Energy Bill [ Lords ] (Twelfth sitting)
The Committee consisted of the following Members:
Chairs: † Dr Rupa Huq, James Gray, Mr Virendra Sharma, Caroline Nokes
Afolami, Bim (Hitchin and Harpenden) (Con)
† Blake, Olivia (Sheffield, Hallam) (Lab)
† Bowie, Andrew (Parliamentary Under-Secretary of State for Energy Security and Net Zero)
† Britcliffe, Sara (Hyndburn) (Con)
† Brown, Alan (Kilmarnock and Loudoun) (SNP)
† Clarkson, Chris (Heywood and Middleton) (Con)
† Fletcher, Katherine (South Ribble) (Con)
† Gideon, Jo (Stoke-on-Trent Central) (Con)
† Jenkinson, Mark (Workington) (Con)
† Levy, Ian (Blyth Valley) (Con)
† McCarthy, Kerry (Bristol East) (Lab)
† Morrissey, Joy (Beaconsfield) (Con)
Nichols, Charlotte (Warrington North) (Lab)
† Owatemi, Taiwo (Coventry North West) (Lab)
† Shelbrooke, Alec (Elmet and Rothwell) (Con)
† Western, Andrew (Stretford and Urmston) (Lab)
† Whitehead, Dr Alan (Southampton, Test) (Lab)
Sarah Thatcher, Chris Watson, Committee Clerks
† attended the Committee
Public Bill Committee
Tuesday 20 June 2023
[Dr Rupa Huq in the Chair]
Energy Bill [Lords]
Before we begin, I remind colleagues that Hansard would be grateful if Members could email their speaking notes to firstname.lastname@example.org. Once again, I am happy to unilaterally give my permission for the removal of jackets, because it is hot in here. Please switch electronic devices to silent. Tea and coffee are not permitted, but there is a lot of water around—fizzy as well as still.
Application to the territorial sea of requirement for nuclear site licence
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss the following:
Government amendments 120 and 121.
Clauses 257 to 259 stand part.
Government amendments 124 to 126.
Government amendment 132.
Government amendments 127 to 129.
That schedule 20 be the Twentieth schedule to the Bill.
It is a genuine pleasure to serve under your chairmanship, Dr Huq, and to be back here for day seven of this Bill Committee.
A geological disposal facility, or GDF, is a highly engineered facility capable of isolating and containing radioactive waste within multiple protective barriers deep underground, so that no harmful quantities of radioactivity ever reach the surface environment. It is vital to the successful decommissioning of the UK’s civil nuclear legacy and to our new-build nuclear programme, which will support the UK Government’s net zero ambitions and energy security strategy.
Clause 256 makes it clear that certain nuclear sites—including a GDF, once prescribed in regulations—located wholly or partly in or under the sea, and within the boundaries of the UK’s territorial sea, require a licence and are regulated by the Office for Nuclear Regulation. I want to make it clear that no part of a GDF will be in the sea itself, nor will radioactive waste be dumped in the sea—that is banned by international conventions, including the London convention and protocol. The process to find a site for a GDF is under way, so it is vital that we have a clear legal framework to ensure that such a site will be licensed and subject to oversight by the Office for Nuclear Regulation.
Given the Government’s plan for a quarter of electricity to be generated by nuclear by 2045, how much additional nuclear waste does the Minister predict? How much additional nuclear waste will be stored at the new geological disposal site, and what is the estimated cost of the new facility?
The costings of any geological disposal facility will be presented to Parliament for scrutiny, but the process is under way to find a site that will be large enough to cope with any increase in waste from our civil nuclear fleet. The hon. Gentleman might be interested to learn that Finland has just opened, and is beginning to utilise, a new GDF. That is the model that we in the UK would like to follow.
I hope the Minister is going to propose that the Committee visit the facility in Finland. Does he agree that it is unhelpful that our detractors cannot seem to distinguish between legacy waste from a number of programmes and waste from new nuclear establishments, for which we have well-established protocols?
Absolutely—I could not agree more with my hon. Friend. I would be delighted to propose a trip to Finland for all Committee members, but it is not within my gift to organise such a trip. If anybody who is able to host us is listening, I would be keen to engage on that.
I agree with my hon. Friend’s comments regarding new nuclear waste. The excellent work being done in Sellafield—I know that is not in his constituency, but it is certainly in his part of the country—is an example to the world of how we regulate and dispose safely of nuclear waste that has been created. When we talk about a GDF, we are talking about new nuclear waste, which will come about as part of the exciting, new, world-leading and revolutionary investment in a civil nuclear fleet that the United Kingdom is engaged in right now. The north-west of England will be at the very heart of that.
Will the Minister explain the process for looking for a new geological disposal site? Will consultants do it? Will it be desktop-based to start with, and then involve intrusive site investigations? Will people bid to have a site? How will the process work?
That is a good question. In fact, I was just coming to the process. The GDF siting process is a consent-based approach that requires a willing community to be a partner in the project’s development. The siting process is already under way. Four areas have entered the process: three areas in Cumberland—in Copeland and Allerdale—and one in East Lindsey in Lincolnshire.
Government amendment 120 removes superfluous wording in new section 3A of the Nuclear Installations Act 1965. A licensed disposal site, as defined for the purposes of the new section, is not a nuclear installation within the meaning given by section 26(1) of the Act, so does not need to be mentioned explicitly in subsection (3). The amendment therefore removes it from the clause to correct this error. Amendment 121 is consequential on amendment 120 and removes the unnecessary definition of a licensed disposal site from new section 3A of the Nuclear Installations Act 1965.
The UK’s nuclear decommissioning programme is accelerating as older nuclear sites approach the end of their life cycle. As the first major nuclear sites will reach their final stages of decommissioning in the 2030s, it is essential that our nuclear legal framework is fit for purpose, while continuing to ensure an absolute focus on safety and security as the key priority. The Nuclear Installations Act 1965, which provides such a framework for nuclear safety and nuclear third-party liability, was written before serious consideration was given to decommissioning.
Clause 257 will amend the procedures for exiting nuclear third-party liability. Currently, the 1965 Act has the effect of requiring nuclear sites to remain subject to nuclear third-party liability for longer than is required by internationally agreed standards. The clause implements an alternative route based on internationally agreed recommendations and will apply to nuclear installations in the process of being decommissioned. It adopts a simpler and equally safe route out of the NTPL regime for non-nuclear parts of the nuclear site, such as laboratories, workshops, offices, car parks and land.
Clause 257 changes procedures for ending nuclear licences and regulation by the Office for Nuclear Regulation. It will require the licensee to apply to the ONR to end the licence and will require the ONR to consult the Health and Safety Executive before accepting an application. The ONR will accept an application when it considers that all nuclear safety matters have been resolved. Once the licence has ended, the ONR’s regulation of the site will cease. HSE will pick up responsibility for regulating the health and safety of work activities, while the relevant environmental agency will continue to regulate environmental matters for years or even decades after the end of the nuclear licence.
The clause has the effect of removing a barrier to the on-site disposal of suitable low or very low-level radioactive waste and avoiding the unnecessary excavation and transport of this material. Demolition work results in the creation of large amounts of rubble and waste, a small percentage of which may be lightly contaminated with radioactivity. Excavating that material can create radioactive dust, which is a hazard for workers. Transporting waste to disposal facilities can have noise and traffic impacts for local residents.
The existing environmental legislation, which the clause does not modify, was developed with land remediation in mind. It allows the operator to apply to the relevant environmental agency for a permit to dispose of suitable low or very low-level radioactive waste on site. Applications are subject to robust analysis, and an environmental permit would be granted only if disposing of the waste on site would be a safer and more sustainable option than excavating it and transporting it to disposal facilities elsewhere.
Finally, the clause will allow operators to apply to the ONR to exclude those disposal facilities for nuclear waste that do not require a nuclear licence from the nuclear licensed site boundary. To be clear, the clause does not constitute a relaxation in the standards for public protection. It aligns with UK radiological protection law, international standards and UK Health Security Agency guidance.
Clause 258 will bring an international agreement on nuclear third-party liability into UK law. Its aim is to lower the financial and regulatory burden on low-risk radioactive waste disposal facilities. Sites that meet the criteria will be exempted from the requirement to make provision for third-party claims. Injuries or damages will instead be covered by ordinary civil law, which is robust, proportionate and established. The clause allows the Secretary of State to set out by regulation the conditions that must be met to be excluded from nuclear third-party liability under the OECD Nuclear Energy Agency’s criteria.
The clause includes limits for radioactivity concentration that disposal facilities must meet. Only facilities with sufficiently low concentrations of radioactivity and negligible nuclear risk will be exempted from the requirement to hold nuclear third-party liability. The measures will help to ensure that the UK has sufficient disposal facilities for low and very low-level waste as the decommissioning of the UK’s legacy facilities accelerates and new nuclear projects are developed.
Clause 259 gives effect to schedule 20, which amends the Nuclear Installations Act 1965 to enable UK accession to a second international nuclear third-party liability treaty called the convention on supplementary compensation for nuclear damage. Nuclear third-party liability regimes aim to ensure that victims of a nuclear incident have access to adequate compensation. They also support investor and supply chain confidence by channelling liability to the nuclear operator and placing limits on their liability. The UK already has a robust nuclear third-party liability regime, being party to the Paris and Brussels agreements. The schedule 20 amendments to the 1965 Act that enable UK accession to the CSC will enhance the existing UK regime. Accession to the CSC enhances several of the benefits of our current nuclear third-party liability regime.
Government amendments 124, 125, 126, 127, 128, 129 and 132 make minor and consequential changes to schedule 20 to ensure the accurate implementation of the CSC. They will ensure that, following accession to the CSC, the UK does not inadvertently close off routes to compensation for nuclear damage. That applies to countries and victims that are currently able to claim under our existing nuclear third-party liability regime. To establish that, they seek to remove unnecessary consequential amendments as a result of the further amendments tabled. The changes also ensure that victims from a non-nuclear CSC state can claim under the appropriate conventions.
It is a pleasure to serve under your chairmanship again, Dr Huq. It is also a pleasure to hear the Minister rattle through the Government amendments at really high speed. As he identified, this part of the Bill is about civil nuclear sites. Among other things, it is about the repository that we do not have at the moment—in other words, we have not yet found a repository. It would be helpful if the Minister were able to tell us where we are in that search. Does he think the clauses take that process further forward? Or do they impede or lengthen that search?
I am sure the Minister recalls that, some while ago, his party indicated that no new nuclear development would be signed off and authorised until a repository had been located and established. Now, of course, two civil nuclear sites are under active development. Hinkley C is under active development—the reactor core is in place and connected works are under way. I visited the site a little while ago and it really is in a very advanced state, so we can anticipate that nuclear power will come on stream in, I guess, about 2026. I have been guessing that it will come on stream every year since 2017, but we hope that will happen.
Advance discussions and some initial site works have been done for Sizewell C. The reactor that is going in is essentially the twin of the Hinkley C reactor, and a lot of the site works are being replicated to speed up that process a bit. I have not visited Sizewell C yet because—rather like in the story I told a while ago about the underground cable—there is not a great to deal to see at the minute, but we can anticipate that we will have four new nuclear reactors onstream by the early 2030s. All that is taking place alongside a process for a nuclear repository—a final solution for the issue of long-term nuclear waste.
Does the hon. Gentleman agree that there is a real paradox here? Allegedly the site rate for Hinkley Point C already has built into it the decommissioning costs for the storage of nuclear waste at the end? We are told that the estimates for Sizewell C will include all the costs of decommissioning and disposal up front, but how can EDF properly allow for those costs when it does not even have the new geological disposal facility that it needs to access?
The hon. Member makes a good point. I would think that it is very difficult under the present circumstances. I was about to talk about that briefly. On both those sites the question arises, as he alluded to, of what we do with the nuclear waste from their operation, and what plans are in place for their eventual decommissioning at the end of their lifetime. Having served on various Bill Committees with me, the hon. Member will recall that in a recent nuclear Bill the question was raised of ensuring that a reasonably accurate built-in planning arrangement for decommissioning would be in the programmes that are agreed for nuclear power plants. The plans both for decommissioning and for what happens to nuclear waste as we go along are rather important to get right, given that there is no geological repository either under way, unlike the new nuclear power stations, or finally identified.
We could say that the provisions apply to something that is not really there. It may be there in a little while, or it may not be there for quite a while. Meanwhile, the two nuclear power stations are getting under way and being build. We know that quite a lot of the nuclear waste that has arisen from activities around Sellafield is stored in ponds, which are open to the surface and are safe to the extent that the nuclear waste is firmly stored underwater and there is no risk of it spilling out, except if someone planted a bomb in the pond. The pond would then disperse its contents, but obviously a geological facility is proofed against that occurring. The question is about what sort of planning the new nuclear power stations are likely to undertake for the storage of nuclear waste during their operation, and for its storage and disposal when they are eventually decommissioned.
I appreciate that Sizewell B is already storing nuclear waste, and I understand that it is doing so quite effectively, although I have not actually been to see it. Obviously, Sizewell B is the newest nuclear power station in the fleet, even though it is not that new. The storage of newer nuclear waste is pretty good and, as the hon. Member rightly points out, the amount of nuclear waste is much lower than in, say, the old Magnox reactors. The issue of the storage of nuclear waste is largely about legacy waste, not new waste, but that is not to say that a fair amount of both high-level and low-level nuclear waste will not arise in the operation of new power stations—Sizewell C and Hinkley C—and, as is clear in the amendments that the Bill makes to nuclear legislation, there is still an obligation, upon full decommissioning, to ensure that there is no hazard whatever on the site from any radiation. That is quite a high bar. I am sure that is something we would all support.
Do the planners and organisers of new power stations—Hinkley C and Sizewell C—plan for on-site storage over the next period and for forms of disposal upon decommissioning that are not geological disposal sites, as a contingency in the event that we still do not have a geological disposal site when those plants are up and running? Or do they rely on the idea that there might be a geological site coming along, although we do not quite know when? We think it might be in the not-too-distant future, but we have not quite got there yet.
As the hon. Member for Kilmarnock and Loudoun correctly points out, that creates quite a difficulty in planning contingency, when building a nuclear power station in the first instance, for decommissioning and the safe storage and disposal of waste nuclear material. I am not sure how that has been resolved in the protocols that have been agreed with the power stations that are under way at the moment, and nor am I exactly up to date with where we are on the geological disposal site. I think I am up to date to the extent that we have not actually found one yet and that, although we have offered favourable terms to several communities to host a nuclear geological disposal site, we have yet to receive support to get it under way.
It would help us to judge the clauses a little better to get a brief rundown of where we are in that process and what plans the Government have either to accelerate it or to determine it in the end, so that as we develop our new nuclear programme we can be reasonably certain that the protocols in place for disposal and decommissioning will be reliable in future. I would be grateful if the Minister would let the Committee know that information.
I have a query and concern of a rather different order about schedule 20. As the Minister said, schedule 20 is about accession to the convention on supplementary compensation for nuclear damage. That international convention, which eventually came into force in 2015, having been agreed, I think, in 1997, sets out the supplementary compensation for nuclear damage on an international tariff basis, so that there is consistency in how compensation is dealt with in the event of accidents or other problems at civil nuclear installations in different parts of the world. So far, so good—it is a good convention and it is important that we are part of it. Indeed, the schedule ensures that we are fully a part of that convention.
There is a bit of a puzzle here. The Government have inserted into the Nuclear Installations Act some proposed new subsections about
“further non-CSC-only claims to compensation”
and have denominated all those claims, and how the provisions about them work, in euros. That is in the Bill. Proposed new subsection (3BA), for example, states that
“the appropriate authority may be required to satisfy them up to the equivalent in sterling of 1,500 million euros”.
Proposed new subsection (3BB) states:
“To the extent that further non-CSC-only claims for compensation are CSC claims, the appropriate authority may be required to satisfy them up to the equivalent in sterling of the aggregate of 700 million euros”.
Proposed new subsection (3BC) states:
“To the extent that further non-CSC-only claims for compensation are both special relevant claims and CSC claims, the appropriate authority may be required to satisfy them up to the equivalent in sterling of the aggregate of 1,500 million euros”.
I do not know whether this is the secret explanation for why the then Secretary of State for Business, Energy and Industrial Strategy, the right hon. Member for North East Somerset (Sir Jacob Rees-Mogg), withdrew the Bill during its passage through the Lords—because he thought that this was a plot to move against Brexit—but it is a bit odd that compensation is denominated in euros, when of course the rate is variable and we would be in a position to vary claims according to the relationship of sterling to euros. In any event, this is an international convention. Perhaps there is a simple explanation, which I hope the Minister has in front of him, but we are signed up to an international convention, not a European convention.
It may be—I do not know—that these measures are a hangover from our membership of Euratom, which we of course de-acceded from at the time of Brexit. It be that if we were a party to Euratom, Euratom would take the place of national membership of the convention and therefore everything would be denominated in euros, but of course we are not now a member of Euratom—we are our own actor, as far as various conventions relating to nuclear safety and activity are concerned—yet we are still denominating things in euros.
While I do not wish to amend the Bill so that we do not denominate claims in euros—I am concerned that the Minister’s career may be in jeopardy if he does not do the job of creating instruments that get us out of being in thrall to the EU and euros—I gently point out that it looks a bit odd. Is there an intention at any stage to regularise that procedure?
