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General Committees

Debated on Tuesday 17 November 2020

Delegated Legislation Committee

Draft Audiovisual Media Services (Amendment) (Eu Exit) Regulations 2020

The Committee consisted of the following Members:

Chair: †Graham Stringer

† Cartlidge, James (South Suffolk) (Con)

† Caulfield, Maria (Lewes) (Con)

† Clark, Feryal (Enfield North) (Lab)

† Gibson, Peter (Darlington) (Con)

† Johnson, Gareth (Dartford) (Con)

† Lamont, John (Berwickshire, Roxburgh and Selkirk) (Con)

Lloyd, Tony (Rochdale) (Lab)

McDonnell, John (Hayes and Harlington) (Lab)

Mahmood, Shabana (Birmingham, Ladywood) (Lab)

† Mayhew, Jerome (Broadland) (Con)

† Onwurah, Chi (Newcastle upon Tyne Central) (Lab)

† Stafford, Alexander (Rother Valley) (Con)

† Sturdy, Julian (York Outer) (Con)

Thompson, Owen (Midlothian) (SNP)

Timms, Stephen (East Ham) (Lab)

† Whittingdale, Mr John (Minister for Media and Data)

† Wild, James (North West Norfolk) (Con)

Nina Foster, Committee Clerk

† attended the Committee

Second Delegated Legislation Committee

Tuesday 17 November 2020

[Graham Stringer in the Chair]

Draft Audiovisual Media Services (Amendment) (EU Exit) Regulations 2020

I beg to move,

That the Committee has considered the draft Audiovisual Media Services (Amendment) (EU Exit) Regulations 2020.

It is a pleasure to serve under your chairmanship, Mr Stringer, and I welcome my colleagues.

The statutory instrument, which was laid in both Houses on 15 October, is being made under the European Union (Withdrawal) Act 2018. The regulations remedy certain failures of retained EU law arising from the withdrawal of the United Kingdom from the European Union. Through the SI, we are seeking to maintain but not to expand Ofcom’s remit to regulate video-sharing platform services. It is necessary to do so to ensure that the law remains operable beyond the end of the transition period.

The EU’s audiovisual media services directive, which is known as the AVMS directive, governs the co-ordination of national legislation on audiovisual media services. The directive was initially implemented into UK law in 2010, primarily by way of amendments to existing broadcasting legislation. The directive was subsequently revised by the EU in 2018. The regulations 2020, which transpose the revised AVMS directive, were made and laid in Parliament on 30 September. Those regulations came into force on 1 November, and introduced for the first time rules for video-sharing platform services. The Government have appointed Ofcom as the regulator for those services. The new rules ensure that platforms falling within UK jurisdiction have appropriate systems and processes to protect the public, including minors, from illegal and harmful material.

Three key requirements were placed on VSPs under the AVMSD regulations 2020, namely to take appropriate measure to protect minors from content harmful to those under 18; to take appropriate measures to protect the general public from harmful and certain illegal content; and to introduce standards on advertising. I should also like to draw the Committee’s attention to the report from the Secondary Legislation Scrutiny Committee, which considered the SI. I thank it for its work.

I should like to address some of the concerns about jurisdiction before explaining how the SI links to UK policy goals. Under the revised the AVMS directive, currently each EU member state and the UK are only responsible for regulating the VSPs that fall within their respective jurisdiction. The directive sets out technical rules governing when a platform falls within a country’s jurisdiction: there should be a physical presence of a platform, or a group undertaking of the platform in the country. Where there is a physical presence in more than one country, jurisdiction is decided on the basis of factors such as whether the platform is established and whether the platform’s main economic activity is centred in that country. There will be only one country which has jurisdiction for each platform at any one time.

Through the SI we are seeking to maintain the same position for Ofcom’s remit beyond the end of the transition period. The remit allows Ofcom to regulate VSPs established in the UK and additionally regulate platforms that have a physical presence in the UK but not in any other country covered by the AVMS directive. Although Ofcom’s remit will not be extended to include platforms established elsewhere in the EU, we believe that UK users will indirectly benefit from the EU’s regulation platforms under the AVMS directive. The regulation under the regime is systems regulation, and not content regulation. We therefore expect that as platforms based outside of the UK set up and invest in the systems, they comply with the AVMS regulations.

In the absence of the SI, Ofcom would no longer be able to regulate any VSPs, which would result in an unacceptable regulatory gap. Our approach also mitigates the small risk that a VSP offering services to countries covered by the AVMS directive but not in the UK would establish itself in the UK to circumvent EU law. Ofcom will continue to actively engage with its regulatory counter- parts in Europe after the end of the transition period regarding the determination of jurisdiction, co-operation and consistency.

