Immigration Bill (Fifth sitting)
(9 years, 1 month ago)
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The Committee divided: - Ayes: 8 / Noes: 10 - Question accordingly negatived.
The Chair
We now begin line-by-line consideration of the Bill. May I congratulate members of the Committee on how enthusiastically they took part in the evidence sessions.
Before we begin, I remind Members that they may remove their jackets during Committee sittings. Everyone should also ensure that all electronic devices are switched off or to silent mode. Tea and coffee are not allowed in our sittings.
The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped for debate. Grouped amendments are generally on the same or a similar issue. The Member who puts their name to the lead amendment in the group is called first. Other Members are then free to catch my eye to speak on all or any of the amendments in the group. A Member may speak more than once in a debate.
I work on the assumption that the Minister wishes the Committee to reach a decision on all Government amendments. Decisions on amendments take place not in the order in which they are debated but in the order in which they appear on the amendment paper. In other words, debate occurs according to the selection and grouping, and decisions are taken when we reach the clause that the amendment affects. Therefore, Members sometimes debate things and think they are going to vote on them then, but they vote on them later. I hope that that explanation is helpful.
I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following debate on the relevant amendments.
Clause 1
Director of Labour Market Enforcement
Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move amendment 55, in clause 1, page 1, line 6, after subsection (1) insert—
‘(1A) The primary purpose of the Director of Labour Market Enforcement is to secure the enforcement of labour market legislation, as defined in Section 3(3) of this Act.”
To ensure that the functions of the Director of Labour Market Enforcement are exercised for the purpose of protecting those vulnerable to labour market exploitation and to make this explicit on the face of the Bill.
I preface my remarks on amendment 55 by indicating that Labour supports a director of labour market enforcement, provided that the purpose of the director is effective enforcement of labour standards and that the relevant agencies are properly resourced to that end. That is the in principle position. With that, there should be no overlap with or merging into inspectorate or immigration enforcement functions. Part of the Bill and the Government’s associated consultation document suggests that the role is a director of labour market enforcement in name but not in design. The aim of amendment 55 is to resolve that issue.
The purpose of the amendment is to ensure that the functions of the director of labour market enforcement are exercised for the purpose of protecting those vulnerable to labour market exploitation and to make that explicit in the Bill. I will not go through the wording unless that is necessary. It is proposed that the director will report to the Home Secretary and to the Secretary of State for Business, Innovation and Skills. That is welcome, but the position is being created via an Immigration Bill sponsored by the Home Office. Therefore, that concern, and particularly the overlap between immigration enforcement and labour market enforcement, gives rise to the amendment.
Immigration enforcement threatens the success of labour inspection. A better approach to reducing illegal working is effectively to enforce labour standards, thereby reducing the demand for illegal workers, who are more vulnerable to being exploited due to their irregular immigration status. The OSCE has said:
“A rising challenge to effective labour inspection is an increasingly widespread imposition of measures that compel labour inspectors to conduct immigration enforcement activity as part of their workplace inspection agenda.”
That is the concern that we have about the Bill—hence, amendment 55.
The International Labour Organisation said:
“the primary duty of labour inspectors is to protect workers and not to enforce immigration law.”
Other countries have experienced the dangers of merging those two functions. For example, research in the Netherlands shows that dual labour inspection priorities to identify, on the one hand, undocumented workers, and, on the other hand, victims of trafficking have negative impacts on the uncovering of trafficking cases. There are two reasons for that. One is that victims of trafficking are too scared to come forward and the second is that labour inspectors fail to identify them. In the Dutch research, there is a classic example of that, involving an individual who was trafficked into commercial cleaning in the Netherlands. Labour inspectors came to his workplace on many occasions, but he did not come forward; in fact, he claimed not to work in the establishment rather than come forward and be identified as an employee. For that reason, he was missed by the inspectors. As I say, this is a classic example of its type.
It is not just in the Netherlands where there is such evidence. In the USA, there is now a memorandum of understanding between the Department of Labor and the Department of Homeland Security, the purpose of which is to ensure that immigration control does not interfere with the protection of workers’ rights. For example, when the Wages and Hours Directorate investigates a case of unpaid wages, its officials must not ask for immigration documents. So there is a clear separation of roles, and the fact that workers’ rights are protected in the USA regardless of immigration status prevents retaliation and intimidation by employers, who could otherwise threaten to report undocumented workers if they exercised their labour rights. Our position is that in order to tackle labour exploitation effectively, there must be a strict firewall between immigration control and labour inspection. That offers the best prospect of success for this director of labour market enforcement.
We have some questions for the Minister, and I will just run quickly through them; he may be able to pick up on them in his remarks. First, how will the director of labour market enforcement prioritise non-compliance in the labour market when non-compliance constitutes a range of offences in relation to requirements set out under the labour market legislation, and what assurances are in place to ensure that the work of the director will prioritise the protection of vulnerable workers from abuse and exploitation? Secondly, what overlap will the director’s consideration of non-compliance have with the work of the Home Office to control immigration and identify undocumented workers? Thirdly, what is the intended overlap between the twin aims of tackling the undercutting of British workers by undocumented workers and addressing worker exploitation, and how does the Minister see those two aims being achieved in unison?
I have set out the principal reasons why we have tabled the amendment. It may be helpful at this stage, Mr Bone, if I indicate that although we will not push a number of amendments to a vote, we will push this one to a vote. I hope that is helpful.
Mrs Emma Lewell-Buck (South Shields) (Lab)
It is a pleasure to serve under your chairmanship, Mr Bone.
I will speak briefly about amendment 55, which has the modest aim of making it explicit that the new director of labour market enforcement should have a duty to stand up for those who are at risk of exploitation. This amendment has been tabled because Labour Members believe that if such a position is going to exist, whoever holds it should be responsible for enforcing all aspects of labour market law and not just some of them.
If they accept this amendment, the Government will signal that part 1 of the Bill is truly about improving labour market enforcement and not simply about grabbing headlines to bolster their credentials of being tough on immigration. If the Government are willing to make that commitment, I think we will all welcome the creation of the new director.
The amendment is important because without it there would be a worrying ambiguity in the new role of the director, which could see the resources allocated to the director directed primarily at illegal migrants in work rather than at those who employ them.
There is a tonal shift in the Bill towards criminalising the employee over the employer, which is concerning because it seems to focus on the symptom rather than the cause; the focus appears to be on the workers rather than on the organised gangs who traffic and exploit them. That approach will not have a lasting impact on illegal labour market activity in Britain. The reason is simple: if workers are arrested and deported, employers will find others to take their place. If you strike at employers, however, that market soon disappears. There is even a risk, as witnesses told us last week, that an emphasis on criminalising workers will actually be counterproductive in fighting illegal working. If people fear that they will be harshly punished if their immigration status is discovered, that can be used by their employers as a threat, driving them even further underground and opening them up to worse forms of exploitation.
The Government therefore need to make it explicit that the new director will have powers and duties that allow them to act in all areas of the labour market and that the role will be used to tackle exploitation at its source. Without that commitment, the director is unlikely to be an effective office because it will be limited to clearing up the symptoms, rather than the root causes, of labour market exploitation. Such an approach might bring some great headlines for the Home Secretary, but it will do little to prevent trafficking and abuse or to reduce the number of illegal migrants working in this country. I am sure that the Minister will agree that if public money is going to be spent establishing a new agency, we need to be sure that it is going to get results, and that is why he and his colleagues should back this amendment today.
Paul Blomfield (Sheffield Central) (Lab)
It is a pleasure to serve on the Committee with you in the Chair, Mr Bone. I echo the comments made by my hon. Friends, save that I have one caveat in relation to the point made by my hon. and learned Friend the shadow Minister. I hope that we do not need to push the amendment to the vote. I hope that there can be agreement, because we are on the same page on several of these issues, in the wider sense in relation to an effectively managed immigration system, and particularly on labour market enforcement. Many Opposition Members commended the Government on their work on the Modern Slavery Act 2015. We had differences on points of detail, but very much agreed with the main thrust of that legislation. There is strong support for the principle of more effective labour market enforcement. The Prime Minister spoke powerfully about that when he spoke, at that stage, not about a director but about the establishment of a labour market enforcement agency. Clearly, the Bill has a slightly different, but nevertheless welcome, approach to seek to co-ordinate the efforts of those agencies dealing with more effective enforcement in the labour market.
However, it does not sit comfortably that our debate about labour market enforcement is in the context of an immigration Bill—so there is perhaps a point of confusion. At the heart of this clarificatory amendment is the desire to be absolutely clear on the role of the director of labour market enforcement. The post—the function—should do what it says on the tin: it should be focused on labour market enforcement. My hon. and learned Friend the shadow Minister has cited international examples. It is useful to learn from other countries, though we do not do it as often as we might. There are powerful examples of where confusion between labour market enforcement and immigration control and enforcement is counterproductive. It neither supports effective immigration enforcement—because it drives undocumented workers underground and out of the way of the authorities—and does not help with labour market enforcement either.
Sarah Champion (Rotherham) (Lab)
It is a pleasure to serve under your chairmanship. If I may add to what my hon. Friend is saying, Caroline Robinson, the policy director of Focus on Labour Exploitation, said in her witness statement,
“The point about the protective purpose of the director is very important. For us, the core purpose of that role should be the protection of vulnerable workers and the prevention of exploitation.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 27, Q54.]
That is what the amendment is trying to get at.
Paul Blomfield
I thank my hon. Friend for her helpful intervention. Throughout our deliberations, we should seek to draw on the evidence that we heard. The evidence cited by her and by my hon. and learned Friend the shadow Minister has powerfully made the case that the confusion of immigration functions and labour market enforcement is damaging and counterproductive to our objectives for the labour market and for immigration. The amendment seeks to provide absolute clarity. I hope that the Government will accept it.
Anne McLaughlin (Glasgow North East) (SNP)
The Scottish National party tabled the amendment with Labour because we believe that the primary purpose of the director of labour market enforcement should be to enforce the rights of workers and protect people from exploitation. Indeed, the Government’s background briefing states that the new labour market enforcement agency will be established to protect people against being exploited or coerced into work. The Immigration Law Practitioners’ Association has said:
“Where those working or living in very poor conditions are deterred from accessing assistance because of their immigration status”—
this will clearly make it harder for them—
“or because of their vulnerability to threats by unscrupulous employers in relation to their immigration status, agencies will be restricted in their ability to gather the intelligence needed to exercise their regulatory functions and protect against labour market exploitation. A lack of clarity over the protective function of the labour market enforcement agency may therefore undermine its aims.”
It would be good to have a little more clarity.
Last week, one of the Conservative Members really shocked me with a statement about illegal workers. On reflection, I wonder whether there is a genuine, fundamental misunderstanding about some of these people that might need to be addressed. The comment was that if people knew that the Bill was being introduced and that it was going be so much harder to work here illegally, they would be less likely to allow themselves to be trafficked. That really shocked me. We are talking about the most vulnerable people, who are taken from other countries against their will. They do not choose or allow themselves to be trafficked. They are used and abused. The Bill will make it so much worse for them. Does the Minister believe that people are trafficked here because they choose to be or not? If there is a belief that there is an element of choice to trafficking, I understand where the measures come from. I would like to know that the Minister intends to protect the most vulnerable people.
Simon Hoare (North Dorset) (Con)
If the hon. Lady accepts the premise that the trafficker is the conduit for the individual to go from A to B, does she accept that if the individual understands that entry to B is now harder and tougher, it is likely that they will not be sought to be trafficked in the first place or that they will ask the traffickers to traffic them elsewhere? It is all about signal and message.
Anne McLaughlin
So there is the answer to my question. I really would love the Minister to respond and to understand that people do not choose to be trafficked. They do not say, “Please kidnap me, tie me up, bundle me into a van, and take me to a country that I’ve never been to where I can’t speak the language.”
Simon Hoare
That is kidnapping; it is not trafficking. Trafficking, in my judgment, is when somebody goes to somebody else who is providing that service and says, “I want to get from A to B. Will you get me there?” That might be in a private motorcraft, an aeroplane or whatever it might happen to be. When I talk about trafficking, that is what I am talking about, not about kidnap, which is illegal.
Anne McLaughlin
In legal terms, the hon. Gentleman is wrong. That is not what trafficking is. He needs to look up the legal definition of trafficking because trafficking happens against somebody’s will. We have to protect those people. Now that the hon. Gentleman understands, perhaps he will support this amendment.
Byron Davies (Gower) (Con)
Does the hon. Lady accept that when I worked as a police officer in Romania, young ladies who wanted to come to the UK through Spain would look for a trafficker to facilitate that journey to Spain and the UK? That is trafficking, contrary to what the hon. Lady is suggesting.
Anne McLaughlin
I think the hon. Gentleman is making the decision to do what a lot of today’s media do, which is to focus on people who have an element of choice. Most people who are trafficked—well maybe not most people, but a significant number—are trafficked against their will. They are the most vulnerable people and the people we have to protect. This amendment is asking only that the new director pays attention to the rights of the most vulnerable people. We cannot say that one person has had an element of choice but another person has not, so we will not protect the second person. So no, I do not accept what the hon. Gentleman says.
Craig Whittaker (Calder Valley) (Con)
The premise of the amendment is:
“To ensure that the functions of the Director of Labour Market Enforcement are exercised for the purpose of protecting those vulnerable to labour market exploitation and to make this explicit on the face of the Bill”—
Where in the Bill is that purpose not explicit? Clause 3 refers to non-compliance and the interpretation of it. It specifically refers to the Employment Agencies Act 1973, the National Minimum Wage Act 1998, the Gangmasters (Licensing) Act 2004 and anything else prescribed by the Secretary of State.
Anne McLaughlin
If the hon. Gentleman thinks that it is already explicitly stated, surely he will have no problem supporting this amendment.
Paul Blomfield
I wanted to develop the point, because I think that some of the discussion about trafficking is a diversion. Does the hon. Lady agree that the primary purpose of this amendment is simply to clarify the role of the labour market enforcement director and make it clear that there is no disagreement on either side of the House that such a director should focus on preventing those vulnerable to exploitation in the labour market?
Anne McLaughlin
If the hon. Gentleman was asking me to agree with him then I agree with him.
Sarah Champion
It is a clarification, courtesy of Google. The UN defines trafficking as
“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability”.
As my colleague has just said, this gets to the nub of the problem. My understanding, and perhaps the Minister could provide clarity, is that when we are talking about trafficked people, the legislation is in place already so it can be enforced. What we are saying here is that a large number of people are in a grey area. They might, as in the example given by the hon. Member for Gower, have paid to come into this country to work but then, very quickly, find themselves in an exploitative situation.
We need clarity about the role of the labour market enforcement director. Is he very clear that he is responsible for enforcing good labour practice? Does he have the resources to do that and can he work collaboratively with the other agencies to make sure that when something like the Modern Slavery Act 2015 is enforced, that vulnerable person is taken care of?
The Chair
Just before we move on, I want to say that I have allowed the debate to go fairly wide of the mark on trafficking as it does indeed go to the heart of the Bill. If you recall, I did ask for one of the witnesses to define trafficking. I myself was none the wiser after she had finished speaking, unfortunately.
The Minister for Immigration (James Brokenshire)
I welcome you to the Chair, Mr Bone, and other members of the Committee to our consideration of part 1 of the Bill, which deals with labour market enforcement. I look forward to the debates that we will have in the coming sittings to, I hope, improve the Bill and to reflect on significant issues relating to labour market enforcement and immigration more generally. I look forward to debate that I am sure will be wide ranging and well informed and that I hope will be good natured. These Committees are about scrutiny of the detail of the legislation. There will be strong views on certain issues, but the approach that I always take on Bill Committees is to listen and to reflect, and I hope to be able to inform and provide evidence and further background to the Committee during the detailed consideration of this Bill. With those words of introduction, I will move on to clause 1 and the amendment tabled by the hon. and learned Member for Holborn and St Pancras.
The effect of the amendment would be to specify the primary purpose of the director of labour market enforcement in clause 1. Although I appreciate the desire to include a strong statement up front on the director’s remit, I believe, for reasons that I will explain, that the amendment is unnecessary. The director’s role and remit are already clearly set out in clauses 1 to 7. When we look at the provisions in clauses 2 and 3, which we will debate in the course of this morning, and the specific definitions of “labour market enforcement functions” and “labour market legislation”, we see that that provides a clear framework as to the intent behind the creation of the director, but I will explain this a little further.
We are creating the director of labour market enforcement to lead efforts to tackle abuse and non-compliance in the labour market. As we will explain in the debates on later clauses, that will include setting the strategy for the Government’s work to tackle all types of labour market exploitation and creating an information hub to facilitate better sharing of tactical and operational intelligence. I think that that is equally important. On some of the issues of vulnerability that have already been flagged in terms of identification, it is important to be able to share that information and get it to the right agencies so that they are able to act. I think that that goes beyond the remit specifically of the director, but I certainly understand and respect the points that have been made.
Paul Blomfield
I want to push the Minister on that point. As I said, the confusion arises because a director of labour market enforcement is being proposed in the context of an immigration Bill and it is a post that will report to the Home Secretary. Were the director of labour market enforcement sitting in a different Department, reporting perhaps to the Secretary of State for Business, Innovation and Skills, the necessity for this absolute clarity might be diminished. Does the Minister agree that the fact that the labour market enforcement function is within an immigration Bill and the post reports to the Home Secretary means that it would be helpful to have absolute clarity on the purpose, so that this post holder is not distracted by other—quite legitimate but other—considerations of Government?
James Brokenshire
I welcome the hon. Gentleman’s welcome for the creation of the director of labour market enforcement and what he said about the way in which it is framed and the intent behind it. I will go on to respond to his direct point, but let me address the issue about whom the director reports to. It is to the director of business and to the Home Secretary. Let us look at the agencies in relation to which the director has a remit. One of those is the Gangmasters Licensing Authority. That sits within the Home Office and therefore it is appropriate for the director to report to the Home Secretary in respect of the overarching work; the GLA is a Home Office-sponsored and led agency. The hon. Gentleman may want to engage in a broader debate as to whether he thinks that that is appropriate, but it is important that it is structured in that way.
Keir Starmer
Obviously, one of the concerns is where the director reports to. I understand the point about the need to report to the Home Secretary as some of the other agencies do. I am trying to explore where we have common ground. The experience in other countries is that merging labour market enforcement with immigration is counterproductive. There is a concern that this is an immigration Bill and therefore there is the potential for that merger. Other countries have experienced a practical problem in exercising the primary function because it has been merged with immigration control and enforcement. Does the Minister accept that there are real examples in other countries of action which started with a good intention but went wrong because it morphed into what was, in truth, immigration control and enforcement?
James Brokenshire
I would point to the fact that immigration enforcement—the directorate within the Home Office that is responsible for the enforcement of immigration rules—is not one of the structures that the director has responsibility for. I will cover in turn the point about remit because there is an important aspect to this. When hon. Members have heard what I have to say, I hope that they will understand that the hon. and learned Gentleman’s concern about some sort of merger is not what this is about. We intend the director’s remit to cover labour market breaches, not immigration offences. The director and the enforcement bodies will work closely with Home Office immigration enforcement wherever labour market breaches are linked to illegal immigrants or people working in breach of their visa conditions, but that is an adjunct and not the purpose of the director.
I was asked why this measure was in an immigration Bill. There are two reasons. First, immigrant workers can be particularly vulnerable to exploitation by rogue employers, a point that has been flagged by hon. Members already this morning. I am sure that that will be a continuing theme during our consideration of the Bill. Secondly, by ensuring that workers are treated fairly, we are preventing businesses bringing in cheap labour that illegally undercuts the wages of people already in this country. Good labour market enforcement has knock-on effects.
Modern slavery has been a theme of some of the contributions this morning. With the Modern Slavery Act, Britain is once again at the forefront of the fight against the inhuman crimes of slavery and forced labour—the hon. Member for Sheffield Central and others made comments on this—but it is important to understand that exploitation occurs in many forms and can start with abuse of employment law. We must step in to protect not just the vulnerable—I will address the point about vulnerability—but also local workers and responsible businesses affected by those who are prepared to exploit cheap labour. That is why there is the need for this strategic approach and for the director to work with the different organisations that are in place. This is not a merger, as the hon. Member for Sheffield Central highlighted in his contribution, but rather we have an over-arching strategy of looking at ways in which we can promote good practice.
I would direct hon. Members to the consultation published alongside the Bill to set out some of those details. It says that:
“The Director will lead and co-ordinate work to promote compliance by employers and labour providers with labour market legislation, and to encourage and enable people to report infringements and exploitation.”
We are conducting a consultation at the moment around the director. We look forward to receiving feedback and input so that we are able to reflect fairly and appropriately.
Our employment law framework guarantees decent minimum rights for workers, including from next April the national living wage for over-25s, and promotes fair competition between businesses. The majority of employment law is enforced by individuals taking their employer to an employment tribunal to seek redress if they believe they have been wronged. State enforcement bodies step in to enforce legislation where there is a higher risk of exploitation or vulnerability.
As I have indicated, clause 3 already defines the director’s role by reference to the legislation and enforcement functions that will be within his remit. It makes it clear that the three enforcement bodies for which the director will set the strategy are the Employment Agency Standards Inspectorate, HMRC’s national minimum wage team and the Gangmasters Licensing Authority. We want the director to bring co-ordination across the whole spectrum of breaches of employment law—from employers who do not know the rules right through to organised, criminal exploitation of workers. That will be the director’s broad remit. However, I am concerned about some of the pictures we see of organised immigration crime and organised criminality more generally that seeks to exploit labour markets and uses the front of employment. We are dealing with a broad spectrum, which ranges from vulnerability all the way to good practice and compliance. It is right that the director should have that remit—setting up strategy, commenting on the balance of resources across each of the three agencies and reporting to the relevant Secretary of State.
Sarah Champion
Could the Minister give clarity on how the director would work in collaboration with the Independent Commissioner for Modern Day Slavery? Whether it is in guidance or within the Bill, it would help if the two roles could be clarified, because there is a grey area.
James Brokenshire
It is important to stress that they are separate roles. We make that point clearly in the consultation document, where we say that the director will have a role that is distinct from the commissioner’s role. Obviously, the commissioner looks at all types of modern slavery, whereas the focus of the director will be on labour market exploitation and enforcement. The practical roles are equally different:
“The Director will set the strategic plan, priorities for targeted action and overall approach”,
whereas
“the Commissioner has a broad role to look at the effectiveness of all the bodies engaged in the fight against modern slavery, encourage best practice, and make recommendations for improvements. That role will in future include looking at the effectiveness of the new Director and the reformed GLA”,
which we are consulting on now. I hope that is helpful and explains that these are complementary roles. I think that the commissioner, Kevin Hyland, is doing an excellent job. He has a great deal of practical experience from his time in law enforcement. I remember a couple of years ago going out with Mr Hyland on an enforcement raid to do with trafficking, so I know the real passion he has for that job. I think that he will use and work with the new director in a very positive way to continue to confront the appalling evil that is slavery and trafficking, with people being horribly exploited and enslaved for gain. We continue to need to shine a light on this, so that it is seen for what it is.
Paul Blomfield
I endorse the points that the Minister made on enforcement, but I want to come to the issue he raised about the review of the Gangmasters Licensing Authority. I agree that effective enforcement is important. The opportunity for exploitation in the labour market is growing. Can he reassure us that the review of the GLA will not mean that we will be moving to voluntary licensing?
James Brokenshire
I think that the hon. Gentleman may be straying a little from the specific amendment. He will have seen the clear manner in which the consultation document is set out and the various questions that are being asked about the licensing function in ensuring that that is conducted appropriately, is evidence-based and is used as a tool to prevent exploitation in the highest-risk sectors. I direct right hon. and hon. Members to the relevant sections on pages 40 and 41 of the consultation document, which set that out. Obviously, we will reflect carefully in the context of the feedback we receive around the consultation.
Keir Starmer
Before the Minister moves on from that point, he has understandably set out the functions in clause 3(3) that are of primary relevance. I understand that. The purpose of the amendment is to say that, among those purposes or functions, this is the primary one and it is protective. That is the sole purpose of the amendment. His point is that it is not needed in the light of clause 3(3). The concern is that there is no clear reference in the Bill to the primary purpose. The measure comes in an Immigration Bill that, a few clauses on, includes offences of illegal working. Does he understand that, although we do not quarrel with the functions or why he has chosen them, we want to underline what I think is common ground, that the primary purpose is protective? In this environment, and given other international examples, it is helpful for all concerned to have that included in the Bill.
James Brokenshire
I think I have already explained that the functions of the director of labour market enforcement are by their nature framed within the context of the various pieces of legislation that the hon. and learned Gentleman set out. I have also explained, as set out in the consultation document, that the measure is about promoting good practice and highlighting issues where employers can equally comply. That is why I responded as I did to a number of hon. Members about the spectrum of activity engaged here.
We are very clear that the purpose of the director of labour market enforcement is to tackle labour market exploitation across the field. We believe this measure will give the stronger drive to deliver that step change in tackling exploitation. The director will have that purpose set out in terms of appointment and, in delivering that, will be accountable to the Home Secretary and Secretary of State for Business, Innovation and Skills.
We also believe that the requirement to publish the strategy and annual report—it will not be a private document but will be visible according to the legislative framework—will demonstrate the clear commitment to protecting the vulnerable and tackling exploitation. That is again why we are clear on the remit, role and function. From a tactical operational perspective—I am sure we will come on to the information hub—that will support the activity.
Paul Blomfield
I am grateful to the Minister for being generous with his time. I have listened carefully to his comments and there is little in them that I can disagree with. Given that we are seeking to be on the same page as far as we can on all these issues, will the Minister explain why he feels that the Bill would be diminished by the amendment?
James Brokenshire
As I have already indicated, I simply do not think it is necessary, because the Bill is already framed so as to cover the points hon. Members are highlighting. I have always taken the approach in legislation that, if the situation is clear through other mechanisms, adding provisions that are not needed is not appropriate. I had hoped in my comments to assure the Committee why the amendment is not necessary, the purpose of the provisions and the intent of the Government. Transparency will be provided through the annual reporting to see what is happening in practice, and therefore the amendment as expressed is not needed. The director’s strategy will be evidence-based, which will allow the plan to be from year to year, based on where non-compliance is most likely to cause harm. That will be reflected in the plan.
Mrs Lewell-Buck
I have also listened carefully to the Minister, but I am confused and puzzled. If the purpose of the measure is to tackle labour market exploitation across the board, why did the Government see fit to include it in the Immigration Bill?
James Brokenshire
I have already responded to that point by mentioning the vulnerability faced by people who are here through immigration. Equally, the measure can be a means of ensuring that we have a good, regulated labour market that therefore does not add to exploitation, nor encourages people to come here illegally or through trafficking, which is why it sits in the overall framework of an immigration Bill. I hope that I have explained that the purpose and remit of the director is labour market enforcement. The provision is not intended to stray into the separate issues of immigration enforcement, but if cases of people who are here illegally are highlighted, the director would be duty-bound to report that and to pass on intelligence through the hub that is being created. We will no doubt have a separate debate about that when we reach the relevant provisions.
Keir Starmer
I am sorry for intervening again. Although I disagree with very little of what the Minister is saying, that last point is a cause for concern. Of course it makes sense for the director to have these primary functions and to co-ordinate with other action on immigration, but the concern is that when we put the two functions together and do not clarify the primary purpose, there will be a misunderstanding about how this works.
We support this good initiative of having a director, but the good work—the head of steam—will be lost if the primary purpose is not clear. People will feel that the measure is, on the face of it, about labour market enforcement, but it carries with it immigration checks and it is in an immigration Bill. What the Minister says makes perfect sense, but that concern is the cause of our discomfort and the reason behind the amendment, which would make the provision much more powerful.
James Brokenshire
In many ways, the purpose of a Bill’s Committee stage is to tease out some of these issues, and to get the Minister—in this case, me—to set out and clarify the purpose and intent of a Bill’s provisions. We strongly believe that the Bill gives certainty and clarity about how the director will provide co-ordination.
The measure is about existing agencies that are already carrying out functions. If intelligence is already discovered by those agencies, sharing will already take place. This does not change anything about operational practice; rather, the director will provide strategy, co-ordination and an overarching response. We need good work on enforcement between agencies so that we do not—I do not think we have this, but the provision ensures that that is the case—have a silo-based approach, given that there is an overlap and that we need to look at this as an overall market. Those are the reasons why we do not believe the amendment is required, so I ask the hon. and learned Gentleman to withdraw it.
Keir Starmer
As I have already indicated, I am grateful to the Minister for setting out so clearly the purpose behind the director of labour market enforcement. In one sense, there is nothing between us on that. Our concern is clear: this positive development comes in an immigration Bill, yet there is clear evidence from other countries that unless we are clear about the primary purpose of such a measure, we run the risk of losing everything that we have tried to gain.
As I have said, the offences of illegal working in relation to employers and employees are set out just a few clauses later in the Bill. When such measures are together in one Bill, a clear explanation of the primary purpose of the director would cut through a lot of the concern and help that person to devise a strategy that focuses on that primary purpose, rather than other possible purposes. I welcome the comments of the Minister and other members of the Committee, but I will not withdraw the amendment.
Question put, That the amendment be made.
James Brokenshire
I shall be brief, given that we have had quite a wide-ranging debate about the purpose of clause 1. I underline that the purpose of and the rationale behind the appointment of the labour market enforcement director is that the three main enforcement agencies work together. They are well respected, with distinct expertise, knowledge and skills, and collectively they span the spectrum of infringement from the simplest forms of non-compliance to exploitation that may include some form of slavery. There has been a shift in the nature of such exploitation from individual abuses of employment regulation towards organised criminal activity, which is why it is important that we have an overarching response that ensures that we join the work of the bodies together.
To enable the enforcement bodies to address the problem collectively, we have determined that there is a need for greater co-ordination among them, as well as the need for a single set of priorities. We want to ensure that there is strong, effective co-ordination of the three enforcement bodies, but we also want to achieve that with minimal disruption and while avoiding significant structural change.
We believe that the key lies in establishing effective overarching leadership and co-ordination of the enforcement bodies, so the clause creates the position of director of labour market enforcement. The director will lead efforts to tackle abuse and non-compliance in the labour market. As we will debate later, that work will involve setting the strategy for the Government’s work to tackle all types of labour market exploitation, and heading an information hub to enable better sharing of tactical and operational intelligence, as well as to build a stronger evidence base to inform future interventions.
Creating a director provides the greatest scope for achieving the strategic integration of the three enforcement bodies without losing their different specialist skills. It is vital that those skills are retained to deal with not only day-to-day compliance issues, but serious criminality. If the system focused exclusively on either serious exploitation or lower-level breaches, it would not provide the necessary protection for vulnerable workers, which is why we have drafted the Bill in such a way.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Labour market enforcement strategy
Keir Starmer
I beg to move amendment 57, in clause 2, page 2, line 9, at end insert—
(ia) the threats and obstacles to effective labour market enforcement,
(ib) the remedies secured by victims of non-compliance in the labour market,”
To ensure that the labour market enforcement strategy sets out an assessment of the threats and obstacles to effective labour market enforcements and the remedies secured by victims of labour rights infringements and labour market offences.
The Chair
With this, it will be convenient to discuss the following:
Amendment 58, in clause 2, page 2, line 12, leave out paragraph (b) and insert—
“(b) contains a proposal for the year to which the strategy relates setting out—
(i) how the non-compliance outlined in the assessment required by subsection (2)(a) (i) and (ii) is to be addressed,
(ii) how the threats and obstacles identified under subsection (2)(ia) are to be overcome, and
(iii) how the provision of remedies for victims of non-compliance in the labour market identified under subsection 2(a)(ib) is to be improved.”
To ensure that the functions of the Director of Labour Market Enforcement are exercised for the purpose of enforcing all existing labour market standards, rather than prioritising a limited number of areas, and to link the Director’s strategy with his or her assessment of non-compliance with labour market standards.
Amendment 56, in clause 2, page 2, line 24, leave out subsection (3) and insert—
‘(3) The proposal mentioned in subsection (2)(b) must set out the resources required to—
(a) address the non-compliance in the labour market,
(b) overcome the threats and obstacles identified under subsection 2(b)(ia),
(c) improve the provision of remedies for victims of non-compliance in the labour market.”
To oblige the Director of Labour Market Enforcement to provide an assessment of the resources required for effective labour market enforcement and remedies for victims, rather than simply to determine how currently available resources should be allocated.
Amendment 59, in clause 2, page 2, line 26, at end insert—
‘(3A) Nothing in the strategy shall—
(a) restrict, or
(b) reduce the resources allocated to
the labour market enforcement functions as defined in Section 3(2) of this Act.”
To clarify the relationship between the Director of Labour Market Enforcement and the UK’s existing labour inspection agencies, ensuring the current role, remit and resources of labour inspectorates are safeguarded.
Amendment 65, in clause 3, page 3, line 6, at end insert—
“(da) any function of the Health and Safety Executive and the Health and Safety Executive for Northern Ireland;
(db) any function of local authorities in relation to the “relevant statutory provisions” as defined in Part 1 of the Health and Safety at Work etc. Act 1973;
(dc) any function of local authorities under the Children and Young Persons Act 1933 and by-laws made under that Act, the Management of Health and Safety at Work Regulations 1999, and the Children (Protection at Work) (Scotland) Regulations 2006.”
To include the remit of the Director of Labour Market Enforcement to cover functions relating to health and safety at work and child labour, functions carried out for the most part by local authorities.
Amendment 66, in clause 3, page 3, line 12, at end insert—
“(ca) Part 1 and The Health and Safety at Work etc. Act 1973;
(cb) Sections 3 and 4 and Part 2 of the Children and Young Persons Act 1933.”
This a consequential amendment to amendment 65.
Amendment 63, in clause 3, page 3, line 31, before “in this section”, insert “Subject to subsection 6A,”.
Amendment 64, in clause 3, page 3, line 33, at end insert—
‘(6A) A person is not prevented from being a worker, or a person seeking work, for the purposes of this section by reason of the fact that he has no right to be, or to work, in the United Kingdom.”
To ensure that labour market offences committed against all workers are included within the scope of the Director of Labour Market Enforcement’s work, irrespective of immigration status (as under subsection 2 of section 26 of the Gangmasters (Licensing) Act 2004).
Amendment 62, in clause 4, page 3, line 42, leave out paragraph (a) and insert—
“(a) An assessment of the extent to which the strategy developed under section 2 of this Act has—
(i) addressed the non-compliance identified under Section 2 (2)(a)(i),
(ii) improved the provision of remedies for victims of non-compliance in the labour market identified under 2 (2)(a)(ia), and
(iii) overcome the threats and obstacles identified under 2 (2)(a)(ib)”.
To ensure the Director of Labour Market Enforcement’s Annual Report links with his or her assessments about non-compliance in the labour market (and assessment of the remedies secured by victims and threats and obstacles to effective enforcement).
Keir Starmer
I should have said earlier that it is, of course, a privilege to serve under your chairmanship, Mr Bone—better late than never. If it is convenient for hon. Members, I will deal with all the amendments in one go. On the other hand, if that is not the best way forward, I hope that somebody will indicate that.
The amendments address the strategy that it is envisaged that the director will set out. Amendment 57 would ensure that the labour market enforcement strategy would include an assessment of the threats and obstacles to effective labour market enforcement, and the remedies secured by victims of labour rights infringements and labour market offences.
The Bill requires the director to make an assessment of non-compliance in the labour market, but does not require him or her to assess the threats or obstacles to effective enforcement, including, for example, powers and resources, or to examine remedies secured by victims of non-compliance in the labour market. The amendment would oblige the director to incorporate those considerations into his or her strategy—in other words, to add value to what the labour inspectorate is already doing. The director needs to look at how enforcement could be done better, as well as the extent of non-compliance.
We want to build on the victim-focused legacy of the Modern Slavery Act, so we suggest that the director should look at the remedies for victims of labour exploitation as part of his or her strategy. Let me point to some gaps in the data. Recorded data on compensation for infringements of labour market standards are limited. For example, HMRC does not keep data in a format that enables the provision of statistics on the amount of arrears paid or not paid to workers. Data on civil claims brought by victims of trafficking and damages awarded are not available.
During the financial years 2010-11 to 2012-13, no prosecutions by the Gangmasters Licensing Authority resulted in compensation orders for victims of human trafficking. Data on compensation secured through the criminal injuries compensation scheme for victims of human trafficking for non-sexual exploitation, forced labour, slavery and servitude are not being recorded, so there are clear gaps. Why does not the Bill make provision for the director to assess why non-compliance is at its current level, as well as an assessment of non-compliance within the labour standards? How can the Government know whether they are making progress on meeting the needs of victims of exploitation if they are not collecting data on remedies?
Craig Whittaker
The hon. and learned Gentleman and I both had lives outside this place before we were elected, and I know that he had a high-profile role. Has he written a strategy for any job he has held that did not take account of threats and obstacles relating to the strategy that he was trying to write?
Keir Starmer
The straight answer is no; of course that would be within the strategy. The purpose of the amendment is to make it clear that that has to be part of the strategy for this director. I am sure that members of the Committee share concerns about resources. The amendment is an attempt to ensure that this step forward is as effective as possible, and that touches on strategy and resources. While my answer to the hon. Gentleman is no, I do not think that that is a good enough reason not to support the amendment.
Paul Blomfield
Is my hon. and learned Friend, like me, keen for the Minister to give us a bit more clarity about what seems to be a shift in narrative towards more serious issues of exploitation, which has not been defined? Our hope is that we are seeking to enforce all standards for all workers.
Keir Starmer
Yes, I thank my hon. Friend for his contribution. I will come later to where the director will put his or her emphasis—on what might be called the higher end breaches, or on more routine breaches. I welcome that contribution and I ask the Minister to deal with it if he can in his comments.
Amendment 59 is intended to clarify the relationship between the director of labour market enforcement and the UK’s existing labour inspection agencies, ensuring that the current role, remit and resources of labour inspectorates are safeguarded. By way of background, I give an example, because practical realities follow from what we hope is a very good initiative. This year we saw the pay and work rights helpline merge with the Advisory, Conciliation and Arbitration Service. The pay and work rights helpline used to provide vital advice; it was a service with an annual cost of £500,000, yet, when it was merged, the money did not go with it, which has led to a strain on the service. As a result, ACAS struggles to meet extra demand with no extra resources. There is some evidence that representatives have been asked not to use it. By making explicit the resource implications in the strategy, we hope to avoid this sort of implication. Where there is a merger of various functions and enforcement without the resources, it becomes ineffective.
Sarah Champion
I give another example. During the witness session, I asked Professor Metcalf whether he believed that there were sufficient resources and he said,
“Probably not, but in the consultation document and, I think, in the Bill, it does not actually set out quite what the resources are.”
I went on to ask him what he thought they should be and he said:
“One understands the difficulties with the public finances, but we probably do not have sufficient resources. In the low-skilled report, we calculated that you would get an inspection from HMRC once every 250 years and you would get a prosecution once in a million years. That suggests that we do not have enough resources. In turn, that takes you to the potential trade-off between the resources and the punishments.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 19-20, Q36-37.]
Keir Starmer
I am grateful for that intervention, which is another example from the evidence that we heard last week about resources. Unless we tackle the resources issue head on, all that will be achieved is the creation of a director without any real powers to carry out the functions, which I think everybody accepts need to be enforced and enhanced. In a sense, if we try to do more with less, services are jeopardised and, in truth, the vulnerable workers suffer and we will not succeed in reducing the pull factor for illegal migration because exploitation will not be uncovered and penalised.
By way of example, the number of Gangmasters Licensing Authority investigations into the illegal activities of gangmasters dropped from 134 in 2011 to 68 in 2014, and prosecutions were down from 19 in 2010 to three in 2014. I accept that underlying this reduction will be some intelligence-led work, but those figures are stark and they underline the general point made by the witnesses last week, namely, that the concern about labour market enforcement is not so much about the agencies and the enforcement powers as about the fact that the resources are simply not there to allow for investigations and action to be taken very frequently. Unless that problem is addressed head-on, there is the danger that all we will create is a director who does not actually carry out the enhanced functions that it is hoped will be carried out.
Sticking with the GLA itself, its budget, of course, has been cut by 20% since 2010, so we are in an environment where the enforcement agencies are already suffering quite significant cuts. It means that the GLA regulates labour in a £100 billion sector with a budget of 0.004% of that figure.
I have some questions that I hope the Minister will be able to address in his reply. On page 8 of the Government’s consultation document, “Labour market exploitation: improving enforcement”, it states that there has been
“a shift from abuses of employment regulation towards increasingly organised criminal activity engaged in labour market exploitation.”
That shift has occurred during the past 10 years. But what is the evidential basis for that assertion? In other words, that is the shift of abuse from, as it were, lower-level routine abuse to increasingly organised criminal activity. Linked to that is another question. Does the Minister agree that if we do not enforce employment legislation effectively at the lower end of abuse—if you like, minimum wage, health and safety and so on—we will create conditions for higher levels of abuse to develop. So, as I say, where is the evidence to support that assertion? And if we abandon the lower end or do not put resource into it, do we not run the risk of creating conditions in which unscrupulous employers will get away with whatever they want?
Amendments 65 and 66 would include the functions relating to health and safety at work and child labour within the remit of the director. May I just be clear about the spirit in which amendment 65 was tabled? It aims to explore the thinking behind the division of functions here, and to understand why all the functions are not brought together under this director, while also recognising—as we do—the work that the Health and Safety Executive is currently undertaking. So, amendment 65 was tabled in that spirit of properly understanding the Bill’s limited remit. The health and safety at work aspects of the Bill speak for themselves; I think that the child labour functions are enforced by local authorities.
Earlier this morning, the Minister said that the purpose of the Bill was to cover the whole spectrum of labour market enforcement, and therefore the ownership of the HSE and of the legislation to deal with child labour were obvious. There may have been a good deal of thinking behind that, but it would be useful through this exercise to understand that thinking properly, because the exclusion of those functions from the remit of the director of labour market enforcement could have an influence on the issue addressed by amendment 55, namely, the primary purpose of the director. Why is the HSE excluded and what is the thinking behind that exclusion?
Of course, there is also a budgetary consideration. The budget of the three labour inspection agencies covered in part 1 amounts to just over £14 million. That is compared with the £81 million for the Health and Safety Executive, which adopts a cross-labour market role. If the aim is to cover the whole spectrum and there are already resource considerations—of course there are—why do these provisions not cover the whole spectrum and leave out the health and safety and child labour aspects?
Amendments 63 and 64 aim to ensure that labour market offences committed against all workers are included within the scope of the director of labour market enforcement’s work, irrespective of immigration status. I will try to explain our concern clearly. Trafficking offences, as we understand it, are outside the remit of the Bill, save where they touch on the role of workers. That makes sense on one level because we would not expect the director of labour market enforcement to be looking at trafficking offences outside the employment or labour context. The problem as we see it—which may simply require clarification or may require amendment—is that the definition of “worker” within the Bill is then not wide enough to cover all those who may be in the labour market, including undocumented victims of trafficking. Perhaps there is a clear explanation; there may be a simple amendment. We follow the logic of the scheme, but we are concerned that the definition of “worker” is in fact too narrow and will leave some who it is probably the intention of the Government to include outside the scope of the protection. The amendment is put forward in that spirit.
Sarah Champion
On that point, I wonder if the Minister could also clarify why clauses 3 and 9 use two different pieces of legislation relating to workers? It seems to be a bit of an anomaly. Some clarity on that would be welcome.
Keir Starmer
Finally, amendment 62 touches on the annual report and is intended to ensure that the director of labour market enforcement’s annual report links with his or her assessment about non-compliance in the labour market and the remedies secured by victims and threats and obstacles to effective enforcement. The bullet point is this: as drafted, the director’s strategy does not link with his or her assessment of non-compliance in the labour market and his or her annual report does not link back to the assessment of non-compliance as a baseline. The amendment aims to ensure that the strategy covers everything that it should and that the annual report is tied into the same process.
Mrs Lewell-Buck
I rise to support the Opposition amendments, which will be helpful in clarifying the role and duties of the director of labour market enforcement. I will also echo some of the comments made by my hon. and learned Friend the Member for Holborn and St Pancras.
The creation of the role is welcome, as my hon. Friends have said, but if the director is to have real influence and impact, they need to be involved across enforcement of labour market standards and not confined to a narrow area. The director should be able to take the lead on issues of labour market enforcement, to command respect from employers and be a strong advocate for compliance and tougher enforcement. The Opposition amendments are designed to make that happen. Amendment 56, for example, would require the new director to set out the resources that are needed for effective labour market enforcement.
Witnesses told the Committee that the problems with the immigration system are due not to a lack of powers but to a lack of resources, which undermines enforcement. The Government can introduce all the legislation they like, but criminal employers will not bat an eyelid unless they believe that there is an actual chance of their door being kicked down. That chance is incredibly low right now. The UK has less than one inspector per 100,000 workers, which is one of the worst ratios in Europe. The director should be able to tell the Government when they are not doing enough, and amendment 57 would introduce a clear duty to examine and identify where enforcement is failing and where there are obstacles to effective enforcement, thereby helping to identify where further resources are needed. There are currently too few data on the scale of labour market exploitation, and the director could and should be able to fill that gap.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a pleasure to serve under your chairmanship, Mr Bone. I rise to support amendments 56 to 58 and 62 to 64, but I will focus on the first three of those amendments lest I test the Committee’s patience.
Clause 2 is perhaps the only clause that my Scottish National party colleagues and I fully support. I wish that were the case for the remainder of the Bill, but I am afraid it is downhill from here. It is an outrage that we are talking about modern day slavery. The director of labour market enforcement, first and foremost, should be used to take action against exploitative employers and to protect workers from being abused and taken advantage of. Nice chap though he is, there is not much on which I agree with the Minister for Immigration on this Bill—or anything else for that matter. However, I find myself in the unusual position of agreeing with him that it is unacceptable for any employer to recruit staff whom they think they can exploit because those employees are less likely or less able to complain about working conditions. It is a scandal that we still have to talk about slavery and exploitation in modern-day Britain. However, that is the experience facing many workers, particularly migrant workers, when they clock in each morning. I am sure that we have all been appalled, upset and angered by the frequent newspaper reports on the level of exploitation that some migrant workers have faced and, truth be told, we could possibly be accused of not responding appropriately or quickly enough.
I hope that the recruitment of a new director of labour market enforcement is the first step in addressing the plight of many migrant workers. It should be welcomed that we have already started to talk about the work that the director will undertake, and the strategy in clause 2 outlines the action that will be taken to eradicate modern day slavery and exploitation in the workplace. There is currently a worrying lack of information on the level of exploitation faced by migrant workers. We do not know how many are being exploited. We have little evidence of the physical exploitation that they face, and we have little insight into the activities of gangmasters.
Therefore, amendment 57, which is supported by Focus on Labour Exploitation among others, would allow us to gain a greater understanding of the challenges to operating successful, fair and effective labour market enforcement. An assessment of the risks will allow us to gain the appropriate level of evidence so that we can take action against rogue employers. The amendment details our vision for addressing the exploitation that can arise from illegal migrant working and the steps that should be taken to gather the required level of evidence. Amendment 58 would ensure that we can use the evidence that has been gathered to take an evidence-based approach to addressing worker exploitation. That is important, as it prevents any prejudice-based opinions or judgments from influencing what action should be taken.
During our evidence sessions last week, Caroline Robinson of Focus on Labour Exploitation said:
“The point about the protective purpose of the director is very important. For us, the core purpose of that role should be the protection of vulnerable workers and the prevention of exploitation. That has been at the centre of the work of the Gangmasters Licensing Authority and has been part of its success. That authority, as we know, operates on a limited budget, so the resources are also of critical importance. On the role of the director of labour market enforcement and the labour market enforcement strategy, what most concerns us is the power of the director to hold control of the budgets, governance of those labour inspectorates and shifting budgets according to the strategy.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 27, Q54.]
She also raised the point that, along with the director, the inspectorate needs further resources to ensure that our position is comparable to that of other EU countries. At the moment we have just 0.9 inspectors per 100,000 workers.
Anne McLaughlin
Other hon. Members have mentioned that figure; I will give a bit more information to put it into perspective. As the hon. Member for South Shields said, that figure compares very unfavourably with figures for the rest of Europe. In Ireland, for instance, there are 4.6 inspectors per 100,000 workers, Belgium has 12.5 and France has 18.9. I got that information from a policy blueprint published by FLEX in the past couple of weeks. FLEX has said:
“Enforcement of employment law…is at desperate levels, creating the perfect conditions for modern slavery to take place.”
I agree that there must be proper funding for inspection, otherwise it is pointless.
Gavin Newlands
My hon. Friend has highlighted the paucity of resources in this area, something that we will come back to time and again throughout this debate.
The resources question, raised by amendment 56, was also a cause of concern for Professor Sir David Metcalf, the chair of the Migration Advisory Committee. During our evidence session last Tuesday, Professor Metcalf raised concerns about the resources required to enforce measures and punish rogue employers who are failing to abide by labour market enforcement. After we have gathered evidence on labour market enforcement, we cannot be put in a position where we cannot use that evidence effectively because of a lack of resources. Professor Metcalf stated that, as things stand, he does not believe that the director will have the resources to be able to effectively deal with the problem of worker exploitation.
Professor Metcalf also stated that when working on the implementation and enforcement of the minimum wage he estimated that an employer would get a visit from HMRC once every 250 years and there would be a prosecution once in 1 million years. Quite frankly, that is a ridiculous position for us to find ourselves in, and we cannot allow ourselves to be put in it when it comes to tackling the issue of workers who are being exploited. Amendment 56 would require that the resources required to tackle the problem should be set out and calculated.
As I have said, we broadly support the clause, but clarification is required on a few matters, not least resourcing for the position of director. In our evidence session last week, Professor Metcalf said
“I suspect we just do not have the public finances for sufficient enforcement”
before going on to say that
“in the Bill, it does not actually set out quite what the resources are.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 18-19, Q33-36.]
I hope the Minister will go some way to answering that point today or else will support amendment 56, which would allow the new director the opportunity to assess the required resources.
Paul Blomfield
I will speak to a number of the amendments in the group, starting with amendment 14. Following on from our earlier discussion, it is important—
Paul Blomfield
I meant amendment 57, Mr Bone. I apologise—I do not know where I got 14 from; you ought to see my notes!
It is important that the director has a broad oversight and is able to inform Government and the agencies, when they are taking work forward, of all the issues that are a challenge for us, in government and in this place, when trying to ensure effective labour market enforcement.
It is worth mapping out the scale of change within our labour market, as that causes some of the difficulties. For example, according to the Office for National Statistics labour force survey, from 2010 to 2014 jobs paying below the national minimum wage went up 14.8%, zero-hours contracts were up 343%, the number of agency workers went up 20% and bogus self-employment rose substantially.
We all celebrate the entrepreneurial spirit that leads to genuine self-employment, but the level of self-employment in the construction industry is of particular concern—66.7% of workers are now self-employed, which compares with 9% in the finance and insurance sector and 8% in manufacturing. There is concern in the construction industry, where we know that exploitation is rife, that about half those in self-employment are bogusly self-employed.
That sets part of the context for the need to ensure that we have a proper and comprehensive assessment. Kevin Hyland, the independent anti-slavery commissioner, who has been mentioned already this morning, talked about the scale of the problem in the Daily Mail, which I was reading last week—I note the Minister’s surprise, because that is not my habit, but I happened to be catching up with the paper last week. The article stated:
“Up to 13,000 people in Britain are forced to work in factories…sold for sex…or kept in domestic servitude, among other forms of slavery...But in 2014 only 2,340 potential victims were referred to the National Referral Mechanism…And there were only 39 convictions”.
The commissioner made the point that many people have fled from countries where confidence in the rule of law and in the authorities is low, which makes them reluctant to come forward in Britain. He said:
“Victims who come here with a promise of a better life and then become exploited, they’re going to be fearful of going to the authorities through previous experience.”
Such barriers and issues are precisely those that ought to be within the scope of the consideration of the director of labour market enforcement.
The amendment also relates to the remedies secured by victims. Compensation is of enormous importance. Earlier this year I asked the Secretary of State a written question about compensation for victims of trafficking identified by the Gangmasters Licensing Authority. The answer on 17 September was:
“During the financial years 2010/11 to 2012/13, no prosecutions”—
no prosecutions—
“by the Gangmasters’ Licensing Authority resulted in compensation orders for victims.”
I find that shocking. Again, that sort of issue ought to be within the scope of the director of labour market enforcement and within the strategy. Amendment 57—not, indeed, 14—provides that clarity.
On amendment 59, the whole purpose of the director of labour market enforcement is to provide co-ordination, but we need greater clarity. I am interested in the Minister’s response about the relationship between strategic planning, co-ordination and line management. For example, the Gangmasters Licensing Authority is a non-departmental public body and has its own board, which sets its budget and defines its priorities. We want to see an overall strategy, but a number of us would be concerned if the integrity of the GLA as originally constituted was in any way undermined. Amendment 59 will, I hope, draw clarification from the Minister.
Amendment 65 is on the Health and Safety Executive. As the shadow Minister pointed out, we are seeking clarity. Why has the HSE, among others, been excluded from the director’s remit? The Minister will recall from the evidence we received from the chair of the Migration Advisory Committee that there is a real case to include the HSE, local authorities and, potentially, sections of DWP. When we look at the scale of labour market enforcement between different agencies, the Employment Agency Standards Inspectorate has nine inspectors, the GLA has 69, the national minimum wage inspectorate has 232, and the HSE has 1,047 staff, of whom 972 are front-line inspectors. If we are to have a coherent approach to labour market enforcement, it would be useful to have a clearer understanding of the Government’s thinking on why at this stage the HSE is excluded.
I am not sure whether this is an oversight on the Government’s part—again, clarification would be helpful—but amendment 64 is seeking simply to ensure that labour market offences committed against all workers are included, because the current definition of “worker” suggests that it would not include—
Craig Whittaker
Not just amendment 64, which I shall come to, but all these amendments were perhaps summed up best by the hon. Member for Glasgow North East, who said that they are about the enforcement of employment law. Is not that amendment asking employers to specifically break employment law, which currently excludes them from employing anybody who is not legally allowed to work in this country anyway?
Paul Blomfield
No. I thank the hon. Gentleman for his intervention because it allows me the opportunity to clarify that the amendment is seeking to ensure that labour market offences by employers committed against all workers be included within the scope of the director of labour market enforcement’s work. The point is that, as currently drafted—unless the Minister can provide contrary clarification—the measure suggests that undocumented workers will be excluded. Clearly, it is nonsense that a labour market enforcement director who is seeking to challenge all abuse in all parts of the labour market would have excluded from his terms of reference that part of the labour market which, by definition, is most likely to be subject to substantial abuse and exploitation. The Minister might be able to provide clarification that makes the amendment unnecessary.
