Delegated Legislation Committee
Voyeurism (Offences) (No. 2) Bill
The Committee consisted of the following Members:
Chair: Ms Karen Buck
† Caulfield, Maria (Lewes) (Con)
† Chalk, Alex (Cheltenham) (Con)
† Daby, Janet (Lewisham East) (Lab)
† Duffield, Rosie (Canterbury) (Lab)
† Frazer, Lucy (Parliamentary Under-Secretary of State for Justice)
† Hobhouse, Wera (Bath) (LD)
† Hollern, Kate (Blackburn) (Lab)
† Jones, Andrew (Harrogate and Knaresborough) (Con)
† Keegan, Gillian (Chichester) (Con)
† Knight, Julian (Solihull) (Con)
† Miller, Mrs Maria (Basingstoke) (Con)
† Milling, Amanda (Cannock Chase) (Con)
† Morden, Jessica (Newport East) (Lab)
† Qureshi, Yasmin (Bolton South East) (Lab)
† Robinson, Mary (Cheadle) (Con)
† Russell-Moyle, Lloyd (Brighton, Kemptown) (Lab/Co-op)
† Saville Roberts, Liz (Dwyfor Meirionnydd) (PC)
† Smith, Laura (Crewe and Nantwich) (Lab)
† Whately, Helen (Faversham and Mid Kent) (Con)
Gail Poulton, Committee Clerk
† attended the Committee
Second Reading Committee
Monday 2 July 2018
[Ms Karen Buck in the Chair]
Voyeurism (Offences) (No. 2) Bill
Before we begin, I shall spend a moment outlining the procedure for this Second Reading Committee, because it an uncommon type of Committee.
The Committee is charged with recommending to the House whether the Bill ought to be read a Second time. Debate in Committee replaces a debate on Second Reading in the House so, after the Committee has made its recommendation, the question on Second Reading in the House will be decided without further debate.
The Second Reading rules governing a debate in the House apply in Committee so that, in particular, Members may speak only once, other than by leave of the Committee or through interventions. I now call the Minister to move the motion.
I beg to move,
That the Committee recommends that the Voyeurism (Offences) (No. 2) Bill ought to be read a Second time.
It is a pleasure to serve under your chairmanship, Ms Buck.
In my short time as an MP, one thing has struck me most: the ability of an individual MP who cares deeply about an issue to have an impact on people’s lives for the better. I therefore start by acknowledging the work of the hon. Member for Bath in campaigning tirelessly to ensure that a Bill on upskirting, which is now the Bill this Committee is considering, becomes law. We are here because of her tenacity, and it is to her credit that such an inappropriate act will become illegal.
I also acknowledge the work of two incredible people, Gina Martin and her lawyer Ryan Whelan. As MPs, we have the levers and tools to make change, but for members of the public it is much more difficult, and I very much doubt that we would be discussing the Bill’s Second Reading today without the work of Gina and Ryan. I thank them for all their hard work in highlighting the issue.
I also thank Members in all parts of the House for the progress that has been made. The Labour party, Plaid Cymru and the Scottish National party have all been very supportive of the Bill and have helped to ensure that it has progressed swiftly through the House. I am grateful for the constructive way in which the hon. Members for Bolton South East and for Dwyfor Meirionnydd have approached the legislation. The Bill has only been possible because of cross-party support. We all entered Parliament to bring about positive change, and I am proud to be leading on a Bill that will protect women and that proceeds with the support of all parties. This is Parliament at its finest.
I shall set out briefly, first, what upskirting is; secondly, what measures there are to deal with it and why there is a gap in the law; thirdly, how we are bridging that gap and ensuring that there are the tools to punish offenders appropriately; and, finally, other important areas relating to sex offences that have been raised in wider public debate.
First, what is upskirting? It is the practice of taking a photograph up a person’s skirt or clothes without their consent. Unfortunately, people are undertaking such activity across the country, from the assistant headteacher who upskirted his own pupils at a convent school to the vice-president of a ticketing company who collected more than 50,000 upskirted images for his own sexual satisfaction. We have to acknowledge that upskirting is taking place—indeed, online guides instruct others how upskirting can be done quickly and easily—and people affected by upskirting have variously described their experiences as “scarring”, “an invasion”, and “embarrassing and humiliating”. One woman, who was on the tube with her parents when she was upskirted, said that it made her feel like she wanted to “peel off her skin” and “scrub it clean”.
Secondly, we are tackling upskirting because there is a gap in the law that needs to be filled and can be filled quite simply. At the moment people can be prosecuted for upskirting through two offences, and successful prosecutions have taken place. The first possible route is through the common law offence of outraging public decency. However, under review that approach was found to be problematic, because it does not capture all the circumstances in which upskirting can happen. Convictions under the common law offence of outraging public decency require an act such as upskirting to happen in public where there is a reasonable chance of at least two other people witnessing it. Conversely, the action can also be caught under the existing offence of voyeurism but, again, there are limitations, as that act is illegal only if it takes place somewhere where there is a reasonable expectation of privacy. In certain circumstances someone is in neither a public nor a private place, and it follows that therefore the action would not be caught by the law. Worryingly, those places might include schools or workplaces.
Thirdly, how will we ensure that the offence is dealt with appropriately? It will be done in a number of ways. The Bill makes it an offence for a person to operate equipment beneath someone’s clothing to observe, allow someone else to observe, or record an image of their genitals or buttocks, whether exposed or covered by underwear. We are ensuring that people carrying out the offence with different motivations will be caught by the Bill. There are different reasons for upskirting, and we have ensured that the Bill will capture that behaviour whether the motive is to obtain sexual gratification or to cause humiliation, distress or alarm to the victim.
The Minister is outlining the importance of the offence in great detail, and has talked about reasons why an individual might engage in upskirting. Another reason why someone might take upskirting photographs is financial gain, but the Bill does not capture that and there is concern in Scotland about whether that is an omission from the Bill. Will the Minister comment on that?
That is an important point, which some people have raised: should photographers who use such photographs for financial gain be caught by the offence in the Bill? It is possible that they, too, will be caught, because the Bill specifies two purposes for which an offence can be committed and only one is needed to satisfy the requirements of the Bill. Someone taking the action in question in the knowledge that it might cause distress, and with that intention in addition to financial gain, would be caught by the offence. It is also possible that photographers who sold photographs on to newspapers could be caught under the offence of outraging public decency, if the offence happened in a public place. They might be caught by section 4A of the Public Order Act 1986.
The Government want to ensure that we protect the public from future actions by those who commit the most serious sexual offences. Those who commit a sufficiently serious act for sexual gratification will be placed on the sex offenders register. That is right because it gives the police a tool for the management of sex offenders in the community, making it possible to put restrictions on their movements if they may pose a continued risk to others.
Importantly, those who engage in upskirting, but not for sexual gratification, and who are not the most serious sex offenders and do not need to be monitored by the police as posing a sexual risk to others, will not face the consequences of being on the register. Being on the sex offenders register has serious implications for a person’s life, so the Bill will not prejudice young people who undertake the act in question but not for sexual motives. We need to protect victims, but we should not stigmatise young offenders unnecessarily. We are ensuring that the punishment fits the severity of the crime. As with other sex offences, the punishment may include up to two years’ imprisonment, and there will be anonymity for victims.
We are bringing in the Bill with speed, to fill a gap in the law that needs to be rectified. However, I want to say a few words about other types of sexual wrongdoing, which have been raised in the House and among the public in the past few weeks. Undoubtedly, to keep the law up to date with the prevalence of such issues, and with technology, we should continue to keep other areas of the law under review. I am very sympathetic to many points raised about that by hon. Members on both sides of the House. Many fair points have been made, but often there are no universally accepted solutions, or the relevant issues are complex and not self-contained.
The Government continue to be alive to the fact that new technology may facilitate the carrying out of degrading acts, but we are determined to get the Bill on the statute book as quickly as possible.
We have identified a gap that needs to be filled, and I know colleagues on both sides of the House want to work together in that endeavour. I and other Ministers in my Department will be very happy to sit down with any Member of the House to discuss any similar matter, but I will urge the House to pass this Bill.
It is just 17 days since the private Member’s Bill in the name of the hon. Member for Bath failed to progress through the House. I commend the cross-party support and liaison that has allowed this Bill to be brought forward. I am grateful to the hon. Lady for her endeavour and commitment to get it on the statute book as soon as possible, and I commend the Bill to the Committee.
It is a pleasure to serve under your chairmanship, Ms Buck.
I begin by congratulating the campaigners, in particular Gina Martin, who has shone a spotlight on this important issue, and the hon. Member for Bath, who has supported those campaigners and worked so diligently on this issue. I welcome the Government’s decision to finally agree to introduce this legislation, but the delay in getting here has been wholly unnecessary and frankly scandalous. It has been almost a year since the shadow Justice Secretary first raised it with the Minister and demanded new legislation. It has taken the Government’s being forcibly shamed into acting after the outrageous actions of a Tory Member of Parliament, who acted to derail a much needed and universally supported change in the law.
Let us be clear: upskirting is a depraved violation of privacy. Failure to change the law to reflect that represents complicity with those committing these appalling crimes. It is shocking that in England and Wales there is no specific criminal offence to cover this offence and that instead it must be prosecuted under the more general offences of outraging public decency or voyeurism, especially when we know that it can be difficult to satisfy the requirements of those more general offences, which in some cases means that prosecutions simply cannot be brought.
For example, the law as it stands means that the focus of the offence is on protecting the public from potential exposure to lewd, obscene or disgusting acts, rather than protecting the individual victim. Some people have been prosecuted for upskirting on the basis of outraging public decency. That is absurd, as it should not matter how public it is. The law should focus on the individual victims and the crime committed against them. It is their body that is being taken advantage of without their consent, and their privacy that is being violated.
A number of cases highlight the many failings of the current laws. In 2007 Simon Hamilton, a barrister, was convicted after secretly filming up the skirts of women in supermarkets. He was able to appeal on the basis that, as none of the victims had been aware of the filming and no one else had seen it, public decency could not have been outraged. There was also the case of Guy Knight, a former chartered accountant, who took photographs up women’s skirts on trains over a period of five months while commuting to work. He was caught after suspicious passengers reported him to the police. More than 200 illicit images were found on his phone and laptop, and 10 of the women in the pictures were traced by the police. None of them were aware that they had been photographed. Last year, Guy Knight was fined £500 and ordered to pay £500 costs. The detective constable in the case, Bob Cager, said that he was
“extremely disappointed. We thought he would have received a heavier sentence.”
It is no wonder that it can be extremely distressing for women who have become aware of such pictures being taken of them. Indeed, the sense of violation can be the same as with other forms of sexual assault. As a former prosecutor and barrister, the fact that this is not a criminal offence in all circumstances baffles me as much as it horrifies me. I understand that upskirting is a crime of the modern era, but in Scotland upskirting has been an offence since 2009. There is simply no excuse for delay on this issue.
It is a matter of great regret that the hon. Lady is taking such a partisan approach. In 2009 a Labour Government were in power in the United Kingdom, and they did absolutely nothing. Will she take this opportunity to come together with Members across the House and celebrate that swift movement has been made to right some wrongs?
I will come on to our working together collectively. As the Minister is aware, we do not object or seek to amend any part of the Bill. However, for the last eight years we have had a Conservative Government, and more specifically the Minister mentioned this problem last year. In any event, as I said, it baffles me that this is not a criminal offence. Of course, we will support it becoming one, but we cannot pretend it has not been ignored for so many years. That would not do justice to the victims, witnesses and other people affected.
Women have increasingly been speaking up, with one of the first being Gina Martin, who founded the campaign. Less than a year ago, she was at a festival in London with her sister when she was horrified to notice that the man behind her had taken a photo up her skirt. Shocked and distressed, she sought help from the police, but the law was not sufficient to ensure that they could help her. That is why a change in the law is required. Indeed, Dame Vera Baird, QC, from the Association of Police and Crime Commissioners, said that the current legislation
“is far from clear as there is no specific offence”.
We must remember that many women right across the UK are being affected. It can happen to women on public transport, in a park, at a concert or even just on a walk along a busy street, without the victim even realising that a photo has been taken.
In an article in The Guardian, Emine Saner tells the story of Lucy Parkinson, then 21 years old, who was shopping in Ealing, west London, when she heard an altercation behind her between two men. She said:
“I was crossing the road, and got stuck with a pack of other people at a traffic island…I was wearing a long-sleeved blouse and a white knee-length skirt.”
One man ran off and the other told her he had
“chased him away because he had seen him ‘upskirting’ me…I hadn’t even noticed it happening…and that’s the most unsettling part—in a city, you just don’t notice physical proximity to strangers. It could have happened a dozen other times too, for all I know.”
“I felt unsettled, targeted, and helpless; there was nothing that could be done about what had happened, and nothing I could do to prevent it from happening again.”
It is impossible to judge how many women may have been victims of upskirting, although a quick internet search will bring up hundreds of sites and thousands of images. There may be millions more pictures on phones and laptops, taken on the streets, on escalators in shopping centres, on trains, at bus stops and in supermarkets, nightclubs and other places, that may or may not have been shared.
The Minister is aware, as Members will be, that there are endless web forums where amateur upskirters can exchange tips on how to get the best pictures. One was posted by a man who had made a “cam-bag”—a holdall with a specially made pocket with a hole for a digital video camera lens. The post says:
“Never forget to shoot their faces before or after to know which girls the ass belongs to...After the first…asses, they look very similar and you lose most of the fun. After upskirting them, either step back and wait for them to turn or step by them and shoot directly sidewise.”
Another poster on the forum said that he operates
“mostly at theme parks and tourist hotspots, or really anywhere that draws a large crowd of spectators and cameras”.
“an attractive young lady, preferably a teen for my tastes, and then I evaluate the situation.”
