Draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Amendment) Order 2024
(1 month, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Justice (Gareth Bacon)
I beg to move,
That the Committee has considered the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Amendment) Order 2024.
It is a pleasure to serve under your chairmanship, Mr Twigg. For context, part 3 of the Domestic Abuse Act 2021 introduced a new civil domestic abuse protection notice, or DAPN, to provide immediate protection following a domestic abuse incident, and a new civil domestic abuse protection order, or DAPO, to provide flexible longer-term protection for victims.
In summary, the difference between DAPNs and DAPOs is as follows. DAPNs are police-issued notices to provide victims with immediate protection following an incident. A DAPN can require the perpetrator not to contact or come within a specified distance of the victim. If the police issue a DAPN, they must then apply for a DAPO in the magistrates court, and this application must be heard by the court within 48 hours of the DAPN being issued. DAPOs are a new civil order available in all courts: magistrates courts, Crown court, family court and county court. They can be sought by a variety of parties and have a flexible duration to provide longer-term protection to the victim when necessary and proportionate. The DAPO can place firmer conditions on the perpetrators than other currently available protection orders such as electronic monitoring, and impose requirements such as mandating attendance on a behaviour change or substance misuse programme. Breach of a DAPO is a criminal offence punishable by up to five years in prison.
Appeals against a DAPO would have to be made to the appropriate court. That would mean that where a DAPO was made in the magistrates court, the appeal must then be heard in the Crown court; where the DAPO was made in a Crown court, the appeal must be heard in the Court of Appeal. Appeals against decisions made by other courts, such as the family court, county court or the High Court, would be heard in accordance with section 46 of the Domestic Abuse Act 2021.
This year, the Government will launch a pilot for an anticipated two years for DAPNs and DAPOs. To ensure that those protected by and subject to the DAPO are able to access legal aid, subject to means and merits tests, this statutory instrument will expand civil legal aid services in England and Wales by making civil legal aid for advocacy available in magistrates courts’ proceedings for DAPOs and in the Crown court on any related appeal.
The provisions in this statutory instrument complement the provisions in SI 2023/150 of 7 February 2023, which brought both DAPOs and DAPNs into the scope of legal aid. SI 2023/150 also increased the flexibility with which medical professionals can provide supporting evidence to victims of domestic abuse. Medical professionals are now able to provide supporting evidence for a legal aid application following a telephone or video conferencing consultation, rather than only after a face-to-face consultation. The intention of the legal aid scheme, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO, is to provide legal aid to those most in need. We believe that this SI, together with SI 2023/150, will help to meet that objective for DAPNs and DAPOs.
Before turning to the amendments in this instrument, I will briefly set out how the civil legal aid scheme works. In general, civil legal aid is available to an individual if their issue is listed within part 1 of schedule 1 of LASPO. Then, in most cases, an individual must pass a means test—a check on their financial eligibility—and a merits test, which is a check to ensure that the taxpayer is not funding entirely unmeritorious claims.
I will now turn to the changes covered by the order before us today, which is relatively short. This statutory instrument will made advocacy—for those persons who are protected by a DAPO, or for those who are subject or potentially subject to a DAPO—under civil legal aid available in the magistrates courts. This form of civil legal aid will apply in DAPO cases where the application for the DAPO is made by the police in the magistrates courts, and it will extend to appeals in the Crown court and to applications to vary or discharge the DAPO in these courts. As I indicated in my introduction, this order complements the changes made by SI 2023/150 of 7 February 2023, and ensures that we meet the policy objective of making legal aid available, subject to tests, for DAPNs and DAPOs across civil, family and criminal courts.
To conclude, the draft instrument before us expands the civil legal aid services available in relation to DAPOs and DAPNs to ensure legal aid continues to be available to those most in need, thus ensuring that the DAPO pilot is fully implemented from a legal aid perspective, and that the original policy intention of LASPO is maintained.
Alex Davies-Jones (Pontypridd) (Lab)
It is a pleasure to serve under your chairship, Mr Twigg. I am grateful to the Minister for introducing this order. It is the latest step towards amending current legislation to give full effect to the Domestic Abuse Act 2021, and it is welcome. The Opposition also welcome the pilot in the areas listed by the Minister, and we look forward to seeing the effects of that; hopefully, it can be rolled out across the UK.
I do, however, have some concerns about the current use of legal aid and the victim-survivor experience that I hope the Minister will look into while he is considering this. Only last week, while speaking with independent domestic violence advisers and independent sexual violence advisers—IDVAs and ISVAs—in my constituency of Pontypridd, I was informed of the way in which legal aid is currently being applied, and I was utterly horrified. I heard examples of court-mandated drug tests for the perpetrators being taken out of the victim’s legal aid budget. I heard of survivors having to use legal aid to pay for copies of their own victim impact statement, and I heard of victims who had to fund their own special measures granted in the court. It cannot be reasonable for them to have to sacrifice these vital funds simply to limit the traumatisation process and access their rights as a victim-survivor. This should not be happening.
Although the expansion of legal aid is welcome, when it is finally granted, which can be a challenge in itself, there is concern that there are not enough professionals seeking to take up these cases. We have heard from victim-survivors who are unable to get a solicitor who wants to take their case because it is simply not worth their while. What are the Government doing to ensure that victims have adequate representation, that these cases are taken up by legal professionals, and that we have adequate solicitors and barristers to take them forward? Can the Minister assure me that once these changes go through, he will consider carefully the legal aid system as a whole? We have been waiting far too long. The sector has urged me to place on record its frustrations with the need to update the current status quo. It is not just that it needs to be kept in line with the current legislation—it needs to be fit for purpose. From listening to victim-survivors, I know that it is not.
