The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
I am delighted that we now have another name for the rollout and the trial run; we are accumulating quite a vocabulary of descriptions for this important part of the development of this legislation. I am grateful to all noble Lords who have spoken. We have moved down to some detail, which it is important that we use Committee to tackle. I am grateful in particular to the noble Lord, Lord Best, for tabling his very thoughtful amendments, and to my noble friend Lady Hamwee for hers. They are clearly intended to improve this part of the Bill. I welcome the opportunity I had to meet with the noble Lord, Lord Best, as I explained already, and with a number of interested bodies to discuss these provisions. My door remains open to the noble Lord; some of the suggestions he has made today require further exploration jointly between government and their advocates, so I hope that this will be a beginning.
This group of amendments includes some interesting suggestions, which I will reflect on further, as is right and proper. However, some of them would represent a retrograde step. We can take things in a different direction and further forward than perhaps the amendments aim to take them. I remind noble Lords that the aim of the legislation is to require landlords to conduct immigration checks on all adults who it is intended will occupy the property when the tenancy is created. It does not require all such adults to be named on the tenancy, although that may become common practice in future, and the Bill allows landlords to delegate the task of performing checks to a letting agent. The checking requirement applies only where the property is occupied for rent or lodging as the person’s main or only home.
That is an important measure, and the Government are right to identify housing as one of those facilities which, if controlled by measures as provided for in the Bill, will serve as a deterrent to illegal immigration. I am sure that the noble Baroness will share that view, just as both parties agreed that employers’ checks on people seeking work have been effective in that regard.
The Bill does not require the landlord to monitor who is living at the property once the tenancy has been created. While some landlords already require their tenants to inform them of changes to the composition of the household, some do not, and we recognise that. Where a tenant sublets the property or accepts a lodger without the landlord’s knowledge, that tenant effectively becomes the landlord under the scheme, so to a degree the landlord’s responsibility applies to the person who occupies the house as a principal home.
Baroness Smith of Basildon
Can the Minister clarify whether that is the case only if the tenant accepts payment by the lodger? Presumably, if they accept someone to stay in the property as a guest, nobody will be liable to check their immigration status.
Lord Taylor of Holbeach
It is not a question of payment, but of whether that is their principal or main home. If it is not, and they are just a guest for the weekend or for a month, or whatever, that would be a different matter, but if it is the person’s main home, whether there is payment is not relevant to their status. I hope that that is clear.
Baroness Hamwee
On the same point, it is common in leases and tenancy agreements to provide a prohibition against subletting or having a subtenancy. In some of the less formal arrangements that the noble Baroness and I are aware of—I am thinking now about the head landlord and tenant—it may not be normal to provide for that, even though a mortgage company that has lent on property would expect it. I hope that landlords, as we understand them in the normal way, would not be penalised if they had a fairly informal arrangement with a tenant of the sort that would fall within this that did not preclude a subtenancy or sublicence. I hope that I am being clear about that. I can see that there may be more calls on what the landlord should do by precluding the possibility of somebody coming in and lodging or having a sublicence without the landlord himself knowing—and I would not like a landlord to be penalised because of that. It is an allied point; I am seeking for there not to be more requirements on the landlord.
Lord Taylor of Holbeach
I am sorry because, as my noble friend Lord Attlee whispered to me, “You’re wrong”. He is so delicate in these matters. But I am wrong. This transfer of responsibility occurs when rent is paid; when no rent is paid, that is not an arrangement under this scheme. I hope that that is understood, and that it helps to clarify the border as to where the reporting happens.
Baroness Smith of Basildon
I am grateful to the Minister and thank him for clarifying that—we all make mistakes. Does that not seem some kind of a massive loophole in the law—the landlord will have to undertake all these checks to ensure that the landlord’s tenant is a legal citizen of this country and entitled to stay, but the person who is renting the property could then allow guests to stay permanently, with it as their main home and with no payment? It would be possible for a rogue landlord to charge exorbitant rent to one person and for the others to stay for free. There seem to be complications around that, allowing a significant loophole in this legislation, if I am correct—but I may be wrong.
Baroness Hamwee
My Lords, I might add to the complications by pointing to the provision that, although the residential tenancy agreement of rent must provide for payment of rent, it need not be a market rent.
Lord Taylor of Holbeach
Yes, a further elaboration of the point is that the restriction applies only when the person is under an agreement, formal or informal, where the tenant pays rent. The immediate landlord is responsible; if the tenant sublets without the superior landlord’s knowledge, the tenant is responsible for the subtenant. This is quite convoluted language, if I may say so, and it might help noble Lords if I wrote to clarify that point. I see the importance of making it clear where the responsibility lies in these matters; I thank the noble Baroness for raising the issue in the first place and my noble friend Lady Hamwee for her comments.
Baroness Smith of Basildon
I am grateful—that is very helpful. But perhaps the Minister could address the point made by the noble Baroness, Lady Hamwee, and myself about a loophole. It does not have to be the market rent; it could be an exorbitant rent to one tenant to allow others to stay there for free. If he could address in the letter whether that is a loophole, that would be very helpful.
