‘In Part 2 of Schedule 5 to the Scotland Act 1998 (reserved matters: specific reservations), at the end of section C8 to add the words “but this exception does not permit the Scottish Parliament to legislate on food content or labelling of foodstuffs that are placed for sale within Scotland”.’.—(Tom Greatrex.)

Brought up, and read the First time.

Tom Greatrex: I beg to move, That the clause be read a Second time.

I hesitate to introduce an element of gravity to the proceedings, given some of the entertainment that has featured so far. Over the past few hours, however, there has been much debate on issues that did not feature in the Calman report. This issue was dealt with in the report, but it does not feature in the Bill. It featured in the previous Government’s White Paper and is referred to in the Command Paper that accompanies the Bill, but it is one of the issues that appear to have fallen off the edge of the Calman process.

During this Committee stage the Government have produced explanations, some convincing and others less so, for the fact that they are not implementing some of Calman’s recommendations. Part of the purpose of the new clause is to give them an opportunity to explain why they are not implementing one particular recommendation. I note that the Scottish Parliament legislative consent memorandum Committee, in one of its conclusions, suggested that the Government provide a fuller explanation. As I am sure that its members read the Command Paper before reaching that conclusion, I suspect that merely repeating the terms of the Command Paper will not serve to provide the explanation sought by the Committee.

Fiona O’Donnell: Will my hon. Friend press the Minister to tell us what representations the Government have received from either the retail or the manufacturing sector in support of their action?

9.45 pm

Tom Greatrex: I am grateful to my hon. Friend for her intervention, and I hope to address the point that she has raised.

Calman looked at this issue in a degree of detail. The issue was mentioned in the White Paper of November 2009, but it does not appear in the Bill. The new clause addresses Calman recommendation 5.11, which states:

“The Scottish Parliament should not have the power to legislate on food content and labelling in so far as that legislation would cause a breach of the single market in the UK by placing a burden

15 Mar 2011 : Column 265

on the manufacturing, distribution and supply of foodstuffs to consumers, and Schedule 5 to the Scotland Act should be amended accordingly.”

Calman looked at the exception of trade descriptions in relation to food from the general reservation of consumer protection issues in the Scotland Act 1998. At the same time, the devolved Administration in the Scottish Parliament have responsibility for public health. The evidence taken by Calman was largely oral, and it was instructive. The chief executive of the Food Standards Agency made it clear in oral evidence that the potential for policy divergence was a concern that should be eliminated by making a change akin to that proposed in this new clause and said that the information should be available throughout the UK. Evidence from representatives of both the Royal Environmental Health Institute of Scotland and the College of Medicine and Veterinary Medicine echoed that point and said there was a potential issue, although I am sure that the Minister will want to remind us that both of them made it clear that in practice there has not been a problem yet. This recommendation was welcomed by the Scottish Retail Consortium, CBI Scotland and the Food and Drink Federation. It was referenced in the Command Paper from which I assume the Minister will draw his remarks on this new clause, and it is a recommendation that we seek to insert into the Bill.

The Scottish Retail Consortium made a number of points about areas in which public health is not a factor, such as that a requirement to label or produce food differently in different parts of the UK places a heavy burden on retailers and manufacturers and could breach the ethos of the single market. A number of examples have been cited—for example, mandatory environmental labelling with different requirements in Scotland from other parts of the UK—that could place a financial and administrative burden on the food industry, and many of the companies affected would be small firms providing specialised products who do not wish their markets to be limited to just one part of the UK. The introduction of this measure would not stop the often successful voluntary schemes that already exist and to which the Command Paper makes reference.

The Government suggest in the Command Paper that potential activity by the Scottish Parliament in food labelling must be agreed by the UK Government and the European Commission, and therefore the protection is in place and is robust enough. The Command Paper goes on to suggest that this Calman recommendation is superfluous. There is a clear argument that it is not superfluous, but that what we require in this matter is clarity. That is the content of the representations from food manufacturers, food retailers and business organisations in Scotland.

This new clause enables the Calman commission recommendation, which mysteriously disappeared between the November 2009 White Paper and the Bill being published, to be enacted. It provides clarity, which is what the industry is looking for, and it provides an opportunity for the Government to deal with an issue that the Command Paper seems to wish to dismiss.

David Mundell: I welcome this opportunity to discuss a substantive issue in relation to the Calman commission report and the subsequent Scotland Bill. It compares

15 Mar 2011 : Column 266

favourably with some of the discussions and superfluous issues that have been raised by the SNP during the course of the evening.

Hon. Members will know that the Calman commission made a recommendation on food content and labelling which, as the hon. Gentleman has pointed out, is not included in the Bill. I shall set out the Government’s reasons for deciding not to include it, as was made clear in the Command Paper. Although the recommendation seems sensible on paper, it presents a wide range of difficulties in practice, and I shall set those out. As he has said, the Scottish Parliament’s report on the Scotland Bill also sought a fuller explanation for the Government’s position. The commission made the following recommendation:

“The Scottish Parliament should not have the power to legislate on food content and labelling in so far as that legislation would cause a breach of the single market in the UK by placing a burden on the manufacturing, distribution and supply of foodstuffs to consumers, and Schedule 5 to the Scotland Act should be amended accordingly.”

The commission also recommended that the Scottish Parliament’s and Scottish Government’s abilities to deal with public health issues should remain, so the recommendation does not cover this aspect, and the Government fully support that.

