early a child’s money habits can be formed.
Currently, as I think every speaker has noted, financial education is included in the national curriculum only in secondary schools. It is a welcome addition to the curriculum, but it is arguably too little too late. As the noble Baroness, Lady Sater, said, it is subject to a postcode lottery, and the noble Lord, Lord Sandhurst, highlighted that 30 hours a year may be required for this to be effective.
Financial education is not the same as maths; as the noble Lord, Lord Polak, said, it can be woven into many subjects, including Jane Austen, as the noble Lord, Lord Addington, pointed out. Maths skills need to be cemented at a much earlier stage and, as the noble Lord, Lord Hampton, said, this should include practical skills such as comparing prices, budgeting, understanding interest rates and household bills. As my noble friend Lord Watson said, it is also Labour’s view that this should be done at an earlier stage.
I have not got time to go through what everybody else said, but I note an important point made in a paper by the Centre for Social Justice on the number of children who are problem gamblers. Shockingly, according to the NAO, there are 55,000 problem gamblers aged 11 to 16 in England, with a further 85,000 in this age group at risk. I apologise for getting that in at the end, because no one else had raised it, but I wonder how the Government are looking to use financial education to address what seems to be a serious issue, not least in relation to online financial safety. I look forward to hearing the Minister’s response.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, I congratulate my noble friend on securing this short but very important debate, and I thank noble Lords for their contributions.
Economic and financial education are important parts of a broad and balanced curriculum and are essential knowledge for young people to manage their money well and to make sound financial decisions, particularly sound long-term decisions, as we heard from the noble Lord, Lord Davies of Brixton. As my noble friend Lady Sater rightly pointed out, they are an important contributor to our economic growth.
As noble Lords have noted, financial knowledge is compulsory in the national curriculum for mathematics at key stages 1 to 4, and in the secondary curriculum in citizenship. Mathematics provides the underlying knowledge, and putting maths in a financial context can help to bring it to life for pupils. More specific knowledge is contained in the citizenship national curriculum in secondary school, but it can also be taught in primaries.
Schools have flexibility on how they deliver the curriculum. I have heard from a number of schools, including the Danesfield School in Buckinghamshire, about programmes that they have developed to enable pupils to develop practical money management skills, such as through a school bank, through which children can earn, spend, get overdrawn and understand the impact of interest rates. What struck me particularly was that that was developed entirely for a post-cash world, with no cash being used any more.
A number of your Lordships, including my noble friends Lady Sater and Lord Sandhurst, and the noble Lord, Lord Watson of Invergowrie, referred to financial attitudes and habits being established by the age of seven. I will refer back to the original research that noble Lords were referring to, which was from the University of Cambridge in 2013.
I quote from the research:
“In summary, the evidence indicates that teaching young children explicit forms of ‘financial’ knowledge per se is likely to be ineffectual in shaping or changing their behaviours”.
It goes on to say—this is in my words, not quoting directly from the research, but I hope I have captured it accurately—that the focus should rather be on developing “habits of mind”, namely self-regulation and the capacity to defer gratification, and helping children to understand the future in concrete terms. My noble friend Lord Sandhurst touched on that. I raise it because I think it is important; schools clearly have a critical role in shaping and helping to instil these important behaviours in children, but so do parents and so do we as a society. Indeed, my noble friend Lord Sarfraz captured so eloquently the importance of attitudes, aspiration and self-belief.
The noble Lord, Lord Parekh, asked why financial education is so low-profile. I stress that without good numeracy we cannot have good financial literacy. Good numeracy is the gateway to long-term financial stability. Since 2010 we have transformed mathematics teaching in this country by introducing the mastery pedagogy, used by the top-performing east Asian countries, to secure a deep understanding of mathematics. Going forward, the advanced British standard will ensure that all students study maths to 18, further strengthening key maths skills and developing students’ confidence to deal with finances in later life.
My noble friend Lord Polak and the right reverend Prelate the Bishop of Durham both asked what we are doing to build the confidence of teachers; the right reverend Prelate also asked about collaboration. Of course, we are already collaborating with a number of organisations. In particular, the Money and Pensions Service provides guidance that signposts high-quality and quality-assured resources, including from the financial services sector, which play a key role in financial education at home and in the classroom. Training is obviously important for building teachers’ knowledge, confidence and skill. That is why the department is working with the Money and Pensions Service to deliver teacher webinars this academic year, focused on teaching about money in a cashless society. I do not know whether they will be as fun as the outline that the noble Lord, Lord Hampton, gave us, but I live in hope.
Together with my noble friend Lady Sater and other noble Lords, I recognise the really important work of charities in this area. We heard several mentions of the work of Young Enterprise, with its delivery of the quality mark, and the important work delivered by MyBnk, as well as the Lifesavers programme which, as I think the right reverend Prelate mentioned, also focuses on attitudes, which ties in with our own view. I would be delighted to meet with the founder of Blackbullion and hear more about its important work.
There is obviously the important issue of resources to build financial capability; my noble friend asked for an update on plans for the dormant assets fund. I cannot give her quite the update I would like to, but I assure her that the department continues to work closely with the Treasury and DCMS, and we will announce further details on our plans for the financial inclusion part of the dormant assets work. I will make sure that my noble friend is updated when that occurs.
I absolutely agree with your Lordships that a good financial education can also contribute to lower debt levels. Also important is an understanding of fraud and its risks, which can have such an impact on mental well-being. The Home Office recently launched new fraud education resources in collaboration with the National Crime Agency and the Association for Citizenship Teaching.
My noble friend mentioned the work of the Education Select Committee and the all-party parliamentary group. We obviously work closely with both, and I know that my right honourable friend the Minister for Schools will shortly meet the APPG chair to discuss its findings and future plans.
The noble Lord, Lord Addington, asked when the UK strategy for financial well-being would be fully integrated. Back in 2020 the Money and Pensions Service published a UK Strategy for Financial Wellbeing, which sets a national goal of 2 million more children and young people receiving a meaningful financial education by 2030. This is supported by a delivery plan for each of the UK nations.
My noble friend Lord Effingham asked about our messaging for parents. We do quite a lot in that area. The Money and Pensions Service has some digital content, Talk Learn Do, which is a financial education programme for parents and carers of children aged between three and 11, to help them talk about and understand money. There is also a plan to develop a similar programme for parents of children aged between 12 and 17; the discovery phase has been undertaken, and the Money and Pensions Service is planning next steps. There is also a Money and Pensions Service grant programme, which is testing approaches to support teacher training with a particular focus on financial education for children and young people who are vulnerable—for example, children in care and care leavers.
The noble Baroness, Lady Twycross, asked about the risks of gambling. She is absolutely right to focus on that. The department has published training modules for schools as part of the RSHE curriculum, which cover the risks of gambling and debt. Through health education, pupils are also taught how to recognise early signs of mental well-being concerns, how to self-regulate and the benefits of rationing the amount of time they spend online, which is obviously part of the wider picture.
My noble friend referred to the approaches taken by the devolved Administrations. Of course, they are tailored to smaller and much less autonomous groups of schools than we have in England. Our current focus is really on the skills, such as arithmetic, that underpin a pupil’s ability to manage budgets and money, but also character development, which is so important in terms of attitudes.
