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The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, I apologise for my extremely croaky voice; there is a bug going round, so I am told. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Digital Markets, Competition and Consumers Bill
Monday 5th February 2024
(10 months, 2 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-VI Sixth marshalled list for Grand Committee - (5 Feb 2024)
Baroness Morgan of Cotes
“(1A) A commercial practice also meets the specified prohibition condition if the commercial practice targets consumers with marketing material for products intended to be used by that person to take their own life.”
Baroness Morgan of Cotes (Con)
My Lords, it is a pleasure to speak here this afternoon. I apologise to the Committee for not being able to speak at Second Reading. I declare my interest as the founder and trustee of a mental health charity in Leicestershire, the Loughborough Wellbeing Centre.
It will not surprise my noble friend the Minister, I suspect, to know that this is a probing amendment. However, given that we are debating in this part of the Bill the enforcement of consumer protection, the matter that I raise relates directly to the greatest harm that a consumer can suffer: their death.
In June 2022, I asked my noble friend Lord Parkinson the following Oral Question: what plans do
“Her Majesty’s Government … have to address online retailers’ algorithmic recommendations for products that can be used for the purposes of suicide”?
At the time, the most obvious Bill to address this matter was the Online Safety Bill, which, as we know, focused on harmful content in particular. In my follow-up question, I said:
“When a particular well-known suicide manual is searched for on Amazon, the site’s algorithmic recommendations then specifically suggest material that can be used, or easily assembled, into a device intended to take one’s own life. If this is not to be regulated as harmful content under the Online Safety Bill, how can this sort of harm be regulated?”—[Official Report, 27/6/22; col. 434.]
This amendment is particularly close to my heart because, sadly, when I was a Member of Parliament, a constituent bought a manual on Amazon then completed suicide. The amendment would amend Clause 149 by expanding the specified prohibition condition definition by adding a commercial practice that
“targets consumers with marketing material for products intended to be used by that person to take their own life.”
I am grateful to the Mental Health Foundation for its support with this amendment.
Even today, Amazon continues to algorithmically recommend products that can be used to take one’s own life to users viewing suicide manuals online. To be specific, users searching for a suicide manual will be recommended specific materials that are touted as being highly effective and painless ways to take one’s own life. Amazon facilitates users purchasing the key items that they need, from instructions to materials, in a few clicks. I would like to think that this is not intentional.
In the overwhelming majority of cases, such automatic recommendation will be harmless and will help consumers to find products that might interest them. However, in this instance, a usually harmless algorithm is functioning to provide people with material that they may use to end their own lives. This risk is not just theoretical. Amazon is recommending products that there have been concerted public health efforts to address in this country and which are known to have caused deaths. So as not to make them better known, I will not name them.
It is particularly important that Amazon ceases to highlight novel suicide methods, as its recommendation algorithm currently does by recommending products to users. There is clear evidence that, when a particular suicide method becomes better known, the effect is not simply that suicidal people switch from one intended method to the novel one but that suicide occurs in people who would not otherwise have taken their own lives. This probing amendment is intended to draw the Government’s attention to this concerning issue. I have spoken about Amazon today given its position in the market and its known bad practice in this area, but the principle of course goes beyond Amazon. New retailers may well emerge in the future and a principle should be established that this type of behaviour is not acceptable.
While I suspect that my noble friend the Minister is going to tell me that the Bill is not the right place for this amendment, I hope that he will agree that a crackdown on these harmful algorithmic recommendations to protect consumers—it was the word “consumers” that meant that it was not suitable for the Online Safety Bill—is needed, in the spirit of consumer protection sought in the Bill. I hope that, at the very least, he will agree to meet me to discuss this further and to help me to raise it with the relevant department, if it is not his. I beg to move Amendment 110.
Lord Lucas (Con)
My Lords, I have one amendment in this group, Amendment 110A, which will be echoed in subsequent groups as part of a general concern about making sure that trading standards are an effective body in the UK and are able to do what they are supposed to do to look after consumers.
As the Minister will know, because we were part of the same conversation, the CMA is concerned that trading standards may have been reduced to the point where they are not as effective as they ought to be. Looking at some of the local cuts—in Enfield, for instance, four officers have been cut down to one—and listening to various people involved in trading standards, there is a general concern that, as they are set up and funded at the moment, they are not able to perform the role that they should be. Given the importance that enforcers have in the structure that the Government are putting together, I am asking in this amendment that the Government review that effectiveness, take a serious look at the structures that they have created and their capability of performing as they would wish under the Bill and report within a reasonable period.
Lord Clement-Jones (LD)
My Lords, I entirely support what the noble Baroness, Lady Morgan, had to say in her probing amendment. It takes us back to the Online Safety Bill debate. The final question that she asked is crucial: if not here, where? We must have a means of being able to prevent the sale of these products. She has highlighted it and I hope that the Minister has a satisfactory reply, so that, in short order, we can make sure that these products are not for sale in these online marketplaces.
I also entirely support the amendment tabled by the noble Lord, Lord Lucas. It will become clearer and clearer as we move through the groups that adequate resources are required for trading standards. We impose a large number of duties on them, yet we appear not to give them the resources. In fact, their resources have dwindled over the years, as I know that the noble Earl, Lord Lindsay, and my noble friend Lady Bakewell would have outlined if they had been present. In respect of their amendments, which I will come on to later, I am the understudy’s understudy, because the noble Earl, Lord Lindsay, cannot be here today, I gather, nor can my noble friend Lady Bakewell. It falls to me to make a fist of talking to Amendments 112 all the way through to 127, which I will attempt. The noble Lord, Lord Bassam, will be making an even better attempt in the name of the noble Baroness, Lady Crawley, as I understand. Hopefully, the Minister will take on board what we have to say when the time comes.
Very briefly, I want to speak to Amendments 111 and 122, which relate to increasing the scope of the monetary penalties under the Bill. Amendment 111 applies this to Clause 157 for court enforcement orders when the public designated enforcer, such as the CMA, considers that a person is engaged or is likely to engage in a commercial practice that constitutes a relevant infringement and the court makes such an enforcement order on the public designated enforcer’s application. Amendment 222 applies this to CMA final infringement notices under Clause 181, for when the CMA imposes an infringement notice after an investigation into suspected infringements.
Current drafting limits the penalties to
“£300,000 or, if higher, 10% of the total value of the turnover (if any) of the respondent”.
However, a respondent may have made a huge profit as a result of infringements. Fines of a mere £300,000 are unlikely to incentivise good behaviour. In circumstances where 10% of the total value of the turnover is higher, our legal advice is that the UK would typically follow current EU practice, unless something in UK legislation specifically allowed it not to do so, such as we propose in these amendments. In the EU, the fine has to relate to the turnover of the activity in issue and its duration, which, in practice, makes it a much smaller number. To get to group worldwide turnover requires evidence of head office involvement. It should be made clear that to calculate the penalty amount the CMA and the court are able to take into account the profit made by the respondent.
Penalties are supposed to provide an incentive not to break the law, which raises the real question: why are fines related to turnover at all? To ensure good behaviour, they should strip the lawbreaker of the profits gained from lawbreaking. Where a platform can harm millions and only a few take it to task if it pays off the fee, breaking the law pays back handsomely. Authorities could be given the power to directly award exemplary damages of this type in these circumstances. In practice, fines are a fraction of turnover and profits. The largest fine to date was the €4.3 billion imposed on Google in respect of its Android device restriction, which is a long way ahead of other recent fines, but Google makes something of the order of $70 billion a quarter in turnover.
This amendment would also focus on the abusive practice, not the abuse only in relation to effects in one market. For example, Google changed its algorithm in 2007 to promote its own products at the top of its search results. It does so for news, maps, images, shopping and things such as flight booking. That pushes more relevant and better businesses down the rankings so that they get less business and competition is distorted. The practice is governed by an algorithm called universal search. The EU Commission had the resource only to investigate shopping; the fine was €204 billion. Google carries on discriminating in all areas but shopping. A fine could and should be calculated in relation to the abusive practice, of which shopping is an example; otherwise, breaking the law pays and behaviour does not change. Seeing the fine in relation to the profit gained from the practice would be fair. It would deprive the wrongdoer of the gains from breaking the law and is likely to change behaviour. An account of profits could easily be done.
I turn to Amendments 112 to 120 in the names of the noble Earl, Lord Lindsay, my noble friend Lady Bakewell and the noble Baroness, Lady Crawley. As I said, unfortunately none of those proposers is able to be present today, but all their amendments relate to widening the scope of how appropriate court action can take place and they all come under the banner of consumer protection and enforcement, especially for a level playing field to operate in the current marketplace.
Amendments 112, 113 and 114 are about consumer protection orders and undertakings under Clause 159 and cover applications to the appropriate court for an online interface order or an interim online interface order. Clause 159 extends the court’s online interface powers to the enactments, obligations and rules of law categorised as domestic infringements and it is to be welcomed. The Explanatory Notes to the Bill give examples of where online interface orders could be useful, especially in the area of underage sales products. This has been thrown into sharp relief by the Government’s proposals on banning the selling of vapes to underage children and young people. In relation to weights and measures, it is possible that, in order to avoid local inspection systems in the UK, an online supply of short-weight goods would need urgent follow-up with an application for an online interface order against the third-party overseas website where rogue traders are mis-selling to UK consumers.
Lord Bassam of Brighton (Lab)
My Lords, I was initially going to say that this is a disparate group of amendments but, as I have heard the arguments adduced, I have realised that it has more coherence to it.
The Committee should pass a vote of thanks to the noble Baroness, Lady Morgan, for tabling her amendment. This is an incredibly sensitive issue and one that in spirit we completely support—why wouldn’t you? If I were in the noble Baroness’s position, having dealt with cases of the sort that she has, I, too, would probably be mounting a campaign on this. We should be grateful to the Mental Health Foundation for the support that it has given. It cannot be right that usually harmless algorithms are used for another purpose like this and it would be helpful if we could get some clarity to the law.
This issue raises highly sensitive issues about online purchases. It is hard to envisage that any commercial undertaking, whether online or trading on our high streets, would deliberately market a product knowing that it was likely to be used for acts of self-harm and far worse. I will listen carefully to what the Minister has to say on this. If there is something that can usefully be done in legislation and there is an opportunity to do it here, we should take that opportunity.
I turn to the amendment tabled by the noble Lord, Lord Lucas, which initially I thought put the cart before the horse, but I do not think so any more. It is a neat amendment that is usefully placed. The noble Lord is looking at how the effectiveness of trading standards is measured and looking at their resource and support.
About 20 or 30 years ago, I was a trading standards national officer. I was not a trading standards officer, but I used to lobby government for resources on behalf of trading standards, which always used to say they did not have enough resource. The answer from the Government at the time was pretty much the same as I am expecting the answer to be this afternoon: that the Government are resourcing trading standards well and that they do a very good job. However, there is a good case for reviewing their effectiveness, particularly in the light of the other amendments in this group.
I will come back to Amendment 111 in a moment, but Amendments 112 to 120 relate very neatly to the scope and jurisdiction of weights and measures—ie, trading standards. They would significantly broaden the responsibilities of trading standards officers, who presumably would take on investigatory and enforcement responsibilities on a shared basis with the CMA. We have sympathy with these amendments because there is a strong case for local enforcement. I understand that people living in a locality might want to go to their local authority trading standards officers for advice, support and encouragement in seeking enforcement against rogue online traders. If we embark on this route there will need to be protocols in place so that duplication does not occur and so that there is good advice and information from officers locally working in tandem with CMA officials, and of course there would be a question of resource and support for local trading standards officers. Ministers and the Government may think that this is a valuable route, but the relationship between central and local enforcement needs to be explored. These amendments valuably focus light on that, because people in any community anywhere in the country will want to know how they can access their rights as consumers dealing as much online as in the high street and offline. We have a lot of sympathy for the amendments in the name of my noble friend Lady Crawley, the noble Earl, Lord Lindsay, and the noble Baroness, Lady Bakewell.
I will go back to Amendment 111. As the noble Lord, Lord Clement-Jones, argued, it is really about the detail of the enforcement of penalties and their range and scope. In general terms, we support the notion that penalties should take account of the profitability of the company which is in breach of enforcement orders—breaking the law. Again, it will be interesting to hear the Minister set out the Government’s policy in this field and explain to us how it is going to work. I 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)
My Lords, I am extremely grateful to noble Lords for their amendments in this group and for their valuable contributions on these important issues. I will start by discussing Amendment 110. moved by my noble friend Lady Morgan, whose continued leadership on this very serious and hugely important topic is commendable. Amendment 110 would make the marketing of products intended to be used to take one’s own life a specified prohibition, which would therefore be enforceable under Part 3. Like everyone who spoke, I—and the Government—recognise the tragic consequences of suicide and how so many lives and families have been devastated by it. The Government do not underestimate the gravity of this issue, and that is reflected by the measures already in place around suicide prevention and, indeed, the steps we have taken to clamp down on the advertising and supply of pro-suicide materials.
First, we have strong, well-defined laws in relation to complicity in another person’s suicide, such as the Suicide Act 1961. Building on that, where content on the internet reaches the threshold for a criminal offence under the Suicide Act 1961, the Online Safety Act will place new duties on all in-scope user-to-user services proactively to tackle it.
Under the Online Safety Act, search services have targeted duties that focus on minimising the presentation of illegal search results to users, and protecting children from such search content. These duties will play a key role in reducing traffic directed to websites with content that encourages or assists suicide, reducing the likelihood of users encountering this content. The Act also places duties on providers to protect children from harmful content that encourages, promotes or provides instructions for suicide but that does not meet the criminal threshold. Separately, the independent Advertising Standards Authority bans adverts that may cause harm or serious or widespread offence, including adverts containing references to suicide.
These approaches are supported by the Government’s suicide prevention strategy for England. As part of that, the Department of Health and Social Care leads a cross-government and cross-sector group established to rapidly identify and proactively tackle emerging methods of suicide. Through this group’s close working, there are currently over 30 live actions and interventions to reduce public access to, and limit awareness of, emerging methods, with further commitments made in the strategy. These include seeking to tackle at source the suppliers of harmful substances for the purposes of suicide, and the development of a new national process that both captures intelligence and subsequently issues alerts to relevant parts of the health, care, education and justice systems on any emerging methods or risks to be aware of.
Amendment 110 is set against this background. Its laudable intent does not fit with the purpose of Clause 149 and, by extension, Part 3. This amendment would use Part 3, which is merely an enforcement vehicle for existing duties, prohibitions or restrictions, to define and impose on traders a substantive legal prohibition. Once again, I am extremely grateful for my noble friend’s amendment. I applaud her passionate sponsorship of this vital issue and would be delighted to meet, as requested. However, at this moment, I hope she feels reassured enough by existing measures to withdraw the amendment.
I am grateful to my noble friend Lord Lucas for Amendment 110A. The Government fully agree with him that, as with any statute, Part 3 needs to be kept under review to ensure that it achieves its intended real-world impacts. However, it is important to note that the court-based consumer enforcement regime under Chapter 3 of Part 3 is not new. In general, it updates and simplifies the current court-based enforcement regime in Part 8 of the Enterprise Act 2002. There are therefore existing mechanisms for reviewing the effectiveness of consumer enforcement, which we believe to be sufficient.
First, public designated enforcers already review and report on the enforcement interventions they undertake. For example, since 2019, the Association of Chief Trading Standards Officers has produced annual impacts and outcomes reports that show the impact of local authority trading standards services in England and Wales. Both the Chartered Trading Standards Institute and the Society of Chief Officers of Trading Standards in Scotland conduct workforce surveys and publish reports that cover issues such as staffing and enforcement actions. Regulators such as the CMA, the Financial Conduct Authority and Ofcom provide transparent statements about their enforcement work and publish annual reports that evaluate their past year’s performance. These regulators are accountable to Parliament and subject to scrutiny by parliamentary Select Committees.
This ongoing reporting is complemented by dialogue with government about enforcement priorities and capability. For example, the CMA, which has a central co-ordination role in the network of public designated enforcers, already has a statutory role to provide advice to government on matters relating to its functions, including consumer enforcement. The Government may therefore request the CMA to provide information or advice on any gaps in enforcers’ powers or capabilities. The Government have committed to respond publicly to such advice within 90 days, clearly indicating the steps we will take in response.
Lord Clement-Jones (LD)
Before the Minister moves on, would he be so kind as to point out which bit of the Long Title prevents the amendment of the noble Baroness, Lady Morgan, from being incorporated into the Bill? This is an important issue and he gave us no real comfort about what other powers might be available to remedy the kind of situation that the noble Baroness talked about. Secondly—I sound like a taxi driver—Amendment 110A talks about resources for trading standards but, as the Minister well knows, local authorities are in dire straits. It is not just a question of saying that their funding is not ring-fenced; it is also about the Government making sure that trading standards are adequately resourced for consumer protection. How are they going to ensure that?
Lord Offord of Garvel (Con)
I thank the noble Lord for his intervention. As I said on my noble friend Lady Morgan’s Amendment 110, we are dealing with a serious issue. I took great pains to run through the various layers of protection currently on the statute book and outlined why the Government believe that this is covered elsewhere and is not within the scope of the Bill. I have also said that I will meet my noble friend and look at this in more detail to see whether we need to look further at the Long Title, to which the noble Lord referred.
Lord Bassam of Brighton (Lab)
Is the noble Lord saying that it is not outside the scope of the Bill?
Lord Offord of Garvel (Con)
We are saying that there is extensive protection built up around this sensitive issue and that there should not be further legislation made within the scope of the Bill, but that, if we need to look at it further, we can do so before Report.
Every local authority always wants more money. It is a feature of UK public life and it is up to local authorities to decide how to spend their money appropriately. As we all know, some are better run than others. Funding is not ring-fenced and it is up to local authorities to make sure that standards are maintained in their area.
Amendments 111 and 122, tabled by the noble Lord, Lord Clement-Jones, pertain to profits from infringements and the calculation of penalties. They would ensure that profits made from engaging in an infringing commercial practice can be expressly reflected in the calculation of a monetary penalty imposed through an enforcement order made by the court or a final infringement notice given by the CMA. I thank the noble Lord for his amendments and I absolutely agree with the intent behind them. In fact, work is under way to produce a comprehensive set of regulations, which could be made under Clause 203, to set out the amounts that are to be treated as comprising a person’s turnover when calculating the maximum penalty that can be levied.
Our intention is that any profits accruing from the relevant infringement will be captured by this methodology, but we consider that this maximum penalty calculation will be a technical exercise that needs to be supported by robust and detailed methodology, which is therefore better suited to secondary legislation. I hope that the noble Lord is sufficiently reassured that this important issue will be addressed.
Lord Clement-Jones (LD)
My Lords, I am sorry to keep interrupting the Minister, but this is quite an important factor. Is he saying that secondary legislation can expand the way that the primary legislation is interpreted? I was talking in my amendment about trying to get hold of the profits of abuse, so that the penalties should include a profit-based penalty, but the Minister seems to be saying, “Yes, we can do that with secondary legislation”. Is that really what he is saying?
Lord Offord of Garvel (Con)
Yes, that is exactly what I am saying. In order to get a profit, one has to start with turnover. A detailed mechanism is required to look at how these P&Ls work and, rather than being in the Bill, this needs to be examined as a technical exercise. There needs to be a methodology put together for it; we will therefore do that in secondary legislation.
Amendments 112 to 120 relate to online content take-down powers and were tabled by my noble friend Lord Lindsay but presented by the noble Lord, Lord Clement-Jones. These amendments would give trading standards departments in Great Britain the power to apply to a court for online interface orders and interim online interface orders to modify, restrict or take down illegal content displayed online.
We welcome the spirit of my noble friend’s amendments. Indeed, the Government have published their consultation response on proposals to empower additional enforcers, besides the CMA, to apply to a court for online interface orders. We have committed to give this additional power to public designated enforcers. These enforcers include, but go beyond, trading standards departments—for example, sector regulators such as Ofcom, which already have consumer enforcement powers under Part 3 of the Bill. We would be pleased to discuss with noble Lords how best to enact these important changes to ensure that the use of this power is governed by adequate procedures.
Lord Bassam of Brighton (Lab)
Is it therefore envisaged that the Government will give extra support to local trading standards officers, so that they will have these take-down powers? That seems to be the implication of what the Minister is saying—that it is not just Ofcom or the CMA but that there will be local enforcement as well, so there will be that combination.
Lord Clement-Jones (LD)
Just to add to that question, is the Minister saying, “It’s going to happen but we just need to get the procedures right and add them”? Is that really all we are waiting for?
Lord Offord of Garvel (Con)
I thank the noble Lords. That is indeed the spirit of what we are saying. We are, in the Bill, giving a power to the courts that will contain the online interface orders. The Government have published a consultation to enable additional enforcers, including the CMA, to apply to a court for these online orders. We are saying that, within the current architecture, we believe that we have the power to do what is required, but that we can make changes after the fact to ensure that the power is governed by adequate procedures.
Lord Clement-Jones (LD)
My Lords, that is slightly eliding the situation. The Minister was talking about the CMA but, earlier, I understood him to be talking about trading standards. Are trading standards going to get those powers and is it just a question of ensuring that we get the procedures sorted out?
Lord Offord of Garvel (Con)
I thank the noble Lord. There is obviously a little confusion about this, so we will need to set it out, which we will do between Committee and Report, to ensure that we know precisely the order of events here.
Lord Bassam of Brighton (Lab)
That is important, because the Minister was talking about the actions in the court while the noble Lord, Lord Clement-Jones, and I were concerned not just with that but with where the enforcement law is going to come from. In the Minister’s letter to us, it would be most helpful if he could set out who will have those enforcement powers and how the mechanisms will work, given the interface between the different enforcing agencies. That would give consumers a degree of comfort.
Lord Offord of Garvel (Con)
I am happy to do that. We will look at that in a bit more detail and write accordingly.
We come to some minor technical government amendments, Amendments 121, 123, 124 and 128, which in the main are minor and consequential. They are intended to provide clarity on how the relevant provisions function and on continuity between the current consumer enforcement regime and the reformed regime under Part 3. I hope these government amendments will be supported. I thank noble Lords once again for their amendments and for their considered remarks on this group.
Lord Clement-Jones (LD)
My Lords, before the Minister sits down, I wonder if he will take another look at Clause 157(5) regarding the amount of monetary penalty that can be imposed. The limitations seem to be there in black and white, yet the Minister is saying that secondary legislation can change that subsection in due course. If he cannot give me an answer now, would he be able to write to all of us? This is an important point.
Baroness Morgan of Cotes (Con)
My Lords, I am grateful to my noble friend the Minister for his response, which I will come back to in a moment.
I thank the noble Lords, Lord Clement-Jones and Lord Bassam, for their support for my amendment. It is small but, I hope, would be highly effective if it were accepted. The noble Lord, Lord Clement-Jones, and I spent a long time debating the Online Safety Act last year. It is clear that online marketplaces are not covered. My noble friend the Minister mentioned user-to-user sites and search engines. They are obviously online marketplaces and highly significant businesses—I have mentioned Amazon but there are others—and I do not think the Department for Business and Trade should be agnostic about harmful materials sold on these sites.
I thank the noble Lords who have spoken on Amendment 110 for the sensitivity that they have shown on this difficult topic. I am grateful to my noble friend for the offer of a meeting to look at the scope of the Bill before Report. I will of course withdraw Amendment 110 at this stage, but I look forward to that meeting and further discussions on this important topic.
Lord Offord of Garvel
Member's explanatory statement
This amendment would clarify that references in this Clause 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 this Clause 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 this Clause to maximum amounts of daily penalties are maximums per day, not in total.
Lord Lucas
“4A In paragraph 28(1), after “goods” insert “or articles””Member's explanatory statement
This amendment would seek to allow evidential articles to be taken at the same time as goods under paragraph 28 of Schedule 5 to the Consumer Rights Act 2015.
Lord Lucas (Con)
My Lords, I beg to move Amendment 124A and to speak to Amendments 124B and 124C. These are all small amendments aimed at making trading standards a bit more effective in practice. Amendment 124A would allow trading standards to seize, as well as the suspected counterfeit goods, articles—for instance, clothing used by the trader that puts them at the scene of the crime. At the moment, trading standards do not have the right to seize such articles of evidential value and they would very much like to have it, since it would make it easier to convict rogues.
As for Amendment 124B, at the moment, trading standards are not allowed to open a vehicle if that is where the goods are being stored, because it does not fall within the definition currently used in the Bill—or at least they believe that is the case. They would like, should all the goods concerned be in a van, to be able to open the van.
As for Amendment 124C, sometimes these can be big crimes of hundreds of thousands of pounds. Level 3 just does not meet the case; it is just a bit off the profit. They would like to see the judge able to set the level of the fine to accord to the crime—Gilbert and Sullivan would have approved.
Lord Clement-Jones (LD)
My Lords, once again, with the indulgence of the Committee, I will speak on behalf of my noble friend Lady Bakewell to Amendments 125, 126 and 127.
Before doing so, I say that I support the amendments of the noble Lord, Lord Lucas, which strike me as extremely practical. It must be extremely frustrating when faced with some of the restrictions. This point about vehicles seems to me a particular irritant for trading standards officers—a vehicle being defined as premises. What era are we living in?
We need to bring the powers of trading standards officers up to the 21st century, which is very much the spirit in which Amendments 125, 126 and 127 have been tabled by the noble Earl, Lord Lindsay, my noble friend Lady Bakewell and the noble Baroness, Lady Crawley. Amendment 125 would delete paragraph 17 of Schedule 5 to the Consumer Rights Act, which at present requires trading standards officers to exercise physical powers of entry to premises—this is in the digital age—before accessing information and the seizing of documents that may be needed in criminal proceedings. Accepting this amendment would be an opportunity to finally update the powers of trading standards in this respect. It would have the effect of changing their information-gathering powers to enable documents requested in writing without the need for physical entry to be used in criminal proceedings. This means also relieving the undue burdens placed on businesses and trading standards officers.
For legitimate businesses there is presently the burden of having to interrupt their normal business to provide the requested documents there and then, whereas, under what is proposed in this amendment, if the request is made in writing rather than physically, they will have more time to source the required documents and even seek legal advice should they wish to. For the small band of trading standards officers, the requirement to exercise physical powers of entry across the country to seize documents they may need to use in criminal proceedings is not cost-effective for their cash-strapped local authorities. If a local authority in, say, my noble friend’s Somerset had to deal with a case in Cumbria, it would simply not be viable for this to happen. The criminal activity could go unpunished and the public and consumer would still be at risk from rogue-trader activity.
In the impact assessment for the Bill, it is accepted that:
“Consumer rights must keep pace with market innovations, so that consumers remain confident engaging with businesses offering new products and services”.
That is a good statement, but for this sort of consumer confidence to become more robust, the enforcement powers of trading standards need to be seriously updated and not inhibited by the present inflexibility.
Amendments 126 and 127 propose to substitute the words “England or Wales” and “Scotland” for the words “United Kingdom” in paragraph 44(3) and 44(2) of Schedule 5 to the Consumer Rights Act. The effect of these amendments would be to add a new paragraph to Schedule 16 to the Bill, which would give new powers to trading standards officers to operate across UK national borders where necessary. Cross-border activities should be included in the Bill; current legislation does not make it clear that trading standards officers in England and Wales can exercise their powers across the border with Scotland, or vice versa, even though consumer protection is a reserved power. In fact, the current legislation implies that this cross-border enforcement activity is not permitted, and we are told that, currently, trading standards officers err on the side of caution. Who can blame them in the circumstances? For the success of these new powers and the Bill to take root, trading standards officers should be able to pursue and enforce across the whole of the United Kingdom.
Lord Leong (Lab)
My Lords, I thank all noble Lords who have spoken. We are grateful to the noble Lord, Lord Lucas, the noble Earl, Lord Lindsay, the noble Baroness, Lady Bakewell, and my noble friend Lady Crawley for bringing forward this group of amendments relating to Schedule 16, which is introduced by Chapter 6, Clause 207. They seek to amend Schedule 5 to the Consumer Rights Act 2015.
Amendments 124A and 124B appear to add clarity without altering the intention of the Bill as written. Having said that, we would be interested to hear from the Minister whether there is any reason these changes should not be enacted.
Amendment 124C would make a more substantial change to financial penalties. The current level 3 is no deterrent or obstruction. A mere £1,000 is just petty cash for most businesses, whereas level 5, which is an unlimited fine, would serve as a deterrent and perhaps support some co-operation in investigation. We would like to hear from the Minister whether there has been any assessment of the suitability of obstruction being a level 3 fine since the Consumer Rights Act came into law in 2015. We also seek clarification on whether this is the right place to make such a change, given that its impact would be much wider.
Amendments 125, 126 and 127, tabled by the noble Earl, Lord Lindsay, with the support of my noble friend Lady Crawley and the noble Baroness, Lady Bakewell, make a lot of sense in pursuing investigations in all parts of the United Kingdom, not just England and Wales. That was succinctly explained by the noble Lord, Lord Clement-Jones, so I shall not repeat the point. This would obviously be a matter for the Scottish Government. If the Government agree on the merits, is this something they have discussed with their Scottish counterparts?
The amendments in this group are sensible and designed to be helpful. They should be supported. We look forward to the Minister’s response.
Lord Offord of Garvel (Con)
My Lords, I thank noble Lords for their amendments and their considered contributions regarding Schedule 5 to the Consumer Rights Act 2015, which details the investigatory powers available to consumer law enforcers. As many noble Lords have noted, building a case against rogue traders and rectifying bad business practices not only starts with but depends on enforcers having the right powers to investigate suspected breaches. This is important for all enforcers, but especially so for local authority trading standards departments that typically exercise the full range of Schedule 5 powers. The Government are committed to ensuring that trading standards and other consumer enforcers have the requisite powers to carry out their important work, so we value the perspectives shared by noble Lords today.
Amendment 124A, moved by my noble friend Lord Lucas, would allow “articles” that fall outside the definition of “goods” to be seized and detained by enforcers when exercising their seizure power under paragraph 28 of Schedule 5. I thank my noble friend for this amendment and hasten to reassure him that its intent is, in our view, comprehensively achieved by the statute as it stands. The definition of “goods” under Schedule 5 already encompasses any tangible moveable items. It is not restricted to the goods sold by the trader to consumers. Further, other provisions in Schedule 5, such as the power under paragraph 29 to seize documents where an enforcer reasonably suspects they may be required as evidence in proceedings, can be relied on should there be any doubt as to whether such items are seizable. For these reasons, I hope my noble friend will agree to withdraw his amendment.
On Amendment 124B, on breaking open a vehicle, I again thank my noble friend Lord Lucas for tabling it. This relates to the power under paragraph 31 that allows enforcers either to require a person to break open a container or to open a container themselves in order to seize and detain goods, among other things. It is indeed important that investigators are not frustrated by arguments about what constitutes a “container” and therefore the current definition is broad and means anything in which goods may be stored. Therefore, the definition is capable of including a vehicle that is storing, or may be being used to store, goods which may disclose a breach of legislation.
However, enforcers must consider what exercise of investigatory powers is appropriate in the circumstances. For example, an enforcer may inspect products under paragraph 25 of Schedule 5 for the purposes of checking the compliance of those products with relevant legislation. If the product in question is a vehicle, an enforcer cannot break open the vehicle as that is allowed only for certain purposes, which do not include product inspection. Therefore, I hope my noble friend is reassured that the statute is already sufficiently permissive in the appropriate circumstances and will not press his amendment.
Lord Clement-Jones (LD)
My Lords, the Minister seems to have said two directly conflicting things—that you cannot do something, but that he hopes that his noble friend is convinced that the powers are wide enough. Did we mishear him?
Lord Offord of Garvel (Con)
I hope that the noble Lord did not misunderstand me. I think we said that this is already covered in legislation. The definition is capable of including a vehicle that is or may be being used to store goods that may disclose a breach of legislation. We are being clear that the definition of “goods” is sufficiently broad to include goods or vehicles. I was coming on to say that an enforcer may inspect products under paragraph 25 of Schedule 5 for the purposes of checking the compliance of those products with relevant legislation, so we are tying this back to the relevant legislation. We believe that the definitions are already sufficiently wide and therefore there is no need to further legislate.
Lord Fox (LD)
That is beginning to be helpful, but the Minister will be aware that different local authorities are receiving different legal advice. Some are comfortable with the definition that he has given and others are uncomfortable with it. At some point, possibly during Report, a Pepper v Hart definition that solidly allows legal officers in local authorities to make the decision that a car is a container in particular circumstances would, at the very least, be helpful. Perhaps adopting the amendment of the noble Lord, Lord Lucas, would be even more so.
Lord Offord of Garvel (Con)
I was not aware that there are different definitions in different local authorities. That seems a valid point to address, so we will look at it before Report.
Amendment 124C is on fines for obstructing enforcement officers, for which I again thank my noble friend Lord Lucas. This addresses the question of the appropriate level of fines for the offence of obstructing an enforcement officer, under paragraph 36 of Schedule 5. Currently, the fine must not exceed level 3 on the standard scale, which is £1,000. Amendment 124C would increase that to level 5—an unlimited amount. I fully agree with my noble friend that any sort of obstruction, whether intentionally failing to comply with instructions or knowingly giving misleading information, is a serious matter that must be subject to criminal enforcement.
The current level of the fines was subject to previous government consultation ahead of the introduction of the Consumer Rights Act 2015. It was set to reflect the deterrent purpose of the offence, proportionately and consistently with comparable criminal offences. For example, the penalty for obstructing a police officer or an officer of His Majesty’s Revenue and Customs is set at a maximum of £1,000, which is level 3. We consider that the current level of these fines continues to be proportionate to the offence, consistent with comparable regimes. I once again thank my noble friend for his consideration of this issue and hope that my explanation persuades him not to press his amendment.
I thank my noble friend Lord Lindsay and the noble Baronesses, Lady Bakewell and Lady Crawley, for tabling Amendment 125, which was presented by the noble Lord, Lord Clement-Jones. It would end the prohibition on enforcers to use information provided by a person in response to a written information notice in criminal proceedings against that person. Prohibitions of this sort apply throughout the UK legal system and serve to help protect a person from self-incrimination when enforcement authorities are given broad powers to send information notices to compel the production of information.
The Government have listened carefully to trading standards departments, which consider that removing this prohibition would enable them to gather evidence needed for consumer prosecutions more easily. We have been told that using other information-gathering powers comes with operational challenges, such as having to resource travel outside the local area to carry out investigations. We are keen to work with enforcers to address these challenges. However, this prohibition is an important protection. It safeguards a right that is recognised under English common law and the Human Rights Act.
In summary, Amendment 125 stems from an operational issue that does not justify rolling back well-established legal protections. I therefore hope the noble Lord will feel able not to move this amendment.
Lord Clement-Jones (LD)
Are the Government really saying, more or less, that they do not recognise that the world has gone digital? Will the Minister spell out the principles of common law that prohibit them from allowing trading standards officers to do what we set out in the amendments?
Lord Offord of Garvel (Con)
This says that the Government have the overarching legislative position, but the trading standards departments operate locally, and it is important that central government listens to local government. That consultation listened carefully to the trading standards departments and has come back saying that they believe that removing this prohibition would enable them to gather evidence better and more easily for consumer protection. We follow the local authorities in their requirements.
I turn to the use of investigatory powers across the UK. Amendments 126 and 127, again tabled by my noble friend Lord Lindsay and presented by the noble Lord, Lord Clement-Jones, would permit any trading standards department based anywhere in Great Britain to carry out investigations anywhere in the UK. Current law already allows English and Welsh trading standards departments to use their investigatory powers in parts of England and Wales outside that department’s local area. The same is true for trading standards departments in Scotland, which can already use their investigatory powers anywhere in Scotland.
Extending the powers to investigate across the UK fails to recognise that Scotland has its own legal jurisdiction separate from the single legal jurisdiction of England and Wales. I draw noble Lords’ attention to the fact that consumer protection is a transferred matter in Northern Ireland, where trading standards are a central government function, in contrast to Great Britain’s local authority model. These differences across the UK’s nations provide examples that I hope will persuade the noble Lord not to move Amendments 126 and 127.
Lord Bassam of Brighton (Lab)
I want to tempt the noble Lord to give us a bit more explanation on this. If I understood what he said rightly, it is quite in order for trading standards officers to begin an investigation in their local authority areas and, because it is clearly a broader issue and a company they are looking at operates nationally, it is okay for them to go after it elsewhere. But, when an English trading standards authority wishes to pursue someone in Scotland, is the Minister really saying that, because the Scottish law is different and so on, they could not mount an investigation that had to take place partly in Scotland because that is where the company is operating or trading from? That seems a bit of a gap in provision if it is the case and, if it is not, I would have thought that there needs to be some form of understanding and set of protocols between and across the authorities operating on each side of the border. I am thinking particularly of border authorities in Northumbria and Cumbria working with trading standards authorities in the lowlands. This must be an issue there quite regularly.
Lord Offord of Garvel (Con)
What we are referring to here is that, within these legal jurisdictions, there are differences, not least of all the way prosecutions are conducted in England and Wales versus Scotland and Northern Ireland. Each of those jurisdictions can operate holistically within these jurisdictions. I will write to clarify, but I am pretty sure that the UK remains a united kingdom and, if there is a requirement for someone in England to speak to someone in Scotland, that can still happen. I will find out exactly how it does.
Lord Bassam of Brighton (Lab)
The noble Lord is such a strong unionist that I would be surprised if that were not the case.
Lord Fox (LD)
When the Minister writes that letter, perhaps he could extend it to include the United Kingdom Internal Market Act because that seems not to have been taken into consideration. Some of us here today—at least two of us—participated in the lengthy discussions about differing standards across borders and how they might be enforced, and this seems to fall well into that territory. What consideration has been made of that Act in drawing up the terms of the Bill? It would be helpful if the letter set out the various positions within the internal market Act and how they have been represented in the Bill.
Lord Offord of Garvel (Con)
I thank the noble Lord. I share his interest in this matter, and that was exactly what I was intending to examine. The United Kingdom Internal Market Act is a fundamental new piece of architecture that, on us exiting the EU, allows us to trade as one single nation, and I will always be promoting that.
Lord Lucas (Con)
My Lords, I am grateful to my noble friend for his answers to my amendments, particularly for his offer of a continuing dialogue between Committee and Report. It seems clear to me that there is some different understanding out there regarding the ambit of the powers. I am content with the answers that he has given but would like to make sure that not only is that understood but that that understanding can have effect without something being added to the Bill. However, that is a conversation that we can conveniently have not now, so I beg leave to withdraw the amendment.
Lord Offord of Garvel
“Estate Agents Act 1979
A1 In section 3 of the Estate Agents Act 1979 (orders prohibiting unfit persons from doing estate agency work), in subsection (1)—(a) in paragraph (ba) for “section 217, 218 or 219 of the Enterprise Act 2002” substitute “section 155, 158 or 162 of the Digital Markets, Competition and Consumers Act 2024”; (b) in paragraph (bb) for “section 217 of the Enterprise Act 2002” substitute “section 155 of the Digital Markets, Competition and Consumers Act 2024”.”Member's explanatory statement
This amendment makes a consequential amendment to the Estate Agents Act 1979 as a result of the repeal by the Bill of Part 8 of the Enterprise Act 2002.
Lord Clement-Jones
Member’s explanatory statement
This amendment seeks to prevent confusion amongst consumers about packaging that is designed to mimic a well-known brand.