Importantly, and rightly, Calman recognised that food content and labelling are almost exclusively regulated at European Union level, so any scope for national flexibility at member state level when implementing this European law is extremely narrow. Hon. Members will know that general and nutritional labelling is currently being recast in a proposed European regulation. The resulting legislation will be directly applicable across the whole of the United Kingdom. A number of other labelling and food standards matters are governed by European directives.

Even where no specific food-related legislation has been adopted at European Union level, free movement principles mean that any food which can be lawfully sold in any member state must be able to be sold throughout the United Kingdom, and vice versa. Significantly, single market rules seeking to avoid barriers to trade being erected apply equally to rules applied in just one part of a member state. Any national measure would need to be notified at member state level, and clearance would need to be obtained from the European Commission before adoption. Before seeking such clearance, consideration would always need to be given to the potential for any disruptive impact within the United Kingdom.

I emphasise to right hon. and hon. Members that the Scottish Parliament is already in a position where it cannot legislate to set particular Scottish standards for food content in cases where that would breach the single European market or supplement existing European regulations. The Scotland Act prohibits the Scottish Parliament from legislating in a way that is incompatible with Community law, and Scottish Ministers have no power to carry out any executive act which is incompatible with that law—to do so would be ultra vires and any such act would have no effect.

It is relevant to the Calman commission’s recommendation that member states may restrict the free movement of goods in exceptional and limited cases. One example where that might be possible is if the Scottish Parliament were to need to take action for

15 Mar 2011 : Column 267

the purposes of public health. Again, however, Calman did not suggest any restrictions in this area. The Government are aware of only two instances where Scottish food legislation imposes different requirements from those that apply in England. First, the sale of raw milk or cream for direct human consumption is banned in Scotland but permitted, subject to certain restrictions, in England—European legislation specifically allows that. Secondly, the rules regarding food storage temperature control requirements are much more detailed in England than in Scotland. Both those differences predate Scotland’s ability to make its own legislation and both relate to food safety, not general food labelling or standards. That suggests to the Government that there is not a substantial problem to be addressed. There is therefore no need, in our view, to amend the Scotland Act.

Amending schedule 5 to the Act poses a number of possibly insurmountable problems, at the root of which is the fact that the Calman commission’s recommendation seeks to address a particular effect of legislation—that is, the breach of a single market. The purpose test that applies to the reserved matters in schedule 5 to the Act requires both the purpose and the effect of a provision to be taken into account. It is therefore possible for a provision to have an effect on a reserved matter and yet not relate to it when the purpose test is applied. Simply including a matter in schedule 5 does not guarantee that it can never be affected by legislation that is in the competence of the Scottish Parliament.

There is no precedent for enabling the Scottish Parliament to legislate on a matter provided that its legislation only has certain effects. Even if it were possible to create a new type of reserved matter, there would still be problems. Indeed, any such measure would depend on a definition of what is meant by the United Kingdom single market, which is a concept at the heart of Calman’s recommendation. Furthermore, any amendment of the Scotland Act would create a divergence between the different countries of the United Kingdom as the devolved institutions in Northern Ireland and Wales are not subject to equivalent restrictions.

To summarise, although Scottish Parliament legislation of the type that Calman’s recommendation is designed to prevent is theoretically possible, it is highly unlikely. The likelihood of the Scottish Parliament’s legislating on food content and labelling in a field where exemptions can be found from single market legislation and where any applicable European regulations can be simultaneously disapplied is very limited. The likelihood of its doing so for purposes that are not related to legitimate actions in the field of public health is extremely low.

Finally, any national measures on labelling or content where a member state may be able to act would need to be notified to the European Commission at member state level.

Mr Davidson: May I seek guidance from the Minister? If we have a vote on this matter, will all Unionist Members be voting at 10 o’clock and the nationalist Members be voting on the 13.14 principle at quarter past 11?

David Mundell: That is a very good point. One thing that always interests me about those who promote the time change is that they rarely seek to refer to it as central European time and the imposition of time from Europe on the rest of the—

15 Mar 2011 : Column 268

The First Deputy Chairman of Ways and Means (Mr Nigel Evans): Order. It was not a particularly brilliant joke the first time round. Can we now get back to new clause 19?

David Mundell: I apologise, Mr Evans, for getting sucked into matters that diverge from the subject under discussion.

The Government appreciate the concern behind the Calman recommendation, and we have fully considered its implications. The hon. Member for East Lothian (Fiona O'Donnell), who has shown great stamina throughout today’s proceedings by taking part in many of the individual debates, asked whether we had consulted the retail and business sector. I am pleased to tell her that I have met the Scottish Retail Consortium and discussed this issue in detail. I have also met the director of the CBI in Scotland, who has also previously set out concerns on this matter. I hope that I have been able to persuade both organisations that the legal basis, which I have set out in detail, is a sound one and is the basis on which the Government did not include that particular recommendation in the Bill.

On the need for legislative change, taking together all the points I have made, the Government do not necessarily consider—

10 pm

Debate interrupted (Programme Order, 27 January ).

The Chair put forthwith the Question already proposed from the Chair (Standing Order No. 83D), That the clause be read a Second time.

The Committee divided:

Ayes 136, Noes 311.