As has been acknowledged by the Minister, this draft order seeks to implement a change to the current legislation that is required as a result of the Domestic Abuse Act, and the Opposition therefore have no reason to oppose it.
Gareth Bacon
I thank the hon. Lady for welcoming the measures in this SI. The means test that I mentioned earlier is to ensure that the legal aid that we provide goes to the people who need it the most. Every case will have to be subject to it, which is why not everybody will get legal aid in every circumstance.
We are keeping things under review. We have increased legal aid fees, and we are encouraging more providers to undertake the work that is required. The reason we are doing a pilot, rather than rolling out the measure nationally, is to make sure that we have set the fees at the right level so that they attract the right level of interest from firms to provide the work that is needed. We are going to keep that under review. The reason for doing a pilot is to assess that. If the pilot does not deliver the desired outcome, we will seek to review that. With that, I commend the SI to the House.
Question put and agreed to.
Draft Representation of the People (England and Wales and Northern Ireland) (Amendment) Regulations 2024
(1 month, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Simon Hoare)
I beg to move,
That the Committee has considered the draft Representation of the People (England and Wales and Northern Ireland) (Amendment) Regulations 2024.
It is a pleasure to serve under your chairmanship, Mr Hosie. May I start with an apology? We have had to bring the draft instrument forward as a tidying-up and housekeeping exercise. It is nothing to set the world alight, but it is an important thing to do, and I hope it will be supported across the Committee.
The Elections Act 2022 introduced measures to, among other things, amend the franchise to reflect the United Kingdom’s new relationship with the European Union and to protect the rights of UK citizens living in EU countries. Last year, two statutory instruments were passed that flowed from that aspect of the Elections Act. They made changes to the voting and candidacy rights of EU citizens in England and Wales and Northern Ireland. They provided for a new registration requirement for applications from EU citizens and set out a process requiring electoral registration officers to conduct a one-time review to determine the eligibility of all registered EU citizens. One instrument applied to all local elections in England and to police and crime commissioner elections in England and Wales. A separate statutory instrument applied franchise changes to local government and Assembly elections in Northern Ireland. The majority of the changes came into effect from 7 May.
We are bringing forward this instrument to amend a drafting oversight in both of those sets of regulations. A primary intention of the two current instruments was to allow EU citizens who chose to make the UK their home prior to the end of implementation period—that is, before the UK left the EU—to continue to have the right to vote and to stand for election. That group of electors is referred to as “EU citizens with retained rights”. People applying to register to vote under the retained rights criteria, referred to as “relevant EU applicants”, must make a legal declaration that they meet the criteria of an EU citizen with those retained rights, have been legally resident in the UK since the end of the implementation period and are from a country with which the UK does not have a voting and candidacy rights treaty.
Relevant EU applicants were intended to be defined as individuals who are citizens of the 19 EU member states with which the UK does not have a reciprocal voting and candidacy rights treaty and who are not citizens of Ireland, Cyprus or Malta—for which exemptions exist because Irish citizens’ UK voting rights long predate the EU, while the voting rights of Cypriot and Maltese citizens derive from their citizenship via the Commonwealth. The five countries with which the UK has voting and candidacy treaties are Spain, Portugal, Luxembourg, Poland and Denmark. Citizens of those countries will not lose their voting rights in the UK.
However, due to an oversight, the requirement for applicants to indicate that they fulfil retained rights criteria unintentionally applies to particular applicants with dual nationalities—that is the key point here—even though their answer to those criteria requirements will have no bearing on their eligibility to register to vote. In essence, the drafting error forces people to prove twice, rather than only once, their right to vote.
The current legal definition of a relevant EU applicant means that citizens of the 19 relevant EU countries who also have another nationality that is British or Commonwealth, excluding Cyprus or Malta, or have citizenship of a treaty partner state, are legally obliged to indicate that they fulfil retained rights criteria, as part of their application to register to vote, even though that answer is irrelevant to determining their eligibility. Retained rights criteria are immaterial because the eligibility of an individual with more than one nationality to participate in elections is established based on whichever of their nationalities grants them the greatest voting rights. For example, an individual with British and French dual nationality would have the same voting eligibility as someone with single British nationality, making it unnecessary to make demands that are relevant only to French applicants.
While this issue exists in law, if an application to register to vote from a relevant dual national is received by an electoral registration officer and the applicant has not indicated that they fulfil the retained rights criteria, that application would technically be incomplete. As such, the administrator would have to get in touch with the applicant to require this information, even though the answer to the question would make no difference to the outcome of their application.
In practice, this issue creates the potential for confusion among applicants, who could reasonably object on the grounds that being asked to indicate that they fulfil retained rights criteria is unreasonable. Worse, this confusion could even result in people abandoning an application to register, disenfranchising themselves—something I am keen to avoid. It also creates the potential for an increased administrative burden on electoral registration officers.
Today’s statutory instrument amends the definition of a relevant EU applicant in the England and Wales regulations, as well as the equivalent term used in the regulations pertaining to Northern Ireland. The instrument defines a relevant EU applicant as someone who is a citizen of an EU member state, is not a citizen of an EU member state that has a treaty with the UK and/or is not a British citizen, a qualifying Commonwealth citizen or a citizen of the Republic of Ireland. That will provide an enduring resolution to the issue, with the dual nationals I referred to earlier no longer being legally required to provide immaterial information as part of their application to register to vote. Until this instrument comes into force—which I hope it will with the support of the Committee this afternoon—measures have been put in place to minimise the extent of the issue, but this instrument is needed to fully remedy the problem.
