Delegated Legislation Committee
Draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022
The Committee consisted of the following Members:
Chair: Clive Efford
Benn, Hilary (Leeds Central) (Lab)
† Blomfield, Paul (Sheffield Central) (Lab)
† Bowie, Andrew (West Aberdeenshire and Kincardine) (Con)
† Davies, Gareth (Grantham and Stamford) (Con)
De Cordova, Marsha (Battersea) (Lab)
† Dines, Miss Sarah (Lord Commissioner of His Majesty's Treasury)
† Double, Steve (St Austell and Newquay) (Con)
† Drax, Richard (South Dorset) (Con)
† Dunne, Philip (Ludlow) (Con)
† Elmore, Chris (Ogmore) (Lab)
† Hardy, Emma (Kingston upon Hull West and Hessle) (Lab)
† Lynch, Holly (Halifax) (Lab)
Quin, Jeremy (Minister for the Cabinet Office and Paymaster General)
Selous, Andrew (South West Bedfordshire) (Con)
† Stafford, Alexander (Rother Valley) (Con)
Vaz, Valerie (Walsall South) (Lab)
† Wright, Sir Jeremy (Kenilworth and Southam) (Con)
Jonathan Edwards, Ailish McAllister-Fisher, Committee Clerks
† attended the Committee
The following also attended, pursuant to Standing Order No. 118(2):
Tugendhat, Tom (Minister for Security)
Fourth Delegated Legislation Committee
Wednesday 26 October 2022
[Clive Efford in the Chair]
Draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022
Before I ask the Whip to move the motion formally, I will explain what is going on. Members might have noticed that the Minister is not on the list of members of the Committee, so the Whip will move the motion, and the Minister will then do his duty and read his speech. I am sure that is clear to everyone.
Motion made, and Question proposed,
That the Committee has considered the draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022.— (Miss Dines.)
The purpose of the draft statutory instrument is to designate Georgia, Liechtenstein, Luxembourg, the Republic of Moldova, Switzerland and Turkey as participating countries—that is, countries that have ratified the second additional protocol to the 1959 European convention on mutual assistance in criminal matters. Designation will allow us to co-operate with them on specific kinds of mutual legal assistance. The draft order only establishes an ability to provide or seek certain types of assistance to or from these countries; it does not create an obligation to do so. Incoming mutual legal assistance requests from designated participating countries will be reviewed in line with existing practice, which includes the undertaking of a human rights assessment. The details are set out in the explanatory memorandum. It is important to note that the draft instrument does not include Russia. Although Russia is a signatory of various agreements under the 1959 convention, we have chosen not to include it for obvious reasons.
The UK is committed to improving the provision of mutual legal assistance across borders. That will enhance the co-operation that the UK can offer to and seek from other countries. Clearly, mutual legal assistance is a key tool in fighting cross-border crime and in ensuring justice for British victims of crime.
As always, it is a pleasure to see you in the Chair, Mr Efford. I thank the Minister for his opening contribution, and I am genuinely pleased to see him in his place this morning.
As the Minister said, the draft statutory instrument will allow the UK and Georgia, Liechtenstein, Luxembourg, the Republic of Moldova, Switzerland and Turkey to seek and invoke mutual legal assistance on criminal matters following ratification of the second additional protocol to the 1959 European convention on mutual legal assistance in criminal matters. Our national security is dependent on maintaining strong relationships and co-operation with our allies abroad, and we welcome any measures that will assist in tackling crime in our country and, where we can assist, overseas.
On the 1959 European convention and its protocols, most of the questions I had about the provisions have been answered. I am satisfied that the framework is comprehensive and facilitates long-standing agreements between the 50 states that have ratified the convention, including the agreement that all parties should be member states of the Council of Europe. I am interested to hear how often requests under the convention are made.
I am particularly interested in section 45 of the Crime (International Co-operation) Act 2003. That Act ratified the second additional protocol to the 1959 convention. Section 45 provides that requests for assistance made under sections 43 and 44 must be sent to the Secretary of State to be forwarded to the relevant authority in the participating country. However, in cases of urgency, the request may be sent directly to the courts that have jurisdiction in the place from which the information is to be obtained. I am concerned that the provision gives cover for those seeking to bypass the need for the appropriate ministerial sign-off, which is significant. An indication of how often that happens would be appreciated.
The provisions on information relating to banking transactions are certainly welcome. The National Crime Agency has warned that billions of pounds in dirty money flow through the UK every year. Recent data published by Experian shows that fraudulent activity costs the UK £190 billion per year. The measures in the National Security Bill and the Economic Crime and Corporate Transparency Bill, alongside the provisions in the draft order, are a long-overdue start on getting a grip on illicit finances.
Pending answers to the questions I have asked, we are satisfied that the draft statutory instrument enacts a long-standing commitment to law enforcement co-operation for the additional countries in question, and we very much welcome the measure.
It is a great pleasure to be under your chairmanship, Mr Efford. I am grateful for the shadow Minister’s kind words, and pleased that she is not facing a fifth, I think it would have been, opposite number. I will write on the frequency of the use of the provisions; they are quite well used, but I will give details in writing.
Question put and agreed to.
Draft Trade Marks (Amendment) Regulations 2022
The Committee consisted of the following Members:
Chair: David Mundell
† Barker, Paula (Liverpool, Wavertree) (Lab)
† Britcliffe, Sara (Hyndburn) (Con)
Cryer, John (Leyton and Wanstead) (Lab)
† Djanogly, Mr Jonathan (Huntingdon) (Con)
Docherty-Hughes, Martin (West Dunbartonshire) (SNP)
† Green, Damian (Ashford) (Con)
† Henderson, Gordon (Sittingbourne and Sheppey) (Con)
† Holloway, Adam (Lord Commissioner of His Majesty's Treasury)
† Loder, Chris (West Dorset) (Con)
† Morden, Jessica (Newport East) (Lab)
† Nichols, Charlotte (Warrington North) (Lab)
† Onwurah, Chi (Newcastle upon Tyne Central) (Lab)
† Russell, Dean (Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy)
† Stevenson, Jane (Wolverhampton North East) (Con)
Twigg, Derek (Halton) (Lab)
† Wheeler, Mrs Heather (South Derbyshire) (Con)
† Whittaker, Craig (Treasurer of His Majesty's Household)
Jonathan Finlay, Foeke Noppert, Committee Clerks
† attended the Committee
Fifth Delegated Legislation Committee
Wednesday 26 October 2022
[David Mundell in the Chair]
Draft Trade Marks (Amendment) Regulations 2022
I beg to move,
That the Committee has considered the draft Trade Marks (Amendment) Regulations 2022.
The regulations were laid before the House on 19 July. It is a pleasure to serve under your chairmanship, Mr Mundell.
Intellectual property has played a vital role in the UK economy. A well-balanced and effective IP system supports our citizens in their creativity and ingenuity. It helps ensure that great ideas can be turned into great businesses. The draft regulations relate to a special type of intellectual property: well-known marks. This is a particular branch of the UK’s trademark system.
A well-known mark is one that is considered reputable, and which the general public commonly knows about; examples are Rolex and Coca-Cola. Trademark law gives special protection to these marks in the light of the recognition that they receive and their reputation, irrespective of whether they are registered in the UK.
The UK protects well-known marks through a combination of trademark legislation and common law. The changes in this statutory instrument are technical amendments to the trademark legislation, namely the Trade Marks Act 1994. The amendments will further clarify the robust protection afforded to well-known marks in UK law.
The main impetus behind the changes is the need to ensure that the UK delivers on its obligations in the EU-UK trade and co-operation agreement. It is important to share some extra context. It was the UK that sought these robust provisions in the TCA. The TCA places a binding commitment on both parties to apply an international standard for well-known marks: the World Intellectual Property Organisation’s joint recommendation on the protection of well-known marks. That set of international standards was adopted in 1999. The UK was a strong proponent of that standard-setting document, and contributed a member to the committee of experts that led on its preparation between 1995 and 1997.
The SI makes two changes to the Trade Marks Act 1994. First, it will give holders of unregistered WKMs the right to prohibit the use of a conflicting trademark on dissimilar goods or services. That measure builds on provisions we already have to stop the use of a conflicting trademark on the same or similar goods or services. To give an example, under the new, amended law, a holder of an unregistered well-known mark, such as the famous Rolls-Royce brand, could rely on well-known mark provisions if its name was unjustly used not only on cars and similar goods, but on sports equipment or even domestic cleaning products. I have not bought a Rolls-Royce bar of soap, but perhaps they exist. The new remedy applies where such use is likely to damage Rolls-Royce’s interests or takes unfair advantage of the distinctive character or repute of the Rolls-Royce mark.