Lord Taylor of Holbeach
Yes, I will do it in the letter. I feel that if I try to do so here today, I might get into even deeper water than I am already swimming in.
Home Office immigration enforcement will enforce the scheme in the normal course of its activities. Where illegal immigrants are detected during illegal working operations, when arrested for criminal offences, or as a result of intelligence, immigration enforcement will investigate where the person is living. This will include establishing whether the new duty on landlords has been breached, who owns or controls access to the property, and who is collecting the rent. That ties up with the consideration that the noble Baroness asked me to look at earlier.
The checking requirement will apply only to adults, and the person’s age as a matter of fact will be apparent from the documents presented. The system of document checks has been adjusted, following consultation with landlords, to reflect closely existing check practice by landlords. Where these simple checks are completed, the Bill makes it clear that the landlord will have an excuse, and therefore will not be culpable under the provisions of the Bill. Only original documents can be accepted in view of the obvious risk of forgeries, as noble Lords will understand.
Earlier in the Committee’s deliberations—I am grateful for the comments of my noble friends Lady Neville-Rolfe and Lady Williams of Crosby—I announced the Government’s intention to bring forward on Report an amendment to broaden the exemption for student accommodation owned, managed or arranged by higher education institutions in all parts of the UK. Obviously, we await the full detail of the amendment, but I think this very much meets the point that noble Lords have made. This is an important area for two reasons: first, because it reinforces the message that I am trying to get over that we want to make it clear that we are supportive of the university sector in this country; and, secondly, because it introduces the concept that there can be no need for double checking in this area given that the university has already satisfied itself that its students are properly entitled to be in this country. I note the suggestion about the engagement of Section 233 in the amendment of the noble Lord, Lord Best, and I have already noted my noble friend’s contribution on the council tax exemption point.
The noble Lord, Lord Best, has raised concerns about people who are in need of support at a time of homelessness or the threat of homelessness. The exemptions in Schedule 3 already deal directly with the work of hostels and refuges and the work of local authorities, where they are providing assistance to comply with their duties, or are providing assistance on a discretionary basis to a person who is homeless or threatened with homelessness. Therefore, we have made this clear in the Bill.
The noble Lord makes a very interesting suggestion in advocating, and elaborating on, a role for a verifying body to support small landlords in performing the required checks. I say, in the modest way that Ministers do, that I undertake to reflect further on the merits of this suggestion. This is an interesting matter for us and the noble Lord to discuss. The Government want these arrangements to be workable in practice. I think my replies have shown that the Government see this as an important aspect of policy but it must be practical and work for landlords and people who want housing. We also want these arrangements to be successful in achieving the policy objective of deterring illegal migration.
I think I have made it plain that I want to engage with noble Lords. I hope that, in the light of the reassurance I have given, and, indeed, my promise to write in detail specifically on the division of responsibility—that is essentially what we are talking about in relation to the definition of a tenancy and landlords’ responsibilities—the noble Lord will withdraw the amendment.
The Earl of Caithness (Con)
My Lords, can my noble friend confirm that this part of the Bill applies equally to agricultural landlords as to the more urban and residential landlords that most of the Committee would think of in the first instance?
Lord Taylor of Holbeach
Yes, I can confirm that. An agricultural tenancy or a house occupied in connection with any employment would clearly be covered. However, it should not be forgotten that the owner of that property, as an employer, would have already checked the person’s entitlement to be in occupation.
Lord Best
My Lords, I am grateful for support for the amendments in differing degrees from all around the House, including the noble Baroness, Lady Williams of Crosby, who makes the point that it is already incredibly difficult for overseas students to find anywhere to live that they can afford in London—and in other cities. We must not make life more difficult by putting up a new barrier that puts landlords off; that is such an important and fundamental point.
I am grateful to the noble Baroness, Lady Smith of Basildon, who raised a couple of significant points. The Rent a Room scheme that we already have is getting a bit tired; this is the opportunity to let a room in your house and pay no tax—indeed, fill in no forms and just get on with the letting on your own. It will make a difference to the individual who owns that property if having to check the immigration status of anyone whom they take in is added to the requirements on them. We need to look at the Rent a Room scheme again. The tax threshold—the amount you can receive in rent from someone in your own home—has not been changed for something like 11 years; we have to revise that. This is an important moment to look at that. The case is similar for lodgers and guests—these look like awfully murky waters. The Minister said that he would respond in writing, which will be helpful.
The noble Baroness, Lady Neville-Rolfe, picked up on having approved verifying bodies that take all the hassle away from landlords—indeed, that take it away from the Home Office. However, she felt that it would be better to produce guidance and let landlords do their own thing. A voluntary scheme means that landlords who want to use it would just get on with doing so. Some 60% of private renting is through local agents. Rather than agents having their own mini-schemes—how many agents will become expert enough at this?—a central approved body that can verify people’s status would cut the cost to the landlord, and that might be passed on to the tenant. It would give landlords greater reassurance. I declare an interest: I chair the Property Ombudsman, which looks after letting agents and estate agents and the complaints about them. In the world of property ombudsman-ery, there is a system of the Secretary of State approving certain bodies as ombudsmen. That works well: it means that people can join a scheme knowing that it is properly approved, so people can stand behind it. Applying that technique in this field could be a clever move to help everybody to get this right.
