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Children and Young Persons

Volume 690: debated on Monday 1 March 2021

I beg to move,

That the draft Electronic Commerce Directive (Education, Adoption and Children) (Amendment etc.) Regulations 2021, which were laid before this House on 18 January, be approved.

I thank the Secondary Legislation Scrutiny Committee and the European Statutory Instruments Committee for considering these regulations. I also thank the other place for approving the regulations on 10 February, following what may have been the quickest debate in parliamentary history.

Let me assure Members that these regulations do not change policy. They are a technical measure to remedy deficiencies of retained EU law arising from the withdrawal of the United Kingdom from the EU. They are necessary to enable our legislation, which I will speak to in more detail shortly, to operate properly now that we have left the EU and the transition period has finished. The regulations remove statutory measures that implemented article 3 of the e-commerce directive, better known as the country of origin principle, from two pieces of legislation: the Education Act 2002 and the Electronic Commerce Directive (Adoption and Children Act 2002) Regulations 2005.

The e-commerce directive was introduced by the EU in 2000 to facilitate digital trade within the EU’s internal market, allowing the free movement of information society services, more commonly referred to as online service providers. The country of origin principle applies to online service providers operating across the European economic area. The principle means that online service providers only have to follow certain rules in the state in which they are established, rather than the rules in each state where their service is received. It applied to a variety of UK legislation.

These regulations concern two aspects of policy: teacher misconduct and adoption. Section 141F of the Education Act 2002 sets out reporting restrictions that aim to protect the identification of a teacher in England and Wales facing an allegation of an offence made by or on behalf of a pupil until the point at which legal proceedings have begun or the Secretary of State for Education publishes information following an investigation or decision about the allegation. Section 141G makes it an offence to publish information in breach of section 141F. Schedule 11B applies the country of origin principle to the offence created by section 141G.

The Electronic Commerce Directive (Adoption and Children Act 2002) Regulations 2005 give effect to the country of origin principle for two offences in the Adoption and Children Act 2002. First, section 92, dealing with restrictions on arranging adoptions, prevents anyone who is not an adoption agency or acting pursuant to a court order from taking steps to arrange the adoption of a child. Secondly, sections 123 and 124 deal with restrictions on the advertising of adoptions and prohibit advertisements relating to the adoption of a child unless undertaken by an adoption agency.

The regulations before the House will change where online service providers that break the law are able to be prosecuted. If an online service provider commits an offence created by the Education Act 2002 and the Adoption and Children Act 2002 in the UK, they will be liable for prosecution in the UK. If a UK-based online service provider publishes prohibited information in a European economic area state, they will be subject to prosecution in the state in which they commit the offence. The other place concluded that the draft regulations were logical and appropriate. They will ensure that our legislation continues to operate effectively. I therefore commend these regulations to the House.

I thank the Minister for setting out the details of these regulations. Although the UK’s departure from the European Union was perhaps the most contentious issue of our generation and an outcome that I am on the record as having fought very hard indeed to prevent, these regulations are a non-contentious consequence of that departure, and the Minister will be glad to know that we will not oppose them.

As the Minister set out, these regulations are intended to ensure the proper functioning of UK law in relation to adoption and teacher misconduct now that article 3 of the e-commerce directive, or the country of origin principle, has ceased to apply in the UK, having left the transition period. They give force to the termination of the agreement with EEA states around digital trade by information society services or online service providers.

In the light of changes to our relationship with the EU, it is necessary to remove the country of origin principle from the 2005 e-commerce directive regulations in so far as they affect matters in scope of the Adoption and Children Act 2002 relating to the proper arrangement and advertisement of adoption services. Similarly, the Education Act 2002 must be amended to remove the same principle from the offence of publishing information in breach of reporting restrictions around allegations of teacher misconduct involving pupils. With the e-commerce directive no longer effective in the UK, it is right and proper that online service providers that commit offences under the Adoption and Children Act 2002 and the Education Act 2002 are liable for prosecution in the UK, and that teachers, children and parents are afforded the necessary legal protections. We welcome the Government’s reaffirmation of this, along with the principle that the state has the authority to arrange and oversee adoptions.

The draft regulations were first laid in June 2019 for the purposes of addressing deficiencies in our laws that would arise from leaving the EU without a deal. As much as I wanted and campaigned for the UK to remain inside the EU, a Brexit deal was always preferable to no deal, and I am glad that these regulations have at least been brought under the former scenario, rather than the latter. However, it would have been even better if the deal had not been secured at the last possible moment, with details published just a handful of days before the end of the transition period on 31 December 2020 and MPs recalled to vote on the deal the day before new year’s eve. In this context, it is extremely important that online service providers and people affected by their services are not negatively impacted by changes such as the removal of the e-commerce directive and the introduction of a new regime in digital trade as a result of the Government’s incompetence, having left it so late to complete their Brexit negotiations and release details of the new arrangements.

Online service providers must be given clear information, guidance and time to understand new law and to make any arrangements to comply with it. It is important in this case, as the regulations that we are discussing relate to upholding the legal protections afforded to children and birth parents with respect to arranging and advertising adoptions, and to teachers with respect to their rights where allegations of an offence are made by, or on behalf of, a pupil.