The hon. Member’s concern for my career is welcome, and I thank him for expressing it in such kind terms. However, I reassure him and every person in this room—and, indeed, anybody else who might be following the proceedings—that the Government are not secretly taking us into the eurozone through accession to the CSC. It is not an EU treaty. The reason that the sums involved are denominated in euros is simply that the moneys referred to in the treaties that we are currently signed up to—the Paris convention and the Brussels supplementary convention—are expressed in euros. This is just a continuation of the same process. The CSC is an international convention, and we are therefore using the same denominations as in those other conventions. I am sure the hon. Member will be relieved to hear that there is no secret plot. The CSC, of course, is under the International Atomic Energy Agency.
I would think that those that are signatories to the Paris and Brussels conventions may. I am led to believe very strongly that it is not the case that all signatories denominate in euros, but we do, as a result of our current membership of the Paris and Brussels conventions.
So we do not have to denominate these things in euros, because a number of signatories to the CSC do not, and presumably their membership of the CSC is not in jeopardy as a result. Presumably, we would have the opportunity not to use euro denomination, like those other members, but we nevertheless we do.
I feel that we may be going round in circles. The Paris convention is a base convention. That is why there is carry-over into the new convention that we are acceding to—the CSC—to maintain the denomination in euros. However, I would suggest that those who are seeking compensation do not really care in which denomination their compensation is paid as long as they receive it in the end for any damage that is caused. I think we have spent quite enough time debating the denomination in which people will receive compensation.
The hon. Member for Southampton, Test spoke at length about GDFs. As I said, work is under way to find a GDF location. Four areas have answered the siting process—areas in Copeland, Allerdale and Theddlethorpe, which is in Lincolnshire. They have all formed community partnerships. The first geological and site sustainability investigations were concluded in those areas last year, so the process is under way. Contrary to the hon. Gentleman’s suggestion, there is—certainly in parts—a great deal of support for the possible siting, due to the community benefits that will arise as a result of the location of a GDF facility.
The hon. Gentleman also asked about the cost of the GDF. Estimates of the whole-life cost are about £20 billion to £53 billion, and the cost to the UK Government is about £10 billion to £27 billion. The large range is due to uncertainties about location. The cost will be spread out over 100-plus years, as I am sure Members would expect.
To touch on one of the other problems that the hon. Gentleman identified, current plans already account for legacy waste, which is far and away the majority of waste by volume, and 16 GW for new nuclear projects. Nuclear Waste Services, the developer of the GDF, is confident that it can meet the waste requirements of the up to 24 GW of new nuclear projects set out in the energy security strategy. It is already planning for two thirds of that—the 16 GW that I referred to—and is in the very early stages of a flexible and adaptable design process. I want once more to praise the work of the Nuclear Decommissioning Authority and all those working at Sellafield and around the country to ensure that the current fleet is supported and that waste is disposed of safely.
I hope that my comments about the fact that we do not yet have a community that has said it will support a geological waste facility does not necessarily mean that there is not support for the facility to be sited in various parts of the country. It is just that, as I understand it, no authority has actually said, “Yes, we’re happy to have this facility in our area and we wish to proceed with it.” I assume that that is a factor in the question I was trying to get at: when can we expect a geological facility to be timetabled, developed and finally established, and to what extent does that timeline cohere in the context of the nuclear power stations that we are presently commissioning and will bring online in the future?
I thank the hon. Gentleman for his question and for clarifying his earlier comments. As I said, we are at the beginning of the process of identifying a geological disposal facility. Surveys are under way. We are working with communities that have already expressed an interest and we will continue to do so as we move forward.
Question put and agreed to.
Clause 256 accordingly ordered to stand part of the Bill.
Decommissioning of nuclear sites etc
Amendments made: 120, in clause 257, page 223, line 15, leave out
“or a licensed disposal site”.
This amendment corrects a minor and technical drafting error in new s.3A of the Nuclear Installations Act 1965: a licensed disposal site (as currently defined for the purposes of the new section) is not a nuclear installation (within the meaning given by s.26(1) of the Act) and so the carve out in subsection (3) is not necessary.
Amendment 121, in clause 257, page 224, leave out lines 5 to 8.—(Andrew Bowie.)
This amendment, consequential on Amendment 120, removes the unnecessary definition of “licensed disposal site” from new section 3A of the Nuclear Installations Act 1965.
Clause 257, as amended, ordered to stand part of the Bill.
Clauses 258 and 259 ordered to stand part of the Bill.
Accession to Convention on Supplementary Compensation for Nuclear Damage
Amendments made: 124, in schedule 20, page 374, line 9, leave out sub-paragraph (4).
This amendment and the Minister’s other amendments to Schedule 20 make minor and consequential changes to that Schedule to ensure accurate implementation of the CSC.
Amendment 125, in schedule 20, page 375, line 7, leave out
“, (3BA), (3BB), (3BC), (3BD) or (3BE)”
“or, in a case where the relevant reciprocating territory is also a CSC territory (as defined by section 16AA), (3BB)”.
See the Minister’s explanatory statement for Amendment 124.
Amendment 126, in schedule 20, page 377, line 4, at end insert—
“(c) a country mentioned in section 26(1B)(b),
(d) an overseas territory mentioned in section 26(1B)(c) or (d), or
(e) a relevant reciprocating territory.”
See the Minister’s explanatory statement for Amendment 124.
Amendment 132, in schedule 20, page 378, line 11, at end insert—
“(as amended or supplemented from time to time)”.
This amendment ensures that the definition of “the CSC” in Schedule 20 is to the Convention on Supplementary Compensation for Nuclear Damage as amended or supplemented.
Amendment 127, in schedule 20, page 379, line 13, leave out
“In section 26 of the 1965 Act (interpretation),”
“(1) Section 26 of the 1965 Act (interpretation) is amended as follows.
See the Minister’s explanatory statement for Amendment 124.
Amendment 128, in schedule 20, page 379, line 27, at end insert—
“(e) after the definition of ‘overseas territory’ insert—
‘“the Paris Convention” means the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January 1964, by the Protocol of 16 November 1982 and by the Protocol of 12 February 2004;’.”
This amendment sets out a definition of the Paris Convention for the purposes of the amendments to the Nuclear Installations Act 1965 to which Amendment 129 relates.
Amendment 129, in schedule 20, page 379, line 27, at end insert—
“( ) In subsection (1A)(a)—
(a) in the opening words, for ‘a relevant international agreement’ substitute ‘the Paris Convention’;
(b) in sub-paragraph (i)—
(i) for ‘relevant international agreement’ (in each place it appears) substitute ‘Convention’;
(ii) for ‘agreement’ (in the third place it appears) substitute ‘Convention’;
(iii) for ‘agreement’s’ substitute ‘Convention’s’;
(c) in sub-paragraph (ii), for ‘relevant international agreement’ substitute ‘Convention’.”—(Andrew Bowie.)
See the Minister’s explanatory statement for Amendment 124.
We now come to the Question that schedule 20, as amended, be the Twentieth schedule to the Bill. [Interruption.] Dr Whitehead, anything else?
Chuntering is a bad habit.
Schedule 20, as amended, agreed to.
Provision of additional police services
I beg to move amendment 162, in clause 260, page 230, line 23, at end insert—
“(d) the provision of the additional police services in question is within the competence and in accordance with the usual operational practices of the Civil Nuclear Constabulary”.
With this it will be convenient to discuss the following:
Amendment 163, in clause 260, page 230, line 33, after “Secretary of State”, insert “or the Police Authority”.
Clause stand part.
Clauses 261 to 263 stand part.
I remain quite amused that we smuggled a euro or two into our flexibility structure a moment ago. I am sure that that will go down in history.
Clauses 260 to 263 relate to the Civil Nuclear Constabulary. For those who do not know too much about that constabulary, as I must admit that until recently I did not—
That is a very helpful intervention, because among other things it means that our business will have to be finished by 12 o’clock this morning to facilitate our collective visit to the drop-in to be better informed about the Civil Nuclear Constabulary.
The Civil Nuclear Constabulary was established under the 1965 Act. It has about 1,500 officers nationally; they occupy eight sites in England and three in Scotland. There is a headquarters in Culham, with a chief constable and so on. It is just like a police authority, only not geographically in one place. Its prime responsibility is not guarding nuclear sites—that is for the Ministry of Defence police and the Army, basically—but the security of the sites and all that goes with policing around nuclear sites. I think it has jurisdiction up to 5 km away from nuclear sites. I will be interested to hear more about this, but as I understand it, it is a very specialised force.
All members of the Civil Nuclear Constabulary are routinely armed and are trained to that extent. They undertake virtually no arrests. A couple of years ago, they made a total of 24 arrests; last year I think they made 10, two of which turned out not to be arrestable. In comparison, an ordinary police force of the same size, such as Dorset police, would make about 7,500 arrests in an average year. The profile of the Civil Nuclear Constabulary’s activity and specialities is very different from that of an ordinary police force.
That is not saying very much about the Civil Nuclear Constabulary, other than that it is a specialist force, has jurisdiction relating to nuclear sites and, as far as I understand it, does a very good job at what it is asked to do. The clauses before us are not about the Civil Nuclear Constabulary itself, but about the extent to which its officers might, as it were, be rented out to other police forces. “Rented out” sounds a rather pejorative way of putting it; it is not intended to be, but that is really the only way I can describe it.
The clauses concern the circumstances under which officers can be seconded—I would say rather more than seconded—to other forces, subject to a decision of the Secretary of State. Clause 260(1), which will amend the Energy Act 2004, states:
“The Constabulary may, with the consent of the Secretary of State, provide additional police services to any person”,
which basically means to any other police authority.
Clause 260 also states that the Secretary of State
“must not give consent for the purposes of subsection (1) unless satisfied, on an application made by the Police Authority”,
which I assume means the Civil Nuclear Police Authority, that the application
“is in the interests of national security”
“will not prejudice the carrying out of its primary function under section 52(2)”
of the 2004 Act.
The establishment of the Civil Nuclear Police Authority is a little anomalous, by the way. It was originally under the jurisdiction of the Department for Business, Energy and Industrial Strategy and has now effectively been transferred to the jurisdiction of the Department for Energy Security and Net Zero, rather than the Home Office, as is the case with ordinary police forces.
Basically, clause 260 concerns the provision of additional police services, or renting out police, to other police authorities. Further clauses not only provide arrangements enabling additional police services to be provided to other police authorities, but provide that the police authority may expect to receive money from other police forces for those additional police services. The term “renting out” is not completely redundant, inasmuch as it is clear that compensation will change hands. The constabulary will be compensated in some way for the police services provided, rather like when a footballer is loaned out for part of a season, whether the team pays the whole of their salary or only part of it.
It appears that the Secretary of State may determine that renting out police is not a good idea. The police authority is involved in consultation with the Secretary of State as to whether the renting out arrangements should be progressed, should come to an end or should be temporarily brought to an end. Conspicuously, however, the chief constable of the force does not appear to have any say, in operational terms, in whether his or her officers are to be rented out in the way described. That gives rise to a number of considerations about which I hope the Minister will be able to say a little more, and which are reflected in our Opposition amendments.
The first overall conceptual consideration that perhaps we ought to think about is whether, if there are apparently circumstances in which any number of the Civil Nuclear Constabulary may be rented out, that brings into question whether the Civil Nuclear Constabulary itself is properly established. Is there routinely a surplus of officers who are signed up to the Civil Nuclear Constabulary but are not generally needed for its purposes and can easily be provided to other authorities on a routine basis, or is this to be just an occasional thing when a police authority has a desperate need at a particular juncture?
Can the Civil Nuclear Constabulary proceed with its business under those circumstances? Since it was set up by the Energy Act 2004 with different forms of responsibility, I presume that, as matters stand, the forces are effectively legislatively separate. The amendments proposed to the Act therefore give force to the idea that police can be transferred between authorities. I presume that if the Civil Nuclear Constabulary were not established as a separate authority under a different Department, the transfers would potentially be reasonably straight-forward.
I do not know what the arrangements are between police authorities at the moment, but there are certainly pretty routine transfers between authorities. If there is a large event, particularly a large civil disturbance or a civil disaster, police will be transferred in from all sorts of other authorities on a reasonably routine basis. I am not sure what the arrangements for compensation are, but that is how it works. Clearly that is not so with the Civil Nuclear Constabulary.
The second issue, which is of particular moment, is the circumstances under which police officers are recruited, trained and made operational within the Civil Nuclear Constabulary. As I have said, and as I am sure we will learn further if we go to the drop-in—I cannot remember which room the hon. Member for Workington said it was in—
If we go to room Q, we will find out more, but civil nuclear constables are special police. They are recruited and trained in a different way, their responsibilities are different, and the activities they undertake are normally different. That gives rise to questions about whether civil nuclear constables can easily be transferred to other police authorities. I assume that the rental agreement would state whether they should undertake the ordinary activities that constables in comparable authorities undertake. Are they to be rented out on the basis that they will become ordinary police constables in a particular authority, or on the basis that they have special arrangements? They clearly will not have special arrangements concerning arresting people, so I imagine that the arrest rate of a police authority that had recruited police constables from the Civil Nuclear Constabulary for additional services would not go through the roof. Such constables are routinely armed, so there is also a question about whether they would be disarmed for the purpose of undertaking their duties in other police forces.
The answers to such questions do not appear in the clauses before us. There is just an arrangement that police constables can be rented out, that compensation can be paid for them, that the Secretary of State can intervene if he or she thinks there are problems, and that the police authority has to be consulted about renting out and, as it were, de-renting—that is all that the clauses cover.
I do not necessarily imagine that our amendments will be pursued to a great extent, but I would very much like to hear the Minister’s response to what they are trying to do. On the renting out of police, amendment 162 would clarify that
“the provision of the additional police services in question is within the competence and in accordance with the usual operational practices of the Civil Nuclear Constabulary”.
That is, those police who are rented out are not to be turned into ordinary police, and the circumstances of the renting out should be within the competence of the Civil Nuclear Constabulary, so we should not reasonably expect them to turn out to be ordinary policemen in other police authorities.
Also, we want the Civil Nuclear Police Authority to be rather more involved in decisions as to whether to continue renting out, so amendment 163 would add the words “or the Police Authority” after “Secretary of State”. We are trying to tighten up both the concept and the practice of these arrangements, to ensure that there is respect for the fact that the Civil Nuclear Constabulary is a specialist service, with staff who have special skills, qualities and qualifications that may differ from those of police in other forces. Renting-out arrangements should respect that. We should be a little careful to ensure that we do not put a square peg in a round hole through this renting out, even though there may be circumstances where a freer interchange of police between the Civil Nuclear Constabulary and county police forces could take place, and would benefit both sides.
I appreciate that clauses 260 to 263 to some extent supply what was left out from the Energy Act 2004, in which the Civil Nuclear Constabulary was defined, but I am not sure that the clauses do the job completely, and make sure that the strengths and qualities of the Civil Nuclear Constabulary are properly reflected in any renting-out arrangement, and that its constables are not expected to do things for which they are not trained, or in which they do not have experience, if they are seconded to other constabularies.
First, as the Civil Nuclear Constabulary will be in room Q, Portcullis House, at midday today, at a meeting hosted by my hon. Friend the Member for Workington, I pay tribute to all the officers and staff who serve so diligently in that constabulary. I had a very enjoyable and informative meeting with Chief Constable Simon Chesterman and the chairman of the Civil Nuclear Police Authority, Susan Johnson, a couple of weeks ago. The constabulary serves this country and does incredibly important work protecting our civil nuclear fleet. It is incredibly well trained for that.
The hon. Member for Southampton, Test, referred to “ordinary” policing. Yes, Civil Nuclear Constabulary officers are highly trained in armed policing, and in the specialties that they have to be trained in to carry out their job, but they are also trained in what he described as ordinary—unarmed—policing, and are held to stringent College of Policing standards, such as those set out in the authorised professional practice armed policing guidance. That is consistent across the organisation, regardless of which site an officer is deployed to, and that would remain the case if there was any expansion of the constabulary’s services.
The Secretary of State must consult the chief constable before providing consent to the constabulary providing additional services. That ensures that the views of the person who is arguably best placed to assess competence and operational arrangements is taken into consideration. Should the CNC take on additional responsibilities outside the civil nuclear sector—we have been talking about that today—the chief constable will be responsible for ensuring that any additional training requirements are identified and delivered. I hope that addresses the concerns of the hon. Member for Southampton, Test, on that point.
The Civil Nuclear Constabulary is a crucial component of our civil nuclear security system, as the specialist armed police force dedicated to the protection of our most sensitive civil nuclear facilities, and of civil nuclear material in transit. In the evolving national security and energy landscape, we want to ensure that we are making the best use of our resources to protect the UK’s essential services and critical national infrastructure, as well as our wider national security interests.
Clause 260 will allow the Civil Nuclear Constabulary to provide policing services beyond civil nuclear sites, if consent is granted by the Secretary of State. The clause sets out three criteria that the Secretary of State must be satisfied are met before granting consent: first, that any additional police services will be in the interests of national security; secondly, that the CNC’s core nuclear security mission will not be prejudiced; and, thirdly, that it is reasonable in all circumstances for the CNC to provide those services.
The hon. Gentleman’s amendment 162 would add a fourth test to the criteria: that the provision of the additional police services in question is within the competence of, and in accordance with, the usual operational practices of the CNC. I share his concern that CNC officers should not be performing duties that they have not been trained and equipped for. However, I believe that the test is already covered by the third element—that the additional police services should be reasonable in all circumstances. I also refer hon. Members to my earlier point: all police officers in the CNC are held to, and trained to reach, the highest standards.