Lord Clement-Jones (LD)
My Lords, in moving Amendment 130 I will speak also to Amendment 135, which is another amendment in the names of the noble Earl, Lord Lindsay, my noble friend Lady Bakewell and the noble Baroness, Lady Crawley. This is an opportunity to remedy the long-standing, unaddressed market practice of misleadingly similar packaging of consumer products—that is, packaging which mimics that of familiar branded products. Amendment 130 would introduce a strengthened brand practice in Schedule 19.
Misleadingly similar parasitic packaging, otherwise known as copycats or lookalikes, adopts the distinctive features of familiar branded products to dupe shoppers into believing that it has the same qualities, reputation and/or origin as the brand when it does not. Shoppers buy the copy based on these mistaken assumptions and can pay more than they would were the product distinctively packaged. Such packaging is extremely prevalent in the grocery market. It inflates consumer prices and prevent shoppers making informed, accurate decisions.
The evidence I have seen is convincing that packaging mimicry misleads consumers in substantial numbers and distorts buying decisions. The similar packaging plays on shoppers, exploiting the fact that they self-select products from the shelf. Stores stock so many products that decision-making must be, and is, fast—typically around two seconds per choice. Labels are not studied closely. Colour and shape are more powerful stimuli than words and prompt shoppers to buy a product that they did not intend to buy, to pay more and to believe that products have similarities. I have a whole string of assessments here from research such as a UK IPO study, neuroscience research and a 2023 study called The Psychology of Lookalikes.
In 2008, the Competition Commission considered such packaging an issue for consumer protection. During consultations and the debate on the Consumer Protection from Unfair Trading Regulations 2008, the then Government stressed that public enforcement would be effective. This has not proved to be the case. There has been only one successful enforcement action by trading standards in the past 15 years—in 2008 itself—and no enforcement by the CMA.
IP rights are insufficient. Copiers tend to design around registered IP rights, such as trademarks, designs and copyright, to avoid infringement. A passing-off action is impractical, as proving consumer confusion to a court’s satisfaction is complex, particularly when a copier argues that the use of a different product name avoids misrepresentation. The evidence that IP rights are ineffective can be seen in the persistent prevalence of such copies on the market, with two large retailers adopting it as a business strategy largely unchallenged. Affected branded businesses are unprotected, as there is a gap in IP protection. The original copied brand is no longer distinctive; it is devalued, sales are lost and costs increase. Overall, return on investment in innovation, reputation and quality is reduced. Other products in the same category may lose sales if shoppers switch to the copy, assuming leading brand quality at a lower price, potentially leading to delisting.
For the unlawful copier, sales are boosted as shoppers buy their products by mistake or trust them unduly. They can also charge higher prices; the evidence shows that this could be by as much as 10%. The ultimate solution, of course, is not for offending products to be removed from the market, just that they be repackaged distinctively. This would preserve shopper choice, strengthen competition and reduce prices. Amendment 130, as proposed, would benefit many thousands of shoppers and branded companies of all sizes, particularly SMEs, wherever in the UK they are based.
I now turn to Amendment 135 and should say that the next group contains an amendment, Amendment 137, that is also on fake reviews, so this is a bit of a foretaste of what is coming down the track in the next group. Amendment 135 would add two more practices to the list in Schedule 19 of 31 commercial practices that are in all circumstances considered unfair and bad practice. The two additions are, first, a new paragraph 32:
“Stating or otherwise creating the impression that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers”;
and, secondly, a new paragraph 33:
“Submitting, or commissioning another legal or natural person to submit, false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products”.
How often do we all look to see what people have said about a product or service or, indeed, a bed and breakfast before we commit to buying? I suspect that young people are particularly vulnerable to wanting to participate in something that has a good review and appears to be popular.
The Government propose adding fake reviews to the list of practices in the future, but there is no logical reason why they should not be included now. Adding fake reviews to this important list would make them both criminal and civil breaches, as we understand it. Trading standards see the widespread practice of giving fake reviews as clearly fraudulent in nature, and therefore it should be a criminal offence. Fake reviews appear to be particularly prevalent for health supplements, where a single course of some miracle ingredient will cure your arthritis for ever—that resonates with me. Large sums of money can be invested by those suffering constant pain in an effort to get some relief, only to find that they have wasted their money.
I understand that there is a proposal. The Smarter Regulation response was quite clear that there is considerable demand for this. That response contains a great deal of other material as well and is very useful. I think the latest version is dated 24 January this year, so it is hot off the press, essentially. There is this proposal to add fake reviews in the future via a separate statutory instrument, but why should they not be included in the Bill at this stage? The language has been proposed by the Government. This is a growing distortion of the online marketplace. It is unfair to legitimate businesses and completely deceives consumers who may rely on accurate information to validate their choices. I very much hope that the Minister will say that on Report it will be perfectly viable to include language on fake reviews in the Bill. I beg to move.
Lord Lucas (Con)
My Lords, I have Amendment 131 in this group. It is my understanding, and of course the Minister may correct me, that the investment that a student makes in their university course comes under the Bill—that the relationship is one between consumer and provider. Indeed, since this is the largest purchase that a student will make before they buy a house, it seems entirely appropriate that the sort of safeguards in this Bill should apply to university courses. If that is the case, then paragraph 29 on page 362 forbids universities marketing their courses to children, and that does not seem quite right. I would like to understand how the Government see the confluence of those two factors.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise to speak briefly on Amendment 133 in the name of the noble Baroness, Lady Jones of Whitchurch, to which the noble Baroness, Lady Kidron, and I have attached our names. I express support in passing to the attempts to restrict fake reviews, which are clearly an absolute plague online and a cause for considerable concern. I, like many other consumers, very much rely on reviews these days. I am also interested in the amendment of the noble Lord, Lord Lucas. I very much oppose the whole structure by which students are regarded as consumers. The Green Party’s position is that education is a public good, which should be provided for free, but his point raises some interesting questions, on which I would be interested in the Minister’s answers.
Amendment 133 is about so-called drip pricing. I found various government surveys producing different figures on the cost of this to consumers, ranging from £1.6 billion to £2.2 billion each year. We are all familiar with this, unsurprisingly, given that more than half of entertainment providers, transport providers and communications businesses use this as a regular practice: “Get this bargain price. Get in now. Click here: it will cost you only £10”. Mysteriously, as you go through the process, the price keeps going up and up. People fill in all the steps in the forms, fill in their names, tick to say that they have read the terms and conditions—even though they have not—and spend all that time and energy, but suddenly the price is three times what it started as. They feel as though they have spent all that time, so it is worth going hunting around again? Do they have that time?
What we are seeing is very much a change in what might have been considered service businesses; consumers are instead servicing them, with their time, energy and efforts. This is an important area, on which people need transparency. In the cost of living crisis, it is worth noting that so-called budget airlines are particular offenders. Most people think, particularly for a long-distance journey, that luggage is not an optional extra, not to mention that a family travelling should not have to pay extra for seats together. Amendment 133 is a particularly important amendment and I look forward to the Minister’s response.
Lord Bassam of Brighton (Lab)
My Lords, my noble friend has added her name to that of the noble Lord, Lord Clement-Jones, on his Amendment 130. We share his concern that online marketing should not be used to promote products or services by mimicking particular brands. In some ways, it is much easier to fool consumers online into thinking that a particular product has the same characteristics and spec as a branded product. As the noble Lord argued very well, we are all familiar with how cheaper and sometimes inferior products on the shelves are designed to mislead the purchaser. This simple amendment is worth supporting for that reason alone.
I was thinking back to an incident not that long ago, when I was misled into buying a product like Lemsip, simply because the colour of the packaging was almost identical. It was so simple and easy to take the thing off the shelf and put it into the basket but, when I got home, the product was inferior. This is about not just price but quality. This amendment is well worth our support.
Amendment 131 from the noble Lord, Lord Lucas, asks an important question. It is a niche issue for this legislation, but I am nevertheless looking forward to hearing the Minister clearly explain that universities can or cannot continue to market themselves to pupils and parents. All parents, along with their children, want to receive accurate information that is easily accessible and, more importantly, verifiable so that informed choices can be made. As the noble Lord argued, this is one of the more expensive areas of parents’ expenditure on their child’s education and it is only right that we set high standards for the content of the material that is made available to those making applications, and that it is verifiable.
I now turn to Amendments 132, 133 and 144 in the name of my noble friend Lady Jones. Amendments 132 and 144 should be taken together. They would insert into Schedule 19, which deals with commercial practices, the circumstances considered where there is an unfair reference to the marketing of a counterfeit or dangerous good and would empower enforcement officers to require the removal of relevant listings from the internet. We think that this is a fairly self-explanatory process, which should provide protection for consumers from shoddy goods. If the Minister insists that this is not the place for these amendments, perhaps he can explain how else consumers are to be protected and how else this false marketing is to be tackled.
Lord Offord of Garvel (Con)
I thank noble Lords for the amendments in this third group, concerning banned practices. I will take them not necessarily in numerical order.
I start with Amendment 132, tabled by the noble Baroness, Lady Jones of Whitchurch. It would ban in all circumstances the marketing of counterfeit and dangerous products online. Misleading claims in marketing are already offences under consumer protection law and, for unsafe products, product safety law. The Bill makes it clear that online marketplaces, which can facilitate the sale of these products, must act with professional diligence. This can include taking appropriate steps to ensure that counterfeit and dangerous products are not sold or promoted in a marketplace.
The Government recently consulted on strengthening the public understanding of those duties. Our response to that consultation committed us to undertake further work with stakeholders, including platforms, other business stakeholders and consumer groups, in order to identify the scope and content of further guidance in this area and how that work should best be communicated and set out; I would welcome the noble Baroness’s input into that work. Further, the product safety review includes proposals specifically aimed at tackling the sale of unsafe goods online. The Government will publish a response to that consultation in due course; again, I look forward to being able to share that with the noble Baroness and to discussing next steps.
Ultimately, online platforms have brought huge consumer benefits, including by vastly increasing the range of products available to consumers. The Government are committed to ensuring that platforms bear appropriate responsibility for ensuring that unsafe or counterfeit products do not reach consumers, but we seek to do so thoughtfully and in consultation with the public and industry to ensure that any new regulation does not jeopardise those consumer benefits or harm economic growth. I hope that the noble Baroness, having heard this, will feel able not to move her amendment.
Amendment 144, also in the name of the noble Baroness, Lady Jones, would give public enforcers a tailored power to require that the marketing of fake or counterfeit products was removed from the internet. The Government consultation response that I just mentioned also includes a commitment to empower additional enforcers to apply to court for interim and final online interface orders under Chapter 3 of Part 3 of the Bill. These orders facilitate the removal of online content that breaches consumer law. In that context, I assure the noble Baroness that we welcome and intend to honour the spirit of the amendment. I look forward to further discussion on this matter with noble Lords. I hope that, with this reassurance, the noble Baroness will not move Amendment -144.
I thank my noble friend Lord Lindsay for Amendment 135 and his input on this matter of fake reviews. Amendment 135 would add commercial practices related to fake reviews to the list of banned practices in Schedule 19. The Government agree that the law against fake reviews should be strengthened. Following our recent consultation on proposals to tackle fake reviews, and recognising the strong parliamentary interest in this issue, the Government have set out in their response our intention to add the relevant practices to Schedule 19 to the Bill.
It is important to get the details right. I would like to work with your Lordships to ensure that the new rules meet our shared aims of reducing the number of fake reviews that customers encounter online and being clear to businesses on what their duties are when publishing reviews. I would be delighted if noble Lords would meet me to discuss this further. I hope that what I have just set out will mean that my noble friend Lord Lindsay feels comfortable not to move his amendment.
I thank the noble Baroness, Lady Jones, for Amendment 133. It would add drip pricing to the list of banned practices in Schedule 19 to prevent traders adding mandatory fees to the price of a product during the purchasing process. Likewise, the Government agree that the law should be strengthened to protect consumers from hidden fees that can cause them to pay more than they have been led to expect. As we set out in our response to the consultation on improving price transparency, published on 24 January, it is the Government’s intention expressly to prohibit the drip pricing of mandatory fees in this Bill. I would be delighted to discuss this with noble Lords. I hope this means that the noble Baroness will feel comfortable not to move her amendment.
Baroness Jones of Whitchurch (Lab)
My Lords, all these messages about being prepared to talk further are very welcome; I am sure that we will take the Minister up on them.
Part of the issue about drip pricing and the Government’s response to it is the distinction that they have now made between mandatory extra charges and optional ones. I have a horrible feeling that most of the examples we can think of, such as the airline example, will be classified as optional extra charges, which will not be covered by Schedule 19. Can the Minister say more about that?
I think we are all on the same page but a lot of optional charges are misleading in the sense that they are really charges; the noble Baroness, Lady Bennett of Manor Castle, talked about families sitting together or your luggage going on a long-haul flight. I am sorry that we keep quoting flights, because there are many other areas where this applies, but it seems to me that the Government have made a false distinction here between things that you have to pay, which are mandatory and which the Minister is saying will go under Schedule 19, and the rest, which are most people’s experience of drip pricing; as the Minister was explaining, that will not be covered—but I might have misunderstood what he was saying.
Lord Offord of Garvel (Con)
I thank the noble Baroness for that. A distinction has been made as per that wording. As the consultation has come back, there has been a view on the distinction between those two areas, but the whole point of consulting noble Lords between Committee and Report is to allow further investigation, discussion and/or justification of that.
Lord Bassam of Brighton (Lab)
I want to persist a bit more on that. We are now almost at the end of Committee, and Report is probably two or three weeks away. That is not a lengthy period in which to get the drafting right and for us to have that discussion, so I ask that we get a really early draft of these amendments. The wording is important and that will help my noble friend Lady Jones to form a view about whether it covers what we are after here.
Baroness Bennett of Manor Castle (GP)
This is of great concern to many consumer groups, so it is important to publish and make it publicly available so that people are able to examine, think about and get legal advice on it. It is not just the people in this Committee but broader society that really needs to have the chance to input into this crucial issue.
Lord Offord of Garvel (Con)
I thank both noble Lords for those interventions. I am happy to get this to noble Lords as quickly as possible. The whole point of the consultation is to allow consumer groups, which are very vocal on this issue, to be heard, and they have already fed into the process, but I take the point about expedition.
I thank the noble Lord, Lord Clement-Jones, for his Amendment 130 on product packaging. It seeks to legislate against traders potentially copying packaging or other reference material in order to mislead consumers into thinking that the product in question is from the original manufacturer or mislead them about the specifications or characteristics of the product. I thank the noble Lord for giving us a number of examples, which we can all recognise. I agree with him about the importance of ensuring that consumers are not misled.
However, we believe the concerns underpinning this amendment are already addressed through the prohibition on misleading actions in Clause 224 and the banned practice in paragraph 14 of Schedule 19 to the Bill. These prohibit promotions that mislead consumers into thinking that they are purchasing a product or service from a particular manufacturer when they are not. The provision in Schedule 19 achieves what this amendment seeks to do and applies equally to all products and services. Should a trader try to copy another well-known product’s packaging, this would be deliberately misleading to the consumer looking to purchase a product, as currently set out in the banned practice in paragraph 14 of the Schedule and Clause 224.
The noble Lord, Lord Clement-Jones, referred to previous CMA work on this issue. I am pleased to say that there is currently an in-depth CMA study of the grocery section, which has already spurred government action on price labelling rules. The study continues and I would expect it to pick up poor practices of the sort he highlighted. The noble Lord also made an important point about the importance of effectiveness. The additional powers given to the CMA and the courts under Part 3 aim to achieve just that. I hope he will feel comfortable in withdrawing his amendment.
I thank my noble friend Lord Lucas for his Amendment 131, which seeks to exclude universities from the currently banned practice of advertising that includes a direct appeal to children to buy products or to persuade their parents or other adults to buy products for them. This schedule replicates the banned practice in paragraph 28 of Schedule 1 to the Consumer Protection from Unfair Trading Regulations 2008.
There is no evidence that these regulations, which have stood since then, have prevented universities or similar institutions from providing information on themselves or the courses they offer. The banned practice in question is unlikely to stop universities or other providers advertising their courses. However, to ensure that there is no misunderstanding, further information on application can be clarified in a non-statutory way, such as through the guidance that will be issued for the Bill. The noble Lord, Lord Bassam, also pointed out the importance of universities providing accurate information. This is an area where there has previously been enforcement action, which highlights the importance of it being within the scope of consumer law. I hope that my noble friend Lord Lucas will feel comfortable not moving his amendment.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for that almost totally positive response. There is quite a lot to take away from it. I thank the noble Lord, Lord Bassam, for his supportive remarks on Amendment 130 and the noble Baroness, Lady Jones, for signing it.
That was a useful walkthrough of the Government’s response on smarter regulation. What we all want to see is it translated into the Bill at the earliest possible opportunity. Earlier in our discussion, we talked about the need for speed, but we have here the ideal opportunity to enshrine in Schedule 19 the provisions on both drip pricing and fake reviews in the way we have talked about. Indeed, I am pleased that the Minister talked about further discussions between Committee and Report on some of the other aspects in amendments put forward here by the noble Baroness, Lady Jones. The Ministers seem to be beckoning us through an open door; I hope that that is the case and that we do not find it slammed suddenly when we come to Report. Honing the wording between Committee and Report could produce a good result. I am pleased that the Minister was so positive in almost all respects. In one case, he said that it could already be covered, but this Bill is the ideal vehicle to get these things, which were promised in the consultation response, absolutely enshrined.
The one really interesting area—it struck me immediately when I saw the Government’s response—concerns the difference between “obligatory” and “optional” in terms of the drip pricing arguments. We need to get to grips with this because we do not want to see, by a technicality, companies such as airlines—we have talked about airlines before in Committee—escape liability because we have not got the wording quite right. The noble Baroness was absolutely right to raise this issue because the language that the Government used in their response was a bit ominous in that respect.
I look forward to those discussions. In the meantime, I beg leave to withdraw the amendment.
Lord Clement-Jones
“32 Submitting a fake review, or commissioning or incentivising any person to write or submit a fake review of products or traders.33 Offering or advertising to submit, commission or facilitate a fake review, or hosting offers or advertisements for fake reviews without taking reasonable and proportionate steps to remove them.34 Publishing or providing access to reviews of products or traders without taking reasonable and proportionate steps to prevent consumers from encountering fake reviews.35 Presenting reviews or information about reviews in ways which will mislead average consumers about the reviews that a product or trader has received.”Member’s explanatory statement
This amendment would introduce measures to protect consumers from fake reviews.
Lord Clement-Jones (LD)
My Lords, the Committee may get a slight feeling of déjà vu when it comes to my Amendment 137 but we were assured that it covers a different topic and it is therefore perfectly legitimate to have it in a different group. However, there are other aspects—in particular Amendment 143, which I want to speak to in moving Amendment 137. I will be brief.
As we have heard, the Minister is positive about discussions on how we will enshrine fake reviews. As we know, the Government’s response was designed to improve consumer price transparency and product information for consumers. We very much share that intent. They have highlighted how legislation will tackle fake reviews. Any lack of criminal enforcement would be a major concern so I hope that that will be part of the subject we will discuss.
Of course, we know the impact of fake reviews. Amendment 137 is a different way of dealing with the issues. Fake reviews have been identified by the Federation of Small Businesses as one of the three primary problems experienced by smaller firms when trading on digital marketplaces, so preventing the proliferation of fake reviews will support both consumers and businesses; that is a point we should make. This should be added to the Bill.
The one question I have is this: have the Government had discussions with Trustpilot? It would like to see the Government’s proposed wording extended, particularly to the hosting issue. I do not know whether the Minister has a brief on that. I was quite impressed by the Trustpilot briefing and the evidence it gave. It has concerns about other parts of the wording but, for me, the most powerful aspect is making sure that those who host fake reviews are penalised. I hope that the Minister has an answer to that.
Amendment 143 is where I am again the sorcerer’s apprentice. This is an amendment to Clause 288. It seeks further to protect consumers from rogue traders and their unfair practices. It is something that I know the Chartered Trading Standards Institute is keen to see put into practice. It is a breach of Clause 225 of the Bill for a trader to engage in a commercial practice that is a misleading omission, meaning the practice omits material information. That is defined as
“information that the average consumer needs in order to take an informed transactional decision”.
There is much discussion in the consumer field about what information is needed by a consumer and what is merely desired. For instance, there is no specific requirement for a trader to give his or her name and address. Clause 228 adds an additional breach of omitting material information from an invitation to purchase; it states that there are a number of specific matters that are considered to be material and where it could be an offence if the information is not provided to the consumer, so surely things can only get better. However, an invitation to purchase is currently defined in the Bill as
“a commercial practice involving the provision of information to a consumer … which indicates the characteristics of a product and its price, and … which enables, or purports to enable, the consumer to decide whether to purchase the product or take another transactional decision in relation to the product”.
The point that the Chartered Trading Standards Institute and trading standards officers are making in this context is that, in their day-to-day experience, many rogue traders targeting vulnerable consumers, often in their own homes, do not give a price when offering to do work. If they do not give a price, they will not come under this new obligation in the legislation and will get away with their shoddy work or criminal activity, hence the opportunity in this amendment to remove price from the definition of an invitation to purchase. It would automatically mean that the practice is not an invitation to purchase and, therefore, that the information listed in Clause 228 is not considered material information.
To sum up, removal of price in the definition of invitation to purchase would increase consumer protection, as it would automatically make such things as price, the identity of the trader and his or her address become material information. It would therefore be a breach to provide this information to the consumer. I look forward to what the Minister has to say in respect of those two amendments.
Lord Lucas (Con)
My Lords, I have a clutch of amendments in this group. Amendment 138A continues the series of improvements to trading standards regulations. Before we came under EU regulation, we had considerable freedom to deal with pricing abuses. As one of the many advantages from Brexit, I do not see why we should not go back to the situation we used to have.
Amendment 138B looks at the rights that consumers have and what happens when a business ignores them. At the moment, if a business is denying or ignoring rights, trading standards has to take action under the Enterprise Act 2002 by way of a court injunction. It is slow and expensive, so I cannot see why that should not be dealt with under the scope of this Bill.
I hope that Amendment 140 will draw out from the Government an understanding of what information ought not to be omitted. If, for instance, a trader knows that a particular product has a series of adverse and well-informed reviews or has resulted in poor consumer experience, do they have to share that information? If they have it, they will probably be disinclined to be open with it, but do they have to provide it? How far should a trader go to share information of which they are aware and which they know exists but which they would not normally include in marketing their product? Some elucidation of the limits of this would be much appreciated.
Amendment 145B comes back to trading standards. At the moment, the time limit in the Bill is one year. Trading standards operates an intelligence-led approach: it lets information build up for a while before it takes action to make sure that it is acting in cases of consistent abuse rather than one-off problems. Time is then taken to investigate and it takes more time to get to court, so it is very easy to exceed that one-year time limit—particularly in relation to the earlier offences in a group of offences. Two years would be a better expression of the practical length of time that it takes trading standards to bring cases to court.
Lord Holmes of Richmond (Con)
My Lords, I rise briefly to speak to Amendment 140 in my name to add some more fuel to this already well-stoked fire and to set out exactly what we mean in the Bill when we talk about good faith and indeed the lack thereof where a trader does not take into account the interests of the consumer in terms of product design or information about the product or seeks to exploit the consumer because of their biases or particular views to induce a purchase or a desire for a particular product. Amendment 140 merely adds to the excellent amendment, as already set out. I look forward to the Minister’s response.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords who have spoken in this debate. I am pleased to have added my name to Amendment 137 in the name of the noble Lord, Lord Clement-Jones, which deals with the issue of submitting or creating fake reviews by adding it to the list in Schedule 19 of commercial practices which would always be considered unfair. This is the issue that we touched on in the earlier debate. I am pleased that we have the chance to raise this today because it has been an issue of concern for some time. It is good to get the chance to debate and pursue this, and it is good to hear that the Government are also keen to do that.
We argue that this is not just about the effect fake reviews have on consumers; they affect businesses as well. They damage the livelihoods of many small traders—restaurants and hotels, for example—when their business is deliberately targeted by damaging reviews, or the local competition down the road receives glowing fake reviews which take trade away from the legitimate trader, so this has a business element as well as a consumer element. At the same time, Which? reports that the proliferation of fake reviews for online product sales results in consumers being more than twice as likely to choose poor quality products. We heard a little bit about how that works in the earlier debate.
Urgent action is undoubtedly needed to bring quality standards back into online sales and marketing so that people are not duped. As we have heard, since the amendment was tabled, the Government have produced their response to the consultation on improving price transparency and product information for consumers. It proposes that the Government will add fake reviews to the list of banned practices in Schedule 19. I am grateful to the Minister for hosting a meeting last week where we had a chance to discuss this. It is good to hear that the Government have finally decided to act on it.
However, there are still some outstanding concerns. Concerns have been raised by Trustpilot and others that the fact that the proposed wording lacks clarity. The Government saying that they will work with the Office of the Parliamentary Counsel to clarify the wording is a sign that they have not yet got this quite right. Can the Minister clarify the timescale for that additional work? When will we see the outcome of it?
Concern has also been raised that the Government’s proposals do not address the role played by internet service providers and social media in promoting fake reviews. The noble Lord, Lord Clement-Jones, raised this issue. What action will we take against those who host and reproduce these fake reviews, often knowingly?
Concern has been expressed that the penalty for promoting fake reviews is subject only to civil, not criminal, enforcement. Can the Minister explain a bit more about why that decision was taken? In the meantime, we argue that our Amendment 137 addresses those concerns. We look forward to further talks along the lines that the Minister has proposed, and we hope that he will agree to work with us and the Committee to produce a government amendment that is both clear and comprehensive.
The noble Lords, Lord Lucas and Lord Holmes, helpfully sought greater clarity on consumer rights to prevent consumers being misled or manipulated. The noble Lord, Lord Clement-Jones, rightly mentioned the additional measures needed to protect us from rogue traders. I am grateful to the noble Lord, Lord Lucas, for asking a series of small but important questions around his almost probing amendments. It is important to have clarification on the record, and I hope that the Minister will be able to give it.
The noble Lord, Lord Holmes, helpfully raised the issue of good faith and asked how we can bring some standards back into trading and the exchange of information. Again, I hope that the Minister will be able to clarify that.
We have had a positive discussion on these important points. It is good to hear that there will be further discussion. In the meantime, I look forward to hearing what the Minister has to say.
Lord Offord of Garvel (Con)
My Lords, I turn now to the fourth group of amendments, which concern unfair commercial practices.
I thank the noble Lord, Lord Clement-Jones, for Amendment 137, which would add commercial practices related to fake reviews to the list of banned practices in Schedule 19. The Government agree that the law against fake reviews should be strengthened. Following our recent consultation on proposals to tackle fake reviews and recognising the parliamentary interest in this topic, the Government have set out their intention to add the relevant practices to Schedule 19. It is important that we get the details right.
The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Jones, mentioned the concerns raised by Trustpilot around the hosting of fake reviews as well as the hosting and facilitation of fake review training. The Government are sympathetic to these issues. My ministerial colleagues have previously met Trustpilot to discuss such matters. I assure both noble Lords that the hosting of fake reviews is already addressed by our proposals; that said, I would be happy to meet them to discuss this topic further. For the time being, I hope that the noble Lord, Lord Clement-Jones, will feel comfortable to withdraw his amendment.
I again thank my noble friend Lord Lucas for his amendments. Amendment 138A specifically references “pricing” when considering whether a trader is misleading the average consumer. Clause 224 already states that
“an overall presentation which is likely to deceive the average consumer”
is a misleading action. Price clearly forms a part of this overall presentation. I understand the importance of the regulations being robust and clear and I greatly appreciate my noble friend’s close scrutiny of these clauses, which was very much apparent in his remarks. We believe, however, that such a point is better reflected in the accompanying guidance to the Bill. I will ensure that my noble friend’s point is reflected as such.
Amendment 138B specifically seeks to add ignoring or denying consumer rights to the definition of a misleading action. Should a trader make a false or misleading claim about the rights that the consumer has, with a view to denying, ignoring or misinforming them, the existing wording in Clause 224(1)(a), which prohibits the provision of “misleading information” on a
“matter relevant to a transactional decision”,
would apply.
Amendment 140 on misleading omissions would in effect require information that is relevant to a decision about the purchase of a good or service to be provided to the consumer. I believe that the current Clause 225 is an appropriate requirement for information that a consumer needs to be provided. As this requirement is well established in law, it gives traders and consumers certainty on what the information requirements are. The amendment could also give rise to uncertainty in the legislation, which may place additional burdens on traders, such as the potential costs of gathering such information. Although I understand and appreciate what my noble friend is trying to achieve with this amendment, I believe that the Bill as drafted strikes the right balance between consumer protection and not overburdening traders.
Amendment 142 would add examples of where a trader is not acting in good faith to the definition of professional diligence in this chapter. I am grateful to my noble friend Lord Holmes for raising these issues. Misleading consumers in any way that may cause them to take a different transactional decision is already prohibited. Furthermore, there are specific provisions that protect consumers against undue influence and prohibit exploiting vulnerabilities. Clause 226, for example, protects consumers against aggressive practices that exploit any vulnerability. Given the nature of these exploitative practices, we consider that they would be better explained in guidance accompanying the Bill. I would be happy to discuss this with my noble friend ahead of that new guidance being prepared.
I thank my noble friend Lord Lindsay for tabling Amendment 143 to change what constitutes an invitation to purchase. Actions that are considered an invitation to purchase attract specific consumer rights. For example, traders making an invitation to purchase must provide the individual with the information listed in Clause 228. The Government believe that the changes proposed by this amendment would expand the definition too far; it therefore has the possibility of bringing with it unintended consequences. We are of course committed to protecting consumers. Provisions in Chapter 1 of this part of the Bill already achieve a similar aim to this amendment, prohibiting traders from making misleading statements or omissions in respect of all commercial practices.
Amendment 145B, tabled by my noble friend Lord Lucas, seeks to extend the discovery period of an offence under Chapter 1 of Part 4 of the Bill from one year to two years. Again, I understand his rationale for this. It can often take time for trading standards to gather the evidence to pursue a prosecution against a trader who is breaking the law. However, it is also a key principle of our justice system that investigations should be carried out efficiently and in a timely manner. This is important in protecting the rights of both consumers and those accused of criminal offences. We believe that one year to bring criminal proceedings following discovery is the right balance between expedience and giving authorities the time that they need to carry out investigations.
Lord Lucas (Con)
I am grateful to my noble friend for his answers, by and large, but I do not understand how Clause 245 is supposed to work. I cannot see how, in its wording, it provides protection for vulnerable persons. I look specifically at Clause 245(2), which states:
“References … to the average consumer … are to be read as references to an average member of the group mentioned in subsection (1)”,
which refers to a vulnerable consumer. So the wording of the Bill is reducing the level of comprehension required and therefore the level of information being provided for the comprehension of that vulnerable group. It therefore makes vulnerable groups open to exploitation. What am I misunderstanding here? In what way does Clause 245 provide additional protection for vulnerable groups? How does it raise the standards that traders have to meet when they are faced with a vulnerable group?
Lord Offord of Garvel (Con)
I thank my noble friend for that question. The intention of Clause 244, combined with Clause 245, is to afford a higher level of protection in legislation to those who are vulnerable. It sets out how the “average consumer” should be interpreted regarding vulnerable persons. Therefore, if there is some confusion about their rights having been diminished in some way when in fact the Bill is intended to enhance those rights, I think we should get clarification, so I will write to my noble friend on that matter.
Lord Lucas (Con)
I shall be clearer after reading my noble friend’s remarks.
Lord Clement-Jones (LD)
I thank the Minister for his reply to this disparate group of amendments. I thought the discussion about information raised by the noble Lord, Lord Lucas, was crucial because this is so important to the consumer, particularly the vulnerable consumer. I look forward to seeing the Minister’s letter of clarification, or whatever it is that he will come up with, in due course.
I thank the Minister for his response to Amendment 137, which was, in a sense, rehearsed in the previous group. I thank the noble Baroness, Lady Jones, for her support. She raised some important aspects about timescale and criminal offences. I am assuming that how the whole fake review aspect is dealt with predicates whether we can also have criminal liability. If it is added to Schedule 19, it gets criminal liability, but if it is dealt with in another way, it may not. Clarification of this is important because only two areas, I think, in Schedule 19 are excluded from criminal liability. All the rest get criminal liability. Therefore, it is important that the Minister can give that assurance when we have these discussions that that will be the case.
On the guidance that the noble Lord, Lord Lucas, talked about, I hope the Minister’s reply was that that will be part of what we deliver. The unfair practices guidance will be really important. Just today, the Minister clarified, for example, the brands issue, saying that it is covered by paragraph 14, or whatever it was, of Schedule 19, and that it is not necessary to add that wording. This is all part of important guidance, I suspect, in the end. Expecting people to read the Minister’s words in Committee in the House of Lords might be slightly unreasonable, so I hope that the guidance will nail down the interpretation of some of these aspects of Schedule 19, which will clearly be important legislation.
I think there will be great disappointment about the response to Amendment 143. There was a kind of circular argument that it is going too far—but going too far in what respect? The classic “unintended consequences” were raised as well. There is a set of buzz phrases that one can produce in these circumstances, and “unintended consequences” is one of them, but I did not hear a convincing reason why pricing should not be excluded from an offer to purchase. It strikes me that trading standards officers are correct that this could be a potential loophole. There was perhaps a bit of “not invented here” as well, particularly regarding the amendments tabled by the noble Lord, Lord Lucas, on “properly inform”, which I thought were rather good compared to the existing wording. However, we will, no doubt, continue these discussions. In the meantime, I beg leave to withdraw the amendment.
Lord Offord of Garvel
“ScheduleChapter 1 of Part 4: consequential amendmentsAdministration of Justice Act 1970 (c. 31)
1 In section 40(3A) of the Administration of Justice Act 1970 (punishment for unlawful harassment of debtors), for “the Consumer Protection from Unfair Trading Regulations 2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.Trade Descriptions Act 1968 (c. 29)
2 In section 12(3) of the Trade Descriptions Act 1968 (false representations as to royal approval or award, etc.) for the words from “and” to “2008” substitute “has the same meaning as in Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024 and, for the purposes of this section, a commercial practice is unfair if it would be unfair for the purposes of that Chapter”.Hallmarking Act 1973 (c. 43)
3 In section 1 of the Hallmarking Act 1973 (prohibited descriptions of unhallmarked articles)—(a) in subsection (4C) for “the Consumer Protection from Unfair Trading Regulations 2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”;(b) in subsection (4D) for the words from “satisfying” to “action)” substitute “an unfair commercial practice involving a misleading action for the purposes of that Chapter”.Prescription and Limitation (Scotland) Act 1973 (c. 52)
4 In paragraph 1 of Schedule 1 to the Prescription and Limitation (Scotland) Act 1973 for paragraph (af) substitute—“(af) to any obligation arising by virtue of rights of redress under Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024;”.Companies Act 1985 (c. 6)
5 In paragraph 17 of Schedule 15D to the Companies Act 1985 (disclosures), omit sub-paragraph (k).Copyright, Designs and Patents Act 1988 (c. 48)
6 (1) The Copyright, Designs and Patents Act 1988 is amended as follows.(2) In section 114A(2)(bb) (forfeiture of infringing copies, etc.: England and Wales or Northern Ireland) for “the Consumer Protection from Unfair Trading Regulations 2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.(3) In section 114B(15) (forfeiture of infringing copies, etc.: Scotland), in paragraph (d) in the definition of “relevant offence”, for “the Consumer Protection from Unfair Trading Regulations 2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.(4) In section 204A(2)(bb) (forfeiture of illicit recordings: England and Wales or Northern Ireland), for “the Consumer Protection from Unfair Trading Regulations 2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.(5) In section 204B(15) (forfeiture of illicit recordings: Scotland), in paragraph (d) in the definition of “relevant offence” for “the Consumer Protection from Unfair Trading Regulations 2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.(6) In section 297C(2)(bb) (forfeiture of unauthorised decoders: England and Wales or Northern Ireland) for “the Consumer Protection from Unfair Trading Regulations 2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.(7) In section 297D(15) (forfeiture of unauthorised decoders: Scotland), in paragraph (d) in the definition of “relevant offence” for “the Consumer Protection from Unfair Trading Regulations 2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.Trade Marks Act 1994 (c. 26)
7 (1) The Trade Marks Act 1994 is amended as follows.(2) In section 91 (power of commissioners for revenue and customs to disclose information), for paragraph (d) substitute—“(d) Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024.”(3) In section 97(8)(d) (forfeiture; England and Wales or Northern Ireland) for “the Consumer Protection from Unfair Trading Regulations 2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.(4) In section 98(14) (forfeiture; Scotland), in paragraph (d) in the definition of “relevant offence” for “the Consumer Protection from Unfair Trading Regulations 2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.Enterprise Act 2002 (c. 40)
8 In EA 2002—(a) in Schedule 14 (provisions about disclosure of information) at the appropriate place insert— “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024.”;(b) in Schedule 15 (enactments conferring functions) at the appropriate place insert—“Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024.”Licensing Act 2003 (c. 17)
9 -In paragraph 23 of Schedule 4 to the Licensing Act 2003 (personal licence: relevant offences), for the words from “regulation” to “2008” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.Companies Act 2006 (c. 46)
11 In paragraph 25 of Schedule 2 to the Companies Act 2006 (specified persons, descriptions of disclosures etc for the purposes of section 948), omit paragraph (j).Regulatory Enforcement and Sanctions Act 2008
12 In Schedule 3 to the Regulatory Enforcement and Sanctions Act 2008, at the appropriate place insert—“Digital Markets, Competition and Consumers Act 2024, Chapter 1 of Part 4.”Consumer Rights Act 2015 (c. 15)
13 (1) Schedule 5 to the CRA 2015 (investigatory powers: enforcer’s legislation) is amended as follows.(2) In paragraph 10—(a) omit “regulation 19(1) or (1A) of the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277);”;(b) at the appropriate place insert—“section 229(1), (2) or (3) of the Digital Markets, Competition and Consumers Act 2024.”(3) In paragraph 18(b) for “the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277)” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.Online Safety Act 2023 (c. 50)
14 (1) The Online Safety Act 2023 is amended as follows.(2) In section 59(6) (“illegal content” etc) for “the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277)” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.(3) In section 218(3)(b) (power to amend section 40) for “the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277)” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.(4) In section 222(6)(b) (power to amend Schedule 7) for “the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277)” substitute “Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024”.”Member’s explanatory statement
This Schedule makes amendments that are consequential on the revocation of the Consumer Protection from Unfair Trading Regulations 2008 and the commencement of Chapter 1 of Part 4 of the Bill.
Lord Offord of Garvel
“(2) Schedule (Chapter 1 of Part 4: consequential amendments) contains further consequential amendments relating to this Chapter.”Member’s explanatory statement
This amendment moves the consequential amendments to primary legislation that were previously in clause 249 into a new Schedule (see my amendment to insert a new Schedule after Schedule 19). The new Schedule contains the moved consequential amendments and additional ones.
Lord Lucas
Member’s explanatory statement
The purpose of this amendment is to focus discussion on the effects of paragraph (c).
Lord Lucas (Con)
My Lords, we now move on to subscription contracts. I would very much like to understand the reason for Clause 252(2)(c). The Government seem to contemplate that, if a consumer enters into a contract providing for the recurring supply of goods, is liable to pay for each supply and has no right to bring the contract to an end, the consumer deserves no protection under this Bill. What are these contracts? I am delighted to say that I have failed to enter into such a contract in my life. I did not know that such a contract, where there is no right for the consumer to cancel under these circumstances, existed or was common. What is Clause 252(2)(c) aimed at in terms of practice out in the real world? Given these contracts, whatever they are, why does the consumer not deserve protection from them? I beg to move.