The Government believe that it is crucial for children to build knowledge that supports their financial literacy over time, and that it is also critical to build attitudes as early as possible. We believe that rooting financial education in mathematics and citizenship focuses the curriculum on the key knowledge that pupils will need to manage their finances confidently. I am not sure whether the curriculum contains all the conceptual ideas that my noble friend Lord Hannan raised, but it certainly gave us food for thought.
We are building on recent reforms, and the webinars that we are delivering with the Money and Pensions Service are the next step in that. Our understanding of financial literacy is through a combination of knowledge and behaviours. Schools, but importantly families too, have a critical part to play in that.
The noble Lord, Lord Addington, referred to Jane Austen and Dickens. I am going to go further back and quote Cicero, which might be unfashionable but I think is appropriate for this debate. He said: “Frugality includes all other virtues”.
Victims and Prisoners Bill
Wednesday 31st January 2024
(9 months, 4 weeks ago)
Lords ChamberRead Full debate Victims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 31-II(Rev) Revised second marshalled list for Committee - (30 Jan 2024)
Baroness Chakrabarti (Lab)
My Lords, now we are once again resolved into a Committee, I can say that it is particularly humbling to follow the last group. Once more, I pay tribute to the noble Baroness, Lady Newlove, and to all the other survivors and survivor advocates we have heard from this evening and will hear from again, no doubt, before this Bill is done.
In speaking to Amendment 23 I shall also speak to its consequentials, Amendments 139 and 140, with support, for which I am grateful, from my noble Fred—my noble friend Lord Ponsonby of Shulbrede—and the noble Baroness, Lady Brinton. I hope the Minister will forgive me because this may be caricatured as legalism, angels dancing on the head of a pin, et cetera, or legal weeds, but I believe that putting the victims’ code on a firm statutory footing is incredibly important and something all parties and all Members of your Lordships’ House ought to support.
My reasoning is twofold. In a later suite of amendments, I will suggest that the victims’ code needs more teeth—not the sharpest teeth, but just some teeth. We will debate that later. If we are going to create some statutory powers to enforce the victims’ code, which I think is a pretty good code, we should all think about the fact that we have it. I thank the Public Bill Office and all those who were involved in putting the code on the many pages the Committee will see. It is a code full of very positive rights for victims but, sadly, too many of them are not real in practice at the moment. So, I am grateful for that.
One of the reasons I want to put the code on a statutory footing, as I have said, is that I am dovetailing these amendments with later amendments to give the Victims’ Commissioner some modest powers to enforce this noble code when it is not put into practice by the public authorities that have that duty. But even before we get to the amendments that will come later in the Committee’s consideration, there is value in putting this code on a statutory footing in the Bill, which is supposed to be a Bill for victims.
I have been a human rights lawyer for 30 years this year. That is an admission one does not want to make for all sorts of reasons—some personal and some political, I guess—and I have so much respect for English and Welsh common law. I believe it has done so much for fair trial rights and defendants’ rights: the golden thread and so on. Ironically, it is international human rights norms that taught me most about victims’ rights. The presumption of innocence, the burden of proof and all of that is pre-ECHR in our system, and I defend it. If anyone googles me, they will find all sorts of associations—“I am a terrible person who supports terrorists and murderers” and so on. I do not, but I do really believe in fair trials. I do not believe that any victim benefits from a miscarriage of justice. When there is a miscarriage of justice, there are two victims—and many more.
It is slightly ironic that, in our contemporary politics, politicians get brownie points for saying, “Let’s lock up more people. Let’s lock them up for longer. Let’s create more criminal offences” and “Let’s put more statutory provision on the books”—not to get stuck in the legal weeds or dance on the head of a pin, but as performative politics. Yet we do not create the facilities the noble Baroness, Lady Newlove, has been campaigning for: simple things such as a separate room for the victim at a murder trial, translations, and transcripts. All the things we were debating earlier this evening just cannot happen, but what can happen is longer sentences, more crimes et cetera. We can do that legislation —the legal weeds stuff—but we cannot do the basics.
I respect fair trials, and I respect a great piece of human rights legislation that goes back to 1984. The Thatcher years’ Police and Criminal Evidence Act did so much for suspects’ rights and defendants’ rights, including in the police station—and not just in its codes, but in the Act itself. It is framework legislation that creates all sorts of precious and important rights for suspects and defendants.
I believe that victims need at least the equivalent of that. It is a modest ask. For someone who completely believes in the presumption of innocence, fair trials and suspects’ and defendants’ rights, it is time for victims to have their equivalent. Putting the victims’ code on a statutory footing to make the Bill the equivalent of the Police and Criminal Evidence Act 1984 for suspects and defendants would be the least that we can do for victims of crime.
Even without my later suite of amendments, which would give the Victims’ Commissioner some enforcement powers—modest ones, which we will discuss later—putting this on the face of the Bill would pay respect to victims. In this age once more of connectivity, it would make the code more widely known, talked about and accessible. I also propose that, because this would now be in primary legislation, it would be amendable only by affirmative resolution in both Houses. I also argue that the Victims’ Commissioner should at least be consulted alongside the Attorney-General and so on, because otherwise this is all talk.
We have been doing this talk for many years in a performative, posturing arms race. Noble Lords know what I am talking about—and there is no monopoly of vice or virtue in any part of your Lordships’ House. This is the least we can do. Do we believe in victims’ rights? Let us put them into the Bill, and then debate later what we do about them and the enforcement powers which I believe the noble Baroness, Lady Newlove, and those who follow her should have. I beg to move Amendment 23 and hope I will have the unanimous support of the Committee.
Baroness Newlove (Con)
My Lords, I speak in support of Amendment 23. In my previous term as Victims’ Commissioner, a government lawyer once described the victims’ code to me as “persuasive guidance”. Those two words spoke volumes to me, because they go to the very heart of what is going wrong with the treatment of victims in our criminal justice system. If the Bill is to have a substantial impact on the victim experience, the first thing we need to change is the culture of the criminal justice system. I fear that victims’ entitlements are all often viewed as “Nice to do”, “If we can”, or “How can we tick the victim box with minimum effort?” This clearly came across in the findings of the joint inspection report on the delivery of victims’ entitlements, published on 23 December.
Victims need to be seen as participants in the justice process and not as observers. For this to happen, they need more than “persuasive guidance”; they need statutory rights. We do not talk about the defendant having “persuasive guidance”. They have statutory rights, and rightly so—we would not expect anything less. Rights are to be respected and adhered to. As we have seen over the past 20 years, entitlements in the victims’ code have been viewed by many practitioners as no more than this persuasive guidance. For this reason, I support the amendment from the noble Baroness, Lady Chakrabarti, which seeks to place the victims’ code into a Schedule to the Bill.
If this amendment is successful, for the first time we will be able to say that victims have statutory rights. This would be a significant step forward for the victims and place a much greater responsibility on key agencies to deliver compliance. The amendment cannot by itself change the landscape but, if coupled with greater accountability, effective scrutiny and better public awareness, it is one of the many steps we need to take if we are to deliver transformative change for victims.