The Minister made some important points. He underlined that the student lettings amendment that will be brought forward on Report will be a really good one. We will look at it with care, but it sounds as though it will do a great deal of what we hope that it will. On people being placed with a private landlord by an agency such as Crisis, a charity that takes potentially homeless people and persuades an individual landlord somewhere to take them on, he was not quite able to give me the reassurance that I had hoped for that that would be treated—as I understand it—like a hostel specifically for the homeless. These are specialist schemes in which the vetting will be done by Crisis. To say to the landlord, “I am sorry, we are unable to take away from you the responsibility for checking the migration status of the people we are bringing”, just adds another difficulty when it is difficult enough to get landlords to take in people, even with rent guarantees and other useful techniques. It would therefore be good to talk about that further.
I am grateful to the Minister for earlier discussions and his agreement that we should jointly explore some of these matters further. I look forward to such meetings and, in the light of his reassurances, I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, these amendments build on the two previous debates that we have had on this issue and highlight its difficulties and complexities. I know that the Minister will give an explanation of these but I ask him to take on board the points that have been raised today, and the other points raised on Monday at Questions, which strike at the heart of what these clauses seek to do.
What worries me is that if landlords are going to rent out their properties and want to abide by the law, they will need to have absolute clarity about what is expected of them. The noble Baroness, Lady Hamwee, thought that she was testing the patience of the Committee. I do not think she was because, for example, Amendment 55Q makes an important point. I worry that the measure outlined in that amendment could be a further deterrent to landlords to rent.
The noble Baroness mentioned the code of practice and the documents available. As I said on Monday, the Government have tried to be helpful by increasing the number of documents available. However, I am not sure how helpful that is because it creates even greater complexities. I had hoped for an explanation of why under List A of acceptable documents, 10f has only a full stop. Presumably there is something missing and there will be another document at some point.
Lord Taylor of Holbeach
It is only a draft document. There may well have been other matters under consideration at the time.
Baroness Smith of Basildon
So there may be further documents which are acceptable. I appreciate that.
However, clarity for landlords is crucial, particularly if they are expected, according to the impact assessment, to pay £6.8 million-worth of fines, which is the Government’s break-even policy objective. Every time I read the landlords’ guidance it raises more questions than answers and I am sure it will be the same for landlords. If I were a potential landlord I would regard this as a disincentive.
In the previous debate I asked the Minister a question about landlords seeking to play safe and the noble Baroness, Lady Hamwee, has reminded me that I did not receive a response. The worry is that landlords will look at the obligations placed on them and want to choose tenants who most look like, sound like and are easier to identify as, in their eyes, British citizens. Rather than choosing those who may even have permanent leave to remain, they are going to play safe. There is a discriminatory aspect to that. However, the specific question I asked was whether the Government have made any impact assessment of the impact of the legislation on the availability of rooms to rent in the private rented sector. It would be helpful to know if any consideration has been given to that point.
Lord Taylor of Holbeach
I am grateful for both the debate and the amendments tabled by my noble friend. They contain constructive suggestions and are designed to make this part of the Bill work, an aim which noble Lords will share. The amendments seek to exclude vulnerable people and students from the provisions of these clauses. I have already referred to the Government’s plans in relation to students. However, I wish to provide some reassurance in relation to those who may be vulnerable.
On the point made by the noble Baroness, Lady Smith, discrimination is a concern. Certainly if it became widespread it would destroy the credibility of these arrangements. That is why there is a code on discrimination running parallel with the code of practice. As noble Lords will know, to breach this code and to act in a discriminatory fashion is against the law in any event, and so it is part and parcel of the package of non-regulatory measures being brought forward to reinforce these particular provisions.
Clause 16 provides discretionary powers for the Secretary of State to authorise a tenant who has no lawful status to rent property. This will include asylum seekers, who will be able to confirm that they have a right to rent with the landlords’ checking service, or a landlord may conduct a check directly with the service. This discretion will be exercised where a failed asylum seeker is unable to return home because of a recognised barrier.
Tenants housed by virtue of children or national assistance duties are also covered in exclusions. Schedule 3 provides that any accommodation provided to a person as a result of a duty on a local authority is excluded—that is, a duty on a local authority in respect of any obligations to vulnerable people. It does not seek to particularise the duties, including the respective Acts and orders relating to children or social care; it is a general obligation which local authorities may have to individuals. Therefore the amendment proposed by my noble friend is not necessary given the wide scope of this exclusion.
The amendments are also intended to provide further protection to landlords. The provisions create a civil penalty scheme which the Government are committed to applying on a light-touch basis. Where a suspected contravention is discovered, the Secretary of State may issue a penalty notice, including where they are not immediately contactable. The landlord is then afforded a right to raise objections. Where these objections show that the landlord has a statutory excuse from a penalty, they will be notified in writing. No further consequences will arise if the objections show that the landlord has a statutory excuse.