The Government have always been clear that we intend to introduce legislation that will keep people safe online while protecting freedom of expression and recognising the invaluable role of a free press. The regulations align with UK policy goals and commitments to put in place protection for users, while paving the way for the upcoming online harms regulatory regime. Given that the online harms regulatory framework shares broadly the same objectives as the VSP regime, it is the Government’s intention that the regulation of VSPs in the UK will be superseded by the online harms legislation, once the latter comes into force. Further details on the plans for that legislation will be set out in the full Government response to the consultation on the White Paper, which is due to be published later this year, with draft legislation ready in early 2021. I commend the regulations to the Committee.

It is a pleasure to serve under your chairship, Mr Stringer. I thank the Minister for his opening remarks. I declare an interest; as the Minister is aware, before I entered Parliament, I spent six years working for Ofcom as head of technology. Ofcom had responsibility for regulating broadcast audiovisual services and some responsibility for online audiovisual media services at a time when they were beginning to grow in importance, not always legally it must be said.

Online audiovisual media services were then nowhere near as widespread or as important as they have since become. They have been especially critical during these pandemic months. Of those, video-sharing platforms, or VSPs, which are the focus of the SI, have become a major presence in the lives of many in this country. VSPs are online services that enable users to upload and share videos with members of the public. Popular VSPs such as YouTube and Facebook allow users to engage with a large range of content. They have been of especially critical importance in recent months, although sometimes for worrying reasons. September saw the highest number of public reports of suspected child sexual abuse material ever received in a single month by the Internet Watch Foundation. The National Crime Agency estimates that there are at least 300,000 individuals in the UK who pose a sexual threat to children through contact abuse or online. On TikTok, the hashtag ‘#vaccinesaredangerous’ has had almost 800,000 views, with almost no mis- information warnings. Given that we hope to see a vaccine distributed very soon, the importance of appropriate action on misinformation is clear. Online advertising continues to be rampant on social media, and much of it is weakly regulated in terms of the protection offered to children in particular. The scale, speed and range of possible harms and misinformation facilitated through VSPs are vast. Yet, there is an acute sense of what those very platforms can offer for good—just ask the millions of school and university students who have continued to learn throughout the pandemic with the aid of online educational videos and video-based social engagement. I know many parents in particular who are very grateful to Joe Wicks stepping up to take on the role of the nation’s PE teacher during lockdown.

Done right, and regulated well, VSPs can be a boost to wellbeing, social engagement, education and business, and I am a big believer in technology’s positive impact on the world, especially well-regulated technology’s positive impact. As the Minister said, today’s SI is a seemingly narrow fix for deficiencies in the AVMS directive and the audiovisual media services regulations in the light of the UK’s withdrawal from the EU. It aims to define the scope of businesses that will be under UK jurisdiction for VSP regulation beyond the transition period—the end of the year, and sets the precise date of the end of the transition period for broadcasting regulation.

On jurisdiction, the SI maintains existing thinking on jurisdictional scope as being based on effectively country of origin principles. A VSP will come under UK jurisdiction if it has the required connection with the UK, the terms of which are narrow and limited to the two cases. First, a VSP will come under UK jurisdiction if it has a fixed establishment in the UK and the centre of its economic activity relating to the relevant service is based in the UK and not in another EU member state. Secondly, if the VSP is not established in the UK and no EU member state has jurisdiction over it, it will come under UK jurisdiction if the VSP has a group undertaking established in the UK. That seemingly narrow fix has wide implications and major deficiencies. It does not remedy failings in jurisdiction nor does it provide a level playing field for online and offline video services, and it does not protect our citizens from harmful content.

The scope of jurisdiction is the central issue relating to effective regulation. The SI continues to require a measure of establishment in the UK, and not in a EU member state, for a VSP to be under the UK’s regulatory scope. The SI has been introduced in accordance with the European Union (Withdrawal) Act 2018, which is intended, as I am sure the Minister would agree, to deliver British control of laws to Britain. Analysis commissioned by the Government themselves, however, suggests that under the existing ‘establishment’ test, continued under the SI, the largest VSPs—YouTube, Facebook, Instagram, dailymotion and Twitter—are outside of the UK’s regulatory scope. Many of those platforms will be under Irish and broader European jurisdiction. From my engagement with the media and technology industry, I know that that arrangement is deeply insufficient for the protection of our citizens and for the provision of a level playing field for British innovators. Fundamentally, it fails to retain, or regain, British regulatory sovereignty. Industry concerns mirror my concerns for child and public protection.

Given the millions of British children and members of public who use VSPs and seek protection from harm, what assurance can the Minister provide to suggest that his regulatory regime will protect them, especially when the Government are handing regulatory control to the EU? Looking beyond the immediate horizon, how does he intend to bring the largest VSPs under effective UK regulatory scope? Under his watch, he has taken back control on VSP regulation, only to give it right back again.

The SI is an incomplete plug to address a policy vacuum on VSP regulation. It is accompanied by temporary guidance from Ofcom on the VSP regulatory obligations, which will be supplemented by further detailed guidance introduced next year. As the Minister said, both sets of guidance will be replaced by an online harms Bill, which he told us to expect next year. That Bill has been expected imminently just about every week in this year, and further reassurances that it is on its way is hardly sufficient at this time.