Lord Russell of Liverpool (CB)
My Lords, very briefly, I can only entirely agree with the noble Baroness, Lady Newlove. If something like this does not happen, what we are all asking ourselves is: will anything really change? The noble Baroness, Lady Chakrabarti, contrasted the last part of the Bill, which has more substantive legislative power that will go on to its face, with the part of the Bill we are talking about at the moment, which is largely advisory and selective. It tells people what they should do. However, it does not tell people what they must do.
Most importantly, it does not even give the Victims’ Commissioner, himself or herself, the authority to insist. Unfortunately, the noble Baroness’s predecessor did not have her tenure extended because, I gather, she was felt by certain members of the current Government to be somewhat unhelpful in her attitude and demeanour; thus her tenure was not renewed. Until the noble Baroness, Lady Newlove, was put in on an interim basis, the role of Victims’ Commissioner was vacant for a significant period. That is not good or acceptable. It speaks volumes to some people about the level of real intent of His Majesty’s Government to put their legislative money where their mouth is.
I do not think I need to say any more than that. The onus is on the Government to demonstrate that this law will have real teeth and that the code, wherever it is, needs to be complied with and understood. The track record of the past few years has resulted in these amendments being put forward. There is a loss of faith in His Majesty’s Government’s true intent to put muscle and weight behind the provisions in the code, so the onus is on them to explain, on Report if the House so chooses, why we should not insist on amendments such as these.
Baroness Hamwee (LD)
My Lords, to answer the noble Lord’s rhetorical question, or perhaps pre-empting it, the Justice Committee in the House of Commons said that this was
“not … strong enough to drive the necessary cultural change”.
At the heart of the Second Reading debate was the importance of compliance with the code. If the code is not statutory, compliance is that much harder to achieve. We heard from the Minister at Second Reading, and in his letter following it—for which I was grateful—about guidance proposed by the Government for where non-compliance is severe and persistent, and how the ministerial taskforce may issue a public non-compliance notification. That is much too convoluted. One can see that it would take very serious non-compliance—something very dramatic—for such a non-compliance notification to be issued. I am sure it would be regarded as a very extreme step. We should not have to get to that point. It should be the norm and understood by the affected stakeholders—I hate that word—that they must comply.
Lord Sandhurst (Con)
My Lords, I declare my interest as a member of the justice committee, and I endorse everything that has been said by speakers in this debate. I do not need to repeat their reasons; I shall be expanding on them in the same vein when we debate Amendment 51.
We have to give teeth to this. There has to be cultural change and it has to be a change that affects those in the Crown Prosecution Service and police at ground level because those above them will know that, if they default, something not so nice—a failure to get promotion or something practical—may happen because they will have a black mark against them by having failed to implement the victims’ code. We need teeth.
Baroness Brinton (LD)
My Lords, I agree with everyone who has spoken so far. I say to the Minister that, given the mentions earlier today about putting the victims’ code on a statutory footing, the brevity of this debate is in inverse proportion to the importance of the amendments. We appreciate that the Government have not come as far as us. I am grateful to my noble friend Lady Hamwee, who helpfully set out the concerns of the committee that she quoted about this not being strong enough to get compliance.
I want to go back over a little bit of history. When I joined your Lordships’ House in 2011, a number of inquiries were going on relating to victims of crime. I became vice-chair of the all-party group on victims of crime. That group introduced the stalking inquiry report, which led to stalking law reform. Between 2011 and 2019, this House debated the role of a victim’s code and the victims of crime on many occasions. I had a Private Member’s Bill on the issue which had its Second Reading in July 2019. Not only did the Conservative manifesto of 2019 mention it but there was more detail about it in an addendum to it. I have no doubt that that was due to the work of the then Victims’ Commissioner, who is the Victims’ Commissioner again, sitting on the opposite Benches.
All that was because the current system does not work; it is quite simple. Until the services that have to provide the victims’ code are made to do so, there will be no incentive for them to deliver it if they have other pressures. It is the old thing: if you have to do something, then you will. You will have targets and you will be judged by your performance. Without that—if this is just a “thing too much—it will not happen.
As we come to the end of this Parliament, I want to say that it was a key tenet of the Conservative manifesto to make sure that a victims’ code was enshrined in law, but what we have seen is not what was spoken about during that general election campaign.
Lord Ponsonby of Shulbrede (Lab)
I find myself in a difficult situation, because in the previous group I had said that we should not have a sterile debate about whether we should have all the victims’ code on a statutory basis, and I challenged the Minister to look at individual provisions that should be on a statutory basis. I understand that that is not the tenor of the debate that we have been having in this group. However, Amendment 108, which was spoken to by the noble Lord, Lord Polak, in the previous debate, looked at a specific element—namely, to do with the relevant local commissioning of bodies for specialist support for children who are victims, and whether that should be on a statutory basis, so as to put it on a similar basis to that for domestic abuse victims. I do not think that the Minister answered that amendment. While on the one hand I acknowledge the point that having an all-or-nothing approach may not be the best use of our time, on the other, it would be helpful if the Minister addressed the specific proposals in the amendments in the previous group.
Having said that, we are at a relatively early point in Committee, and there will be opportunities to bring these matters back. As my noble friend said, she has a further group of amendments looking at the powers of the Victims’ Commissioner. Having explained my position to the Minister, I look forward to his response.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank the noble Baroness, Lady Chakrabarti, and others, who have spoken in this part of the debate. To take up at once the challenge of the noble Lord, Lord Ponsonby, the Government’s position is that there are no specific amendments, including Amendment 108, which could or should be promoted into the Bill—they should all be dealt with in the code, in the right place. The difficulty of putting specific matters in the Bill, among other difficulties, is that you make a policy choice, irrespective of the available resources and the available situation in different areas, and so forth, as to which—
Lord Bellamy (Con)
I was just going to finish my sentence, but of course I give way to the noble Baroness.
Baroness Chakrabarti (Lab)
I am sorry for being premature. I totally see the Minister’s point about the challenge of taking particular parts of the victims’ code and putting them in the Bill. That is why some of us are offering the suggestion that the whole victims’ code should be in statute. I hope that that would assist the Minister, because he would then not be picking and choosing particular aspects of the code, as the whole code of victims’ rights in this country would be in primary legislation, subject to amendment and so on. That would make victims’ rights a little bit closer to the appropriate rights of suspects, defendants and convicted criminals.
Lord Bellamy (Con)
My Lords, I am grateful for that intervention and clarification. Perhaps I could explain why the Government do not think that this is a positive way to go.
The first point is that the present code is still a statutory code. It is grounded in statute, authorised by statute, has been subject to negative resolution in Parliament and therefore has a legal status. The Government’s position is that putting the code in a schedule to the Bill does not materially increase its legal enforceability, or indeed its legal status. Therefore, there does not seem to the Government to be a compelling reason to do it in either case. The Government would consider the present code to be subject to judicial review. There could be a legal challenge; in fact, the legislation on the face of it accepts that the code is admissible in legal proceedings, and so forth. So we already have a statutory code, and we are dealing with quite a fine point—whether putting in a schedule really has any material effect. The Government’s position is that, certainly legally, it has no effect—but in practice there is a very significant downside.
