Appointment of Commissioner

Domestic Abuse Bill – in a Public Bill Committee am 2:15 pm ar 9 Mehefin 2020.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice)

It is a privilege and honour to serve under your chairship, Ms Buck. This is the first time I have served under you, and it is an experience I am looking forward to. I have heard you are a very tough taskmaster.

I also pay tribute to the two Ministers present, who I know both want to make this the best legislation it can possibly be. I have worked with both Ministers in other areas, particularly the safeguarding Minister, the hon. Member for Louth and Horncastle. She might not remember this, but the very first Bill Committee I sat on was one for which she was on the Back Benches: it was the Public Bill Committee on the Investigatory Powers Bill in 2015-16, so I am familiar with being in a room full of lawyers and people with legal backgrounds when considering these kinds of Bills. At that time, the hon. Lady and I were both on the Back Benches, and if I remember rightly she was the first of the 2015 intake to go to into Government. Here we are again on a Bill Committee together, both as Front Benchers, which is an honour for both of us.

This is an important piece of legislation, which we all need to get right. I pay tribute to the Back Benchers in Committee, who often do not get credit for these things. Those sitting on a Bill Committee for the first time, hearing the exchange I have just had with the Minister, should believe me that this is an opportunity for us all really to get under the hood of a piece of legislation and to go into some depth. Personally, and speaking for our Front Bench, I am looking forward to benefiting from the insight and wisdom that many Members will bring to this area.

We have already benefited from the hon. Member for Cities of London and Westminster with her experience on CAFCASS, the Children and Family Court Advisory and Support Service, and, ever since I realised that the hon. Member for Hertford and Stortford was on the Committee, seeing her background, I have genuinely been looking forward to hearing what she has to say in her experience as a magistrate. Such things make legislation better, and this is a landmark piece of legislation to last for a generation.

The clause is a non-contentious part of the Bill, but there are things that we need to explore. Even though the clause is non-contentious, we still need to get it right and to seek assurances for aspects of it. In line 5, for example, the clause gives the Home Secretary the power to appoint the domestic abuse commissioner—quite right, too, because the Home Secretary should have that power, but it is also right for us to explore how that appointment will be made.

The Bill and the explanatory notes give no guidance as to how the appointment will be made in future. I realise that the Home Secretary and the Home Office will adhere to the public appointments principles, as with all other standard appointments, but the Bill includes no commitment to the role of Parliament, and this is a really important part of how we appoint such roles into the future. I refer specifically to the role of Select Committees in such appointments.

Select Committees in this country scrutinising and doing pre-appointment hearings was based loosely on the US model, where Committees have the statutory power of veto, although we do not have that power here. Since Select Committees have been involved in pre-appointment hearings—even in the five years I have seen that, experiencing it myself on a Select Committee on a number of occasions—there is no question that it has led to better appointments. I seek an assurance from Ministers that they will take that process seriously.

Additional scrutiny comes with such an appointment hearing, and the fact that the Select Committee is independent of Government gives another branch to that scrutiny, which is done in public and on the record. That is incredibly important. Crucially, it adds credibility and authority to the commissioner once appointed. We seek this reassurance for the future, because we are in the slightly strange position of talking about an appointment that took place before the Bill has even come in to give the powers to the Home Secretary to make the appointment. This is about the future.

I have seen such things going wrong. In 2015, I was a member of what became the Business, Energy and Industrial Strategy Committee when a commissioner who is not a household name was appointed, the Pubs Code Adjudicator. We were asked to do pre-appointment scrutiny. It was a fascinating process to go through, and we treated it with all sincerity. We worked very diligently, holding hearings for stakeholders—pub owners, licensees, the legal profession and all such different areas—and investing a lot of time in the process.

When the nominee came before the Committee, however, it was the most lamentable performance that I have ever experienced from anyone seeking public office. It was very clear that there was a conflict of interest, which the potential appointee did not even seek to hide and refused to give up. Something quite unusual happened: the Select Committee refused to grant permission for the appointment. This was our statement to the Secretary of State on concluding the hearing:

“While the Committee has no reason to question Paul Newby's integrity or his qualifications for the job, his long-standing relationship with pubcos through his past work and a continued financial connection has created a strong perception of a conflict of interest.

The Pubs Code has the potential to significantly improve the embittered relationship between pubcos and many of their tenants, but it will only work if the Adjudicator is seen to be independent and is able to command the confidence of all the industry’s stakeholders.