Having set out the background to this statutory instrument, I hope the Committee will appreciate the need to make swiftly this straightforward legislative amendment to remove the risk of confusion among applicants and unnecessary burden for electoral administrators.
Florence Eshalomi (Vauxhall) (Lab/Co-op)
It is a pleasure to serve under your chairship, Mr Hosie. I thank the Minister for his introduction, but we are back here again, debating the second statutory instrument this year that corrects errors in regulations relating to the Elections Act.
As I am sure the Minister will remember, the previous SI related to information on postal and proxy poll cards. I was not critical of the Government for making that mistake, and we do not intend to be overly critical over today’s correction. But I have to be honest with the Minister that the fact that we are here yet again emphasises the enormity and complexity of the Elections Act and electoral statute.
When I was trying to get my head around this instrument, which should be relatively simple, I had to look at about five to six different Acts and regulations spanning over 40 years of legislation. Some Front-Bench colleagues may think that those are rookie numbers compared to the spaghetti that exists in some areas of law.
As the Minister outlined, it is critical that our electoral law is as legible and transparent as possible, not only for the health of democracy but—I have mentioned this to the Minister on numerous occasions—for the workload of our understaffed electoral teams, which are tasked with keeping the integrity of our elections intact. Unfortunately, rather than helping our electoral administrators, the Government have introduced an Elections Act that drastically increases the burden on them.
Not only do the electoral officers now have to deal with increased burdens from the changes to postal vote deadlines, but they have to implement the flawed photo ID system and adjust their registers to reflect the new franchise for EU nationals. The Government estimate that, starting on 7 May, up to 170,000 people will be removed from the electoral roll. While additions to the franchise are not particularly novel, and it is 55 years since a Labour Government gave 18-year-olds the right to vote, I believe that this is the first time any mass disenfranchisement of registered voters has happened in the UK in the last 100 years.
That brings with it a unique set of challenges for our electoral system and officers, particularly in a year when we are going to see so many significant elections and hopefully, fingers crossed—hint—a general election. Mistakes in legislation in this area make that challenge even harder. They could create significant confusion and concern among dual nationals who are entitled to vote, by not only collecting unnecessary information from those looking to register, but increasing the workload of electoral officers, who already have to tidy up databases and deal with queries from so many different members of the public who are confused as to why this question is being asked in the first instance.
Given the different levels of voting rights that different EU citizens will now be entitled to, what steps is the Minister taking to ensure that all those different citizens know their voting rights? For example, what is happening—the Minister mentioned dual citizenship—in relation to those who have been granted British citizenship and those who are granted local voting rights via the reciprocal schemes? I would also be grateful if the Minister could outline what support is being provided to electoral officers to carry out the amendment to the franchise for EU nationals. What steps are the Government taking to ensure there are no mistakes in the system?
The Minister says that the changes are just about tidying up. If he needs convincing of the importance of this issue, he should look at the Levelling Up, Housing and Communities Committee’s report on voter registration, which highlighted a creaking system without any efficiency and with the huge challenges presented by the Elections Act.
The Minister touched on voters who would have to qualify to vote via the reciprocal arrangements with member states, as listed in schedule 6A to the Representation of the People Act 1983. The Minister knows that there is cross-party consensus on trying to reach those arrangements with other EU countries, and it is good to see that an agreement with Denmark was reached earlier this year, following similar agreements with Spain, Portugal, Luxembourg and Poland, as the Minister said.
However, although the practical implications for citizens of other countries will be minor, what will happen if arrangements are reached in the near future for the removal of non-qualifying EU nationals from the register? Will the citizens of those nations need to re-register as new voters? Again, there is complexity here in terms of explaining what people’s voting rights are. For example, will the regulations mean that the checking process could be longer? Will it happen between now and 31 January? Will citizens of a nation with a newly created arrangement be removed from the register, even though, as the Minister outlined, they may be entitled to vote? I hope the Minister can outline that we will avoid a postcode lottery of registration in different circumstances.
I understand the communication requirements as part of these alterations, which could create confusing circumstances for citizens and campaigners seeking to get people registered to vote, which is what we all want to see—more people registered to vote. Also, to go back to the issue of the workload of our electoral officers, they would need to re-register people they may have just removed.
To conclude, we support this draft statutory instrument, but I would welcome reassurance from the Minister on some of those points. I am happy to follow up later if he did not catch them all.
Simon Hoare
I thank the hon. Lady for the tone and tenor she adopted in her remarks. I would say to her that to err is human; to forgive, divine. I did start my remarks by issuing an apology to the Committee: no Minister of the Crown likes to have to come back to this place to tidy up a legislative oversight. It is embarrassing and a nuisance; it wastes colleagues’ time and the time of the House. If there had been another way we could have done this, we would have, but it required the draft regulations. We thought there were two options: one was just to pretend it had not happened and to keep the burden there, with a double qualification; the other was to fess up, to put our hand up and to tidy everything up to make things easier for the administrators—the hon. Lady is absolutely right that we do not want to overburden our administrators.