The downside is that what you have on the statute is no longer user-friendly and no longer contains the information that victims want when they reach for the code and want to know what to do, where to go, what the telephone number is and what the website is that they need to consult. You cannot put that in the statute, and I invite noble Lords to compare the code as currently reproduced in the amendment we are discussing with the code as published. The latter sets out 12 rights very clearly, has boxes that explain various things, tells you where to go, elaborates on the rights, et cetera, all in very user-friendly language. Either you abandon that—in which case, you abandon the signposting and everything we were discussing in the previous group—or you have two documents. And that, in the Government’s view, is not very satisfactory. Although we all have touching faith in the interest of the general public to read long schedules in the statutes that we pass, that is not actually the way to raise awareness. You raise awareness through other means.
Baroness Lister of Burtersett (Lab)
I am sorry to intervene. I have been listening and have found the arguments very persuasive. If the Government are saying it does not make any difference to put it into the statute itself—and yet I know from briefings I have received that there is a very strong push from bodies on the ground saying we do need the code in the statute—why can we not have the statute and then a user-friendly version of it? That does not seem to me such a terrible thing.
Lord Bellamy (Con)
The Government’s view is, first, that there is no need to go down this route at all, because the present structure of the code under the existing legislation creates statutory duties, obligations and rights that can be enforced by one route or another. If you burden the statute with this, the Government’s position is that it has no real effect, either in law or in any other way, but does have the complication that you must have—as I think the noble Baroness is conceding —at least two documents. That, again, overburdens the system, and the document that is trying to be user-friendly and communicative may turn out to be more difficult to draft, if you are always stuck with the framework of what is in the statute. So it gets us nowhere and simply complicates life.
Baroness Newlove (Con)
I am sorry, I am not a legal person, so I am just trying to join the dots, if you will bear with me. I think what is really insulting to victims is that it is like a two-tier level—one is a code and one is a law. What we want is to make sure that that persuasive guidance is in law, because it is about accountability and while it is in the code—with the words “should” or “must” or “do”—there is no accountability. So I am confused by the Minister saying it makes no difference if it is put in law and that it is easy language. It is nothing to do with that. It is important for victims to know that they have legal rights—not to take away from the offenders’ rights, but to start a level playing field—so I am a bit confused about my noble and learned friend’s response, as it does not make sense to me, and I am not a lawyer.
Lord Bellamy (Con)
My Lords, I thank my noble friend for her intervention. Let me have another go at explaining it. The code is not in itself a statute. Once you go down the route of having a code and not a statute, you effectively have a framework that is still a legal framework—it is still legal guidance that gives people rights. The code says that you have 12 rights and lists them: this is what the authorities have to do and this is what you do if those rights are not observed. It is a legal framework; we are talking about degrees of legal right, but these are legal rights. If you wanted to, you could go to court and say that you have not had them.
Baroness Newlove (Con)
I am sorry, but I think there is a miscommunication here. The courts may be saying that these are your rights, but they are not legal rights. My inbox is full of victims not getting their rights under the code. I have been doing this since 2012 and have been at every code launch—you name it—but it just does not happen because the profession does not see this as law. It sees it as a code, so there is no legal route to accountability. It is all down to agencies which, if we are to line all the ducks up, have no funding and are short of staff—and again, the victim has not had that communication. My noble and learned friend talked about raising awareness of the code because nobody knows about it, so I am at a loss to understand this impression that “They have a right and they should do this”. As we saw recently in the Nottingham case, there is a miscommunication of rights and what they do: it is not being delivered.
Baroness Brinton (LD)
Before the noble and learned Lord gets up—I know that is the inverse of the usual statement—perhaps it might be helpful if I cited something from the code and then asked a question. The second right states:
“You have the right to have the details of the crime recorded by the police without unjustified delay after the incident”.
We know that there are a lot of delays, but let us put that to one side. Where does it say in legislation that governs the actions of the police—whether that is primary legislation, secondary legislation, codes of practice or statutory guidance—that they have to do this? The problem is that we cannot find any of the rights in the victims’ code reflected in the statutory duties of the agencies listed in it. Please tell me I am wrong; I would be delighted to be wrong.
Lord Bellamy (Con)
If I may say so, sometimes one is in the middle of the flow of one’s argument and people jump up and down when one has not quite finished explaining the overall framework. The essential problem here is not the code itself, as the noble Baroness, Lady Chakrabarti, kindly said—it is not a bad document, I venture to suggest—but a lack of awareness, police not doing their job and nobody knowing quite what should be done if that were to happen. The idea behind the basic framework of this legislation is to force the relevant bodies to take steps to comply with the code. That is why Clause 6 says:
“Each criminal justice body which provides services … must … take … steps”
and “must … keep under review”. Clause 7 provides that they must provide various activities, et cetera, and must collect information, that a local policing body must do this, that and the other and that the various constabularies referred to later must do these things. The idea is that we have a code and a framework, and we must make sure that the bodies responsible for enabling victims’ rights do so.
In the Government’s view, you do not materially increase the likelihood of them doing so by putting the code into a schedule, any more than you increase that likelihood—to deal with another point—by converting a “should” into a “must”. That is another bit of fine tuning. The principles of the code are set out in Clause 2; for example, that you “should provide information”. You could say that you “must provide information”, but that does not really change the enforceability unless you have a whole statutory framework for what the information should be, who should provide it and how it is to be done. That is all in the code at the moment, where it should be.
I do not want to refer again to angels dancing on pins, but I think we are slightly at cross-purposes as to what we mean by things “in law”, “legal enforceability”, or “statutory codes”. That is the Government’s basic position on this.
Baroness Hamwee (LD)
I do not want to stop the Minister when he is in full flow. I understand how difficult it must be when people leap up because he has a comma in the middle of a sentence.
It seems to me the Minister has already conceded the next group of amendments, which are about compliance and data monitoring. Can he remind us why in Clause 2 it is “should”, not “must”, since he has just cited and relied on other clauses which use “must”? I do not know whether I have elevated myself to the status of an angel with that.
Lord Bellamy (Con)
I think the short answer is that the purposes of those later clauses is to impose a statutory duty on the relevant bodies. The purpose of Clause 2(3) is to set out the principles. In terms of these, the Government’s view is that “should” is a more appropriate word than “must”, because the principles are very broadly expressed. Noble Lords might argue that “should” and “must” are almost interchangeable. I think we are again drawing really fine distinctions.
Perhaps I could just deal with two or three other points that arise on this part of the Bill. One is the question of the affirmative procedure as against the negative procedure. If I may say so, at the moment the code is subject to the negative procedure. Noble Lords can pray a resolution against it—of course there is going to be a debate in Parliament. I would respectfully suggest that it is more flexible than our somewhat—on some occasions at least—torrid debates in the Moses Room on affirmative resolutions. Noble Lords cannot change anything, it is very formalistic, and I respectfully suggest that making it an affirmative resolution is not a material improvement.
To keep the whole structure flexible and adaptable—I have used various words beginning with “a”, and I think I could add “adaptable” to this cohort—the Government suggest that it is not a useful move to put the code without the accompanying description in the statute itself; that in itself has no material effect on the Government’s view.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords who participated in this debate.
I remind noble Lords that Clause 5 makes it clear that failure to comply with the victims’ code, currently and as proposed in the Bill, does not make a person liable to criminal or civil proceedings. The code has no legal teeth.