Between now and the publication of next year’s final guidance, Ofcom has said that it will

‘prioritise only the most serious potential breaches’.

Why will the UK leave the transition period with no distinct regulation of grave harms that might be suffered by UK citizens? We urgently need an assurance from the Minister that the policy and enforcement vacuum will not endanger the wellbeing of citizens who use online VSP services. When will we have legislation to address that policy hole so that our citizens will be protected from online harms? When will the online harms Bill be brought before Parliament?

Video-sharing platforms continue to profit from content that is harmful and, in some cases, illegal. Online advertising, which the Minister mentioned, drives the VSP business model, and that of the content providers, for example, influencers. That advertising is almost entirely unregulated by statute and that obviously places television companies at a disadvantage, given that their advertising is regulated. It also has implications for our democracy as political advertising is also unregulated online. When will the Minister introduce the appropriate regulation of online advertising? Has any assessment been made of the uncertainty created for media businesses as a result of the Government’s constant policy catch-up? At the heart of this, when does he intend to fill the gaping gulf between regulation and the Government’s constant catch-up?

Although the SI poses pressing questions about risk and regulation, there are also persisting questions about long-term policy direction. At the fore of that, we will need a VSP regulatory regime that is effective at home and aligned with policy abroad, especially as we diverge from European legislation. That provides some scope for regulatory standards that offer robust protection to British citizens, but it also creates a need to ensure continuity, clarity and consistency for businesses. How does the Minister plan to ensure ongoing alignment with Europe on VSP regulation?

It is worth noting that the online harms Bill is a response to a two-year-old consultation, but the pace of technology, social change and the impact of covid-19 will make some of the consultation’s conclusions either obsolete or inadequate in the face of future threats. It would be nice to have a forward-looking regulatory regime as opposed to a backward one. Has the Minister consulted consumer groups and relevant VSPs to ensure the creation of a thought-through policy that is domestically effective and internationally aligned for the UK regulation of VSPs? I fear that the voice of consumer groups is unheard; the big tech companies have many lobbyists and excessive profits to pay for them. In this debate the voice of the consumer and the citizen is not as loud as that of the big tech companies.

The Government have been a static spectator as the debate on and the reality of VSPs’ online harms have passed them by. It is deeply concerning that Ministers are failing on such a matter. That failure places businesses in uncertainty, blocks innovation and gives away British regulatory sovereignty, but most of all, it threatens our children and members of the public from unchecked harms, misinformation and unregulated advertising. Despite that ongoing failure, the Government are still playing catch-up and are only now bringing in an SI on VSP regulation beyond the transition period, when there is barely less than a month before that period ends. And even then, they are introducing an SI that merely continues a highly imperfect scenario, in which British regulators cannot regulate to protect British consumers of VSP services. We deserve much better from our Government.

The Opposition will not oppose the SI because we do not think that the Government could now respond quickly enough to fill the gaps in regulation that the SI’s failings will leave. I note that the Minister is smiling, but he must take seriously the deficiencies in our regulatory framework that are left unaddressed by the SI. I hope that he can assure us that the Government will finally wake up and deliver effective regulation against harms, misinformation and unregulated advertising on VSP through immediate additional legislation.

I was smiling simply because after the catalogue of failure and disaster that the hon. Lady recounted in describing the SI, she then said that the Opposition will not oppose it, which obviously I welcome very much.

I must say as respectfully as I can that there are many catalogues of disaster and inadequacy in the Government’s legislative framework, so we are not, unfortunately, able to address each of them given the time that remains before the end of the transition period.

Nevertheless, I welcome the Opposition’s decision not to vote against the SI.

I agree with a number of the points raised by the hon. Lady. She is right that particularly in the past few months, when, sadly, so many people have been forced to remain at home, the internet generally, but VSPs in particular have become a much greater feature of people’s lives. I have been known to watch and even go along with Mr Wicks, although that may be hard for some to believe, but I have done so, as have many in this country. Educational provision online, as well as entertainment, have been really important in getting us through this.

The hon. Lady is right that although VSPs and the internet generally offer a lot of benefit, there are harmful aspects, which the Government are keen to address. We share her concern about the rising reports of the number of incidents of child abuse online, and we are determined to tackle that. She will be aware that the Secretary of State recently had a meeting with the big platforms to discuss how to address the problem of anti-vaccine misinformation. I am pleased that the platforms have agreed to take action to ensure that nobody can profit from such material, and to remove it as quickly as possible.

Things are going on, but this particular set of regulations is, as the hon. Lady knows, required under the terms of the withdrawal Act, because the regulations were introduced during the transition period, and therefore we are required to put them into UK law. We believe that they are important in that they ensure that Ofcom has full responsibility for regulating VSPs. She is right that the regulations do not go far enough, and that there are certain deficiencies. She specifically highlighted the issue of jurisdiction. Because the regulations are derived from a new directive it is not surprising that the force of that directive is to impose EU regulations. Ofcom, as currently the regulator within scope of the regulations, regulates those platforms that are established in the UK, and those platforms that are established elsewhere in the EU are regulated by the relevant country regulator there.

