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General Committees

Debated on Tuesday 13 December 2022

Delegated Legislation Committee

Draft Conformity Assessment (Mutual Recognition Agreements) (Amendment) Regulations 2022

The Committee consisted of the following Members:

Chair: Derek Twigg

† Carter, Andy (Warrington South) (Con)

† Evans, Dr Luke (Bosworth) (Con)

† Gideon, Jo (Stoke-on-Trent Central) (Con)

† Hollinrake, Kevin (Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy)

† Hunt, Tom (Ipswich) (Con)

† Levy, Ian (Blyth Valley) (Con)

† Lewis, Clive (Norwich South) (Lab)

† Linden, David (Glasgow East) (SNP)

† McDonald, Andy (Middlesbrough) (Lab)

† Malhotra, Seema (Feltham and Heston) (Lab/Co-op)

† Moore, Damien (Southport) (Con)

† Morden, Jessica (Newport East) (Lab)

† Morrissey, Joy (Beaconsfield) (Con)

Russell-Moyle, Lloyd (Brighton, Kemptown) (Lab/Co-op)

Sambrook, Gary (Birmingham, Northfield) (Con)

† Whittome, Nadia (Nottingham East) (Lab)

† Wright, Sir Jeremy (Kenilworth and Southam) (Con)

Stella-Maria Gabriel, Committee Clerk

† attended the Committee

Eighth Delegated Legislation Committee

Tuesday 13 December 2022

[Derek Twigg in the Chair]

Draft Conformity Assessment (Mutual Recognition Agreements) (Amendment) Regulations 2022

I beg to move,

That the Committee has considered the draft Conformity Assessment (Mutual Recognition Agreements) (Amendment) Regulations 2022.

It is a pleasure to serve with you in the Chair, Mr Twigg. The regulations were laid before the House on 21 November 2022 and implement a trade agreement with Switzerland, a country with which the UK has strong economic and historical ties. Switzerland is the UK’s 10th largest trading partner and our bilateral trade in goods was worth £38 billion in 2021. Members will appreciate the importance of supporting such international trade relationships while protecting our product safety and legal metrology system, which is among the strongest in the world.

The UK signed the mutual recognition agreement with Switzerland on 17 November 2022 to reduce technical barriers to trade related to conformity assessment. The MRA promotes trade in goods between the UK and Switzerland by helping businesses to simplify their conformity assessment arrangements. Product safety legislation in the UK and Switzerland—indeed, in most countries—often requires products to be assessed against minimum essential requirements, sometimes by a conformity assessment body, or CAB, external to the business. MRAs can reduce barriers by allowing the conformity assessment to be undertaken by a body based in the UK prior to export to the relevant country, which in this case is Switzerland. Likewise, they enable procedures carried out by recognised overseas CABs and appointed bodies to be recognised in respect of our domestic regulations.

The products in scope of the MRA cover many areas, from rules on noise-emitting equipment for use outdoors to measuring instruments and much in between. For example, if a small UK business that manufactures potentially noisy outdoor equipment such as lawnmowers is considering exporting that equipment to Switzerland, it might find it can get all its advice and approvals from a single UK-based CAB. If that means the business reduces its costs, it can of course pass that saving on to its customers.

Will the Minister clarify whether the MRA will make any difference for the five sectors to which it applies or in effect continues the temporary arrangements we currently have for those sectors with the Swiss?

It makes a difference in that it makes the arrangements permanent. We have a three-year deal; the MRA makes the temporary arrangements permanent and formalises the UK-Switzerland relationship in terms of conformity assessment bodies.

I understand that the MRA may make temporary arrangements permanent but I am trying to understand whether anything is different under it for the five sectors to which it applies. Will anything affect businesses that are currently trading under the temporary arrangements for products that they export to Switzerland? Or does the MRA in effect continue the current temporary arrangements, even it makes them permanent?

As I understand it, nothing is different, but I will check with my officials and come back to the hon. Lady before the end of the debate.

The outdoor equipment manufacturer I referred to will be able to continue to access international markets more easily when assessment is facilitated in the way I described, thereby increasing its exporting potential and customer choice. The MRA benefits that the UK experienced for years as an EU member are maintained through the provisions of the new MRA with Switzerland.

The statutory instrument we are considering implements the MRA by amending an earlier set of regulations made last year: the Conformity Assessment (Mutual Recognition Agreements) and Weights and Measures (Intoxicating Liquor) (Amendment) Regulations 2021.

The Minister is explaining to us that this is putting the UK and Switzerland in the same position as now, making a temporary arrangement permanent. On a point of clarification, is there any differential between the relationship with Switzerland on those matters, as compared with that with the rest of the EU? Is there any difference or are similar arrangements being made?

The rest of the EU uses the CE mark. If we want to export products to the EU, we use the CE mark. That is a European certification process. These are relationships simply between the UK and Switzerland, not with the rest of the European Union. We have a separate arrangement for that.

The 2021 regulations are amended by the instrument we are considering so that they are also included in the Swiss MRA. I will return briefly to that point when discussing the territorial scope and the specifics of the regulations.

I will now consider each of the areas in greater detail. For goods coming into the UK that are in the scope of the MRA, we have committed to recognising the results of conformity assessment procedures carried out by recognised Swiss CABs and appointed bodies against our domestic regulations. The statutory instrument makes clear that assessments carried out by a recognised body based in Switzerland should be treated as equivalent to those carried out by a UK-approved or appointed body when products are placed on the market in Great Britain.