The power to increase a penalty is important—it is a kind of parallel power—as it may not be immediately clear whether the landlord has been previously penalised in this way. The landlord may, where it is decided to maintain a penalty, appeal to the courts. That is the right order of events: rather than going immediately to appeal, adjudication can take place informally between the landlord and the Secretary of State.
It is proposed that where a penalty remains unpaid the Secretary of State should be able to pursue recovery through the courts if the penalty were due under a court order in exactly the same way as a civil penalty. In cases where an appeal has been heard by the courts, this avoids the landlord, the Secretary of State and the courts having to return to the same court to hear an application for judgment for an amount the court has already determined should be paid by the landlord.
Turning to Amendments 55A and 55B, to which my noble friend wanted me to pay attention, I remind the House that the proposed sanction is a civil penalty, an administrative scheme; it does not form part of a criminal investigation. Clause 23 places a responsibility on the landlord and/or agent to evidence that they have complied with the prescribed requirements and have maintained an excuse against a penalty where necessary. That does not mean to say that the Secretary of State is not required to establish that there has been a contravention of Clause 17 to justify the issue of a penalty notice, nor that the Secretary of State will not engage with the landlord or agent and give them the opportunity to establish an excuse before a penalty notice is issued. I can confirm that the intention is that landlords and agents will be invited to demonstrate their excuse before a penalty notice is issued. However, in cases where the landlord or agent refuses to co-operate with an investigation, the Government consider that this is a proportionate and practical approach. The landlord or agent can easily prove that they have undertaken the checks by producing copies of the relevant evidence, whereas it would be difficult for the Secretary of State to establish a negative and establish that the prescribed requirements were not complied with.
Baroness Smith of Basildon
I apologise because I now understand why the noble Lord is inching towards our pilot. However, I have asked him a question in the last two debates: has any assessment been undertaken of the impact of this part of the Bill on the availability of rooms to rent and properties to rent?
Lord Taylor of Holbeach
I cannot give the noble Baroness an absolute answer to that question. Of course one of the reasons why the rollout is important is that we need to check to see if there are any adverse implications in this policy.
Lord Avebury (LD)
My Lords, can I ask the Minister a question about asylum seekers and persons appealing against a refusal of asylum who are occupying rooms in private houses? It has been said that there are quite a few people doing this, notwithstanding the fact that accommodation is normally provided for them under the Immigration and Asylum Act 1999. Can my noble friend elucidate what provisions are being made for documents to be produced by those who are occupying rooms in private houses because they are not covered by the provisions of Schedule 3, to which he has referred? They deal only with the accommodation that is provided to most asylum seekers under the 1999 Act when they cannot afford to pay for accommodation of their own. However, there is still an important residual group of people who find space in private houses. They will need documentary proof that they are allowed to live in those houses and thus ensure that landlords are not breaching the conditions by taking them in.
Lord Taylor of Holbeach
I think I have made it clear that for people who have asylum seeker status, where it is not safe for them to return and therefore they may be failed asylum seekers, the Home Office will provide the necessary documentation to show that they have a right to accommodation even though their status may well be that of failed asylum seekers.
The Lord Bishop of Newcastle
My Lords, perhaps I may also ask for some clarification. One of my concerns about this part of the Bill is that many landlords will simply not rent to anyone who seems to be foreign or who does not hold a British passport for fear of getting it wrong and being fined. I am afraid that that will inadvertently result in further racial discrimination and provide a charter for those unscrupulous landlords who are racist.
In response to the consultation, the Government accepted that the new rules might provoke landlords to discriminate against people they perceive to be foreign rather than to conduct proper checks. They also recognised the risk that vulnerable people might be impacted. So, is the code of practice and the associated guidance which will make it clear that the checks do not allow landlords to act in a manner inconsistent with the UK’s equality legislation sufficient? It simply requires landlords to read the code and adhere to it without any redress at all if they do not. Moreover, it will be extremely difficult and costly for any potential tenant to bring a challenge of discrimination or victimisation against a private landlord. If people cannot rent relatively easily, they will be forced to seek accommodation in the more shadowy parts of the housing market. I wonder whether the Minister can tell me whether I am right or wrong about this.
Lord Taylor of Holbeach
My Lords, I do not want to sound complacent because I recognise that this is a cause of anxiety which has been expressed in meetings I have attended. It has also been expressed by other noble Lords in our earlier discussions about the Bill. I do not want to lay too great a store by the codes, but those codes exist, and I do not want to lay too great a store by racial discrimination legislation, which would clearly apply in such circumstances.
What I will do is to ask the right reverend Prelate to accept that this surely applies in connection with employment. I do not know whether the right reverend Prelate feels, as he looks at the nature of people who are engaged in work in this country, that there is widespread evidence of racial discrimination, but I would have thought not. I think it is to the great credit of this country that it is able to welcome people, and this is certainly not a Bill that is designed to make people unwelcome, as long as they have a right to come here and to remain here. That is the principle of this legislation, and I hope the right reverend Prelate will be reassured by that. It is not meant complacently but I believe that, at bottom, the analogy with employer provisions is a good one and leads me to suggest that the particular fear that the right reverend Prelate refers to is not the cause for concern that he thinks it is.