Let us cut through a bit of the legal waffle. The noble Baroness the Victims’ Commissioner is right: this is a code without enforceability. No victim can enforce their rights in any court in the land, and even the Victims’ Commissioner appointed by the Government of the day cannot enforce the code. That is why the amendments in this group dovetail with later amendments which would give the noble Baroness, Lady Newlove, and her successors and heirs, some modest powers to issue notices to public authorities, to publish those notices and, in extremis, to take legal action.
With the greatest respect to the Minister, to say that there is no difference between the scheme that is offered in these amendments and the current position is just not accurate as a statement of law. He said that this amendment is unnecessary and unhelpful. I hope that I have dealt with that. He said he did not want to burden the legislation with a schedule. I do not want to burden victims because this Bill is supposed to be about them. I know where the balance of the argument is between a few extra pages in a schedule and this toothless, illusory, broken promise to victims.
As for the arguments about how clunky it looks to have a code in a schedule to legislation, compared with the sparkly thing that could be on the Victims’ Commissioner’s website, we have that all the time. The convention rights—which may not be totally popular with everyone on the Benches opposite—are popular with me and mean a lot to people. They are in a schedule to the Human Rights Act. They are popularised in all sorts of ways to all sorts of people. They know that this is not a code of guidance; it is a Bill of Rights.
As I have said before, parties on both sides of this House have, for many years, talked the talk about victims’ rights—more legislation, longer prison sentences, et cetera—but have not actually delivered a right to see the transcript, to have a separate room at the court, to be treated with dignity. Let us have this debate but let us not pretend that there is no legislative or legal difference between the current and proposed positions.
I am disappointed by the Minister’s response. Because I have so much respect for him as a lawyer and a former senior judge, I urge him and his colleagues to think again about this. It would not cost a penny, but it would mean so much to so many people. Putting this and the subsequent amendments that we will debate on a legislative footing would give the Victims’ Commissioner some judgment and power to give this code teeth.
For the time being—but only for the time being—I beg leave to withdraw the amendment.
Baroness Chakrabarti
Member's explanatory statement
This refers to the duty on the Secretary of State to prepare a draft Victims’ Code. The Victims’ Commissioner has a statutory duty to “review the operation” of the Victims Code. The amendment would put a statutory duty on the Secretary of State to consult the Commissioner when making any changes to the victims' code or issuing any statutory guidance relating to it.
Baroness Chakrabarti (Lab)
My Lords, at the risk of trying the Committee’s patience, we are now talking about the role of the Victims’ Commissioner. Again, the thrust of these amendments moves in a similar direction and gets more into the specifics of the role of the commissioner.
Even under the scheme as currently proposed by the Government under the various provisions of the Bill, the government-appointed Victims’ Commissioner has very little respect and power. Even in places where the Secretary of State must, for example, consult the Attorney-General, there is no similar obligation to consult the Victims’ Commissioner. I find that constitutionally odd. It seems that one does not require a statutory duty to consult the Attorney-General. One hopes that in a rule-of-law Government and with cabinet government, it would be commonplace, without statutory provision, for Home Secretaries, Justice Secretaries and Cabinets to consult the Attorney-General. Maybe I live in the past and that is another place.
The Victims’ Commissioner is a creature of statute; therefore, there should be statutory duties to consult the Victims’ Commissioner, particularly when there are the sorts of provisions that the Government are already proposing in their own scheme.
I have, perhaps, taken up too much time already. In short, wherever there are powers and duties and anything proposed in the Government’s case to protect the victims by improving the code or compliance with the code, there must be a role for the Victims’ Commissioner. The Government should not be afraid of that because they appoint the Victims’ Commissioner. One would hope that they would appoint someone whom they trust and respect and who has at least enough judgment to be the guardian of the victims’ code and of this whole approach.
Anything less is really, as the noble Baroness, Lady Newlove, suggested in her remarks earlier, a bit of an insult to victims. This is not just a toothless tiger; at the moment I wonder where even the gums are. It is embarrassing. At least in the Government’s own case, with their own scheme as currently devised, this suite of amendments, to put it shortly, is putting the Victims’ Commissioner in every place where she should be.
Baroness Newlove (Con)
My Lords, the role of the commissioner is to review the operation of the victims’ code. The 2004 Act, which introduced the code, also created the post of a Victims’ Commissioner. It was the clear intention of the Government and Parliament that an independent Victims’ Commissioner should be able to champion the needs of victims and challenge the Government when code entitlements were not being complied with. Given the concerns many of us have about code compliance, the importance of the commissioner role cannot be overstated.
Since 2004, there have been just three Victims’ Commissioners: the noble Baroness, Lady Casey; Dame Vera Baird; and me. We have all come to the post through very different journeys, but, as those of your Lordships who know the three of us will testify, we have one attribute in common: we are, shall we say, a feisty bunch. However, I have to tell your Lordships, and I feel sure that my erstwhile fellow commissioners would agree, that there are times when being feisty is simply not enough.
Twenty years after the role was created, the time has come to give future Victims’ Commissioners the tools to do the job Parliament intended. This means that, when the commissioner makes recommendations, the Government and agencies take the trouble to consider them and respond. In my experience, this rarely happens. I therefore welcome the provisions in the Bill to make this a statutory requirement.
However, we need to go further. A basic requirement should be that the Victims’ Commissioner is consulted when the Government amend the code or issue statutory guidance in relation to it. Yes, the Government do consult me, but as a favour, not as a statutory duty. All too often, the consultation comes after the policy has been developed, and occasionally on the day it is to be announced, giving the sense of a fait accompli. Changes in the law will not necessarily stop this happening, but it is a start. That is why I am supporting Amendments 24, 26, 27, 28, 29, 35, 43 and 48 in the name of the noble Baroness, Lady Chakrabarti.
I also welcome Amendment 49, tabled by the noble Baroness, Lady Thornton, which requires criminal justice agencies to co-operate with future Victims’ Commissioners. Again, if successful, this clause will not take effect until after I have left office. In my experience, many agencies I deal with are very helpful. HMPPS, for example, is particularly helpful. With some others, it can vary. For an independent Victims’ Commissioner to offer robust scrutiny, they need to have access to data and information relating to their statutory duties.
The duty set out in this amendment is not without precedent. The domestic abuse commissioner has exactly the same power. I understand it has never had to be used, but all parties concerned know it exists. These amendments combined will change the dynamics of the relationship of the commissioner with the agencies and with government. It makes her or him a formal part of the criminal justice architecture, and it gives them the authority to speak and be listened to.
Lord Russell of Liverpool (CB)
My Lords, I will amplify what the noble Baroness just said by actually quoting from the Government’s own description of the Bill and what is in it. A paragraph headed
“What happens if victims do not receive their entitlements?”
says:
“We think that all the measures set out will strengthen the service victims receive. As the Code is a statutory code of practice, all relevant bodies should already comply with it”.
We know they are not, so the status quo we are starting from is, to a very large degree, that the bodies which are meant to be complying with the statutory code of practice are not doing so. The paragraph continues:
“However, if things go wrong, victims can make a complaint”.
It is up to victims themselves, who may or may not be aware of what their rights are under the statutory code, to identify that they are not receiving their rights, and then it is up to them to make a complaint. What is the Victims’ Commissioner for if not to act as the obvious channel and filter for all such complaints so they can go directly through her or him to His Majesty’s Government?