The hon. Lady mentioned in particular TikTok. It is an interesting one because it is established in China, but it does have a presence in quite a number of EU countries. At the moment, it is not yet been determined which country should have responsibility for the EU regulation of TikTok, but undoubtedly one of the member states will have that role.

The hon. Lady spoke about how the regulations do not take back control and how we are still subject to EU regulation. At the end of the transition period, we will no longer be bound by the decisions of regulators elsewhere in Europe. At the moment we recognise that in each case the EU regulates the platforms or providers in a particular country, and we trust it to do that. That will not be the case after the transition period comes to an end, and we will be introducing further legislation, as the hon. Lady said. Under that legislation, Ofcom will have responsibility for the regulation of all those providing services into the UK. That will go further than the scope of the existing AVMS regulations. To that extent, the regulations we are debating are a stopgap. They are intended to ensure that the European standard of regulation continues to apply after the end of the transition period, but we intend to go further and to ensure that any platforms that are providing content to UK consumers come within the scope the UK regulatory regime.

That will be achieved through the online harms Bill. The hon. Lady has drawn attention to the fact that that legislation is some time in the coming, and she is right to that extent. I would simply say that it is absolutely essential that we get it right. She pointed out that this is an area where technology is developing very fast, and we need to ensure that legislation is forward-looking and can take account of future developments. It is vital that we put in place a regulatory regime that protects vulnerable people, young people particularly, from illegal and harmful content. At the same time, we want to be very conscious not to inhibit the growth of technology companies and innovation in the digital sector, which the Government are keen to encourage. Equally, we need to safeguard freedom of speech, freedom of expression and to provide proper safeguards to ensure that professional journalistic content is not caught up in the regulatory regime.

The Government are determined to meet those objectives. It is still the case that the Government will be publishing a response to the consultation paper very shortly, and that we will be introducing draft legislation next year. The hon. Lady referred to the need to consult, and I can promise her that we are already consulting widely, and will continue to do so. I have regular discussions with all the various stakeholders, as does my colleague the Minister for Digital and Culture. Consumer groups will certainly have the opportunity to make their voice known.

Although I recognise the hon. Lady’s unhappiness that this SI is a mere EU regulation that does not go as far as she would like and, indeed, as we would like, I can reassure that we will be bringing forward UK legislation to establish a pioneering UK regime very shortly. On that basis, I invite the Committee to approve the regulations.

Question put and agreed to.

Committee rose.

Draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020

The Committee consisted of the following Members:

Chair: †Sir Christopher Chope

† Bristow, Paul (Peterborough) (Con)

Cadbury, Ruth (Brentford and Isleworth) (Lab)

† Chalk, Alex (Parliamentary Under-Secretary of State for Justice)

† Charalambous, Bambos (Enfield, Southgate) (Lab)

† Cunningham, Alex (Stockton North) (Lab)

† Davies, Dr James (Vale of Clwyd) (Con)

† Drummond, Mrs Flick (Meon Valley) (Con)

Fletcher, Nick (Don Valley) (Con)

Fovargue, Yvonne (Makerfield) (Lab)

Hill, Mike (Hartlepool) (Lab)

† Howell, Paul (Sedgefield) (Con)

Lewis, Clive (Norwich South) (Lab)

† Mumby-Croft, Holly (Scunthorpe) (Con)

† Pursglove, Tom (Corby) (Con)

† Stafford, Alexander (Rother Valley) (Con)

Thompson, Owen (Midlothian) (SNP)

† Wakeford, Christian (Bury South) (Con)

Huw Yardley, Committee Clerk

† attended the Committee

Third Delegated Legislation Committee

Tuesday 17 November 2020

[Sir Christopher Chope in the Chair]

Draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020

I beg to move,

That the Committee has considered the draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020.

It is a pleasure to serve under your chairmanship, Sir Christopher.

The instrument before the Committee relates to the question of which courts should be able to depart from retained EU case law. From January, our courts, rather than the Court of Justice of the European Union, will be the final arbiter of laws that govern lives in the United Kingdom. In order to promote legal clarity and certainty in our law following our departure from the EU, Parliament has provided that the EU law we have chosen to retain is to be interpreted in line with EU case law that we have also chosen to retain.

The way in which our law is interpreted by our courts and tribunals does not remain static over time. Our departure from the EU has naturally brought with it a change in the context in which the law is considered, and we would want our courts to be able to reflect that in their decisions where appropriate. Without the ability to depart from EU case law, there is a risk that EU law that has been retained in UK law remains tied to an old interpretation—an interpretation that is arguably no longer appropriate. In that way, the law can become fossilised or ossified. For that reason, the European Union (Withdrawal) Act 2018 vested in the United Kingdom Supreme Court, and Scotland’s High Court of Justiciary in specified cases, the power to depart from retained EU case law, applying their own test for deciding whether to depart from their own case law when doing so.