It is important to be clear about where there is simply continuity rather than giving the impression of something new happening. To clarify, the SI means continuity of importing into the UK, without further checks, for goods made in Switzerland and tested for conformity against UK standards by a conformity assessment body in Switzerland. It is simply a continuity of arrangements under the Swiss temporary measures for the five sectors to which it applies.

As I understand it—she may want to clarify—that is a continuation of the hon. Lady’s earlier question. Everything will be the same and the only difference is that UK manufacturers should affix a new Swiss mark to their products.

The Secretary of State will add Swiss bodies recognised under the agreement to the UK’s register of CABs, known as the UK market CAB database, which is a publicly available resource used by the UK’s market surveillance bodies and regulators to verify the status of CABs that approve products sold in the UK. Having all the CABs competent to assess for the domestic market in one place creates a one-stop shop for our UK enforcement authorities and businesses, helping them quickly to find and verify the credentials of CABs. The draft regulations do not change the substance of the requirements for third-party assessment, nor do they amend any requirement related to a product’s specifications or product safety credentials.

Turning to goods in scope of the UK-Swiss MRA that are assessed by UK CABs, the SI provides for the Secretary of State to designate CABs as competent to assess that goods comply with certain regulatory requirements of Switzerland under the MRA, as set out in a schedule to the SI. To give an example, that means that where a UK-based CAB wishes to be recognised by the Swiss authorities as competent to test and assess, for example, for Switzerland’s radio equipment requirements, the body can apply to the UK Accreditation Service to be accredited as competent to test against those Swiss requirements. The Secretary of State may then designate the body under the UK’s MRA with Switzerland to assess radio equipment for export to Switzerland. Once the CAB is designated, a UK manufacturer that uses the CAB’s services to assess its products for the domestic market has the option to use that same body, rather than a Swiss one, to do its assessment. The manufacturer can continue to place products on the Swiss market efficiently and without extra costs, potentially passing savings on to consumers.

The Secretary of State, or a person authorised to act on their behalf, may also disclose information to other parties to an MRA, where required by an MRA. We may, for example, pass on information related to goods originating in Switzerland that have been suspended by UK enforcement authorities under commitments to co-operate in the MRA with Switzerland. Disclosure will be made in accordance with data protection legislation.

Let me turn to the territorial scope of the draft regulations. They extend to the whole of the UK, apart from regulation 5, on recognition of conformity assessment by Swiss CABs, which extends to Great Britain only. Northern Ireland will continue to recognise the results of conformity assessment procedures done under the MRA between the European Union and Switzerland. That is in accordance with the terms of the Northern Ireland protocol to the withdrawal agreement. Regulations 6 and 7 of the 2021 regulations, to which I referred earlier, deal respectively with the Secretary of State’s power to designate UK-based bodies under these agreements and to information sharing. The powers extend to the whole of the UK, which means that CABs across the UK can be designated under the MRA and the Secretary of State will be able to share relevant information as required under the MRA.

In conclusion, the SI will provide certainty about the UK’s approach to recognising and designating CABs for products in scope of the MRA. We introduced the draft regulations to give effect to provisions that keep barriers to trade low while preserving our robust safety rules. We do so as a Government who are committed to ensuring that consumers are protected from unsafe products as we look to deliver a product safety regime that is simple, flexible and fit for the opportunities ahead of us. I commend the draft regulations to the Committee.

It is a pleasure to serve under your chairship, Mr Twigg. I thank the Minister for his opening remarks and his generosity in taking the questions put to him.

I have a number of questions for the Minister, which may or may not surprise him. Exporting businesses in the eight sectors that fall under the EU CE mark are currently also covered by the Swiss temporary measures, which are due to expire, and I am sure he will be aware that they will be concerned about what happens next.

On commercial products, the letters CE mean that the manufacturer or importer affirms the goods’ conformity with European health, safety and environmental protection standards. Eight sectors are not included in the UK MRA that we are considering today because they must use the rules of a third territory—the EU—over which neither the UK nor Switzerland has control. It is important to understand the basics of thieSI. Because it effectively continues, in part, some of the arrangements that we currently have, it has consequences for the clarity about what needs to happen for goods being exported or imported in those other sectors.

I do not oppose the draft regulations. Out of the 13 sectors covered by the Swiss temporary measures in place since Brexit, when we came out of the EU agreement that covered us and Switzerland, three sectors were covered by the EU-Swiss FTA. Thirteen sectors were covered by the Swiss temporary arrangements, which are expiring, and five are now being covered by the MRA. In a sense, for goods under those eight sectors, we will be in a more difficult trading position with Switzerland on 1 January than we will have been on 31 December.

Businesses have practical questions. I am sure the Minister has been through the detail of what he is speaking to today, but to go back to some of the basics, as the Minister said certain products require a conformity assessment to be carried out by a designated body to ensure they meet the requirements to be legally placed on a specified market. I thank the Minister for explaining how conformity assessment bodies will be designated and authorised to deliver services under the MRA. That point is absolutely critical. It means that there may be a number of companies, which, without further arrangements, will not be able to export their goods to Switzerland as of 1 January. There is talk of 300 companies for which there are issues relating to exporting and extra costs in the UK.