Secondly, the SI will amend a nuance in existing trademark law. Current well-known mark provisions are targeted at nationals of third countries, but exclude those of the UK. Historically, UK-based individuals and businesses have been able to rely on alternative provisions in common law and in the 1994 Act to enforce their rights. For example, where they hold a registered mark, they can seek recourse through the tort of passing off. However, we are taking this opportunity to extend the well-known mark provisions to ensure that the new remedy, and the existing well-known mark provisions in the 1994 Act, include the UK.
The changes will render the UK fully compliant with obligations in the EU-UK TCA. However, the benefits will extend further: they will place the UK in the best position to negotiate protection for the well-known marks of British companies in future trade agreements. I have detailed the benefits that the changes will bring to holders of well-known marks, through the new remedy for unregistered mark holders, and the harmonisation of the well-known mark provisions so that UK nationals can enjoy the same benefits as those provided to third-country nationals.
As for the practical implications of the regulations, the impact on the number of cases taken to the Intellectual Property Office tribunal or the courts is anticipated to be modest. During policy preparation for the instrument, research into tribunal cases before the Intellectual Property Office found that there were approximately 12 similar cases a year dealing with well-known marks, and just a fragment of those would ever be expected to reach the courts. That is primarily due to the specific characterisations of well-known marks, and the niche nature of those IP rights.
We do not mistake the importance of these changes, and I hope colleagues will not either. Even putting important international obligations aside, stakeholders have confirmed that the provisions are a welcome addition to trademark law. With that in mind, the Intellectual Property Office will prepare guidance to ensure that businesses that fall within the scope of these changes can manage any impact or, where appropriate, can make the most of the new remedies.
To conclude, the regulations make changes to a niche area of trademark law, but are an important development for the UK’s trademark system. They will ensure the effective protection of unregistered well-known marks, and that the UK meets its international commitments. I commend the instrument to the Committee.
It is a great pleasure to serve under your chairship, Mr Mundell. I thank the Minister for setting out what the instrument will do. I will try not to repeat what he said, but there are aspects that I want to highlight. The Minister was right to point out the importance of robust and effective trademark legislation.
I start by celebrating our Great British businesses. I thank and congratulate scientists, artists and creatives for creating some of the world’s most iconic brands and trademarks, which are recognised across the globe. They are the very imagery of Britain. Whether we are talking about Newcastle’s famous Greggs logo, world-renowned brands such as British Airways, Royal Mail, Jaguar Land Rover and Rolls-Royce, or one of the UK’s 5.5 million small and medium-sized enterprises, we must protect the intellectual property and trademarks of our Great British brands.
Trademarks, and especially WKMs, are an important but often overlooked form of property. We often forget that many of our assets are in intangibles, IP branding and trademarks, rather than bricks and mortar. Investment in brands drives the allocation of resources in our economy, increases competition and pushes firms to innovate. Investment in brands and intangibles has increased in the last 15 years, especially in advanced economies such as ours. Much of our success at home and abroad is down to those intangible business assets.
The contribution of trademarks to our economy is significant. According to analysis from Kantar, British brands contributed £205 billion to the economy in 2021, a significant proportion of which is attributable to trademarked imagery, signs and branding. It is absolutely right that our UK legislation should be fit for the purpose of protecting our intellectual property.
As the Minister set out, the UK already possesses highly effective well-known mark legislation. The draft statutory instrument will remedy a compliance issue that has emerged in the last few years, following the ratification of the TCA. As a result of that issue, the owner of an unregistered WKM would not be able to prohibit the use of conflicting marks on dissimilar goods or services, and there is a disparity in the treatment of UK and third country national signatories to the Paris convention.
The SI proposes amending the Trade Marks Act 1994 to achieve two objectives. The first is to ensure our compliance with article 240 of the TCA, which applies the World Intellectual Property Organisation’s joint recommendation concerning provisions for the protection of well-known trademarks. Regulations 4 and 5 of the SI amend the 1994 Act to achieve that. The second objective is to ensure that UK owners of WKMs have access to the same protections as third-country nationals, so the SI will provide parity of treatment for UK and third-country nationals regarding WKM provisions in the TMA. Labour recognises that the current disparity of treatment for UK and third-country nationals is not in keeping with the intent of the WIPO’s joint recommendation, which promotes harmonised common principles of treatment of WKMs across all country signatories. Regulation 3 of the SI seeks to resolve that legislative gap.
In order to protect and support our great British businesses and organisations, and to ensure that domestic law adequately implements the trade and co-operation agreement, the Opposition will not vote against the statutory instrument. However, we have important questions that I hope the Minister can answer.
First, it is disappointing that the Government did not provide further detail in their assessment for this instrument, or cite examples of issues that the SI will resolve, though the Minister did as he was speaking. I am sure that he will have been busy with his party’s political discussions, debates and changes, shall we say, but legislative scrutiny must come first.
I have consulted industry on this draft legislation, and I am pleased to say that I have not been made aware of any negative reactions. I am also pleased that the de minimis assessment suggests that there will be
“no, or no significant, impact”
on businesses, charities, voluntary bodies or public sector organisations. However, if there was even one case of a body being impacted by this legislative hole, that would be one too many. Research into IPO tribunal cases dealing with similar WKM issues found that in the last 10 years there were 121 relevant opposition and invalidation cases, a third of which—about four cases a year—concerned unregistered WKMs. I understand that only a small number of additional cases are going to tribunal and, in turn, an even smaller number would be appealed in court. However, given that information, will the Minister consider producing a further assessment of the impact of this amendment on well-known marks?
I am concerned about the time that the Government have taken to identify and address the issues dealt with in the SI. The explanatory memorandum gives no indication of how long the IPO or Government have been aware of them. The Government have often boasted about how global Britain is, yet the international harmonised and common principles in the field of well-known trademarks have existed since 1999, so I am slightly confused. The explanatory notes indicate that the compliance issue that followed the signing of the TCA were unforeseen, but I think the Minister indicated that the matter was considered to be already covered by common law. I would like to understand which it is, and why it has taken 22 months for this SI to be brought forward. Can the Minister take us through whether the issue was foreseen? Was there separate legal advice that said, “Actually, common-law provisions are not enough”? What was the process?
The Government’s own short assessment of the need for and impact of the SI admits that there are IPO tribunal cases that illustrate a knowledge of the gap following, and even prior to, the TCA. I therefore ask the Minister whether he intends to make a retrospective assessment of the impact of the legislation. As for the IPO tribunal cases that the Government are aware of, does the Minister have an assessment of the income lost in legal fees and costs in those cases, and of the impact on the organisations? Would he perhaps like to take this opportunity to apologise to them for their being caught in this loophole?
Both sides of the House can agree on the importance of the long-term future and health of the UK’s great British brands and well-known trademarks. The SI remedies a small hole in our legislation, but the Government’s reckless Retained EU Law (Revocation and Reform) Bill could blow a gigantic hole in it. Can the Minister provide assurances that the Bill, in scrapping a potential 2,400 laws, will not undermine the SI, directly or unintentionally?
On the issue of support for our trademarks and fantastic intellectual property, there is disharmony between foreign-based attorneys and firms, which can act before the IPO, and UK trademark attorneys, who cannot act in the same way in the European Union. What steps is the Minister taking to address that disparity, and to support trademark attorneys and companies in this country?
Labour’s industrial strategy commits to a closer relationship between the state, businesses, civil society and trade unions. That will enable the next Government—a Labour Government—more rapidly to identify and patch legislative holes such as the one we are discussing. It will ensure that we have a legislative policy framework, including for intellectual property, that businesses can trust, and under which they can prosper.
I thank the hon. Lady for her excellent speech and excellent questions. I will do my best to cover as many as I can; I hope to cover most of them, but if I do not, I assure her that I will follow up in writing.
From my experience of working in the digital field and, partly, in branding, I know how much effort, time and money goes into these things. This is also an issue of trust. I believe that the hon. Lady used to work at Ofcom, so she understands the importance of this industry; she has a weight of experience, and that came through in her speech.
As I detailed, a well-known mark is a niche but special form of intellectual property. It is important to highlight that the provisions are not just about safeguarding exclusive or luxury names; they apply to all known well-known marks, including those of everyday services or goods, such as Google or Coca-Cola. The changes are highly technical, but stakeholders confirm that they represent a welcome addition to trademark law.