Division No. 229]

[10 pm

AYES

Abrahams, Debbie

Alexander, rh Mr Douglas

Alexander, Heidi

Ali, Rushanara

Austin, Ian

Bailey, Mr Adrian

Bain, Mr William

Banks, Gordon

Begg, Dame Anne

Berger, Luciana

Betts, Mr Clive

Blackman-Woods, Roberta

Blenkinsop, Tom

Blomfield, Paul

Brown, Mr Russell

Campbell, Mr Alan

Caton, Martin

Chapman, Mrs Jenny

Clarke, rh Mr Tom

Connarty, Michael

Cooper, Rosie

Creasy, Stella

Cunningham, Alex

Cunningham, Mr Jim

Cunningham, Tony

Dakin, Nic

Danczuk, Simon

David, Mr Wayne

Davidson, Mr Ian

Davies, Geraint

De Piero, Gloria

Dobbin, Jim

Docherty, Thomas

Donohoe, Mr Brian H.

Doran, Mr Frank

Doyle, Gemma

Efford, Clive

Ellman, Mrs Louise

Field, rh Mr Frank

Flello, Robert

Flint, rh Caroline

Flynn, Paul

Fovargue, Yvonne

Gapes, Mike

Gilmore, Sheila

Glass, Pat

Glindon, Mrs Mary

Goggins, rh Paul

Greatrex, Tom

Green, Kate

Greenwood, Lilian

Griffith, Nia

Gwynne, Andrew

Hain, rh Mr Peter

Hamilton, Mr David

Hamilton, Fabian

Hanson, rh Mr David

Harris, Mr Tom

Healey, rh John

Hendrick, Mark

Heyes, David

Hilling, Julie

Hodgson, Mrs Sharon

Hood, Mr Jim

Irranca-Davies, Huw

James, Mrs Siân C.

Jamieson, Cathy

Jarvis, Dan

Jones, Graham

Jones, Mr Kevan

Kendall, Liz

Lavery, Ian

Lazarowicz, Mark

Lewis, Mr Ivan

Mactaggart, Fiona

Mann, John

Marsden, Mr Gordon

McCabe, Steve

McCarthy, Kerry

McDonnell, John

McFadden, rh Mr Pat

McGovern, Jim

McGuire, rh Mrs Anne

McKechin, Ann

McKinnell, Catherine

Meale, Mr Alan

Mearns, Ian

Michael, rh Alun

Miller, Andrew

Moon, Mrs Madeleine

Morrice, Graeme

(Livingston)

Morris, Grahame M.

(Easington)

Munn, Meg

Murphy, rh Paul

Murray, Ian

Nash, Pamela

O'Donnell, Fiona

Onwurah, Chi

Pearce, Teresa

Perkins, Toby

Phillipson, Bridget

Reynolds, Jonathan

Robertson, John

Rotheram, Steve

Roy, Mr Frank

Roy, Lindsay

Ruane, Chris

Ruddock, rh Joan

Seabeck, Alison

Sheridan, Jim

Shuker, Gavin

Skinner, Mr Dennis

Smith, rh Mr Andrew

Smith, Angela

Smith, Owen

Soulsby, Sir Peter

Spellar, rh Mr John

Stuart, Ms Gisela

Sutcliffe, Mr Gerry

Tami, Mark

Thomas, Mr Gareth

Trickett, Jon

Turner, Karl

Twigg, Derek

Twigg, Stephen

Vaz, rh Keith

Walley, Joan

Watts, Mr Dave

Whitehead, Dr Alan

Wicks, rh Malcolm

Williamson, Chris

Wilson, Phil

Winterton, rh Ms Rosie

Woodcock, John

Wright, David

Wright, Mr Iain

Tellers for the Ayes:

Mr David Anderson and

Gregg McClymont

NOES

Adams, Nigel

Afriyie, Adam

Aldous, Peter

Amess, Mr David

Andrew, Stuart

Arbuthnot, rh Mr James

Bacon, Mr Richard

Bagshawe, Ms Louise

Baker, Norman

Baker, Steve

Baldry, Tony

Baldwin, Harriett

Barclay, Stephen

Barker, Gregory

Baron, Mr John

Barwell, Gavin

Bebb, Guto

Beith, rh Sir Alan

Bellingham, Mr Henry

Benyon, Richard

Beresford, Sir Paul

Berry, Jake

Bingham, Andrew

Binley, Mr Brian

Birtwistle, Gordon

Blackwood, Nicola

Blunt, Mr Crispin

Boles, Nick

Bone, Mr Peter

Bottomley, Sir Peter

Bradley, Karen

Brady, Mr Graham

Bray, Angie

Brazier, Mr Julian

Bridgen, Andrew

Brine, Mr Steve

Brokenshire, James

Brooke, Annette

Bruce, Fiona

Buckland, Mr Robert

Burley, Mr Aidan

Burns, Conor

Burns, rh Mr Simon

Burstow, Paul

Burt, Alistair

Burt, Lorely

Byles, Dan

Cable, rh Vince

Campbell, rh Sir Menzies

Carmichael, Neil

Carswell, Mr Douglas

Cash, Mr William

Chishti, Rehman

Clark, rh Greg

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Cox, Mr Geoffrey

Crabb, Stephen

Crockart, Mike

Crouch, Tracey

Davey, Mr Edward

Davies, David T. C.