He would sit down next to a young woman and surreptitiously film her while pretending to fumble for new camera batteries in his bag.
On another site, one man posted:
“I’ve been upskirting chicks, mostly at clubs, for almost two years. The club I go to is a great spot, real crowded, strobe lights going, loud music, so no one notices me sitting near the edge of the dance floor and if a woman in a skirt ends up by me I stick the cam under and snap.”
Those stories makes one aware of how shocking and vile this behaviour is, and I am pleased that—eventually—it is to be outlawed. Again, we must thank the campaigners and hon. Members who have been pushing for that.
In conclusion, the scope for people taking upskirt photographs has clearly increased with the development of mobile phone technology. A gap in the law has allowed this to happen, and I am proud that for some time we have backed the campaign to bring this to legislation. I have a couple of technical questions, however. First, the legislation for this offence as it stands effectively has two limbs. One is that the act is done for sexual gratification. The other is that it could lead to harassment or distress. We are told that if someone is convicted under the sexual gratification limb, that can lead to their being put on the sexual offences register.
I have some practical questions. Would the prosecutors have to charge these things as two separate offences, counts, indictments or charges, or is it up to the justices in the magistrates court and the jury in the Crown court to decide which limb to convict the defendant on? Can the prosecutors draft it as one count with two parts? If a perpetrator is convicted on the first limb, but evidence shows that what has happened falls under the second, will the prosecutor be able automatically to amend the indictment and put a new charge in, or will they have to seek permission from the justices to do that?
Those are legal and technical questions, but they are important, because when a case comes before a prosecutor, they need to know whether to charge with one offence, depending on the circumstances of the case, or to charge with both and let the jury, in the Crown court, or the justices, in the magistrates court, know. Perhaps we can have some clarity on that.
It is a pleasure to serve under your chairmanship, Ms Buck. I thank everyone for being here today. It is testament to the importance of the issue that we have all ensured that this, my original Bill, has been introduced by the Government and brought through the House to Second Reading so quickly.
Over the past couple of weeks, I have met many members of the Committee to ensure not only that we can change the law as quickly as possible, but that this Bill is as good as it can be. As a Committee, when we go forward with examining the Bill, we must ensure that throughout the process the victims of the crime remain at the forefront of our considerations. I have met with victims over the past few months, such as Gina Martin, who started the campaign last summer. Their bravery has ensured that this crime will stop happening and their campaign has been an inspiration to us all. Without their selflessness and hard work none of us would be here today. For that reason, it is important that we pass the Bill as quickly and effectively as possible.
By ensuring that upskirting becomes a sexual offence, we are sending a clear message that it will not be tolerated. It is a vile practice that has no place in society. If I am honest, I do not know why the law in England and Wales was not changed earlier. This Bill, however, does more than just make upskirting a specific sexual offence. The national debate the campaign has provoked will hopefully lead society to talk more widely about consent. This vile act can happen to anyone, but if we look at the victims, it is clear that it is predominantly an issue of how we, as a society, view women and their autonomy over their own bodies.
Since I have been campaigning to make upskirting a specific offence, I have heard from various groups and individuals who had similar, awful experiences of a sexual nature, albeit not upskirting, which have also not been followed by prosecutions and where there seems to be a gap in the law. The fight to protect women from violent practices does not end here. As the original proposer of the Bill, I recognise that this is not a silver bullet. I will not ignore the plight of other women now that this Bill is passing through Parliament. We must use this opportunity to raise the inconsistency of the law, as it stands, against sexual offences. Currently, for example, revenge pornography is not considered a sexual offence, but, like upskirting, it is done without consent and is humiliating and incredibly distressing to victims. I urge the Government to undertake a review of other sexual offences.
Throughout my work on the Bill, I have been incredibly grateful for support from the Government and colleagues across the House. It has been rewarding to work together so effectively on it, and I hope that we shall continue to do so to make sure that the law protects women and girls in the UK. Of course, I support giving the Bill a Second Reading.
After being in the House for 13 years I thought that the time for firsts was over, but this is the first time I have ever been on a Second Reading Committee, and it is great to be here, Ms Buck, and to serve under your chairmanship.
The Bill should most definitely be read a Second time. I pay tribute to the hon. Member for Bath for her tenacity in securing support from the Government for the Bill, and to the Minister for listening, which is sometimes a difficult thing to do. I have listened to what she has said today about the importance she places on clarity in the law. It is sometimes too easy to be convinced by officials that the law is sufficient and that change is not needed. However, I pay tribute to the Minister, who did not accept that. With the support of the Prime Minister, who also was not so easily convinced, we are here to debate a long overdue new law.
I want to pause to reflect on the Minister’s response to my earlier intervention, when I raised the possibility of upskirting being done for a profit motive. She specified many existing laws that would cover it—and that might be great for someone who is, like her, an eminent QC, who understands it, but I urge her to think about the problems that the police and victims face when the law is not as clear as it needs to be.
Today we are debating public sexual harassment, non-consensual sexual behaviour and, in particular, issues to do with image-based sexual abuse. We must be clear about it: the law is wanting in that area. The hon. Member for Bath talked about the need to address inconsistencies, and the importance of fighting to the end the vile practices that are apparent. I agree that upskirting is important, but there is a need for the law to deal with far more practices.
We debated the issue of revenge pornography in the House in 2014, and it was unclear whether it was against the law. The then Minister, now the Under-Secretary of State for Northern Ireland, my hon. Friend the Member for North West Cambridgeshire (Mr Vara), recited a long list of different legal provisions that could catch revenge pornography; but for victims the reality was that that was all for naught. The police did not understand it; the courts did not seem to understand how those laws worked; and hundreds if not thousands of victims had to endure revenge pornography—the posting of intimate abuses online—without any redress. I am pleased that we are dealing with the present issue, and that the Government have dealt with revenge pornography, by legislating.
I am afraid, however, that we shall be back here again shortly to debate the fact that the law does not cover other ways in which people can be abused online. One issue is deepfake technology. Readily available software packages can be used to swap other faces for those of the actors in pornographic films. At the moment it is being done with the faces of other well-known actors, but what is to stop it happening with the faces of well-known politicians, or a person’s ex, or someone they know, or someone they saw in the street and happened to take a picture of? Today we are dealing with upskirting, but the Government need to take a long, hard look at image-based abuse, because more problems are coming down the line.
When I campaigned to make revenge pornography a crime, I was told by the Crown Prosecution Service—I remember it well—that there was not sufficient need and that only a handful of cases came across its desk. Others said that the victims were to blame for the photos being taken in the first place. Fortunately, the Government knew better and acted, and more than 500 crimes a year are now successfully prosecuted, although hundreds more could be, as I will discuss later.
Although we are congratulating ourselves on this legislation today, we need to ensure that we undertake a much broader review of sexual image-based abuse, and that we do it quickly. That will ensure that we future-proof the law, that we clearly set out to people who seek to undertake such appalling acts that they are against the law, and that we give the victims involved the redress that they deserve in the criminal system.
Secondly, in this broad debate, I ask the Minister to consider, in parallel with her consideration of this law, the changing nature of the offences that are captured by non-consensual sexual behaviour and how they are dealt with in law. There are some grave inconsistencies that appear to show disinterest in the victims or that demonstrate, at most, a lack of understanding of perpetrators’ motives when it comes to undertaking such sexual image-based abuse. For instance, flashing in a mac is a sex offence and is notifiable if the intent is to cause harm or distress, yet creating deepfake porn, where someone posts on a website a picture that has the face of an individual appearing to take part in pornography, is simple harassment. It is difficult to understand how the law can come to that conclusion, when we take into the account the impact on a victim of seeing a flasher versus the impact on a victim who has had their image put into a pornographic scene or video.
Where sexual privacy is violated, it is difficult to see why it is not categorised as a sex offence. Those issues, whether upskirting, revenge pornography or deepfake porn, are not just privacy harms; they are non-consensual sexual activity that is often very public, and they are not being sufficiently captured in law. I hope that the Minister will confirm that she will consider what has been said on the issue when she reviews the victims strategy in the coming months.
The sort of sexual harassment that the Bill highlights is important for society to think about more generally. I am delighted that, alongside the progress of the Bill, the Government are progressing another important element, which is education. If there is to be a real change in attitudes towards women and a world where upskirting is no more likely to take place than smoking on a train, it will be because we have changed people’s attitudes towards that behaviour. Of course, the impact of upskirting is even more devastating than that of smoking. I hope that in her response, the Minister may be able to tell us how she is working on, or how the Government will take forward, sex and relationship education, which is being made mandatory for all school-age children. That is an important achievement of this Government after 17 years of prevarication under successive Governments. That implementation could also further the cause of ensuring that people understand why upskirting is wrong, as well as it being wrong in the law.
As I have said, I support the Bill wholeheartedly, but it is clear that amendments could make it even stronger. I thank Professor Clare McGlynn, who has been extremely helpful in advising a number of MPs on how we might be able to strengthen the law in Committee, particularly by closing some of the gaps that are emerging in the Scottish law, under which upskirting is already a crime. That crime is set out as in the Bill before us, yet the Scots are finding that concerns are emerging, because the protection afforded by the way the Bill is currently drafted can be seen as somewhat patchy.
The first issue, which I raised in my intervention, is about those who may seek financial gain from taking upskirt photographs or those who do it simply for a “laugh”. I put that in inverted commas, because this cannot in any way be seen as a laughing matter, even though some will see the images in that way. They do not see themselves as causing immense stress or distress to the victim, and they do not seek sexual gratification from the images. Surely we should make the law incredibly clear and not leave it to our police forces and our courts to try to decipher what Parliament was trying to put in place.
A second issue on which I will seek amendments in Committee also came up in Scotland when a very similar law was passed. It should also be unlawful for images to be distributed, so we should outlaw the distribution of upskirt images clearly and succinctly in the Bill. The Scots had to pass an additional amendment to the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 to ensure that that was addressed, and it is not the same as the amendment that we passed in this country in respect of revenge pornography; it is much broader.
The third objective is to ensure that all upskirting against under-18s is a notifiable sex offence. I do not think that we should leave the Bill as it is at the moment, whereby it is notifiable, when the victim is under 18, only in certain circumstances.
I am very pleased to say that the idea of the amendments that I have described has already gained quite considerable support.
I have been considering the proposed amendments and the Minister’s explanation about not making this an offence that immediately warrants someone going on the sex offenders register. We are talking about the victim being under 18, but what about when the perpetrator is under 18? The right hon. Member for Basingstoke does not make that clear in her proposed amendments. In discussions with the Minister, I have agreed that having a large number of young people on the sex offenders register might not be a desirable outcome from the Bill.
I am not sure that the Bill addresses that issue. I am not a lawyer and certainly not an eminent QC, so the Minister may want to stop me if I am wrong, but I think that those sorts of issues are dealt with in the usual ways by the CPS, which decides whether to bring prosecutions. Like the hon. Lady, my understanding is that the CPS already takes the view that people should not be criminalised if that is not sensible. The issue is not addressed in this Bill—I am sure the Minister will correct me if I am wrong.
The amendments that I have talked about would strengthen the Bill so that all upskirting was a criminal offence. There would be no lack of clarity and no need to invoke other legislation. The Minister would get the clarity that she was setting out the need for—the Prime Minister has also set that out in the discussions on this law in recent weeks. We would ensure that the distribution of these images was against the law. At the moment that may not be the case, because not all distribution would fall under the revenge pornography laws or similar provisions. We would ensure that in all cases in which victims were under the age of 18, upskirting would be a notifiable sex offence, which would simply bring things in line with other parts of the Sexual Offences Act 2003.
I am pleased to say that Members from across the House support those amendments, including the hon. Member for Birmingham, Yardley (Jess Phillips), my hon. Friend the Member for Totnes (Dr Wollaston) and my right hon. Friends the Members for Meriden (Dame Caroline Spelman) and for Loughborough (Nicky Morgan). There is also my fellow Committee member, the hon. Member for Dwyfor Meirionnydd, who has indicated that she is prepared to support amendments to make sure that we have the clarity in our law that Scotland is discovering it does not have. The Bill very much replicates what has gone on north of the border.
In conclusion, I say again that I welcome the Bill. It underlines the need for a more comprehensive look at how we tackle these sorts of offences, perhaps in the same way as the New South Wales Government have done with their Crimes Amendment (Intimate Images) Act 2017, which criminalises all intentional taking and distributing of a private sexual image without consent. That is a catch-all for the many things that we struggle with at the moment, and it will hopefully be a catch-all for things that are yet to come. Education and cultural change is a huge part of this and needs to go hand in hand with changes in the law. I hope that the Minister will today give Members reassurance that, while we are taking forward this important Bill, those other issues are being taken into account as well.
It is a pleasure to serve under your chairmanship, Ms Buck. I congratulate the campaigners, and also the hon. Member for Bath on her original Bill. I also thank the Government for introducing this Bill.
Back in 2016 I brought forward a ten-minute rule Bill that included measures such as those in the Bill, although it was unfortunately not possible to bring it through to a parliamentary conclusion. That ten-minute rule Bill drew attention to the complexity of the statutes that currently apply to sexual harassment, hate crime and digital technology, which inevitably results in inaction or inconsistency in the approach of the police and the courts. The Bill is a welcome step forward, but there is a need for a complete overhaul and review of sexual offences. I support the Bill moving forward on Second Reading.
A review of all non-consensual taking and sharing of private intimate sexual images, including threats and altered images, such as revenge porn and deepfake pornography, as well as further legislation to future-proof and modernise the law, would protect more victims in an age when the present legislation simply fails to reflect the prevalence of such offences, their impact on victims and the nature of technology and how it is moving ahead. The primary test for legislation is for it to be effective, so I will work with others to amend the Bill. I encourage colleagues who believe doing so might be beneficial to do the same. I believe that it can be strengthened if we consider motivation factors, notification requirements and the distribution of images.