That third test is designed to require the Secretary of State to take into consideration all relevant factors when asked to give consent to the CNC providing additional policing services. That could include, for example, whether the CNC will have the necessary skills and training. All activities will, of course, be in compliance with the applicable legislation and within the operational competence of the force. I do not believe, therefore, that the suggested fourth condition is necessary, and I humbly ask that amendment 162 be withdrawn.
Amendment 163 would enable the withdrawal of consent if the Civil Nuclear Police Authority considers that the criteria are not met. The CNPA is the body that will enter into agreement with the person or persons to whom additional police services will be provided, when consent is given. The CNPA can therefore agree its own contract exit terms with the customer, which makes statutory provision unnecessary. In addition, I reassure the Committee that the Secretary of State would consider the views of the CNPA when considering whether it is appropriate for the CNC to provide policing services outside its core civil nuclear mission. I hope that the hon. Gentleman feels reassured that the CNPA will have appropriate controls over the activities of the CNC, and therefore feels able to withdraw amendment 163.
Clause 260 will amend the Energy Act 2004 to enable the Civil Nuclear Constabulary to use its expertise in deterrence and armed response to provide a wider range of policing services beyond the civil nuclear sector, in the interests of national security. That could be used to enable the CNC to provide armed guarding services to other facilities that provide vital services, or to deliver other protective policing in response to emerging threats. The security of our civil nuclear sites and materials will remain the CNC’s core priority. The clause requires that, before granting consent for the CNC to take on additional services, the Secretary of State must be satisfied that the CNC’s core nuclear security mission will not be prejudiced. It also includes an ongoing statutory duty on the CNC’s chief constable to ensure that that remains the case.
Furthermore, the clause sets out provisions to ensure transparency and make amendments in relation to the CNC’s jurisdiction. By empowering the CNC to deliver a wider range of services, the clause will help it to retain specialist personnel to protect civil nuclear projects such as Hinkley Point C, as well as to improve value for money for the taxpayer from the civil nuclear industry.
In addition to delivering its core mission, the CNC plays an important role in supporting local police forces and national counter-terrorism operations. For example, it has supported the policing of major public events, such as the Commonwealth games, the G7 summit and COP26. To my knowledge, it also helped police London bridge and the recent coronation. During those deployments, CNC officers operate under the control and direction of the chief constable of the host force that they are supporting. The CNC uses collaboration mechanisms available under section 22A of the Police Act 1996, which requires individual collaboration agreements to be signed with each territorial force. That introduces bureaucracy that hinders the CNC’s ability to support other police forces during emergency incidents and other periods of unanticipated demand. Clause 261 will amend the Energy Act 2004 to streamline arrangements for the CNC providing support to other police forces in England, Wales or Scotland. That will allow the CNC to provide support for both spontaneous and planned deployments more quickly and effectively, and to provide specialist support as required.
The powers are in line with those already available to the England and Wales territorial police forces, the British Transport police and the Ministry of Defence police. The clause makes consequential amendments to ensure that, as with other forces, where the CNC is providing assistance under this arrangement, CNC officers would be under the direction and control of the chief officer of the requesting force, and would have the same powers and privileges as a member of that force. The powers are subject to safeguards to protect the CNC’s primary civil nuclear security function. The clause also makes provision for charging arrangements for that assistance.
Clause 262 will enable the CNC to exercise cross-border enforcement powers, in line with the powers already available to the territorial police forces and the British Transport police. It will do that by adding members of the CNC to the list of constables able to exercise their powers in part 10 of the Criminal Justice and Public Order Act 1994. That will clarify the CNC’s power to execute warrants, or powers of arrest where a person who is suspected of committing an offence in one part of the UK, such as Scotland, needs to be apprehended in another part of the UK, such as England. The clause does not allow the CNC to exercise those powers in Northern Ireland, since the CNC does not operate in Northern Ireland.
Turning to clause 263, the Civil Nuclear Police Authority is the body responsible for ensuring that the Civil Nuclear Constabulary remains effective and efficient in delivering its vital nuclear security mission. Under the Energy Act 2004, the authority is required to publish a three-year strategy plan, which sets out the police authority’s medium and long-term strategies for policing by the CNC to be achieved over a three-year period. The Act requires the authority to publish such a plan at the beginning of each financial year. The annual publication requirement creates significant administrative burdens, and introduces an element of uncertainty to the CNPA’s delivery of its policing priorities in each three-year strategy-plan. Following a review of the governance procedures by the Department and the CNPA, it was concluded that the Energy Act should be amended to require a three-year strategy plan to be published every three years. That will improve efficiency and provide greater long-term certainty and stability for the organisation. Clause 263 does not affect wider obligations for the authority to publish annual reports and policing statements.
The Minister addressed the overall subject of the Civil Nuclear Constabulary well, but I do not think that he entirely addressed our questions, which were not about the competency of the constabulary, or its establishment or function. Our questions were about the new provision that the Government are seeking to introduce regarding the extent to which police personnel could perform a wider function, depending on circumstances in the Civil Nuclear Constabulary.
By the way—this may be a reasonable topic for discussion in a drop-in—I would not like the Civil Nuclear Constabulary to be assumed to be an ancillary police force with some special responsibilities. It is clearly a very specialised and highly trained police force with a particular set of duties. By and large, it should have the necessary number of police constables to perform its duties. If over time—this may be something for the Department to consider, since it has special responsibility for the constabulary—the general conclusion is reached that this is a police force to which, to put it a bit unpleasantly, other forces can help themselves when they are in periods of stress, that would not be very good for the future of the constabulary.
There is another alternative. As the Minister mentioned, the police authority has to carry out three-year reviews. If during those reviews it is thought that substantial numbers of the police force had been rented out over the review period, there may be a temptation for a future Secretary of State—not present Ministers; I am sure they have a very close eye on what the Civil Nuclear Constabulary is doing and how it carries out its role—to say, “The Civil Nuclear Constabulary does not need all these people. Let’s reduce its size. Let’s cut it down to a smaller number, because that will do for its operations—we can see that it is renting out quite a lot of its force for other purposes.” That would be a retrograde step.
The Minister prayed in aid, as a reason not to pass the amendment, proposed new section 55A(4)(c) of the Energy Act 2004, in which the Secretary of State must judge that
“it is reasonable in all the circumstances for the Constabulary to provide those services.”
That is a bit of a problematic, I would have thought; how do we judge what is
“reasonable in all the circumstances”?
For that to apply, the officers must be “surplus to requirements”, but most reasonable judgments would be, “Well, they are not surplus to requirements. They are a key part of the Civil Nuclear Constabulary and they are doing a good job.” I would therefore expect that there would be a fairly high bar as to what was
“reasonable in all the circumstances”,
but that is not defined. Our amendment attempts to define that effectively, by saying that the release of these officers would be
“within the competence and in accordance with the usual operational activities of the Civil Nuclear Constabulary.”
We do not want to press the amendments to a vote, but I would like the Minister to give some assurance on the record that the
“reasonable in all the circumstances”
judgment would, in practice, be a full and close partner to the definition we attempted to apply to the leasing arrangement through amendment 162. Unless that is stated on the record, we will worry about the temptation to play fast and loose with the Civil Nuclear Constabulary when there are pressures elsewhere.
To clarify, the expansion of the CNC will not in any way affect the CNC’s core mission. We are absolutely not playing fast and loose with the Civil Nuclear Constabulary. The CNC’s priority and core function will remain the protection of civil nuclear sites and material, in line with the UK’s international obligations. Before granting consent for the CNC to take on additional services, the Secretary of State must be satisfied that the CNC’s core nuclear supervision will not be prejudiced in any way. This legislation includes an ongoing statutory duty for the CNC’s chief constable to ensure that that remains the case. I hope the hon. Member will withdraw his amendment on that basis.
I thank the Minister for that intervention. Following the assurances he has given on that basis, among others, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 260 to 263 ordered to stand part of the Bill.
Civil nuclear industry: amendment of relevant nuclear pension schemes
I beg to move amendment 103, in clause 264, page 234, line 31, at end insert
“, or on benefits in deferment or pensions in payment;”
This amendment means that the Secretary of State may not put a cap on revaluation of benefits in deferment or pensions in payment.
With this it will be convenient to discuss the following:
Clause stand part.
Clauses 265 to 269 stand part.
It is a pleasure to see you in the Chair, Dr Huq. These clauses relate to nuclear pension schemes, and the amendment would provide certainty that Nuclear Decommissioning Authority pensions would not be capped. There is some ambiguity in the drafting of the Bill, and the door has been left open for the introduction of regulations to cap pension increases when that is not part of what has been agreed in the past among Government, unions and nuclear workers.
I say the door has been left open for such regulations because subsection (3) (c ) of the clause specifies that only increases for revaluation—that is, active deferred members—cannot be capped. It does not mention pensions in payment. The wording is
“not involving imposing a cap on any revaluation or revaluation rate”.
The amendment would mean that the Secretary of State could not put a cap on revaluation of benefits in deferment or pensions in payment, as well as the other schemes I have mentioned.
The provision as it stands is contrary to the heads of terms agreement between BEIS and the NDA, which explicitly states that pension increases will be in line with inflation, as measured by the consumer prices index, with no reference to any cap. It is also important to note that, although members of recognised trade unions in the NDA group voted in favour of the reforms that these measures facilitate, I am told that there was by no means an overwhelming endorsement. Many voted in such a way because they feared the Government would impose even worse reforms, which had been threatened, if they did not agree to what is now on the table. They felt that that was the best deal they could get, but they feel that the promises made to them have been broken and they are not happy. Given that, it is even more important that we ensure that the Bill reflects the compromise agreement that was reached.
It is also wrong to say that these reforms would bring pension provision across the NDA group into line with wider public sector pensions, which I think is what the Minister in the Lords said. Those pension schemes underwent much more radical reform long before Lord Hutton’s review of public sector pensions, and they have been closed to new entrants for many years. Lord Hutton recommended that public sector pension accrual remain on a defined-benefit basis, but pension provision across the NDA group is mostly on a defined-contribution basis. I have been approached by representatives of trade unions who are eager to meet the Minister to ensure that reforms are fully consistent with Lord Hutton’s review. I do not know whether the Minister can offer today to meet those representatives, so I can take that back to them.
An amendment is necessary to remove any doubt about the status of nuclear workers’ pensions. I am sure we all agree that the effectiveness of the Civil Nuclear Constabulary is essential to maintain the UK’s nuclear security, and that the work of everyone at the NDA is really important, as we have already heard this morning. Those people are integral to keeping the public safe, and that should be recognised when legislation is being determined.
I hope the Minister accepts that the amendment has been tabled in a constructive spirit. It is designed to remove any uncertainty, and I hope he will accept it.
I am searching in vain for a second Minister to take some of this Bill. Unfortunately, they do not seem to be available. I thank the hon. Member for Bristol East for moving her amendment and allowing us to debate an important issue, especially for employees of the Nuclear Decommissioning Authority. I recently had a constructive meeting with trade unions representing workers from the NDA and was happy to discuss the issues they are concerned about in depth and specifically the one we are debating today.
The Nuclear Decommissioning Authority agreed with unions as part of negotiations that the consumer price index should be used for revaluations and that it should not be capped. Both the reference to the CPI and that revaluations should not be capped are referenced in the clause. As the clause sets out, revaluations include pensionable earnings, benefits in deferment and pensions in payment. Pensionable earnings relate to the pension payments contributed by employee and employer while they are working. Benefits in deferment are those benefits that have been built up by an employee who has left the pension scheme but has not yet accessed it. Pensions in payment relate to those receiving their pension.
The Government are content, therefore, that the legislation as drafted does not exclude benefits in deferment and pension in payment from the non-capping of the revaluation of earning by CPI. It is therefore in line with the agreed scheme. However, I am happy to put on record that in the new scheme, both benefits in deferment and pensions in payment will be uprated by CPI and will not be capped. While I appreciate the hon. Member for Bristol East raising the issue and the importance of ensuring that those with benefits in deferment and pensions in payment do not have their revaluations capped, I do not think the amendment is necessary.
Can the Minister confirm that when he discussed this with the trade union representatives, they were happy to accept his assurances that that is what the Bill says? Certainly, they have not communicated that to us. As far as I am concerned, they still believe that getting our amendment into the Bill is still important.
If there is some ambiguity, is there a reason why he feels that putting a clarification in the Bill to spell it out and give those reassurances would not be acceptable? The amendment does not seek to change his position as I understand it; it just seeks to make sure that that is clear.
I understand why some Members, including the hon. Lady and trade unions, would find that helpful. We do not believe it is necessary because I have stressed today on the record—it will be in Hansard—that it is the Government’s position that those benefits in deferment and pensions in payment do not have revaluations capped and that they will be uprated by CPI. We do not think it is necessary because that is already the Government’s position. It is on the record and I am happy to stand by that.
Turning to clause 264, the 2011 report by Lord Hutton of Furness started the Government on the road to the reform of public sector pensions. While the Public Service Pensions Act 2013 made a large number of reforms, it did not cover all public sector bodies, including those within the NDA group. The NDA is the statutory body responsible for the decommissioning and safe handling of the UK’s nuclear legacy, with 17 sites across the United Kingdom, including Sellafield. Even though the NDA was created in 2005 via the Energy Act 2004, many of its sites have been operating since the middle of the 20th century. That lengthy history has led to a complicated set of pension arrangements, which include two pension schemes that, while closed to new entrants since 2008, provide for final salary pensions and are in scope for reform. They are the combined nuclear pension plan and the site licence company section of the Magnox Electric Group of the electricity supply pension scheme.
In 2017, the Government and the NDA engaged with trade unions to agree a reformed pension scheme that was tailored to the characteristics of the affected NDA employees. That resulted in a proposed bespoke career average revalued earnings scheme which, following statutory consultation with affected NDA employees and a ballot of union members, was formally accepted by the trade unions. Subsequently, a formal Government consultation was launched in 2018, with the Government publishing a response in December of that year confirming the proposed change.
The reformed scheme still offers excellent benefits to its members. Notably—and unusually compared with other reformed schemes—it still includes provision for members to retire at their current retirement age. For nearly everybody, that will be 60 years old. However, the complicated nature of the pension schemes, in the context of the statutory framework that applies to pension benefits across the NDA estate, means that specific legislation is needed to implement the new scheme.
Clause 264 provides the Secretary of State with the power to make secondary legislation designating a person who will be required to amend the provisions of a nuclear pension scheme. That is necessary, as at the current time the scheme rules limit the NDA’s ability to make changes to pension scheme arrangements. Clause 264 uses the phrase “relevant nuclear pension scheme” to describe the types of schemes that a designated person could be required to amend by virtue of that amendment. Clause 265 explains what is meant by that phrase. Clause 265 also clarifies the UK Atomic Energy Authority pension schemes and pension schemes that benefit persons specified in the Public Service Pensions Act 2013 are not relevant pension schemes.
Clause 266 relates to the provision of information. In order to implement the proposed pension reforms, the NDA—and, in the case of the MEG-ESPS, Magnox Limited—will need information from others. Clause 266 gives a person who has been required to amend a relevant nuclear pension scheme the power to require persons holding any information they might reasonably require to provide that information. That could include the number of members in a pension scheme, and the salaries and ages of those members.
Data protection legislation may still prevent the information from being shared. The clause specifies, however, that in making that assessment, the requirement to disclose imposed by the clause must be taken into account. The clause also provides that disclosure does not constitute a breach of confidence or breach of any other restriction on the disclosure of information.
Clause 267 sets out definitions relevant to the clauses about amendments of relevant nuclear pension schemes. Clause 268 relates to the protection that is in place that would currently block any change of pension. Although the reformed pension to be provided to affected NDA workers is still excellent, it has always been clear that the reforms to public sector pensions would result in lower levels of benefits to members than is currently the case. Although that is the acknowledged effect of Government policy in this area, it does bring it into conflict with existing legislation. Both schedule 8 of the Energy Act 2004 and regulations made under schedules 14 and 15 of the Electricity Act 1989 effectively mean that any change to NDA pensions must be “no less favourable”.
Clause 268 effectively expands a power made under an earlier clause, providing the ability for regulations made by the Secretary of State to amend or disapply schedule 8 of the Energy Act 2004 and regulations made under schedules 14 and 15 of the Electricity Act 1989. Given that this is not a hybrid Bill, we believe it is more appropriate for those powers to be exercised via regulation rather than primary legislation.
Clause 269 relates to the procedure for the regulations under this chapter. The Government believe it is right and proper for regulations under this chapter to be subject to the affirmative procedure. We also believe that these regulations should not be subject to the hybrid instrument procedure. There has been considerable consultation with those affected, and the policy is in line with pension reform across the public sector.
I welcome the Minister’s assurances and his offer to meet the unions to discuss this point. I have spent a lot time looking at the wording. Although I agree that it could be interpreted in the way the Minister says, that is arguable. I still feel it would be best to have clarity in the Bill and, therefore, would like to press the amendment to a vote.
Question put, That the amendment be made.
Clauses 264 to 269 ordered to stand part of the Bill.
Prohibition of new coal mines
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss the following:
Clauses 271 to 273 stand part.