James Brokenshire
I thank all hon. Members for their contributions in this mini-debate. Equally, I should celebrate and recognise the contribution from the hon. Member for Paisley and Renfrewshire North. I appreciate that this may be a rare moment in the consideration of the Bill—he is supportive of the measures—but, in good spirits, I welcome his comments and the support he has given. I think that there is a shared recognition that we need to deal with exploitation and to achieve better co-ordination, and that we need the strategic response that is provided by the Bill. I welcome his comments in the spirit in which they were made.
The hon. and learned Member for Holborn and St Pancras asked me at the outset about organised criminal activity and the evidence base. It is feedback from enforcement officers that tells us that the incidence of forced labour may be growing at a faster rate than other types of exploitation. It appears to be due to criminal gangs infiltrating the supply chain, which I know is a broader issue that was debated during the passage of the Modern Slavery Act. I will not stray widely, but perhaps that will give him a sense of what we have been looking at.
Amendments 57 and 58 relate to the contents of the director’s annual strategy to address non-compliance in the labour market in the forthcoming financial year. Although I agree entirely with the intention behind the amendments, they are unnecessary because it is the Government’s expectation that the director will feed information of that nature into the planning and reporting cycle. Page 24 of the consultation document says of the strategy:
“It will set out, for the financial year ahead: the priorities for enforcement; the outcomes required from the enforcement bodies; and the budgets for the enforcement bodies, within the total envelope of available funding.”
So we have been quite clear about our expectations.
The issue of how non-compliance in the labour market should be addressed is at the heart of the strategy, which is why clause 2(2)(b)(i) requires the director to propose how labour market enforcement functions should be exercised, or, to put it another way, how the three enforcement agencies under the director’s remit should operate to address non-compliance.
The Government would not consider the strategy to be effective if it did not identify the threats and obstacles to effective labour market enforcement. We expect the director to turn over stones to tell us where the gaps are and to propose how they can be addressed. That is a crucial and valuable aspect of the role. Similarly, the Government would not consider any strategy or report to be effective if it did not examine the important issue of securing remedies for victims, which would naturally include recovering wages owed to workers and sanctions against employers for labour market offences.
Sarah Champion
Therefore, will the Minister confirm that, as in amendment 62, non-compliance will be reported on and used as a baseline for forthcoming reports?
James Brokenshire
As the hon. Lady will note from the consultation document, the strategy is about setting out information and issues concerning the work of different bodies and agencies, including some themes of non-compliance. How that feeds into communication, good practice and sharing information is at the heart of the matter and needs to be reflected in the strategy.
Amendments 56 and 59 bring me to the director’s role in setting the resources of the enforcement bodies. It is the Government’s intention not that the director of labour market enforcement decides the budgets of the three enforcement bodies, but that the director should recommend how resources should be allocated within the total envelope of available funding. Hon. Members will be aware that the Gangmasters Licensing Authority is funded by the Home Office, and the Employment Agencies Standards Inspectorate and HMRC’s national minimum wage enforcement teams are funded by the Department for Business, Innovation and Skills. Funding for those agencies is secured via the usual departmental bidding process. While the Government intend that the relevant Secretaries of State will take the director’s proposals on resources into account during the preparation of those bids, it is right that the Government set the overall level of resources devoted to labour market enforcement in the context of the totality of pressures on public spending. I point out that HMRC has increased its budget for enforcing the national minimum wage; for 2015-16, that has increased by £4 million, meaning that the total budget has increased to £13.2 million.
Keir Starmer
I do not want to lose the central concern—a concern that gives rise to the amendment and that was in all the evidence, both written and oral evidence given to us last week. The existing agencies have their budgets and their funding. Funding streams will be set by different parts of the Government and different bodies. Although HMRC is an example of where there has been an increase, budgets are being cut. The real concern being expressed across the board is that the resources at the moment for the existing agencies are such that the likelihood of any inspection or action being taken is very low. I am the first to accept that some of the statistics about one visit every 250 years and a prosecution once every million years have to be put into proper context; if it is intelligence-led, that gives a different perspective. I completely understand that, but the point made by independent body after independent body is that the likelihood of inspection and enforcement action is so low that it does not operate as much of a deterrent for most of those who may be involved in abuse of the market. That is a real concern. The Migrant Advisory Committee has been mentioned, but plenty of others charged with overseeing some of these issues are extremely concerned about the resources.
In that context, and understanding that it will not be the director’s role to require resources to be used in a particular way, what assurance can we be given that there will be a shift—a step change—in approach? Without providing the resources necessary to give some assurance to the many people, including Opposition Members, who have raised their voices on this issue, it is difficult to see how the strategy will achieve the desired objective and be the positive step forward that it needs to be. Accepting the constraints and the framework in the Bill, what assurance can be given in response to the powerful evidence about the lack of resources and the limited likelihood of inspection and enforcement action being the real problem, rather than the penalties after the event?
James Brokenshire
I would point to what Professor Metcalf said during the evidence session about checks taking place every 250 years. He said:
“I am exaggerating when I say once every 250 years for a visit. Of course, they will do it based on risk.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 21, Q40.]
Our reforms are about enabling better targeting of enforcement activity, to make best use of the resources available and, therefore, to best protect vulnerable workers.
I return to my point about the additional support that HMRC is providing in terms of the national minimum wage. Where the director feels that the overall level of resources available has had an impact on delivery of the strategy, he or she will be able to say so in the annual report, which is laid before Parliament. That report can be redacted only for reasons of national security or the safety of any person in the UK, or if an investigation may be prejudiced, so it would be open to the director to make any comments.
It is right that, overall, the director is able to prioritise between the different agencies, while the envelope must reside within Government. We are having to make savings, and that is well recognised across the House. We have to deal with the deficit and a number of other issues, which I will not rehearse in this Committee. This is about being more effective and about using collaboration and co-ordination to step up our response. Amendment 59 is therefore unnecessary, as the director would be unable to restrict or reduce the resources allocated to labour market enforcement functions overall.
Amendments 65 and 66 would extend the director’s remit. The enforcement bodies and pieces of legislation that should be included are those relating to workers who are most at risk of infringement of their labour market rights—workers on low pay, those engaged through agencies or those working in sectors deemed at high risk. They are most likely to be vulnerable to abuse by unscrupulous employers. The amendments would include other areas of state enforcement—namely, health and safety and the protection of child workers. We do not agree that those should be within the director’s remit, and I will explain why.
The Health and Safety Executive, the Health and Safety Executive for Northern Ireland and the health and safety functions of local authorities play an important role in ensuring that risks to health and safety are properly managed in a worker’s place of work. That is a wide responsibility; some of the requirements that those bodies enforce relate to labour market and employment rights, and others to different types of risk, from the storing of chemicals to the training necessary to operate machinery.
We want the director to remain focused on enforcement of the most relevant employment rights. The current way in which the Health and Safety Executive and the Health and Safety Executive for Northern Ireland use their specialist expertise to set their strategy is best placed to protect workers from workplace hazards. However, we are consulting on information-sharing powers for the director. Those will include the ability to share information with other enforcement bodies, including the Health and Safety Executive and local authorities. That will enable all enforcement bodies to take a shared view of risk, and that is the right way to approach the issue.
Similarly, the Children and Young Persons Act 1933 provides protections for those younger than 18 who work. It covers a range of scenarios, from very young children who may act or model, to older children who take a job in the school holidays. While the protections that it affords can be seen as employment rights, they are fundamentally about protecting children and their health, wellbeing and education. That naturally fits with local authorities’ other responsibilities towards children and young people. We do not believe it would be in the child’s best interest to separate this piece of legislation and enforcement and have it within the remit of the director. We think that local authorities are best placed to know the particular risks in their areas. As I have indicated, the sharing of information and intelligence is the most effective way in which the provisions in the Bill can contribute to that important work.
Paul Blomfield
Will the Minister elaborate a little on how he sees that information sharing developing? Given the scale of the HSE inspectorate’s opportunity to identify, for example in the construction industry, wider labour market abuses, that is clearly significant. I am keen to hear how the Minister anticipates HSE inspectors being briefed, trained and supported on those wider potential labour market infringements, in a way that would inform and guide the other three agencies under the jurisdiction of the director of labour market enforcement.
James Brokenshire
The hon. Gentleman will be aware that information sharing is a specific point in our consultation. There are barriers—legal and otherwise—to sharing data between enforcement bodies. That is why we are consulting on that point, and some suggestions have been highlighted in the consultation document.
We are reflecting carefully on that and have put it out to consultation to consider the most effective and appropriate ways to do so. We want these gateways to information sharing, which we have in other enforcement spheres. I want to reflect on the responses to the consultation on that point to ensure that we act appropriately.
I hope I have set out why we think this role is different in character and nature, in terms of workplace safety and the best interests of the child, and why we do not think it would be appropriate to include the proposal in this part.
Sarah Champion
Does the Minister believe the consultation will be complete by Third Reading and able to influence the Bill?
James Brokenshire
We have today announced an extension to the consultation period. It was originally due to close at the beginning of November, and it has been extended by about four weeks—I can come back to confirm that. I want to ensure that we get the provisions right on some of these detailed points. The consultation may inform later parts of the Bill. Our judgment is that we should ensure that the consultation is framed to get the right responses from those actively engaged at the front end. That is why we have announced a time extension, which I believe will be welcomed by the different sectors.
There were comments about redefining the term “worker”. The clause and the proposed amendment do not redefine “worker” for the purposes of the Employment Agencies Act 1973, the National Minimum Wage Act 1998 or the Gangmasters (Licensing) Act 2004. The coverage of those respective Acts continues to apply. That means that the Employment Agency Standards Inspectorate and the GLA will still tackle non-compliance by employment agencies, businesses and gangmasters, regardless of whether the affected workers have the right to be or to work in the UK.
We see the director as being focused on improving the way we enforce labour market and employment law rules. The Bill is not about extending labour protections to illegal workers, and we think that the director’s focus should be on making sure that workers who are properly here are better protected.
However, we are committed to tackling serious crimes against individuals, whatever their status. We have set out in the modern slavery strategy and the Modern Slavery Act 2015 enhanced powers and an improved approach to tackling slavery and human trafficking, whether victims are trafficked for sexual exploitation, exploitation involving criminal activity or indeed labour exploitation.
That is why we have implemented life sentences for modern slavery offences, new preventive orders to stop harm before it takes place and improved protections for victims such as a statutory defence. We see an important but specific role for the director in supporting this crucial work. The director’s remit includes modern slavery offences where they are committed against a worker or person seeking work, or where a person is subject to slavery, servitude or forced or compulsory labour. We are also consulting on additional powers for the Gangmasters Licensing Authority to include tackling such offences in their proposed enhanced enforcement role. I draw Members’ attention to that.
We think the balance is right. The director’s role is focused on workers who are here legally, although he can include in his plans action against forced labour as well. Trafficking people from around the world to work in brothels in the UK is an absolutely unacceptable crime, but we judge it is right for the director of labour market enforcement to tackle those aspects that are within the remit outlined in the Bill.
Keir Starmer
I wish to understand what the Minister has just said, because it is a concern in relation to the amendment. Is the Minister saying that an amendment along the lines of amendment 64 is simply unnecessary because the individuals will be fully included within the protection, or that, contrariwise, they are not fully included, but that hopefully the strategy will include action that would protect all workers in the broader sense? To be specific, is it that amendment 64 is simply not required and is a misunderstanding of the definition or limitation, or is there a broader point? It is quite important.
James Brokenshire
I think it is the latter of the two points that the hon. and learned Gentleman has articulated. We think it is covered by other means, but, for the purposes of defining the specific role, it is about lawful entitlement to be within the UK. For the reasons that I have outlined, there are other mechanisms and ways in which the issue is being addressed. It is about labour market enforcement and the lawful upholding of existing legislation. The amendment appears to take us in a direction that would apply new rights to those who are here illegally, whereas there are other mechanisms through the linkages, through the rights that the Gangmasters Licensing Authority will have, and through the consultation. It is about the extension of those aspects through other means. That is why I made the point about the specific role for the director in supporting this crucial work through a different mechanism, through the work that the Gangmasters Licensing Authority will take forward. The role concerns the lawful upholding of existing labour rights, rather than the extension of those rights, which the amendment appears to suggest. That is why we have not found the amendment attractive.
The director’s role that we have proposed supports our wider strategy on modern slavery, enhancing the response to labour exploitation. Crucially, it should not confuse or undermine the responsibility of the National Crime Agency and the national policing lead to lead the operational law enforcement response to modern slavery, overseen by the independent anti-slavery commissioner. Where an illegal worker is a victim of modern slavery, appropriate support mechanisms are available to them via the national referral mechanism. Their status as a victim will be reflected in how they are subsequently treated by the immigration system, including the relevant reflection periods during which the person will be granted leave to remain. There are also crucial protections within the criminal justice system, which we will come to later.
Amendment 62 seeks to specify the content of the director’s annual report in the same way as amendments 57 and 58 did for the director’s strategy. I do not propose to repeat the same arguments that I made in respect of the earlier amendments, but I want to be clear that this amendment is unnecessary.
Clause 4 as drafted states that the annual report must include:
“an assessment of the extent to which labour market enforcement functions were exercised in accordance with the strategy”.
As we expect the director’s strategy to propose how the enforcement bodies should tackle non-compliance, seek remedies for victims and overcome obstacles to compliance, it follows that the director’s annual report will set out how successful the enforcement bodies were at doing exactly these things.
Paul Blomfield
I am still puzzled by the Minister’s comments on amendment 64 and how the director of labour market enforcement would be able to consider all workers irrespective of their immigration status. If I understood him correctly, undocumented victims of trafficking would not be covered by the work of the director. If that was the case, would that not hinder his or her work?
James Brokenshire
No. It is complementary to the work of the National Crime Agency and the independent commissioner, so the Bill provides clarity in that regard.
Immigration Bill (Sixth sitting)
(9 years, 1 month ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 58, in clause 2, page 2, line 12, leave out paragraph (b) and insert—
‘(b) contains a proposal for the year to which the strategy relates setting out—
(i) how the non-compliance outlined in the assessment required by subsection (2)(a) (i) and (ii) is to be addressed,
(ii) how the threats and obstacles identified under subsection (2)(ia) are to be overcome, and
(iii) how the provision of remedies for victims of non-compliance in the labour market identified under subsection 2(a)(ib) is to be improved.’
To ensure that the functions of the Director of Labour Market Enforcement are exercised for the purpose of enforcing all existing labour market standards, rather than prioritising a limited number of areas, and to link the Director’s strategy with his or her assessment of non-compliance with labour market standards.
Amendment 56, in clause 2, page 2, line 24, leave out subsection (3) and insert—
‘(3) The proposal mentioned in subsection (2)(b) must set out the resources required to—
(a) address the non-compliance in the labour market,
(b) overcome the threats and obstacles identified under subsection 2(b)(ia),
(c) improve the provision of remedies for victims of non-compliance in the labour market.’
To oblige the Director of Labour Market Enforcement to provide an assessment of the resources required for effective labour market enforcement and remedies for victims, rather than simply to determine how currently available resources should be allocated.
Amendment 59, in clause 2, page 2, line 26, at end insert—
‘(3A) Nothing in the strategy shall—
(a) restrict, or
(b) reduce the resources allocated to
the labour market enforcement functions as defined in Section 3(2) of this Act.’
To clarify the relationship between the Director of Labour Market Enforcement and the UK’s existing labour inspection agencies, ensuring the current role, remit and resources of labour inspectorates are safeguarded.
Amendment 65, in clause 3, page 3, line 6, at end insert—
‘(da) ny function of the Health and Safety Executive and the Health and Safety Executive for Northern Ireland;
(db) any function of local authorities in relation to the “relevant statutory provisions” as defined in Part 1 of the Health and Safety at Work etc. Act 1973;
(dc) any function of local authorities under the Children and Young Persons Act 1933 and by-laws made under that Act, the Management of Health and Safety at Work Regulations 1999, and the Children (Protection at Work) (Scotland) Regulations 2006.’
To include the remit of the Director of Labour Market Enforcement to cover functions relating to health and safety at work and child labour, functions carried out for the most part by local authorities.
Amendment 66, in clause 3, page 3, line 12, at end insert—
‘(ca) Part 1 and The Health and Safety at Work etc. Act 1973;
(cb) Sections 3 and 4 and Part 2 of the Children and Young Persons Act 1933.’
This a consequential amendment to amendment 65.
Amendment 63, in clause 3, page 3, line 31, before “in this section”, insert “Subject to subsection 6A,”
Amendment 64, in clause 3, page 3, line 33, at end insert—
‘(6A) A person is not prevented from being a worker, or a person seeking work, for the purposes of this section by reason of the fact that he has no right to be, or to work, in the United Kingdom.’
To ensure that labour market offences committed against all workers are included within the scope of the Director of Labour Market Enforcement’s work, irrespective of immigration status (as under subsection 2 of section 26 of the Gangmasters (Licensing) Act 2004).
Amendment 62, in clause 4, page 3, line 42, leave out paragraph (a) and insert—
‘(a) An assessment of the extent to which the strategy developed under section 2 of this Act has—
(i) addressed the non-compliance identified under Section 2 (2)(a)(i),
(ii) improved the provision of remedies for victims of non-compliance in the labour market identified under 2 (2)(a)(ia), and
(iii) overcome the threats and obstacles identified under 2 (2)(a)(ib)”.’
To ensure the Director of Labour Market Enforcement’s Annual Report links with his or her assessments about non-compliance in the labour market (and assessment of the remedies secured by victims and threats and obstacles to effective enforcement).
The Minister for Immigration (James Brokenshire)
When we broke for our short adjournment, we were touching on the use of a particular term: we were looking slightly ahead to the use of the term “worker” in clauses 3 and 9. I want to ensure clarity about where that term is used because that may be informative to the Committee and perhaps help to narrow the debate and argument.
I assure hon. Members that the definition of worker in clause 3(6) applies only in one context, which is in respect of clause 3(4)(e)(i), which relates to sections 2 and 4 of the Modern Slavery Act 2015. The definition of worker in all other Acts in the director’s remit is unaffected. The hon. and learned Member for Holborn and St Pancras may find that and the context in which the definition applies helpful.
The definition of worker in the Employment Agencies Act 1973 is unaffected. The Employment Agency Standards Inspectorate will continue to take action against rogue employment agencies and businesses regardless of whether the worker is here legally or illegally. Similarly, the definition of worker in the Gangmasters (Licensing) Act 2004 is unaffected. The Gangmasters Licensing Authority will continue to take action against rogue gangmasters regardless of whether the worker is here legally or illegally. That matches the concerns raised in contributions this morning.
Furthermore, the definition in the National Minimum Wage Act 1998 is also unaffected. That will continue to apply only to legal workers—that is how it is framed. The provisions are about not extending rights to illegal workers, but bringing strategic oversight together under one person. We do not think it is appropriate to give illegal workers the right to the national minimum wage. Of course, the employer who employs an illegal worker and pays them less than the national minimum wage will still be committing an offence under section 21 of the Immigration, Asylum and Nationality Act 2006, which comes with a higher penalty. The Bill also includes measures to enable us to take a tougher enforcement approach to employers of illegal workers, including increased prison sentences if they employ people whom they know or reasonably suspect are illegal workers.
The definition of worker in clause 3(6) has no effect on section 1 of the Modern Slavery Act 2015. All offences of slavery, servitude and forced or compulsory labour will be within the director of labour market enforcement’s remit, because it would be illogical to exclude those forced to work from the director’s purview. Indeed, all offences of trafficking under sections 2 and 4 of the Modern Slavery Act that involve slavery, servitude and forced or compulsory labour will also be within the director’s remit.
The definition in clause 3(6) also has no effect on the trafficking offences criminalised by sections 2 and 4 of the Modern Slavery Act. The only effect the definition has is on which type of trafficking offences are in the director’s remit. Offences involving sexual exploitation, removal of organs, securing services by force and securing services from children and vulnerable persons will be in the director’s remit only if they relate to workers or work seekers provided for in the definition—legal workers. It will still be an offence to traffic an illegal worker for any of those purposes, but we do not think it appropriate for that to be in the director’s remit. Instead, such offences will be dealt with by the police and the National Crime Agency. All modern slavery offences will be in the Independent Anti-slavery Commissioner’s remit.
As I explained before, the definition is not about granting new rights or curtailing offences. It is simply about creating the right remit for the director of labour market enforcement, which I believe the clause does. We are clear that the remit provides the director with the ability to tackle the broad spectrum of labour exploitation, from non-compliance to the most serious harm against workers.
I recall the comment I made earlier about the relationship between the commissioner and director, where the commissioner will effectively have that oversight role. Therefore, we believe that that will lock things together in a clear fashion.
I appreciate that this has drawn us into something more technical than contemplated at first sight by the amendment. I hope, for the sake of clarity, I have spelled out the context in which the definition is used.
Paul Blomfield (Sheffield Central) (Lab)
I am grateful to the Minister for giving way and for the statement he has just shared with us. I am not absorbing its detail as quickly as I would wish; perhaps we can find a way to reflect on it before we reach a final view.
Notwithstanding the points the Minister has made, the concern remains that we are in danger of including only offences committed against workers as defined in the Employment Rights Act 1996, that is, those with a valid contract of employment, so by definition, regular migration status. Although we are trying to achieve the same objective here, the provision might risk leaving the director powerless to investigate trafficking in the very sector of the labour market—illegal working—that the Bill is designed to target.
As the Minister indicated, this is about not conferring new rights on workers, whether in relation to the national minimum wage or whatever, but ensuring that the director can cover all the listed offences, no matter against whom they are committed. As it stands, the clause is potentially in violation of article 3 of the European convention on action against trafficking in human beings, which guarantees the provisions of that convention, irrespective of national origin.
I take it that the purpose of clause 3(4)(e)(i) is to narrow the remit of the director so that he or she covers human trafficking offences only for labour exploitation, as opposed to sexual exploitation or organ harvesting. In that case, subject to reaching agreement on the position in our amendment, the Minister would have our support. The way the clause is currently drafted seems to exclude human trafficking of illegal workers from the remit. Further confusion is created by including human trafficking offences committed against “a person seeking work” in the director’s remit. We just need a bit of time for reflection on that, if the Minister would agree.
The Chair
Before the Minister answers, these are detailed and complex matters, which is why I am allowing the interventions to be relatively lengthy. I would not normally stand for an intervention that long, but I will because it is on a technicality. Do not think, ladies and gentlemen, that you will get away with it later.
James Brokenshire
I am grateful to you, Mr Bone. It is important on these points of detail where issues have been raised that we try to give clarity in Committee. I entirely understand your ruling; as always, the Chair is entirely sensible.
In response to the hon. Gentleman, when he reads the record of what I said—as I know he will as he is assiduous and focused on getting things right—I hope he will see in the explanation the distinction we are drawing between labour market and what is straying beyond labour market issues, and why we have drawn the provision that way.
I apologise for straying slightly, but clause 3(6) links to the amendment and it is appropriate to comment on the point now. This definition of “worker” is used only once in the context of clause 3(4). I will reflect on the drafting of that, since we are clear on the intent and how it works through. The intention is not to imply or impute any limiting of that definition into the other provisions listed in clause 3(4). That is not the intent and hence my comments. Without any commitment, I will certainly look at the wording of that to satisfy myself that it does not give any wrong impression. As I have said, that is not the intention.
Keir Starmer (Holborn and St Pancras) (Lab)
Thank you, Mr Bone, for your indulgence on this. I want to make sure that we have got the point right, because it may be that the area of dispute is considerably reduced. I am grateful to the Minister and the team that has been behind him over the last hour and a half for this clarification, which really helps. As I understand it, the definition of “worker” in clause 3(6) is limited for the purposes of this measure alone and therefore does not affect anything beyond it.
Keir Starmer
That removes one concern, so I am grateful for that clarification.
As far as clause 3(4)(e) is concerned, what is being said is that the offence itself is unaffected by any definition; it only goes to the remit of the director. Again, that removes a concern. Therefore, the only remaining concern is that the director has a remit only over certain types of worker for the offences in clause 3(4)(e), as I understand it. The Minister put forward a reason for that—just to make sure I have understood that. I am not sure how it works in a Committee such as this, but I wonder whether it is possible to have that in some written form over and above what the Minister has said already, which I know will be on the record. It is critical to the international obligations and how other people will look at this and understand it. I am grateful for the clarification.
James Brokenshire
I am grateful for the way in which the hon. and learned Gentleman has raised the matter. If it helps the Committee, I will be happy to write to him to set out what I have said and give that clarity in context. I get the sense that the issue on these provisions is perhaps narrower than it may have appeared at first sight. It relates to the way the provision operates within the Modern Slavery Act itself and the way in which the term “worker” is used within that. It is perhaps not even as complete as he was suggesting in that context. Given this is quite a narrow, technical, but important point, I think it will probably be helpful if I write to him to set that out in further detail. It would be open to him to reflect on that as we look towards Report.
The Chair
Could you write to the Committee, too, and we will circulate it? Then every Member will have it.
James Brokenshire
Of course. It is important that all Committee members see that, so I am happy to undertake to do that.
Various comments were made about the Gangmasters Licensing Authority and prosecutions and investigations. Over time, the GLA has undertaken a number of more complex investigations that focused more effectively on serious and organised crime. I think that reflects a targeting and risk-based enforcement approach by the GLA. Only one GLA-initiated prosecution has ever failed to return a conviction. This year alone, the GLA has undertaken 92 investigations—already more than the 72 undertaken in 2014 and its highest since 2011. During that time, the GLA also secured four prosecutions of unlicensed gangmasters, with the same number last year. That demonstrates that the GLA continues to be capable of targeting rogue gangmasters effectively. That is why we see it as an important component of the director’s new remit to tackle labour exploitation. We are reflecting further in relation to the GLA as part of the consultation, albeit that that strays wider than the group of amendments we are debating today.
On the labour market consultation, I mentioned this morning that we have announced today that the consultation has been extended. It now closes on 7 December, rather than 9 November. As I said, I hope that that will give further opportunity for interested parties to feed in and ensure that this is understood and well-reflected.
Keir Starmer
I am grateful to the Minister for his clarification, not only on the technical point we have just discussed, but more generally on the health and safety and other agencies that are not included in the Bill. I now understand that that is because of the particular function and focus of their activity and, in relation to children, because of the localised knowledge of some authorities that would not otherwise be more generally available.
I am going to withdraw the amendment, so I shall be brief. However, it would be helpful if there could be greater clarity about the sharing of intelligence. Although they are separate functions, there will be a huge overlap between what the health and safety and other agencies are doing, and what the director is trying to pull together in the strategy. The Minister says that there will be a sharing of intelligence, so it would be helpful if we had more clarity about exactly how that will work. I say no more about the strategy in relation to obstacles and resources, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 60, in clause 2, page 2, line 26, at end insert—
‘(3A) The Director must engage with civil society in the development of his or her labour market enforcement strategy.”
To expressly require engagement between civil society and the Director of Labour Market Enforcement in the development of the labour market enforcement strategy.
The amendment would require the director of labour market enforcement to engage with civil society in the development of the labour market enforcement strategy. Page 26 of the Government’s consultation document “Tackling Exploitation in the Labour Market” states that a director:
“will engage with a wide range of stakeholders to gather insights and perspectives on real world practices, improve detection of exploitation and understand external views of the effectiveness of the enforcement landscape. Stakeholders will include Government departments, the IASC, the police, local authorities and other public bodies; organisations representing employers and employees across the economy and in particular sectors of interest; and a range of third sector bodies that engage with vulnerable/exploited groups.”
The amendment would make that explicit in the Bill.
It is important that the voice of organisations working with victims of labour exploitation, trade unions and others are invited to feed their expertise into the director’s work, especially at the strategy stage. The absence of any formal engagement strategy will mean that the director may fail to gain the breadth of front-line experience and expertise required to prepare an evidence-based strategy. This is linked to the resource point that was made earlier. With extremely limited resources, it will be very hard for the director to gather the range of information required to complete a comprehensive labour market assessment, so strong engagement mechanisms will be required to ensure that all expertise is integrated into the strategy. The amendment would strengthen the strategy and formalise the involvement of others who have expertise and experience, as is recognised in the consultation document, and ensure that the strategy is as strong as it needs to be, if the approach is to be the step change that we hope it will be.
Chloe Smith (Norwich North) (Con)
The hon. and learned Gentleman has tabled an extremely interesting amendment. Has he given more thought as to how “civil society” ought to be defined? If he is going to put that phrase into primary legislation, it should be well defined. Of course, he would expect there to be consequences if the director does not do what the Bill says the director must do. Could the hon. and learned Gentleman better define civil society and explain how he would enforce such a thing?
Keir Starmer
I am grateful to the hon. Lady for that intervention. In a sense, the intent is to formalise what was envisaged in the consultation document, which contained a fairly lengthy list—I read it out a moment ago—of stakeholders, including organisations representing employers and employees, and third sector bodies that engage with vulnerable and exploited groups. It might be helpful to go a bit further than that, but the intention was to formalise what was rightly set out in the consultation document—the bodies with which the director should engage—using the words “civil society”. That is what lies behind the amendment.
James Brokenshire
As the hon. and learned Gentleman highlighted, the amendment would require the director of labour market enforcement to engage with civil society in developing the enforcement strategy provided for by the clause. I sympathise with the intention behind the amendment, but it is not necessary or, for the reasons highlighted by my hon. Friend the Member for Norwich North, workable in its current form.
The hon. and learned Gentleman rightly highlighted the consultation that we are undertaking, and he read out the relevant part, about our expectations regarding stakeholder engagement. It is right that the director should speak to a range of people—the widest range of sources—to identify the scale and nature of non-compliance in the labour market. That will include securing information from the information hub we will consider when we reach clause 6, but it will rightly also include engaging non-governmental organisations, bodies representing employers and workers, and other organisations to develop the fullest picture.
The consultation published on 13 October contains more information on how we envisage the relationship working. We will flesh that out further in the light of the views received in response to the consultation. I want to see what the responses look like before we reflect on whether anything further needs to be undertaken.
The director will play a leading role publicly in bringing greater co-ordination and coherence to the enforcement of labour market legislation. The strategy they produce will be public, so I have no difficulty in principle with their consulting civil society in developing it, however that may be framed or defined.
Sometimes, when we go into legislation, we can close things off, rather than opening them up. We need to define things in a very legalistic way, and the issue is how we can properly give effect to the desires in the consultation document. I do not want to risk creating unnecessary scope for legal challenges to be brought against the director or, bearing in mind the legalistic approach we have to take, closing things down.
I do have sympathy with what the hon. and learned Gentleman said, and I will obviously review the responses to the consultation. With that reassurance about how we are approaching the issue, however, I hope he will be minded to withdraw the amendment.
Keir Starmer
I am grateful to the Minister for that reassurance, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Brokenshire
I intend to speak only briefly because we have had quite a wide-ranging discussion of the priorities for enforcement and the outcomes required from the enforcement bodies, which the director will be looking for in the strategy, as well as a number of other themes relating to the nature of the director’s operations, which we touched on in the group of amendments before last. Crucially, the strategy will be evidence-based. It will contain the director’s assessments of non-compliance in the previous year—points were raised about that in previous debates—and predictions for the next two years, based on information drawn from a range of sources, including the three enforcement bodies, other Government bodies and civil society organisations. That will allow the plan for the coming year to be based on where non-compliance is most likely to occur and to cause harm. It will be subject to more public involvement, and the strategy will be published in the way I have outlined. I trust that the Committee will support the clause.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Non-compliance in the labour market etc: interpretation
Question proposed, That the clause stand part of the Bill.
James Brokenshire
We have had a detailed debate on one aspect of the clause, which I will not go back over.
The clause defines certain aspects of the operation of the director, highlighting the three enforcement bodies that fall within their remit. We want that remit—what they consider in their assessment of non-compliance and their strategy for addressing it—to include the work of the three bodies on non-compliance and the offences they enforce, and to capture the most serious end of the exploitation spectrum. We also want the director to inform his or her strategy by consideration of the rate of instances of slavery, servitude, and forced or compulsory labour as defined by the Modern Slavery Act 2015.
We see the director’s role as focused on labour market offences and therefore distinct from the role of the Independent Anti-slavery Commissioner, upon which we have touched in preceding debates. We have therefore limited the remit to where offences relate to work. As I have said, I will write to the Committee on that particular point.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Annual and other reports
Question proposed, That the clause stand part of the Bill.
James Brokenshire
The clause requires the director to produce an annual report at the end of the year. That complements the director’s strategy by requiring them to set out their assessment of how labour market enforcement functions have been carried out during the year and the impact of that activity. It provides accountability for the director and an independent assessment of the enforcement body’s work.
The clause also allows the director to make reports throughout the year if needed. That is an important point. Ministers may wish to ask the director to report on the causes of a new, evolving challenge in fighting labour market exploitation—for example, if the rate of phoenix companies perpetrating exploitation were to grow—or to consider an issue in greater depth than the annual strategy permits, such as the effectiveness of penalties as a deterrent to employers. The reports will add to our understanding of how to tackle exploitation and, ultimately, will make us better equipped to stop it.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Publication of strategy and reports
Question proposed, That the clause stand part of the Bill.
James Brokenshire
The clause requires the Secretary of State to lay before Parliament any strategy or report produced by the director, to provide transparency and accountability for the director’s role and to inform Members of the House. As I have indicated, we want the director to be a visible leading figure. Laying their reports before Parliament in a very public way will inform debate. It will also allow for greater scrutiny and accountability for Ministers on the performance of the three agencies, and on how the director’s function is working and operating, and why it is framed as it is.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Information hub
Keir Starmer
I beg to move amendment 61, in clause 6, page 4, line 31, after “market” insert
“to facilitate the labour market enforcement functions as defined in Section 3 of this Act”.
To prompt debate about the information hub proposed in Clause 6 of the Bill.
We have tabled the amendment to prompt a debate exploring how the information hub will work. We welcome the co-ordination and joined-up thinking that the hub will bring about, we hope, for the director of labour market enforcement, as that will lead to better enforcement. We raise the question against the backdrop of concern expressed earlier about the overlap between immigration enforcement and labour market standards enforcement, which brings the information hub into sharp focus. Page 23 of the consultation document states that the information hub
“will gather available data from the labour market enforcement bodies and other sources, such as Immigration Enforcement, the police, NCA, HSE, local authorities and the voluntary sector”,
which is a wide range of information.
James Brokenshire
As the hon. and learned Gentleman has highlighted, the amendment seeks to clarify the role of the proposed information hub. In our ongoing consultation on tackling labour market exploitation, we set out the intention behind our proposal for an information hub, which is to
“inform and support delivery of the Director’s strategic plan”.
The hon. and learned Gentleman highlighted the relevant section in paragraph 71 of the consultation document. We will continue to reflect on that as we receive submissions in response to the consultation.
I stress that there is already close co-operation between the different labour market enforcement bodies, often in tackling abuses. However, that is sometimes impeded by barriers to sharing data and because the bodies cannot share data. The clause therefore gives the new director the responsibility to lead an information hub, which will form a coherent view of the nature and extent of exploitation and of non-compliance in the labour market.
The director will use the hub to formulate the strategy. The information hub will gather available data from the labour market enforcement bodies and other sources, such as immigration enforcement, the police, the National Crime Agency, the Health and Safety Executive, local authorities and the voluntary sector. The hub will analyse information and develop a much richer picture of the nature, extent and impacts of exploitation in the labour market. It will identify where workers are at risk of abuse and use that information to formulate the enforcement strategy. It will also provide tactical intelligence to the enforcement bodies for use in targeting their enforcement activity. The hub is intended to help strategically and tactically. It will be able to assist in the tasking of operations and to see and understand what practice might inform strategy. It will assist in the promulgation of good practice and in employers fulfilling their duties and responsibilities.
The hon. and learned Gentleman highlighted resourcing. Resources will be provided by the Secretary of State and may include officers from the enforcement agencies, their parent Departments and the wider law enforcement community, so there is that sense of people, as well as of how data are provided and linked. We are giving further consideration to how things would work practically and who would be involved, but in fairness we also want to allow the consultation to inform further development. I am highlighting the nature of what we envisage that the hub will provide—a centre for the sharing of intelligence and data to inform the director and to inform, potentially, the tactical response.
Paul Blomfield
I reassure you, Mr Bone, that this is a brief intervention. I thank you for your indulgence earlier; I thought that that was an important point that needed to be resolved.
On the question of funding, the Minister spoke earlier about the integrity of the budgets of the three separate agencies over which the director of labour market enforcement will have strategic overview. He pointed out that the agencies sit within individual Departments. He is obviously right—we agree—that data sharing and better use of data are critical to the effective development of the role, but that will presumably require, apart from people pooling, some additional resource. Is he saying that that resource will not be drawn from any of the three existing budgets and will, therefore, be found by the Secretary of State as an additional support?
James Brokenshire
Matters of resourcing, and indeed the support that the director will require, are under careful consideration by Ministers. They are working on the recruitment of that individual and how that office will operate and be resourced. I would certainly wish to reflect further on the consultation, given its focus on the role and after hearing views in the debate on this Bill. We have not made final decisions about budgets or staffing—those decisions will be taken once there is agreement on the role and following the spending review. Clearly, the operation hub as part of that activity will be part of the overall examination of what is appropriate.
It is right that the consultation seeks views on the need for powers to share data and intelligence across the enforcement bodies and with other organisations. We are consulting a range of partners within and outside Government to understand what information they hold that might be of use to the director in designing the strategy to tackle performance and non-compliance and building the hub itself. We want to reflect further on how the hub is established, given what I have said about resourcing, the nature of the people who might need to be part of it, who would add the most value, and connections with different agencies. We have set the framework for this and I think that I have clearly set out the intent and what we wish to achieve. In implementation, we will certainly reflect on the further submissions received and the comments that have been made.
Sarah Champion (Rotherham) (Lab)
This really is not meant to be a difficult question. The Minister is putting a lot of weight on the consultation, as we are. Is there not the facility to pause proceedings on the Bill so that the findings of the consultation can actually affect the Bill and we achieve the best legislation, which is what we all want?
James Brokenshire
No, the provisions of clause 6 state that the director must gather, store, process, analyse and disseminate information relating to non-compliance in the labour market. It is important that we provide this statutory mechanism. Equally, in terms of further development and implementation, it is not appropriate for us to legislate while constantly taking into account further submissions. I do not think that that cuts across the need for clause 6 or the manner in which the labour market enforcement director would conduct his duties. I do not see them in any respect as being at odds. I hope that in the light of those points the hon. and learned Gentleman will be minded to withdraw his amendment.
Keir Starmer
I am grateful to the Minister. As I said, the aim of the amendment was to enable us to understand better how the hub would work and be resourced. On that basis, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 ordered to stand part of the Bill.
Clause 7
Restriction on exercising functions in relation to individual cases
Question proposed, That the clause stand part of the Bill.
James Brokenshire
Clause 7 prevents the director getting involved in individual cases. This is to allow the enforcement bodies to preserve their operational independence, a theme that was also highlighted in earlier contributions on the Bill. It is not appropriate for the director to have the power to influence decisions about the enforcement action to be taken against individual businesses. However, the clause allows the director to consider individual cases where these provide useful information in relation to general issues and to inform the director’s strategy or other work. Sometimes the individual parable, or the experiences of an individual can be important to understanding the reality of the abuses that take place. It is in that context that the clause has been introduced; we do not seek to encroach on the operational independence of other agencies in pursuing cases against particular employers or in particular circumstances.
Keir Starmer
I have, as it were, a genuine question; perhaps assurance on this will do the trick. At the moment, clause 7(1) would prevent the director making a recommendation after completion of a case, whatever legal proceedings were contemplated. Therefore, it may be over-narrow. In other words, the director may see a completed individual case and want to make a recommendation about whether it was good, bad or indifferent.
I can see the point in a provision that prevents interference in ongoing proceedings or the carrying out of functions by other bodies. A simple assurance or explanation may help, but at the moment the clause may be read as preventing a recommendation after the event about a particularly good way of doing something or a problem that needed to be avoided in future.
James Brokenshire
It will be open to the director, in looking at individual cases, to make broader recommendations on strategy or the manner in which agencies conduct their duties. We have to be careful, which is why we have structured the director role in this way, that there is operational independence for each of the agencies to pursue a case using their expertise and their chosen manner.
The position is more strategic. The director should not be drawn into how an agency should or should not have acted in a specific case. It is still open to the director to look at individual circumstances and cases, hence my earlier comment, and to make recommendations for the future. I do not think that that strays in relation to the language that we have here, into making a recommendation in an individual case; that would be to second guess the operational thinking of the different agencies. That is the intent behind the drafting, and I hope that is helpful.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Offence of illegal working
Keir Starmer
I beg to move amendment 68, in clause 8, page 5, line 6, after “if”, insert “without reasonable excuse”
To provide for a defence against the offence of illegal working.
We have reached an area in the Bill on which there is greater disagreement. We welcome the provisions that bear down on employers who exploit employees. That is in keeping with our welcoming of the director of labour market enforcement. However, we have considerable difficulty with the notion of creating an offence that can be committed by employees, which is strict and without any defences.
I begin by drawing the Committee’s attention to the baseline evidence from the Migration Advisory Committee 2014 report, which makes a number of comments pertinent to clause 8. It says:
“The combination of non-compliance and insufficient enforcement can lead to instances of severe exploitation, particularly of vulnerable groups such as migrants.”
That same 2014 report records the Committee’s research on labour market exploitation of migrant workers in particular:
“We were struck on our visits around the country by the amount of concern that was expressed by virtually everyone we spoke to about the exploitation of migrants in low-skilled jobs…The TUC told us that migrants, particularly from lower income EU accession countries, are often likely to take up low-skilled work, partly due to the nature of the labour market but also due to the labour market profile of such migrants.”
A little later the report says:
“During our visits to places which had experienced relatively high levels of migrants the point that migrant workers are more likely to be exploited than resident workers as they are not aware of their rights and are afraid they may be sacked/evicted/deported if they complain was raised on a number of occasions.”
The Committee cites its meeting with the Equality and Human Rights Commission, which
“expressed the view that migrant workers, and especially agency workers, were more likely than resident workers to put up with poor working conditions and bad treatment by employers because they were not aware of their rights, they do not know who to complain to and are scared that if they do complain they could lose their job. The EHRC said it is often better for a migrant to be in the UK with a job, albeit a low-paid one, than in their home country without a job.”
James Brokenshire
To understand the hon. and learned Gentleman’s logic and thinking, is he arguing that some offences that already exist for people who have entered the country illegally should be done away with? If I follow his line of argument, he is saying that any criminal offence is problematic and should not be there.
Keir Starmer
I am grateful to the Minister for that intervention. No, I am not going that far. Those offences are on the statute book. They are much wider than offences in the working environment. I am starting from the proposition that this group of people has been recognised as the most vulnerable and exploited in the workplace, and the least likely to be able to come forward and explain what has happened to them.
The Minister raises a different point, which is that it is often thought—I certainly think this—that new criminal offences should not be introduced in legislation unless there is a clear need for them and there is a gap in the current enforcement mechanisms that the new offence is intended to fill. For many years, there was criticism of Governments for simply introducing criminal offences as a response to a non-problem when there was no evidence of the need for the offence. This is an example of that. As we heard in evidence last week, the problem is the low likelihood of intervention, inspection or any enforcement action. There is no evidence that this offence, for employees, is needed. There are existing offences with which they can be charged. In those circumstances, the clause fails the fundamental non-immigration test that we should not be legislating to introduce offences when there is no evidence that the offence is needed because there has never been any evidence of a case where action could not be taken because the offence did not exist.
James Brokenshire
Following what the hon. and learned Gentleman is saying about offences, it seems that his principal point is about those who are vulnerable coming forward. That takes us into broader issues on the national referral mechanism and some of the steps we have taken through the Modern Slavery Act to shine a light. Our focus needs to be on those broader issues—if I have followed the line of his argument—on helping people to come forward. This offence would not have the impact that he is suggesting, because of all the other inhibitions about those who may be enslaving people and putting them in fear. Rather, we need to tackle the broader themes and help people to come forward, which is what the Government and Members across the House have rightly focused on.
Keir Starmer
I am grateful to the Minister. Of course, any measures to give people the confidence to come forward should be pursued. There would be general agreement about that—in particular, in relation to some of the offences we have been discussing. However, adding an offence when there is no evidence that it is needed simply makes a bad situation worse. If the Minister has evidence that anybody at all has ever said, “The problem here is that we haven’t got an offence for the employees”, I have not seen it and it has not been set out in any great detail.
Paul Blomfield
Does my hon. and learned Friend accept that the nub of the Government’s argument in relation to this offence, as we understand it, is to reduce pull factors—to create a disincentive for those coming to this country to enter into illegal work? Is he concerned, as I am, that the Government seem to have no evidence that it will work? We have heard substantial evidence that this may be counterproductive, but there is no evidence from the Government that it will work as a deterrent and undermine pull factors.
Keir Starmer
I agree with my hon. Friend and am grateful for his intervention. What is important is that the objective behind the Bill is properly pursued. There is a real risk that introducing an offence against the employee will be counterproductive if it drives underground the very group of people who are the most vulnerable when there is little or no evidence that the offence is needed.
I want to go a little further than that, because this is an offence without any mental element in the Bill. It is strict in the sense that absent the right status, the offence is made out, and then it is an offence without a defence, which is an unusual combination in criminal law. For example, some people will be here working in the belief that they have the right status because they are sponsored by the employer or somebody else. However, unbeknown to them, they may not have status because their employer has not correctly completed all the necessary arrangements for sponsorship. They fall into a category of individuals who are here without the required status, but without any knowledge of that or any intention to be in that position. Given the inflexibility of the offence, they would be immediately criminalised without even the opportunity of raising a defence of reasonable excuse. Their defence would be, “I am working. I had understood that my employer or somebody else had completed all the necessary forms and legalities. It now transpires they haven’t, but I had absolutely no reason to think that to be the case.” At the very least, if the clause is to stand, such an offence—there could be many other examples—ought to have a reasonable excuse defence, and that argument lies behind the amendment.
Sarah Champion
I speak in support of my hon. and learned Friend. It is fundamentally wrong to make the employee a criminal—it makes no sense. I have not been convinced by any of the witnesses we have heard or any of the evidence that I have seen that this is the right way to achieve the Government’s objectives.
My main concern is that the measure will compound exploitation. I would like to quote Caroline Robinson, one of our witnesses, from FLEX—Focus on Labour Exploitation—who put the three issues more succinctly than I can. She said:
“First, we think that people will be fearful of coming forward to be referred into the UK national referral mechanism as victims of trafficking…The second reason is that we know that traffickers use the threat of deportation, removal and reporting to immigration officials in order to abuse and exploit workers…The third reason is something that was raised a lot on Second Reading, namely the criminalisation of trafficked persons. Although the Home Secretary set out the statutory defence, which is in the Modern Slavery Act 2015, it is quite narrow in its terms. The schedules exclude a number of offences for the victims of trafficking, such as aggravated criminal damage, but if I was to leave the building in which I was held I would no longer be covered by the statutory defence in the Modern Slavery Act.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 24-25, Q50.]
My biggest concern is that the measure will stop whistleblowers. How will we identify bad employers if the very people who can give us that evidence are too scared to come forward for fear of being criminalised? It is not only bad employers that could be overlooked, but health and safety risks that could impact on a number of employees.
I am pleased about the Modern Slavery Act, which is a good and strong piece of legislation. I am also very pleased that the Minister has made it clear that people are protected under the Act if they are trafficked into the country. If they are used as a slave, they are exploited. However, I would like clarification from the Minister about how someone will be dealt with if their status shifts. For example, if someone was trafficked into the country and forced into slavery, but then managed to escape and became an illegal worker, would they be protected because at the start of their journey they were protected under the Modern Slavery Act, meaning that they would be treated as a victim, or would they be criminalised because, at the end of their journey, they were an illegal worker? What happens the opposite way round? If a person comes to the UK as an undocumented worker and is then exploited by their employer, at what point would they be protected if, having come to the country illegally as a worker, they were then used as a slave?
Chloe Smith
The hon. Lady and I both served on the Committee that considered the Bill that became the Modern Slavery Act. I looked at the list of exemptions in that Act while we heard the piece of evidence that she quoted. It is worth reminding the Committee that there is a set of defences in the Act, and to that set of defences, there is a set of exemptions. In that set of exemptions—this is rather like a Russian doll, but bear with me—there is an exemption on this point of criminal damage. In other words, an individual might be at risk of being accused of criminal damage only if they had behaved recklessly and endangered somebody’s life. That is in the Modern Slavery Act 2015, which the hon. Lady and I debated. Has she reflected on that before trying to advance this line of argument that the provision is all one thing, rather than being nuanced?
Sarah Champion
I thank the hon. Lady for her intervention; she is always fantastic on detail. My answer is yes, but I am not a lawyer, so I would like the Minister to lay out, in language that a former charity worker can understand, the protections for people who are exploited. To be honest, I am unclear. A number of our witnesses said they were unclear, although I recall that clarification was sought on this point.
I will give the hypothetical example of a woman who paid a criminal gang for her passage here and came expecting a job. She was given a job, but then told that she had to pay additional costs, which took away all of her income, effectively making her a slave without legal protection under our current system. She could be beholden to that employer for an indefinite period and be too terrified to speak out, because I can guarantee that the employer would use the fact that she would be reported and become a criminal if she did.
I do not see how clause 8 helps that person in any way. I would like clarification from the Minister about how that person could have the confidence to come forward when their employer is telling them that they will be criminalised if they do so. Surely the best approach is to stick with clause 9, under which the employer becomes liable for the actions and will be criminalised for those actions.
We know where the employers are. They will be registered at Companies House and they will be filing their taxes. It will be a lot easier to follow that trail to get the prosecutions, particularly with limited resources, rather than spending an indefinite period trying to track down illegal workers when we do not know who they are, where they are working or their status, just on the off chance that we might catch and criminalise them so that we send out the right message. Surely it is better to go for the employers.
Anne McLaughlin (Glasgow North East) (SNP)
I wonder whether there is a misunderstanding, or at least an underestimation, of how vulnerable some of these workers are. Does the Minister realise the extent of their vulnerability? If he does, will he change his mind about criminalising those who work illegally?
I will cite an example of not a young vulnerable woman trafficked here as a sex slave, but someone whom hon. Members might use as an example of why we need to criminalise. On my travels a few years ago, I spent time with a man called Mehdi, who was fit and healthy in his mid-thirties. He was married to Rezi, who was pregnant with their first child. They sought asylum in the UK—I met him some years after all this happened—and ended up in Glasgow where, despite their best efforts, they were refused asylum because they could not prove they were in danger. She had a miscarriage and they were made destitute. They were told they would be deported and they embarked on a terrible downward spiral. They removed themselves from all support mechanisms, so frightened were they of being found and deported to certain danger, but they could not survive here, so Mehdi found a job. He knew he was not allowed to do that, as did his employers, who took advantage of that knowledge and made him work extremely long hours for £3 an hour.
Mehdi was abused, exploited and occasionally beaten. He was worked until he would regularly collapse with exhaustion, but he had no choice. Some Government Members might argue that he did have a choice because he could have gone back to his home country. However, he was not working not just to feed himself and get by in life in Glasgow, but to save money to buy false passports so that the couple could get out of the UK and away from the danger of deportation to his home country. Who among us would not do whatever it took to protect our loved ones and our own lives if we had to?
If the Bill had been in force when Mehdi was doing all that, what might the outcome have been for this loving and protective husband? This kindly but damaged man could very well have ended up in jail, followed by being deported to the country that he was so afraid of returning to. For him, the worst part would have been leaving his wife—
The Chair
Before I ask Anne McLaughlin to continue her speech, I thought it might be advisable to take discussion of the clause with the amendment and not have a stand part debate. If anyone wants to make a contribution on the clause, please feel free to do so now.
Anne McLaughlin
It has come to my attention that some Conservative Members did not listen to absolutely every word, so I wondered whether they would like me to recap from the start, or just to summarise where I was.
I was speaking about someone I met on my travels who had sought asylum in the UK and ended up in Glasgow. Mehdi, with his wife Rezi, were refused asylum, were destitute and were threatened with deportation. They were terrified of being returned to their country of origin because of what would happen to them. Mehdi ended up working illegally for £3 an hour, being completely exploited, and he did that because he did not have a choice. The point I was making was that he did not do that just to get by and to be able to buy food and clothes. He was doing it because they were saving up to be smuggled out of the country, not back to their country of origin, but to another country that they would enter illegally because they were so afraid of being sent back to their home country.
I was making the point that if this Bill had been in place then, Mehdi would have faced the additional risk of going to prison. I spent some time with him and he was most certainly not someone who—
Kate Hollern (Blackburn) (Lab)
What situation would the family have been in had this legislation been in place then?
Anne McLaughlin
It would depend on whether he had been caught working. He would be prosecuted and could have been imprisoned. Thankfully for Mehdi and Rezi, that did not happen, but there are many other people like them. She was extremely vulnerable. Had the Bill been around and they had been imprisoned, she would have been left destitute, facing deportation without him by her side. With him by her side, she was terrified enough. He would have gone to prison and then, undoubtedly, he would have been deported separately from her.
A fit, healthy married man in his 30s who is working illegally is not someone we typically highlight when trying to attract compassion from those who wish to control illegal working and are also concerned about vulnerable people, but who among us could not feel compassion for Mehdi and Rezi? We should remember that even those who are not the archetypal exploitable worker often have truly heart-breaking stories and are often left with no choices. The Bill would make it even riskier for them. If it is riskier, they will become ever more dependent on their abusive, exploitative employers. They deserve our compassion and support to get out of those situations. They do not deserve the threat of a prison sentence hanging over them.
Paul Blomfield
On amendment 68, I welcome the observations the Minister made in his latter comments. The Bill creates an unreasonable anomaly between the caveats it provides for employers and the absence of any for employees. As I understand it, under clause 9, employers are only guilty of the offence of employing an illegal worker if they do so “knowing” or
“having reasonable cause to believe”
that the person is an illegal worker.
We are saying to employers that there is a test of reasonableness before they are criminalised for the act of wrongful employment. The problem with clause 8 is that there is no such test of reasonableness. With the amendment, we seek to bring some equivalence between the way we approach employers and the way we approach employees by enabling them to be able to demonstrate “reasonable excuse” for the predicament in which they find themselves. Although I have reservations about the entire clause, were the Government successful in retaining it, I hope they would look generously on the amendment, which could provide that equivalence.