Mutual recognition agreements allow a country to recognise assessment results carried out in the other country against its own standards. That is why I wanted to clarify with the Minister that he was talking about goods being manufactured in Switzerland and being assessed as conforming with UK standards by equivalent assessment bodies in Switzerland. That would be the mutual way in which such work was undertaken.

The MRA allows for certain goods to be tested in the UK against Swiss regulations. The goods can then be sold in Switzerland without additional testing in Switzerland. Equally, that works the other way around. It is important to note that MRAs are about recognising conformity assessments carried out in another country. They are not about recognising the product requirements themselves, rather conformity against our safety standards.

The SI implements the UK-Switzerland mutual recognition agreement, which is designed to keep the benefits found under the current Swiss temporary arrangements, as the Minister clarified. In a sense, it is about preventing any additional barriers to trade in the relationship between the EU and Switzerland in the five areas that the Minister mentioned. Those include electrical equipment, radio equipment, noise-emitting equipment for outdoor use and so on.

The MRA sets out the conditions under which each country will accept conformity assessment results from the other. If it is not yet clear why the UK had to reach the MRA with Switzerland that we are debating today, the EU and Switzerland have an MRA, but following Brexit that no longer applies to the UK. The Government have attempted to retain as much as possible of its coverage.

The UK-Switzerland free trade agreement included mutual recognition of conformity assessment, effectively carrying forward arrangements for three sectors from the EU-Swiss agreement. Those accounted for some 70% of UK-Switzerland trade previously covered by the EU-Swiss agreement. Most of the remaining 30% of trade that the UK does with Switzerland was then covered by the Swiss temporary arrangements, covering 13 sectors. These were based on the Swiss being content that UK regulations did not diverge from Swiss regulations.

However, the Swiss Government have said that the temporary arrangements will expire at the end of 2022. Without a replacement agreement, UK exports to Switzerland that need third-party conformity assessment would need to use a Swiss conformity assessment body. To address that, I understand from the Minister’s remarks that the UK Government have had to secure an MRA with Switzerland covering five of the sectors included in the Swiss temporary measures. Those sectors also use the Swiss CH mark, which the Minister was referring to. I thank him for clarifying that the MRA is happening because the channel through which products have been confirmed is the Swiss CH mark, not the EU CE mark, which is a parallel channel. I would be grateful if the Minister could clarify whether this means that the UK is committing to not have any divergence in standards for products under the five sectors covered by the MRA with Switzerland.

The other eight sectors covered by the Swiss temporary measures use only the EU CE mark domestically; there is no standalone Swiss marking. As I have mentioned, they are covered by the MRA we are discussing because they are not subject to Swiss standalone marking, so the assessment would be against EU standards, which neither Switzerland nor the UK has any control over. The explanatory memorandum for the MRA states that existing conformity assessment certificates

“issued in the UK before 31 December 2022 in the eight sectors currently covered by temporary measures, but which are not captured in the Agreement text, will no longer be valid for entry of products not already placed on the Swiss market.”

Paragraph 5.2 of the explanatory memorandum for the MRA gives the Government’s advice on what businesses will need to do in those circumstances. The explanatory memorandum for the draft SI states that the Conformity Assessment (Mutual Recognition Agreements) and Weights and Measures (Intoxicating Liquor) (Amendment) Regulations 2021 are amended

“to ensure that specific products assessed by bodies in Switzerland recognised under the MRA can be placed on the market in Great Britain; and, to enable the Secretary of State to designate and monitor UK conformity assessment bodies to assess products against Swiss requirements.”

For businesses that may be exporting into the eight remaining sectors, I would be grateful if the Minister could clarify whether it will now be slower and more costly to export goods to those sectors in Switzerland. The explanatory memorandum suggests that there is a cost of £2,300 for the 300 businesses that the Government believe will be affected. How has that cost been calculated, and will the Minister expand on where the additional costs come from? I am keen to understand that, because the explanatory memorandum also states that the Government are keen to spread awareness of the arrangements so that businesses are aware of what could happen to them from 1 January in relation to the eight sectors, which account for less than 30% of our trade. What comprises the estimated cost of £2,300 for the 300 businesses that the Government think will be affected? How are the Government informing the 300 affected businesses of the impending cost? What position will they be in if, for example, cash flow and income are tight?

Businesses are definitely having a difficult time at the moment, because the cost of doing business is rising, with increases in material costs, energy costs and labour costs. We are seeing an increase in business deaths every quarter and businesses are incurring costs, so I would be grateful if the Minister could give the Committee any further clarity on the size of the 300 affected businesses. Are they small businesses, medium-sized businesses or large businesses? Large businesses may be more able to assume the costs. Small businesses may be doing most of their exporting to Switzerland, as some countries have more arrangements for bilateral trade. Are there small businesses trading with Switzerland that are going to be hit by this—that could see their businesses affected quite dramatically from 1 January—and what advice does the Minister have for them?

The SI is unaffected by the UK Government’s announcement on 14 November that they will continue to recognise the EU CE mark in many sectors until the end of 2024. The Minister and I debated that announcement just last week. If the SI is unaffected, could the Minister explain whether the Government approached the Swiss authorities to seek any further extension of the Swiss temporary measures, bearing in mind that the Government are now extending the recognition of the EU CE mark for another two years? If so, when did they do so, and what was the outcome of those discussions?