Although there is no change of policy as a direct result of these regulations, I would none the less like to ask the Minister a series of questions. First, what steps have the Government taken to ensure that EEA-based online service providers operating in the areas here are aware of their new obligations under UK law? Similarly, what actions have been taken to ensure that providers that are UK-based but provide services in an EEA country understand that they must follow that country’s laws with respect to any services provided there? Secondly, what powers exist to enforce teacher misconduct reporting restrictions and adoption advertising prohibitions in a situation where information is published in breach of these rules by a UK-based online service provider in an EEA state? Must the teachers, children and birth parents affected rely solely on the EEA state’s laws, or are other legal protections available? Finally, what assessment have the Government made of the effectiveness of the regulation of online service providers when it comes to the arrangement of adoptions, and publishing offences in the field of adoption and education, in particular when those offences are committed outside the UK? I thank the Minister in advance for her consideration of my points and questions.

The regulations relate to the Education Act 2002 and the Electronic Commerce Directive (Adoption and Children Act 2002) Regulations 2005. The Education Act 2002 relates wholly to England and Wales, and therefore does not affect devolved interests. As regards the 2005 regulations, which relate to adoption offences, the proposed statutory instrument removes the EU reciprocal arrangement. With this SI, any non-UK online service provider operating a service in Scotland would be prosecuted in accordance with the law applicable in Scotland. [Inaudible.]

Can you hear me Carol? I am afraid that we have lost your audio. I call Jim Shannon, and then we will go back to Carol Monaghan.

My comments on the regulations, although brief, are vital, and I look forward to the Minister’s response. I understand that the amendments to the Education Act 2002 relate to the provision in schedule 11B to that Act, which supplements section 141G with regards to publishing a matter in breach of restrictions, and on reporting alleged offences by teachers under section 141F in part 3 of the Act. Although those measures extend to England and Wales only, I seek clarity on whether steps have been taken with counterparts in the Northern Ireland Assembly, and Minister Peter Weir, to ensure that this legislation, which seeks to address failures of retained EU law to operate effectively, and other deficiencies arising from the withdrawal of the United Kingdom from the European Union, will also be remedied in Northern Ireland as a matter of urgency. What discussions have taken place with the Minister in Northern Ireland to ensure that that happens?

It is clear that these SIs may be a check box exercise of sorts for Brexit, but we must also do as we have done, seek to address failings in current legislation, and make improvements. As always, it is imperative that those changes are UK-wide, and that we are operating as closely matched as possible. The bottom line is that I wish to find out whether Northern Ireland will be subject to the same regulations, and whether discussions have taken place to ensure that we are in line. Importantly, as I always say, we are better together as the United Kingdom of Great Britain and Northern Ireland.

Thank you, Mr Deputy Speaker. I am not entirely sure how far we got, so I will start at the point I think I had reached. This SI would mean that any non-UK online service provider operating a service within Scotland would be prosecuted in accordance with the law applicable in Scotland. The result is that prosecution of activities within Scotland will be governed by the Adoption and Children Act 2002, and the Adoption and Children (Scotland) Act 2007. This issue involves devolved and reserved matters, We agree with the general policy rationale, so we will not oppose the regulations this evening, but the Scottish Government should have had their consent sought, even if they had indicated that they supported the policy principles and would likely have granted consent.

Why have the UK Government not requested that consent? In light of the lack of such a request, will the Minister confirm that the effect of the regulations in Scotland will be consigned only to the regulation of non-UK online service providers and activities in Scotland, as relates to the Adoption and Children Act 2002, and the Adoption and Children (Scotland) Act 2007?

I thank everyone for their contributions to this debate. It is good to hear that the shadow Minister will not be opposing the regulations, as to do so would potentially have put children at risk. I am glad she agrees that it is better to have left the EU with a deal than without one, but I am sorry that I did not hear her put on the record her thanks to all those who negotiated right up to the deadline in order to secure a deal. I would like to put on the record my thanks to all those from both sides of the negotiations, including the EU negotiators, who worked through that holiday period to ensure that we could have as smooth an exit as possible.

The shadow Minister asked what had been done to inform people of changes to the law, so let me be extremely clear that the underlying law has not changed. What has changed is where people will be prosecuted if they breach the underlying law. That is extremely important and it should be clear to the shadow Minister, so I am surprised that her lawyers have not got that extremely important point. All that is changing is where people will be prosecuted.

The regulations do not diminish in any way the offences I have described as set out both in the Education Act 2002 and in the 2005 electronic commerce directive regulations. They do not impact in any way on the policy behind those regulations. The identity of teachers who are accused by a pupil of an offence will be protected until the point at which relevant legal proceedings have begun and children in care will continue to be kept safe and protected by our ensuring that arranging and advertising adoption can legally only be undertaken by adoption agencies.

The regulations simply fix the deficiencies of retained EU law. They will ensure the enforcement of UK laws when the offence is committed in the UK, irrespective of the country in the European economic area in which the online service providers are based. My understanding is that the devolved Administrations were consulted—I did have discussion on this—and Northern Ireland did give its consent. On the point about malpractice, that is covered only in England and Wales and there is a devolved point in this regard, but I can assure colleagues that the Administrations were contacted as part of this exercise. On that basis, I commend the regulations to the House.

Question put and agreed to.

Sitting suspended.