Baroness Hamwee
My Lords, this discussion has confirmed for me the complexity of the provisions, and therefore the advantages in having the sort of verifying body to which the noble Lord, Lord Best, referred in the previous group of amendments. We will come later in the Bill to the position of immigration advisers and tightening up arrangements there. It seems that, as well as rogue advisers, there must be many who are simply incompetent. One could almost say, “Who can blame them?”, but nevertheless I do blame them. Any arrangements which can make it simpler for those who are, as it were, at the coalface to operate will be very welcome. This debate has confirmed that in my mind. My noble friend Lord Avebury has been muttering in my ear about whether case law on employment restrictions applies here. That is another area where I dare say the Minister would say that it depends on the facts, but it is a good illustration of what we may be dealing with.
The Minister said that there was no need for a certified copy of a document, but I was suggesting—I hope—that it could be an option. The reference to the 48 hours to check reminds us all that, in this extraordinary letting market, the property will be gone in 48 hours. The Minister in the Commons talked about the increase in the penalty being based on “aggravating factors”. He said:
“If new information comes forward that demonstrates that, for example”—
I must concede that—
“the mistake was not innocent, but some sort of connivance was involved … it seems only right … that someone looking at the issue afresh should take that into account and reach a conclusion accordingly”.—[Official Report, Commons, Immigration Bill Committee, 7/11/13; col. 272.]
In my mind, that sort of connivance would be a new fact. I would be very happy to look at the language but I am concerned about the deterrent properties of this. I would hope that we might be able to pin that down a little more.
I will carefully read what the Minister said on this as it is a technical point. He referred to the detail of Schedule 3. My noble friend again questioned whether paragraph 8 of Schedule 3 covers the ground that we are concerned about. Going back again to the workability of these arrangements, I must of course read carefully what the Minister has had to say. I thank him for his answers and for what I think he said implicitly. These are detailed points which we might, if it is appropriate, look at again before Report so that we can make sure that anything we raise on Report is justified and not already covered. The Minister is nodding. I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
My Lords, it is helpful that we have had this debate; I am pleased that the noble Lord, Lord Patel, has moved the amendment. As he said, it was originally designed to supplement his amendment relating to students. I think that we have got a good story to tell in connection with students. If I may, however, I shall deal with the particular amendment, Amendment 58.
The noble Lord is right that the provision is not immediately transparent; indeed, the noble Lord, Lord Rosser, has challenged me on this point, too. I understand that the intention of the noble Lord, Lord Patel, may have been in respect of the exclusion of certain expensive discretionary treatments from the free access afforded by having paid the surcharge—I think that that was his concern. I said on Monday, and I am happy to repeat today, that no such exclusions will apply when the surcharge is introduced, and none is planned for the future either. We intend that the payment of the surcharge will provide the same access to health services as is available to a permanent resident.
I turn to the penetrating critique from the noble Lord, Lord Rosser. Both he and the noble and learned Lord, Lord Hope, felt that a degree of ambiguity lay within the clause, so perhaps I may explain why Clause 33(3)(b) states that,
“different amounts may be specified for different purposes”.
The answer is that it allows regulations to specify different amounts of surcharge for different categories of migrants—currently, there are only two amounts: the £200 rate and the £150 rate—without which we would not be able to give the discount to students, which is one of the elements of the Bill. We need this capacity to do so. We do not have it in mind that there will be other categories, but this is the way in which the discount for students is facilitated by the legislation. It does not refer to NHS charging in the legislation.
Perhaps I may refer to the comments made by my noble friend Lord Leigh of Hurley, because we have a very different health system here from that in the USA and in Australia which requires a different solution. Health insurance requirements would be expensive and compromise our own competitive position in the international market for students and for workers, which is not what we want the Bill to do. Most EU countries do not enforce the Schengen visa health insurance requirement at their borders. A student applying to Harvard in the USA, for example—my noble friend Lady Williams of Crosby referred to Harvard and its great pull as a centre of learning for overseas students—has to pay a fee of $958 per year to access basic health services. To access Harvard’s more comprehensive health insurance plan, which is comparable to what the £150 rate gives access to, would cost a further $2,190 per year. That gives some measure of what is involved. We have already committed to this discount for students—that is what this clause is about—in recognition of their contribution to the UK, reinforcing, I hope, arguments that I am trying to make at regular intervals in our debates. They will pay just £150 instead of £200, which is 1% of the cost of coming to study in the UK and exceptional value for money, as I am sure noble Lords will agree.
Why does the Bill allow surcharge payers to be charged for further treatments? So that noble Lords are clear, I should clarify that the Bill does not prevent the exclusion of certain expensive, discretionary treatments from the free access. However, we have made it clear that we intend that no such exclusions will apply when the surcharge is introduced. The Department of Health has been clear that it will consider these in future only in the event of exceptional and compelling specific justification for health purposes; and any changes would need to be put before Parliament in the form of revised NHS charging regulations. One might say that this is for treatments which may in future emerge where it is considered that the health service quite properly should charge not just migrants but members of the UK population.