In relation to the eight sectors that fall outside the UK MRA, what assessment have the Government made of the UK’s competitiveness in those markets for businesses that may be developing and exporting products? I am sure the Minister has asked these questions of his officials. Does he also estimate that we might otherwise be likely to see a drop in exports to Switzerland in those sectors, if there are extra costs associated with being able to export into the Swiss market? I am sure there has been some attempt to ask that question as well, because obviously we do not want to see any further drop in exports from UK businesses to Switzerland.

Paragraph 5.2(b) of the explanatory memorandum to the MRA says:

“If a business is: exporting to Switzerland, but not the EU; and in sectors where third party conformity assessment is required”—

which I believe refers to those eight sectors—

“it will need to use a Swiss or other EU-approved CAB to place products on the Swiss market for those sectors.”

Will the Minister clarify where he would expect the Swiss conformity assessment body that would cover those eight sectors to be located? It is a genuine question: would that be in the UK, or would that have to happen when those products reach Switzerland, and be done there by CABs authorised by Switzerland or the EU? It is not clear to me what is implied by needing to use a Swiss or other EU-approved CAB to place products on the Swiss market for those sectors. Otherwise, we would effectively have a process for authorising CABs for exports and imports under the MRA, and a separate arrangement in the UK for CABs to be looking at exports and imports in the other eight sectors not covered by the MRA. I would be grateful for that clarity, because if we in this House are clear, it will be easier for the businesses that are having to make decisions—possibly very quickly, if they are not aware of these arrangements; there are probably just two weeks to go—to be clear as well.

The explanatory memorandum to the MRA suggests that the five sectors covered collectively by the MRA represent £400 million of bilateral trade. That is good news, although we want it to be more. However, will the Minister clarify—I could not find the figures—how many millions of bilateral trade are covered collectively by the eight sectors remaining outside of both the MRA and the FTA? If the Minister does not have those figures to hand, I am sure that he will be able to come back to me in writing.

Reflecting on paragraph 5.2 in the explanatory memorandum, what about goods with certificates issued before 31 December 2022 that have not yet been exported to Switzerland? There may be goods sitting in warehouses now, ready to go, but they may not go before 1 January; then they may not be able to go unless they are certified in a different way. How long could the conformity assessment process take if it needs to go through a new Swiss body?

The Government stated in paragraph 6.3 of the explanatory memorandum that this new arrangement “provides for regulatory autonomy”. I think that we all understand “regulatory autonomy” and what the Minister has described as some of the benefits for UK businesses arising from the potential for “regulatory autonomy” and divergence. I just want to be clear on something.

First, coming back to a question that I have already asked the Minister, for the five sectors covered under the MRA, is the UK committing to not diverging from current standards, and if there is divergence, will that affect their inclusion under the MRA?

Secondly, could the Minister say how many representations he has had from businesses that trade with Switzerland that have requested and sought that we diverge in our standards? There may be some very good reasons for that, and it would be helpful for us to understand what approaches are being made to the Department in relation to either conformity or divergence from standards that are recognised under some of our mutual agreements. I would be grateful if he could say how many representations he has had from businesses requesting divergence, as referenced in paragraph 6.3 of the explanatory memorandum to the MRA.

I have a couple of final points. The explanatory notes and the memorandum suggest—I think the Minister clarified this—that this process effectively only applies to Great Britain, because under the terms of the Northern Ireland protocol the EU-Swiss MRA, which covers all sectors, will continue to apply. For example, a business based in, say, Thirsk and Malton producing goods for export to Switzerland would have three arrangements under which it might deal with those exports: one under the FTA; one under the UK MRA; and one under these third-party conformity assessments for the eight sectors not included, for which there need to be a separate check. If that business decided to produce its goods in Northern Ireland, they could all be exported to Switzerland under the EU-Swiss MRA. I would just be grateful if the Minister could just clarify that that is effectively what this arrangement means.

Will the Minister also clarify where businesses exporting to Switzerland in the eight sectors that are not covered by the MRA or the FTA are geographically located in the UK? Are they concentrated in any particular area, or are they broadly spread across the country? If there is an impact on trade with Switzerland from some challenges of exporting and challenges to competitiveness in those eight sectors, which would see increased process to go through, that could have a disproportionate impact if there is a cluster or an area that is more affected than others. That would be important for communication purposes, so that businesses have the best possible information in order to make commercial decisions about what they need to change in terms of processes.

I raised this point with the Minister last week, and have not yet had a clear answer—perhaps the answer will be “shortly”. Has there been any further progress on the product safety review that has been promised by Ministers since spring this year?

I appreciate the shadow Minister’s points, which were extensive and exhaustive. I want to clarify: these regulations relate to only UK companies or Swiss companies who are trading with each other. They do not relate to wider exports to the European Union or European Union exports to the UK. That is the point.

Using the hon. Lady’s example, if a company in Thirsk and Malton decided to move to Northern Ireland, and only wanted to export to Switzerland, then it could use a Swiss-based conformity assessment body to have its products verified. It could use the Swiss mark. If a Swiss company wanted to export its products to Northern Ireland, it could use the CE mark. That is how it would work, because of the different arrangements in Northern Ireland and the rest of the United Kingdom.

The hon. Lady asks if the process will be slower or more costly. That is the absolute opposite of what the regulations are about. They are about UK companies, or Swiss companies, who want to trade with each other, who want to use a different mark, because they are only trading with Switzerland or the United Kingdom.

