Tuesday 18 October 2022
Arrangement of Business
My Lords, good afternoon. I remind your Lordships that, if there is a Division in the Chamber while we are sitting, the Grand Committee will adjourn for 10 minutes as soon as the Division Bells are rung.
Digital Government (Disclosure of Information) (Amendment) Regulations 2022
Considered in Grand Committee
That the Grand Committee do consider the Digital Government (Disclosure of Information) (Amendment) Regulations 2022.
My Lords, the purpose of the regulations is to allow information sharing between specified bodies for the specific purpose of identifying and targeting funded early learning and childcare for families with eligible two year-olds in Scotland. They seek to amend the Digital Government (Disclosure of Information) Regulations 2018. The public service delivery power supports public bodies to improve or target the important public services that they provide. The power is designed to give public bodies the information needed to provide early intervention and vital support for those who need it or, where possible, to prevent the problems that reduce people’s life chances.
The regulations seek to establish a new objective for data sharing under the public service delivery power in the Digital Economy Act 2017, for identifying and targeting funded early learning and childcare for families with eligible two year-olds in Scotland. The Scottish Government identified that there was low uptake for eligible two year-olds in Scotland and seek similar data-sharing arrangements as those already in place with English and Welsh local councils. Although Section 34 of the Scotland Act 2016 allows sharing of information between the Secretary of State and the Scottish Ministers, this has to be for the purpose of their respective social security functions. Regulations can expand on what those functions are but early learning and childcare does not relate to social security. Furthermore, HMRC has neither Secretary of State nor social security functions. For this reason, the Scotland Act 2016 is not a suitable vehicle to implement these powers and we are using the data-sharing powers in Part 5 of the Digital Economy Act 2017.
The objective created through this regulation would enable data sharing from DWP and HMRC to the Scottish Government and allow for this to be forwarded to Scottish local councils. It would allow Scottish local councils access to the necessary information held by DWP and HMRC to enable them to identify households most in need, and then directly contact these families to inform them of the support that they are likely to be eligible for. To exercise the public service delivery power, the Government must set specific objectives for data sharing via regulations. Those objectives must meet specific criteria defined in the primary legislation. For the avoidance of doubt, these regulations do not create a new Henry VIII power. Instead, we are adding a new objective to the current tightly controlled Digital Economy Act powers, which make it possible to add or remove specified objectives and persons.
The current power to make amendments of this nature was subject to robust scrutiny by the Delegated Powers and Regulatory Reform Committee and, as a result, the power to add this early learning and childcare objective must be scrutinised by Parliament via affirmative regulations. The territorial extent of this regulation is Great Britain and the territorial application is England and Scotland.
This regulation must be taken through the UK Parliament by the UK Government because information sharing under the proposed objective would involve disclosure and processing of data held by UK departments: HMRC and DWP. The Scottish Parliament can approve proposals only for new objectives which solely involve specified Scottish bodies permitted to make use of the public service delivery power. Legal gateways already exist in England and Wales to enable data sharing to support delivery of early learning and childcare. This draft regulation will bring Scotland parity of service provision that families in England and Wales already enjoy.
Data sharing is a vital and effective way of identifying individuals and households experiencing problems that reduce their life chances. Access to high-quality early learning and childcare is a key factor in determining life chances.
There are safeguards in place to protect personal data from misuse. The objective has already been subject to scrutiny by the Public Service Delivery Review Board, which oversees the use of the public service delivery power as set out in the underpinning code of practice. The review board comprises specialists working in the UK Government and in the devolved Administrations, as well as public representative bodies and civil society groups. Officials from the Information Commissioner’s Office also attend as observers. The board is tasked with considering proposals for new objectives for data sharing under the public service delivery power and making recommendations to Ministers. The board’s recommendation to take forward these draft regulations was approved by the relevant Minister as it meets the criteria set out in Section 35 for objectives under the public service delivery power: enabling the sharing of personal information to support “the improvement or targeting” of public services to individuals or households to improve their well-being.
Furthermore, the objective has been subject to public consultation. Respondents to the statutory public consultation have been decidedly positive, with up to 94% agreeing that the proposed data share would improve and target a service to eligible households, and 88% agreeing that the data sharing would improve well-being for these households. Some 86% also agreed that the data sharing would deliver tangible benefits to households, including early stage support to promote education, health and social equalities. Importantly, the majority of respondents, 87%, agreed that the personal data items to be shared, specifically including the customer—parent or carer—name, address and national insurance number for unique identification, as well as a child or children indicator to confirm the existence of a child or children, are appropriate for early learning and childcare service delivery.
Parliamentarians have already approved the code of practice and the previous Digital Government (Disclosure of Information) Regulations 2018, which I referred to and which established existing public service delivery objectives. Sharing personal data will, understandably, tend to attract attention and scrutiny. However, the power—as with the other data-sharing powers in Part 5 of the Digital Economy Act 2017—must be exercised in compliance with the data protection legislation and UK GDPR.
The data being shared is strictly limited to the names and addresses of parents and confirming whether they are eligible for qualifying benefits. This does not involve the sharing of data held regarding the child, nor does it involve supplying further information than is necessary or confirming which benefits the parents do or do not claim. Scottish local councils also have arrangements in place to identify children in care or with guardians who may be eligible.
There is an underpinning code of practice, which sets out how the power must be operated. This includes setting out how any data shared under this power must be processed lawfully, securely and proportionately, in line with data protection legislation. Anyone making use of any objective must have regard to the code. The code of practice also requires that information-sharing agreements are included in a public register of information-sharing activity under the powers.
I hope colleagues in this Committee will join me in supporting the regulations. I apologise for a bit of technical information but, in the meantime, I beg to move.
My Lords, I thank the Minister for that introduction and explanation. There is very wide support for the extension of childcare. Indeed, I have always believed that structured play and social engagement for young children is beneficial. Very early on in my political career, I campaigned successfully for increased funding for playgroups and for the extension of nursery-year schools in my area—I might say against campaigns from other political parties that were less supportive.
The basic understanding of the consultation is that it is overwhelmingly supported because of the objective, but there are perhaps one or two wrinkles worth pointing out. First, in that context, all children and all families are different, so there should not be a presumption that every child must or should go to childcare or nursery education between the ages of two and five. It should be a choice for the family and the parents, and sometimes there is pressure that is not appreciated.
Looking at some of the responses to the consultation, they were, I accept, overwhelmingly supportive across the piece—as the Minister pointed out—but large statistics still cover small minorities of concern. Taking one section as an example, 55% of respondents said that they saw no risk of loss of benefits; that means a pretty substantial minority were concerned that there might be. Does the Minister have any information on how that could come about and what the risks were? In the same category, 64% of respondents saw no risk of a loss of access to services, but that leaves a significant minority concerned that there might be. While in no way detracting from the very targeted purpose and desirability of this overall, and the general support for it, there needs to be recognition that there will be people for whom this raises some concerns.
Coming on to the specifics of the actual data-sharing, the Minister was careful to acknowledge that, by definition, data collected for one purpose being used for another is very much of concern. When people give information, they need to know what it is for and not to find it has been used for something they did not expect. In that context, it seems that the relationship between the Government, local authorities and all the relevant agencies needs to be sensitively handled. Think of a family who are struggling: if somebody rocks up at their door saying, “We have data to suggest this”, it could create a sense of threat or concern because we are, by definition, talking about vulnerable communities. What provision is there for ensuring that there is co-ordination and the best networking to get the most sensitive application of this and the desired result? The desired result should surely be that every child whose parents wish it and who qualifies should be found and given the opportunity to benefit from the care and support that is on offer and paid for.
Finally, it is interesting that devolution lives within this instrument, and I have no problem with that. But there was a point in a debate last week, which I unfortunately could not attend because I was speaking in the Chamber, where the Scottish Government were again asking the UK Government for assistance in collecting data. Again, I have no problem with it but it raises the question of what the capacity of the Scottish Government is or should be, or, indeed, why on earth they need a separate capacity if there is a perfectly adequate UK-wide system that they can access, subject to the appropriate safeguards.
The people of Scotland have voted more than once for devolution. They have never voted for independence, but you would hardly know that when you talk to Scottish Government Ministers, who have a great reluctance to admit publicly that devolution has any merit—never mind that it applies the will of the Scottish people, while they frustrate that will by promoting something the people do not want. In the meantime, this co-operation across the UK in data-sharing for legitimate purposes seems efficient and sensible and, in that context, I am happy to support the instrument from these Benches.
My Lords, I thank the Minister for his patient and courteous exposition. I rise essentially as a matter of principle, because these regulations rattle through so often when they are so important. Briefly, in the helpful explanatory pages I note that he has consulted Welsh and Scottish Ministers. The Explanatory Notes have this important Scottish example, which gives the regulations a very human form. My question to him is: how were the consultations carried out? Were they digital or personal? He might be able to give some indication of whether they were effective consultations. Might he also instance an example of an action or objective concerning Wales or England? The Scottish one was fine, but are there others that come to his mind?
My Lords, similarly, I rise to support these regulations. I congratulate my noble friend the Minister on the manner in which he introduced them. They are specific in scope, as all good statutory instruments should be; I support that specificity in them.
My question for my noble friend concerns that specificity of scope. It is underpinned by perhaps one of the most important principles for government both at Westminster and in all the devolved nations: how we optimise the potential, not inevitable, benefits that we could have from the data that exists and the sharing of that data. What more is happening across Whitehall to enable the right level of data sharing to ensure that we have robust, reliable and real-time data in all government departments and that citizens are far more engaged with the opportunities and how we all may play our part in them? Certainly, there are areas where the data is patchy; it is even non-existent in some areas. As we know, none of us fits into one simple, vertical departmental silo; we need support and services horizontally from a number of different departments, in a number of circumstances and at a number of times throughout our lives.
As I say, the underpinning nature of these regulations is probably one of the most critical elements if we are to take advantage of the opportunity that this data can bring us and deploy all the elements of the new human-led technologies for the benefit of citizens and the state alike.
To begin, I thought that was a very interesting question from the noble Lord. It probably stretches the scope of this discussion but perhaps we could return to it in a debate because it is something we are all trying to grapple with at the moment.
The Minister knows that an SI is uncontroversial when most of the questions are about the consultation. I think there is nothing of substance to object to here. As an aside to my noble friend Lord Jones, about parental lack of choice around childcare, let me say that the issue is that the lack of choice is down to the complexity of the available schemes, the lack of support, the lack of availability and the cost. I am surprised it has taken the Scottish Government so long to get to this measure, I must say, but it is welcome. It will enable more parents to have that choice, which we very much welcome because we know about the evidence of the benefits to pre-school children of participating in learning through play and childcare more generally.
As we are here, the Minister is here and there has been a consultation, I want to ask the Minister something. He spoke about percentages in his helpful and thorough introduction. Can he give us an idea of how many people took part in the consultation? What assurances can he provide in response to the concerns raised about the sharing and handling of sensitive data?
My Lords, I start by thanking all noble Lords who have spoken in this short debate. I am pleased that there is broad support for the regulations, so I will start with that and endeavour to answer as many questions as I can.
I will go straight in by speaking a little more about the consultation. A letter might need to be written to give further details about this, particularly the numbers of people involved, but I will have a bash. As I said, the responses received were broadly positive. No significant issues were raised during the consultation and, as a result, no changes were made to the proposed objective or the draft regulations. That is a start to understanding.