To pause there for a moment, Mr Hosie, I want to put on record—I think this would be echoed in all quarters of the House—our thanks to all the staff who delivered what were peaceful and calm elections last week. They do a huge amount of work, not just on election day, as we all know, but in the weeks and months spent preparing the registers, the paperwork and everything else.
I agree fundamentally with the hon. Lady that we want to maximise the number of people who qualify not just to be on the register but to participate in our electoral processes. The requirement of the beating heart of democracy is that that beating heart be exercised, and it is exercised through the ballot. We want to maximise that.
We have seen a collision of two things. One is the Elections Act and the determination to tidy up our electoral system and to make it as resilient and robust as possible looking forward. That is tied up with the obvious knock-on implications of leaving the European Union, which meant that certain rights had to change and so on. I will not describe that as a perfect storm, but those two things—which would have been big and chunky pieces of work in themselves—have, when added together, been a test for our administrators, although I have to say that they have risen to the challenge magnificently.
The whole purpose of this exercise is to ensure that the system is as transparent and as easy to use as possible. We will of course continue to seek other treaties such as those we have with Spain, Portugal, Luxembourg, Poland and Denmark—that is an organic and iterative process, and something to be welcomed. No one qualified to be on the register under the double qualification-proving requirements we are seeking to tidy up today will have to reapply; there is no additional burden for them or, indeed, for the administrators.
I am not convinced that that requires a huge information campaign. When we have talked to the people affected, they have not realised that they have been having to answer the same question, but through two different routes. However, we will of course keep this under review, to address the point the hon. Lady made, perfectly validly, about the need to maximise the numbers of people on the register who duly qualify and to secure their participation in the ballot.
The hon. Lady referenced—I hope I quote her correctly—the “flawed photo ID system” but, truth be told, I do not think that that bears scrutiny. Yesterday, I had one read-out from officials on the electoral events of last week; this morning, I was with the Electoral Commission, and I will see it again next week. We, and the commission, have said that we will review each event in these relatively new times since the Elections Act has come into play, to ensure that things are working as we envisaged they would. If they are not, we will tidy up where appropriate. I was very struck, as I am sure everyone else here was travelled to their polling stations last Thursday, that people were there with their voter ID. Again, I pay tribute to the work of all the political parties, civic society, local authorities, the commission and the Government on promoting and raising awareness of that requirement, which does ensure that our electoral system is as robust and reliable as we can make it.
If I missed anything that the hon. Lady raised with me, my apologies, but she can drop me a line and we will reply in writing. I hope I covered the main thrust of her argument. This is a tidying-up point, which will make things easier for those who apply, while those who have applied and qualified will not have to do anything else. The changes will ease the burden on electoral administrators involved, because they do not require any going back to check on details. I do not say this in any way to be flippant, but this is a housekeeping, tidying-up point.
I am grateful for what I think I heard the hon. Lady say was her support. She and I share an annoyance that we have to be here in order to do these things, but I thought it better to get them done than to leave them hanging. With that, I close my remarks.
Question put and agreed to.
Draft Management of Hedgerows (England) Regulations 2024
(1 month, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Rebecca Pow)
I beg to move,
That the Committee has considered the draft Management of Hedgerows (England) Regulations 2024.
It is a pleasure to have you in the Chair, Mr Stringer, for what I hope will be a very positive debate. The regulations were laid before this House on 16 April. It is a very fitting time to discuss this legislation protecting our wonderful and precious hedgerows, which are so important in our landscapes and to wildlife, because, as I am sure all members of the Committee are aware, it is National Hedgerow Week.
Michael Fabricant (Lichfield) (Con)
Will my hon. Friend take this opportunity to remember a former colleague of ours, Peter Ainsworth, who is no longer? Having got into the House of Commons in 1992, he introduced a private Member’s Bill on hedgerows, to which this legislation is related.
Rebecca Pow
I thank my hon. Friend so much for that very fitting intervention. Of course, I would be delighted to remember and recognise Peter Ainsworth. That was such an important proposal, and it all builds up to the totality of legislation relating to our hedges.
Of course, we know that so many wild birds depend on our hedgerows, which provide food and habitat. Lots of our red-listed birds, such as the linnet, the yellowhammer and the goldfinch, use hedges as valuable habitats. They basically provide larders for feeding, with blackberries, sloes, and all the other fruits that the hedge provides. Hedgerows are brilliant for our pollinators as habitats, and provide food for them from the flowers within. They also provide wind breaks and shelter for protecting livestock, and protect soil by holding it in place.
With all that in mind, this is the perfect week to consider this statutory instrument in Committee, as it proposes to further protect hedgerows, demonstrating this Government’s continuing commitment to the environment. The instrument establishes, by legislation, a common approach to managing hedgerows on agricultural land in England—that is the critical bit. As I have mentioned, it builds on existing legal protections for some hedgerows, as well as existing regulations for nesting birds.
In proposing this legislation, we have listened to the views of many who cherish our hedgerows, including organisations, colleagues, and the all-important farmers. I would very much like to thank everybody who responded to the consultation we held last year on protecting hedgerows. It received more than 9,000 responses, which was wonderful; all have been considered carefully, and they have really helped to form this piece of legislation. I am pleased to say that there was a really strong consensus from environmental and farming stakeholders that hedgerows should be protected in domestic law in a similar way to the previous hedgerow management rules, provided under cross-compliance. That is what this statutory instrument does. Our aim is to provide a familiar baseline for hedgerow management, and we want to be sure that everyone knows what is expected. We will support this with some guidance and by sharing good practice. As a safeguard, we are also ensuring that there are clear, proportionate consequences for the small minority who might choose not to comply.