(Monmouth)

Davies, Glyn

Davis, rh Mr David

de Bois, Nick

Dinenage, Caroline

Djanogly, Mr Jonathan

Dorrell, rh Mr Stephen

Dorries, Nadine

Doyle-Price, Jackie

Drax, Richard

Duncan, rh Mr Alan

Duncan Smith, rh Mr Iain

Dunne, Mr Philip

Durkan, Mark

Edwards, Jonathan

Ellis, Michael

Ellison, Jane

Ellwood, Mr Tobias

Elphicke, Charlie

Esterson, Bill

Eustice, George

Evans, Graham

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Fallon, Michael

Farron, Tim

Featherstone, Lynne

Field, Mr Mark

Foster, rh Mr Don

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Fuller, Richard

Gale, Mr Roger

Garnier, Mr Edward

Garnier, Mark

Gauke, Mr David

George, Andrew

Gibb, Mr Nick

Gilbert, Stephen

Gillan, rh Mrs Cheryl

Glen, John

Goodwill, Mr Robert

Graham, Richard

Grant, Mrs Helen

Gray, Mr James

Grayling, rh Chris

Green, Damian

Greening, Justine

Grieve, rh Mr Dominic

Griffiths, Andrew

Gummer, Ben

Gyimah, Mr Sam

Halfon, Robert

Hames, Duncan

Hammond, rh Mr Philip

Hammond, Stephen

Hancock, Matthew

Hands, Greg

Harper, Mr Mark

Harris, Rebecca

Hart, Simon

Haselhurst, rh Sir Alan

Hayes, Mr John

Heald, Mr Oliver

Heath, Mr David

Heaton-Harris, Chris

Hemming, John

Henderson, Gordon

Hendry, Charles

Herbert, rh Nick

Hermon, Lady

Hinds, Damian

Hoban, Mr Mark

Hollobone, Mr Philip

Hopkins, Kris

Horwood, Martin

Hosie, Stewart

Howarth, Mr Gerald

Howell, John

Hughes, rh Simon

Huhne, rh Chris

Hunter, Mark

Hurd, Mr Nick

Jackson, Mr Stewart

James, Margot

Javid, Sajid

Jenkin, Mr Bernard

Johnson, Gareth

Johnson, Joseph

Jones, Andrew

Jones, Mr David

Jones, Mr Marcus

Kawczynski, Daniel

Kelly, Chris

Kirby, Simon

Knight, rh Mr Greg

Kwarteng, Kwasi

Laing, Mrs Eleanor

Lancaster, Mark

Leadsom, Andrea

Lee, Jessica

Lee, Dr Phillip

Leech, Mr John

Lefroy, Jeremy

Leigh, Mr Edward

Leslie, Charlotte

Letwin, rh Mr Oliver

Lewis, Brandon

Liddell-Grainger, Mr Ian

Lidington, rh Mr David

Lilley, rh Mr Peter

Lloyd, Stephen

Lopresti, Jack

Lord, Jonathan

Loughton, Tim

Luff, Peter

Lumley, Karen

Macleod, Mary

MacNeil, Mr Angus Brendan

Main, Mrs Anne

May, rh Mrs Theresa

Maynard, Paul

McCartney, Jason

McCartney, Karl

McCrea, Dr William

McDonnell, Dr Alasdair

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

McPartland, Stephen

McVey, Esther

Menzies, Mark

Metcalfe, Stephen

Miller, Maria

Mills, Nigel

Milton, Anne

Mordaunt, Penny

Morgan, Nicky

Morris, Anne Marie

Morris, David

Morris, James

Mosley, Stephen

Mowat, David

Mulholland, Greg

Mundell, rh David

Munt, Tessa

Murray, Sheryll

Murrison, Dr Andrew

Neill, Robert

Newton, Sarah

Nokes, Caroline

Norman, Jesse

Nuttall, Mr David

Offord, Mr Matthew

Ollerenshaw, Eric

Opperman, Guy

Paice, rh Mr James

Parish, Neil

Patel, Priti

Pawsey, Mark

Penrose, John

Percy, Andrew

Phillips, Stephen

Pickles, rh Mr Eric

Pincher, Christopher

Poulter, Dr Daniel

Prisk, Mr Mark

Pritchard, Mark

Raab, Mr Dominic

Randall, rh Mr John

Reckless, Mark

Redwood, rh Mr John

Rees-Mogg, Jacob

Reevell, Simon

Reid, Mr Alan

Robathan, rh Mr Andrew

Robertson, Angus

Robertson, Hugh

Rogerson, Dan

Rosindell, Andrew

Rudd, Amber

Rutley, David

Sanders, Mr Adrian

Sandys, Laura

Scott, Mr Lee

Selous, Andrew

Shapps, rh Grant

Sharma, Alok

Simmonds, Mark

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

Soubry, Anna

Spencer, Mr Mark

Stanley, rh Sir John

Stephenson, Andrew

Stevenson, John

Stewart, Bob

Stewart, Iain

Stewart, Rory

Streeter, Mr Gary

Stride, Mel

Stuart, Mr Graham

Stunell, Andrew

Sturdy, Julian

Swales, Ian

Swayne, Mr Desmond

Swinson, Jo

Swire, rh Mr Hugo

Syms, Mr Robert

Thurso, John

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Turner, Mr Andrew

Uppal, Paul

Vaizey, Mr Edward

Vara, Mr Shailesh

Vickers, Martin

Villiers, rh Mrs Theresa

Walker, Mr Charles

Walker, Mr Robin

Walter, Mr Robert

Ward, Mr David

Watkinson, Angela

Weatherley, Mike

Webb, Steve

Weir, Mr Mike

Wharton, James

Wheeler, Heather

Whiteford, Dr Eilidh

Whittaker, Craig

Wiggin, Bill

Williams, Hywel

Williams, Roger

Williams, Stephen

Williamson, Gavin

Wilson, Mr Rob

Wilson, Sammy

Wishart, Pete

Wollaston, Dr Sarah

Wright, Simon

Young, rh Sir George

Zahawi, Nadhim

Tellers for the Noes:

James Duddridge and

Norman Lamb

Question accordingly negatived.