The Committee would like to see a new Pubs Code Adjudicator appointed from outside the sector, to ensure that this important role is—and is seen to be—completely independent and impartial.”

Within a week, the Secretary of State had gone ahead with the appointment, against the advice of Parliament, and there has been a very fractious relationship ever since. It has never been an appointment that has wholly had the support of the sector that the adjudicator was appointed to represent. Even though that example is from a slightly tangential area of policy, the principle still stands very strong.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office), Shadow Minister (Domestic Violence and Safeguarding) 2:30, 9 Mehefin 2020

I am not sure whether my hon. Friend was going to come on to this, but exactly the same thing happened when the chair of the Equality and Human Rights Commission was selected. Both the Joint Committee on Human Rights and the Women and Equalities Committee put in complaints that were nothing to do with his character or his abilities, but specifically to do with his running Government contracts. That was completely ignored by the Secretary of State, and I am afraid to say that that conflict of interest has been used by people who are potentially under question from the EHRC at the moment to suggest that the commission is in some way compromised. This has an effect on people’s ability to do the job.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice)

I am grateful for that additional example. I am very aware of the case study that my hon. Friend refers to, even though I was not going to bring it into my few words. It illustrates an incredibly important point: having the support of Parliament is an empowering force behind any public appointment. Furthermore, it offers increased credibility. It starts with a commissioner having the respect of—and a functional relationship with—not just the Government who made the appointment, but Parliament.

In our system of democracy, we take very seriously the relationship between Government and Parliament. Parliament will play a part in scrutinising, so if it has a hand in appointing, there is buy-in from the start. It really is a win-win for Parliament to be involved via the Select Committees.

The appointment has already gone ahead, and I do not think that anybody would say that Nicole is either not qualified for the job or not a welcome appointment to it—but this is certainly something that we need to think about for the future. In my earlier example, it is very clear that even though the public appointment went ahead and had the backing of Government and Ministers, the role has never lived to up to the expectations that were set for it when it was first created. I implore Ministers not just to submit future commissioner appointments to an appointment hearing with the Home Affairs Committee, but to give the Committee the power of veto.

I realise that giving power away is not in the DNA of the Home Office. It is not the normal trajectory that we see from Home Office Ministers, but there are times when giving power away is a very empowering act that leads to a much more functional relationship between Government and Parliament, Parliament and the appointee, and the appointee and Government.

The Home Office has already appointed the commissioner, and it is worth putting it on the record at this point that the Joint Committee on the Draft Domestic Abuse Bill, which scrutinised the previous and similar legislation to that which we are examining today, was not happy that that happened. It said, in paragraph 287 of its report, that

“we were surprised to learn that the process of recruiting a designate Commissioner had almost been completed before Parliament had had any opportunity to consider—still less to recommend any changes to—the draft Bill setting out proposals for the Commissioner’s remit and powers… We consider this unsatisfactory.”

I agree, and I suspect many Members in this room agree. They are free to do so, because there will not be a vote at the end of our discussion on this clause.

We all appreciate the enthusiasm of Ministers and the Home Office to get this appointment out the door, but I have to say that, even though we agree with and celebrate the appointment of Nicole Jacobs, the Minister and Government got away with it this time. Had that appointment not had the backing of the sector and of Parliament, it would be very hard to establish the credibility that this role needs within the sector.

I hope that my words will have made an impression. We purposefully did not put down an amendment to this clause, because we did not want to press this point, but we do want to impress it on people in the strongest possible terms that the joint relationship between Parliament and Government in making the appointment in future is something that will tangibly strengthen the role.

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

I thank the hon. Gentleman for his constructive and considered comments on this matter. I thank him also for reminding me of the Investigatory Powers Bill, proceedings on which, it is fair to say, were more fiery than those on this Bill.

I very much take on board what the hon. Gentleman says, in that we have always been very conscious that the commissioner must have access to Parliament and must be accountable to Parliament in the sense of laying annual reports. Indeed, we have made it—I suspect that we will come on to this in a little while—their responsibility as a commissioner to lay their annual report before Parliament. They, not the Secretary of State, will lay it, decide when it is laid and so on. We have been very careful to ensure that.

Going back, I appreciate the point that the hon. Gentleman raised about the Joint Committee. I will explain the reason why we appointed the designate domestic abuse commissioner. I personally interviewed a number of impressive candidates for that role, and there were a couple of reasons why we wanted to appoint the designate domestic abuse commissioner.