I grew up on a farm, and hedgerows were an absolutely integral part of our landscape. I come from the west country and, as Members know, hedgerows are important in that livestock region for their stock-proofing abilities.
These rules are a reasonable minimum, and most farmers have been practising this kind of management for many years. Farmers are the guardians of our hedgerows; they protect, plant and maintain them for future generations. I want to put on record my thanks to them for their continued efforts to help wildlife to thrive on their farms, alongside the all-important work they do in producing food. We need to trust them to continue to do the right thing. We had a Westminster Hall debate not very long ago on hedges; I mentioned my father then, and I will do so again. He was ahead of his time in hedgerow management. He devised a system of cutting the hedges every other year and only on one side, so that they and the trees could grow on the other side. All farmers are now encouraged to do that.
When I go back home to the farm, as I did at the weekend, I can see that legacy: the hedgerow trees have grown, and the thick, wonderful hedges are full of flowers and birds. It is absolutely the right thing to be doing, and I know that many farmers are already doing it—in fact, many are going further than these regulations require. We have seen a very strong uptake of options to manage and further improve hedges under our agri-environment schemes. Lots of colleagues have farmers in their constituencies who have done just that.
I am delighted to report that there are more than 20,000 agri-environment agreements in place or applications coming through, contributing to the management of 60,000 miles of hedgerow in England. We look forward to working in partnership with many more farmers to manage and improve even more hedgerows in the future.
Giles Watling (Clacton) (Con)
As the Minister is mentioning farmers and hedgerows, which are a vital part not just of the west country but of Essex, I want to say that I recently visited a very small company called The Big Green Internet company, which is creating hedgerows and helping farmers to develop them. We must not forget the smaller outfits that are trying to develop hedgerows across the countryside.
Rebecca Pow
I thank my hon. Friend for that. I should add that company to my list for a visit. There is valuable work to be done in linking up hedgerows to make corridors across the countryside, which are so important to the movement of wildlife. That is something that our agri-environment schemes are trying to encourage.
Let me turn to the actual content of the regulations. Their purpose is to protect hedgerows to support biodiversity, benefit the environment and enrich the landscape. They will ensure that all farmers are treated fairly by upholding common rules for managing hedges and providing clarity on what to expect. They govern the management of important hedgerows on agricultural land. Broadly, that means hedgerows that have a continuous length of at least 20 metres; if shorter, they must meet another hedge at either end. The regulations do not apply to hedgerows within or forming the boundary of a dwelling house. Because the regulations apply to all important hedgerows growing on agricultural land, they will bring into scope some people who are not subject to cross-compliance, such as those who chose not to claim any direct payment previously or those who have farms under 5 hectares.
The regulations have two main requirements. First, a 2 metre buffer strip must be established and maintained to protect the hedgerow and its root system from the effects of cultivation or the application of fertilisers or pesticides. Subject to certain exceptions, those activities will not be allowed within the buffer strip. Secondly, cutting or trimming hedges will be banned between 1 March and 31 August, inclusive. That is to protect hedge-nesting birds and their habitats during the breeding season. There are some exceptions to that rule to give farmers and others flexibility where needed.
The requirement for a buffer strip will not apply to fields that are 2 hectares or smaller. We recognise that people who do not already have buffer strips in place may need time to establish them. We therefore propose that in cases where a field has no buffer strip and is in crop production on 1 July 2024, the requirements will not come into force until they have harvested the crop. That will give them time to get the crop out and then start work on the buffer strip.
The regulations will be enforced on behalf of the Secretary of State by the Rural Payments Agency. Although the rules themselves will be familiar to many farmers, there will be a different approach to enforcement, with an emphasis on being fair and proportionate. People may recall that under the common agricultural policy, the cross-compliance rules for farmers were somewhat draconian, so we have listened to what they said and we are taking a different enforcement approach. The RPA will take a primarily advice-led approach, which has definitely been shown to be the best for bringing farmers into compliance in other regulatory areas. However, the RPA will also be able to use a range of civil sanctions and criminal proceedings for the worst-case scenarios. Such action will be proportionate to the damage caused.
Subject to parliamentary approval, detailed information about how the regulations will operate will be provided once the statutory instrument has been made. The RPA will also hold a public consultation on its proposed enforcement policy. I know that it is committed to a modern, pragmatic, proportionate approach, with advice and guidance at the forefront.
Although the regulations govern the management of hedgerows on agricultural land, we recognise their value in other locations. Particularly in National Hedgerow Week, there can be no doubting their importance in other places such as our gardens and parks. Separately, I have therefore asked my officials to work with stakeholders to consider how to support the sustainable management and protection of hedgerows more widely in the future. In conclusion, the statutory instrument will afford fuller protection to one of our countryside’s best loved assets, the hedgerow, which will be widely welcomed.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stringer.
It is vital that our precious hedgerows once again enjoy the security that was granted to them under cross-compliance regulations. As we have heard, they serve as habitats for a huge array of wildlife, including bats, birds and bees, while playing an important role as stores of carbon. These incredible marvels also help land managers to adapt to climate change by sheltering livestock and crops, and mitigating flood risk by regulating water flows. We will not be opposing the draft legislation. However, it is concerning that it has taken the Government so long to bring the changes forward, and I have several questions for the Minister about the operation of the regulations.