15 Mar 2011 : Column 269

15 Mar 2011 : Column 270

15 Mar 2011 : Column 271

The Deputy Speaker resumed the Chair.

Bill, as amended, reported (Standing Order No. 83D( 6 )).

Bill to be considered tomorrow.

Business without Debate

Delegated Legislation

Mr Deputy Speaker (Mr Nigel Evans): With the leave of the House, we shall take motions 3 to 7 together.

15 Mar 2011 : Column 272

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Road Traffic

That the draft Road Vehicles (Powers to Stop) Regulations 2011, which were laid before this House on 1 February, be approved.

Pensions

That the draft Financial Assistance Scheme (Revaluation and Indexation Amendments) Regulations 2011, which were laid before this House on 31 January, be approved.

That the draft Occupational Pension Schemes (Levy Ceiling) Order 2011, which was laid before this House on 3 February, be approved.

That the draft Pension Protection Fund (Pension Compensation Cap) Order 2011, which was laid before this House on 3 February, be approved.

Local Government

That the draft Greater Manchester Combined Authority Order 2011, which was laid before this House on 7 February, be approved.—( Angela Watkinson .)

Question agreed to.

European Union Documents

Motion made, and Question put forthwith (Standing Order No. 119(11)),

Charter of Fundamental Rights

That this House takes note of European Union Document No. 15319/10, Commission Communication on Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union; supports the Government in welcoming the Commission’s work to ensure that EU legislation is compatible with fundamental rights; and notes the Government’s support for the principle behind Protocol No. 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom, that the Charter does not give national or European courts any additional grounds on which to find that the laws of the United Kingdom are incompatible with the law of the European Union.—( Angela Watkinson .)

Question agreed to.

Business of the House

Ordered,

That, at the sitting on Monday 21 March, the Speaker shall put the Questions necessary to dispose of the proceedings on the Motion in the name of Sir George Young relating to Members’ Salaries not later than one and a half hours after the commencement of proceedings on the Motion; such Questions shall include the Questions on any Amendments selected by the Speaker which may then be moved; proceedings may continue after the moment of interruption; and Standing Order No. 41A (Deferred divisions) shall not apply.—( Sir George Young .)

Detention of Terrorist suspects (temporary extension) Bills Joint Committee

Resolved,

That this House concurs with the Lords Message of 8 March, that it is expedient that a Joint Committee of Lords and Commons be appointed to consider the draft Detention of Terrorist Suspects (Temporary Extension) Bills presented to both Houses on 11 February (Cm 8018).

15 Mar 2011 : Column 273

Ordered,

That a Select Committee of eleven Members be appointed to join with the Committee appointed by the Lords to consider the draft Detention of Terrorist Suspects (Temporary Extension) Bills (Cm 8018).

That the Committee should report on the draft Bills by 9 June 2011.

That the Committee shall have power—

(i) to send for persons, papers and records;

(ii) to sit notwithstanding any adjournment of the House;

(iii) to report from time to time;

(iv) to appoint specialist advisers; and

(v) to adjourn from place to place within the United Kingdom.

That Tony Baldry, Sir Menzies Campbell, Paul Goggins, Mr Greg Knight, Alun Michael and Mr Robert Syms be members of the Committee.—(Mr David Heath .)

Petition

Education Maintenance Allowance

10.14 pm

Sir Peter Soulsby (Leicester South) (Lab): A few weeks ago, my right hon. Friend the Member for Leicester East (Keith Vaz), supported by my hon. Friend the Member for Leicester West (Liz Kendall) and me, launched a city-wide petition against the Government’s proposals to abolish the education maintenance allowance. Last week my right hon. Friend presented a petition presented by those who study at Gateway college in his constituency. Tonight I present a petition signed by those associated with Regent college and Wyggeston and Queen Elizabeth I college in my constituency.

Signed by 327 people, the petition states:

The Petition of residents of Leicester and the surrounding area,

Declares that the Petitioners oppose the abolition of the Education Maintenance Allowance; notes that a substantial number of young people are in receipt of the Education Maintenance Allowance in Leicester; and further notes that education can provide a better future for young people.

The Petitioners therefore request that the House of Commons urges the Government not to abolish the Education Maintenance Allowance.

And the Petitioners remain, etc.

[P000901]

15 Mar 2011 : Column 274


Operation Ore (Staffordshire)

Motion made, and Question proposed, That this House do not adjourn.—(Angela Watkinson.)

10.15 pm

Robert Flello (Stoke-on-Trent South) (Lab): May I begin my thanking Mr Speaker for granting this debate? Those watching and listening will no doubt wonder why I want to raise something that happened such a long time ago. The simple answer is that my constituents have had to wait such a long time for an apology, and indeed are still awaiting an apology from Staffordshire police. I hope that following the debate the current chief constable, who is an honourable man, will move to ensure that that wrong is corrected without further delay.