The UK Government carried out the consultation together with the Scottish Government, who engaged with specialist learning and childcare organisations, as well as Scottish councils. That takes us a little further. Further numbers than those I have given on responses that were negative rather than positive is probably a matter for a letter, so that I can get the technical details to noble Lords. It is understandable that those questions were asked by the noble Lord, Lord Bruce of Bennachie, and the noble Baroness, Lady Chapman. I have statistics in front of me that I have already read out, so I do not think they are particularly helpful.
Moving on, a question was asked about to what extent the devolved Administrations are engaged with this in general. As mentioned, the UK Government are taking this objective forward at the request of the Scottish Government. The territorial extent of the regulations is UK-wide and applies in England and Scotland only, as I mentioned. Under Section 44(4) of the DEA, the UK Government are required to consult the devolved Administrations—plural—on our proposed objectives. A formal consultation was carried out with the devolved Administrations at the time of the public consultation. Furthermore, ongoing liaison has taken place at official level to ensure that the views of Welsh and Northern Irish colleagues have been fully accounted for. I help that is helpful, particularly in answering the question from the noble Lord, Lord Jones.
A very fair question on safeguards was raised by the noble Lord, Lord Bruce of Bennachie. It focused on misuse, which is a fair point. I alluded to this in my opening speech, but I will try to go a little further. The data-sharing provisions in Part 5 of the DEA include a number of robust safeguards, the most important being compatibility and strict adherence to the Data Protection Act 2018 and UK GDPR. The DEA goes further and includes a number of additional safe- guards, including sanctions for unlawful disclosure. That includes custodial sentences. Furthermore, public service delivery powers are permissive, which means that public authorities listed in Schedule 4 can choose whether or not to do so. This safeguard prevents inappropriate data sharing.
Finally, as the new public service delivery objectives are created by affirmative secondary regulations, new objectives are defined for use before data sharing can commence, following public consultation and parliamentary scrutiny.
The noble Lord, Lord Bruce, also asked what provision there was to ensure co-ordination of the desired results. I think this is more about dissemination. The Scottish Government are keen to ensure that those families who wish to take up the early childcare offer can do so. They plan to co-ordinate the update and use of the objectives, which will be reviewed after one year. It is quite important to mention that.
I listened carefully to the short speech from my noble friend Lord Holmes. If I have got it right, his focus was really on the openness and transparency of data. He also spoke of the importance of the opposite, which I have already covered. We are committed to being open and transparent by making information about data shared under the DEA easily available for all to find out and understand. This helps citizens, the Government and the Information Commissioner’s Office to understand what data sharing is taking place.
Public authorities using the public service delivery, debt, fraud and civil registration powers must add data shares to a public register. The Cabinet Office is responsible for this and for maintaining the register, and the Public Service Delivery Review Board oversees strategic consistency. All accredited research projects and researchers are published on the UK Statistics Authority’s website, along with Research Accreditation Panel meeting minutes, to uphold the transparency requirements set out in the Research Code of Practice and Accreditation Criteria.
Finally, for statistics purposes, a list of data sources is available on the ONS website to maintain transparency of the data sources that the ONS holds to support its statutory functions, including data sources obtained under the statistics powers. That was quite a long answer but I hope it helps my noble friend.
I shall try to answer two or three more questions, if I may. I was asked what more is happening to enable the right level of data sharing across the UK. I think it may also have come from my noble friend—I see he is nodding. The Cabinet Office is working with the devolved Administrations to ensure that more data sharing takes place across the UK. It is rather outside the scope of this debate, but I will consider the replies I have given and may well add to a letter that may be coming the noble Lord’s way. I shall copy in all noble Lords who have contributed to this debate.
One final response that has just come to me may be helpful to the noble Lord, Lord Bruce. It is about the responses. I can confirm that we received 69 responses. That is the only response I have. As I said, I think we should look at the full consultation details and I will furnish the noble Lord with more information, should we have it.
I am grateful to the Minister. I was trying to see whether I could get the detail. There is an appendix list of who has submitted, and some of them have published their submissions. My council, Aberdeenshire Council, has provided a submission, but I could not find what it was, so if the Minister is able to point us to where submissions can be sourced—if they are published or publishable—it would be helpful.
I will be in touch with the noble Lord outside the Committee to do so.
I finish by saying that the regulations will benefit an estimated 14,000 of Scotland’s most disadvantaged children by giving them access to a high-quality service that would cost families £5,000 a year per child if they were to purchase it themselves. I hope that, having heard the benefits spelled out, noble Lords will join me in formally supporting these draft regulations. I commend them to the Committee.
Public Sector Bodies (Websites and Mobile Applications) Accessibility (Amendment) (EU Exit) Regulations 2022
Considered in Grand Committee
That the Grand Committee do consider the Public Sector Bodies (Websites and Mobile Applications) Accessibility (Amendment) (EU Exit) Regulations 2022.
Relevant document: 11th Report from the Secondary Legislation Scrutiny Committee
My Lords, the main purpose of these amending regulations, laid before the House on 18 July, is to update the Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 so that they can continue to operate given that the UK has left the European Union. This instrument is technical. It does not introduce new policy but moves the implementation detail of the legislation from being set by the European Commission to being set in the UK. These amendments will not reduce any of the UK’s standards and support for disabled people, nor add any additional burdens to the UK’s public sector. The changes will allow the UK to be more responsive to the needs of disabled people when they use public sector websites and online services.
“Digital accessibility” refers to principles and techniques to follow when you design, build, maintain and update websites and mobile applications to make them as easy as possible for people to use. This applies in particular to making websites and apps that disabled people can use. There should be no disadvantage when using assistive technology with computers, tablets and mobile phones, such as switch controls for a computer rather than a keyboard and mouse or screen-magnification software.
I shall give some examples. A blind student should be able to access their university’s website through a screen reader, find out their timetable and download course information and lecture notes. A business owner with arthritis who uses speech recognition rather than a keyboard should be able to log on and pay their taxes. We all have access needs at some time in our lives, and we expect to be able to continue to use public services ourselves, independently.
The accessibility regulations build on existing UK legislation and commitments, such as the Equality Act 2010 in England, Scotland and Wales, and the Disability Discrimination Act 1995 in Northern Ireland, which place duties on service providers to make reasonable adjustments for disabled people when providing services and exercising public functions.
The 2018 regulations that this instrument amends were transposed from EU directive 2016/2102, which requires public sector bodies to make their websites and mobile applications accessible unless it would impose a disproportionate burden on the public sector body to do so.
The regulations can also place obligations on the Minister for the Cabinet Office, including monitoring of the public sector to ensure that the regulations are being met, and sending a report to the European Union every three years, detailing what has been found during the monitoring.
The implementation of these monitoring and reporting obligations was harmonised so that implementation was similar across EU member states and so that there could be comparison between countries. This harmonisation is no longer required, and the specified monitoring process has been inefficient to implement. These amendments move the monitoring process from being defined in a European Commission implementing decision to being set by the UK Government. The model accessibility statement that websites and mobile apps need to publish is also moved to be set by the UK Government.
Although the UK is no longer party to the discussions within the EU about best practice in implementing these policies and how the European Commission will update its monitoring and reporting process, the UK will continue to iterate the monitoring based on our research, analysis and findings. The monitoring team in the Government Digital Service continues to share experience and knowledge with other countries around the world with similar policies and will update the monitoring process as new technology becomes available.
The first report was due to be sent to the EU in December 2021. Instead, the Minister for the Cabinet Office published a report on GOV.UK, and the amendments in question alter the obligation, allowing the same procedure to be followed in the future. This ensures that the monitoring and the effectiveness of the regulations are transparent to all.
The 2018 regulations use a European technical standard as the definition of the accessibility requirements placed on the public sector. This standard is controlled by the European Commission and is subject to its funding and timeframes. Practically, this standard mainly references an international standard called the web content accessibility guidelines, created and published by the World Wide Web Consortium.
These amendments would move the technical standard to this international standard, which is far better known, used by digital accessibility experts and open for all to contribute to. Updates to this standard may be quicker to implement in the UK than when we followed the previous European process, which included updating the European standard and creation and ratification of an EC implementing decision.
These regulations are made under Section 8 of the European Union (Withdrawal) Act 2018, which allows a Minister to make regulations to resolve any deficiencies in law that arise as a result of the UK’s departure from the European Union. The technical standard, monitoring and reporting methodology and the model accessibility statement were set through the European Commission implementing decisions. The UK no longer adopts new implementing Acts, so changes to these Acts no longer take effect in the UK. This instrument removes the links to the Commission’s implementing Acts and replaces them with UK-set implementations, as mentioned previously. Three European Commission implementing decisions will be revoked once the amendments are made.
With these explanations, I hope that noble Lords will join me in supporting these draft regulations. I commend them to the Committee.
My Lords, I have some questions and rather a strong comment. It is clearly convenient that we do not diverge too far from the existing European regulations. I should like to ask whether there is much divergence. There is a good deal of reference here to the World Wide Web Consortium, which attempts to set the standards. It is an interesting body, not entirely intergovernmental, and operates, I assume, by consensus. Are the Government entirely happy with the way in which the World Wide Web Consortium operates, or are there any problems? I know that the Government are concerned about rising Chinese influence within the World Wide Web Consortium.
Do the standards that the United States, for example, sets in this particularly technical area differ considerably from those set within the European Union? One of the challenges that we face in reshaping our regulatory patterns as we leave the European Union is how far we simply follow the United States instead or whether we continue to keep as close as possible to the European Union. I note in this area that a high proportion of British citizens who retire overseas retire within the European Union. If we are looking at something relevant to the disabled and the elderly, therefore, it would make a great deal of difference to ensure that we do not diverge too far from the European Union.
My final comment and objection draws on the Secondary Legislation Scrutiny Committee comment that the proposals move down from legislative processes to administrative purposes. This, after all, is something that the Government are doing across a whole range of legislation: lessening the ability of Parliament to scrutinise, lessening accountability to Parliament and, indeed, as a number of the Minister’s right-wing colleagues mentioned in the Northern Ireland protocol debate earlier this week, asserting executive sovereignty against parliamentary sovereignty.
I suspect the Minister is among those unhappy with this trend. I should like him to take back to his colleagues that, given the extent of this gradual slide towards lessening parliamentary accountability and giving greater ministerial discretion across the board— something we are also dealing with in the Procurement Bill and a number of other Bills before the House—there will come a point when the House stands up and objects to SIs. I will take back to my party group whether, if it comes before the House, we should draw the attention of the House to this element of reducing parliamentary scrutiny. There is behind these technical and entirely suitable regulations a larger constitutional issue of how we maintain parliamentary democracy, rather than executive government, in this country.
My Lords, I welcome these regulations and congratulate my noble friend the Minister on the manner in which he introduced them to the Grand Committee. In essence, the regulations take us from the European standards, EAS, to the Web3 standards, IWAS. For the convenience of the Grand Committee, when my noble friend responds, perhaps he could set out some of the material differences, as he sees them, between EAS and IWAS to bring some clarity to this matter.
He rightly commented on the monitoring done by the GDS and the report published at the end of 2021. In that report, 612 public websites were sampled: 593 with a light touch, 19 more in depth. Does the Minister believe that this is the right level of scrutiny and assessment of public sector websites, and that going into only 19 in more depth is the right means of getting a clear picture of what is going on out there? Some 90% of the websites have an accessibility statement but only 7% of those sampled had what should have been in that accessibility statement. There is a clear departure there. Can he say whether the EHRC is playing a full role in this and whether he would envisage greater involvement by the EHRC in this process?