Following the withdrawal of the cross-compliance regulations on 1 January this year, there has been a gap in the protection of hedgerows. This statutory instrument should have come much earlier to ensure that these remarkable wonders, and homes to a rich variety of natural life, were not vulnerable to damage. As mentioned, the no-cutting period has run from 1 March to 31 August in previous years, and will do so from next year. However, cutting is currently allowed, which presents a massive risk to hedgerows. Farmers and land managers, the erstwhile custodians of our fields and hedges, are under immense pressure at the moment, not least because of the Government’s botched transition to environmental land management schemes.
It is worth reminding ourselves that the Department for Environment, Food and Rural Affairs has tarnished its covenant with English farmers by failing to spend over £200 million in support. That money is simply sitting in its coffers while farmers struggle to make ends meet. Removing protections at that moment created the real risk that stretched farmers will be presented with impossible choices, and that our exceptional network of hedges will suffer as a consequence.
The draft legislation is an opportunity for the Government to replicate the benefits provided by cross-compliance rules while amending and improving those regulations. The no-cutting period set out in the draft legislation replicates the previous March to August ban. We know that the break in cutting offers hedgerows and their inhabitants vital respite, so will the Minister explain why she did not consider extending the no-cutting period to September? That would have made good on a genuine positive of Brexit and helped wild species, such as the hazel dormouse, that breed into late September.
The draft regulations will keep the definition of important hedgerows that is set out in cross-compliance guidance. That is to be welcomed, but that definition differs from the one in the Hedgerows Regulations 1997, which is far too prescriptive and convoluted. The Department now has the chance to make these definitions consistent and remove any uncertainty for farmers and land managers, avoiding confusion and differing standards. Will the Minister commit to simplifying the definition of an important hedgerow and making it consistent so that there can be no doubt what it is that we are so keen to protect?
Despite the chance to amend and improve cross-compliance rules, the regulations replicate exemptions for which there is simply no basis. The majority of respondents to the Minister’s own consultation were against many of the exemptions and said that several should not be replicated. Why is the Minister so determined to repeat these errors in the face of evidence and informed opinion from the sector? In many cases, there is simply no need for the exemptions. Guidance to support land managers to plant sustainable and nature-boosting rotational management of hedgerows would be a viable alternative to creating unnecessary loopholes.
Under the rules that the Minister has presented, fields smaller than 2 hectares will not be required to have a buffer strip to protect their hedgerows. We know how essential buffer strips are to making sure that hedgerows can thrive and continue to perform their crucial role: as we have heard, they host a variety of threatened species and are corridors in what can be challenging terrain for mammals and invertebrates. Strips around hedgerows can also help to halt pesticides and fertilisers, meaning that they do not end up in our water system—and we know what a dire state our waterways are in. The recent, record-breaking sewage statistic showed that raw sewage was swilling into our rivers, lakes and streams for a staggering 3.6 million hours over the past 12 months, so it is difficult to understand why the Government would do anything to further degrade the quality of our water.
The exemption will lead to huge numbers of hedgerows being unprotected, despite the evidence that hedgerows in small fields punch well above their weight. They provide remarkably high-quality habitats for animals and offer sanctuary for wildlife, allowing connectivity between the animals’ various homes. A staggering 77% of respondents to the Government’s consultation said that the exemption for fields smaller than 2 hectares should not be replicated. Will the Minister commit to reviewing the replication of that exemption to make sure that all hedgerows, irrespective of the size of the field that they are in, can be protected for the benefit of nature?
Hedgerows that are less than five years old will not be protected by buffer strips. Youthful hedges are particularly vulnerable to the challenges that are occasionally—or more than occasionally—posed by British weather, chemical pesticide sprays and disturbances to their roots. The justification for the exemption is to
“allow spot-application of herbicides to control weeds”,
but the risk of damage from agricultural work within fields far outweighs the danger posed by weeds within hedges. When asked whether the exemption in cross-compliance rules—under which no buffer strips are required around hedges under five years old—should be replicated in the new legislation, an overwhelming 80% of respondents to the Government’s own consultation answered no. Will the Minister commit to removing this exemption to make sure that nascent hedges, the ancient hedgerows of tomorrow, are given the best possible chance to thrive?
The draft regulations will also change the process that farmers have to follow for the exemption for cutting to sow oilseed rape or temporary grass in August. Farmers will no longer have to apply to the Rural Payments Agency for the exemption; they will merely have to notify the RPA that they have undertaken the cutting. This relaxation could massively increase the use of the exemption. Has the Minister undertaken any assessment of the potential impact? The exemption could be avoided with stronger guidance to land managers on their use of margins.
I am sure that the Minister agrees that any plan is only as good as its implementation. That is why the Government really must say more about their approach to non-compliance and enforcement of protections. Under cross-compliance rules, non-compliance resulted in a reduction in the basic payment that a land manager received, potentially amounting to 5% of their basic payment.
Failure to comply with the new rules may result in a fine. We have no way of knowing how those fines will compare to the penalties that were given out in the past for failing to comply. Any watering down of enforcement tools would represent a retreat and would be to the detriment of our hedgerows. Will the Minister commit to publishing estimates on the level of fines that she expects to see for these new offences? Will she reassure me that they will be consistent with the previous penalty levels?
The draft regulations also mark a shift in the Government’s approach to enforcement. Mistakes will not be penalised and are listed as a valid defence. It is absolutely right that the Department develop strong, collaborative relationships with farmers, and it is clear that the Government have much to do to regain the trust of the sector. However, does the Minister have any evidence to support this change to the enforcement approach? This alteration will mean much more work for the Environment Agency, which had its budget halved in the decade to 2022. Making sure that the new rules are observed by all land managers is vital if hedgerows are to thrive.