First, we knew that the legislation would take time to get through the House and we felt that the commissioner could start the groundwork without their statutory powers, because of course the statutory powers are in the Bill. There was groundwork that she could start with—for example, setting up her office, building relationships and beginning to work out where there were particular areas of work that she wanted to focus on. That could all start, and I have personally found the designate commissioner’s assistance, over the last couple of months in particular, absolutely vital, because she has been key in drawing together the charities that are working on the frontline in the covid-19 crisis. She has a Monday call—she referred to it in her evidence and was kind enough to invite me to attend one of the calls—where she speaks to the sector across the country. She then processes that information and data for the Government, so that we are able to formulate policies to help in the very time-sensitive manner that we have been able to. I really value her contribution.

The commissioner will, of course, be accountable to Parliament through Select Committees, as the hon. Gentleman said. I certainly expect the Home Affairs Committee to call her, and the Justice Committee may choose to call her too, so there will be accountability.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice) 2:45, 9 Mehefin 2020

I am very grateful to the Minister for her tone and the content of her words. What will she do if one of those Select Committees refuses to endorse a candidate that she puts forward? That is the key question. What will she do if it does so, after having a considered set of deliberations, based on sincere and non-partisan evidence? How would she react to that?

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

Let us take a step back, because I would not want the hon. Gentleman to think that we appointed the designate commissioner on a whim. There is a very careful and methodical appointments process. He can imagine the scrutiny carried out by the legal advisers in the Home Office, the Cabinet Office and elsewhere, who pay attention to how we conduct these appointment processes. It is the same for other commissioners. I also have responsibility for the Independent Anti-Slavery Commissioner, and I do not think anyone would claim that Dame Sara Thornton is not independent and is not an extremely powerful voice in tackling the world of modern slavery. We have careful and methodical appointment processes. I am confident in the two appointments that I have been involved in, and I hope that we have weeded out the sorts of concerns that he is flagging. Once the appointment is made and the Bill is passed, if substantial changes are not made to it, we expect to be able to follow that through.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice)

The Minister is being very generous and warm-hearted. I am not sure how she will be in a few days, but for now I fully embrace her generosity. What is the point of a Select Committee scrutinising somebody’s record and background, with a view to a public appointment, if it does not have any power over whether the appointment can go ahead afterwards? Would its time not be best spent doing something else if its conclusions mean nothing when it comes to the final decision?

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

I again come back to the responsibility of the Minister making the appointment. It is a real responsibility; it is certainly something that weighed heavily on my shoulders. I am conscious that if we miss what we are trying to achieve with the appointment, that will have an impact on not just the commissioner, but the Minister and the Department. Just as the commissioner is accountable to Select Committees, so too are Ministers. Given that we follow the public appointments process, I am satisfied that we will recruit the right person for that role and equivalent roles.

I take the hon. Gentleman’s point, but I draw his attention to the drafting of clause 3. Subsection (3) is there to ensure that the commissioner is not regarded as a servant or agent of the Crown. We say that that supports their independence. I suspect that that will be a feature of amendments to come. With the appointment, we have wanted to ensure that the commissioner is able to start using her statutory powers when the Bill receives Royal Assent. The Committee has already heard reference to the mapping exercise of community-based services that the commissioner will undertake once she has her powers under clause 8. That is something that we have sought her help on, and we very much look forward to her assistance on that.

We want the commissioner to be a powerful voice; we want her to stand up for the victims of domestic abuse and hold public authorities to account where necessary, as is set out in clause 14. I am pleased that the designate commissioner has been welcomed by those working on the frontline, and people who are perhaps not so involved in the day-to-day concerns about domestic abuse can see that she is an expert appointment. She has more than 20 years’ experience, and she is bringing her expertise and drive to this crucial role.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice)

The Minister has mentioned the designate commissioner’s experience and suitability for the job a number of times. I would never want to give the impression that I do not agree with the designate commissioner’s suitability for the job, and it is very important for the sector, in the absence of an appointment based on legislation and on parliamentary scrutiny and hearings, to hear the cross-party support for the designate commissioner. I hope that the Minister will accept our support for her as well when she makes her remarks.

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

I do not think that anyone read into the hon. Gentleman’s constructive comments about this appointment anything other than that he was doing his job of scrutinising the wording of the Bill, and I am pleased that the designate commissioner has managed to gain such support in such a short period of time.

I commend the clause to the Committee.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.