Some 19 years ago, when I was at the Disability Rights Commission, I was involved in the first formal investigation into UK websites. It was an important piece of work then but multiple times more important in 2022. In this area, we considered not just websites but mobile applications because what we get from technology is the potential inclusion, empowerment and enablement of disabled people given what the technology is capable of doing. Equally, however, technology can exclude and discriminate if it is not produced and constructed while rooted in being inclusive by design.
It is understandable why it has taken the country years to enable buildings such as Parliament—that is, a physical building—to become accessible for disabled people. It is desperately unfortunate when we see inaccessible steps, if you will, being built in cyberspace when, in many ways, we are starting from a greenfield site. If everything across the public and private sectors was predicated on inclusive design, there would be no issues here. Does my noble friend the Minister believe that more needs to be done across this area, with a greater understanding across Whitehall, to grasp what it really means to begin and run all this through that conception of “inclusive by design”? Does he agree that inclusion leads to innovation, empowerment, engagement and enablement, by which I mean human-led technology enabling all the talent that we have in this country? In many ways, there could preciously be a more important time for us to focus on this.
My Lords, I came in just to listen to this important debate; it is a real privilege to follow the noble Lord as I had not intended to say anything. I should declare an interest: I currently co-chair the All-Party Parliamentary Group on the Metaverse and Web 3.0. I am in an almost infantile state in terms of learning to understand the huge implications for ordinary lives of the new and emerging technology.
I want to make one point about inclusion and accessibility. We must remember that we spent a great deal of hours and months debating how much access all people have to technology. We assume that all this brilliant access is going to erupt from the beautiful, advanced phones that we either get from the House of Lords or can afford to buy, but that is not the case for millions of people in this country who have a huge amount of difficulty accessing information. More and more organisations—not just government organisations and local authorities, but mental health organisations and housing associations—are going digital; indeed, everyone is. There is not enough communication with the public. There is not enough communication with—or, frankly, respect for—the users.
I speak as someone whose son has learning disabilities and lives with autism. I can tell the Committee that he has mastered the iPad but there is no way for him to navigate. As yet, nothing has been made easier for him to ensure that he can access information more easily. We must not live in a panacea of our own with governing regulations, talking about legislation and implementing it as though everything is done once it leaves this building. I urge the Government and the Minister to consider the implications for those who have no access anywhere to the internet or smart technologies. What will happen to them? Are we going to ensure that people who do not have access to their information can have the privilege of understanding all the changes we are about to agree to?
Again, we could take this debate off in all kinds of directions. I am struck by the points just made about what we used to call digital exclusion—I do not know whether that is still what we call it. I was struck recently by news reports about people who, because of the stresses of the cost of living, have decided no longer to have access to broadband, which will clearly present a huge problem in their access to information and public services. It might be helpful if the Minister could say something about that.
My question is similar to that asked by the noble Lord, Lord Holmes. Obviously, we need this SI because of our exit from the European Union. I do not know enough about this to be fully up to speed on the differences between the EU standard and the new international web accessibility standard. It would be helpful if the Minister could let us know the key differences, if there are any, and whether there has been any discussion with disabled people’s organisations. What has been done that would lead the Government to favour that route?
I see that the Minister will be obliged to publish a report. Where will that report go? It would be helpful if there were a commitment from the Government to publish it and to alert certain specific organisations to its existence, so that they can engage with it to improve and develop the Government’s approach to this in the coming years.
I have a question about the Brexit freedoms Bill. This instrument would seem to be an ideal candidate for that legislation, but it has all gone a little quiet. It would be useful to understand whether this kind of measure would be in that Bill and what mechanics we should expect in that legislation. It seems an enormous undertaking when actually we are able to deal with these issues quite sensibly as they arise with the assistance of the dashboard, perhaps. It would be useful to know what the Government intend to do.
It has also gone a bit quiet on the Government’s disability strategy. Obviously, they have got themselves in a bit of difficulty in the way that it was initially set about. It would be helpful to know whether these issues and concerns are likely to form part of a revised strategy when it emerges.
I echo the questions others have raised on monitoring. It is all very well to have standards but if there is no assurance that they are being met and no remedies to put things right, it all becomes a bit of a Whitehall exercise. I am sure that is not what Ministers intend.
My Lords, I thank the Committee once again for its interest in these regulations. I thank all those who have spoken for doing so in broad support for them. The Government are committed to improving the everyday lives of disabled people, and access to public information and services is vital. I shall be touching on some themes that were raised on this issue in a moment. This instrument makes sure that the public sector remains accessible to all as it moves online.
I have no answer to give on the point raised the noble Baroness, Lady Chapman, about the Brexit freedoms Bill. I do not have any information on that, but she will probably respect that we have had a few noises off and there may have been a few distractions. If I have some information for the noble Baroness before the end of my remarks, I will certainly pass it on.
A number of questions were raised. I shall start by touching on the point about the monitoring process. The European Commission-set monitoring process was designed more for harmonisation across countries rather than effectiveness. The monitoring process will be iterated to have more impact on the least accessible websites, and on sites and services that disabled people may use more often. I think these were points raised by the noble Baroness, Lady Chapman, and my noble friend Lord Holmes.
The noble Lord, Lord Wallace, spoke about the differences between the EU and the UK. His core question was: are we deviating? The World Wide Web Consortium is an open organisation, as he knows. All can contribute and there is a process for technical experts to ratify. It is interesting that the similar US regulations use an older version of the international standard—2.0 versus 2.1. The EU also bases its standard on the international standard, so the variation is minimal and practically follows the WCAG standard.
The noble Baroness, Lady Chapman, and my noble friend Lord Holmes asked particularly about the material differences between the EAS and the IWAS—the European and international versions of the standard. I can reassure them that they are minor and are really variations on mobile accessibility. I hope that answer is of some help.
Can I ask the Minister a question? We are concerned about how much influence we have in these international organisations. Paragraph 7.15 of the Explanatory Memorandum says:
“The UK Government can influence updates to the standard as a member of the World Wide Web Commission.”
It would be nicer if it said “does influence”. Are we happy with the influence we have in this rather odd mixed private, university and intergovernmental organisation?
I cannot answer that. I imagine we are but, if we are not or if there is any issue arising from that, I will write to the noble Lord. I assume that we are happy with that, but he raises a fair point.
My noble friend Lord Holmes asked about Parliament, its role and why it is not keeping responsibility for updating the version of the technical standard. I reassure him that the international standard is updated relatively frequently, with a new version due next year. The standard is open for all to contribute to and goes through extensive review by industry experts. We think it may not be the best use of parliamentary time to require further legislation every time it is updated.
My noble friend also requested a response to his concerns about the movement of power away from Parliament. We are happy to write with a response. He also asked about enforcement of the regulations. The Equality and Human Rights Commission enforces digital accessibility in England, Scotland and Wales, and the Equality Commission for Northern Ireland enforces it in Northern Ireland. Both have taken steps to make sure that public sector bodies meet these regulations.
This allows me to talk more generally about inclusion or the lack of it, perhaps. This was raised particularly by the noble Baronesses, Lady Chapman and Lady Uddin, and my noble friend Lord Holmes. I can give some reassurance: this is one of the great priorities of the Government. The UK Digital Strategy, published by the Department for Digital, Culture, Media and Sport in June, includes plans to strengthen the digital education pipeline as well as to provide essential digital skills training. The Department for Education is delivering free learning and qualifications for adults with low digital skills.
A question was asked about the national disability strategy, which allows me to expand a little on what I just said. In January 2022, the High Court declared that the strategy was unlawful, because the UK disability survey, which informed it, was held to be a voluntary consultation that failed to comply with the legal requirements of public consultations. The Government strongly disagree with the finding and the Work and Pensions Secretary of State has sought permission to appeal the High Court’s declaration. We are awaiting the Court of Appeal’s decision on whether that permission is granted. That provides an update on what is clearly a challenging situation—that is probably the best way to put it.
I believe I have answered the majority of questions. I have an answer on the Brexit freedoms Bill which I have already given, so I will write to the noble Baroness, Lady Chapman, because there is no more information on that. I understand her concern. With that, I beg to move.
Armed Forces (Covenant) Regulations 2022
Considered in Grand Committee
That the Grand Committee do consider the Armed Forces (Covenant) Regulations 2022.
Relevant document: 11th Report from the Secondary Legislation Scrutiny Committee
My Lords, the Government have delivered on their manifesto commitment to further incorporate the Armed Forces covenant into law by introducing a new duty in the Armed Forces Act 2021. The Armed Forces (Covenant) Regulations 2022 implement key provisions of the new duty by doing two things: bringing supporting statutory guidance into force; and defining “relevant family members” of service members and former service members for the purposes of that duty.
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 the Armed Forces community. However, there remained concerns that some members of the Armed Forces and their families continued to experience disadvantage when accessing public services, particularly as they moved around the country. This was largely due to a disparity in the level of awareness of the covenant among local service providers. To address this issue, the Armed Forces Act 2021 introduced a legal duty on specified public bodies to have due regard to the covenant principles when exercising relevant public functions in the fields of education, healthcare and housing. These are the most commonly cited areas of concern for the Armed Forces community.
Bodies in scope of this new duty will be required to consider the needs of the Armed Forces community when developing policy and making decisions in these key areas. In this way, the duty will raise awareness of the covenant and its principles, which in turn will help to ensure that members of the Armed Forces community are treated fairly.
Regulation 2 brings into force the statutory guidance supporting the new duty. When exercising relevant public functions, the bodies in scope of the duty must have regard to this guidance, as set out in the Act. The statutory guidance will help these bodies understand what is required of them under the new duty. It does this 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 mitigating actions.
The covenant principles relate to disadvantage faced by servicepeople, including the relevant family members of service members and former service members. Regulation 3 therefore defines who is a relevant family member in respect of the new duty. Quite deliberately, a broad approach was taken in this definition, as a family group may look very different depending on circumstances, and those outside what might traditionally be defined as family may well be impacted by service life. Where family members are affected, it is usually due to their cohabitation with, or dependency on, a service member. This has, therefore, been used as the basis for the definition, which extends beyond immediate family members.
By assisting public bodies to identify groups impacted by service life, including family members, to whom they must have due regard, the guidance will be a key tool in raising awareness of issues faced by the Armed Forces community, and will help promote better outcomes for them when accessing key public services. I beg to move.
My Lords, this is a very detailed piece of work, all 73 pages of it, and I commend the efforts and industry of all those involved in preparing it for publication. But this covenant concept had its origins as far back as 2000, and even before; it was very much championed in the mid-noughties by the noble Lord, Lord Dannatt, when he was Chief of the General Staff.
In 2007, the Government recognised that all three services should be considered. They produced a Command Paper, CM 7424, dated 1 July 2008, The Nation’s Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans. It opened with an enthusiastic message of intentions and promises, signed by the then Prime Minister Gordon Brown. However, in spite of the Command Paper’s promising title, his Government stopped short of legislation and sought to encourage local authorities, service charities and private businesses to participate voluntarily. It took the incoming coalition Government, while encouraging the voluntary approach, to introduce a statutory mention when updating the Armed Forces Act 2006.