Lord Mott (Con)
My Lords, it is a pleasure to take part in this fifth day of Committee. I will speak to Amendments 148A and 148B, which pertain to an exclusion to the subscriptions chapter. Subscription contracts are becoming increasingly popular in our society. I support the Government’s ambition to ensure that consumers are given strengthened protections in these contracts. However, I wish to ensure that we target the right kinds of contracts and businesses with the new subscription requirements.
Schedule 20 has an exclusion for foodstuffs delivered by an unincorporated trader; to my reading, this appears to target certain micro-businesses. To qualify for this exclusion, a trader must deliver foodstuffs on its own behalf and must not be a body corporate. I support the need for a narrow, targeted exclusion for micro-businesses providing local goods and services, but I worry that the requirement not to be a body corporate will unfairly impact on incorporated micro-businesses that have similar characteristics to unincorporated ones.
For example, businesses such as a farm shop or corner shop providing local food subscriptions, or a vineyard providing locally produced wine on subscription, will be caught by the subscriptions chapter if they are incorporated, but not if they are unincorporated. To me, this appears to be an unfair technicality impacting these businesses; many small micro-businesses may fall through the cracks of the exclusion. That is why Amendments 148A and 148B in my name would change the requirement for a business not to be a body corporate to a requirement for a business to be a micro-business, as defined by Section 33 of the Small Business, Enterprise and Employment Act 2015.
These amendments would ensure that micro-businesses delivering foodstuffs locally benefit from the exclusion even if they are incorporated. They would retain all the other requirements so that the exclusion rightly remains targeted on only the smallest businesses. I hope that the Government understand the need for tweaks to this exclusion and are therefore minded to support these amendments.
Lord Clement-Jones (LD)
My Lords, I will speak to Amendments 150 and 151 and Amendments 153 to 167. This is a rather voluminous set of amendments, but they are all designed to try to bring the pre-contract information requirement for subscription contracts back to some of the language of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The theme for these provisions is: if it ain’t broke, why fix it?
These amendments seek to maintain the flexibility for traders currently provided by those regulations by taking account of the limited time and space available for providing pre-contract information for certain formats and connected devices, and by recognising that certain key pre-contract information may be apparent from the context. The new clauses—Clauses 254 and 255—together with Schedule 21 are designed to replace the pre-contract information requirements for subscription contracts set out in the regulations. The clauses establish two sets of pre-contract information: a long set of full pre-contract information that must be given or made available to consumers before they sign a contract and a shorter set of key pre-contract information that must be given to the consumer all together, separately to any other information. The latter set must be displayed in such a way that it does not require the consumer to take any steps, such as clicking a link, and it must be displayed prior to the consumer entering into the contract.
But the Bill does not provide for the limited time and space allowances established by Regulation 13(4) of the CCR, which are necessary for certain formats and connected devices. In addition, the Bill does not reflect the flexibility provided by the CCR in terms of recognising key pre-contract information that is apparent from the context. This one-size-fits-all approach is not appropriate, given the many different types of subscription contract and consumer journey that the Bill is intended to cover, and given the varying screen sizes that consumers may use to enter into a contract, particularly on mobile devices.
These amendments are designed to amend Clauses 254 and 255 and Schedule 21 to provide more flexibility for the presentation of pre-contract information. They would import a standard of reasonableness to a trader’s assessment of whether information is apparent from the context. They would distinguish between the timing of pre-contract information and full pre-contract information, in line with the current approach of the CCR. They would enable traders to choose the most appropriate techniques to bring the pre-contract information to the attention of the consumer. They would add a new clause to reflect the limited time and space allowances provided by Regulation 13(4) of the CCR—this is necessary for certain screen formats and connected devices. They would enable traders to choose how best to present pre-contract information in a clear and comprehensible manner, on the basis that providing information all at once will not always be the most effective or transparent approach. They would simplify information about cancellation and avoid duplication. They would remove the pro-rated monthly price from the key information about a subscription, as this may confuse consumers, and they would make clear that certain information should be presented only if applicable.
In summary, it is not clear why we are going so much further than the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations, which, in the view of many, have worked quite well. Of course, we will deal with the difference in the cooling-off requirements—also covered by the CCR—when we debate the amendments of the noble Lord, Lord Black, in a few groups’ time. In the meantime, I very much hope that the Government will adopt a rather more flexible approach than they seem to have in the Bill as it stands.
Baroness Jones of Whitchurch (Lab)
My Lords, I will speak briefly on this group because I am very aware that we will have a more substantive debate on subscriptions in the coming groups, so forgive me if I am very brief on some of the issues raised.
I am very grateful to the noble Lord, Lord Lucas, for his amendment. We have consistently argued for clarity, and he is right to hold our feet to the fire over the meaning of the consumer bringing the contract to the end. I am grateful for him probing a little more on what that actually means, and I look forward to hearing the Minister’s clarification on this.
I was concerned when I first read the amendments of the noble Lord, Lord Clement-Jones, that they seemed to be an unnecessary watering down of the rights of consumers under the consumer contracts regulations and introduced some ambiguity where there had previously been clarity. He has gone some way to clarifying what he meant by this. It is very unusual for me to be at odds with him. He might know far more about the subject than I did, because I was just going on what I was reading. I would be happy to talk to him more about it.
I of course understand that some mobile devices are too small to display complex pre-contract information. I am sure that we have all been guilty of ticking the box to say that we accept the terms and conditions when we have not actually read them. However, there should be a responsibility on traders to publish the pre-contract details in a simpler form, using better digital design, rather than being given more legal flexibility about how that information is communicated, which rather lets them off the hook. Maybe this is a discussion that we could carry on outside this debate.
Meanwhile, I am grateful to the noble Lord, Lord Mott, for raising the question of microbusinesses and what conditions should apply before the subscription contract regime kicks in. He raised a very interesting question which I have some sympathy with, about very local traders in a locality such as a farmer’s vineyard. I would be interested to hear what the Minister has to say on this, because we need to protect against the unintended consequences of what he is saying. We need to double check that we are not encouraging rogue businesses to re-describe themselves to get through the loophole, but I am sure that he will address that point when he replies.
As noble Lords can see, I am sitting on the fence on most of these amendments, and I am happy to stay there for the time being. I look forward to hearing what the Minister says, which might persuade me either way.
Lord Offord of Garvel (Con)
I thank noble Lords for their contribution to the group of amendments, which is concerned with subscription contracts. I again thank my noble friend Lord Lucas for introducing this topic and for his amendment. Amendment 148 would alter the definition of a subscription contract, meaning that contracts where a consumer does not have the right to bring a contract to an end would be brought within the scope of the chapter.
If we were to expand the definition in this way, many parts of the chapter would serve no purpose. For example, if a consumer were to enter a one-year contract for a service which had fixed payments spaced throughout the year, but the contract expires automatically at the end of the year and no further payment would be taken, the consumer would not need regular reminder notices about their contract as they would not have the right to end that contract before it expires. If, however, the contract automatically renews at the end of the year, rolling over into to another year-long contract, then the consumer has an opportunity to bring a contract to an end and therefore would benefit from being reminded that they can end their contract before it auto-renews.
I will give another example, as my noble friend requested, which may illustrate the point more clearly. If a consumer were to enter a contract with a builder for house renovations and pays in instalments, the consumer would rightly not have a right to cancel the contract before the payment period ends. The provision in the Bill would therefore not apply. Of course, where contracts do not contain a right to be brought to an end, they will continue to be regulated by the existing consumer contracts regulations 2013, where applicable. I hope that my noble friend finds this explanation satisfactory, and that he will therefore feel comfortable withdrawing his amendment.
Lord Clement-Jones (LD)
I thank the Minister for the way he has set that out. Will he explain how much consultation there was and the nature of it over the introduction of Schedule 21?
Lord Offord of Garvel (Con)
I think I should write to the noble Lord to give that in detail.
I turn to the exclusion for microbusinesses. Amendments 148A and 148B, tabled by my noble friend Lord Mott, would replace the requirement for a business to be unincorporated in order to benefit from the delivery of foodstuffs exclusion, with the requirement to be a microbusiness as per Section 33 of the Small Business, Enterprise and Employment Act 2015. The purpose of the unincorporated aspect of the exclusion is to safeguard against larger businesses restructuring in such a way as to benefit from the exclusion, ensuring that only microbusinesses benefit and that there is greater consumer protection in the food subscriptions market.
My noble friend has raised an interesting point about the application of this chapter to certain incorporated microbusinesses, such as local farm shops, that I am keen to explore. However, the amendment as drafted may not work as intended. That is because Section 33 of the Small Business, Enterprise and Employment Act sets out only broad criteria by which microbusinesses should be defined and defers much of the detail to regulations that have yet to be made. With that said, I am happy to work with my noble friend further to understand his concerns and to ensure that the exclusion captures the right businesses. I therefore hope he is suitably reassured.
In her remarks, the noble Baroness, Lady Jones, raised the important point about ensuring that the exclusion for microbusinesses remains narrow and well-targeted to ensure maximum consumer protection. I wholeheartedly agree with her on this matter, and I assure her that that is the Government’s intention. I thank noble Lords once again for their amendments and for their valuable contributions to this debate.
Lord Lucas (Con)
I am grateful to my noble friend for his response to my amendment, which I will read with care when I have Hansard in front of me. For now, I beg leave to withdraw the amendment.
Lord Mendoza
“14 Membership subscriptions which qualify as gifts to charity in accordance with the provisions of the Income Tax Act 2007, Part 8, Chapter 2 (gift aid).”Member's explanatory statement
This amendment would list charity membership subscriptions which qualify for Gift Aid as an excluded contract pursuant to Clause 253 and Schedule 20 (Excluded Contracts) of the Bill.
Lord Mendoza (Con)
My Lords, in moving Amendment 149, I declare my interest as the chairman of Historic England, which also has oversight of English Heritage, which looks after our national heritage collection.
The subject of this amendment was raised by many noble Lords—probably at least a dozen—at Second Reading: the treatment of automatically-renewing membership subscriptions for charities. These subscriptions are vital and a brilliant example of how commercial many of our charities, both large and small, have become in the way they augment their operating models with a regular membership subscription, which can be paid by direct debit monthly or annually. I know that we have all received all sorts of advice from large charities such as the National Trust, Kew, Tate, English Heritage, the Royal Horticultural Society, the RSPB, the Royal British Legion and so on. We can tell how important it is to them.
These membership subscriptions are treated as donations, but they come with membership benefits such as magazines, newsletters and free parking. I have just looked at the Natural History Museum, where you get free or discounted entry into its silent discos. All sorts of things are provided but, as noble Lords know, under the Income Tax Act the subscriptions are treated by HMRC as donations. They are eligible for gift aid—this is the key thing—provided that the payment is not subject to any condition as to repayment. That is what you would expect; if you give £100 to a charity, you do not expect to be able to ask for it back again next month. If it is a donation it is clearly not refundable, but noble Lords can see that there is a lack of clarity here.
I mentioned some of the numbers at Second Reading because they are significant. The National Trust is getting on for somewhere between 5.5 million and 6 million members—I cannot get a precise number. That is not that far short of the membership of the TUC, to give noble Lords some idea of the scale and extraordinary success of that organisation. Its membership subscription income is nearly £230 million, of which £47 million relates to the gift aid rebate. Similarly, English Heritage, the organisation that looks after the national heritage collection, as I said, has an income of £130 million, and membership subscription is its largest source of revenue at £48 million. Other organisations are similar. Tate, which I have just looked up, has £16 million in membership subscription income. The RSPB has £46 million in subscription income.
This amendment tries to place this kind of specific membership subscription income, which is narrowly defined as
“gifts to charity in accordance with … the Income Tax Act”,
to try to get them included in Schedule 20, on page 369 of the Bill ,as a category of excluded contract. I know that my noble friend’s department has done a lot of work on this with Treasury and HMRC officials, so I look forward to hearing whether there is any further update on how they might deal with this situation. The Minister has also expressed his assurance that there is certainly no desire in the Bill to somehow limit the application of gift aid to these charitable subscriptions, so it will be important to do this. The proposed amendment is simple and clear, but I will wait to hear what he says.
We must remember that these charities operate mostly on a break-even budget and their budgets are very hard to balance. They try to balance it across their operating model, looking at not just these membership subscriptions but admissions, fundraising and commercial ventures. They would find it very hard to withstand a sudden withdrawal of the ability to claim back these significant amounts of contribution through the gift aid process, so I look forward to some reassurance from my noble friend.
Lord Harris of Haringey (Lab)
My Lords, first, I should apologise to the Committee that this is my first involvement in the Bill. Secondly, I declare my interest as chair of the Fundraising Regulator, which overseas and regulates charitable fundraising. I want to say how important the amendment moved by the noble Lord, Lord Mendoza, is. The number of charities that are potentially affected by this is enormous.
I am quite clear that this is an accidental consequence of what the Government are trying to do in the Bill. It was never aimed at undermining the financial position of charities but the reality is that, because of the rules that exist on the way in which gift aid operates, it would have that effect. It would mean that you would be entitled, as a consumer, to change your mind suddenly. Okay, I believe that people can change their mind, but most people who enter into subscriptions do so on the basis that they have made that decision and want to give money to the charity concerned.
The problem arising is that the HMRC rules would not allow gift aid to be paid on any contribution where there was such an opportunity to return in that way. The whole purpose of a charitable donation is that you have given it to the charity concerned not because you are looking to get a series of benefits back but because you are making a donation. That is why gift aid is allowed. This was an unintentional consequence of what is otherwise a series of sensible protections for consumers. I hope that, when he responds, the Minister will make it clear either that he can accept his noble friend Lord Mendoza’s amendment or that this loophole will be closed.
Lord Vaizey of Didcot (Con)
My Lords, I support the amendment of the noble Lord, Lord Mendoza, as well and declare my interest as a trustee of Tate. Everything that has been said is absolutely accurate. This is one of those situations where we are all on the same page, in the sense that I think the Government recognise that this is an issue that needs some clarity. It is certainly not their intention at all to put charities in a position where they will lose access to gift aid based on subscriptions or donations that are given to them on a regular basis by the people who support them.
The noble Lord, Lord Mendoza, indicated that many charities depend on membership subscriptions; that is the vernacular used when you join an organisation such as the National Trust or take out a membership with Tate. Certainly, by my now being poacher turned gamekeeper, as it were, and being on the board of a large museum, I see at first hand just how important subscriptions are to Tate. They are a really important revenue generator; we are very successful in securing memberships. They are a way forward for a lot of our national charities to engage a wide community who may not be able physically to visit the museum or organisation. People who live abroad can also potentially become members, although I appreciate that they would not necessarily be able to give gift aid in that respect. This is a huge way forward and it would be a retrograde step if charities found themselves in a difficult situation.
I gather that the Government have made it absolutely clear that, if you take out a subscription and receive nothing in return, that will to all intents and purposes be an annual or monthly donation on which gift aid can be claimed. However, as the noble Lord, Lord Mendoza, indicated, a lot of ancillary benefits now come with membership as a way of attracting people to take it. Obviously, in the case of museums, that might be free entry to their paid exhibitions and a regular magazine. I was unaware until the noble Lord rose that silent discos are now part of the mix—although I gather that the Natural History Museum calls them dino discos, which makes them even more attractive and means that I will leave this Committee and immediately take out a subscription.
The reason that the amendment has been put forward is to provide clarity in the simplest way. Charities are exempt from VAT and can claim gift aid. This does not provide a Trojan horse, where a private company says “Okay, the way to get around the welcome consumer protections that the Government are bringing in is to claim that we are a charity”. Charities have to go through a lot of hoops to become a charity, so exempting them from Schedule 20 would provide exactly the clarity that is needed.
As I say, we are here to listen to the Government because we know that they recognise that this is—I was going to say “a problem”—an issue. The Government are therefore in a great position to tell us what their thinking is as this is a discussion between those of us who have concerns and the Government who recognise those concerns and want to allay them with either their own amendment or clarity from the Minister.
Baroness Young of Old Scone (Lab)
My Lords, I regret my inability to be present at Second Reading. I support Amendment 149 from the perspective of having been chief executive of two membership charities—the RSPB and Diabetes UK—and my current experience as chair of the Woodland Trust. All three of these charities, and many others about which noble Lords have heard tonight, rely significantly on membership subscriptions and the associated gift aid for their important works. There are big numbers of people involved. As noble Lords heard, the RSPB has more than 1 million members and the Woodland Trust is hotly pursuing it and increasing its membership.
However, I take a slightly different perspective from that of the noble Lord, Lord Mendoza, because it is important to understand that the relationship of membership charities with their members is not transactional. It is not about saying, “You give us this money and we will give you these services”. It is not like that at all. There are ancillary things that members get, but I would not have thought that there are many cases of people giving money to these charities simply in return for the services that they might receive. It is more of a relationship of trust, in which members become part of the charity’s family. The membership donation is unconditional and unrestricted. The member says, “I trust you, as an organisation, to continue to do good things with my money, as you have demonstrated in the past”.
As noble Lords have heard, eligibility for gift aid means that membership subscriptions cannot be cancelled, although they might not be renewed if members fall out with the organisation. The risk is that that very different non-transactional relationship is swept up with the idea of subscription contracts and that, somewhere along the line, these charities lose their valuable gift aid. I am sure that the Minister will assure the Committee that that is not intended but, as much as I trust his assurances, it would be safer if Amendment 149 were agreed and added to Schedule 20 to the Bill.
Baroness Harding of Winscombe (Con)
My Lords, I fear that sometimes it is not enough that everything on an issue has been said; we have to make sure that everyone has said everything that needs to be said. I will be extremely brief but, as I raised this at Second Reading, I lend my voice in support of my noble friend Lord Mendoza’s amendment.
Can the Minister straightforwardly assure us that it is not the Government’s intention to prevent charities being able to access gift aid on membership subscriptions? If he can make that assurance, I expect him, as does the noble Lord, Lord Harris, either to accept this amendment or explain to us the Government’s alternative cunning plan to achieve the goal that I hope everyone in the Committee has.
Lord Clement-Jones (LD)
My Lords, I cannot think of a better introduction to an amendment than the different speeches we have heard. I belong to many of the organisations that have been mentioned. We all have a personal interest in so many of the organisations that depend on subscriptions.
The noble Lord, Lord Mendoza, talked about the impact of the possible loss of gift aid; the noble Lord, Lord Harris, on the issue of why gift aid could be lost; the noble Lord, Lord Vaizey, about the importance of subscriptions going forward; and the noble Baroness, Lady Young, about the different kinds of relationship this represents. To round it off, the noble Baroness, Lady Harding, started to hold the Minister’s feet to the fire with the questions that need asking. This amendment has been comprehensively and extremely well spoken to.
We have all had the NCVO briefing, which has a galaxy of different organisations all making the point that the Government really need to create an exemption. This is a very elegant solution that I hope the Government will adopt but, as the noble Baroness, Lady Harding, said, the Government need to reassure us that this was not intended as part of the new subscription regime. I very much hope that, at this moment, the Minister and the department are cooking up a solution as good as the one that the noble Lord, Lord Mendoza, has put forward, or that they are simply going to accept this. In terms of the arguments made, this has been a slam dunk. I would have thought that accepting the amendment of the noble Lord, Lord Mendoza, is a total no-brainer, otherwise I can see Report stage being carnage.
Lord Bassam of Brighton (Lab)
My Lords, I congratulate the noble Lord, Lord Mendoza, for scripting such a simple and clear amendment. We are acting as co-signatories, and it seeks, very simply, to exempt third sector charities from the effective limitations on subscription contracts in the Bill.
I appreciate that there have already been several attempts to find a solution to this conundrum, including amendments in the Commons. I understood that Ministers were not particularly attracted to this solution, which seeks to list charity membership subscriptions which qualify for gift aid as an excluded contract pursuant to Clause 253. We were a bit reassured by the letter that Kevin Hollinrake, the Minister in another place, wrote to the National Trust, setting out the Government’s position. He said that it was not their intention to create uncertainty about how different legislation might apply. His letter, dated 23 November, also said that cross-departmental work was being undertaken to consider whether clarification would be beneficial. Having listened to everybody this evening, it is pretty clear that it would be beneficial.
If this approach does not meet the happiness threshold for Ministers, this debate is the opportunity for the Minister to explain where the Government’s internal departmental thinking has got to and what other solutions might be available. The Minister argued in his letter to the National Trust that Chapter 3 of Part 4 is unlikely to apply because there is no contract to be deemed a subscription contract. Given the net value of gift aid to charities—for the National Trust it is £47 million, English Heritage is £100 million et cetera—we think there needs to be clarity. We cannot leave a degree of uncertainty. It certainly does not appeal to us to do that at this stage, given the law of unintended consequences. We cannot rely on an assurance that it is deemed unlikely that the legislation would have the effect that many of the charities that we have been talking to have said it would. The charities need certainty and clarity as well.
If it is not this amendment, what amendment will be brought forward? As the noble Lord, Lord Clement-Jones, said, carnage could definitely occur on Report if we do not get a ready-made solution. It needs to be put right and put right now.
Lord Offord of Garvel (Con)
I am extremely grateful to my noble friend Lord Mendoza for moving this amendment and for his compelling speech. I also thank other noble Lords who spoke so passionately on this issue.
Amendment 149 would exclude charity membership subscription contracts eligible for gift aid from the scope of the Bill’s subscription contracts chapter. Many of us have heard strong representations from stakeholders on this matter and it has been valuable to hear the contributions from noble Lords today. It is clear that a number of charitable organisations have concerns about the interaction between the Bill, the existing gift aid rules and the potential implications for their operating models.
Like everyone who spoke, I fully understand the valuable additional income that gift aid provides to charities; as my noble friend Lord Vaizey put it, we are absolutely on the same page as far as that is concerned. Moreover, I assure your Lordships that it is absolutely not the Government’s intention to undermine this critical income for charities.
Lord Clement-Jones (LD)
I want to clarify what the Minister just said. Does he plan to come back with a solution on Report? Otherwise there is going to be jeopardy. If the Bill goes through and the Government anticipate doing something after that, charities are going to be in a really difficult position. Presumably the Minister is pledging to come back with a full solution on Report.
Lord Bassam of Brighton (Lab)
Before the Minister replies to that point, what is it about the amendment moved by the noble Lord, Lord Mendoza, that is so objectionable? I heard the Minister say that charities are not usually excluded from the effects of legislation in the way that the amendment suggests, but I do not see why they could not be made exempt for this particular purpose.
Lord Offord of Garvel (Con)
I thank both noble Lords for their interventions. To take the latter point first, it is absolutely the case that charities are required to live within the statute book generally and are not given exclusions. To take the point made by the noble Baroness, Lady Young, I accept that there are commercial elements to these donations. That may not be the primary purpose but they are commercial none the less, and there are examples where benefits are given to donors in return for donations.
Baroness Young of Old Scone (Lab)
That is the exact opposite of what I was trying to get across, so obviously I was not being very clear. The point is that the vast majority of donors give donations to an organisation for the good work that it carries out, rather than because it is a subscription to a particular service. It is therefore not a transactional relationship. It is not, “I will pay you to get this delivered”; it is, “I will pay you because you do really good stuff and I want you to keep doing it”. It is a non-transactional relationship, while subscription contracts are a very transactional relationship. That is the point I was trying to get across.
Lord Bassam of Brighton (Lab)
I have another point that the Minister might like to think about. Interestingly, the noble Lord, Lord Mott, was arguing for an exemption for micro-businesses. The Minister said earlier that he would be interested to discuss ways in which that might be practicable. Why can we not have a similar discussion on the point about an exemption for charities?
Lord Vaizey of Didcot (Con)
On that point, if the Minister is saying that charities should not be exempt from the law, of course we all agree. If an employee of a charity is treated badly, they are perfectly entitled to take the charity to court and get compensation. The key point here is that membership subscriptions have been able to have gift aid claimed on them and HMRC has made it clear that gift aid is claimable. Now that charity subscriptions are being brought actively within the scope of the Bill by not being exempted, gift aid will be removed by HMRC as a result.
It would be different if we were starting from a position where charities had never been able to claim gift aid and had, in effect, been offering commercial subscriptions. In the same way, when you go into a shop at Tate and buy something that is defective, you have all the consumer protections available to you. You are not giving a gift aid donation when you buy a mug at Tate; you are buying a mug and if it falls on your cat’s head when you get home, you will be able to sue Tate. That is fine, but subscriptions are clearly gift-aidable donations which are now being actively brought within the scope of this Bill.
Lord Harris of Haringey (Lab)
My Lords, the Minister said that he would come back on Report, but it would be helpful if he would come back before Report so that all noble Lords can consider how he does so and table amendments accordingly.
Lord Offord of Garvel (Con)
I thank noble Lords for their contributions. I can confirm that we will come back before Report. The objective is to get a solution for this issue and to have a satisfactory outcome, so that we avoid carnage in the other place.
Lord Mendoza (Con)
My Lords, I am so grateful for the support of noble Lords. The range of experience and advice we have had in this Room is admirable. It is incredible and so helpful that we have the chairman of the Fundraising Regulator right here. I am grateful for the comments of the noble Lord, Lord Harris, and the interjection of my noble friend Lord Vaizey. I had the same thought.
Lord Vaizey of Didcot (Con)
On a point of information, every time I make a speech where I am sycophantic about noble Lords, I end up in Private Eye. I hope my noble friend is aware of that.
Lord Mendoza (Con)
I hope that results. I am grateful to the noble Baroness, Lady Young, for her intervention. Of course, she is right: people contribute to charities because they care deeply about the charity’s mission. Although, as she said, there is no transactional element, if you go on the website of the Natural History Museum or the Tate and to “Buy a membership”, they will clearly list all the benefits that you get, so there is an element of transaction to it. I wanted to bring that out, so that it is clear to the Treasury and HMRC when they concoct whatever regulations they are concocting that we make sure that gift aid is still claimable and that these membership subscriptions still count as a donation to support the charity’s mission. It may be that some charities describe their membership differently from others. I have not checked the Woodland Trust’s website; it may well be completely different from that of a museum or the National Trust.
I am grateful for the support of my noble friend Lady Harding, who could not have been clearer in her request to my noble friend the Minister. I am also grateful to the noble Lord, Lord Clement-Jones, for supporting this amendment and contributing his remarks.
To add to the last point that was made about the simplicity of our amendment, we are trying to exclude charities not completely but just from this narrow point of gift aid, which was carefully defined at great length in the Income Tax Act 2007. We are trying to exclude just this one thing. Perhaps my noble friend the Minister will be able to go back to HMRC or the Treasury to see whether they can find some way of supporting this amendment. It seems clear and simple, without introducing a whole set of other complexities.
I am grateful to my noble friend the Minister for giving me the opportunity to talk with the Secretary of State today. I certainly received reassurances from her and, as I say, that should bring some comfort to the Room. I am grateful to noble Lords for this debate. I beg leave to withdraw the amendment.
House of Lords
NHS: Fracture Liaison Services
(10 months, 2 weeks ago)
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Lord Black of Brentwood
To ask His Majesty’s Government what plans they have to invest in NHS Fracture Liaison Services in England.
Lord Black of Brentwood (Con)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and I declare my interest as co-chairman of the APPG on Osteoporosis.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
The Government recognise the value of the quality-assured secondary fracture prevention services, including the fracture liaison services, or FLS. More than 500,000 fragility fractures occur annually in the UK, and up to 40% of fracture patients will suffer from another. FLS are commissioned by integrated care boards, which are well placed to make decisions according to local need. The Major Conditions Strategy: A Case for Change and Strategic Framework outlines that, with NHS England, we will explore supporting the additional provision of FLS.
Lord Black of Brentwood (Con)
My Lords, I thank my noble friend for that Answer, but all we ever seem to get are warm words and then broken promises. We were promised money for FLS in the elective recovery plan by the Chancellor himself, with announcements on FLS before the end of last year. A package of measures was promised in the Autumn Statement, as well as a national specialty adviser on osteoporosis. None of those promises has been kept.
To go back to basics, can my noble friend tell me whether he accepts that the 90,000 people who need anti-osteoporosis medication are missing out on it because of no access to FLS; that universal coverage of FLS in England could prevent 31,000 hip fractures over five years; and that investment in FLS would pay for itself in just 18 months? If he does accept those points, can he tell us why on earth these promises have not been honoured, and why the needless suffering of tens of thousands of people has not been brought to an end? When will words finally become deeds?
Lord Markham (Con)
First, I thank my noble friend for his tireless campaigning in this space. I agree that there is a very good case to be made. Many of us will know the advantage of the fracture liaison services. A lot of studies show that you are at least 10% less likely to suffer from another fracture, so it is a vital part of the prevention programme. There is a very strong case behind it, and my noble friend can rest assured that it is something that we are really looking to progress.
Baroness Donaghy (Lab)
My Lords, would the Government agree to a temporary transformation fund to pump-prime the fracture liaison services? If everyone over 50 had access to a quality fracture liaison service, it would prevent 74,000 fractures, which would help people to stay in work and help to take pressure off hospital beds. Would the Minister agree that this would be investing to save?
Lord Markham (Con)
As I mentioned, I agree with the noble Baroness that the FLS has shown many cases of prevention. There is a good argument in terms of investment and the return on it all. That is something that we are working towards and, as the noble Baroness will know, it is part of the major conditions strategy for musculoskeletal. So it is something that we are looking to expand.
Lord Lexden (Con)
My Lords, do the Government regret dropping the commitment that they gave in a debate in this House in September to expand financial provision for fracture liaison services? Is the health department considering the introduction of a best-practice tariff to reward those trusts that establish and maintain these vital services?
Lord Markham (Con)
I think that the statement made previously has been corrected on this, but, as I mentioned, we accept that these services are very effective in what they do. That is why we have musculoskeletal as part of the major conditions strategy. It was something that we put £400 million behind last year, in terms of a workforce package. We are looking at the effectiveness of FLS and, in ICBs that are not doing it, whether there is a case to expand them further.
The Lord Bishop of Bristol
My Lords, I thank the noble Lord, Lord Black, for his dedicated work in bringing this important topic to the attention of the House. Around this time a year ago, the noble Lord asked another Question on the early detection of osteoporosis, which is the leading cause of fractures in those aged over 50, particularly women. In his answer, the Minister, who is answering the Question again today, noted that
“a fractured femur is the second biggest reason for intake into hospitals, in terms of beds”—[Official Report, 19/1/23; col. 1926]
and that he would be happy to report on progress on this to the House. Will he tell us whether any progress has been made since he gave that answer one year ago?
Lord Markham (Con)
Yes. Again, I did more research into this and, similar to the point just made, for women over 45 more hospital days are spent with osteoporosis than with conditions such as diabetes, heart problems or breast cancer, so it is recognised that FLS have a very strong part to play. We are trying to pursue a prevention agenda; there is a good cost-benefit argument around it, so we are making a strong case for their expansion.
Lord Allan of Hallam (LD)
My Lords, the noble Lord, Lord Black, and the Better Bones campaign have done an excellent job in raising the public profile of fracture liaison services, so I was a little surprised that searching for them on the NHS website returned some general articles about fractures and advice about the Patient Advice and Liaison Service but nothing about fracture liaison services as such. Will the Minister look into this to ensure that people trying to find information about FLSs are given it and directed to their local service?
Lord Markham (Con)
I thank the noble Lord. His interventions around the communications side are always welcome, because we recognise that it is one thing having a service and another thing making sure that the world knows about it. I will go and find out more and write to the noble Lord.
Lord Patel (CB)
My Lords, the fracture liaison service originally started in Glasgow, with the particular intention of identifying mostly women who had a higher risk of fractures from osteoporosis. In England and Wales, a fracture liaison service audit has been established now for several years. How do the Government receive the learning from those audits and how do they implement the learning that they receive?
Lord Markham (Con)
The noble Lord is correct; there has been some good evidence gained. As I mentioned previously, it shows that the probability of suffering from a fracture if you have been in a clinic is 10%—some studies have shown as much as 30% to 40%. It also shows, as my noble friend Lord Black was saying, that there is actually a good cost saving: it is thought that £65 million per annum will give a return of more than £100 million. There are some very good statistics around this, and I assure noble Lords that we are making a strong case for their expansion.
Baroness Merron (Lab)
My Lords, the Minister has previously confirmed in your Lordships’ House that just 51% of ICBs have a fracture liaison service, and that the rest of the country has what he described as “different versions of it”. Will he explain what is meant by this, so that it can be understood whether this means a full fracture liaison service or not in the remaining 49%? When will Minister Caulfield’s promise to establish more fracture liaison services actually be delivered?
Lord Markham (Con)
I believe that the latest number is 57%, but the general point stands that that leaves 43% which are making other types of provision. The work we are doing right now is trying to understand the success of those versus what we see as prudent with that 57%. That is the case we are making and the case that Minister Caulfield was referring to as well. I believe personally that it is a strong case, so it is something that, as I say, we are looking to work further on.
Baroness Altmann (Con)
My Lords, I apologise for adding to the pressure on my noble friend, but half of all over-50s women will suffer fractures due to osteoporosis, and this affects 50,000 working-age women each year, yet too often this disease is just stereotyped as affecting old women. The menopause increases fracture risks for women in their 50s, when many are in the prime of their life. Might such mistaken stereotyping about old women explain the near total absence of osteoporosis from the Government’s laudable women’s health strategy? Will we perhaps see women’s health hubs referring women to fracture liaison services, with further progress in the forthcoming Budget?
Lord Markham (Con)
Again, the use of hubs and their importance for getting people back to work is recognised. That is why in 2023, in the major conditions strategy, we announced the £400 million workforce programme to get 100,000 people with employee support back into work. It is absolutely recognised that what we can do with fracture liaison clinics is a major help. We are also looking at digital therapeutics—the app is close to my heart—that can help with MSK as well. There are a range of measures.
Baroness Finlay of Llandaff (CB)
My Lords, I declare my role as president of the Chartered Society of Physiotherapy. Will the Government undertake to work with the physios and Public Health England to look at prevention? This is a public health issue because people have trip hazards in their homes, and a decrease in exercise means that people’s balance generally is not as good, and therefore they are more likely to have a fall. When people do have a fall when they are older, they are more likely to sustain a fracture. Avoiding trip hazards and increasing people’s mobility can be a very important preventive measure.
Lord Markham (Con)
The noble Baroness is correct. As well as using a physio to strengthen people’s use of their limbs, there is a strong investment case behind home improvements because of the payback from them. This is all part of the prevention agenda, and we are looking to see if we can put a package of measures together because our feeling is that prevention is the best way to go.
Housing: Accessibility Standards
(10 months, 2 weeks ago)
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The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Penn) (Con)
My Lords, we have proposed to mandate the M4(2) requirement in building regulations as a minimum standard, leaving the current M4(1) standard to apply by exception only when M4(2) is impractical and unachievable. There will need to be a further technical consultation that the building safety regulator will need to take forward as part of its future work plan.
Lord Best (CB)
My Lords, I am grateful to the Minister for her reply, and to the Government for announcing that these higher standards for lifetime homes will be implemented and mandated through the building regulations. I say that on behalf of the many charities that have been campaigning for years to have these higher standards brought into practice. But that announcement was 18 months ago, and we have seen very little progress in getting on with the consultation that should have followed. Since that time, 220,000 properties have been built that do not accord with the new standards, and every further month we leave the consultation, another 13,000 homes are built that do not accord with the standards. When will we see some results from the Government on this?
Baroness Penn (Con)
I am afraid I will have to disappoint the noble Lord, as I cannot give a specific timeframe for that further work. The building safety regulator is responsible for introducing updates to the building regulations and it is a new organisation with a busy programme of work. However, his points are well made. To reassure him, we are taking these considerations into account in a number of ways. For example, last December we published an updated NPPF which included a specific expectation that, when planning housing for older people, particular regard is given to retirement housing, housing with care and care homes. This reflects the Government’s understanding that we need to take into account accessibility and the changing needs of our population as we build new homes.
Baroness Brinton (LD)
My Lords, Habinteg housing research shows that only 7% of our existing housing stock meets even the most basic accessibility standards. The Government’s report says that, on average, it would cost only an extra £1,400 to build a new three-bedroom semi-detached house to this standard—a tiny percentage of the cost of a new house. This would mean that thousands of elderly and disabled people could remain in their homes for life. The Government keep saying that they want to implement this standard. What is the delay?
Baroness Penn (Con)
My Lords, local planning authorities should already assess the housing needs of different groups, including accessibility needs for those with disabilities or older people, and reflect them in their policies and decisions. Guidance was introduced in June 2019 to help councils implement this policy and make use of the currently optional technical standards for accessible and adaptable housing, including M4(3) and M4(2)-compliant homes. As I have set out, we plan to take forward our commitment to move to mandatory for M4(2).
Lord Laming (CB)
My Lords, does the Minister agree that, if we are to reduce the number of people in hospital who do not need to be there as their medical treatment has been completed, we will need to make sure that their accommodation is fit to meet their current needs? That includes small things such as widening the door into the bathroom. Could this be accelerated so that we can address some of these issues?
Baroness Penn (Con)
The noble Lord is absolutely right, and that is what the different accessibility standards seek to address. I undertake to make clear to the department the view of noble Lords today about the importance of this work and the speed at which they wish to see it undertaken.
Lord Young of Cookham (Con)
My Lords, further to the question of the noble Lord, Lord Best, I too welcome the decision to make these new accessibility standards mandatory, but the M4(2) standards have been around since 2015 and the building industry is already familiar with them. Surely, any consultation should be quite quick and the regulations should come into effect during the lifetime of this Parliament.
Baroness Penn (Con)
My noble friend makes a good case. As he will know, the Government have already consulted on the principle of this. A technical consultation would be needed to take forward the mandating of the standard.
Baroness Taylor of Stevenage (Lab)
My Lords, can the Minister estimate how much this—so far—18-month delay has and will cost the public purse through future adaptations of unfit homes and increased care costs due to a lack of the decent, accessible homes that the Government know are needed? Only 8,386 new social homes were built last year, but 52,800 families were added to social waiting lists. This adaptation of homes would enable some family homes to be freed up.
Baroness Penn (Con)
I emphasise that local planning authorities should already assess the housing needs of different groups, including accessibility needs, in their local areas and reflect these in their policies and decisions. As I say, guidance has been issued to councils to help them implement this policy and we have updated the National Planning Policy Framework to reflect some of the issues raised today, but there is also further work that we need to do.
Baroness Meacher (CB)
My Lords, what environmental standards do the Government require of all new homes, as they would benefit everybody and the planet?
Baroness Penn (Con)
The noble Baroness makes a good point. We should look at these standards in the context of a raft of new building safety regulations and standards that have been taken forward in recent years, and the need for housebuilders to adapt to them. There was a significant uplift to the environmental standards in 2021 and we have just launched a consultation on the future homes standard, which will be brought in by 2025 and ensure that all new housing is effectively net-zero ready.
Lord Naseby (Con)
My noble friend surely is aware that for care homes and similar establishments, it is absolutely vital that these new changes be implemented. I recognise that she has been in her present position for only a brief time, but will she make that clear to those responsible and send out a note to housing authorities, drawing attention to what everybody seems to agree should be happening?
Baroness Penn (Con)
One of the ways we will signal and have signalled the importance of this to local authorities is through the update to the National Planning Policy Framework. It was updated in December 2023 to include a specific expectation that when planning housing for older people, particular regard is given to retirement housing, housing with care and care homes. So, we are already taking action.