The instrument will extend the number of UK courts that have the power to depart from retained EU case law to include courts at the Court of Appeal level across the UK. It sets out that in making such decisions the test to be applied by those courts is to be the same as that applied by the United Kingdom Supreme Court in deciding whether to depart from its own case law, namely whether it is right to do so.

The instrument will achieve our aim of enabling retained EU case law to evolve in a more timely way than otherwise might have been achieved through the status quo. It will also help to mitigate the operational impacts on the UK Supreme Court and the High Court of Justiciary in Scotland that would have arisen had the power to depart from retained EU case law been reserved solely to those courts. It will further assist those courts by providing prior judicial dialogue on those complex cases from the Court of Appeal level.

In short, the provisions will balance achieving sufficient certainty with allowing appropriate flexibility. It may be worth my spending a moment just to explain what is meant by retained EU case law. That case law is defined in the 2018 Act as, broadly, any principles and decisions of the Court of Justice of the European Union, as they have effect in EU law prior to the end of the transition period. That includes those cases that were referred to the Court of Justice of the European Union by the UK, as well as those referred by other member states. That is a vast and complex body of case law, which spans across many different areas of law—environmental law, employment law, commercial law and many others.

As I have set out, the principle that British courts should be able to depart from retained EU case law has already been decided in Parliament, vesting the power to do so in the Supreme Court and the High Court of Justiciary in Scotland, where it is the final court of appeal. In amending the 2018 Act through the European Union (Withdrawal Agreement) Act 2020, however, Parliament also provided the power to make regulations to extend the list of courts that may depart from retained EU case law, to set the test to be applied by those courts and to specify any consideration that courts with the power to depart from retained EU case law should take into account in coming to such decisions.

This instrument extends the list of courts that can depart from retained EU case law to courts at the Court of Appeal level across the UK. The full list of courts is: first, the Court of Appeal of England and Wales; secondly, the Court Martial Appeal Court; thirdly, the Court of Appeal of Northern Ireland; fourthly, the High Court of Justiciary when sitting as a court of appeal in relation to a compatibility issue or a devolution issue; fifthly, the Inner House of the Court of Session of Scotland; sixthly, the Lands Valuation Appeal Court in Scotland; and seventhly, the Registration Appeal Court in Scotland.

The instrument also sets out that the test to be applied by those additional courts when deciding whether to depart from retained EU case law will be the same test used by the UK Supreme Court in deciding whether to depart from its own case law, namely, as I have already said, where it is right to do so. That test is well established and as a result is capable of being easily understood and applied without any further guidance. It is anticipated that applying the same test as that used by the Supreme Court will enable a consistent approach across the jurisdictions and in turn on appeal to the Supreme Court. There is a wealth of case law underpinning the Supreme Court’s test that has evolved over time to ensure that courts take into account changing circumstances and modern public policy.

Although the powers under which the instrument is made enable a list of factors to be specified for consideration by any court with the power to depart from retained EU case law, the Government have decided against that approach. In applying the Supreme Court’s own test in deciding whether to depart from retained EU case law, the courts will consider the principles set out in the House of Lords Practice Statement, which has been in operation since 1966, as well as the wealth of factors set out in judgments of the Supreme Court on the interpretation of its own test.

The instrument does not change the operation of the doctrine of precedent, which practically speaking, as hon. Members will know, means that when a court reaches a decision on whether to depart from retained EU case law, that judgment has the same precedent status as other judgments from that court. In other words, what matters is the rank of the court rather than the underlying material. As required in statute, the Government have consulted the President of the UK Supreme Court, the Lord Chief Justice of England and Wales, the Senior President of Tribunals, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland, and others. That consultation, which was also extended to the devolved Administrations, as well as to representatives across the legal services sector, businesses and other organisations, and was open to the public, ran from 2 July to 13 August. The Government’s response to the consultation was published on 15 October.

That consultation sought views on whether to extend the power to depart from retained EU case law to the Court of Appeal and its equivalents across the UK, or to the High Court and its UK equivalents. Having considered the responses fully, the consultation response set out the Government’s decision to extend the power to depart from retained EU case law to seven additional Court of Appeal level courts listed in this instrument, as this option, as I have already said, strikes the appropriate balance between enabling retained EU case law to evolve more quickly where appropriate, and providing legal clarity and certainty.

It also assists in managing the operational impact by ensuring that cases are considered in a timely way. Giving additional courts the power to depart from retained EU case law avoids the two highest courts across the UK receiving high numbers of cases that would be likely to take considerably longer to resolve, which is not in the interests of the parties to those proceedings or indeed those with an interest in their outcome. Furthermore, by extending the power to this list of additional courts, we can mitigate the impact of potentially large volumes of divergent decisions both within and across the UK jurisdictions, as decisions of these courts are binding on themselves and courts below, as well as being persuasive across the UK’s three legal systems.