As someone who has tabled or supported amendments about the covenant in the relevant 2011 Act, and in subsequent quinquennial updates of the 2006 Act, I have become somewhat involved with pushing the covenant’s progress and development through statute. But one needs a surgeon’s magnifying spectacles to discern the glacial progress, over a quarter of a century, to get even as far as today’s incomplete commitment. In 2011, all that the Government proposed was a minimalist inclusion in statute. It was to add a single-line clause requiring just an annual report to Parliament under a heading “Miscellaneous” in an identically named “Miscellaneous Part”, near the back end of that 350-page Act and immediately following Section 359. That section pardoned World War I servicemen executed then for disciplinary offences, recognising these deceased veterans as victims.
As a result of my objections, and following negotiations with Ministers in the Summer Recess, a new Part 16A headed “Armed Forces covenant report” was created. This gave the covenant the greater visibility it deserves in legislation. However, the Government then resisted my suggestion at the time that the central heading should be “Armed Forces covenant” and not “Armed Forces covenant report”. I was quietly amused to note that the Government introduced that semantic change in their amendments last year.
I was also pleased to see reference in paragraph 14 of the Explanatory Memorandum to my specific amendment which ping-ponged last December, leading to the Government’s undertaking to complete a report on the operation of the covenant duty next year. In particular, it will consider whether central government and any of its functions could usefully be added. The noble Baroness will need no reminding of the importance that I attach to this aspect of the review.
I was also struck that in paragraphs 1.31 and 1.41 of the statutory guidance, in section 1J and headed “the Armed Forces community”, “veteran”, when applied to former members of the Armed Forces, meant that they were in scope of the duty only if they are ordinarily resident in the UK. I accept, as a consequence of those authorities listed to exercise this duty all being those which have no overseas function, that that is true. But at all costs it must not be turned on its head and misconstrued as suggesting that classification as a veteran depends on being ordinarily resident in the UK.
Looking to the future, if central government were to have this duty, as I hope, a veteran and former member of His Majesty’s Armed Forces who has chosen to live abroad must lie within central government scope. Attempts to define veterans by location are wrong and would be better avoided. Even the definition used in the guidance is unfortunate if it causes confusion or upset to veterans, wherever they live. There is a duty of care to those who have served in the Armed Forces and retired—in agreed language, veterans. They must never be geographically shut out of the approved scope of that duty, to which they become entitled by statute; I hope that the Minister agrees. However, I support the SI.
My Lords, it is a pleasure to rise after the noble and gallant Lord, who brings a wealth of expertise to this afternoon’s debate on this statutory instrument. Like him, I am pleased to see the guidance and to have this opportunity to discuss the instrument. Also like him, I note that there are still some gaps in the legislation.
As I read through this statutory instrument, my mind turned back in particular to the 2021 Act and the fact that, at various points during its passage, many of the noble Lords and noble and gallant Lords who rose to speak asked about the role of central government. Although we acknowledge the importance of imposing duties on local authorities, I believe there is still a question about what duty we put on central government. At the moment, the legislation talks only about consultations with the devolved Administrations and certain departments: the Department for Education, the Department of Health and Social Care and the Department for Levelling Up, Housing and Communities. Obviously, that speaks to the three core aspects of the duties—education, healthcare and housing—but what thought have the Government paid to whether those duties should be widened to central government more generally? I ask this precisely because, as the noble and gallant Lord, Lord Craig of Radley, pointed out, to the extent that the duties and benefits of the Armed Forces covenant relate to veterans, they should not be determined by their geographical location. It is wholly wrong to give somebody rights only if they are resident in the United Kingdom. If they are veterans who have served with His Majesty’s Armed Forces, they should be within scope.
Beyond that, I have a couple of specific questions associated with this statutory instrument. It is absolutely right that the Government are taking a broad view of what it means to be part of a family, going beyond the traditional view of a spouse and children of a traditional marriage. There are now many other types of family that would be affected, so that view is clearly right, but can the Minister explain a little more about how the Government would interpret, and how service providers should be expected to interpret, Regulation 3(3), which states:
“For the purposes of this regulation, references to A’s spouse or civil partner includes … a person whose relationship with A is akin to a relationship between spouses or civil partners”?
At one level, that might seem self-evident. However, if we are looking at local authorities being requested to find housing, how established does the relationship have to be? How will it be evaluated and what guidance will be given to local authorities when looking at housing provision, for example?
Similarly, with a wide understanding of children, stepchildren and other relatives, we could see quite wide sets of family relations. To what extent will that be considered in looking at housing, for example? If stepchildren arrive every other weekend, should they be taken into consideration when looking at local housing provision? Similarly, how extensive a group of family members might be considered for education and school waiting lists? What are the implications of that?
Regulation 3(3)(b) talks about
“a former spouse or civil partner or a person whose relationship with A was formerly akin to a relationship between spouses or civil partners.”
Again, how will that be evaluated? It might seem quite clear cut if somebody was part of an established relationship for 20 years, but how will a former partner who has been divorced, remarried and has not suffered as being part of the Armed Forces family in quite the same way be evaluated when people say, “We think we should be covered under the Armed Forces covenant”?
None of this is intended to sound churlish in any way; it is to probe the Government about how service providers are meant to interpret this. It is right that we should be generous and expansive in the way that we interpret the family, but it is also important that there are no ambiguities in the proposals put forward.
Finally, I could not see anything in the points on healthcare about dentistry. Maybe I missed it, but one of the big issues at the moment is the difficulty of people finding NHS dentists. If that is true for stable members of the population who do not move very much, how much truer will it be of the Armed Forces and their families? Is dentistry included, and if not, could it be?
My Lords, I thank the Minister for her usual informative and fluent explanation, and for the detail of the department’s Explanatory Memorandum. It is always a privilege to speak in any debate graced by the noble and gallant Lord, Lord Craig. One learned from the historical viewpoint of the emergence of the covenant. I will be brief.
Paragraph 7.4 of the Explanatory Memorandum says that the duty aims
“to address the disparity of awareness of the Covenant”.
Paragraph 7.5 talks about “former service members” and a “broad approach”, and says that
“those outside the ‘traditional’ family may well be impacted by Service life.”
Those are important statements and it is good that they are highlighted in the papers before us.
The tradition of Armed Forces Day helps to address the challenge around the covenant. I do not think we can praise Armed Forces Day too highly. It is good that it has re-emerged after Covid.
The covenant helps evoke patriotism. Professor Helen Thompson, a left-leaning professor at Cambridge, recently said in the New Statesman that Britishness is still best defined as monarchy and the military. That is not for debate now, but if one is considering patriotism, the covenant and Armed Forces Day, that is a relevant foundational statement to make.
Further, paragraph 10.2 of the Explanatory Memorandum refers to local government associations. One local government unit, Flintshire County Council in north-east Wales, has a very fine record of helping those who were in the Armed Forces. Armed Forces Day in Flintshire is always heavily subscribed by the local government. The current Armed Forces champion is county councillor David Evans OBE. He is worthy of a mention, as was his predecessor, Andrew Dunbobbin, who is now the police and crime commissioner for north Wales. The county of Flintshire has a very fine record.
I also note that in all these matters there is always the major input of the reserves. The reserves are undervalued. I do not think they get the praise they should have, and I am certain that they are important across the board in our communities in upholding the standards that we usually say are under attack. Certainly the reserves in Wales have a fine reputation.
I think I should declare my presidency of the training ship “Tuscan” and my recent, five-year presidency of the Army Cadet Force Association Wales. When I was listening to the noble and gallant Lord, Lord Craig, I thought that the covenant would have been a godsend to a 1950s greenhorn conscript national serviceman, but that is by the bye.
My last point is to ask the Minister whether she will give some detail on the reference to “focus groups” at paragraph 10.6 of the Explanatory Memorandum. Who organises them? How many were there in each of the focus groups and was there any feedback that may be of help to the Committee?
My Lords, I shall start with my noble friend Lord Jones’s remarks. He mentioned the reserves and the covenant affecting military families. My son-in-law is an active member of 4 Mercian reserve. He was recently in eastern Europe and will be away again in a couple of weeks’ time. Given that my noble friend Lord Jones mentioned the reserves, I felt I should mention that for obvious reasons.
I thank my noble friend for his remarks. The point he made about Armed Forces Day is well made and speaks for itself. I agree with everything that the noble Baroness, Lady Smith, and the noble and gallant Lord, Lord Craig, said, the contributions that they have made to where we are now with the covenant, and the challenging questions they have put to the Government to try to improve it.
We too welcome the regulations relating to the Armed Forces Covenant as far as they go, but before asking some questions I shall remind the Committee, as the noble Baroness, Lady Smith, and the noble and gallant Lord, Lord Craig, did, that there was much debate about the covenant as the Armed Forces Act 2021 passed through your Lordships’ House. Many of us called for the expansion of the covenant to all areas of public policy and for it to apply to the national Government and the devolved Administrations. Alongside that we said that having “due regard” to the covenant should include other areas of public policy as well as education, healthcare and housing, which were outlined.
The Government resisted those calls, and we therefore felt the covenant was a missed opportunity by being too narrow, particularly the failure to place a duty on the national Government in the way that they placed a duty on others. They also failed to define what “have due regard” meant, how members of the Armed Forces community can seek redress if they feel let down and how the covenant is to be enforced. The Minister knows that we welcome the regulations and the new duties they place on specified bodies and persons to have due regard to the principles of the covenant when exercising certain statutory functions in the areas of healthcare, housing and education, but it could have gone further. Having said that, these are important regulations and will make a difference.
I have some specific questions. As some of the responders to the guidance consultation asked, why does the guidance not include prescriptive actions that bodies in scope should follow to demonstrate that they are meeting the duty of having due regard? The guidance notes the value of good recording as a means of demonstrating having due regard to the covenant. However, as the Government themselves note in the guidance that they have published, it is voluntary. Why was there never a statutory requirement to record actions that show and demonstrate that a public body is having due regard to the covenant?
How, therefore, more generally—the noble Baroness, Lady Smith, in particular, alluded to this—is the covenant to be enforced? What redress is there for an individual, family or organisation if they believe that the covenant is not being properly followed or implemented? As the noble and gallant Lord, Lord Craig, asked—and I will come also to something else mentioned by the noble and gallant Lord—what action will the Government take to publicise their new regulations to ensure that awareness is as wide as it should be?
I completely endorse the position taken by the noble and gallant Lord, along with the noble Baroness, Lady Smith, that paragraph 14.1 in the regulations is crucial. In response to the amendments made and the ping-pong that took place on the Armed Forces Act, the Government have said—to be fair to the Minister, she will have argued this within the MoD—that they will come forward in 2023 with a report on how the covenant has operated. I say to the Minister that the noble Baroness, Lady Smith, the noble and gallant Lord, Lord Craig, and I will be looking quite carefully at how paragraph 14.1 is implemented and how the Government meet their commitments. As the noble and gallant Lord, Lord Craig, said, it is a particularly important point.
I come to something that the Minister has explained to me before, but it is important that this is put on the record. Tucked away in regulations will often be things understood by MoD officials and so on. The regulations that we have before us cover England, Wales, Scotland, Northern Ireland, the Isle of Man and the British Overseas Territories, except Gibraltar. Will the Minister explain why Gibraltar is excluded from these covenant regulations? Clearly, Gibraltar is extremely important to us as a base for our Armed Forces. It seems a little strange. I am sure there will be a good reason for it —some treaty or other that makes its inclusion unnecessary —but it is important to have it in the record to help those who read our deliberations to understand why that “except Gibraltar” is there.