My noble friend Lord Avebury asked whether there was a problem with the drafting of Clause 33(4). The drafting purpose of Clause 33(4) is to provide a clear link in the Bill to health treatment. Without it, the clause would give an unlimited power to charge for any purpose, which is the intention neither of the clause nor of that particular subsection of it. I note what noble Lords have said about the wording of the subsection. It has been carefully drafted, but if I can provide noble Lords with an explanation of line-by-line implications, I shall do my best to do so before we get to Report. Meanwhile, I hope that the noble Lord will withdraw his amendment.
Lord Avebury
Where the Bill uses the words,
“likely to be available free of charge”,
in Clause 33(4), it anticipates the possibility that the Minister mentions—that while we do not intend to charge anybody at the outset of the operation of the Bill for services of particular cost, we have it in mind to do so in the future. That would apply to students and to short-term migrants as well.
Lord Taylor of Holbeach
I think that I made it clear that the wording is designed to enable the health service, if it feels that particular treatments should be charged for, to do so. There is no intention to do so at present, but it is important that the Bill makes it clear that this is a facility which the health service wishes to reserve for itself. I think that it is quite proper for it to do so, but there is no intention on the introduction of the health charge for there to be any additional fees for additional treatments.
Baroness Tonge (Ind LD)
My Lords, will the Minister clarify two things? I apologise if I appear to be Baroness Dim on these two points. The first is: will people who do not want to pay the health charge be refused permission to come into this country? I want to make that clear and have it in Hansard. Secondly, I am still not clear about the phrase that the Minister used a while ago, “different categories of charging”. I am still not clear about what will happen
Lord Taylor of Holbeach
There are two different categories of charge currently: that for students and that for everyone else. I just wanted to make that clear. The wording is general, but those are the two categories that the Bill is intended to introduce. On the question of whether paying the surcharge is mandatory, yes, it is for overseas applicants.
Lord Willis of Knaresborough (LD)
Will the Minister confirm that the real purpose of the clause and those words is to open the gates so that at some time in future, UK residents could be charged for services?
Lord Taylor of Holbeach
No, that is not the case, but they may be, as they currently are, charged for particular treatments. There are some medical treatments available in this country which are not available under the National Health Service. That would remain the case. That is not the purpose of that particular phraseology. As I have explained, it is to provide for the charging of different categories of migrants—students and others. That is the purpose of the wording. The National Health Service has always said that it will provide health treatment free at the point of use. The purpose of the charge is to put applicants on the same basis as every other resident of this country, so the anxiety that my noble friend expresses is ill founded. This is not the vehicle for introducing mass charging for treatment under the National Health Service. That is not the purpose of the clause and it will not be possible to achieve it through this legislation.
Lord Hope of Craighead (CB)
My Lords, I listened with great interest to that exchange. If the noble Lord is prepared to follow my suggestion and look at the wording, there is a bit of a mismatch between what one finds in Clause 33(1)(b), which mentions,
“any description of such persons”,
and the phrase,
“different amounts may be specified for different purposes”,
in subsection (3)(b). I could understand the linkage if one were talking about different charges for different categories of persons, but it is the breadth of the word “purposes” in subsection (3)(b) which causes difficulty. Looking to the future use of the clause when it becomes a section, it would really be helpful if it were a little more precise.
Lord Taylor of Holbeach
I thank the noble and learned Lord for that advice—free legal advice to the Government is considered to be very valuable. I hope that I have been able to explain what the legislation is intended to do and have reassured noble Lords on that point. Beyond that, I can commit to go back to look at the wording of the clause to see whether the intention could be made more explicit. That I will seek to do.
Baroness Barker (LD)
Perhaps I may help the noble Lord. Noble Lords understand that there are now NHS treatments and services for which charges are made and that people who are resident in this country pay those charges, as do visitors. What is perplexing about the clause is, given that that is the case, what is the Government’s intention? Is it to reach a point in future where different categories of people have to pay for identical services? If the Minister could write to noble Lords and give us some examples of what scenario the Department of Health envisages under the legislation, that would be extremely helpful.
Lord Taylor of Holbeach
There is nothing sinister here. This is not a Machiavellian move by the Government. It is to bring in a differential between the charge for students and the charge for ordinary migrants, which I am sure that noble Lords applaud. That is the objective. I reassure my noble friend that I will take her advice and write to Noble Lords on this point. I was here for Third Reading of the Pensions Bill, when mention was made of the weight of paper with which noble Lords have been bombarded concerning that Bill. I fear that we may be getting into the same situation here, but I hope that noble Lords will understand that, in technical matters such as this, it is often easier to put things in writing, because I can be more explicit.
Lord Patel
My Lords, I thank all noble Lords who have spoken. I have a few points to make. First, the Minister said that the subsections of Clause 33 were very carefully drafted. Listening to the debate, I think that there will be a collective opinion in the House today that that is not the case. I am pleased that the Minister said that he will look at the provisions to see whether the purpose for which they have been written can be clarified. I look forward to new amendments.