Baroness Butler-Sloss (CB)
My Lords, why is there no requirement to have solar panels on new buildings, particularly houses? Around me in Devon, thousands of houses are being built, not one of which has a solar panel. I should declare that I have had solar panels on my roof since 2009.
Baroness Penn (Con)
As I said, we had the interim uplift to energy efficiency standards in 2021, and we have just started a consultation on the future homes standard. That sets out two models that could achieve the standard, one with solar panels and one without. The reality is that the Government have focused on the outcomes that need to be achieved and can be achieved by a number of technologies. Those outcomes are consistent with our net zero commitments and targets, and we are committed to taking them forward.
Lord Whitty (Lab)
My Lords, is this not just one aspect of the Government’s failure to enforce the standards to which they are theoretically committed, whether environmental, accessibility or others? Are they trying to trade off the standards against numbers because of their pathetic failure to meet the 300,000 homes a year ambition, which was stated time and again?
Baroness Penn (Con)
It is under this Government that we have seen some of the highest housebuilding rates in 30 years. We are on track to deliver 1 million new homes during the course of this Parliament. We are not trading off different standards, but we do need to consider whether any new standards we bring in are deliverable by builders and allow us to meet the needs of local communities and of our environment, and the need to build more homes.
Lord Watts (Lab)
My Lords, the Government do not seem to like timelines. The Minister says that there is an organisation responsible for bringing this about, so why does she not open a discussion with it to find out how long this will take it to implement, and have some timelines that people can work to and understand?
Baroness Penn (Con)
I reassure the noble Lord that the Government are in regular contact with the building safety regulator. It was created by the Building Safety Act in 2022 and will become fully operational next April. Since its inception, it has been building its capacity around a number of standards, as we have heard—and we have not touched on the broader building safety standards attached to fire and cladding. It is taking forward its work at pace.
Royal Navy: Drone Attacks in the Red Sea
(10 months, 2 weeks ago)
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Lord Coaker
To ask His Majesty’s Government what assessment they have made of HMS Diamond shooting down a suspected attack drone over the Red Sea on 16 December 2023.
The Minister of State, Ministry of Defence (The Earl of Minto) (Con)
Your Lordships will be aware that my right honourable friend the Secretary of State for Defence will shortly update the other place on recent events in the Red Sea. I will not pre-empt that Statement. While on patrol in the Red Sea on 16 December 2023, HMS “Diamond” shot down an uncrewed aerial vehicle which was targeting merchant shipping. This is the first surface-to-air engagement by a Royal Navy vessel since 1991. The Houthis have repeatedly carried out dangerous and destabilising attacks against shipping and continue to do so. Our aim remains to de-escalate tension, but we will not hesitate to defend lives and the free flow of commerce in the face of such continued threats.
Lord Coaker (Lab)
My Lords, we look forward to the Statement on the Red Sea later, and I accept the Minister’s point about not pre-empting any questions on that. In paying tribute to the crew of HMS “Diamond” and all their work over the last few weeks and months, I will ask the Minister about press reports about concerns around HMS “Diamond” and other ships not having a land-attack capability. What assessment have the Government made on what they will do about the fact that so many other ships do not have the land-attack capability to attack the bases that are launching the drones in the first place?
The Earl of Minto (Con)
My Lords, I welcome the congratulations and commitment of the other Benches to the service of the individual men and women. As I understand it, no two warships are exactly the same; they have different capabilities that overlap, and they complement each other and the international force with which we are operating. There is no worry about the effectiveness of their capability.
Lord Stirrup (CB)
My Lords, firing surface-to-air missiles at drones is a very expensive way of attacking relatively cheap and numerous targets. There have been reports of successful UK tests of much cheaper laser-based defensive systems. Can the Minister assure the House that research into such systems will be pursued vigorously, and, if successful, will be translated into both operationally and commercially effective solutions?
The Earl of Minto (Con)
I thank the noble and gallant Lord for his question; that is a very good point. When firing an expensive missile at a cheap drone, you are not protecting the missile; you are protecting half a billion pounds-worth of equipment behind you—that is certainly worth it. As your Lordships know, we have invested a large amount of money in drone and missile technologies, and we will incorporate that in all future designs.
Baroness Smith of Newnham (LD)
My Lords, the Minister said that he does not want to comment on the Statement that is about to arrive, so I will take him in a slightly different direction. To what extent have His Majesty’s Government assessed the requirements for the Navy in the light of the drone strike on 16 December? Given the very worrying concerns raised by the report of the Defence Committee in the other place, Ready for War?, which points out the difficulties with the Type 26 delays and the power improvement project for the Type 45s, we were very fortunate that HMS “Diamond” is in the region and seaworthy. What assessment are His Majesty’s Government carrying out about making urgent reforms to the Navy to ensure that we are as protected as we need to be?
The Earl of Minto (Con)
My Lords, the First Sea Lord and his team are fully aware of the situation and are keeping as many ships at sea as we can at any one time. There is obviously a maintenance programme that must be adhered to and upgrading programmes that follow the latest technology. All the learnings from this latest situation in the Red Sea are being built in as rapidly as possible to all future plans.
Lord Howell of Guildford (Con)
My Lords, bombing the launch sites in Yemen makes sense, particularly if they are using Iranian weapons and rockets, if they are advised by the Iranians, and if some Iranians themselves are even involved in the launch. That is getting near the right target. Will the Minister and his colleagues bear in mind that southern Yemen is not so dominated by the Houthis? There are very many people there, for example, who are very favourable to this country and have been for years. Therefore, we should take great care that the bombing aimed at the launch sites does not descend on people who are favourable to Britain and puzzled as to why they should be bombed at all.
The Earl of Minto (Con)
I thank my noble friend for his question. The accuracy of the bombing is very precise, very limited and specifically targeted at weapons that are being, or are about to be, prepared to be used. As far as we know, that has been successful, and there has been very limited collateral damage. We completely agree that there is a large part of Yemen which is favourable towards us. In fact, we provide quite a lot of aid—although not as much as we did, as noble Lords have raised before—to support the Government of Yemen.
Lord West of Spithead (Lab)
My Lords, being under constant air attack over a period time is, as I know from bitter experience, exhausting. What the people on HMS “Diamond” are doing is amazing, and I share the Minister’s statement that we should recognise how well they have done there. However, it is no good continually shooting down things that are being shot at you—which we are doing very successfully, and rather better than we did in the Falklands, because the systems are better; you have to go for the targets on shore. Therefore, I support the Government’s point that we must show that we cannot just sit there and take this damage. My question relates to tiredness. The people on-board will get very tired and they will need to be replaced. I am concerned about the number of ships we have to rotate through, should this go on for a long time. Does the Minister consider that we have enough ships to rotate through there, should things escalate, and to fulfil our commitments in other places in the world, such as in the Falklands, off Guyana, in the Gulf and elsewhere?
The Earl of Minto (Con)
The noble Lord asks a good question about the total scope and scale of His Majesty’s Navy and how long this might go on for. Perhaps I might turn the question around. If we were to do nothing, and provide no support, we would weaken international security and damage the global economy, and it would suggest that any British vessel is fair game. That is just not acceptable. Ships are available as replacements and to be part of the international task force. It is precisely that; it is an international task force, and integrated, particularly with the Americans who are leading it. Between us, we will certainly have sufficient funds.
Lord Sandhurst (Con)
My Lords, in view of the question of the noble Lord, Lord West, do we not need further assistance from our allies in Europe? In particular, what about the French, who have a fleet? Have they been asked for help and have they offered it?
The Earl of Minto (Con)
My noble friend makes a very good point. The French are extremely supportive, but of course it is each sovereign nation’s decision whether or not to become lethally involved.
Lord Browne of Ladyton (Lab)
My Lords, given the importance of Sea Viper—the missile that was used to shoot down these drones—to our operational capacity, what plans do we have to follow the example of the United States and prioritise work on a transportable rearming mechanism? This is a technological advance that would allow HMS “Diamond” and other vessels to reload vertical launch missiles at sea, rather than putting into port as they presently have to do.
The Earl of Minto (Con)
My Lords, that is a very good point. Sea Viper is extremely effective, and there is a new version, which I think is called Sea Viper Evolution. A very substantial amount of money—about £400 million— is being spent to upgrade that. Rearming at sea is something I am not particularly knowledgeable about, so I will find out and write to the noble Lord.
Baroness Altmann (Con)
My Lords, given that there have been protests on our streets supporting the Yemeni attacks, and given that the Houthi’s slogans include “Death to America”, “Death to Israel” and “Victory to Islam”, why are the Houthis not designated as a terrorist group, given that these acts are clearly acts of terrorism? Are the Government not trying to proscribe the Houthis and their backers in Iran, the IRGC, to help stop these kinds of protests, which are supporting such terrorist actions?
The Earl of Minto (Con)
My Lords, this question is raised fairly regularly, and of course it is something which is under constant consideration. These are difficult decisions to take. However, in the meantime, we will continue to take action that is necessary, limited, legal—it is very important that it is legal—and proportionate in terms of self-defence and freedom of navigation, and indeed protecting lives.
Devolved Authorities: Expenditure outwith Competences
(10 months, 2 weeks ago)
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Lord Foulkes of Cumnock
To ask His Majesty’s Government whether they expect to receive a report from the Cabinet Secretary on the arrangements for ensuring expenditure by the devolved authorities is spent in accordance with their competences and, if so, when.
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
The Government agree with the House of Lords Constitution Committee that the principle of a single Civil Service across England, Scotland and Wales should be maintained. The Government are in the process of considering what further guidance may be required for civil servants working in the devolved Administrations. I anticipate that this process will be completed in the coming months.
Lord Foulkes of Cumnock (Lab Co-op)
But my Lords, it is now more than six months since Simon Case gave that commitment to the Constitution Committee. We have had fine words from the Dispatch Box—we have them again today—yet the Scottish Government have actually intensified their spending on reserved areas, with a campaign for independence, overseas embassies and a whole range of other things, as if they are deliberately defying the UK Government. When will the Government at last take their courage in their hands and take some action on the ground to back up their fine words?
Baroness Neville-Rolfe (Con)
I know there are strong feelings about this, and people in Scotland want both their Governments to concentrate on the issues that matter most to them: growing the economy, gripping inflation and improving public services. On the point about timing, as I said, the Government only recently, on 24 January, responded to the committee’s inquiry, reiterating the work that is under way. I am delighted that the Cabinet Secretary is back; these issues are being given active consideration.
Baroness Goldie (Con)
Does my noble friend the Minister agree that, as Scotland’s educational standards decline, its NHS faces acute challenges—not least the recruitment of consultants—and ferries languish in a Scottish government shipyard, overpriced, overdue and much needed by the operators, the response of the Scottish Government, not only to spend money on completely illegitimate and incompetent objectives, as the noble Lord, Lord Foulkes, said, but to make Scotland the highest-taxed part of the United Kingdom, is, in the face of these challenges, as incomprehensible as it is regrettable?
Baroness Neville-Rolfe (Con)
I agree with much of my noble friend’s sentiment, and that the Civil Service should not carry out political work. It has its own Civil Service Code, which replicates the Civil Service Code that is operated across the UK, and it should pursue the priority items that people care about.
Baroness Ritchie of Downpatrick (Lab)
My Lords, now that devolution has been restored to Northern Ireland and there have been considerable discussions around funding issues—I acknowledge the funding that has already been promised by the Prime Minister—will the Minister indicate what further discussions are taking place about a new funding model for the Northern Ireland Executive to underpin the need for improved infrastructure to deal with health waiting lists and education priorities?
Baroness Neville-Rolfe (Con)
I think it is right for me to say that we welcome the return of the Executive and of devolved government in Northern Ireland. Indeed, I think the Prime Minister is attending Stormont today. A substantial budget has been made available as part of that settlement, and I look forward to hearing the outcomes of that, both from the new Executive and of course from our Northern Ireland Ministers.
Lord Wallace of Tankerness (LD)
Does the Minister agree that if Ministers in a devolved Administration wish to embark on a course of action or incur expenditure that may well be beyond devolved competence, one might reasonably expect civil servants to seek a written ministerial direction? What information does she have about the number of written ministerial directions sought from Scottish Ministers in the last five years, and what conclusions does she draw from either their frequency or their infrequency?
Baroness Neville-Rolfe (Con)
The noble and learned Lord makes an interesting and important point. I understand that any directions of that kind from a Minister would have to be published, and I am not aware of any such directions having been made in relation to the issues that the noble and learned Lord describes. The Government recognise the strength of the arguments and, as I said, are in the process of considering how guidance might support civil servants working in the devolved Administrations on areas that might relate to reserved matters.
Lord Singh of Wimbledon (CB)
My Lords, this request to put competence at the heart of decision-making is a dangerous, underhand way of trying to prevent policies being made on impetus and conjecture, which could really change government. For example, it would have prevented a recent decision by the Secretary of State in the Ministry of Justice to describe an investigation into discrimination in the Prison Service, in which none of the complainants was interviewed and no documentation was looked at, as a very thorough, competent investigation.
Baroness Neville-Rolfe (Con)
I am not sure what sort of competence the noble Lord is talking about. Devolved competence is, of course, clearly set out in various bits of legislation. I note what he says about the investigation, which I was not aware of.
Lord Hain (Lab)
My Lords, does the Minister understand that in Wales the problem is the reverse? The Government sought to indulge in a power grab, particularly following Brexit, of competences that were already devolved, and in addition threatened to spend on road projects, for example, that the Welsh Government had specifically rejected. This works both ways.
Baroness Neville-Rolfe (Con)
I do not entirely agree with the noble Lord, but he may be pleased to hear that I am going to Wales to give evidence on the new border arrangements this week.
Lord Howell of Guildford (Con)
My Lords, the area in which we seem to have come unstuck, particularly over what is devolved and what are reserved powers, is the changing scene of foreign policy. Does my noble friend agree that there might be a case for revisiting the devolution legislation, in a completely changed world, to understand, for instance, the role of the various Scottish offices in other capitals? Are they concerned with trade or are they involved in foreign policy? Do major visiting officials from other countries visit Scotland as a separate entity, with separate foreign policy considerations? This is a very muddled and confused area, and it is getting more so. Does she agree that we need to clear up some of these contradictions?
Baroness Neville-Rolfe (Con)
I agree with my noble friend. This is a live issue, because there was the example of a meeting between the Scottish First Minister and Turkish President Erdoğan with no FCDO official present. I regret that and think it contravenes the protocols, which are designed to ensure that a Minister within the UK lands is properly informed and is making the right points on such a sensitive area—and also reports back, so that we have a joined-up understanding of foreign affairs. Foreign affairs are a UK competence.
Lord Bruce of Bennachie (LD)
My Lords, I return to the problems that the Scottish Government wish to be independent, pretend they are independent and then complain when they find that things they are trying to do do not conform to the devolution settlement, and that they are using UK Government premises overseas to promote their campaign for independence. Does this not have to be brought to a halt, and the division between what is devolved, what is reserved and what is shared clearly set out and enforced?
Baroness Neville-Rolfe (Con)
I agree that we need to consider the presence of Scottish Government offices in UK Government posts, but there is a case for having individual officials knowledgeable about Scotland engaged on issues such as fishing, where there is an important Scottish interest. I have seen that working well, so there is a balance here—but I agree with the general direction of the noble Lord’s comment.
Baroness Chapman of Darlington (Lab)
My Lords, further to the question asked by my noble friend Lady Ritchie, we very much welcome the restoration of devolved government in Northern Ireland. But in the letter to the Prime Minister ahead of their meeting today, Northern Ireland Ministers wrote that they want
“immediate and durable changes to our funding arrangements”.
How do the Government interpret that, and what is their response?
Baroness Neville-Rolfe (Con)
I am sure we will get feedback on these very important discussions, and I do not want to be drawn in to making a comment today, despite the persuasion and charm of the noble Baroness.
General Aviation (Persons on Board, Flight Information and Civil Penalties) Regulations 2024
Lord Roborough
That the draft Regulations and draft Order laid before the House on 28 November and 7 December 2023 be approved. Considered in Grand Committee on 30 January.
Afghan Relocations: Special Forces
(10 months, 2 weeks ago)
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Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, while we welcome the Government’s eventual acknowledgement of the failure of the ARAP scheme to appropriately protect the Triples, I am appalled at how long it has taken to get to this point. The Government have launched a review. They are now promising an independent reassessment process that will be followed by a reconsideration of individual decisions which are not considered to be robust—all this while the Triples are either in hiding in Afghanistan or in Pakistan fearing imminent deportation.
James Heappey in the other place pledged that these reassessments would be done in 12 weeks. Can the Minister confirm that they will be concluded by the end of April and that the timescale will include the reopening of ARAP claims where appropriate? Given the number of people currently stranded in Pakistan, can the Minister update your Lordships’ House on current conversations with the Government of Pakistan to ensure that there are no further deportations to Afghanistan while this process is under way?
The Minister of State, Ministry of Defence (The Earl of Minto) (Con)
My Lords, your Lordships will remember from when we went through this issue the last time that it is not easy. I do not accept that we have made a nonsense of it. What we are trying to do is get it right. Some inconsistencies came up during the process that needed addressing, which is what we are trying to do. The information was held by the Afghan national Government. It was not held by us. Your Lordships will remember that we had 142,000 applications, of which 95,000 were original. We needed to get to the truth of it. As a result, we are looking again at all the refusals, which is the right thing to do.
Baroness Smith of Newnham (LD)
My Lords, these Benches welcome the Government’s change of heart and their agreement to look again at the applications of the Triples. There has been a real problem with ARAP and ACRS. People have not been able to make appeals.
Can the Minister reassure the House that His Majesty’s Government understand the urgency of dealing with these appeals immediately? While 12 weeks is absolutely the longest that it should take, ideally it should be much sooner. Can he tell us what Minister Heappey in the other place meant by saying that a new safe route is by the ACRS? The SNP had asked how we could have new safe routes. The fact that you have been granted ARAP does not mean that you can get out of hiding in Afghanistan to the United Kingdom. What will the Government do to enable people to get here safely?
The Earl of Minto (Con)
My Lords, I assure all noble Lords that we are in very close contact with the highest level of the Government in Pakistan. They are being extremely co-operative on the situation. Regarding the 12-week timeframe, we would like to get this sorted out as soon as possible. It has gone on for a very long period, but please keep in context the 142,000 applications. It has not been easy, and it is important that we get the safe routes correct so that people can get out of Afghanistan. Once they are in Pakistan and get the letter, we can get them out. We got another 2,900 people out fairly recently. It is a challenge, but we are getting there.
Lord Hannay of Chiswick (CB)
My Lords, what the Minister has said today is very welcome, even if he is denying that it is a change of policy, which of course it is. It would have been quite shameful to have continued on the basis on which we were proceeding before this change. Can he or his colleague in the FCDO say whether reconsideration is being given also to those who worked with and for the British Council over many years? I declare that I negotiated the opening of the British Council in Kabul some 60 years ago.
The Earl of Minto (Con)
My Lords, I will certainly take up that question about the British Council. The Government are absolutely clear about their responsibilities under ARAP and ACRS, and are doing their absolute best to ensure that we end up with a fair and equitable solution.
Lord Browne of Ladyton (Lab)
My Lords, I welcome the fact that the Government have undertaken to review all those applications that were deemed to be ineligible. Some of those very brave men are in hiding in Afghanistan, and some of them are in Pakistan, but some are here. In the chaos of leaving Afghanistan, they were all denied access to the evacuation flights. They all knew the Taliban knew where they lived. They were forced, in those circumstances, to get here by irregular and dangerous routes. Will the Ministry of Defence undertake not to make them ineligible for ARAP because of the way they got here?
The Earl of Minto (Con)
My Lords, my understanding is that that is absolutely correct. Everything is being considered on a case-by-case basis, and the information now needs to be as pure as it possibly can be to enable us to decide whether those employees of the Afghan Government are eligible to relocate into this country.
Lord Lexden (Con)
My Lords, my noble friend said that the Afghan Government were being co-operative—what form is this co-operation taking?
The Earl of Minto (Con)
My Lords, I believe that I said the Pakistan Government. I do not think the Afghanistan Government are particularly co-operative.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to the noble Earl for his thoughtful answer to my noble friend, but how does his answer square with the Government’s current and proposed future policy on people who come here via irregular routes? When legislation that has already passed is brought into force, and when proposed legislation passes, the Secretary of State will have no discretion even to be kind to people such as the brave men and women we have been discussing but will be under a duty to send them to places such as Rwanda.
The Earl of Minto (Con)
My Lords, I am not 100% clear on that point, but I know that, where inconsistencies and inaccuracies have come to light, we are going to reconsider—with a completely new team of people and a completely new assessment—to make absolutely certain that we get the people here who should be here.
Lord Naseby (Con)
My Lords, as one who knows that part of the world—Pakistan, India and even Afghanistan a little—is my noble friend confident that our high commission in Pakistan has sufficient resources supplemented to help the existing people, so that this process can be speeded up?
The Earl of Minto (Con)
I thank my noble friend for that question. I will ask my colleagues in the Foreign Office and find out.
Lord Stirrup (CB)
My Lords, the Minister has said that each case will be considered individually, which of course is good, but he will be aware that it is often extremely difficult for applicants to produce incontrovertible evidence of their entitlement. Will he assure the House that, in cases where there is some fuzziness and a little bit of doubt, the Government will exercise their generosity rather than their bureaucracy?
The Earl of Minto (Con)
My Lords, I recall a very similar question the last time we raised this, and I think I said at the time that there is flexibility and that it is important that we get it right. That is the indication that I will give.
Baroness Smith of Newnham (LD)
My Lords, if nobody else wants to come in, perhaps I may press the noble Earl further to answer my original question and those of the noble Lord, Lord Browne, and the noble Baroness, Lady Chakrabarti. If somebody is entitled to ARAP, and if they make it to the United Kingdom by some circuitous route that would otherwise be deemed illegal, does that mean that they will be eligible to remain even though, in every other circumstance, they would be deemed to have come through an illegal route and potentially be sent to Rwanda?
The Earl of Minto (Con)
My Lords, that is something I am not 100% clear on. I will not say one way or the other, but I will find out and write.
Victims and Prisoners Bill
Monday 5th February 2024
(10 months, 2 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-IV Fourth marshalled list for Committee - (5 Feb 2024)
Baroness Newlove (Con)
My Lords, I add my support to Amendments 30, 31, 37 to 46, and 53. Compliance with the victims’ code goes straight to the heart of what the Bill is about. This year, the code will have been on the statute book for 20 years. Its creation was based on good intentions, and the many entitlements, if properly implemented, would deliver the support and treatment deserved. On that we all agreed.
As discussed in the previous debate, the same piece of legislation sought to underpin the code by setting up the role of an independent Victims’ Commissioner, whose role is to
“review the operation of the code”.
Twenty years later, I think we all agree that the expectations created by that piece of legislation have never been fully met. Victim Support has found that as many as six in 10 victims do not receive their rights under the victims’ code, two in 10 are not referred to support services, and six in 10 are not referred to a needs assessment. In my most recent victim survey, fewer than three in 10 respondents were aware of the existence of the code. Only 29% recalled being told about the entitlement to make a victim personal statement.
In December, we had the report of the joint inspection on how well the police, the CPS and probation supported victims, which also found that the focus on complying with rights under the victims’ code has led to an emphasis on process rather than quality of service. The police, the CPS and the Probation Service did not always consider the needs of victims. As for police sharing information with victims, the report found that this was often a box-ticking exercise, with no evidence of quality. We love tick boxes, but we are missing the whole point of issuing this information and supporting victims. As the recent case in Nottingham has shown so powerfully, the quality and timeliness of communications with victims are crucial.
After 20 years, it is disappointing that we need to have this debate yet again. During that time, there have been many well-intentioned attempts to drive up performance: a tweak here, a nudge there, and yet another revision of the code. This Bill must not be allowed to become another nudge and another tweak.
There is much in the Bill to commend it. It will set up a structure whereby data is collected locally, with the Secretary of State issuing guidance on the data required. There will be an internal process to oversee monitoring of compliance, a programme board, and a ministerial task force. If an agency fails to deliver, it will eventually be issued with a notice of non-compliance. These are all positive developments.
Yes, I do have some concerns—for example, about whether the police and crime commissioners will be resourced to undertake the required data collection and analysis, and about the influence they will be able to assert over national criminal justice agencies at a local level—but let us not focus on those for now. The question we must ask ourselves is: will regional directors of, say, the CPS or the Probation Service lie awake at night worrying about an MoJ notice? I very much doubt it. Where are the transparency, the public accountability, the independent scrutiny and the challenge? By itself, will this worthy framework deliver the culture change we have all been talking about?
As the noble Baroness, Lady Chakrabarti, said last week—I know we have had a weekend in between—we might ask: does it have teeth? I fear that it does not. I support the amendments in this group not because I want to undermine or devalue the work that has been done in government, but because I want to give the Government the tools to make it succeed.
Amendment 30 sets out a framework for the Government to hold the criminal justice agencies to account should they fail to deliver a minimum level of compliance with victims’ rights. This proposal is not a straitjacket; it is a framework. The Government set the threshold, and the timeframe is two successive years. A failure to meet the Government’s set thresholds will result in an inspection, which in turn will result in a published report highlighting shortcomings and making recommendations for the change. This holds agencies fully to account and provides much-needed transparency. To put it bluntly, it has much more clout than an MoJ non-compliance notification.
For the same reason, I support Amendment 31, which gives holders of my role the opportunity to issue non-compliance notices where there is evidence of persistent non- compliance.
I turn to Amendments 44 to 46, tabled by the noble Lord, Lord Russell of Liverpool. The systematic collection of compliance data offers an opportunity for proper scrutiny and accountability. The publication of the data will be a significant development, but the Government propose to give themselves the responsibility for delivering the assessment of the data. Therefore, they decide on the data to be collected. They fund the PCCs, victim activity and data collection. They also publish their own internal assessment of the data. As the noble Lord, Lord Russell, says, this smacks of the Government marking their own homework.
This framework lacks independent scrutiny and challenge. We can do better than this. This assessment needs to be undertaken by the person who has statutory responsibility for reviewing the operation of the code—in other words, the Victims’ Commissioner: someone who has the freedom to report without fear or favour, and who is able to challenge both the Government and the criminal justice agencies. As a person independent of government, his or her findings would be viewed as credible by victims, the public and the media. I add that my term expires in October, so this responsibility would fall to the future commissioners.
A former CEO of the office of a police and crime commissioner watched the debate last Wednesday, and she emailed me to say that the concerns from speakers about the approach of the criminal justice agencies to the code resonated with her. She said:
“On the additional ‘A’ being added by Lord Bellamy of ‘adaptable’, I understand the point he was making, but I would suggest the agencies sat around the Local Criminal Justice table have made full use of the adaptable nature of the code to date and the lack of governance around it which is why we are in the position we find ourselves with only a third of victims having awareness of the code”.
This needs to change. From the outset, I have constantly said that the credibility of the Bill rests on delivering code compliance and ending the culture within our agencies of adapting themselves around it. This is something on which we are all agreed, and I hope the Minister and the Government will, at long last, listen and act upon our concerns.
Lord Hampton (CB)
My Lords, I have added my name to Amendments 30 and 44 to 46 in this group, in the name of the noble Lord, Lord Russell of Liverpool. Others have spoken at length and much better than I can about these, so I really just want to echo the noble Baroness, Lady Newlove, here. These amendments are about compliance, accountability and the Victims’ Commissioner. The noble Baroness, Lady Newlove, talked about tweaks and nudges, which we do not want—just give the Victims’ Commissioner teeth, because independence and rigorous scrutiny are vital if the Bill is to have the confidence of victims.
Baroness Brinton (LD)
My Lords, I have signed Amendments 31, 51 and 83 in this group. Amendment 31 would give the Victims’ Commissioner an additional role in ensuring the victims’ code in the event of non-compliance. As other noble Lords have said today and last Wednesday, the real problem with the Bill is that there is no duty on agencies to comply. I support the two previous speakers—nudging agencies will not create the right effect.
Amendment 51, in the name of the noble Lord, Lord Sandhurst, would ensure that the justice agencies are properly trained. As with Amendment 83, the aims and objectives of Amendment 51 are something I have laid repeatedly over the decade and more since I have been pushing for training, particularly on matters to do with victims. I am really pleased that the noble Lord has tabled the amendment; I am also pleased that the family courts are beginning to understand that there is a crossover between what happens to victims in the criminal justice system and their experiences in the family court system. I will not say more, because we will be debating a group of amendments on that on Wednesday. However, none of that will happen unless everybody involved in the criminal justice procedure is fully trained. I understand that the justices are extremely concerned that Parliament should ask them to be trained, but it is not just about people sitting on the Bench. This is about everybody who is engaged.
I know that I have said in private and perhaps in public that, when I went to the sentencing of my stalker, I was placed literally next to him. I had no choice of where to sit—that is where the clerk who took me in sat me. It was the first time I had seen him since he was arrested, and it was a real shock to the system. So, when I talk about right through the system, I mean absolutely everything, including the people who help manage the seating areas in the court. Above all, we need a system whereby the family courts will ensure that victims are not victimised twice. It is broader than that, and I am grateful to the noble Lord, Lord Sandhurst, for tabling that amendment.
Amendment 83 would ensure that front-line agencies are trained to recognise stalking. I am grateful to the noble Lord, Lord Russell, for expanding it to include higher education places. Stalking in its most unpleasant form is manipulative and coercive. Families and friends of those being stalked are also stalked, meaning that people who come into contact with them, including in schools, colleges, universities and the health system, need to understand when they are being played by a stalker. Because stalkers are very good at it—every single day cases come to court with stalkers behaving in this appalling manipulative way. It is extremely unpleasant and frightening. To train everyone to recognise it, to be able to ask the right questions and, as we discussed last week, to signpost people to the right services, is vital.
There is another reason why Amendment 83 is important. One problem of the Domestic Abuse Act is that it has downgraded non-domestic stalking. The priority in the system is for domestic stalking, and without a specific amendment providing for stalking in one form, we will not see this form of discrimination, which happens simply because it is not domestic—and I am afraid that some people in the criminal justice system think that non-domestic stalking is not as severe.
Overall, from these Benches we welcome the amendments. The deluge of amendments that the Minister is facing is because we know that the victims’ code that the Government have put forward, with which we all agree in principle, will not work without the strengthening of the responsibilities of the Victims’ Commissioner and other agencies involved in managing the lives that victims have after they have become victims.
Lord Hogan-Howe (CB)
My Lords, I support in broad terms the need for the commissioner to have more powers to intervene on behalf of victims, and my questions are about how that should be done most effectively to create the atmosphere that is needed.
For many years we have had people who have intervened on behalf of suspects, but very few people who have been able to intervene on behalf of victims, and I really support that changing. Amendment 30 talks about the ability to produce reports. My questions are about whether the reports are the right way to achieve the outcome, when people in fact want individual interventions for their particular problem. To give more powers to the commissioner to intervene in individual problems might be more powerful.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will speak to Amendment 36, which is in my noble friend Lord Bach’s name, as well as my own. This is a probing amendment. It does not set out to challenge the Government’s position on delivering their commitment regarding local criminal justice boards, within the scope of the clauses on code compliance. It seeks to set out the benefits of putting LCJBs and police and crime commissioners together.
First, it will drive consistency of approach to code compliance, which can be monitored through LCJBs. Secondly, it will deliver effective collaboration and shared accountability of code compliance and encourage attendance from criminal justice boards. Thirdly, it will ensure that statutory guidance is reflective of the LCJB approach. Fourthly, it will recognise the LCJB role in victims’ code compliance, given the policy intent to place the boards on a statutory footing.
This amendment does not state that LCJBs are the only forum in which to comply with the current regulations. However, LCJBs are important forums that need to be bolstered in order to deliver on the Bill’s ambitions, drive consistency and ensure local shared accountability for code compliance across criminal justice bodies and the elected policing bodies. This amendment will deliver that aim through enshrining them in this Bill.
The Ministry of Justice published guidance for LCJBs in March 2023. This guidance reiterated the commitment to placing LCJBs on a statutory footing:
“In line with recommendations made by the Review, a suitable legislative vehicle is being sought to place LCJBs on a statutory footing and mandate that the PCC act as Chair”.
By giving local criminal justice boards their own place in the legislation, this amendment would remind local partners of their shared accountability for and commitment to supporting victims of crime and to delivering the new responsibilities set out in this Bill. We would also provide PCCs, who chair the majority of these boards, with the levers they need to ensure that the boards are effective and set clear expectations of their members.
Turning to the other amendments in this group, the noble Baroness, Lady Newlove, spoke to Amendments 30 and 31, and I agree, of course, with the points she made. She spoke very powerfully on the importance of independent scrutiny and transparency, and she proposed a “framework, not a straitjacket”. She believes, as do I, that what she is proposing is a better way of holding agencies to account. She also quoted the noble Lord, Lord Russell, on the Government currently marking their own homework; he wants to deliver a better system through these amendments.
I also want to endorse what the noble Baroness, Lady Brinton, said about recognising both domestically related and non-domestically related stalking. I have dealt with stalking matters quite a few times in magistrates’ courts, and even though, from an outsider’s point of view, they can seem less important, I am absolutely convinced that, for the people being stalked, it is an extremely alarming and frightening position to find themselves in. In fact, I dealt with that sort of case very recently. It also reinforces the point in Amendment 51 about the training needed for justice agencies in order to recognise stalking and its importance.
In conclusion, I noted with interest the questions of the noble Lord, Lord Hogan-Howe, to the noble Lord, Lord Russell, and the noble Baroness, Lady Newlove, about multiple inspectors and inspections and the need for this to be carefully thought through. They were very fair questions, but I do not think they add up to an argument against. Their points were well made, and I look forward to hearing the Minister’s answer.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank noble Lords very much for their contributions to this group. I first apologise for my heavy cold and thank my noble friends Lord Roborough and Lord Howe for stepping into the breach and dealing with subsequent groups today.
The amendments in this group essentially seek stronger compliance mechanisms, credibility, as has been said, more specific obligations on training and a wider role for the Victims’ Commissioner—in other words, we are in the field of awareness and accountability, to use two of my four “A’s”. The Government would not be proceeding with this structure if they did not believe that they were delivering a credible structure. The whole purpose of Clauses 6 to 10, combined with guidance under Clause 11, is very much to improve awareness and compliance. Under Clause 6, criminal justice bodies must promote awareness and review their compliance, and, in particular, under Clause 7 the PCCs for each area must supervise the criminal justice bodies in their area and provide reports for the Secretary of State. That is all combined with the collection and sharing of information about how they are functioning, together with the publication of compliance information under Clause 10.
In that latter regard, I ask noble Lords not to underestimate the importance and strength of shining light in dark corners. We have seen it in other parts of the criminal justice system, such as the family justice system. Once you have the information and it is in the public domain, that is a huge contributor to raising standards generally. As the noble Lord, Lord Russell of Liverpool, pointed out, some police forces are doing extremely well; I think Cheshire was the example he gave. So it can be done under the existing system. The question is, how we bring everybody up to the same standard. Clauses 6 to 10, coupled with the duty to collaborate under Clause 12, and the preparation of the strategy and the needs assessment under Clause 13, all involve everybody collaborating, working together, learning from each other and generally arriving at best practice. In the Government’s view, that is a perfectly sensible and entirely efficient and fruitful way to go. So in general terms, at least at this stage, the Government are not persuaded of the need for the further amendments in this group.
I turn for a moment to the rights of individual victims under the statutory code. Without reopening exchanges from the previous occasion, I would like to state categorically on behalf of the Government, at the Dispatch Box, that Clause 5 is not and is not intended to be an ouster of judicial review. The code, its operation and the bodies responsible for this operation are, in the Government’s view, subject to judicial review. From the point of view of the individual victim, that may be something of a technicality but, given the modern prevalence of public interest litigation by groups of various kinds, it is not insignificant that the relevant bodies and the code itself are subject to judicial review.
As for the individual victim, the Government agree with the noble Baroness, Lady Chakrabarti, that giving victims the right to sue directly in the courts—for example, for damages—is not the best approach. In the case of the individual victim, the route is a complaint to the ombudsman, who may give such redress, including compensation, as it is within their power to give. Noble Lords will note that another improvement in the Bill, in Clause 23, enables the victim complainant to go direct to the ombudsman rather than through one’s MP. That is an important reform.
What are the enforcement mechanisms if this system does not work as envisaged? What are we going to do about it? I shall give noble Lords a little bit of colour from the additional document about compliance oversight, published on the MoJ website last month and referred to by the noble Baroness, Lady Newlove. At national level, there will be a new cross-criminal justice system governance system, with a programme board and a ministerial taskforce to monitor compliance nationally. The Victims’ Commissioner will be fully involved; we are putting the Victims’ Commissioner at the heart, administratively speaking, of the way in which this is developing—as will the various inspectorates and other important stakeholders.
As the noble Baroness, Lady Newlove, said, one weapon with which to address non-compliance will be the use of non-statutory non-compliance notifications similar to those used in the Prison Service to drive change. Also very potent, if I may say so, are the inspections themselves. Clauses 19 to 22 give the relevant powers to the inspectors of constabulary and probation and so forth to have inspections. Another aspect that adds to the powers of the Victims’ Commissioner is to build the commissioner into those structures and to require those bodies, when developing inspections, to fully consult the commissioner. There is also the possibility of joint inspections, which is another tool. So when you need to do something on a targeted basis, in this Bill you have the powers, in the end, to do it. That is the Government’s general position.
I now turn to the specific amendments. Amendment 30, tabled by the noble Lord, Lord Russell of Liverpool, seeks to create a duty on the Secretary of State to set out in regulations minimal thresholds for the code of compliance and to instigate inspections when these are breached in two consecutive years. The Government’s position is that we fully agree that clear indicators are needed to identify severe and persistent non-compliance. However, it is almost certain that what the Government propose to adopt will be a range of indicators, rather than a specific minimum threshold, to consider not just when entitlements are being delivered but how they are received by victims. Those indicators should be decided by the bodies that are responsible for delivering the code, which is why it will be a matter for the ministerial task force. As I have said, the task force will include the inspectorates, the Victims’ Commissioner, and the Parliamentary and Health Service Ombudsman.
Baroness Chakrabarti (Lab)
Perhaps the Minister can drink a bit more water at this point, though that is not the sole reason for my intervention.
I am grateful for the Minister’s clarification, but my own clarification is that no one suggested, at any point, that Clause 5 is an ouster of judicial review. Last time, I was trying to make it clear that, in Clause 5, the code does not give any right to civil proceedings, and so no individual can sue on the code. In the creative scheme that we devised, we were not suggesting that individuals should be able to sue either. We certainly agree with not wanting more litigation for people who have already had a terrible time with litigation and probably have no civil legal aid anyway.
The point was that the Victims’ Commissioner should be more than a toothless tiger. Whether or not it is through force of personality, as with the current commissioner, future commissioners should have something in their back pocket for recalcitrant public authorities which, year after year, do not respect the victims’ code. Even in the scheme that we developed, litigation should not be the first resort for a Victims’ Commissioner either today or in future. They should have to jump through hoops first—the issue of private notices followed up by the issue of public notices. Only in extremis should the Victims’ Commissioner alone—in relation not even to particular a criminal case but to systemic failure—be able, as a last resort, to sue on the code. I understand the Minister’s position, but I hope he will at least take the opportunity to reflect on what noble Lords have suggested before the next stage.
Lord Bellamy (Con)
I thank the noble Baroness for that intervention. I will continue to reflect on all the points made, including this one. The Government’s present position is that this “slap on the wrist” power for the Victims’ Commissioner probably does not take matters much further forward, but I may reflect on that further.