What the Government have described here is a complete, accurate illustration of the problem we have. It is not working at the moment. What the Government have said will improve it, on the basis of the evidence we have, but, frankly, the arguments we have heard so far do not really give us any room for optimism, so I suspect I speak for everybody in the Committee when I say that, rather like my school reports, I think the Government “should do better”.
Baroness Hamwee (LD)
My Lords, I have my name to Amendment 49 in the name of the noble Baroness, Lady Thornton, on the duty to co-operate—which seems to me not something that should have to be said, but clearly does. It is another aspect of compliance. As ever, it is important to have the data on which to make recommendations and directions, give advice, or whatever. That is what Amendment 49 is about. It is about providing the tools for the independent Victims’ Commissioner to be effective. The amendment is based on the importance of monitoring compliance with the code, and one would think that the commissioner will be expected to be on top of the data. That needs co-operation. I think that is probably enough said. I am very much on the same page and the same paragraph as other speakers.
Baroness Brinton (LD)
From these Benches, I will be extremely brief, because I agree with everything that has been said. I signed Amendments 27 and 29 in the name of the noble Baroness, Lady Chakrabarti, and I absolutely support the amendment from the noble Baroness, Lady Thornton, which my noble friend Lady Hamwee has also signed. We cannot have commissioners who are commissioners in name only. They need clear roles, responsibilities and powers, and clear limits to those powers. The problem at the moment is that they do not, so we support the amendments.
Baroness Thornton (Lab)
My Lords, the noble Baroness, Lady Newlove, said it right when she said that it is time to give the Victims’ Commissioner the statutory place and rights that are appropriate. That is exactly the point of this suite of amendments. They aim to do two things. One is to give the Victims’ Commissioner the right status to be able to get the right information and have the right relationships to make them most effective, but it is also placing duties on other organisations to co-operate with the Victims’ Commissioner. That is what this suite of amendments is about. That means that they are very important. They also reflect the powers that other commissioners have in this space.
We have a group of amendments which give the Victims’ Commissioner a statutory duty to review the operation of the victims’ code, placing a statutory duty on the Secretary of State to consult the commissioner when making any changes to the victims’ code or issuing any statutory guidance relating to it. The amendment refers to the duty of the Secretary of State to consider any representations in relation to the drafting of the victims’ code in consultation with the Attorney-General. Again, I thought, “Why do you have to say that?” But, actually, I think we have to.
Amendments 27 and 29 alter the procedure for amending the victims’ code to require formal consultation with the Commissioner for Victims and Witnesses—I did not think that was necessary either, but if we need to say that, then we do—and affirmative parliamentary procedures.
Amendment 28 refers to
“the duty on the Secretary of State to consult the Attorney General on any revisions”.
Amendment 35 refers to
“the Secretary of State’s duty to issue regulations on the information to be collected by PCCs at a local level”.
Amendment 43 also places a duty on the Secretary of State to
“issue regulations on the timing and format of the information”.
This is about relationships that the Victims’ Commissioner needs to have to do their job effectively—with the Attorney-General, with PCCs, with the agencies with which the commissioner has to work.
My amendment—again, you would not think it would be necessary, but it clearly is—states that there is a specific public authority duty
“to co-operate with the Commissioner in any way that the Commissioner considers necessary for the purposes of monitoring compliance with the victims’ code”.
If we do not give the Victims’ Commissioner the power to ensure that the code is being complied with, we are not taking victims seriously. If we do not do that, we do not place the right kind of duties on the Secretary of State. We also need to make sure that the way the Victims’ Commissioner works is joined up with all the different agencies that she—it has always been “she” so far—needs to have.
We are very keen on this group of amendments because it does those two things: it gives the Victims’ Commissioner power, and it places a duty on different parts of the state to provide, as the noble Baroness, Lady Newlove, said, formal parts of criminal justice infrastructure. This a powerful suite of amendments that I hope the Minister will agree to, and certainly will discuss with us as we move forward.
Lord Bellamy (Con)
I am very grateful, once again, to all noble Lords who have spoken to this group of amendments, which is related to the previous group. I am very sorry if the noble Baroness, Lady Chakrabarti, and I have managed to fall out over what is actually a legal discussion. Maybe we can pursue some of the points that were made in the previous group further, so that we understand each other and where those who support those amendments are coming from.
As far as this group of amendments is concerned, I will take first the amendment that would place a specific duty on specified public authorities to co-operate with the Victims’ Commissioner. I do not think anyone is in any doubt—and certainly the Government are not—that the Victims’ Commissioner plays a most important role that requires collaboration across the criminal justice system and the support sector. We recognise that there is other legislation affecting the domestic abuse commissioner which gives them the kind of powers that I think are partly, at least, being sought under this amendment.
I cannot at this moment accept the amendment, as I am sure noble Lords completely understand. But I am very much open to working with the Victims’ Commissioner and the House on whether there is any common ground on this approach, which would help us build up the bricks we are looking to build up to create the building that will enable this whole system to be more effective.
As regards the amendments to require the Secretary of State to consult the Victims’ Commissioner, I first make an extremely nerdy point, just for clarification. Clause 3(3) states:
“In preparing the draft the Secretary of State must consult the Attorney General”.
That is probably a bit confusing at the outset, but what is essentially being said is that the Secretary of State must consult relevant Ministers responsible for the bodies to which the draft is to apply: the Lord Chancellor, the Home Secretary—both of whom are englobed in the phrase “Secretary of State”—and the Attorney-General, who is responsible for the Crown Prosecution Service and similar justice bodies. It is a sort of ministerial consultation.
As to the question of consulting the Victims’ Commissioner on the code, further amendments to the code and so forth, I cannot imagine any circumstances in which the commissioner would not be consulted on all these matters. We have not set out in the Bill all the stakeholders that should be consulted but I would very much like to continue to work with the Victims’ Commissioner on this issue and how we continue to recognise that vital role. Again, may we take this amendment under advisement and see how far we can go?
Baroness Brinton (LD)
I am mindful of the point made by the noble Baroness, Lady Newlove: because the Victims’ Commissioner is not a statutory consultee, consultations often arrive as the policy is announced. It is a tick-box exercise. The point of making someone a statutory consultee is that they have to be notified as the process starts, not as it ends. If the Minister is going to have a discussion with the noble Lords who have spoken in this debate, it would be really helpful to understand how the position outlined by the noble Baroness can be prevented.
Lord Bellamy (Con)
My Lords, I am sure that that point deserves full consideration alongside other points.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords in the Committee, in particular the Minister. He will forgive me if I was overly animated; I hope he does not think that we have fallen out as I find it hard to envisage circumstances in which we would do so.
I am grateful for the Minister’s clarification of the Government’s intention in Clause 3(3): that the consultation will be broader than just the Attorney-General and will include the whole Cabinet or any relevant Secretary of State. I may be a fool but I always thought that, in our constitution, the Cabinet, the Government and the Secretary of State were virtually indivisible and there was no need to create statutory duties on individual Secretaries of State to consult each other. I may be wrong about that but the Minister’s argument is that he needs provision in the Bill for the Secretary of State to consult the Attorney-General, yet no similar provision is required for the Secretary of State to consult the statutory creature—the noble Baroness, Lady Newlove, does not look like a statutory creature; she is a wonderful human creature—that is the Victim’s Commissioner. I am confused about that but perhaps, in due course, the Minister and his colleagues will deliberate it; I like the noises that I am hearing about possible reflection.