These questions highlight once again the importance of paragraph 14.1, which basically says that the Government will assess how well the covenant operates with respect to due regard and whether there are other areas of public policy that could usefully be added to the scope of the Act as it is now. We all look to see what happens under paragraph 14.1. These regulations are an important step forward. We welcome them; we just wish they could have gone a bit further. The implementation will be everything.
My Lords, I thank noble Lords for what admittedly has been a fairly short debate but not in any way lacking in quality and penetrating questions, which is entirely what I would expect from the contributors. I shall deal first with the comments of the noble and gallant Lord, Lord Craig. I thank him for his very useful historical context of the evolution of the covenant. It is worth remembering the journey that the covenant has travelled. I accept that progress may at times have been somewhat plodding, but I feel that, in recent years, we have got to a good place. These regulations are the manifestation of the important progress that has been made.
I pay tribute to the noble and gallant Lord, Lord Craig, for his perseverance in drawing attention to the role of central government and whether it should be brought within the ambit of the covenant statutory duty. I remember that we had informed and interesting exchanges at the time the Armed Forces Bill went through this House. We certainly felt that this was not an issue that should be summarily dismissed as being without merit. Our concern was that we were already biting off quite a lot in terms of what we were introducing in that Bill and in what was to be further covered by delegated legislation, and we did not want to bite off more than we could chew. The provisions now to allow for a review are meant to reassure, and I shall say a little more about them.
The review will consider the roles of the UK Government and the 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, as well as the benefits and costs of bringing them into scope. As the noble and gallant Lord is aware, the reason why I resisted his persuasive blandishments to include the scope of central government in the Armed Forces Act was because we did not think that it was quite within the scope of the original Bill. The Government are responsible for setting the overall strategic direction and national policy but they do not directly deliver the relevant healthcare, education and housing services to citizens.
Let me give your Lordships a little more information on the review itself. Members of Parliament will have the opportunity to assess and comment on the review in the debate on the 2022 covenant report. The Government have been working with stakeholders to establish an open and transparent evaluation process by which to investigate the evidence about whether new policy areas should be added to the scope of the duty; that point was specifically raised by the noble Lord, Lord Coaker, who was naturally interested in what criteria might be deployed to assess this. Potential additional functions will be assessed against clear and robust criteria that have been established and agreed with covenant stakeholders in order to provide advice to the Secretary of State, with whom the final decision rests.
To clarify, a blanket inclusion of all UK Government and devolved Administration bodies would not be appropriate to include within the list of specified bodies to which the duty applies because the “due regard” duty applies to specified functions that are precisely defined in law. Due to the broad-ranging work of the UK Government and the devolved Administrations, it would be impractical to seek to define precisely such functions for these bodies.
One of the questions asked by, I think, the noble and gallant Lord, Lord Craig, during our debates on the then Armed Forces Bill concerned why the duty was not extended to central government because it has a duty of care to the Armed Forces. However, the purpose of the covenant duty is to raise awareness among providers of public services of how service life can disadvantage the Armed Forces community in accessing key public services. That is why we have focused on these three areas of health, education and housing. As the noble and gallant Lord is aware, central government is directly responsible for the Armed Forces and the MoD has always looked after the welfare of service personnel. As he knows, there are various ways in which the Government can be held to account, from the requirement for Ministers to appear at the Dispatch Box and explain what has been happening to the facility for Members to put down Questions and seek debates. There is a variety of methods available for parliamentarians to call the MoD to account for what it has been doing.
Accompanied by the noble Baroness, Lady Smith, and the noble Lord, Lord Coaker, the noble and gallant Lord raised the issue of central government. I tried to cover the points that were made in my comments addressed to him. One other point that he mentioned concerned why the guidance refers to those who are ordinarily resident in the UK. The “ordinarily resident in the UK” restriction applies only to veterans. This restriction on veterans is in the Act, which is why it is in the guidance. The guidance clearly says that serving personnel are in scope
“wherever they are located—in the UK or abroad.”
Veterans who live overseas and are having issues accessing public services due to their service career will find that those issues are best raised with the relevant authority or embassy in the area in which they live because such services fall outside the responsibility of the UK Government.
Mentioning embassies in that sense seems to bring in the possibility of central government interests and the FCDO.
It may do so, but only tangentially, because the FCDO has a UK government responsibility to UK citizens abroad, which is a standard duty. It is why we have a diplomatic presence, and it is the role of embassies and consulates to assist these citizens. I suggest that that is different from placing a broad duty of care on central government in relation to the Armed Forces Act.
The noble Baroness, Lady Smith, specifically raised Regulations 3(3)(a) and (b) and the use of the phrases
“is akin to a relationship”
“formerly akin to a relationship”.
I said in my opening remarks that the attempt to define family members had deliberately been made broad because, as a consequence of service within the Armed Forces, we often find circumstances which confront personnel that will not affect them in civilian situations. We are trying to be as flexible as possible.
The noble Baroness legitimately asks about there being a disagreement with armed service personnel; what if the veteran says, “I think that I was in what was akin to a relationship, and that is why I should get a house” or “be entitled to particular medical support”? It will be for the applicant who is seeking help or a particular service, in conjunction with the deemed provider of that service, to discuss whether they can resolve the matter. The regulations are not meant to be phrased unhelpfully—quite the opposite. They are meant to be as broad as they can be to ensure that this widespread blanket of support reaches as many people as possible.
This brings me to a point pertinently raised by the noble Lord, Lord Coaker, about enforcement—the teeth that can apply to this legal duty and how providers operate it. Enforcement is a complex area in general and I will deal with it in detail. Before I do, let me address the contribution from the noble Lord, Lord Jones, and a final point raised by the noble Baroness, Lady Smith, on dentistry. That very important issue will come under the health “due regard”, but it will not cover private dentistry, only the public service provider of dentistry services.
I thank the noble Lord, Lord Jones, for a very positive contribution in which he praised Armed Forces Day. I agree it is an important opportunity to acknowledge our service personnel and veterans. Within my own area of Scotland, it is something we celebrate with great respect, pride and pleasure. I was interested to hear what happens in the noble Lord’s area of Wales, as clearly Armed Forces Day has a pan-United Kingdom appeal, which I am pleased to have confirmed.
The noble Lord particularly raised reservists, and I was interested in his observation that they are perhaps underacknowledged. If he looks at the provisions regarding Future Soldier—the new model for how we see our military, infantry and army going forward—he will see some very exciting opportunities in there.
Sitting suspended for a Division in the House.
I think I was addressing the contribution from the noble Lord, Lord Jones, when we were summoned by Division Bells. I was talking about the role of reservists. Following the important review of reservists carried out by my noble friend Lord Lancaster, some really helpful and interesting virtues were identified. One quite simply is this: we have among our reservists skills that we might not regularly have in the regular Army. One of the desires is to ensure that we can offer reservists a more flexible career opportunity: that is, if we have need of a particular skill and a reservist possesses it, we can draw them in for a fixed period that they can work with and that their employer can cope with. That is why Future Soldier creates a template for an exciting future for our Armed Forces. Reservists will play a critical role in that.
The noble Lord, Lord Jones, also asked about engagement and consultation, specifically the matter of focus groups. The engagement that took place in drafting the guidance was comprehensive. We worked with our stakeholders to develop the statutory guidance, but we engage with a wide range of groups, including the devolved Administrations, covenant partners across government, the Armed Forces community, local authorities, relevant ombudsmen, and the service charity and welfare sectors. That gave us a very broad basis on which to frame our guidance.
That is a very broad answer. I did ask a specific question, but I know that time is of the essence.
I looked at the Explanatory Memorandum. My understanding is that focus groups are designed specifically to encompass those groups that have an interest and have knowledge. I hope it is clear from the list that I just enunciated to the Committee that there has been very broad consultation, importantly, with the people who know about this, understand it, and have a stake in making sure that it works.
The noble Lord, Lord Coaker, raised a number of points, some of which I have already addressed, but particularly the important issue of the statutory duty of “due regard”. As a former lawyer, I well understand why he homed in on what exactly that means. The purpose of the statutory guidance is to help organisations understand and discharge their obligations. On enforcement, the duty we have created does not mandate particular outcomes. It is very important to be explicit about that. That is because it is not within the ability of the MoD to control what the deliverers do, whether they are devolved Administrations, local authorities or health boards. That is not what we want to do. It would therefore be inappropriate for the guidance to include a level of prescriptiveness that goes further than what is already set out in law.
We expect that, by raising awareness, we will reduce disadvantage. We do not seek to penalise or police public bodies because we are not in position to do so, but we do not want to do that anyway; they are autonomous and freestanding, and have their own responsibilities to discharge. If there was a disagreement or dissatisfaction, we imagine that the starting point would be that complaints would be pursued in the normal way, whatever that was for a health board, a hospital, an education facility or a housing complaint. I think that the vast majority of complaints would be resolved in that manner. Certainly in the first instance, any grievance should be pursued through the internal complaints process of the relevant local authority or public body. If the matter is still unresolved, I suggest that the relevant ombudsman would be able to consider the matter if the complainant did not think that the authority had followed its own policy correctly. In our work supporting the implementation of the new duty, we will certainly promote these mechanisms among our Armed Forces community.
As a last resort, and this would be a very heavy hammer to deploy, the opportunity to challenge an alleged failure to comply with the duty would be by way of judicial review. That would obviously be an unattractive prospect to many, but it could well be a legal option available to a class group of people if they were dissatisfied. To take the example of dentistry from the noble Baroness, Lady Smith, it might very well be that the provision of dentists is not a problem in one part of the UK but it might be a huge challenge in another. I imagine that if veterans or service personnel in that area felt aggrieved then they could very easily put pressure on, and they might very well have resource to bring a class action. Remedies are there.
It is important to remember that the duty does not require certain outcomes to be achieved, just that these public bodies need to consider the covenant. That will lead to better policy and decision-making in relation to the Armed Forces. I hope that reassures the noble Lord that thought has been given to this and that we anticipate the system being workable and, for providers, deliverable.
Finally, the noble Lord asked me about Gibraltar. I recall—no doubt he will correct me if I am wrong—writing to him about this. My recollection is that Gibraltar is outwith the scope of the Act and not within its jurisdiction. However, it can apply the Act using its own legislation: technically, if it wishes to invoke in respect of its own forces provisions that we have introduced in the Armed Forces Act, it can use its own legislative powers to achieve that. So it is a technical issue of being outwith the jurisdiction of and not encompassed by the Act.
I have tried to deal with the points that were raised. I hope that I have covered them. If I have omitted to deal with anything, I will gladly undertake to write to your Lordships, of course. In the meantime, I thank noble Lords for their contributions.
Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022
Considered in Grand Committee
That the Grand Committee do consider the Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022.
Relevant document: 11th Report from the Secondary Legislation Scrutiny Committee
I feel almost Gilbertian in this Gilbert and Sullivan-esque interchanging of roles.
My Lords, this statutory instrument consists of three changes to the rules that apply to the service courts: to provide an overriding objective for court martial, the Service Civilian Court and the Summary Appeal Court; to give the Director of Service Prosecutions responsibility for warning prosecution witnesses of trial dates; and to increase the representation of women on court martial boards.