Government new clause 52—Principal objectives of Secretary of State and GEMA.
I will start with the good news and first speak to clause 271 and Government new clause 52. The Government have maintained the view that Ofgem’s principal objective makes its role in achieving the net zero target clear. However, we have carefully considered the effect of clause 271 with Ofgem and sought legal advice to ensure that the Lords amendments would not impact the hierarchy and intended effect of Ofgem’s duties. We are therefore content to clarify Ofgem’s duties by making specific reference to the net zero target in the Climate Change Act 2008.
The Government new clause is equivalent in substance to clause 271, but includes some minor drafting changes to ensure that the duty works in practice. First, it clarifies the authority’s role in supporting, rather than enabling, the Government to meet their net zero target. Secondly, it clarifies the net zero targets and carbon budgets specific to sections 1 and 4 of the 2008 Act. The new clause does not change the intention of clause 271. I thank my right hon. Friend the Member for Kingswood (Chris Skidmore) for the recommendation in his report entitled “Mission Zero”, Baroness Hayman in the other place and the energy industry for working constructively with the Government to bring forward this significant change.
I now turn to clause 270, which was also added to the Bill in the Lords on Report. The clause would prohibit the opening of new coalmines and extensions to existing coalmining in Great Britain. After carefully considering this addition, I tabled my intention to oppose the clause standing part of the Bill on 17 May. The Government are committed to ensuring that unabated coal has no part to play in future power generation, which is why we are phasing it out of our electricity production by 2024. Coal’s share of our electricity generation has already declined significantly in recent years—from almost 40% in 2012 to around 2% in 2021.
Does my hon. Friend the Minister agree with me that although, as he rightly says, electricity production by coal has been as little as 1% and huge amounts of work can be done to reduce that carbon dioxide output, it is vital, with electricity generation, to maintain a baseload? As we saw recently when a gas turbine power station was turned off and we were relying on wind power, the baseload could not be maintained and the system tripped out for a large area of the country. Does the Minister agree with me that the objectives are fine, but physics and reality come in at some point?
I could not agree any more wholeheartedly with or put it any better than my right hon. Friend. For energy security reasons, it is vital that we maintain all options that are open to us. That does not in any way impede, get in the way of or stand contrary to our overarching net zero ambition.
No, the planned phase-out date of October 2024 is extant and something that we are working towards. However, it is important that we ensure that, as part of our electricity baseload, we have access to the relevant energy sources so that we ensure this country’s energy security. Given the situation with energy security in central Europe and, indeed, worldwide, that should be understood by everyone.
If the Government allow the licensing of a new coalmine, how will that help energy security? The Minister has just committed to phasing out the use of unabated coal by October 2024, so, by the time a new coalmine is operational, it certainly will not add any energy security.
It was a gas turbine that tripped out. It was not about coal, as far as I understand.
Is the Minister saying that we should have access to those supplies until, but not after, 2024? We will not have anywhere to burn them after 2024 because the intention is to have phased out coal by then. What exactly is the Minister saying? By the way, coal is unlikely to be burned in a UK power establishment in the future, if such establishments survive.
I have a constituency interest in a new coalmine in a neighbouring constituency in west Cumbria. Its planning condition is to produce metallurgical coal, which is used in steel plants. The Minister was recently in Sweden, as I was just a couple of months ago. We hear a lot about HYBRIT—hydrogen breakthrough ironmaking technology—which is a green steel project. I was relieved to hear that HYBRIT requires coking coal, even in electric arc furnaces with direct reduced iron, and that it will continue to be used for some time. Does the Minister agree that we should not close off avenues for UK-sourced coking coal?
I entirely agree with my hon. Friend. His expertise in the area, his experience in Sweden and his constituency interest have proved invaluable in ensuring that everybody is fully aware of the situation, the technology and, indeed, the science behind all of this.
Even when we phase out coal power stations, domestic demand for coal will continue in industries such as steel, cement and heritage railways, and that demand can be met by domestic resources on existing lines of deployment. A full prohibition of coal extraction, regardless of the circumstances or where that coal is going to be used—be that in steel, cement or a heritage railway—is likely to prevent extensions to existing operational mining, even where an extension would enable site restoration or deliver public safety benefits; cut across heritage mining rights in the Forest of Dean, which are important to its tourism offer; and, importantly, prevent domestic coal extraction projects from progressing that are seeking to supply industries that are still reliant on coal.
The Minister has set out a series of perceived advantages. On the flipside, the proposed new coalmine at Whitehaven would emit 9 million tonnes of carbon dioxide each year, so does he agree that that would have serious implications for our net zero ambitions?
I very much question the figures that the hon. Gentleman has just put to the Committee. I stress that it is really important that we ensure that the industries in the United Kingdom that rely on coal are able to rely on a domestic source for that coal—British coal—and not on imports from overseas, which will actually increase carbon emissions.
Order. May I just point out that some of these interventions are getting a little bit lengthy? We have a whole debate—one other Member has already indicated that she wants to speak—so colleagues can make speeches if they wish.
I will be brief, Dr Huq. On the Minister’s point, is it not the case that up to 85% of the coke that will be exported to the EU is coming out of coal in Cumbria? Does he agree with the figures of Lord Deben, the chair of the Committee on Climate Change, which state that the new Cumbrian coal mine will emit about 400,000 tonnes of CO2 a year, equivalent to 200,000 cars being added to the road?
Now I am getting confused, because I have some figures coming from over there and other figures coming from over there. It is important that we ensure that industries that rely on a source of coal are able to rely on domestic sources of coal. This clause, proposed by the Labour party, would prevent that from happening, harm future investment, harm jobs and harm our progress.
This is one of the most jaw-dropping moments I have ever had in my parliamentary career. The Scottish National party and the Labour party are arguing against domestic jobs, our proud coalmining heritage and energy security for this country. Is that not flabbergasting?
Order. We should not stray too much from the clause.
That is demonstrated by the clause, and that is why I believe that now is not the right time to make the changes suggested by the Labour party. We will oppose the clause.
Finally, I will address clauses 272 and 273 on community energy, which I also oppose. I recognise that several Members spoke in support of these clauses on Second Reading. However, the Government continue to believe that this is a commercial matter that should be left to suppliers, and further work is needed before considering whether primary legislation is needed.
In evidence submitted to the Committee and published on 13 June, Energy UK set out its in-principle support, much like the Government, for community energy, and recognised the role that it will play in our energy system. However, it asks that
“these measures be removed to give the Government, the regulator, and the industry time to fully consider the best approach to integrating community energy effectively, protecting consumers and preventing additional costs being added to all consumers’ energy bills on behalf of a currently small portion of the population.”
Does the Minister accept that the wording inserted in the Bill by the Lords reflects the exact same wording of a private Member’s Bill—I think it is the Local Electricity Bill—that more than 120 Conservative MPs previously pledged to support? I checked to see whether any members of the Committee supported that Bill, and apparently the hon. Members for Hyndburn and for West Aberdeenshire and Kincardine were among those 120 MPs. I think the rest of the Committee gets off the hook on that. Would the Minister like to explain why he has changed his mind?
The hon. Lady is hearing me explain at great length why the position of the Government is what it is.
Clause 272 seeks a minimum export guarantee scheme. Community energy projects can already access power purchase agreements, which are arrangements for the continuous purchase of power over a given period with market-reflective prices. For example, Younity, a joint venture between Octopus and Midcounties Co-operative, already purchases electricity from more than 200 community groups of all sizes. It has PPAs of varying contract lengths, from six months to five years. Renewable Exchange has also enabled more than 100 community projects to sell electricity via PPAs since 2018.
When we introduced the smart export guarantee, we consciously moved from a consumer-funded subsidy model to a competitive market-based system with cost-reflective pricing. That was in line with the vision to meet our net zero commitments at the lowest net cost to UK taxpayers, consumers and businesses. Introducing a fixed price would be a step backwards, as it requires all energy consumers to pay more than the market price for electricity to subside local communities that benefit from community energy projects. An electricity export guarantee indexed to the wholesale price is inconsistent with the Government’s aim to decouple renewable generation from a wholesale price linked to the marginal cost, usually fossil fuel generation or gas. A static export price could also dampen price signals needed in the system, for example, in the use of intraday batteries.
History suggests that such a support scheme would have only a minimal impact on deployment. For example, deployment of community energy projects over the final five years of the much more generous feed-in tariff subsidy scheme was still very low. These projects are also typically more expensive than larger utility-scale renewable projects, with small solar and onshore wind projects between 50% and 70% more expensive. The proposal would be mandatory for suppliers with more than 150,000 consumers, and would therefore introduce a huge new administrative burden. Suppliers would face the additional one-off costs of putting in place process and IT infrastructure, as well as ongoing costs of managing the scheme, which would be passed on to consumers in higher bills. It is likely that it will disproportionately impact smaller suppliers, sitting just above the 150,000 customer threshold.
Similarly, on clause 273 it is the Government’s view that a local tariff is unlikely to result in a better price for consumers. Suppliers would incur potentially significant costs in setting up and delivering the scheme. They would also have to recoup the additional costs, which we anticipate would be via the service fee and would therefore be recoverable only from local consumers. A small-scale low-carbon generator is also unlikely to guarantee a supply of electricity to local consumers at all times. Suppliers would have to buy additional wholesale energy to cover all local consumer demand, while continuing to charge for all other supply costs incurred. The local tariff would also need to reflect the export price paid to the generator. Presumably that is intended to ensure that local consumers benefit from cheaper export prices, but it would create an unintended outcome whereby higher export prices benefit the generator and increase the tariff price.
I hope that I have explained at length why I, as the Member for West Aberdeenshire and Kincardine, am espousing this position. I reassure the Committee that I am working with my officials to explore what other credible options are available to support the community energy sector. Indeed, work continues as we speak. We are taking these issues seriously, but for the reasons that I have provided I will oppose the clauses.
As much as I know that we are all aghast at the thought of the Committee finishing and the Bill going back to the House, that will not be the end of our journey together. We will gather again on Report and Third Reading, so there will be ample opportunity for the hon. Gentleman to speak on the Bill at that stage, and for any changes that might be required to it.
There is a drop-in session in room Q in Portcullis House at noon, but it is entirely voluntary.
Ordered, That the debate be now adjourned.—(Joy Morrissey.)
Adjourned till this day at Two o’clock.
Digital Markets, Competition and Consumers Bill (Sixth sitting)
The Committee consisted of the following Members:
Chairs: Rushanara Ali, † Mr Philip Hollobone, Dame Maria Miller
† Carter, Andy (Warrington South) (Con)
† Coyle, Neil (Bermondsey and Old Southwark) (Lab)
† Davies-Jones, Alex (Pontypridd) (Lab)
Dowd, Peter (Bootle) (Lab)
† Firth, Anna (Southend West) (Con)
† Ford, Vicky (Chelmsford) (Con)
† Foy, Mary Kelly (City of Durham) (Lab)
† Hollinrake, Kevin (Parliamentary Under-Secretary of State for Business and Trade)
† Malhotra, Seema (Feltham and Heston) (Lab/Co-op)
† Mayhew, Jerome (Broadland) (Con)
† Mishra, Navendu (Stockport) (Lab)
Russell, Dean (Watford) (Con)
† Scully, Paul (Parliamentary Under-Secretary of State for Science, Innovation and Technology)
† Stevenson, Jane (Wolverhampton North East) (Con)
† Thomson, Richard (Gordon) (SNP)
† Watling, Giles (Clacton) (Con)
† Wood, Mike (Dudley South) (Con)
Kevin Maddison, John-Paul Flaherty, Bradley Albrow, Committee Clerks
† attended the Committee
Public Bill Committee
Tuesday 20 June 2023
[Mr Philip Hollobone in the Chair]
Digital Markets, Competition and Consumers Bill
Clauses 22 to 25 were debated this morning. With the leave of the Committee, I will put the Questions together on clauses 22 to 25 stand part.
Clauses 22 to 25 ordered to stand part of the Bill.
Power to begin a conduct investigation
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss clauses 27 to 35 stand part.
It is a pleasure to serve under your chairmanship, Mr Hollobone. Clauses 26 to 35 are about the enforcement of conduct requirements. The participative approach within the pro-competition regime means that the digital markets unit will aim to resolve issues with firms with strategic market status without the need for formal enforcement action. Where that is not possible, clause 26 will empower the DMU to investigate suspected breaches of conduct requirements by SMS firms and, where it finds a breach, consider what action can be taken. That is necessary to ensure that SMS firms comply with requirements.
Opening an investigation allows the DMU to make use of the full range of information-gathering powers set out in chapter 6. Where the DMU begins an investigation, certain information must be given via a notice to the SMS firm, and a summary of that notice must be published. Clause 27 will require that before the DMU can make a finding of the breach, it must consider any representations that an SMS firm makes in relation to the conduct investigation.
Clause 28 will allow the DMU to close a conduct investigation at any time without making a finding as to whether a breach has occurred. The DMU will need to explain why it is closing the investigation and account for its decision. That power is needed as it allows the DMU to react to changes during the investigation process. That could be, for example, needing to divert resources to an emerging high-priority competition issue elsewhere.
Clause 29 sets out the countervailing benefits exemption. The DMU’s objective is to promote competition for the benefit of consumers, and that will shape the design of its regulatory interventions, meaning that the DMU will take consumer benefits into account when designing conduct requirements in the first place. However, the inclusion of the countervailing benefits exemption provides a backstop to ensure that, if needed, consumer benefits can be explicitly considered at the enforcement stage, too.
During a conduct investigation, an SMS firm will be able to put forward evidence that its action brings about benefits for consumers that outweigh the potential harm to competition. That will reinforce that consumers are at the heart of the regime. The clause is not about pursuing textbook-perfect economic outcomes; it is about real-world outcomes for consumers.
Clause 30 will place the DMU under a duty to notify an SMS firm of the outcome of a conduct investigation within a six-month investigation period. That will ensure that investigations are executed within reasonable timeframes. That does not apply if the DMU has accepted a voluntary binding commitment from the firm relating to the conduct under investigation, or if the investigation is closed with no findings made. The duty to give a notice to an SMS firm and subsequently publish a summary online is vital to inform the firm under investigation of the outcome and keep relevant parties informed of DMU action.
Clause 31 will give power to the DMU to impose an enforcement order on an SMS firm where it has found a breach of a conduct requirement. Those orders will most often be cease-and-desist orders requiring bad behaviour to stop, but they can also require more complex behavioural changes where that is a more appropriate way to remedy a breach. When imposing or varying an enforcement order, the DMU has a power, rather than a duty, to consult those persons it considers appropriate. That will allow the DMU to consider relevant third-party and SMS representations on proposed enforcement action, while ensuring that enforcement orders requiring the SMS firm to simply stop bad behaviour are not delayed by a requirement to consult.
Clause 32 will grant a power to the DMU to introduce enforcement orders on an interim basis. The DMU needs to be able quickly to address immediate harms that may occur from suspected conduct breaches in order to prevent significant damage, prevent action that would make subsequent remedies ineffective, or protect the public interest. The clause will enable intervention before irreversible change occurs and will ensure that options to restore competition are maintained.
Clause 33 makes provision for the duration of enforcement orders and interim enforcement orders, and for the circumstances in which they cease to have effect. Clause 34 will establish the DMU’s power to revoke an enforcement order, ensuring that the enforcement orders in place remain targeted and proportionate. The DMU needs the flexibility to remove enforcement orders where they are no longer appropriate, so that SMS firms are not subject to unnecessary or inappropriate rules.
Finally, to ensure that enforcement orders are effective, targeted and proportionate, it is important that the DMU considers how they function and whether changes are necessary. Clause 35 will require that the DMU monitors the effectiveness of the enforcement orders in place. That includes assessing whether SMS firms are complying with existing enforcement orders, whether variation of an order is required and whether further enforcement action is needed.
In conclusion, clauses 26 to 35 set out robust enforcement provisions to make sure that the impacts of conduct requirements are realised.
It is an honour to serve under your chairship this afternoon, Mr Hollobone. With your permission, I will make some brief comments on the clauses, in response to the Minister.
Clause 26 is very welcome. It is an important clause that outlines the circumstances in which the CMA will be able to begin an investigation into a suspected breach of a conduct requirement, more formally referred to in the Bill as a conduct investigation. It is an important and positive addition. For too long, the CMA has not had the legislative teeth to make positive change in our digital markets. Ensuring that it has reasonable and sufficient powers such as those outlined in the clause is central.
Labour particularly welcomes the provisions and thresholds outlined in subsection (1), which make it clear that the decision to begin a conduct investigation will be grounded in empirical evidence, whether from complaints submitted by third parties or from the CMA’s own market studies. None of us wants to see overregulation or businesses stifled, but it is important that when the CMA has reasonable grounds to carry out a breach of conduct requirement, it has the tools available to act swiftly.
We note that subsections (3) and (4) outline the requirement for the CMA to give a notice to the undertaking about the investigation and set out the content required for that notice. We welcome the provisions entirely, as we do the clarification on the period in which a statutory investigation can take place. We think six months is reasonable, and we are pleased to see clarity on when the timeframe can be extended—a matter we will come to later when we address clause 102.
The current wording of subsection (6) states:
“As soon as reasonably practicable after giving a conduct investigation notice, the CMA must publish a statement summarising the contents of the conduct investigation notice.”