Without provisions of this kind and of the kind that we will debate in the next group, this whole part of the Bill will be Conan Doyle. In particular, for fans of Conan Doyle, this is The Adventure of Silver Blaze. This is the curious incident of the victims’ code that made friends and did not always bark in the night. With that, I beg leave to withdraw the amendment and not bark in the night.
Lord Russell of Liverpool
“Compliance with the code: minimum thresholds(1) The Secretary of State must by regulations issue minimum threshold levels of compliance with each right of the victims’ code.(2) If a minimum threshold is breached by an organisation for two consecutive years, the Secretary of State must commission an inspection of that body with regard to that breach.(3) The Secretary of State must, as soon as is reasonably practicable, lay before Parliament the report of any such inspection.” Member’s explanatory statement
This clause requires the Secretary of State to establish for agencies listed in the victims’ code minimum levels of compliance with code entitlements, which, if breached, will prompt independent inspections.
Lord Russell of Liverpool (CB)
My Lords, we are starting this group, but I suspect that we will stop it in about 29 minutes, so we will make what progress we can.
In moving Amendment 30, I will speak also to a large number of amendments in this group: Amendments 37 to 46, 50 and 83. They come in three groups. Amendment 30 is to do with requiring the Secretary of State to set minimum threshold levels of compliance for each right of the victims’ code, carrying on from the discussion that we had on the previous group. The group of amendments consecutive from Amendment 44 seek to place a statutory duty on the Victims’ Commissioner to compile and publish an independent annual report on justice agencies’ compliance with the victims’ code. Amendment 83 is an old chestnut for the noble Baroness, Lady Brinton, and me, to do with training for the police to better understand and deal with stalkers.
Starting with Amendment 30, which is about the minimum threshold levels of compliance for each right in the code, during the pre-legislative scrutiny of the Bill, the Justice Committee stated:
“As drafted, the Bill fails to adequately address the issue of agencies’ noncompliance with the Code—we are concerned by this given that it is one of the principal reasons for the Bill”.
Therefore, this amendment has been designed, working very closely with the Victims’ Commissioner and her office, precisely to fill the gap that was identified by the Justice Committee.
For many people, experiencing crime is a life-changing event, as the noble Baroness, Lady Newlove, has testified on more than one occasion. It is the effect of not just the crime but the justice process that may follow it which victims have to endure. While we know that some victims receive an exemplary service, this is not everyone’s experience. Victims can end up in a very bad place, feeling lost, voiceless, in a complex and seemingly unfeeling system, feeling like a bystander, being told about rights which in theory they have but which are probably not properly explained to them and certainly do not feel as if they are being received.
Clearly, this should not be the case and I do not think that it ever was the intent of His Majesty’s Government when they were drafting the original Bill, the code and now this Bill. However, we are where we are. While the victims’ code sets out the minimum level of service that victims should receive, that they should be treated with respect, dignity, sensitivity, compassion and courtesy, be provided with information and updates about their case and be referred to the right support services, we know that this is not always the case, and a systematic lack of compliance with the code means that many victims are being let down.
The most recent survey by the Victims’ Commissioner found that only 29% of victims had been offered the opportunity to make a victim personal statement, despite that being one of the key rights under the code. That is under one-third, on a part of the code which the Minister said a few minutes ago is a statutory requirement to deliver. That is not a very impressive scorecard. The Bill as it stands does go some way to address this: it places the key principles of the code in law and introduces a duty on criminal justice agencies to collect and share data. However, while these are welcome steps, they do not go far enough. They go some way towards monitoring victims’ rights, but they do not ensure that victims receive them. Introducing minimum compliance thresholds will strengthen accountability and provide a means of putting the victims’ code into force.
Organisations which persistently—by which one means over a period of two consecutive years—and systematically fail to meet the thresholds will be subject to an inspectorate inspection to investigate problems and drive improvements. The thresholds that will be put in place by this amendment will make absolutely clear the levels of service that victims must receive. They will provide a systemic and consistent way of holding justice agencies to account for how they treat victims. If victims are consistently not being referred to support services, not being provided with updates and not been given the chance to make a victim personal statement, this amendment provides a clear way of identifying this, of escalating it and, perhaps most important of all, putting it right.
The Government made it a laudable aim of the Bill to
“put victims’ interests firmly at the heart of the justice system”,
but we contend that the Bill falls somewhat short of that.
The next series of amendments, from Amendment 44 onwards, seeks to place a statutory duty on the Victims’ Commissioner to compile and publish an independent annual report on the compliance of justice agencies with the victims’ code. The Government are committing in the Bill to collect the sort of data that will identify what is happening out there, but data alone will not deliver the culture change that is required to ensure that victims are treated better within our justice system. We must go further to ensure that victims have guaranteed rights, not apparently guaranteed favours.
Clause 10 requires the Secretary of State to produce an annual national report on code compliance. The Government are proposing that they collect, analyse and publish a report on code compliance themselves. Sceptics could possibly perceive that the Ministry of Justice is, in effect, marking its own homework. I suppose the question we are asking is: do we feel that is right? I think we feel that there should be—this is absolutely crucial—robust and independent scrutiny of code compliance. The proposed system of police and crime commissioners collecting compliance data locally, and the Ministry of Justice preparing a national report, provides neither independent rigour nor effective challenge.
One of the core remits of the Victims’ Commissioner is to monitor how criminal justice agencies comply with the victims’ code. Surely, as this is a core function of this office, it only follows that it is right and proper that the Victims’ Commissioner should be the person to collect, analyse and publish this report on code compliance. It is only by having a truly independent appraisal of code compliance, issued by the Government’s own appointed Victims’ Commissioner, that we can start to deliver true accountability, with criminal justice agencies fully held to account on their delivery of victims’ code rights.
Lastly, there is the matter of training for dealing with stalking. Last week, I had the privilege of speaking virtually to Richard Spinks, the father of Gracie Spinks; your Lordships may remember this particularly horrendous case where Gracie was attacked and killed by a man, a rejected partner, who had been stalking her continuously for an extended period. She had made more than 40 complaints to Derbyshire police; but they did, in effect, nothing. The coroner’s report was absolutely devastating. The Derbyshire police were not trained; they did no proper assessment of the level of risk; and they were found to be guilty of gross negligence. One of the results of this was that South Yorkshire Police, which was brought in to investigate the lamentable performance of the Derbyshire Constabulary, was so affected by what it found in this investigation that it resolved to go back and transform the way it prepares for, deals with and understands cases of stalking. The effect was such that it saw how bad bad could be.
The good news is that there is some good practice out there. I thank the Suzy Lamplugh Trust for giving those of us who have tried to advocate for better policing and understanding of stalking for many years such enormous support. It has embarked on a scheme in Cheshire, working with the Cheshire Constabulary, which is, undoubtedly, the best in class. The police are properly trained; they can assess risk quickly and effectively; they are organised in such a way that they are properly resourced and can act very quickly. They have excellent internal communication channels, which is not the case in every force, and are able to make it work.