I have concerns about clause 8 more generally, as it criminalises the act of illegal working. I take the point made by my hon. and learned Friend the shadow Minister that we might disagree on this matter across the House. However, I do not think we need to. A number of us have said that we are at one on the objectives of the Bill, as we were with the Modern Slavery Act. In seeking to ensure that clause 8 does not stand part of the Bill, we are at one with the Government’s policy objectives of achieving effective labour market enforcement and, indeed, of combating modern slavery. Less than two years ago, in November 2013, the Home Secretary made combating modern slavery a priority. I do not have the experience that Conservative Members and, indeed, my hon. Friend the Member for Rotherham have of serving on that Bill Committee but I commend those who were involved on that legislation, just as I commend the Home Secretary on the priority that she placed on combating modern slavery. That aim won wide support, found expression in the Modern Slavery Act, and took us in the right direction. The problem with clause 8 of this Bill is that it risks undoing some of the good of the Modern Slavery Act.
I am sure that the Government do not intend to undermine their own legislation so soon after it has become law so I hope that the Minister will give serious regard to the points that we are raising in suggesting that clause 8 should not stand part of the Bill. I hope he recognises that if it does, slavery is more likely to thrive. I notice that he is shaking his head and I look forward to his response.
I put this to the Minister: what do we know? What is all the evidence clear about? I am happy for him to intervene if he disagrees, but all the evidence is clear on one thing. The more vulnerable workers are, the stronger the hand of the gangmasters or the unscrupulous employers who seek to exploit them. I am sure that the Minister agrees, as I notice he does not wish to intervene. Vulnerability plays into the hands of those who seek to exploit, such as unscrupulous employers. The more vulnerable workers feel, the less likely they are to come forward to report their abusers. Clause 8 increases that vulnerability and strengthens the hands of the gangmasters. I note that the Minister is again shaking his head. I would be happy for him to intervene if he can provide any evidence to suggest that that is not the case. When we took evidence from witnesses, we heard from many experts who said that this was the case; none said that it was not.
The clause, by threatening exploited workers with 12 months in prison if they are deemed to have committed the offence of illegal working, gives another crucial card to the suit of cards that gangmasters can play. It does not only affect those who have committed the offence of illegal working; it changes the psychology and relationship even between the employer and the employees who have not committed an offence. According to the National Crime Agency, in cases that it has taken up, 78% of those who have been exploited for their labour in the UK actually have the right to work here as EEA nationals. Rights awareness among those workers is low and their options are limited, which allows unscrupulous employers to hold the threat of removal over them.
James Brokenshire
I have listened carefully to the hon. Gentleman. In the example he just gave, he said that the individuals concerned had the right to work. How would they be caught under the clause if they would not be working illegally?
Paul Blomfield
I thank the Minister for that intervention because it gives me the opportunity to explain more clearly; I apologise if I did not do so before. The point I am making is that clause 8 affects those who do not have the right to work, because it criminalises them and makes it less likely that they will whistleblow and report their employers. Rights awareness is low, even among those who have the right to work here. We have seen various cases where exploitative practices have been blown apart. Part of the intimidation and the way in which employers were enforcing compliance was by cloaking a series of threats that did not apply in those cases. That is my point.
James Brokenshire
The hon. Gentleman makes an interesting point, but he seems to be articulating some of the broader issues that we know are redolent around slavery and trafficking, on debt bondage, housing, and physical enslavement. It is those threats and issues and the threat of deportation that might be more redolent in the examples that he has given, rather than law enforcement.
Paul Blomfield
I take the Minister’s point, but why give those who exploit yet another card to play? The threat of 12 months’ imprisonment and criminalisation is the card that will be exercised both in relation to those who have no right to be here, or to be working, and in relation to those who do.
Sarah Champion
One of our witnesses, Caroline Robinson from Focus on Labour Exploitation, said:
“We know that 78% of those exploited for their labour are, in fact, documented in the UK.”––[Official Report, Immigration Public Bill Committee, 20 October; c. 28, Q59.]
Paul Blomfield
My hon. Friend makes exactly the point that I was seeking to make. Even where people have rights to work, the lack of rights awareness and the intimidatory relationship between exploiter and exploited make this another card to play. I see the Minister is still shaking his head. Even if we were to restrict the measure simply to those who did not have the right to work, we are still giving the exploiter another card to intimidate and therefore make it less likely that people would be willing to whistleblow. I am happy for the Minister to intervene on me. Perhaps he could illustrate the evidence that suggests the clause will be of assistance—not the intuition, the belief, the view, but the evidence.
James Brokenshire
The hon. Gentleman is encouraging me to intervene. I will take him through the logic as to why we think the clause is necessary. The interesting and thoughtful way in which he always presents his case identifies broader issues, and I do not see this offence changing the situation in the way that he says. The cases that he has enunciated and the evidence that the hon. Member for Rotherham highlighted show that in the majority of cases people did have rights and are not touched by the offence. The area is complex, and I know that the hon. Gentleman understands this. It is about the broader issues and themes that I touched on earlier.
The Chair
Order. Mr Blomfield, I have used that trick a lot of times, but, given that the Minister is going to speak and that some of the responses will have to be lengthy, the matter is not right for an intervention, so it might be better if the Minister deals with some of the issues in his remarks later.
Paul Blomfield
I am pleased to know that I am following in sound footsteps, Chair, but I will take your advice.
Anne McLaughlin
Is the hon. Gentleman aware that it is not only the exploitative employer who can continue to exploit the person who is working illegally? Undocumented workers face threats from all sorts of people. I spoke to somebody who had worked illegally for different reasons to the previous person I talked about. They were not only ruthlessly exploited by the employer, but were blackmailed by colleagues who themselves were working legally, but were aware or at least suspected that this person was working illegally. He faced blackmail, threats and intimidation. Although he said, “Actually, you don’t know what my status is”, the point that the blackmailers made was, “Are you willing to take that risk?” Of course, such workers are not. The exploitation comes from all around, not just from one employer.
Paul Blomfield
The hon. Lady adds another dimension to my argument that the clause makes those who are already in a precarious situation more vulnerable and open to exploitation. In an earlier intervention, my hon. Friend the Member for Rotherham mentioned the evidence given by Caroline Robinson from Focus on Labour Exploitation, which works directly with victims of trafficking for labour exploitation and of which I am the trustee along with some Members from other parties.
FLEX has identified three drivers of labour exploitation. The first is the feeling among migrant workers that they deserve less or have fewer rights than UK citizens. The second is a lack of checks on labour standards in the workplace, including everything from health and safety to minimum wage enforcement. The third is a fear of officials, especially of immigration officials. The Bill makes each of those drivers worse, and clause 8 has a particular effect on the first and third factors.
First, on the rights of migrant workers, the clause puts the focus on immigration status as a condition of asserting labour rights. By criminalising the exploited worker, whether they are committing the offence of illegal working or not, they can be treated and threatened by a gangmaster as if they are. On the second driver, we have talked at length about a number of aspects of labour market enforcement. The Bill seems to reflect the Government’s desire to move further towards an intelligence-based approach to enforcement. Essential to that intelligence is whistleblowing. We need to ensure that we do nothing in the Bill to discourage exploited workers from coming forward and thereby give gangmasters another card to play. Sadly, the clause risks doing exactly that.
On the third driver of labour exploitation, the problem that we identified earlier—the overlap between labour market enforcement and immigration enforcement—is at the heart of the Bill. The clause gives undocumented workers another reason to be worried. The consequence is that labour exploitation is not rooted out and continues to be a pull factor for migration, which is against the Government’s policy objectives.
Mr Bone, I will take your advice. I will not ask the Minister to intervene, but I press him to share evidence from anywhere in the world that shows that the approach of criminalising workers, unlike many other aspects of the Bill with which we agree, assists in the policy objective that he outlined and we share.
Sarah Champion
Will my hon. Friend comment on something else that Caroline Robinson said, which gets to the nub of his point that clause 8 does not meet the Government’s objective? She said:
“What we think will prevent people from working here undocumented is to reduce the demand for undocumented workers. To do that, we require enforcement of labour standards across the board. To be clear, the demand for undocumented workers is not because employers prefer undocumented over documented workers; it is because they cannot pay documented workers below minimum wage as easily as they can undocumented workers.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 28, Q59.]
Paul Blomfield
My hon. Friend will not be surprised to know that I agree. The quotation adds very much to the case that I seek to make; perhaps it makes the point more clearly than I was doing.
I want to move on and talk about international examples. I have challenged the Minister and I am confident that he will come back with examples later. I have challenged him to give comparisons, but let me share one that was shared with me yesterday when I met representatives of the Council of Europe convention on action against trafficking in human beings—GRETA. They shared with me the example of Italy. They had done some work and talked about the amendments made to the Italian Consolidated Immigration Act in 2002, the so-called Bossi Fini law, which was aimed at regulating migrant worker flows by introducing a system of entry quotas, and which was supplemented in 2009 by the criminalisation of irregular entry and stay. Their concern was that the requirements of a formal employment contract in order to obtain a residence permit exposed migrant workers who were already at risk of labour exploitation because of their irregular migration status. They were worried that irregular migrants would be afraid to report cases of exploitation to the authorities because they were concerned about being detained and expelled. The United Nations special rapporteur on trafficking in persons, especially in women and children, reported on the negative consequences of the criminalisation of irregular migration for victims of trafficking.
In response to points made to them by GRETA, the Italian authorities indicated that there were 14 convictions for trafficking in human beings in 2010 and nine in 2011. GRETA was concerned that those conviction rates were very low and urged the Italian authorities to strengthen their efforts to ensure that crimes related to trafficking were proactively investigated and prosecuted promptly and effectively. They asked the Italian authorities to study the implications of their immigration legislation, particularly the offence of illegal entry and stay. As a consequence, in January 2014, the Italian Senate approved Government measures to decriminalise those aspects of illegal immigration. They had recognised that the approach of criminalisation was not only unhelpful and policy-neutral but actively counterproductive.
James Brokenshire
I am interested in what the hon. Gentleman is saying, but does he accept that the approach of immigration enforcement in relation to those who have entered the country illegally and committed an offence is to deport rather than prosecute?
Paul Blomfield
I accept that it is to deport. Clearly, those who are here without rights, having exercised due process to establish whether they have a right to remain, should be deported. There is no disagreement on that, but does the provision of criminalising illegal working in clause 8 assist in that process or not? All the evidence seems to suggest that it will drive people underground, out of sight and make them less likely to whistleblow. That will frustrate the aspirations of the Government, with which we agree, to tackle both illegal working and its exploitation.
James Brokenshire
We have had a wide-ranging debate on clause 8 and the amendment tabled by the hon. and learned Member for Holborn and St Pancras. It is important to take a step back. In all the contributions to date, the focus has been on the victims of trafficking and the effects of it; I will come on to those issues in more detail. There has not been much focus on the impact of illegal working on the rest of the population. For example, an illegal worker in effect takes a job from someone who is here legally—people born in this country, or those who have gone through all the right routes to come to this country.
Sarah Champion
I could have used exactly that point in my argument, because it is the employer who makes the decision whether to employ the legal person or the illegal person. Why are we going after the illegal people when already, under section 24 of the Immigration Act 2014, we have the power to deport them? The Minister has cited other Acts under which we can deport. Why are we not punishing the employer who is wilfully employing illegal workers?
James Brokenshire
The Bill is doing both. It is taking steps in relation to employers and to employees, including with the overall enforcement approach. That is why I put things in that broader context. I will respond later to some of the specific questions on purpose, intent and how things fit in the overall deportation strategy. It is important to contextualise that so that the Committee understands the intent of the Government.
Anne McLaughlin
The argument I was making was not that we should allow people who are not permitted to work in this country to work in this country; my point was that those people are often the most vulnerable. A man who is fit and healthy and in his mid-30s might not appear to be that vulnerable on the face of it, but imprisoning him would not make him less likely to commit the offence—he was left with no choice—nor would it change his situation. My argument was not that it is in some way acceptable for people to lose their jobs because others are working illegally; I was arguing that the imprisonment aspect, the criminalisation, is not necessary and will make no difference.
James Brokenshire
I hear the point that the hon. Lady is making, although I do not want to get into the specifics of the case, as I am not entirely familiar with it, so it would not be appropriate or fair, for her or myself, for me to do so. In many cases, however, there is that choice of leaving the country. She might want to make a broader point about assisted voluntary returns and other means of appropriate removal, but that is the context for my arguments about the purpose of the clause and how it fits with other measures in the Bill to support the approach of discouraging people from coming to this country and to deal with some of the broader impacts of illegal working.
James Brokenshire
I will give way to the hon. and learned Gentleman, but I hope that the Committee will then allow me to articulate some of the broader issues that will help our debate.
Keir Starmer
I am grateful. The Minister talks about illegal wage undercutting. Professor Metcalf rightly said in his evidence that if more rogue employers were brought to task for exploitation, it would reduce illegal wage undercutting and unlock wealth creation by legitimate business by releasing them from unfair competition from exploitative rivals. We need to bring rogue employers to book for all the reasons that the Minister has set out, but our central point is that if we are to achieve that, it will be important that those who are being exploited feel able to come forward.
The evidence to date is that even for documented individuals, there is a huge problem, which I think is generally accepted. The next proposition—it will be interesting to know whether the Minister disagrees with the proposition—is that while we have a bad situation for documented workers, it is likely to be far worse for undocumented workers. What assurance can the Minister give that the accepted bad situation will not be made worse by these provisions and that, in the end, the goal of bringing more rogue employers to book will not be lost?
James Brokenshire
The hon. and learned Gentleman, perhaps understandably, given his perspective, is fastening on to this issue without looking at the broader context that I outlined. We can have a broader discussion about the national referral mechanism—we had such debates during our consideration of the Modern Slavery Act 2015—and elements that inhibit people from coming forward. More direct control is likely, as the hon. Member for Sheffield Central highlighted, because this is a complex arena. A debt bonder may wish to impose a number of different conditions and restrictions may be put in place. That goes to other issues such as confinement and the challenge of removal, rather than the legal issues that we are highlighting today.
I want to develop a point that I started in interventions on the hon. Member for Sheffield Central. Home Office immigration enforcement’s normal response, when it encounters illegal workers with no permission to be here, is to try to remove them from the UK as quickly as possible, which has to be the right approach. Action is also taken against non-compliant employers in the form of civil penalties or prosecution. We will come on to that in the next clause, although a strict liability approach is taken against employers under the civil penalty arrangements, so the prosecution element is added to that. That remains the right approach.
James Brokenshire
If I may, I would like to make a bit of progress.
We are also keen to take action in the Bill to address a genuine gap in the law that currently impedes the Home Office’s ability to address the economic incentives behind illegal work and impairs our clear message that those engaging in such activity should not profit from it. It is already a criminal offence to enter or remain in the UK illegally, as I have highlighted. However, migrants who require permission to be in the UK but do not have it, such as overstayers, may not be committing a separate offence of working illegally if they engage in paid work, including employment and self-employment. That is the gap for overstayers who go on to work. In other words, they have not come into the country illegally, so the courts do not always regard earnings derived from working illegally as the proceeds of crime when considering cash seizure or asset confiscation cases. The new offence tackles for the first time the difficult issue of those in self-employed occupations.
What is important in the context of the Bill is how the offence links to economic incentives and proceeds of crime legislation. As hon. Members will see, there is a specific reference to the Proceeds of Crime Act 2002 in the clause. I would articulate this as focusing on some of the economic benefits that might be derived. We think that there are benefits in how this is framed to assist immigration enforcement officers in their work, because they have identified this specific element in the course of their activities when seeking the removal of people from this country.
Paul Blomfield
It would be helpful if the Minister could tell us how many people fall into the category of those who are working illegally because they are overstayers. I anticipate that the number will be much smaller than the general figures. This is about balancing the impact on one group against the negative impact on another. Will he provide those numbers, both specifically and as a proportion of overall illegal workers?
James Brokenshire
The hon. Gentleman makes an interesting point, but as he will well know, one challenge that we have faced is understanding overstaying, which was why we introduced exit checks at the start of this year to identify more clearly patterns of behaviour, sectors and other elements that are relevant to those who are not overstaying the leave granted to this country. He asks me for information that is not currently held, and it is equally difficult to estimate the size of the population who are working illegally. I am sure that the labour market enforcement director will consider that when he examines the size of the problem in his reports to Ministers, but that does not undercut what immigration enforcement representatives say to me about the gap in the existing legal framework.
We need to ensure that there is an overarching approach on criminal law and, as I have said, there is a criminal aspect of people entering the country illegally. We are creating an additional offence for those who are overstaying, who are not covered by the existing criminal law. That means that they are not subject to proceeds of crime legislation, which is having the negative impact about which we have heard.
I share the concerns of the hon. and learned Member for Holborn and St Pancras about ensuring that an offence is used when circumstances suggest that it is the right approach. However, it is important to remember that individuals with an irregular immigration status will have committed a criminal offence under existing legislation by coming into the UK in the manner that I have described, regardless of whether they are working. Therefore, I do not accept arguments made about how the criminal law, or an extension to it in the form of the offence we are discussing, will make the situation more difficult, as has been suggested. However, there are some important points to which I want to respond, including what the hon. Member for Rotherham said about slavery and existing offences under the Modern Slavery Act 2015. She served on the Modern Slavery Public Bill Committee, so she understands these issues.
James Brokenshire
If I may finish this point, I will be happy to give way to the hon. and learned Gentleman.
The provisions of the Modern Slavery Act aim to encourage victims of modern slavery to come forward and give evidence, and to provide them with the confidence to do so, without fear of being inappropriately prosecuted or convicted. However, section 45 was carefully drawn to avoid inadvertently creating a loophole through which serious criminals could avoid justice, such as if they had been a trafficking victim at one point, but eventually became a member of an organised crime group and, motivated by profit, victimised others. There is always a balance to be struck, as was the case when framing the defence under section 45, and that balance applies to the defences that will operate under the Bill. This issue needs to be seen in that context.
As the hon. Member for Rotherham will understand—I know the hon. and learned Member for Holborn and St Pancras understands this, given his experience—the statutory defence acts as an additional protection on top of guidance from the Director of Public Prosecutions on whether prosecution is in the public interest. It is also in a court’s powers to stop an inappropriate prosecution for abuse of process. Although we need to think about the relevant section of the Modern Slavery Act, it is also important to bear in mind the DPP’s guidance. The normal decisions that the Crown Prosecution Service takes are equally relevant to these issues.
I said that I would give way to the hon. Member for Blackburn, so I will; I apologise for not doing so sooner.
Kate Hollern
On economic stability and the creation of unfair competition through what is, to my mind, exploitation, I find it difficult to understand why the penalty for an employee is much harder than that for an employer. We would presume that an employer would be more aware of rules and regulations in this country, yet they have a get out: they did not know or have “reasonable cause to believe”. The balance needs to be shifted and more onus should be put on the employer who is exploiting people to the detriment of other businesses within the same field. At the same time, we are criminalising people who, whether here illegally or because of a process of right to stay, will probably be unaware of their situation, and certainly—
The Chair
Order. I apologise for interrupting the hon. Lady, but either I am getting more tired or the interventions are getting longer—perhaps it is a combination of the two. She is making a perfectly fair point, but it might be better if she tries to catch my eye later as her intervention was veering towards a speech.
James Brokenshire
As I have said, the primary response will be to seek to remove people from the UK. We judge that the offence will be helpful in particularly serious cases in which there may be aspects of culpability or links to organised crime, so it gives us an important additional mechanism. Given that the hon. Lady wants additional sanctions against and more punishment of employers, I hope she will welcome clause 9(2), which provides for an increase in the punishment for employers.
Keir Starmer
I have two quick points. As I understand it, the Minister is saying that for the vast majority of cases in which other offences have been committed, the policy will remain as deportation rather than prosecution—that is a pretty long-standing position. For that class of individuals, the Bill therefore adds absolutely nothing, except to the unlikelihood of people coming forward. The new offence is in fact designed to tackle a smaller number of individuals—the numbers are unknown—who might not fit within that category of “deport not prosecute”, so as to get to any proceeds. The new offence is being introduced to crack that particular nut. My second point—
The Chair
Order. As we are trying to do this properly through interventions, why not sit down for a minute and then you can intervene again with your second point?
James Brokenshire
To respond to the point on proceeds of crime, the Government are committed to taking robust action to prevent illegal working. In our judgment, the current situation encourages illegal migrants to come to the UK, and those who are already here to overstay their leave and remain in the UK. We are clear that working without permission should be an offence that has consequences for an immigrant’s earnings. It is unfair if firms are undercutting their competitors through exploitation and the use of illegal labour. The Government will have the ability to seize cash sums and, as the hon. and learned Gentleman will know from other provisions of the Bill, that may have implications for bank accounts. The way in which powers could be used operationally in various contexts is a thread that goes through the Bill. Some of the unlawful proceeds that are being derived can be actioned through various mechanisms in the Bill.
It is important that we are closing a gap and sending out a clear message on the implications of illegal working. I underline the core element behind the Government’s focus, which is to deport and remove those with no entitlement to be here.
Keir Starmer
I want to move on to the question of defences and the guidance that the Director of Public Prosecutions may issue. I am not concerned about the defence under the Modern Slavery Act—we had that exchange earlier and I understand the position—but the wider point of when that defence is unavailable. There is no defence of reasonable excuse in the Bill, so the individual in the example I cited earlier, who may not know that their leave to remain has ceased to have effect but therefore becomes a criminal, has no escape route. Does the Minister accept that in such circumstances it is not right to leave it to the DPP’s discretion? In other words, should not the DPP’s discretion be exercised according to the known offence and known defences? If there is a case for a defence, that ought to be in the Bill, rather than left to the discretion of the DPP. That is not to suggest that discretion does not operate in many cases, but if there is a proper case for having a defence, it ought to be for Parliament to write that into the Bill and then for the DPP to exercise discretion as to how it operates in individual cases. The alternative is the DPP effectively introducing a back-door defence, which has not been thought to be an appropriate use of guidelines.
James Brokenshire
First and foremost, I underline the point that, for those who are in the country unlawfully, the priority will be to see that they are removed. That is the first line of approach that immigration enforcement would take. Secondly, the use of the DPP’s guidance makes it clear that it is generally not in the public interest to prosecute an adult victim of slavery or trafficking where the crime they committed was a direct consequence of their slavery or trafficking situation and they were compelled to commit the crime.
A wide debate took place prior to the Modern Slavery Act as to whether that was sufficient in its own right or whether additional provisions were required. There was an extended debate between the non-governmental organisations, the DPP, the Crown Prosecution Service and policing. On balance, it was judged that the further defence provided in section 45 was appropriate. However, guidance can be provided on what is in the best interests of justice in that determination. Clearly, this will be a matter for individual cases, but, as I have already indicated, the primary approach that we want to take in respect of people who are here unlawfully is to see that they are removed.
The offence is to strengthen the message that the Government and the country send. Also, we want a method of dealing with serious or significant cases where an individual may be seeking to absolutely frustrate the system. The offence can be seen as an appropriate and effective tool in the work of immigration and enforcement in conducting their work. I suspect there will be a point of difference between us on that and it may be for the Committee to express its view on the issues, rather than to try to suggest there is not a difference of opinion when there is.
All victims, regardless of their involvement in criminal activity, are entitled to the same level of protection and support through the national referral mechanism and are assessed against exactly the same criteria. Support is tailored to each individual’s need and can include accommodation or outreach support and access to medical, legal and psychological support. As many hon. Members will know, the Government fund the Salvation Army to provide that service through a network of specialist charities across England and Wales.
On the point about whether the measures will strengthen the hands of the exploitative employer, as has been postulated, that is precisely why we are taking tougher action in the rest of the Bill against employers who exploit illegal labour. We are changing the knowledge base required in relation to the subsequent offence, as well as strengthening the approach to enforcement through the creation of the new role of director of labour market enforcement. Where employers repeatedly flout the law, we propose to use new powers to close their business premises and apply special measures as directed by the courts. Again, it is about the broad context.
I know that traffickers and those involved in such criminality are insidious in some of the techniques that they use. They use a wide range of techniques to exploit their victims, including debt bondage, physical force or threats to put victims in fear. There is no way entirely to stop traffickers misleading victims about what will happen if they come forward; they will often use such direct tactics to intimidate. The Government are making identifying and protecting victims of modern slavery, and giving them the confidence to come forward, fundamental to our modern slavery strategy.
That is why the Modern Slavery Act introduced the new statutory defence for victims who commit crimes due to their exploitation. Last year, the Home Office set up a modern slavery helpline and website and ran a national television campaign, with which many people will be familiar, to reach out to victims and encourage the public to report suspected modern slavery. In many cases, it is happening under our noses, in our communities and across our country.
As I have consistently said during my involvement in the initial preparation of the Bill, we must shine a light into those dark places, to see what is there in plain sight but is somehow unseen by us. That is the reason for the practical implementation of the Modern Slavery Act and the work that we are doing through a number of measures through the commissioner. It is about raising awareness and knowledge within law enforcement, so that the signs of slavery can be spotted and victims given the support that they need. That includes setting up specialist teams at the border to identify and protect victims when they enter or leave the UK. We are taking a multi-faceted approach in a way that has not been undertaken before. That is not a partisan view; good work has been done across the House on confronting modern slavery, and I welcome the contribution made to that work by numerous Members over an extended period.
Because of all that complexity and the elements that I have highlighted, I am simply not persuaded that the proposals make the situation worse in the manner postulated. As has been said, it is often those with the right to be in this country who are held here and kept in appalling conditions. We want to shine a light on those dark places from which they cannot escape, often physically, due to the manner in which they have been enslaved. That is precisely the reason for raising understanding in law enforcement and more generally across the population of this country, in order to deal with these issues when they become apparent. I know that I should refer to the contribution that you have made over a number of years, Mr Bone, to get us to a position in which we can have this debate with much greater understanding of the issues concerned. It is significant.
I see the issue in the broader context of what we are seeking to achieve in the Bill in terms of dealing with labour market exploitation, but I do not see that as inconsistent with the important work that we have done and will continue to do to confront slavery, traffickers and exploitation, and to go after those causing human misery in our country. I am proud to be part of a Government who take these issues seriously and are seeking to make a difference in that way.
The Chair
Kate Hollern, would you like to say something now, as I have rather rudely cut you off?
Keir Starmer
In the light of the fact that we have discussed the clause and the amendment together, I do not feel the need to add anything on the amendment, save to say that we will press it to a vote.
Keir Starmer
I beg to move amendment 67, in clause 9, page 7, line 6, leave out subsection 1 and insert—
“(1) In section 21 of the Immigration, Asylum and Nationality Act 2006 (offence of knowingly employing an illegal worker), delete subsection (1) and substitute—
(1) A person commits an offence if he knowingly or recklessly employs an adult subject to immigration control, where—
(a) this adult has not been granted leave to enter or remain in the United Kingdom, or
(b) this adult’s leave to enter or remain in the United Kingdom—
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing him from accepting the employment.”
To adopt a test of recklessness rather than negligence for the offence of employing an illegal worker, so as to avoid discriminatory employment practices by employers.
I can be relatively brief. The extension of the offence has been advanced on the basis of the need to deal with repeat offenders, but there is nothing in the Bill that requires an offender to have already offended before the new test is applied. Therefore, it is applied more generally. In our submission the right approach is to move to a position of recklessness rather than negligence for fear of the default position of employers, which could be discriminatory in its effect.
James Brokenshire
As the hon. and learned Gentleman says, the amendment seeks to avoid discriminatory practices by employers through adopting a test of recklessness for the offence of employing an illegal worker. The Government’s intention of using the “reasonable cause to believe” test is to make the current test more objective and easier to prove. It is intended to capture those employers who have wilfully turned a blind eye to someone’s immigration status.
It must be emphasised that the test of “reasonable cause to believe” is not the same as negligence, as the hon. and learned Member for Holborn and St Pancras will well understand. The intention is to continue to apply the civil penalty sanction to those employers who are simply negligent; that is to say, those employers who act without reasonable care and skill in terms of not checking a person’s right to work, or not doing so correctly.
We judge that introducing a test of recklessness would not assist in increasing the number of prosecutions of those employers who flout the rules on illegal working. It would remain a subjective test and would require proof that the employer foresaw a risk that the person had no right to work, yet went on to take that risk and employ them. It is precisely the difficulties in establishing the state of mind of the employer that the Government are seeking to address in the Bill, by introducing an objective element to the test. Having “reasonable cause to believe” will capture circumstances in which an employer wilfully turns a blind eye to anything that would give them reasonable grounds to believe that the employee has no right to work.
In addition to being more difficult to prove, a test of recklessness would also potentially go too wide and be more likely to lead to discriminatory behaviour, which the amendment seeks to avoid. In our judgment, the Bill’s test that the cause to believe must be a “reasonable” one strikes the right balance between making the offence easier to prove and guarding against discriminatory behaviour.
I do not believe that the test of “reasonable cause to believe” will encourage further discriminatory behaviour on the part of employers, because they are already required to undertake prescribed right to work checks to establish a statutory excuse in the event of illegal working. That does not change.
The Secretary of State has published a statutory code of practice on avoiding discrimination while preventing illegal working. If an employer is simply negligent, they will be dealt with under the civil penalty scheme. What we are changing is our ability to prosecute those employers who choose not to undertake the necessary checks because they have reasonable grounds to believe that such checks will reveal that the employee has no right to work. That is in addition to our intention to continue to prosecute those we can show actually know that someone has no right to work— which is where we largely sit currently—as we can do now under the current wording of the offence. Obviously, however, it inhibits and limits that sense of having to prove the knowledge of the employer in those circumstances. That is why the change has been brought forward.
Having given that explanation, I hope that the hon. and learned Gentleman will feel able to withdraw his amendment.
Keir Starmer
I am grateful to the Minister for that explanation and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Brokenshire
As part of our drive against illegal working in the UK, the Government intend to toughen their approach to employers who deliberately, cynically or systematically use illegal workers. The Immigration, Asylum and Nationality Act 2006 introduced a civil penalty scheme, under which employers of illegal workers may be liable for a civil penalty of up to £20,000 per worker. That remains the principal means of dealing with cases of non-compliance by businesses that negligently employ illegal workers. In 2014-15, 1,974 civil penalties were issued to employers, with a total value of £29.6 million.
The 2006 Act also introduced a criminal offence of knowingly employing an illegal worker, which provides the appropriate response to those employers who deliberately flout the law. The Government believe that we continue to need both the penalty scheme and the facility to prosecute in order to provide a comprehensive and appropriate response to the whole spectrum of employer non-compliance. However, we have concluded that we should take action in this Bill to strengthen the capability to prosecute where employer non-compliance goes beyond negligence or error.
Some employers are deliberately not checking whether their employees have the right to work. They routinely choose not to know, and so cannot be found to be knowingly employing an illegal worker. The new offence will also capture those employers who should have known that the employment was illegal. In addition, some employers are dissolving their businesses and simply creating a new business, in order to evade civil penalties for illegal working. In such circumstances, it is appropriate to hold an individual employer personally to account in their capacity as a company officer, and that can be done by prosecuting the individual for committing a criminal offence. Clause 9 amends the criminal sanction in the 2006 Act to make it easier to bring prosecutions successfully and to increase the maximum custodial sentence that a Crown court may impose.
Anne McLaughlin
Is the Minister not concerned that making it easier to bring about prosecutions and prove negligence will mean that employers are much more fearful of employing someone who, to them, does not sound, look or seem British? My fear is that people who genuinely intend to do the right thing will steer clear of employing anyone who does not appear to be British because they will be frightened of being prosecuted. They will be taking a big risk.
James Brokenshire
That is why I made the point about negligence and how that is dealt with under the civil penalty regime but not the criminal provisions that I explained earlier. That feeds back into the debate we have had in respect of the bar that needs to be set for bringing prosecutions. That is why I made the comments I did in the previous debate about discrimination. The most serious cases involving the exploitation of illegal labour will continue to be dealt with under legislation that prohibits facilitation and trafficking. It is important to make that point in the broader context of the provision.
Subsection (1) amends section 21(1) of the 2006 Act by inserting, after “knowing”,
“or having reasonable cause to believe”.
That is the test. It is not negligence. The effect is to amend what is known as the mens rea, the knowledge or intention needed to make out the offence, in order to make the test more objective and the offence easier to prove, but still with that safeguard.
Kate Hollern
My understanding is that for an employer to take on an employee the latter needs a national insurance number. Would that not automatically say that someone had the right to be here?
James Brokenshire
It is rather that the employer has to show the right-to-work check, which is what the provision relates to. There is certain documentation with which employers should be familiar. We still work on the basis of trying to raise awareness of the issues. We are not trying deliberately to catch out employers. I certainly want employers to know the relatively simple steps they have to take to comply. The obligation was introduced into law in 2006, when the civil penalty scheme was put in place by the Labour Government. That is, therefore, what needs to be shown and it is why the negligence piece sits within the civil penalty regime.
The amendment to the definition of the offence—having reasonable cause to believe—is for those who close their eyes and put their fingers in their ears so that they cannot be liable, trying to get around the existing knowledge requirement of the Act. Those employers are, frankly, trying to play the system, and we are making the changes because of the problems that the pre-existing offence presented for our ability to bring prosecutions. I think that hon. Members would want us to be able to bring prosecutions in such circumstances.
Sarah Champion
Building on what the Minister said in response to my hon. Friend, what would be a reasonable defence for an employer?
James Brokenshire
It will depend on the circumstances. It is about the distinction between negligence and having reasonable cause to believe. The legal tests are slightly different, and I do not want to hasten into issues of law as I am sure that the hon. and learned Member for Holborn and St Pancras will be well enough equipped with his knowledge and expertise in those matters to be able to underline the distinction, as will the Solicitor General. I will not hasten to stray into matters of law with such august representatives in the room.
At the moment, if a document that looks legitimate and real is presented to someone, that is often a defence in relation to the negligence argument. The employer has not been negligent. They have checked. We are not trying to make employers, or landlords—we will come on to them, I am sure, under the right to rent—into some sort of extension of immigration enforcement teams. If it is shown that the basic checks have been conducted in good faith, the civil penalty regime would not apply, even on the test of negligence—let alone the criminal sanction in clause 9. On that basis, the measure is an important step forward and fits within the broader enforcement strategy. I hope the clause will stand part of the Bill.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clause 10
Licensing Act 2003: amendments relating to illegal working
Question proposed, That the clause stand part of the Bill.
James Brokenshire
With clause 10 and schedule 1, we move on to a slightly different provision. We will come to amendments to schedule 1 in the next group. Clause 10 deals with amendments to the Licensing Act 2003 that relate to illegal working. Home Office immigration enforcement officers frequently encounter illegal migrants in premises involved in the sale of alcohol and late-night refreshments. It is clear, on the basis of intelligence, that this is a high-risk sector for illegal working. Accordingly, we want to adapt the licensing regime to prevent illegal working in the sector.
Clause 10 and schedule 1 will prevent illegal migrants and those whose status does not permit them to work here from holding premises and personal licences. They provide a mechanism for the Home Office to object to the issue of such licences when it considers that necessary to prevent illegal working. Immigration officers are provided with the same power to enter a premises as licensing enforcement officers, for the sole purpose of checking whether immigration offences are being committed in connection with a licensable activity—namely, selling alcohol or providing late-night refreshment.
Clause 10 gives effect to schedule 1, which amends the Licensing Act 2003. The Licensing Act applies to England and Wales. We are consulting Northern Ireland and Scotland with a view to making similar amendments to their legislation in the Bill or, if that is not possible, in regulations, for which provision is made in the clause.
The provision links to schedule 1, on which some technical amendments will be moved. I will sit down at this point and move on to schedule 1 when we discuss the next group of amendments. The provisions are interlinked but I am conscious of the separation between them.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
The clause and schedule pertain to the Licensing Act 2003, which is England and Wales legislation, but clause 10(2) empowers the Secretary of State to implement, by regulation, similar changes to Scotland. That is completely unacceptable and goes against the spirit of devolution and the Sewel convention. I am sure that the Minister will argue that it pertains to immigration, which is reserved, but it obviously has a big impact on a devolved matter.
Powers that ride roughshod over primary legislation—whether that is here in Westminster or at Holyrood in Edinburgh—without proper scrutiny by elected Members should be used very sparingly. The measure should be dealt with in primary legislation subject to debate prior to a legislative consent motion. The Government state that a significant proportion of illegal working happens on licensed premises where there is the sale of alcohol and late-night refreshment or the provision of entertainment. I have previously received an answer from the Minister, which confirms that the UK Government have no evidence that suggests that takeaways and off-licences are far more likely to employ illegal migrants compared to other businesses. That rather highlights the lack of evidence base for this part of the Bill. Surely, the starting point for any legislation is the requirement of evidence. To use hearsay or assertion in supporting this or any other legislation makes for neither good politics nor good law. Even if Members accept the premise of the proposal, the very need for this part of the Bill is called into question by John Miley, the chair of the National Association of Licensing and Enforcement Officers, who stated:
“Generally speaking, licensing authorities do not work in silos. They work in the broader scheme of things, and work with the police and the Security Industry Authority and more generally with immigration. Good work is currently going on in quite a lot of cases.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 32, Q67.]
The most concerning thing about the provision is the new power whereby an immigration officer
who has
“reason to believe that any premises are being used for a licensable activity”
can enter the premises
“with a view to seeing whether an offence under any of the Immigration Acts is being committed in connection with the carrying on of the activity.”
That terminology is a big concern to my colleagues and me. As framed, it gives immigration officers a very wide power to search any licensed premises. Home Office statistics show that an alarming number of offences pertain to small businesses that serve ethnic cuisines and are therefore likely to be run by ethnic minority owners. Is that because they are the gravest offenders or because they are searched most frequently? Will the same be true of licensed premises? The Migrant Rights Network states:
“These are small businesses who will be less able to deal with the additional burden of carrying out and recording frequent and complex immigration checks.”
The Secretary of State is given an additional power, as she can object to the granting of the licence, and that is to be taken into account by the licensing authority. Again, that is a completely devolved area and highlights the need for further reflection by the Government. Unlike other sections of the Bill, the Home Secretary is given leave to appeal against the granting of a licence or refusal to cancel a licence despite her objection. This is additional bureaucracy that most businesses will not welcome and that is surely not in keeping with a long-term economic plan.
Restaurants and bars—especially those serving ethnic cuisines—feature heavily on the list of those given civil penalties for employing illegal workers. Is that because they employ illegal workers more frequently than other employers or because they are targeted more frequently for enforcement activity? If it is the latter, can the Minister tell us why?
In concluding, I should point out to the Committee that if the clause is passed, we will table further amendments on Report to remove the power to extend the provision to Scotland through regulations.
James Brokenshire
As I have indicated, there are ongoing discussions with the Scottish Government about the impact of the clause and the potential for regulations. While the hon. Member for Paisley and Renfrewshire North and I were in agreement this morning, this may be a point on which we are not of the same view.
As the underlying purpose of the clause relates to immigration, our view is that a legislative consent motion is not required. We are in the process of consulting the Scottish Government on any necessary amendments to make provision for Scotland on the face of the Bill, and similarly for Northern Ireland. Management information for 2014-15 highlighted a number of operations from immigration enforcement in Scotland.
The hon. Gentleman asked me for evidence of why we think this is an important area to legislate on by building a mechanism into the licensing provisions—evidence of people with no status in the UK being captured within those sanctions and mechanisms. Of all civil penalties served in the year to June 2015, I am advised that 82% were served on the retail industry or hotel, restaurant and leisure industry, a large proportion of which hold premises or personal alcohol licences. That is why we see this as an issue affecting a particular sector. In building the legislative framework, it seems appropriate to strengthen the mechanisms available and to build the provisions in the Licensing Act and the potential sanctions in this way.
I appreciate the points that the hon. Gentleman makes and the different view he holds, but it is for the purposes I outlined that we view this as a reserved matter and are taking this stance. I assure him that discussions continue with the Scottish Government on how this may be applied within Scotland.
Question put, That the clause stand part of the Bill.
James Brokenshire
I beg to move amendment 1, in schedule 1, page 49, line 38, leave out sub-paragraph (6) and insert—
‘( ) After subsection (5) insert—
(5A) Where an interim authority notice is cancelled under subsection (3)(b)(ii), the licensing authority must also give a copy of the notice under subsection (4) to the Secretary of State.””
This amendment requires a licensing authority to notify the Secretary of State of its decision to cancel an interim authority notice where the Secretary of State has given notice under section 48(2B) of the Licensing Act 2003 that granting the interim authority notice would be prejudicial to the prevention of illegal working.
James Brokenshire
These minor and technical amendments strengthen and clarify the amendments made by schedule 1 of the Bill to the Licensing Act 2003. The amendments to that Act in general build in additional protections against illegal working in the licensing regime governing the sale of alcohol and late-night refreshments. The amendments must be considered within the context of clause 10 and schedule 1 to the Bill.
Amendment 1 requires a licensing authority to notify the Secretary of State—in effect, the Home Secretary—if the licensing authority decides to cancel an interim authority notice where the Secretary of State had notified the licensing authority that failing to cancel the interim authority notice would be prejudicial to the prevention of illegal working.
Amendment 2 ensures that a chief officer of police may take into account whether an immigration civil penalty, for employing an illegal worker or renting a dwelling to an illegal migrant, would undermine the crime prevention objective when considering whether to object to a personal licence application.
Amendment 3 makes a similar provision to amendment 2 where the chief officer of police is notified, after a personal licence has been granted, that the licence holder was required to pay an immigration penalty in the period between the application being made and its being granted.
Amendments 4, 5 and 6 substitute “licence holder” for “applicant”, so that they are consistent with the other amendments to section 124 of the 2003 Act.
Amendment 7 requires a licensing authority to notify the Secretary of State of its decision whether or not to revoke a personal licence where the Secretary of State has served an immigration objection notice under section 124(3B) of the 2003 Act.
Amendment 8 makes consequential amendments to section 10 of the 2003 Act and amendment 9 makes consequential amendments to sections 109 and 111 of the Police Reform and Social Responsibility Act 2011.
Amendment 10 makes transitional provisions, so that the amendments to sections 13, 16, 42, 47 and 120 of the 2003 Act do not apply in relation to applications made, or interim authority notices given, before the commencement of the respective paragraph of schedule 1.
Keir Starmer
On a point of clarification in relation to proposed new section 179(1A) of the Licensing Act 2003, as inserted by paragraph 22(2) of schedule 1, I want to ask the Minister an open question. Why is the test there for an immigration officer to enter premises that they have “reason to believe” the premises are being used, rather than, as I think is the case elsewhere in the Bill, that they have “reasonable grounds” to believe that? It may to be align the Bill with other licensing legislation, but on the face of it, that is a much lower threshold than the usual threshold for entering premises, and it is with a view to seeing whether an offence is being committed. This is a genuine, if probing, question.
James Brokenshire
I think the amendments are being made on the basis of consistency with other legislation. However, in the spirit in which the hon. and learned Gentleman raised that issue, I will have a look at that point of detail in relation to previous legislation and how this is framed in some of the other tests that are being applied. If there is an issue, I will come back to him.
Amendment agreed to.
Amendments made: 2, in schedule 1, page 51, line 27, at end insert—
‘( ) In subsection (5)—
(a) omit the “and” at the end of paragraph (a);
(b) at the end of paragraph (b) insert “and
(c) the applicant having been required to pay any immigration penalty,”.”
This amendment ensures that a chief officer of police may have regard to an applicant being required to pay an immigration penalty when considering whether granting a personal licence would undermine the crime prevention objective.
Amendment 3, in schedule 1, page 53, line 11, leave out sub-paragraph (3) and insert—
‘( ) In subsection (3)—
(a) in paragraph (a)—
(i) for “applicant” substitute “licence holder”;
(ii) for “, and” substitute “which occurred before the end of the application period,”;
(a) in paragraph (b), after “relevant offence” insert “and which occurred before the end of the application period”;
(b) at the end of paragraph (b) insert “and
(c) the licence holder having been required before the end of the application period to pay any immigration penalty,”;
(c) in the words after paragraph (b), omit “which occurred before the end of the application period,”.”
See the explanatory statement for amendment 2.
Amendment 4, in schedule 1, page 53, line 20, leave out “applicant” and insert “licence holder”
This amendment and amendments 5 and 6 substitute “licence holder” for “applicant” to be consistent with the other amendments to section 124 of the Licensing Act 2003.
Amendment 5, in schedule 1, page 53, line 22, leave out “applicant” and insert “licence holder”
See the explanatory statement for amendment 4.
Amendment 6, in schedule 1, page 53, line 26, leave out “applicant” and insert “licence holder”
See the explanatory statement for amendment 4.
Amendment 7, in schedule 1, page 54, line 7, leave out sub-paragraph (6) and insert—
‘( ) After subsection (5) insert—
(5A) Where the authority revokes or decides not to revoke a licence under subsection (4)(b)(ii) it must also notify the Secretary of State of the decision and its reasons for making it.””
This amendment requires a licensing authority to notify the Secretary of State of its decision whether or not to revoke a personal licence where the Secretary of State has served an immigration objection notice under section 124(3B) of the Licensing Act 2003.
Amendment 8, in schedule 1, page 56, line 24, at end insert—
In section 10 of the Licensing Act 2003, (sub-delegation of functions by licensing committee etc), in subsection (4)(a), in sub-paragraphs (v), (vi) and (x), omit “police”.”
This amendment makes consequential amendments to section 10 of the Licensing Act 2003.
Amendment 9, in schedule 1, page 57, line 17, at end insert—
In the Police Reform and Social Responsibility Act 2011, omit sections 109(9) and (10) and 111(3) and (5).”
This amendment makes consequential amendments to sections 109 and 111 of the Police Reform and Social Responsibility Act 2011.
Amendment 10, in schedule 1, page 57, line 19, at end insert—
The amendments of sections 13, 16, 42, 47 and 120 of the Licensing Act 2003 made by paragraphs 3, 4, 6, 9 and 15 respectively of this Schedule do not apply in relation to applications made, or interim authority notices given, before the coming into force of the respective paragraph.” —(James Brokenshire.)
This amendment makes transitional provision to the effect that the amendments to sections 13, 16, 42, 47 and 120 of the Licensing Act 2003 do not apply in relation to applications made, or interim authority notices given, before the coming into force of the respective paragraph of Schedule 1 making the amendment.
Ordered, That further consideration be now adjourned.—(Charlie Elphicke.)
National Insurance Contributions (Rate Ceilings) Bill (First sitting)
(9 years, 1 month ago)
Public Bill CommitteesRead Full debate Read Hansard Text
The Chair
Before we begin, I will make a few preliminary points. Please switch electronic devices to silent. Tea and coffee are not allowed during the sittings. We will first consider the programme motion on the amendment paper. We will then consider a motion to allow us to deliberate in private about our questions before the oral evidence sessions, and then a motion to enable the reporting of written evidence for publication. In view of the time available, I hope that we can take those matter formally, without debate.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 27 October) meet at 2 pm on Tuesday 27 October;
(2) the Committee shall hear oral evidence on Tuesday 27 October as follows—
TABLE
Time | Witness |
|---|---|
Until no later than 10 am | Office of Tax Simplification |
Until no later than 10.45 am | HM Treasury |
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5 pm on Tuesday 27 October.— (Mel Stride.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication—(Mel Stride.)
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Mel Stride.)
The Chair
We will now deliberate in private to discuss lines of questioning. If anyone wishes to remove their jacket, please feel free to do so.
The Chair
Q 1 Ladies and gentlemen, good morning to everyone, including members of the public, officials and the Minister, who have just arrived.
We will now hear oral evidence from the Office of Tax Simplification. Before calling the first Member to ask a question, I should like to remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 10 am. Could the witness please introduce himself for the record?
John Whiting: Thank you. I am John Whiting, tax director of the Office of Tax Simplification. I am also a non-executive director of Her Majesty’s Revenue and Customs and a board member of Revenue Scotland.
Rebecca Long Bailey (Salford and Eccles) (Lab)
Q 2 The Bill legislates to prevent rises in the current rates of class 1 and secondary class 1 national insurance contributions, but says nothing about the thresholds. In your opinion, are changes to thresholds absolutely ruled out for the duration of the Parliament?
John Whiting: From a simplification point of view, we tend to leave rates and thresholds as a policy matter for Ministers, but naturally, one of the main projects we have on our agenda is looking at closer alignment of income tax and national insurance. As part of that review, we are inevitably considering the impact of thresholds and other factors about the structure of national insurance, and whether bringing them into closer alignment with income tax in some way would bring some simplification. As I read the Bill, it is all about capping rates rather than thresholds, but I stress that how those are treated is really a matter for Ministers.
John Mc Nally (Falkirk) (SNP)
Q 3 You will know that there has been a lot of speculation in the past two days regarding the possibility of changing the national insurance contribution because of the tax credit cuts. Have you any comment to make on that as a possibility?
John Whiting: Again, Mr Mc Nally, I have to say that the actual rates of national insurance are something that we at the Office of Tax Simplification steer clear of, other than to consider whether they add complexity or simplification. To give an example away from national insurance, we drew attention to having two rates of corporation tax. Obviously, that was a complexity, as they have now been harmonised on one rate. That is an obvious simplification and easier for business. That is about as far as we tend to go with rates, but in terms of absolute rate setting, I cannot comment, other than to say that, whenever you make a change to the tax system, it adds a measure of complexity and confusion.
Wendy Morton (Aldridge-Brownhills) (Con)
Q 4 The balance of the national insurance fund has continued to fall sharply in spite of the modest economic recovery. Is not legislating to prevent even small rises in national insurance contributions throughout the Parliament irresponsible under those circumstances?
John Whiting: The national insurance fund is obviously something that I am aware of, and how it operates is an interesting question. It is certainly something that we, with our current review, want to look at. What I can say is that we want to examine how much people really understand about how the fund operates and whether they really appreciate, in effect, what national insurance pays for and where it goes. For me to come up with an opinion about where the fund sits at the moment is a little premature. However, I can say that just how it operates is something we want to examine, and, as I say, there is the fairly crucial question of how much people really understand about national insurance and how it operates.
Rebecca Long Bailey
Q 5 This is linked to the previous question. In the light of the response that you just provided, how would you say the fund would cope if there were an unforeseen crisis, given the restrictions that are placed upon it?
John Whiting: I know that the mechanics of the fund are such that the balance on the fund is assessed every year by the Government Actuary’s Department, and of course, if it looks as if the fund is too low, or if there is not sufficient coverage for its likely liabilities, as happened earlier this year, the Treasury will make a grant to the fund to keep it at the level that the Government Actuary’s Department feels is appropriate. I suspect that in terms of a sudden crisis—given that the fund’s main function is pensions and similar outgoings, hopefully there will not be a sudden crisis; it is a demographic trend that we can see or not—or a problem with the funding, it is over to the Treasury to make a grant and I have no doubt that Committees such as yours would have a view on such matters.
Huw Merriman (Bexhill and Battle) (Con)
Q 6 This question is linked to previous questions on the fund. Perhaps using your expertise, would you tell us what steps have been taken to ensure that the fund’s 16.7% threshold is maintained?
John Whiting: It really is down to the Government Actuary looking at how adequate that is and preparing reports for Her Majesty’s Revenue and Customs and Ministers on the balance of the fund. That leads to decisions as to whether the fund is adequate or whether supplementary grants are needed and will, I presume, influence Treasury Ministers’ minds on what level of contributions is appropriate. However, without wishing to duck the question, I have to say that we are getting into matters of rates, which is beyond matters of the OTS.
Huw Merriman
Q 7 May I further ask whether you agree with the Government Actuary that a subsidy from the Treasury will be required this year? If you do agree, do you have a view on how big this would need to be?
John Whiting: From figures I have seen, a grant will probably be needed this year. I do not have the figures to hand, but I believe that a grant will be needed. I believe an amount has already been tabled and discussed.
Huw Merriman
Q 8 In a way, you have just touched on this, but to be absolutely clear, how much money from the fund do you think will be required to maintain it above the threshold for the remainder of the Parliament? I know that is perhaps a little more into the future.
John Whiting: It is. I am not an actuary—I can only refer you to the Actuary’s reports that have been published. The annual reports of the national insurance fund will shortly be laid. I believe that the Comptroller and Auditor General, Sir Amyas Morse, has just signed them off on behalf of the NAO, so they will shortly be tabled.
Philip Boswell (Coatbridge, Chryston and Bellshill) (SNP)
Q 9 I was wondering what the process is for determining the 16.7% threshold and when was the last review.
John Whiting: The honest answer to that is I do not know. I am afraid I have to say, again, I am not an actuary. It is the figure that I believe has been set for a while as a prudent level of funding, but it is for the actuaries to determine. As far as I am aware, the Government Actuary looks at the funding of the national insurance fund annually and makes appropriate recommendations.
Rebecca Long Bailey
Q 10 Are you aware of what steps the Government have put in place to reverse or amend this legislation in the future, and do you believe that there are any specific triggers that should lead to its suspension?
John Whiting: I have no knowledge of any plans the Government have to reverse this legislation, nor should I. As I read it—and I come back to the job that I have in hand, which is to look at alignment of income tax and national insurance—clearly, the areas that we are looking at could produce recommendations to make some structural changes to national insurance. Those recommendations would go to the Chancellor and Treasury Ministers, and it would then be up to them to consider them and to bring them forward. They would come before Parliament in the normal way and would no doubt lead to a full debate. Could that lead to an amendment to the Bill? I presume that it could, but that is for Parliament to decide. What I would stress is that our recommendations will no doubt be subject to an awful lot of scrutiny and debate. If we come up with recommendations, they will be long-term and it would be highly appropriate to have a full debate on them.
Mr Alan Mak (Havant) (Con)
Q 11 The Government have said that the Bill has no financial implications. If a grant is needed from the Treasury to maintain the mandated threshold of 16.7% of expenditure, do you think that this constitutes a financial implication?
John Whiting: I think that, in those terms, the nature of the national insurance fund, certainly as I have seen it over the years, inevitably goes up and down with the economy to a certain extent. The fact that there is a grant perhaps this year is not of itself exceptional. We are back to attempting predictions, which actuaries are very good at in this area, and seeing what the trends are. This is governed by such things as employment, because if more people are employed, earning more, there is more national insurance going into the fund, so potentially less need for a grant. Of itself, if we take the Bill as it stands, the question of a grant or whatever, is subject, as I said earlier, to what the Government Actuary is going to say about the likely outcome and the likely balances on the fund, which will have to take into account economic circumstances and the general position of contributions.
Matt Warman (Boston and Skegness) (Con)
Q 12 Given the fall in the national insurance fund, are there implications for continued NHS funding from the fund?
John Whiting: We are back to the question of what the fund is for. It is predicated on paying out benefits, particularly pensions. It is really a question you should address to the Treasury, with respect, because it determines where the money comes from. On an entirely personal level, I do not see a direct connection between the balance on the fund and funding for the NHS, but we are going into areas well beyond my compass with the OTS.