I will not, because of the pressure of time. I have a lot to go through and she has asked a lot of questions, which I want to cover.

That question was about whether there will be a slower or more costly process in relation to the eight sectors that are not covered by the MRA.

I think the hon. Lady asked both questions. Those sectors are still covered by the CE mark. It is not possible to distinguish a separate Swiss mark from the CE mark, so those eight sectors would still be covered by the CE mark. Nothing would change for companies that are trading in those sectors, so there will be no greater cost; there will be less cost for companies who are just trading bilaterally between the UK and Switzerland. The conformity assessment will be done once, not twice. If companies in that particular sector need to trade with Switzerland, that would have had to be done twice. These provisions are only for companies that are trading only between the UK and Switzerland. That is the key part of this statutory instrument.

On divergence in standards—another point raised by the hon. Lady—the regulations are made with the principle of divergence in mind. We can diverge, but if a company is exporting to Switzerland, it must have regard to Swiss regulations. It has to make sure that the product conforms with the Swiss safety regulations and other conformity regulations. That is the point. We can diverge, certainly, but if a company is exporting to Switzerland, it has to make sure that its products conform with Swiss rules. That is the point. Divergence is possible under these provisions.

The trade level in the five sectors is very hard to quantify. I cannot give the hon. Lady a number on that. She asked about the extent of trade covered by those five sectors and it is not possible to separate that out—[Interruption.] No, the figures relate to the three sectors—the 70%. If the hon. Lady wants to write to me to explore the details further, perhaps that will be swifter than arguing about it here.

As for the number of businesses we engage with, we engage with businesses all the time. I do not have those figures to hand.

Our trade with Switzerland is significant, and technical agreements on trade and goods such as the MRA that this SI will implement will serve an important function in facilitating and encouraging that trade. I have set out how the SI will preserve such measures to keep barriers to trade with Switzerland low while maintaining our robust product safety framework. In supporting the SI, we are ensuring that our manufacturers and consumers benefit from maintaining the arrangements to minimise the duplication of conformity assessment requirements between ourselves and Switzerland. I commend the SI to the Committee.

Question put and agreed to.


That the Committee has considered the draft Conformity Assessment (Mutual Recognition Agreements) (Amendment) Regulations 2022.

Committee rose.

Draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code A) Order 2022

The Committee consisted of the following Members:

Chair: Mrs Pauline Latham

† Butler, Rob (Aylesbury) (Con)

† Cairns, Alun (Vale of Glamorgan) (Con)

† Duffield, Rosie (Canterbury) (Lab)

† Elmore, Chris (Ogmore) (Lab)

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

† Greenwood, Margaret (Wirral West) (Lab)

† Hillier, Dame Meg (Hackney South and Shoreditch) (Lab/Co-op)

† Jones, Sarah (Croydon Central) (Lab)

Lewell-Buck, Mrs Emma (South Shields) (Lab)

† Malthouse, Kit (North West Hampshire) (Con)

† Mann, Scott (Lord Commissioner of His Majestys Treasury)

Maskell, Rachael (York Central) (Lab/Co-op)

Menzies, Mark (Fylde) (Con)

† Philp, Chris (Minister for Crime, Policing and Fire)

† Richardson, Angela (Guildford) (Con)

† Simmonds, David (Ruislip, Northwood and Pinner) (Con)

† Sunderland, James (Bracknell) (Con)

Huw Yardley, Committee Clerk

† attended the Committee

Ninth Delegated Legislation Committee

Tuesday 13 December 2022

[Mrs Pauline Latham in the Chair]

Draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code A) Order 2022

I beg to move,

That the Committee has considered the draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code A) Order 2022.

It is a pleasure, as always, to serve under your chairmanship, Mrs Latham. The order was laid in draft before Parliament on 13 October and will bring into effect a revised code of practice issued under section 66 of the Police and Criminal Evidence Act 1984. This is PACE code A, which governs the exercise by police officers of powers to stop and search a person without first arresting them.

For England and Wales, PACE sets out the core powers of the police to prevent, detect and investigate crime. The exercise of those powers is subject to codes of practice, or PACE codes, which the Secretary of State is required to issue and which put in place important procedural safeguards.

We propose to amend PACE code A, on police powers to stop and search individuals subject to serious violence reduction orders, which I shall refer to henceforth as SVROs. Inserted into the sentencing code by the Police, Crime, Sentencing and Courts Act 2022, SVROs are civil orders that give the police powers to stop and search individuals convicted of a knife offence where the court makes an SVRO. To be clear, an SVRO is handed down by a court only after someone has been convicted of a knife crime.

The Government are determined to crack down on knife crime, which is why SVROs were introduced. An SVRO allows the police to search a person who is the subject of such an order without suspicion, but I re-emphasise to the Committee that they apply only to people who have been convicted of a knife offence when the court has made an order in the interests of public safety. They are designed to deter habitual knife carriers from reoffending, as well as to protect the public, who might otherwise be the victims of knife crime and knife attacks.

It is vital that we build an understanding of how SVROs work in practice, so they will be piloted in four areas: the West Midlands, Merseyside, Sussex and Thames Valley police force areas. The pilot will be independently evaluated before a decision is made about whether to roll the powers out. I should pause to pay tribute to my right hon. Friend the Member for North West Hampshire who, as Policing Minister, did a huge amount of work to develop this concept. I see that serendipitously he is a member of the Committee today.