An impact assessment has been published alongside the consultation response. Any impact is heavily dependent on litigant behaviour in bringing proceedings seeking a departure from retained EU case law and of course the outcome of that litigation. However, based on the qualitative assessment, we assess that any impact from an increase of case volumes as a result of this instrument is manageable at the Court of Appeal level, and helps mitigate pressure on the Supreme Court.

The instrument enables our courts to be better able to consider whether to depart from retained EU case law than the status quo provided in the 2018 Act. Providing the seven specified courts with the ability to depart from retained EU case law will allow timely evolution of our case law, relieve pressure on the UK Supreme Court and avoid our case law becoming ossified. We are taking an approach that balances the importance of legal clarity and certainty with a need for the law to evolve with changing circumstances.

It is a pleasure to serve under your chairmanship on a particularly dull afternoon, Sir Christopher. I hope that my speech will not be too dull.

The Opposition try to work with the Government to help us prepare for the end of the transition period. I am not the only one who has been content with brief speeches and decisions not to oppose the Government’s plans in many areas. Sadly, we are in a very different place with this statutory instrument.

As the Minister said, the European Union (Withdrawal) Act 2018 sets out the legal framework following our departure from the EU, after the end of the transition period on 31 December 2020 – a mere six weeks away. The aim of the 2018 Act is to provide much needed legal certainty in our domestic law, following Brexit. That is something that we welcome. As the Minister said, the 2018 Act sets out, among other things, which pieces of EU case law are to be retained in our domestic law, and how those laws are to be interpreted by our courts. As things stand, the 2018 Act gives the UK Supreme Court and the High Court of Justiciary in Scotland the power to depart from retained EU case law if those courts consider that it is right to do so. The provisions of the SI would extend the power to depart from retained EU case law to the Court of Appeal of England and Wales, as well as to other courts of appeal.

On 2 July 2020, the Government launched a consultation on whether that extension would be the right thing to do, and the Minister referred to it. In total, there were 75 responses to the consultation ranging from members of the judiciary to trade unions. Almost half of the responses received were from members of the legal services sector. The responses are quite startling. When respondents were asked whether the power to depart from retained EU case law should be extended, as the Government wish, beyond the UK Supreme Court, almost 60% of respondents were clear that it should not. When respondents were asked what positives would come from extending the power to the Court of Appeal, as proposed by the Government, only 9%— 9%, Sir Christopher—of respondents said that doing so would

‘strike the right balance between legal certainty and the evolution of law’.

Even fewer respondents—only 8%—agreed with the Government’s assertion that extending the power of the Court of Appeal would reduce pressure on the UK Supreme Court.

On the other hand, let us look at what respondents thought would be the negative impact of taking the decision. Some 37% of respondents said that extending the power of the Court of Appeal would introduce an element of uncertainty into UK law; 16% said that it would be an inappropriate constitutional change; and 24% said that it would lead to an overall increase in court workloads, when our court system is already on its knees as a result of the pandemic. That prompts the question, with such negative feedback, why are the Government so keen to pursue this action?

What is the point of holding a consultation just to ignore the very clear message of those who have responded? Both the Bar Council and the Law Society have also expressed a strong preference for the power to depart from retained EU case law to be reserved only to the Supreme Court and the High Court of Justiciary in Scotland. In its response to the proposed changes, the Law Society made its view very clear and said

‘the power to depart from retained caselaw should not be extended to UK courts…beyond the Supreme Court’.

It went on to say

‘any change from this position would constitute a major shift in the administration of justice’

which could

‘result in a lack of legal certainty through the emergence of novel judgements that are either not bringing on other courts or are inconsistent with precedent.’

Those serious concerns cannot be overlooked.

Granting the power to depart from retained EU case law to lower courts is likely to encourage litigation by parties who hope to overturn an earlier judgment that relied on EU case law, and subsequently will increase the volume of cases. That will inevitably put additional pressure on the courts, which are already facing a significant backlog at this time. The Minister mentioned the behaviour of litigants, and how the success of the instrument will rely on that. Well, I do not know whether he can really trust that people will not start to follow the route I have described.

It was not just the legal sector that opposed the move, the unions also expressed their opposition. The Government’s response to the consultation makes it clear that the unions are hugely concerned about the impact that a mass departure from retained EU case law would have on workers’ rights. The response notes that the unions were clear that the Government should not go ahead with the plan as it would undermine the doctrine of precedent and cause

‘significant uncertainty and disruption to both employers and employees.’

But this is not just about the professionals and the impact on workers’ rights. The proposals could have an impact on all areas of law—competition law, state aid, trade, agriculture, employment and intellectual property. And the Minister outlined other sectors of the law. Given all those areas of law, to attempt to overcome adopted established EU case law could result in our courts being overworked with all manner of weird and wonderful cases to deal with.