Matt Warman
Q 13 From your perspective, you are not anticipating making any cuts to NHS funding, or NHS funding going down overall?
John Whiting: I am afraid that I do not have the power to change the tax system, far less make cuts. My role is to make recommendations and it is for Ministers and Parliament to decide on such weighty matters. I know my place.
Lucy Frazer (South East Cambridgeshire) (Con)
Q 14 The Bill is part of the Government’s commitment to simplifying the tax system, but might the freeze on rates and on other taxes lead to complicated attempts to raise taxes in other areas? You have already mentioned that there might be a grant, which might necessitate raising taxes in other areas. Does that, in your opinion, exacerbate the problem of simplifying the tax system?
John Whiting: The fact that rates are kept stable is of itself a simplifying measure, because work we have done in the past has shown that the greatest source of complexity is change. It is as simple as that: the more changes you make to the tax system, the more businesses in particular and individuals to a lesser extent are confused and have difficulty with the tax system. Simply keeping rates stable is of itself a simplifying point. Your question, could this lead to more complexity elsewhere, is a very good one. I hope that, whether or not the rates are kept the same, that still leaves plenty of scope for us to bring forward recommendations about simplifying the structure of the tax system, making it easier to run.
We are looking at things such as the definition of earnings—although, conceptually, income tax and national insurance both broadly apply to earnings, the definitions are subtly different. Should those be harmonised? Should national insurance perhaps run on an annual, cumulative basis, rather than on a week-by-week basis as it does now, with parallel PAYE? Considering those areas, which could lead to simplification, is not in any sense affected by the tax rates, the ceilings that we have on this. As one or two people have pointed out, these ceilings do not preclude reductions in rates but, either way, as I read it, this does not hamper at all our work in looking at how the system will work and whether we can find areas that would simplify its operation for employers, individuals and, indeed, HMRC.
The Chair
That concludes the questions of which I have been given notice. Does any Member wish to ask any further or additional questions? No. I thank Mr Whiting for his evidence. We will now move on to the next panel.
Examination of Witnesses
David Gauke MP and Cerys McDonald gave evidence.
The Chair
Q 15 We will hear oral evidence from the Treasury. We have until 10.45 am. I ask the panellists to introduce themselves.
Mr Gauke: Good morning, Mr Rosindell. I am David Gauke, Financial Secretary to the Treasury, and this is Cerys McDonald, deputy director of personal tax at the Treasury.
John Mc Nally
Q 16 I will repeat the question I asked earlier. There has been a lot of speculation in the media and the press about the possible effects on the thresholds of the tax credit cuts. The Bill legislates to prevent rises in the current rates of class 1 and secondary class 1 national insurance contributions, but says nothing about the thresholds. Are changes to thresholds absolutely ruled out for the duration of this Parliament?
Mr Gauke: The thresholds are kept under review, and announcements are made at Budgets and autumn statements from time to time. They automatically increase in line with inflation, but as I said, it is a matter that is always kept under review.
John Mc Nally
Q 17 Are you saying that there is a possibility that they will be changed?
Mr Gauke: The Bill relates to rates. That was the policy set out by my party in the general election. It does not specify anything with regard to thresholds.
John Mc Nally
Q 18 What I am trying to get at, Minister, is that there will have to be some sort of transition period for working-class people. We in this Committee are trying to find out whether that will be a possibility. During the transition period, it looks as if national insurance contribution thresholds will be moved.
Mr Gauke: Just to clarify the point I made a moment ago, there is an area relating to thresholds, in terms of the link with the upper earnings limit in the Bill. As for the vote in the House of Lords yesterday, the Chancellor will set out his response to that in the autumn statement.
Wendy Morton
Q 19 The balance of the national insurance fund has continued to fall sharply in spite of the modest economic recovery. Is not legislating to prevent even small rises in national insurance contributions throughout this Parliament irresponsible in such circumstances?
Mr Gauke: No. Our commitments as a Government—our additional expenditure on the NHS, for example, and the triple lock guarantee for the state pension—are clear statements that we will fulfil. If it is necessary to top up the national insurance fund, we will do that to fulfil our objectives of increasing spending on the NHS and meeting our obligations on the state pension. Ultimately, meeting those objectives depends on the state of the economy and the public finances, not on the position of the national insurance fund.
Wendy Morton
Q 20 How can the fund cope if there is an unforeseen crisis?
Mr Gauke: First, as Mr Whiting pointed out, the fund is unlikely to face an unforeseen crisis due to expenditure. There is flexibility within the regime for top-ups from the Consolidated Fund from the Treasury to ensure that the national insurance fund can fulfil its obligations. In terms of our commitments, this requires us to have a strong economy and sound public finances and to control public spending in other areas, so that we are in a position to see the increase in departmental spending in the NHS that I am sure we would all like.
Rob Marris (Wolverhampton South West) (Lab)
Q 21 In terms of the national insurance fund, the trend is not looking good. In 2008-09, the fund was sufficient to cover 71% of its liabilities. By last year, that had dropped to 25%. Some commentators are suggesting that this year it will fall below the Government Actuary’s recommended one sixth, which is 16.7%. I understand that the Government Actuary has indicated that a top-up will be required this year from the Consolidated Fund, I imagine as you just indicated. I understand what you said about flexibility. Can you give an indication of how big that top-up from the Consolidated Fund for the national insurance fund is likely to be for this financial year and for the remaining years of this Parliament?
Mr Gauke: I can say that, for the 2015-16 tax year, a top-up of £9.6 billion has been provided for in legislation. That is the potential number; it is not to say that that will be necessary. I am not sure that I can give a number for future years as such. It will depend upon various factors, but there is provision for top-up from the Consolidated Fund if necessary.
Rob Marris
Q 22 Forgive my ignorance, but does it require primary legislation? You talked about the £9.6 billion being provided for in legislation for this financial year. Is that secondary or primary legislation? What is the mechanism?
Mr Gauke: It is secondary legislation.
Rob Marris
Q 23 So if the transfer needed to be more than £9.6 billion in this financial year, that would require fresh secondary legislation this year? I am not saying that will be the case, but asking what would happen if it were.
Mr Gauke: I think that is an assessment of what could be necessary this year, but for future years we would require further secondary legislation to provide such a top-up.
Rebecca Long Bailey
Q 24 What steps have the Government put in place to review this legislation in terms of reports or otherwise? Are there any triggers that will lead to its suspension?
Mr Gauke: There are no formal processes for reports or triggers for suspension. All legislation is of course kept under review. I remind the Committee of the purpose here. It is to emphasise and underline our commitment not to increase national insurance contribution rates in the course of this Parliament. That is what my party set out at the general election, and this legislation is to support that.
Wendy Morton
Q 25 The Government have said that the Bill has no financial implications. If a grant is needed from the Treasury to maintain the mandated threshold of 16.7% of expenditure, is it your view that this constitutes a financial implication?
Mr Gauke: We have various commitments in terms of Government spending and we also have various commitments in terms of taxation, one of which is not to increase the employers’ or employees’ rates of national insurance contributions. As a Government, we will abide by those commitments. This legislation emphasises and underlines that commitment by passing a law to support it. The point I would make is that if there is a shortfall in the national insurance fund, our response is not to increase the national insurance contribution rates.
Rebecca Long Bailey
Q 26 There is real concern that, given the fall in the balance of the national insurance fund, there will be implications for NHS funding. Can you confirm that there are no anticipated funding cuts on the horizon in terms of the NHS?
Mr Gauke: Yes, I can confirm that. I come back to what I was saying earlier: if the Government are committed to funding the NHS properly, as we are, we will find the resources. The fact that the national insurance fund, for argument’s sake, goes in one direction does not mean that spending cannot go in a different direction. It is ultimately a spending decision to decide how much we spend on the NHS. Of course, Government need to fund it, but that funding could come from the national insurance fund or the Consolidated Fund, or there could be a transfer from the Consolidated Fund to the national insurance fund.
Rebecca Long Bailey
Q 27 What measures will the Government put in place to provide assurances on this? The Government have imposed the Bill to provide assurance about the ceiling rate on national insurance contributions, but will they do the same to protect the NHS funding element?
Mr Gauke: We do not intend to legislate on that funding, but I point to our record in the last Parliament of increasing expenditure on the NHS in real terms. We are committed to doing the same in this Parliament.
Mark Menzies (Fylde) (Con)
Q 28 Following up on that point, is there a clear commitment from the Government to put measures in place to ensure that NHS funding is not reduced as a result of the measures in the Bill?
Mr Gauke: The measures in the Bill will not reduce NHS funding. There is not, in truth, a hard and fast link, because expenditure on the NHS is not confined simply to money coming from the national insurance fund. It is a clear commitment from our party at the last general election, and of course, we have a spending review coming up next month that will set out the details. A Government who are determined to focus support on the NHS, who can deliver a strong economy and who are prepared to make difficult decisions on other aspects of Government expenditure are in a position to provide the support to the NHS that we believe is right.
Lucy Frazer
Q 29 The Government have committed to simplifying the tax system. Mr Whiting confirmed that this measure will do that, and that it will bring certainty and stability through lack of change. Do you think that the change will have an impact on any other tax measures?
Mr Gauke: Of course, in the Finance Bill, we also brought in the tax lock in respect of income tax rates and VAT. I hope that that provides a degree of certainty and stability to taxpayers. In particular, in the context of employers’ NICs, the Bill provides an important degree of certainty for employers that they will not be hit by an increase in the rate of the jobs tax, if I may use that term. I hope that that provides certainty and stability. Of course, we are taking other measures as a Government, and we intend to publish a business tax road map by April next year setting out our plans over the course of this Parliament. It is all about creating an environment in which businesses can grow and invest, knowing that they have a Government who want a tax system that is supportive of them.
Andy McDonald (Middlesbrough) (Lab)
Q 30 Rather than simplifying the tax system, this effectively does a big fat nothing. It keeps things exactly as they are. Have you made any assessment of how much the process has cost?
Mr Gauke: First, what you might describe as a big fat nothing— keeping things as they are—can, as Mr Whiting said, at times be something that businesses welcome in terms of providing greater certainty. Also, as you heard, the Office of Tax Simplification is looking at the relationship between income tax and national insurance contributions to see if there is scope for simplification in that area. I think that the costs of the process would be negligible, but it is nevertheless of value to have legislation that underlines the Government’s commitment regarding tax rates.
Andy McDonald
Q 31 Is keeping things as they are, not making any changes and putting Parliament through this, really a wise use of parliamentary time?
Mr Gauke: Yes, I think it is. I think it is a justifiable use of parliamentary time to underline the commitment that my party made at the general election to not increase the rates. The fact that we have legislation to that effect underlines that commitment, and I hope that, at the end of the day, Mr McDonald, you do not feel that you have had a futile day.
Huw Merriman
Q 32 To turn the question from the hon. Member for Middlesbrough on its head, does the Treasury keep estimates of how the stability that this gives business will benefit the economy?
Mr Gauke: It is difficult necessarily to measure that. It is difficult to take the things in isolation. Overall, if you look at what we have done, as both a coalition Government and a Conservative majority Government, in terms of, for example, reducing our rate of corporation tax, addressing the worst effects of the jobs tax, which we inherited in 2010, some of the measures we have taken regarding capping business rates, and so on—over a period of five and a half years or so—we have taken a large number of measures to help businesses and to ensure that we have a thriving private sector, creating the jobs and tax receipts that we need to fund the NHS and so on.
Rob Marris
Q 33 Reversing that, I would suggest that the Bill arguably creates greater uncertainty, because although the Government have chosen, following your party’s manifesto commitment, to lock in a cap on national insurance contributions, you are taking action in some areas and not others. For example, there are about 1,300 tax reliefs and you are not locking all of those in.
In answer to an earlier question, you referred to a review of business taxation, which I think you said would be launched in the spring. That in itself creates uncertainty, and I suggest that the argument that the Bill creates greater certainty is wrong. It creates greater uncertainty because people say, “You’re locking in this but we notice you’re not locking in other stuff, so other stuff might change and adversely affect businesses or individuals.”
Mr Gauke: First, to be clear, we will publish our business tax plan—road map, if you like—in the spring, setting out what we will do. It is not the announcement of a review as such. It is, to some extent, conclusions.
Rob Marris
Until then there is uncertainty.
Mr Gauke: But my wider point is that it is important in terms of the larger taxes to provide greater certainty to the British people. We will not be putting up tax rates. We do not believe that that would be the right thing to do. I also make the point that my understanding is that, at the general election, the Labour party also made a commitment not to increase the rates of employer and employee national insurance contributions, income tax and VAT. The difference between us that we are legislating for it but, as I say, the idea of ruling out increases in tax rates is not, as I understand it, something to which your party, Mr Marris, is opposed.
Rob Marris
Q 34 We did not say that we would do it for business certainty.
Mr Gauke: Well, whatever the reason for doing it, that, I think, was your party’s position. It was a manifesto commitment, and it is right that we fulfil it.
The Chair
Those are all the questions of which I have been notified. Does any other hon. Member wish to ask a question or raise an issue that has not been covered thus far?
Rob Marris
On a point of order, Mr Rosindell. May I thank you for your chairing of the Committee today, particularly as I suspect that, like me, you missed the Canadian breakfast this morning?
Rob Marris
I had a meeting. I thank you, Mr Rosindell, for your commitment to your service as a Chair and for chairing the Committee today.
The Chair
Thank you. I thank the witnesses for their attendance today and for duly answering the questions. If there are no further questions, I thank hon. Members for their attendance.
Ordered, That the debate be now adjourned.—(Mel Stride.)
National Insurance Contributions (Rate Ceilings) Bill (Second sitting)
(9 years, 1 month ago)
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The Chair
We now begin line-by-line consideration of the Bill. Please ensure that all electronic devices are turned off or switched to silent mode. It is unseasonably warm today—very pleasant. If Members want to remove their jackets, they should feel free to do so.
Clause 1
Main and additional primary percentages
Question proposed, That the clause stand part of the Bill.
The Financial Secretary to the Treasury (Mr David Gauke)
It is a very great pleasure to serve under your chairmanship, Mr Bailey. I welcome all hon. Members to their places. Progress was brisk and efficient at our evidence session this morning and if it were up to me, that momentum would continue, but of course it is not up to me.
Clause 1 specifies that the class 1 contributions payable by employees at the main primary percentage shall not exceed 12%. Class 1 contributions are payable at 12% on earnings between £155 and £815 a week. For earnings above £815 a week, the additional primary percentage shall not exceed 2%. The provisions in clause 1 will apply to any tax year that begins after the day on which the Bill comes into force before the next election.
Rob Marris (Wolverhampton South West) (Lab)
It is a pleasure to serve under your chairmanship again, Mr Bailey. You commented on the weather. Of course, you and I know that that the weather in West Bromwich and in Wolverhampton is always lovely, especially at this time of year.
Through clause 1 the Government are limiting their room for manoeuvre. I am aware, as are all hon. Members, that there was a commitment by the Conservative party in the general election not to freeze but to put a cap on national insurance contributions at both rates. That was also the policy of my party, so I think that we will have a fairly brisk afternoon.
However, the Bill, as primary legislation, puts restrictions on Government, which, as I suggested to the Minister in the evidence session this morning, creates a measure of uncertainty. When some things are restricted, like this and other tax measures, such as the 1,300 tax reliefs, of which the Audit Commission says that only about 200 are tracked properly, it can create uncertainly by a kind of ripple effect—if one is being certain in one sphere but saying nothing about this other sphere, whatever it may be in terms of the tax regime, perhaps one has plans to change that.
Do the Government currently have any plans to change, in any way, the regime for national insurance contributions, whether in terms of the upper earnings limit or the percentage rates at which it is levied? There are different rates, of course, depending on the different classes, including class 3A, which runs out at the end of next March. Are there any proposed changes to the regime?
Mr Gauke
I am grateful for the hon. Gentleman’s comments and I am encouraged, as I am sure you are, Mr Bailey, by the consensus, at least on being brisk this afternoon.
As for future plans for national insurance contributions, of course, all taxes—and for these purposes, we count national insurance contributions as a tax—are kept under review. Any announcements are made by the Chancellor in Budgets and autumn statements. I have nothing to add to what has previously been said in Budgets and autumn statements. As was touched upon in our evidence session this morning, the Office of Tax Simplification is looking at national insurance contributions and their alignment with income tax. It has examined that in the past, and it and the Government believe that it would be helpful to draw out some of the related issues in quite a complex matter.
Rob Marris
I appreciate that consultation is ongoing and evidence is still being gathered, but is the Government’s preferred option at this point to have such an alignment?
Mr Gauke
The Government’s position is very much an open one. There is no preferred position as such. Clearly, the matter has been raised on numerous occasions over many years. I suspect that all parties have looked at this issue to a greater or lesser extent. The Office of Tax Simplification has made recommendations in the past on this matter, and we think that it would be beneficial for it to continue to look at the subject with a view to developing potential ideas and then, after that further investigation, for us to have an informed debate on whether to take the proposals forward. The Government do not have a predetermined position, but we think that it would be beneficial to the general debate for the OTS, which is a respected organisation that has already done good work in this area, to take the matter forward.
In short, we do not have further proposals other than those that we previously set out—not least, of course, the cap. The hon. Gentleman is right to say that the Bill provides for a cap, not a freeze.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Secondary percentage
Question proposed, That the clause stand part of the Bill.
Mr Gauke
Like clause 1, clause 2 is a simple provision and I do not intend to detain the Committee for long in explaining it. The rate of secondary class 1 contributions payable by employers for employees who are not under the age of 21 is 13.8%. It is payable on earnings above £156 per week. The clause simply provides that the rate shall not exceed 13.8%.
Rebecca Long Bailey (Salford and Eccles) (Lab)
Again, as this is part of the Government’s policy to cap national insurance contributions for this Parliament, we do not oppose it in principle, but I hope that the Minister will address a few issues.
The national insurance fund is used almost exclusively to pay for contributory benefits. However, one portion, as we discussed this morning in the evidence session, is used for the NHS. Will the Minister assure us that the Government are not tying their own hands should there be another economic crisis? There could be a danger in such circumstances that the Chancellor may decide to reduce public spending further, just at the point when a stimulus is needed.
Economists the world over warn that the global economic situation is becoming increasingly precarious, and the Minister will no doubt be acutely aware that the Opposition have concerns that the Government are not taking sufficient measures to increase our financial resilience. I ask the Minister, in the words of Keynes: if the facts change, will the Chancellor change his mind? Alternatively, if the Government are committed to keeping this framework in place regardless, what contingency plans exist to protect the fund if unemployment starts to rise and receipts from national insurance consequently fall?
On Second Reading, the point was made that the Chancellor’s spending plans are predicated on,
“a forecast rise in revenue yield from NICs”.—[Official Report, 15 September 2015; Vol. 599, c. 941.]
However, should this yield be less than forecast, whether due to unforeseen circumstances, simple miscalculation or, indeed, economic policy failures, what will the Government do? Will further cuts be imposed on public expenditure, or will borrowing rise and the Chancellor simply change his targets once again?
I was grateful for the Minister’s response this morning when he confirmed that NHS funding would not be cut directly as a result of any impact that the Bill has. However, in the same way as the Bill provides an assurance to the market that the Government will keep their promise on national insurance, it would be prudent to legislate for the promise on the NHS. I trust that the Minister has listened diligently to my concerns and I look forward to his response.
Mr Gauke
I am grateful to the hon. Lady for her questions. She asked whether we are tying our hands in these circumstances. To the extent that we are not putting up the employers’ rate of national insurance contributions, for which the clause provides, or the employees’ rate, for which clause 1 provides, we are making it clear that we do not believe that that would be the right thing to do.
The hon. Lady draws me on to hypothetical ground when she asks what would happen if there were a crash, but even on a Keynesian analysis, I do not think anyone would particularly advocate, as an immediate response to an economic downturn, increasing employers’ or employees’ national insurance contributions. I do not claim to be an expert on Keynesian orthodoxy, but I do not think that that would constitute an orthodox Keynesian response to a downturn.
On the hon. Lady’s points about the impact on the national insurance fund, let me repeat the assurances that I gave this morning. There is no question of the fund not being able to fund pensions or the NHS. The Government will introduce the new state pension from 2016, which will make pensions affordable and improve the sustainability of the national insurance fund in the long term and provide the right support for private saving.
The Government Actuary recommends a working balance of one sixth of benefit expenditure for the national insurance fund, as we heard this morning. There is provision to top up the national insurance fund from the Consolidated Fund to maintain the balance at that level. For the 2015-16 tax year, a top-up of £9.6 billion has been provided for in legislation. The future funding of contributory benefits, should NICs receipts prove insufficient, is a matter for the Chancellor and that decision would need to be made at the relevant fiscal event, based on the latest projections available at the time, and taking account of this Bill. I hope that that provides some reassurance that there is flexibility.
It is not the case—nor is this an argument that a future Government would make—that, if the national insurance fund were lower than we expected, we would not honour our commitments on the NHS and on the state pension. I have to make the point that, when it comes to ensuring that we can have a properly funded NHS and properly funded pensions, we need to make sure that the economy is on a sound footing, and that the public finances are strong. That means that we have to make choices, and, in some cases, difficult choices about public finances. That includes, for example, identifying savings in the welfare budget, but, Mr Bailey, that would be taking me away from clause 2.
Mr Gauke
Tempting though that is, I should return to the clause. I hope that those points of clarification are helpful to the Committee and that clause 2 can stand part of the Bill.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Upper earnings limit
Question proposed, That the clause stand part of the Bill.
Mr Gauke
This clause provides that the upper earnings limit for any tax year for the duration of the Parliament shall not exceed the weekly equivalent of the income tax higher rate threshold proposed for that tax year. The class 1 upper earnings limit is the point at which an employee transitions from paying class 1 contributions at the main rate of 12% to paying class 1 contributions at 2%. Since April 2009, this point has been aligned with the higher rate tax threshold.
Rebecca Long Bailey
Hon. Members will be pleased to hear that I do not wish to go into great detail on clause 3. We are aware that the clause links the upper earnings limit to the higher rate income tax threshold by setting out that it shall not exceed the weekly equivalent of the proposed higher rate threshold for that tax year. That means that employees stop paying national insurance contributions at the 12% rate when their income reaches the higher rate income threshold, and thereafter the rate of national insurance is 2%.
Mr Gauke
I am sorry if we are detaining the hon. Lady. I am sure she has many useful things to do this afternoon, so I will not detain her longer than I have to. I come back to the point that we debated this morning. It was a manifesto commitment that we would legislate for this and it is similar to the argument on rates that we have just had on clauses 1 and 2. It underlines our commitment.
I suspect that, had the Bill contained just clauses 1 and 2, and not dealt with the upper earnings limit alignment, the hon. Lady would have been one of the first to identify an apparent lacuna in the legislation and would say that there was nothing to stop us increasing the 12% band of national insurance contributions above the point at which the higher rate threshold came into place. Indeed, I think that that was Labour party policy in 1992, so it is not an immaterial issue or one that has never been considered in public debate.
To be consistent with the capping of the employees’ NICs rate, it is right to set out the threshold and the fact that that is tied in with the higher rate threshold. That has been the practice for some years now and we wish to maintain it.
Rebecca Long Bailey
On highlighting a lacuna, several need to be highlighted and we will take the same approach as the Government to the Bill. If they are going to legislate for every single pre-election promise, surely they should apply the same sort of legislation to every manifesto pledge. They are certainly not doing that.
As my hon. Friend the Member for Wolverhampton South West rightly said this morning, while the Government might be providing assurances to the market on this issue, they are certainly not providing any assurances on all their other pre-election promises because they are not legislating for them in the same way.
Mr Gauke
Again, I come back to the central point. The Conservative party, and indeed the Labour party, made pledges during the last general election campaign not to increase rates. We wished to underline our commitment to the British people by announcing during the election campaign that we would legislate for this. It further emphasised our commitment on this issue.
Having set out that we would legislate on rates, it is also right that we legislate on the way in which the national insurance thresholds currently tie in with the income tax thresholds, which is at the point where the upper earnings limit meets the higher rate threshold. It was logical to include clause 3, which meets exactly the same objective as clauses 1 and 2. We made a commitment that we would not increase the 12% band above the point at which higher rate income tax would be paid, and I think—I am sure I will be corrected—that the Labour party made the same commitment. Given that we are legislating in the Bill on rates, it made sense also to address that threshold point. That is why the clause is part of the Bill, and why I hope the Committee will support it.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clauses 4 and 5 ordered to stand part of the Bill.
Mr Gauke
On a point of order, Mr Bailey. I am not sure whether it is appropriate or necessary to make a point of order at this point, but I think I should. I thank you for your guidance over the last 21 minutes. You have demonstrated all the skills we needed this afternoon, and I am grateful for that. I also thank Mr Rosindell for his assistance this morning.
I thank all hon. Members for their participation in our proceedings. They can report back to the Whips that they have served on yet another Bill Committee, and I hope they feel that this has been a day well spent.
I thank the Whips—the Lord Commissioner of Her Majesty’s Treasury, my hon. Friend the Member for Central Devon, and the hon. Member for St Helens North—for their assistance. I also thank Opposition Members, including the Front-Bench spokespeople, the hon. Members for Wolverhampton South West and for Salford and Eccles, for their constructive engagement with the Bill.
This is the second Bill that some of us have completed in recent days. It has taken considerably less time than the Finance Bill, for which I, for one, am very grateful.
May I conclude by thanking the Clerks, the Hansard reporters, the police and the attendants, as well as the officials from Her Majesty’s Revenue and Customs and the Treasury, for their assistance with this short but important Bill? I look forward to discussing these issues again—no doubt at some length—on Third Reading.
Rebecca Long Bailey
Further to that point of order, Mr Bailey. I reiterate the thanks the Minister has expressed. I also thank him for what has, as always, been a lively and engaging debate. It has been a pleasure.
John Mc Nally (Falkirk) (SNP)
Further to that point of order, Mr Bailey. This is the first Bill Committee on which I have sat. May I, too, thank the Minister and the Clerks for taking us through the Bill and for the guidance they have given us? I am equally glad that our proceedings have been quite short and relatively simple to follow and that I could associate them with my constituents back home in Falkirk.
Bill to be reported, without amendment.
Psychoactive Substances Bill [ Lords ] (First sitting)
(9 years, 1 month ago)
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The Chair
Before we begin, I have a few preliminary announcements that I hope will be helpful. First, the Committee’s quorum is six members, including the Chair. Secondly, will people be good enough to switch any electronic devices to silent? I remind the Committee that, regrettably, tea and coffee are not allowed during sittings. Any Members who wish to remove their jacket, or any other limiting item of their apparel, should feel free to do so.
We will now consider the programme motion on the amendment paper before considering a motion to enable the reporting of written evidence for publication. In view of the time available, I hope we can take those motions formally without debate.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 27 October) meet—
(a) at 2.00 pm on Tuesday 27 October;
(b) at 11.30 am and 2.00 pm on Thursday 29 October,
(2) the proceedings shall be taken in the following order: Clauses 1 to 3; Schedule 1; Clauses 4 to 39; Schedule 2; Clauses 40 to 56; Schedule 3; Clauses 57 to 59; Schedule 4; Clauses 60 to 62; new Clauses; new Schedules; remaining proceedings on the Bill;
(3) the proceedings on the Bill shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 29 October.—(Mike Penning.)
Resolved,
That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.—(Mike Penning.)
The Chair
Copies of written evidence received by the Committee will be made available in the Committee Room.
We now begin line-by-line consideration of the Bill. The selection list for today’s sittings is available in the room and shows how the selected amendments have been grouped together for debate. Grouped amendments are generally on the same or a similar issue. A Member who has put their name to the lead amendment in a group will be called first, and other Members are then free to catch my eye to speak on all or any amendments within the group. A Member may speak more than once in a single debate. I will work on the assumption that the Minister wishes the Committee to reach a decision on all Government amendments.
Please note that decisions on amendments take place not in the order they are debated but in the order they appear on the amendment paper—in other words, debates occur according to the selection list and decisions are taken when we come to the clause that the amendment affects. I hope that explanation is helpful. I will use my discretion to decide whether to allow separate stand part debates on individual clauses and schedules following the debate on relevant amendments.
Clause 1
Overview
The Minister for Policing, Crime and Criminal Justice (Mike Penning)
I beg to move amendment 1, in clause 1, page 1, line 5, after “9”, insert “and (Possession of a psychoactive substance in a custodial institution)”
This amendment is consequential on NC2.
The Chair
With this it will be convenient to discuss the following:
Government amendment 7.
The motion to transfer subsection (9) of clause 6.
Government amendments 10, 17, 18, 26, 30 and 33 to 36.
Government new clause 2—Possession of a psychoactive substance in a custodial institution.
Mike Penning
It is a pleasure to serve under your chairmanship, Mr Howarth. I also look forward to serving under Sir David’s chairmanship. Thank you for setting out so concisely how the Committee will proceed.
I thank Her Majesty’s Opposition and the Scottish National party for being so supportive of the principle behind the Bill, on which there was extensive discussion in the other place. One area that was discussed extensively in the other place is the use of psychoactive substances in prisons and other custodial places. The Lords sought to address the issue by amending clause 6 to make the supply of psychoactive substances, and offers to supply psychoactive substances, on prison premises a statutory aggravating factor. On reflection, we are content with the Lords amendment, not least because the governors and the Prison Officers Association support making possession a specific offence.
We also support the Lords amendment following the campaigning by my hon. Friend the Member for Winchester and the hon. Member for Barnsley Central (Dan Jarvis), who has spoken to me privately about this matter on more than one occasion—I can see the shadow Front-Bench team nodding. He really understands the matter and has been campaigning on it for many years, and it would be inappropriate if we did not acknowledge that.
I am pleased that my hon. Friend the Member for Winchester is a member of the Committee. He knows all too well that the substances are a dangerous and pervasive problem in prisons and other secure estates, not only for prison officers but for other staff and prisoners. Having reflected on the Lords amendment we are content to retain it; Government amendment 7 simply makes some drafting improvement so as to ensure that the measure is tight and, in particular, to provide a definition of a custodial institution.
We have concluded, however, that we need to go further, with new clause 2 introducing a new offence for a person who is in possession of a psychoactive substance in a custodial institution. I think everyone agrees that the use of psychoactive substances needs to be addressed, and it is not about just prisoners; it is about other staff who may, sadly, wish to bring such substances on to the premises, and visitors. The safety of visitors, prisoners and staff is, of course, paramount.
The introduction of a possession offence in prison would enable the police and the Crown Prosecution Service to pursue cases of prisoners, visitors or staff being found with small quantities of psychoactive substances in prison, and would support the stance that psychoactive substances are not to be tolerated in prison. The measure is fully supported across the House, by all the experts and panels, and within the Prison Service and other custodial suites. The measure concerns not just prisons, but any form of custody, particularly immigration detention centres and youth detention centres. I hope that in that way, along with the help we have had from the Lords, a simple case will be made about the possession of a psychoactive substance in prisons and other custodial centres, as opposed to in the community where it is not an offence. That is needed, to make a difference. We have listened carefully, and that is exactly what we will do.
Lyn Brown (West Ham) (Lab)
Mr Howarth, I look forward to serving under your chairmanship and receiving your guidance. This is my first outing as a shadow Minister on a Bill, and I know that I am sitting under two experienced Chairs who will make my life so much easier than it might otherwise have been. That is a plea, in case you had not worked it out.
As I made clear during my speech on Second Reading, we support the Bill’s principles and general approach. The 2015 Labour manifesto included a commitment to ban the sale and distribution of dangerous psychoactive substances. A blanket ban with listed exemptions appears to be the most effective means of beginning to tackle the serious public health problems that the drugs have brought about. During the Committee stage, we will look at the weaknesses in the drafting of the Bill, and will table amendments to try to improve it. I hope that the Government take our critique and suggestions in the constructive manner in which they are intended. We want to work with the Government, through the Committee, to make the Bill as effective and robust as possible.
The Government have elected to insert a new clause into the Bill, which will make it an offence to possess a psychoactive substance in a custodial institution. The new clause amends clause 1, which is consequential on the new offence. The Bill already contains offences of supply, and of possession with intent to supply, psychoactive substances, which apply to prisoners and staff as much as to the rest of the public. The new clause makes it an aggravating factor to supply such substances in or around a prison, meaning that the only new power would be the ability to further punish those involved with psychoactive substances. Although I share the Government’s concern about the problem of such substances in our prisons, I am not convinced that we lack enough statutes to bring charges against prisoners, staff and visitors.
I also assume that many of the prisoners in possession of and taking psychoactive substances in our custodial institutions are likely to be addicted and are possibly in prison because they needed to feed their habit. It would perhaps be better to treat such instances as a health issue rather than one of enforcement. As I have said, the Bill already contains offences of supply and possession with intent to supply in or near a prison as an aggravated offence, so I am not convinced that the addition of possession is necessary.
As I said on Second Reading, I am concerned by the findings in the prisons and probation ombudsman’s report of July of this year that new psychoactive substances had been a factor in at least 19 prisoner deaths between 2012 and 2014. Her Majesty’s inspectorate of prisons’ annual report was just as concerning. It found that the availability of new psychoactive drugs has
“had a severe impact and has led to debt and associated violence.”
New psychoactive substances are undoubtedly a real problem for our prisons, which I am sure is what motivated the Minister to table the amendment. However, neither of the reports asked for legislation to help deal with the problem. Indeed, the drugs that the reports mention as causing problems, Black Mamba and Spice, are already controlled by the Misuse of Drugs Act 1971, meaning that possessing the most problematic substances in our prisons is already a crime. In addition, the Prison Service already has powers to discipline and punish prisoners for possessing psychoactive substances though prison rules.
Both reports stress that better detection mechanisms for new psychoactive substances need to be in place. HMIP stated that many new psychoactive substances do not show up in mandatory drug tests, making it difficult for prison officers to know what they are dealing with and the scale of the problem they face. Too few drugs tests are taking place, due to inadequate staffing. The prisons ombudsman highlighted that the sniffer dogs used by prisons to detect drugs often could not identify new psychoactive substances, and that it was still waiting for X-ray body scanners to detect substances concealed in body cavities.
I understand that the prevalence of Spice in prisons can be high. Will the legislation have a deterrent effect? Is it practically possible to enforce, or will it be like handing out speeding tickets at a grand prix? Will the Minister explain what prompted his desire to introduce criminal sanctions for possessing a psychoactive substance in a prison? Does he genuinely feel that the prison system has enough resources to tackle the direct supply and demand of such substances? It does rather feel that the amendment has been tabled out of a desire to do something about the problem in our prisons because the Minister and the Government have not been able to do the right thing, which is to address the staffing and resources issues raised by HMIP and the prisons and probation ombudsman.
During my Second Reading speech, I stressed that we have to reduce supply and demand for such drugs, meaning that we need to focus on education, including education for prisoners and, I suggest, their families. The Minister’s letter to the Chairs of the Committee states that the new offence provided by this amendment will complement the work of the National Offender Management Service to
“educate prisoners, staff and visitors.”
Will the Minister update us on what changes the Home Office and the Ministry of Justice have made to the drug education strategy since July, which is when the prisons and probation ombudsman report recommended that the Prison Service should put in place a specific education programme about the dangers of psychoactive substances?
In conclusion, I am unconvinced that the new offence would provide any useful tools in tackling the problem of novel psychoactive substances in our prisons. It is already against prison rules to possess a psychoactive substance. It is also against the law to possess Black Mamba and Spice—the NPS that currently cause the most damage in our prisons. They are already banned. Custody professionals seem clear that the priority needs to be ensuring that prisons have the resources to deal with these substances and to educate their staff and prisoners. I think that makes sense and I agree with them.
Steve Brine (Winchester) (Con)
Unsurprisingly, I support the Government amendment. I will let my right hon. Friend the Minister answer directly the points made by the shadow Minister; I just want to make a couple of comments.
As I said in my Second Reading speech last Monday evening, there is unquestionably a huge problem in the secure estate. I referred to the work of RAPt—the Rehabilitation for Addicted Prisoners Trust. Before the debate, that excellent organisation sent hon. Members a research briefing, “Tackling the issue of New Psychoactive Substances in prisons”. It lays the situation out pretty starkly. As I did not last week, I will not pull my punches now. RAPt says that NPS use has quickly become widespread among prisoners. The annual report from NOMS affirms that increased NPS use among prisoners is generating high levels of debt, intimidation and violence between prisoners and is likely to be the main catalyst for the recent rise in attacks on prison staff. I will come on to my constituency experience of that in a moment. RAPt says on the scale of the problem:
“The number of prisoners using NPS varies across prisons”—
across the estate—
“but some estimates suggest as many as 60% to 90% of the prison population use, or have used, NPS.”
As the shadow Minister said, Spice seems to be the NPS of choice at the moment. It is also known as Black Mamba—I cannot ever say that without smiling—or Clockwork Orange. Some of the quotes in the report by RAPt are shocking. They include the following:
“Prisoners who had used Spice described it as being ‘like a crack addiction’ or ‘like cannabis, just a lot stronger’…Others have seriously injured themselves head-butting mirrors thinking they were being attacked…One prisoner had witnessed ‘someone bury a knife in someone’s neck [on Spice] ’cause they were paranoid’…There is also a game that is becoming popular in prisons”—
this has been reported to me—
“It is often called the…50 pound challenge. In the game, prisoners are challenged to smoke £50 worth of Spice. If they manage to smoke it all before breaking down or passing out, then they get it for free. If they fail they have to pay for it.”
We can see how this is becoming the new currency in prisons. When I first started going into prisons for my work on the Justice Committee and in my constituency, tobacco was the currency, but without question NPS are becoming the currency. I have Her Majesty’s Prison— and young offenders institution—Winchester in my constituency. As I said on Second Reading, Dave Rogers, who is a very good governor, is struggling to deal with the effects of Spice at the moment inside Winchester prison. He told me that last month there were three ambulances on the estate at one time for three prisoners who had taken NPS in the exercise yard and were unconscious. That is gravely concerning to me.
The shadow Minister says that we currently have powers. Under the Bill, simple possession of a psychoactive substance in the wider community is not criminalised, but the Government have rightly concluded that the problem is such that it requires a different approach in the context of the secure estate because it is particularly destructive there. All my experience of working inside and outside prisons is that control and order is fundamental to prison life. When that breaks down, we have anarchy and people unfortunately die. People are dying in prisons at an alarming rate. There are many and varied reasons for that, but they are dying under our care. The state is their guardian and they are dying under our care.
I completely agree with and want to restate this point made by the Minister in his letter to us:
“The introduction of a criminal offence for possession…in a custodial institution would complement the continuing work by the National Offender Management Service to educate prisoners, staff and visitors about the harms caused by psychoactive substances and…enable firm measures to be taken to punish those who possess psychoactive substances in prison.”
The shadow Minister is right to say that at the moment there is an offence that can add 42 days to an offender’s time in custody. [Interruption.] I think that the Minister agreed from a sedentary position. However, this measure takes that on much further and sends a much clearer message.
Lyn Brown
I completely agree with everything that the hon. Gentleman has said. I want to ask him, however, about education. If we are going to deal with individual prisoners for possession rather than supply—pushing—I am absolutely with him, but surely education and treatment would be more beneficial to not only the prisoner but the community at large.
Steve Brine
I was just about to come on to that; the shadow Minister is a visionary. I want to have my cake and eat it too; I want to strengthen the law in this area, but the wider challenge, as the governor at Winchester prison said to me, is that the debate today is not only about making NPS illegal and changing the law on possession in prisons. In my experience, prisoners will always want to use illegal substances. They will always want to get “loaded”, as I said on Second Reading, whether that be through a class A drug, a class B drug or NPS.
Owen Thompson (Midlothian) (SNP)
I, too, appreciate the opportunity to participate in the Committee. This is my first time, so please bear with me. My party has also tabled amendments, and I look forward to discussing them. I welcome, as do others, the fact that there is broad agreement on many aspects of the Bill. We all want to point in the same direction but the issue is how we get there.
I echo much of what the shadow Minister said, in absolutely recognising both the need for action to be taken on prison estates and the challenges that involves, but I am not yet entirely convinced that the measures will achieve the outcomes we want. My party certainly does not oppose the amendments at this stage, but we wish to see further consideration on Report.
In many ways, the issues regarding prison estates are slightly different from the wider issues covered by the Bill. There is an absolute need for a greater education programme, to ensure an awareness of the effects of NPS. In its evidence, the Trading Standards Institute made a point about testing. How can systems be put in place to ensure that substances that enter prisons can be identified as psychoactive and then isolated and taken out of the equation? I again echo the shadow Minister in saying that in the prison estate the need for treatment is even greater than elsewhere. For those who find themselves in a secure estate as a result of an offence caused by NPS addiction, treatment is critical because removing the addiction is the only way to start to take the substances out of the equation—to remove them as today’s currency of choice.
I will be brief at this point, but I again state that we want to see a far greater focus on education and treatment while recognising the need to take action that focuses on prisons in particular.
Mike Penning
I fully understand many of the points raised by the shadow Minister and other colleagues. The measures are not a silver bullet; I think we all accept that. Action needs to be taken in the context of better treatment programmes. We are starting to understand that. Addiction to NPS is a particularly difficult matter. The action taken categorically has to be about education, and in the prison estate it also has to be about detection.
The blanket ban helps. We spoke earlier about Spice and Black Mamba. Those are generic terms for a substance that is tweaked by chemists every time we chase the matter. We are here now because we have not been able to get on the front foot, in front of the people who are trying to destroy others’ lives and, frankly, make a small fortune as well.
My hon. Friend the Member for Winchester, and the shadow Minister, rightly pointed out that there are already sanctions, but they are fairly limited within prisons, to be honest. We need to listen to the experts, to the people who deal with secure estates on a day-to-day basis. If they say that the substances are a major issue not only in that they are a currency in the estates but because of the safety of staff, visitors and prisoners, we need to act. We have tabled the amendment and are making an exemption regarding possession within prisons because that is what we have been asked to do. My Prisons Minister has told me that it is what is being asked for. My hon. Friend the Member for Winchester has spoken to some prison governors and I have spoken to others. They have asked for the measure. Is it the only answer? No. NHS England in our part of the world, NHS Scotland and NHS Wales need to step up to the plate and do some more work, because they run the treatment programmes within the prisons.
The director general of NOMs is specifically chairing across groups to make sure that we get a better understanding and better education for staff and visitors. The best option here is not actually to convict anybody but to convince people that they should change their behaviour; but we live in the real world and I acknowledge that that is not going to happen. Nevertheless, we have to send a message. That message was sent to me as the Minister from the people on the frontline that they needed this, and it is my job to make sure that they have it, so I hope that we will approve it.
Amendment 1 agreed to.
Mike Penning
I beg to move amendment 2, in clause 1, page 1, line 7, leave out “Section 10” and insert “Section (Exceptions to offences)”
This amendment is consequential on amendment 11 and NC3.
The Chair
With this it will be convenient to discuss the following:
Government amendments 5, 6, 8, 9, 12, 28, 29 and 37.
Government new clause 3—Exceptions to offences.
Government new schedule 1—Exempted activities.
Mike Penning
The Government made a commitment in the other place during the Bill’s passage there to review the existing exemption for research activities and to strengthen it. That commitment was important and we shall push forward with it now, as we would all agree that bona fide research is a vital area. In doing so, we are following the consultation of the Academy of Medical Sciences and others, and we are confident that this exemption is necessary, sufficient and robust.
The new schedule also provides an exemption for healthcare-related activities, which I think we would all support. That is obviously very important. We do not want to make a problem for individuals. We see that this exemption has a complement in the exemption of medical products in schedule 1. In providing the new exemption we are going for a belt and braces approach, and we fully accept that that is what we are doing. I think that is very important.
New clause 3 enables the Home Secretary to add and vary a list of exempted activities in a new schedule. This regulation-making power replaces that in clause 10 of the Bill which covers the same ground, so we will effectively be removing clause 10 and replacing it with new clause 3. In the light of what we have seen in the other place, we felt that that is important. When we get to clause 10, obviously we will not move it. Hopefully we can move on, because I think this is an agreed part of the Bill. It is important that as different substances become available, the Home Secretary has the powers to add to and vary the list.
Lyn Brown
Government amendment 2 is consequential on later Government amendments, providing for exceptions for medical and academic research. One of the concerns raised by the Advisory Council on the Misuse of Drugs was about the impact of this legislation on legitimate scientific work. As the ACMD made clear, in the original drafting there was an exemption for clinical trials but no mention of exemption made for laboratory research in academia or industry.
The Academy of Medical Sciences also wrote to the Home Secretary to raise its concerns. An example picked out by the AMS is that the Bill could criminalise neuroscience researchers using psychoactive substances as experimental tools to help us better understand the causes of some mental illness. Several Members of the House of Lords raised that as an issue prior to Report in that place. Lord Rosser, who led on the Bill for Labour in the House of Lords, highlighted on Second Reading that it is of vital importance that the Bill does not
“inhibit or restrict important medical research that will help us to improve our knowledge of drugs and their impact”.—[Official Report, House of Lords, 30 June 2015; Vol. 762, c. 1964.]
I thank Lord Rosser for highlighting that, and for seeking assurances from the Government that the original clause 10 of the Bill will not inhibit or restrict legitimate research by the terms of the Bill. I also thank him for emphasising the need for procedures relating to medical research to be made exempt under the Bill. Without his diligent work, the Government’s new clause, which deals with many of the inadequacies of the original drafting, may not have been possible.
I also thank my hon. Friend the Member for Denton and Reddish, who spoke passionately on Second Reading about the need for clearer exceptions for medical research. He was absolutely right to raise concerns that the vague definition of psychoactive substances in the Bill will impede legitimate research.
Andrew Gwynne (Denton and Reddish) (Lab)
It is a pleasure to serve under your chairmanship, Mr Howarth. I am grateful for my hon. Friend’s flattering remarks. The United Kingdom is a world leader in research of this kind. Does my hon. Friend share my concern that the unintended consequence of parts of the Bill may be to inhibit some of that research? We need to ensure, therefore, that the Bill is absolutely tight, so that that research can continue.
Lyn Brown
I certainly agree. On Second Reading, my hon. Friend said:
“Would it not be a tragedy if the United Kingdom, one of the leading research nations in the world, avoided finding a cure for some awful psychiatric disorder due to our failure to include the appropriate exemptions for scientists?”—[Official Report, 19 October 2015; Vol. 600, c. 779.]
Thanks to pressure exerted on the Government, Lord Bates, who led the Bill through the Lords for the Government, wrote to Lord Rosser and other peers to state that the Government were actively considering the issue and were in discussion with the ACMD. He pledged that the Government would table amendments addressing concerns about medical research during the Commons Committee stage. His colleague, Baroness Chisholm of Owlpen, stated that the Government have no intention of stopping “bona fide research”. I am glad that the Government listened to Labour’s concerns and have delivered on Lord Bates’s promise by introducing a new clause that will specifically exempt academic activities. I absolutely support the amendments.
However, I cannot help but feel that the Government could have avoided the need hastily to draft the amendments and table some significant information if they had properly consulted the ACMD before they produced the first draft of the Bill. This has been a very quick—I would not say rushed—Bill. We had Second Reading in the Commons a week ago and here we are in Committee, and there are still issues that are yet to be completely ironed out in Committee to make the Bill enforceable in our courts of law.
We need to take into consideration organisations such as the ACMD, which consists of leading experts on drugs, many of whom work in academia. If they had been consulted on the original draft of the Bill, they would undoubtedly have spotted the problems with the Government’s original plans. The amendment could have been in the Bill from the beginning, and parliamentary time could have been spent more productively in looking at the goals of the Bill and how well the Bill will help the Government to achieve them.
Mike Penning
At the outset, I want to say that legislation is passed in Parliament by introducing a draft Bill, which is then scrutinised. I welcome the scrutiny that took place in the Lords. The reason why the Bill started in the Lords—this is probably above my pay grade—is that there are so many genuine experts there. Perhaps if it had started in this House the same amendments would have been introduced by colleagues on both sides of the House. I do not mind that; colleagues who know me well enough know that I am pragmatic.
I have a couple of points about the shadow Minister’s comments. This should have been done years ago under previous Administrations—I think we all know that. For every day that we do not do this, people are dying. I accept that it is rushed, to a degree—there was a huge gap between the Bill being in the Lords and coming to us—but it is right and proper for this House to expedite the Bill, while doing everything possible about any anomalies that generally concern groups of people, in particular on the research side. If there were any such anomalies in the legislation, I would let no one prevent us from changing things. That is why we have tabled the amendments. Unashamedly, I have already mentioned belt and braces. If we need to amend things further as we go on, we will do so, so that we do not prevent research in such an important area.
I wanted to touch on the scrutiny work done in the other House. I sat in on the debate on Second Reading and Report, on the steps of the Throne—it is a great honour to be able to do such things—and it was fascinating. One group of people was fundamentally opposed, as in our House, but it was a tiny group. We got around bits such as “Will this affect people in churches with incense?” and, once we had got rid of that stuff, we could actually ask, “Does the Bill do what it says on the tin?” and “Does it allow the research to continue to take place?” which is absolutely vital. New clause 3 would improve the Bill, and that is why we can take out clause 10. That is because we were listening, and this is the way forward.
Amendment 2 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Andrew Gwynne
It is a pleasure to serve under your chairmanship, Mr Howarth.
The Committee has the benefit of a two-for-one offer from the official Opposition: we have not one shadow Minister, but two. We feel strongly that we are dealing not only with a home affairs issue but a public health one. As Labour’s shadow public health Minister, I think it is important for us to have a health voice in Committee.
I will not test your patience, Mr Howarth, by going over what we discussed in detail on Second Reading, but I want to make it clear in the clause stand part debate that we support the general aims of the Bill. The Labour party committed to banning legal highs before the last election, and we do not shy away from that commitment today. On Second Reading we pointed to evidence from the Republic of Ireland and it is true that the only way to draft an effective Bill is to include a blanket ban. Most if not all Members of the House of Commons—
The Chair
Order. I am sure that the hon. Gentleman is about to address his remarks to clause 1—
Andrew Gwynne
Absolutely, Mr Howarth. I was only stating our agreement. The clause constitutes the overview of the structure of the Bill and creates a blanket ban on the production, distribution, sale and supply of psychoactive substances in the United Kingdom. That is why discussion of the blanket ban was relevant to the stand part debate.
We have to place it on the record, however, that we recognise the need to control the production and supply of such substances, and the need to educate young people about the real nature of the drugs, as my hon. Friend the Member for West Ham said. The Minister was right that drugs such as Black Mamba and Spice are already banned, but they can be tweaked and we need to be on the front foot. We also need to look at the health of prisoners, which is why I am pleased that the Minister has tabled the Government amendments. I am pleased that the issue of research has been clarified, because that situation needed fundamental improvement in the Bill. I am satisfied that the Minister has committed to further improvements on Report, if necessary. We will hold him to that. With that, we fully support the Government’s aims and intentions to ban legal highs.
Question put and agreed to.
Clause 1, as amended, accordingly ordered to stand part of the Bill.
Clause 2
Meaning of “psychoactive substance” etc
Owen Thompson
I beg to move amendment 51, in clause 2, page 1, line 14, leave out subsection (1) and insert—
(a) is not prohibited by the United Nations Drug Conventions of 1961 and 1971, or by the Misuse of Drugs Act 1971, but which may pose a public health threat comparable to that posed by substances listed in these conventions and
(b) is not an exempted substance (see section 3)”
This new definition includes part of the alternative definition of psychoactive substances proposed by ACMD which clearly merits debate and clear reasons why it should be rejected - if it is to be rejected. This would also incorporate reference to harm.
The Chair
With this it will be convenient to discuss the following:
Amendment 43, in clause 2, page 1, line 15, leave out paragraph (a) insert—
“(a) is a compound capable of producing a pharmacological response on the central nervous system or which produces a chemical response in vitro, identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act 1971, and”
Together with amendment 44 this would replace the definition of psychoactive substance within the Bill by the definition recommended by the Advisory Council for the Misuse of Drugs.
Amendment 44, in clause 2, page 1, line 18, leave out subsection (2) and insert—
‘(2) For the purpose of this Act
“substance” means any compound, irrespective of chemical state, produced by synthesis, or metabolites of those compounds.
“synthesis” means the process of producing a compound by human instigation of at least one chemical reaction.
“compound” means any chemical species that is formed when two or more atoms join together chemically.’
Together with amendment 43 this would replace the definition of psychoactive substance within the Bill by the definition recommended by the Advisory Council for the Misuse of Drugs.
Owen Thompson
We felt that there was a weakness in the Bill around the definition of a psychoactive substance. This is a fundamental aspect of how we move the proposals forward. As the Minister has mentioned, often when substances are brought on to the market, efforts are taken to make them illegal. The chemists go back to the drawing board, try to tweak the formula and the same thing comes out with the same effect but with a different formula, so it is not covered. We need to make sure that the definition is as strong as possible, so that action can be taken where required.
Our amendment moves forward some of the issues on definition that the Advisory Council on the Misuse of Drugs raised at the Home Affairs Committee. We accept that the Opposition Front Bench also has amendments on similar lines which do likewise. However, questions remain on how action can be taken because, even with a stronger definition, how can prosecutors prove that something is capable of having a psychoactive effect? This point was commented on in relation to prisoner status. How are tests done? What are the tests, and who carries them out? Would expert evidence be required in every instance where a substance is being looked at? Would that be considered under the definition and who would carry out that function?
I will be brief, because I simply want to make sure that we can have as strong a position as possible around a definition. I am not seeking to press the amendment to a vote, but to raise the matter with Ministers to make sure that on Report, these comments can be taken into account to make sure that the definition is as strong as it can be.
Mike Penning
Like all things in this House, events are often superseded. I looked carefully at the ACMD’s evidence to the Home Affairs Committee and colleagues now have copies of letters from that very expert panel as to whether it is now confident that we can define “psychoactive”. We will use its expertise as we go forward.
Earlier, we touched on why we had not consulted more with the ACMD when we formulated the Bill. Several colleagues at Second Reading and, I think, the shadow Minister earlier raised that point. Incidentally, the chairman of the ACMD and two members of the Committee were on the expert panel considering the sphere of issues that we needed to bring forward, so we did consult them. Obviously, with the chairman of the ACMD physically present, there was a huge input from the council. The ACMD is working with us. Its letter clearly states that it thinks we can define “psychoactive”. That is very important.
My concern around amendment 44 is the move to “synthesis”. Initially, the ACMD was in that position, but it has moved away from it. We are absolutely adamant that a definition cannot be arrived at through “synthetic”; it has to be a blanket ban. I think everybody is agreed on that. The Irish situation was exactly the same. We have learned from what happened in Ireland. Other countries are now following us. If we were to limit the Bill in the way that the amendments indicate, it would be quite difficult. I will wait to hear the shadow Minister’s comments.