First, the Bill would currently make upskirting an offence only when conducted for the purposes of sexual gratification or to humiliate, which requires further definition. As has been mentioned, the Bill does not criminalise upskirting for financial gain or where the motivation is to take images and to share them among a group of friends as a means of “group bonding”. Instead of focusing on the motivation of the perpetrator, the Bill focuses on whether the victim’s consent was received, regardless of the motivation. We know how much of an impact these offences have on victims.
Secondly, the Bill subjects the offender to notification requirements only if they committed the crime for sexual gratification and when certain age and sentencing requirements are met. That disregards the fact that taking an intimate photo of someone without his or her consent is, by nature, a sexual crime, so all offenders, whatever their motivation, should be subject to notification requirements if they meet the sentencing threshold. There might well be cause to look at the prosecution specifics, if necessary, to protect against the undue criminalisation of minors—that provision is present in other sexual offences legislation, if I understand correctly.
Finally, there is an absence of a specific provision covering the distribution of images, which means that the Bill fails to reflect the ubiquity of social media and the gravity of victims’ suffering. There could be a situation in which taking an image for the purposes of sexual gratification would be illegal under the Bill, but sharing it with exactly the same motive would not be a criminal offence in itself. The Bill should therefore include an additional offence of non-consensual sharing of intimate images.
I reiterate that I am pleased that the Bill will improves the law by making upskirting an offence, but I would beg that, at the same time as reflecting the urgency of what we are all trying to do, we ensure that the law is robust and effective and will stand the test of time.
It is a great pleasure to serve under your chairmanship, Ms Buck.
I will say a small number of things. First, I express credit where credit is due—it has already been done, but it bears repetition—to the hon. Member for Bath, to Gina Martin for her campaign and to the Minister, who has acted with great speed and decisiveness. To move so quickly is, if not unprecedented, certainly rare, and it is greatly to be welcomed.
I regret that the tone taken by the official Opposition spokesperson was so partisan, because the idea that the Labour party has been banging on about this since 2010 is simply untrue. Convention precludes me from going into any detail, but the first time the shadow Justice Secretary mentioned it was on 5 September 2017 following the campaign by Gina Martin, who should have the credit for the campaign. The first time the hon. Member for Bolton South East mentioned it was on 18 June 2018. I am afraid it is simply untrue to suggest that this has been a long-standing Labour campaign. The truth is that the blue touchpaper was lit by the campaigner Gina Martin, that the hon. Member for Bath moved quickly thereafter and that the Government then took up the cudgels.
The Bill strikes exactly the right balance. It is important to ensure that this pernicious conduct is properly outlawed, but also that the penalties are proportionate. Making it an either-way offence is a proportionate and appropriate step. A maximum of two years’ imprisonment is also proportionate and appropriate, although we in this House must when we talk about a two-year maximum, or 24 months, that if someone pleads guilty the maximum sentence is effectively 16 months and the maximum amount of time they could spend in custody is eight months. We must recognise that, but none the less it seems to me that it is in keeping with sentences for other offences, not least harassment under the Protection from Harassment Act 1997 and parts of the Sexual Offences Act 2003.
On the more difficult issue of notification, which I anticipate the Government will have grappled with, the balance has again been correctly struck. An offender will qualify for the notification requirements only if the offence was committed for sexual gratification and the relevant condition was met. Where it is an adult offender, the relevant condition is that the victim is under 18, which makes perfect sense—even if it is a one-off case of an adult who, for sexual gratification, upskirts a 16-year-old, it seems to me that notification should follow—or that the offender has been
“sentenced to a term of imprisonment”
and meets various other qualifying elements. Again, that makes the point that it must be a serious incident before it triggers the notification requirements. That is a difficult balance to strike, but I am entirely confident that the Minister has struck the correct one.
I note that my hon. Friend is another eminently qualified barrister and I am not—I have never studied the law—but is he not a little bit more concerned about the impact on the victim, rather than always looking at the motivations of the perpetrator? Surely the impact on the victim will be the same regardless of whether this has taken place for sexual gratification or not.
My right hon. Friend is absolutely right; the victim must be at the heart of this. Lest we forget, that is the whole reason for having this Bill. However, my view is that the court can take into account the impact on the victim in deciding what sentence is imposed. The Bill will ensure the notification requirements are engaged only for offences where the impact on the victim has been so great as to warrant a significant sentence.
Where I do agree with my right hon. Friend is on the potential to criminalise an individual’s motivation. I can well imagine circumstances where an individual goes to a festival, takes a whole load of photographs and says, “Look, I think this is disgusting stuff, but there’s a market for it. I’m going to put it online and sell it online. Frankly, whether other people get gratification from it, I don’t know. I certainly don’t want to humiliate or distress these individuals; I’m in it for the money.”
Suppose evidence to that effect emerged, such as an email that that individual had sent to the people who were going to upload those photographs to the internet. It would be rather odd if, in court, he was able to invoke by way of a defence the fact that his motivation had nothing to do with sexual gratification, because the email showed that he was not interested in that stuff, and that he had no interest in humiliating, alarming or distressing victims. If he were able to show that he was purely in it for the money, that would be a rather curious argument.
The hon. Gentleman is making a strong argument, but would not the very fact of someone uploading such photographs to the internet or putting them in the public domain inevitably cause harm and distress, and would not anyone applying common sense understand that such an act causes harm and distress and therefore fulfils the requirements in the Bill? If it does not, I am genuinely interested to hear more, but I do not understand how it does not.
The hon. Gentleman raises an important point. Inevitably, it would turn on the evidence. Supposing such an act were prosecuted, the prosecutor would no doubt say, “We’ve got this email, which shows that this person’s intention was purely to be paid £100 for these images that he got at the festival, but he must have known in passing them on that their value was in the fact that they would lead to distress or gratification, even if that was not his primary purpose but a residual purpose.” Therefore, the prosecution should say, “Members of the jury, forget about that email. It’s irrelevant. Use your common sense.”
I suspect that, in the overwhelming majority of cases, the jury would exercise their common sense and justice would be done. My concern, however, is about whether that is really an argument we want to be having in front of a jury. If there were the potential to close that argument off, a number of judges and even jurors may welcome such clarity in the law.
I congratulate the Government and the individuals involved, including the hon. Member for Bath, on their timely, robust and proportionate approach.
It is a pleasure to serve under your chairmanship, Ms Buck, and to follow my hon. Friend the Member for Cheltenham, who effectively brought to life how things may play out in the courtroom.
I intend to speak briefly in support of the Bill. I remember being groped on the underground aged 18. It was over in a moment, but the memory of the experience lives on. I remember feeling violated and exploited. I remember the anger, the shock and the feeling of powerlessness as the man who did it just melted away into the crowds in the station. I remember the feeling of absolute helplessness, but I think about how much worse it would have been had it happened now and involved a camera, and had there been footage that could have been shared, disseminated and sold on the extraordinary scale we have heard about.
Like other Members, I praise the hon. Member for Bath for her work and Gina Martin for her campaign, which has brought so much attention to this issue. I also praise the Minister, who has clearly listened and taken swift action.
I welcome the thoughtfulness in the Minister’s approach. She seeks a balance between effective action and clear penalties and not being too heavy-handed, particularly with young perpetrators of this offence. However, we still need to send a strong message to young people. We must bear in mind, for instance, the level of sexual harassment in schools, which I hear about particularly from sixth-formers. We have a generation who are growing up with phone cameras and, I am afraid to say, easy access to pornography online, and who face extraordinary sexual peer pressure on social media. Those things combine to create a toxic environment for young people.
In short, I welcome the Bill, both for its practical effect and for the message it sends about what is okay and what is not okay in our society.
With the leave of the Committee, I wish to speak again. I thank right hon. and hon. Members who have spoken today, especially the right hon. Member for Basingstoke, who went into the detail of some issues that perhaps need to be looked at generically. So many offences can occur in so many different ways as a result of modern technology. As has been suggested, perhaps there should be a proper review of such offences.
The Opposition support the Bill completely, and will not propose any amendments. Others may table amendments, but that is a matter for individual Members of Parliament. Again, I thank all Members who spoke today. They raised some important issues, which we hope Ministers will look at as the Bill makes its way through Parliament. Hopefully the Minister will also be able to deal with some of the practical legal questions I raised earlier.
With the leave of the Committee, I will answer a number of points that have been raised. First, the hon. Member for Bolton South East rightly mentioned some appropriate examples where there is a gap in the law. She mentioned that Scotland had acted more quickly. We must all remember that Scotland has different laws from us. The offence of outraging public decency, which has been available to some victims and under which some people have been successfully prosecuted here, is much narrower in Scotland so the gap was therefore significantly wider when they legislated.
The hon. Lady also suggested that there had been some delay in acting on our part. I am grateful for the intervention made by my hon. Friend the Member for Cheltenham, but I also draw the hon. Lady’s attention to the fact that the previous Lord Chancellor wrote to the Home Office and the Attorney General when these issues were raised. As a result, the Home Office has been working with the College of Policing to develop police guidance on existing powers, including those under the outraging public decency offence, to tackle some cases of upskirting. The Attorney General has also spoken with the Director of Public Prosecutions and the Crown Prosecution Service, making it clear that all cases involving upskirting need to be considered carefully.
The hon. Lady also asked about the two limbs. Charging decisions are matters for the CPS, which is very used to looking at the evidence to see what charge is most appropriate in the circumstances of the offence; the CPS will do the same here.
We had excellent speeches from my hon. Friend the Member for Cheltenham, who brought his experience of criminal law to identify the right balance on the decision about the sex offenders register, and from my hon. Friend the Member for Faversham and Mid Kent, who bravely described her experience when she was much younger.
We want the Act to be a deterrent, so that these vile practices are eradicated from our society. For that to happen, we just need some successful prosecutions. I think the debate is about how we can ensure that prosecutions are as tight and successful as possible. Then it will act as a deterrent and hopefully very few people will even go that way.
The hon. Lady makes an important point. In fact, her campaign and that of Gina Martin have done a significant amount to ensure that this offence, and now its potential illegality, has been brought to the attention of individuals and that they know about it. Often it is the fear of prosecution rather than prosecution itself that protects potential victims of crime.
Before I turn to the wider issues raised in the debate, I will touch on some points that have been made by various Members about the remit and ambit of the Bill. We have thought very hard about how the Bill should be put together, what the motivation should be, and when people should go on the sex offenders register. Some Members thought that motive should disappear, because it is the act and the victims we should focus on, not the perpetrator. It has been suggested to me that we should not need to prove motive, but reasonable justification. The concern with that is that a general principle of our law, particularly our criminal law, is that someone is innocent until proven guilty. To suggest that the prosecution should not have to prove motive, only reasonable justification, would reverse the burden of proof, putting it on the defendant, who is meant to be innocent until proved by the prosecution to be guilty.
In our system of law, the prosecution has to prove every element of the offence, and we say that should remain the case for this offence, too. The offence is criminal and serious, and the punishment we are proposing is serious. It is two years, with the requirement that in some circumstances people will go on the sex offenders register. We think it is appropriate in these circumstances that, as with other offences under criminal law, motivation is identified and proved.
Some Members suggested we should take a wider role in relation to the sex offenders register. We are concerned that we should strike the right balance between protecting victims and, where there are young offenders, protecting offenders. We need to strike a balance in terms of stigmatising them and putting them on the sex offenders register. They might need to be identified to the police as potential criminals for future sexual offences. We should not just expand the sex offenders register. Ultimately, if there were too many people on it, that would make it meaningless.
On the point about considering proportionality, is it not important to remember that if those on the sex offenders register fail to comply with its conditions, they can be guilty of an imprisonable offence? To go on the register is a serious matter.
My hon. Friend makes an important point. Going on the sex offenders register is a serious matter both with what it requires and if it is breached.
I want to touch on a number of points that my right hon. Friend the Member for Basingstoke made. She has done so much individually and through her Committee to champion a large number of issues and protect and help the lives of individuals, particularly women. Together with others, she has raised a number of issues that I would like to deal with. I reiterate that the Government continue to be alive to how new technologies are facilitating the degrading treatment of women and children on the internet, but we also need to be alive to the fact that some of the questions posed are difficult and not straightforward.
A question was asked about whether revenge porn should be a sexual offence, which would have two consequences: anonymity for the victim, and the perpetrator’s going on the sex offenders register. When the offence was first introduced, there was not universal support for it being a sexual offence. In informal consultations, victims did not universally ask for it to be a sexual offence. They often said that they just wanted images taken down. The Ministry of Justice took the views of more than 100 members of the public, many of whom had been victims of or knew victims of revenge porn. Very few suggested that they want it to be a sexual offence.
There are also unintended consequences and risks that would need to be considered. If we made such things a sexual offence, it would require notification. That gives rise to the point we are making about people being put on the sex offenders register when their intent was not sexual gratification, given all the consequences that come from being on the sex offenders register.
If we do not make these things a sexual offence, but instead just give anonymity to victims, we would be creating an inconsistency in the law. We would be extending automatic reporting restrictions—that is, putting people on the sex offenders register and giving people anonymity —to offences that are not sexual. How does that play out for other crimes where the same argument could be made that anonymity would be helpful for victims coming forward? For example, in cases of domestic violence, blackmail, or reckless transmission of HIV, more people might come forward if there was anonymity.
So, if we just say, “We’re creating an offence. We won’t make it a sex offence, because of the issue with the sex offenders register, but we will give you automatic anonymity”, the issue arises of whether we are making a special case of this offence, and whether the case should be the same for other offences that are also not sexual offences? Also, there can be reporting restrictions in any criminal case at the moment, even if someone does not have automatic anonymity.
The question of deepfake was raised. This is a real—
Before the Minister moves on, I just want to be really clear about something. Victims of upskirting will have anonymity, but she did not draw on the actions of the Government to give anonymity to victims of forced marriage or FGM. Why was it acceptable in those cases but not in the case of revenge pornography, for instance?