We accept that the courts should have the power to divert from EU case law vested in UK law, but that power should remain exclusively with the Supreme Court. I invite the Minister to address all the concerns expressed by the legal profession and the trade unions in particular. Will he outline why he believes the professionals are wrong in their concerns and how justice will be properly protected? Can he outline what the Government plan to do to ensure that the courts under the Supreme Court are able to operate effectively in the areas covered by the SI, and to ensure that the changes do not simply result in increased litigation and, ultimately, even more appeals to the Supreme Court?

We know that the Government have always been keen to stress how important workers’ rights are to Ministers and how workers have nothing to fear from a departure from EU law, which has in the past enhanced and better protected those rights. What reassurances can the Minister give to trade unions that their fears are unfounded, and that workers’ rights will not be compromised as result of the changes proposed today? We will wait and see, but I cannot see how the Minister can justify all the changes brought in by the SI. We have tried to work with the Government, and even help them to get the necessary secondary legislation in place in all manner of areas for use after the transition period. On this occasion, we are also trying to help, but as the proposed regulations stand, we will oppose them.

I am grateful to the hon. Member for Stockton North for his remarks; let me try to address some of his concerns.

The hon. Gentleman referred to the responses to the consultation but did not advert to the fact that a number of those who responded said that they did not want to have any opportunity at all to depart from EU retained case law. We think that would not only strike the wrong balance but would hide-bound British justice in a way that would not serve the interests of anyone in society. Plainly, there must be the opportunity for the courts to depart, the only question is which seniority of court should be able to do so. We quite accept that there is a balance to strike—a balance between ensuring that there is legal certainty and clarity which is important for litigants and those who want to advise them and ensuring that there is the necessary flexibility so that we can evolve, adjust and adapt.

The hon. Gentleman also failed to mention that of those who responded and engaged with the central question, namely, and I paraphrase, ‘Do you want this to extend to the Court of Appeal or beyond to the High Court?’, the overwhelming majority said the Court of Appeal, and that is precisely what we are doing.

The hon. Gentleman’s central point, and again I paraphase, is ‘Look, we should simply stick with the Supreme Court.’ But if he pauses to reflect on the implications of that, the very point he made about access to justice—I concede that that is a proper concern—is inhibited by retaining the power within the Supreme Court. How many individuals can credibly make their way to get a judgment from the Supreme Court? Not many. For the poor old Supreme Court to be left with the entirety of the work would be no service to it either. It would be much better for it to have had some of the legal points considered by the Court of Appeal, which brings to bear some of the finest legal expertise one will find anywhere in the world, and thereafter in appropriate cases for the Supreme Court to engage. If we leave it all to the Supreme Court, I respectfully suggest that is not necessarily particularly good for the overall quality of justice, and it makes justice inaccessible.

The third and final point is this: the hon. Gentleman’s proposal risks absurdity. If the European Court of Justice itself revisits its own case law, as it is able to do, perhaps in respect of employment law or environmental safeguards, and decides to have a different interpretation of regulations, directives and such, under his proposal of our in effect not making any changes ever, British courts would not be able to turn round and say, ‘Well, that looks like a jolly sensible new interpretation; we will apply it here in the UK.’ Our courts would be hamstrung in a way that, I respectfully suggest, would not be good for justice or access to justice.

The hon. Gentleman said that the trade unions have concerns and he referred to a ‘mass departure’ from retained EU law. Again, that misrepresents the position. If we had given the power to Cheltenham magistrates court to depart from retained EU case law, I would quite accept his point. But we are not giving that power to the magistrates court, the county court, the Crown court or even the High Court, but instead to the Court of Appeal. I hope that he recognises that that is a very senior court, and I should also make it clear that the equivalent courts to which I referred bind themselves with the doctrine of precedent.

The hon. Gentleman argued that the SI undermines the doctrine of precedent. On the contrary, it cements and reinforces that doctrine. That is the principle which underpins the provisions. It strikes the right balance between certainty and agility. I commend the draft instrument to the Committee.

Question put,


That the Committee has considered the draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020.

Committee rose.

Electoral Commission

The Committee consisted of the following Members:

Chair: Ms Angela Eagle

† Allan, Lucy (Telford) (Con)

† Baker, Duncan (North Norfolk) (Con)

Buchan, Felicity (Kensington) (Con)

† Everitt, Ben (Milton Keynes North) (Con)

† Fell, Simon (Barrow and Furness) (Con)

† Freer, Mike (Comptroller of Her Majesty's Household)

Grady, Patrick (Glasgow North) (SNP)

† Hammond, Stephen (Wimbledon) (Con)

Hendrick, Sir Mark (Preston) (Lab/Co-op)

Keeley, Barbara (Worsley and Eccles South) (Lab)

McKinnell, Catherine (Newcastle upon Tyne North) (Lab)

Mayhew, Jerome (Broadland) (Con)

† Morden, Jessica (Newport East) (Lab)

† Rees-Mogg, Mr Jacob (Leader of the House of Commons)

† Sambrook, Gary (Birmingham, Northfield) (Con)

Tami, Mark (Alyn and Deeside) (Lab)

Vaz, Valerie (Walsall South) (Lab)

Bradley Albrow, Committee Clerk

† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 17 November 2020

[Ms Angela Eagle in the Chair]

Electoral Commission

I beg to move,

That the Committee has considered the motion, That an humble Address be presented to Her Majesty, praying that Her Majesty will re-appoint Dame Susan Bruce DBE as an Electoral Commissioner with effect from 1 January 2021 for the period ending on 31 December 2023; and Dame Elan Closs Stephens DBE as an Electoral Commissioner with effect from 13 March 2021 for the period ending on 12 March 2025.