I am much clearer now about three things. First, once the health charge, or the levy, is paid, currently, for all those who pay the levy, health services will be available to them free of charge, just the same as permanent citizens of this country. That bit is clear. The second thing clarified by the Minister—I thank him for doing that—is that the words,
“and different amounts may be specified for different purposes”,
do not refer to health service charges but to categories of immigrants or students who we allow to come to this country.
The third purpose is what the noble Lord, Lord Avebury, referred to in subsection (4), which does refer to health charges that might be brought in subsequently. In answer to the question of the noble Lord, Lord Willis, the Minister was quite clear that they do not apply to residents of this country and that the Government had no intention of using this as a backdoor way to bring in charges in the NHS for citizens of this country. The subsection refers to extra charges that the Government may introduce through legislation which will be brought to Parliament in the first instance. I hope that I am clear in what I understand and that that is what the Minister said.
On that basis, until we see the redrafted clauses, I beg leave to withdraw the amendment.
Baroness Barker
As someone who is not a chartered accountant, I thank the noble Lord for the free advice. If I were to redraft the clause, I would include that in it.
Lord Taylor of Holbeach
My Lords, I welcome the general support offered by the noble Lord, Lord Rosser, for the surcharge. Indeed, I felt that there was support around the House for the surcharge in principle; it is just on implementation and the practicalities that the Government are quite properly being challenged.
The Home Office, which is responsible for administering the health charge, but not for spending the money, will be open and transparent about the operation of the surcharge. As my noble friend Lord Howe set out in his letter to all noble Lords last week—I hope it helped; it was designed to try to put these changes to the law in the context of wider health service reforms—the surcharge income will be allocated directly to the National Health Service across the UK. Allocation will be in accordance with the Barnett formula.
The dear and much-loved noble Lord is not in his place, but much as he seeks to see the end of his legacy in establishing the formula, it is still widely used in government and it seems the most appropriate way of ensuring that the money goes to the NHS. It will go to the NHS—the National Health Service—not to any other agency offering healthcare in this country. How the NHS spends it is for the Department of Health, of course, and the devolved Health Ministers, because health services are a devolved matter. The allocation of the money will be made by affirmative order, so we will have control here in Parliament of how this is finally resolved.
I note what my noble friend Lady Barker said in speaking to her amendment. While the Home Office already has a well established procedure through which it is accountable to Parliament, I appreciate that this House would benefit from the means to scrutinise the impact of the surcharge. I am therefore prepared to make a Statement to this House to provide information about the Home Office’s administration of the surcharge within 12 months of it going live. I hope that that will give some assurance to noble Lords on how the surcharge is working.
It may include details such as the number of migrants who pay the surcharge and the total amount of surcharge collected and directed to the National Health Service. I believe that this sort of transparency is important, and the Statement will provide proper transparency and provide the House with the necessary flexibility in scrutinising the surcharge scheme. Furthermore, any future changes to the core operating principles of the surcharge, including the amount to be paid, will have to be agreed by both Houses under an affirmative resolution procedure.
On Amendment 66, tabled by the noble Baroness, Lady Meacher, we intend to do our utmost to ensure that visa applicants understand the purpose of the surcharge and how it might apply to them. We will make the information available to individuals, including through our website and visa application centres. Indeed, the visa application form is where most people encounter this surcharge because it is directed only at those applying for a visa for a stay of six months or more. The form itself will explain it.
My noble friend Lord Attlee has pointed out in conversation that universities themselves might like to promote the student surcharge as being a very competitive offer at £150; it certainly is a bargain in global terms. However, it would be most unfair to ask migrants to pay a surcharge that they know nothing about. Both the reasons it is being charged and what it gives migrants access to are very important.
The noble Lord, Lord Rosser, asked when the Department of Health will publish its detailed implementation plan for patient registration and identification. If I say “shortly”, he will know that that word is used regularly enough. We do not have an exact date, but it will be shortly. He also asked how the transitional provisions would be set out and how a hospital will know if a person is a transitional case. This will be done in the order implementing the surcharge. We will use the patient registration system to flag people who have paid the surcharge. We will consider doing so also for those who benefit from the transitional arrangements. The simple production of a visa or biometric residence permit—BRP—that is current and valid will give evidence of free entitlement to the NHS, and transitional cases will be identifiable because their entry clearance or BRP will be dated before the commencement of the surcharge scheme, which will be known.
My noble friend Lady Barker asked about the costs of implementing the health charge and whether we have done a cost-benefit analysis. We have indeed. The Home Office has produced a full impact assessment on the Bill. It is available on the Immigration Bill page of the gov.uk website.
The noble Baroness, Lady Meacher, asked about treatments for infectious conditions, such as HIV and TB, for example. They are free, and will remain so. It was this Government who abolished the NHS treatment charges for HIV.
I hope that I have answered most of the points. I will go through the record and see whether there are aspects that I have not addressed. The noble Baroness, Lady Lister, is looking particularly questioning. Can she remind me of what I have missed?