It is deeply disappointing that a gap in the protection of hedgerows was allowed to be created following the end of cross-compliance rules. We will not oppose these changes. I welcome the Government finally returning to the protections that these remarkable natural assets need. They do so much more than neatly divide our countryside; they suck down carbon, host a startling variety of wildlife, help to protect our waterways and act as essential highways for all creatures great and small. I look forward to the Minister’s response.
Rebecca Pow
I thank the shadow Minister for supporting the draft regulations and agreeing with Government Members about how important our hedgerows are for our landscape, our wildlife, our soil protection, our livestock protection and the all-important carbon storage. I think we are in complete agreement about that, and about the need for the draft regulations.
The shadow Minister raised a range of points. I will deal with some of them, but if she would like anything else in writing, I am happy to send it. There were a lot of individual points about all the different exemptions. Yes, there are quite a lot of exemptions, but there are reasons for them all that have been closely consulted on.
The shadow Minister raised a point about whether there was a delay. We held a consultation, as I mentioned, and there was such a strong response: more than 9,000 people responded. That all had to be considered before we could move on. That is partly why we have waited until now, but I am pleased to say that we are now moving on forthwith.
There are already many legal protections in place for hedgerows, as well as regulations to protect nesting birds. The shadow Minister mentioned that there might be a gap in protection before the draft regulations come in, but we have the existing regulations, as well as a load of other agri-environment schemes farmers are already in, which do a great deal of good work to protect hedges. As I have pointed out, farmers have been very supportive of the new legislation, which is partly why we are bringing it in. We have listened to them about some exemptions.
Mindful of the time factor, and mindful of nesting cycles and the seasons, we plan to bring the draft regulations into force as soon as possible: on the day after they are made. There will, however, be a phased approach for the buffer strip requirements for those who do not already have them in place, or for those who are going to harvest a crop first and then put the buffer in.
The draft regulations are designed to give our hedgerows the protection that they need. I have explained the need to consider the consultation; exceptions to the rules have been made, where necessary, to ensure a balance between hedge protection and effective farming. That is really important, especially in the light of food security.
The shadow Minister made particular mention of an exemption for buffer strips in fields of 2 hectares. She should consider that if buffer strips are put there, the field would largely be eaten up and there would not be a lot of room for growing crops. We have listened to comments about that, which is why that provision is there.
Emma Hardy
I am very happy for the Minister to write to me with a more detailed response to the questions I have raised. I apologise if she was about to do so, but can she comment on why there is an exemption for hedgerows under five years old? We are not going to have the ancient hedgerows of the future if we do not protect the new ones we are growing today? [Interruption.]
The Chair
Order. May I ask the Members in the corner to listen in silence, please? This is an important SI.
Rebecca Pow
I will send the shadow Minister that information in writing, but if one is establishing a new hedge—I am doing it myself—there may have to be a requirement for spot spraying to control the weeds, in order to let the hedge thicken up and develop. That was heavily debated and assessed, and that is the reason for it. Once it is five years old, it comes completely within the regime.
The shadow Minister asked why the ban on cutting is from March to 31 August, rather than going on into September. We have had scientific advice from the British Trust for Ornithology; bar a few exceptions, it was very happy that the main bulk of birds that need to be protected can be looked after. The main nesting season ends by 31 August, so it was happy with the decision on cutting date. I hope that that is clear.
On exemptions and enforcement, there is a commitment for the legislation and regulations to be reviewed every five years, so there is room to make improvements or tweaks. The enforcement and civil sanctions provisions are to be reviewed three years after coming into force, to see whether they are working effectively and the new approach whereby we are trusting farmers and being much more inclusive, is working as envisaged.
The new civil sanctions are coming in alongside the possibility of criminal proceedings, to ensure that the RPA has the right tools in its box to enforce the regulations correctly. We want the regulations to be enforced fairly and proportionately. The RPA will adopt an advice-led approach to monitoring and enforcement wherever it can. It will take criminal proceedings forward and use the new civil sanctions where appropriate, but each case will be considered on its merits.
The draft regulations deal with the protection of hedgerows on agricultural land. That is a very important part of the story, but of course all hedgerows are vital habitats. We have heard some arguments for extending protections beyond that. I recognise that that requires further investigation, but I have asked officials to look into what the options might be.
I thank the shadow Minister and, hopefully, all other Committee members for their support. This is the right thing to do: it is great for our environment and will protect our wonderful hedgerows and all who live in, on or under them. I commend the draft regulations to the Committee.
Question put and agreed to.
Draft Armed Forces (Court Martial) (Amendment) Rules 2024
(1 month, 3 weeks ago)
General CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Defence People and Families (Dr Andrew Murrison)
I beg to move,
That the Committee has considered the draft Armed Forces (Court Martial) (Amendment) Rules 2024.
It is a great privilege to serve under your chairmanship today, Mrs Cummins. We have discussed at length in this forum our shared desire to ensure that the criminal justice system and the service justice system are aligned wherever possible. That has been a recurring theme during my tenure as a Minister, and I think that it is something on which we are all agreed. This measure is part of that process. In essence, it brings into the service justice system a small element of the criminal justice system that has been missing since the introduction of the Serious Organised Crime and Police Act 2005.