The first of the measures in this statutory instrument implements a recommendation of His Honour Shaun Lyons’ review of the service justice system, which was published in 2020. The review recommended the introduction of an overriding objective for the court martial, based on Part 1 of the Criminal Procedure Rules for England. A similar rule has been used in the civil and criminal courts in England and Wales for some time. The overriding objective in the criminal courts is that cases are dealt with “justly”, which encompasses considerations such as the need to acquit the innocent, convict the guilty and ensure that cases are dealt with efficiently and expeditiously. The participants in the case are also subject to this duty as well as the court, which assists with active case management. This measure will mean that judge advocates and participants in proceedings in the court martial, the Service Civilian Court and the Summary Appeal Court are subject to similar duties and will assist case management in those courts.
The second measure in this instrument also implements a recommendation of His Honour Shaun Lyons’ review. The measure amends the current rules on notifying witnesses to give the Director of Service Prosecutions, rather than the Military Court Service, responsibility for warning prosecution witnesses of trial dates. This change will align practice in the service courts with the civilian criminal justice system for England and Wales, where the role is performed by the Director of Public Prosecutions.
Finally, this instrument inserts a new Rule 34A into the court martial rules, which requires the court administration officer to ensure that, if any lay members of the court are servicepersons, there is at least one man and one woman on the board. I emphasise that we are confident that the court martial, in its current form, is a fair, efficient and effective court, which delivers justice for our Armed Forces. However, due to the lower numbers of women compared to men serving in the Armed Forces, the chances of a woman being selected at random 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.
We want to redress that imbalance by means of this procedural adjustment, which aims to improve and enhance the representation of women on court martial boards. Rather than it being left to chance that a woman will be randomly selected, this change will ensure that there will always be at least one woman on every board. This will bring the court martial closer to the civilian criminal justice system, so that servicewomen’s voices, experiences and perspectives are part of the decision-making process.
This important change has its origins in a recommendation made in the highly regarded Defence Sub-Committee report Women in the Armed Forces: From Recruitment to Civilian Life. That sub-committee was chaired by the recently appointed Minister for Defence People and Veterans, my honourable friend Sarah Atherton. In the government response to the report, the MoD undertook to carry out work to increase women’s representation on court martial boards related to sexual offending. I am delighted to say that the Government are going further than the report recommendation, as we think it is right to ensure that women are better represented on boards dealing with all types of cases.
I reassure your Lordships that the MoD has very carefully examined the impact this will have on women who serve in our Armed Forces. It is true that this measure will mean that women are slightly more likely to be selected to sit on a court martial board than currently. The total number of women required to populate all three services’ boards is 192. This is an increase of 48 more women per year than the current 144, 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 would be 672, which is 1.7% of the population of men eligible to sit on a court martial board.
This difference, however, will not result in women being treated less favourably than men. Service as a lay member of a board lasts only around two weeks and is a normal part of the duties of any senior NCO or officer. It can also be useful experience for future command, as commanding officers play a key role in the service justice system. To mitigate the risk of the same women being selected repeatedly, we will also introduce an exemption of 12 months for those women who have already sat on a court martial board for more than five working days.
We believe that increasing the representation of women on court martial boards ensures that they are always part of the decision-making process in service justice. It will better reflect our society and reinforce the important role that servicewomen have, not just in our Armed Forces, but in the service justice system. I beg to move.
My Lords, in supporting this draft SI and accepting that revision is not an option, I still have a couple of points to raise. The overriding objective introduced in all three types of service court seems, on first reading, to be almost entirely motherhood and apple pie, or should almost be taken for granted as sound administration. But I accept that, in the legal world, it is perhaps better to have every likely “i” dotted and every possible “t” crossed. It also follows a recommendation of his honour Shaun Lyons, whose knowledge and expertise in service law and procedure is well recognised and respected. It is right, therefore, that this new section is inserted.
However, I noted, although the accompanying memorandum does not mention it, the extra Rule 3A(2)(h)(v), which is not in the criminal court’s rules. It reads,
“the need to maintain the operational effectiveness of Her Majesty’s forces.”
I imagine some printing amendment will replace “Her” with “His”, but this raises the question of who decides. Presumably the Defence Secretary is responsible for such a judgment, but can he tell a court marital what to do? It may be so unlikely that the situation never arises; in which case, why put it in at all?
Say a key witness is, at short notice, an irreplaceable specialist in a Trident boat whose patrol is about to start and immutable, what then? What if the defendant argues that his Article 6 rights are being set aside or delayed for some operational reason? In the legal world, is this issue better left unsaid? I raise this not to argue against the draft rules but because the Minister’s response may provide further guidance on how the phrase “operational effectiveness” should be interpreted. Indeed, I notified the Minister last week that I would mention this today.
My second point, which is dealt with in the memorandum, is the inclusion of a female lay member. It seems slightly inconsistent to argue both that the small number of females available means that none might be called to serve but that there will always be enough to find at least one available. Should such a rule apply were the Judge Advocate to be a woman? Making this subject to guidance rather than a statutory rule might have been easier to administer, but I accept that restricting it to only sexual crimes was unnecessary and provocatively sexist. I await with interest the Minister’s response on operational effectiveness.
My Lords, like the noble and gallant Lord, Lord Craig of Radley, on reading the overriding objective as outlined in the statutory instrument, my sense was that it appears in some ways to be motherhood and apple pie. It would seem self-evident that an overriding objective should be that cases should be dealt with justly. How else should we expect the law to be administered? However, the important thing is that the intention is to bring courts martial in alignment as closely as possible with civilian courts, and that is welcome. His honour Shaun Lyons recommended that and that the Government are finally bringing that within the scope of service justice seems entirely appropriate. Similarly, the point about female representation, following from the Atherton report, is welcome, and the Minister’s explanation of why it goes beyond simply sexual crimes and the like is wholly appropriate.
Therefore, in the absence of my noble friend Lord Thomas of Gresford, I am not sure there will be any specific questions from the Liberal Democrat Benches. I realise I should have brought in reinforcements because Liberal Democrats feel that service justice is always best dealt with by my noble friend Lord Thomas of Gresford.
My Lords, I presume that prior to the very welcome rules female board members were never present. Was that the case? I am looking at Rule 3A(1). How often do these boards sit? One presumes it is as events dictate, but how many are there in the average year? What number are we dealing with? This issue is central to the rules and some numbers might help. Finally, can the Minister furnish an example of gender representation—a woman/she/they—on a given present board? Is an example available?
My Lords, I do not wish simply to make things up. I have very little to say on this. However, the amendments to the rules that the Government have brought forward are important. I agree with the noble and gallant Lord, Lord Craig, the noble Baroness, Lady Smith, and my noble friend Lord Jones.
From the various reports we have seen, there seems to be a real problem of confidence in some of the service justice system. To be fair to the Government, it is good to see them coming forward to adopt the recommendations of the review that they set up to look at this. These days, being commended is probably something the Government would welcome, but this is an important step forward in this case.
I sometimes wonder about overriding objectives. The noble Baroness, Lady Smith, is right: this is not a sarcastic remark, but it is quite astounding that we have to say that a court must deal with people fairly—“justly”, according to the law—and that that needs to be written down in law. Having said that, I understand that it is something put down by Judge Lyons—fair enough.
I want to tease the Minister a bit politically here. I do not know whether she has passed this by all sections of the Government but I am absolutely delighted to see them recognising the rights of defendants, particularly under Article 6 of the European Convention on Human Rights. It is absolutely wonderful that the Ministry of Defence is defending the convention and using it as a way of ensuring that courts operate—
There is a Division in the House. The Committee will adjourn for 10 minutes.
Sitting suspended for a Division in the House.
My Lords, I was in the process of welcoming the Armed Forces (Service Court Rules) (Amendment) (No. 2) Rules 2022, in particular their adoption of the recommendations of His Honour Shaun Lyons—we are pleased about that.
I was also congratulating the Minister on the MoD’s including the European Convention on Human Rights. I was excited to see it mentioned on page 2, but my excitement reached a crescendo when I saw it also mentioned on page 3. Then I turned over, and with just a scant look through I saw it mentioned again on page 5. That is before we get to the Explanatory Memorandum, which talks about the importance of the European Convention on Human Rights. Leo Docherty has said that the instrument is consistent with it.
It is important that the Minister outlines for the Committee how important she and the Ministry of Defence think retaining Article 6 of the European Convention on Human Rights is to the maintenance of the instrument before us. The Committee needs an explanation of that. She will be aware that many members of her own Government seem to think that the European Convention on Human Rights is not important, but I am pleased to see that the Minister and the Ministry of Defence have laid this instrument before us, which makes it clear through repetition that the European Convention on Human Rights is absolutely fundamental to this SI. Will the Minister ensure that all parts of the Government are aware of the importance the MoD attaches to the convention? Looking around the room, I am sure that a number of Committee Members are certainly well able to defend the Minister and help her in that respect, should she need it.
I think we would all welcome the addition of lay members to the court martial panel, and the gender balance. Can the Minister explain what a lay member is? I was speaking to the noble Baroness, Lady Smith, about this. Our understanding is that a lay member is not a member of the public, so who is a lay member who becomes a member of the court martial board?
Given that the whole purpose of the change in new rule 34A is to try to ensure that initially, there are more effective procedures with respect to sexual offending, I think we are all pleased to see that the Government have now extended that to all offending. Can the Minister say how that will be monitored, and what we mean by lay members?
With those few comments, we welcome the instrument before us. It will be an improvement, and will hopefully lead to greater confidence in the service justice system.
My Lords, once again we have had an interesting debate. In many respects this has been a more technical SI than the earlier one, but none the less, it has generated points of interest and I will do my level best to address them.
The noble and gallant Lord, Lord Craig, raised the very important issue of who decides. This duty created by the instrument to consider operational effectiveness is vital, and the noble and gallant Lord was good enough to indicate to me where his area of concern lay. I have tried to do some research into it, and I will try to deal with the points that he raised.
It will be for the judge advocate alone to decide what should or should not be done to take account of the need to maintain operational effectiveness. However, it is important to put this provision in context. The overriding objective is that cases be dealt with justly. Some slight mischief was articulated about this being motherhood and apple pie. The essential components are good, but that is because we are replicating what already exists in the civilian criminal justice system, and it works. I make no apology for transporting that into our court martial procedures because I think these are virtuous and will greatly improve our court martial system.
The reference to operational effectiveness does not change the overall objective that cases be dealt with justly. Nor does it affect in any way a defendant’s right under Article 6 of the ECHR. It is there to recognise that the services courts deal with cases where defendants, board members and witnesses will generally be services persons, who will often have other important and sometimes unpredictable commitments.
The role will give judge advocates the flexibility to take this into account. The kind of scenario where we expect it to be relevant would be, for example, where the date of a trial might need to be brought forward or, indeed, delayed, or a witness might be allowed to give evidence via live link. Certainly, I reassure your Lordships that the Judge Advocate-General was consulted and agreed with the use of the phrase “operational effectiveness” in the context of this change.
I thank the noble and gallant Lord for raising an important point. I have tried to address it. The fact that the Judge Advocate-General is content with the position I think provides significant reassurance.
Just to be clear, is the Minister saying to the Committee that the Judge Advocate-General has the say and, regardless of whether the Secretary of State agrees with him, the Judge Advocate- General wins?
That is what I am saying. Indeed, I add to that by observing that it would be profoundly undesirable if the Secretary of State, as a government Minister, were getting involved in the discharge of justice under what should be an independent criminal justice system, albeit within the services justice environment. It would be most undesirable for the Secretary of State to get involved. The Judge Advocate-General alone will decide what should or should not be done to take account of the need to maintain operational effectiveness.