My right hon. Friend makes an important point. The offence being considered today is a sex offence; it is an amendment to the voyeurism Act and is therefore a sex offence. She highlighted the FGM provision on anonymity. However, the point I am making is that we can create exceptions to a rule, but we must acknowledge that they are exceptions, and once we create one exception, or two, the general rule starts to break down and we have to ask ourselves more, and difficult, and complicated questions.
My point is that this is not a straightforward discrete decision. The Bill is discrete; it addresses a gap in the law that needs to be filled. Many other Members are raising interesting points, but those points are complicated —they are complex—and they have implications for other offences and other laws.
I am sure that it was just a slip of the tongue, but does my hon. and learned Friend agree that this Bill is in fact amending the Sexual Offences Act 2003, rather than the voyeurism Act, hence the point she was making about this offence being a sexual offence?
I am always grateful for my learned junior’s assistance.
I will now move on to deepfake. Many Members have mentioned deepfake, which is a distressing act that can cause a victim to feel humiliated and can have significant consequences. Cases have been prosecuted in relation to deepfake. There is a case of a City worker who superimposed his colleague’s face on to porn websites and then told the woman’s boss in order to discredit her. He was convicted of harassment. Although there is not a specific offence in relation to deepfake, it is possible, if there is continued misconduct, for someone to be convicted under the law as it stands on harassment.
Other Members have mentioned the issue of sharing photographs and there are already—
My hon. and learned Friend says that an individual was convicted of harassment for superimposing a face on a pornographic image. I am not sure that she should be dissatisfied—I think she should be outraged and we should be doing something about it. This is not a problem in the future; it is a problem here and now. Should we not be acting?
Before the Minister replies, I remind everyone that that is not the central topic of today’s debate, so, important though it might be, we should not devote too much time to remarks on that subject.
Thank you, Ms Buck; I am very grateful. That is a key point that I want to reiterate: the Bill is about upskirting, where there is a clear gap in the law, and although there might be other serious issues whereby people feel victimised and humiliated, which we the Government take extremely seriously, there might be other offences—perhaps not specifically named appropriate offences for which one might be able to prosecute, but there are offences that exist—for which people can be prosecuted.
I was going to go on to the sharing of photographs, where there is some legislation, but given your point, Ms Buck, I will not go into that. I was also going to mention a few things, which my right hon. Friend the Member for Basingstoke quite rightly mentioned, about the importance of what we are doing in the non-legislative space. She was right to point out that DCMS is introducing compulsory religious education in primary schools, and sex and relationship education in secondary schools. The Government have provided £3 million for the Disrespect NoBody teenager relationship abuse campaign, which tries to educate teenagers about different types of abusive behaviour. As you have rightly mentioned, Ms Buck, this is not the time to go into the other issues.
The Government are supporting this Bill—I know it has cross-party support—because we want to fill a gap in the law. We are alive to how technology facilitates degrading acts, but we are determined here and now to get this Bill on to the statute book as quickly as possible. This has been an interesting and thought-provoking debate and I am grateful to everyone who has contributed. I think the consensus is that action should be taken to close this small but important gap in the law, so I commend the Bill to the Committee.
Question put and agreed to.
That the Committee recommends that the Voyeurism (Offences) (No. 2) Bill ought to be read a Second time.
Draft Social Workers Regulations 2018
The Committee consisted of the following Members:
Chair: Mark Pritchard
† Badenoch, Mrs Kemi (Saffron Walden) (Con)
† Benyon, Richard (Newbury) (Con)
† Brabin, Tracy (Batley and Spen) (Lab/Co-op)
† Eagle, Maria (Garston and Halewood) (Lab)
† Fletcher, Colleen (Coventry North East) (Lab)
† Howarth, Mr George (Knowsley) (Lab)
† Howell, John (Henley) (Con)
† McGinn, Conor (St Helens North) (Lab)
† Morton, Wendy (Aldridge-Brownhills) (Con)
† Pawsey, Mark (Rugby) (Con)
† Platt, Jo (Leigh) (Lab/Co-op)
† Slaughter, Andy (Hammersmith) (Lab)
† Vickers, Martin (Cleethorpes) (Con)
† Warburton, David (Somerton and Frome) (Con)
† Western, Matt (Warwick and Leamington) (Lab)
† Whittingdale, Mr John (Maldon) (Con)
† Zahawi, Nadhim (Parliamentary Under-Secretary of State for Education)
Kenneth Fox, Committee Clerk
† attended the Committee
Fourth Delegated Legislation Committee
Monday 2 July 2018
[Mark Pritchard in the Chair]
Draft Social Workers Regulations 2018
Before the Minister rises, it is rather warm in here, so if colleagues want to take off their jackets, they may do so.
I beg to move,
That the Committee has considered the draft Social Workers Regulations 2018.
It is an honour to serve under your chairmanship, Mr Pritchard. These regulations are crucial for delivering the Government’s social work reform agenda. At its heart, social work is a vital profession that promotes social change and individual and collective wellbeing, and that challenges social injustice. We are committed to do all we can to develop a strong and consistently effective social work profession that is well trained, competent and properly supported to transform the lives of the most vulnerable.
Establishing Social Work England, as provided for under the Children and Social Work Act 2017, as the new single profession regulator for social workers in England is vital to achieve our ambitions for the profession and for this country’s most vulnerable children and adults. Like the other health and social care regulators, Social Work England’s primary focus will be public protection, but we aim to enable it to operate streamlined, proportionate and efficient systems and processes. It needs to be able to adapt to emerging opportunities and challenges, and to promote best practice in social work. Providing for a specialist regulator that sets profession-specific standards will ensure that regulation reflects the changing reality of delivering social work practice safely and effectively.
Introducing these regulations signals another significant step forward in establishing Social Work England, although we have already made great strides in that respect. In March, we appointed Lord Patel of Bradford as its chair, and in June, we announced that Colum Conway had been appointed its chief executive. Those appointments bring significant experience in social work practice, education and regulation, and have been warmly welcomed by the sector. The momentum continues with recruitment for other senior posts and non-executive board members.
I want to pause for a moment to acknowledge the significant input from the social work sector, other professional regulators and hon. Members during the passage of the 2017 Act and in developing the regulations.
Does the Minister share the concern of many in the sector that by introducing that change through delegated rather than primary legislation, it is something of a power grab by the Secretary of State? We want a strong independent regulator that works with the sector; we do not want Whitehall to take control through the back door.
I eagerly disagree with that sentiment. As I hope to share with the Committee, professionals in the sector and many stakeholders support and applaud the steps we are taking to create the regulator.
In December 2016, we established the Social Work England advisory group, which has representatives from sector organisations, social workers, employers and, of course, service users. In October 2017, we established the regulator expert group, which brings together experts from the world of professional regulation to shape and challenge our thinking. Those groups have been invaluable in advising us on this complex task.
We consulted on the regulatory framework for Social Work England in February and March, and we received nearly 200 responses that were overwhelmingly in favour of our proposals, including 43 from sector and regulatory organisations. We also held 11 events to consult directly with social workers, education providers and interested parliamentarians. I welcome those contributions.
It is useful to hear the litany of events that have taken place to inform the policy making and regulations before us today. Will the Minister tell the Committee how the proposed changes will improve protection for the children most in danger because of their home circumstances?
The hon. Lady raises an important point. The new regulator will, as I hope to convince her today, improve the quality of outcomes for the most vulnerable children. This is not the only thing we are doing. As I have articulated, we are also making sure that through joint agency work locally, bringing together local government, police, education and social care, we will deliver the most robust safeguarding for children.
The valuable points raised during the consultations have helped to shape the draft regulations that we are discussing today. The 2017 Act establishes Social Work England. However, to operate as the regulator, Social Work England also needs a secondary legislative framework that sets out the framework for how its regulatory functions will operate. I have spoken about the importance of creating a modern regulatory framework for Social Work England. In this respect it is important to emphasise that these draft regulations draw on a range of evidence and recommendations, including those from the Law Commission’s review of health and social care regulation, the Professional Standards Authority’s “Right-touch reform” report, and the Government’s own reform proposals for healthcare regulation. The provisions demonstrate our use of the very best evidence to enable proportionate, targeted and efficient regulating, setting Social Work England at the forefront of modern regulatory standards.
An accurate, transparent register is crucial for effective registration, keeping the safety of the public at its core. We consulted on a range of provisions, including powers to register social workers with conditions; introduce English language controls; and annotate sanctions and additional qualifications, specialisms or accreditations. Attaching conditions is linked to the individual’s ability to meet eligibility criteria. The provision might be used effectively, for example, where a social worker has a time-limited health condition. Attaching conditions will allow continued registration while recognising that the individual might not meet the standards of health for a period of time. We are confident that that will enable the regulator to adopt a proportionate response to concerns and maximise retention in the workforce while protecting service users.
We have also provided for Social Work England to annotate additional qualifications and specialisms on the register. Recording post-qualification information will provide more transparent and meaningful information on the breadth and depth of a social worker’s skill levels to employers and the public. It will allow for the annotation of established, approved mental health professionals and best interest assessors’ roles, creating for the first time a national list of those qualified to carry out those roles. Better data on the scope of practice can also be used to support practice improvements and proportionate and targeted regulation.
Current fitness-to-practise outcomes will also be recorded on the register, which is also critical for public protection. Following the Law Commission’s recommendation, Social Work England will be able to annotate expired sanctions for specified periods. The regulations are clear that the power must be used proportionately, ensuring public protection while not unduly penalising registrants. Social Work England, in line with some of the other health and social care regulators, will introduce proportionate English language controls as a registration requirement. Proficiency in written and spoken English is fundamental to safely and effectively engaging with service users.
I will now turn to the provisions relating to the approval of social worker education and training. As many Members know, some high-profile incidents have seen the social work profession face greater scrutiny and challenge over the quality and capability of the workforce. The 2014 reviews by Sir Martin Narey and David Croisdale-Appleby found that too often, social workers are poorly trained and not ready for frontline practice. This is not good enough for social workers, and it is unacceptable for the children and adults who desperately need their help. I am confident that Social Work England will make a significant impact in this area by setting new profession-specific standards, and improving initial education training courses and qualifications for social workers.
Does the Minister agree that one of the issues faced by social workers is the high case load they have to deal with with their particular employer? Does he anticipate that these new regulations will include a limit on the number of cases that each social worker should have to take on?
Social workers are ultimately answerable not only to their employers, but to the young people and adults they serve in the work that they do. The level of cases has to be appropriate, but it is decided by the practice leaders and those professionals who work with them. I have discovered in my six months in the job that those social workers who perform at the highest quality are the ones that are the best supported. I have seen it in Hackney, Doncaster and other parts of the country, where the profession has been really effective by being supported well by its leadership and having the confidence to make those decisions that are crucial in safeguarding children, certainly in my area.
Maintaining the quality of professional education ensures that students meet the necessary standards for registration and public protection. That is crucial for both initial education and post-qualifying courses. Importantly, Social Work England will be required to reapprove courses over time, and be able to consult on and determine its own role in the post-qualification space. Legislative provisions allow the regulator to approve post-qualifying courses through existing approval processes set in regulations and rules.
An effective fitness-to-practise system is also critically important, both in public protection and public confidence in social work as a regulated profession. As the PSA has pointed out, existing fitness-to-practise systems can be expensive and overly adversarial. We have taken account of this and the PSA’s and Law Commission’s proposals for reform, by designing a more flexible and proportional fitness-to-practise system for Social Work England. This system ensures that investigatory and adjudicatory functions—it is a bit of a mouthful, Mr Pritchard—remain separate, while providing the regulator with new tools to deliver public protection more flexibly and efficiently. That includes streamlined approaches, such as automatic removal where registrants are convicted of serious criminal offences, such as rape or murder, and swifter processes where registrants have been convicted of criminal offences with custodial sentences.
Social Work England will also be able to resolve cases without a hearing where the registrant accepts the facts of the case and the outcome proposed by the regulator. The regulations make it clear that this can only be used where it is in the public interest and the registrant has provided explicit consent, thereby ensuring adequate safeguards. The PSA has been clear that it wants oversight of such cases and I am pleased to confirm that that will be provided as soon as a legislative vehicle can be found to amend the PSA’s primary legislation. We will also explore extending such oversight to other regulators operating similar accepted outcomes consensual disposal systems.
I want to provide reassurance about the role of the Secretary of State in relation to Social Work England. Social Work England is a separate legal entity in the form of a non-departmental public body, operating at arm’s length from Government. The Secretary of State will, therefore, necessarily have a role in two specific areas. The first is oversight of regulatory rules and powers in the event of default by the regulator in the performance of its functions. We have provided Social Work England with flexibility on how it makes those rules—the detailed procedures and requirements that set out how its functions will be carried out. That will allow Social Work England to change its operational processes efficiently. Rules will be subject to public consultation and to oversight by the Secretary of State. The flexible oversight procedure in the regulations, which has been refined drawing on feedback received through the consultation, provides for a 28-day review period for the Secretary of State. The rules come into force automatically if no objection is raised, or earlier if the Secretary of State agrees. Social Work England is also able to specify a later date to provide maximum implementation flexibility. The Secretary of State may also draw on independent advice from the PSA.
The Minister is being generous in giving way. Has he not just given an elegant description of the fact that the Secretary of State’s word will be final? If the Secretary of State wants any new regulations amended or modified, the regulator has to do it. The Minister talks of arm’s-length independence and the advisory role of the Secretary of State, but that is actually not the case, because the Secretary of State’s word is final and he or she can make the regulator do what he or she says.
Again, respectfully, I disagree because, as I hope I have demonstrated, we have taken on board the views of the Law Commission and the PSA and have consulted deeply to ensure that the new regulator is modern and meets the demands and requirements of the profession.