I will again summarise the benefits that the changes will bring to holders of well-known marks: there will be a new remedy for unregistered mark holders where their mark is being used on dissimilar goods or services, and harmonisation of well-known mark provisions to ensure that UK nationals can access the same benefits as those provided to third-country nationals.
In yesterday’s debate on the regulations in the other place, a question was asked about what exactly a well-known mark is and whether that might change over time. This is not an exact science. We have deliberately resisted enshrining a definition of a well-known mark in legislation, because it has developed over time in case law. The judiciary uses discretion and considers a variety of factors when determining whether a mark is well known. In the High Court decision in Hotel Cipriani SRL v. Cipriani (Grosvenor Street) Ltd, Mr Justice Arnold, as he then was, referenced the six criteria cited in the WIPO joint recommendation, which forms the basis for the test of whether a mark is well known. The criteria include the degree of recognition, the use of the mark, how the mark is promoted or enforced, and the value associated with the mark.
I will now endeavour to respond to the excellent questions raised. One was about compliance, and why the issue was not addressed sooner. The UK already has extensive provisions in place for well-known marks, and they work well. They are provided through a combination of the Trade Marks Act 1994 and common law—in particular, the tort of passing off. The technical amendments in the regulations top up those provisions, so that all possible permutations of conflict between marks are covered, as suggested by the joint recommendation. The need for these changes was not identified until after the TCA; we seek to implement them as soon as possible, once they are approved.
The hon. Lady asked about the 121 cases referred to in the explanatory memorandum. That is the number of cases that have been through the Intellectual Property Office’s tribunal in the past 10 years relating to well-known marks, and that have made use of existing provisions. That equates to approximately 12 cases a year. Of those, approximately four per year involved unregistered marks, and so would fall into the group of cases, involving well-known mark holders, in which use could be made of the new remedy. Based on those numbers, the changes are expected to have a modest impact; we expect approximately one additional court case every 50 years. I will double-check that, but I think it is not bad. We will of course monitor the impact of the change in the usual way.
On whether a detailed impact assessment has been produced on these changes, it is estimated that the impact will fall below the threshold required for full assessment. The statutory instrument will remedy unforeseen compliance issues caused by the ratification of the TCA. As mentioned, the changes are expected to have a modest, practical impact, and a minimal impact on the number of cases brought to court.
Finally, a concern was raised about foreign IP practitioners taking work away from UK attorneys. I reassure the hon. Lady that the IPO has a close working relationship with the Chartered Institute of Trade Mark Attorneys and will consider the issues that it raises, together with the Ministry of Justice, which leads on legal services policies.
I reiterate the hon. Lady’s excellent point about the importance of the creative industries. I echo her point that the creative industries and creators are very much the lifeblood of the UK; we are known around the world for our films, creative industries, artists and musicians, and I feel strongly that we have to make sure that we support them. I hope that my answers have been helpful to the Committee. I will follow up in writing if I have missed anything. As was noted, the regulations make changes to a very specialised area of law, and will play an essential role in our meeting our international obligations and ensuring effective protection for unregistered well-known marks in the UK. I hope that the Committee will support the regulations; it sounds as though it will.
Question put and agreed to.
Draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2022
The Committee consisted of the following Members:
Chair: Mr Virendra Sharma
† Bell, Aaron (Newcastle-under-Lyme) (Con)
Brennan, Kevin (Cardiff West) (Lab)
Byrne, Ian (Liverpool, West Derby) (Lab)
† Cruddas, Jon (Dagenham and Rainham) (Lab)
† Freeman, George (Mid Norfolk) (Con)
† Gibson, Peter (Darlington) (Con)
† Greenwood, Margaret (Wirral West) (Lab)
† Hillier, Dame Meg (Hackney South and Shoreditch) (Lab/Co-op)
† Mackinlay, Craig (South Thanet) (Con)
† Maclean, Rachel (Minister of State, Ministry of Justice)
† Morrissey, Joy (Beaconsfield) (Con)
† Owen, Sarah (Luton North) (Lab)
† Penning, Sir Mike (Hemel Hempstead) (Con)
† Reeves, Ellie (Lewisham West and Penge) (Lab)
† Sturdy, Julian (York Outer) (Con)
† Vickers, Martin (Cleethorpes) (Con)
† Watling, Giles (Clacton) (Con)
Abi Samuels, James Holland, Committee Clerks
† attended the Committee
Sixth Delegated Legislation Committee
Wednesday 26 October 2022
[Mr Virendra Sharma in the Chair]
Draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2022
I beg to move,
That the Committee has considered the draft Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2022.
This instrument amends the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 to enable any current or potential sponsor on the Homes for Ukraine scheme in England and Wales to be eligible for the highest level of criminal record check undertaken by the Disclosure and Barring Service. This is an enhanced criminal record certificate with barred list checks. Homes for Ukraine is a sponsorship scheme in which individuals in the UK offer up their homes to Ukrainians fleeing the war. I think we would all agree it has been a monumental achievement of the Government, providing sanctuary to our friends from Ukraine.
Since its launch in March this year, more than 98,000 Ukrainians have arrived in the UK as part of the scheme. I pay tribute to those who have offered up their homes, but it is right to ensure that when Ukrainian refugees arrive in the UK adequate safeguards are in place. Currently, local authorities can only obtain the highest level DBS check when a Homes for Ukraine sponsor’s guests include a child under 18 who is not related to the sponsor, or when a sponsor is providing services to an unrelated guest adult with additional needs. Otherwise, sponsors are only eligible for a basic DBS check. The Government have identified further scenarios where we consider that higher level DBS checks on sponsors might be necessary.
The first is a process called domestic rematching. That occurs when the original match breaks down or is deemed unsuitable. In this circumstance, a local authority may rematch the beneficiary with a new sponsor. That is a significantly increased role for the local authority, compared to the original matching process. The new sponsor may not have been through the initial safeguarding and security checks that are only consistently applied at the visa stage.
The other situation the Government have identified where higher level DBS checks may be necessary is for children who are not travelling with or going to join a parent or legal guardian in the UK. In July, the Government expanded the Homes for Ukraine scheme to enable children to come to the UK without a parent or legal guardian and stay with a sponsor, who, except in exceptional circumstances, should be personally known to the parent or legal guardian. While under current regulations the higher level DBS checks can be carried out on most Homes for Ukraine sponsors for those children, only the basic DBS check can be carried out on the sponsor or members of the sponsor’s household if they have a family relationship with the child.
However, some of those family ties might be quite loose. For example, a parent in Ukraine may entrust a child to an extended family member with whom they do not have a close or recent relationship. As a result of those emerging risks, the Government seek to amend the 1975 order to enable local authorities to carry out enhanced with barred list checks on all Homes for Ukraine sponsors. To be eligible for this highest level DBS check, a positional role must be included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, the Police Act 1997 (Criminal Records) Regulations 2002, and the Police Act 1997 (Criminal Records) (No. 2) Regulations 2009.
The Home Office laid a statutory instrument on 22 September to amend the Police Act 1997, and that came into effect on 13 October. The Rehabilitation of Offenders Act 1974 protects those with convictions from having to disclose their convictions and cautions once they become spent. When a conviction or caution is spent, the individual is considered to have become rehabilitated. The exceptions order lists activities or categories of jobs where those protections are lifted, so that individuals, if asked, are required to disclose spent convictions.
I would like to take the chance to thank the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee for reviewing this instrument. The latter raised a concern about the length of time it has taken for this extension of the safeguards to be implemented. We recognise the importance of ensuring that safeguarding measures are as effective as possible to protect those fleeing the ongoing war in Ukraine. As the Homes for Ukraine scheme evolved, further scenarios emerged in which the highest level check was not currently possible but where the risks were such that a basic DBS check may not have provided adequate assurance. Once that need was identified, we moved to amend the relevant legislation as quickly as the parliamentary calendar has allowed.
In conclusion, not proceeding with the draft order increases the chances of a beneficiary of the Homes for Ukraine scheme coming to harm where information that would have been on an enhanced DBS check could have prevented that from happening. Delay to proceeding with the legislation prevents the mitigation of that risk, and I therefore commend the draft order to the Committee.
The Rehabilitation of Offenders Act 1974 is a vital piece of legislation. It ensures that people in the UK who have criminal records are, in the main, able to put their offending past behind them. When we talk about the declaration of historical acts of criminality, we must always be mindful of the balance between the rights of those who have put their offending behind them and the rights of others to be informed about the past behaviour of those with whom they may be in close contact. Indeed, an important component of our criminal justice system is that we allow those who have atoned for their crimes to lead a meaningful life after a period of rehabilitation and punishment, but it is also right that there are some offences, and some forms of employment, for which the disclosure of criminal convictions is a necessity.