I turn to Amendments 37 to 42 from the noble Lord, Lord Russell, and other related amendments, which, as I understand it, require the Secretary of State, rather than the police and crime commissioner, to monitor code compliance for a local police area. For transparency, the Government are committed to national oversight via the ministerial task force, but there is an essential role for local accountability. There is a hierarchy here, and the police and crime commissioner is the right person to be responsible for ensuring compliance in that local area as they already play a vital role in improving and championing services for victims through commissioning support services and chairing local criminal justice courts. The Government attach importance to that local activity.
This brings me to Amendment 36, supported by the noble Lords, Lord Ponsonby and Lord Bach, which seeks to specify that criminal justice boards and PCCs may use local criminal justice boards for the purposes of local review. We entirely agree. As the noble Lord, Lord Ponsonby, said—I completely recognise this—we need a wider debate about placing local criminal justice boards on a statutory footing. The Government have expressed support for that happening in a way that reflects the full remit of the work they do. Once we find a legislative opportunity to do so, it should be taken forward. The Government are very much of the view that their often vital work should be supported.
I return to awareness and training in Amendment 51 in the name of the noble Lord, Lord Sandhurst, and Amendment 83 in the name of the noble Lord, Lord Russell, on training in support for victims of stalking. The noble Lords are quite right that there is an obvious need for more training. The Government hesitate to have a national training framework because so much will depend on the local situation. These amendments apply to a vast range of organisations and a one-size-fits-all approach will not appropriately support staff to meet the diverse needs of victims in the wide range of settings in which they operate.
However, it is very difficult to imagine guidance on Clause 11 which does not include a reference to the kind of training that should be done. If you are placing a duty on the agencies to work with victims day in, day out to promote awareness of the code, it seems implicit that the relevant persons have to be properly trained. The Government agree with that.
Lord Russell of Liverpool (CB)
My Lords, first, I pay tribute to the Minister, who for 25 minutes has responded to this group when he quite clearly would rather be in another place; I do not mean down the Corridor. We all wish him a speedy recovery, but we would also be well advised to keep a fairly safe distance from him for the immediate future.
The Minister said at the beginning that the key to making the victims part of the Bill work is culture change. To mix metaphors, there was culture change with teeth—which sounds like a strange creature for well-paid Harley Street specialists to dream up new procedures for.
Before I continue with that, it would be nice if we could try to stop in its tracks the growing confusion which has come since the arrival in your Lordships’ House of a brace of Russells. I point out that I am a lowly Baron—the bottom of the heap, Lord Russell of Liverpool—and not the much more elevated noble Earl, Lord Russell, who is in his place. To back up my point, I will quote the letter that the noble Earl’s grandfather and my grandfather wrote jointly to the Times in 1959, which I think makes the point rather clear:
“Sir—In order to discourage confusions which have been constantly occurring, we beg herewith to state that neither of us is the other”.
I hope that puts that particular care to rest.
When talking about what the Government are proposing in the victims part of the Bill, the Minister asked the rhetorical question of whether it is a credible structure. Do we need, as the Government are saying, a strengthening and reinforcing of the current structure or—and this is not rhetorical—is the structure itself part of the problem? The structure has been in place in a slightly weakened form for many years and it is clearly not working. The Government have recognised that, and put a commitment in the 2019 manifesto to try to put that right and produce a victims Bill.
In reflecting on how best to respond to the manifest failings in the current structure—although there are some good points—I suggest to the Government that the best solution is not to try to reinforce the current structure by putting sticking plasters and various forms of glue into various parts of it.
I also point out that, while best practice certainly exists—we know it is exists; there are examples all over the country—we also know a great deal about human nature. Human nature is perhaps best exemplified by something known to anybody now in your Lordships’ Chamber who was once a Minister—a political Minister, not of the Church—in any shape or form: hell hath no fury like different government departments trying to ignore one another, and, above all, like a department doing everything it can desperately to avoid taking on any good practice from another department, which might be seen to imply that its own practice was not as good. We have all known about that; “Yes Minister” was a very successful programme for many years, partly on that premise. That is human nature; it is the same with departments of state, police and crime commissioners and the 43 separate police forces in England and Wales—all the different bodies dealing with this.
I come back to what I mentioned last week: the paean for a past age identified by the noble Lord, Lord Hennessy, when you could essentially rely on people and parts of the state doing what is expected of them—the “good chaps” theory of government and administration, if you like. There is so much evidence to indicate that, for all sorts of reasons that we will not go into today, that is not happening. We would be doing ourselves, and in particular the Government, a favour if we looked in the mirror and recognised that it is not working.
The Victims’ Commissioner has to be the most obvious channel for dealing with an awful lot of these issues. In particular, the current interim commissioner, who was largely responsible for the role being created in the first place, has direct experience of being a victim at great cost and has, for the last 15 years or more, dedicated her life to helping other victims and to talking to a variety of individuals and organisations to work out how better to understand what victims are going through and to do something to help them. She knows what she is taking about—she really does. When she talks to the Government and suggests, in her usual very polite way, that things are not quite as they may seem and that things may not turn out quite as the Government hope they will, it behoves the entire House to listen to her very carefully.
An unfortunate fact in recent history is that because the noble Baroness’s predecessor as Victims’ Commissioner was not invited to return for a second term of office, there was a significant period when there was no Victims’ Commissioner and no proper voice for victims. That took place at a critical time when the Bill was going through its birth pangs and was being put together. It would be good for the Government to acknowledge the insights and information that the noble Baroness could have given to the inception, crafting and architecture of the Bill—particularly its structure, which we will come back to. The Bill would have been infinitely improved if it had had the benefit of more input from her and the team around her. It is never too late, and I hope that we can use the time between now and Report to have some intensive meetings and discussions in a completely non-combative way. I and others said at the beginning of the Bill that our role is to drain any politics from the Bill to the extent that we can. It is not about politics; it is about people and victims. The Victims’ Commissioner is the obvious driver of culture change; she is better placed to do that than anybody else, and it behoves the Government to acknowledge that and to listen to her.
As for the minimum threshold, I hear what the Minister said about having a range of indicators rather than minimum thresholds. The sceptic in me would point out that if you are asking a range of institutions—which are themselves being asked to work out whether they are meeting those thresholds—to come up with their own preferred indicators, you may possibly not come up with some of the more challenging and awkward indicators. You may well come up with a preferred list of indicators that are rather more easy to accede to. Philosophically, there is at least a question mark over that approach, and we would like to discuss that further.
I say a big thank you to the Government for acknowledging that an annual statement of the state of affairs is very welcome. I think I can see the noble Baroness nodding. We are grateful for that and regard it as a good step forward.
To come back to the role of the Victims’ Commissioner, whoever is in this role should be front and centre in making the Bill as effective as possible, and then being accountable for holding the Government and the different agencies to account for delivering on it. It is not a satisfactory course to expect the Government to hold themselves to account. In theory, the Government have held themselves to account in this area for the last 20 years, and the report card is perhaps not as stellar as the Government would like it to be. I am grateful that the joint criminal boards are acknowledged as an important part of the process; that is a good move.
As far as training is concerned, I am grateful in particular that the Government are looking at the super-complaint that the Suzy Lamplugh Trust put forward on the basis of some dreadful stories. Stalking is incredibly complex. We need to sit down and try to make sure that people understand just how large scale, complex and insidious it is. To expect any public servant—or even victim—to understand what they are dealing with without effective, precise training will not give a good result, as I learned from talking to Richard Spinks, the father of Gracie Spinks, two weeks ago. He was not bitter, but he was desperately disappointed that Gracie had complained to the Derbyshire police more than 40 times about the way she was being threatened and the concerns she had about what might happen—and it did happen. It happened in plain sight, and the Derbyshire police in effect chose to be blindfolded and mute. To their credit, they have acknowledged after the event that they failed egregiously. What was needed was proper training in place, a proper understanding of dealing with this and, above all, proper leadership. If you want real culture change, you need really good leadership. I put it to noble Lords that having the leadership of a really effective Victims’ Commissioner is probably the most effective way to drive this forward.
We all welcome the Minister’s invitation to have further meetings to, as he put it so elegantly, reflect further—hopefully when his sinuses permit. On that basis, I withdraw the amendment.
“(4A) Regulations under subsection (2) must require information about compliance with the victims’ code to be linked to a consistent victim identifier that is used across the agencies of the criminal justice system.”Member's explanatory statement
This amendment comes from the perspective that achieving the Bill's aims of putting victims at the heart of the criminal justice system requires addressing the issue that the information systems used by criminal justice agencies do not at present collect or share information satisfactorily.
Lord Bach (Lab)
My Lords, although this amendment has been put down rather late, I hope that once the Committee has heard about it, it will realise that it has some potential importance in this debate. I want to thank publicly the Public Bill Office of this House, which is superb in the way in which it deals with each of us in turn so ably. For it to be able, on Friday afternoon with an hour to go before closing, to deal so satisfactorily with the issue that I now raise is a real compliment to it, and I do not think you would see that in every part of the public or private services.
Lord Russell of Liverpool (CB)
My Lords, as it happens, I did read the article in the Financial Times, and pressed the little button to save it, because I thought what an interesting idea it expressed, particularly as this Bill was sailing on its way into Committee.
Victims in our system, depending on where they are in the system, are often invisible. I spoke earlier about the case of Gracie Spinks, and the number of times she complained to the police, yet none of it was joined up. Eleven years ago, there was a lady called Helen Pearson, who was repeatedly stabbed in a churchyard after she had been given a new and different reference number for each of the 125 previous reports she had made against her stalker. The failure to link these reports meant that the police had missed vital opportunities to understand the pattern that was building up and the degree of danger that she was potentially under. That is a graphic example: there were 125 different reference numbers for the same person, in each case complaining about the same person. That is not good practice, and it is not acceptable.
We do not have an answer today, but I pay tribute to the noble Lord, Lord Bach, for raising the issue at this stage, to give us a chance to look at it carefully. I know that His Majesty’s Government, and many other institutions, do not have a brilliant track record in implementing new data and information systems, and many careers have suffered as a result. But that is not a good reason for not looking into this and seeing whether we can use modern technology to try to make victims’ experience better, and above all to help the bodies that are charged with trying to identify what those victims are suffering to do something about it. Having a tool such as that suggested by the noble Lord seems a bit of a no-brainer, and it would be an excellent topic for further discussion between now and Report.
Baroness Newlove (Con)
I too support the amendment. I am grateful that we have put people into the Bill, because that is what this legislation is about: it is about people. I do not think that victims want to be at the centre of the criminal justice system, but they do want a level playing field; that narrative has been overused, although I mean no disrespect to the noble Lord, whom I met as police and crime commissioner—I loved travelling round the country on trains for two and a half years, meeting everyone, when I was previously Victims’ Commissioner. I agree that the Bill is about people. We hear many times that the police servers do not talk to one another, and all these servers do not seem to interact with all the other agencies or all feed into the Ministry of Justice.
I am delighted that this issue is being raised. This morning we talked about it in the context of the National Health Service. A Times Health Commission report out today looks at a similar thing. Even GPs cannot talk to hospitals, and even consultants within the same hospital cannot talk and get the information out. Again, that is about patients. It is important that we are talking about it at this stage. I would welcome further discussions. Victims are given different messages, different police officers and different everything. It does not mount up. How many recordings and crime reference numbers do we need? It should be one. There is one portal for every police force that a victim can feed into. Therefore, it should be the other way around. A victim should have one record and be able to put the narrative together so that they feel safe in our communities. I welcome the amendment.
Baroness Brinton (LD)
My Lords, I too welcome this amendment. Although I am speaking from the Liberal Democrat Benches, first, I will speak personally, as I have had a number of amendments in other Bills relating to the use of very personal data, whether it is medical data or data with other identifiers.
There is a very strong argument for this. I noted that the briefing which we were sent earlier today talked about the independent review of children’s social care, recommending the re-use of the NHS number for the consistent child identifier. One of my concerns is that a lot of different departments of government or agencies are trying to create their own individual number, which suddenly means that you must remember or have access to your NI number, your DVLA number, your NHS number, your school number or whatever it is. For things such as this, provided that there are the appropriate data safeguards, it is sensible to use a number that is already there. My personal view is that it would be interesting to hear the arguments about whether it should be a separate number or the NHS number, because, after all, everybody has an NHS number.
The briefing also talked about the savings to the criminal justice system from having such an approach. One of the big scandals that we have at the moment is that, because the system is failing, victims often withdraw from any criminal justice system. They do not want to appear as witnesses or they find it very difficult to do so. If we really believe that this number is going to help support victims and to help them to stay through the course and get the justice that they deserve, it will also provide many millions of pounds of cost saving over the years to offset any very minor costs and administrative irritations from adding the NHS number or the victim’s journey number to every form.
From these Benches, we welcome anything that we can debate with the Government between Committee and Report to strengthen the role of a victim and ensure that they get the right support.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too read Dr Natalie Byrom’s compelling piece. I very much took to heart the points made by my noble friend Lord Bach. He said that the police count crimes, the CPS counts defendants, the courts count cases, but nobody counts the victims.
I was interested in the reference by the noble Baroness, Lady Brinton, to using NHS numbers so that you are not constantly duplicating numbers. I was reflecting on this because in another life I have dealt with large amounts of data as an engineer. I am very conscious that putting in more identifying numbers does not necessarily make situations more straightforward. Nevertheless, it is a good idea and worth exploring further.
A couple of questions occurred to me during my noble friend’s speech and other contributions. How would you record out-of-court disposals? How would you record withdrawals from cases where there may have been a crime committed but not necessarily a victim identified? Also, what would happen when you got cases of a relatively low nature which were across different police forces and were not necessarily picked up? That is often a source of problems.
The context of this debate is stalkers and domestic abuse, but of course it goes wider, because we were talking in earlier groups about anti-social behaviour and where repeated examples of it were not picked up and acted on. It is a good idea and one that is worth looking at further, but I do not underestimate the complexities of putting it in place.
Lord Bellamy (Con)
My Lords, I do not think I could have put it better than the noble Lord, Lord Ponsonby. It is a good idea, but there are lots of complexities. I am sure that noble Lords agree that, in many ways, joining the dots and handling data is one of the most critical challenges any Government face—whether it is between departments or within the NHS, within the justice system, within or across police forces, et cetera. We still have 43 different police forces with computers that do not even necessarily talk to each other.
I thank the noble Lord for his amendment, which would introduce a consistent victim identifier for the collecting and sharing of code compliance information. This is extremely important so that we can better understand and meet victims’ needs. As I understand it, there is a Ministry of Justice pilot called the Better Outcomes through Linked Data—or BOLD—programme, which is already exploring how to link victims’ data to improve our understanding of their experiences. It is right that we should have a much better knowledge of the victim’s journey through the system and, in particular—to pick up a point that the noble Baroness, Lady Brinton, made—better understand why people drop out of the system at a certain stage. Although I do not have a more precise date, I gather that the results of that pilot will be available in 2024.
Whether it is something that is either sufficiently developed or should be in the Bill as a matter of principle is perhaps another question. At this stage at least, the Government are not persuaded that it that should be in the Bill, but they are persuaded that it is something we should continue to work on to understand the complexities and arrive at practical solutions.
Lord Bach (Lab)
My Lords, I thank all noble Lords for their contributions to this fairly short yet important debate. I thank the Minister for answering the question so positively. Whether or not it is for this Bill is a matter for discussion between now and Report, but it seems that while there are, of course, considerable issues around this in practice, the idea that the victim should be treated in the same way, being known about and followed, as it were, in this area seems an important principle, and would raise the position of the victim—as the Bill says it intends to do. I hope we will come back to this issue. It is worthy of discussion and has had a good outing today in Committee. I do not think it will go away—if we do not take advantage of digital advances in this area, as in every other, we are not doing our duty. I beg leave to withdraw my amendment.
Lord Hampton
“(4A) Collaboration may include the co-location of services in accordance with the Child House model, as defined by the Home Office guidance entitled “Child House: local partnerships guidance”, published on 6 September 2021.”Member’s explanatory statement
This amendment would include within the duty to collaborate the use of the Child House model, described by the Home Office guidance as “a multi-agency service model supporting children, young people and non-abusing parents, carers and family members.”
Lord Hampton (CB)
My Lords, I will speak briefly to my Amendment 53, which would insert the concept:
“Collaboration may include the co-location of services in accordance with the Child House model”.
We have heard much talk about the child house model pilot project at the Lighthouse in Camden. It is a multiagency model for children and young people who have experienced any form of sexual abuse. I urge noble Lords to visit this place; it is a shining example. It is an extraordinarily light, welcoming and unthreatening place where children and young people can go to receive medical help and counselling, but also where they can tell their story. As we have said, children tend to tell their story only once, so if we want justice from these places, this is the place to do it. It is a pilot scheme that needs to be rolled out.
At the moment the Bill seems to be in either/or mode when it talks about local authorities. The amendment would clarify that a multiagency, multiborough or multi-council format could be used as best practice for child victims when, as must happen, this model is rolled out across the country. With that, I beg to move.
Lord Russell of Liverpool (CB)
My Lords, I shall speak to a variety of amendments. I support the amendment just moved by the noble Lord, Lord Hampton, but I will leave it to the noble Lord, Lord Ponsonby, to talk about it when he winds up. I will speak to my Amendments 54 and 81. I support Amendments 56 and 59 in the name of the right reverend Prelate the Bishop of Manchester. I will then speak to my Amendments 58, 60, 62 and 64.
Amendments 54 and 81 return to the subject of stalking. There were 1.6 million victims of stalking in the year ending 2023, so it seems strange that there is relatively little mention of stalking and stalking victims in the Bill. That is something we hope to persuade His Majesty’s Government to consider. Part of that is the importance of independent stalking advocates, which we will come to in a later group. We particularly welcome the Government’s new measures to expand Clause 15 to include guidance about a number of specialist support roles, including, we hope, independent stalking advocates. But I stress that, although what they propose is extremely welcome, it is obviously a very good idea to think about this and develop the list in close co-operation with some of the organisations and bodies closest to the front line in dealing with victims and experiences.
Stalking should certainly be included within the scope of the duty to collaborate in Clause 12. The Minister said in considering the previous group that the Government are looking carefully at the super-complaint made by the Suzy Lamplugh Trust about stalking not being dealt with effectively, but again, we know that it is being dealt with extraordinarily well in some parts of the country. So we know that there are ways of tackling it, but unfortunately that is being done in only a handful of parts of the country. If you are unfortunate enough not to live in those parts, you will have a pretty ghastly experience, like Gracie Spinks and so many other people. That is probably enough on stalking; I think the noble Baroness, Lady Brinton, can be relied on to talk about that in more detail, and, very importantly, from direct personal experience, which has its own power.
The two amendments put forward by the right reverend Prelate the Bishop of Manchester try to ensure that funding for victims and witness support services is sufficient to meet the needs across the country, particularly the demand for specialist domestic abuse services. While the idea of a duty to collaborate is a wonderful one, to be truly effective we judge that it would be helpful if there was a requirement on the Secretary of State to support duty-holders to meet the needs identified by providing adequate and sustainable funding. The figures are not insignificant. Women’s Aid estimates that it would cost at least £238 million per year to meet the need for community-based services across the country. We feel that the Bill is an opportunity to put in some safeguards to provide a legal framework through which sustainable community-based services and funding could be provided.
Turning to Amendment 59, some “93% of frontline workers” surveyed for Refuge’s Local Lifelines report said that
“their service was being impacted by staff shortages”,
and
“64% said their service was impacted by short-term contracts”.
Therefore, the principle of multiyear funding to try to enable these services to be set up to a sustainable and effective level is extremely important. I am sure that the right reverend Prelate will expand on that in a minute.
I come to the last set of amendments—Amendments 58, 60, 62 and 64—which come from working closely with Nicole Jacobs, the domestic abuse commissioner, and her team. There is a patchwork of provision for victims, survivors and their children when trying to access services. Community-based specialist domestic abuse services are literally life-saving and life-changing for many of these victims. Despite this, there is no duty to fund these community-based services, and in the current economic environment, you can imagine that they are not necessarily at the top of every cash-strapped local authority’s “must do” list of services to which to try to apportion diminishing funds.
Without making too much of it, this is a crisis, and in the Bill we have an opportunity to ameliorate that. We must really try to focus our minds on what is required to deliver sustainable, entrenched, well-run, effective services across the country. This Bill is a chance to try to do it right, so I hope we will take that opportunity.
The Lord Bishop of Manchester
My Lords, I rise to speak to Amendments 56 and 59 in my name; I also support the other amendments in this group. These amendments would all help to firm up the very good intentions set out in Clauses 12 and 13.
In an earlier group, I tabled an amendment to ensure that victim support services were properly signposted; it is no use a service existing if the people it is meant to serve are not able to access it. But now we come to, if anything, a more fundamental point: how do we ensure that the right services exist for victims, and in each and every part of the country?
The Bill as drafted gets much right: it requires policing bodies, integrated care boards and local authorities to collaborate in assessing the needs of victims, producing a published strategy and, indeed, revising that strategy as occasion requires—so far, so good. But, as things stand, and as the noble Lord, Lord Russell of Liverpool, has indicated, that assessment and strategy could be little more than a combination of the unaffordable and the non-existent—a bit like an overambitious child’s Christmas wish list.
Baroness Lister of Burtersett (Lab)
My Lords, I support the amendments in this group specifically on domestic abuse services. The Justice Committee, in its pre-legislative scrutiny report, observed:
“Additional funding is required to enable services to meet demand and allow the Victims Bill”—
as it then was—
“to live up to its ambitions”.
As the noble Lord, Lord Russell of Liverpool, pointed out, a mapping exercise by the domestic abuse commissioner revealed just how patchy is the support available to domestic abuse victims and survivors from community-based services because of funding difficulties. Funding, such as it is, is often short-term and insecure, which reduces services’ capacity and ability to plan, with implications for effective service provision and the recruitment and retention of staff.
The mapping exercise also underlined the importance of community-based services, which was what most victims and survivors wanted. This chimes with the experience of organisations such as Refuge and Women’s Aid. The domestic abuse commissioner found that the weaknesses due to funding difficulties were
“compounded for victims and survivors from minoritised communities who face the greatest barriers to support, with specialist ‘by and for’ organisations increasingly defunded despite being best placed to meet their needs”.
In an earlier briefing on the Bill, she pointed out that such organisations
“are particularly ill served by local commissioning, where commissioners can favour fewer larger contracts to cover their whole population, or where there is not the critical mass of individuals from a particular community in a given geographical area for commissioners to commission a bespoke service”.
She emphasises that her mapping exercise shows that by-and-for services are
“by any measure, the most effective services for victims”,—[Official Report, Commons, Victims and Prisoners Bill Committee, 20/06/23; col. 7.]
especially those from minoritised communities.
Women’s Aid makes an important point that the distinction between specialist and generic VAWG services is recognised in Article 2 of the Istanbul convention and should be reflected in the Bill. Women’s Aid also argued that, on the basis of economic analysis conducted for it by ResPublica, the funding of specialist domestic abuse services can be seen as spending to save, given the savings it would generate elsewhere, as the right reverend Prelate underlined.
I return now to a point I raised at Second Reading on the significance of economic abuse. To the Government’s credit, this is now recognised in law. Community-based services need to be able to help victims and survivors of economic abuse, the impact of which can be devastating—even more so given the financial pressures so many families are facing. A Women’s Aid survey last year found that the cost of living crisis has hurt both specialist domestic abuse services, leaving many on their knees, and of course victims and survivors themselves. Of the women surveyed, 73% told them the charity it had either prevented them leaving or made it harder for them to flee. Some two-thirds said that abusers are now using the increase in the cost of living and concerns about financial hardship as a tool for coercive control, including to justify further restricting their access to money.
This underlines the importance of economic advocacy, both for those who have suffered economic abuse and more generally for domestic abuse victims and survivors. Surviving Economic Abuse has done so much to put the issue on the political map. It has made the case for including economic advocacy in the provision of community-based services, including by-and-for specialist services. It sees this as
“key to victim-survivors’ immediate safety as well as long-term economic independence”.
The charity warns:
“Post-separation economic abuse is the primary reason women return to an abusive partner”.
Economic instability affects the ability to access the criminal justice system and pursue a prosecution. Economic abuse, including post separation, makes rebuilding an independent life extremely challenging. The charity therefore recommends
“that the standard support offer in all domestic abuse services should include economic advocacy in partnership with money, debt, and benefits advice as well as financial services, to help victim-survivors establish … economic safety”.
Existing examples of such support show how it can help victim-survivors establish their economic safety and rebuild their financial independence.
As I have said, economic advocacy is important not just for those subject to economic abuse. The DAC’s mapping exercise found that half of victim-survivors wanting support for domestic abuse during the previous three years mentioned the need for help with money problems or debt. Of those, only 27% were able to get such support, which is almost the largest category of unmet need that the survey found. This suggests that higher priority must be given to funding economic advocacy generally; otherwise, there is a real danger that some victim-survivors will end up returning to an abusive partner because of the dire economic circumstances they face trying to establish an independent life free of abuse.
Baroness Newlove (Con)
My Lords, I wish to speak in support of Amendments 59, 60, 62, 64 and 65. When you become a victim of crime, your life is thrown into disarray in a moment, as I know only too well from bitter personal experience. Indeed, I had to become the main breadwinner as well as supporting my daughters through the most horrendous acts they had ever seen in their lives. What people need at this time is help and support so that they can attempt to pull their lives back together and to recover. The victims’ code gives all victims of crime the right to refer to support services. However, I am often told how difficult it can be to get access to these services. In fact, people do not even know they exist half the time.
In my victims’ survey, only 46% of people—less than half of the people who responded—said they were referred to victims’ services. Even if they are referred, getting that service does not prove easy, with only 43% of respondents agreeing with the statement, “It was easy to get access to victims’ services”. One victim told me that
“it took a really long time to get the support I needed at that time, as I was going through a very traumatic time and this was really impacting my mental health in such a negative way”.
I appreciate that there are, and will always be, constraints on funding, but the way victims’ services are funded contributes to the problems faced by many of these organisations. Victims’ support services are currently delivered via a complex network of statutory and non-statutory agencies, which compete with other providers for funding. There are huge regional inequalities for victims trying to access support services. Access to counselling—the most sought-after type of support—showed the biggest disparity, with 58% of victims in the north-east of England able to access counselling, compared with 37% in Wales. Demand is increasing for these services, but this increase is not being met by additional funding or capacity being allocated by the local authority.
We need long-term, sustainable funding for victims’ services. Importantly, these contracts should be for no less than three years. I feel that I am on a carousel, because I have been arguing for that since day one as Victims’ Commissioner. This would give these organisations the stability they need to be able to recruit, train, and, most importantly, maintain staff. Staff are given notices three months before this funding is even being put into accounts. Nobody in any job can absolutely go through that, when they have mortgages, children to feed and everything else. It is not acceptable.
In the victims’ funding strategy, the Ministry of Justice is committed to the principle of multiyear funding for core victim support services, and I welcome this. However, the short-term nature of contracts and the competitive tendering process really do have a damaging impact on organisations’ ability to deliver services—especially the smaller organisations, many of whom deliver by-and-for services. By-and-for services are extremely valuable in the support landscape, because these are organisations that are run and staffed by the marginalised communities they support. It is vital that victims feel supported and, more importantly, build relationships to feel they are being understood by getting support in an environment that is comfortable to them. For many, this means being supported by people who understand their culture or have similar life experiences. Again, in my recent survey, only 29% of victims told me they were able to easily find suitable services for their specific issues.
The commissioning processes fail these specialist by-and-for organisations, because the way in which they are structured favours bidders who can provide support at lower costs and have a larger reach in terms of numbers—not necessarily the best practice for victims. They can also force providers into partnerships and consortium arrangements in which by-and-for organisations are underresourced, silenced, marginalised or squeezed out. It is vital that these organisations can continue the vital work they do, and not be continually disadvantaged by short-term funding rounds. That is why I am in favour of ring-fenced funding. I know that the Government do not like ring-fencing—but a ring-fencing pot is essential for specialist by-and-for support services.
I also want the statutory guidance on the duty to collaborate to include direction to commissioners on the importance of commissioning practices that do not discriminate against smaller specialist services but encourage them to fund a range of services suitable for all victims.
Lord Bach (Lab)
My Lords, I am going to speak to my Amendment 65. I am delighted that the noble Baroness who has just spoken supports it. It was supported also by the noble Lord, Lord Wasserman, who cannot be in his place today. I remind the Committee that I was a police and crime commissioner for five years and had some responsibility for victims’ services at the time. This amendment springs from a view of the Association of Police and Crime Commissioners, and I am very grateful for its help.
Noble Lords will have seen that the duty in relation to victim support services to collaborate and the strategic guidance under Clauses 12, 13 and 14 refers to police areas in England alone. The purpose of the amendment is to try to persuade the Government that the duty to collaborate should apply to elected policing bodies across England and Wales while, of course, respecting Welsh devolved powers.
The Association of Police and Crime Commissioners, which of course represents all police and crime commissioners across England and Wales, is enthusiastic and welcomes the Bill—I should say that to start with. However, it thinks that there is a problem in that, as the clause is drafted now, it could make a real difference to the effectiveness of Welsh police and crime commissioners, and more particularly to how they are perceived in both Wales and England. I want to make it clear that I am advised that the four Welsh police and crime commissioners who would be most directly affected by the amendment are all strongly in favour of it. I emphasise to the Committee that they are not all from one political party; politics does not come into this particular issue.
All noble Lords will of course appreciate that policing in Wales is a reserved power of the UK Government, so that these four Welsh police and crime commissioners operate under the same rules and regulations as their colleagues in England. Nevertheless, of course, they operate entirely within the boundaries of the principality. Therefore, to be effective they have to take fully into account the ways in which health, local government, highways, housing and their local public services are organised and delivered in Wales, notwithstanding the fact that they themselves are not under the control of the Welsh Government.
The four Welsh police and crime commissioners have expressed concerns about the Bill, hence this amendment. Their concerns are that while the Bill imposes on their English colleagues a duty to collaborate in the exercise of victim support services, it does not impose the same duty on them. The Welsh police and crime commissioners believe that this could make a significant difference to their effectiveness in this field and, more significantly, lead to a perception that they are less committed to dealing with such issues as violence against women and girls than are their English colleagues—and nothing could be further from the truth.
Equally, and this is perhaps a significant point, although Welsh police and crime commissioners engage enthusiastically at present with the partnerships set out in the Welsh legislature, they are under no statutory obligation to do so. There are impending elections, and these could change collaborative approaches without such a duty as this amendment seeks to safeguard continued partnership engagement.
It is for this reason that the amendment has been drafted. It recognises the special circumstances under which the four Welsh PCCs operate, but at the same time makes it clear that Welsh police and crime commissioners are no less determined to support victims of crime than are their English colleagues, and no less determined to collaborate with other agencies in Wales to achieve this object.
Neither I nor, with great respect to him, the noble Lord, Lord Russell, are experts in the details of the Government of Wales Act 2006, or the legislation, regulations and administrative arrangements that flow from it. If the Government, in further discussion with the Welsh Government, have concerns with the drafting of the amendment and suggestions for improving it, we would be very happy to welcome them. We are concerned here with the principle of the amendment: to ensure that the obligation that the Bill imposes on police and crime commissioners in England to collaborate in the exercise of their functions to support the victims of crime is extended to the four police and crime commissioners in Wales, whose powers are in every other way identical to those of their English colleagues. On that basis, I look forward to hearing the Minister’s response.
Baroness Brinton (LD)
My Lords, I want to pick up the last point of the noble Lord, Lord Bach. The duty to collaborate is extremely important, and both his amendment and that of the noble Lord, Lord Hampton, are certainly worthy of consideration. The lighthouse model that has been referred to is extremely impressive. I have also seen, in times past, really effective local working, particularly through services for child victims. However, it would be good if this were strengthened to ensure that part of the victim’s journey, regardless of their age, was helped.
It is a convention in this House that, if we are not quite sure where to go next, we ask for reports. However, we have tabled a lot of amendments about a lot of detail because we are concerned about the practice, and this is one instance where reports actually become vital. They are vital not just to hold the Government to account in Parliament but to ensure that the Government are forced to reflect on how the systems are working, because if this continues for yet another decade, we will be going through another Bill in 10 years’ time saying the same things. A report might help focus the mind when the systems are not working.
I support the noble Baroness, Lady Lister, in her comments about the provision of DA support and the real crisis times that victims face, with their lives in complete upheaval. I agree particularly with her points about economic coercive control, which is really worrying and something I have heard more and more about. I have been working with one victim for about 15 years; it took her 10 years to clear the debts that she was left with as a result of the coercive control of her partner, who completely disappeared. She is on the minimum wage, and it has been very difficult and has affected her life for that long.
I signed Amendments 54 and 81, which the noble Lord, Lord Russell, outlined in his speech, on including stalking in the list of relevant victim support services and placing a duty on the Secretary of State to assess a number of advocates, including stalking advocates. I go back to the issue we discussed in the last group: how important it is to have a victim journey number.
In the case where my colleagues and I were victims, our first barrier was finding one crime number. The man who stalked me pleaded guilty to 67 crimes and asked for another 100-and-something to be taken into account. Not all of the crimes happened to me; some of them happened to council colleagues and supporters of my party, and some happened to people who were, unfortunately, parked on the driveways of supporters of my party. Each time we rang the police, we were given a different number. As the PPC, I started a spreadsheet, and when it got to 30 I went back to the police and said, “This is impossible”. We did not know who it was—we had suspicions—but we knew that it was a very particular campaign.
At that point, about six months in or perhaps slightly more than that, we had the one funny incident of a two and a half year-experience, where, every week in the Watford Observer, there was a letter being very unpleasant about me and occasionally about my council colleagues. The letters got more vitriolic, but each was signed by somebody else. I went with a colleague to see the editor of the newspaper, and he said, “Politics is a tough old game, and you just have to accept that, if people want to write in and tell me that you are poor on this topic and not a very nice woman given what you do with your children, I will print it”. I asked him if I could read out the surnames of the people who had written in over the last few weeks: they were Freeman, Hardy, Willis, Debenham and Freebody. At that point, he realised he was being had, but we had been watching the letters go in for four months at that stage. The objective was to destroy my campaign—that is what the judge said when the man was sentenced. But that was the only funny part.
The other thing about stalkers is that, when they do not achieve what they want, their behaviour becomes more drastic; the Suzy Lamplugh Trust will tell you that this is well-known. The man then started printing completely fictitious letters about one of my council colleagues who lived just round the corner from me and literally scattering them along the road in his car. At that point, we thought we knew who he was, but we could not get the police to take it seriously. The letter said that my council colleague—who was married to his one and only wife—had deserted his previous wife and was not paying her maintenance and that his daughter was distressed; funnily enough, my colleague was up for election that year. That was a step up, and then it went a step further up during the 2005 general election, when all the poster boards were pulled down. My husband, who happened to be our poster board supremo, kept creating higher and higher stakes for the poster boards—we really made it into an artform. When one got to three times the normal height, the man scratched the car on the driveway of the house. Thereafter, it moved on to petty crime, but it was not stalking because it was petty crime against other individuals. That is why we need one crime number for this sort of thing, but also recognition that, although there is a core victim, there are other victims because of the nature of stalking.
What really freaked them out was when he started to put knives through the tyres of cars on driveways at night and spray epithets on the homes of councillors. My husband had installed 10 closed circuit cameras on the most likely places by then. The police provided one on our house, and our house was never targeted—I cannot imagine why. We were able to use that evidence, along with a picture of him where you could see that he was wearing a watch on his right arm which matched the one seen during the spray-painting. At that point—this was the worst day—the police said that a forensic psychiatrist had come in as they were worried about the behaviour, and it was clear that he was going to go for people with the knife next, and it was a 10-inch knife.
At that point, we were well over two years in. That is why, 15 years on from his sentencing, when the noble Lord, Lord Russell, spoke about knives the other day, my blood ran cold. I was remembering when the police came to our house and upped security. Stalking can be very dangerous. I was lucky; we got it taken seriously and he pleaded guilty when caught, but there are other cases.
Lord Ponsonby of Shulbrede (Lab)
My Lords, to repeat what I said earlier, I dealt with a couple of stalking cases relatively recently. Interestingly, they were both of women stalking men. It is a very difficult scenario and can get extremely complex when you are assessing behaviour over sometimes protracted lengths of time. I absolutely recognise the trauma that it inflicts on the victims.
I will open by looking through the other end of the telescope. As a magistrate, for every sentence I give, I put in place a victim surcharge. That money, which at the moment is 40% of any fine I put in place, goes into a victim and witness general fund. Can the Minister say where that money goes? Is it enough to fund all the victims’ services that we are talking about? Does it need topping up for the other victims’ services that are provided? Interestingly, when the fund was first introduced in 2007, it was set at about 10% of fines. Now it is 40%, so there has been a big increase in the amount of money going into that fund over the last few years.
In general, this group of amendments is about the funding and provision of victim support services. The theme from all noble Lords has been sustainability, predictability and consistency of funding. There are any number of organisations and charities supporting victims, sometimes on a small scale and sometimes on a large, integrated scale. I know from my experience of the Minerva project in Hammersmith in London that it is part of a wider network of support for women going through the criminal justice process, sometimes as victims and sometimes as perpetrators. There is a wide network of services, but it is uneven across the country and funded in different ways. They all aspire to sustainability of funding, as we have heard from all noble Lords, so that they can make best use of the available funding.
My noble friend Lady Lister spoke about economic coercive control in particular; I absolutely agree with the points she made. Nicole Jacobs, the domestic abuse commissioner, has been campaigning on this for many years. I am very glad that it is getting more recognition as an offence that should be brought to court if appropriate.
The noble Lord, Lord Russell, spoke earlier about the “child house” model. I went on that visit to the Lighthouse project with him. The general theme here is the integration of services to meet the particular needs of victims. I have some peripheral experience of that, but my most direct and relevant experience is not of victims but of young men coming out of jail under a previous funding model by the Conservative Government—the troubled families programme—funded in three boroughs in south-west London. There was an integrated approach to supporting and providing services to those young men as they came out of prison, across the CPS, housing, health and education, and more widely, so that they did not reoffend. I sat on the board for a number of years. It was very interesting that, when the money dried up, the co-operative approach dried up as well. That was very regrettable, but it taught me the lesson that the co-operative approach works best when there is a focus and an impetus through funding to make those co-operative services work effectively.
Everybody aspires to co-operative funding. Of course it is a good thing, but there needs to be either a direct instruction or a direct pot of money for people to co-operate as they should. So often, co-operation is difficult and the lack of it makes it easier for individual organisations to continue to work along their separate tramlines. I hope the Minister will say something about how to use that money imaginatively and sustainably so that co-operation across services can be embedded into victim support.
The Deputy Leader of the House (Earl Howe) (Con)
My Lords, this group of amendments brings together a very important set of issues, as we have heard. I am most grateful to the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord Russell of Liverpool, for their amendments on the funding and provision of victim support services, where I will start.
The right reverend Prelate’s Amendment 56 seeks to require the Secretary of State to have regard to the needs assessments identified under the duty to collaborate and use these to ensure that local commissioners effectively commission relevant support services. I hope I can be helpful in providing some reassurance on that topic. Under the duty to collaborate, local commissioners must have regard to their joint needs assessments when producing their local strategies. The strategies should include evidence of how relevant authorities have carried out the needs assessments, as well as how the assessments have informed their commissioning decisions. A ministerially led national oversight forum will be set up to scrutinise the local strategies; that is how we can join up the process. For that reason, I respectfully suggest that the amendment the right reverend Prelate has tabled is unnecessary.