Many other professions, such as the legal profession, have regulators that are independent of the Government. The SWE is an NDPB. Is it not also the case that the Secretary of State will have power over the budget of this organisation, simply because it is an NDPB?
The hon. Lady raises an important point. The Government are funding the setting up of Social Work England, but we envisage that ultimately it will become self-financing and will not require Government funds to carry out its remit.
Default powers ensure that someone can intervene in cases of regulatory failure. That includes giving remedial directions and taking over functions where the regulator fails to comply with a remedial direction. The regulations clarify the Secretary of State’s role in that respect, established under the Children and Social Work Act, which was debated in this Parliament and voted for in this Parliament. They provide that the Secretary of State, or a person appointed by the Secretary of State, cannot make,
“a decision about whether to make, amend, remove or restore an entry in the register”.
That deals with any potential for political interference in decisions about the registration of an individual social worker. On a day-to-day basis, Social Work England will operate independent of Government. The oversight role of the PSA and the use of default powers only in the most serious circumstances of actual or likely failure to perform regulatory functions will ensure its continued independence.
I have thought of another question. I am very grateful to the Minister for giving way again—he is being incredibly generous. Can he give us an example of another NDPB that is technically under the remit of a Secretary of State but, in time, gets no budget whatever from the Department? I cannot think of another example. Can he?
As I said, the Government will be funding Social Work England and covering all its costs for set-up, but ultimately, in the long term, we expect it to be self-funding.
The communications regulator Ofcom is fully self-funded and does not receive any money from Government.
I am grateful for my right hon. Friend’s intervention.
Public protection is at the heart of everything Social Work England will do. We believe that our approach to developing a modern regulatory framework for Social Work England will ensure public confidence in the profession, as well as the best possible support for those who are most in need in our country. It is crucial that those registered as social workers in England can be trusted, are highly skilled and remain safe and effective in their practice. That is what changes lives.
I am extremely grateful for the wide range of people, including Members of this House, who have helped to bring us to this important stage in our ambition to establish a new specialist social work regulator. These regulations provide a framework that will allow Social Work England to operate a responsive and flexible model of professional regulation, placing it at the forefront of modernising health and social care regulations. Subject to their successful passage, we anticipate that Social Work England will become the regulator of social work in England in 2019.
It is a pleasure to serve under your chairmanship, Mr Pritchard. I believe this is the first Delegated Legislation Committee I have served on for about 15 years, so I intend to take full advantage of the opportunity that the Opposition Whips Office has presented me with.
I begin by echoing the Minister’s words that social workers make an important contribution. I fully acknowledge that he conceded that fact. All too often, particularly in some of the popular press, social workers are denigrated for the important professional work that they do. I concede that there have been examples where social services departments have let down individual vulnerable young people—the baby P case being the obvious one—but their work is depressing at times and they have to work in areas that most of us, even MPs, who are used to having difficult cases put on our desks, would find harrowing to deal with, including the neglect of young people or elderly people. It is right that the Minister acknowledges the important contribution social workers make, and that we, as Members of Parliament, do so too.
I have a number of concerns about the draft regulations. I will try not to go on too long, although on one occasion I did detain the House for two hours and 10 minutes. I do not intend to do the same today, because I know I would exhaust your patience, Mr Pritchard.
You have 67 minutes.
Yes, we do not have that much time anyway. I intend to be reasonably concise.
My first concern relates to regulation 3(4)(a) and (b), which states that
“the Secretary of State must notify the regulator accordingly”
if there are any concerns about proposals that it makes, and
“the regulator must modify the rules in light of the objection, but is not required to comply with paragraph (2)”.
I have difficulty with “modify” because it is a definite word and means that some action ought to follow. My hon. Friend the Member for St Helens North said that we all support the idea of a strong independent regulator that can take appropriate action without political interference, but if it is specifically asked to “modify” something, rather than, for example, “have regard to” or “consider” it, that is quite specific. I seek the Minister’s reassurance on that, because that wording could override the independence of the regulator. I am sure that that is not the intention, but it could be the effect.
The Minister referred to the consultation that took place in March and April. I have been able to confirm with Knowsley Council that that did take place and that the social workers and senior social workers in the local authority were consulted in the way that the Minister described. However, they expressed some concerns at the time that I am not entirely convinced the regulations properly reflect, so I will listen carefully to the Minister’s response.
The social workers were concerned about the separation of the investigation and adjudication functions, which I am sure the Minister will accept is an important separation. They were concerned about interim orders and about political interference, which comes back to the role and independence of the regulator. They also had concerns about what would and would not be a criminal offence and, finally, about the co-operation of Social Work England. I hope that the Minister is able to satisfy me on those points, which were raised at the time.
I am also indebted to the British Association of Social Workers, which briefed me and one or two colleagues on this matter. It has concerns about the role of the regulator and the need for it to be independent and strong, which the association, supported by many of us, has campaigned for over many years. It suggests replacing “modify” in the sub-paragraph I just referred to with “consider”. I know that the draft instrument is not amendable, but perhaps the Minister can assure us that, in such circumstances, the regulator’s actions will be more a matter of considering the Secretary of State’s objections, rather than definitely modifying the rules accordingly, which I am sure he accepts would undermine the independence from political interference that social workers in Knowsley and the British Association of Social Workers raised during the consultation.
There is also concern about the sole control of the continuous professional development of social workers. Because of the difficult, delicate and sometimes onerous issues that social workers are involved in, it is right that there should be regular and continuous professional development. The British Association of Social Workers wants a framework in which that can happen, but to do that, it is necessary to consult everybody involved in that process. For example, the 80 or so universities that deliver social work pre-qualification and post-qualification education need to be consulted on any changes to professional development. I cannot see any reference to that in the draft order; perhaps the Minister can help me. That is clearly hugely important, because if we are to get it right, it will not only be a matter of providing the appropriate regulatory framework, but the regulators should themselves consult those who will be charged with providing professional development.
The British Association of Social Workers England has also raised concerns about the process of annotation on the register of additional qualifications, the process of annotation for fitness to practise, the proposed process of automatic removal and the principle of accepted disposal. The association believes that a strong regulator, independent of Government interference, could carry out that role in a satisfactory and constructive way, but it also feels, with some justice, that if it is not strong and independent of Government, there is a danger that individual cases, or individual types of case, could become a political football between Ministers—not necessarily this Minister, but future Ministers—and the regulator.
A number of concerns need to be addressed, and my hon. Friends the Members for St Helens North and for Garston and Halewood highlighted some of theirs in interventions. I hope that the Minister can satisfy us all on those points, but at the moment I remain to be satisfied on any of them.
I am grateful to the right hon. Member for Knowsley for raising some important points, on which I hope to satisfy him.
On the question of a power grab, which I think was also raised by the Member for St Helens North, I am clear that the system needs to support every social worker to qualify to the highest standard and to continue to develop their skills and knowledge throughout their career, so that they can, in turn, support those in need. During the passage of the Children and Social Work Act, we heard about and recognised the importance of maintaining an appropriate distance between the regulator of social workers and, of course, Government. We have therefore changed the nature—
On a point of order, Mr Pritchard. I apologise to the Minister for interrupting, but is it correct that the Minister gets to reply now? He has introduced the regulations. Does he not reply to the whole debate at the end? When is my Front-Bench colleague going to get her speech? I have never been in a Committee where this has happened.
I am grateful to the hon. Lady, who has been here a long time. First, this is not a debate; this is a Committee. The Minister is replying to specific questions that have been raised. Then I was going to call the shadow Front-Bench spokesperson. This is a Committee, not a debate. If the shadow Minister wants to speak now, that is entirely up to her, but I understood that she was going to make a personal statement ahead of it anyway, so I was giving her a bit more time. It is entirely up to her.
I am happy for the shadow Minister to speak now.
I do not know whether the hon. Member for Garston and Halewood was aware of the conversation that I had with the shadow Front-Bench spokesperson earlier.
I was not.
Well, I am now going to ask the shadow Minister to speak. She might have wanted a little more time.
I am happy to speak now, Mr Pritchard, particularly because I also have questions. The Minister can then answer all the questions at the end.
Then I call the shadow Minister.
Thank you, Mr Pritchard. I begin by paying tribute to my hon. Friend the Member for South Shields, who has been a passionate and articulate lead for the Opposition on this statutory instrument. Unfortunately, she is unable to be with us today because of ill health. I hope that Members understand that many of the observations made and questions asked in this speech are hers.
I also thank my right hon. Friend the Member for Knowsley, who argued that the organisation needs to be strong and independent of Government, my hon. Friend the Member for St Helens North, who said that there is a need for a strong regulator that works across the sector, and my hon. Friend the Member for Garston and Halewood, whose interventions were, as always, incredibly astute and articulate. Certainly, we could do with a clear answer from the Minister about the challenges faced by social workers, such as high caseloads. I hope the he will also discuss the lack of a timeframe for SWE to become self-financing.
Overall, we welcome the creation of Social Work England, but much of the detail has been left out of the regulations, which makes it difficult to scrutinise them. The new regulator is required to make at least 90 rules, and there could be extensive debate on the most appropriate rule in each case. It is certainly an ambitious task. What is the proposed timeframe for making those new rules?
Regulation 3(2)(a) states that the regulator needs to carry out a public consultation before making the rules. Although we welcome that, I worry that the caveat in that regulation—that the regulator does not have to carry out a consultation if
“the regulator considers that the content of the proposed rules is such that it would be inappropriate or disproportionate to do so”—
will be misused. In the Government consultation, a majority of respondents thought that oversight should apply to all the rules. I am disappointed that that is not fully integrated in the legislation and that the loophole exists. Which of the 90 rules does the Minister anticipate the loophole being applied to? What reassurances can he offer that the loophole will not be misused by the regulator?
I seek clarification on how the representatives referenced in regulation 3(2)(b) will be chosen. It states that the regulator will choose
“any group of persons who the regulator considers are likely to be affected by the proposed rules”.
Although I welcome the inclusion of social workers, employers of social workers, users of the services of registered social workers and those involved in social work training, I worry about how those individuals will be chosen. These are rules that will affect social workers across the UK, so what is the process through which those individuals will be chosen? Will there be regional representation? Will there be an equal number from each job role?
I am glad that after scrutiny from myself—obviously not myself, but my hon. Friend the Member for South Shields—and the hard work of the Lords, the Government have moved away from making Social Work England an Executive agency of the Department for Education, but I still have questions about the Secretary of State’s role, because control seems to have been reintroduced through the back door. For example, under regulation 3(4)(b), the Secretary of State has the power to object to rules. It is disappointing that the Secretary of State will be given the final say on all rules, despite the efforts of myself, the sector and the Lords to ensure that the regulator is fully independent. Will the Minister say in what cases the Secretary of State anticipates using his power to object to rules? What is the purpose of introducing that control over the regulator?
During the passage of the 2017 Act, we campaigned hard on fees. I am pleased that the Government have clarified that they will cover the set-up costs and that there will be no increase in fees to social workers as a result of transfer. I welcome that commitment, because social workers struggle enough with low wages. A report by the Resolution Foundation said that real-terms pay for professionals in health and social care could be lower in 2020 than in 2005—a shocking statement. Social workers do not need higher registration fees to hinder them in their profession. None the less, new social workers who register after Social Work England has been created will have to pay fees. Like most of the content of the regulations, the fees will be decided by the regulator in consultation with the public and social workers. I have two concerns about that. First, it will be difficult to come to a decision regarding fees, which could significantly slow down the process of creating the regulator. Secondly, if registration fees increase, they may represent a real barrier to practice for social workers on already tight budgets. What assurances can the Minister give us that fees will be fair?
Regulation 9(3) states:
“The regulator may record any other information in the register it considers appropriate.”
Given that the basic necessary details about social workers will already be collected, what other information may be necessary? I note also that there is provision for deregistration where health conditions are undefined. The British Association of Social Workers held a meeting with some of its members, who expressed concern that that provision would be misused and is not specific enough. Does the Minister believe that it is compliant with the Equality Act 2010? What is the protection against misuse?
With others in the sector, I am glad that regulation 20 makes provision for sector-wide professional development. However, BASW expressed concern that there is apparently no requirement to consult or involve the 80-plus universities that deliver social work pre-qualification and post-qualification education and training, or employers, service user groups or the professional association for social workers. Why does that provision for the professional development of social workers does not include consultation with educators?
Transitional arrangements need to be put in place to protect social workers and, most importantly, the public, in particular with respect to fitness to practise. Unison has a solid plan for the transition from the Health and Care Professions Council to Social Work England, which outlines how a service level agreement between the HCPC and SWE would ensure a smooth transition period in which the HCPC retained responsibility for fitness to practise cases for an interim period of two to five years. That would give Social Work England time to set up its own fitness-to-practise process, and allow for meaningful consultation with the trade unions and staff in both organisations and for the creation of a structured plan to ensure a smooth transition. Does the Minister plan to consult Unison on the transition period? What assurances can he give us that social workers, employers and the public will be protected in that interim period?
Overall, I do not have a problem with the majority of the rules that Social Work England is creating, but like many in the sector I worry that it is over-ambitious, and there is no plan B. Can this be achieved in such a short time, while the chair and chief executive are in post but the board and the executive team are not?
I thank the hon. Member for Batley and Spen for stepping in at the last minute. I am sure that the whole Committee wishes the hon. Member for South Shields well and hopes that she returns to the House soon.
I am grateful to hon. Members for their comments and questions, and I will attempt to address them all. The hon. Member for St Helens North and the right hon. Member for Knowsley raised the separation between the Secretary of State and the independent regulator. I am clear that the system needs to support every social worker to qualify to the highest standard and to continue to develop their skills and knowledge throughout their career so that they, in turn, can support those in need. During the passage of the Children and Social Work Act, we heard and recognised the importance of maintaining an appropriate distance between the regulator of social workers and the Government. We have therefore changed the nature of the new regulator from an Executive agency to a separate legal entity in the form of a non-departmental public body, in line with the approach of the devolved Administrations.