Those coming here from Ukraine are in a uniquely vulnerable position. Having fled war and left so much of their lives behind, they arrived here needing sanctuary and stability. Safeguarding proceedings are therefore incredibly important. The spirit of the British public in opening their homes to help those seeking refuge has been overwhelming, and I pay tribute to the many families and individuals in my constituency who have signed up for the Homes for Ukraine scheme. However, we must be aware that some may seek to exploit the situation, and we must ensure that there is no opportunity for people to do so. I am therefore satisfied that the draft order is proportionate and necessary, and we are happy to support it. However, I am concerned that this vital element of safeguarding has not been considered until now, as thousands of Ukrainians have already arrived in the UK through the Homes for Ukraine scheme.
It seems that there are other safeguarding loopholes left open too. I worry that the expectation on hosts to inform the council when their guests arrive is not clear to some, meaning that welfare visits can be missed if a host does not know whom to contact or does not contact anyone at all. That means there could be Ukrainian refugees who the council simply does not realise have arrived in the UK, opening a gap in safeguarding that could be exploited.
I am also concerned that this is part of the wider picture on oversight. Many six-month placements under the scheme are now coming to an end, and many are not being extended. In so many cases, however, the private rented sector is not an option because of the high costs and landlord checks involved, so those families are now facing homelessness. Despite that, and despite the Opposition’s raising this issue consistently, we have still yet to hear the plan from the Government in relation to the scheme. Until it is delivered, many families will risk homelessness and the prospect of their lives being uprooted again.
Although I support the draft order, I hope that the Minister will feed back some of the wider concerns to her ministerial colleagues. It is important that the Government work on this issue as a matter of urgency, so that those who are fleeing war can find refuge here.
It is a pleasure to serve under your chairmanship, Mr Sharma. I refer the Committee to my entry in the Register of Members’ Financial Interests as a non-executive director of a law firm.
The Minister’s portfolio was my portfolio when I was a Minister for some two and a half years, and this type of SI is being used in exactly the right way. There have been extensive criticisms about using secondary legislation from Members of different parties over many years, but sometimes it is absolutely spot on to do so, and the draft order is an example of that. The shadow Minister is absolutely right to say there will be other loopholes and other things that need to be addressed, but at the end of the day, this is about the safety of those who come here for their protection and making sure that those who open their doors are the right people and that we have had the right checks on them.
I commend the Government for introducing the draft order, but there are still issues outstanding. We need to be agile, and SIs are exactly how we should do it.
It is a pleasure to serve under your chairmanship, Mr Sharma. I have a couple of simple questions for the Minister. As my hon. Friend the Member for Lewisham West and Penge has highlighted, this measure is quite late in coming. When the scheme was being put together, there must have been some thought somewhere in the Government’s system that there would be a need for this new measure. When were the Minister’s Department and the Home Office first aware that there might need to be a change in the legislation? If there were any delays in bringing it forward from that date to now, can she explain why?
It is always a pleasure to serve under your chairmanship, Mr Sharma. A couple of issues come to mind. Following on a little from the hon. Member for Hackney South and Shoreditch, there must have been a mischief that it was felt needed to be closed. I would think a precautionary principle is in play, and the Government have come to this conclusion—I think for the right reasons because it is the right thing to do—but there must have been worries about not the looseness, but the lack of checks in the system that have caused this SI to be laid.
Local authorities are the bodies responsible for asking for enhanced DBS checks. Will there be guidance from the Department for Levelling Up, Housing and Communities, the Home Office or the Ministry of Justice about what level of previous criminality would be deemed to be a definite no? A drink-driving offence from 20 years ago or a shoplifting offence from 15 years ago would not cause the same concern as the offences that we are trying to highlight, where it would be obvious that people might be a risk to youngsters and families coming from Ukraine. Is there any guidance for local authorities about what is deemed to be an accepted—if there is such a thing—previous offence, or is it down to local authorities to manage on a one-by-one basis?
I thank all colleagues for their contributions to this debate. I will take the issues that were raised in turn before I come to the shadow Minister. My right hon. Friend the Member for Hemel Hempstead raised very good points about the importance of using SIs for a specific purpose, which is exactly what we have done. There is a role both for the Ministry of Justice and for the Home Office. We have had to amend the Police Act 1997, as I set out in my initial remarks, and we are also having to amend the Rehabilitation of Offenders Act 1974. As other Members have suggested, the scheme has been incredibly important. I agree with the hon. Member for Hackney South and Shoreditch and pay tribute to all Members of this House and elsewhere who are hosting our Ukrainian guests. It is an incredibly compassionate act and demonstrates the true British spirit.
The hon. Member for Hackney South and Shoreditch asked when we became aware of the issues. It is fair to say I was part of the initial set-up of the scheme in my previous role in the Home Office under the previous Home Secretary, and we worked at pace, along with Lord Harrington, to set up the scheme, which was a true cross-Government effort. It was a completely new, bespoke scheme, so we worked through the night on many occasions to try to address the myriad issues that sat with our Department, with other Departments, with DLUHC, and, in some cases, with the devolved Administrations.
On that point, the Minister says that it was a bespoke scheme. The Public Accounts Committee, which I have the privilege of chairing, looked at the Syrian resettlement scheme, which we gave quite a big tick. There are always issues with big projects, but it worked very well, so there was an example of a scheme that went before. It was not domestic hosting, so the safeguarding was slightly different, but there were still issues there. Did she look back to that scheme? I am still puzzled why the Government drew up a whole new scheme when there was a fairly good model on the stocks.
That is a perfectly valid question, but I fear that the scope of this debate is very narrow and is about the exceptions in the Rehabilitation of Offenders Act. I was not the Minister responsible for the policy decisions. The right answer for colleagues who have raised valid points about the future of the scheme is probably to seek a Backbench Business debate—perhaps a Westminster Hall debate—so that the relevant Minister can come along and answer all those questions. It is not possible for me to answer them now, but I am happy to feed them back to my colleagues or to answer any correspondence on them.
The hon. Member for Lewisham West and Penge mentioned the fact that the scheme was initially going to run for a shorter period and that people are now coming to the end of that period, and asked what plans we have made for that. Again, it would be wrong for me to try to answer those questions as I am not the Minister with responsibility for those issues.
I very much hope that colleagues are reassured that the draft SI is an important part of the Government’s safeguarding responsibility, and I commend it to the Committee.
I would be delighted to. Local authorities are in the driving seat when it comes to asking for the tests, but will any guidance come from the centre—be it from DLUHC, the Ministry of Justice or the Home Office—about what kind of former offence would be acceptable and pass muster, as it were, or is it up to the local authorities to make those decisions for themselves? I gave the example of a drink-driving offence from 20 years ago.
I thank my hon. Friend for that aide-mémoire—it is very kind of him. We can certainly write with further detail, but I can assure him that we are talking here about a specific feature of the Rehabilitation of Offenders Act, which allows for exceptions to be made, and that decisions would be not be made case by case by local authorities—there is wider guidance on the whole scheme, the safeguarding measures and the suitability of families to be hosts.
We are talking here about making a change to the Act to provide that where a more sensitive role or activity is listed in the order—such as being a host for a vulnerable person fleeing war—greater disclosure of information that would otherwise be considered as spent is required. The rules that apply to determine what information is included—known as filtering—are quite detailed, and they include serious offences, such as serious sexual offences and others of that nature. I assure my hon. Friend that the regime is detailed, well established and in the interest of public protection. I hope that that answers his question, but he can feel free to probe further if not.
Question put and agreed to.
Draft Armed Forces (Covenant) Regulations 2022 Draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022
The Committee consisted of the following Members:
Chair: Hannah Bardell
† Afriyie, Adam (Windsor) (Con)
† Anderson, Stuart (Wolverhampton South West) (Con)
† Atherton, Sarah (Parliamentary Under-Secretary of State for Defence)
Bradshaw, Mr Ben (Exeter) (Lab)
Burgon, Richard (Leeds East) (Lab)
† Eastwood, Mark (Dewsbury) (Con)
† Hall, Luke (Thornbury and Yate) (Con)
† Harris, Carolyn (Swansea East) (Lab)
† Huddleston, Nigel (Lord Commissioner of His Majesty’s Treasury)
† Jones, Gerald (Merthyr Tydfil and Rhymney) (Lab)
† Monaghan, Carol (Glasgow North West) (SNP)
† Morris, Anne Marie (Newton Abbot) (Con)
† Pollard, Luke (Plymouth, Sutton and Devonport) (Lab/Co-op)
† Smith, Nick (Blaenau Gwent) (Lab)
† Timpson, Edward (Eddisbury) (Con)
† Tomlinson, Justin (North Swindon) (Con)
† Walker, Mr Robin (Worcester) (Con)
Yohanna Sallberg, Niamh McEvoy, Committee Clerks
† attended the Committee
Seventh Delegated Legislation Committee
Wednesday 26 October 2022
[Hannah Bardell in the Chair]
Draft Armed Forces (Covenant) Regulations 2022
I beg to move,
That the Committee has considered the draft Armed Forces (Covenant) Regulations 2022.