I want to say something about Operation Ore in general. All aspects of child pornography are horrific, and I pay tribute to all agencies that act to stamp out that appalling crime. The victims need so much more than just sympathy. However, Operation Ore was not handled well: thousands of people were falsely accused, leading to 100,000 children being wrongly removed from their homes, people’s reputations wrongly being destroyed and, tragically, a number of people committing suicide. It is with that in mind that I turn to the circumstances of a constituent who, quite understandably, wishes to remain anonymous. Staffordshire police are fully aware of the case and know to whom I refer.

I wish to take the opportunity presented by the debate to raise the case of that constituent, who in December 2002 was arrested by Staffordshire police as part of Operation Ore, the British part of the global operation against internet child pornography. When I conclude my remarks, I will seek a number of reassurances from the Minister, whom I am grateful to see here this evening to respond to the debate.

Almost four years before the circumstances of December 2002, in January 1999, my constituent reported that his Barclaycard had been stolen. He reported it to a police station in Stoke-on-Trent, which issued him with a crime number, and to Barclaycard, from which he received a refund of £179.76 for some unlawful transactions made in the period between the theft of the card and his reporting it at the police station.

However, on 12 December 2002, eight officers arrived at my constituent’s home early in the morning amid a high police presence. Vans were parked for most of the day outside his home, which he shared with his parents, understandably arousing a great deal of interest in the neighbourhood. During the day a considerable amount of property, including computer equipment, was removed from the home. He was arrested on the grounds that the Barclaycard registered to him had been used in 1999 to access a website containing child pornography. I reiterate that it was in January 1999 that he had reported the theft to the police.

My constituent suffers from ulserative colitis, for which he had been taking prescribed medicine, which he informed the police doctor about early in his detention. His medication was brought to the police station promptly but was withheld from him until he was released at 7 o’clock that evening. As a result of the stress of his arrest and the withholding of his medication, his medical

15 Mar 2011 : Column 275

condition worsened, necessitating a medical referral to a consultant in order to rebalance the medication. It is only in recent years that his health has improved following the stress of that incident.

On 13 December 2002, the following day, my constituent was able to provide Staffordshire police with evidence that he had, indeed, reported the theft of his credit card in January 1999, and of the resulting refund from Barclaycard. As a result, no charges have ever been brought against him, and on 18 December 2002 all the property that had been seized on 12 December was returned. The police had checked the credit card database, but incredibly only back to 2002; the incident to which it related took place in 1999.

After much deliberation, during which the family tried to rebuild their standing in the community and to move on from the awful experience, my constituent and his parents decided in February 2003 to make formal complaints to Staffordshire police for wrongful arrest. These were acknowledged in writing on 25 February 2003 by the then deputy chief constable, David Swift, who informed both parties that their complaints had been passed to the force’s professional standards unit, where it would be handled by a Mr Hulse. On 6 March 2003, DCC Swift wrote again to my constituent’s parents, asking them to contact an Inspector Humphries within 14 days, which they did.

My constituent and his parents met the inspector in March 2003 and were told that, as my constituent had been the person arrested, any complaint should come from him. Therefore, the parents withdrew their complaint. My constituent was also persuaded not to pursue a formal complaint—he was told that this would be interpreted as a personal attack on the police officers—but to go down the route of an informal complaint.

Later that month, my constituent’s parents engaged a firm of local solicitors, and during a meeting Mr Hulse informed my constituent that, owing to a change in the police computer system, only records dating back to 2002 had been checked prior to his arrest, so the 1999 report of the theft of his credit card had not shown up. My constituents were advised by their solicitor that it would thus be difficult to proceed further with any complaint, as negligence would need to be proved, and that that would be an expensive undertaking for which legal aid would not be available.

In June 2003, my constituent’s parents wrote to the Metropolitan police, the lead force on Operation Ore, but their letter was merely forwarded to Staffordshire police, who informed them in July 2003 that the matter was now being dealt with by a detective inspector from the local CID.

In September 2003, my constituents engaged new solicitors, and a formal complaint for wrongful arrest was made on 1 October 2003, which Staffordshire police once again referred to the PSU in a letter dated 10 October. On 17 October, my constituent received a further letter informing him that Inspector Humphries was again handling their complaint.

There exists a withdrawal of complaint form, dated 24 October 2003, which apparently has been signed by my constituent. My constituent remains adamant to this day, however, that at no time did he agree to withdraw his complaint, sign any such document or have the inclination to withdraw his complaint. Staffordshire

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police appear to have no record of the original complaint, just the withdrawal of it, and in addition there are factual errors on the withdrawal form. In an effort to try to resolve that particular aspect of the case, I sought to view the original withdrawal form, and was told in no uncertain terms by the solicitors for Staffordshire police, “Who are you to be even considering reviewing such a document?” I am sure that the Minister will agree that so far the whole issue is of great concern.

In February 2004, my constituents’ solicitors informed Staffordshire police of their intention to seek damages for wrongful arrest and imprisonment, and that was acknowledged by Staffordshire police on 24 February 2004 and by the force’s insurers on 5 March 2004. In June 2004, my constituent was asked to provide some proof of his inability to work, and he was able to provide some evidence.