I think I have dealt with the commentary of the noble Baroness, Lady Smith, about why this is phrased as it is. It is not some cosy set of aspirations; it really is intended to deliver what has been working well in the civilian criminal justice system and to try to ensure that our services criminal justice system benefits from that. I thank her for her observation about the absence of her colleague, the noble Lord, Lord Thomas of Gresford, who is, of course, always a welcome presence in these debates where legal issues arise. I am sure that he would have had some pithy observations to make on the technical content of the Sis, but I am grateful to the noble Baroness, Lady Smith, for confining her remarks to general observations.
The noble Lord, Lord Jones, asked some specific questions, including how often the board sits. Court martial boards sit in assizes of two weeks with 24 periods in any year; that is, 48 weeks a year. The noble Lord also asked whether the measure of extending female representation on the court martial board should be extended to the judge advocates. There is a mix of men and women judge advocates now; we have both men and women. The role is being introduced to align better with juries where women are represented in civilian courts, but there has been under-representation in the analogous role within the services justice system.
I thank the noble Lord, Lord Coaker, for his kind remarks about the SIs and where we have got to in delivering improvements for Armed Forces personnel. I particularly noted his phrase, “commend the Government”. It is certainly not something I have been hearing very regularly in recent times, and I thank him for that. On his reference to Article 6 of the ECHR, the MoD has consistently shown a desire to comply with human rights legislation and conventions, and the convention is an important part of the framework within which we operate; hence the various references to Article 6 throughout the SIs.
The noble Lord, Lord Coaker, also asked about the composition of a court martial board in general; I think that his question related to lay personnel. This measure will have an impact only on women in the Armed Forces at ranks of OR7 and above. To help your Lordships, I asked for clarification on this. In the Royal Navy, the rank of OR7 is chief petty officer; for the Royal Marines, it is colour sergeant; for the Army, it is staff colour sergeant; and, for the Royal Air Force, it is flight sergeant/chief technician. Service persons below that rank are not eligible to sit as lay members. Eligibility is currently set at OR8 personnel but from January next year it will be OR7. We are broadening the scope in the hope that this will facilitate the presence of more women. Also, as I said, there will be a 12-month exemption for women who have already sat. That is important, because it is a sizeable chunk out of otherwise operational time. If any woman has sat on a court martial board for more than five working days, this provision will prevent them repeatedly sitting on boards.
This is a really important point, which, as I said, the noble Baroness, Lady Smith, and I were discussing. If somebody outside this Committee read our proceedings and saw the word “lay” they would assume that these people are members of the public, even though the instrument deals with non-service personnel and the military courts. The Minister putting this on the record is quite helpful for those who read our proceedings to understand exactly what we are talking about.
I thank the noble Lord. We are sometimes guilty of using vocabulary in the environment with which we are all familiar. These are lay members who are not legally qualified; they sit as a presence roughly comparable to a jury. The noble Lord is right that they are “lay” not in the sense of any members of the public coming in but in the sense that they are in the Armed Forces and not legally qualified.
I have tried to address the points that were raised; I hope that I have managed to do so. I thank your Lordships for your contributions. This instrument takes us another step forward in making our service justice system stronger, better and fairer.
Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022
Considered in Grand Committee
That the Grand Committee do consider the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022.
My Lords, in an increasingly interconnected world where crime knows no borders, international co-operation that promotes justice and helps to keep the British public safe has never been more important. The instrument before the Committee will enhance our international judicial co-operation framework, specifically in relation to mutual legal assistance.
Before I come on to the contents of this instrument, I will briefly outline the context. Mutual legal assistance is a method of co-operation between states for obtaining assistance in the investigation or prosecution of criminal offences. The UK is a party to the Council of Europe’s 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, which form an essential part of our fight against transnational crime and our co-operation with other contracting parties in relation to criminal proceedings.
The second additional protocol to the 1959 convention widens the scope of available mutual legal assistance among contracting parties and includes specific provisions regarding requests for hearings by video or telephone conference, joint investigation teams and the temporary transfer of prisoners. The UK ratified this additional protocol in 2010.
Under our domestic framework, mutual legal assistance is governed by the Crime (International Co-operation) Act 2003, henceforth referred to as the 2003 Act. The 2003 Act states that, for the UK to request and facilitate certain types of mutual legal assistance, the country in question must be designated as a participating country as defined by Section 51(2).
Therefore, the purpose of this instrument is to designate Georgia, Liechtenstein, Luxembourg, the Republic of Moldova, Switzerland and Turkey as participating countries. These countries have ratified the second additional protocol to the 1959 European Convention on Mutual Assistance in Criminal Matters, and designation will allow us to co-operate with them in relation to specific types of mutual legal assistance.
This instrument establishes only the ability to provide or seek certain types of assistance to or from the reference countries; it does not create an obligation to do so. Incoming mutual legal assistance requests from a designated participating country will be reviewed in line with existing practices. This includes a human rights assessment.
With this in mind, I now turn to the specific effect of the provisions for which these countries are to be designated. First, designation for the purposes of Section 31 of and paragraph 15 of Schedule 2 to the 2003 Act enables the UK to facilitate requests for a person in the UK to give evidence by telephone in criminal proceedings before a court in a participating country, where that witness gives their consent.
Secondly, designation for the purposes of Sections 32 and 35 of the 2003 Act enables the UK, on request from a participating country, to obtain customer and account information to assist an investigation in the participating country. Designation for the purposes of Sections 43 and 44 of the 2003 Act are the reciprocal provisions, which enable the UK to make requests for the same information to a participating country. Additionally, designation under Section 45 provides that requests for assistance under Sections 43 and 44 must be sent to the Secretary of State for transmission, unless the request is urgent.
Finally, Section 47 makes provision for the temporary transfer of UK prisoners to a participating country to assist with an investigation if the prisoner has given their consent to the transfer. Section 48 makes a directly reciprocal provision for prisoners in the participating country to be temporarily transferred to the UK to assist with investigations if consent has been given.
In summary, this instrument will help to strengthen the UK’s ability to investigate and prosecute criminality at home and promote the same objectives abroad.
I should also be clear about what this instrument does not do. It does not designate Russia. Following the invasion of Ukraine, the Council of Europe expelled Russia—a decision that is unprecedented in its 73-year history. However, Russia remains party to the 1959 European Convention on Mutual Assistance in Criminal Matters and its first and second additional protocols, the latter of which Russia ratified in 2019. Given Russia’s unprovoked, premeditated and barbaric attack against a sovereign democratic state, and as law enforcement and criminal justice co-operation is based on mutual trust and respect for international law, we are not seeking to designate Russia at this time.
The UK is committed to improving the provision of mutual legal assistance across borders and this order will enhance the level of co-operation that the UK can offer to, and seek from, other countries. Mutual legal assistance is a key tool in combating cross-border crime and ensuring justice for British victims of crime. I therefore commend the order to the Committee, and I beg to move.
My Lords, I thank the Minister for introducing this order. As he just said, criminality is increasingly cross-border and anything that mitigates the reduction of the UK’s ability to tackle international crime as a result of the UK leaving the European Union has to be welcomed. I have only a couple of questions.
Paragraph 8.1 of the Explanatory Memorandum to the order states:
“This instrument does not relate to withdrawal from the European Union.”
Yet paragraph 6.3 explains that Switzerland is included in this order because it was previously included
“on the basis of the Cooperation Agreement between the European Community and its Member States on the one part, and the Swiss Confederation, on the other part”—
the so-called “Swiss Agreement”. Paragraph 6.5 states,
“When the UK left the European Union (“EU”), the obligations that previously applied to the UK as a member of the EU, under the Swiss Agreement, ceased to apply.”
Albeit only in relation to Switzerland, it appears that this instrument does relate to withdrawal from the European Union. Will the noble Lord explain? Will he also explain why these countries—Georgia, Lichtenstein, Luxembourg, Moldova, Switzerland and Turkey—have now been included and why now, bearing in mind that the primary legislation dates from 2003 and the 1959 convention was ratified in 2010? I am reassured that Russia is not included as part of this instrument, and we support the order.
My Lords, I agree with the noble Lord, Lord Paddick, and the Labour Benches support the order. I have a couple of questions. Luxembourg was the latest country to ratify the second additional protocol in 2021. When did the other states in this order ratify it? Is there any reason why we have waited until now to designate them?
Brexit impacted some of the collaboration we had on criminal matters with Switzerland, as the noble Lord, Lord Paddick, mentioned, and the statutory instrument will rectify that. Were there any other consequences on international co-operation from Brexit? Have they also been rectified? Are there any other countries apart from Russia—I totally agree with what the Minister said—we wish to designate but are unable to at present? If so, which are they?
The order refers to Sections 47 and 48 regarding prisoner transfer if consent is given. What happens if consent is refused, if a prisoner does not agree? What then takes place? Is there a process or are there other ways by which a prisoner can be moved between countries? Are all the arrangements outlined in this protocol reciprocal? How many requests do we typically make under this Act each year? One of my favourite questions: this order relates to England, Wales and Northern Ireland; will the Minister explain how Scotland operates with respect to this protocol?
My Lords, I should say I thank all noble Lords, but I can be specific: I thank the noble Lords, Lord Coaker and Lord Paddick, for contributing to this debate. As I set out at the start, this instrument will enhance mutual legal assistance with these six countries and strengthen the UK’s overall ability to combat transnational crime. Mutual legal assistance is a critical tool in tackling cross-border criminality and promoting a pathway to justice here in the UK and overseas. As we have all said, this form of international co-operation has never been more important. Not only does it help to ensure that borders are not barriers to justice, but it allows us better to defend our public safety interests.
To go on to the specific points that have been raised, I am grateful to both noble Lords for supporting the non-designation of Russia at this time. I will have to come back to the noble Lord, Lord Coaker, on his question about other countries that may have been non-designated in the past, because I do not know the answer. I will find out.
The noble Lord, Lord Paddick, asked about Switzerland and the EU and why we are redesignating Switzerland. Its designations for certain sections of the 2003 Act were removed following the UK’s departure from the EU, as the co-operation agreement between the European Community and its member states on the one part, and the Swiss Confederation on the other part, to combat fraud and any other illegal activity to the detriment of their financial interests, also known as the Swiss agreement, no longer applied. However, Switzerland remains a signatory to the 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, so it has been determined that it should be redesignated for the relevant provisions of the 2003 Act. Inasmuch as that relates to the EU, the question is correct: our departure from the EU meant that we had to redesignate Switzerland. Switzerland is obviously an important partner in the fight against cross-border crime and it is important legally and operationally for the UK to seek and provide effective assistance.
I hope I can reassure the noble Lord on whether there has been any capability gap between the UK and Switzerland in the period since the 2019 regulations and this order. We are unaware of any requests which have not been facilitated while these additional Swiss designations have not been in place.
Is it right then that what the Explanatory Memorandum says about this order being nothing to do with the UK’s withdrawal from the EU is wrong?
I am reluctant to comment on the Explanatory Memorandum, simply because I have not read it. It sounds like it is, from what the noble Lord has said. I will seek clarification on that.
Both noble Lords asked why these countries are being grouped together. To be honest, it is in the spirit of efficiency and maximising the use of parliamentary time. It was decided that one instrument should be used to make a number of designations, rather than designating Switzerland and the other countries listed through separate instruments.
The countries that have ratified the second additional protocol to the European Convention on Mutual Assistance in Criminal Matters 1959 since the previous designation in 2013 are those that we have listed. I will not run through them again, but the most recent country to ratify was Luxembourg, which did so in 2021.