Lyn Brown
I fear the clause gives rise to three issues, which it is important to consider. The first concerns the intended scope of the Bill and how it has apparently widened with Government drafting. The second issue is how the state can prove that a substance is psychoactive, particularly when seeking prosecution. Our amendment is based on language recommended to the Home Secretary by the ACMD, which offers a new definition of a psychoactive substance. We believe that the ACMD’s language may provide a better response to these issues than the current drafting.
The final and related issue is that we need to know whether we have the necessary resources in place to test for psychoactivity. The Committee will be aware that one concern that the ACMD raised about the drafting of the Bill is that it refers merely to psychoactive substances, whereas in previous discussions of the problem—including the impact assessment for the Bill and the expert panel report, which recommended the approach taken by the Government—the words “psychoactive substance” have always been prefixed by the word “novel” or “new”.
According to the ACMD, the prefixes of “new” or “novel” indicate that we are referring to substances that have been produced in order to mimic the effects of controlled substances but currently sit outside the controls of the 1971 Act. The ACMD is concerned that, by excluding the words “novel” or “new”, the Bill has expanded in scope beyond its intended target and is now disproportionately broad.
The Home Secretary has written to the ACMD and indicated that she thinks that the inclusion of the words “new” or “novel” in the Bill would be unworkable, as that would suggest that substances that existed before the Bill came into place ought not to be controlled. She also pointed out that many of the NPS that we want to control are not new, in the sense of being newly created; it is just that they have only recently been used for recreational purposes. For example, mephedrone was first synthesised in 1929 and “forgotten” until it was rediscovered in 2004. Its use became widespread around 2007.
However, on Lords Report, Baroness Meacher proposed that the word “synthetic” be inserted before “psychoactive substances” in order to restrict the Bill to its intended scope of drugs synthetically designed to mimic existing drugs.
On 17 August the ACMD wrote again to the Home Secretary with a series of recommendations of how the definitions in the Bill could be tightened. One recommendation was to include a definition of substance in the Bill to include the word “synthesis” and specifically to mention an effect that has a pharmacological similarity to drugs controlled by the 1971 Act. That would, it argued, cover the intended scope of the legislation.
On Friday, the ACMD wrote once again to the Home Secretary and reiterated that its recommendation was that language be used that invokes pharmacological similarity to drugs controlled by the 1971 Act. Our amendment is based on the language recommended by the ACMD.
I am sorry that I am not able to take in the information just laid before us. I will use my lunch break to read, digest and understand it. I am a woman who did not know what poppers were until two weeks ago. It is not a feasible idea for me to listen to the Minister and the debate and take in this new information.
On Lords Report, it was argued from the Government Benches that adding the word “synthetic” would be inappropriate as there are organic substances such as salvia and kratom that are both psychoactive and harmful and ought to be controlled. In the Home Secretary’s letter to the ACMD she makes a similar argument. She suggests there are substances that have long been tolerated in the absence of a more comprehensive legal framework, yet have known harms.
If these organic substances have known harms, will the Minister tell us why they cannot be controlled by existing powers in the Misuse of Drugs Act? After all, it is surely not possible for drug producers to come up with hundreds of new organic compounds and so overwhelm the authorities in the same way as they have managed with synthetic substitutes. The ACMD does not seem to be worried by a reference to synthesis and has said:
“The small number of problematic psychoactive natural products could be considered by the ACMD for control under the Misuse of Drugs Act 1971.”
We should take seriously the issues raised by the ACMD and look carefully at the language it recommends, so that we can be sure that the Bill targets as well as possible the problem that we all want it to tackle. Currently, there is much feeling that the definition is too unspecific and does not adequately define a psychoactive substance. Unfortunately, that could lead to a situation in which the Bill is unenforceable and open to legal challenge on whether a substance is psychoactive.
I understand that the latest letter from the ACMD to the Home Secretary, published last Friday, suggests a more objective, technical definition with reference to specific groups of psychoactive drugs. Many substances in those groups have been tested and researched and those found to be harmful have already been controlled under the Misuse of Drugs Act 1971. Including a specific list of classes or groups of substances that are associated with psychoactivity and harm, as in the Misuse of Drugs Act, makes it more likely that new related substances will have the same psychoactive capability.
On rereading amendment 43, I wonder whether two different interpretations are possible. The possible ambiguity is in what the phrase
“identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act”
might refer to. My initial understanding was that it referred to the pharmacological response or the chemical response—that is, a substance would be controlled if it produced a response identical or similar to the responses produced by substances controlled under the MDA. However, I wonder whether the phrase could refer to a compound, and so imply that a substance would be controlled if it produced any pharmacological or chemical response and is identical or similar to substances controlled under the MDA.
If interpretation one is correct, the clause captures substances according to their effect, which is what I would have expected; but if interpretation two is correct, the clause would seem heavy-handed as, in principle, it would capture a benign substance that had only a limited effect but happened to be similar to a drug controlled under the MDA. Many exclusions might then be needed. If interpretation one is correct, the approach would capture all substances the ACMD has dealt with to date. Also, I would have thought that adding an inclusion list to the definition of psychoactive drugs would make it easier to manage an exclusion list, as well as helping on the resources required for that.
The Minister will see that I am genuinely struggling on this: we all want the legislation to work, but unless the definition is strengthened and underpinned with ways of testing psychoactivity, the Bill might not result in successful prosecutions or controls. What response does he have to the difficulties I have outlined? If he will not accept the amendments, will he give this matter full consideration before Report and Third Reading?
These are not party political concerns but concerns that emanate from a desire to see this Bill have a proper effect and safeguard all our communities. I genuinely believe that we do not have this matter right as yet, because major loopholes might emerge as attempts are made to prosecute the producers and suppliers of these pernicious drugs.
I now move on to the issue of proving that a substance is psychoactive. I am sure that the whole Committee is aware that the ACMD has written to the Home Secretary warning her that we will have to rely on proxy measures of psychoactivity, such as in vitro neurochemical tests, to prove psychoactivity, and again these tests “may not stand up” in court. It could result in a very resource-intensive forensic strategy and legal costs could well rise due to the need for expert witnesses, who obviously may disagree with each other. In vitro tests—that is, tests carried out in glass test tubes—are not conclusive and some substances that seem to be psychoactive in a test tube have been found not to be psychoactive in vivo, that is in humans. A conclusive test of psychoactivity would require randomised tests on human beings for definitive proof, and obviously that is fraught with difficulties.
I suggested on Second Reading of this Bill that we should take the ACMD’s warnings seriously. There have been only five prosecutions in Ireland since similar legislation was introduced in 2010. Police in Ireland admit that one of the reasons that there have been so few prosecutions there is that it is difficult to prove psychoactivity. Detective Sergeant Tony Howard from the Irish Drugs and Organised Crime Bureau told the BBC:
“We are relying on scientists to assist us with these prosecutions and, unfortunately, they haven’t been able to provide the evidence to us.”
We need assurances from the Government that they are making good progress with the ACMD in resolving this issue. Without the credible threat of prosecution, it will be much harder to disrupt and break up the supply chains.
Amendment 43, which I remind the Committee is based on an ACMD recommendation, would define a psychoactive substance as
“a compound capable of producing a pharmacological response on the central nervous system or which produces a chemical response in vitro, identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act 1971”.
It is my understanding that one of the benefits of this definition is that it would be harder for defendants to challenge proxy evidence of a substance’s psychoactivity, because legally psychoactivity would be defined by proxy indicators. It is important that the Minister outlines why this wording would not be more legally robust than the current wording, because psychoactivity is, after all, right at the heart of the Bill.
If the definition of psychoactivity is limited to the known drug groups, we know that the resources required would be more manageable, and a series of simple biological tests could be done on known targets to indicate the drug group of a substance. According to chemists and toxicologists, this is
“run of the mill profiling”.
Thus, a library of known compounds could be built up and additional testing would only be required where the law was challenged. Leading chemists, including Professor Les Iversen, assure us that it is highly unlikely that new substances will be found that fall outside the known drug groups. If the Minister cannot accept the limitation to known drug groups, I would appreciate his telling the Committee why that is and outlining his difficulty with such a limitation.
Finally, I will move on to the issue of resources needed to test for psychoactivity. The Government will recognise that the proposals in the Bill are not immediately cost-neutral. As we have already seen, this clause gives rise to the need for neurochemical tests in order to prove the psychoactivity of substances. These tests need to be paid for, presumably both by the prosecution and defence teams in any court case. The Forensic Science Service, a public body, was abolished in 2011 and what we now have is a patchwork collection of commercial forensic science providers.
Carolyn Harris (Swansea East) (Lab)
With some laboratories charging up to £100 per test for each individual product to be tested, would my hon. Friend agree that trading standards would need extra financial resources to make any future legislation viable?
Lyn Brown
I certainly agree with my hon. Friend. The expert panel on new psychoactive substances make it perfectly clear that those forensic science providers will only take on the work if they consider it commercially viable. The state will have to pay competitive rates if it wants to test for the psychoactivity of drugs. I would like the Minister to assure us that the burden of paying for these tests will not fall entirely on the prosecution services or local government. The Bill is a radical addition to our drugs control policy and the Home Office has a responsibility to ensure that it is not acting as a drain on already depleted resources at the CPS. Local authorities and police forces may also want to test for psychoactivity before pursuing action against local suppliers. They too need support in this area.
In the Home Secretary’s letter to the ACMD she argued that data sharing in the police and forensic community would be the key factor in the forensic response to the Bill. She also pledged that the Home Office would drive for the mechanisms to ensure data is shared efficiently. I would like to ask the Minister what progress is being made on this front. We do not want unnecessary duplication adding to the expense of enforcing the Bill, nor do we want prosecutions not be brought because prosecutors do not have the same knowledge of a psychoactive substance as a police force or indeed the Home Office.
The Home Affairs Committee report on the Bill highlighted a number of concerns regarding the expenditure needed to achieve a prosecution. The Chartered Trading Standards Institute argued in its written evidence to the Committee that proving psychoactivity in order to gain prosecution would require
“rigorous scientific testing and analysis to obtain a toxicology report detailing the specific chemical components found in the drug.”
That point was made earlier by my hon. Friend the Member for Swansea East. The CTSI estimated that the approximate cost would be greater than £100 per substance to conduct a basic test. What is more alarming is that typical head shop investigations will require multiple tests to be conducted due to the content of NPS being different in different packets of the same branded drug. One packet of something exotic bearing the same name as another packet will contain different compounds. That just will not stand up in court.
Owen Thompson
A Scottish Government expert review group that reported in February this year included a recommendation that a toolkit be developed to support trading standards staff tackling NPS in our communities. Does the hon. Lady agree that it would be particularly useful to roll that out, so that we can ensure the best possible approach, consistent across the country?
Lyn Brown
The hon. Gentleman is absolutely right that data sharing across police forces is essential to ensure we get the right information and can prosecute cases where possible. Police Scotland has voiced similar concerns, stating that a successful case would require evidence from a qualified expert with experience of working with NPS who could identify the substance and prove its psychoactivity. Furthermore, Police Scotland also states that every case that involved NPS offences would require the suitably qualified medical expert to provide evidence in court, which would also incur a cost.
The critical issue in the Bill—the definition of psychoactivity—still has to be addressed, although I suppose there might be something in the letter that has been submitted to the Committee. The ACMD published further advice on 23 October and is still of the view that
“the current definition on the face of the Bill is too unspecific and does not adequately define a psychoactive substance”.
Essentially, the Home Secretary has rejected any qualification of psychoactive substances—for example, by including only synthetic products. The definition in clause 2 remains as originally drafted, without reference to harm, to which we will come later.
Much of the detail of the Government’s discussions has not been published, so the reasoning behind their position is not entirely clear to me. They have not accepted any suggested amendment to the wording of clause 2. It is unfortunate that there has been no agreement between Ministers and the statutory body of expertise, the ACMD. I fear that that risks destabilising the overall soundness and public perception of the proposals, by which I mean the ability to prosecute successfully. If the definition remains largely unchanged, there will be consequences relating to harm measurement, proportional sentencing and credible messaging. If the criminal sanctions apply equally to substances of widely different harm thresholds, that will remove the possibility that sensible and honest messages about health harms can be created.
We tabled our amendments not to be difficult or party political but to try to secure clarification from the Government on the intended scope of the Bill. We need to know that they are certain that they can legally prove that a substance is psychoactive and secure prosecutions. We want to know what provisions they have made to ensure that the necessary funds and resources are available to conduct extensive and expensive tests for psychoactivity.
Mike Penning
I thank the shadow Minister for her detailed and extensive comments, which I take in the context in which they were delivered.
I want to address some of the points that were made. The SNP spokesman mentioned the idea of a toolkit—we do not need to reinvent the wheel every time, do we? In England, local authorities, which have responsibility for public health, spend £830 million a year on tackling drug and alcohol misuse. That is 30% of the national budget, which makes it logical to address the issue.
The explanatory notes set out that the measures will be cost-neutral to the police and local authorities. Let me use some anecdotal evidence to show why. Take, for example, Belfast and Lincoln, two very diverse communities where head shops were banned using local powers. I still do not understand why other local authorities have not used those powers, but there we are. The cost and type of policing in those communities changed dramatically, without the Bill, just by banning head shops. Belfast, which I know all too well from my time as a Minister in the Northern Ireland Office, was transformed simply by people saying, “We do not want that sort of product sold in shops in our communities because people will think it is legitimate and safe.”
I understand that there are concerns, and I know that there are different views coming back from the Republic of Ireland. I went and met the Irish Minister and his scientific experts. I asked why there had been five prosecutions, and the answer was twofold, and not exactly what we have heard so far today. In Ireland, they felt that they had got the prosecutions they wanted using powers that are also in the Bill. A huge part of the Bill has nothing to do with the CPS and the police prosecuting, but is about local authorities. What happened almost overnight after using those powers was that the head shops and the industry collapsed, because people had been educated correctly. Where the local authorities were using their powers—powers that are also in the Bill—it transformed the communities in the way we would all like to see. The Bill is not designed to pick on people who have been using these products perfectly legally and, they feel, safely; it is designed to get the really bad guys—the dealers and those sorts of people. The seven-year prison sentence is in the Bill as a last resort.
In terms of applied science and technology, the Home Office will identify and bring forward the capability throughout the UK on the forensic requirement. We are going to do that. I accept that we will have to give more detail, perhaps on Report, and we are happy to do so.
I am sorry we disagree so early in the Bill, but I have real concerns about amendment 51, which runs counter to the blanket ban. If we are going to go for a blanket ban, we are going to go for a blanket ban. If we start fiddling around the edges, that blanket ban becomes difficult, so I do not support the amendment. I fully accept the fact that the shadow Minister and other members of the Committee have not had enough time to read the ACMD’s latest correspondence. Perhaps that can be addressed on Report. The ACMD understandably moves with debate, as it moves in different areas. As I said earlier, using “synthetics” in the Bill is wrong. A blanket ban is a blanket ban. We have to get ahead the game, and that is what we have been trying to do.
I fully understand why the amendments have been tabled, and that the one from the hon. Member for Midlothian is probing, but sadly at this stage I cannot support amendments 51, 43 and 44 for the reasons I have given. If more discussion and investigation is needed, the Report stage may be a better time for that. A lot of the concerns are that we will not be able to prosecute, but we will. It happens in other parts of the world and in Ireland. There were concerns about harm, but if a blanket ban happens, we are ahead of harm, rather than waiting for harm to happen and for people to die. On that basis, I hope that colleagues will not press their amendments to a Division.
Lyn Brown
I hear entirely what the Minister is saying, and I have some sympathy, but may I push him on a couple of things? The first is the issue of the definition. I did not hear him explain why we cannot use the words “new” or “synthetic”. That would give us a better focus on the things we want to ban. Secondly, I did not hear why we were not able to put the organic substances that we know to be harmful, such as salvia and kratom, within the scope of the 1971 Act. That just seems logical. We know that those substances are harmful and we know what they are. People will not be able to graft new bits on to plants to create new organic substances—certainly not at the rate at which they have managed to create new synthetic substances.
The Minister talked about costs. I used the words “immediately become cost-neutral” in my notes, but I say gently to him that while I accept that there may be savings to the local community and the local police from banning head shops, cutting the supply and getting rid of the demand from our streets, I genuinely do not believe that those savings will be immediate. I gently suggest that one reason why there have not been more prosecutions by local authorities is that they have not had the wherewithal—the finance— to know that what they are taking to court will actually stand up. There is a cost issue that we need to look at.
The Chair
If the hon. Lady has further points to make, it might be advisable to make them at this point.
Lyn Brown
My problem is that it was such a big thing that I did with three clauses that I am worried that I have missed something and I am not getting it out. I am not sure we have got to the bottom of the evidence around psychoactive substances, whether it is provable, and whether the definition that the Government are currently going with would enable provability within the court.
The Chair
I wonder whether it would be helpful to the hon. Lady, and sensible at this point, if the Minister responded to the points that she has made. If she thinks of other issues that she wants to raise, she could do so by way of an intervention.
Mike Penning
I do not want to go round in circles, as I have made the points that I would almost certainly make again. At this point I would like to make some progress. “New or novel” substances have, according to my legal team, no legal meaning within the law, which is why we are not going with that.
Mike Penning
Ireland is a much smaller country and, if we proportionally move the percentage in population up from 5%, we would see substantially more prosecutions. I am really pleased that I went to Ireland as I was amazed at the amount of work done by local government on prevention. One reason why the measure will not come into force until April is to allow what happened in Ireland to happen here. Prosecutions did take place and were not thrown out of court; the evidence base was almost identical to what we have. We are slightly tougher, but only marginally, and perhaps learning from some of the mistakes. They have said they will probably follow us and our legislation going forward, which is exactly what New Zealand and Western Australia are doing as well.
We have to be careful not to pre-empt something that might happen but which has not happened in countries where measures have been taken. I am conscious that the measure needs to be tight and a blanket ban is needed. I am happy and confident that we will have the scientific evidence and the experts out there to make sure that we can do this. Let us hope that, before the legislation comes in, and as they did in Ireland, we get into the schools, we get into local government and talk to communities, and that we get programmes out there that we will all support to make sure, categorically, that everybody is aware not only that the substances are no longer legal, but that they have definitely never been safe and, by the way, there are severe penalties for importing, manufacturing or selling these products.
Lyn Brown
I am grateful to the right hon. Gentleman for clarification on the words “new or novel”. That is the first time I have heard that they might not have a legal standing as a definition. May I push him, therefore, on the definition and ask if he is confident that the definition in the Bill will be robust enough for us to deal with provability within a court? Secondly, may I ask him to address the issue of cost?
Mike Penning
The answer to the first question is yes; I am more than confident about that. As the explanatory notes say, the CPS is responsible for the costs in prosecution terms. We do not think that will be an enormous burden. I am responsible for 43 police authorities, and the costs of policing this type of problem in our communities is huge. Public health is obviously for local authorities. I used to be shadow Minister for public health, and the cost burden is very interesting. We have seen in Ireland that the number of people who turn up to A&E has dropped dramatically. The number of people needing rehabilitation and treatment has also dropped. Those are all cost negatives.
Andrew Gwynne
The Minister makes an important point on the costs, which are borne not only by the Home Office and the budgets he is responsible for but across Departments and within local government. He will know that although Public Health England is responsible for some public health functions at a national level, a lot of the budgets have been top-sliced and devolved to local government. What discussions has his Department had with colleagues in the Department for Communities and Local Government and the Department of Health to ensure the kinds of education programme he talked about are up and running from day one? That will be a crucial element.
Mike Penning
The shadow Health Minister makes an important point. I chair a newly formed inter-ministerial group that includes Ministers from the Departments he alluded to and others, such as the Department for Business, Innovation and Skills, as well as Ministers from the devolved Administrations. We are treating this issue not just in England and Wales but in Scotland and Northern Ireland too. He is absolutely right that Public Health England has responsibility for part of this. Most of public health has been devolved, with £830 million going to local government. Obviously, local government has priorities. However, with 30% of its budget being spent on tackling drug and alcohol misuse, it is pretty obvious what those priorities should be. As chair of the inter-ministerial group, I will be pushing on that.
Owen Thompson
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Clause 3
Exempted substances
Lyn Brown
I beg to move amendment 45, in clause 3, page 2, line 14, at end insert—
‘(3A) The Home Secretary must consider making regulations under subsection (2) if she receives a recommendation from the Advisory Council of Misuse of Drugs to bring forward such a regulation in respect of a psychoactive substance.”
This would enable the ACMD to proactively request that the Home Secretary consider regulations.
On Second Reading, I asked whether the Minister had considered providing credible measures for relatively harmless substances to be excluded from the controls introduced by the Bill. That, after all, is something the expert panel envisaged as a potential part of the Bill when it made its recommendation, following the Irish model. Amendment 45 would be one way of providing such measures, as it would allow the ACMD to proactively request that the Home Secretary consider adding a substance to the exempted list.
There is broad support for the Bill across the political spectrum. However, we know one concern is that it may restrict trade in harmless substances. I put it to the Committee that if people knew it was possible to make representations to the ACMD about substances they wish to exempt and for convincing and evidence-based arguments to make their way up to the Home Secretary, the Bill might have even broader support than it currently does.
As we know, the Home Affairs Committee received much written and oral evidence about the issue of poppers. Colleagues in the SNP have tabled an amendment about them and I will have more to say about poppers in that debate.
Mike Penning
I think there is a very important debate to be had on poppers. That will be the Chair’s decision when we get to poppers—however, at the present time I did not realise we were talking about poppers.
The Chair
To be fair, the hon. Lady has already accepted that that is a subject for further debate.
Lyn Brown
I like help, so do not stop trying to help.
I admit that I am sympathetic to the SNP’s amendment. If the ACMD, through Professor Iversen’s evidence, is suggesting that poppers pose a low risk of harm, it would be within the scope of the Bill to place poppers on the exemption list—but I am not an expert.
John Woodcock (Barrow and Furness) (Lab/Co-op)
I am a little puzzled. Perhaps the shadow Minister or members of the SNP might be able to shed light on this. Why, exactly, is the Scottish National party putting forward amendments about poppers that would, presumably, have an effect in England but not in Scotland itself?
The Chair
I am sure that the hon. Gentleman is trying to be helpful with his amendment, but as has already been indicated, there will be a separate debate on that.
Lyn Brown
When we get to poppers, experts will need to assess the evidence and decide whether the case for exemption has merit. If I may link this to our discussion on the second clause of the Bill, we know that there will be significant costs in testing the psychoactivity of substances, as there will be for enforcement measures contained within the Bill. By introducing a charge on applying for exemption, the Government potentially could raise the revenue and ensure that what is left of the industry pays for its own regulation. Does the Minister think that there might be scope for that?
While we are discussing exempted substances, I want to raise a concern that is pertinent to schedule 1. Paragraph 1 of schedule 1 exempts those drugs that are controlled by the Misuse of Drugs Act 1971 from the scope of the Bill. That is appropriate, because we do not want suppliers of drugs that we know to be very harmful being subject to the lesser tariffs contained within this Bill, rather than those in the 1971 Act. As the Home Secretary herself has stated, the 1971 Act must remain at the apex of our legal controls, and this Bill ought to be considered as complementary.
I want to press the Minister to ensure that part of this legislation will not slow down the process by which NPS we know to be harmful are brought under control through the Misuse of Drugs Act. It seems that there is a danger that the impetus for action will be lost, given that this Bill will provide some measures of control of new psychoactive substances. I do not want to see a time gap between a dangerous drug hitting the market and finding its way on to the controlled substance list as a result of this legislation—particularly given the lower tariffs contained within this Bill for supply. My worry would be greatly eased if the Minister resolved to ensure that this issue is included in the Home Office’s statutory review of the Bill.
In conclusion, the capacity to exempt substances from the controls introduced by this Bill is clearly central to the Bill’s receiving widespread support. The focus of the Home Affairs Committee report on the issue of poppers has already made that clear. I hope that the Minister will give serious consideration to our amendment or to other ways around the problem. I look forward to being able to offer a reassuring response to my concerns about the relationship between this Bill and the 1971 Act.
Owen Thompson
I will be brief. In broad terms, the inclusion of the ACMD in the amendment would perhaps allow an opportunity for greater consideration to be given, not only to the chemical compound, but to the effect that a substance might have on an individual. I would certainly be broadly supportive of that and see merit in its inclusion, or at least we could see what could be brought forward through developing this as we progress to Report.
Mike Penning
I understand fully the shadow Minister’s concerns, but I hope I can alleviate them.
The Home Office greatly values the work of the ACMD. In my meetings, the chairman has been very helpful. The work has been going on for decades. Although we accept that clause 3 only provides for the ACMD to provide advice when asked, the relationship has always been two-way. The ACMD is not shy, and nor are we. Where the ACMD has had concerns in the past, it has come to us and we have dealt with them, and vice versa. Hon. Members have raised in the House issues to do with constituents, and we have gone to the ACMD. It has an ongoing programme of looking at what is out there and whether we need to move something into a different category. I can assure the Committee that that will not change in any way—far from it.
Recently, drugs that were classified as psychoactive have moved into a completely different regime.
John Woodcock
Does the Minister accept that there is a very significant shift in the burden of responsibility? He says the relationship works well at the moment, but the ACMD may now be judging whether something is a food, for example.
Mike Penning
I was about to come on to how we have looked at other parts of the world and how such changes occur.
Andrew Gwynne
I want to press the Minister a little on the issue of consultation and make sure that we get the Bill’s wording absolutely watertight. I fully accept his point of view that the way in which these things work is a two-way process, and that Home Office Ministers are open to receiving advice that perhaps they did not ask for from various regulatory bodies. However, the amendment that my hon. Friend the Member for West Ham has tabled would make it absolutely watertight in the Bill that it is a two-way process. My reading of subsection (3) is that the Secretary of State must consult the ACMD and other such persons as she considers appropriate before making regulations. However, there is nothing to say that the ACMD or others could come to the Home Secretary first and request that regulations are made. Our amendment would make that watertight.
Mike Penning
The shadow Minister would have a point if not for section 1 of the Misuse of Drugs Act 1971, which allows the council—or ACMD—to issue advice to Ministers when it considers it expedient to do so. That provision is in the Act. A protocol between the Home Secretary and the ACMD allows the council to consider drug issues without any advice from us at all. That is in the Act.
Lyn Brown
Okay, but we have tried to helpfully suggest that there might be a way of making this a cost-neutral thing with the industry, proving that a substance should go on to the exemption list because it is harmless. The Bill and the public’s acceptance of it will be strengthened if harmless substances are put on an exemptions list, as we have done with incense.
Mike Penning
That was looked at extensively by the expert panel before the legislation was introduced, and it was rejected. The panel looked particularly at New Zealand, which had already introduced a licence, basically, which is what we are alluding to—to people applying for a licence—for low-harm substances. That has not worked.
Mike Penning
No one has applied for a licence and there is basically a blanket ban. The experts, who are much more expert than I am, looked at it extensively. They examined it and rejected it and were happy with the way we are moving forward. With that in mind, I am more than happy—as I suggested earlier to the hon. Member for Midlothian—to look again at that between now and Report to make sure that I am 100% comfortable with the proposals, because I understand the hon. Lady’s passion for this issue.
Mike Penning
However, at this stage I am comfortable, unless something comes forward between now and Report.
John Woodcock
What if a way of trying to circumvent the ban is similar to what has been practised by some people involved, which is to say, “This is plant food” or “a washing product”? What happens under that scenario?
Mike Penning
The Bill is quite specific, in that the seller of a product needs to make sure that the product is being sold legitimately—[Interruption.] Sorry?
John Woodcock
I am sorry to chunter from a sedentary position, but those sellers are not the people we are trying to stop. They are nefarious people who will try to get round the rules.
Mike Penning
Some of them are. Some of them are genuinely and legitimately people doing business, for example, selling a certain gas that is inappropriately used by other people, such as laughing gas. The Bill is specific in that area to make sure that we protect people. We cannot protect everybody who completely ignores what a label says, but if someone is selling certain products, they will get up to seven years in prison. That is why the harshness is there at that end of the scale, although I fully understand and do not want to penalise people at the other end, who perhaps take the products—in my opinion wrongly, and I am sure that everyone would agree—thinking they are safe. We do not want to criminalise that. I hope that the hon. Lady will not press her amendment. We can look at this carefully again, if necessary, on Report.
Mike Penning
I beg to move amendment 3, in Schedule 1, page 38, line 7, leave out from “products” to end of line 12 and insert—
‘“Medicinal product” has the same meaning as in the Human Medicines Regulations 2012 (S.I. 2012/1916) (see regulation 2 of those Regulations).’
This amendment replaces the definition of “medicinal product” in paragraph 2 of Schedule 1. The revised definition adopts that in regulation 2 of the Human Medicines Regulations 2012, which includes, but is wider than, medicinal products for which a marketing authorisation or an Article 126a authorisation is in force.
Mike Penning
Hopefully, we will agree on this group of amendments and schedule. The amendments do not alter the Government’s objective, which has always been to exclude from the scope of the Bill approved medicinal products. I think we would all agree with that. With a belt and braces attitude, the Government listened to comments made during the Bill’s passage in the other place and recognised that our starting definition was incomplete; that is an example of the Government listening. The Home Office has worked extensively with the Department of Health and with the Medicines and Healthcare Products Regulatory Agency over the summer to revise the exemption.
Amendment 3 will have the effect of exempting all medicinal products as defined in regulation 2 of the Human Medicines Regulations 2012. We are confident, as is the Department of Health, that this well-established definition will exempt medicines from the scope of the Bill.
That is a short comment, but it is a good example of working cross-departmentally and with the other place to address something that we accept was incomplete, which is what Committee stages are for.
Lyn Brown
I rise to speak to Government amendments 3 and 4, which would replace the passages on investigational, homeopathic and traditional herbal medicine in the list of exempted substances with a single wide definition of a medicinal product. Will the Government provide further detail on the exempted substances list and the forensic strategy that underpins the Bill? Some representations, including from the ACMD, have described the exemptions list as potentially unworkable, particularly if there is no inclusion list in the definition of psychoactive substances, as recommended by the ACMD. It is possible that adding an inclusion list into the definition of psychoactive substances makes the management of the exclusion list much more manageable. I would be grateful for the Minister’s view.
Mike Penning
I am really sorry if I am looking slightly puzzled, but I did not think that we were considering these matters at the moment. I will get some notes passed to me, a service which the hon. Lady does not receive. I am puzzled.
The Chair
Order. We need to have a debate about the specific amendments to schedule 1. There is scope for a stand part debate on the schedule, at which point the hon. Lady might find her comments more—
Mike Penning
On a point of order, Mr Howarth. Would it be possible for the Committee to adjourn for a few minutes so I can powder my nose?
Psychoactive Substances Bill [ Lords ] (Second sitting)
(9 years, 1 month ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
I remind the Committee that with this we are discussing Government amendment 4.
Lyn Brown (West Ham) (Lab)
These amendments would replace the passages defining authorised, investigational, homeopathic and traditional herbal medicines in the list of exempted substances with the definition of medicinal products found in regulation 2 of the Human Medicines Regulations 2012. I understand that the Government feel it redundant to explicitly exempt those types of medicine because they are covered by the new definition. The explanatory statement says that these medicines will fall within the revised definition. How certain is the Minister that that is the case? One reason the Bill has had wide support is that the Government have been explicit that herbal remedies will not be controlled. We must be sure that the redrafting has not moved the goalposts. I understand there is particular concern about the Government’s lack of expertise in eastern medicines that may be deemed psychoactive.
My other concern is that the 2012 regulations appear to offer a very broad definition of a medicinal product. They state that a product is medicinal if it is
“presented as having properties of preventing or treating disease”
or administered with a view to
“restoring, correcting or modifying a physiological function”.
I am not an expert on legal drafting, but both those phrases appear to suggest that whether a product is medicinal is subjective; it depends on how the drugs are presented or viewed, rather than what they actually do. I would like further details from the Minister on that point. We do not want a product to be classified as medicinal and exempted from the Bill just because someone claims it has medical or medicinal properties.
The Minister for Policing, Crime and Criminal Justice (Mike Penning)
I understand exactly where the shadow Minister is coming from. I have seen some of the representations, particularly on Chinese and Asian herbal remedies, and I do not think there is a real concern. The key to this is trying to get everybody to see the new way we are looking at these products within the blanket ban. Everyone seems to want a list of products, but we tried that, and we had to amend it 500 times. Frankly, it does not work. We are very confident about this, and I assure the Committee that we are satisfied the revised definition firms the legislation up. The definition includes investigational medical products, homoeopathic medicinal products and traditional herbal medicines. That is quite specific. I will look at it again between now and Report, but I am very happy that the drafting experts, who we all rely on, have firmed this up. I queried it myself, but I am happy today.
Andrew Gwynne (Denton and Reddish) (Lab)
If it came to light in the review of the Bill’s measures that homeopathic medicines with certain psychoactive qualities were being abused and misused outwith the Bill’s functions, would the Minister look, maybe on Report, to change the regulations to ensure that those medicines are covered by the blanket ban?
Mike Penning
The Home Secretary’s powers within the Bill, should it become an Act, will enable us to ensure that sort of thing happens. I assure the hon. Gentleman that a close eye will be kept on all types of medicine. If what he mentioned was felt to be happening between now and Report, which I doubt, or as we go forward, there are powers within the Bill to make sure that those medicines are covered. I hope that alleviates his concerns.
Amendment 3 agreed to.
Amendment made: 4, page 38, in schedule 1, line 13, leave out paragraphs 3 to 5—(Mike Penning.)
This amendment is consequential on amendment 3. It removes the entries in paragraphs 3 to 5 of Schedule 1 in respect of investigational medicinal products, homoeopathic medicinal products and traditional herbal medicinal products, as these products fall within the revised definition of medicinal product inserted by that amendment.
Owen Thompson (Midlothian) (SNP)
I beg to move amendment 56, in schedule 1, page 39, line 23, at end insert—
“Miscellaneous
11 —alkyl nitrates”
This amendment seeks to implement a recommendation by the Home Affairs Select Committee that “poppers” should not be banned.
I will try to be succinct. We felt it was important to table this probing amendment following the evidence gathered by the Home Affairs Committee and published in its report last Friday. I am not looking to press the amendment to a vote, but it is something that should be taken into consideration as we move towards Report.
The Home Affairs Committee received evidence from the National AIDS Trust and the Gay Men’s Health Collective that seemed to suggest that there was no medical evidence to suggest that poppers are in any way harmful. I am not an expert so I am open to contrary arguments. In this, as in so many areas of the Bill, the amendment is trying to avoid the unintended consequences of action or inaction that might be taken.
We felt that the inclusion of this miscellaneous exemption under schedule 1 would help to prevent any such unintended consequences, such as driving these substances underground and the increasing reliance on class A and class B drugs and other things that could be far more harmful to individuals who currently use poppers. We would be keen to see further discussion on the inclusion of this very specific exemption under alkyl nitrates; however we would not be looking to press it to a vote at this stage but would look to take it forward on Report.
Lyn Brown
The amendment would specifically exempt poppers from the controls contained within the Bill. I am aware that the Home Affairs Committee, as the hon. Member for Midlothian stated, received plenty of evidence on the issue. It concluded that poppers ought to be excluded from the scope of the ban in the Bill. Organisations including the National AIDS Trust and the Gay Men’s Health Collective argued that harm from poppers was low due to the effective regulation of the compounds amyl nitrate and butyl nitrate. Not exempting poppers from the list of psychoactive substances would take the use of alkyl nitrates outside of any regulation.
Andrew Gwynne
My hon. Friend is right to talk about the health of gay men in particular. Is she as concerned as I am that one of the unintended consequences of banning poppers could be the use of harder drugs and the risk from that not only in potential mental health problems of those that are using them but also sexual health because of the heightened risk of unprotected sex and sexually transmitted infections?
Lyn Brown
I thank my hon. Friend for making that point. One of the arguments against poppers is also that it could adversely impact on the sexual health of those imbibing. That argument can be used both ways. My hon. Friend is absolutely right; the Home Affairs Committee is quite clear that if we do not exempt poppers that could lead to increased health harms.
Dr Owen Bowden-Jones, a consultant psychiatrist and lead clinician for the Club Drug Clinic at the North West London NHS Foundation Trust, stated:
“As far as I can speak as a clinician, I do not think I have ever seen anybody come through”—
our clinic
“with harms related to poppers”.
Professor Iversen of the ACMD also stated that the ACMD had not seen
“sufficient scientific evidence”
that would prove harm in the case of poppers
“to justify a recommendation under the Misuse of Drugs Act.”
He was also not aware of any growth in the use of poppers.
I had supper last night with my hon. Friend the Member for Rhondda (Chris Bryant), who told me that the long medical history of the former Member and Labour Foreign Secretary Ernie Bevin meant he took poppers around the Cabinet table quite regularly. Apparently, that was because his doctor told him he had no sound organ left in his 18-stone body apart from his feet, and the poppers kept him going.
The Chair
Order. As my son would say, that possibly falls under the category of “too much information”.
Lyn Brown
I take your advice, Mr Howarth.
Given the evidence published by the Home Affairs Committee on Friday, I am sympathetic to the SNP’s amendment, and I wonder what the Minister makes of the evidence. If the ACMD, through Professor Iversen’s evidence, is suggesting that poppers have a low risk of harm, it would be within the scope of the Bill to place poppers on the exemption list.
I repeat: it is quite clear that I am not an expert on drug taking or drugs. I hear there has been a change in the formula used for poppers, and that a trickle of new evidence suggests the new formulation causes damage to the centre of the retina. Although reports of visual loss are very rare, this underlines the fact that we need an established mechanism for approving exemptions, whereby representations can be made to the ACMD if it is believed that an exemption should be granted. Experts, not me, need to assess the evidence and decide whether the case for exemption has merit. Poppers ought to be subject to the same evidence-based process as any other drug. This debate and the discussion around poppers underlines the need for the sort of established mechanism that I called for in our debate on clause 3.
Mr David Burrowes (Enfield, Southgate) (Con)
It is a pleasure to have the opportunity to contribute to this debate on an extremely significant and welcome Bill. I plead guilty to being a member of the Home Affairs Committee, which made these recommendations. I have had a number of conversations about issues around poppers, although I have never been a particular expert or had the benefit of having dinner with the hon. Member for Rhondda to discuss the issue of poppers in any great detail. I have, however, met with a representative from the Clonezone chain of sex shops, who made the case for having poppers properly regulated and in the open, as well as Boyz magazine, which has expressed concerns. Will the Minister indicate what evidence he has received from the gay community on this issue?
I will not repeat the evidence that the Home Affairs Committee heard, as the points have been well made. The issue is recognising the present harm level. I do not want to interfere in this morning’s debate, as I was not there, but the definition in the Bill is a blanket ban. One has to weigh up the impact of an exemption of alkyl nitrates on the blanket nature of the ban and the precedent that would set.
The case that was made to the Home Affairs Committee and that has been made to me is that we are now in a position where poppers are properly regulated and controlled, not least by the gay community itself. Previous concerns about harm and abuse in relation to poppers were relevant when poppers were compounds, and there were some tragic incidents involving other drugs being combined with poppers. The gay community makes the case that as far as its activities are concerned, poppers are best in the open and not banned.
The wider issue, which has not been mentioned before, is proportionality and where the focus of the Bill is. I think we all agree that those who consume poppers for personal use—we will come on to importing and exporting in a subsequent debate—are not the main target of the Bill. At the very least, we need to look at the focus of enforcement regarding the psychoactive substances that are on the market, and we all agree that it should be on the bad people who shift their evil trade around. Even if the Bill is enacted in its present form, I suggest that those who consume poppers in their private domain will not be a particular target of enforcement activities.
Lyn Brown
Does the hon. Gentleman agree with me—I think he does, because he has said that people who consume poppers are not the target of the legislation —that we are looking at targeting drugs that do a lot of harm? I am anxious that we will spend resources going into clubs and arresting people who have poppers on them, which will look good on the stats but will not take off the streets the drugs and the people that we want to target through the legislation?
Mr Burrowes
We will have the benefit of a 30-month review, where we will be able to look at the impact of the legislation. We need to ensure that it gets on to the statute book so that it can arm the police to get out there and find the people whom we really want to focus on. I cannot believe that those with poppers will be the main focus. We can ask that question in 30 months’ time to, I hope, reassure ourselves. This debate will help with that, and perhaps the Minister will give us some reassurance as well.
How will this be dealt with practically and properly? I hasten to say that those who consume poppers have not so much to fear; it is the people who shift the new psychoactive substances around in bulk who are causing menace. I look forward to the Minister’s response, in which I hope he will outline the evidence that the Home Office has received about the harm caused by poppers, because he has expressed real concern to the Committee about such harm.
Mike Penning
May I touch quickly on the comment made by the shadow Minister in her intervention on my hon. Friend? Possession in a club would not be an offence; indeed, possession is not an offence under any part of the legislation, unless in a secure facility. It is important to send that message out.
The Bill is in no way intended to pick on or cause problems for any individual group in society, but we are looking at a blanket ban identical, or as near as damn it, to what was done in the Republic of Ireland, where poppers were also banned. I looked carefully at the evidence to the Select Committee, particularly the comments of Dr Owen Bowden-Jones, who said—I believe that the shadow Minister touched on this—that there are harms associated with poppers.
I think that the situation is the reverse of what my hon. Friend has said. There are new types of products and poppers coming into the market in this particular nitrite area, which is starting to cause problems. We can look at, for instance, death certificates on which alkyl nitrites have been named, and we see that from 1993 until the latest data were released, there were more than 20 deaths. How people take poppers—a trade name that we all seem to have adopted—is interesting. We have had instances of people with burns who have drunk or ingested them, and there is evidence around damage and deaths. That is a debatable thing, because there are lots of experts out there, but the principle of what we are trying to do is not to have exceptions. As my hon. Friend has rightly said, what we can do is to review the situation in 30 months. At this stage, we are looking at a blanket ban without exceptions. I am only quoting from the pieces of paper in front of me, and I know that there was much more detailed evidence given to the Select Committee.
Andrew Gwynne
Surely the Minister would accept the words of the Home Affairs Committee report, which are quite clear; it says that poppers were
“‘not seen to be capable of having harmful effects sufficient to constitute a societal problem’ and therefore we recommend they should not be banned.”
That could not be clearer.
Mike Penning
I accept the point. I know exactly what it says. I beg to differ with the report and the work that was done by colleagues because of the principle of the blanket ban. If we have exemptions, what other types will be brought forward by others at other times? The principle of the blanket ban would be affected if we accepted the amendment, so I ask the hon. Member for Midlothian not to move it, or to withdraw it. Other Members may of course pursue that.
I have one final point to make. I am conscious that presumably—although we will wait for the business managers—we are not going to have a huge amount of time on Report. If we leave too much to Report, I am conscious that we might not have the time to debate the issues that we have already agreed to in the length of time available.
Lyn Brown
The Minister says that possession is not an offence. We are going to come to clauses later where I want to probe that. One of the issues around clubbing is that one person out of a group of six may well find themselves getting the poppers for the group and then doling them out to the group when they get to a club. In those circumstances, because there would be an “intent to supply”, the possession of poppers would be an offence. However, again, that is about using resources on something that has not been shown to have a harmful effect or to cause harm.
The Minister said that he wants to review, and in the review we can look at whether poppers have been particularly targeted. Can he confirm that when we get the review it will have a breakdown of which psychoactive substances action has been taken on? The issue is again that of resources. To show that action has been taken on psychoactive substances by any particular police force, it would be quite easy to take action on those who are using poppers. I want the action taken on those who are selling really harmful substances, not on the type of substances where the Select Committee’s report suggests there is no evidence of harm. Can the Minister confirm that in that review we will be able to see the types of substances that police forces have concentrated on when they have been taking action?
The Minister also talks about a blanket ban. We have a blanket ban but we also have an exemptions list. We have an exemptions list that includes incense, and coffee—I am grateful for that as I am not sure how I would have managed to get up this morning without it. When we are talking about a blanket ban, we want that to be on harmful substances—substances that cause harm, not substances that do not harm. Would the Minister consider publishing the evidence he has that poppers have entered a realm where they may well be causing harm? That would be helpful.
I think this will be revisited at Report; if not by either of the Front Benches, my guess is that there will be others who will have been moved by the letters and emails that they will be getting over the next week or so, who have perhaps been part of the Home Affairs Committee and are aware of the Committee’s recommendation that this is placed on the exemption list. Could I ask the Minister to genuinely reconsider on this issue? It is not that we are soft on drugs. We are hard on drugs and we want to be hard on the harmful drugs that could cause massive harm to many within our communities. Will the Minister take that on board?
Mike Penning
I assure the shadow Minister that in the evidence I send back to the Select Committee on that report, I most certainly will indicate the concerns that we have around harm to do with poppers.
The blanket ban is not targeted, because it is a blanket ban. It is obviously for trading standards, the police and the Crown Prosecution Service to make the decisions. When we come to the review, data will be available to ensure that we understand how the new Act is being implemented.
Andrew Gwynne
I have two points. First, I wonder whether the timescale for the Minister’s responding to the Home Affairs Committee will coincide with further debates we may have on the issue on Report. It would be convenient to have the Minister’s response in time for such debate.
My second point is about unintended consequences. Does the Minister not accept that if people cannot buy poppers in shops, in a legal format, there is a risk that they will go underground and purchase them from drug dealers, which might be a gateway into harder drugs, because the dealers will want to push more than just poppers?
Mike Penning
I will answer some of those points if I can at this stage. Yes, I will respond to the Select Committee before Report. I am not part of the business management system, but it does not look like we will have reached that stage by next week, so we will have some time. The Committee knows that I have been wanting to expedite the process.
On the second point, the evidence from Ireland, where poppers are banned, shows that that is not the case, and I am sure that the gay community is the same in Ireland as it is here. Interestingly enough, I raised the matter with the Irish Minister when I was with him in the Republic, and he said that it had not been an issue for them or caused major problems. In fact, he was surprised that I raised the matter.
Mike Penning
May I just finish responding to a couple of the other points? My brain will not work well enough to remember them all.
We will, of course, look at the issue of harm. Interestingly, we are all quoting different people. I have quotes from some professors. In addition to Ireland, other countries, including America, Canada and France, are also attempting to put some kind of ban in place. I am conscious that we do not want to be seen to be picking on any individual group in any shape or form. I fully understand that. But if we are trying to protect the public it is difficult to start to have physical exemptions in the way that has been described.
Mr Burrowes
Will the Minister tell us what level of concern has been expressed to him by the gay community?
Mike Penning
I was just coming on to that. When the Bill was going through the Lords I expected that the matter would be debated and extensively lobbied, but it was not. I understand that it was not raised at all. I also expected my door to be bursting open following requests for meetings from the different lobby groups, but I have not received any delegations. I am slightly surprised. One of the Justice Ministers raised the matter when a group was seeing them on a separate issue. I am well aware that colleagues were lobbied when they were named as members of the Committee. However, if the matter was of such concern, I would have expected representations, but I have not had any, and I am not the shyest person if people want to see me.
That is not a criticism. It is just that the question was asked and the answer is that I have not had any representations.
Lyn Brown
I know that this is not scientific, but my Facebook pages had not included anything about the matter until the end of last week. Perhaps the Minister’s door has not yet been knocked on, but my guess is that it might be knocked on, fairly loudly, by those groups as the issue becomes more apparent and the community becomes more aware of it.
Mike Penning
I have made a rod for my own back but, as I said, my door is always open.
The news that we were going to have a blanket ban is not new; everybody has known about the ban. Several other organisations, including the Churches, were worried about this issue. It has been debated extensively within the Lords. I accept that there is now a campaign on this issue, which seems to have started quite vigorously, but during the progress of the Bill in the other place and throughout the investigations that I have carried out, it was not raised with me.
Lyn Brown
May I just say to the right hon. Gentleman that I think one of the reasons that the issue was not raised with him is that there has been an assumption that the legal highs that we are banning are the bad stuff—the materials that actually cause harm? Therefore, there has perhaps been an assumption that poppers, which do not cause harm or at least have not been considered to cause harm, would not fall within the scope of the Bill.
Mike Penning
The knowledge about poppers being part of the debate has been out there in the ether; it was actually partly discussed in Scotland, when the Scots carried out their review. It was certainly discussed when the Irish passed their legislation. It has been known, clearly, all the way through.
What I am saying, however, is that in what I am trying to do—I accept that this is a concern for individuals—this issue could be really difficult for this Bill. Of course, the substances that we are banning are not all the really horrible ones, and I am really genuinely worried that I would open up an opportunity for others to ask for exemptions in areas where we do not really want to have them.
I repeat what I said privately to the hon. Member for Midlothian, namely that I hope that people will understand that this process is about my trying to get a piece of legislation on the statute book that does the job we are asking it to do and that is not challenged in the wrong way.
Owen Thompson
I hear what the Minister is saying. However, it is one thing to say that there is reassurance for individuals who may take poppers, but how do they actually get them if we do not have an exemption for poppers? If we cover poppers in the ban that we are proposing in the Bill, they will become illegal and then those who would not be criminalised by using them cannot actually get them through any legal means. [Interruption.] I hear the Minister saying regularly that there is a blanket ban, but it is a blanket ban with the exception of controlled drugs, with the exception of medical products, with the exception of alcohol, with the exception of nicotine and tobacco, with the exception of caffeine, with the exception of food—
Andrew Gwynne
I appreciate that it is not proper form to respond to a Minister’s comment through a Member who is intervening on him, but if I were to do so I would point out that the Minister said from a sedentary position that that is not the experience in Ireland. Does the hon. Gentleman suspect that what might actually be happening in the Republic of Ireland is that people are going to Northern Ireland to purchase poppers legally, which they can then use themselves in the Republic of Ireland, and that might be why this has not been much of an issue south of the border?
Owen Thompson
I would suggest that there are probably a number of ways in which any individual could acquire substances; indeed, that is part of what we will come on to next.
Mike Penning
Perhaps there is a sensible way forward, not least because the Select Committee report is fairly recent and many colleagues in the House have not had an opportunity to read it. Of course, if we do not vote on this measure now, it can then be brought back for the House, rather than this Committee, to decide. I have concerns as a Minister, not in a personal capacity. However, perhaps it would be sensible if we took some time and took some stock to consider the other evidence, and then the House can decide on Report.
Owen Thompson
I would certainly welcome that approach. We have talked a lot about how we are building the Bill around the Irish experience, but I do not see any reason why we cannot look to that experience and make it better. I think that that is ultimately what we are all trying to do. I do not seek to press the amendment to a vote at this stage; I merely want us to make the arguments and discuss it, as we are doing. I will take the matter forward to Report, when we can discuss it in more detail. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1, as amended, agreed to.
Clause 4
Producing a psychoactive substance
Amendment made: 5, in clause 4, page 2, line 32, leave out from “subject to” to end of line 33 and insert “section (Exceptions to offences) (exceptions to offences).” —(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 4, as amended, ordered to stand part of the Bill.
Clause 5
Supplying, or offering to supply, a psychoactive substance
The Chair
With this it will be convenient to discuss the following:
Amendment 52, in clause 5, page 3, line 15, at end insert—
‘(5) It is not an offence under this section for a person (“A”) to supply a psychoactive substance to person (“B”), where A and B are known to each other and such supply is part of an agreement to obtain psychoactive substances for either As, Bs or both’s own consumption, and the supply does not profit person A.”
This amendment seeks to explore how to avoid one person being criminalised when as part of a group, he is responsible for obtaining psychoactive substances e.g. via the internet; when in reality each person in the group is purchasing for their own consumption.
Amendment 49, in clause 7, page 4, line 17, at end insert—
“(d) the person intends to do this for personal gain”
This amendment would mean possession with intent to supply would only be an offence if the person was supplying the product for gain.
Lyn Brown
One of the original recommendations of the ACMD was that the Home Office should redraft clause 5 to exclude social supply, and that is what our amendments are designed to do. I note that the NPS expert group, which recommended a blanket ban, also stated that social supply could be excluded from that ban. The reason for this—we were heading in this direction in the last debate—is that I am told that it is not unusual for a number of young people to club together, and for one person to buy the substances and distribute them among their friends. The crime survey for England and Wales 2014-15 found that around a third—34%—of those using NPS got them from a friend. The reality of drug experimentation, particularly with young people, is that it is social behaviour in a group. It is common for one individual to acquire the substances to be taken by the group. I am of the view that the difference between a young adult purchasing drugs on behalf of a group for an experimental night out, and a professional drug dealer peddling potentially dangerous drugs for profit, is enormous.
Mr Burrowes
I hear the point that the hon. Lady is making, but how does she make that distinction? No one has the label: “I am a professional drug dealer” on their head. I have represented a number of drug dealers, and they may well be quite young and look very innocent, but they can be guilty of supply, whether social or commercial. Either way, they are plying their evil trade.
Lyn Brown
I accept that. I am not a learned person, and I have never defended a drug pusher, so I am quite new to this. My guess is that the way we would do this is to look at quantities—to consider the amount of drugs that somebody had on them and the group of people that they were clubbing with. If I had five poppers with me and I was clubbing with another four friends, I think that that would suggest that there was social supply going on, rather than a drug dealer making a huge profit.
Mr Burrowes
Is not the point that it is about enforcement and the police being able to take a view about what they find, so that they can decide whether the evidence amounts to supply and whether they want to take prosecution further? When they are dealing with the scenario you are describing of a bunch of friends passing round laughing gas, they would have to take a view on how far they would take it. We need to have that discretion in enforcement rather than putting it in the Bill, which could have unintended consequences.
Lyn Brown
I accept what the hon. Gentleman is saying. I think he was in the cannabis debate we had in Westminster Hall two weeks ago—[Interruption.] He was not; I am sorry. In that debate, I raised the issue of equity: somebody might be done for cannabis possession in West Ham but not in West Norwood, because police forces up and down the country take very different views about enforcement in their patch. It is about the way in which they enforce these matters. For me, the law is the law. I want equity across the country in the way in which things are dealt with; I do not see why there should not be equity across the country. I hope that helps the hon. Gentleman.
The clause as drafted makes no distinction between social suppliers and large-scale commercial suppliers. The ACMD is worried that that is disproportionate, and I probably agree. I know there is an argument that social supply is an important part of the supply chain of those drugs, and therefore it ought to be included within the reach of the Bill. Although Home Office research shows that a third of NPS were obtained through a friend or colleague, other surveys of young adults who are clubbers, such as the Global Drug Survey, have different findings that show a much higher level of internet buying of psychoactive substances.