On 25 October 2004, however, Staffordshire police’s legal adviser, a Mr Griffiths, wrote to my constituents rejecting their claim, stating that in his opinion the arrest of my constituent had been lawful for the following reasons. First, my constituent did not inform the arresting officer of the 1999 theft of his credit card until part way through his first interview, not at the time of his arrest. Given the circumstances, it took some time for my constituent to be made aware of what he had been arrested for and all the implications of it. Secondly, the use of a credit card raised a prima facie case of suspicion, and the report of the theft of the card was not in itself proof of theft. Thirdly, officers had reasonable cause to suspect that my constituent was, according to Mr Griffiths’s letter,

“merely trying to pass the blame onto others.”

Those claims were rebutted by my constituents’ solicitors on 1 November 2004, who noted in particular that the use of a credit card online leaves a unique IP address, which would allow investigating agencies to ascertain the exact computer that had been used to access the illegal websites and whether my constituent had access to it. Indeed, that point has never been addressed by Staffordshire police. Mr Griffiths acknowledged that letter on 6 December 2004, and went on to concede that my constituent had made the arresting officers aware of the theft of his credit card at the time of the arrest, but that, apparently, that would make no difference.

Unfortunately, in January 2005, my constituents’ solicitors advised that they could see no reasonable chance of progressing the complaint further, and closed their file. In August 2005, my constituent made another formal complaint, this time on the ground of failure to provide prescribed medication. On 29 September 2005, Mr Griffiths wrote to my constituent, advising him that if he wanted to pursue the complaints, he should do so through legal representatives. In October 2005, my constituent complained further, to the Independent Police Complaints Commission, which informed my constituent by letter on 18 October that the IPCC had arranged for my constituent to be contacted by Staffordshire police to discuss the issue. According to my constituent, however, no such contact was ever made.

The years were now rolling on, and in December 2005, my constituent received a letter from the then Deputy Chief Constable Lee of Staffordshire police upholding the initial rejection of my constituent’s complaint, at which time my constituent asked the IPCC to undertake an investigation into why no pre-2002 records search

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had taken place, as such a search would have shown that the credit card had been reported stolen in January 1999. Unfortunately, the IPCC wrote back to say that, as the original complaint predated the IPCC’s formation and fell under the auspices of the Police Complaints Authority, it was unable, under law, to accept the complaint.

In August 2006, my hon. Friend the Member for Gedling (Vernon Coaker), in his then role as Under-Secretary of State at the Home Office, advised me that the Home Office could not become involved in the specifics of the case as it was an operational matter for Staffordshire police, and that he had forwarded my representations to Staffordshire police. He also suggested that any complaints about the IPCC be initially taken up with the IPCC caseworker. My constituent made a further complaint to the IPCC about its refusal to take up the complaint, but that was subsequently rejected. During 2007, again following further representations from me, Staffordshire police refused to reconsider my constituent’s early complaints. I was also, somewhat disturbingly, advised by the IPCC that it had no record of my constituent’s case file.

Having spent some time setting out the background to the case and the reasons behind the continuing anger and unhappiness of my constituent and his parents at the system of making a complaint against the police, I would like to ask the Minister to give me some reassurance on five specific points. First, will he use his good offices to persuade Staffordshire police to apologise, at long last, to my constituent and his parents, if for no other reason than for withholding the prescribed medication, for which I can see no justification?

Secondly, will the Minister assure me that, in future, all records—not just those from 2002 onwards—will be checked prior to any arrest, so that no other innocent person and their family suffer the trauma and indignity experienced by my constituent and his parents? Thirdly, will the Minister clarify whether he believes it correct that any complaint made before the creation of the IPCC cannot be pursued by it, and will he tell me what, if any, recourse is open to any other complainants in a similar situation?

Fourthly, is the Minister happy that, when a complaint is made either against an officer or, as in this instance, against a police force in general, it is handled in a way that is liable to produce an outcome that leaves the complainant feeling less than reassured? Fifthly, will he send the message today to all police forces that, when a mistake is found to have been made, a swift apology must be forthcoming? This is a dreadful case of sloppy practice leading to an injustice, yet, even now, all my constituent really wants is an apology.

Child pornography is an appalling crime, and those who are guilty rightly face public shame as well as the full force of the law. However, those who have committed no crime and who are wrongly accused also face public anger and horror. The police should therefore behave with the greatest level of professionalism. In this case, that professionalism was sadly lacking. I hope that the Minister will be able to respond to my five points, and that, despite what the force’s solicitors have said, Staffordshire police will make a full apology to my constituent and seek to right this wrong.

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10.29 pm

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire): Let me start by congratulating the hon. Member for Stoke-on-Trent South (Robert Flello) on securing this debate and on bringing this important matter to the attention of the House. I certainly understand his desire to highlight the specific case of his constituent, and he has clearly followed up with great care the various issues that have been raised with him. I hope he will recognise that it is difficult for me to respond specifically on an individual case of this nature. I also hope, however, that he will appreciate that this provides me with an opportunity to comment on Operation Ore and on a number of steps that the Government are taking to tackle the issue of illegal images online and the wider work of child protection generally. I note the five points that he has highlighted, and I will seek to address some of them in the course of my comments.

It might be helpful if I give the House a brief overview of Operation Ore. As the hon. Gentleman has explained, this was, at the time, an investigation into the activities of individuals on a scale that we had not seen before. In September 1999, the United States Postal Inspection Service searched the premises of an American-based online trading company known as Landslide Inc, which was providing access for payment to adult pornography and child abuse images. Material was seized that included a database containing the list of subscribers.