We have proposed the revisions to PACE code A to ensure proper guidance and safeguards on the use of the new stop-and-search power during the pilot. We ran a statutory consultation over six weeks on the proposed revisions, which introduce a new temporary annex G that deals with searches in relation to SVROs. In particular, the new annex highlights that the power does not require officers to have prior reasonable grounds but that its use must not be based on prejudice, that searches can be conducted only on those subject to an SVRO—to emphasise the point again, that means people who have been convicted of a knife crime and in respect of whom the court has decided that an SVRO is appropriate—and that officers should seek to confirm the identity of the individual to make sure they do not search somebody as a result of mistaken identity.

The revision to the code outlines that the use of the power, like all other stop-and-search powers, is discretionary. Officers are not obliged or compelled to search the person, but they are expected to use their judgment when choosing when to search using the SVRO. The annex will apply for 24 months plus an additional six-month transition period, although if we can draw conclusions sooner, which I hope we might be able to, we might come back to the House and shorten the pilot.

The Minister is touching on the point that I wanted to raise with him. Given the issues of disproportionality, such as in respect of ethnicity and gender, would he consider it useful to have a review at the six-month point? Two years is quite a long time for problems to develop; what are his thoughts on having a six-month point at which to look at the data?

I thank the hon. Lady for her question. Six months is quite a short time: we have to wait for the court to make the orders—this will apply only when the orders are made—and then we will have to wait to see what happens on the streets thereafter. My instinctive view is that 24 months is a long time and it would be good to draw lessons sooner, in part in case any issues such as those she mentioned arise, and in part because if this measure does work, as I hope and expect it will, we want to roll it out as quickly as possible. I do not want to commit to a six-month review, because that is a short period, but I do indicate flexibility: if we can draw conclusions faster than 24 months, we definitely should do, for the two different reasons the hon. Lady and I have mentioned.

The amendments to the code also outline the territorial extent of the use of the powers, which is across all of England and Wales. However, the intention at first is that the SVROs will be issued only in the four pilot areas that I mentioned. Of course, if someone receives an SVRO in one of the four areas but goes somewhere else, clearly the order will still apply if they leave the particular area concerned.

On the question of disproportionality, which the hon. Member for Wirral West touched on a moment ago, and its impact on particular communities, our aim is that the orders will enable police to take a more targeted approach, because by definition they will be using the powers only in relation to people who have been convicted of a knife offence and where the court has deemed it necessary to make an SVRO. That is very targeted.

I served for 12 years as a magistrate, before coming to this place, and I was involved in imposing other types of civil orders, such as antisocial behaviour orders. There are strict criteria. Will the Minister say anything—in Committee or subsequently—about the factors that a court will take into consideration when deciding whether to impose an SVRO? That might provide reassurance to any people with doubts. My experience is that courts take such matters extremely seriously before imposing an order of this type.

I thank my hon. Friend for his intervention and pay tribute to his work over so many years as a magistrate, and as a director of Her Majesty’s Prison and Probation Service, if memory serves me correctly. His experience is valuable in debates such as this. It is for the court to decide whether to give an SVRO following conviction, based on its assessment of the risk that the individual poses to the community. If the court is concerned that the risk to the community is ongoing because someone is thought to be a habitual knife-carrier or otherwise a risk to the public, it has the option of issuing an SVRO.

This is an important measure because knife crime affects many individuals, many parts of the country and many communities. Typically, a knife is used in between 200 and 300 homicides per year, significantly contributing to the homicide rate, and many serious injuries are caused by knives. Both the shadow Minister and I have tragically seen that in our own borough of Croydon, sadly on a rather too frequent basis. I hope that the SVROs, if successful and rolled out, will help to stop such tragedies.

The revised code of practice was laid before Parliament with the draft order and an explanatory memorandum. Subject to the order being approved by both Houses, the revised code will come into force on 17 January 2023. That date, I should highlight, is not a fixed date for the commencement of the SVRO pilot—it will not start on that day. We are looking to ensure that all the relevant secondary legislation is in place so that the pilot can commence relatively early in 2023.

I feel strongly that this is an extremely important set of powers that will enable the police, on a very targeted basis, to search people who have a history of carrying knives. That will protect our community, and in particular it will protect communities who may be searched disproportionately, because they are, sadly, also disproportionately victims of these offences. It is to protect that community and others that we are introducing the measures. I commend the order to the Committee.

It is a pleasure to serve under your chairmanship, Mrs Latham.

The Opposition do not oppose the order, but I want to raise a few questions and concerns. First, we must look at the history of SVROs and knife crime prevention orders, which were the starting point. We have now had three different types of this kind of civil order placed on people to try to reduce knife crime and serious violence. Knife crime prevention orders were introduced in 2019. The pilot did not start until July 2021 and I think it has only just finished, so we are three years into something that has not yet started. I question the Minister’s ability to get some of these things done in the timescale that he suggests. I am not saying for one minute that the Government should rush the pilots, though, because they should not.

The big question is about the serious violence reduction orders being limited to four areas but the measures applying nationally, which the Minister mentioned. That was an issue of concern in the Lords. It would be helpful for the Minister to explain whether he knows yet how it will work. When a serious violence reduction order is placed on somebody, through what mechanism will other police forces know that they have the order and can then be stopped? Obviously, the police will not be able to stop anyone unless they are under such an order, so how do we make sure they stop the right people? If a Met officer wants to stop someone they think is the subject of an order, how would they know? How would that work?