With this it will be convenient to consider the draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022.
It is a pleasure to serve under you, Ms Bardell. This is my first outing as a Minister, so I will rely on your guidance and the lenience and tolerance of the Opposition.
The armed forces covenant is a promise by the nation that those who serve or have served in the armed forces, and their families, will be treated fairly. It aims to ensure that they will not be disadvantaged in accessing public and commercial goods and services as a result of their service. It also allows for special provision, when justified, for those who have sacrificed the most, such as the bereaved and the severely injured.
In the 11 years since the Government put the armed forces covenant on a statutory footing, we have seen excellent work across the UK in support of our armed forces community. However, there remain concerns that some members of the armed forces and their families continue to experience disadvantage when accessing public services, particularly as they move around the country. Evidence suggests that that is largely due to a disparity in the level of awareness of the covenant among local service providers. It is this disparity in awareness that will be rectified through the Armed Forces Act 2021 via the introduction of guidance for relevant statutory bodies. In doing so, we will have successfully delivered a key manifesto commitment to further incorporate and strengthen the armed forces covenant in law, and ensured that the covenant has a firm platform to continue to flourish in the future.
The main focus in the guidance is the introduction of due regard. We designed the new duty under the covenant around the principle of due regard as a means of building greater awareness. The duty of due regard recognises that statutory bodies are required to adhere to similar “due regard” duties already in place, such as the public sector equality duty, so they will be familiar with how to meet such obligations. As with those existing duties of due regard, we will not prescribe in legislation exactly how the requirement to have due regard must be met. The duty does not mandate any specific outcomes, and statutory bodies will already have processes in place to meet similar existing obligations, so we do not consider that this duty will impose any significant additional costs on these agencies.
By obliging the statutory bodies responsible to consider the needs of the armed forces community when developing policy and making decisions in the key areas of health, housing and education, the duty will naturally raise awareness of the covenant and its principles. That, in turn, will help to ensure that members of the armed forces community are treated fairly and not disadvantaged when engaging with statutory agencies responsible for the delivery of health, housing and education. Those three areas have been identified as being of most concern to the service community, and they will act as a starting point.
The regulations implement key provisions of the new duty of due regard by bringing into force supporting statutory guidance under regulation 2. When exercising relevant public functions, agencies must have regard to this guidance. The purpose of the statutory guidance is to help the bodies understand what is required of them under their new obligations. It does that by explaining the principles of the covenant and how and why members of the armed forces community may experience disadvantage, and by providing good examples of removing, mitigating and preventing disadvantage.
Over the last two years, in order to ensure that the statutory guidance would be fit for purpose, we consulted our key stakeholders. Discussions were held with representatives from local service providers, Government Departments, the devolved Administrations, service charities, families federations and the relevant ombudsmen. We engaged with more than 200 individuals representing their organisations, and their views have been essential in ensuring that the guidance is robust, practical and, perhaps most importantly, useful to users.
The completed draft guidance was also subject to a formal consultation. The Government consulted the devolved Administrations of Northern Ireland, Scotland and Wales; local authorities across the United Kingdom; the NHS, including NHS trusts and health boards, agencies and commissioning groups; service charities and families federations; subject matter experts; and, more importantly, members of the armed forces community itself. As a result, only minor changes were made to the statutory guidance, focusing on ensuring that it was as clear as possible to users.
The covenant principles relate to disadvantage faced by servicepeople, including the relevant family members of service personnel and veterans. Regulation 3 defines who is a relevant family member in respect of the new duty. We have taken a broad approach in the definition, as a family group may look very different depending on circumstances, and those outside of what might traditionally be defined as a family may well be impacted by service life—for example, separated spouses with children. Where family members are affected, it is usually due to their cohabitation with, or dependency on, service personnel. That has been used as the basis for the definition, which extends beyond the immediate family members.
The definition, therefore, in addition to partners and children, includes wider family and bereaved family members, where such a cohabitation status or dependency on the service member exists. It also includes those who have parental responsibilities under section 3 of the Children Act 1989. By more clearly identifying the groups impacted by service life, we will assist public bodies to better understand to whom they might have due regard, and so meet their obligations under the new duty. The guidance and the definition of relevant family members will therefore be key tools in raising awareness of the issues faced by those in our armed forces community, and will help to promote better outcomes for them when accessing key public services.
We must, however, look to the future. The other vital element in our approach rests with the new powers granted to the Secretary of State by the 2021 Act to add new functions or bodies to the scope of the duty, to ensure that it can effectively adapt to the changing needs and concerns of the armed forces community. We are engaging with Government officials and covenant stakeholders to establish an open and transparent process by which possible additions to the new duty can be thoroughly considered by the Secretary of State. Potential additional functions will be assessed against clear and robust criteria that have been established and agreed with covenant stakeholders.
During the passage of the 2021 Act, we committed to conduct a review into whether central Government should be included in the scope of the duty, and to report on its findings in the 2023 covenant annual report. The review will consider the role of the UK Government and devolved Administrations in conducting the functions already in scope of the duty. It will also consider the extent to which they currently consider the covenant principles, and the benefits and costs of bringing them into scope. As is good practice, a second review will be undertaken to consider the effectiveness and impact of the duty within five years of its coming into force. In order to enable a meaningful assessment to be made, we must give the duty time to embed. It must be in force for at least 12 to 18 months to allow time for its effects to emerge and be properly assessed.
Where issues concerning compliance with the duty are raised, we expect the vast majority of complaints to be resolved through existing complaints procedures, including relevant ombudsmen where appropriate. Judicial review remains the appropriate means of ultimate recourse when challenging non-compliance by a public body with its legal obligations. While the duty cannot mandate public bodies to keep specific records, best practice would suggest that this be done, in addition to the record keeping processes already in existence for service users. That is all highlighted in the statutory guidance.
I ask hon. Members to consider that the covenant is only one element of our work to improve the lives of those in our armed forces community. There are many initiatives to ensure that our people are not disadvantaged. These include, but are not limited to, our service personnel, veterans and their families. There is a raft of initiatives, including: the defence holistic transition policy; the schools admission code; the service pupil premium; the creation of the armed forces covenant fund trust, which supports 700 covenant initiatives and spends around £10 million per year on projects such as the armed forces families fund; the strategy for veterans; the strategy for families; the mental health and wellbeing strategy; the defence accommodation strategy; the future accommodation model; the forces help to buy scheme; and the cost of living package. The duty and its supporting guidance will be a key tool, now and in the future, in promoting better outcomes for our armed forces community.
Let me turn to the draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022. The statutory instrument consists of three changes to the rules that apply to the service courts. First, it will introduce an overriding objective for the service courts. Secondly, it will give the Director of Service Prosecutions responsibility for warning prosecution witnesses of trial dates. Finally, it will increase the representation of women on court martial boards.
The first measure implements one of the recommendations of the service justice system review carried out by His Honour Shaun Lyons and Sir Jon Murphy. That recommendation was to introduce an overriding objective, equivalent to that used in the civil and criminal courts in England and Wales. It applies to the court martial, the service civilian court and the summary appeal court. The overriding objective is that cases are dealt with “justly”. That encompasses considerations such as the need to acquit the innocent, convict the guilty, and ensure that cases are dealt with efficiently and swiftly. It includes treating all participants with politeness and respect, and respecting the interests of victims and witnesses and keeping them informed of the progress of the case. In addition, the overriding objective for the service courts includes a reference to the need to maintain the operational effectiveness of His Majesty’s forces. Maintaining operational effectiveness is a key difference between the service justice system and the civilian criminal justice system.