In September 2001, Landslide Inc transaction information was received by the National Crime Squad, a precursor agency of CEOP—the Child Exploitation and Online Protection Centre. The information was originally received within the National Criminal Intelligence Service, but following an initial assessment it was passed to the National Crime Squad. The NCS took responsibility for national co-ordination in dealing with the dissemination of the subscriber data. This included a co-ordinated approach to the categorisation and prioritisation of individual suspects based on their potential access to children. The transaction data consisted of information submitted by a customer in purchasing access to the websites, which included their name, address, credit card number, e-mail address and a customer-selected password. In April 2004, following the first incitement case, further forensic work revealed the capture of the subscriber IP address and the credit card verification logs.

In the majority of Operation Ore cases, police forces have used the data from Landslide Inc to commence investigations into the suspected possession of indecent images of a child. There is a common misconception about these cases being linked under an overall programme of investigation. I want to make it clear that the decision whether to proceed in each individual case was a matter for the police force concerned, and that once the individual packages were released to the forces, it was the responsibility of individual chief constables to decide whether to undertake investigations. Following investigation, forces considered whether offences had been committed and warranted judicial proceedings. Each case was independently scrutinised by the local Crown Prosecution Service, and in those cases where suspects elected for trial, the evidence was obviously further tested by the courts. To the best of our knowledge, no cases were brought on the basis of credit card data alone.

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We understand that about 2,700 individuals have been convicted of these offences. This figure includes more than 700 admitting their guilt in receiving a formal caution. In almost 2,300 cases, child abuse images were discovered. In 22% of all dissemination cases following an investigation, the police service took no further action. Importantly, more than 154 children were safeguarded.

As I have already indicated, it would not be appropriate for me to discuss individual cases in this debate, but I want to be clear that it is my understanding that the investigation process followed by the police in these cases was the same as for any other type of crime, and that following a thorough investigation, decisions were made on whether to proceed with a prosecution, or other action, taking all relevant factors into account.

I appreciate the points made by the hon. Gentleman and recognise the sensitivities for people who are arrested or accused of such crimes. An additional factor that the police have to consider in such cases is whether there is a direct and continuing threat to children from those who have been accused of a crime. It is a matter for the investigating officers, in conjunction with local children’s services, what action they take having considered that question. The hon. Gentleman has highlighted his desire and his constituent’s desire to receive an apology from Staffordshire police. That is a matter for Staffordshire police. The hon. Gentleman has put on the record the chronology of the events, the issues he has and his constituent’s concerns. I am sure that those points will be heard by Staffordshire police as a consequence of this debate.

The police and CEOP have standard guidelines for dealing with these investigations, which include recommendations for handling interviews and arrests. Although it is right that we consider the effect of the accusation on the person who is accused, that needs to be balanced with the risk posed to children. A member of the public who is dissatisfied with the behaviour of individual officers or a force may complain to the relevant police force or to the Independent Police Complaints Commission, to which the hon. Gentleman referred. The IPCC has a dual purpose to act as an overall guardian to the police complaints system, ensuring its effectiveness and efficiency, and also to take a role in individual cases. It is entirely independent of the police and the Government. The hon. Gentleman raised a specific point about the IPCC’s ability to take on individual cases that predate its creation. I hope that it is satisfactory to him if I respond later with further details on that issue.

The broader issue of illegal images is sadly one that persists. I would like to take this opportunity to set out the approach that we will take to that problem. I believe

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that we all have a responsibility to help to make the internet a safer place for the public. I support the self-regulatory model developed in the UK by the internet industry and law enforcement to provide a structure for the reporting of such images, the analysis of them, and action to track down those responsible or prevent access to them.

I recognise the support for the Internet Watch Foundation and the action taken by responsible internet service providers to prevent inadvertent access by the public to such images. That is an example of how industry and others can make a significant contribution to tackling this problem. I valued the opportunity this afternoon to attend the launch of the IWF’s three-year strategy and the publication of its annual report on its work to take down such images, working closely with law enforcement and other agencies. The Government strongly support this model for tackling illegal images. We believe that it works and we would like to see other countries take action to achieve the same ends.

The work of the IWF and the industry, allied with that of the police and CEOP, has helped virtually to eradicate the content in question from servers hosted in the UK, although there is clearly still work to be done. We will continue to support the work of CEOP, which does so much to help to protect children. It has been a great success, and it has helped to safeguard a significant number of children and apprehend people who would seek to harm them.

I wish to reassure the House of two things. The first is the seriousness with which the Government take the protection of children. In that context, we will continue to support the work of the police and CEOP to protect children from the threats posed to them. Like the hon. Gentleman, I thank them and congratulate them on their work to ensure that children are safer. Secondly, we will ensure that should an operation on the scale of Operation Ore be required again, the UK has in place a robust structure to deal with it. We will ensure that cases are handled in accordance with the law.

I thank the hon. Gentleman for raising this important issue in general, and equally for raising the case of his individual constituent. He has made his points very clearly, and he has certainly followed the case through for his constituent. I am sure that hon. Members who are in the House this evening, and people outside, will have heard the points he has raised tonight and will take notice of them.

Question put and agreed to .

10.40 pm

House adjourned.