The second concern is about the pilot itself. We do not have time this morning—we have done it many times before—to go over the disproportionality issues, but they are vast. Every single survey ever done of any kind of police stop and search shows a level of disproportionality. The concern is that that will apply in this case as well. Will the Minister say more about how the pilot will be independently evaluated and what that means? Is a university or some kind of organisation involved? How will the pilot be repeated? There are lots of different ways of measuring a pilot, but the disproportionality that may be there will be missed if it is not evaluated properly.

My hon. Friend is making really important points. Does she agree that the point about disproportionality is that we want strong measures to tackle violent crime? It is a huge issue in some parts of my constituency. It is about the credibility of the programme, is it not?

I agree 100%. Knife crime peaked a couple of years ago at levels never seen before. We all want to see the numbers come down. My point about knife crime prevention orders is that they were hailed in 2019 as the answer to serious violence and they have not even started yet. We have to make sure that these things are done properly.

When SVROs were introduced and debated as part of proceedings on the Police, Crime, Sentencing and Courts Bill, the Opposition raised lots of concerns about their disproportionality and about police officers completing the College of Policing training on stop and search. There is very good training and guidance from the College of Policing on stop and search and we ask that police officers who are to use the new powers be trained.

We also need to make sure that the pilot is evaluated before any decision is made to permanently roll out SVROs. It would be good if the Minister could say, “If these do not work, we are prepared to look at something else and try something else if we find that the disproportionality or the effectiveness is not what we expected.” As I said, we will not oppose the order, but it would be helpful if the Minister could answer some of those questions.

I thank the shadow Minister—my constituency neighbour—for the support of the Opposition, or the lack of opposition, that she offered. She asked about knife crime prevention orders, the pilot for which is concluding shortly in a number of force areas, including that of the Metropolitan police. It was delayed somewhat because of covid, as I am sure Members will understand. When it concludes the pilot will be evaluated and, if it works, rolled out more widely.

It is worth mentioning that knife crime prevention orders are only one element of our work against knife crime, which, as recorded by the police, has dropped about 10% in recent years. Chief constables are directing many of the extra officers—so far about 15,000—towards fighting knife crime. We have a number of initiatives designed to do that, including violence reduction units, the grip policing programme, which targets knife crime hotspots, and other initiatives. Collectively, they are receiving £130 million of funding this year. There is, then, a lot of work going on in respect of knife crime, and I again pay tribute to my predecessor but three, my right hon. Friend the Member for North West Hampshire, for initiating those programmes. They are beginning to work.

On the question about territorial application and what happens outside the four pilot areas, we would expect police forces in the four pilot areas to share information with other force areas in case a person turns up there. The vehicle for doing that is most likely to be the police national computer, which holds data of that kind.

The shadow Minister asked about disproportionality, which comes up a lot. We do not have time to debate it exhaustively, but I will say that young black people are 24 times more likely to be murdered using a knife than those from other communities. That community has a disproportionate number of victims and it is with their safety particularly in mind that we are trying to fight knife crime. When evaluating questions of disproportionality, it is also important to consider the geographical areas where knife crime occurs, because it is not spread evenly around the country.

We will evaluate the pilot carefully. As the shadow Minister suggested, there is an independent evaluator called Ecorys, which will be gathering the data necessary to assess the impact of the orders viewed in the round. Once we have considered that, we will lay a report before Parliament so that it can consider and debate its findings and reach a view. I hope I have addressed the shadow Minister’s questions.

This is an important initiative. It is not a silver bullet—it will not fix knife crime on its own—but it is an important part of the Government’s work to fighting this terrible type of crime that is taking so many young lives on our streets.

Question put and agreed to.

Committee rose.

Draft Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2022

The Committee consisted of the following Members:

Chair: Hannah Bardell

† Bell, Aaron (Newcastle-under-Lyme) (Con)

† Benn, Hilary (Leeds Central) (Lab)

† Double, Steve (Lord Commissioner of His Majesty's Treasury)

† Duddridge, Sir James (Rochford and Southend East) (Con)

† Elmore, Chris (Ogmore) (Lab)

† Firth, Anna (Southend West) (Con)

† French, Mr Louie (Old Bexley and Sidcup) (Con)

† Green, Damian (Ashford) (Con)

Heald, Sir Oliver (North East Hertfordshire) (Con)

† Henderson, Gordon (Sittingbourne and Sheppey) (Con)

† Hollern, Kate (Blackburn) (Lab)

† Hudson, Dr Neil (Penrith and The Border) (Con)

† Lynch, Holly (Halifax) (Lab)

† McDonald, Stewart Malcolm (Glasgow South) (SNP)

† Owatemi, Taiwo (Coventry North West) (Lab)

Smith, Cat (Lancaster and Fleetwood) (Lab)

† Tugendhat, Tom (Minister for Security)

Nicholas Taylor, Committee Clerk

† attended the Committee

Tenth Delegated Legislation Committee

Tuesday 13 December 2022

[Hannah Bardell in the Chair]

Draft Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2022

I beg to move,

That the Committee has considered the draft Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2022.