Could the Minister clarify exactly where, and to whom, that notice will be published? As I have previously stated in reference to other parts of the Bill, there are some grounds for making that information public, at least to those who request it. We appreciate the market sensitivities, but ultimately it is businesses that will be facing regulation over their digital practices, broadly for the first time, and they deserve access to that information. It will be a valuable tool for learning and best practice.
I will keep my comments on clause 27 brief because I think, or at least hope, that we all agree that it is an important clause that makes sure that the CMA is required to consider representations from the undertaking being investigated before making a decision on whether the undertaking has breached conduct requirements. I am keen to hear from the Minister exactly what sort of information he believes will be appropriate for the CMA to consider. A balanced approach to the regime is critical, but we do not want the CMA’s investigatory powers delayed by big firms who may choose to delay or overwhelm the process in any way. That aside, we support the clause and have not sought to amend it at this stage. Sincere apologies to Committee members for my repetition, but this is a far more collegiate Committee than others I have sat on.
We support clause 28 and its intentions. As we know, the clause provides that the CMA can choose to close a conduct investigation without making a decision about a breach, and sets out the process and timing for giving a notice to the undertaking about the closure and publishing a summary of the notice. We welcome provisions and clarity over this process. The CMA could summarise the contents of the notice provided to the relevant designated undertaking, while allowing it to redact some information for confidentiality purposes. However, we feel that there is a strong argument, once again, for making that information public to anyone who wishes to request a copy.
Labour welcomes the intentions of clause 29, which outlines the procedure that the CMA must follow where a breach of a firm’s conduct requirement results in net benefits for consumers. This is an important clause, and it is vital that we have such an exemption to ensure that the regime does not inadvertently harmfully impact consumers. However, the countervailing benefits exemption must not be drawn too broadly. If the exemption is too broad, SMS firms will be able regularly to avoid conduct requirement compliance by citing security and privacy claims, as well as spamming the CMA with numerous studies, thus diverting its resources, which, as we have discussed, are very precious. This would undermine the entire regime by severely limiting the efficacy and efficiency of the conduct requirements. I therefore wonder whether the Minister has considered including in the Bill an exhaustive or non-exhaustive list of acceptable grounds for exemption.
Broadly speaking, though, Labour welcomes the Government’s approach, which has similarities with the approach taken in the Competition Act 1998. It would be remiss of me not to remind the Minister that that important Act came into being thanks to a Labour Government. The reality is that Labour has always been committed to getting this balance right. We want to support big businesses, while also protecting consumers and encouraging innovation. These principles do not have to be mutually exclusive. That is why we particularly welcome clause 29(2), which sets out the criteria for the exemption, including that the benefits need to be
“to users or potential users of the digital activity in respect of which the conduct requirement in question applies,”
“outweigh any actual or likely detrimental impact on competition resulting from a breach of the conduct requirement”.
As we know, some examples of benefits may include lower prices, higher-quality goods or services, or greater innovation in relation to goods or services.
Clause 29 also makes it clear that it must not be possible to realise the benefits without the conduct, which means that the CMA must be satisfied that there is no other reasonable or practical way for the designated undertaking to achieve the same benefits with less anti-competitive effect. That is an important clarification, which is once again a sensible approach that we feel is crucial to getting the balance of this regime right.
Although I know that colleagues will be aware of the example highlighted to us all in the Bill’s explanatory notes about a default internet browser receiving security updates possibly being an exemption, I wonder whether the Minister can give us additional examples of situations in which he would see the clause coming into effect. That aside, we support the intentions of clause 29 and see it as a positive step in terms of putting consumers and common sense first.
We see clause 30 as being fairly procedural, in that it outlines the circumstances in which the CMA must give notice about the findings of a conduct investigation. We are pleased to see that a period of six months has been established; none of us wants to see this process going on unnecessarily. We note, however, that in subsection (1), and in the Bill generally, we truly believe that more transparency is required. As it stands, the Bill is missing an opportunity to afford civil society, academics, businesses and consumers alike the opportunity to learn from the regime and ultimately to improve best practice in our digital markets more widely.
We welcome clause 31. However, we note that subsection (4) specifies information that the enforcement must contain, while subsection (5) requires that the CMA
“may consult such persons as the CMA considers appropriate before making an enforcement order”,
or varying one. Again, the wording is very subtle, but I am most interested to hear from the Minister exactly why the consultation process is a “may” rather than a “must”.
Throughout the Bill in its current form, there appears to be a lack of points for stakeholders to engage with the CMA decisions through consultation. Although the CMA being able to design rules and interventions for each firm could result in more effective remedies, it also increases the risk of regulatory capture, whereby SMS firms write their own rules and get them rubber-stamped by the regulator. That makes proper consultation essential. I would appreciate clarification on that point from the Minister.
Clause 32, as its title suggests, gives the CMA the power to make enforcement orders on an interim basis. This is an important tool to allow the CMA to act rapidly where a potential breach is concerned. It is particularly welcome that subsection (1)(b) lists the circumstances under which interim enforcement orders can be made, and that these are broadly around preventing damage to a person or people, preventing conduct that could reduce the effectiveness of the CMA, or protecting the public interest. It is important for all of us with an interest in the Bill that that is clearly outlined in the Bill, so that is very welcome indeed.
Clause 33 makes provision for enforcement orders and interim enforcement orders to come into force, and outlines the circumstances in which they cease to have effect. We see this clause as, again, a fairly procedural one. We welcome the clarity of subsection (4), which will ultimately enable the CMA to take action against historic breaches. That is imperative, given the pace at which our digital markets and regulated firms can shift. We therefore support the clause and believe that it should stand part of the Bill.
On clause 34, as with previous clauses, there is no need for me to elaborate at great length. In essence, we agree with the clause.
As we know, clause 35 outlines that the CMA must keep the enforcement orders and interim enforcement orders that it has made under review, including whether to vary or revoke them, and also the extent to which undertakings are complying with them and whether further enforcement action needs to be taken. This is an incredibly important point. The CMA must review its own homework, as we expect all regulators to do. However, I wonder what assessment the Minister has made of making those reviews public. The CMA must have a degree of accountability, particularly to Parliament. We feel that that is somewhat lacking in the Bill as it stands.
More widely, that points to the lack of opportunities for stakeholders to engage with the CMA and its decisions through consultation, as I have previously said. This is a significant problem, given the nature of the regime. On the one hand, the flexibility and agency that the DMU has to tailor its regulatory approach depending on the nature of the firm should allow it to design more effective remedies. On the other, it increases the danger of regulatory capture by SMS firms. I would appreciate the Minister clarifying that point so that we get this right.
The publication of notices will be online. The reason that there will be two separate versions is that one might be redacted, for example for things like commercial sensitivity, but it is right that the SMS firm understands the full reasons. Beyond that redaction, there will be one separate online publication for people to see, including the challenger firms themselves.
The hon. Lady spoke about the length of time. The DMU will decide the length of the period during which an SMS firm can make representations, because it will vary from case to case. It is not for us to set an arbitrary timeline, because some will be comparatively simple and others will be incredibly complex and technical. That will ensure that the DMU can run investigations efficiently, without unnecessary delays due to late representations, but the DMU has to tell the SMS firm in the notice opening the investigation about the length of the period.
The implementation of any conduct requirements will be preceded by a public consultation, alongside ongoing engagement between the SMS firm and the DMU about compliance with those requirements as part of the regime’s participative approach. However, there is no statutory requirement to consult on enforcement orders, because we are giving the DMU the discretion to consult where appropriate. Requiring consultation would not be proportionate for straightforward cease-and-desist orders, for example. Such orders, which we expect to be the majority of orders made, simply require firms to stop breaching the original conduct requirement that has already been consulted on, meaning that undertaking a consultation would be unnecessary.
That is where we are coming from on that—there is no deeper reason beyond ensuring that we can keep things proportionate for all sides. Third parties with a view or with evidence will be able to communicate those to the DMU during the conduct investigation itself, or once the enforcement order statement is published.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clauses 27 to 35 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss the following:
That schedule 1 be the First schedule to the Bill.
Clause 37 stand part.
I turn to the clauses on commitments related to conduct requirements. The ability of the DMU to accept commitments, which are voluntary and binding obligations, from SMS firms is important to support the participative approach to regulation that I have spoken about. That approach promotes greater efficiency and the swift resolution of investigations.
Clause 36 will allow the DMU to accept commitments from a firm during a conduct investigation. Firms will be able to offer commitments to the DMU to propose a solution to a suspected breach of conduct requirements. There will be robust safeguards in place to ensure that commitments are used appropriately. The DMU will need to publicly consult on any proposal to accept a commitment. Commitments can be varied to reflect changes in circumstances and will remain in force until either the DMU decides to release the SMS firm from the commitment or the conduct requirement to which the commitment relates comes to an end.
Clause 37 will ensure that the DMU is required to monitor the commitments that are accepted. That includes assessing the appropriateness of the commitments; whether SMS firms are complying with the commitments; and whether further enforcement actions are needed. To ensure that commitments are accepted, varied or revoked in a transparent way, schedule 1 sets out the procedures relating to commitments.
The procedures in schedule 1 also apply in relation to commitments for pro-competition interventions, but I will speak about those at a later stage. Schedule 1 ensures that the DMU publishes a notice detailing the commitment or proposed varying or revocation of the commitment and the reasons for its decision. The DMU must also consider any representations made in accordance with the notice before accepting, varying or revoking commitments. Without the ability to accept commitments, the DMU would have to use greater resources to further investigate breaches, and then develop and impose enforcement orders to fix them. The swift and effective resolution through binding commitments will be beneficial for the DMU, affected firms and ultimately consumers.
Labour supports the intentions of clause 36, which ensures that the CMA can accept binding voluntary commitments from an undertaking during a conduct investigation to bring the investigation to an end. Once again, we feel that that is critical to a flexible and fair regulatory regime. It is only right that the CMA is empowered to continue an investigation into other behaviour and, when it can, investigate the same behaviour again. Therefore, we particularly welcome subsection (4).
That being said, there is no mention of consultation regarding the accepting of commitments from SMS firms, even though that will close a conduct requirement investigation and the commitments accepted will impact stakeholders. There is also no consultation when the CMA chooses to release an SMS firm from the commitments. Again, we feel that those points are worth clarifying. I would be grateful if the Minister could outline exactly why the Bill fails to place a duty on the CMA to consult appropriately on that important point.
Schedule 1 and its provisions relate to the commitments on firms, and it is very welcome. The schedule outlines the duty on the CMA to publish a notice, and consider any representations made in accordance with the notice that are not withdrawn. That is a logical and sensible approach. We also welcome the range of provisions in the schedule that provide extensive clarity on the CMA’s responsibilities in relation to its decision making. We have repeatedly called for more clarity with a number of amendments, so I hope the Minister will carefully consider our reasonable requests. Overall, schedule 1 is an important part of the Bill that further clarifies the CMA’s responsibilities, and we support its inclusion.
Without mirroring the comments that were made when we considered clause 25, Labour supports clause 37. It is vital for the regime to function now and into the future that the CMA has a duty to review those commitments. I am interested to know the Minister’s thoughts on how frequent the reviews should be, but ultimately this is the right approach if we are to ensure and encourage total compliance. I hope that the Minister will assure us that the Government are open to improving the Bill when it comes to transparency, including parliamentary oversight. With that in mind, we do not have any specific amendments to clause 37 at this stage, but that could change.
To answer the hon. Lady’s point about consultation in clause 36, I will point her to schedule 1(2), which requires the DMU to consult on commitments before they are accepted or varied. Although that requirement is not in clause 36, it is in schedule 1.
Question put and agreed to.
Clause 36 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 37 ordered to stand part of the Bill.
Power to adopt final offer mechanism
With this it will be convenient to discuss the following:
Government amendments 2 to 4.
Government amendment 45.
Government amendment 6.
Government amendments 8 and 9.
Government amendment 11.
Government amendment 4 redefines what transactions can be dealt with under the final offer mechanism. It is accompanied by several consequential amendments to clauses 38 to 41. One of the conditions for the use of the final offer mechanism as currently drafted is that it can be used only in relation to a “proposed” transaction, where an SMS firm provides goods or services to the third party, or uses or acquires goods or services from the third party.
However, for the final offer mechanism to be most effective, it is crucial that the definition of “transaction” includes the future performance of an existing transaction, as well as new transactions that will happen in the future. That will ensure that parties who are already transacting with each other but on unfair and unreasonable payment terms are not excluded by the conditions for using the final offer mechanism. These are consequential, technical amendments that have been produced alongside feedback from the CMA.
We welcome the first group of Government amendments, which we see as important clarifications to ensure that the final offer mechanism can be applied in relation to the future performance of an ongoing transaction. We support their inclusion, as those changes should stand part of the Bill.
Amendment 1 agreed to.
Amendments made: 2, in clause 38, page 21, line 1, leave out “proposed”.
See the explanatory statement for Amendment 4.
Amendment 3, in clause 38, page 21, line 7, leave out “proposed”.
See the explanatory statement for Amendment 4.
Amendment 4, in clause 38, page 21, line 13, at end insert—
“(4A) In subsection (1), ‘transaction’ means—
(a) a future transaction, or
(b) the future performance of an ongoing transaction,
whether in accordance with a contract or otherwise.”
This amendment, together with Amendments 1, 2, 3, 6, 8, 9, 11 and 45 means that the final offer mechanism could be applied in relation to the future performance of an ongoing transaction.
Amendment 45, in clause 38, page 21, leave out line 20 and insert—
“‘the transaction’ means the transaction mentioned”—(Paul Scully.)
See the explanatory statement for Amendment 4.
Question proposed, That the clause, as amended, stand part of the Bill.
With this it will be convenient to discuss the following:
Clause 39 stand part.
Government amendment 7.
Government amendment 10.
Clauses 40 to 43 stand part.
Government new clause 1—Decision not to make final offer order—
New clause 3—CMA annual report on final offer mechanism—
‘(1) The CMA must, once a year, produce a report about the final offer mechanism.
(2) Each report must include information about—
(a) the number of final offer orders the CMA has made over the previous year;
(b) for each final offer order—
(i) the amount of time taken between final offer initiation notice being given and the final offer order being made.
(ii) whether bids were submitted by both the undertaking and the third party, and
(iii) the outcome of the process; and
(3) The CMA may provide the information in such a way as to withhold any details that the CMA considers to be commercially sensitive.
(4) The first report must be published and laid before both Houses of Parliament within one year of this Act being passed.’
This new clause requires the CMA to publish an annual report on the workings of the final offer mechanism. The report will be made publicly available and will be laid in both Houses of Parliament.
Clauses 38 to 43 will allow the DMU to use the final offer mechanism as a backstop enforcement measure to other regulatory tools. The final offer mechanism will help the DMU to resolve breaches of conduct requirements requiring fair and reasonable payment terms when there has been sustained non-compliance by an SMS firm. The inclusion of these clauses in the Bill is essential to provide the DMU with a more effective alternative to setting prices directly, which could be complex and time-consuming in fast-moving digital markets.
The final offer mechanism is a backstop that can be used when normal enforcement processes have not brought about a timely resolution. The DMU must prevent SMS firms from imposing unfair and unreasonable terms in the first place and incentivise constructive negotiations. That will ultimately drive the best outcomes for consumers, which is why there is a high threshold set out in clause 38 for the use of the final offer mechanism.
On the occasions when the tool is used, the DMU will ask the SMS firm and relevant third party to each submit what they believe are fair payment terms—their final offers—and the DMU will then choose one. The regulator will not be able to amend or replace the offers. To ensure the timely resolution of the breach, clause 40 establishes that the upper time limit for the entire final offer process is six months, as well as providing for a power for the Secretary of State to amend that time limit in future. The clauses also establish clear requirements on the DMU to publish key notices and statements upon issuing any orders, ensuring public transparency and accountability about the tool’s use.
It is important when discussing these clauses to mention the role of the DMU in facilitating the preparation of the final offers. Under clause 39, the DMU can both gather and share crucial information between the two parties, allowing both sides to prepare a well evidenced final offer. The outcome of the final offer mechanism will be confirmed through a final offer order, which will instruct the SMS firm to give effect to the terms decided through the tool.
Government amendment 7 makes provision for how final offer payment terms are to be given effect for the purposes of the transaction. The amendment makes explicit that the final offer order will not set out specific terms that must be incorporated word for word into the terms of the transaction; rather it will set out the outcome for the transaction for the SMS firm to achieve. I therefore encourage Members to support its inclusion. The clauses also contain key provisions for ensuring that the use of this tool is proportionate, allowing the DMU to revoke a final offer order where there has been a material change in circumstances.
On that topic, I turn to Government amendment 10 and new clause 1. Taken together, they will ensure that the DMU can end the final offer mechanism without making a final offer order, at any time after giving a final offer initiation notice where there has been a material change in circumstances. Such a change in circumstances may include a privately negotiated agreement being reached between the disputing parties, or evidence of duress becoming known to the DMU. This amendment will therefore ensure the tool is not used where it is not appropriate to do so, and that the DMU has suitable flexibility to make that decision. I therefore invite the Committee to support these clauses and the relevant Government amendments.