Social suppliers are at the very end of the supply chain. I hope that this legislation, which I know we are going to pass, will enable us to disrupt and break up the immoral organisations that sell drugs to social suppliers: the head shops, the internet sites and, ultimately, the drug producers. We can reduce the social supply without criminalising young people who may not even be aware that they are breaking the law. A criminal record is one of the most harmful and life-limiting penalties we can levy on a young adult. A conviction for drug possession is not well regarded by educational institutions or potential employers. A conviction for drug supply has potentially far worse consequences, as it is rightly regarded as a much more serious offence.
Without a well-funded, comprehensive education and communication programme, there will be plenty of confusion about the legal status of NPS. It will take years to completely remove the dangerous marketing misnomer of “legal highs” from ordinary language. There is bound to be confusion about drugs that are legal to possess but not to supply, import or export, if only because they are new and unfamiliar to our legal framework. The same ignorance cannot be claimed for the drug pushers, professional drug dealers and producers who are the people we really ought to be going after.
Our amendment would add “for personal gain” to the end of the clause. That is similar to the way financial gain is considered an important factor in the sentencing guidelines for drugs controlled by the Misuse of Drugs Act 1971. Those guidelines suggest that those who make substantial gains ought to be considered, for the purpose of sentencing, to have played a leading role in supply. With that careful wording, prosecutors would still be able to prosecute individuals for selling to people they happen to know for the sake of personal profit. Small-scale, local criminals could still be punished for bringing harm to their communities, but genuine social suppliers, who are ultimately the users of the drugs, rather than the people pushing them, would be excluded.
We tabled amendment 49 to clause 7 to have the same intended legal effect as our amendment to clause 5. The same principles that govern the prohibition of supply, which is set out in clause 5, should also apply to possession with intent to supply, which is set out in clause 7. I note that the Scottish National party tabled a similar amendment, which also has the intended effect of excluding social supply from the scope of the Bill. I am quite happy to work with the SNP and the Government to work out which formulation would most effectively exclude social supply without creating easily exploitable loopholes. I firmly believe that we should be working on this problem together.
Steve Brine (Winchester) (Con)
I am listening carefully to what the hon. Lady says. Is the “for personal gain” that she suggests should be inserted into clause 5 consistent with the wording that would appear in, say, the 1971 Act? Has she taken advice to that effect? I appreciate that she might not have the answer at her fingertips.
Mike Penning
The provision in the Bill mirrors the position of substances that are subject to a temporary class drug order. The Bill replicates a piece of legislation that we have been using for some considerable time. The amendment would move us away from that.
Lyn Brown
But there are other things that are moving us away from that, too. The Bill does not talk about criminalising possession, so its focus is clearly on the dangerous, nasty stuff sold in glitzy, pretty packets in head shops, which are targeted at teenagers and young adults in our communities. We might not be mirroring the 1971 Act, but we are genuinely attempting to tackle the real problem of the nasty stuff on our doorsteps. We want to get to the suppliers and get this stuff out of our communities, but we should not criminalise young people who may be completely unaware that the “legal highs” that they have been taking are in fact illegal.
Andrew Gwynne
I am grateful to my hon. Friend for giving way. She makes an important point about personal gain, because there could be a scenario in which prosecutors would still be able to make a clear distinction for somebody who is clearly profiting from the sale of a currently legal high, even if they happen to know the person to whom they are selling on a social basis. That is an important distinction that prosecutors ought to be able to make.
Lyn Brown
I completely agree with my hon. Friend.
If the Minister cannot accept our amendments, I ask him at least to provide strong assurances that sentencing guidelines will be drawn up in a way that makes a distinction between social suppliers and suppliers for financial profit.
Steve Brine
This is where I am on this: I understand exactly what the hon. Lady says, but one could intentionally supply a substance to another person socially and it could still be for personal gain, because they could still make a few quid out of it. Therefore, a prosecutor might struggle with that distinction. I am interested to hear the shadow Minister’s view on sentencing guidelines.
Lyn Brown
I think the hon. Gentleman is absolutely right. We need to be clear in this Committee about who we want to target most. If we can make that clear, we might stand a chance of the legislation producing more than just five prosecutions and making a real impact on the “legal highs” that are out there. We should be going after those who are flooding our communities with invidious substances and tackling the real cause of the problems on our streets.
Mr Burrowes
On personal gain, do we not also want to proportionately tackle people who supply laughing gas to friends at school? They may not be the big people who earn lots of money, but they may gain by being able to get themselves an extra bit of laughing gas or by feeding a habit. They are all part of this supply chain. I would not want my children to be exposed to suppliers, whether professional drug dealers or just people who shift out this bad stuff in schools.
Lyn Brown
I accept that. Had I been lucky enough to be a mother, I would be saying exactly the same thing. Nevertheless, the kids in school who are supplying the laughing gas are getting it from somewhere, often from someone who is also giving them other stuff that they want to have pushed in the playground and in the streets. I am glad to see that the Bill will tackle offences in schools that affect children. We have also heard that there will be a good and effective education programme that will help children to say no to whatever substances are being pushed. I am genuinely pleased to hear that.
Carolyn Harris (Swansea East) (Lab)
Does my hon. Friend agree that we must also look at extending such measures to the vicinity of children’s homes where there are vulnerable young people, especially given the tendency for grooming to become the next stage in taking these hideous substances?
Lyn Brown
I understand that we will come to that later in the Bill with an amendment tabled by the hon. Member for Enfield, Southgate, who has been testing my thoughts on the legislation. I look forward to hearing from him on that.
As I have stated, a similar notion to the one I have been expounding already exists in the guidelines for sentencing under the 1971 Act. I would like to be assured that the Minister will work with the Director of Public Prosecutions to ensure that prosecutions are brought only when there is a clear public interest, which I would suggest there is not in the case of many social suppliers. I would find some reassurance in knowing that the Government will do what they can to ensure that the Bill is intelligently enforced.
Andrew Gwynne
It is a pleasure to follow my hon. Friend the Member for West Ham, with whom I agree that amendments 46 and 52 are so similar as to be almost indistinguishable. I very much hope that the Minister will consider adopting them.
I welcome this moment of harmony between Labour Members and our colleagues north of the border. Both amendments make a pertinent point: although it is right that the supply of existing drugs is considered an offence even if the supplier is not supplying them for personal gain, we should be very wary of criminalising those who are simply part of, say, a small group of individuals who have conspired to obtain psychoactive substances. That point was well made by my hon. Friend the Member for West Ham.
We are still in the early stages of controlling psychoactive substances. We should start from a presumption of ignorance for those not seeking to profit from the flow of such substances. My hon. Friend is absolutely right—I am sure that she does not speak from personal experience; she keeps protesting, so we will take her at her word—that the reality of drug experimentation, I am led to believe, is one of shared experiences. There is a qualitative difference between a group of young people procuring substances for shared use and a profiteer on the high street. The way in which clause 5 is currently drafted makes no distinction between those people and large-scale commercial suppliers; I have to say that that is just wrong. It is true that sometimes friends can be part of a supply chain, but they are right at the end of it. We should not, at this stage at least, impose a criminal record on a young person who gives some of these substances to their friends.
The Labour party is fully supportive of the principle of criminalising those who seek to make money from this pernicious trade. When someone is in the business of selling dangerous substances, we can assume they will be following developments regarding the illegality of their work, so I am firmly behind clause 5 in a general sense. Nevertheless, I urge the Minister to consider very carefully the fact that the amendment is intended to adopt a principle included in the 1971 Act: one of “personal gain”. Prosecutors could then still make a distinction regarding somebody who quite clearly profits from this trade, even if, as I said in an intervention, they happen to know the customer in a social capacity.
I note the reasoning behind subsection (3), and I approve of it. It must be made clear that the substance not being of a psychoactive nature is not a defence in itself if the supplier intimated that the substance would have such an effect, notwithstanding the fact that he or she would have no doubt trading standards on their case.
I urge the Minister to think carefully about this. The point made by my hon. Friend and, indeed, echoed by the SNP amendment is that we need to tread very carefully, so that we do not end up criminalising young people for the sake of it. We want to tackle the real issue, which is the supply of the psychoactive substances we want to ban.
Owen Thompson
I very much agree with the comments from Labour Members. It is not the intention behind any measures in the Bill to target these small groups of people. The Bill is very much aimed at those who put these substances in the marketplace and on high streets on a larger scale. That is the reasoning behind our amendment. If there are drafting issues, it is surely not beyond expert drafters, of whom I am not one, to come up with a form of wording that encompasses the aims of the three amendments we are discussing, while countering some of the issues raised by Government Members.
Lyn Brown
Does the hon. Gentleman agree that the Government have opened the door to this by not wanting to prosecute possession? The Government themselves are therefore saying that they want to get to certain classes of pusher and of people involved in psychoactive substances, not individuals who just possess a drug.
Owen Thompson
It largely comes down to another unintended consequence. We are not looking to target those individuals or small groups of friends, whatever the circumstances happen to be, who are not the object of the Bill. It is a question of how we capture that in a way that leads to successful prosecutions where necessary but manages to support people where it is not the mass-scale issues we have been talking about.
The amendment is a probing one. We will not push it to a vote, but I urge the Government to use it as an opportunity to seek an alternative and look at how best we can manage this aspect in a way that meets the genuine concerns raised by Government Members, while protecting young individuals who may find themselves charged with supply when, in fact, it is what anyone else would see as personal use.
Mike Penning
I fully understand what colleagues on both sides of the Committee are saying, but I have some real concerns. If we exempt a group—not because they are young; we keep saying that, but we are just old and they are all younger than us—we will open up a significant loophole in the Bill, not least because of what my hon. Friend the Member for Enfield, Southgate spoke about from personal knowledge. What is personal use? We have discussed that in lots of other areas. While I desperately do not want to criminalise young people, there is a whole set of measures in the Bill that will prevent us from getting to that position. That is why they are there.
I advise the Committee that some things that have been said are not quite factually correct. Supply does not need proof of payment under the 1971 Act, but proof of payment is a consideration in sentencing, which is exactly what we would look for in this measure. It is not for me to tell the Sentencing Council exactly what its guidelines should be. We have moved away from politicians doing that—it is now people who are much more expert than I am—but I have already committed to writing to the Sentencing Council once the Bill has completed its passage in order to advise it on the will of the House. We will return to that when we discuss children’s homes.
Lyn Brown
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 6, in clause 5, page 3, line 14, leave out from “subject to” to end of line 15 and insert “section (Exceptions to offences) (exceptions to offences).” —(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 5, as amended, ordered to stand part of the Bill.
Clause 6
Aggravation of offence under section 5
The Chair
With this it will be convenient to discuss the following:
Amendment 48, in clause 6, page 3, line 43, at end insert—
‘(8A) Condition D is that the person who committed the offence knew, or had reason to believe, that the consumption of psychoactive substance would cause the person consuming the substance harm.”
Makes it an aggravating factor to sell a substance which the person knew or suspected to be harmful.
Amendment 55, in clause 9, page 5, line 26, at end insert—
‘(2) In sentencing, account shall be taken of the relative harm associated with the psychoactive substance that was the subject matter of the offence”
This amendment seeks to ensure sentencing is commensurate with the potential harm done by the substance involved.
Lyn Brown
We have tabled these amendments to address concerns about disproportionate sentencing. I raised this issue on Second Reading, and it figures heavily in the Home Affairs Committee report, which concluded that
“there is a lack of clarity in the Bill with regard to the relative harm associated with different types of NPS and the appropriate sentence commensurate with the offence.”
Amendments 47 and 48 would make it an aggravating factor to supply a psychoactive substance that the supplier knows, or has reason to believe, is harmful.
Under the 1971 Act, sentences are linked to the harm caused by the drug possessed, supplied or produced. The more harmful the drug, the harsher the maximum sentence. For example, someone prosecuted for possession with intent to supply a class A drug such as heroin could potentially receive a life sentence. The maximum punishment for possession with intent to supply a class C drug such as anabolic steroids, however, is 14 years. There is judicial discretion in applying individual sentences, but the general approach of linking to relative harm is important.
The Bill represents a radical departure from previous attempts to control drugs because it legally decouples controlled substances from an independent and objective assessment of the harm they cause. We understand why that might be appropriate. The process by which the ACMD determines the harm of a substance can be lengthy and resource-intensive, which is precisely why the Home Office cannot keep up with the illicit market. It is difficult to introduce a concept of harm in the Bill without denying the Home Office the tools it needs to address the central problem.
However, by introducing the concept of harm in clause 6, which exclusively addresses statutory aggravating factors, I do not believe we would hamstring the Home Office or prosecutors. Prosecutors would not have to prove a substance’s harmfulness to secure a prosecution for supplying, producing, importing or exporting a psychoactive substance; they would only have to demonstrate that the individual had reason to believe that the substance was harmful in order to establish an aggravating factor and a harsher punishment.
Lyn Brown
Just as importantly, the Home Office and enforcement agencies would still be able to control substances without having to prove that they are harmful. This amendment would therefore not place the authorities one step behind the market, which is the problem the Bill is designed to solve.
Section 1 of the Drugs Act 2005 included aggravation within its scope. I understand that this is hardly used. Does the Minister know how often it has been used successfully in court? He may seek inspiration on this one, or I am happy for him to write to me with the answer.
Lyn Brown
The greatest benefit of the amendment is that it would formally recognise that someone ought not to receive the same sort of punishment for supplying a relatively harmless substance as someone supplying a substance which they ought to know could be very dangerous. It keeps the traditional link between harm and sentencing, which is an important principle, without wrecking the Bill.
Andrew Gwynne
My hon. Friend makes an important point on the issue of harm and sentencing. We probably all agree in the Committee that it should be the intention of the law that the more harmful the substance being supplied, the harsher the sentence should be for that supply.
Lyn Brown
Absolutely. I think that were this included in the Bill it could have a deterrent effect on those involved in supply and change the nature of the market towards less harmful psychoactive substances. I note that the Scottish National party has an alternative amendment which seeks to achieve a similar end. I will repeat what I said when we found ourselves in the same situation when discussing how to exclude social supply: I am very happy to work with other parties and with the Government in order to ensure that our shared goals are reached. I hope that they take this offer in the serious manner in which it is intended.
I look forward to the Government’s response with interest. They will know that this is an issue which has exercised supporters and opponents of the Bill alike, and that if a way round the problem can be reached, we ought to grasp it. Our amendment has the potential to bring even more consensus to the Bill.
Owen Thompson
Apologies for my slightly delayed return; I had to act as a Teller for the vote that has just happened. Our amendment 55 is an amendment to clause 9 not clause 6, although it does fit nicely with those that are here. Our approach is to look to ensure that there is a genuine protection in the concept of relative harm, as the shadow Minister mentioned prior to our suspension, and that the associated psychoactive substance is the subject matter of the offence, so that we do take account and any sentence handed down is relative to the offence. I accept that different sentencing regimes are in place within Scotland and the rest of the United Kingdom and I appreciate the points that the Minister will, I am sure, be making about that.
Our amendment is a probing one, but the fact that it mirrors those tabled by the Opposition suggests that the intent behind the amendments is consistent, regardless of which part of this island we happen to be presenting them from—[Interruption.] These islands. I apologise. I suggest that, as the Bill progresses, due consideration is given to the intent behind the relative harm aspects mentioned in the amendments.
Mr Burrowes
I wish to speak to the group of amendments, in particular amendment 55, which provides the opportunity to talk about how the courts would deal with the issue when it comes to sentencing. I accept that the Bill will hopefully help to revolutionise enforcement and provide tools for the police to get out there and deal appropriately and proportionally with getting psychoactive substances off the streets and out of harm’s way for hardworking citizens—all citizens, in fact. That is welcome. The Bill also recognises the civil sanctions and the civil regime regarding the seizure of such items.
When a prosecution comes before the courts—in Ireland there have not been many prosecutions and there may not be a huge number here—we want to ensure that the penalties are just and commensurate with the offence. We therefore have a problem, because the substances are different from controlled drugs, and the Misuse of Drugs Act 1971 contains a classification system that enables relative harm to be attached to a controlled drug, and that is then relevant to the sentence. Because of the blanket ban we do not have that, but I do not want to rehearse our previous debates on the matter.
It is important, nevertheless, not least for the courts because of proportionality, to be able to distinguish between psychoactive substances. No doubt the courts will take account of statutory and non-statutory aggravating factors—we will debate those factors later—and will consider the amount of drugs, the circumstances and the degree of sophistication, but they will also need to reach a judgment on the relative harm of the substance. I draw the Committee’s attention to page 13 of the Home Affairs Committee report, a report I know the Minister read avidly over the weekend—he could not put it down.
Chapter 5, on the concept of harm, draws reference to the evidence of Rudi Fortson, QC, who highlights the position, which the Minister reiterated to the Committee, that the Government do not wish to be disproportionate with sentencing—far be it from them to want to be disproportionate; they certainly do not. There is also wider consideration in case law, principles and conventions that would ensure that every penalty would be considered proportionally.
How, therefore, will the sentencing courts get that assistance? Rudi Fortson states that,
“in the absence of drug classification, or an expert’s opinion (if accepted) as to harm, the courts will have little option but to assume that all psychoactive substances are equally harmful”.
That is the problem we have, and it is why the debate on amendment 55 is welcome.
The Minster has already said that as soon as the Bill has completed its stages he will write to the Sentencing Council encouraging it to take action. The problem with that is that I know from experience that the council is not the quickest vehicle where taking action is concerned. On the desecration of war memorials, there was a commitment from a Justice Minister to write to the Sentencing Council, but it could be considered only when the council was to meet to consider amending its guidelines. I therefore encourage the Minister to make it clear that the process will be expedited.
The Minister and the Government have rightly taken an expedited view in relation to getting on the statute book the legislation regarding the enforcement tools, but we also need it to be fit for purpose for the courts. That is why I would like the Minster to communicate with the Sentencing Council and seek assurance that it will consider the matter in an expedited form so that we will get an answer quickly.
I also take comfort from the recent letter from the Advisory Council on the Misuse of Drugs to the Home Secretary, which now provides a clear scientific framework to establish that this issue can be proved in the lab in vitro. That will also provide an opportunity, with the benefit of evidence that I think is going to be resourced, whether that is from the forensic strategy or the Centre for Applied Science and Technology. That material will all come together to provide the body of evidence for the Sentencing Council to come to an informed judgment. However, that will all need to happen at quite a rapid pace. That is my first point.
The second point is that there will need to be some flexibility, because there are new psychoactive substances coming on stream. How quickly will the Sentencing Council be able to provide appropriate guidance to the sentencing courts for these new substances? I would have thought that there will be a whole new regime for the Sentencing Council to deal with this, given the way that it has taken its time before.
It is absolutely vital for public confidence and the interests of justice that this particular chapter in the Committee’s deliberations is taken to heart. We made a recommendation here that the Sentencing Council be requested to produce appropriate sentencing guidelines, taking account of relative harms. That was a specific recommendation; I think the Minister is intimating that he is on the same page on that one. It is very important that we have something that is fit for purpose, not just for the police but for the courts.
Andrew Gwynne
I support my hon. Friend the Member for West Ham on amendments 47 and 48, which she has tabled. I do not wish to detain the Committee for too long, because there seems to be a degree of consensus breaking out. When we were last in discussion, about the previous clause, the consensus was between the Labour and Scottish National party Members; now it seems to be among Labour, SNP and Conservative Members that there is a degree of consensus.
I urge the Minister to consider very carefully the points that were put forward by my hon. Friend when she moved amendments 47 and 48. I agree with the Minister that all of the aggravating factors set out in the Bill so far are fair and proportionate. However, we need to go that little bit further, as my hon. Friend has said, and I would argue, as she did, that her amendments are an eminently sensible solution to disproportionate sentencing.
As it stands, the Bill makes no distinction between classes of NPS. We should be introducing the concept of harm into clause 6. The hon. Member for Enfield, Southgate made some very pertinent points, which were addressed in the report by the Home Affairs Committee, and I will briefly quote from a couple of passages from page 13 of that report on the concept of harm, because they should help us to form our opinions as we discuss these amendments.
The report starts off by saying that,
“one of the principal purposes of the Bill is to ‘protect hard-working citizens from the risks posed by untested, unknown and potential harmful drugs’”.
We all agree with that. That message was reiterated by Lord Bates—Minister of State in the House of Lords—who said that,
“success would mean reducing the harms caused by new psychoactive substances”.
It is interesting that Lord Bates is referring specifically to the “harms caused”. That is why we argue that we should tighten up on the issue of harm in the Bill.
As the HAC report goes on to admit:
“This bill does not calibrate for harm, and indeed exempts known harmful substances whilst banning substances which are not harmful simply because they are psychoactive”.
I do not wish to regurgitate the debate on poppers, but they are a case in point. That is why harm has to be considered.
I think we all agree that somebody supplying very harmful substances should receive a harsher sentence than somebody supplying a relatively harmless substance. The link between harm and sentencing is an objectively just one, which my hon. Friend the Member for West Ham and the hon. Member for Enfield, Southgate have both made very clear. It would also produce a situation where there is a greater disincentive to sell the more harmful substances.
I urge the Minister to think carefully about including the definition of harm in the Bill. It seems as though his noble Friend Lord Bates in the other place has considered that, as referred to in the Home Affairs Committee report. It does not make sense that we ban substances that are not harmful simply because they are psychoactive, at the same time as we do not calibrate for harm, and known harmful substances, as part of the Bill.
Mike Penning
I thank colleagues for their contributions. The last point raised by the shadow Health Minister, the hon. Member for Denton and Reddish, is probably the most difficult for me, not least because we would be moving away from the blanket ban. That is something that we have tried to introduce for many years. I fully understand the way in which the courts have historically looked at drugs sentencing, but this is new. However, the principle should not be any different. I highlight the fact that I will correspond with the Sentencing Council, as I alluded to earlier on. The situation in Scotland and Northern Ireland is different, but I am sure that they will follow that lead, not least because of the work the Scottish Government have done.
I fully support the principles behind the amendments, and it is clearly right that the courts should take account of the harms and the type of offence, but I feel that this is very much a matter for the independent Sentencing Council. The aggravating factors proposed in the amendments are already broadly covered by the Sentencing Council’s guidelines for drug offences, which we will be replicating. I take the point that my hon. Friend the Member for Enfield, Southgate made about the speed at which the Sentencing Council may need to move, and the speed at which we in Government need to move to give it the facts it needs to make decisions.
The process will be an evolutionary one. We do not want a young person—we keep referring to young people—or a person who had a small amount of a substance and sold it on to someone else because they were broke to be treated exactly the same as a drug dealer who has imported two tonnes of the stuff in a container through one of our ports. Clearly, in sentencing, that would be wrong. I am committed to writing to the Sentencing Council—it already knows that I am going to do this—to say that we expect it to take into consideration not only what the Committee and both Houses decide, but the relevant parts of the Home Affairs Committee report. The part that we have been discussing, in particular, is enormously helpful as we move forward. We do not want people to be treated differently under the law, but we want dealers, as we understand dealers, to be treated differently.
I cannot agree that we should move into the territory of harm, because to do so would completely damage the principle of our thinking. I accept that that thinking is completely new, and it will be quite interesting for the courts, the Crown Prosecution Service and the Director of Public Prosecutions. It is important that the Sentencing Council does its job in England and Wales, and that a similar thing happens in Northern Ireland and Wales. I noted the agreement of the hon. Member for Midlothian and the hon. Member for West Ham on that; when the hon. Gentleman suggested that it would be appropriate, there was a nod from Her Majesty’s Opposition. I have taken that on board, and I will write to the Sentencing Council. We could work together on the content of the letter.
Lyn Brown
I am grateful to the Minister for stating that he agrees with the principle behind the amendments and that he will write to the Sentencing Council to urge it to take note of what the Committee and the Home Affairs Committee have said. That is very welcome, and I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Burrowes
I beg to move amendment 40, in clause 6, page 3, line 20, leave out “or C” and insert “, C, D or E”.
The Chair
With this it will be convenient to discuss the following:
Amendment 41, in clause 6, page 3, line 43, at end insert—
‘(8A) Condition D is that the offence was committed on or in the vicinity of any premises intended to locate any vulnerable child;
(8B) In this section “vulnerable child” means any person aged under 18 who is not living with their family and is—
(a) accommodated in regulated residential care or unregulated accommodation under section 17, 20, 25 or 31 of The Children Act 1989, or,
(b) accommodated in accommodation under part 7 of the Housing Act 1996.
(8C) The Secretary of State may by order made by statutory instrument specify the circumstances in which paragraph (a) and/or (b) of subsection (7B) apply.
(8D) Condition E is that the offender supplies a psychoactive substance to any persons under the age 18.’
Amendment 42, in schedule 4, page 48, line 16, at end insert—
“Misuse of Drugs Act 1971
(1) The Misuse of Drugs Act 1971 is amended as follows—
(2) In section 4A (Aggravation of offence of supply of controlled drug) after subsection (4) insert—
‘(4A) The third condition is that the offence was committed on any premises intended to locate any vulnerable child or in the vicinity of said premises;
(4B) in this section “vulnerable child” means any person aged under 18 who is not living with their parents or carers and is
(a) accommodated in residential care under section 17, section 20, section 25 or section 31 of The Children Act 1989, or,
(b) accommodated in a multi-occupant dwelling under part 7 of the Housing Act 1996.
(4C) The Secretary of State may by order made by statutory instrument specify the circumstances in which a court must take into account Condition C;
(4D) The fourth condition is that the offender supplies a controlled drug to any persons under the age of 18.’”
Mr Burrowes
The amendments particularly focus on sentencing, on the aggravating factors when someone is convicted under the Bill and on whether there should be a particular focus on those who supply psychoactive substances to children outside accommodation for vulnerable children. They seek to put those factors on the same footing as supplying in the vicinity of a school.
If one thinks about the purpose of including a statutory aggravating factor applying to those who supply drugs in the vicinity of a school, which is in this Bill and in the Misuse of Drugs Act 1971, although we are dealing with new types of drugs, the principle is the same whether it relates to a controlled drug or a psychoactive substance. If someone is plying their trade outside a school, Parliament takes the view that that is a statutory aggravating factor that does not need to be left to non-statutory guidance from the Sentencing Council. We make it clear that that is an aggravating factor that will lead to an increased sentence.
The amendments seek to tease out from the Minister why there should be a distinction. We are considering psychoactive substances, so we have to look at where they are being pushed and where they are subject to wider abuse and exploitation. That is why the amendments particularly focus on extending the statutory aggravating factor to supplying outside residential children’s homes and supported accommodation such as hostels, foyers or night stops. When dealing with such accommodation, Committee members will know from their constituencies and wider knowledge that they often house vulnerable people who can be prone to other forms of exploitation. Substance misuse, particularly of psychoactive substances, can often form part of that.
The amendments refer to accommodation for vulnerable children in order to capture both residential children’s homes and supported accommodation in which local authorities place children under the age of 18. Evidence that has come before all-party groups and no doubt Ministers suggests that such children in such accommodation are more at risk of exploitation than others. It could be argued that they are more at risk of harm than those affected by the supply outside schools, because of the other types of exploitation and abuse that go on in these types of accommodation.
References are also made in the amendments to different aspects of residential care and why children are at particular risk. The Children’s Commissioner has found that a disproportionate number of children who are sexually exploited are living in residential care. Children at a high risk of sexual exploitation also run the risk of exploitation relating to drugs. The all-party parliamentary group on runaway and missing children and adults’ inquiry highlighted the targeting of children’s homes by perpetrators due to the abuse and high vulnerability of such children, which is why the amendments seek an additional statutory aggravating factor. Children in care often lack the shield of a family to protect them from risks, so 16 and 17-year-olds and others are at particular risk of abuse, whether related to drink, drugs or psychoactive substances.
In addition to children in care, vulnerable 16 and 17-year-olds may find themselves homeless or at risk of homelessness but do not become looked-after children. In that zone, they are prone to having complex needs, whether in relation to housing, substance misuse, including drugs, mental health issues, contact with the criminal justice system or wider exploitation. That is why the amendment seeks a statutory aggravating factor. Why not leave it to the Sentencing Council guidelines, which include the
“targeting of any premises intended to locate vulnerable individuals or supply to such individuals and/or supply to those under 18”?
Non-statutory aggravating factors are already in the guidance.
We have to ask whether supplying to children outside a school is worthy of a statutory aggravating factor. The amendment would amend both the Bill and the Misuse of Drugs Act so that they are consistent with each other. Parliament needs to take the lead, as we did with the Modern Slavery Act 2015, which looked at many areas of exploitation, particularly the exploitation of children. Now is the time to look at the body of evidence and see that the particular vulnerability for children is not so much in schools, where there is more of a protective shield and statutory agencies are trying to prevent things from happening, but away from the eyes of many people. In an area that is sadly subject to exploitation, there may well be a need for Parliament to get on the front foot and ensure that there is statutory provision. That is my position; I hope the Minister considers it seriously.
Lyn Brown
I have enormous sympathy for the motivations that drove the hon. Gentleman to table the amendments. One of my first jobs was working in a children’s home, so I know just how vulnerable children can be. I also know that he has the support of the Children’s Society, which has been helping to make childhood in Britain safer for more than 100 years and is a fine organisation.
The Children’s Society has highlighted the relationship between new psychoactive substances and exploitation. Sometimes, that exploitation is economic, with reports of drug dealers forcing young men to work for them in order to pay off debts they that have accumulated by trying NPS. Sadly, as the hon. Gentleman mentioned, we also face the problem of sexual exploitation. The Children’s Commissioner found that more than a third—35%—of the children most at risk of sexual exploitation were living in residential care.
PACE—Parents against child sexual exploitation—have demonstrated that young girls have been targeted by groomers with NPS to try to get them hooked. We are all shocked by the grooming scandals that have hit many of our cities and towns, and I am in no doubt that the people engaged in such crimes are just the sort of criminals who ought to be hit by the strictest penalties provided by aggravated offences.
I am interested to hear what the Government make of the amendments. If they cannot accept the current drafting, would they be willing to go away, think about it and come back with alternative plans on Report, because this is an important issue? Will the Minister devote special attention to making sure that vulnerable children are given specific and focused education to ensure that they have the resilience to say no to those who want to prey on them with NPS and other drugs?
Steve Brine
On Second Reading, I mentioned Baseline Training, an assessment and training company based in my constituency. Further to what the shadow Minister was saying about the exploitation of young people, Baseline gave me some truly shocking evidence before the Bill was introduced in the House. In April this year, the Hampshire and Isle of Wight drug strategy group had good intelligence that young girls had performed sex acts on men who provided them with mephedrone. There is good evidence coming from Hampshire and, I suspect, other parts of the country that backs up what the shadow Minister said.
Lyn Brown
I thank the hon. Gentleman for his intervention. I emphasise again that young people in care are vulnerable and need us as their parents, in loco parentis, to help them to say no to those who want to exploit them and prey on them with NPS and other drugs. They need support so that they can look out for themselves.
Owen Thompson
I very much agree with the principle behind the amendment. From the correspondence I have had, I know that agencies such as Who Cares? Scotland very much support the proposals. This is a particular problem, because young people in supported accommodation and the type of accommodation we are talking about require extra support, protection and help. The amendment would go a long way towards addressing some of their needs and dealing with that. I voice my support for the aims of the amendment.
Carolyn Harris
I have been greatly troubled by some of the stories I have heard in my constituency of Swansea East from the local police, social workers and organisations. Young women are now grooming other young women, with the fee being legal highs. Some of the stories are absolutely horrendous. The Children’s Society has done great work on that. For 63% of the housing providers who engaged in one of its surveys, the greatest problem they saw for these young people was involvement in legal highs.
Owen Thompson
That is very much the case. In many situations, the young people we are seeking to help and support are at a vulnerable stage of their development. There is a reason we need to give them extra help. It is about ensuring that a situation that has resulted in their being in secure or looked-after accommodation is not made worse by not putting in place extra protection to ensure we help, support and encourage their development towards the better future that I am sure we want for all young people.
Mike Penning
May I say at the outset, as I did in the previous group of amendments, that I have deep sympathy not only with the amendments tabled by my hon. Friend the Member for Enfield, Southgate but with the excellent work that charity has been doing in this area? One of the things touched on by my hon. Friend was the anomaly between schools and children’s homes.
Clause 6 in its original form was included in the Bill for consistency’s sake, to replicate an identical provision in the Misuse of Drugs Act 1971, because that provision was created before the Sentencing Council existed. I looked long and hard at whether it would be right at this stage to try to replicate that, because it would completely go against what we have been trying to do with the Sentencing Council in that area. We will continue to look at this, and it will be part of the submission to the Sentencing Council, which I will probably send to each of the devolved Administrations as well. While I cannot tell them what they should do, they need to know the will of the House.
We need to keep an extremely close eye on what goes on. Section 125(1) of the Coroners and Justice Act 2009 specifically says that courts must take into consideration the sentencing guidelines on this. We need to ensure that the sentencing guidelines replicate the will of the House and of 99.9% of the public, who want to see the abhorrent crimes we have discussed—and things that it would perhaps not be appropriate to discuss here but which I know about within my ministerial capacity—are subject to the full force of the law. As I have said about previous amendments, that is a matter for the Sentencing Council on which we can advise, but there must be consistency throughout the Bill.
While I understand that the amendment is a probing one, I hope I have given my hon. Friend the Member for Enfield, Southgate assurance. The principle behind the previous set of amendments shows my reaction to this. It is something we are keen to keep under review, and it has to be specific within the correspondence I will draft, with help from others, to the Sentencing Council. With that in mind, I hope my hon. Friend will not push the amendment to a vote.
Mr Burrowes
I am grateful for the debate and the cross-party agreement on the principle behind the amendment, which is the concern we all share to ensure that those convicted of supplying their evil trade to vulnerable children get the sentence they deserve. I pay tribute to the Children’s Society for championing the cause.
Mike Penning
I was discourteous; I did not name the Children’s Society nor refer to that charity in my remarks. A charity of such distinction and with that longevity of service to vulnerable young children deserves acknowledgement by name from a Minister.
Mr Burrowes
I thank the Minister for that.
The clause tries to ensure consistency on controlled drugs in relation to supply at school premises, which is understandable, but this is a landmark Bill. Professor Iverson spoke about the Bill being one of the most important and significant pieces of legislation for 40 years. With that comes a need to ensure that sentencing is appropriate to the particular substances and recognises the characteristics of certain substances. It has already been mentioned how, sadly, such substances are used for exploitation, often of children and those in particular types of accommodation and in care. Supply of substances is a characteristic of the abuse, and that is why it is right for Parliament to consider whether it wants to ensure that supply to a vulnerable child is an aggravating factor.
I concede that the Sentencing Council has non-statutory guidelines that seek to address the matter, but it is important to recognise that they are guidelines, not tramlines. As a Parliament, we have a duty to vulnerable people, where there is that power imbalance. The substances that we are seek to criminalise and to set appropriate sentences for increase dependency, create debt, stupefy children and allow them to be exploited. As a Parliament, we should have tramlines, not guidelines, and we should be absolutely clear about that.
We can say too often that we are sending out a message. We should not always send out messages with Bills, but part of this Bill is about sending a message that these substances are illegal and are not good or safe. Part of that message should relate to sentencing so that it is clear that anyone who wants to risk plying their trade to vulnerable people in the type of accommodation specified will face a hefty sentence. Those people will not be looking up the sentencing guidelines that will go to the magistrates court and the Crown court. They will not have a clue about that, but they may well get a clue that the offence has a maximum penalty of seven years or so and that they will be at the upper end of the market for sentencing.
I recognise that the Minister will consider the matter seriously and in good faith. It must be looked at across the piece, along with the relationship between drug sentencing and the Sentencing Council. The Bill is innovative, and we want to ensure that we send out a clear, stark message to those who exploit the most vulnerable. I look forward to the Minister considering the matter further at a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 7, in clause 6, page 3, line 43, leave out “on prison premises.” and insert “in a custodial institution.
‘( ) In this section—
“custodial institution” means any of the following—
(a) a prison;
(b) a young offender institution, secure training centre, secure college, young offenders institution, young offenders centre, juvenile justice centre or remand centre;
(c) a removal centre, a short-term holding facility or pre-departure accommodation;
(d) service custody premises;
“removal centre”, “short-term holding facility” and “pre-departure accommodation” have the meaning given by section 147 of the Immigration and Asylum Act 1999;
“service custody premises” has the meaning given by section 300(7) of the Armed Forces Act 2006.”—(Mike Penning.)
This amendment replaces the reference to “prison premises” in clause 6(8) with a reference to a “custodial institution”. It then defines a custodial institution; the definition includes adult and juvenile prisons, immigration detention accommodation and service custody premises.
Ordered,
That subsection (9) of Clause 6 be transferred to the end of line 29 on page 3.—(Mike Penning.)
Clause 6, as amended, ordered to stand part of the Bill.
Clause 7
Possession of psychoactive substance with intent to supply
Amendment made: 8, in clause 7, page 4, line 18, leave out from “subject to” to end of line 19 and insert “section (Exceptions to offences) (exceptions to offences).”—(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 7, as amended, ordered to stand part of the Bill.
Clause 8
Importing or exporting a psychoactive substance
The Chair
With this it will be convenient to discuss amendment 54, in clause 8, page 4, line 38, leave out sub-paragraph (i).
This amendment seeks to explore how we can ensure that there is no criminalisation of those who order psychoactive substances over the internet for personal consumption.
Lyn Brown
This is a probing amendment that would delete subsection 1(d)(i), which criminalises an individual for importing a psychoactive substance for personal consumption. Committee members will be aware that on Second Reading it was argued that subsection 1(d)(i) creates a troubling inequity. Although it will not be an offence under the Bill to purchase a psychoactive substance from a shop, drug dealer or website that supplies from the UK, it will be an offence to purchase the very same drugs from a website that distributes from outside the UK. That is important because the internet plays a significant role in the supply of NPS, unlike many other substances. According to the Home Office, about 6% of abusers obtain NPS over the internet, but other surveys have found a much higher rate of internet purchase of NPS. The Global Drug Survey 2014 found that 22% of its sample had bought psychoactive substances from the internet.
The inequity created by subsection 1(d)(i) is particularly worrying, because a consensus has been built around the Bill on the basis that it will not criminalise users. Unfortunately, it is hard to see how a ban on importing for personal consumption could have any other effect. In practice, it will often be difficult for purchasers to know whether they are buying from a UK-based site, so they will not easily be able to tell whether they are committing an offence. Unless amended, the law could lead to websites and sellers on marketplace sites such as Silk Road and its successors prominently advertising that they are UK-based, or perhaps foreign-based but posting from the UK, which would make a mockery of the law. Websites may also attempt to trick British users into thinking that they are transferring the drugs from within the UK by adopting a .co.uk address. The subsection is bound to create unwitting criminals. What measures has the Minister put in place to mitigate that?
I suspect that the Government may be concerned that deleting subsection 1(d)(i) will create a loophole that will make it harder for them to tackle the NPS industry, because, if the subsection were removed, UK-based suppliers might be able to claim that they are importing for personal consumption and evade the law by making lots of small purchases. If the Government make that case convincingly, I will happily withdraw my amendment as I am committed to tackling this dangerous industry. However, I seek assurance that the Home Office has seriously considered how this part of the Bill can be effectively drafted not to not criminalise users. For example, quantitative measures of personal consumption could be incorporated into the Bill to differentiate between personal and professional importation, as is the case for regulations that manage the importation and excise duty of cigarettes and alcohol.
I note that Scottish National party Members have also tabled an amendment exploring this issue, and I am sure they seek the same assurances. Just as on the issue of social supply, I ask the Minister to work with prosecutors and the Sentencing Council to ensure that the Bill does not go after the people we do not want it to go after. I include importers for personal consumption within that group.
Finally, I turn once again to the issue of the resources necessary to enforce the Bill properly once it becomes law. The National Crime Agency admitted that it has a continuing problem preventing the importation of NPS, particularly from China. The NPS expert review identified a number of challenges faced by UK border controls. Some of those challenges, such as the fact that Border Force needs greater powers to seize suspicious packages, will be addressed by the Bill. However, some of the challenges identified by the expert panel require a non-legislative response. The expert panel claims that the intelligence picture on NPS trade is very limited and that we have particular difficulty dealing with websites due to the anonymity provided by e-currencies. What progress has been made on addressing those weaknesses identified by the expert panel?
This is one of the most important issues in the Bill. If we cannot get to grips with the importation of such substances, closing the head shops is all the more likely to lead to the same drugs finding their way into the hands of professional drug dealers, including gangs.
Owen Thompson
I will continue in the spirit of harmony and good will that has been a theme this afternoon. Our amendment 53 was identical to amendment 50, so great minds think alike.
The same reasoning lies behind amendments 50 and 54. Amendment 50 would ensure protection for people importing substances ordered online. Exporting is a slightly different situation, but the logic follows through. The spirit of the Bill is about ensuring that individual users are not criminalised; it is about addressing the wider industry and wholesale suppliers and dealers. Society is changing—in the way in which people approach everyday shopping, for example—so we have to take account of the fact that people approach things differently. It is not simply a case of going down the street to a head shop, or whatever it happens to be, to buy a substance. With every other aspect of life increasingly moving online, we must ensure that legislation keeps pace. These amendments would ensure that there is an eye towards that.
We will seek assurances from the Minister if he does not accept the amendment. This is a probing amendment, and we are trying to ensure that these elements are fully thrashed out before Report. As more and more happens online, we need to ensure that our legislation is keeping pace and taking account of changing trends in how people access substances such as NPS.
Mike Penning
Again, I thank both the shadow Minister and the SNP spokesman for indicating that these are probing amendments, so my colleagues can relax.
The shadow Minister summed up exactly why I will not accept the amendment. We are not trying to pick on individuals who purchase these products for personal use but, as we close head shops and other avenues, there will clearly be an increase, as the expert panel highlighted. As the Minister for Policing, Crime and Criminal Justice, the National Crime Agency is my responsibility. I have been working with the NCA and other agencies, and I have particularly been working with my colleague, the Minister for Immigration, because obviously Border Force will have a crucial role.
If we accepted the amendment, the debate would be about what is personal use. During this debate we have heard about cigarettes and alcohol. My family was in the pub trade for many, many years, and there has been an issue with Transit vans—I apologise for picking on Ford—and other large vans going across to Calais and coming back full of cigarettes and alcohol. When those vans are stopped by borders, immigration and customs, the driver says, “This is completely for personal use.” That opens up a difficult area.
The amendment would make it difficult for Border Force to do the job we need it to do. As has been highlighted, we absolutely need the expertise in that relevant area. On the point that the hon. Member for Midlothian made about the difficulties that exist online, some of the expertise that we increasingly need is there, but a lot of this is organised crime, and those are the people we are after. I am absolutely determined that the NCA and the other agencies should have the powers and the expertise they need to go after those people, not the little guy who is in possession for personal use.
The difficulty in law—this has been an issue in the courts—is personal use. It is a really difficult area, and that is why I sadly cannot support the amendments. I understand fully their probing nature. I always argue that it is all too easy to build up points as a constable by picking on the little guy, when the others are the guys that we want. I assure the Committee that we have introduced the measures to allow us to get the big guys, not to pick up the little guys. We will keep a close eye on the situation, but I think we have what we need.
Lyn Brown
Has the Minister given any thought to how purchasers will know whether they are buying from a UK site? I do not think that they will be able to tell whether they are committing an offence. There will be criminals out there who will trick people into believing that they are buying from a UK site.
Mike Penning
If they buy from a UK site, it is illegal under the Bill, because it is selling. If those who run the site try to represent themselves as a UK site to sell the product, that is just as illegal as being a head shop. What we have said all the way through the Bill is that it is not legislation that is the silver bullet but education and understanding. It will be generational for some people, but that is where the proportionality that we talked about earlier in the criminal justice system, in local government and in trading standards comes in. It is important that we discuss this point, but we need to ensure that there are no loopholes and that the agencies that we are asking to look after us and the legislation have the powers that they need.
Mike Penning
I understand fully the point that the hon. Lady is making, and it is a difficult area. What I cannot do is to open up the whole Bill because of what will, I hope, be a small group of people. The likelihood of their being prosecuted in that area is very unlikely, because of everything that we have debated. Purchase and possession would be legal—we have discussed that—so there would be no illegality on the part of the individual. It is the seller or the dealer we are after. I think I am right on that point.
Lyn Brown
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 9, in clause 8, page 5, line 6, leave out from “subject to” to end of line 7 and insert
“section (Exceptions to offences) (exceptions to offences).”.—(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 8, as amended, ordered to stand part of the Bill.
Clause 9
Penalties
Amendment made: 10, in clause 9, page 5, line 26, at end insert—
“( ) A person guilty of an offence under section (Possession of a psychoactive substance in a custodial institution) is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
(ii) to a fine,
or both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or both;
(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine, or both.”.—(Mike Penning.)
This amendment is consequential on NC2. It provides that the new offence of possession of a psychoactive substance in a custodial institution, as inserted by that new clause, attracts a maximum penalty on conviction on indictment of two years’ imprisonment, a fine, or both.
Clause 9, as amended, ordered to stand part of the Bill.
Clause 10
Power to provide for exceptions to offences
Question proposed, That the clause stand part of the Bill.
Mike Penning
This is a technical thing, but it is important. The clause confers on the Home Secretary the power to specify exceptions to the offences in clauses 4 to 8 by regulations. As we have already debated, new schedule 1 lists certain excepted activities on the face of the Bill, so clause 10 is not required.
Question put and negatived.
Clause 10 accordingly disagreed to.
Ordered, That further consideration be now adjourned.— (Jackie Doyle-Price.)
Trade Union Bill (Ninth sitting)
(9 years, 1 month ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 8 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Chair
Before we begin, may I ask everybody to ensure that all electronic devices are switched off or in silent mode? We will now continue line-by-line consideration of the Bill.
Chris Stephens (Glasgow South West) (SNP)
On a point of order, Sir Alan. I apologise to the shadow Minister for intervening at this stage. The Standing Orders of the House were changed on Thursday in terms of what is referred to as English votes for English laws. Can you advise, Sir Alan, if those Standing Orders apply to any clauses of the Bill or any amendments to it?
The Chair
I have to inform the hon. Gentleman that the changes are not in being yet. It is a proposal that is not as yet completed, so it therefore does not apply in this case and certainly not to this legislation.
Clause 13
Reserve powers
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I beg to move amendment 101, in clause 13, page 9, line 31, at end insert—
‘(c) Save that no such regulation shall have the effect of altering, in respect of any of the matters to which the reserve powers may be directed, any provision of a contract of employment or a collective agreement or of limiting an employer’s discretion as to the contents of contracts of employment or collective agreements to which the employer is a party”.
It is good to be back under your chairmanship, Sir Alan, for what I hope is the last day of our line-by-line consideration of the Bill. I am sure, given the number of inconsistencies and problems that have been exposed during the course of our debates, that we are all looking forward to coming back to the Bill on Report to raise those concerns again.
Clause 13 proposes further regulation of facility time by the extension of a very wide-ranging reserve power of Ministers of the Crown. I do not wish to detain the Committee unnecessarily by repeating the fundamental arguments for why facility time is so important; I simply draw the Committee’s attention to my previous remarks. I believe there is a serious problem with the nature of the power proposed in clause 13 and how it cuts across the devolution settlement, as was touched on in the point of order from the hon. Member for Glasgow South West.
Under current legislation, trade union workplace representatives have a right to reasonable paid time off to perform certain duties. As we have previously discussed, that has huge benefits for employees and employers alike. The clause could allow the Government to cap the percentage of the employer’s pay bill that is invested in facility time. It will give the Government the power to impose an arbitrary limit on the amount of time that public sector union officials can spend on facility work during working hours. That might be time spent on negotiating improved pay and conditions; training, as outlined in section 168 of the Trade Union and Labour Relations (Consolidation) Act 1992; promoting learning opportunities as union learning reps under section 168A of the 1992 Act, which the Minister said he was very supportive of; accompanying individuals in grievance and disciplinary hearings, under section 10 of the Employment Relations Act 1999, which is a very important function that I have been involved in; or on health and safety duties and training, under the regulations made under section 2 of the Health and Safety at Work etc. Act 1974.
The potential consequences of this are deeply concerning. The Government have not set out exactly which of those duties they seek to cap or which particular sectors the clause will apply to. They are leaving themselves a very wide-ranging power for intervening. They say, as they have so often told us, “Trust us, we’re the Ministers,” but that is simply not good enough when it comes to such important matters.
The clause is particularly troubling to Opposition Members because it establishes a clear democratic deficit in three main areas. First, the provisions will mean that Government Ministers can use as yet unseen secondary legislation to push through restrictions or repeal trade union rights contained in primary legislation. While hon. Members on both sides of the Committee recognise the important role that secondary legislation plays, many would also accept that it gives Parliament less opportunity to debate and amend such regulations than would otherwise be the case.
Secondly, the provisions could prevent public sector employers, including in Scotland and Wales who have responsibility for a number of wholly devolved areas of public service provision and who have their own democratic mandate, from deciding how to manage employment relations in their workplace and how to engage with their staff.
Thirdly, the provisions mean that the Government can be selective as to which public and local authorities may be forced to impose a cap, introducing an element of significant discrimination on quite wide-ranging powers to behave in a very partisan and nakedly political way over these matters.
There are significant questions about the legality of such a change. We heard during the oral evidence stage from Professor Ewing, the Welsh and Scottish Governments and others, about the potential contraventions that the Bill provides. There is a risk that the proposal for a cap could conflict with EU law which protects the rights of health and safety representatives to paid time for their duties and training; the rights of trade union representatives to paid time off and office facilities during consultations on collective redundancies and outsourcing under their TUPE rights; and even under general information and consultation arrangements covered by the Information and Consultation of Employees Regulations.
The measures also represent a significant attack on rights that are protected by the European convention on human rights and ILO conventions. We have many questions about the clause. I hope that the Minister can explain what legal advice he has taken on the question of whether the proposal for a cap conflicts with EU law, with TUPE rights and with the Information and Consultation of Employees Regulations 2004. I would like him to be very specific on those three points.
We had a partial debate about the clause in our discussion of clause 12, and I was intrigued by some of the Minister’s comments. He promised that he would write to the Committee and he has done so. He reiterated the point he made in line-by-line consideration and said:
“I promised to write to the Committee before we debate Clause 13 to indicate who will exercise the powers in Clause 12 to require the publication of information about facility time and who may exercise the reserve powers in Clause 13 having regard to that information…It is right that Ministers have the flexibility to propose and, as a last resort, set caps on paid facility time…This will allow the relevant Minister to make regulations tailored to that. So, for example, the Secretary of State for Health will make regulations imposing publication requirements on NHS and other health employers and may exercise the reserve powers in relation to them if he considers appropriate to do so taking account of the information relating to facility time that they are required to publish.”
I am extremely concerned that this cuts across the devolution settlement. It cuts across the powers of Welsh and Scottish Ministers to make arrangements in their own sectors. The Welsh First Minister, on hearing the Minister’s comments in our sitting on Thursday and learning of the contents of the letter, has made it clear publicly that he believes it would require the consent of the Welsh Government.
Will the Minister to clarify the position because it seems to be matter of considerable debate? There are clearly conflicting legal opinions—I know which side I am on—and this is a serious matter, given the wider constitutional debates that we are having at the moment. It appears that the Secretary of State for Health or the Secretary of State for Education would use the powers in the clause to intervene in the day-to-day running of the Scottish or Welsh health services.
Chris Stephens
My reading of the letter indicates that there would also be interference in local government. There will be an impact, given the devolved Administrations’ funding arrangements and agreements with local government.
Stephen Doughty
Indeed, and the Minister skirted round this issue when we discussed it briefly. Will this power on facility time and, more broadly, the powers in the Bill apply retrospectively and therefore affect existing employment contracts up and down the land, whether in local government or devolved public authorities or in other agreements? The measure could lead to the extensive unwinding of contracts that have been entered into in good faith by individuals, employers and public sector authorities.
Furthermore, when we look at public sector contracts going forward, should Welsh and Scottish Government Ministers and local authority cabinet members engaged in discussions with their employers about the nature of the contracts and the balance of responsibilities and rights expect those contracts to be undermined at any time at the whim of a Minister of the Crown, who could strike out clauses or imply that they are not valid because of some arbitrary decision taken about facility time? I fear that this poses an extraordinarily dangerous precedent, where Ministers will be able to act in a partisan and political way to attack, for example, a local authority or a devolved Government of different political persuasion, to intervene in their powers and democratic mandate to run public services in the way they see fit.
Amendment 101 is intended specifically to prevent a breach of article 11 of the European convention, which precludes a state from negating the provisions of a collective agreement. It would prevent the Government from using regulations and powers under the clause to rewrite existing collective agreements and contracts, which is that retrospective point I made. Those contracts of employment had been voluntarily agreed by public sector employers, employees and unions, and provided union reps with time off to represent their members.
The provision would also mean that public sector employers could agree new collective agreements and contracts of employment providing union reps with time off for union duties, effectively setting aside any arbitrary cap imposed by the Government. I draw the Minister’s attention to the case of Demir and Baykara v. Turkey in 2008 in which the ECHR affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end.
The power in the clause falls foul not only of legal precedents but of decisions, conventions and standards that we are party to. It would fundamentally cut across the country’s constitutional arrangements and the devolution settlements. It is extraordinarily unwise for the Government to do that, given precedents. I hope the Minister can give a fuller explanation, given the nature of those concerns.
Chris Stephens
I reiterate the comments I made on clause 9. This is a bad Bill and this is a bad clause. As the shadow Minister has outlined, we now know the wider implications.
I wish to confine my observations to the comments made by the Minister on Thursday, which he has followed up in writing. First, it appeals to my dry sense of humour that, having rejected amendments on publishing percentages, the Minister writes to us with percentages, in the letter on spending. I am encouraged by that and I hope the Minister will go back and consider publishing percentages on facility time.
The Committee owes a debt of gratitude to the shadow Minister for skilfully wheedling out of the Minister the prospect of the Secretary of State for Health dictating to devolved Administrations on the level of facility time. Presumably the same applies to local government. I am willing to wager that the Minister has not thought through the implications for local governments that have agreements with devolved Administrations on funding and powers through agreements or concordats. It leaves the public with the impression of a Government who conduct first-rate bullying, only days after they declared some Members second class, by a third-rate Administration whose casual approach to legislation does not even provide them with the foresight to realise the constitutional crisis they are sprinting towards.
In no other case do the UK Government have such powers to interfere or dictate to a devolved Administration how to conduct their affairs. The fact that the Government do not consider a legislative consent motion to be appropriate in these circumstances is either remarkable ignorance, gross incompetence or simply the act of a bully. This is dangerous terrain for the Government. I hope the Minister declares what discussions he has had with the devolved Administrations surrounding the reserve powers in the clause, and how they will be enacted.