Perhaps I can just remind noble Lords of the sheer complexity of stalking, because there are many different kinds of stalker. The most common is the rejected stalker; I think that was the individual who was in the BBC news today—the gentleman who was confronting police officers with a crossbow two days ago, and who was shot dead. He had not only a crossbow but body armour, several knives and machetes et cetera, and he was determined to break into the bedroom of a woman who lived in that area, no doubt to try to kill her. This is a man who had a record of harassment and bad behaviour, and was supposedly under monitoring by the police. None the less, he managed to accumulate this variety of weapons and personal armour, and we must be very thankful that the police managed to intervene and at least put the perpetrator out of his self-inflicted misery, although I am sure that the trauma felt by the intended victim will live with her for a great many years.
Baroness Chakrabarti (Lab)
My Lords, this group is about giving teeth to the toothless tiger that is the victims’ code. To be clear, currently in law, and as proposed by the Government’s scheme in this Bill, the only indirect enforceability would be that if anybody has any other kind of proceedings against a relevant public authority, the victims’ code can be taken into account. That is it. That is not an enforceable right in any usual sense of the concept, because enforceable rights require duties that must be enforced.
Various options have been proffered by noble Lords in the Committee in the various amendments in this group. Mine is Amendment 31, on which I am grateful for the support of my noble friend Lord Ponsonby of Shulbrede and, once more, the noble Baroness, Lady Brinton. I propose here that the teeth, to some extent, go to the Victims’ Commissioner. As I said in the debate on the previous group, the Government appoint the Victims’ Commissioner; this is not some dangerous person who will be litigating everywhere. This is an appropriate person who has been appointed by the Government of the day.
I am not suggesting that victims should be able to sue directly in the courts on the victims’ code. Frankly, there is no legal aid for them to do so anyway, and I do not want them to be traumatised by more litigation when they have been so traumatised by the principal proceedings in which they have had such a bad experience. But I do want them to have real rather than illusory rights, which can be enforced.
The thing about enforceable rights is that they become more real just because they exist, because the public authorities concerned will take note. I believe they will take greater note when they know that down the road, in extremis, there is a potential reckoning if they continue to ignore victims in the way that they have, to deprioritise them or to do whatever it is that has led to some of the stories we have heard in Committee this evening.
My proposed scheme is to replace the current Clause 5, the toothless tiger, with the following enforcement procedure. Incidentally, this is not about specific cases. It is not about the Victims’ Commissioner doing something that she does not do at the moment and getting involved in this criminal case or that; there would be obvious problems with that. This is about general practice. When, for example, it comes to the notice of the Victims’ Commissioner that women are being treated appallingly when they report rape and have their mobile phones taken or are not allowed to speak to counsellors—clearly things that would never happen in real life; I am just hypothesising for a moment—the Victims’ Commissioner in the first instance would do what she does already, which is to try to engage with the public authorities at length and persuade them that there is a problem in general that needs to be dealt with.
However, there are measures in the proposed new Clause 5(4) for when that is not being complied with. In the first instance, in Clause 5(4)(a), the Victims’ Commissioner would be able to issue a notice of general guidance. It would not be about a specific case but would be general guidance to the relevant public authority about its practice that, in her view, was not complying with the code. Whether it is about separate rooms in the Crown Court or the information being required, the victim is not being treated according to the code, so the commissioner issues the notice, initially in private.
If that is not complied with within a reasonable period of time, under Clause 5(4)(b), the next tool in the armoury—which is still pretty modest—is that the Victims’ Commissioner would be able to publish that notice. In my view, that public notice is another tool for accountability in relation to the intransigence of public authorities that are simply not complying with the code.
There is then a further step. One would hope that it would very rarely happen, but maybe sometimes it would need to. This is not about specific cases and would not involve individual victims having to go through legal proceedings, but in extremis the Victims’ Commissioner would be able to start proceedings in an appropriate court or tribunal, defined in rules by the Government, to seek enforcement of the code. That would be only the Victims’ Commissioner, not any litigant in the land who was being mischievous with their money, or lefty human rights lawyers and all that stuff. It would be the Victims’ Commissioner, who is trusted and was appointed by the Secretary of State in the first place.
I think that is a pretty modest and balanced scheme for giving the toothless tiger not great big scary teeth but just some milk teeth so they can nudge these public authorities, which have had all this time and all these years with the current code and the current scheme, which is going to be replicated in the Bill proposed by the Government. It would get the Victims’ Commissioner a little bit more by way of a power to deliver for the victims that she serves.
Lord Sandhurst (Con)
My Lords, I hope I can do this in the time allotted, as they say.
I shall speak to Amendment 51 on training in relation to support for victims. Very simply, Clause 6 directs that criminal justice bodies must take reasonable steps to promote awareness of the victims’ code to victims and other members of the public, but the Bill does not mandate that professionals within these bodies receive any training in the code. There is no point in this provision in Clause 6 if those who are to carry it out—those who are acting on the ground within the agencies, under the chief constable or within the prosecution service—are not aware of their duties or trained properly to deliver them. This part of the Bill risks being a fig leaf. To make it effective, those responsible for it must be trained in delivery. Is this not just common sense?
The evidence base is that there is a need to provide training and that it is clear that there is a widespread lack of awareness of victims’ rights. I take you back to two surveys. In 2019, the London victims’ commissioner conducted a review into compliance with the victims’ code of practice. She heard from over 2,000 victims of crime. The review revealed examples of unacceptable service. It showed that a proportion of those who work in the criminal justice service lack the skills or training to understand and respond to victims’ needs effectively. Victims suffer the consequences of those problems time and again; they simply were not informed of their rights. In short, the code was not delivering.
Let me give some examples. Fewer than a third of the victims reported being told about the code of practice. Of course, some of them may have forgotten, but certainly a large proportion were not told. As a result, they did not know what their rights were—they did not know they had any rights. It is no use giving the victims rights if they do not know about them. Largely, the police and the Crown Prosecution Service are not trained to do this. It is not because they are wicked people; they just do not know about it. There are many other deficiencies. Read the review if you want to know more.
More recently, in June 2022 the office of the Victims’ Commissioner launched the Victim Survey, an online survey of victims of crime in England and Wales that asked them about their experiences as a victim of crime. I will give a few examples. Fewer than a third, only 29% of respondents, were aware of the victims’ code. The same percentage said that they were offered the opportunity to make a victim personal statement. In other words, if that is right, 71% were not offered that opportunity. Again, allowing for some people not being very capable or bright, it shows a large proportion, on any basis, were not informed of really basic information.
Data from the user satisfaction survey in London shows that only 25% of victims were made aware of the victims’ code. In the same period, the answers showed that 50% were offered victim support services—in other words, half were not; and 59% were given the opportunity to make a victim personal statement, so around 40% were not. It is the “nots” we are interested in here. Only 12% were offered information on compensation. Again, making allowances for the fact that it may not have been appropriate or necessary and that some people are forgetful, a large proportion were not told about possible compensation and how to claim it, and that is important. Even a small amount of compensation can make an individual who has been the victim of crime feel a bit less disgruntled. I speak as someone who sat as a recorder in the Crown Court for 20 years.
Those are all rights in the victims’ code. They are all failures; just read the survey for more. It is plain that there is no training. We need it and it should made part of the statute. So, I commend this amendment to the Committee.