On the point made by the right hon. Member for Knowsley, I believe the rule-making procedure meets the ambition for Social Work England to have a flexible model of professional regulation that can adapt swiftly to future developments and provide appropriate, proportionate, targeted and efficient regulation. That in turn will achieve better public protection and support the implementation of improvements within the profession. I hope that this helps the right hon. Gentleman: Social Work England will be required to consult publicly on all its rules, other than in cases of minor or technical changes. That will ensure that the sector, service users and the public can contribute their views.
It is useful that the Minister has explained the progression of the idea; that is helpful. Perhaps he is coming on to this; I do not know. My concern in relation to regulation 3(4)(b) is about the use of the word “modify” as distinct from, for example, “consider”, which seems to me much more appropriate than “modify”, because modify means change.
I have heard the right hon. Gentleman’s concern, but I think that where we are now, with the change to an arm’s length public body, is where we should be.
The right hon. Gentleman asked a very important question about fitness to practise. We want to ensure that the Social Work England fitness-to-practise system is transparent, accountable and, of course, consistent. That includes having a robust investigative process, a clear and transparent mechanism for hearings, a clear separation between investigation and adjudication—I know he is concerned about that—and a clear right of appeal for registrants. To achieve that, the draft regulations set out the essential elements of the fitness-to-practise decision-making framework. That covers determining which allegations meet the thresholds for undertaking investigations, which are set by the regulator in rules; investigating allegations that meet the threshold; deciding what action to take following the investigation; and a process for holding hearings where necessary. In addition, drawing on feedback received through the consultation exercise, we have strengthened the proposed regulations to make it even clearer that the investigation, case examination and adjudication functions are separate. In particular, we have responded to potential European convention on human rights concerns about the process for making interim orders, by ensuring that those can be made only by adjudicators, with a clear right to a hearing. That will, I believe, enable Social Work England to operate a fitness-to-practise system that is efficient, proportionate and robust.
The right hon. Gentleman spoke about the BASW’s concern about continuing professional development. Social Work England will be required to set its approval process for education and training in rules. All rules must be consulted on. Social Work England can, under regulation 20(7), use its approval scheme for post-qualification training approvals.
The hon. Member for St Helens North raised the issue of case loads. Professional regulation is central to the system of assurance that underpins public trust. Professional regulators are responsible for regulating individuals who are members of a particular profession, but it is for councils to ensure that social workers’ case loads are manageable. We are supporting them to consider how they can manage delivery so that resources are effectively utilised.
The hon. Members for Garston and Halewood and for Batley and Spen raised the important issue of fees. I want to be clear about that. Future fees will be a matter for Social Work England. I think the fee level, at £90 for social workers, is at the right place compared with that charged by the Nursing and Midwifery Council, which is about £120. We do not anticipate any fee increases before 2020.
We have also committed to ensuring that the set-up costs and the costs of transfer do not fall on social workers—the hon. Member for Batley and Spen was concerned about the smooth transfer to the new regulator. We have built in additional safeguards by requiring Social Work England to consult on any proposals to change the level of fees and to seek approval from the Secretary of State. The Children and Social Work Act provides further restrictions by explicitly preventing the regulator's fee income from exceeding its expenses, which will ensure that SWE cannot be a profit-making body.
I share the ambition of my predecessors and ministerial colleagues to achieve genuine and long-lasting positive change across the social work landscape. Social Work England as a single professional regulator is key to that. In establishing a new regulator, I believe we are rightly taking the opportunity to pioneer new approaches that will bring significant improvements to the way social workers are held to account, supported and recognised for the vital work they do, day in, day out, for the most vulnerable people in our society. The regulations provide a strong foundation for improved and effective regulation of social work in England, and I commend them to the Committee.
Question put and agreed to.
That the Committee has considered the draft Social Workers Regulations 2018.
I am sure the Committee wishes the hon. Member for South Shields a speedy recovery. I thank the shadow Minister for standing in for her so well.
Draft Renewables Obligation (Amendment) Order 2018
The Committee consisted of the following Members:
Chair: Phil Wilson
† Cadbury, Ruth (Brentford and Isleworth) (Lab)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Creasy, Stella (Walthamstow) (Lab/Co-op)
† Drax, Richard (South Dorset) (Con)
† Francois, Mr Mark (Rayleigh and Wickford) (Con)
† Grant, Mrs Helen (Maidstone and The Weald) (Con)
† Harris, Rebecca (Lord Commissioner of Her Majesty’s Treasury)
Hoey, Kate (Vauxhall) (Lab)
† Mak, Alan (Havant) (Con)
† Moore, Damien (Southport) (Con)
† O’Brien, Neil (Harborough) (Con)
† Perkins, Toby (Chesterfield) (Lab)
† Perry, Claire (Minister for Energy and Clean Growth)
Siddiq, Tulip (Hampstead and Kilburn) (Lab)
† Smith, Nick (Blaenau Gwent) (Lab)
† Swayne, Sir Desmond (New Forest West) (Con)
† Whitehead, Dr Alan (Southampton, Test) (Lab)
Nehal Bradley-Depani, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Monday 2 July 2018
[Phil Wilson in the Chair]
Draft Renewables Obligation (Amendment) Order 2018
I beg to move,
That the Committee has considered the draft Renewables Obligation (Amendment) Order 2018.
It is a pleasure to serve under your chairmanship on this lovely sunny evening, Mr Wilson.
The draft order would amend the Renewables Obligation Order 2015, which, as the Committee knows, provided the detailed legislative framework for the operation of the renewables obligation scheme in England and Wales. The order is designed to control the costs to consumers—something we all care about—of supporting unexpected generation under the renewables obligation from two types of generating station defined in the legislation: biomass conversion stations and co-firing stations.
Biomass conversion stations are former coal plants that have converted to run wholly on biomass. Co-firing stations combine a mixture of coal and biomass. The renewables obligation scheme has been the main financial mechanism to incentivise large-scale renewable electricity generation in the UK. The scheme has now closed to new biomass, co-firing and conversion projects, but existing projects will continue to receive support up to 2027.
Of course, the scheme does not provide cash payments to generators. It operates through a system of tradable renewables obligation certificates. Electricity suppliers have to present a certain number of certificates to Ofgem to support each megawatt-hour of electricity they have supplied to consumers. Ofgem issues RO certificates to generators relative to the renewable electricity they generate. Generators sell the certificates to energy suppliers or to traders as tradable commodities. It is assumed that the cost to electricity suppliers of complying with the regulation is passed on to consumers through their energy bills. The size of the obligation is set each year, based on the number of certificates expected to be issued.
The RO scheme has been highly successful in bringing forward renewable energy, and 25,000 stations across the UK now generate more than 65 TWh of renewable electricity a year, which is equivalent to about 22% of the UK electricity supply market. As to its contribution to decarbonisation, more than 28 million tonnes of carbon dioxide emissions were avoided in 2016-17 alone. However, we must of course keep energy bills as low as possible for consumers while we go through the transition, and since 2015 steps have been taken to control costs; but we need to do more.
It is our view that both co-firing and conversion stations have an important transitional role to play in decarbonising the grid, and they can generate at high levels more or less continuously. However, stations already accredited under the scheme can increase the amount of biomass they use quickly and without notification to Ofgem, which can, of course, significantly increase support costs. The Government acted in 2014 to discourage that deployment of new generating capacity by removing grandfathering rights for certain sorts of co-firing and biomass conversion generating stations. However, despite those changes, last year evidence suggested that there was significant unforecast generation, which is something we are keen to avoid. Indeed, we think that if we were not to intervene now, there would be an increase in bills of £2 per year per household. For business users, and particularly those with low electricity consumption, there would be increases of up to £140 per year, whereas the bills of energy-intensive industries would increase by up to £53,000 per year.
The reason the Committee is meeting tonight is to control those costs by implementing annual caps on the number of renewables obligation certificates that can be issued for non-grandfathered biomass co-firing or conversion generating stations or units. There are two sorts of stations to which caps will apply: capped and mixed. Capped stations comprise one or more capped combustion units only, which are not protected by grandfathering policy. That means, essentially, that there is a cap on the number of certificates that can be issued to the station in each obligation year, set at 125,000.
Mixed generating stations have both non-grandfathered capped units, and exempt grandfathered units. The order will set a flexible cap, first by estimating the number of certificates likely to be issued for generation at the exempt units. An allowance of 125,000 certificates will then be added for each of the station’s capped units. If generators choose to exceed their capped unit capacity, further certificates will be issued for generation only up to the level of the overall station caps. If generators decide to maximise generation at their exempt grandfathered units, there will be no restriction on the number of certificates issued, provided that the capped units remain within their allowance.
The order also makes some technical changes that are unconnected to biomass conversion and co-firing. For example, we are bringing certain combined heat and power stations into line with the existing requirements for other stations, and are requiring a declaration that double subsidies will not be claimed under other schemes. The order clarifies that existing greenhouse gas trajectories in the Renewables Obligation Order 2015 apply equally to electricity-only dedicated biomass power stations and biomass power stations with combined heat and power. The order will also clean up various typos, which do not have a material effect on the legislation.
The Government are committed to keeping energy bills as low as possible for consumers, while cutting greenhouse gas emissions and supporting economic growth. The cap mechanisms implemented through the order take into account feedback from stakeholders. They balance the interests of generators and consumers. The flexibility provided by this approach will allow units to generate more when electricity demand is highest. I commend the order to the Committee.
It is a pleasure to serve under your chairmanship, Mr Wilson.
As the Minister set out, the order essentially deals with a very narrow point of policy relating to biomass conversions and biomass production. It is about stations that have converted from coal to biomass and are receiving renewables obligation certificates—in other words, they converted before the ROC period came to an end. As the Minister said, there are no more stations in that category because, although the ROC programme is continuing for another nine years, it has been closed to new applicants since the arrival of contracts for difference on 31 March 2017. The order is about existing conversions that have an expectation of the number of ROCs they would receive as a result of their power generation. It contains a proposal to limit the number of those ROCs. As the impact assessment for the order states,
“The policy objectives are to protect the”
levy control framework
“and limit the costs to consumers of additional unforecast RO spend on biomass conversion and co-firing.”
The Minister made a customarily comprehensive case about the order’s purpose, but I am not sure it is likely to do what is says on the tin. Will it really protect the LCF and limit the costs to consumers of additional unforecast RO expenditure, as described in the impact assessment, the explanatory memorandum and the Minister’s statement? I ask that question because the order is founded on renewables obligation certificates, but it talks about the money potentially spent or saved in relation to the levy control framework. Those are not quite the same things, and I will try to shed a little light on why.
Renewables obligation certificates came into place in 2002. As we have mentioned, no new ROCs are issued now, but during the period of their life, they were created as a result of agreements that were set out with various renewable power plants to provide a varying number of ROCs per megawatt-hour of electricity produced. In that sense, they are a little like bitcoin, inasmuch as they have been mined, produced and then are in existence as a result of the activity of producing energy, but they have no value in themselves. They can obtain value as a result of being bought, as the Minister said, by bodies that are obligated by the ROC system to provide evidence that they have supplied a proportion of their output from renewable power.
Such bodies can do that in two ways. First, they can show at the settlement point a number of ROCs from their own generating activity that coincides with their obligation level—and if they do that, their obligation is met. On the other hand, if they have a shortfall, or do not generate any power from renewable sources, those suppliers would have to meet their obligation via another route, in one of two further ways. Either they pay a buyout price for their ROC shortfall—the price will be administratively set by Government at a substantially higher level than the likely traded prices of ROCs—or they purchase from the companies that have created the ROCs enough ROCs to meet their obligation level.
That, of course, is what gives ROCs their value and places money in the hands of the renewable generators who have invested money in their projects with the expectation that, in part, their project will be underwritten by the proceeds of ROC sales. However, a question then arises: what is likely to be the actual value of a ROC? It is that value that is paid by the supplier and that impacts on customer bills. It impacts on the levy control framework—that is, a controlled total for the amount that can be spent on underwriting for renewables over successive five-year periods. It is not money that is actually spent, because it is money that is effectively supplied by consumer bills. Of course, that is real money as far as consumer bills are concerned, but it is to be regarded as an imputed tax and spend by the Treasury, so it is as if extra taxation had been raised and then charged against the levy control framework. That levy control framework is the subject of the order, inasmuch as the Government’s imputed tax and spend within that framework has been running ahead of what that framework suggested it should be. Measures have therefore been taken to try to get it within the overall framework.
The next question that arises is whether the way in which ROCs are valued is easily coterminous with what it is the Government are trying to do about maintaining those levy control framework levels. This is the key bit. If the value of a ROC is high, that will result in more putative tax and spend, and hence more cost against the levy control framework. If the value is low, it results in some, but less, cost against the levy control framework.
How does that value rise and fall? Essentially it comes from two elements. First, there is the headroom that the Government have built into the system. That is the level of obligation suppliers have to meet. That is, or should be, adjusted to remain ahead of the supplier ROCs so that they retain value, and so that the generators are rewarded for their efforts. The headroom sits in the system and will have a central effect on ROCs’ values. That is, if the headroom is set very high—10% above the current level of the ROCs—then, with the obligation up to a relatively high percentage of the power supplied by a supplier, the ROCs will gain value, because people will chase more of them to cover their obligation requirement. If the headroom is reduced, the value of the ROCs drops. Furthermore, the more ROCs in the system, even within the obligation level framework, the easier it is for suppliers to obtain them to meet their obligations. In other words, if more ROCs chase a set amount of obligation space, the price will reduce.