These proposals are being made in the context of the Scotland and Wales Bills, which have still to conclude their parliamentary journey. It seems extraordinary that the Government can reveal their intentions at the last stages of this process. As the shadow Minister said on Thursday, creating reserve powers signals the intent to use them. The Minister must tell us what, if any, discussions he has had in that regard.
I signal our support for amendment 101. There are clear contractual obligations, and there will be clear costs to public sector employers, which will have to issue new statements of particulars or new contracts to public sector employees.
The proportion of spending on facility time is extremely low, as the Minister confirmed in his letter. Will the Government consider democratic mandates? The Conservative share of the vote at the general election in Scotland was the lowest since universal suffrage. The Conservatives have no mandate in that regard. I was considering whether to press amendment 85 to a Division but, because of the correspondence that we have received, I now feel obliged to do so.
Ian Mearns (Gateshead) (Lab)
It is a pleasure to serve again under your chairmanship, Sir Alan. In the context of clauses 12 and 13, I have been remiss in not declaring a non-financial interest in as much as I am a vice-president of the Local Government Association, which is the umbrella body for local authorities in England and Wales.
Clause 13 includes a Henry VIII power whereby Ministers will be able to use secondary legislation to push through restrictions on or to repeal the right to paid time off for trade union duties in the public sector contained in primary legislation, and Parliament will have very limited opportunity to debate or amend such regulations. It is worrying that Ministers are taking such powers unto themselves and, in essence, sidelining Parliament from effective overview and scrutiny of their actions.
The clause demonstrates the Government’s total lack of understanding of the practice of good industrial relations. First, the clause is, in effect, a blank cheque for the Government: if passed, it would give Ministers the power to limit facilities for trade union officials. It contains no explanation of how or why that power would be exercised, and it certainly provides no logic or justification.
Secondly, the provision applies only to the public sector, just like the provision to record time off for facility time, and we need to ask ourselves why that is. First and foremost, like bad employers, this Government feel it is appropriate to threaten and intimidate their own workforce. Of course, the other people who will be affected by the measure are not directly the Government’s workforce but people who work for other public bodies such as local authorities, local government and the emergency services—public servants. The main reason why the provision does not apply to the private sector is because private sector employers do not really want it.
Good employers know and understand the value of working together with their workers and with trade unions. Good employers know and understand that their greatest assets are the good people who work for them. Good employers invest in their workers—they pay them well, train them and reward them; they do all they can to encourage loyalty and dedication. They try to retain their workforce because it costs a lot of money to train staff in a range of different skills and professions. That is why the best employers work in partnership with their workers, and it is why they encourage independent trade unions.
Trade union officials are an integral part of the best companies, working tirelessly to improve relations, productivity and profits. Trade unions know and understand that workers prosper only in growing, profitable firms.
Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)
Is the hon. Gentleman aware of the review of facilities and facility time conducted by the Department for Business, Enterprise and Regulatory Reform in 2007? The report concluded that the work of union representatives actually reduces the number of cases proceeding to an employment tribunal and the number of working days lost due to workplace injury and workplace-related illness, and that such reductions result in significant financial savings.
Ian Mearns
Yes, I was aware of that, but I thank the hon. Lady for bringing it to the Committee’s attention, because it certainly helps to make the point that I am pursuing.
Clearly, there is a vision of trade unions that this Government do not understand, and that vision is shared by many private sector employers. Unfortunately, this Government see trade unions as the enemy within. They still hark back to the miners’ strike of 1984-85 and to the 1970s, when, we all accept, industrial relations in this country could have been a lot better. However, we are not in the 1970s; it is 2015, and the landscape of industrial relations is very different.
I have been a trade unionist all my adult life. On my second day of employment with British Gas I asked the personnel department how I could see a union official to sign up for my union membership, and I joined the National and Local Government Officers’ Association—NALGO—which is now part of Unison. I think that NALGO was an acronym for “Not A Lot Going On”—[Laughter.] I have been a trade unionist all my adult life, and I had the honour of working with many very decent and honourable union officers, both full-time officials and lay officials who were elected by their peers in the workplace.
I have also been an employer; I was deputy leader of Gateshead Council. Back in the days before we had the severe and harsh cuts that we currently have to go through, we had something like 11,000 employees in Gateshead. They covered a whole spectrum of different professions, providing public services for the people of the borough and the constituency that I represent. We prided ourselves on having good industrial relations and having good dialogue with our workforce on a regular basis. There were of course times when there were problems, but we managed to talk through the vast majority of those problems through good, robust and—on occasion—friendly industrial relations.
I have been above that as well; I have also chaired a national negotiating committee of the LGA called the Soulbury committee. We looked after the interests of advisers for schools, educational psychologists and other professionals of that nature. I therefore have an understanding of the strategic role that employers play in good industrial relations.
The Government need to understand why business is not that keen on these provisions. For instance, they should read Personnel Today, the journal for human resources professionals and practitioners. An article in that journal states that:
“You can have the most sophisticated industrial relations structures, follow all the rules and negotiate ad infinitum, but you will get nowhere if your relationships with staff and their union reps aren’t based on trust”.
It continues:
“This was abundantly clear during the recent civil service industrial action and the narrowly averted strike at British Airways (BA). We see this time and again. An organisation might call us in because it can’t get an agreement signed off, or the process has become too uncomfortable for both sides. What we frequently find when we get there is a climate of mistrust, entrenched ideas, and even outright hostility between union and management, employer and worker.
It doesn’t have to be this way. Look at Co-operative Financial Services, where we recently facilitated a management/union agreement over outsourcing—one of the most sensitive industrial relations issues over the past five years. Similarly at Gillette where, faced with redundancies, the business consulted with employees at the earliest opportunity and asked the staff representatives for alternative proposals, how to approach the situation and what the final redundancy package should contain. Larger, more complex organisations can learn from these successes”.
The UK Government need to learn lessons from the real world. Instead of fighting the ideological battles of the last century, they need to start equipping this country with legislation that fosters and supports good practice, and supports workers and their representatives. The legislation needs to recognise not only that it is right and fair to support the weakest and the most vulnerable but that, ultimately, as the best employers have repeatedly demonstrated, it is good for business too.
The Minister for Skills (Nick Boles)
It is a pleasure to be starting what I hope will be the final day under your chairmanship, Sir Alan. Sometimes during this debate it strikes me that the two sides of the Committee are discussing completely different pieces of legislation. Both Opposition parties portray the Bill as one of the most egregious attacks on fundamental human rights since King John, whereas I would describe it as, to borrow a phrase from the previous speaker, a NALGO Bill, in that there is not a lot going on.
What the Government are proposing here is nothing more than a set of provisions that seek to change behaviour within the public sector. After all, the public sector is funded by taxpayers: they go out to work to earn money and they pay taxes, so they have a right to see that money spent responsibly. We hope that, in the light of public scrutiny of the information relating to facility time that public sector employers will be required to publish under clause 12, public sector employers will voluntarily renegotiate their existing facility time arrangements with trade unions and bring their spending on taxpayer-funded facility time under control.
We could, of course, have legislated now for a cap, so the idea that the clause, to cite another famous monarch, is a Henry VIII measure, an egregious attack, is false. We have heard a lot about the constitution in recent hours. We could have legislated for a cap now and no doubt the Opposition would have attacked that. We have taken the more modest route of suggesting reserve powers, which—the clue is in the name—will be kept in reserve and used only as the last resort. Only if transparency shows unacceptable inefficiencies in relevant employer spending on facility time and poor value for money for taxpayers from existing facility time arrangements with trade unions will Ministers set a cap on the time and money spent on facility time.
Amendment 101 would prevent the reserve powers being exercised so as to effect changes to a contract of employment or collective agreement, or limit the relevant employer’s discretion as to the contents of the contract or agreement concerned. The amendment would, in effect, neuter any consequential provision that regulations could make amending or otherwise modifying contracts of employment or collective agreements. As I have said, it is by no means certain that the reserve powers will ever be exercised and, should they be exercised, it is also by no means certain that this would interfere with, or override, existing contractual rights and rights under collective agreements. Most union representatives do not have contractual rights to facility time over and above their statutory rights, which we are not seeking to change.
Jo Stevens (Cardiff Central) (Lab)
What legal advice has the Minister received as to whether this proposal for a cap conflicts with EU law, with TUPE law or with the Information and Consultation of Employees Regulations?
Nick Boles
We keep going around this merry-go-round. The Government receive a great deal of legal advice from their own officers and sometimes they seek other advice. We do not publish that advice; we are satisfied with the compatibility of all our proposals with all the laws and treaties to which we are signed up. Any cap on facility time will only apply prospectively. It is, on the other hand, possible in theory—though, as I have said, unlikely in practice—that a cap may apply to ongoing, legally-binding relationships; either legally enforceable terms in a collective agreement, or in the contractual rights of individual employees. This is what is flagged in the European convention on human rights memorandum to the Bill. The Government acknowledge, however, that even the potential impacts upon pre-existing contractual arrangements should be fully debated. That is why we considered the affirmative procedure to be necessary to provide the correct level of parliamentary scrutiny.
Before asking hon. Members to withdraw their amendment I want to respond to a question, which is not specific to this amendment, about the devolution settlement. The devolution settlement does not define which individual Ministers in the Government can do things. It defines which areas of policy are devolved and which are not. We have established, and there is general consent—although it might well be wished otherwise—that employment law is not a devolved policy but a reserved policy, and therefore Ministers in the UK Government are entitled to exercise those reserved powers in relation to their responsibilities. That does not imply that, say, the Secretary of State for Health, would be breaching the devolution of health to the Scottish and Welsh Governments by exercising the reserve powers under employment law in the way that we have outlined.
Chris Stephens
First, can the Minister confirm that the Scotland Bill has still to reach the end of its parliamentary journey and so the issue of devolving employment law has still to be settled? The Secretary of State for Scotland is considering that matter, as I moved the devolving of employment law in Committee.
Secondly, can he confirm which Government Ministers will have the reserve power to dictate facility time for local government and health in Scotland?
Nick Boles
It is very clear. First, we are following the Smith commission recommendations. It may be the case that a particular Bill has not yet received Royal Assent and anything is possible, as we are in the process of discovering in our vibrant parliamentary democracy. No doubt, if there is an unexpected result, future legislation will be adjusted to reflect it. The Government’s intention to follow the Smith commission recommendations that employment law remains a reserved policy is very clear. It would be odd if we brought forward a Bill that conflicted with another Bill that we were trying to take through Parliament at the same time by presuming that that Bill was going to fail. We are presuming that the Bill will succeed, because we are following the Smith commission.
I have been clear that Ministers of the Crown can exercise the reserve powers that are reserved to the United Kingdom Government. There is no detailing that this Minister can do this and that Minister can do that. We are all Ministers of the Crown and the reserve powers of the UK Government are clearly set out in the Bill.
Stephen Doughty
What the Minister is admitting is quite extraordinary. The hon. Member for Glasgow South West mentioned the Scotland Bill. There is also a debate about a draft Wales Bill, which many Members of this House and the Welsh Government consider rolls back the devolution settlement. This seems to be a further rolling back. I draw the Minister’s attention to the comment from the Minister for Public Services who, on hearing the Minister’s claims on Thursday, said:
“This confirms our assertion that the UK Government cannot impose these regressive changes on Wales and any change will require our consent.”
Is the Minister proposing to take the Welsh Government to the Supreme Court if they refuse to implement the Bill?
Nick Boles
He would say that, wouldn’t he? He is a member of the hon. Gentleman’s party and he disagrees with the Bill. I entirely respect that, but the fact remains that employment law—to which all these provisions relate—is a reserve matter in the Smith commission proposals that all parties and certainly his party signed up to. We are currently taking Bills through Parliament which will implement the Smith commission proposals in full, therefore all our proposals, including proposals on facility time are entirely consistent with the devolution settlement. On that basis, I ask him to withdraw the amendment.
Stephen Doughty
I did not expect the Minister to do anything other than stick to his guns, but I find it extraordinary. There are very serious questions, not only about how the measure cuts across existing conventions and legal treaties and provisions that we are party to. I hope the Government’s legal advice is very good because I suspect there may be a number of significant challenges to the Bill.
I remain astonished at the admission that the executive powers that have been devolved since 1999 to the Welsh and Scottish Governments are being exposed as limited by the Bill. On top of the debates on the Scotland Bill and the draft Wales Bill, that is extremely revealing. Has the Minister had consultations with the Secretaries of State for Scotland and Wales about this?
Chris Stephens
Does the shadow Minister take the same view as I do, given the Minister’s answer, that there has been no discussion with devolved Administrations as to how this would be enacted? It should require a legislative consent motion—a point that the Minister omitted from his remarks.
Stephen Doughty
It is certainly the view of the Welsh and Scottish Governments that they may well require a legislative consent motion to be passed in order for the legislation to go forward. The level of consultation at a whole series of stages of the Bill, before and during the process, has been very weak. I think that is reflected in the potential undermining of the clause in many respects by existing provisions to which we are party.
Stephen Doughty
I beg to move amendment 53, in clause 14, page 11, line 7, leave out subsection (2).
The Chair
With this it will be convenient to discuss the following:
Amendment 69, in schedule 1, page 18, line 4, at end insert—
‘(b) to take representations from the trade union or unions who are the subject of such an investigation”
The amendment would require a person investigating a breach of an obligation by a union to take representations from the union concerned.
Amendment 70, in schedule 1, page 19, line 4, after “Certification Officer”, insert
“and the trade union or unions who are the subject of such an investigation”
The amendment would require the interim report of the person investigating a breach of an obligation by a union to be sent to the union concerned.
Amendment 71, in schedule 1, page 19, line 7, after “Officer”, insert
“and the trade union or unions who are the subject of such an investigation”
The amendment would require the final report of the person investigating a breach of an obligation by a union to be sent to the union concerned.
Stephen Doughty
After a lively start to the Committee, we now come to the provisions of the Bill that deal with the certification officer. Although the position of certification officer is familiar to many members of the Committee, it does not normally get a lot of attention, although it will in this debate because of the huge extension and change to its remit proposed by the Government.
When we debated clause 6, we discussed how the certification officer will be given powers to gather information on industrial action taken by trade union members, and how trade unions will be required to publish details of all industrial action and ballots in their annual return to the certification officer. When read in isolation, clause 6 poses a risk to the neutrality of the certification officer in the regulation of trade unions. When read alongside other clauses in the Bill, however, and particularly clause 14, it amounts to a vast extension to the role, remit and powers of that position. The clause will insert into the 1992 Act new schedule A3, which is schedule 1 to this Bill, and give effect to schedule 2, which also amends the 1992 Act. As a result of those changes, trade unions will face significant new obligations and further blue tape, as we have discussed, because they will have to report to the certification officer annually on when industrial action takes place and on political fund expenditure.
The provisions will give the certification officer new, wide-ranging investigatory powers on matters such as the register of members, elections, the political fund and union mergers. For example, if the certification officer thinks that there is good reason to do so, they will have the power to demand the production of any documents relevant to their investigation. Furthermore, if they believe that a union has failed to comply with its duty, they may appoint inspectors who can require the production of documents, as well as the attendance and assistance of any persons believed to have information relevant to the investigation. Failure to comply may lead to the certification officer imposing an enforcement order, which carries punitive sanctions.
The TUC believes that those new powers represent a major new intrusion by the state into union affairs and union members’ rights to privacy. The certification officer will—I find this quite extraordinary—be able to initiate an investigation against a trade union even though they have not received a complaint from a member of that union. That power applies to rules governing elections, political funds and union mergers. The TUC is concerned that the certification officer will be expected to act on complaints and intelligence provided by third parties, including employers. We need to discuss that in detail because it provides wide grounds for fishing expeditions, sabotage actions and engagement by people who are not involved in a dispute, but simply want to cause problems, and to provoke legal proceedings and investigation or action by the certification officer.
We have heard from many people who are concerned about the provisions, and such concerns were reaffirmed in oral evidence by legal experts including Thompsons Solicitors. The United Kingdom’s judicial system is lauded by many around the world, and the Minister should note how its founding principles stand in complete contrast to how the certification officer will be able to act. It is important for the Committee to understand that the certification officer will have the power to bring a complaint against a trade union, to investigate the issue, to decide which witnesses will be called, to cross-examine them, to make a decision on the matter, and then to impose a fine on the union that they have investigated and on which they have adjudicated. I cannot overemphasise the point, which was also made by many of our witnesses, that this is simply not consistent with the principles of natural justice or the founding principles of our legal system, which include many checks and balances, not least the separation of powers.
It is quite extraordinary that this is taking place in an era when we have finally done away with some of the anachronisms of our constitutional arrangements. As the Minister mentioned, we have been having many discussions about this—I am sure that we could have a lengthy one about the other House if we wished to—and the fact is that in recent years we have moved forward. We have separated out the roles, and we no longer have the head of the judiciary sitting as the Chair of proceedings in the other place, as a member of the Executive and of the Cabinet, while that Chamber also acted as the highest court of appeal in this land. That was separated out, and we now have the Supreme Court, the independent Judicial Appointments Commission, a Lord Chancellor who is a member of the Cabinet but not of the other place, and so on and so forth. We have taken that step, and rightfully so, to separate the Executive from the judiciary and to remove the blurring of powers, yet the Government are now effectively merging all those powers together in the role of someone who, I am pretty sure, would not want those powers in the first place, and has had a very limited role until this point.
This seems to be an attempt to politicise a position so that it can be used in a very wide-ranging way, and to interfere fundamentally with the rights of trade union members up and down this country. When the provisions are considered alongside other clauses in the Bill, they do look very sinister. I am sure that the Minister will say, “Oh don’t worry, it will be fine. The certification officer will only engage once in a while if something really terrible happens,” and so on and so forth, yet he is proposing to grant huge, wide-ranging powers which, given the previous clauses we have debated, are deeply sinister. We believe that this clause and the relevant schedules are excessive, so we shall oppose them.
I turn briefly to our amendments. Amendment 53 would prevent the insertion into the 1992 Act of schedule 1, which provides for the certification officer’s new investigatory powers. Amendment 69 would provide that any person investigating a breach of an obligation by a union must allow that union to make representations before any decision is taken, which would be absolutely consistent with the principles of natural justice. I find it extraordinary that it is the certification officer who will decide which witnesses to call and to whom they will speak before making a decision. If we are talking about powers that affect the rights of trade unions, it is crucial that, at the very least, those involved should be allowed to make representations that are relevant to the matter at hand.
Amendment 70 would require any person carrying out an investigation to send the union a copy of the interim report at the same time that it is sent to the certification officer. Again, that is only fair. If such decisions are being made, at the very least the parties to the dispute should receive a copy of the report. Amendment 71 would require that the final report relating to an investigation would also be sent to a relevant union.
I hope that the Minister can explain both the intent behind these wide-ranging changes—we will come on to other parts of the role shortly—and how the process sits with the principles of natural justice in this country. I hope that he will also set out whether there will be any safeguards to prevent the officer from interfering unwillingly, or from being forced to interfere in the affairs of unions without just cause.
Jo Stevens
It is a pleasure to serve under your chairmanship, Sir Alan.
The Bill would, if enacted, fundamentally change the role of the certification officer from a neutral arbiter of disputes to a state snooper and enforcer. We have heard the concerns of legal experts, Liberty and others about the implications of these changes for civil liberties, and about the likelihood that they infringe article 6 of the European convention on human rights, on the right to a free trial, and well-established principles in common law on natural justice. No one should sit as a judge in their own cause.
I repeat those concerns today, for the record, in the light of the Government’s changes to the ministerial code, which were quietly sneaked out last Thursday via a ministerial statement in the other place. Until the code was changed last week, it used to refer in its opening paragraphs to an
“overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”.
That duty to comply with international law and treaty obligations, and to uphold the administration of justice, has just been deleted from the ministerial code. It may be a complete coincidence that, at the very point when this Bill is coming under a barrage of expert criticism for its breaches of international law and treaty obligations, the Government have decided to do away with the requirement for Ministers to uphold those laws. Will the Minister explain what possible justification there is for such a change to the standards against which Ministers are held accountable? Why was not Parliament consulted on the change?
Ian Mearns
I was interested to see a TV interview this morning in which the former editor of Conservative Home suggested that the provisions with which the Government are having problems in the House of Lords were in their manifesto, but that as they did not expect to win the election, they did not expect to have to enact many things that were in that manifesto. That theory is very interesting, as it is possible that the Government did not expect to have to enact the Bill.
Jo Stevens
My hon. Friend makes a valid point. I think that we will see more of that during this Parliament.
What was the inspiration for the changes? The Government propose to give the certification officer a whole armoury of weapons. They will be able to investigate, demand documents, demand explanations and start proceedings, which they themselves will hear, acting as prosecutor and judge, before giving a verdict and delivering a sentence. They will be able to impose a fine and, as we heard in evidence, a quasi-criminal sanction. This is an extraordinary attack on the rule of law.
Certification officers’ powers will be extended into areas that have historically been way outside the remit of the role. The CO’s role is to regulate the internal workings of unions and their relationship with their members. That is clear from the existing jurisdictions and procedures involving complaints by union members. The certification officer’s website states that his role is to
“maintain a list of trade unions…ensure compliance with statutory requirements for annual returns…determine complaints concerning trade union elections…rules”
and trade union mergers,
“oversee the political funds”
and
“certify the independence of trade unions”.
That work involves seven staff, and the net cost of the certification officer’s office, according to his most recent annual report of July this year, was £560,232. That represents a 3.7% decrease. Hon. Members might think that that is good value for money, yet the Government want to increase massively bureaucracy, cost and intrusion.
I also note from the annual report that in March 2015, the certification officer’s premises were found to be structurally unsafe. I fear that the proposals in the Bill are equally structurally unsafe. No longer will the CO’s role be confined to legitimate complaints that are not ruled out as scandalous, vexatious, hopeless or misconceived. The real purpose of the proposals was revealed in the questions from the hon. Member for Banbury to Professor Ewing in Committee on the afternoon of 15 October. The hon. Lady envisaged the certification officer being required to take action at the behest of
“someone with a legitimate cause for complaint—someone who is affected by strike action…The certification officer himself might be able to take a view that it was appropriate to investigate non-compliance.”––[Official Report, Trade Union Public Bill Committee, 15 October 2015; c. 131, Q352-354.]
Professor Ewing was understandably perplexed by that question, as even the certification officer’s expanded role would not encompass non-compliance with industrial action requirements, yet it is clear that Government Members believe that it should, and that the certification officer should act as a state enforcer who steps in at the behest of any individual to interfere in the workings of trade unions. One can imagine that the Conservative party’s friends in the TaxPayers Alliance will be keen to waste more public money and resources by pestering the certification officer on all manner of issues and seeking enforcement orders on unions, especially in the light of the oppressive reporting requirements on industrial action and political funds.
The situation shows that the Government and Conservative Members are proceeding on the basis of a fundamental misunderstanding of the law and of the role of a certification officer. They are creating a bloated and distorted role that undermines the independence of the office and offends universally accepted legal principles. As a final insult, they will require trade unions to pay for the privilege. Under the Conservatives, we are used to attacks on trade unions, but now we will have an open-ended tax on trade unions—a blank cheque—on which unions will have no say and no control. It is taxation without representation at its most extreme, enabling ideologically motivated complaints to target union resources. It is another direct, politically driven attack on the finances of unions and their capacity to represent their members.
Chris Stephens
The hon. Lady is making an excellent speech. Is it not ironic that trade unions are being asked to contribute to the costs of a certification officer, but will be prohibited from contributing to employers administering check-off?
Jo Stevens
The hon. Gentleman makes a valid point that shows the inconsistencies throughout the Bill.
I hope that the Government will rethink their proposals on the certification officer. I believe that they should be withdrawn, as they are pernicious, and that the current role of the certification officer, which is widely respected, should be retained. To do otherwise betrays a disdain for independence, impartiality, fairness and, most importantly, the rule of law.
Ian Mearns
I rise to support the amendments. The clause will increase substantially the investigation powers of the certification officer, giving him or her powers to investigate the activities of a union even when a complaint has not been received from a member of that union, or from any trade union member at all. Surely the provision completely misses the point of a trade union certification officer’s role. Trade unions are independent organisations whose function is to represent the interests of their members. Whether or not this Government approve of trade unions, the fact remains that they perform a legitimate—some would say essential—role within a free society.
The certification officer performs a vital role, but that role does not and should not involve attacking the rights of trade unions and their members who, after all—apologies to my colleagues from north of the border—are citizens of the United Kingdom. The role of the certification officer is to protect the rights of trade union members by ensuring that unions operate openly, democratically and at all times in the interests of their members. The guidance on the Bill describes the provision as giving the certification officer new enforcement powers so that action can be taken without the need for an application or complaint from a member to be received first. The certification officer will therefore be able to investigate and take enforcement action in a number of areas where that is currently not possible or appropriate. In particular, the guidance states:
“For example the Certification Officer could act upon information or concerns he had received from a third party or on his own initiative.”
That provision is totally unacceptable in a free society.
There are more than 6 million trade union members in the UK. They are all intelligent and fully capable of raising a complaint or concern with the certification officer if they have a problem with their trade union. Why does the certification officer need powers to act when not one single trade union member raises a concern? On whose complaint or on whose authority will the certification officer act? We all know on exactly whose authority that will be. Every scare story and sensationalist headline in the “Daily Wail” or the “Daily Hexpress” will be followed up. Six million members may be completely content and satisfied, but the editor of the “Daily Wail” screaming about Len McCluskey, Sir Paul Kenny or Dave Prentis having the bare-faced audacity to stand up for their members will in future be the subject of a full investigation. That is a total waste of time, and the costs of such investigations will be passed on to the trade unions, which will have no alternative but to pay.
Chris Stephens
Does the hon. Gentleman agree that the provision could lead to more malicious complaints being sent to the certification officer? It could lead to fascist organisations making complaints about the funding of anti-racist groups.
Ian Mearns
The hon. Gentleman makes a valid point. Once enacted, the provision will give the certification officer the right, or possibly even the duty, to act on any complaint, no matter its source. That is a matter of grave concern. The provision is concerning and an expensive waste of time for trade unions.
As a means of restricting the rights of trade unions and their members, the provision is nothing short of disgraceful, and that has been borne out by the evidence from a whole range of international organisations and lawyers representing many interests. The provision will turn the certification officer’s role from one of protecting trade union members into one that is highly political. They may be forced to react to politicians and newspaper editors, instead of members. Where the certification officer becomes the investigating power, they will become judge and jury over trade unions, their members and officials. Trade union members—the ones we are all concerned about with the Bill—will have to foot the bill while having no easy mechanism to hold the certification officer to account for their actions.
Nick Boles
The Government believe that it is entirely appropriate for a modern regulator to be able to investigate properly when non-compliance with statutory requirements is suspected. The idea is nothing new, as the Electoral Commission and the Charity Commission have investigation powers that can be used proactively when they suspect a breach.
The powers are important because we want the certification officer to be able to determine as quickly and efficiently as possible whether there is a problem so that that can be swiftly remedied. If no problem is found, the quicker the doubts, representations and complaints can be dismissed, which is better for everyone concerned, including unions, employers and the public. The Bill therefore extends the certification officer’s investigatory powers into a number of areas: political funds; union mergers; union leadership elections; and the appointment of a person to, or the failure to remove a person from, a union office when they have been convicted of certain financial offences. To ensure that all the certification officer’s investigatory powers are set out in one place in statute, the Bill also replicates not-yet-commenced investigatory powers in relation to statutory requirements to maintain an accurate register of members’ names and addresses.
We want the certification officer to have investigatory powers in those areas because they relate to statutory requirements that are not only of concern to union members, but of wider relevance to the general public. Members of the public need the assurance that unions are complying with statutory requirements, and they will be given that assurance if the certification officer is able to investigate of his own volition. The investigatory powers will also allow the officer to bring in additional resources or specialist knowledge, should an investigation prove complex and technical. That will give them flexibility when choosing an appropriate inspector, including a third party, to deal with such investigations and then resolve them swiftly and effectively. It will also assist their ability to manage the certification office’s workload, should there be a sudden spike in cases.
Ian Mearns
The Minister seems to be implying that there is zero chance of the certification officer being a political appointment in future.
Nick Boles
There is no proposal to change the appointment procedure for the certification officer. As the hon. Member for Cardiff Central reminded us, the appointment is made in consultation with ACAS. I remind the Committee that ACAS is currently run by Brendan Barber, the former general secretary of the Trades Union Congress. The idea that we are going to be able to stuff in some political stooge is somewhat far-fetched, like almost everything that Opposition Members have said during the Committee.
On amendments 69, 70 and 71, I am happy to reassure Members that a union will continue to have the opportunity to present its case in written representations to the certification officer before a declaration is made. The officer may also allow the union to make oral representations. That right will also apply before the certification officer issues a financial penalty or conditional financial penalty. In practice, a union may have several chances to reply to any allegations and put forward a defence. Any inspector appointed is likely to make a series of enquiries, which will include dealing with the union directly, before providing their report to the certification officer.
Finally, the union will be able to appeal a certification officer’s decision to the Employment Appeal Tribunal. That will ensure that a union has the opportunity to make further representations to an independent tribunal should it believe a decision made by the certification officer was unlawful. I therefore urge the hon. Gentleman to withdraw the amendments.
Stephen Doughty
I welcome the Minister’s clarification on those last points. Given that, I am content to withdraw the amendments, but I hope that when we discuss the subsequent groups of amendments the Minister will explain what other position in Government has the same range of investigatory, adjudication and enforcement powers in the hands of one individual. It would be useful to understand the sort of comparisons we are looking at. The powers are very wide-ranging and the situation is very blurred.
The Minister has given assurances that the position will remain independent and so on, but he mentioned a spike in cases: perhaps he suspects that there might be such a spike. Opposition Members have expressed concerns about the malfeasance that might be attempted by, for example, a fascist group or someone else who wanted to tie up the certification officer’s time or, indeed, a union’s finances in dealing with a bunch of illegitimate cases in order to disrupt and cause problems. That would be of great concern. I hope that the Minister can explain that in subsequent debates, but for now I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stephen Doughty
I beg to move amendment 54, in clause 14, page 11, line 9, leave out subsection (3).
The Chair
With this it will be convenient to discuss the following:
Amendment 55, in clause 14, page 11, line 11, at end insert—
‘(4) For the purposes of this section and the Schedules to which it gives effect complainant and applicant must be—
(a) a member of the union which is the subject of the complaint or application.”
Amendment 66, in schedule 1, page 17, line 7, leave out “or any other person”.
The amendment would restrict the power to require the production of documents to the Certification Officer and his or her staff.
Amendment 67, in schedule 1, page 17, line 47, after “obligation,”, insert
“where a complaint has been received from a member of the relevant trade union, and where there the Certification Officer reasonably believes there is evidence that indicates a breach of a relevant obligation”.
The amendment would require a complaint to be made by a union member and for the Certification Officer to reasonably believe there was evidence of a breach of an obligation before the Certification Officer initiated an investigation.
Amendment 68, in schedule 1, page 18, line 1, leave out “or other persons”.
The amendment would require a person investigating a breach of an obligation by a union to be a member of staff of the Certification Officer.
Amendment 56, in clause 15, page 11, line 16, after “32ZB”, insert
“and where a valid complaint has been made by a member of the trade union or unions relevant”.
The amendment would provide that only after a valid complaint from a union member can the Certification Officer make a declaration that he is satisfied that a union has failed to comply with the requirements for the annual return in respect of industrial action or political expenditure.
Amendment 57, in clause 15, page 12, leave out lines 16 to 19.
The amendment would prevent a union member who was not party to a complaint giving rise to an enforcement order implementing the order.
Amendment 58, in clause 16, page 13, line 3, leave out
“the applicant or a person mentioned in subsection (5B)”.
The amendment would limit enforcement powers to the Certification Officer.
Amendment 59, in clause 16, page 13, line 6, leave out “or the applicant”.
The amendment would limit enforcement powers to the Certification Officer.
Amendment 60, in clause 16, page 13, line 9, leave out
“the applicant or a person mentioned in subsection (6)”.
The amendment would limit enforcement powers to the Certification Officer.
Amendment 61, in clause 16, page 13, line 12, leave out
“the applicant or a person mentioned in subsection (5C)”.
The amendment would limit enforcement powers to the Certification Officer.
Amendment 62, in clause 16, page 13, line 15, leave out
“the applicant or a person mentioned in subsection (8)”.
The amendment would limit enforcement powers to the Certification Officer.
Amendment 63, in clause 16, page 13, line 18, leave out
“the applicant or a person mentioned in subsection (5C)”.
The amendment would limit enforcement powers to the Certification Officer.
Amendment 64, in clause 16, page 13, line 21, leave out
“the complainant or a person mentioned in subsection (4A)”.
The amendment would limit enforcement powers to the Certification Officer.
Amendment 65, in clause 16, page 13, line 25, leave out
“the applicant or a person mentioned in subsection (7)”.
The amendment would limit enforcement powers to the Certification Officer.
Stephen Doughty
The Bill needs so many amendments because of its complex nature. A lot of information and important detail is contained in the relevant schedules, and it is necessary to apply the changes that we want to make to all the relevant parts of the Bill. I will go through the amendments briefly without repeating our arguments and overall concerns about this part of the Bill.
Amendment 54 would remove schedule 2, which includes provisions permitting the certification officer to carry out investigations, even though no complaint has been made by a union member. Amendment 55 seeks to ensure that the certification officer only carries out an investigation against a union where a complaint or application has been received either from a union member or an employer who employs union members. The amendment aims to tease out our concern about who might bring investigations or complaints.
Amendment 66 would mean that only the certification officer or his or her staff—and not inspectors—would have the power to require the production of documents from unions during an investigation. This is an important point because the Minister made a case in his comments on the preceding group about a potential spike in cases and the need for additional inspectors to help the certification officers conduct their work. That is a very worrying suggestion. While the Minister might give us assurances about the independence and conduct of the certification officer under the new role, appointing a legion of inspectors under them who have some sort of quasi-judicial role separate from existing legal authorities or police does not reassure me about the way in which they would conduct themselves. Will the Minister explain how he sees their role and what constraints they would operate under?
Amendment 67 would mean that the certification officer could only initiate an investigation if they have received a complaint from a member of the relevant union and if they believe there is evidence that the union has breached one of its statutory duties. The aim is to ensure that the certification officer—or one of the inspectors—does not initiate investigations on their own volition or go on fishing expeditions through union records when they have not received a complaint from union members. Does the Minister believe that the certification officer would be allowed to undertake such investigations without complaints being made by a relevant party, particularly where a complaint from the union member involved has not been received? In my view, certification officers should not have the ability to wander around initiating investigations here, there and everywhere without any just cause.
Amendment 68 would mean that only the certification officer or members of his or her staff could investigate a union. Amendment 56 would mean that the certification officer could only make a declaration that a union has failed to comply with the new reporting requirements if they had received a valid complaint from a member of the relevant union. Again, this is to ensure that the certification officer does not initiate investigations on their own volition if no one has complained. Amendment 57 would prevent a union member who was not a party to the relevant complaint seeking to enforce an order made by the certification officer.
It is a very odd set-up where, on our reading of the legislation, somebody who is not involved at all could look at a decision that has been made and then seek to enforce the order. If that is not the case, can the Minister confirm that on the record? The role of organisations such as the TaxPayers Alliance has already been commented on. Many individuals and organisations would attempt to undertake vexatious expeditions, perhaps on the back of fishing, to attempt to enforce orders against trade unions, which would already have spent quite a lot of their own funds in dealing with the complaints. They would potentially then have to fight attempts by another individual who was not even involved to try to enforce the orders made under this clause and the schedules.
Amendments 58 to 65 would further limit the enforcement powers of the certification officer and define their role rather than that of others who might be involved in potential enforcement. The amendments are designed to tease out various concerns we have about the way in which the legislation is drafted and would be applied in practice. I will be interested to hear what the Minister has to say and whether we seek to press any of the amendments to a vote.
Nick Boles
On amendments 54, 55, 56 and 67, the current enforcement regime is limited. With the exception of statutory duties in relation to financial records and as of next year the membership register, the certification officer may only make inquiries and take action following a complaint from a union member. That is not satisfactory. A modern regulator should be able to take action as appropriate where they suspect that there has been a potential breach of statutory duties or obligations. That is not new: the Electoral Commission and the Charity Commission both have such powers. The powers will enable a certification officer to take enforcement action once he has made inquiries and only if satisfied that there has been a breach of statutory duties or obligations in relation to the new reporting requirements. It would be wrong to restrict the exercise of the certification officer’s powers simply to responding to a complaint as the amendments seek to do, so the Government cannot support them.
Amendment 67 additionally seeks to change the test for the use of the officer’s powers of investigation. Currently, the officer may request documents when it is believed there is good reason to do so and appoint an inspector in circumstances that suggest a trade union has breached a duty. The amendment would require the certification officer reasonably to believe that evidence indicates a breach of duty.
It is important to note that the amendment relates to the test of the use of investigatory powers, not the basis on which the certification offer can make a determination that there has been a breach. Of course, there must be evidence and investigatory powers are about gathering that evidence. The tests we propose for the use of the investigatory powers are essentially the same as those that apply to the officer’s long-standing powers to investigate potential breaches of financial affairs under the 1992 Act. Those tests have been in place for a long time.
The investigatory powers are intended to assist with determining whether there has been a breach. The officer will still have to give the union the chance to make representations and then be satisfied that a breach has actually occurred before taking any enforcement action. If a trade union believes that the certification officer has acted beyond his powers or that the officer has made a mistake in applying the law when reaching a decision, it can still appeal to the Employment Appeal Tribunal. I therefore believe that adequate safeguards are already in place.
I turn to the enforcement of the certification officer’s orders. Amendments 57 to 65 aim to restrict the enforcement of orders to the officer exclusively. In tabling the amendments, the hon. Gentleman seems to be under the impression that we are trying to subcontract enforcement of the officer’s orders to individual union members. I assure him that that is not the intention. We simply seek to reflect the current situation in which complainants and other members of the relevant trade union are entitled to apply to a court to enforce obedience with the officer’s orders. That is nothing new; indeed the 1992 Act is clear on that point.
Stephen Doughty
Will the Minister clarify whether he believes it would be reasonable for someone who was not a party to a dispute—the TaxPayers Alliance, for example—to attempt to enforce an order or be involved in such an enforcement?
Nick Boles
As I think I just explained, it is currently the case under the 1992 Act that complainants as well as other members of the relevant trade union are entitled to apply to a court to enforce obedience with the certification officer’s orders. If such a body had been a complainant, there had been a process and the certification officer had made an order, under the provisions of the 1992 Act it is entitled to apply for enforcement of that order. There is nothing new in that; that has been in place since 1992 and, needless to say, throughout the period of the previous Labour Government.
Amendments 66 and 68 seek to restrict investigation activities, including the power to demand documents from a trade union, to the certification officer’s own staff. I understand concerns in relation to data protection and confidentiality, but the ability to appoint a third party gives the officer discretion to identify an inspector with specific expertise or simply to bring in additional resource should that be necessary.
Some investigations might be complex, technical and lengthy, so the officer’s permanent team may not have the time to carry them out. The amendment would reduce the officer’s flexibility in choosing an appropriate inspector to appoint, should such a case arise. It is important to note that the ability to authorise or appoint people to assist with investigations in that way is not new. It is exactly the same as the options currently available as part of the certification officer’s long-standing powers to investigate financial affairs. All the Bill does is to provide similar powers of investigation in relation to other potential breaches.
Stephen Doughty
I want to test the Minister a little more on inspectors. He says that there is nothing new, but he spoke previously about a potential spike in cases leading to an increased need for inspectors to help the certification officer carry out their duties. Will he tell the Committee—if he cannot do so now, perhaps he could write to us—how many inspectors would be required, whether there would be a cap on the number of inspectors that the certification officer could appoint, where those costs would be met from, whether there would be any cap on the cost and what sort of qualities would be required in the recruitment and employment of those inspectors by the certification officer?
Nick Boles
I am happy to write to the Committee with that information. I would like to correct something that I said previously, in case I created a false impression. I had not understood that a complainant has to be a member of the trade union. Under the 1992 Act, any member, whether a complainant or another member, can enforce the certification officer’s orders. That is what we propose to replicate for these other powers. Except in the unlikely event that the TaxPayers Alliance decided to join all the trade unions that it wanted to complain about, it is unlikely that it would be in a position to enforce those orders.
Stephen Doughty
So just to clarify, it would not be appropriate for vexatious individuals outside the dispute, who were not members, to attempt to involve themselves in the enforcement of orders or the investigations.
Nick Boles
That is exactly right. I apologise to the Committee if I created a slightly false impression.
Chris Stephens
Just so I am clear, is the Minister indicating that he is amenable to amendment 55, which would provide that the complainant must be a trade union member? He said earlier that he was going away to consider some aspects of picketing, in relation to what could be defined as outside interference.
Nick Boles
No, I am not indicating that, but we believe that the Bill already makes it clear who has the power to complain and who has the power to enforce. Moving on, I have explained that the appointment of investigators is not new; it happens under existing powers regarding the investigation of financial matters, and the Bill simply extends it to other potential breaches. The new investigatory powers contain specific provisions to impose a duty of confidentiality on any inspector that the certification officer appoints to prevent the unauthorised disclosure of personal information about union members. I therefore ask Opposition Members to withdraw the amendment.
Stephen Doughty
The Minister has provided helpful clarification on a number of points, but I am still not convinced that there are enough safeguards built into the Bill concerning the role and extent of investigations, and the basis on which they are made. He has said that the Bill does not change what was there before, but it will massively extend the powers of the certification officer, so I think it is only right that we look at defining limitations to those investigations, adjudications and enforcements. We may table other amendments at later stages and I would like, at the appropriate point, to press to a vote amendment 67, which would establish limits to ensure that the certification officer does not go on fishing expeditions where they have not received complaints.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
New clause 7—Certification Officer—
“For subsections (2) to (4) of section 254 of the 1992 Act substitute—
“(2) The Certification Officer shall be appointed by the Judicial Appointments Commission, and the person appointed shall have expertise in trade union law.
(3) There shall be a Certification Officer for Scotland, equal in status to the Certification Officer in subsections (1) and (2) above.
(4) The Certification Officer for Scotland shall be appointed by the Judicial Appointments Board for Scotland, and the person appointed shall have expertise in trade union law.””
New clause 10—The Certification Officer—
“In section 254 of the 1992 Act (The Certification Officer) for subsections (2), (3) and (4) substitute—
“(2) The Certification Officer shall be appointed by the Judicial Appointments Commission, and the person appointed shall have expertise in trade union law.””
Nick Boles
The previous two groups of amendments afforded us the opportunity for extensive debate on clause 14, so I do not propose to speak at length about it. It extends the certification officer’s investigatory powers and enables the officer to exercise a number of those powers without a complaint from a trade union member. It is entirely appropriate for a modern regulator to be able to investigate properly where non-compliance is suspected.
I turn to new clauses 7 and 10, and I remind the Committee that the provisions in the Bill, including those that relate to the certification officer, concern employment law and industrial relations matters. They are about how trade unions act and how they should be regulated. Those remain reserved matters for Westminster and are not devolved to Scotland or Wales. In my view, the provisions should apply across the whole of Great Britain, and I do not propose to rehearse devolution arguments here. I note, however, that section 254 of the 1992 Act requires the certification officer to appoint an assistant certification officer for Scotland and allows for the delegation of functions relating to trade unions based in Scotland to that assistant certification officer for Scotland. I believe, therefore, that the 1992 Act sufficiently caters for Scotland’s needs and that appointing a separate certification officer for Scotland is not necessary, especially since the 1992 Act provides a regulatory framework for the whole of Great Britain.
Turning to the proposal that the Judicial Appointments Commission should be responsible for the selection and appointment of the certification officer, I do not agree that the certification officer is a judicial office. Currently, the certification officer has a range of functions—administrative, investigatory, regulatory and adjudicatory —all of which are important aspects of the office. Hon. Members will note that the Bill further increases those investigatory and regulatory functions. It would not be correct, therefore, to describe the certification officer as a judge or other holder of judicial office.
It has been long-standing practice that the certification officer should be a ministerial appointment; a practice not, I believe, challenged or questioned by the previous Labour Government. Such appointments are typically made following Department for Business, Innovation and Skills public appointments practice: a panel, which includes an independent panel member, as well as representatives from the CBI and the TUC, considers applications and makes recommendations to BIS Ministers. In making its recommendations, the panel must only put forward names of candidates that are appointable—that is, who have demonstrated competence to perform the role. It is then for the Secretary of State to make the final decision on whom to appoint. This is nothing new and certainly nothing unusual.
I am keen to stress that the certification officer is, and always has been, independent of Governments of whichever party. Ministers have never directed what the certification officer does. Indeed, no one has suggested otherwise since 1975, when the office was set up. The certification officer is appointed by the Secretary of State after consultation with ACAS, but as his annual report, deposited in the Libraries of both Houses of Parliament, points out, he is independent from both ACAS and the Secretary of State for Business, Innovation and Skills. As the Committee knows, we want to enhance the role of the certification officer to ensure robust and effective regulation of trade unions. We want to modernise this regulatory role to bring it up to date with a new, modern system for industrial relations. Our changes increase the regulatory aspects of the role. The Government do not therefore think that appointment of the certification officer by the Judicial Appointments Commission is appropriate.
Turning to the proposal that the certification officer should have expertise in trade union law, I agree, of course, that the certification officer should have knowledge of trade union law, but I do not believe that it is necessary to prescribe this in legislation, primarily because to do so risks limiting the range of candidates that could perform the role in future. In any case, the recruitment panel will only recommend to Ministers appointable candidates for the role of certification officer and those candidates will need to demonstrate to the panel that they have full competency for the role. For these reasons, I ask hon. Members to withdraw the new clauses.
Stephen Doughty
I am somewhat bemused by the Minister’s comment that the certification officer is not a judicial officer. He has explained the wide powers that the certification officer has, so I am very interested to know what positions the Government consider to be comparable. Most people would consider the certification officer to have a quasi-judicial role, at the very least, and therefore we need some very strict controls about how it is regulated. The crucial point is that we are moving well beyond the original role set out for the certification officer. As my hon. Friend the Member for Cardiff Central said, this is not to comment on the suitability or the work that has been done by the current certification officer, who, from all my experience and that of the stakeholders I have engaged with, has done a very good job, but this is a complete change in the role and its powers. That change requires a fresh look at how the certification officer is appointed.
Our new clause would provide that the certification officer in Great Britain would be appointed by the Judicial Appointments Commission. Currently, as we have heard, the role is appointed by the Secretary of State for Business, Innovation and Skills in consultation with ACAS. The Minister went through the process of shortlisting and so on, and obviously, it is great that a number of stakeholders are involved. However, of course the final decision rests with the Secretary of State and that, again, gives wide latitude to a Secretary of State to veto or to appoint someone partisan or political. Given the nature of the rest of the Bill, many of us might strongly suspect that that would happen.
The Secretary of State for Business, Innovation and Skills of course regularly consults many different stakeholders, but as we saw in debates about the steel industry he seems willing to ignore all the advice and carry on regardless. I have no faith as to whether things would continue in that vein, when I consider the intent and purpose of the Bill.
We all agree that the certification officer should be independent of Government and required to have expertise in trade union law rather than just knowledge of it. Demonstrable knowledge could be an ability to list by rote the clauses of the Bill. Someone who takes such a wide range of powers needs a detailed understanding of the provisions. The 1992 Act does not specify the qualifications required, but the Bill gives the certification officer extensive new powers and remits, and it is only reasonable to expect the person appointed to have expertise in that regard, particularly given the various aspects of the role.
If the Minister intends to reject the new clause, will he explain what consultation, as a minimum, he would expect for the new role? Will things just carry on as they do under the old system, with the limited involvement of the TUC, CBI and so on at the shortlisting stage, or does he envisage a wider range of people being involved? Will he give wider assurances about the type of qualifications and other requirements? Given the nature of the proposed role, we believe that the certification officer should be appointed by the Judicial Appointments Commission—that is only right—and that there should be a clear requirement for expertise in trade union law.
New clause 7 is essentially similar to our new clause in its purpose; I understand why the hon. Member for Glasgow South West and his hon. Friends have tabled it, in relation to Scotland. As I have said before in similar debates, we want the fairest settlement in the Bill for workers and trade union members across the UK, and I hope the hon. Gentleman understands that that is what we intend with our new clause. It would deal with the whole of Great Britain, not just Scotland.
Chris Stephens
As the shadow Minister said, the new clauses really deal with who should be the certification officer. If the powers are being enhanced, the new role needs to be reconsidered, because—the shadow Minister is correct—it is at the very least quasi-judicial. The aim of new clause 7 is to ensure that the holder of the post has adequate qualifications and expertise.
The Minister has said he expects the person appointed to have expertise in trade union law, but his successors may not. An adequate provision would make it clear, as the new clause does, that the certification officer should have expertise in trade union law. It cannot be someone we met down the pub, who may be able to recite all the clauses of the Bill. It needs to be someone of a very high standard, with expertise in trade union law, who knows the intricacies of that law. More importantly, the person should be independent of Government, and that is why it is appropriate in the circumstances to involve the Judicial Appointments Commission.
The new clause has another purpose. As the Minister pointed out, there is currently an assistant for Scotland. The enhanced role will have an impact on elections where they are now devolved to the Scottish Parliament, in terms of Scottish parliamentary and local government elections. If there are questions about election funding, that will be a Scottish issue and we believe it would require a certification officer in Scotland to consider it.
Also, there are differences between the legal jurisdictions. There is different civil and criminal law in Scotland, and we believe the new provisions about the certification officer can only impinge on the consideration of civil and criminal law in relation to complaints and so on. The effect of the certification officer provisions will be that Scotland will need not an assistant but a certification officer of equal status to the certification officer for Great Britain.
We have no issue with new clause 10 and we will support it in a vote, but we are seeking a Scottish provision of equal status due to the impacts that the new role of a certification officer will have.
Nick Boles
We do not accept that the Bill would dramatically expand the certification officer’s role. We are simply replicating the investigatory powers that he already has in relation to financial matters with regard to the new matters that he will have the power to investigate, so we certainly do not see any basis for changing how he is appointed. Previous Governments who were happy for him to have those investigatory and regulatory powers in relation to financial matters thought the arrangements for appointment were adequate. I commend clause 14 to the Committee and ask Members to resist new clauses 7 and 10.
Stephen Doughty
To clarify, we will press new clause 10 to a vote at the appropriate point.
Question put, That the clause stand part of the Bill.
Nick Boles
I beg to move amendment 94, in clause 15, page 12, line 23, at end insert—
‘( ) In section 45D of that Act (appeals from Certification Officer), after “31” insert “, 32ZC”.’
The amendment adds a reference to the new section 32ZC (inserted by clause 15) in section 45D of the 1992 Act. The effect is that decisions made by the Certification Officer in relation to the enforcement of the new annual return requirements provided for by clause 15 are subject to a right of appeal.
The amendment rectifies a small omission in the clause relating to appeal rights. Where a union fails to comply with the new annual reporting requirements, the certification officer will have the power under the clause to make a declaration to that effect. If the certification officer makes a declaration, he will have the power to make an enforcement order unless it is in inappropriate to do so; he will also, under clause 16 and schedule 3, have the power to issue a financial penalty.
It has always been our intention that if the certification officer makes such a declaration or order, the union will have a route of appeal to the Employment Appeal Tribunal on a point of law. That is consistent with the approach taken elsewhere in the 1992 Act. However, the clause as it stands will not provide for such rights unless a reference to the new provisions is inserted into the correct place in the 1992 Act. The amendment corrects that oversight. I trust that hon. Members will be content to accept this minor amendment.
Stephen Doughty
I appreciate the comments the Minister made. Given that this is a rare chink in the cloud that allows trade unions some rights to challenge use of the draconian powers provided for elsewhere in the Bill and in the clause, I do not intend to oppose the amendment. However, we will oppose the clause to which it relates.
Amendment 94 agreed to.
Question put, That the clause, as amended, stand part of the Bill.
Stephen Doughty
I want to ask the Minister a few questions. The clause inserts new section 32ZC into the 1992 Act and gives effect to schedule 3, which we will come to shortly. The certification officer will have a new power to impose financial penalties on unions when an enforcement order has been made, and the Government will have the power to set the level of penalties in regulations. Paragraph 6 of schedule 3 states that penalties will range from £200 to £20,000. The clause also extends the ability of individual members of a union to enforce the certification officer’s orders even if that order was no concern of theirs.
Will the Minister explain a little more about the penalties—how they will be applied, the different gradings and so on? Do the Government plan to increase the limit at any point? How often does he expect them to be used in the different categories? What size of penalty does he expect to be applied?
I also want clarification on the individual member’s ability to enforce orders. Thankfully, we had clarification from the Minister that individuals outside a dispute cannot be involved, but there is a possibility that members of the union that was party to the dispute who were not personally involved could attempt to enforce orders.
The Committee might wonder why I am worried about that, but there are circumstances in which a couple of individuals who are members of a union may be involved in malicious activity and attempt to undermine others who have taken a wider, collective decision that was endorsed by other members. I want to understand who can be involved in attempting to enforce a certification officer’s orders. Can that be any member of the union involved whether or not they were personally involved in the case? I would be grateful if the Minister would clarify those points.
Nick Boles
New schedule A4 to the 1992 Act will enable the certification officer to issue financial penalties or conditional financial penalties in those areas where he has existing powers to issue declarations and enforcement orders, which will provide a consistent approach. He will also be able to issue those penalties for breaches of the new annual reporting requirements on trade unions in relation to details of industrial action and political fund expenditure. Those areas are all listed in paragraph 1 of the new schedule.
Paragraph 4 of the new schedule requires the certification officer, before issuing a penalty, to provide written reasons for his decision, which will allow the union to know why the certification officer has found against it. The union will also have the opportunity to make written representations and may be given the opportunity to make oral representations.
Paragraph 5 of the new schedule provides for appeals to the Employment Appeal Tribunal based on an error of fact or a point of law, or on the grounds that the decision to impose a financial penalty or conditional financial penalty is unreasonable. The appeal grounds are similar to those provided for in other financial penalty regimes and will ensure that a wrong decision can be challenged.
Paragraph 3 of the new schedule provides for enforcement of conditional penalties. In cases of non-compliance, the certification officer will issue a further order requiring that a penalty be paid immediately or by a certain date. Where a union has provided evidence of partial compliance, the certification officer will have flexibility to reduce the amount of the penalty should he choose to do so. That will encourage unions to comply with conditional penalty orders while punishing those that take no steps towards compliance.
The hon. Member for Cardiff South and Penarth asked whether any member of the union about which a complaint has been made, including members who were not themselves complainants, can apply to court for the enforcement of the certification officer’s orders. My understanding is that currently, under the 1992 Act, it is possible for any union member to apply for enforcement of such orders, but I am happy to write to him with the full detail if that is helpful.