Finally, on new clause 3 I fully recognise the importance of transparency in a regime in general, and regarding the use of this novel tool in particular. However, the Bill as drafted already contains a robust process for ensuring transparency on the rare occasions that this tool will be needed through the clear public statements published by the DMU at significant points in the process, including about any final offer orders made. Those statements will provide information about the operation of the final offer mechanism in practice, ensuring clarity as to how and when the tool is being used for the sake of stakeholders, as well as interested parliamentarians. That is in addition to the annual report already prepared and delivered to Parliament by the CMA, which will also cover its activities under the regime. As such, an additional annual report would not offer Parliament any greater insight into the use of that tool, and therefore I do not believe that the new clause would provide any additional benefit. I hope that the hon. Lady feels able to withdraw it.
As we know, there are several provisions contained in the Bill that could form the basis of new rules regulating agreements between UK news media and digital platforms, akin to the news media bargaining code in Australia. However, the formulation of those rules will be at the discretion of the DMU, and would apply on a case-by-case basis. As we have debated, the Bill currently enables the DMU to impose conduct requirements that are for the purposes of obliging undertakings to
“trade on fair and reasonable terms”.
Those undertakings could also be obliged by the DMU to not carry on activities other than their digital activities in a way that could be anti-competitive. That could be the case where carrying out that non-digital activity is likely to increase an undertaking’s market power materially or bolster the strategic significance of its position in relation to its digital activity.
The Bill also provides an arbitration process called a final offer mechanism. Under that mechanism, the DMU will invite the SMS firms and third parties to submit a payment terms offer that they regard as fair and reasonable. The DMU is then required to choose one party’s offer only, without any ability to determine alternative offers. That process has been adopted in Australia for the purpose of arbitrating bargains between digital platforms and news media providers, although it has not yet been used. While there is no provision for a media bargaining code in the Bill, the mere existence of this mechanism will hopefully drive tech platforms to negotiate sincerely with media providers in that context to reach an agreement independently, rather than risk the CMA choosing the final offer. We entirely welcome this clause, and the additional relevant ones to follow.
In the digital media sector, Google and Meta’s overwhelming market power means that publishers are not compensated fairly for the significant value that their content creates for platforms, which is estimated at about £1 billion per year here in the UK. Google Search and Meta’s Facebook rely on news publishers to attract and engage users, as professional news content is reliable and regularly updated. It is absolutely right that the CMA will be empowered to make pro-competition interventions. While the conduct reviews will hopefully prevent the worst abuses of market power, PCIs will allow the DMU to implement remedies that address the root cause of that market power. For example, a CR could prevent an SMS firm from self-preferencing its own businesses in the digital advertising market, which has negative impacts including locking businesses into products and taking an unfairly large cut of revenues, whereas a PCI could require a functional separation to remove the incentive for self-preferencing. Labour sees that as a hugely important tool. We want to see and support an empowered DMU, so we are pleased to support the clause and believe it should stand part of the Bill.
Again, we see clause 39 as important: it sets out the process that the CMA must follow if it decides to use a final offer mechanism. In theory, the DMU should support publishers, who will now be able to negotiate fair and reasonable terms for the value that news content brings to platforms. If SMS firms refuse to comply, a final offer mechanism will be available, with each party submitting bids and the fairest offer being selected. The DMU will ensure that publishers receive a fair share of revenues for the advertising that is shown around their content. Publishers will also be able to receive user data when consumers interact with their content on platform services, in a manner compliant with data protection law. In theory, unfair commissions on app store sales will be prevented, ensuring that publishers can build sustainable digital subscription businesses.
These are all very welcome developments indeed. We particularly welcome subsection (3), under which the CMA must specify if it is considering taking any other action to address the underlying cause of the breach that led to the use of the FOM—for example, a pro-competition order instructing a designated undertaking to provide access for third parties to consumer data held by that undertaking, which could rebalance bargaining power within that digital activity. It will come as no surprise that I ask the Minister, once again, to clarify whether such statements will be published in the public domain. This important point is worth clarifying, so I look forward to hearing about the adequacy of the transparency provisions in this part of the Bill.
Government amendments 7 and 10 are linked to Government new clause 1. They clarify that parties can still settle outside formal processes once the FOM stage has begun. Given that the aim of the final offer mechanism is to incentivise parties to come to a deal without direct CMA intervention, it seems right that parties are still able to come to a deal outside this formal process. This may allow for more favourable terms to be reached, as the platforms will be under pressure in the FOM process, and it will mean that publishers can avoid the uncertainty of the CMA picking one of the two offers.
There will always be a concern that the asymmetry of resources might mean that publishers compromise too far when faced with the uncertainty of an FOM decision but, ultimately, Labour supported these provisions when they appeared in clause 40, and moving them to ensure that a deal can be reached outside the FOM at any time after a final offer intention notice has been issued seems to make good sense. We therefore support the Government amendments.
Unsurprisingly, Labour also welcomes clause 40, which establishes the process that the CMA must follow with regard to the outcome of the FOM process. We need not go into much detail on this clause, as we view it as a fairly standard and effective way of ensuring that proposed transactions are fairly processed by the CMA.
At this point, I must press home the wider importance of these final offer mechanisms because, if they are implemented correctly, they could have incredibly positive benefits. Indeed, we know that Google and Meta have attempted to ward off fair negotiations in Australia and Canada by restricting, or threatening to restrict, access to domestic trusted news, which is the antidote to online disinformation. Denying citizens access to reliable information to avoid payment serves only to emphasise the primacy that these firms place on profit, rather than citizens’ interests. The Government should not give in to similar threats here in the UK, and I hope the Minister is listening.
As the EU and other jurisdictions have forged ahead with similar, but less agile and effective, digital competition regulations, there is a danger that the UK will become a rule taker, not a rule maker. Delayed or weakened legislation will leave UK businesses at a competitive disadvantage internationally, and will deny UK consumers lower prices and more innovative products. In contrast, a strong, forward-looking DMU regulation will ensure that digital markets live up to their potential, allowing consumers to enjoy the full benefits that technology can deliver. I hope that the Minister can reassure us that the Government will not bow to pressure and that the CMA will rightly be compelled to intervene where necessary.
Labour supports the intention of clause 41, which we also see as standard practice. Colleagues will note that subsection (1) provides that a final offer order must impose obligations on the designated undertaking that the CMA considers appropriate for giving effect to the final offer payment terms it has decided, and they must be included in the proposed transaction.
Again, subsection (2) sets out exactly what information the CMA must give to the parties, and we welcome the provision. I further note that subsection (3) requires the CMA to publish a statement summarising the final offer order, and this transparency is also welcome. It is unclear who will have access to these statements, so I am keen to hear the Minister’s assessment of the value of making such documents public to anyone who wishes to seek them. This aside, we support clause 41 and believe it should stand part of the Bill.
Labour supports clause 42 and particularly welcomes subsection (3). This is an important clause as it empowers the CMA to take action on both historical and live breaches. Concerns reported to us by tech companies include requiring clarity on the terms of these final offer mechanisms. It is well known that many users sign up to digital platforms, via terms and conditions, to access a service with no monetary exchange as part of the agreement. Does the Minister see this counting as a contract that is challengeable via the final offer mechanism under the DMU regime? Although the regime appears clear, the final offer mechanism relates to pricing disputes and there are concerns that it could be drawn wider. Clarity on this point is vital and is worth establishing on the record, so I am keen for the Minister to address it.
I do not have any specific comments to make on clause 43. As we have previously said, Labour believes it is important that the CMA must be legally obliged to keep these final offer orders under constant review. This is the nature of a workable, agile regime, and we therefore support the clause standing part.
We tabled new clause 3 to require the CMA to publish an annual report on the workings of the final offer mechanism. This report should be made publicly available and should be laid in both Houses so that Parliament has its say.
We recognise that the final offer mechanism is fairly unique, and it is therefore only right that the CMA is required to update the House each year, with findings on the number of SMS firms that are subject to these investigations. The Minister mentioned that the CMA will be obliged to provide an annual report to Parliament; I want it to be clear that what we have set out in new clause 1 on the final offer mechanism would be part of that report so that Parliament could scrutinise how many were made, for example. This would add to and support the other transparency measures we have pursued, so I hope the Minister not dismiss the new clause, but will consider it carefully. We feel that that is an important matter to get on record in any annual review.
I appreciate the spirit in which the hon. Lady has engaged in our debate on these clauses. I shall try to answer her questions in turn.
Publication will be online, so people will be able to see it. It will be public. The hon. Lady’s second question was: will I listen? Absolutely yes, I will. On her third question—will I not bow? I will bow to her, but not to pressure, because I think we have largely got this right. I cannot remember her last question—
Oh yes. It is important that we examine the efficacy of the final offer mechanism, so it is appropriate that that will be covered in the CMA’s review of all its work, and that we will get to see and assess that work as well. I can stand here and tell the Committee that I think we have got it right now, but things change. Yes, it is flexible, and yes, it is proportionate, but we want to make sure that it stays world beating.
Question put and agreed to.
Clause 38 accordingly ordered to stand part of the Bill.
Final offer mechanism
Amendment made: 6, in clause 39, page 21, line 32, leave out “proposed”.—(Paul Scully.)
See the explanatory statement for Amendment 4.
Clause 39, as amended, ordered to stand part of the Bill.
Final offers: outcome
Amendments made: 7, in clause 40, page 22, line 25, leave out
“included as terms of”
“given effect for the purposes of”.
This amendment means that terms as to payment are to be given effect for the purposes of the transaction, or of any substantially similar transaction, rather than having to be “included” as terms of the transaction.
Amendment 8, in clause 40, page 22, line 26, leave out “proposed”.
See the explanatory statement for Amendment 4.
Amendment 9, in clause 40, page 22, line 28, leave out “proposed”.
See the explanatory statement for Amendment 4.
Amendment 10, in clause 40, page 22, line 36, leave out subsections (6) to (10).—(Paul Scully.)
See the explanatory statement for NC1.
Clause 40, as amended, ordered to stand part of the Bill.
Final offer orders: supplementary
Amendment made: 11, in clause 41, page 23, line 19, leave out “proposed”.—(Paul Scully.)
See the explanatory statement for Amendment 4.
Clause 41, as amended, ordered to stand part of the Bill.
Clauses 42 and 43 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Mike Wood.)
Adjourned till Thursday 22 June at half-past Eleven o’clock.
Written evidence reported to the House
DMCCB18 Open Markets Institute (supplementary submission)
DMCCB19 Public Interest News Foundation and Impress
DMCCB20 Which? (supplementary submission)
DMCCB21 UK Interactive Entertainment Association (Ukie)
DMCCB22 Online Dating Association
DMCCB23 Financial Times
DMCCB24 Publishers Association
DMCCB25 Telegraph Media Group
Victims and Prisoners Bill (First sitting)
The Committee consisted of the following Members:
Chairs: † Julie Elliott, Stewart Hosie, Sir Edward Leigh, Mrs Sheryll Murray
Antoniazzi, Tonia (Gower) (Lab)
† Argar, Edward (Minister of State, Ministry of Justice)
† Baillie, Siobhan (Stroud) (Con)
† Bell, Aaron (Newcastle-under-Lyme) (Con)
† Butler, Rob (Aylesbury) (Con)
† Champion, Sarah (Rotherham) (Lab)
† Colburn, Elliot (Carshalton and Wallington) (Con)
† Daby, Janet (Lewisham East) (Lab)
† Eagle, Maria (Garston and Halewood) (Lab)
† Heald, Sir Oliver (North East Hertfordshire) (Con)
† Jones, Fay (Brecon and Radnorshire) (Con)
Logan, Mark (Bolton North East) (Con)
† McMorrin, Anna (Cardiff North) (Lab)
† Nici, Lia (Great Grimsby) (Con)
† Phillips, Jess (Birmingham, Yardley) (Lab)
† Reeves, Ellie (Lewisham West and Penge) (Lab)
† Throup, Maggie (Erewash) (Con)
Anne-Marie Griffiths, Bethan Harding, Committee Clerks
† attended the Committee
Nicole Jacobs, Domestic Abuse Commissioner
Jayne Butler, CEO, Rape Crisis England and Wales
Dr Hannana Siddiqui, Head of Policy and Research, Southall Black Sisters
Ellen Miller, Interim CEO, SafeLives
Dame Rachel de Souza, Children’s Commissioner
Dame Vera Baird KC, Former Victims’ Commissioner for England and Wales
Claire Waxman, Victims’ Commissioner for London
Public Bill Committee
Tuesday 20 June 2023
[Julie Elliott in the Chair]
Victims and Prisoners Bill
We are now sitting in public and the proceedings are being broadcast. Before we begin, I have a few preliminary announcements. First, it is very warm, even after the thunderstorm, so if people want to remove their jackets or cardigans, that is fine. Hansard colleagues would be grateful if Members could email their speaking notes to email@example.com. Please switch electronic devices to silent.
We will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about questions before the oral evidence session. In view of the time available, I hope we can get through these matters quickly, as I am sure we will.
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 20 June) meet—
(a) at 2.00 pm on Tuesday 20 June;
(b) at 11.30 am and 2.00 pm on Thursday 22 June;
(c) at 9.25 am and 2.00 pm on Tuesday 27 June;
(d) at 11.30 am and 2.00 pm on Thursday 29 June;
(e) at 9.25 am and 2.00 pm on Tuesday 4 July;
(f) at 11.30 am and 2.00 pm on Thursday 6 July;
(g) at 9.25 am and 2.00 pm on Tuesday 11 July;
(h) at 11.30 am and 2.00 pm on Thursday 13 July.
2. the Committee shall hear oral evidence in accordance with the following Table:
Date Time Witness Tuesday 20 June Until no later than 9.55 am Domestic Abuse Commissioner Tuesday 20 June Until no later than 10.40 am Rape Crisis England & Wales; Southall Black Sisters; SafeLives Tuesday 20 June Until no later than 10.55 am Children’s Commissioner for England Tuesday 20 June Until no later than 11.25 am Dame Vera Baird DBE KC; Victims’ Commissioner for London Tuesday 20 June Until no later than 2.45 pm Nottinghamshire Police and Crime Commissioner; Association of Police and Crime Commissioners; National Police Chiefs’ Council Tuesday 20 June Until no later than 3.00 pm Parole Board Tuesday 20 June Until no later than 3.30 pm Crown Prosecution Service Tuesday 20 June Until no later than 4.00 pm Local Government Association; NHS England Tuesday 20 June Until no later than 4.45 pm National Association for People Abused in Childhood; Victim Support; We Are Survivors Thursday 22 June Until no later than 12.00 noon The Right Reverend James Jones KBE; Ken Sutton Thursday 22 June Until no later than 12.15 pm Lord Wills Thursday 22 June Until no later than 12.45 pm Nick Hurd; Tim Suter Thursday 22 June Until no later than 1.00 pm Refuge Thursday 22 June Until no later than 2.30 pm Jenni Hicks Thursday 22 June Until no later than 2.45 pm Dr Stuart Murray; Grenfell Next of Kin Thursday 22 June Until no later than 3.15 pm Sophie Cartwright KC
Tuesday 20 June
Until no later than 9.55 am
Domestic Abuse Commissioner
Tuesday 20 June
Until no later than 10.40
Rape Crisis England & Wales; Southall Black Sisters; SafeLives
Tuesday 20 June
Until no later than 10.55 am
Children’s Commissioner for England
Tuesday 20 June
Until no later than 11.25 am
Dame Vera Baird DBE KC; Victims’ Commissioner for London
Tuesday 20 June
Until no later than 2.45 pm
Nottinghamshire Police and Crime Commissioner; Association of Police and Crime Commissioners; National Police Chiefs’ Council
Tuesday 20 June
Until no later than 3.00 pm
Tuesday 20 June
Until no later than 3.30 pm
Crown Prosecution Service
Tuesday 20 June
Until no later than 4.00 pm
Local Government Association; NHS England
Tuesday 20 June
Until no later than 4.45 pm
National Association for People Abused in Childhood; Victim Support; We Are Survivors
Thursday 22 June
Until no later than 12.00 noon
The Right Reverend James Jones KBE; Ken Sutton
Thursday 22 June
Until no later than 12.15 pm
Thursday 22 June
Until no later than 12.45 pm
Nick Hurd; Tim Suter
Thursday 22 June
Until no later than 1.00 pm
Thursday 22 June
Until no later than 2.30 pm
Thursday 22 June
Until no later than 2.45 pm
Dr Stuart Murray; Grenfell Next of Kin
Thursday 22 June
Until no later than 3.15 pm
Sophie Cartwright KC
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 11; Clauses 16 to 21; Clauses 12 to 15; Clauses 22 to 33; Schedule; Clauses 34 to 55; new Clauses; new Schedules; remaining proceedings on the Bill.
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 13 July.
The Committee will therefore proceed to line-by-line consideration of the Bill on Tuesday 27 June at 9.25 am.
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Edward Argar.)
Copies of written evidence that the Committee receives will be made available in the Committee Room and will be circulated to Members by email.
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Edward Argar.)
We will now go into private session for a few moments to discuss lines of questioning.
The Committee deliberated in private.
Examination of Witness
Nicole Jacobs gave evidence.
We are now sitting in public again and the proceedings are being broadcast. Before we hear from the witness, do any Members wish to make declarations of interests in connection with the Bill?
I would like to declare, in the interests of full transparency, that prior to my election I was a non-executive director of what was then Her Majesty’s Prison and Probation Service and a member of the Sentencing Council. I was also a magistrate for 12 years and previously a member of the independent monitoring board of HMP Young Offenders’ Institution Feltham. I hope that covers the full gambit.