The second measure implements another recommendation from the Lyons-Murphy review. It amends the current rules on notifying witnesses, giving the Director of Service Prosecutions, rather than the Military Court Service, responsibility for warning prosecution witnesses of the time and location of the proceedings at which they are required to give evidence. This change will improve the speed and efficiency for witnesses making arrangements and attending the court martial process. It will align the practice of the service courts with the civilian criminal court system for England and Wales, where that role is performed by the Director of Public Prosecutions.
Finally, new rule 34A in the court martial rules requires a court administration officer to ensure that each court martial board includes at least one servicewoman.
I wish the Minister best of luck in her new role.
I have been looking through the explanatory memorandum and two things have occurred to me. First, point 10, on page 3, under the heading “Consultation outcome”, says that there was no consultation for this proposal. However, it does say that there was engagement with a range of stakeholders, including the Judge Advocate General and the Military Court Service. Will the Minister please tell us their main feedback points?
Secondly, there is a big emphasis on page 2 of the explanatory memorandum on the recruitment of lay members. That sounds great, but how will those lay members be recruited?
On the hon. Member’s second point, if he waits a little longer, I will go into the details of how we recruit. However, I can say something that is not in my speech: the existing strategy is to have two pools, one of men and one of women, but that is to be stopped, and from January we will have one pool of lay members who are serving personnel of warrant officer and above—OR-7 grade and above. A female will be selected from that, and the rest go into the pool to be picked out randomly. I will discuss that a little more later in my speech.
The Judge Advocate General and senior military personnel are happy with that provision. You might expect them to be. We have engaged with them and made any amendments necessary before I brought it before you today—
Order. I remind Members to speak through the Chair and not directly to each other.
I am sorry, Ms Bardell.
At this stage, I declare an interest. This measure has its origins in a House of Commons Defence Committee report, “Women in the Armed Forces: From Recruitment to Civilian Life”—the result of an inquiry that I chaired. In the Government response to the report, the Ministry of Defence undertook to carry out work on increasing the representation of women on our court martial boards related to sexual offending. I am pleased that the MOD listened, and this measure goes further by ensuring that women will be better represented on boards dealing with all types of case.
Owing to the lower number of women compared with men serving in the armed forces, the chances of a woman being selected at random from the pool nominated by each of the services to serve on a court martial board are significantly lower than those of a woman being randomly selected to serve on a jury in the civilian system. In fact, the existing process of board selection means the probability that it will generate an all-male board is 14% for the Army, and 23% for the Navy and the Air Force. This measure seeks to redress that imbalance and better reflect society.
Rather than being left to chance that a woman will be randomly selected from the pool of nominees, the change will ensure that there will always be at least one woman on every board, bringing the constitution of the courts martial closer to that of juries in the civilian criminal justice system. While the measure will mean women are slightly more likely to be selected for a court martial board, I reassure the Committee that the impact it will have on women who serve in our armed forces has been considered carefully as part of our public sector equality duty. No concerns were expressed.
The impact will not result in women being treated less favourably than men given the small numbers involved. The total number of women that will be required to populate all three services’ boards is 192. That is an increase of 48 more women per year than currently, and is 4.2% of the population of women eligible to sit on a court martial board, due to rank and seniority requirements. The total number of men required to populate the three services’ boards will remain largely unchanged at 672, which is 1.7% of the population of men eligible to sit on a court martial board.
Additionally, service on a board lasts only about two weeks and is a normal part of the duties of any senior non-commissioned or commissioned officer. It can be useful experience for future command, as commanding officers play a role in the service justice system.
We believe that increasing the representation of women on court martial boards will ensure that they are always part of the decision-making process in the service justice system. That will better reflect our society and reinforce the important role of servicewomen in the justice system. I commend the draft instruments to the Committee.
It is good to see you in your place, Ms Bardell.
I welcome the Minister to her first statutory instrument Committee on the Front Bench. I hope that the Prime Minister was listening to her speech because, having sat through an enormous number of statutory instrument Committees since I was elected in 2017, it is good to hear a Minister on top of their brief and able to speak beyond the words given to them by officials. That is welcome, and I hope that the Minister stays in her place if any reshuffle comes her way. At a time of such severe international difficulties, we need good people who know our military and can make good decisions.
Labour will oppose neither of the draft statutory instruments. They both move in the right direction. However, I have a few questions and a few points to make. A number of Opposition colleagues have participated in the armed forces parliamentary scheme, as I know have Government Members, which gives parliamentarians an opportunity to look at service life. Indeed, I have just returned from Estonia, where I saw the amazing work of the King’s Royal Hussars and 2 Rifles in defending our allies there. We need to make sure that the systems put in place are suitable for not only service personnel but, importantly, their families. I know that the Minister has an interest in defence families, which is a fresh injection into the way the Ministry of Defence works, and I wish her the best of luck with that. I will ask a few questions about defence families, but I encourage the Minister and all parliamentarians to fully participate in that scheme if possible.
The AFPS could benefit from a slight tweak. At the moment, the three basic courses do not include a module on defence justice. Given the important role that defence justice plays for our service personnel and the confidence that we must have in defence justice, the ability for parliamentarians to have a passing understanding of how the defence justice system differs from the civilian system and why there is a difference would not only aid Committees such as this in scrutinising legislation, but would help us to understand daily service life.
I thought the hon. Member was going to add the experience of women. Although the Minister has done a huge amount of work on the issue, that would be another useful addition to the parliamentary scheme, so that parliamentarians could sit down and hear, behind closed doors, the true lived experience of women in the armed forces.
I am grateful for that intervention, and I agree. It is quite refreshing to see the freedom that service personnel have to speak to parliamentarians on visits, and experiences of sexual violence within the forces, which the Minister will know about from her time on the Defence Committee, are very relevant to what we are discussing today.
I will first talk about the covenant regulations and then move on to service justice. We need to recognise that it is not just our service personnel, their families and people who have served in the past who need to have a robust armed forces covenant that is as effective as possible. Across the country, there are some locations—Plymouth is one—that do the armed forces covenant very well. There are other locations where the armed forces covenant sits gathering dust on a shelf, and the ability to make sure it is truly implemented and lived is a challenge that still has not been fully met.
I would like the Minister to consider important ways in which the covenant could be strengthened. One of those is the extension of the covenant beyond education, healthcare and housing to include other areas of central Government activity—employment, social care, pensions, compensation and benefits, to name but a few. Our service personnel, veterans and their families should not incur unfair disadvantage in any walk of life, and the importance of the armed forces covenant as a principle needs to be extended to all public bodies.
There is a second area where this SI could seek to go a little further. Despite the Minister mentioning the 2023 review of the covenant, there are still no plans for the covenant to apply to central Government, including the Ministry of Defence itself. It is worth taking a moment to consider that omission. If the armed forces covenant is to be real, and if service personnel, their families and veterans are to have confidence in it, the Ministry of Defence must lead by example. I would like to see Ministers, including the Minister here today, put more effort into making sure that happens.
A whole host of service charities, including the Royal British Legion, Help for Heroes and the Confederation of Service Charities, have expressed concern that central Government do not have a duty under the covenant. In terms of the duties under the covenant, it is fine for this place to put additional responsibilities on local government—which has a lot of responsibilities already, but not the resources to go with them—but the Government need to walk the walk if they are to talk the talk, and that means applying these duties to central Government as well. This is not a small point. National Government oversee many policy areas that service personnel experience difficulties with, so they should have clear, measurable duties under the covenant to deliver for personnel, their families and veterans.
Satisfaction with service life has dropped below 50%, according to the Government’s own figures, which should worry Members on both sides of the House. I seek not to make a party political point; we need to make sure that we increase morale among our armed forces personnel if we are to retain their skills and experience, and honour our obligations as, in effect, employers. There are still clear failings when it comes to housing, healthcare, social care and other issues.
As we approach Remembrance week, attention will naturally turn to how the covenant is implemented, and rightly so. As parliamentarians, we should not only ask questions publicly, but challenge constructively in private and ask when it will apply and whether the 2023 review of the covenant will include consideration of its greater applicability to central Government. I am afraid 2023 is already too late.
Let me turn to the draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022. The Minister will know, because she and I have spoken about this many times, that the Labour party stands four-square with our armed forces and backs the Government’s effort in Ukraine to support our NATO allies, but we do need to make sure that we get all aspects of service life right. Although the rules are a step in the right direction, I have some questions about how we can make sure that they are delivered appropriately.
It is entirely sensible to introduce the overriding objective that the Minister has set out for courts martial and to give the Director of Service Prosecutions responsibility for warning prosecution witnesses of trial dates. Those were pragmatic recommendations from the Lyons review, which we welcome.