May I say what a pleasure it is to serve under your chairmanship, Ms Eagle? It is the first time I have ever had the privilege.

The Speaker’s Committee on the Electoral Commission has produced a report, its fourth of 2020, in relation to this motion. It may help if I set out the key points for the record. Electoral commissioners are appointed under the Political Parties, Elections and Referendums Act 2000, as amended by the Political Parties and Elections Act 2009. Under the 2000 Act, the Speaker’s committee has a responsibility to oversee the selection of candidates for appointment to the Electoral Commission, including the re-appointment of commissioners.

Dame Susan Bruce’s four-year term as the electoral commissioner with special responsibility for Scotland comes to an end on 31 December. Dame Elan Closs Stephens’ four-year term as commissioner with special responsibility for Wales comes to an end on 12 March 2021. Sir John Holmes, the chairman of the Electoral Commission, wrote to Mr Speaker in February asking the Speaker’s committee to consider whether to re-appoint Dame Susan Bruce for a further term of three years and Dame Elan Closs Stephens for a further term of four years.

Sir John provided the Speaker’s committee with appraisals of the commissioners’ performance. He described Dame Susan as

“an effective and valuable Commissioner, bringing a lot of experience of electoral processes through her previous roles in local government in Scotland, and a lot of knowledge of the political scene in Scotland”.

He also referred to Dame Susan’s role chairing the commission’s audit committee. Sir John said that Dame Elan had been

“a hard-working and committed Commissioner over the last three years, and has contributed a great deal at a time of great electoral change in Wales”.

He also noted Dame Elan’s service as a member of the commission’s audit committee. The Speaker’s committee consulted the Presiding Officer of the Scottish Parliament about Dame Susan’s re-appointment and the Presiding Officer of the Welsh Assembly about that of Dame Elan. Having considered this feedback and Sir John’s appraisal, it agreed to recommend the two commissioners for re-appointment.

Once the Speaker’s committee has reached a decision, statute requires that the proposed appointment or re-appointment be the subject of consultation with the registered leader of each registered party to which two or more Members of the House of Commons then belong. The statutory consultation provides an opportunity for the party leaders to comment, but they are not required to do so. No objections to these candidates were received in response to the consultation. If the re-appointments are made, Dame Susan will continue to serve as an electoral commissioner until the end of 2023 and Dame Elan until March 2025. I hope the re-appointments will have the support of the Committee and ultimately the House.

May I, too, say what a pleasure it is to serve under your chairmanship, Ms Eagle?

I thank the Leader of the House for today’s motion on the re-appointment of the electoral commissioners for Scotland and Wales, Dame Susan Bruce and Dame Elan Closs Stephens. Mr Speaker has consulted with the Leader of the Opposition about these re-appointments and no objections were received, so we are happy to support them today. As the Leader of the House said, both candidates were recommended for re-appointment by the Speaker’s Committee on the Electoral Commission.

Dame Susan Bruce has a long record of service in local government. She is currently the electoral commissioner with responsibility for Scotland and her current term ends on 31 December. We, too, note that Sir John Holmes, chair of the Electoral Commission, told the committee that Dame Susan had been

“an effective and valuable Commissioner, bringing a lot of experience of electoral processes through her previous roles in local government in Scotland”,

and noted her

“knowledge of the political scene in Scotland”.

Turning to Dame Elan Closs Stephens, I declare an interest, as I was on the interview panel when we unanimously recommended her appointment as electoral commissioner for Wales back in 2017. As a representative of a Welsh constituency, I can say that she is very well known and respected, and has held a number of positions in Wales and has a speciality in cultural and broadcasting policy. She has been the electoral commissioner for Wales since March 2017, and her term ends on 12 March 2021. We, too, note that Sir John Holmes, chair of the Electoral Commission, wrote to Mr Speaker saying that she had been

“a hard-working and committed Commissioner over the last three years, and has contributed a great deal at a time of great electoral change in Wales”.

Her Majesty’s Opposition therefore have great pleasure in supporting Dame Susan Bruce as electoral commissioner for Scotland with effect from 1 January 2021 and Dame Elan Closs Stephens as electoral commissioner for Wales until 12 March 2025.

Question put and agreed to.

Committee rose.