In that case, I should probably declare that I have run sexual violence services, domestic abuse services, female offender services, human trafficking services and sexual exploitation services, as well as being the chair of the all-party parliamentary group on children at the centre of the family court and the vice chair of the all-party parliamentary group on domestic abuse. I think that is it.
Thank you. I am happy to take declarations throughout proceedings if any Member thinks there is something they need to declare as we go through.
I welcome our first witness this morning, Nicole Jacobs, the Domestic Abuse Commissioner. We will now hear her oral evidence.
Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill and that we stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 9.55 am. Could I ask Nicole Jacobs to introduce herself for the record, please?
Nicole Jacobs: Good morning, everyone. I am Nicole Jacobs. I am the Domestic Abuse Commissioner for England and Wales.
Thank you. Jess Phillips will ask the first question.
Nicole Jacobs: Thanks for having me today. In general, I have huge hopes for this Bill. If amended and changed, which I am sure we will talk about, it could really produce momentous change for victims of domestic abuse. I am here to talk about victims of domestic abuse. You obviously have a wider scope of victims to consider, but victims of domestic abuse are highly prevalent; in my mind, that also includes and has a very strong link to so-called honour-based abuse, forced abuse, sexual violence, stalking and harassment, because, for the vast majority of people in those categories, you would find that their perpetrator is either a current or former partner.
It is hugely important to think about, in each and every part of the Bill, where we could improve and how we could go further to make it more meaningful on the ground. That is my interest. As things stand now, my topline view is that there is a lot to work with here, particularly regarding the duty to collaborate. That has huge potential to transform services on the ground, if the provisions are implemented correctly, which is what we need to spend some time talking about.
Nicole Jacobs: First, I hope you will consider the mapping report that my office produced; I will tell you a little about it. When I became commissioner, that was one of the responsibilities of my role, and last year we produced a mapping report of services for England and Wales. That is a very important document, partly because we have not had one before. It brought together information from commissioners, from domestic abuse services on the ground, and, really importantly, from thousands of victims who fed back about their experiences of seeking services in the last three years—on what they wanted, what they got, and what is actually out there. We have not had that information at our disposal before. We have a sense of what is out there and we have other types of reports, but this is pretty comprehensive.
The report showed how huge the gaps are. Part 4 of the Domestic Abuse Act 2021 brought us the accommodation-based duty, which of course was a huge step forward, but we have to appreciate that 70% of victims go to community-based services, which is what you are looking at in this duty to collaborate and how it is funded. We know that the vast majority of victims—over half—were not able to find services that they wanted or needed in that category. There are higher rates when it comes to services for children, and lots of variability regionally in services for children and domestic abuse. We are looking at huge gaps in mental health counselling and therapeutic support, and in services for perpetrators to change.
The stark reality that I want to get across to you—although you will know this, because you have constituents—is that there are huge gaps. We have come a long way in our thinking and our legislation about domestic abuse, but the services are not sustainably funded. That is simply the reality. I ran services myself, before I was in this role. To give you a sense of things, the charity I ran had about 34 different funding streams, which were always cutting off, with cliff edges at various points. It was a struggle to make ends meet and to keep services continuing. That is what the services are doing. They are not sitting in core budgets. Money is coming to them—and the good news is that, in particular in the past few years, we have had great money through the Ministry of Justice and other sources—but it comes to the local area in a not very coherent way for the services to plan and think about filling the gaps.
The duty to collaborate, therefore, is potentially truly transformational, but to be so it is not as simple as saying, “You must collaborate”, which is how I read some of the Bill as it stands. Services will have to plan for collaboration and bring partners together, while sometimes the geographical mix does not fit exactly and certainly the timescales do not fit. There has to be a joint strategic needs assessment, which sounds administrative, but it is the only way to make the best of such duties. That takes some time. Under part 4 of the Domestic Abuse Act, money was set aside for the needs assessment of housing and accommodation-based planning, and we have seen that in other types of things, like our serious violence duty. A very practical way to make sure that the duty is implemented well is to have the joint strategic needs assessment.
Also, very importantly, when partners get together and look around the table, cobbling everything together and getting everything in line as perfectly as they can, inevitably they will find that they do not have funding for certain things that we would all agree that we need—services for children particularly, or for domestic abuse. They will then need some kind of mechanism to feed back to us here and to decision makers in Government to say, “We have this gap. How is it going to be filled?” There has to be some kind of responsibility back and forth. That is the only way we will move in any kind of meaningful way to fill the gaps.
Nicole Jacobs: Absolutely, and there needs to be some kind of language that creates a responsibility for when the gap remains and how it is dealt with at the national level.
One other quick thing to point out from the mapping is the need for “by and for” services. What I mean by that is services that are very specific to particular groups: deaf and disabled survivors; black and minoritised survivors; LGBTQ+ survivors. What we found in our mapping is good news—that they are, by any measure, the most effective services for victims. We can see that because in our survey we could compare people who got to those services and how they felt with people who did not. That is very unusual, because usually we hear from reports and surveys of all people who made it to a service; it is great to hear about that effect, but in this mapping we could compare the two groups, so we can see how effective the services are.
We can also imagine how those services could be not effectively funded at the local level, because their geographic footprint might be a little larger, so the planning needs to be more regional or national. Another thing that has to be recognised at this stage is that there is a need for a “by and for” pot, which would help to supplement what is then implemented locally.
Nicole Jacobs: Certain parts of it could. Of course, that is highly dependent on what kinds of services are out there and what they are funded to do. On the definition of an independent domestic violence adviser and an independent sexual violence adviser, that work really needs refining, as does the duty to collaborate in terms of community-based services. You are absolutely right: most victims do not report to the police. The reality is that it is probably one in six. We published a report where we scoped specifically which community-based services are oriented to criminal and family court proceedings. For the family court, it is much less—around 18%. We can send that to the Committee.
Nicole Jacobs: I would, and I would go even further. You will spend a lot of time in this Committee hearing from people who will tell you about how to correct the criminal justice response as if it starts only with our statutory partners—the police, the Crown Prosecution Service and others. I beg you to realise—I have done this work myself—that the real meaningful work for a victim is when you have the community-based service, the IDVA or ISVA, in the mix and interacting with the police and those partners on a daily basis. That is where the problem solving is. You will get to a point where you will not have to worry as much about invoking the victims code because everything is taken care of.
Nicole Jacobs: That is a really important point. Imagine that you are on a team at a local level—that was my reality before I came into this role. In central London, in the year before I was appointed, 4,000 victims were referred to the service. They cannot be supported by a team of IDVAs as if that is all that is needed. The most successful teams are ones that are surrounded by other types of role that recognise that not all people will interact with the police or the criminal justice system, but they will need help and very practical support. I do not know whether I am putting that in the right way.
These roles have huge caseloads, just like a lot of our frontline services. They cannot be everything to everyone. A big step forward in the process would be to carve out and be clear. I am not as concerned about what roles are called; it is about the skills and knowledge that one needs to be at the table advocating with and alongside victims in the criminal justice system and other systems—housing, health and children’s social care. What are the skills and knowledge, and what tables should they sit at? The best work that I have ever done was when I was in a working system where I knew that there was an operational group with the police, the CPS and others that was oriented to that work. You could problem-solve. You could bring issues to the table that everyone grappled with together. You cannot do that without the advocate for the victim being in the mix and being supported to do that.
There is another thing that, if it were in the statutory guidance or provisions, would allow a huge step forward. We have done a lot of funding of these roles, but not a lot of development of what that really means. What is the salary? What are the skills and knowledge? What is the practice development for this type of criminal justice advocacy or family court advocacy? That would move us substantially forward. Those are all possibilities that we can achieve in the Bill if we get the guidance, funding and language right.
Nicole Jacobs: No. I had heard something along the lines of there being an interest in making sure that there were improvements to parole. I was surprised, and I understand the arguments made about the optics of it. On a practical level, I feel strongly that we really have to achieve the ambition of the Bill.
On the parole reforms, I talk to families, particularly bereaved families, and they often do not have a very good experience of the parole system, in terms of feeling informed and feeling that their concerns about release are being dealt with. One of the things that I am most curious about regarding the last-minute changes is how strong the parole provisions will be and how the family liaison care will be improved. I am very interested in what mental health assessments will be required when prisoners are released who have committed domestic abuse or murder. You are right: my thinking about this is probably less developed, because this was added on quite quickly.
Nicole Jacobs: I think broader is really positive. If you were to limit the definition to people who are accessing criminal justice remedies, then when it comes to domestic abuse, for example, that would narrow it way too much. Of course, the Domestic Abuse Act has a definition of children as victims in their own right. I am quite comfortable with the definition and feel good about what it is signalling, which is that in the victims code we want support for all victims, regardless of whether they engage with the police, for example. Services should be there.
One of my main concerns when it comes to genuinely providing services for all is that with domestic abuse, you are still leaving out migrant survivors and people who are in this country as students or with some other visa status; they have trouble accessing domestic abuse services. That could be fixed quite simply by allowing recourse to public funds for domestic abuse services for the period when a migrant is here—often victimised by a citizen here, let’s keep in mind. Having the provision of care that any other victim has: that is the one key thing I would highlight.
Nicole Jacobs: When I think of the impact of the victims code, the broadening of the victim definition impacts the fact that we want services for all in terms of what they need. A victim of domestic abuse, for example, may not ever have talked to the police, but may need housing support or support for their children and all sorts of things. Having that in place is really important. When you are talking about the obligations in the code in relation to people being informed about their case and all those things, to some degree quite a lot of victims will not need that if they are not engaging. In other words, I do not think it adds a huge amount of pressure that does not already exist on the statutory services in that regard.
Nicole Jacobs: I would not want the Committee to believe that there are not existing ways of training. Earlier in my career, I myself was part of developing the core training for IDVAs and doing that initial training, so I am fairly familiar with that. It is an accredited training. A lot of commissioners at the local level will require that level of training when they are tendering for community-based domestic abuse services, for example. I think you will hear from some charity CEOs later who can give you some more detail. Where we are is that while that is often included in commissioning standards, we need something more specific, more uniform, so that we—and, frankly, all our statutory partners—are really clear on what skills and knowledge these roles bring. I feel that we have this ability and need to carve out very specifically for criminal justice work and family court work what the skills and knowledge are that you need in particular.
You have three minutes left.
Nicole Jacobs: Sorry. This is my job—I could talk about it all day. I think there is real scope to better define what good looks like for that, and that will impact the victims code and compliance with it. It impacts the multi-agency working at the local level. That would be a huge step forward.
Nicole Jacobs: No, I see that a lot more as a role at the local level.
Nicole Jacobs: Of the services that domestic abuse victims access, 70% are community-based services. Having worked at them, I can say that you do not need to compel them to fill the gaps. They exist only to provide those services, and they desperately want to provide more. They will engage with absolutely any process that would help fill gaps for the people they are working with.
Nicole Jacobs: I would expect there to be a meaningful assessment at the local level—a joint strategic needs assessment—where the potential funders come together alongside service providers and experts in their area and think very critically about what opportunities they have. That will not be totally precise, because some of it would depend on bidding, so they would have to decide together.
Nicole Jacobs: The Bill could open recourse to public funds to all survivors. It could also create a firewall between the police and immigration enforcement so that people who are desperately needing protection would not fear calling or talking to services because of negative repercussions. They would just know that they would be made safe. They would have safety before status.
I am afraid that that brings us to the end of the time allotted for the Committee to ask questions. I thank the witness, on behalf of the Committee, for giving evidence this morning.
Examination of Witnesses
Jayne Butler, Ellen Miller and Dr Hannana Siddiqui gave evidence.
There is a slight technical problem, so we will start with the witnesses who are here, and we will continue to try to get the other witness online as soon as possible.
We are now going to hear oral evidence from Jayne Butler, chief executive officer of Rape Crisis England and Wales; Dr Hannana Siddiqui, head of policy and research, Southall Black Sisters; and, if we manage to get the technology working, Ellen Miller, interim chief executive officer of SafeLives, via Zoom. Could the witnesses quickly introduce themselves for the record?
Jayne Butler: I am Jayne Butler, chief executive of Rape Crisis England and Wales.
Dr Siddiqui: I am Dr Hannana Siddiqui, head of policy, campaigns and research at Southall Black Sisters.
Lovely. We now have Ellen joining us as well. Ellen, could you introduce yourself, please? [Interruption.] Ah. We will carry on, and hopefully Ellen will be able to join us as time progresses. Can I ask Anna McMorrin to ask the first question, please?
Ellen Miller: I hope you can hear me okay. I am Ellen Miller, interim CEO at SafeLives.
Thank you. We are very pleased that you can join us.
Jayne, can you tell the Committee what you think the Bill will do to tackle the historic low rates of rape prosecutions? Can you set out what you have said in your report today?
Jayne Butler: We had a lot of hope that the Bill would really change things for victims, particularly given the commitments that were made two years ago in the rape review. While there has been some positive progress on some things, there has been nowhere near enough to make a difference to the figures, and to the people on the ground who experience sexual violence and go to court. We can see that in the stats. It is evident, and does not really need me to speak to it.
There are still huge issues to do with the charges, conviction rates and use of scorecards. We talked in our report about the lack of understanding of who is using the criminal justice system and how, and a range of other things to do with victims and the specific legislation. For example, currently we do not have protection for counselling notes when victims come to court, and the Bill will not solve that. We do not have the security that victims will get support throughout the process and beyond. We hear time and again from people who report through the criminal justice system, then get to the end of the process and feel discarded. Those are the ones who are coming in, which we know is a tiny proportion of those affected by these crimes.
We feel that there is no genuine legacy in the Bill for ISVA roles, which have been really prioritised by the Government and funded at a much higher level than they were previously. They are highly regarded roles, but we still do not see the impact of them on the ground, and there is nothing to change that in the Bill. We see lots of hints at rights in the Bill that will not necessarily result in a genuine change for victims on the ground, because they will not have a way to pursue them—for example, through having independent legal advice that would help victims to challenge decisions that are made on their behalf, and to deal with it when the interests of the criminal justice agencies do not necessarily align with their own. That needs to be there, too. There is a whole raft of things; I could be here all day.
Jayne Butler: We know that rights are effective only if they go with equivalent responsibilities and accountabilities for not being upheld. To really make the rights in the Bill meaningful, and to actually change things for anyone who is pursuing a sexual violence issue within the criminal justice system, we would need an independent legal advice model that supports victims in understanding what is happening to them and how to make challenges. The Bill provides rights to people, and the idea that you can make a challenge—but no funding, no support and no way of actually making those challenges.
We are in a system where the criminal justice agencies are failing victims. The Bill gives victims more rights, but what does it do to support those already failing agencies to change anything? Right now, the responsibility for doing that falls time and again to the voluntary sector—to services that are underfunded and that constantly need to do more, challenge more and pick up issues and failures that come from individual cases and from systemic issues. Without any funding or decent proposal to give victims advice, the Bill leaves victims with nothing, and the voluntary sector with not enough funding and massive demand to pick up.
Jayne Butler: Sure. We would like to see a national hub provided for legal advice. We are not looking for that legal advice to give victims party status in legal proceedings; that is not what we are asking for. It is much more about ensuring that every time a victim has a problem to overcome, they can get some legal advice about how to challenge it. That might be a right to review; it might be a disclosure request for counselling notes or something else that is being asked for that they do not feel is relevant and that they feel is invasive and further traumatising them within the system.
We want it to be an independent service that will operate outside the current criminal justice agencies to ensure that victims feel that they have somebody who will act in their interests. A pilot has already been successful in Northumbria, and there is a strong evidence base that such models exist in other jurisdictions, including Australia, California and Ireland. We have put in a really detailed written submission to the Committee about this.
Jayne Butler: Not as it stands, no. Our concern is that it will not really deliver any improvements to victim services, partly because there is no funding attached to it. How do you ask people to collaborate around a massive demand without actually putting money in to provide those services? Often, we find in commissioning processes in this sector—and probably in others too—that as commissioners gain responsibilities, they pass some of the risk on to a provider, so we will start to see services being commissioned to deliver x within three working days for very small money. We have seen this across the board in other sectors before, and that is the real concern around this—that the duty to collaborate is not strong enough to give victims’ services, usually provided by the voluntary sector, a decent enough voice in talking about what is needed, demonstrating the demand and getting those service actually available for victims.
Jayne Butler: If it is one, I will be surprised. It is probably not—
Hannana, I will come on to you. My first question is: do you think that migrant victims of domestic abuse are currently included in the Bill?
Dr Siddiqui: Definitely not. The whole Bill is lacking, properly and in any meaningful way, any inclusion of protected characteristics. Black and minority women, for example, are not included, and migrant victims are definitely not included. The migrant victims should be central to the victims code, the definition of the victim and throughout the Bill. It is the only way that we can ensure all victims are provided for by the Bill.
Dr Siddiqui: No. I think that most migrant victims do not approach the police or the criminal justice system to report domestic abuse and other forms of violence, primarily because they can be treated as an immigration offender and become criminalised, or they can be arrested, detained and deported. The fear of deportation is often the reason that prevents migrant victims coming forward. That is why a firewall, which is a total separation of the data sharing between the police and immigration enforcement, is absolutely necessary in order for them to come forward.
Dr Siddiqui: Yes, there has to be a firewall and other legal reforms—for example, around no recourse to public funds. That needs to be lifted, so that victims can go to statutory agencies such as the police for help and support without the fear that they will be destitute as well as deported.