How does that relate to what the draft statutory instrument seeks to do? It wants to cap the number of ROCs for particular plants operating biomass and bioliquid methods of producing electricity. That retrospectively alters the terms under which those companies undertook a build for biomass or a conversion to biomass of a plant that previously burned coal. Changing retrospectively the terms of scheme is exactly what caused the 2015 hiatus when the feed-in tariffs for solar were dropped. In this instance the situation is worse, because although dropping those FITs affected the development of new solar, it did not affect the remuneration of existing plants. The draft order seeks directly to affect the planned remuneration of existing plants by shifting the goalposts after agreement has been reached.
That is why a number of affected plants that had converted from coal to biomass told the consultation that the changes would make them—at least for the foreseeable future, and presumably until the Government outlaw coal from the system—produce electricity from coal and not from biomass, since the terms of the altered system are such that it will be economically less advantageous to generate power from biomass and economically more advantageous, relatively speaking, to produce power from coal, which I thought the Secretary of State was against. Indeed, the Minister and I have agreed considerably on the need to remove coal from the system. It would be a particularly perverse outcome of this instrument if we increased, rather than reduced, the amount of coal being used to produce power in the system over the next few years.
That, however, is the collateral damage, as it were, of a less than perfect measure. The Government tell us that the real effect of the cap on ROCs for those companies is that it will take the pressure off the levy control framework. The impact assessment explains at length just how much a cap will save. It suggests that doing nothing means expenditure of between £55 million and £320 million, whereas under this draft instrument the range is between £5 million and £20 million.
It will not, however, necessarily do that. Capping the number of ROCs that can be issued by plants would have a potential effect on the number of ROCs available for purchase. The effect would therefore be to increase the value of the ROCs that will be available. The amount of money paid out for them, which would be regarded as putative tax and spend, would go back into the levy control framework. That would not change the overall effect very much, although that depends on the proportion of the total amount of ROCs available and the plants affected, which the impact assessment does not address.
The fine and detailed calculations made in the impact assessment, which are in the SI and the explanatory memorandum, do not add up to a hill of beans unless done properly against what the countervailing effect of having fewer ROCs in the system would do to the overall cost to the levy control framework. I do not know what the exact effect would be, but it does not appear to have been well worked out. In principle, it possibly delivers the wrong mechanism—saving costs to the levy control framework as far as ROCs are concerned.
Far be it for me to advise the Government on what to do about the ROCs system, which undeniably through its trading mechanisms causes costs to consumers and the LCF total, but in terms of a mechanism that would have an effect on those costs it might be worth—
Will the hon. Gentleman accept an intervention that might provide him with some comfort and save us a bit of time? His suggestion is that if we had a totally free market with an infinite number of ROCs and a price-setting mechanism based on demand and supply, by capping the number of ROCs, prices will go up and the overall value will be the same. However, the obligation is set annually. Therefore, in effect, every year a certain number of ROCs are issued, taking into account that fewer ROCs in the system would have an impact on that level. The ratchet will come down based on there being fewer ROCs in the system. It is not a completely dynamic system—there is that annual setting of the absolute number.
I thank the Minister for that intervention. Unfortunately, the annual settlement for the amount of ROCs compared with headroom took place last October.
It happens every year—now until 2027.
Indeed, it happens every year, but the system will not rectify itself in any way until about one and a half years after the order is in place. Therefore, if ROCs are fewer in number and increase in value, the workings carried out may not have the effect that the Minister or the officials who drew them up think they will have, because of how those values relate to scarcity or abundance as far as possible purchases are concerned.
I was going to mention, as the Minister did, the headroom for ROCs. If one looked at the relationship of headroom to the number of ROCs in circulation, one would certainly see that having a depressing effect, but it would have a much wider effect on the whole of the market. As a result of our, I accept, quite lengthy expedition of how ROCs work, work against each other and may or may not work up to the levy control mechanism, does the Minister really think that the order will work as she has described? Given the lack of an assessment of a possible countervailing effect from a reduction in ROCs because of how the system works, might it not be a good idea to take that away and have another look at it, to see whether it will work as well as she thinks and whether any action on headroom figures might have an equal effect, as I have just described? The countervailing effects of the headroom recalculation might be worse than the proposed measure.
I am not drawing any conclusions. I am stating that it does not appear that all the factors relating to how ROCs work have been taken into account in the calculations. I would not like to see us pass legislation that does not do that properly and that possibly draws us into areas where we think we have done something about the system, but actually we have done something rather different.
I disagree with the hon. Gentleman. The information given to me suggests that the set level of ROCs already factors in cost control measures. The legislation cap takes into account the ROCs that have been issued since April 2018.
The hon. Gentleman is proposing a “do nothing” scenario where we would end up with higher bills and companies continuing to receive unexpectedly high returns from generation. We want to ensure that we achieve our renewables targets, which we can do with the system and a relentless focus on driving down consumer bills. We should not be afraid to say that a system put in place for all the right reasons has not delivered as we thought. Essentially, people will always game whatever system is in place.
I take the hon. Gentleman’s point about ensuring that there is not a policy hiatus, but there is none. We are proposing a sensible change that will stop unexpected levels of generation coming onstream, but the quid pro quo is that we have given the generators flexibility in how they treat their various plants. We have given them the ability to have a bit of management within their own system.
I accept the estimates of the likely savings—I am sorry that the hon. Gentleman does not, because my officials have done an excellent job with the analysis—and the costs that we will not see. It is an extra £1 or £2 for average household bills, an extra £80 to £140 for business users, and up to £53,000 for energy intensive industries, such as steel, ceramics and cement, which he and I know are extremely strategically important and have huge resonance in many of our constituencies.
I am, as always, interested to listen to the hon. Gentleman. I appreciate his detailed combing through of the small print of every SI, but in this case I do not accept that these numbers are wrong. I commend the order to the Committee.
2 July 2018
The Committee divided:
Question accordingly agreed to.View Details
Higher Education and Research Act 2017 (Cooperation and Information Sharing) Regulations 2018
The Committee consisted of the following Members:
Chair: James Gray
† Burden, Richard (Birmingham, Northfield) (Lab)
† Burghart, Alex (Brentwood and Ongar) (Con)
Coffey, Ann (Stockport) (Lab)
† Davies, Mims (Eastleigh) (Con)
† Elliott, Julie (Sunderland Central) (Lab)
† Fletcher, Colleen (Coventry North East) (Lab)
† Gyimah, Mr Sam (Minister for Universities, Science, Research and Innovation)
† Hoare, Simon (North Dorset) (Con)
† Letwin, Sir Oliver (West Dorset) (Con)
† Marsden, Gordon (Blackpool South) (Lab)
† Masterton, Paul (East Renfrewshire) (Con)
Platt, Jo (Leigh) (Lab/Co-op)
† Rowley, Lee (North East Derbyshire) (Con)
† Smith, Owen (Pontypridd) (Lab)
† Syms, Sir Robert (Poole) (Con)
† Wilson, Phil (Sedgefield) (Lab)
† Wragg, Mr William (Hazel Grove) (Con)
Jack Dent, Committee Clerk
† attended the Committee
First Delegated Legislation Committee
Monday 2 July 2018
[James Gray in the Chair]
Higher Education and Research Act 2017 (Cooperation and Information Sharing) Regulations 2018
On a point of order, Mr Gray. May we take our jackets off, please?
Contrary to my normal practice—I am a small “c” conservative about this—I will reluctantly allow gentlemen to remove their jackets, if they wish.
I beg to move,
That the Committee has considered the Higher Education and Research Act 2017 (Cooperation and Information Sharing) Regulations 2018 (S.I. 2018, No. 607).
It is a great pleasure to serve under your chairmanship, Mr Gray. Thank you for your radical innovation, although I will keep my jacket on out of respect for the Chair.
I welcome the opportunity for the Committee finally to discuss the regulations, because, as may be apparent in what I say, they have caused considerable concern in respect of student protections and in particular the way in which they rather blithely appear to allow the sharing of private data, particularly with private companies. That is not easily explained by the so-called explanatory memorandum, although I await enlightenment from the Minister, and the purposes for which the data may be used remain rather open and vague.
Last autumn, the then Minister for Digital and the Creative Industries, who is now the Secretary of State for Digital, Culture, Media and Sport, spoke about the importance of giving the public more control over their data under new UK data protection laws, with the introduction of the Data Protection Bill. However, the lack of transparency in the regulations does not indicate that that was even considered, at least in spirit, by the Department for Education, or indeed the Universities Minister, who is here to respond.
Just weeks after the Government made a fanfare about the new Data Protection Act 2018, which was supposed to give people more control over their data and how it is used, they are passing regulations into law that could ride roughshod over students’ data rights. The regulations were to have been rushed through Parliament in three weeks—including the Whitsun recess—under the negative procedure. In fact, this statutory instrument came into effect without scrutiny, which is not uncommon in this House, but on the whole ought to be avoided, particularly in such sensitive areas. Only when the Opposition tabled an early-day motion to pray against the regulations and the shadow Leader of the House, my hon. Friend the Member for Walsall South (Valerie Vaz) raised the matter at business questions did we finally get this debate.
It is disappointing that the Government tried to force the regulations through using the negative procedure, because as paragraph 7.1 of the explanatory memorandum confirms:
“The enabling legislation for HEFCE did not restrict cooperation or information sharing in the same way as the Act does for the OfS.”
Given that the Office for Students will operate a very different structure from the Higher Education Funding Council for England, why did we not have an automatic right to debate the regulations?
On 13 October 2016, at the 12th sitting of the Higher Education and Research Bill Committee, my hon. Friend the Member for City of Durham (Dr Blackman-Woods) and I raised significant concerns about how students’ personal data might be handled under the new structures. In discussing what at the time were clauses 71 and 72, I said:
“these clauses would give the state access to all university applicants’ full data in perpetuity, for users who would only be defined as ‘researchers’ and without ‘research’ being defined at all; that might be capable of being changed under the direction of the Secretary of State. Therefore”—
this is the generic point that I wish to address in the context of the regulations—
“there are significant concerns that the safeguards need to be stronger to ensure that the clauses are not misused by others and that scope changes are not made in the future.”
I went on to say that, under those proposals,
“there is a possibility that the entire nation’s education data from the age of two to 19 could be joined to university data, which of course is then joined to Her Majesty’s Revenue and Customs”,
and so on.—[Official Report, Higher Education and Research Public Bill Committee, 13 October 2016; c. 455.]
I also said during that sitting that this is a complex and difficult area, but if there are genuine, legitimate concerns, the precautionary principle should generally apply. I still hold to that principle. However, the Government are underpinning the regulations without that automatic assessment. They are passing the regulations seemingly without doing a data protection impact assessment or a human rights assessment, which would have considered privacy. Will the Minister confirm that the regulations will go through a privacy impact assessment and an assessment of their impact on human rights, and if not, why not?
Our questions over the regulations are particularly important in the current climate, in which the public have high concerns around personal data exploitation by large companies and publicly produced assets being passed into commercial hands. The lack of limitation in the type of data that may be shared under the regulations runs contrary to what 37,000 students told a UCAS survey in 2015. Applicants’ responses showed an overwhelming preference for remaining in direct control of their personal data, with 90% agreeing—more than 20 times the number who disagreed—that they should be asked in some shape or form before their personal data was provided. That number is likely to have increased in the time since the survey, given that concerns about data sharing have been spread more widely across the mainstream media. It is therefore no wonder that the vice-president of higher education at the National Union of Students, Amatey Doku, has expressed his concern that
“a decision for OfS to share students’ data with third parties was being snuck through parliament.”
We now have the opportunity to look at what is actually being said. In that context, part 5 of the Digital Economy Act 2017 removed horizontal data-sharing safeguards between Government Departments or bodies, meaning that, once students’ data has been provided, via the course provider, to Pearson or the OFS—both are named in the regulations—that data may be shared with any number of other bodies. How is a student or staff member supposed to be able to understand where their personal data has been processed? Under the general data protection regulation and the new Data Protection Act 2018, what is it within their rights to know? I would be grateful if the Minister could explain that relatively briefly and, if he cannot, perhaps he will write to members of the Committee.
It is to the Minister’s credit that he has made a great play of being the Minister for students since he came into post. He went on a listening tour of universities—
It is ongoing.
I apologise. I look forward to further details of the Minister’s travels through the summer and into the autumn. However, the point is well made. The Minister has been on that listening tour and has said that he wants to engage with students about all their concerns, yet he has failed to engage with one of their concerns—student data protection, as I have just described —when arguably the effect of the regulations will be to leave that data open to exploitation. The Committee needs proper and clear assurances on that.
In view of those concerns, I tabled a series of written questions on the implications of the regulations last week, even before the Committee had been scheduled. The Minister replied that section 63 of the Higher Education and Research Act 2017, to which the regulations refer,
“does not place limitations on the type of information that may be provided, and therefore it could include personal data.”
That is extremely concerning and has the potential to be misused. The response went on to say:
“These regulations allow data sharing, they do not oblige it. In practice, the OfS considers that it is unlikely that personal data would routinely be shared with non-government bodies under these regulations. They are in place for circumstances where the OfS or the organisation has identified serious concerns (such as fraud or malpractice) by a provider or its students.”
The particular examples that were listed are reasonable, but frankly that is not enough to ensure that the general principle holds. It is not adequate to say, “As you were.” This is a new organisation that is still finding its feet and it is not operating to HEFCE criteria, as the explanatory memorandum explains and as the Minister’s predecessor, the hon. Member for Orpington (Joseph Johnson), was at pains to emphasise throughout the passage of the Bill. Safer and stronger safeguards are needed.
I was also disappointed at the answer the Minister gave to a further question I asked about whether his Department had consulted universities, student bodies or UCAS on the powers relating to confidential data that are conferred under the regulations. Despite my being quite specific in that question, the Minister and his civil servants—who presumably drafted the answer—failed to answer it. They responded:
“Policy officials have worked closely with colleagues in the Office for Students (OfS) to determine what historical, and new, information sharing requirements may be required to ensure the OfS can do its job well, including protecting the interest of students and taxpayers. Officials and Ministers have regular meetings and interactions with universities and student bodies, and work closely with UCAS.”
