Considered in Grand Committee
That the Grand Committee do consider the Electronic Commerce Directive (Education, Adoption and Children) (Amendment etc.) Regulations 2021.
Relevant document: 44th Report from the Secondary Legislation Scrutiny Committee
My Lords, these regulations were laid before Parliament on 18 January. I thank the Secondary Legislation Scrutiny Committee for considering them. I also thank the European Statutory Instruments Committee, which considered the regulations in 2019.
The regulations seek to remove statutory measures that implemented Article 3 of the e-commerce directive, better known as the country of origin principle, from two pieces of legislation: the Education Act 2002 and the Electronic Commerce Directive (Adoption and Children Act 2002) Regulations 2005. This is a necessary step now that we have left the European Union and the transition period has ended.
The e-commerce directive is a piece of EU legislation that aims to facilitate digital trade in the EU’s internal market. It was introduced by the EU in 2000 and seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services, which, for ease, I will refer to as online service providers.
Article 3 of that directive contains the country of origin principle, which is designed to facilitate digital trade among businesses in the European Economic Area. It applies to online service providers based in any state operating across the European Economic Area and means that online service providers have to follow certain rules only in the state in which they are established, rather than in each state where their service is received.
This principle applied to a variety of parts of UK legislation. To give one example, in October, noble Lords will have heard my noble friend Lady Barran speak in this House to regulations that removed the effect of the directive from the Communications Act 2003. However, the regulations we are debating today concern two main aspects of policy: teacher misconduct and adoption.
On teacher misconduct, Section 141F of the Education Act 2002 sets out reporting restrictions that aim to protect the identification of a teacher in England and Wales facing an allegation of an offence made by or on behalf of a pupil until the point at which legal proceedings for the offence have begun or the Secretary of State for Education publishes information following an investigation or decision relating to the allegation. Section 141G makes it an offence to publish information in breach of Section 141F. Schedule 11B to the Education Act 2002 applies the country of origin principle to the offence created by Section 141G.
On adoption, the Electronic Commerce Directive (Adoption and Children Act 2002) Regulations 2005 give effect to the country of origin principle in two offences in the Adoption and Children Act 2002. First, Section 92, dealing with restrictions on arranging adoptions, prevents anyone who is not an adoption agency, or acting pursuant to a court order, taking steps to arrange the adoption of a child. Secondly, Sections 123 and 124, dealing with the restriction on advertising adoptions, prohibit advertisements relating to the adoption of a child unless they are undertaken by an adoption agency.
Following our withdrawal from the EU, the country of origin principle no longer applies to the UK. It is for this reason that these regulations have been laid: to amend the 2002 Act and the 2005 regulations to remove inappropriate provisions and ensure that our legislation continues to operate effectively.
These regulations do not create new policy. The offences I have referred to, which protect children and teachers, remain in our legislation unchanged. These regulations are a technical measure to fix all failures of retained EU law arising from the withdrawal of the United Kingdom from the EU. They will ensure that all online service providers who commit an offence created by the Education Act 2002 and the Adoption and Children Act 2002 in the UK will be liable for prosecution in the UK.
Domestic online service providers that publish prohibited information in a European Economic Area state will no longer be automatically treated as having committed a relevant publishing offence in England and Wales for an offence under the 2002 Act, or anywhere in the UK for offences under the 2005 regulations, but will be subject to prosecution in the state in which the offence is committed. It will also mean that online service providers established in a European Economic Area state will not automatically be exempt from prosecution in the UK. I beg to move.
My Lords, I very much doubt that this is a unique situation with respect to the consideration of regulations. But, in more than 23 years in your Lordships’ House, this is the first time I have participated in a debate involving just two speakers. Indeed, is it actually possible to have a debate with only two speakers? Perhaps that is a subject that the Minister and I should debate. The lack of interest from other noble Lords today is perhaps down to the fact that these regulations are non-controversial. I thank the Minister for introducing them.
The regulations require affirmative approval, and, on behalf of the Opposition, I am content to signify our support. We welcome the fact that they are subject to the affirmative procedure, because that was not the case when an early version of these draft regulations was brought forward in 2019. In its meeting two weeks ago, the Secondary Legislation Scrutiny Committee of your Lordships’ House considered these instruments and concluded that there was no requirement for them to be reported to both Houses. However, in 2019 that was not the case; at that time the draft regulations were considered with a view to the possibility of the UK departing the European Union without a deal being signed. Thankfully, that has been avoided. However, two years ago the Secondary Legislation Scrutiny Committee said in its report that the draft regulations should be upgraded to the affirmative procedure. It is therefore appropriate that the affirmative procedure applies to the regulations we are considering today.
The Minister has set out the intricacies of the draft regulations in more detail than I am able to. As she said, the provisions in question engage the country of origin principle—a reciprocal arrangement between EU member states which, as of 31 December, no longer applies to the UK. These regulations disapply that principle as it relates to the subject matter of Schedule 11B to the 2002 Act, which applies only to England and Wales, and the 2005 regulations, which apply across the whole of the UK. The amendment of these provisions is necessary to reflect the ending of this reciprocity and to ensure that domestic legislation continues to operate effectively in the post-EU environment. The relevant provision in the 2002 Act relates to the offence which is committed where a person breaches a reporting restriction set out in the Act in respect of a teacher who has been accused of an offence involving a pupil at their school. The relevant provisions in the 2005 regulations concern a breach of the Adoption and Children Act 2002, which imposes certain restrictions on arranging adoptions and the publishing or distributing of adoption-related advertisements.
There is not much more I wish to say. We believe that the amendments contained in these draft regulations are logical and appropriate. It is right and proper that only the state has a legitimate authority to arrange and oversee adoptions. We welcome this being reiterated and that both the institution of adoption and the rights of teachers will continue to enjoy the full protection of the law.
I thank the noble Lord, Lord Watson, for his contribution on these regulations. I hope that public health will allow us to meet face-to-face at some point in the future and perhaps debate the challenge to consider whether two people can have a debate.
I hope I have reassured the noble Lord that the amendments made by these regulations do not dilute or diminish in any way the offences I have described that are set out in the Education Act 2002 and the Electronic Commerce Directive (Adoption and Children Act 2002) Regulations 2005. Neither do these regulations impact in any way on the policy behind those regulations. We most definitely want to continue to protect the identity of teachers who are accused by a pupil of an offence until the point at which relevant proceedings have begun. We also want to continue to safeguard children by ensuring that arranging or advertising adoption is something that legally can be undertaken only by adoption agencies.
As I have outlined, these regulations are purely a technical measure to fix what would have become a failure of retained EU law. Our intervention will empower UK regulators to enforce UK laws where the offence is committed in the UK and irrespective of the country in the European Economic Area where the online service provider is based. I commend these regulations to the Committee.
That completes the business before the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the Room.
Committee adjourned at 5.55 pm.