The statutory instrument before us today is technical in nature. It amends the court martial rules by introducing a new procedure for the court to review sentences under new sections 304D and 304E of the Armed Forces Act 2006, further to the Armed Forces Act 2016. I will begin by briefly providing the primary legislation context. New sections 304A to 304H will create a statutory framework for immunity from prosecution, undertakings restricting the use of evidence, and sentence reductions for offenders who co-operate in investigations and prosecutions. These provisions closely follow those contained in sections 71 to 75 of the Serious Organised Crime and Police Act 2005, which apply to the civilian criminal justice system.
The instrument before us today specifically relates to new sections 304D and 304E. New section 304D provides that a person who has been sentenced by the court martial may have their sentence reviewed to take account of assistance that they have given, or offered to give, to an investigator or prosecutor pursuant to an agreement with the Director of Service Prosecutions. The reviewing court may reduce the sentence in return for the assistance offered or given.
New section 304E allows a sentence to be reviewed to take account of a failure by the person sentenced to give assistance that they have offered to an investigator or prosecutor, and in return for which they have received a sentence that was discounted. If the reviewing court is satisfied that the person knowingly failed to give assistance, it may increase the sentence to take account of that failure. However, it is important to note that the power under new section 304E can only be increased up to a term not exceeding the level that the court indicated would have been the sentence had there been no agreement to provide assistance. In other words, it cannot put the offender in a worse position than they would have been in had they not offered to provide the assistance.
Finally, I would like to mention that both new sections 304D and 304E include a right of appeal to the Court Martial Appeal Court. This allows for any decision coming out of a sentence review to be appealed by either the offender or the Director of Service Prosecutions. I direct the Committee to the Armed Forces (Appeals Against Review of Sentence) Regulations 2024, which I will soon be laying before Parliament. Those regulations, which will be subject to the negative procedure, will make provision to govern the procedures for such appeals.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
The Opposition have no major problems with these proposed amendments to the armed forces rules, but I have a few questions for the Minister in relation to them. I think we all agree that we want a service justice system that works effectively, that can investigate and prosecute, and that has outcomes people trust, as well as one in which people can come forward with complaints. In that respect, the amendments that the Minister proposes seem eminently sensible.
My first question relates to the changes proposed to rule 32—persons ineligible for membership—which is on page 3 of the rules. A person is ineligible to serve on a court martial if they served in the same unit as the offender at any point from the commission of the offence, but they might have previously served with that offender in a unit for a long period of time. Is there a point before the commission of the offence when having served in the same unit would also make them ineligible to sit on the court martial? It seems to me that, at some point, there might be a longevity of relationship, and I wonder whether that is captured by any other provision or whether that is an area that the Minister could come back to. Secondly, does the rule include joint operations, where a person may not necessarily be in the same formal unit but might be assigned to work in a collaborative way, in a closely positioned operation and in a joint setting? Does “unit” capture things that are not in a formal regiment or structure but could be in a joint operation?
The new rules on lay members attending the review of sentence proceedings via live link seem entirely logical. Will the Minister set out where there is a minimum requirement for the number of lay members who must attend in person?
Because we do not get too many of these amendments, and the amendments seem eminently sensible, may I also ask why they were not included in the Armed Forces (Court Martial) (Amendment) Rules 2022, which were brought before this House as a result of the Lyons review? Many of the amendments in the draft rules seem to fit with the amendments that were in that previous statutory instrument, so I would be grateful if the Minister could set out what that means.
I agree with the Minister that bringing bits of civilian justice into the service justice system seems a good approach, and that is an opportunity for me to restate Labour’s position that murder, manslaughter and rape committed in the UK should also be included in the civilian justice system.
Finally, I want to make a point about the application of the legislation to Gibraltar. People who have heard me speak on SIs will know this point, but I am increasingly concerned that a body of armed forces legislation seems to apply to armed forces personnel everywhere around the world except Gibraltar, creating quite an application gap in Gibraltar. Has the Minister’s Department done any work to capture that deficit for service personnel who are serving in Gibraltar? It seems erroneous that, if offences are committed in Gibraltar rather than somewhere else, they are treated in a different and more dated fashion.
Dr Murrison
I would be very disappointed if the hon. Gentleman had not mentioned MMR or Gibraltar, but there is nothing in the draft rules that alters the situation in respect of either of those things. We will have to disagree on MMR; the arguments for and against are extremely well rehearsed, and he will note the time it takes to convict in the service justice system versus the civilian justice system. Justice delayed is justice denied, and I am comfortable, on balance, that continuing to try those cases through the SJS is appropriate in the interests of justice. Obviously, everything is subject to whatever happens in the future, but, on balance, that will be the position of this Government.
On why the rules have not been brought forward before, I share the hon. Gentleman’s disappointment at anything that does not serve our shared intention of aligning the criminal justice system and the service justice system in a timely fashion. This piece of work has been going on for many years now, and it would have been good had we been able to crack through all of it immediately after the passage of the primary legislation, but these things take time; I am just pleased that this tiny bit of regulatory change is being made now. I must emphasise that the number of cases to which it is likely to apply is pretty small. I do not have figures for how many cases it affects in the criminal justice system, but I am assured that it is a very small number; if that is translated to the service justice system, I suspect that it will be even less.
On members of court martials declaring an interest, any conflicts need to be made clear to the president of the court and dealt with in the normal way. As far as lay members are concerned, that is not the subject of the draft rules but is laid out in primary legislation.
Question put and agreed to.