Observant members of the Committee will note that there is no causal relationship between that last sentence and the previous one. I hope my concerns are unjustified and that I am being ungenerous on this occasion, but will the Minister let me know if his Department specifically consulted UCAS or the NUS on the issues in the statutory instrument before passing it?
When the Minister was made aware—if, indeed, he was made aware—of the strong concerns and sentiments about student data, he could have instructed his officials to redraft the statutory instrument to list the specific types of information that may be shared with each organisation listed. What specific guarantees is he prepared to give now—or in writing to the Committee, if he wishes—to assuage the strong legitimate concerns about this process? Surely the processes and purposes should be explicit, necessary and proportionate, and should have regard to the capacity of the organisation. For example, Pearson is a provider of higher national certificate and higher national diploma exams. It should be specified why the weights and measures body will receive information and what information it may receive. The Student Loans Company and HMRC are also named in the schedule as relevant persons to receive this data. Similarly, it should be set out explicitly why that is a necessity. Can the Minister assure us that the data will be used for narrowly administrative purposes, or will it be available for other uses?
As the responses to my written questions also noted, the collaboration agreements have not yet been published. Will the Minister tell us when they are likely to be published? There seem to be no plans to publish the data-sharing agreements, as was confirmed in the answer to written question 156351. Why is that the case? The crux of the matter is that it should be fundamental to transparency that if there are no commercial consequences of the statutory instrument—as I understand officials have tried to reassure people—the Government do not have the usual excuse or option of praying in aid commercial confidentiality to conceal the agreement.
As the organisers of the lobby group DefendDigitalMe said prior to this Committee, data-sharing agreements made in secret with the Department for Education do not have a recent good track record. The data-sharing agreements that were made secret in July 2015 were discovered only by civil society campaigners, who had to fight for their release for six months. They revealed the monthly arrangement that still continues—the sharing of children’s names, home addresses, gender and dates of birth for the purposes of immigration enforcement and specifically to support the hostile environment. I say that not to imply that the regulations will be used in any shape or form for those purposes, but it demonstrates why there should be a low level of trust in how Departments use such personal data.
Despite the Information Commissioner having told the DFE that collecting governors’ nationality data, which began in 2016, was excessive, that it should respect the data protection principles of necessity and proportionality, and that it should end that collection, it continues to do so. I am obliged, therefore, to ask the Minister whether he or his Department has spoken to the Information Commissioner’s Office about the requirements for the regulator in respect of the types of data that may be shared through the regulations. If he has not, will he do so very soon so that the implications for all students can be known?
To preserve public and professional trust, the use of personal data from the sector must be transparent and safe, and alert to the future. We must prevent third-party prescribed persons from being exploited by mission creep by Government Departments, without any reference to safeguards. The powers in the information duties of section 64 of the 2017 Act permit the bodies to share data with the Government, and explicitly with the Secretary of State for Education. Will data be passed from Pearson, for example, to other Departments, and if so, which ones? What are the boundaries of the information? That should surely be set out in legislation. If the safeguards are not on a statutory footing, there is limited value in any assurance, whether from this Minister or any other Minister, that the use of potentially named records will not be changed at the whim of policy or by a future Government.
It is unclear whether what the Department is doing is necessary to create a new and very broad legal basis for the purposes of data sharing—compared with, say, a contract—or whether it is seeking to legitimise existing data-sharing practices around the denial of funding, which may previously have avoided scrutiny.
The other concern raised with us by DefendDigitalMe, a non-partisan data privacy and digital rights group led by parents and teachers, is that the track record in the US of Pearson, one of the organisations to which this information will be supplied, has included selling student data as part of company assets. Such data could be used in predictive tools to exclude certain students from certain UK institutions and courses, or unduly to influence applicants’ decision making and choices, based on Pearson’s corporate values and view of the world. That might not be a view that I or the Minister share, but it is a legitimate concern to raise.
People in third-party organisations and in the Government change and move on. What is left standing, however, is the legisation. How the information is used will depend not on what is said, but on what the legislation says. This knowledge could potentially give unprecedented commercial access to confidential student data, and with it knowledge of the potential access routes into education, course content, and completion and destination data. If that happens, it could constitute preferential treatment and give enormous commercial and competitive advantage over other companies. How will the Government prevent that in practice, having passed this statutory instrument, now and in the future? Why have other bodies not been afforded the same privilege?
Pearson has suggested that it will share personal data with the OFS when its stakeholders have identified red flags or serious concerns, such as fraud or malpractice by a provider or its students. That data sharing is from Pearson to the OFS. Why is a data-sharing agreement necessary and proportionate for that purpose?
I also have severe concerns about sharing data with the Student Loans Company, after its well-publicised problems in the past year. While I appreciate that there is a need for it in certain extreme circumstances where there is potential fraudulent activity, there are significant worries about its capability appropriately to handle this data. I think it is legitimate for us to raise continuing concerns about its capacity to handle further responsibility in the context of this statutory instrument.
The Minister will be well aware that the Student Loans Company has recently been subjected to a scathing report by the National Audit Office on its organisational and management failings. As far as I am aware, the Student Loans Company, despite the allegations about the management and leadership of the previous chief executive, whose contract was terminated, still does not have a permanent chief executive. Will the Minister update us on the recruitment process?
The lack of proper co-operation between the SLC and HMRC has also led to significant overpayments of debts by students. That is part of an ongoing trend in which the amount being overpaid by graduates increases year on year. The Student Loans Company also left a number of student nurses in a difficult financial situation earlier this year. I make all these points, Mr Gray, because they reflect strongly on whether the safeguards in the statutory instrument are appropriate to all the various organisations. What guarantees can the Minister give the Committee about this process?
We do not intend to oppose the regulations, because we understand that there are aspects of them that simply cannot be brought to a halt, but we have grave misgivings about the way in which they have been presented and the rather cavalier way in which assurances have been given. We look to the Minister to come back with significant assurances, either today or subsequently. My final question to him is whether there is any proposal to review the effectiveness or otherwise of the regulations. I would have preferred it if there had been a sunset clause in the regulations, but we do not have the ability to insert one.
It is a pleasure to serve under your chairmanship, Mr Gray, and to avail myself of your dispensation to take off my jacket. I welcome the opportunity to discuss these regulations and the important issue of how and why the OFS may share information with other organisations. I note the concerns that have been raised, but I hope to reassure hon. Members as I go through my speech.
First, I will set out why these regulations are needed and how they will benefit students and taxpayers. The regulations will allow the OFS to do its job well. They replicate, and in some cases improve on, the arrangements that HEFCE and the Office for Fair Access had in place. In fact, the Higher Education and Research Act 2017 and these regulations provide greater protection, with more scrutiny, control and transparency over information sharing than before, as the enabling legislation for HEFCE and OFFA did not place controls on co-operation and information sharing in the same way that HERA does for the OFS.
These regulations are firmly in the students’ interest. They enable information to be shared in order to allow the OFS to prevent potential wrongdoing, address quality concerns and deal appropriately with concerns about the management and governance of higher education providers. They also allow the OFS to address concerns about students’ experiences of higher education. I am sure hon. Members will agree that those are all important things for the OFS to do—things it would not be able to do properly if these regulations were not put in place. I am sure they will also agree that the OFS should be able to look into suspected fraud. These regulations enable it to do so by sharing information with the Student Loans Company. I am also sure everyone will agree that the OFS should be able to engage appropriately on concerns about the treatment of students, for example by alerting the Office of the Independent Adjudicator to systemic issues, to inform its work dealing with individual complaints. I could continue with that list.
These regulations allow the right bodies to address the right issues. For example, they allow HMRC to investigate suspicions of inappropriate tax exemption claims, the Competition and Markets Authority to examine issues relating to competition law, and the Charity Commission to respond to potential breaches of charity law. They also enable the OFS to work with other bodies to improve data quality and to promote co-operation and collaborative working practices, all of which will ultimately improve the running and functioning of the higher education sector in the interest of students.
It is important to note that the regulations do not oblige the OFS to share information. It has been said today, and has recently been assumed in the media, that the regulations will somehow open the floodgates to the immediate sharing of large quantities of personal data. However, I emphasise that the regulations do not oblige the OFS to share any information or to co-operate with any of the bodies named in the regulations; they simply make doing so possible, where appropriate. It will be for the OFS, or the Secretary of State in some cases, to decide when to do so. Such decisions must be made in the context of the general duties and functions of the OFS, as set out in primary legislation.
Furthermore, although the information shared could be at provider, course or student level, in practice it will usually be at provider or course level. Any data would be shared only in particular circumstances—where there was a particular concern and for a particular purpose—and with strong protections in place. In fact, privacy was a key theme of the speech made by the hon. Member for Blackpool South, as was how the OFS will ensure that data is used for its intended purpose. These are clearly important considerations, and I reassure Members that there will be strong protections in place regarding data sharing. For example, any information sharing will be subject to strict data protection laws governing its use.
In fact, the primary legislation makes it absolutely clear that data protection laws must be complied with when sharing any personal data. The regulations do nothing to undermine the requirements of the new general data protection regulation, with which the OFS and the bodies it co-operates with will be required to comply. The OFS will publish online its collaboration agreements with other bodies, and will state where data-sharing agreements are in place.
The OFS might need to share information with another body as part of a joint investigation. In such cases, the OFS will also create a bespoke data-sharing agreement that will state what data will be shared—about whom and for what purpose—and how it will be processed and kept secure. The OFS will only ever share data with precisely those who need to see it, and will only ever share with them precisely what they need to see to resolve a particular issue. In addition, the OFS will always consider whether a data privacy impact assessment is needed, and will carry one out where appropriate before any information sharing that could impact on personal privacy.
The sharing of personal data with private companies has been mentioned. For clarity, the only for-profit company specified in the regulations is Pearson, which is included because it awards HND and HNC qualifications and for no other reason. I reassure the Committee that the OFS will only share information with Pearson if it had concerns about a provider of HNDs and HNCs. The OFS will not share information with Pearson for any other reason, and it will certainly not share personal data with Pearson for Pearson’s profit. As I have already mentioned, any such data sharing will be underpinned by a bespoke, GDPR-compliant data-sharing agreement, to ensure that the data is used for its intended purposes. The OFS will take very seriously its responsibility to protect data privacy.
Several other questions have been asked, notably on the progress of recruiting a new chief executive of the Student Loans Company. The recruitment process for a permanent chief executive officer is almost complete, with an announcement expected in the coming weeks. On communicating with the Information Commissioner about the types of data that will be shared, it will be for the OFS—when it is clear what types of data might be shared—to comply with its duties under GDPR, which may involve conversations with the Information Commissioner as appropriate.
We are all concerned about transparency. As I have said, the regulations provide greater scrutiny, control and transparency than previously. It is good practice under GDPR that when personal data is shared, the OFS will go through everything—from the nature, scope, context and purpose of the sharing, to any risk and the mitigation of those factors. That will be done.
On students’ right to know, the OFS will tell them before it shares data, where appropriate. It may not do so when concerns regard an investigation of wrongdoing, as that may jeopardise that investigation. It is, however, much more likely that data shared will be at provider or course level. No specific contact was made with UCAS and the NUS, but the OFS regulatory framework consultation asked the sector for views on the principles of how the OFS engages with other bodies, and officials and Ministers—including me—have regular meetings and interactions with both bodies.
I hope the Committee will be reassured by those points. I welcome the continued interest in scrutiny of our higher education reforms and policy. This debate has focused on the regulations and raised important issues regarding what, when, why and how the OFS shares data with others. I hope I have reassured the Committee that that will be done carefully, with strong privacy protections in place, and that data will be used only for its intended purposes.
The regulations are essential to allow the OFS to do its job well, in the interests of students. They will ensure that it can work appropriately with others to address any concerns about quality, student experience and the management and governance of our higher education system. I hope, therefore, that the Committee agrees that the regulations are ultimately to the benefit of students and our university system as a whole.
I thank the Minister for giving those details and the courteous way in which he addressed my concerns. He says, perfectly reasonably, that the regulations will allow the OFS to do its job well and to give firmer, greater protections. The Opposition would not argue with that in any shape or form. However, the devil is in the detail and there is still a question mark over how effective the OFS will be in progressing these matters. Only time will tell. To say that the OFS is “not obliged” to share leaves a very grey area. After all, on the whole, legislation is supposed to be based on the principle of what might go wrong, rather than that of what might go right, and it should at least give clear, strong safeguards. There is some way to go in that respect.
It was good to hear the Minister’s assurance that information sharing will be subject to data protection laws and, indeed, the general data protection agreements with which we have all been grappling in recent weeks. They came into effect in May, whereas the Act to which the statutory instrument applies was set in place 18 months ago or more, so it remains perfectly legitimate to scrutinise the extent to which that Act is consonant with those provisions.
I hope that the Minister’s comments about HND and HNC qualifications with Pearson will be of some comfort to those concerned. He said there has been no specific contact with the OFS and UCAS, which I still think is an omission. He also said that it is for the OFS to discuss such matters with the Information Commissioner as and when it embarks on the process, but that would be a little late in the day. Given the importance of the issue and the way in which it will develop, not least with the expansion of the digital transmission of data, I would have thought it important that his departmental officials should, at least at some point, have had conversations with the Information Commissioner. I may take that up separately with the Information Commissioner.
I still believe that the privacy impact assessment should have assessed human rights and that the issue will require considerable scrutiny. Of course, that will have to be applied by other Committees of the House, not this one. With those words, I confirm that we will not oppose the measure.
Question put and agreed to.
That the Committee has considered the Higher Education and Research Act 2017 (Cooperation and Information Sharing) Regulations 2018 (S.I. 2018, No. 607).