The oversight forum will have the relevant insights and information and undertake appropriate scrutiny of the published strategies to assess whether and how relevant support services are commissioned in individual local areas. The insights will also be used to inform national funding decisions made through the spending review process; again, that is another element in the join-up process. That is the right approach to setting government budgets. Looking at everything in the round, the measures will achieve the objective the right reverend Prelate’s amendment also seeks to achieve.
Amendments 58, 59, 60 and 62 would require the Secretary of State to make a statement every three years, in response to the strategies published under the duty to collaborate, on support for victims of domestic abuse, sexual violence and stalking. They would also require the Secretary of State to ensure that commissioners, under the duty, have sufficient multi-year funding, and the establishment of a cross-government by-and-for funding stream. The key point here is surely transparency. As I indicated a moment ago, the local strategies under the duty to collaborate will be published and will provide valuable insights into the levels of service certain victims are receiving in each local area. Therefore, additional reporting in a statement made by the Secretary of State would be largely duplicative.
I am, however, in full agreement that the funding of victim support services is crucial to enable victims of crime to cope and build resilience to move forward with their lives. That is why we have already committed to quadruple funding for victims’ services by 2024-25, up from £41 million in 2009-10. This includes funding that the Ministry of Justice provides to police and crime commissioners, specifically ring-fenced for domestic abuse and sexual violence services.
There are two additional points I can make on this. The joint needs assessments will help local areas to make the best use of existing funding through the collaborative process. This will lead, I suggest, to a more efficient use of money. Following on from that, the information that flows from it will strengthen the evidence base used to inform funding decisions made through the spending review process. The Government have responded to intelligence from local commissioners previously. For example, PCCs received a £6 million boost in funding per annum over the spending review period for community-based services supporting victims of domestic abuse and sexual violence.
The noble Lord, Lord Ponsonby, asked what happens to the money that goes into the general support fund for victims. The victim surcharge provides a contribution towards MoJ-funded victim and witness support services. It does not cover the full cost of victim support services funded by the MoJ, but it makes a contribution. Income from the surcharge is then topped up from departmental budgets.
On multi-year funding, for which my noble friend Lady Newlove so powerfully advocated, the Government have already committed to it where possible and appropriate. The victims funding strategy set out an expectation for all commissioners to pass multi-year commitments on to their providers.
Baroness Lister of Burtersett (Lab)
I am sorry to interrupt, and I realise that the Minister has had to take over the brief at short notice. He paints a rather positive picture whereby the Government are doing all these wonderful things. Why, therefore, is the domestic abuse commissioner so concerned about the patchy provision of services in general, particularly by-and-for services?
Earl Howe (Con)
That is clearly a concern, and we must listen to the domestic abuse commissioner very carefully. I have tried to set out how we have responded within existing powers and structures to improve funding across the piece. If one is not careful, there will be too much micromanagement from the centre. I always resist that, and we know that it can lead to perverse results in all sorts of contexts. I would be very happy to talk further to the noble Baroness about the domestic abuse commissioner’s concerns in this context after we finish the debate, as I am sure my noble and learned friend Lord Bellamy would also be glad to do.
Moreover, as part of the joint needs assessment in the duty, commissioners will be required to have regard to the particular needs of victims with protected characteristics. This could result in the commissioning of by-and-for services.
I am grateful to the noble Lord, Lord Russell of Liverpool, for submitting Amendment 64, which would introduce a statutory requirement for certain commissioners and sector stakeholders to be consulted before issuing statutory guidance on the duty to collaborate. The Bill already requires the Secretary of State to consult such persons as they consider appropriate before issuing the guidance, without specifying particular bodies or roles. This is because of the wide-ranging nature of the duty and the key stakeholders involved—a list of relevant consultees could be extensive and change over time. Naturally, the department would continue to engage thoroughly with the various key stakeholders as the guidance develops. Therefore, we do not need a legislative requirement specifying who exactly that should be to enable them to do so.
Lord Russell of Liverpool (CB)
I thank the Minister very much for what he said. Does he accept that the officeholder, who is perhaps in the best position of all to guide His Majesty’s Government towards the most effective organisations with which they should be co-operating and talking, is the Victims’ Commissioner himself or herself? The Victims’ Commissioner is at the centre of an information web and, frankly, is likely to be better informed than His Majesty’s Government.
I understand the virtues of police and crime commissioners and, in principle, would agree with the Minister that micromanagement can be a very bad thing. However, if I were a victim, I would be in favour of slightly more micromanagement to make sure that, wherever I lived in England and Wales, the type of service I got was more uniform, consistent and joined up. In evidence, I cite a glossy 2022 document from the Association of Police and Crime Commissioners celebrating
“10 years of PCCs Making a Difference”.
It lays out no fewer than 39 different schemes across England and Wales that different PCCs have put in place for
“advocating for victims; developing innovative services for victims; and using multi-year funding to fund quality services”.
While that is a wonderful idea—let a thousand flowers bloom—what the system is currently sorely lacking is any comprehensive follow-up and measurement to see how effectively all those initiatives work. Do any of them still exist? Have they been developed any further? If some of them are working particularly well, is there an effective mechanism to ensure that other police and crime commissioners are taking on those best practices and applying them in their areas?
Earl Howe (Con)
First, I take the noble Lord’s point about the Victims’ Commissioner; I am happy to feed that into the department. Secondly, I come back to the point I made earlier about building transparency into the process. The local strategies will be published and then scrutinised by the oversight forum, which will be ministerially led, so there will be a way for the commissioning practices to be exposed to daylight at the local level. I suggest that that could reveal the kind of disparities that the noble Lord referred to; that would be very helpful, not only as regards funding but for sharing best practice. He raised a very important point, but I like to believe that we have thought about it and are addressing it.
I turn to the issue of stalking. I do not think that any of us could fail to be impressed by the horrific examples given by the noble Baroness, Lady Brinton. I listened also with care to the noble Lords, Lord Russell of Liverpool and Lord Ponsonby, on this issue. Amendment 54 seeks the inclusion of support services for victims of stalking under the duty to collaborate. Stalking—which I am the first to agree is a tremendously important and emotive issue—can already be covered by the duty. The accompanying statutory guidance will make it clear that stalking is one of a number of crime types that sits across the scope of domestic abuse, serious violence and sexual abuse, and needs should be assessed accordingly. I fully appreciate the concerns raised by stakeholders that, all too often, stalking is considered only as a form of domestic abuse, and support is provided largely on that basis. The definition of serious violence under this duty is deliberately broad to allow commissioners to determine what constitutes serious violence in their local area, which can include stalking as well, including where it is not perpetrated by an intimate partner.
It is important to retain legislative flexibility in this area so that the duty can evolve, if it needs to, just as the overarching offences of serious violence, sexual abuse and domestic abuse evolve. A prescriptive approach, as proposed by the amendment, would restrict our ability to be flexible, but we will continue to engage with commissioners and stakeholders on the guidance as it develops, and with noble Lords who are willing to lend their expertise. I am sure that my noble and learned friend Lord Bellamy would be glad to do that. I can commit him in his absence to meet the noble Baroness, Lady Brinton, and the noble Lord, Lord Russell, if they would find that helpful.
Baroness Brinton (LD)
I apologise for interrupting the Minister. I am very grateful for his response; I am sure that the noble and learned Lord, Lord Bellamy, would have responded in the same way. What is happening in practice and on the ground with front-line services—in the police and the criminal justice system—does not reflect what the Minister just said at the Dispatch Box. The problem over the last few years has been trying to make that happen, which is why we believe that stalking needs to be added to the duty. Can he reassure me, in other ways, on how the actual practice will change? Therein lies the problem.
Earl Howe (Con)
Indeed. We come back to the earlier amendment tabled by the noble Lord, Lord Bach, on how one should best join up individual reports of crime, abuse or whatever else so that the police and others can obtain a rounded picture of what is going on. I fully take the point about changing practice. This is perhaps a subject for a longer discussion than today’s debate. I do not pretend to be expert on operational practices at the local level, so it would be wrong of me to chance my arm. The point is well made, and I am very happy to ensure that we have a separate discussion about it before Report.
Lord Russell of Liverpool (CB)
Can I make one additional point? The Minister just referred to allowing police and crime commissioners—and, I assume, chief constables—to decide what type of criminality should be regarded as serious or violent. One of the issues with the complexity of stalking is that, in many cases, stalking does not start from a violent position. Stalking, in many cases, can evolve, sometimes over a period of years, in a series of interactions by the predator, in such a way that, unless you know what you are dealing with, it is very hard to understand that there is a pattern developing or what type of stalking it is. We will come to the issue of training and advocates in the next group, but all the evidence produced by using the police force in Cheshire as a test case—to drive through the organisation clear understanding, training, lines of communication and technology to put this all together—has been transformative for the victims.
This is a victims’ Bill. Often, when I hear the Front Bench talking about the response to some amendments, I hear the voice of—understandably—the Government looking down on the victims. I very rarely get a sense of the Government articulating and espousing the rights of the victims themselves as they look up into the system, which they feel is failing them at the moment.
Earl Howe (Con)
I think we come back to the guidance on this—to get the guidance right and ensure that the focus on victims’ needs is there, and on teasing out what we mean when we refer to certain terms. Again, the process of formulating the guidance is not by any means complete. I am sure the whole debate that we have had today will be extremely helpful for officials in the work that they are doing on that front.
I am also grateful for the noble Lord, Lord Russell, for his Amendment 81, which seeks to improve the process for assessing the numbers of ISVAs, IDVAs, stalking advocates and other specialist support services in England and Wales. I reassure him that I fully recognise the importance of understanding both provision and demand so that resources are targeted, as they should be, and the right victims’ services are commissioned. I am confident, in the light of advice that I have received, that measures are already in place to appropriately assess support provision through existing reporting measures, and I believe that a central annual report risks duplicating work.
I also point to the Bill’s duty to collaborate, which will enhance transparency around what local services are being funded by requiring the relevant authorities to publish local strategies, which is the point I made a little earlier. These strategies will be informed by joint needs assessments that will assess the needs of victims of domestic abuse, sexual abuse and serious violence—which can include stalking—and consider whether and how those needs are being met. This will encourage joint local efforts to rectify data gaps, and drive evidence-informed decisions for prioritising funding to address local needs. The noble Lord suggested that too often he was hearing from the Front Bench a kind of government top-down view of life. What we have tried to emphasise through these measures is our desire to see local needs defined, and those needs—the needs assessment—being the bedrock for any service provision that commissioners decide upon. So we are encouraging, I hope, a victim-focused process.
Requiring separate reporting will, I fear, duplicate the activity that I have outlined and put an additional burden on victim support services to share information, which would inevitably take resources away from direct front-line provision for victims. However, I know that my noble and learned friend Lord Bellamy is, again, open to considering what could be included in the supporting guidance for the duty to help ensure better understanding of provision.
I hope that what I have set out demonstrates that we already have the necessary mechanisms for assessing need and provision for victim services. So I hope that the noble Lord and, indeed, the right reverend Prelate the Bishop of Manchester will not feel compelled to move their amendments on this topic when they are reached.
Amendment 53 from the noble Lord, Lord Hampton, would include the “child house” model in the duty to collaborate. I listened very carefully to what he had to say about that. It is right that we continue to innovate and trial different ways to support victims, such as the “child house” model, exemplified in areas such as Camden through the pilot programme. The duty to collaborate aims to create a strategic and co-ordinated approach to commissioning services, ensuring that victims—including, notably, children—receive the necessary support. I assure the noble Lord that the services which the “child house” model co-ordinates will already be caught by the duty to collaborate where they provide support to child victims of domestic abuse, sexual abuse and serious violence. Moreover, the statutory guidance for the duty will suggest that local commissioners refer to Child House: Local Partnerships Guidance when considering how good commissioning practices can help address the needs of children. I hope that is helpful, because I do not think that we should be specifying operational models in primary legislation. I hope that the noble Lord will feel able to withdraw that amendment.
Turning finally to Amendment 65 in the name of the noble Lord, Lord Bach, I am grateful to him for raising the issue which it covers. The amendment would ensure that the duty to collaborate will apply to elected policing bodies across England and Wales, while respecting Welsh devolved powers. There is already similar legislation in Wales under the Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015, which I will refer to as the 2015 Act. The 2015 Act places a duty on Welsh local authorities and local health boards to jointly prepare, publish and, from time to time, review a local strategy setting out how they will help improve local arrangements and support for victims of these crime types.
The noble Lord, Lord Bach, is right to state that elected policing bodies in Wales are not required to collaborate in this duty, but the statutory guidance states clearly that Welsh local authorities and health boards must invite PCCs to participate in their activities under the Act. Engagement between the Welsh Government and Welsh PCCs has shown that Welsh PCCs are active partners in the delivery of the Welsh Government’s 2015 Act strategy through the blueprint, which is the shared governance structure to support delivery of the strategy, and also through regional boards. As a result of ongoing engagement and collaboration with the Welsh Government, we have come to the collectively agreed position that we do not currently consider a duty on Welsh PCCs to be necessary, per the intention of the noble Lord’s amendment.
There is a subsidiary point on the drafting of the amendment, but I do not need to go into that, unless the noble Lord would like me to. However, I reassure him, because this is a significant issue, that we will continue to work with the Welsh Government on the implementation of the duty to collaborate and any interactions between this duty and that under the 2015 Act. On the basis of the points I have made, I hope the noble Lord will not feel it necessary to move the amendment when it is reached.
Lord Hampton (CB)
My Lords, I thank all noble Lords who took part in this extraordinarily wide-ranging debate, which seemed to come down to three strands. The first was collaboration and how local services, the police—any groups—can work together better. Secondly, we had powerful discussions again about stalking and how we can make that work much more efficient so that these ridiculous repetitions cannot go on; the noble Baroness, Lady Brinton, gave some extraordinarily good examples and a very amusing one I will take away. The third was how on earth it will all be funded, with some eye-watering numbers being talked about. The noble Lord, Lord Ponsonby of Shulbrede, asked the very interesting question about where the victims’ fund goes.
I hope that the noble and learned Lord, Lord Bellamy, is drinking a soothing hot lemon and honey somewhere, perhaps taking two aspirin and lying down, but I thank the noble Earl the Minister for another very collaborative series of answers, with lots of words of reassurance on the needs assessment, the forum being set up for national funding assessments, the duty to collaborate, talk of transparency—which is always good—and of exposing to daylight, about stalking being tremendously important, and what statutory guidance will make clear. A lot of points were made and I am afraid my pencil got worn down to the nub trying to write down the different funding strands pouring in that will be used, so I cannot get too technical on that.
There was talk of more efficient use of money and full agreement on funding victim support—quadrupling the funding of that. The victims’ surcharge is being topped up and multiyear funding is happening—the Government are committed to that—although the noble Baroness, Lady Lister, has concerns there as well. This genuinely sounds great, but partly we need to make the money work not harder but smarter, which I think is what we are all trying to do here. The proof is inevitably what will come out of the oven at the end of it all. With that, I beg leave to withdraw my Amendment 53.
Baroness Thornton
“(c) independent stalking advisors.”
Baroness Thornton (Lab)
My Lords, I will speak also to Amendment 69 in my name, and I have the support of the noble Baroness, Lady Brinton, whom I thank very much. The Government also have an amendment in this group, which I will comment on when we reach the end of the debate and I have heard what the noble Earl has to say about it.
We are in that part of the Bill that is concerned with the issue of stalking—indeed, in the group that we have just discussed I had my name to Amendments 54 and 81, alongside the noble Lord, Lord Russell. It is important to say that we are indebted to Laura Richards, the founder of Paladin, and the Suzy Lamplugh Trust, for their relentless work to have the vicious and pernicious crime of stalking recognised, acted on and integrated into the legal framework tackling violence against women and girls—and for us that includes this victims’ Bill.
I am aware that we have to ensure that stalking is dealt with across all the criminal justice legislation that we are dealing with, so that there is a read-across with MAPPA and the issues that we will be discussing later in the Bill, not just for this Bill but for the Criminal Justice Bill, which we know is coming down the track. Can the Minister assure the House of that legislative coherence? For too long we have been waiting for there to be legislative coherence that can be enforced for the crime of stalking—its recognition and dealing with it.
The context is that women, children and men are being failed and not protected. There is no compulsion on the police to automatically identify serial domestic abusers and stalkers, so they do not—of course they do not. So, for example, although the application of Clare’s law is not in the scope of the Bill, it is the lack of that application across all police forces which means that there are victims in the criminal justice system who need not have been there. This amendment seeks to address that issue of recognising the particular needs of victims of stalking.
We should recognise that a lot of work has been done on this over the years. These two amendments are quite simple. Independent stalking advocates should exist, and an independent stalking advocate means
“a person who provides a relevant service to individuals who are victims of criminal conduct which constitutes stalking”.
That means creating what are called ISACs in the Bill—independent stalking advocacy caseworkers.
Lord Russell of Liverpool (CB)
My Lords, I thank the noble Baroness, Lady Thornton, for speaking to these amendments.
We return to stalking; stalking is stalking us yet again, as I am afraid it will continue to do through time immemorial, and until and unless we really grab hold of this. The case for independent stalking advocates is fairly undeniable. One can scarcely imagine what it must feel like when you do not know where to turn, you do not really understand what is going on, and the people that you are turning to for help clearly do not really understand what is going on either. It must be a pretty horrendous state to be in, and the independent stalking advocate can and does make an enormous difference. They can undertake risk assessments and work with the different authorities to ensure that safety plans are put in place to protect victims—and, importantly, where children are involved, those around them—from further harm.
The research that has been done by the Suzy Lamplugh Trust indicates that: 77% of stalking victims are not able to access an independent stalking advocate; 69% could find no advocacy support of any kind whatever; only 4% access support from a non-specialist service; and only 15% of victims were referred to an independent stalking advocate by the police. So even the police themselves, in 85% of cases, failed to point the potential stalking victim in the direction of help.
The demand for such stalking advocates far exceeds current capacity. National stalking services supported a combined total of just under 12,500 stalking victims in 2021, and there were 1.5 million stalking victims in total. Noble Lords can do the maths; that is not a highly impressive percentage. In some parts of the country, there are effectively no local specialist supporting services whatever.
I mentioned earlier that I had the privilege of speaking with Gracie Spinks’s father, Richard Spinks, a couple of weeks ago. One of the extreme examples of the more than 40 reports that Gracie made to the police over an extensive period was a case when, after she had pointed out that she was again being threatened, the police undertook a search in the vicinity of where she lived, and they found a bag of weapons—knives, hammers and so on. What did they conclude from having found that cache of weapons? They told Gracie that they were probably theatre props. Clearly, the officers involved had undergone extensive training, but probably in how to supervise playgroups, rather than in helping victims of crime. That shows the gulf between the sort of support, help and advice that one might expect as a victim of stalking and what actually happens.
As we mentioned on earlier groupings, at the end of 2022 the Suzy Lamplugh Trust submitted a super-complaint against the police, outlining systemic issues such as those that we have talked about in previous groups. One of the recommendations was that the College of Policing
“mandate that all officers that deal with cases of stalking complete training by a specialist stalking training provider, in order to adequately identify, investigate and—
this is very important—
“risk assess cases of stalking”.
We referred earlier to the pilot that the Suzy Lamplugh Trust ran in Cheshire. I conclude by giving some quotes from the senior police officers involved in the study and what they observed happening through the results of this programme. One front-line officer said:
“It’s an injustice that in nearly half of all stalking cases unrelated to prior intimate relationships, victims must rely on luck for access to specialised, local advocacy—something that should be a non-negotiable right. Including Independent Stalking Advocates … in the Victims and Prisoners Bill isn’t just an option; it’s an imperative step towards rectifying this imbalance.”
Finally, the Police and Crime Commissioner for Cheshire said:
“Cheshire’s example shows that multi-agency working delivers results for victims and it benefits all agencies involved. The impact of ISAs”—
independent stalking advocates—
“here is clear to see, and I believe it would hugely enhance our collective ability to deliver justice for victims of stalking if they were to be included in the Bill”.
Baroness Newlove (Con)
My Lords, I support all the amendments. Listening to stories of stalking, we realise that it is just one simple word but it has a huge impact, including, sadly, loss of life. Before we start talking more about it, it is important to say that, as legislators in the House of Lords, we have done enough talking; we need now to put in legislation support to protect families who have lost loved ones through such horrendous acts.
I welcome government Amendment 74. Since my appointment as Victims’ Commissioner, my feet have not touched the ground. I have met over 20 different victim organisations to discuss this Bill. Many raised concerns about placing advocates, or advisers—whichever the Government want to choose—in the Bill. I know that the judiciary gets a bit twitchy when we mention advocates; for me, it is all about what the victim gets from this person who helps them tremendously. These concerns were set out very clearly by the VAWG sector in particular. I hope that Amendment 74 will alleviate concerns when the Government come to explain it. It provides the flexibility to include as many or as few advocates as they see fit, working, I hope, in close collaboration with the relevant stakeholders in the victims sector. However, I would welcome an assurance from the Minister that the Government will consult extensively with all stakeholder groups before finalising the guidance.
I have also received a briefing from the Suzy Lamplugh Trust. I feel that we are on a carousel now—none more so than the noble Baroness, Lady Brinton, who has worked tirelessly, having been a victim of stalking herself.
I agree about the collaboration in Clause 12, because it is extremely important to ensure that we have multi-agency working. I also agree on mandatory training for police; that goes without saying. I work with trainee police students to ensure that they understand the victim’s journey, but, again, it is about breaking down the culture.
I have lots of briefing here, and I would like to thank many of the organisations. Laura Richards, who I work closely with, has given me tons of briefing, because she has worked in this area for so long. She must feel like a parrot, but she does it so elegantly. I will pull out bits from the briefing that people really need to understand.
Stalkers do not play by the rules. Restraining orders and other pieces of paper do not protect the victims. There is still no stalkers register, which would mean the perpetrator’s history would have to be checked. Sadly, though we still hear about Clare’s law, it has not been put into practice. Yesterday, I heard a victim who was desperate for Clare’s law, but the police did nothing. Even as we speak, I am still helping and supporting somebody.
My friend the noble Lord, Lord Russell—not the Earl—emphasised how tragic the murder of Gracie Spinks was. Similarly, when I was working on the Domestic Abuse Bill, I had the honour of talking about Georgia’s story. She was 14 years old, and watched her mother being murdered. I will never forget that.
For me, the solution is amendments to prevent and protect, saving lives and saving money. The same tactics must be applied to serial and dangerous domestic violence perpetrators and stalkers as to organised criminals and sex offenders. That would cut off opportunities for them to cause harm, and ensure that they faced the consequences of their actions. As we discussed in the context of anti-social behaviour, more and more the police report such actions as individual crimes. They do not join the dots, or “flag and tag” serial high-risk perpetrators. Instead, they focus on the victims. The victims do not know what happens on any other crime, so they feel that they are constantly going back and back.
Stalking is not like having a broken leg, where people can see it; it is like having a chronic invisible illness. Because people cannot see anything they think everything is okay—again and again, it is all down to the victim.
I finish with a recommendation from Laura Richards, who recommends a consistent national and collaborative multi-agency approach, led by statutory agencies, with specialist domestic abuse and stalking professionals round problem-solving tables. That would save lives and money. It would not be a talking shop; they would know what they are doing and would be professional, and they would make better policies.
In this Chamber, we are all so passionate about this, but we really have to do something to protect victims of stalking. We cannot keep doing the talking and then reading in the media about these horrific offenders. Even this weekend, we have more victims, because the police and the agencies are not joining the dots. I am sick and tired of inquiries and “lessons learned”. This is about lessons learned now, to protect the victims of stalking and give them the advocates that they rightly deserve and must have in the future.
Baroness Brinton (LD)
My Lords, I signed Amendments 67 and 69, tabled by the noble Baroness, Lady Thornton. She was right to talk about a strategic perspective over the whole of the legislation coming through from both the Ministry of Justice and the Home Office. Once again, the debate we are having about stalking advisers is because other parts of the system are not working.
I am grateful to the noble and learned Lord, Lord Bellamy, for laying Amendment 74. However, it is not specific to stalking, and talks about the importance of having a range of advisers. I do not disagree with that at all, but, for reasons I shall go into when I say more about why stalking advisers need to be visible in the Bill, there are very particular issues relating to stalking that mean that we must ensure that people get the best support they can.
I also thank the Suzy Lamplugh Trust and Laura Richards, not just for their briefing but for the phenomenal work they do every single day. It is extraordinarily difficult work and, as we have heard from the noble Lord, Lord Russell, it is only a drop in the ocean given the number of victims of stalking now. In an age when people can use mobile phones and apps, stalking is becoming all the more prevalent.
The noble Baroness, Lady Thornton, cited the benefits of an independent stalking adviser. From my perspective, most victims of stalking arrive at the beginning of a journey through the criminal justice system knowing nothing about it, let alone about any stalking experience other than theirs at that point—which may not be the last point of the crime of stalking against them. We need training for police officers, community officers, call centre staff and those in the education system to be able to recognise it and know when they need to get help.
Baroness Newlove (Con)
There is an important point about parole. I know that parole is in the Bill later, but I cannot wait. What people do not understand is that if there are exclusion zones, the offender knows where you are yet the victim does not know where they are because the victim is not allowed. We need to protect victims even more when the stalker comes out because they will carry on, and the exclusion zone gives them an idea, even though it is there to protect the victim.
Baroness Brinton (LD)
I am very grateful to the noble Baroness for that very helpful intervention.
At the end of the debate on the previous group, I asked the Minister how we can get into the culture, focusing on the things that need to be looked at in stalking cases. Stalking advisers would be key to that. They would not just support the victim but know and understand the local people in their system and the criminal justice system; they would talk to them and ask them to look out for things. I hope the Minister can give a positive response. From our Benches, we support these amendments.
Baroness Meacher (CB)
My Lords, I will speak extremely briefly, because others have spoken at great length, to support very strongly Amendments 67 and 69 and to applaud the noble Baronesses, Lady Thornton and Lady Brinton, and the noble Lord, Lord Russell, for seeking to ensure that the Secretary of State provides guidance for stalking advocates along with guidance for domestic abuse and sexual violence advisers.
As we know, stalking all too often ultimately leads on to criminal violence against women. An important measure ultimately preventing violent crime against women is to provide this support and advice for stalking advocates. It is far better than waiting for violence to occur before intervening. These are much more important amendments than they might appear.
Lord Roborough (Con)
My Lords, government Amendment 74 has been tabled to place a duty on the Secretary of State to issue guidance about victim support roles specified in regulations and to give the Secretary of State a power to make regulations that specify those roles. This replaces the current Clause 15, which specifies that guidance must be issued about independent sexual violence advisers and independent domestic violence advisers.
Through the Bill’s passage to date, we have carefully listened to concerns that naming particular roles in the Bill could be misinterpreted by funders as the Government prioritising these roles above others. We remain clear that ISVAs and IDVAs are only two roles within a rich and diverse support sector, meeting a range of victim needs, and that the right mechanisms are in place to ensure that funding for services is determined on the basis of local need for a resilient and cost-effective support offer. But we are conscious that the debate about naming certain roles in the Bill risked overshadowing the purpose of the clause, which is simply about improving a consistency of certain roles. While we know that this is not an issue or intervention wanted or needed for all support roles, we have also listened to arguments put forward that there are other support roles that might benefit from the improved consistency provided by national statutory guidance.
Therefore, this amendment avoids naming any victim support roles in the Bill. It instead provides the more flexible mechanism afforded by regulations to set out the relevant roles for which guidance must be issued, for use now and in the future. We intend to still use this only in cases where consistency of service provision is of sufficient concern to warrant national statutory guidance. This of course remains the case for ISVAs and IDVAs.
I am pleased to announce today that following constructive debate and engagement, the Government agree that such guidance is warranted for independent stalking advocates. They do vital work to support victims of these terrible crimes, as highlighted in the coroner’s report following the inquest into the tragic death of Gracie Spinks. Clear national guidance on the role of independent stalking advocates will be an important step in improving support for stalking victims. In response to my noble friend Lady Newlove, the Government can of course commit to consulting thoroughly with all stakeholders. We will require guidance to be issued on support services named in regulations. We will shortly publish draft regulations that will list independent domestic violence advisers, independent sexual violence advisers and independent stalking advocates. We have therefore heard the point on the value of ISAs and will require guidance to be issued.
I offer my thanks to the Victims’ Commissioner, my noble friend Lady Newlove, and the domestic abuse commissioner, Nicole Jacobs, for their engagement on this clause, to the National Stalking Consortium, convened so well by the Suzy Lamplugh Trust, and to the wider victim support sector, which is assisting the Government in developing the relevant guidance.
Turning to some of the points that have been raised in this helpful debate, I hope I can reassure the noble Baroness, Lady Thornton. The Criminal Justice Bill does not have any stalking-related measures, but stalking victims have further been supported by the following legislation since 2012. The Stalking Protection Act 2019 aimed to protect people from the risks associated with stalking. Stalking can fall within the scope of the Domestic Abuse Act 2021 where the perpetrator and victims are 16 or over and personally connected. With the Protection from Sex-based Harassment in Public Act 2023, if someone commits an offence under existing Section 4A of the Public Order Act 1986, and does so because of the victim’s sex, they are liable for a higher maximum penalty. Finally, the Online Safety Act 2023 names Section 2A and 4A offences as priority offences.
I turn to some of the points raised by the noble Lord, Lord Russell of Liverpool. The Government of course recognise the value of ISAs—and I have recognised it in this amendment today—and have provided additional funding to stalking charities to help support victims, including funding specifically for advocacy. The Home Office part-funds the National Stalking Helpline, run by the Suzy Lamplugh Trust, providing £160,000 annually between April 2022 and 2024.
Through the Government’s up-to £39 million domestic abuse and stalking perpetrator intervention funds, PCCs for Cambridgeshire and Peterborough, Cheshire, Kent, Sussex and the West Midlands are delivering interventions for perpetrators of stalking, and support for victims. An evaluation partner has been appointed so that we can develop an evidence base from this fund that works to protect and support victims. It is fair to say the Government can always do better, and we welcome a response to many of the points that have been raised and any dialogue between the department and interested parties.
In response to the noble Lord’s point about the Suzy Lamplugh Trust’s super-complaint to the police, we recognise the devastating impact stalking can have and expect the police to take reports seriously and to take swift action. We thank the trust for submitting this complaint—the Government will follow its progress with interest and have already provided relevant information about some of the issues to the investigating organisations.
To, I hope, reassure the noble Baroness, Lady Brinton, we have been engaging with stakeholders about the inclusion of ISAs throughout the passage of the Bill, and we are pleased to be able to confirm that we intend to specify in regulations that ISAs are included in the duty of the Secretary of State. As I mentioned earlier, our point is that these advocates are of equal status, and we do not want to create a hierarchy, so inclusion puts them on the same level as ISVAs and IDVAs.
On the points about information and how these offences are treated, stalking is an offence that often escalates over time—as we have heard earlier in this debate. That is why it is important to take preventative steps to protect victims of stalking at the earliest possible opportunity. In January 2020, the Home Office introduced stalking protection orders, which aim to address perpetrators’ behaviours before they become entrenched or escalate in severity. The Government have also awarded up to £39 million, as I mentioned, for the domestic abuse and stalking perpetrator intervention funds. Finally, victims can access support at any stage of their journey through the National Stalking Helpline, which is run by the Suzy Lamplugh Trust and funded by the Home Office.
As we are bringing forward this amendment, and intend to specify ISAs in regulations, I urge the noble Baroness, Lady Thornton, not to press her amendments requiring guidance to be issued for independent stalking advocates. I hope that this demonstrates that the Government are committed to ensuring that victims of these terrible crimes receive the right support.
Baroness Brinton (LD)
Before the Minister sits down, he said there is no need to add or specify independent stalking advisers because there is no other specific reference, but in Clause 15(1) there is a reference to “domestic violence advisors” and “sexual violence advisors”. That is the problem, because some advisers are named and, unfortunately, stalking advisers are not. If they are not in the Bill, they will not go down—right the way down to the front line—as people who need to be approached.
Lord Roborough (Con)
I thank the noble Baroness for her point. While we are clear that there should be no hierarchy of support, and we know that ISVAs, IDVAS and ISAs are most effective when part of a wider support network, I will take that point away and consult the Minister.
Baroness Thornton (Lab)
I thank the Minister for his comprehensive remarks and for his explanation about why Clause 15 is being replaced. I sought advice from the noble Baroness, Lady Newlove, and from other organisations which I knew had been in discussion with the Government. I am advised that the reason the Government have put forward their amendment is that they have met stakeholders and that the original plan to place ISVAs and IDVAs in the Bill was a concern that came from the violence against women and girls sector and was shared by the children’s sector and modern slavery and stalking charities. There was a concern about creating a hierarchy and, therefore, I understand the Government’s motivation for replacing Clause 15.
Lord Foulkes of Cumnock
“(c) older people’s independent domestic violence advisors;(d) older people’s independent sexual violence advisors.”
Lord Foulkes of Cumnock (Lab Co-op)
I must declare an interest, not because of my own age but because I used to work for Age Concern Scotland and am now proud to be a patron of the Hourglass Safer Ageing organisation, along with the noble Baronesses, Lady Gale, and Lady Ritchie, who both support this amendment. The amendment would ensure that police and crime commissioners included specialist
“older people’s independent domestic violence advisors”
and
“older people’s independent sexual violence advisors”
in their work.
There are currently PCC contracts for such OPIDVAs in Thames Valley, Sussex, Kent, and in five boroughs in London—Greenwich, Southwark, Bexley, Lambeth and Lewisham. There are similar domestic abuse support workers who specialise in supporting older victims in Sussex, Surrey, and Cambridgeshire and Peterborough, and another commissioner in Wokingham Borough Council. They are doing a good job, but clearly there are many parts of the country that do not have them, and I am suggesting that we should encourage them.
In areas where local PCCs have commissioned generic adviser services, their casework is often referred to the Hourglass Safer Ageing charity, which is a UK-wide charity supporting older victims, survivors of abuse and survivors of neglect, to provide the specialisms as a backbone service. Hourglass receives no additional funding or support to deliver what is, in many instances, very complex casework.
The challenges that older victim-survivors present include digital exclusion, dementia and increased vulnerability due to disability. As a result, generic domestic abuse services are often not appropriate for older victim-survivors. Older people often do not want to take up the time of other abuse services, which they deem to be for younger women escaping domestic violence, while the abuse of older people is just as harrowing as the victims often do not see themselves in that way. Sadly, the perpetrator is often a close family member—for example, where the abuse has been committed by the victim’s child or grandchild. As a result, victims are reluctant to report it or feel that it is a reflection on them as a parent or a grandparent if they do so. That abuse can be financial, as well as physical and in other forms.
When PCCs were given funding to commission IDVA and ISVA services in 2022, the Government said that specialist children’s services should be provided by each PCC, but older people also require specialist support when they experience abuse or neglect. PCCs should be required to make this support available. The Bill provides us with the opportunity for the Government to ensure that this happens.
The Minister, Edward Argar, has said that the Government will issue guidance to PCCs on tailoring support to meet victims’ needs. He also said that the duty to collaborate will require PCCs to work together to ensure that services support people with protected characteristics, including older people, so that they have the support they need. While this is encouraging, it falls short of ensuring that specialist support for older people will be available in every PCC area. I hope the Minister will take note of these amendments, consider them carefully and see what can be done to make that commitment stronger.
In 2018, Hourglass received 4,000 calls to its helpline, but this year it expects to receive more than 50,000 contacts from the ageing population, and the number of cases will increase rapidly. We need to ensure that there is specialist support and advocacy for older people everywhere. It is something that families are often reluctant to talk about and older people are reluctant to reveal, but it can cause great hardship and misery and ought to be dealt with by specialism. I hope consideration will be given to this amendment. I beg to move.
Baroness Fox of Buckley (Non-Afl)
My Lords, I will speak to my Amendment 72, which I am delighted is supported by the noble Lord, Lord Jackson of Peterborough. This was originally an amendment to Clause 15 relating to guidance for independent domestic violence and sexual violence advisers, but the Government have rather usurped that, as we have heard. However, the issues my amendment probes the Government on—specialist victim support for women, in my instance—are still pertinent. I listened to the debate on the previous two or three groups and refrained from speaking, but the issues we have been discussing could have been reflected in all the themes I am interested in looking at.
To state something absolutely obvious, but it is important to remind ourselves: certain crimes are predominantly aimed at women. Although it is true that anyone can suffer domestic abuse or be raped—I acknowledge that male victims may be underreported and I do not want to downplay that women can be perpetrators—all the evidence suggests that approximately 90% of victims of rape or domestic abuse are female. I will return to the reliability of data and whether we can trust it with an amendment in the next group.
My amendment probes whether the Government can ensure, via this Bill, that female victims of sexual and domestic violence have the option of female advocates, advisers and services, and that these victim advocates respect victims’ requests for access to women-only provision. This choice is no longer guaranteed, largely due to the turmoil and confusion caused by gender ideology and political rather than material definitions of what a woman is. This turmoil was vividly illustrated by an invaluable report published last week by the campaign group Sex Matters, entitled Women’s Services: A Sector Silenced. I will ensure that whichever Minister responds gets sent a copy of the report because it is a must-read. Will the Minister agree to meet with its authors? Its contents directly relate to the Bill’s important aim of improving service provision for victims.
The Sex Matters report reveals that the women’s service sector is mired in confusion as it grapples with the conflicts arising out of a move towards either trans-inclusive or so-called gender-neutral services, which are often forced on them by funders and commissioners, all at the expense of women victims’ choices. I will stress why this choice is crucial for victims of certain crimes. I have used the point about choice and options very carefully in my amendment. I quote JK Rowling explaining why she financially backed Beira’s Place, a single-sex rape crisis resource service in Scotland:
“As a survivor of sexual assault myself, I know how important it is that survivors have the option of women-centred and women-delivered care at such a vulnerable time”.
I testify to that from my own experience.
The Equality Act recognises the importance of offering such support as a choice and uses rape counselling as an example of a service where it is proportionate to discriminate—for example, by restricting counselling jobs to women. Despite that, even services that claim to be women-only are compromised by policies based on the belief that anyone who identifies as a woman—even those with male bodies—is a woman. To quote the head of operations of one charity that offers, it says, counselling, advocacy and group work for survivors of sexual violence and abuse in Sussex:
“We do not police gender and we do not define who is and is not a woman; we allow women to define this for themselves”.
I am afraid that such policies are hardly reassuring and create real quandaries for some victims and, indeed, service employees alike.
As we speak, a high-profile and important employment tribunal is taking place in Scotland, involving former staff support counsellor, Roz Adams, who is claiming constructive dismissal against the Edinburgh Rape Crisis Centre. In evidence, Ms Adams explained how she was told that revealing the biological sex of support workers to centre users was transphobic. The issue arose when a 60 year-old female survivor of sexual assault said she would feel uncomfortable talking to a man, but when she inquired about the sex of the centre’s volunteers, Edinburgh Rape Crisis Centre’s response was that it was inappropriate to disclose such information. Worse, her question led to her being sent an email saying that she was not a suitable user of the service—the wrong sort of victim, I assume. Surely it is essential that any advocacy or advice services should be honest with victims about something as basic as the sex of staff who will provide victim support.