The noble Lord, Lord Coaker, asked for the total number of outgoing MLA requests sent to all countries over the past few years. I can run through them in detail. In 2017, the number of outgoing requests was 346; in 2018, it was 350; in 2019, it was 320; in 2020, it was 235; and in 2021, it was 371, making a total of 1,622. I can go into much more detail on incoming requests if the noble Lord wishes me to, but I hope he does not. I will also more than happily come back to him on the reciprocal question that he asked because I do not have the information on that to hand.
I also asked about Scotland.
The noble Lord is quite right and is just in time. Scotland will need to make its own order as this power is delegated. Officials from the Scottish Government and the Crown Office and Procurator Fiscal Service are in the process of preparing parallel legislation. I had forgotten that question—my apologies.
To conclude, mutual legal assistance is a key tool in the UK’s fight against international criminality. This form of judicial co-operation enables the UK to seek and provide various forms of assistance to ensure that regardless of where a crime is committed perpetrators can be bought to justice. The instrument we have considered today helps to achieve this outcome and in turn to protect the British public and the wider international community. I therefore commend the order to the Committee.
Sanctions (Damages Cap) Regulations 2022
Considered in Grand Committee
That the Grand Committee do consider the Sanctions (Damages Cap) Regulations 2022.
Relevant document: 11th Report from the Secondary Legislation Scrutiny Committee
My Lords, this instrument, which is subject to the affirmative procedure, was laid before Parliament in draft on 20 July 2022, under Section 55(5) of the Sanctions and Anti-Money Laundering Act 2018—the sanctions Act. It will be made once it is approved by both Houses.
The instrument represents further action to strengthen the UK’s sanctions regime in response to Vladimir Putin’s illegal and abhorrent war against the people of Ukraine. Since the invasion, the UK has worked with international partners to deliver an unprecedented package of sanctions against Putin’s regime and his allies who are complicit in its brutality.
As noble Lords will be aware, the Economic Crime (Transparency and Enforcement) Act 2022 proceeded quickly through Parliament following Russia’s invasion and received Royal Assent on 15 March. That Act amended the sanctions Act to reform how sanctions are imposed and reviewed and how challenges to them are dealt with. Those amendments received cross-party support, including across the Benches in this House.
The economic crime Act created a power for the Government to set a limit on the amount of damages that a court can award for designations made in bad faith. In exercise of that power, the instrument before us introduces a cap of £10,000. This cap will apply to any proceedings challenging the Government’s use of designation powers under the sanctions Act or to the specification of a ship issued on or after 4 March 2022. It will minimise the risks to His Majesty’s Government of spurious or vexatious litigation from deep-pocketed oligarchs, as we continue to ratchet up the pressure on Putin. It is right and proper that the Government protect public funds in this way.
To be clear, this will not affect the right of a designated person to challenge their designation in a court or, if appropriate, have the designation lifted. Furthermore, the courts will have the power to disapply the damages cap to avoid any potential breaches of human rights, where necessary, in individual cases. But the cap will send a strong signal that Putin’s oligarchs and kleptocrats cannot draw on the public purse in this country to boost their coffers, that this Government will not be distracted from the task in hand by endless litigation and that we will not be knocked off course by the risk of damages claims. Noble Lords should make no mistake: this is not about protecting the Government from acting in bad faith. It is about sending a clear message to friends of Putin who are tempted to bring claims without merit.
To conclude, the UK Government will not hesitate in bringing forward further sanctions to target those who participate in or facilitate Putin’s illegal war of choice. On 26 September, the UK announced further sanctions targeting those responsible for Putin’s sham referenda. They included four Russian Government officials, four further oligarchs, 55 state board executives, and 29 individuals and organisations working for illegitimate proxy groups in Donetsk, Luhansk and Zaporizhzhia. On 30 September, the Foreign Secretary announced a new set of sanctions that further limited Russia’s access to the foreign services on which it depends.
Taken alongside previous action, the UK is now preventing Russian access to advertising, architectural, auditing, engineering and IT consultancy services, as well as various commercial legal services. The announcement included a new ban on the export of nearly 700 goods that are crucial to Russia’s industrial and technological capabilities. It also included new sanctions on Elvira Nabiullina—with apologies for the pronunciation—the governor of the Central Bank of the Russian Federation, who has been instrumental in managing the Russian economy throughout the war and in the rouble being imposed on Ukrainian territories that have been seized by Russia.
I trust that the Committee will support this instrument, which strengthens the UK’s ability to sanction those responsible for Putin’s illegal and brutal war. I beg to move.
I thank the Minister for introducing this statutory instrument. Yesterday, we debated other sanctions and focused particularly on Russia. Of course, around the time of that debate, 28 unmanned drones reaped further unnecessary destruction in the capital, Kyiv. A young couple, who were expecting their first child in a matter of months, were among those killed by the senseless barbarity that is driving Putin’s war effort. I know that such crimes will strengthen the resolve not only of the people and Government of Ukraine but that of our Government, this House and all Members of Parliament to ensure that we continue to support Ukraine.
Before I cover the substance of this SI, last night the Minister kindly promised to let me have sight of a letter to my honourable friend Stephen Doughty that answered several of his questions, which I had repeated. By the time I got back to my office, I had received it; I thank the Minister. I specifically raised the issue of mixers, which scramble the origins of crypto transactions to make them virtually untraceable. I asked why two of those mixers—Tornado and Blender—are not on our sanctions list, despite being targeted by the United States. Short of the letter saying that it would be wrong of the Minister to speculate about the targets of future sanctions, there was no mention of them. I will keep repeating the point I have made before: if we do not act in concert with our allies, such as the United States, these mixers will have the capacity to funnel billions to Putin and his cronies. I hope the Minister can reassure us tonight that the Government will act on this.
I turn now to the substance of today’s SIs. It is absolutely right to disincentivise oligarchs and other designated persons from pursuing the Government through the courts by capping the damages that they could receive if they prove that they were sanctioned in bad faith. For far too long, oligarchs from Russia and beyond have acted with complete impunity, their wealth a symbol of global failure to tackle the illicit finance channels which span our economy, politics and society.
Last month, it was revealed that at least 21 Russian businessmen were engaged in legal proceedings across the European Union to overturn sanctions against them, according to filings at the European Court of Justice. I absolutely agree with the noble Lord that today’s action is a welcome step in constraining their ability to tie up these designations in legal showdowns and limit our ability to act. Given that they operate within the parameters of the ECHR, Labour welcomes these changes.
However, it makes no sense to make these changes without acting against illicit Russian finance, which still pollutes the City of London. Labour welcomed the economic crime Act, but the measures it sets out are only the beginning in addressing the chronic problem of dirty money. Minimising what an oligarch can glean from a protracted legal battle is one thing but driving illicit finance out of our institutions is another matter entirely.
As I have repeatedly stated in the Chamber, we must reform Companies House, with new powers to verify information and remove corporate entities from the register once rules are broken. It is vital to ensure that our enforcement bodies are funded for the long term and are no longer outgunned by the seemingly endless resources of oligarchs that we are up against. Spotlight on Corruption highlighted that money laundering prosecutions have dropped by 35% over the last five years. The United Kingdom is by far the most frequent country of origin of SLAPPs—strategic lawsuits against public participation, also known as intimidation lawsuits—with 31% of these cases originating in the UK, according to the Anti-SLAPP Coalition.
The existing budget for economic crime law enforcement is £400 million, with only £100 million of that coming from the Treasury. Given that this is supposed to be a priority of the Government, that amount seems entirely inadequate. I hope the Minister can reassure us that we will build capacity to tackle these oligarchs.
Before I conclude, I have a couple of questions. The cap on damages appears to apply to any proceedings after 4 March. Does the Minister know how many proceedings this will apply to? When the then Minister of State at the Home Office, the noble Baroness, Lady Williams, introduced the relevant sections of the economic crime Act, she said that the cap on damages would limit the oligarchs’ claims, but it is not clear what will have been paid out before the cap comes into effect. Is there information on that amount? Can the Minister tell us exactly how the Government concluded that £10,000 is an appropriate level for a cap?
With these comments, I reiterate that we are strongly supportive of the Government’s actions, and we certainly support the adoption of this SI.
I thank the noble Lord for his comments and support for the measure. We have acted swiftly to hold Russia to account for its attack on Ukraine. The UK is inflicting devastating pain in areas of strategic importance to Putin and Russia following the unprovoked and illegal invasion. The Government brought forward this legislation before the Summer Recess and, as the noble Lord said, the cap will apply to all proceedings brought before 4 March.
We continue to make maximum use of our sanctions powers to ensure the strongest possible response to Putin’s illegal invasion of Ukraine. We must ensure that the measures and cases are carefully targeted on the basis of robust evidence before we sanction individuals, goods or companies. That is why we are taking it step by step but noble Lords may rest assured that we will continue to sanction where it will have maximum impact.
It is important to recall that, when this House decided to restrict damages to cases of bad faith, it also gave the Government the power to set a cap. That was done precisely to send the message that no one should benefit from massive payouts from sanctions litigation. We have concluded that £10,000 is appropriate. I am confident in the integrity of our process but this is about sending a message. By imposing a cap, we are removing incentives for deep-pocketed oligarchs or financial institutions to bring unfounded or vexatious litigation. A court cannot neglect to apply the damages cap except in specific circumstances where failure to do so would be in breach of the individual’s human rights.
The starting point will always be that the damages cap applies and will be disapplied only in those very particular circumstances. Any designated person may challenge their designation in court and have it removed if it is not justified, and has the right to receive damages where the Government have acted in bad faith. The core right remains for any designated person to challenge their designation in court and have it removed if it is not justified. This House considered the arguments and supported without objection the Government’s proposal to exclude damages for negligence during the passage of the Economic Crime (Transparency and Enforcement) Act.
I apologise that reference was not made in the letter that the noble Lord, Lord Collins, saw last night to the two mixers he mentioned in his comments yesterday. I am not able to be specific in my answer to him now other than to say that we are working in concert with our allies and will continue to act where appropriate. Absolutely no entity is off the table. We will go further to bring about an end to Putin’s war. I note the recommendation made by the noble Lord; he makes a strong argument. I will make sure that there is appropriate follow-up by government but I hope he understands why I cannot go into more detail now.
The noble Lord asked about 4 March and, I think, how many processes would pre-apply before that date. I think the answer is none. He also asked what has been paid out as a result of actions that precede these measures coming into force. I think the answer to that is also nothing. I think that is correct—I am getting a nod of agreement behind me. That is good news.
The noble Lord rightly raised the question of capacity. I hope I can reassure him by saying that, in December last year, there were 48 substantive roles in the sanctions unit, which has now become the sanctions directorate. We have doubled the number of officials focused on our response. We now have more than 100 permanent staff delivering our response. This number does not include those working across the FCDO and its overseas network, who cover sanctions as part of their wider roles.
The Office of Financial Sanctions Implementation—the OFSI—has also doubled its size this financial year and continues to grow to meet the challenges of the sanctions introduced under the Russia sanctions regime. The recruitment of new permanent staff continues following the former Chancellor’s announcement in March to double the size of the OFSI.
It is the responsibility of the UK and our allies to ensure that our sanctions regimes are maintained and updated appropriately so that we can respond at pace to the activities of malign actors around the world. I once again thank the noble Lord for his insightful contributions and support.
Committee adjourned at 6.44 pm.