Dr Siddiqui: There are hardly any. I mean, I would say that there should not be a statutory definition of IDVA and ISVA because it excludes most advocacy services that we have in community-based organisations, including “by and for” services. Southall Black Sisters, which is a pioneering organisation in advocacy services, does not fit the current MOJ model, which is very criminal-justice focused and largely looks at high-risk cases. We provide holistic services for victims of domestic abuse and a lot of that is advocacy work that sits outside the current definitions. You know, IDVAs and ISVAs also need development. They need guidance and improvement in pay and conditions. But I do not think that that needs to be done through a statutory definition. They definitely need more funding and you definitely need to give more funding for the “by and for” services with a wider definition of what an advocate is.
If Ellen comes back online and we have time, I will bring you back in, Jess.
Dr Siddiqui: There is a duty to collaborate, but there is actually a lot of collaboration at a local level with funding agencies at the moment, but unfortunately they do not support migrant victims or victims from black or minority communities sufficiently to provide adequate services. You cannot have a duty to collaborate without having a duty to fund community services. More specifically, you need to fund specialist “by and for” services that are at the frontline in the community, providing services to enable migrant and other minority women to access mainstream services, including the criminal justice system.
There is also a need to change the law. The Bill on its own will not do it. You need to be able to remove the no recourse to public funds requirement for victims of domestic abuse so that they are able to come forward to and present themselves at the police, social services and elsewhere for help and support. At the moment, they cannot do that because they are frightened of being destitute or being treated as immigration offenders and deported. If you are going to look at protected characteristics, you have to look at migrants, at their specific experiences and at how they cannot use the criminal justice systems and local services. There is a need not only to improve funding for services, but to change the law.
Jayne Butler: The announcement made in the Bill does not specifically mention counselling material. In our opinion, it does not bring about any new protections, but just effectively reinforces what already exists in law around the Data Protection Act.
Jayne Butler: What we would like to see is a model that changes the legal threshold for access to survivors’ counselling records. This is not a blanket ban. What we are asking for is a test of substantive probative value. Again, we have seen this be successful in other jurisdictions. It would mean that CJS agencies have to make applications for access to a judge. There would be judicial scrutiny at two stages: a first one at the stage of access to the police, and a second one if it gets to the stage of being disclosed to the defence. It really protects that without, we believe, compromising any right to a fair trial or any rights that a defendant might hold in that circumstance. We have put a detailed written submission in to the Committee about this.
Dr Siddiqui: There should not be a statutory definition, because under the current meaning of ISVAs and IDVAs, they tend to be criminal justice-focused and only deal with high-risk cases. They do not deal with the wider forms of advocacy services we provide, which tend to be on the whole more holistic and do not just focus on the criminal justice system; they look at the family court, the health and welfare system and provide services over a long period of time to women. It also does intersectional advocacy, which is about looking at a whole range of different issues, but it also looks at equalities.
Not all of them fit into the current definitions, and I think that if you define it, it will narrow what the definition is of an ISVA or IDVA. That means that the local commissioning bodies may not fund those services. The current services, of which a lot are run as “by and for” services that do not fit the current definitions, will not get funding. Historically, they are underfunded anyway, so they could disappear as a result.
Dr Siddiqui: Yes, I think that a range of services—holistic services—are what the IDVAs should be dealing with. That is not just for high-risk cases. I would include medium and standard-risk cases, because risk changes rapidly. The models that exist for the community that are provided by the “by and for” sector include a whole range of things, including support services, outreach services, helpline advice and advocates. They do not fit the current models. The current model has always been restricted, and we have said so. Defining it in law means we could lose the funding we currently have for the range of services we offer.
Dr Siddiqui: We would like a ringfenced fund that provides sustainable, multi-year funding to the “by and for” sector from central Government. There should be a duty to fund those services. I think the DA Commissioner estimates that there is about £300 million you need to give for the by and for sector. Imkaan, which is a voluntary umbrella organisation, estimates that £97 million is needed just for the “by and for” sector in black and minority communities. There needs to be sufficient funding that is long-term and provides holistic services that victims need in the community.
Dr Siddiqui: No, most of the women we help do not actually know about the victims code. There needs to be far greater awareness, and it needs to be more inclusive in terms of language. It needs to be very explicit about protected characteristics and around migrant victims in order for it to reach and include everyone.
Dr Siddiqui: I wish I had the time to do that. I do not have an estimate, but I know that others have done those calculations. The Domestic Abuse Commissioner has done a calculation, which is about £300 million. Women’s Aid, Rape Crisis and Imkaan are all organisations that have done an analysis of what is needed.
Jayne Butler: I do not. There is a piece of academic work going on at the moment to estimate this. We all know that it is less than what these crimes cost society. What it costs to deal with victims and the long-term impact of these crimes in society is a lot less than victim support services. We would ask for more things. We have not talked about prevention. We want to see these crimes stop and that will cost money.
Jayne Butler: We have definitely seen incremental funding increases and recognise that those have been made. I do not think it is yet enough. We still have this really patchy provision of services. There are long-term issues around organisations that have been funded in the past and therefore exist versus where there are gaps. A lot more is needed to fill some of those gaps. Our waiting list in Rape Crisis is some 14,000 a year and increases constantly. We have seen an increase in demand of about 38% in the last year. We are seeing huge demand for those services, but that funding never quite touches it.
We also need to acknowledge that some of the delays in the last few years in the criminal justice system have really exacerbated things and mean that sometimes that new funding is not about helping new people. It is about the cost that they sit in the system for so much longer. I would like to know more about to what extent it is really making a difference to help more people.
Jayne Butler: I don’t think that people do always understand. It depends on what access to support they have had along the journey and who they are, but there is definitely more work that could be done on that and also in terms of how their individual cases are communicated. We hear time and again from people who have found out at a day’s notice that their court case has been postponed for months, if not years. So it is not only about knowing what is going to happen, but about being told when there is a variance and when that is changing for them individually.
Dr Siddiqui: I think you need an advocate to help you navigate the system. The information provided by the criminal justice system or by the courts generally is usually very little and victims do not really know what to expect. The fact that we are there as advocates and as a specialist service means we are able to give them the confidence to move forward. That is critical throughout the pre-trial, during trial and after trial. Nobody really cares about the aftermath except us. We are the ones who have to give them the ongoing support after the trial, so it is essential that the two work together.
Dr Siddiqui: As I have said before, the victims code needs to be very clear about protected characteristics, particularly for migrant victims who lack the trust and confidence in the system to use it and to come forward. You need a wider definition of what a victim is. It needs to include witnesses. Also, a lot of our cases are transnational. When you are talking about what a victim is, you have to include families, friends and victims who have been dealing with international cases, which at the moment are not really being addressed. A lot of forced marriage cases and honour killings, for example, may take place overseas, but the families do not get any support in this country from the police and other agencies when they try to bring justice, even though the perpetrators may live in this country.
There is another thing that we need to include in the victims code when trying to define what a victim is. We know that a lot of women are falsely accused of perpetrating domestic abuse by their abuser, or defend themselves against abuse and may be treated as offenders as opposed to victims. It is really important that victims who defend themselves or who are falsely accused are seen as victims by the system. Groups such as the Centre for Women’s Justice are even asking for a statutory defence when women are driven to kill a violent partner out of self-defence. There is a need to look at our defences, and how we should treat those people as victims, not perpetrators.
Jayne Butler: To double what Dr Siddiqui just said, in terms of prevention work, we clearly do not want people to keep becoming victims. A whole host of work has been done on that. I refer back to the recent report of the independent inquiry into child sexual abuse on the ongoing scale of such abuse. We also see huge numbers of adult rapes, with vast numbers of people affected, so it is obvious that we ought to be doing some prevention work. We had the Enough campaign through the Home Office, but we do not have a wholescale approach. Possibly some kind of public health approach is needed, because this is such a big issue, which continues to affect so many people.
In terms of gaps and counselling, the ISVA role gets a lot of focus. That is really important because support for victims of sexual violence who are going through the court process is invaluable, but people also need access to therapy. Often those services are not funded. Most of our waiting lists are for counselling as opposed to ISVA support, because the funding has been put into the ISVA side of things, without the need. Charlie Webster wrote an open letter recently, which I think was mentioned on Second Reading, about her and Katie’s experiences. They just did not get that kind of support.
Dr Siddiqui: I do not know how the firewall could be abused. It is important that, if there were a firewall, it would give victims the trust and confidence to come forward and seek help, and would ensure that the perpetrator was held accountable. At the moment, a lot of the victims—because they have insecure status—are told by the perpetrator that they have no rights in this country. Usually, that means that if they go to the police and are arrested for being an offender, or are reported to the Home Office, what the perpetrator has said is reinforced by the system. Basically, the perpetrator is able to weaponise victims’ status to control and trap them. David Carrick is a high-profile example: he trapped a woman with an insecure status. He told her that if she went to the police, no one would help her. That is true for many cases we deal with.
Some of the evidence for how many people are being caught out by that is from The Guardian, which did some FOI research with the police. It found that in a period of two years, about 2,500 people facing serious crimes including domestic and sexual abuse, as well as trafficking, were being reported to the Home Office. A lot of women were in that: in one quarter, about 130 women who were victims of domestic abuse were served with an enforcement order. We are talking about a hostile environment for migrants, and we must remove all barriers to victims of abuse being able to access their rights to protection, safeguarding and justice by giving them the whole toolkit that they need to access those rights.
The firewall—where there is complete separation from sharing of data between the police and statutory agencies, and immigration enforcement—is one way of increasing trust and confidence among migrant victims. I do not see a problem. If they are referred to agencies like ourselves, usually we will help them to report the abuse, but we do it by being their support and being able to advise them, and dealing with any issues that might arise with the police when they report it.
After getting legal advice on their immigration status, migrant victims are able to think more clearly along the lines of, “Yes, I should report it, because I want safeguarding and some justice. I want to hold this perpetrator to account.” At the moment, perpetrators have impunity, because they know that the women will not get any help from the police, even if they turn to them.
Dr Siddiqui: If the migrant victims have done a crime, the police do their normal duties to investigate crime. It depends what that crime is. If they are seen as immigration offenders first and foremost, rather than victims first and foremost, they will not get any of the help and support they need. They do not even have a chance to get legal advice on their immigration status before they are reported. They do not have a chance to go to a “by and for” organisation to get any support or advocacy, so it is essential that they have the chance to do that before there are any kinds of communication with the Home Office. Usually, that communication should be done through their legal representatives, rather than by the police.
A lot of police officers say to us that they do not agree with the fact that there is no firewall. A lot do not even realise that there could be negative consequences if they report migrants. There is some international work, and even some in the UK, on having good guidance or a firewall. For example, there has been work in Amsterdam and in Quebec showing that a firewall works. The potential for abuse is minimised. In Northumbria and Surrey, the police are all looking at ways for how to improve responses to migrant victims without reporting them to the Home Office as their first response.
Dr Siddiqui: If they have committed a crime, of course they need to be investigated like anyone else.
Dr Siddiqui: No, I think there is a postcode lottery. “By and for” services, in particular, are very thin on the ground. Even in areas where there is a high black and minority population, “by and for” services are not necessarily commissioned locally. That is why I am saying that the duty to collaborate is not enough. You have got to have a duty to fund and you have got to have ringfenced funding, particularly for “by and for” services and specialist services, for that to work. At the moment, the system does not work and I do not think that this will necessarily improve it enough.
Dr Siddiqui: A joint SNA is important if you are going to have collaboration at a local level and it will help to highlight which gaps could be filled by which agency, but at the moment some of that work is being done locally and some of the gaps are still not being filled. For those with no recourse to public funds, there are hardly any services on the ground. For those from black and minority communities, or “by and for” services, there is hardly any funding in the local area—so even where a gap may have been identified, there is not the funding to fill it.
Jayne Butler: There has been a little bit of work done on this, in terms of the recommissioning of the rape support fund and thinking about how to share that geographically. The result, when you have the same pot overall, is that you end up reducing services in some areas. If we start to look at where the gaps are, but we do not put any more funding in, and we are just revisiting what is already there, the result will be that some services that are funded now, which have high demands, will be reduced. There is nobody sitting there who is seeing people within a week, or sometimes even a month or six months.
Dr Siddiqui: Our demand has really rocketed, particularly after the covid pandemic, and it has not really gone down. It has doubled in size. We deal with 20,000 cases and inquiries every year. Before, we had half that.
We must remember that the mapping report by the DA Commissioner has shown that only 6% of Government funding was being made available to the “by and for” sector. Even though the demand has gone up, the funding has not gone up. In fact, a lot of “by and for” services are in crisis and are having to close down or reduce their services.
The cost of living crisis is adding to the problem. Services are not able to pay their staff enough. They have to find more resources for service users. We are having to find money to supplement the rent and subsistence of victims with no recourse to public funds. Although we have money from the support for migrant victims pilot project at the moment, that is temporary and it does not give us enough money. It does not give a universal credit rate. It does not give us enough money to pay rent for a refuge. It does not give enough to cover living expenses. We are having to find that extra money in the cost of living crisis situation. That is really not sustainable.
Order. I am afraid that brings us to the end of the time allotted for this panel. I thank our witnesses, Dr Hannana Siddiqui and Jayne Butler, for answering questions in the room. I also place on record our thanks to Ellen Miller, who was on Zoom, intermittently without sound, and gave up her time this morning to try to give evidence.
Examination of Witness
Dame Rachel de Souza gave evidence.
Could I ask you to introduce yourself for the Committee, Rachel?
Dame Rachel de Souza: I am Rachel de Souza, Children’s Commissioner for England. I am very grateful to be here.
We are very pleased you can be.
Dame Rachel de Souza: Absolutely. I have been a big supporter of the Bill. I have to say that the ministerial team’s civil servants have worked incredibly well with us throughout the Bill’s passage. One of the things we have been pressing them on is making sure that children’s voices and experiences as victims are at the centre of the Bill. That is obviously why I am here today. I am happy to see the duty to collaborate there, but I would like a bit more accountability around it, which goes the last person’s comments. I am really pleased that they are there, but if we are going to put children as victims in the Bill, we have to make sure that we recognise that they experience crime and being victims differently. What we need to put around them to make sure they are supported, and can process things and get justice, is different. I would almost like a duty of accountability as much as a duty to collaborate.
Dame Rachel de Souza: I had intended to reserve my comments to children as victims, because that is what I am here to talk about. I do not want to let perfection be the enemy of good. I want a victims Bill that has children at the centre and understands children’s unique experiences. From what I saw yesterday, there is a lot of work to do. There is a lot of work to do in terms of defining children as victims, looking at the support they need and making sure that the victims code of practice is in the right place for children. That is what I want to focus on.
Dame Rachel de Souza: Yes, absolutely. I was going to bring that up with the definition of children as victims. When I go around the country and talk to children, wherever they are—whether that is being held in police cells or children who are involved in drugs or whatever—I realise just how complex the situations are. You realise that these children are as much victim as perpetrator. Children tell me all the time that their experiences with the police make them feel like they are not victims but criminals. That is what we need to sort out.
Dame Rachel de Souza: I have seen some very diverse and excellent services. I would first point out The Lighthouse, which I am sure you are all familiar with and which is a superb example of services coalescing around children’s needs and understanding where children are. Some of the sexual assault referral centres for peer-on-peer sexual abuse are also fantastic, but we do not have a national network so that every child gets the same experience. Every child should get the best support, and it is just not there.
Dame Rachel de Souza: I have made an initial examination of what has been proposed around Jade’s law. We have to protect children. Obviously we need to ensure that there are not unintended consequences and we need to look in detail, but I would say, on the face of it, that the protection of children must have primacy, so I support it.
Dame Rachel de Souza: That is a deeply complex question, but I would be deeply concerned. Children in those situations are often the victims of abuse themselves, and we must protect them. I would not say that I can read the mind of any particular father, but we find time and again that everyone in the household has had that experience.
We have less than eight minutes left and five Members are indicating that they wish to come in, so please keep questions brief.
Dame Rachel de Souza: I was pleased to see the victims code published yesterday. There is more work to do on it, particularly in relation to having a clear definition of children and ensuring that it is child friendly all the way through. We have been working with the team to try to do that, and there is a lot more work to do.
Dame Rachel de Souza: I think there is, but it is wider than that. We also need to look at children with special educational needs and ensure that we take into account and make use of the expertise around working properly for those children.
Dame Rachel de Souza: Yes. When you talk to children who are victims you very quickly discover that they do not necessarily understand or report their experience in the same way as adults. Often, there is often quite a lot of delay in their coming forward, and the kind of support they need is far more complex, which is why I am so keen on an approach like that of the Lighthouse, where the services really see the child as an individual and coalesce around them. Children talk to me a lot about having to tell their story lots of times. They experience the courts completely differently. I have pages and pages of testimony of young people who have had dreadful experiences in the courts, because the courts just do not understand that they are children.
Some of us tried.
Dame Rachel de Souza: Yes, but kids say, “I gave them my texts, I gave them my statements, but look—they’re not taking it forward.” We need the advice around the child to recognise what it is to be a child; they do not necessarily have that step-back view.
We need to do more. I was pleased to see the mention of advocacy; we could develop that a lot more, rather than just say, “This public service needs to deal with it, or that one.” It is about the individual child advocate and the services coming together around the child. It does not necessarily have to be introduced at vast new expense. I think there is a question about how we can regroup services to work in a way that works.