Likewise, it is welcome that the statutory instrument will ensure that there is at least one woman on the board of each court martial in circumstances where there are lay members on the court. A normal board will have between three and seven people, so it is a step in the right direction to have one woman there, but I would like to have a greater sense that we are moving towards balance. We need to see more women in our armed forces full stop, but the explanatory memorandum could have shown a greater sense of the direction of travel that Ministers wish to take. I would be uncomfortable with the idea that it is good enough that there is a woman on the board and that some additional women may, although not necessarily, be provided by the shuffle that the Minister explained. We need a sense of the direction of travel.
I encourage the Minister, in the implementation of the SI, to look at how the language can be tweaked to make sure we have greater representation, which is particularly important when the board considers cases that include servicewomen or situations in which a servicewoman has been affected as a victim. The lived experience of the people who are judging someone and making decisions on their career and on prosecution should have an element of familiarity with the experiences of either the person on trial or the witnesses and victims.
Some Government statements on upholding military justice are still more rhetoric than reality. I wish to put on the record the Government’s rejection of the headline recommendation of the Lyons review that murder, manslaughter and rape should be prosecuted in civilian rather than military courts when the offences are committed in the UK, with the Attorney General able to rule otherwise in exceptional cases.
It is a shame that the Government have chosen not to adopt fully the proposal—the headline recommendation—but it is more than disappointing, because the Minister may not have listened to her own recommendations. I do not wish to embarrass her, but last year she co-authored a Defence Committee report on women in the armed forces that argued that the Government should remove court martial jurisdiction over cases of rape and cases of sexual assault with penetration, as well as for cases of domestic violence and child abuse. I know the Minister has been in post for only a short time, but I encourage her to continue to provide challenge within the Ministry of Defence in respect of why the full recommendation was not included in the statutory instruments before us and on how quickly the change will come. Will she set out whether any work on that is in train in the Ministry of Defence?
There is a litany of reasons why this issue is important, including serious backlogs, investigators missing obvious lines of inquiry and the unnecessary retraumatisation of victims. Let me give the Committee two examples taken from the written evidence submitted by the Centre for Military Justice to the Defence Committee inquiry on women in the armed forces. In one case in which a servicewoman reported an alleged sexual assault, the Service Prosecuting Authority accidentally revealed the victim’s home address to the alleged assailant by sending to the alleged perpetrator a letter intended for the victim. That is clearly unacceptable. In another case, where a servicewoman reported sexual assault, court martial transcripts show that a judge advocate remarked of the
“quite appallingly bad police investigation…how stupid was it not to interview the people who were at the scene”.
There is still work to be done, and I encourage the Minister to look at whether that recommendation can be brought back.
It is unsurprising that the recent service justice system policing review said:
“The Service Police do not investigate enough serious crime to be considered proficient”.
That makes a clear distinction between service policing and the civilian role. We must understand the particular demands, stresses and secrecy that may apply in a military environment, and have examples of where that should not apply and where the expertise and familiarity of civilian policing could produce better results for victims and greater confidence in the justice system. The numbers speak for themselves. Ministry of Defence figures show that from 2015 to 2020, the conviction rate for rape cases tried under courts martial was just 9%. Recent data shows that the conviction rate was 59% for similar cases that reached a civilian court. We know that prosecution rates for rape are far too low in civilian courts, but that comparison shows a problem.
I would be grateful if the Minister answered a number of questions. First, my hon. Friend the Member for Blaenau Gwent made a point about the explanatory memorandum. I am afraid that if the Minister is to serve on Delegated Legislation Committees with me, she will need to know that I, too, read the explanatory memorandums quite closely. I am interested in why the territorial extent of the regulations includes United Kingdom overseas territories but not Gibraltar. Considering the large UK military presence in Gibraltar, why is that particular overseas territory excluded from the regulations? Are the provisions replicated elsewhere, or is a separate statutory instrument needed to deal with Gibraltar’s specific legal jurisdiction?
I am not a fan in impact assessments of the phrase
“no, or no significant, impact”
because I believe that those are two very different things. I know that it is not the Minister’s fault, and that officials who write such explanatory memorandums must use the house style, but there is a difference between no impact and no significant impact. When looking at the impact of any SI, it is unhelpful to have those blurred together.
My final question is about the quite helpful expansion of what a “family member” means in the SI. As someone who believes that families should be at the heart of our community but that we should not specify what a family is because each of our families is different and each is loved by the people within them, I was interested to see how the Government have laid out what a family is and what a relation is. When a service person has a foster child, or when there is one in a defence family, I think that would be included within the broader remit, but I would be grateful if the Minister confirmed it for the record.
May I politely challenge the use of the language
“of the full blood or of the half blood or by marriage”
in the Bill? There is language that, as parliamentarians, we should encourage movement away from. When we talk about the “full blood” or the “half blood”, it suggests that some children have a legitimacy that is different from that of adopted children, for instance. I encourage the Minister to look at whether in future SIs that type of language can be retired.
I am pleased that the hon. Member has raised the issue of family make-up, especially when fostering is involved, as well as adoption. Of course, there is also special guardianship. That is another area that we need some clarity on, to ensure that it is not missed out in the definition.
I am grateful for that intervention. We want the rules around service life to better reflect the way the world is. Having come from a service family myself—my old man was a Royal Navy officer—I recognise that the family that I grew up in was very different from the families that were on the marry estate on either side of us. The regulations must adopt the full range. That speaks to the need for us to develop a better understanding of what defence families are like. Parliamentarians and the Ministry of Defence have a good understanding of service personnel and an increasing understanding of veterans, though there is more work to be done there, but defence families are often a bit of an afterthought.
I mean that in a constructive way, to encourage the Minister to challenge the Ministry of Defence further about whether that language could be updated—even if it is strictly defined by primary legislation elsewhere—and replaced with more inclusive language that reflects how service families are structured in real life. I know that she feels passionately about this and takes such concerns seriously.
I wish the Minister the best of luck in her role. We need people with experience and expertise in the Ministry of Defence at this difficult time, and I hope that she stays there for quite some time to come—until she is replaced by a Labour Member in due course.
I congratulate the Minister on her role. All of us who have had interactions with her over the last few years know that her appointment is well deserved, and we look forward to working with her in her new position.
We have discussed many times in similar debates the fact that the covenant remains very much a statement of intention without the required statutory teeth, and it is difficult to see how the regulations will change that. The big issues in the regulations are housing, education and healthcare, and I will say a couple of words about them. The hon. Member for Plymouth, Sutton and Devonport has just spoken about the changing nature of service families. Bearing in mind that we are looking at the principle of “no disadvantage”, there must also be some recognition that service families are not necessarily wives, that they are not necessarily at home looking after children, and that they are not necessarily in service accommodation. Often, they are living in their communities, and often they are husbands, partners or whatever else—there can be many different iterations of the new modern family. Sometimes, that is not captured when we look at the principle of “no disadvantage” and how we can support those families in a different environment.
I want to make a small point on education. For the last few years, Glasgow schools—I speak about them because I am a Glasgow MP, but others may know of this happening elsewhere—have asked on registration forms for an indication of whether parents are serving personnel or veterans. That is really important and allows schools to put different accommodation in place where required. I think that would be a really simple addition to schools that would not require a huge amount of funding, but would allow these families to be identified more effectively.
The Minister said that there would be no requirement for additional funding as a result of the regulations. We had a lot of discussion about this a number of years ago. If we are asking local authorities to put in place more accommodation—not just housing, but more recognition of what service personnel and their families require—there has to be a financial element. We cannot just expect local authorities that are already struggling to pick up all the slack. That is particularly the case for local authorities that are close to bases, where a lot of service personnel will move into and out of the local area. It would be useful for the Minister to say something in her response about funding for local authorities.
Many issues are not covered by the regulations. They do not cover pay or how personnel can campaign on pay-related issues. There is nothing about providing proper representation for serving personnel, in the way that many of our NATO allies do. Importantly, personnel in certain countries are able to express concerns outwith their chain of command, so that it does not cause problems for them. It would be good to see how we are going to put in place such an opportunity for service personnel, if we do not have proper representation for them.
It is good that LGBT veterans are now able to respond to the independent review. I encourage the Minister and the Government to listen carefully and to respond quickly, because for many decades many of those veterans have been living with the result of what happened to them. They need some resolution. We know that there is an issue to be dealt with quickly.
I also want to mention accommodation and housing, in particular for veterans. Many veterans have additional needs because of their service, including disability. I mention the work of the Scottish Government in mitigating the bedroom tax: if veterans need an additional room for equipment they require, they are not expected to shell out additional money. It would be good to hear whether the Minister is to take any action to replicate the work of the Scottish Government.