Yet, to muddy the water further, consider this. When Edinburgh Rape Crisis Centre advertised a senior post a couple of years ago, the job blurb read “only women need apply”, citing the single-sex exemption in the Equality Act. All clear, noble Lords might think, and that would satisfy me. Or perhaps not, because the “only women need apply” job advert then added that as a diverse organisation, applications from trans women—that is, biological males—were especially welcome. Noble Lords may think, “That’s just Scotland: it’s all got a bit gender bonkers up there”, but these confusing trends are widespread throughout the UK. The domestic violence and sexual violence service sector is in turmoil. As the Sex Matters report reveals, there are serious consequences, such as women victims self-excluding and being reluctant to seek help because they do not want to risk being counselled by a man.
A story from Sussex Rape Crisis Centre illustrates the dilemma—it has been in the news recently. One service user, Sarah Summers, is suing Survivors’ Network for discrimination because it refused to provide a women-only peer support group. Sarah had joined a female-only group, which she found helpful and supportive as a victim, until a man who identified as a trans woman joined the group, making her feel uncomfortable and unable to be open about her past trauma. Sarah explains, in completely reasonable terms, that she knew:
“Some women are happy to be in that space, and obviously trans survivors have a need for that support. But single-sex spaces should be an option”.
Indeed, Survivors’ Network has such groups for trans, non-binary and intersex people.
Lord Jackson of Peterborough (Con)
My Lords, it is a pleasure to follow the noble Baroness, Lady Fox of Buckley, and to support her Amendment 72 to Clause 15. I do so as a man, because I am not embarrassed to say that the safety, health and welfare of women is not just a women’s issue. It is an issue for men and women, and anything that compromises that is an issue of public interest.
It seems to me, reading the amendment, it is pretty axiomatic that it is a good thing and I hope Ministers will look very favourably on it. The wider context we need to look at, though, is the whole issue of gender-critical views. Noble Lords will know that in June 2021 in the Forstater ruling, it was found that it was not an ignoble thing to have gender-critical views. The premise that they were not worthy of respect in a democratic society was repudiated by Mr Justice Choudhury in that ruling, which overturned an employment appeals tribunal.
I also draw your Lordships’ attention again to the excellent report that the noble Baroness referenced, from the author Matilda Gosling and the Sex Matters organisation. The ruling found specifically that gender-critical beliefs are now legally protected from discrimination and harassment in employment and specifically—the key words—in respect of service users. To further quote from that ruling,
“it is clear from Convention case law that … a person is free in a democratic society to hold any belief they wish, subject only to ‘some modest, objective minimum requirements’”.
So a lack of belief in transgenderism and a lack of belief that someone can change their biological sex are both protected by the Equality Act 2010, provided that there is a reasonable expression and manifestation of that belief.
So I believe that this amendment should be in primary legislation because there is a concern among many women in many of these organisations that do superb work—refuges, counselling and support services, and rape crisis centres—that further guidelines without statutory impact and force will not actually deliver the results they need and want. This is about clarity in the Bill, but, more fundamentally, it is about the agency and autonomy of women in the most difficult circumstances imaginable—women who are damaged, women who are angry, women who are vulnerable and women who have been mistreated, in particular by men but also by society as a whole. It is about their agency and autonomy, and this amendment makes that specific.
It is not about bigotry or discrimination in respect of trans people, or biological men who identify as women. It is not that at all; it is important to put that on the record. The report referenced earlier by the noble Baroness, Lady Fox, gives much food for thought in terms of some of the impacts of self-censorship and a feeling that people have to change their policies in order to protect themselves from, sometimes, the pernicious attacks of trans activists, and their representatives and supporters in, for instance, Stonewall. That may give rise to things such as poor mental health, safety risks, self-exclusion, a poorer quality of service delivered, discomfort and forced compliance. So it exacerbates the very reason they had to access these services. Therefore, it is not just an arcane technical issue; it is about real-life, vital and imperative issues for a small group of women impacted.
I put on record my admiration for those women who have stood up and been counted on the gender-critical side in the so-called culture wars. It has taken great courage for them so to do. They include Maya Forstater, Jo Phoenix, Allison Bailey and Rachel Meade.
The wider context of the report is that the Government need to be seen—I hope that the Minister is mindful of the strength of feeling over this—to be taking real action and cutting through the confusion. The report says, among other things, that the GRA and the Equality Act 2010 need to be explicit in protecting women and the concept of women as a sex, and allow for information sharing. There is clear guidance on gender recognition certificates in the GRA with organisations, and those organisations should leave the Stonewall champion scheme and review their own training.
The Equality and Human Rights Commission also needs to issue guidance and model policies for organisations in the women’s sector, and for organisations with statutory bodies subject to the victims’ code. There should also be clear guidance for charity regulators, specifically on charities that provide single-sex as opposed to mixed-sex services.
This is a popular policy. In recent polling, the public are broadly behind this amendment in making the value judgment that it is important to have single-sex services for women in the most vulnerable position. I hope that the Minister will look favourably on the amendment; it has broad support across the House, and I support my friend, the noble Baroness, Lady Fox of Buckley.
Baroness Brinton (LD)
My Lords, I am sorry that the noble Lord, Lord Wigley, was not here to move his amendment. Given the debate we had on the previous group, I think he would have made the point that we need specific guidance for other specialist services as well. I hope that the Minister will respond to that.
I was very taken with the point made by the noble Lord, Lord Foulkes, about older people. We assume that it is younger people who tend to be victims of domestic abuse, economic abuse and sexual violence, but that is not the case. Older people’s circumstances are often different, and they require more specialist advice. That does not mean that a person cannot be qualified to be a specialist adviser in two or three areas, but it means they have done the training and understand the differences. I am very mindful of that, and these Benches are supportive of it.
On the amendment spoken to by the noble Baroness, Lady Fox of Buckley, supported by the noble Lord, Lord Jackson of Peterborough, I am wondering how it would work. I think the noble Baroness is saying that trans women are incapable of understanding, helping or addressing trauma, yet trans women are already accessing women’s refuges because they have been victims of trauma.
Baroness Brinton (LD)
Let me develop this point first. The difficulty that I have is that the one place where a trans woman can feel safe if she has been assaulted by a man is a women’s refuge. I have looked and looked to see whether I can find evidence of trans women assaulting women in refuges, and I can find none. I cannot find any publicity, and in the current culture wars that the noble Baroness spoke of, it would be everywhere if that were the case. I hope that it does not happen. From talking to trans women, I know that they have frequently—more frequently than women, if you look at the ratio; it is a very small number of trans women—been assaulted and raped. Therefore, I would be very concerned about anything that removes their rights. I am worried that there is not a problem that needs to be solved. I say that with the greatest respect to the noble Baroness, Lady Fox, and the noble Lord, Lord Jackson.
Baroness Fox of Buckley (Non-Afl)
I only want to clarify. The example that I used, to be clear, concerned instances where there was provision for trans women but not all natal women wanted to share their trauma with trans women. I did not mention assault by trans people against anyone, because that is not what this is referring to. The women’s-only facility argument in relation to services for sex, sexual assault and violence and domestic abuse is quite straightforward; it is understood in the law that women can have only-women provision, but the use of the word “woman” is now so misunderstood and can be interpreted as including trans women that it gets very confusing. I am afraid that that means that the lack of choice is not for trans women but for natal women—women.
Baroness Brinton (LD)
With the greatest respect to the noble Baroness, Lady Fox, and the noble Lord, Lord Jackson, who said he felt that the entire House was behind this amendment, it is important for them to know that some people disagree with it. Although I understand where the noble Baroness is coming from, it does not help the issue inside our refuges. The most urgent thing is to help women, regardless of their natal birth, if they have been assaulted and raped and need somewhere safe to go.
Baroness Thornton (Lab)
My Lords, I congratulate my noble friend Lord Foulkes on his suite of amendments. I am not surprised that he has tabled them; he is quite right that older people need particular support and help as victims of violence. We can imagine why that might be the case. It feels like we should not really have to say it, but it is the case, and this is an important suite of amendments, which I hope the Minister will invite to be part of the wider discussion that we will have about how different groups can be supported as victims as we move forward. That goes without saying.
I say to the noble Baroness, Lady Fox, that I am confident that the arrangements to be put in place will comply with the Equality Act 2010.
Lord Roborough (Con)
I thank noble Lords for their contributions to this debate on two related amendments. The amendment of the noble Lord, Lord Foulkes of Cumnock, would require the Secretary of State to publish guidance about older people’s IDVAs and ISVAs. The Government recognise the vital support that older people’s advisers provide to older victims of these terrible crimes. The advisers offer invaluable emotional support, provide a focus on safety and help them navigate the criminal justice system.
As I have indicated in relation to the amendment on children’s ISVAs and IDVAs, the Government are open to considering the case for guidance for other types of roles, although my starting point is that guidance for these roles will be covered within the planned umbrella guidance for ISVAs and IDVAs. This will cover a range of specialisms, including the different considerations needed for older people.
I reassure noble Lords that we are continuing to draft guidance with the support of a working group made up of various representatives across the sector, including Hourglass, which does a fantastic job supporting and advocating for older victims of abuse, so that we get it right. The dedicated section on tailoring services to meet victims’ needs covers the particular needs that older victims may have.
I thank the noble Baroness, Lady Fox, for speaking to the amendment that seeks to require the IDVA and ISVA guidance to include provision about allowing victims to ask to be supported by an IDVA or ISVA of the sex of their choosing, and the Government would agree to a meeting with Sex Matters.
I reassure the noble Baroness that the Government have made it clear through the victims funding strategy that victims should be at the heart of every decision a commissioner or service provider makes. Service providers are best placed to tailor services to individual victims and decide the most appropriate person to support them. They will take into account the needs and preferences of the victim, the availability and capacity of staff, and staff members’ skills and experience, to ensure they can meet the victim’s needs.
This amendment seeks to require that the ISVA and IDVA guidance cover this topic. As there are a wide range of relevant issues that this guidance covers, we do not propose to list each issue in the Bill, but I can confirm that the draft guidance will have a dedicated section on tailoring services to meet victims’ needs. This includes setting out the different considerations for supporting both male and female victims, which may include considering the sex of their ISVA or IDVA.
The noble Baroness raised one particular circumstance, but there could be a number of reasons why a victim may wish to request a particular support worker—for example, language, age or cultural needs. The Bill is not the right place to set out these considerations, nor how a service should respond. Service providers are best placed to make those decisions and must also comply with the Equality Act 2010, as the noble Baroness pointed out, in the provision of all services that they operate. I hope this demonstrates that the Government are committed to ensuring that victims of these terrible crimes receive support, and I hope the noble Baroness will not move this amendment.
Lastly, Amendment 67A would require the Secretary of State to publish guidance on other relevant specialist support services. Such guidance would cover a wide range of services. It is not clear, without knowing which support roles this amendment is intended to cover, that such services need or would value government-issued guidance to support or improve the consistency of their service. Government Amendment 74, which amends Clause 15, provides a more flexible mechanism afforded by regulations to set up relevant victim support roles for which guidance must be issued.
I turn to a couple of the other points raised during this debate. The noble Baroness, Lady Fox, mentioned whether services should provide single-sex spaces for victims. The Government are committed to ensuring that victims get the right support at the right time and that that support is tailored according to needs. The Equality Act 2010 sets out that providers have the right to restrict use of spaces on the basis of sex where it is a proportionate means of achieving a legitimate aim.
In response to a point made by the noble Baroness, Lady Brinton, about guidance based on age, the draft guidance has a specific section on how IDVAs or ISVAs may respond to meet the needs of different types of victims, which includes examples of how they may tailor their support to meet the distinct needs of female and male victims. The guidance also highlights that some victims may prefer to be supported by a worker of their own sex or age and may prefer to access single-sex services where available.
Lord Jackson of Peterborough (Con)
I think it is rather early to be saying, as the Minister did, having not read the Sex Matters report, that delivery organisations are best placed to make their own policies. The report finds that they are trying to negotiate a maelstrom of difficulties, so for the Government to take a set view that the delivery organisations are best placed to do this, using the rationale of the Equality Act 2010, is not sufficient.
I should also say that I expected a less peremptory response from the Labour Front Bench to the very well-argued amendment.
Lord Roborough (Con)
I am afraid that the response to my noble friend is that the Government are absolutely adamant that service providers are the right people to make these decisions. They deal with a number of different concerns from victims and have to balance those against the resources available to their organisations.
Baroness Fox of Buckley (Non-Afl)
I know that noble Lords want to move on, but the key to what I was saying is that service provision has been compromised by political and ideological interventions. If anything, this undermines the very exemptions in the Equality Act. I am afraid that saying “It’s up to them”, when they are the problem, potentially, is not quite going to cut it.
Could the Minister at least take back to the department that we will be returning to this issue on Report? It is very important, and we need some clarification. Maybe it can come after the meeting with the Sex Matters report writers, but saying that the status quo prevails does not work in this instance.
Lord Roborough (Con)
I am very happy to take the noble Baroness’s comments back to the Minister and the Government, and to discuss them.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I particularly thank the noble Baroness, Lady Brinton, and my noble friend Lady Thornton for their kind, sympathetic words. I appreciate them and I know that Hourglass will too.
The Minister has been very helpful, saying that older people will be considered as a group and their special needs will be considered in the following discussions. That was a very helpful response and in light of it, I beg leave to withdraw my amendment.
Lord Roborough
“Guidance about specified victim support roles(1) The Secretary of State must issue guidance about specified victim support roles.(2) In this section—“specified” means specified in regulations made by the Secretary of State;“victim support role” means a role performed by individuals which involves the provision of support to victims of criminal conduct (where the support relates to that conduct).(3) A victim support role may be specified by reference to (among other matters)—(a) the circumstances in which the role is performed;(b) the type of support provided in connection with the role;(c) the type of criminal conduct in relation to which such support is provided.(4) Guidance under this section about a victim support role must include provision about—(a) the support provided in connection with the role;(b) training and qualifications for individuals who perform the role;(c) how individuals who perform the role, and other persons who have functions relating to victims or any aspect of the criminal justice system, work together.(5) 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 2010.(6) Any person who has functions of a public nature relating to victims, or any aspect of the criminal justice system, must have regard to guidance under this section where—(a) the person is exercising such a function, and(b) the guidance is relevant to the exercise of that function.(7) Subsection (6) does not apply to anything done by any person acting in a judicial capacity, or on the instructions of or on behalf of such a person.”Member's explanatory statement
This amendment requires the Secretary of State to issue guidance about victim support roles of types specified in regulations.
Baroness Brinton
insert the following new Clause—
“Mandatory training: violence against women and girls(1) The Secretary of State must by regulations require certain police officers and employees of the Crown Prosecution Service to receive training in respect of violence against women and girls.(2) Regulations under subsection (1) must—(a) make provision about the content of mandatory training, including training on the impact of trauma on victims of violence against women and girls; and(b) make provision about the persons for whom this training is mandatory.(3) 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.”Member's explanatory statement
This new Clause requires the Secretary of State to bring forward regulations to provide for mandatory training for certain persons in the criminal justice system to receive mandatory training in respect of violence against women and girls.
Baroness Brinton (LD)
My Lords, I can be fairly brief because we have covered the issue of mandatory training in other areas earlier today and on previous days in Committee. Obviously, one does not know prior to starting Committee how many vaguely similar amendments are likely to be laid. That does not, however, reduce the importance of mandatory training for police officers and employees of the Crown Prosecution Service specifically in respect of violence against women and girls.
The amendment asks for regulations to be formed and provision to be made about the persons for whom this training is mandatory, and then an SI to be drawn up, presented to Parliament and approved by a resolution of Parliament.
We have not talked much about girls; most of our discussions have been about grown-ups and women. There is a particular need to support younger girls if they have been the victims of domestic abuse or stalking. The Minister said earlier that that was not necessarily excluded from the broader debate, but their needs are particular. The way they are approached by the police, perhaps when they first report an incident, may need to be very different. I know the police are pretty well trained, but it is none the less important that we see that support. I suspect that, when we get to Report, a single global training amendment may be tabled, rather than lots of different ones.
My Amendment 104 asks the Secretary of State to lay before Parliament within six months of the Bill being passed a report on the impact of the UK’s reservation of Article 59 of the Istanbul convention. The noble Baroness, Lady Lister, referred earlier to the convention. It is a vital document, and it was very important that the UK signed it in 2012. It is a shame that it took 10 years for it to be ratified, but it is now.
However, the problem is that there are some reservations, and one of them is Article 59. The real issue is the Support for Migrant Victims Scheme. One of the things we are concerned about is a migrant victim not getting the benefits of the Istanbul convention when they are a victim of domestic abuse or trafficking. It would be really helpful if the Minister could outline the Government’s current position and whether they will report on it. I understand from the Government that it was already under review, pending the results of the evaluation of the Support for Migrant Victims Scheme. In summer 2022, the Government said that this decision is
“without prejudice to the substantive decisions which the government will make on the matters relating to article 59, in the light of the results and evaluation of the support for migrant victims scheme”.
So we are still waiting to hear what the issues are relating to it, and I hope that the Minister will give us a response. I know that elsewhere in this group, my noble friend Lord German might also touch on this issue, so I will leave him to do that; but the Istanbul convention is something that this Government have quoted themselves and believe is still important, and that should happen for anybody who ends up in this country.
Baroness Lister of Burtersett (Lab)
My Lords, I will speak also to Amendments 77 and 107 in my name, and in support of Amendment 80, to which I have added my name. I very much support Amendment 75, in the name of the noble Baroness, Lady Brinton, but believe it could be strengthened: first by specific reference to domestic abuse—in particular, to controlling or coercive behaviour, including economic abuse—and secondly by ensuring that such training is delivered by specialist providers in the violence against women and girls sector. I tabled my Amendments 76 and 77 on behalf of Surviving Economic Abuse—SEA—with which I worked closely on the Domestic Abuse Act and for whose help on the amendments I am grateful.
As an officer of the APPG on Domestic Abuse and Violence, I have been struck by how often the domestic abuse sector has referred to the need for “training” or “improved training” on domestic abuse—particularly coercive control, including economic abuse—for those working in the criminal justice system. According to SEA, 5.5 million women experienced economic abuse from a current or former partner in the previous 12 months. As I argued earlier, it causes significant hardship, damages mental and physical health and makes it harder for a survivor to leave the abuser, putting them and their children at increased risk of further harm or even being killed. It also often continues long after separation, yet for those who build up the confidence to report it to the police, the criminal justice system is not using all its powers to tackle controlling or coercive behaviour, including economic abuse.
The latest criminal justice statistics from ONS showed that there were nearly 44,000 reports of coercive control recorded by the police in the year ending in March 2023, yet there were just 611 court proceedings and 566 convictions handed down in the year ending the previous December. Evidence shows that in many cases, the police rank economic issues as “low” when it comes to risk. They tend to focus on gathering evidence of physical abuse, even when victims disclose economic abuse. This is leading to perpetrators not being held to account for this crime, and victim-survivors left without true justice and at risk of further economic abuse. It is also particularly concerning given that economic issues were identified in just over a third of intimate-partner homicides analysed by the Home Office.
SEA has demonstrated that, when training is developed and delivered by specialist providers and is informed by the lived experience of survivors, it can positively change practice. Following training it developed and delivered to domestic abuse champions in 10 police forces, in partnership with SafeLives, nine in 10 police officers could recognise economic abuse and knew how to gather evidence to support a prosecution. There is a real danger that the positive steps that the Government have taken to tackle this form of abuse will be undermined by a lack of understanding on the part of the police and others in the criminal justice system. This can be straightforwardly addressed through access to necessary training, so that criminal justice professionals can identify controlling and coercive behaviour, including economic abuse, effectively build a case for prosecution and make sure that victims are referred to life-saving specialist support. I hope, therefore, that the Government will look sympathetically on these amendments.
I have tabled Amendment 107 as a probing amendment, designed to explore the issue of the use of a victim’s personal data for immigration purposes. Its substance has been promoted consistently and forcefully by the domestic abuse commissioner, and organisations supporting migrant victims of crime. In his letter of 12 January to Peers, the noble and learned Lord, Lord Bellamy, acknowledged the importance of victims and witnesses being free to report crimes without fear, and that it is in the interests of the general public for all crimes to be fully investigated. But then he continued:
“We are, however, also duty bound to maintain an effective immigration system to protect our public services and to save the most vulnerable from exploitation because of their insecure immigration status”.
Can the Minister tell us how this is consistent with the repeated ministerial claim that domestic abuse victims/survivors must be treated as victims first and foremost, regardless of immigration status, given that the argument is, in effect, putting immigration status first—not “safety before status”, in the phrase used by the domestic abuse commissioner?
The reference to safeguarding those most vulnerable to experiencing serious crime because of their insecure immigration status simply does not make sense. As the DAC and all the organisations in the field, notably the Latin American Women’s Rights Service, point out, the absence of a firewall, in the DAC’s words,
“allows dangerous offenders to continue to abuse with impunity; safe in the knowledge that their victims … are too afraid of enforcement action to report to the police”.
The DAC has heard from many migrant victims and survivors that contact from immigration enforcement, particularly following a disclosure to the police or other statutory services, can instil fear and insecurity and prevent them coming forward for support in the future. In fact, recent data has shown that all police forces in England and Wales have referred victims or survivors of abuse to immigration enforcement in the last three years. Victim Support states that this is often the reason why victim-survivors do not seek support sooner.
The DAC’s concerns were echoed in the pre-legislative scrutiny report. This cited evidence from the organisation Imkaan that more than 90% of abused women with insecure immigration status had their abusers use the threat of their removal from the UK to dissuade them from reporting the abuse. It argued that the lack of a firewall denies safety to victims and witnesses and may allow perpetrators to commit further offences. No doubt the Minister will argue that these concerns will be addressed in the forthcoming immigration enforcement migrant victims protocol that the noble and learned Lord, Lord Bellamy, mentioned in his letter. It is disappointing that the protocol has still not been published, despite it originally being promised at the end of last year. According to a recent Written Answer to me, it is now expected in “early 2024”. But, given that the Home Office can be rather vague in its temporal references, can the Minister say what is meant by “early”?
However, as the noble and learned Lord, Lord Bellamy, said in his letter, we know it will put limits on immigration enforcement action against migrant victims. But that is not enough to satisfy the domestic abuse commissioner, who argued that victims would still be open to contact from immigration enforcement, meaning that the fear of any immigration enforcement is not removed, and nor is the risk of potential immigration action once criminal proceedings conclude—which, for the victims and survivors of domestic abuse, can be within days. In view of the DAC’s continued concern, I urge the Minister to look again at this.
Turning to Amendment 80, the domestic abuse commissioner told the Public Bill Committee that one of her main concerns when it comes to genuinely providing services for all is the continued exclusion of migrant survivors, which could, she argued, be
“fixed quite simply by allowing recourse to public funds for domestic abuse survivors”.
According to the briefing from Southall Black Sisters and four other on-the-ground organisations, these women continue to face a stark choice between domestic abuse or deportation and destitution. Many are unable even to enter a women’s refuge, as they cannot pay their rent or living costs, as they are not eligible for housing or other social security benefits. Women and their children are vulnerable to homelessness and exploitation and can be locked in new, dangerous situations or even driven back to abusive relationships.
We tried to address this issue with amendments to the Domestic Abuse Bill, which were resisted by the Government. The current amendment is much more limited so as to remain within scope; the hope was that the Government would look more kindly on it—yet still they resist it, or they did so in the Commons. When it was proposed in Committee there, the Minister responded that victims without recourse to public funds are eligible for support under the terms of the code. However, he acknowledged that the “no recourse” rule affects the ability of victims of domestic abuse with insecure immigration status to access some accommodation-based support services. He went on to pray in aid the pilot established in 2020, as if that negated the need for the amendment, but did not otherwise offer any substantive arguments.
That year—2020—the Government said that they would consider the pilot’s findings once the evaluation was published and develop sustainable options for the future. The independent evaluation funded by the Home Office was published last year, as was an academic evaluation for SBS. The pilot demonstrated the need for support for this group, and the evaluation found that for the most part it performed well in meeting the immediate and emergency needs of victims and survivors. But it also identified problems with, for instance, the level of subsistence payments—a particular issue for those with children, according to the SBS evaluation—and the provision of suitable accommodation within the constraints of a pilot.
With regard to the latter, the report for the Home Office noted:
“Refuges could almost never be covered within the accommodation budget, meaning that some victims/survivors were housed in a patchwork of other provision which might be unclean, unsafe, or unreliable”.
The evaluators made it clear that it was outside their remit to provide policy recommendations but concluded with the
“hope that the insights contained within this report will help to provide the support needed to victims/survivors with NRPF”.
Well, they will be disappointed, because instead of the long-term solutions, together with a clear timetable for implementation, to which the Home Office committed itself in principle back in 2022 following a DAC report, the response to the evaluations was to extend the pilot yet again—this time to 2025.
I asked at Second Reading for an explanation of why the Government have failed to come forward with the long-term solutions originally promised in principle, now that they have the findings from two evaluations. I did not get an answer; nor was there one in the detailed letter from the noble and learned Lord, Lord Bellamy, which simply set out the current position. I would be grateful if the Minister could provide an explanation now.
More fundamentally, could we have a clear explanation as to why the Government are rejecting this very modest amendment? In the Commons, Sarah Champion suggested that it was due to the hostile environment towards people from overseas. I hope that the Minister can assure us that this is not the case. Surely, whatever one thinks of the hostile/compliant environment, it should be irrelevant if policy is to reflect the ministerial mantra cited by the noble Baroness, Lady Williams of Trafford, in a Written Answer that
“anyone who has suffered domestic abuse must be treated as a victim first and foremost, regardless of immigration status”.
That point applies also to Amendment 107 on the firewall. I beg to move.
Baroness Bertin (Con)
I rise to say very quickly, because I know that we are trying to get through this, how much I support Amendment 75. To be perfectly honest, I find it deeply depressing that we have had so many debates and so much legislation on this issue and it is still so patchy. We have 43 police forces around this country, and we are still the victims of, or are at the mercy of, the priorities of those forces. We have a strategic policing requirement that includes violence against women and girls and domestic abuse, yet I am not sure that we are seeing it put into action. I wholeheartedly support this proposal, in the hope that the Government take it on board.
Lord Meston (CB)
My Lords, reference was made briefly to Amendment 80, and
“services for victims … with no recourse to public funds”.
I want to offer brief but firm support for that amendment. Quite simply, victims of domestic abuse with no recourse to public funds are some of the most disadvantaged people that one sees in the family justice system. It is unthinkable, in my view, that they could be excluded in any way from the benefit of services under the victims’ code.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have an amendment in this group—sometimes the way the groupings lie is a bit difficult. This group covers violence against women and girls, and my amendment relates to how we assess data on that violence. I thank the noble Lords, Lord Blencathra and Lord Jackson of Peterborough, for their support—and we shall hear from one of them shortly.
Amendment 105 seeks to probe problems with the data that we use to develop policies and ensure that there is guidance to establish that sex registered at birth is used for any analysis of patterns of offending and recording victim and perpetrator profiles. Ideally, this would apply throughout the whole criminal justice system but, for now, this amendment focuses on violence against women and girls. I hope that, on this topic at least, there will be unanimity in acknowledging that sex difference between men and women can impact on people’s experience of victimisation and offending and on patterns of offending and risk.
Official crime data is used to assess the most appropriate services that should be developed, and how resources should be targeted effectively—something that the Bill has focused on at length in relation to support for victims. But any claims for evidence-based policy must be based on material reality and cannot depend on, for example, subjective assertions or ideological beliefs, both of which could be misleading. I invite people to agree with me that data needs to be accurate, credible and consistent. The problem is that accuracy, credibility and consistency are being undermined at present, because the criminal justice system has either conflated or replaced data based on immutable sex with data based on more fluid concepts, such as gender identity or self-declared sex.
I am aware that even discussing the collection of data based on a person’s sex, whether male or female, has become controversial these days. One has only to look at last week’s media reports of internal rows taking place in the Office for National Statistics about the methodology used in the census. But that is all the more reason why my amendment emphasises the need to raise the consistent measure of sex registered at birth. At present, there is an inconsistent model of options. The variable category of “gender” is used carelessly in criminal justice circles as interchangeable with sex. Sex can mean, if used imprecisely, sex as self-declared gender. It can mean a legally recognised but none the less acquired gender, sometimes evidenced by a gender recognition certificate—GRC. It can also mean changed government records, such as passports, driving licences, or NHS numbers, even though a person’s biological sex does not change, even if the documentation does. But the introduction of this vast array of recording practices creates a lack clarity about what is being measured and what exactly some types of official criminal justice data represent.
To illustrate that confusion, let us consider that a few years ago the British Transport Police stated that, because the BTP treats all people—victims, offenders and witnesses—with dignity, it
“records their gender according to the gender they present as, and/or how they self-identify their gender”.
That seems to suggest that the British Transport Police is undoubtedly well meaning but none the less prioritises validating people’s identity rather than understanding that data collection is a critical variable in crime statistics. It is important we ensure that official statistics are not treated as personal records of preference; they must be objectively accurate if they are to be useful. What is more, different police forces use different criteria for data collection, and this is very important for our understanding of violence against women and girls.
Keep Prisons Single Sex is involved in an invaluable project and public service which annually submits freedom of information requests to all police forces in the UK with the aim of determining how they record a suspect’s sex. The campaign’s findings for 2023 make for troubling reading. Just for a taster, of the 32 forces that answered the freedom of information request, no force records sex registered at birth in all circumstances; 20 forces use legally recognised acquired gender where the suspect has a GRC; and 13 forces stated that, where a suspect has a self-declared gender identity, they will record this as sex, rather than sex at birth. Some 22 forces answered the question on how a rape suspect’s sex is recorded, with 20 forces recording legally recognised acquired gender—in other words, GRCs—and only one force recording sex registered at birth. This means that suspected rape perpetrators and convicted rapists can be recorded in official statistics as female, if they no longer wish to identify with their male birth sex. To confuse matters further, 22 forces answered questions on how they record the sex of a suspect who identifies as non-binary, with 11 recording sex as “indeterminate” or “unspecified other”, and only nine using sex registered at birth.
Noble Lords might wonder whether any of this matters, and some say it does not. However, in 2019, when Fair Play For Women revealed results from its FOI requests to police forces, the National Police Chiefs’ Council responded that:
“There is no evidence to suggest that recording a person’s gender based on the information that they provide will have an impact on an investigation or on national crime statistics, because of the low numbers involved”.
That is wrong-headed and complacent. On the point about the low numbers involved, one might ask what will happen if many more people apply for a legal sex change. Organisations such as Stonewall claim that the UK trans population is up to 500,000, even though only a small minority have GRCs. That would make a significant error in the datasets. Small numbers of cases misclassified in this way can lead to substantial bias in crime stats, and, importantly, can distort and mislead public understanding of the nature of, in particular, violence against women and girls and offending patterns in relation to sexual offences.
If the police now record female crime based on gender identity, this means female crime statistics include both women who were born female and trans women who were born male. I do not know whether noble Lords recall that, in 2021, newspaper headlines screamed that the number of female paedophiles had doubled in four years. This shocking statistic was based on a Radio 4 “File on 4” documentary that used data from FOI requests. It claimed that, between 2015 and 2019, the number of reported cases of female-perpetrated child sex abuse prosecuted by police in England and Wales had risen from 1,249 to 2,297, an increase of 84%. A moral panic followed, as people assumed that that meant that more women were sexually abusing children, with endless talking heads on TV discussing why. The furore calmed down only when it dawned on commentators that no account had been taken of whether males who identify as women might be responsible for the apparent increase because of confusion about data protection. Of course, maybe it is the case that there are more women sexually abusing children—after all, offending patterns do change. However, it is impossible to know or make that claim from the collected data based on a mixture of gender identity and sex registered at birth.
This sort of unreliability surely erodes public understanding. Trust is eroded when sex-disaggregated data held by the police does not actually record what most people think it does. Unsurprisingly, this can lead to media reports of female rapists, women as sex abusers and so on, when in fact what is being reported is male perpetrators claiming female gender identity. We have to look only at the widespread public shock when it was revealed that a double rapist treated as a woman when remanded in a Scottish women’s prison was in fact not the female Isla Bryson but Adam Graham. Indeed, that scandal precipitated the downfall of the Scottish First Minister, Nicola Sturgeon.
To finish, routinely such confusions continue. Only last week, in media coverage of a trial at Southampton Crown Court, both broadcast and print media reported that a 56 year-old female charity shop worker was charged with exposing “her” penis. Lawyers in court were quoted as describing how Samantha Norris pulled down “her” trousers and manipulated “her” penis in front of two 11 year-old girls as they walked past the window of “her” home. But it is “his” home, “his” pants and “his” penis. Mr Norris may identify as a woman and be treated as such by criminal justice agencies, but he is male. How can the public or public authorities have any realistic picture or analysis of the threats posed by violence against women and girls if these confusions are reflected in official data?
Lord Blencathra (Con)
My Lords, I support the noble Baroness, Lady Fox of Buckley, and shall speak to her Amendment 105. I apologise that I was not able to participate at Second Reading due to attending another meeting.
I submit that sex registered at birth is a fundamental demographic and explanatory variable reflecting the reality of sex-based differences between men and women. Sex registered at birth is a powerful predictor of outcomes and is established throughout the criminal justice system as important in the analysis of offending and pathways into offending and risk.
Males and females offend at different rates, with males offending at significantly increased rates to females. In September 2021, women represented just 4% of the total prison population. Some offence categories, including serious violent and sexual offences, are only very rarely committed by females, with the overwhelming majority of these offences being committed by males. For example, in 2019, women comprised 2% of prosecutions for sexual offences, 16% of prosecutions for violence against the person and 7% of prosecutions for possession of weapons. The groups with the highest proportion of males prosecuted were sexual offences, at 98% male, and possession of weapons, at 93% male. Pathways into offending also differ between the sexes. There are strong links between women’s acquisitive crime—for example, theft and benefit fraud—and their need to provide for their children. For women, a history of male violence, including coercive control, frequently forms a distinct pathway into offending.
Sex registered at birth underpins the provision and planning of services within the criminal justice system, with the female offender strategy providing an evidence-based case to address the distinct needs of women in the criminal justice system. More generally, differences due to sex underpin risk assessment processes, the provision of offender treatment programmes, and the differing security categorisation and arrangements in the male and female prison estates. It is for these reasons, I suggest, it is fundamentally important that, throughout the criminal justice system, suspects’ sex registered at birth is recorded—for all offences, not just violent or sexual offences against women and girls.
However, despite the clear, established, evidence-based importance of sex registered at birth, throughout the United Kingdom police forces routinely record suspects’ gender identity, self-declared gender, legally recognised gender or transgender identity and not their sex registered at birth, including in the case of rape. I will not quote all the statistics which the noble Baroness, Lady Fox of Buckley, quoted on the freedom of information access requests acquired by Keep Prisons Single Sex, but it seems to be the case that in at least 32 of our police forces there is a complete mishmash in recording the sex of offenders, and that leads to perverse consequences.
There is no evidence that either legally recognised acquired gender, where an individual has been issued with a gender recognition certificate, or self-declared gender or gender identity have even equivalent explanatory power. In fact, where evidence is available, it continues to demonstrate the superior explanatory power of sex registered at birth to offending. I am sure some will argue that, even if sex registered at birth is erased from data in this way, surely the number of times it happens is so small that there is no appreciable impact on the data overall, so why does it really matter and why get upset about it.
The Lord Bishop of Bristol
My Lords, I rise to speak on behalf of two of my colleagues who have supported amendments in this group. My right reverend friend the Bishop of Gloucester regrets that she cannot be in her place to add her voice in support of Amendment 80, which concerns a cause on which she has long been an advocate. She tabled an amendment to the Domestic Abuse Bill, with cross-party support in 2021. Advocates have campaigned for 30 years to improve conditions for migrant women who have no recourse to public funds and who are victims of domestic abuse. While there has been some progress, including the introduction of the domestic violence indefinite leave to remain rule and the destitution domestic violence concession, there is still much more to be done to make sure that victims of domestic abuse with no recourse to public funds, or who are undocumented, are eligible for those schemes. Victims face an impossible choice: domestic abuse or deportation and destitution. Many are unable even to enter a women’s refuge; they cannot pay their rent or living costs as they are not eligible for housing or other social security benefits.
As we have heard, not much has changed since my right reverend friend raised these issues in 2021. The Government have extended the support for migrant victims pilot scheme, so it can be concluded that the support it offers is valued. Why not then grant a long-term solution? The pilot offers a victim financial assistance for 12 weeks towards rent and subsistence to enable them to leave an abuser and to begin the process of regularisation of their immigration status. More support for longer is needed, as those delivering the pilot scheme are finding that they are providing advocacy and counselling support pro bono as the pilot funding is insufficient. Victims of domestic abuse with no recourse to public funds deserve to be treated with dignity and respect, and offered the support they need to leave their abuser. Alongside my right reverend friend the Bishop of Gloucester, I support Amendment 80.
I also support Amendment 107, alongside the right reverend Prelate the Bishop of London, who has added her name and sends her apologies because she cannot be present today. This amendment seeks to ensure that the data of a victim of crime is not shared between statutory agencies and immigration enforcement for any immigration control purposes without their consent. The amendment covers victims of serious crimes including domestic abuse, sexual violence and modern slavery. There is much evidence that shows that migrant victims of crime cannot report a crime to the police and other statutory agencies due to the fear of facing immigration control. This is even more pertinent for women who have experienced abuse or exploitation, as the threat of detention or removal is used by their abuser to prevent them coming forward. The Latin American Women’s Right’s Service and the Step Up Migrant Women campaign found that 62% of migrant women had experienced such a threat from their abusers.
The findings of the first super-complaint investigation by three independent police watchdogs concluded that data sharing arrangements harmed the public interest as crimes are unreported,
“victims are denied justice, while offenders go unpunished and remain a threat to the public”.
In the immigration enforcement migrant victims protocol that the Government have proposed, the conflict of interest at its heart remains. Asserting that data sharing with immigration enforcement is essential for victims’ protection misses the years of evidence and campaigning on this issue. It does not address the fear of data sharing that prevents victims of crime coming forward. We have a responsibility to victims and cannot prioritise immigration enforcement over safe reporting pathways. The barriers that migrant women particularly face in reporting crimes put them at risk and protect the perpetrators. I support Amendment 107.
Lord German (LD)
My Lords, I rise to add my support to those remarks from the right reverend Prelate. I have added my name to Amendment 80, and I wish to say a quick word about the Istanbul convention and about the firewall, which, as we have just heard, is an issue.
If you want to understand why Amendment 80 has been tabled, you need to get out a calendar and track what has happened in the last three years. There have been huge inconsistencies between the Government’s approach and the wording of their priority policies. Initially, they responded to the needs of those with no recourse to public funds—largely, migrants seeking refuge —by saying that they would introduce the support for migrant victims scheme, with two platforms of funding. I will not bore the Committee with the names of those funds, but the Government wished to pilot the scheme. As we have heard, it has now been extended. In fact, the pilot has now been going on longer than if you were to sail around the world in a boat twice over. It has been a hugely long pilot and there has been extensive evaluation of it, so a scheme has clearly been put in place.
However, then the domestic abuse commissioner made a study of the scheme and recommended implementing flexible support for all migrant victims regardless of their status. The Government responded in 2022 by saying that they were not considering a routine pathway between public services and the domestic abuse sector because they felt the regulations already in place were sufficient. In those regulations that they think sufficient, you find that the support for migrant victims—SMV—scheme they put in place is applicable only to those of certain status seeking refuge or to live in this country. Certain groups are excluded. The Government’s response was basically: “We have what we’ve got. We won’t do anything more”. However, they did not say so in their response to the domestic abuse commissioner; there they simply said that they already could, but you can clearly see from the government regulations that they cannot.