It is, as always, a pleasure to serve under your chairmanship, Ms Bardell. Protecting our national security and public safety are key priorities for this Government, and I hope every Government. One of the main ways in which we achieve that is by ensuring that our intelligence agencies, law enforcement bodies and public authorities are equipped with the powers to carry out their statutory duties.

The Investigatory Powers Act 2016, which I will refer to as the IPA, provides extensive and robust privacy safeguards for investigatory powers. We rightly have in place world-leading standards on transparency, privacy, redress and oversight to accompany the exercise of those important powers. The regulations will make two necessary amendments to schedule 4 of the IPA.

The first will implement the findings of the High Court in the case of Liberty v. the Secretary of State for the Home Department and the Secretary of State for Foreign and Commonwealth Affairs. The judgment in the case was handed down in June this year, and its coming into effect was stayed until 1 January 2023 to allow for the appropriate changes to be made to the legislation and for the appropriate processes to be put in place. This amendment will remove the power for the UK intelligence community to internally authorise the acquisition of communications data for purposes that relate solely to serious crime other than in urgent circumstances. From this point, I will refer to communications data as CD and the UK intelligence community as UKIC.

In line with the Court’s judgment, it will be a requirement for UKIC to seek authorisations for acquisitions of this type from the Office for Communications Data Authorisations. The OCDA is currently responsible for considering nearly all CD applications made by public authorities in the UK, on behalf of the Investigatory Powers Commissioner. OCDA operates during normal office hours only and our intelligence services need to be able to access CD at all hours in urgent situations. It is imperative that UKIC retains the ability to self-authorise the acquisition of CD for urgent applications. The regulations give it the power to self-authorise in urgent situations where those authorisations relate solely to serious crime. It is important to note that law enforcement bodies such as police forces are already able to self-authorise urgent CD requests in the same way. The statutory instrument simply puts UKIC in the same position as the police in relation to serious crime applications. If the change were not made, there would be an increase in the risk of serious crime impacting our communities because of the delays that would cause to UKIC’s operations.

The explanatory memorandum states that the High Court held that the ability to self-authorise was

“incompatible with retained European Union law.”

Will the Minister identify which part of retained European law was the cause of the problem and confirm that the regulations solve the problem in its entirety? In other words, do there need to be any other changes to retained EU law in order to deal with the difficulties identified? If he wants to write to me afterwards, I would be happy to receive a letter.

It will not be a Christmas card!

Additionally, the regulations will amend the schedule 4 entry for the United Kingdom National Authority for Counter-Eavesdropping, which I will refer to as UK NACE. UK NACE is a critical organisation that protects our national security, and it is essential that it is equipped with the appropriate powers to carry out that activity effectively. That is why UK NACE was added to schedule 4 in 2020.

The regulations do not change the powers afforded to UK NACE but will make its designation more consistent with the approach taken for other similar bodies in schedule 4 to the IPA. I can also provide reassurance that as per the obligations set out in section 72 of the IPA, appropriate consultation has taken place with UK NACE, the Foreign, Commonwealth and Development Office and the Investigatory Powers Commissioner’s Office in respect of these amendments. In summary, the regulations will enable UKIC and UK NACE to continue carrying out their statutory duties effectively in order to protect the public, while ensuring that the appropriate oversight is in place to ensure compliance with the Investigatory Powers Act and to protect the privacy of UK citizens. I commend the draft regulations to the Committee.

It is a pleasure to serve under your chairmanship, Ms Bardell. I thank the Minister for his opening remarks. He has outlined what the statutory instrument does, and we are very aware that these changes come as a result of the High Court ruling in June this year in the case of Liberty v. the Secretary of State for the Home Department and the Secretary of State for Foreign and Commonwealth Affairs. The SI will now allow for the internal authorisation of the acquisition of communications data solely for serious crime purposes in urgent situations, as prescribed by section 61A of the Investigatory Powers Act 2016.

I understand that parts of the wider case were dismissed, however the High Court ruled in favour of Liberty on a key point, deeming it to be unlawful for the security services to obtain individuals’ communications data from telecom providers without having prior independent authorisation in certain circumstances. We welcome the weight of the ruling of the High Court and, therefore, the Government’s corrective action with this statutory instrument. In an ever-changing world, it is crucial we get the investigatory powers available to our security services right in order to deal properly with the modern threats we face, including from serious and organised crime. However, that must always be prudently balanced against civil liberties.

I see that there was a period of consultation on these changes with the agencies most affected, and while I am curious to know what their response was, I know from my work in the area that a great deal will not be able to be shared with the Committee or more widely. I welcome the fact that the consultation took place. I also welcome the letter the Minister promised to my right hon. Friend the Member for Leeds Central, and I would be grateful for a copy.

I can be brief as well. The Investigatory Powers Act 2016 had a lot of good stuff in it, but it was not without controversy. Part of that was Opposition assertions that there was not enough by way of prior independent scrutiny before intelligence agencies and others were able to help themselves to communications data and other types of information. The draft statutory instrument does some good work in fixing a little bit of that, and it contains the exceptions on urgent situations, as outlined by the Minister, which is also appropriate.

The regulations came about because of the Liberty court case. Liberty has said to me that it is content and pleased with the SI. In short, if Liberty is happy, I am happy, and we welcome that the Minister and the Government have acted to implement the judgment in good time.

I am delighted that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is happy now that Liberty is happy. That leaves us all happy. On that note, I will rest.

Question put and agreed to.

Committee rose.