Lord Avebury
My Lords, when the noble Lord is replying on that point, will he deal with story of the 300 maternity patients who were alleged to have been treated at St Thomas’s hospital? When we last discussed this, the allegation was found to have been apocryphal. I would be grateful if the Minister would repudiate it.
Lord Taylor of Holbeach
I would not wish to get involved in hearsay or gossip or, indeed, the suggestion that some of this stuff is just newspaper chat. I will get back to the noble Baroness, Lady Lister, with a reasoned reply explaining the Government’s analysis of the situation. However, the purpose of this measure is not to do with health tourism at all; it is to do with providing a charge whereby people who stay here for more than six months make a contribution to the NHS. It will make it more difficult for people who are not entitled to access healthcare to do so, but that is a secondary purpose.
Baroness Meacher
Perhaps I might ask for clarification on one point. The Minister skated rather quickly over that fact that “it” will be explained on the visa application form. I wonder what “it” refers to. Will it spell out clearly that all health services freely available to permanent residents will also be available to the applicant as somebody who has paid the surcharge?
My second question concerns people with infectious diseases who may not have paid the surcharge but who will be entitled to free treatment for an infectious disease. What sort of action will the Government take to inform them of their entitlements?
Lord Taylor of Holbeach
The latter point is more difficult to answer positively; it is something which my noble friend Lord Howe would be in a position to reply to with authority. On the first point, I think that the wording which the noble Baroness suggested is particularly good. It sums up the policy as I have tried to describe it to the Committee.
Baroness Barker
My Lords, I thank the Minister for his response, which was far more helpful than I had expected. Perhaps I may press him a little further and ask whether he would be prepared to make not just a one-off Statement to the House about the introduction but perhaps to do so annually, or more than once, so that we can have comparative data in different years. That would give us a slightly more robust evidence base than we would have by having just a one-off Statement in the year after a measure has been brought in. A fair amount of information and attention would, presumably, attend its introduction.
Lord Taylor of Holbeach
I start from the position that an informed House is better able to make decisions and judgments on issues. Having said that, I am not sure that I could commit to making a periodic Statement on this issue, although I know that the Home Office will always respond to questions that might seek updated information of this type, and indeed there are other ways in which this House has the capacity to bring the Government to account on policy. At least by promising this Statement I am giving an indication that we are confident that this particular measure will be a success and raise money for the National Health Service, which will be to the advantage of the taxpayers of this country and a bargain for migrants to this country. I hope that my noble friend is reassured by that point.
Baroness Hamwee
My Lords, I am sure that my noble friend is reassured. However, I think that the Committee would also be glad to know—I do not expect the Minister to pin down the detail tonight—the range of issues that will be covered by a Statement. That addresses my noble friend’s point about the data which will be collected. We were quite rightly reminded about the costs of the services, which have not been included in our list. I am sure that there are other points as well. It is the detail that is important and that noble Lords will be interested to know. Perhaps I may leave that with the Minister as something to think about after this stage.
Lord Rosser
I, too, thank the Minister for his response. I am in much the same position as the noble Baroness, Lady Barker, in the sense that it went rather further than I thought it would go, so I genuinely thank the Minister for what he had to say in his reply. I am also sure that the Minister might wish to reflect on the number of points that have been made after he sat down. Bearing in mind that he has said that he will send a letter to pick up any points he has not covered, perhaps he will reflect further on some of the points that have been raised in the past few minutes.
I do not expect the Minister to respond to the questions now because he has said that he will write a letter. He has certainly not responded to some of the issues that I raised but I accept that he will do so in the letter. One of those issues, of course, is why it does not say in the Bill that the money will go to the NHS—why not put that in there? We are not proposing, are we, that the National Health Service will be disappearing within the next few years, so it is not the usual argument that you do not want to put this in the Bill because it might not be there for very long? Or at least I hope that that is not the point. I have not received a specific response yet, but I know that I will when the Minister sends the letter about whether this will be additional money to the National Health Service or whether it will simply be used to reduce the amount that the Government provide.
Lord Rosser
I also asked about whether there would be any transitional costs as opposed to transitional arrangements. I take it that the Minister will respond to that question, too.
The Minister will be aware that doctors and other parts of the health service have expressed a view that the kind of checks they will have to make will be an administrative burden. I asked a couple of questions about whether a hospital, if a patient has been referred to it by a doctor, can assume that the doctor has done the check and not have to do a double-check, and how a GP can know whether a patient who is already in the country, and therefore not covered by these new arrangements, requires a renewed application to remain here. I am sure that that will be picked up in the Minister’s reply.
My general point—bearing in mind that some doctors have expressed a concern about what they feel will be an administrative burden, and that the Minister has said that a Statement will be made to Parliament—is whether the Statement will also cover whether the arrangements have imposed an administrative burden on doctors. As some doctors have raised the issue, this would be one way of getting an analysis of it and discovering whether there is any substance to it, or whether their fears have not been realised. Perhaps the Minister can also comment on that point when he sends the letter. Once again I thank the Minister for his reply, and I beg leave to withdraw the amendment.