Last year, we had the Illegal Migration Act. A whole host of people—I hope the Minister can tell us how many—who entered this country since it was enacted suddenly have no status, because they are not eligible for anything. We do not even ask them any questions. I do not believe that the Government know nothing about these people. They must know something, but we do not know what it is. We know neither the exact numbers of people who have arrived nor anything about them, because we do not ask them what they are here for. We simply warehouse them before some scheme to remove them from the country—although nowhere near the numbers of people who arrived—takes place. There is a cohort of people who do not have the status currently required for the support for migrant victims scheme. We do not know who they are because the Government do not ask them, but we know that there are substantial numbers of people in that cohort who are suffering or have suffered from domestic abuse.
This is where the problem gets complex. In their evaluation of the Government’s scheme, the London School of Economics and the Oxford Migration Observatory found that the extension of the scheme would produce major cost savings for the Government in the longer term. It estimated that there are potentially 32,000 victims with no recourse to public funds who are likely to report domestic abuse to an authority in each year and that only 7,700 of these victims are likely to access a refuge or accommodation for a short period. It recommended the extension of the model to benefit all the people in that cohort and to do so until their circumstances could be put right.
The government-funded evaluation of the scheme said that it needs to be expanded to include all those without recourse to public funds. There is also a view that more money needs to go into that scheme to provide enough money to give people a route out of the problems they face, which anyone who has contributed to this Bill will know about.
Baroness Bennett of Manor Castle (GP)
My Lords, I will make two extremely brief points. First, I will address Amendments 80 and 107, affecting individuals facing domestic abuse who have an immigration status of “no recourse to public funds”. I strongly express the Green Party’s support for these amendments. We are essentially forming again a collation—across the Committee in total, and with full political breadth—as was put together during the Domestic Abuse Act. The Government need to get the message that this coalition is not going away and will keep hammering away on this point.
Secondly, on Amendment 75, in the name of the noble Baroness, Lady Brinton, I am aware that it refers to the education of the CPS. I think we have to look at the very recent context. In a discussion on violence against women and girls with the Culcheth & Glazebury Parish Council, the Cheshire police and crime commissioner, John Dwyer, was quoted as saying:
“I notice school girls in my area are all wearing very short skirts and this did not happen in the 1960s”.
There is an evident need across the criminal justice system for a great deal of education. It is possible we might think some people are beyond education, but we need it to be happening anyway. We need it to deliver confidence to the victims of crime, so that they feel they can come forward and be treated properly.
Baroness Hamwee (LD)
My Lords, I was there in the 1960s but that is not quite the object of this debate.
I was struck during the previous group of amendments, and it has continued in this one, by the question of training. What everyone involved in these issues needs is professional curiosity and an ability not to compartmentalise people’s reactions. Older people’s vulnerabilities—I have come across Hourglass, and I admire it—can also be found in younger people, so training needs to be thorough, with no cliff edges in how it is delivered. We are all different people and we all exhibit a variety of traits, which at different ages and in different circumstances may rise higher up the list than at other times. I was glad to hear my noble friend say that she could see a single wide amendment coming, because I think it is needed.
The Istanbul convention has been debated in this House before, as has the reputational damage of the country in this context. However, I put it in again today.
There is an important debate to be had on data collection and the argument about consistency. However, it is a very wide debate and not something that can sensibly be addressed in a Bill which is about a discrete area of work.
My name is to Amendment 107, which may not give it a very good prognosis, since I opposed paragraph 4 of Schedule 2 to the then Data Protection Bill all the way through its passage through the House and led a vote against it. The paragraph says—this is not verbatim—that the exemption for personal data does not apply, fit to prejudice, to immigration enforcement. I never succeeded in my opposition, but I hope that might change.
On the detail of the amendment, there is one thing I need to say in making the case for it. It is not only a matter of information about someone’s immigration status being given where, in the views of all speakers, it should not go, and immigration officers turning up on the doorstep; it is the deterrent effect of an abuser telling a victim, “You’re not entitled to be here. I’ve got your papers, and there’s nothing you can do about it. If you complain, you’ll be thrown out”. Abusers have been known to lie and, from what one hears from the organisations working in the sector, that happens a great deal in this situation.
I suppose that “domestic abuse” is the correct term, but this situation does not apply only to people who are in a personal relationship; domestic workers are very vulnerable to this abuse. The deterrent effect on them complaining about the appalling treatment that some of them suffer is very notable. On behalf of these Benches, I hope we manage to make some progress on this issue during the course of the Bill.
Baroness Thornton (Lab)
My Lords, I thank all noble Lords who have spoken in the debate; it has been interesting, if slightly wider than we expected. I thank the noble Baroness, Lady Brinton, for introducing it. I put my name to Amendment 75. This is the first time that we have talked about women and girls at all; the noble Baroness was right to initiate that. I also tabled Amendment 80, which we on these Benches feel strongly needs to be addressed in the course of the Bill.
The noble Baroness, Lady Hamwee, referred to Amendment 107, which the Government will also have to address, because it is clearly about a very serious issue. The noble Baroness, Lady Brinton, is completely right about the importance of the UK’s reservation on Article 59 of the Istanbul convention, and the noble Baroness, Lady Hamwee, is right about the reputational damage it does to our country. I hope the Minister will be able to respond to that.
I thank Southall Black Sisters for the excellent brief it produced about seeking to ensure that victims of domestic abuse who do not have the recourse to public funds are still entitled to be provided with services in accordance with the victims’ code. It was thorough and I hope that a Minister will respond, even if it is not this Minister. It is very nice to be opposite the noble Earl, Lord Howe, for the first time in quite some years; we faced each other for about seven or eight years on health matters. Of course, we have two Fredericks on our Front Benches, which is probably worth noting.
Southall Black Sisters has done extensive research on the effect of having no recourse to public funds. It has made a very serious record of the hardship and cruelty that this can lead to. I very much hope that the Minister will look at that evidence and that we will be able to take this forward. I will not say anything further, because we have had a very thorough discussion about the amendments.
Earl Howe (Con)
My Lords, I too am very grateful to all noble Lords who have spoken to this group of amendments, which cover a range of sensitive and complex issues.
I turn first to Amendment 104, tabled by the noble Baroness, Lady Brinton, on the UK’s reservation on Article 59 of the Istanbul convention. We were delighted to ratify the Istanbul convention. I believe that our doing so sent a clear message, not only within the UK but overseas, that Britain is committed to tackling violence against women and girls. I need to explain the point around the reservation, though. First, we are far from alone in making such reservations. Secondly, and more germanely to the noble Baroness’s concern, the reservation does not mean that we are not committed to supporting migrant victims, as I shall now explain.
We will continue to consider the findings of the SMV—support for migrant victims—scheme pilot, along with other assessments, and take account of the domestic abuse commissioner’s report Safety Before Status: The Solutions. This is very much work in progress. I assure the noble Baroness and the Committee that we will consider all matters in the round before making any further decisions on our policies and compliance position on Article 59. We have been clear about this in our last two annual progress reports, which were laid before Parliament, as we have been in many other fora.
Baroness Brinton (LD)
Can the Minister give the Committee any sense of the timescale? This is really overdue. It was promised some time ago. It would be enormously helpful to know what the blocks are and how long he thinks it will take.
Earl Howe (Con)
I will need to write to the noble Baroness—and to other noble Lords, of course—on that point, as I have no advice. I shall come on to Amendment 80 in a moment.
Amendment 75 in the name of the noble Baroness, Lady Brinton, and Amendments 76 and 77, tabled by the noble Baroness, Lady Lister, would require the Government to bring forward regulations to provide for certain persons in the criminal justice system to receive mandatory training in respect of violence against women and girls. My ministerial colleague and noble and learned friend Lord Bellamy has emphasised to me that we are deeply committed to driving improvements to the police and criminal justice response, which we know has too often not been good enough.
In that context, we recognise the importance of police officers and prosecutors having the right skills and knowledge to respond effectively to VAWG crimes. While the police and Crown Prosecution Service are operationally independent of government, we have taken action to help ensure that police officers and prosecutors are equipped to respond in three principal ways—through our tackling VAWG strategy and complementary domestic abuse plan, and the rape review. This includes funding the College of Policing, which is responsible for setting standards on police training, to develop and implement a new module of the specialist domestic abuse matters training for officers investigating these offences. This will enable further improvement in the way that police respond, investigate and evidence this crime. The domestic abuse matters programme has been completed by 34 police forces to date.
Ultimately, as has often been pointed out, this comes down to culture. It is therefore imperative that the right culture is in place. That is why the Government are driving forward work to improve culture, standards and behaviour across policing. That includes implementing recommendations from the Home Office’s police dismissals review to ensure that the system is fair and effective at removing officers not fit to serve. Given the significant work already under way that is expressly designed to strengthen both the police and CPS response to violence against women and girls, I hope the noble Baronesses will feel comfortable not to move these amendments when they are reached.
Turning next to Amendment 80 in the name of the noble Baroness, Lady Thornton, I thank her for raising this issue because it allows me to put on record how victims without resident status who do not have recourse to public funds are entitled to be provided with services in accordance with the victims’ code. The proposed new clause would state that victims of domestic abuse who do not have recourse to public funds can still receive services under the victims’ code.
However, I reassure the Committee, particularly in response to the noble Baroness, Lady Lister, that the code does not contain eligibility requirements linked to immigration status. It explicitly states that victims are entitled to receive services regardless of resident status, which means that victims who have no recourse to public funds are still able to receive support under the code. This includes right 4 in the code, which is the entitlement to be referred to and/or access services that support victims. However, we are aware that, in practice, the recourse to public funds rules in the Immigration and Asylum Act 1999 impact the ability of victims of domestic abuse with insecure immigration status to access some accommodation-based support services.
Victims with no recourse to public funds can access safe accommodation funding and can do so through our destitute domestic violence concession, which has been in place since 2012. It is a quick route to public funds and for those eligible to regularise their immigration status. Furthermore, the statutory guidance for the duty to provide safe accommodation under Part 4 of the Domestic Abuse Act makes it clear that this provision is for all victims of domestic abuse, including migrant victims with insecure immigration status.
We remain of the view that this amendment is not necessary, and I hope that what I have said goes some way to reassuring the noble Baroness of the various ways that the Government are supporting victims regardless of their resident status, especially victims of domestic abuse.
I turn to Amendment 107, tabled by the noble Baroness, Lady Lister, which I recognise covers a very sensitive issue. We remain determined that all victims and witnesses must be free to report offences without fear. However, this must be balanced with the need to maintain an effective immigration system, to protect our public services, and to safeguard the most vulnerable from exploitation because of their insecure immigration status.
It is the role of law enforcement agencies to protect victims, bring offenders to justice, prevent the commissioning of offences and preserve order. For them to discharge these functions, information sharing, very much on a case-by-case basis, must be allowed to take place, having regard to all the circumstances of the case. I say that especially because this information in some instances may help to protect and support victims and witnesses, including identifying whether they are vulnerable, and aiding their understanding of access to services and benefits.
However, we agree that more can be done to make it clearer to migrant victims what data can be shared and for what purpose. That is why we will set out a code of practice on the sharing of domestic abuse victims’ personal data for immigration purposes. This will provide guidance on circumstances when data sharing would or would not be appropriate and will provide transparency around how any data shared will be used. We will consult on this prior to laying the code for parliamentary scrutiny and approval by this spring.
That is not all: the Government are also committed to introducing an immigration enforcement migrant victims protocol for migrant victims of crime, which we aim to launch later this year. The protocol will give greater transparency around how any data will be shared.
Finally, Amendment 105 in the name of the noble Baroness, Lady Fox, seeks to ensure that the Secretary of State for Justice must issue guidance in respect of data collection to ensure that sex registered at birth is recorded for both victims and perpetrators of crime in respect of violence against women and girls. I was very interested to hear the statistics that she quoted on this issue and the arguments that she advanced—and I say the same to my noble friend Lord Blencathra about his powerful speech.
It may be helpful if I set out what the current system provides for as regards data collection. The Home Office collects, processes and analyses a range of national crime and policing data provided by the 43 territorial police forces of England and Wales. These collections form part of the Home Office annual data requirement—ADR. The ADR is a list of all requests for data made to all police forces in England and Wales under the Home Secretary’s statutory powers. The Home Office issued guidance in the ADR in April 2021 that sex should be recorded in its legal sense —what is on either a birth certificate or a gender recognition certificate. Gender identity should also be recorded separately if that differs from this. For consistency, this is based on the classifications used in the 2021 census for England and Wales.
Since implementing this guidance, the UK Statistics Authority has launched its own review on guidance given on the recording of sex, and that is expected to report this year. The Home Office will consider the new guidance in deciding whether or not changes are needed to the recording of the sex of victims and perpetrators dealt with by the police, including whether to move from the existing voluntary basis to a mandatory footing. I suggest that we do not need to amend the Bill to achieve what the noble Baroness seeks, in the light of the action under way to help address this issue. I hope she will feel a little more comforted than she was earlier as a result of what I have been able to say.
Baroness Lister of Burtersett (Lab)
My Lords, I gather that I am supposed to speak now, because I moved an amendment to the amendment. I did not realise that I would be responding, so I am sorry if I do not do it terribly competently. I thank the noble Earl for his very full reply, and all noble Lords who have spoken, particularly in support of my amendments. I shall be brief because I am conscious that there is other business waiting.
On training, I agree with the noble Earl on one thing, which is the importance of culture. But culture does not just come out of thin air—and, judging by what the noble Baroness, Lady Brinton, said, there will be a more amalgamated amendment on training coming down the track. She is nodding, so I am afraid we still think we need something in the Bill on that subject, but perhaps something broader than the original amendment.
On no recourse to public funds—this is not surprising, and I do not blame the noble Earl—what we have heard is what the Minister said in the Commons, which I argued against as inadequate. We just had the same again. That is what happens so often. There is an argument in the Commons, we argue why that is not enough, and then we get the same argument again.
I asked some specific questions, which I will not repeat now, but again, perhaps a broader letter could be sent to noble Lords covering the different things that were asked about. On the firewall, again there is the sense that we just go round in circles. When I asked for clarification on the protocol promised for early 2024, the Minister talked about later this year, which sounds rather ominous. It sounds later than early 2024.
So it feels that on both the recourse to public funds—the noble Lord, Lord German, spelled out at great length the saga on this and the history of it—and on the firewall, that we are just waiting for Godot. We just wait and wait and get nowhere. I do not know whether the domestic abuse commissioner is watching, but she will definitely read the debate and will be extremely disappointed, because the Minister may say that legislation is not necessary, but organisations on the ground such as Southall Black Sisters, which has been cited, and the domestic abuse commissioner feel very strongly that legislation is needed. It is disappointing, but I will leave it at that. I beg leave to withdraw my amendment to the amendment.
Red Sea Update
(10 months, 2 weeks ago)
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The Minister of State, Ministry of Defence (The Earl of Minto) (Con)
My Lords, with permission I shall now repeat the Statement given by the Secretary of State for Defence in the other place earlier today, on the recent response to Houthi aggression in the Red Sea. The Statement is as follows:
“Freedom of navigation has been a cornerstone of civilisation since time immemorial. It underpins our prosperity and security and is a founding principle of the international rules-based system. Since 19 October, the Houthis, supplied and aided by Iran, have been infringing on those fundamental freedoms by attacking international commercial vessels in the Red Sea and in the Gulf of Aden. On 19 November, they illegally seized the merchant vessel ‘Galaxy Leader’ using a helicopter-borne assault crew, and since then they have conducted around 40 attacks against commercial and military vessels. Despite repeated warnings, their attacks have continued.
The UK has always stood up for the rules-based international order, and since the Houthis began their illegal attacks we have been at the forefront of the international response, whether helping to defend vessels in the vicinity, as one of the first members to join the US-led task force Operation Prosperity Guardian, or working in tandem with the US and other allies to tackle the Houthis, always in response to specific threats and always in line with international law and the principle of self-defence.
On two previous occasions we were required to use force, and these attacks have had a significant effect in degrading Houthi capabilities, but the Houthis’ intent to continue disrupting the Red Sea has not been fully diminished. Two weeks ago, the Prime Minister came to the House to make it clear, as I did the following day, that unless the Houthis desisted from their inflammatory actions, we would not hesitate to act again. Yet instead of ceasing their activities, they have chosen to persist, accompanying their increasingly incendiary rhetoric with further missiles and drones targeted at shipping and at the Royal Navy.
Most recently, the Houthis set the vessel ‘Marlin Luanda’ on fire and targeted HMS ‘Diamond’ directly in the Red Sea. Such behaviour is simply intolerable. It breaks international law and is already having consequences for the economies of the world. Insurance premiums have rocketed tenfold since the start of December. The number of cargo ships transiting Bab al-Mandab has fallen and the cost of containers has rocketed, all of which could send food inflation spiralling and will certainly hit those countries with the greatest poverty levels the hardest.
The Houthis believe that they are the region’s Robin Hood, but as I discussed with the Yemeni Defence Minister just yesterday when I saw him in Saudi Arabia, the only people they are robbing are innocent Yemenis whose food and aid arrives via the Red Sea. That is why at the weekend the Prime Minister and I again authorised the use of force, in strict accordance with international law and in self-defence. On Saturday, Royal Air Force Typhoons, supported by two Voyager tankers, joined the US forces to conduct further precision strikes against Houthi locations in Yemen. The Typhoons employed Paveway IV precision-guided munitions against three military targets, hitting 11 separate targets, which were identified after very careful analysis at those three locations, and approved by me.
At As-Salif, due west of Sana’a on the Red Sea coast, our aircraft targeted a ground control station inside a defensive position. This station had been used to control Houthi attacks and reconnaissance drones launched from further inland and operating over the sea against international shipping. A second drone ground control station was confirmed to be Al-Munirah on the same stretch of coastline. As with As-Salif, the station provided direct control of reconnaissance and attack drones targeting shipping in the Red Sea—its position on the coast allowing it to maintain the line-of-sight data links used to target innocent shipping with accuracy.
Our Typhoons also attacked a significant number of targets at Bani. The House may recall that an initial group of facilities at Bani was successfully struck by the RAF on the night of 11 January. Since then, a further set of buildings at the site were positively confirmed to be involved in the Houthi operations and were, as a result, targeted on this occasion. As is standard practice for operations by the RAF, the strikes were very carefully planned to ensure minimal risk of civilian casualties. Dropping munitions at night further reduces such risks and we do not believe there were any civilian casualties on Saturday night.
Military action can only ever be one element in our efforts to confront these global challenges. Any military action is indeed the very last resort. It would be far better if the Houthis simply stopped their attacks. Our approach is founded on four pillars. First, we are increasing diplomatic engagement. The Foreign Secretary travelled to the region and met his Iranian counterpart last month to make it clear that Iran must cease supplying the Houthis with weapons and intelligence, and use its influence to stop the Houthi attacks. The Prime Minister spoke to President Biden recently to discuss our joint approach and I met my counterparts in the region this weekend, returning this morning from the Kingdom of Saudi Arabia, where I discussed regional security.
Secondly, we must end the illegal flow of arms to the Houthis. Britain and the US have previously intercepted weapons shipments in the region, including the same kind of components that we have seen used in recent strikes. Thirdly, we must cut off the Houthis’ financial resources. We have already, last month, sanctioned four key figures within the Houthi regime, including the commander of the Houthi naval forces and the Houthi defence minister.
Fourthly, we continue to help the people of Yemen by delivering humanitarian aid and supporting a negotiated peace. The UK has committed £88 million in humanitarian support this year, feeding 100,000 Yemenis every month, with aid arriving through the very sea routes that, ironically, the Houthis are targeting.
Let me be absolutely clear: we would much rather the Houthis simply stopped attacking international shipping, stopped damaging global trade and stopped harming the prospects of their own people. At the same time, appeasing the Houthis today will not lead to a more stable Red Sea, nor indeed a more stable region. We are not seeking confrontation and we urge the Houthis, and all those who enable them, to stop these illegal and unacceptable attacks. However, if necessary, the UK will not hesitate to respond again in self-defence.
Placating the sponsors of terror does not benefit our international order in the long run, or bring peace to the Middle East or elsewhere in Europe or, indeed, the world. The truth is that we cannot ignore the importance of these great waterways for shipping. This is the reason why the world backs the United Nations Convention on the Law of the Sea. It is the reason why New Zealand has joined the UK, the US, Australia, Canada, Bahrain, Denmark and the Netherlands in providing support for this weekend’s air strikes, and it is the reason why, as an island nation, we have always appreciated freedom of navigation. It is intrinsic to our way of life. If we do not deal with these threats, every nation will be poorer. I commend this Statement to the House”.
Lord Coaker (Lab)
My Lords, I thank the noble Earl, Lord Minto, for repeating the Government’s Statement. I very much welcome its tone and content. I say at the outset that we back the US-UK air strikes, which are supported by other countries, as the noble Earl read out. We also praise all the members of our Armed Forces involved in these actions and actions that have gone before. We should all pay tribute to their bravery.
We know that, as the Government said, these actions are to protect shipping and freedom of navigation in the Red Sea. In essence, we are standing up for the international rules-based order. This is of extreme importance, as the noble Earl mentioned, as the Houthis are attacking the ships of many nations, threatening maritime security and international trade. They are putting lives in danger. They cannot just act with no consequence. We cannot just stand by and let these things happen. Let us be clear: taking no action also has consequences.
We fully back the leading role that the Royal Navy has played, with the US and others, in the continuing defence of shipping for all nations in the Red Sea, but as the Minister said in the Statement in the other place, despite having had
“a significant effect in degrading Houthi capabilities”,
their intent
“has not been fully diminished”.
Can the noble Earl tell us what assessment the Government have made of the effectiveness of the action that has been taken so far? At what stage do these one-off strikes become a sustained campaign, with the need to involve Parliament? It is good to see a coalition of countries supporting the action, but perhaps the noble Earl can outline the efforts the Government are making to persuade other countries to join Operation Prosperity Guardian.
Actions in the Red Sea raise many legitimate questions. In particular, we know that Iran is the sponsor for many actors in the region, including the Houthis. What steps are the Government taking to prevent regional escalation, which we all wish to avoid, while maintaining dialogue with Iran about action that may be taken?
Questions also arise about our ability to sustain a military operation, even in the support role we have. Can the noble Earl reassure us that we can and will be able to provide all the necessary equipment and military assets? For example, are the Government rethinking the need for our ships to carry missiles that allow them to attack land bases, such as drone bases in Yemen?
We also read of the fact that the aircraft carrier “Queen Elizabeth” now needs repairs to a propeller. Can the noble Earl update us on this? Has it impacted on Red Sea deployment decisions, given that we were all led to believe that the “Queen Elizabeth” was being considered for deployment to the Red Sea? How long before the “Prince of Wales” can be readied to take on her role in the NATO exercise? Could it also be the case that she will be sent to the Red Sea?
It is also important that we recognise, as the noble Earl did, the important role played by the RAF and the importance of the base at Akrotiri. Can the Minister outline whether we are due to rotate HMS “Diamond” with another naval ship? Can we be certain that any of our ships can be fully supplied at all times?
These questions arise on the day that a Defence Select Committee report said that
“parliamentary scrutiny of and debate about UK armed forces readiness currently relies on media reporting and corridor conversations”.
That simply has to change, hence my questions. Operational ability to do all we would wish to do, even with our allies in the Red Sea, becomes important.
Ministers have said that they need to deter Houthi attacks and degrade their capabilities. As I asked earlier, what assessment has been made of that? This also has to be done alongside diplomatic efforts, so can the noble Earl update us on these efforts to put pressure on the Houthis, particularly via Iran, and other diplomatic measures that have been taken?
Finally, we agree with the Defence Secretary in rejecting Houthi claims that this is somehow linked to the conflict in Gaza. They have been attacking ships in the Red Sea for at least five years. This is about the international rules-based order, and we will act with the Government to defend that principle.
Baroness Smith of Newnham (LD)
My Lords, from these Benches I also thank the noble Earl for repeating the Statement. Like the noble Lord, Lord Coaker, I support the actions that have been taken so far. In particular, I thank the Government for being so clear about the precision with which the actions have been taken. It is hugely important that if we state that we are taking action against the Houthis to support the international rules-based order, we are very clear that our actions are proportionate and in line with international law. That is very welcome. Like the noble Lord, Lord Coaker, from these Benches I thank His Majesty’s Armed Forces for their deep commitment and the fact that they have been able to act and react so effectively.
I will start with Akrotiri and the RAF, because over the years Akrotiri has been hugely important, and we have made significant demands on the RAF. My starting point for questions on His Majesty’s Government’s capabilities is whether the noble Earl thinks we have sufficient support in Akrotiri. Is the Air Force able to keep up the level of support we have, or do we need to think about additional support for the RAF? Clearly, what has been happening so far has been significant and is working well, but can we sustain that—and for how long?
I have a similar set of questions about the Royal Navy. We rehearsed some of those at Questions this afternoon, and discussed naval capabilities. The noble Lord, Lord Coaker, has already raised some questions, but I will ask a little bit about crewing. One option is obviously to rotate out HMS “Diamond”, but do we need to do that, or might we think about changing the crewing? Is that what His Majesty’s Government might be thinking about?
Can the noble Earl also tell the House how many of our ships are currently at sea, how many are in planned maintenance and how many need to have, for example, propellers mended, which is not part of planned maintenance? Can he elaborate a little further on some of the answers he gave this afternoon about our naval capabilities? The Defence Select Committee’s report from the other place really is quite damning about our capabilities.
From these Benches and the Labour Benches, we have raised questions over years with His Majesty’s Government about not just defence spending but how effective that expenditure is, and how effective our capabilities are. It is great that we have two aircraft carriers, but if they are troubled by defects, that raises concerns. The Type 45s were beset by design defects. The noble Earl’s predecessor, the noble Baroness, Lady Goldie, was very keen to say that with the PIP, the Type 45s were a better ship than they had been before the refinements, but do we not need our ships to be right first time?
Are we confident that, moving forward, as we see ever more zones where His Majesty’s Armed Forces need to be present, we really have the capabilities, as an individual state and alongside our allies, to play the international role that we seek to play and to give our Armed Forces the support they deserve?
The Earl of Minto (Con)
I thank the noble Lord and the noble Baroness for providing that firm commitment to support the Government in their actions and to give at all times the full level of support that our forces value so highly.
This is not an easy situation; it is correct that what we are doing now is a continuation of these single actions—it is not a sustained thing. I can give a commitment that if that changes, it will be discussed much more widely. I understand the issues surrounding this but for force protection and operational security, the Government must have the ability to act on information received.
I shall go through the specific questions asked. The assessment of the action taken so far, as the noble Lord, Lord Coaker, said, is that it has been very accurate. It has been successful—it is not over. The noble Baroness referred to the accuracy of the targeting. That has been very effective, by all accounts, and we should continue along that route. It is important that we keep up the pressure but do not move to anything more sustained at this point.
We have been successful in getting more allies to join Prosperity Guardian. As I said this afternoon, for them to take action is something which each sovereign state needs to decide for itself. It is incumbent on that; I am sure that there is a lot of diplomatic action going on in the background, but we cannot take a decision for them.
Both the Foreign Secretary and the Prime Minister have been determined to make Iran fully understand that waging a war, in effect, through its proxies is something that the rest of the world finds illegal and cannot contemplate, and it needs to stop. There can be no doubt in my mind that Iran understands that; I hope that diplomatic pressure will continue and there will be a breakthrough at some point.
Both noble Lords asked about the sustainability of the action we are taking. I am absolutely sure from the RAF side at Akrotiri and the naval side in the Red Sea that this level of pressure is sustainable. There is the question of rotation; obviously, planned maintenance is a programmed activity and there is no gap in capability while they transition from one ship to another or swap planes over. That is very important.
We are part of an international force, and it is complementary in many areas. While we may not have on a particular ship all the weapons to provide a complete field, there are others that will do that.
The point was made about ship-to-shore missiles. The RAF from Cyprus is extremely capable of filling that in.
On the issue of the “Queen Elizabeth”, it is not uncommon to have maintenance issues; these are highly technical, state-of-the art ships, and it is extremely unfortunate at this particular moment. However, the fact that we have two aircraft carriers is very welcome. We will be able to deploy the “Prince of Wales” to exercise Steadfast Defender. We should be able to maintain our full strength, as per our NATO commitment, during Steadfast Defender. The situation with the “Queen Elizabeth” is being investigated now, and it is not absolutely clear how long the repairs will take to complete. I will certainly advise your Lordships when they are. There has been conversation about one of the aircraft carriers going into the Red Sea. This is part of an international action, and we discuss these contingency operations with our US colleagues at great length. There is flexibility in both directions, so no clear decision has been made yet.
I think I have answered the question of rotation and the aircraft carriers. However, the noble Baroness made a valid point about ships getting it right first time. The question of procurement is always uppermost in the mind in the Ministry of Defence. The only thing I would say is that, with the rate at which weapons systems develop, you need to refit and get the latest ones in place; often, that is part of planned maintenance and upgrading. I think I have answered all the questions.
Lord Craig of Radley (CB)
My Lords, I thank the Minister for repeating the Statement. In the interests of legal clarity for our Armed Forces, this Statement confirms the right to self-defence, which is well recognised internationally and in proportion. The Houthis launched an attack on HMS “Diamond”, which was successfully repelled. This gave firm legal grounds for our first kinetic response. Have further attacks been mounted against His Majesty’s ships or UK-flagged vessels that would deserve further UK self-defence responses, or is the threat of further attacks from the Houthi leadership sufficient legally to justify further kinetic responses from His Majesty’s Armed Forces? Noble Lords should be in no doubt that I support the present operations; I am just seeking a clear statement of their international legal justification.
The Earl of Minto (Con)
I thank the noble and gallant Lord. My understanding is that, under Article 51 of the charter of the United Nations, the force out there is completely entitled to defend itself. The very threat to it and to the sailors on-board is sufficient; we have that cover.
Lord Bellingham (Con)
My Lords, no other navy in the world has the UK’s extraordinary institutional history of protecting global shipping, so it is very appropriate that we have a naval presence in the Red Sea. Obviously, the HMS “Diamond” Sea Viper system has been incredibly effective at intercepting Houthi drones. However, as the noble Lord, Lord Coaker, said, there may be times when ship-to-shore capability is needed. The Minister mentioned that this could be provided by systems based in the Mediterranean. Could he say something about naval vessels employing this capability, perhaps against Houthi targets on the ground?
The Earl of Minto (Con)
I thank my noble friend for that comment. I am sure that he will understand that there are certain things I cannot say. One of the points made about the RAF flying from Akrotiri is that it does seem to be quite a long way, but when you think that the Americans last weekend flew from the United States to carry out their attacks, it brings it into perspective. On the question of Sea Viper and the upgraded version of Sea Viper, on which, as I said earlier today, we are spending about £400 million, it is an extremely effective weapon. We are always looking at ways to broaden the range of weaponry based on any particular ship.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I join the comments of my noble friend Lord Coaker in supporting the action that the Government are taking, and also in supporting His Majesty’s Armed Forces on duty over there. Last month, the US Secretary of State, Antony Blinken, designated the Houthis as a specially designated terrorist group. Will the Government take that back, look at it very carefully and, hopefully, decide to do the same thing?
The Earl of Minto (Con)
Your Lordships will be fully aware of the view that the Government take of these types of organisations. The noble Lord is correct: the US has designated the Houthis as a specially designated terrorist group. That is slightly different from full proscription. As he knows, we have taken out individual sanctions across quite a lot of people within the Houthi organisation. We are always looking at updating exactly what category these types of organisations come into. So it is being considered in real time.
Lord Walney (CB)
My Lords, the Defence Secretary is right to say that appeasing the Houthis will not bring stability, and that placating the sponsors of terror does not benefit our international order. Do the Government accept, therefore, that it was a profound mistake for President Biden to withdraw support, as he did, from the Saudi Arabia-led coalition against the Houthis, who have illegitimately taken over part of Yemen, remain embedded there and have the capability to carry out these attacks to this day? This was a course of action that many in the Opposition, under very different leadership at that time, called for in this House. To their credit, the Government looked like they were going to stay the course at the time. Is it not time now to learn the lesson from that and actually prosecute a campaign against this terrorist organisation to its natural finish?
The Earl of Minto (Con)
The noble Lord is talking about a sort of sea-change in the level of activity. I certainly do not think that the Government believe that we have got to that position yet. As far as the historical aspect is concerned, far be it from me to take a view as to what was and what was not the right thing to do at the time. I cannot imagine that anybody thought that it would be a good idea to end up where we are, with Yemen being effectively split and some of the most needy people, certainly in the area and probably in the world, put under the pressure they are by this terrorist organisation.
Lord Blencathra (Con)
I thank my noble friend the Minister for his comments and contributions tonight. First, in 2001, the British Government proscribed an organisation called the Islamic Army of Aden, which was probably responsible for the attack on the “USS Cole”. That is now largely a busted flush as an organisation, and trivial in comparison with the Houthis. Will my noble friend please urge the Arabists in the Foreign Office to proscribe the Houthis as the evil terrorist organisation they are?
Secondly, we are spending millions on missiles, taking out individual missile and drone sites, which are easily restored. Will we now try to cut off the head of the snake, take out the command and control and the headquarters, hitting the senior leadership?
Thirdly and finally, could the Government please find the money to buy—or beg, borrow or steal—some F35s to put in those two big empty boats, whichever one happens to be working this week?
The Earl of Minto (Con)
I thank my noble friend. I shall certainly take away the points that he makes. Precision-driven strikes to disrupt and deter is one thing. To move to something more sustained is a decision that would have to be taken by the allies as a whole.
Baroness Bennett of Manor Castle (GP)
I begin by referring to the first sentence of this Statement:
“Freedom of navigation has been a cornerstone of civilisation since time immemorial”.
This is a principle that was codified in the UN Convention on the Law of the Sea in 1982. It was not broadly accepted until well into the 19th century—and, in fact, the Dutch imposed it on us by the Treaty of Breda and the Treaty of Westminster in 1667 and 1674 respectively. Does the Minister agree with me that historical accuracy, sobriety of language and avoidance of hyperbole are important in an approach to foreign affairs at all times, but particularly given the state of the world today?
Following on from the points just made by the noble Lord, the Statement says:
“Despite repeated warnings, their attacks have continued”—
that is, the Houthi attacks. It says that
“the Houthis’ intent to continue disrupting the Red Sea has not been fully diminished”.
As the noble Lord just said, we have had drones, missiles and small boat assaults—there are many different methods. The definition of “fully diminished” would presumably be “stopped”. Do the Government believe that they can by military means stop the Houthi attacks?
The Earl of Minto (Con)
I thank the noble Baroness for her views. On the question of hyperbole, personally, I try never to use hyperbole. There is nowhere that you can go from hyperbole, so I tried to avoid it.
On the question of diminishing the Houthis’ ability to strike, we have seen that this has been to some extent successful. Certainly, the frequency of the strikes has reduced; the ferocity of strikes and the number of drones and missiles that they have been firing towards international shipping has also reduced.
I take the point about when freedom of navigation may have been enshrined in some form of law, but it has long been accepted that the freedom of the seas and the ability to trade from one country to the other are absolutely critical.
On the diplomatic efforts, I entirely agree. Military action is unlikely to achieve our aims. That is always the case with anything like this. But it provides a level of commitment and gravitas which, I hope, makes any aggressor realise that there must be another way out. We have increased our diplomatic engagement, with the Foreign Secretary going again, having met his Iranian counterpart last week. We apply pressure not just bilaterally but through forums such as the United Nations, and that sort of thing. So there is a very broad diplomatic approach to trying to finish this matter.
Viscount Waverley (CB)
My Lords, if I understood him correctly, the Minister suggested that rust is a regular occurrence. If that is the case and propeller rust is a regular occurrence—and I do not profess in any way to be a specialist—why not set up a rotational or regular change to ensure constant readiness? That is something he may wish to take away for the future.
The Minister intimated, I think, that that it is up to any new participant to determine their activities in the arrangements with the Houthis. Where is the command centre and who is running it?
Securing sea routes to ensure safe passage for supply chains is paramount. While Djibouti is a haven for French and US assets, what consideration has there been of extending outreach in a winning combination of the two, utilising the port of Berbera in Somaliland? Am I right in thinking that the Chinese are considering investing in the management of that port? Is the Minister considering setting up discussions with the Chinese interests to set out a beneficial rulebook as to how we can avail ourselves of that port for our own affairs as well?
The Earl of Minto (Con)
My Lords, on the question of rust, I imagine that the noble Viscount is talking about aircraft carriers. I am not certain that one should necessarily believe all the headlines that one reads, but it is certainly something that is being looked at. As I said earlier, we are very lucky that we have another one, so there will be no reduction in commitment or effort.
As to who is leading, this is a US-led coalition. Clearly, the US relies very heavily on its allies and each party, each country, is obviously providing a level it feels comfortable with, but it is definitely a US-led coalition.
The point about supply chains is extremely well made. This situation is potentially so damaging to the world’s trade—and it must be damaging the Chinese more than anyone, I would have thought—that there will definitely be countries and groups of countries that will look very carefully at where we could get bases from. Of course, we have a very successful base in Cyprus, and the Chinese are all over the east coast of Africa as we know, but the point is well made.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the Statement says that we must cut off the Houthis’ financial resources. I absolutely agree with that point. It goes on to say that we have sanctioned four people, and prior to that, 11 people—that is 15 people—and two entities. That is great, but I suggest that we need to go much further, because we really have to make this hurt. As the noble Earl said, there will no one way of getting this situation resolved; there will be a number of prongs to deal with it, including sanctioning a much larger group of people and many more entities. I bet that if we look carefully, we will find that there are assets held in this country, and we need to deal with those as well. This is important; it really has to hurt.
The Earl of Minto (Con)
I entirely agree. Any way that one can starve any of these sorts of organisations with access to funds should be pursued with absolute vigour.
Viscount Waverley (CB)
My Lords, some time ago, I proposed to the Minister, the noble Lord, Lord Ahmad, that Somaliland be recognised. He suggested, if I remember correctly, that it is for the UN to determine this. Nevertheless, I think that there should be a lead from the UK in suggesting that Somaliland be recognised in its own right. For example, it shares the SOM designation with Somalia, so Somaliland being its own entity would probably be beneficial all round. Does the Minister agree?
The Earl of Minto (Con)
I will certainly take that up with my colleague, my noble friend Lord Ahmad.
Baroness Bennett of Manor Castle (GP)
My Lords, given that the Statement refers to the £88 million in humanitarian support provided to the people of Yemen this year, it is a bit of a pity that the noble Lord, Lord Purvis, is not with us, because I am sure he could recite how much that figure has gone down. We are obviously talking about diplomacy and the views of the people of Yemen and how they react towards who is governing and controlling them. Have His Majesty’s Government made an assessment since the US and UK strikes started of what impact the strikes have had on the views of the people of Yemen, particularly towards the Houthis?
The Earl of Minto (Con)
The noble Baroness is right. The noble Lord, Lord Purvis of Tweed, has made a very good point about the reduction in aid generally, and the Government have responded to that in the appropriate way.
The Houthis are extremely powerful, but they seem to be limited to this specific area, and it is incumbent on the allies to ensure that pressure is kept up so that they do not spread to the rest of Yemen. We have very good relationships with the legitimate Government of Yemen and continue to work with them in that direction.