Moving to service justice, the SNP’s position is that serious cases of sexual assault, rape or gender-based violence should be processed and tried in civilian courts, rather than in the service justice system. The Minister spoke about the representation of women on the court martial boards, but a minimum of one woman is not enough. There has to be far greater representation if we are looking at the issue.
The Centre for Military Justice gave some evidence to the Defence Committee stating that the outcomes of rape and other sexual assault cases heard in military courts are much lower compared with civilian courts. The then Secretaries of State for Home Affairs and for Justice—the right hon. Member for Witham (Priti Patel) and the right hon. and learned Member for South Swindon (Sir Robert Buckland)—both talked about how they were deeply ashamed of the rape conviction rate. The Minister has spoken up extensively on behalf of women personnel, but it would be good to hear of some strengthening and of such cases being heard in civilian courts, rather than military courts.
To give some figures, of 48 rape trials at court martial in 2017, only two resulted in a conviction. In 2018, the number of rape cases fell dramatically, and I think we can understand why when the conviction rate is so low: there were only 10 cases, resulting in just three convictions. In 2019, 15 cases resulted in only three convictions.
That is not good enough, and the signal it gives to female personnel is not the message that we should be giving. We should be saying: “We will listen to this case. It will be heard fairly.” It should not only be heard, but investigated first of all by people with expertise—particular expertise of dealing with rape or sexual abuse. Having that specific expertise goes beyond what we can expect of military police and investigators in the military to have; it has to be done by the professionals who have such expertise.
Accused service members going through a court martial are allowed to introduce evidence of their good character. If I were the victim and hearing evidence of the accused’s good character, it would sound to me as if that somehow negated their poor behaviour. We have to be careful about the messages. In short, we seem to be saying: “If you are an excellent soldier, it doesn’t matter so much if you are a violent felon.”
I would also like to hear a bit about child recruits aged 16 and 17. According to MOD figures, 22 such recruits at the Army Foundation College were victims of sexual abuse last year. What has been done about that and to ensure that child protections and safeguarding are in place for youngsters?
Both SIs are steps in the right direction, but what sort of evaluation has the Minister planned? Will action be taken as a result of increased numbers of rape trials, for example? People need to understand that there will be a more effective system in place. Finally, I know that the Minister has the interests of personnel—particularly female personnel—at heart, and I look forward to working with her over the next few years.
If I forget some of the questions that you have just asked me, please let me know and I will answer them.
I will start with the questions from the hon. Member for Plymouth, Sutton and Devonport. I will write to you about the term “half blood”—it sounds a bit Harry Potter-esque, doesn’t it? I agree that language needs to be changed, and we need to put the victim at the centre of all policies that the MOD looks into. I will get back to him on that one.
A lot of us here have been in service—I draw on my own service experience and service networks, as do many others in this room—and many of us have also taken part in the excellent armed forces parliamentary scheme, which is quite practical in outlook. I absolutely agree that it would be quite interesting and informative to learn about the service justice system and courts martial, and—to extend this to the point made by the hon. Member for Glasgow North West—about procurement, the covenant, service charities, and the representation of women and black, Asian and minority ethnic people in our military. I am happy to row in behind you to get that sorted out with the armed forces parliamentary scheme.
I will cover both questions about murder, manslaughter and rape in the military courts. You obviously know that I have a vested interest in that, and I will pursue it from my position as Minister. On the back of the recommendations in the Defence Committee’s “Women in the Armed Forces” report and those of the Lyons-Murphy review, the MOD has introduced a raft of measures, and I have made note of a few of them.
We have removed the chain of command from complaints of a sexual nature. We have instigated a defence serious crime unit, which will come into effect early next year; a service police complaints commissioner, who is soon to be appointed; a victims unit within the defence serious crime unit; and a protocol on concurrent jurisdiction to see where best to trial rape cases—I will watch that carefully to see how it progresses. Obviously, it has to bed in before we can look at the evidence, but you will appreciate that I have an interest in that area.
Order. Will the Minister remember to speak through the Chair?
If there is an allegation of rape, the service personnel can now go to the civilian police; granted, it does not happen that often, because of the institution of the MOD, but they can and do have that option now. The list I gave is all about training the service police and the investigators about what to do properly. A lot of these policies and procedures in the service justice system are now aligned with the civilian justice system, which we hope will increase and maintain the speciality of serving police.
I thank the Minister for that, but I will push her a little further. In the civilian police, there are people specifically trained to deal with such allegations; they do not deal with a wide range of allegations. It would be useful to know that that is the same in the military; that there are people specifically trained to deal only with these types of allegations, and that people would interact with somebody who has that expertise.
There is already a system in place. Victim officers are assigned to cases such as this, but I identified in my report the fact that sometimes they were good and sometimes they were not; there was a training programme to ensure that everyone reached an acceptable level. They are assigned someone to help them through the process.
I remind Members that this aspect, while incredibly important and pertinent, is out of the scope of the legislation. For the benefit of everybody here—because it is an important discussion—I urge the Minister to take it up separately with Members and ensure that they have the answers they seek.
I will get back on track, Ms Bardell, and return to the armed forces parliamentary scheme. I would like to see more women on the court martial, but we have only 12% women at the moment. There is a raft of measures that have gone in to try and help recruitment and retention of women in the armed forces, not only with regard to what I have said about when things go wrong but with terms and conditions for uniform and body armour. The culture issue will be addressed, but it will take time. We will see more women in the military—I am confident of that—and as a consequence we will see more women in the court martial system.
Is it possible for the Minister to publish the data, on an annual basis, of how many men versus women are on the boards? It would be useful to be able to see the change. The stats that the Minister gave earlier were useful, but seeing the direction of travel on an annual basis as part of normal MOD reporting could be helpful. Is that something she would consider?
Yes. One thing I did not mention is that the intention is to review this after a year to look at its success, and to ensure that women are on the boards. If there are operational requirements as to why someone has to be withdrawn, that is something we need to keep an eye on. I will write to the hon. Member to see if we can do it on an annual basis, rather than just at the 12-month mark; hopefully we will see more women on the court martial board.
Duty of due regard will be reviewed. It is a starting block; when it was introduced, it was always a starting block. It will be reviewed with regard to the devolved administration involvement and the central Government. If the requirement is there to include these statutory agencies and if there is a requirement to extend the scope to other fields outside health education, we will do so, but we need evidence to say that that is necessary first.
Let me turn to Gibraltar. The Gibraltarian regiment is a civilian-raised regiment, and does not come under the definition of the UK regular forces. It falls outside the Armed Forces Act, but if it wants to be included it can write to the MOD and request that; that is not a problem.
May I press the Minister on that point? She is right about the Gibraltar regiment, but for non-Gibraltar regiment personnel stationed in Gibraltar—there are UK service personnel outwith that regiment—this legislation, according to the territorial extent, would not apply. Is that her understanding? That regiment and the additional personnel we have there seem to be dealt with differently.
That is a fair point. I will get back to the hon. Member on that.
Families extend to foster children and special guardianships. I reiterate that the definition of an extended family goes outside the scope of the Armed Forces Act, because we recognise that it needs to be more encompassing. Again, we will keep an eye on that.
In response to the hon. Member for Glasgow North West, LGBT is not quite in scope, but I will say quickly that Lord Etherton is undertaking a review. We need to right some wrongs, and I will look into that. Murder, manslaughter and rape have been mentioned— again, slightly outwith. The independent pay review body will report in spring, but at the moment the armed forces have the highest salaries they have had in 20 years. A cost of living package is in place to support them going forward. I am conscious that we will also be looking at our BAME community. I will work with representatives to ensure that they are not outside what we are focusing on, and that they are included in how we go forward with the transformation and modernisation of the military.
The hon. Lady also mentioned children going into schools. Children already receive a service pupil premium, but some work is going on as to how beneficial that is and whether we can do more to help service families as they move around the country and abroad. The Army Foundation College Harrogate is an exceptional college, taking in a lot of young people from all sorts of diverse backgrounds and educating them to a higher level than when they joined. It also educates them in future military life. There have been some issues—it would be wrong to say that there had not been—and I will look into them. I think that is everything.
Question put and agreed to.
That the Committee has considered the draft Armed Forces (Covenant) Regulations 2022.
DRAFT ARMED FORCES (SERVICE COURT RULES) (AMENDMENT) (NO.2) RULES 2022
That the Committee has considered the draft Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022.—(Sarah Atherton.)