Stephen Doughty
Are there any cumulative limits on the number of financial penalties or the total amount that can be imposed on any one subject in the legislation within a year, or could numerous orders of up to £20,000 be imposed, with no limit on the overall amount sought? Obviously, due to vexatious actions or fishing expeditions and so on, a union could be subject to hundreds of thousands of pounds in penalties in a year as a result of investigations, without any kind of limit.
Nick Boles
There is no limit, but as the hon. Gentleman points out, if a union is subject to vexatious complaints, the certification officer will not find in favour of the complainant or impose a penalty. As I have explained, the union will have every opportunity to appeal any penalty imposed improperly. Although I understand the drift of his concern, the provisions already protect unions from vexatious complaints that might lead to an accumulation of penalties.
Ian Mearns
There is, of course, a downside for the trade unions even in that situation, in that it is the trade union that will have to pay for the investigation.
Nick Boles
We will move on, I believe, to the question of how the costs of the certification officer will be paid for. It is absolutely right that the Government are proposing that, in common with other regulators, the certification officer will be paid for by the regulated. However, again, if vexatious complaints are made, we have every reason to expect the certification officer, who has all the powers necessary to do so, simply to dismiss them and not to pursue them to the detriment of union finances.
On that basis, I commend the clause to the Committee.
Question put, That the clause stand part of the Bill.
Nick Boles
I beg to move amendment 95, in clause 17, page 14, line 1, leave out
“(b) payments made by ACAS under section 254(6),”.
Section 254(6) of the 1992 Act is spent: it depends on section 115 of that Act, which has been repealed. The reference to section 254(6) in the new section inserted by clause 17(1) was included in error, and this amendment removes it. Amendment 97 repeals section 254(6) itself and the reference to it in section 254(5A).
Nick Boles
Clause 17 inserts new section 257A into the Trade Union and Labour Relations (Consolidation) Act 1992, to provide the Secretary of State with the power to make regulations requiring the certification officer to charge a levy on trade unions and employer associations to recover the cost of the certification officer’s expenses. New subsection 257A(3) sets out the sorts of expenses that the regulations might specify are recoverable by the levy; this includes payments made by ACAS under section 256(6).
The payments under section 256(6) were intended to enable the certification officer to make payments towards expenditure in connection with secret ballots. However, the provision to make those payments—section 115 of the 1992 Act—was repealed more than 20 years ago by the Trade Union Reform and Employment Rights Act 1993. That in turn means that section 256(6) is not required—in fact, it should have been repealed when section 115 was repealed back in 1993. Amendment 95 corrects that oversight and repeals section 256(6). Amendment 97 completes that tidying up. It removes reference to those sums being included in the expenses of the certification officer that the regulations could require the levy to recover. I commend Government amendment 95 to the Committee.
Stephen Doughty
I accept the Minister’s point about the two Government amendments being technical in nature, so we do not intend to oppose them, but I do want to explain briefly our concern about clause 17.
As we have discussed at length, the Bill imposes significant new administrative obligations on unions in a range of matters. They face a major increase in regulation that the Government simply would not apply to other sectors in society—certainly not to business. They will also be expected to pay for the pleasure of the enforcement of the new obligations.
As discussed, clause 17 contains a power permitting the Government to levy a charge on trade unions to cover the running costs of the certification officer, which currently stand at approximately £1 million but are expected to rise. I suspect that they will rise under the new regime, given the wide expansion of powers. The levy looks set to apply to employers’ organisations—I hope the Minister can clarify this point—including the Engineering Employers’ Federation, the Electrical Contractors’ Association, the Federation of Master Builders and the National Farmers Union. The measure will apply not only to trade unions but to a whole range of employers’ organisations.
We understand that the Government are consulting on how much should be levied, but, like on so many areas of the Bill, they have not published their consultation responses, so we are in the dark on this matter. We are expected to vote on the Bill without knowing what will happen. Will the Minister explain a little more about how the levy is expected to work, whom it will be levied on and whether it will apply to the organisations I mentioned? What level can we expect it to be at? Will it rise in the future? What provisions will there be to review it? How will it be put into operation? It is not acceptable that a Committee considering matters of this nature is making its decisions largely in the dark.
Nick Boles
Trade unions and employer associations, like many other organisations, should be regulated. Proportionate regulation helps to improve confidence in the way such institutions are run, which can only be a good thing. It is only fair that the cost of such regulation falls not on the taxpayer, but on those who are regulated. I note that the previous Labour Government introduced an almost identical provision, which I believe all members of the Committee support, in the financial services industry, whereby the costs of financial regulation and the regulator fall on the members of that industry.
James Cartlidge (South Suffolk) (Con)
I ran a small financial services business and remember paying high fees, which went up steeply, to the Financial Services Authority. I recall no consultation, about which we were unhappy, but the key issue was that the regulator failed rather substantially in the credit crunch. If such payments are made here, can we have assurances that we will have a good quality system for all those affected?
Nick Boles
I am certainly trying my best to ensure that the regulation of trade unions is more effective than the regulation of the financial services industry preceding the 2008 crash. I do not think that the risks are as great, and I have been the first to point out that it is unlikely that the trade unions, which mostly do an excellent job, will crash the economy in the way that the under-regulated financial services industry did under the previous Labour Government. Sir Alan, I think you are going to say that I am moving away from the point, so I will return to it.
The clause enables regulations to be made so that the certification officer can charge a levy on trade unions and employer associations.
Nick Boles
I am going to make some progress.
It is important to understand that employer associations are also subject to the levy. The Bill does not prescribe the amount of the levy because the certification officer is independent. It is for the certification officer to decide each year how much they need to charge to cover the costs of performing their functions. We have taken the approach of providing a regulation-making power, rather than setting out in the Bill exactly how the certification officer is to determine the amount of the levy, because the Bill expands the certification officer’s role. It is only once this new expanded role is established that it will be possible to determine precisely how the regime should work. Having said that, we also recognise that Parliament and those directly affected rightly expect to see how the regime will work when Parliament is being asked to agree the detail of the legislation. That is why the Bill sets out specific parameters for the content of the regulations. It is also why the regulations will be subject to the affirmative procedure. The clause also requires consultation before any regulations are made.
To meet our objective of cost recovery, the levy must be enough to cover the cost of the certification officer’s functions, but it cannot be any more than the certification officer needs. The certification officer cannot make a profit from their activities, nor undertake spurious activities to generate funds. That is only right as the certification officer is an independent public appointment and not a commercial enterprise.
Stephen Doughty
I can understand the need for the certification officer to have a role in identifying the costs of their operations, but the Minister and the Government must have a ballpark figure. Are we expecting a doubling of the £1 million figure or an increase by a factor of 10? What sort of ballpark are we in? The people affected by the levy need to have an idea, remembering that it will apply not only to trade unions, but to the employer associations that I have listed.
Nick Boles
The hon. Gentleman is entitled to speculate on any figure he likes, but we are going to leave it to the independent certification officer to assess the additional requirement and to set an appropriate levy.
We recognise that trade unions can vary greatly in size and that employers associations are often small, meaning that the size of the regulatory functions provided by the certification officer to such organisations may vary greatly. Smaller unions and employer associations may require less of the certification officer’s time and resources.
Jo Stevens
I am pleased to hear that clarification about employers organisations. Will the Minister tell us whether federated employers organisations, such as the CBI, will be covered by the measure?
Nick Boles
My understanding is that federated employers associations will not be covered, but all other employers associations will be.
We want to be able to consider whether organisations that use more of the certification officer’s time should bear more of the cost. We will need to consult before determining whether that is the right way to proceed and will only take that approach if we find during consultation that it costs more for the certification officer to regulate larger organisations that it does for smaller ones.
Let me conclude by summarising the safeguards in the Bill on the way the levy is to operate: the amount of the levy will be limited to covering the cost of the certification officer functions; ACAS, unions and employer associations will be consulted before regulations are made; the regulations will be subject to the affirmative procedure, allowing a full debate in Parliament before they are brought into force; and the certification officer will be required to report annually on the amount levied and how that was determined, which will be published and laid before both Houses, ensuring transparency.
Question put, That the amendment be made.
The Chair
Order. Mr Stephens asked a question about EVEL earlier on, so I want to clarify that the EVEL procedures are invoked by the Speaker. The certification process takes place before the Second Reading of Bills or before something is considered as a statutory instrument, so Bills in Committee are not eligible for the use of EVEL procedures. I hope that that is helpful.
Trade Union Bill (Tenth sitting)
(9 years, 1 month ago)
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The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 8 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Minister for Skills (Nick Boles)
I want to clarify a point that was made just before we adjourned this morning. The hon. Member for Cardiff Central asked whether federated employer associations such as the CBI will be covered by the levy, and I said no. Indeed, it was narrowly correct to say that because the CBI will not be caught by the levy, but it may help the Committee if I provide a little more context to my answer.
Federated employer associations would be covered by the levy, provided that they meet the statutory definition in the Trade Union and Labour Relations (Consolidation) Act 1992. The certification officer keeps a list of employer associations that have asked to be listed, as well as a schedule of those that have not applied to be listed but that the certification officer considers meet the statutory definition. The CBI is not listed, so as it stands the levy will not cover an organisation of that type. It will continue to be left to the certification officer to decide who meets the definition in the future. I will be happy to write to the hon. Lady if she would like further clarification on the statutory definitions in the 1992 Act and how they apply in practice.
Jo Stevens (Cardiff Central) (Lab)
I am grateful to the Minister. If he could write to me, that would be good.
Question put, That the clause, as amended, stand part of the Bill.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
It is a pleasure to serve under your chairmanship for our last sitting, Sir Edward. I appreciate that this may be a technical clause. It brings into effect a schedule that contains many minor and consequential amendments. Will the Minister provide a little detail about those amendments, and whether there is any substantive change to Government policy in the clause?
Nick Boles
Nothing would give me greater pleasure.
Clause 18 gives effect to schedule 4, which, as the hon. Gentleman says, provides minor and consequential amendments to existing legislation to take account of the changes to legislation brought in by the Bill. Specifically, the schedule makes amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 concerning the arrangements for the register of members’ names and addresses; minor amendments to accommodate the changes that provide for an opt-in to the political fund, so that where there are references to members not being exempt there is a reference to members contributing; minor changes to the arrangements to ballots, including making clear that spoiled ballot papers are to be included in the count of those voting for the purpose of the 50% threshold; and minor changes to provisions to cross-refer to the additional requirements in the voting paper in clause 4.
The schedule also makes clear, by amendments to the Trade Union and Labour Relations (Northern Ireland) Order 1995, that the Northern Irish legislation will continue to apply to Northern Irish members of unions in Great Britain. It updates the language, so a decision to opt in under the Northern Irish legislation will be treated as a decision to opt in under the new provisions of the 1992 Act.
The schedule also amends the trade union administration aspects of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, which in turn also amends the Trade Union and Labour Relations (Consolidation) Act 1992.
Finally, there are other minor repeals to other employment legislation for provisions no longer needed as a result of the Bill’s provisions.
Stephen Doughty
I thank the Minister for those clarifications. I am sure that, as he suggested, a number of the elements are simply technical, but as several of them relate to facilitating the passage of the rest of the Bill and the gagging Act, which the Minister referred to using its formal name, we do not want to support them.
Question put, That the clause stand part of the Bill.
Stephen Doughty
I would not normally seek to speak on the latter clauses of a Bill, but I rise to make a point and to give the Minister one last chance to answer. The Bill’s provisions are clearly extensive, and a number of them are on extraordinarily shaky legal grounds. Will the Minister clarify whether the Government have set aside funds to consider any legal challenges that might arise once the legislation comes into force?
Nick Boles
I think I have pretty much answered that question already. We have not made a specific provision for public expenditure. Indeed, we expect public expenditure to be reduced by the introduction of the levy, which will ensure that the costs of the certification officer that currently fall on the taxpayer will fall on those regulated—the employer associations and trade unions.
Question put, That the amendment be made.
Stephen Doughty
Again, I would not normally rise to speak on such a clause, but I want to do so to underline the very many points that have been made about the potential conflict with the devolution settlement. Much of the Bill makes changes to the 1992 Act, which came into effect long before the advent of devolution in Scotland and Wales and, indeed, London, and before the increased devolution to local authorities and mayors throughout England. I merely take this opportunity to underline that point and to give the Minister another chance to say when he plans to meet his cabinet colleagues the Secretaries of State for Wales and for Scotland and when he plans to engage in discussions with the First Ministers of Scotland and Wales and the leaders of devolved local authorities across England to discuss the concerns that have been raised and whether the Bill should be amended further on Report or, indeed, in the other place.
Nick Boles
We are huge respecters of the devolution arrangements, which is why we do not propose that the Bill should apply to Northern Ireland, except in a very small measure. The position is clear: such matters are handled differently in Northern Ireland. We are equally respectful of the devolution settlement with Scotland and Wales, which is why all the provisions of the Bill apply to Scotland and Wales. They relate to employment law, which is a reserved matter.
Question put, That the amendment be made.
Stephen Doughty
Yet again, it is unusual for me to speak on such a clause, but it is important that I do because I want to give the Minister a chance to enlighten us as to when we might see some regulations under statutory instrument coming forward under the Bill. He refused to be drawn on this matter earlier in Committee, but the trade union community and many stakeholders in the Bill are hearing rumours circulating—the place is awash with rumours—that various draft regulations might be published in the very near future. Does the Minister plan to introduce draft or formal regulations within the next couple of weeks, the next month, the next six months or the next year? Perhaps he can give us an idea of the ballpark.
Nick Boles
I am happy to reassure the hon. Gentleman that we will bring forward draft regulations when they are good and ready.
Stephen Doughty
Briefly, I can think of many other names that would be suitable for this Bill, but I am sure that you, Sir Edward, would rule them out as unparliamentary. We intend to go on the way we have done throughout the Bill, and we will oppose this clause as well.
Question put, That the clause stand part of the Bill.
The Chair
With this, it will be convenient to consider amendment (a) to the new clause, line 43 at end insert—
“(10) The provisions in this section shall only apply with the consent of the Scottish Government, Welsh Government, Northern Ireland Executive, the Mayor of London and local authorities in England in their areas of responsibility.”
Nick Boles
I also wish to resist the amendment to the clause tabled on behalf of the Scottish National Party. My right hon. Friend the Minister for the Cabinet Office and Paymaster General announced in August that the Government intended to end the outdated practice of check-off in the public sector. New clause 11 gives effect to that intention. It would prohibit relevant public sector employers in due course from deducting trade union subscriptions from workers’ wages and sending these to the unions concerned.
Check-off is anachronistic. It dates from a time when most workers did not have bank accounts and direct debit payments did not exist. Nowadays all public sector workers have bank accounts, and trade union subscriptions can very easily be paid by direct debit. Trade unions themselves agree that filling in a direct debit form is a simple and straightforward task. Even the PCS union’s own website currently promotes direct debit, saying:
“It’s quick and easy to sign up for direct debit—you can do it online in a couple of minutes. You just need your membership or National Insurance number and bank account number and sort code”.
Direct debits can even be set up on mobile phones. In addition to its convenience, this way of making payments gives employees the freedom to set up the direct debit arrangement with the trade union of their choice, as well as consumer protection under the direct debit guarantee. Such protection was withdrawn for check-off 17 years ago.
In any case, there is just no need for the relationship between a trade union and its members to be intermediated by the members’ employer. Trade unions should have a direct subscription relationship with their members, using direct debit like any other modern member-based organisation. The collection and administration of union subscriptions is no business of the employer. It should be a matter for a union and its members to arrange between themselves.
At a time of fiscal consolidation, taxpayer-funded employers providing the important public services that we all rely on should no longer carry unnecessary burdens. These include the burden of administering check-off on behalf of those trade unions that have not yet modernised their subscription arrangements. This in turn puts employers at risk of an employment tribunal claim if they make a mistake when deducting union dues. Where an employer provides a check-off service, it puts itself under a legal obligation to do so in a particular way under the 1992 Act. An employer that makes a mistake can be taken to an employment tribunal. That should not be at the expense of the taxpayer when it could so easily be avoided by making alternative arrangements to check-off.
The majority of civil service employers have already decided to remove check-off, and trade unions affected by those decisions have been successful in making alternative arrangements for their members to pay their subscriptions by other means. The vast majority of their members have switched to direct debit.
It is important to emphasise that we are not planning to spring this change on public sector employers and trade unions overnight. We recognise that affected unions will need time to implement the change and get their members to switch to direct debit. They have been on notice since we announced the provision in August.
Furthermore, the change will be brought about by affirmative regulations that will build in a reasonable transitional period. That will allow affected unions and their members time to put in place alternative arrangements to check-off, and will be sufficient to ensure that no undue disruption is caused to the unions or their members.
Stephen Doughty
It is good to be on to the new clauses. It is intriguing that the Minister was talking about using mobile phones and the ease of doing things online—almost the very arguments that could be used in support of e-balloting and the methods connected to it—but he has chosen to apply those methods in other measures. That emphasises the debate we have been having throughout the Bill.
New clause 11 would prevent all public sector employers from deducting trade union subscriptions via payroll and would mark the end of what is called check-off. I believe that the Government are deliberately targeting trade union finances by making it harder for individuals, including lower paid workers and many women in particular, to get access to trade union representation in the workplace. That is particularly true for dispersed workforces. I was struck by the evidence I received from the Union of Shop, Distributive and Allied Workers, which works in the retail sector, about the many people working in small shops and retail outlets throughout the country who find check-off a convenient way to have their payments taken, without a complicated process. They will struggle because of the new clause.
The move is almost universally opposed, save for the Government and the TaxPayers Alliance, and we all know that the basis of the oral evidence they gave was very flimsy. It is all rather ironic when we consider that the Government’s claim that the proposal will save taxpayers’ money is, in fact, a red herring, given that many trade unions already cover the cost of check-off services. In some cases, the fees generated in the process and charged by Government employers for check-off provision generate a net gain for the public finances. There seems to be no sense at all in the proposals.
In pressing ahead in spite of the critics, the Government have failed to secure any substantial employer support for their proposals, as far as I am aware. Indeed, many employers, including employers in local government and the health sector—as we have heard with respect to the Scottish and Welsh Governments as well—have expressed concern that the removal of check-off arrangements could undermine constructive relations between managers and unions, which are vital to the quality of public services. Is that any wonder, when employers and trade unions were not even consulted properly?
The proposals have been introduced without a proper consultation process, engagement with the unions, or an assessment of the impact on employment relations. The proposals were not included in the Conservative party manifesto, Her Majesty’s Gracious Speech, or the briefing accompanying the speech, although it would have been easy for the Government to do that. The Minister has said that everyone has long been aware of the change and has had time to prepare, but if the Government are so clear about it, why did they not make it clear when they first suggested introducing the Bill? There was no reference to the proposal in any of the BIS consultations or impact assessments that accompanied the publication of the Bill. Instead, the Government announced the plans on 6 August 2015, and published the new clause introducing the ban, which we are discussing now, only a matter of days ago.
That does not strike me as the most transparent, engaging or consultative process. Unfortunately that has been the hallmark of the Bill from start to finish. To date, the Government have failed to publish any evidence justifying the introduction of the ban, or any assessment of the potential impact of the proposal on those who would be affected.
There are also huge implementation issues. Transferring millions of members on to direct debit would create significant organisational challenges for many trade unions, particularly those operating in dispersed work forces. It will therefore be vital, if this goes ahead, that trade unions are provided with ample time to transfer members on to direct debits. We have talked about the potential unwinding of collective agreements and employment contracts in many sectors, but time will also need to be provided for employers and trade unions to renegotiate existing collective agreements, which often include aspects relating to the check-off provision.
I know many are concerned that no timetable for the introduction has been specified in the amendment. The Minister said he wants to allow a reasonable period and I hope that when he gets to his feet he will specify broadly what he has in mind. The explanatory note similarly suggests that a reasonable period will be provided, but that has no legal effect.
Tom Blenkinsop (Middlesbrough South and East Cleveland) (Lab)
As I was listening to my hon. Friend’s excellent speech, I was thinking about potential ramifications of this and I would be interested to hear the Minister’s response. For example, if an accountant working for a council is a chartered accountant paying annual fees, does that come out of his pay packet in certain circumstances, in much the same way as check-off does? If a nurse pays annual fees to be registered as a nurse, does that come out of their pay packet as well?
Stephen Doughty
My hon. Friend makes an excellent point, one we discussed during the oral evidence sessions as well as here: there are many things that are deducted in the same format as check-off. We as MPs are allowed to make salary deductions for various things, from repayments of loans to charitable donations. Again, this is one rule for trade unions and another for everybody else and it is simply not acceptable. I hope the Minister will provide an explanation and more detail on that provision and a definition of what is a “reasonable” transition period.
The Minister will be aware of the specific concerns outlined by the TUC that trade unions will be required to sign members up to direct debit payments at the same time as needing to comply with the other significant legislative changes in the Bill. Those include encouraging millions of members within just three months to opt in to the union’s political fund, even though they have voluntarily contributed for many years, gathering additional information for the certification officer and complying with the oodles and oodles of red tape and blue tape that are being put in by the Bill, let alone previous provisions such as those introduced by the gagging Act. In these circumstances, the need for significant time to allow unions to move their members on to direct debit is very clear.
As I have argued throughout this Bill, the Government are not pursuing a plan for modern and forward-looking industrial relations. They are trying to turn the clock back and offering solutions to the problems of yesteryear.
Tom Blenkinsop
I have just thought of another question. This goes back to my industrial background working with predominantly female workforces in the textile industry. Many did not have bank accounts, but were trade union members and worked on piecework rates. How will they be affected if they are disfranchised, rendered unable to join a trade union at all because they do not have a bank account?
Stephen Doughty
That is an excellent point on which I would like to hear from the Minister. Whether we like it or not, many people, particularly on low incomes or starting out on their careers, do not have bank accounts. What provision will be made for them? If they do not have a bank account, how will they be able to make these payments?
As I have said, in reality, deductions from payroll are a very common way that employers across the public and private sectors help employees to manage their finances. I mentioned examples that apply to us as Members of Parliament, but we often see things such as childcare, travel, bike loans or computer payments made through similar payroll deductions. The proposed ban on check-off for union subscriptions will affect millions who currently choose to do that through their wages. We oppose new clause 11 and call on the Government to withdraw it. At the very least, I hope that the Minister will engage with employers and trade unions in the period between Committee and Report, so that we can have some clarity when he comes back to the House on how long the transition and implementation period will be and whether accommodations can be made.
Amendment (a) enjoys the formal support of myself and my hon. Friends the Members for Wallasey (Ms Eagle) and for Edinburgh South (Ian Murray). It is an SNP amendment on securing active consent from the different parts of the UK before the ban on check-off arrangements can apply elsewhere. Were the hon. Member for Glasgow South West to push this to a vote he would certainly have our support.
Chris Stephens (Glasgow South West) (SNP)
It is a pleasure to serve under your chairmanship, Sir Edward.
The purpose of our amendment is to require consent from public bodies, but I wish to make some remarks about the role of check-off and the principles behind it. Our first concern is the impact on collective bargaining arrangements. An employee can pay bills through salary deductions, including council tax and rent. They can also make charitable donations—for example, in Glasgow employees can make trade union charitable donations to organisations such as Action For Southern Africa or Community HEART. Staff association subscriptions, too, can be taken off as a salary deduction. Under these proposals, however, in a collective bargaining arena where there is a staff association and a trade union or unions, the staff association would be allowed check-off, but the trade unions would not. That shows an extraordinary bias towards staff associations. I asked the Minister for the Cabinet Office about this in the evidence sessions and was advised that a staff association is internal and a trade union is not. What remarkable ignorance of how a workplace operates. Surely both organisations are internal, and employees have made a choice about who is to bargain on their behalf?
In our view, new clause 11 is designed to interfere with and unsettle those collective bargaining arrangements. I ask the Minister what is to stop a trade union reclassifying itself to become a staff association. Is that how they will be able to get round the Bill? We are asked to believe that these proposals are modernisation. In reality, they are a 19th century solution in a 21st-century world. If allowing other deductions is modernisation, then why is check-off to trade unions not modernisation? It is a fanciful and quaint notion.
We are also concerned about the legal risks that public sector employers will face in relation to these arrangements. In a recent court case, Mr Justice Supperstone said:
“I am not impressed by the argument that check off is only or primarily for the benefit of the union as such, rather than for its members in their capacity as employees. It seems to me that there is a real benefit to employees in the administrative convenience of not having to make their own arrangements for payments each month, or having to set up a direct debit or standing order and then change it or replace it from time to time as may be necessary”.
Tom Blenkinsop
The hon. Gentleman makes an excellent point. Obviously, it depends on the workplace. If someone is a private sector construction worker or employed in an industry working shift patterns which are not annualised, pay will fluctuate depending upon production targets and what the market is doing. Inevitably, as a result their union subs will change, because most unions have a redistributive model for their subscriptions.
Chris Stephens
That is an excellent point. Trade unions will be denied money on that basis, as in the very example given by the hon. Gentleman. Another concern is that what we are seeing here is a situation where a voluntary agreement between a public sector body and a trade union is effectively to be banned by the state.
Julie Elliott (Sunderland Central) (Lab)
Does the hon. Gentleman agree that one of the consequences—unintended, I am sure—of removing check-off will be that if there is, for instance, an industrial action ballot of a public sector workforce of many tens of thousands, with people working all over the place, it will be even more difficult for people to agree on what the bargaining unit is in that case. If people pay by direct debit—as many trade union members already do—then when they change their place of work, if they are still working for the same employer, their place of work will not necessarily notify their trade union.
Chris Stephens
That is right, and it is an excellent point. There is also the other example of someone who works for a large employer who may have two different jobs for that employer—perhaps part time in two departments. Again, the hon. Lady makes an excellent point.
If the state is banning voluntary collective agreements, I must ask the Minister at what the point the Conservative party went from being laissez-faire to Stalinist. This goes against what I consider to be the principles the Conservative Party was founded on. The arguments advanced are also irrelevant because, if income tax can be deducted at source, then why not trade union subscriptions?
The measure will also leave the public sector at risk of legal challenge. The International Labour Organisation is looking at other countries that have tried the same thing, such as Congo. In 2010 the ILO committee of experts reported
“since the check-off system was abandoned in 1991, there has been no procedure for deducting trade union dues from workers’ pay. According to the Government, in practice, all unionized workers are expected to pay their dues to the trade union office. The Committee once again notes with regret that the Government has still not specified whether the abandonment of the check-off system in 1991 had the effect of barring trade unions from negotiating procedures allowing trade union dues to be deducted from members’ pay. The Committee once again reminds the Government that the deduction of trade union dues by employers and their transfer to the unions is not a matter that should be excluded from the scope of collective bargaining”.
The ILO committee of experts is now making observations on Croatia as well. It noted that
“in general, a legal provision which allows one party to modify unilaterally the content of signed collective agreements is contrary to the principles of collective bargaining”.
Its continues:
“The Committee requests the Government to provide a copy of the aforementioned Act and underlines the importance of ensuring that any future Act on the Realization of the State Budget does not enable the Government to modify the substance of collective agreements in force in the public service for financial reasons.”
Those are very serious matters. The Government are leaving themselves open to risk on that basis.
Once again, the principles of consent are relevant. Some public bodies, as the shadow Minister has said, receive income from trade unions to administer check-off, and the general secretary of Unison, Dave Prentis, made it clear in his evidence that Unison pays for the facility when it is asked to. The public sector does not support the principle of banning check-off. The consent of the devolved Administrations, local authorities and other public bodies should be required, but we believe that the real intention is to make derecognition easier in the workplace. The new clause strikes at the heart of trade union organisation and is insidious.
I do not think that the Minister has yet demonstrated that he understands the principles of consent or devolution. He has made the extraordinary claim that the Government are complying with the Smith agreement, but I think that the only people who think so are the Government; no independent analysis shows that. I think that it is the right of all public bodies to institute their own arrangements for industrial relations, check-off and facility time. We appeal to the Minister once again to try to understand the principles behind those things, and I hope he will accept the amendment.
Jo Stevens
It is a pleasure to serve under your chairmanship for the final Committee sitting, Sir Edward.
In tabling the new clause on check-off, the Government seem extremely concerned to bring trade unions into the 21st century. For the second time in Committee I am forced to admit that I agree with the Minister—not on the content of the new clause, but on the aim of modernisation. The Government seem to believe that paying union subscriptions online, via a bank account, is an acceptable facet of 21st-century trade unionism, but that secure online balloting is not. We must ask ourselves why.
I had an inkling of that while looking back through a 2011 Conservative Home column—I have very exciting evenings—which, thanks to a quotation from the then Under-Secretary of State for Communities and Local Government, specifically tied the issue of check-off to the collection of a political levy. That makes me wonder whether the motive for the new clause has more to do with that issue. About 3.8 million public sector workers could be affected by the proposed changes, yet there is no groundswell of demand for the changes from anyone other than the Conservative party.
I want to set out a few inconsistencies to highlight how the new clause does not make sense. I have mentioned the Government’s hypocrisy in opposing online balloting, so I begin with the fact that the use of check-off is voluntary. No employer has to offer it. As with facility time, the right should be with the employer to decide whether the practice benefits their workforce or not. In the case of local government and the devolved Governments in Wales and Scotland, the Westminster Government are imposing top-down solutions to problems that do not exist on the ground.
Secondly, this is not about taxpayers’ money. In many instances, as we have heard, trade unions pay for the very small cost of administering check-off. As the Minister has pointed out, this is the 21st century: payroll is automated. As Unison noted it its written evidence to this committee, the former Chief Secretary to the Treasury in the coalition Government wrote to stop attempts to end check-off, saying that,
“Departments should be aware that there is no fiscal case for doing this, as the Unions have offered to pay any costs associated with check-off, which are in any case minimal”.
As the hon. Member for Glasgow South West mentioned, Unison general secretary Dave Prentis gave us evidence on 15 October about check-off arrangements and gave numerous examples of arrangements that Unison has in place where it either pays for the check-off system, or the employer that the union works with makes money out of it. He named Fife Council, East Lancashire hospitals, Bradford City Council, and Derbyshire County Council, to name a few. If cost really were the issue here, surely the appropriate response is to ensure that the costs are met, rather than to entirely abolish the system.
That brings me to how check-off is used by other organisations. From animal welfare to cancer charities, from helping the homeless to children’s organisations, payroll giving is commonplace. Workplace Giving UK says that it is the most efficient way to give to charity—it works with huge charities such as the Stroke Association and Macmillan. The Payroll Giving Centre claims that over 8,000 employers use the system, with over 1 million people donating from their salaries. It is efficient and easily understood, yet while this system of giving seems set to continue and indeed expand for charities, it is being removed for trade union members.
Finally, on transparency and accountability, check-off ensures that members do not continue to pay their subscription after they have left employment. It is a very clear and easy way for a member to pay subscriptions when in employment but not to continue doing so when they leave their job. Taken with other sections of this Bill, this new clause contributes to a new, sprawling and costly bureaucracy that is being put in place with the sole aim of impeding the ability of trade unions to organise politically and industrially. This is all that this is.
We oppose the new clause and the Bill, but if the Minister really wishes to demonstrate that he is serious about modernisation, I urge him to withdraw the new clause and instead bring forward measures to ensure that taxpayers’ money is not spent on check-off, if that really is his concern, and to specify that trade unions pay for the facility themselves, as many already do.
Nick Boles
I will start by answering some of the questions raised by Opposition Members. There was a question about the transition period and how long trade unions with check-off arrangements would be given to move people over to direct debits. My right hon. Friend the Minister for the Cabinet Office has suggested that a transition period of six months from commencement of the provisions on check-off would be appropriate.
Stephen Doughty
I am interested in that response. Why is a six-month period suggested for transition on check-off but only three months for the transition on political fund opt-ins? What is the justification for that?
Nick Boles
Probably it relates to the fact that check-off does not just involve the relationship between the trade union and the individual member, as the political fund does. It also involves the employer, so there are more administrative steps to go through. I am surprised that the hon. Gentleman does not welcome the fact that the period is longer. We could have aligned the two periods of course, but no doubt he would have attacked us for doing that. I do not expect to be thanked for these things, but a little generosity at this stage in consideration of the Bill might be nice.
Secondly, a number of hon. Members have made a big play of the fact that a number of trade unions pay for the check-off arrangement. Indeed, they are right to do so. The difficulty is that research carried out by their favourite organisation, the TaxPayers Alliance, revealed that in fact only 22% of public sector employers charge for check-off, so it is a little rich to claim that public sector organisations are somehow making a nice turn on it. I remember from the evidence sessions that the hon. Member for Cardiff Central suggested that social workers would have to be fired if the check-off arrangement were ended. There are relatively few situations in which public sector organisations are being paid for the administrative task that they fulfil.
Several hon. Members rose—
Nick Boles
I have clearly stirred a hornets’ nest. I am spoiled for choice. I will start with the hon. Member for Sunderland Central, because we have not heard from her today.
Julie Elliott
I have made a couple of interventions. Can the Minister advise from what return the figure of 22% was derived? My understanding is that it is not based on 100%, so it is not an entirely complete figure.
Nick Boles
I have no doubt that the hon. Lady quotes surveys, samples and everything else in her contributions to various debates, so she will be aware that it is possible to draw conclusions about the behaviour of organisations without necessarily interviewing every single one of them. Indeed, I believe her own party took a great deal of encouragement from various opinion polls before the election that seemed to offer predictions about voter behaviour.
The TaxPayers Alliance report in 2013 revealed that 972 public sector organisations that it had contacted and from which it received responses deducted membership subscriptions to trade unions in the check-off arrangement. Of those, 213, or 22%, charged the union for the service. Charging arrangements ranged from a proportion of the costs of subscription—between 0.5% and 6%—to a flat charge per employee or a monthly fee charged to the union. I make no claim that every single public sector employer was interviewed, but it is a reasonably large sample, and it would be surprising if the average for the whole were very different.
Chris Stephens
Since the Minister published the new clause, how many public sector employers have written to him supporting the removal of check-off? I am curious about it. If some have decided to provide it freely, there does not seem to be a lot of support in the public sector for banning it completely.
Nick Boles
Funnily enough, the hon. Gentleman’s question gets to the heart of the difference between the Conservative party and the Scottish National party. We believe that the public sector employers are the taxpayers—the people of Great Britain who work and pay taxes in order to pay for us and for everybody else in the public sector, and for everything that the public sector does. They are the employers, not the board of this NHS trust, that police force or this local authority, which are charged by the taxpayer to discharge their responsibilities and handle taxpayers’ money cautiously and carefully. It is entirely reasonable for us as representatives of the ultimate employers of the public sector—the taxpayers—to represent their interests and insist that they get value for their money, which they are currently not getting through check-off. I will now move to the amendment, unless—
Tom Blenkinsop
The main point that we are trying to make is that there are managers who run large public sector organisations who have HR competencies and deal with vast amounts of public sector workers: take the NHS, for example, or any hospital trust. They will be very concerned about any breakdown in recognition—the ability to know where their staff are, who represents them and who to talk to on a collective basis. There will be massive chaos if individual consultation is required on every HR matter.
Nick Boles
I am the first to defer to the hon. Gentleman on intimate knowledge of the detailed realities of working for trade unions and working in an organisation with high levels of union representation—I do not claim to be able to match him on that—but we have got rid of check-off in the civil service over the last few years. There are many issues at debate in the civil service. I am not going to suggest that everything is sweetness and light there, but it is a bit of a stretch to say that the removal of check-off specifically has caused chaos in the civil service.
Nick Boles
No, I will just finish. The hon. Gentleman can put his hand down, because I have noted that he wants to intervene. He will be well aware that some civil service unions—I mention no names—have lost members to other unions, not to no union but to other unions, because, now that there is no check-off, other unions that offer a better service, possibly at a lower cost, can get in and win the support of individuals in the civil service, whereas the legacy union was simply relying on individuals being locked in through a check-off system. I would have thought that the modern Labour party, which I know he always feels he is part of, would want to support the introduction of a little competition among unions in offering a consumer service to their members.
Tom Blenkinsop
Unfortunately, the Minister displays his ignorance, because inter-union competition has been going on for decades, since the Bridlington agreement. In the interest of the nation, its people, the public sector and its employees, we want proper recognition agreements so that both parties know with whom they are talking. Trying to say that this is about helping trade unions to recruit members is pathetic. That is a completely redundant argument, and it does not represent the interest of the British general public. What we want to know is that, when paramedics bring up industrial issues and health and safety concerns, they will be talking to an HR manager who knows what they are talking about, rather than having to talk to various individuals in a scattergun fashion, thereby putting services at risk.
Nick Boles
I feel that I may have touched a nerve, so perhaps I better not press that any further.
I will move on to the amendment tabled by the SNP. The Committee debated similar amendments at length last Tuesday. As I said then, all the provisions in the Bill relate to employment and industrial relations law, which are clearly reserved matters under the devolution settlements for Scotland and Wales. New clause 11 relates to the same reserved matters, so it is entirely in order for the Government to propose that its provisions should also apply to the whole of Great Britain. I see no reason why the Government should seek consent before applying those provisions in particular areas.
In Northern Ireland, on the other hand, employment and industrial relations are transferred matters so, respecting the agreement that was properly reached with Northern Ireland, new clause 11 will not apply there. Certain responsibilities are being devolved to local authorities in England and to the Mayor of London, but none of those responsibilities includes employment and industrial relations law. Amendment (a) seeks to carve out different arrangements for Scotland, Wales, London and English local authorities on matters of employment and industrial relations law, which Parliament has already determined are reserved. I therefore ask hon. Members not to press the amendment.
Stephen Doughty
We received clarification on this in the previous similar debate. Proposed new section 116B(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 states that such regulations may potentially apply to bodies that are wholly or partly funded from public funds. We have talked about organisations that receive small grant funding of, say, £10,000 from public sources. Will the Minister clarify the extent to which the new clause will apply to such organisations?
Nick Boles
My understanding is that the new clause will not apply, for instance, to a charity that receives a grant from the Government—absolutely not. This is for public sector organisations, but I will happily write to the Committee to confirm that the definition will be similar to the one used for other provisions.
Question put, That the clause be read a Second time.
Chris Stephens
I beg to move, That the clause be read a Second time.
I refer to remarks I made when we were discussing the proposed schedule to the Bill that interference in political funds in this way is a democratic and constitutional outrage. Trying to suggest, or even thinking, that political advantage is to be gained by changing political funds in this way is wrong. As we have already heard, the approach being taken on this Bill breaches the Churchill convention.
The purpose of the new clause is to ensure that Government will try and seek agreement with all political parties. This is important because it is not just the Labour party that has benefited from trade union funds. Plaid Cymru candidates have received money from trade unions, as have SNP candidates, Green party candidates and candidates from various socialist parties in all their guises. We simply propose a mechanism for dealing with political fund arrangements and to take a gold standard approach to these matters.
Stephen Doughty
I support the new clause in the name of the hon. Member for Glasgow South West and to indicate our formal support, we have added our names to it. During the course of the debate on political fund opt-ins and so on, we also made it very clear that if the Bill receives Royal Assent in its current form, it will mark the abrupt end of the long-standing consensus in British politics that the Government should not introduce partisan legislation that would unfairly disadvantage other political parties. We also made reference to what is known as the Churchill convention, as raised by Professor Ewing in oral evidence to the Committee.
We support the new clause that would provide that before the Government introduce the Bill, which would affect trade union political funds, they should make a clear statement about whether it is being introduced with or without the agreement of all political parties represented in the House of Commons and that statement should be published. Certainly, I believe that that is the clear aim and that we should encourage the Government to seek political consensus with other political parties before introducing legislation that interferes with unions’ ability in this respect. The hon. Gentleman has mentioned examples. This is a point of principle. We have not seen this attempted before. The Government can, of course, impose their will—they have the maths—on the Opposition if they wish to do so. We all know that that is the case. The question is whether it is right to do that. We have discussed these issues at length, but this clause will seek to make it clear that the Government will have to be very clear about their intentions in future.
Nick Boles
I love the way the Opposition seek to invent conventions whenever it is useful. It is an easy game to play because all that is needed is to find a very great person from the past—hopefully dead so that they cannot be consulted—take something they once said and declare it a convention. It is certainly something that, should I ever find myself in Opposition—God forbid—I will avail myself of.
Stephen Doughty
I am sure the Minister will confirm that the noble Lord Hague is not deceased.
Nick Boles
Very far from it, and long may he not be.
Our manifesto stated very clearly that a future Conservative Government would ensure that
“trade unions use a transparent opt-in process for union subscriptions”.
We were elected on that basis after a prolonged debate in the country of all the policies in all the different parties’ manifestos. That is exactly what we are doing.
The right and proper place to consider the provisions relating to that manifesto promise is in Committee and on the Floor of the House. In that way, the debate is transparent and democratic, and the electorate can see what is agreed and whether it is indeed what they were promised in the manifesto. Those debates should not happen behind closed doors and be presented to the public as a fait accompli.
We heard from the hon. Member for Glasgow South West and other hon. Members during the Committee’s deliberations about excellent campaigns such as HOPE not hate that receive support from trade unions through their political funds. I think we can all agree that those are very worthy causes that would command the support of all of us. I see no reason why they should not command the support of union members in exercising their opt-in to the political funds. I urge the hon. Gentleman to withdraw his new clause.
Chris Stephens
I am not going to press the new clause to a Division, because I think the case should be heard before the whole House, with all political parties present, so I will bring it back on Report. I beg to ask leave to withdraw the motion,
Clause, by leave, withdrawn.
New Clause 10
The Certification Officer
In section 254 of the 1992 Act (The Certification Officer) for subsections (2), (3) and (4) substitute—
“(2) The Certification Officer shall be appointed by the Judicial Appointments Commission, and the person appointed shall have expertise in trade union law.”—(Stephen Doughty.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.
The Chair
I am told that there will be a Division in the House in less than a minute so we will suspend now. If there is only one Division, we will meet in 20 minutes. If there is a second Division, we will meet 15 minutes after the start of the second Division.
Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)
I beg to move, That the clause be read a Second time.
It is a pleasure to appear again under your chairmanship, Sir Edward. The new clause pertains to agency workers. We have heard quite extensively from many public sector bodies about their concerns in this regard. They have very clear concerns relating, for example, to patient safety, which has been highlighted again and again.
Repealing the existing prohibition on hiring agency staff to replace workers participating in industrial action fundamentally undermines the right to strike. It reduces the impact of strike action and upsets the power balance between workers and employers. Deploying a replacement workforce during a strike serves only to prolong the dispute, delay resolution and embitter industrial relations.
A change of this nature has implications for all workers. If rogue employers can draft in low-paid temporary workers to break strikes, that is likely to drag down pay and working conditions for workers right across the economy, as fewer people will be willing to stand up for themselves when facing injustice at work because they will know that they can simply be replaced. The change could also have an adverse implication for the agency workers themselves. It places them in an extremely difficult situation. They may risk not getting further work if they refuse such placements and they would have no statutory protection. Furthermore, introducing inexperienced workers to take on the role of the permanent workforce in a workplace that they are not familiar with has implications for health and safety and the quality of the services, as we have heard. That would impact both on the workers and on the public, who may want or require to use the services.
A recent YouGov poll found that of those surveyed, 65% were against bringing in temporary agency workers to break public sector strikes, with more than half saying that they thought that that would worsen services and have a negative impact on safety. Only 8% of the public who were surveyed believed that hiring agency workers during strikes would improve services.
Chris Stephens
In the evidence sessions, we heard from passenger transport groups, which made it plain that if train or bus drivers, for example, were replaced during a strike by people who were not trained, that would have real effects on public safety. Does my hon. Friend agree?
Dr Cameron
My hon. Friend makes an extremely good point. We have heard it time and again not just from the workers to whom he refers, but from healthcare and other workers.
The drawbacks of allowing agency staff to be used in this way are recognised by other European countries. By repealing the current legislation, the UK Government would become an outlier in this regard, as the majority of other European countries prohibit or severely restrict the use of agency workers during industrial disputes. In effect, this would be taking us back in time to the 1970s—a time when workers were pitted against one another. Often, that led to greater discord and disharmony for all, but particularly for the ordinary working person, who had difficulty sustaining their livelihood.
Again, this is partisan legislation and it is just not right. Our new clause is designed to ensure that agency workers would not be brought in. It states that a business
“shall not introduce or supply a work-seeker to a hirer to perform…the duties normally performed by a worker who is taking part in a strike or other industrial action…or…the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform the duties normally performed by the first worker”.
The new clause is designed to give the everyday worker in public services the same rights as others. It would give them the ability to engage in right and proper action as a last resort when they have to but not have their causes undermined. As we have heard, the public do not want that and it would also potentially undermine safety. I therefore look forward to the Minister’s response.
Stephen Doughty
The new clause enjoys the support of the Labour party, and I would be happy to add my name and those of my hon. Friends the Members for Wallasey and for Edinburgh South to it formally. As described by the hon. Member for East Kilbride, Strathaven and Lesmahagow, the new clause would insert into the Bill a ban on the supply of agency workers during industrial action.
The Government are planning to remove the ban through regulations. It seems they have been undertaking a consultation. Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prohibits agencies from knowingly supplying agency workers to replace striking workers. The change that we understand the Government are planning to bring forward will enable employers to bring in agency workers with a view to breaking strikes, regardless of the consequences for health and safety, which the hon. Lady has gone through in some detail.
We have heard from many witnesses throughout this Committee, both in the oral evidence sessions and more recently via written evidence. It is also important to look at the evidence that many organisations submitted to the Government’s consultation, much of which has been made available publicly. I will touch on a few parts of that evidence that I think are very pertinent.
In the oral evidence, the Government called a witness from an organisation called 2020 Health to support their Bill, but the witness seemed unable to confirm or was unaware that trade unions are required to provide life and limb cover. The Royal College of Midwives gave evidence. When it took strike action in October 2013, the RCM and its local representatives worked with hospitals to ensure that services were still available to women in need of essential care, such as those in labour. In light of that, many will rightly ask whether the provisions on agency workers are necessary.
Recruiters are wary of using temps and agency workers as strike-breakers. Kate Shoesmith, who is head of policy at the Recruitment and Employment Confederation, which has more than 3,500 corporate members, said:
“We are not convinced that putting agencies and temporary workers into the middle of difficult industrial relations situations is a good idea for agencies, workers or their clients.”
The Chartered Institute of Personnel and Development, which we have commented on many times, represents more than 140,000 members working across the public and private sectors. It warned that the Government’s plans to reform trade union laws are “an outdated response” given the challenges faced today.
Frances O’Grady, the TUC general secretary, spoke of the practical problems with the proposal. She said:
“We have very good relations and agreements with agencies and the federation representing agencies in this country. We have always worked very closely on the fair principles of employers needing flexibility to cover peaks and troughs in production, or staff absences, and doing that on the basis of equal treatment within the framework of the union agreement. This proposal is obviously quite different. We are potentially talking about employers having the right to replace wholesale workers who have democratically voted to go on strike with, potentially, untrained and inexperienced agency workers.”––[Official Report, Trade Union Public Bill Committee, 15 October 2015; c. 148, Q383.]
I also want to refer to the TUC’s response to the Department’s consultation, which said:
“Ciett, the International Confederation of Private Employment Agencies, has issued a Code of Conduct which prohibits the supply of agency workers during strikes…The Memorandum of Understanding between Ciett Corporate Members and Uni Global Union on Temporary Agency Work, which was signed by several UK agencies in 2008, prohibits ‘the replacement of striking workers by temporary agency workers without prejudice to national legislation or practices.’”
The TUC makes clear in its evidence that
“the ban on the supply of agency workers to replace strikers has been in place for more than 30 years and is an established part of UK industrial relations practice.”
We heard some striking examples from the hon. Lady, and I want to emphasise my similar concerns, particularly over transport and railways and so on. The TUC points to how:
“Agency cleaners recruited to work in food factories may not have received the requisite safety training relating to handling chemicals or cleaning products.”
That places the safety of customers, let alone that of the agency workers, at risk. There were also concerns about the potential for tensions to be created around migrant workers and all the issues surrounding that, which we have already discussed at different points.
Most people have a great deal of concern about many of the circumstances we have discussed where agency workers could be brought in. The evidence is pretty damning and the Government should be embarrassed that they are trying to force the measures through, despite the chorus of opposition to them.
As I have argued throughout our consideration of the Bill, any one of the clauses on its own is bad enough, but the cumulative impact is worse still. The Government’s apparent proposals on agency workers, alongside clause 7, imply that the extended notice period is being introduced to give employers additional time to organise agency workers to undermine industrial action, as well as to prepare for the legal challenges that I think will inevitably result from the Bill. We are firmly opposed to the removal of the ban on the supply of agency workers during strikes, which will make it easier for employers to break strikes or undermine their effectiveness.
The Opposition believe that the measures would be bad for safety and for service users. Because they could serve to prolong or worsen industrial action, they would be bad for the general public too. It is certainly not a model for modern industrial relations. If our colleagues choose to press the amendment to a vote, they will enjoy our full and hearty support.
Nick Boles
By seeking to enshrine in primary legislation the current ban in regulations on employment businesses supplying temporary workers to cover the duties of striking workers, as well as extend the ban to hiring or engaging such workers through an employment agency, the amendment seeks to pre-empt the outcome of the Government’s response to the consultation on agency workers, the purpose of which was to understand the impact of revoking regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, thus making it lawful to hire agency workers to cover striking workers.
I entirely respect and understand that Opposition Members have many principled objections to the proposal. There will be another opportunity to debate the merits of the proposal after the Government have responded to the consultation, if we decide to proceed with removing the regulations. The removal of the regulations—I might be anticipating the hon. Gentleman’s question—will be done by affirmative resolution, which requires a debate in both Houses of Parliament. I humbly suggest that now is not the time to anticipate the Government’s response to the consultation.
Stephen Doughty
Clearly we are attempting to pre-empt in this case, because we have serious concerns. The Minister rightly points out that the Government have not yet responded to the consultation. As we have seen throughout the process, we do not have the Government responses to consultation that one would think we would have had before getting to this stage of the Bill. Can he outline what percentage or number of the responses received to the consultation so far have been in favour of the Government’s intentions, and how many have been implacably opposed, as our new clause is?
Nick Boles
The hon. Gentleman does not just want to anticipate the publication of the response to the consultation and the Government’s decision whether to proceed with removing the ban; he wants to anticipate the contents of the response to the consultation by asking what the responses were. I am afraid that he will have to wait until we publish the response. There were numerous responses to the consultation, which closed in September, from a wide range of respondents, including businesses, schools, local authorities, emergency services and trade unions and their members, and we are analysing those responses. We will consider all representations made, and will publish a Government response in due course.
Chris Stephens
The Minister is right that we are trying to pre-empt it. Does he not recognise the concern that some of us have? In some places, agency workers have been used during industrial action. The current law is weak in trying to stop that, and we are trying to improve the situation. Does he recognise that?
Nick Boles
I certainly recognise that the Opposition feel strongly about that position, and I have absolutely no doubt that they will return with these or similar clauses, and certainly with similar arguments, should the Government decide to pursue a change in the regulations banning the use of agency workers. However, I do not want to pre-empt the Government’s position, because we have not yet decided how we will respond to the consultation. On that basis, I urge the hon. Gentleman to withdraw the amendment.
Dr Cameron
Although I find the Minister extremely eloquent with an appearance of moderation, as I have done throughout, I must say that the SNP find it disingenuous. We wish to put safety, public opinion and the ordinary worker at the fore. I therefore urge the Committee to support the new clause.
Stephen Doughty
On a point of order, I want to take this opportunity, if you will allow me, Sir Edward, to thank a number of people for the conduct of proceedings during this line-by-line scrutiny of the Bill. It has been a very fulsome and forthright debate, but conducted with good humour and respect, which is always important. I thank the Minister for his good humour despite being under significant pressure. He has had a tough gig with this, having been put in this position by some of his more sinister colleagues—as I once described them—not, perhaps, sitting in this Room, but maybe in the dark recesses of the Cabinet Office and elsewhere. He knows who I mean.
More seriously, I am sure that we will come back to many issues on Report that we are not satisfied with the Government’s position on and we will continue to oppose the Bill at every stage. I thank you, Sir Edward, and your fellow Chair, Sir Alan, for excellent chairing and good humour. I thank the Clerks, in particular Glenn McKee and Fergus Reid, who have provided excellent support. It is always a tough job for an Opposition to hold a Government to scrutiny and it is important that we have the support of the apparatus of the House of Commons in doing so. I also thank Hansard and the doorkeepers, especially for the numerous votes when we have forced them to go out and shout about in the corridor.
I thank my colleagues on this side of the Committee. It has been good to work alongside our colleagues from the SNP on many aspects of the Bill. There is much which divides our parties, but there is much that unites us on this issue. I thank, in particular, my hon. Friend the Member for Newport East, who has whipped the Bill, for her support at all times with all the procedure. On that note, high thanks to all and I look forward to joining the debate when we return in the Chamber.
Nick Boles
On a further point of order, Sir Edward, I, too, want to thank you for your chairmanship of our proceedings and for enabling us to ensure that we have a full complement on the Government Benches at all stages of the Bill, despite some of our attempts to make it hard for you to achieve that. I also thank the Clerks, the doorkeepers and everybody who has supported us in these deliberations.
I hope it will not blight the career of the hon. Member for Cardiff South and Penarth if I say that he has conducted opposition to the Bill with exemplary precision and persistence. I am very much awed by the superb support of the Rolls-Royce that is the civil service in the Department for Business, Innovation and Skills. The hon. Gentleman has to rely on a little help from trade unions and other interested parties, but mainly on the superb work of the Clerks. He has done an admirable job which has demonstrated the support of the Clerks.
I hope that the entire Committee agrees that we have given the Bill a proper going over and the fact that we are concluding proceedings a little before time—we have until 5 o’clock this evening—shows that a full and proper consideration of all the provisions in the Bill has been achieved.
I, too, thank the hon. Members from the Scottish National party. I particularly enjoyed that way that the hon. Member for East Kilbride, Strathaven and Lesmahagow, in concluding, offered me a bouquet and then slid a blade between my ribs without so much as a heartbeat or a pause for breath. Finally, I thank the Hansard reporters for reporting what I have said accurately—unless I said stupid things, in which case they always seem to improve what I say.
On that basis, I thank Committee members from both sides for their contributions to the debate.
The Chair
It is my pleasure to thank you, ladies and gentlemen, on behalf of Sir Alan and myself. We both found the Committee most enjoyable. Obviously feelings run high, but you have all conducted yourself brilliantly: the Minister, the Opposition spokesman, the Opposition Whip, even the Government Whip—[Interruption.] I love teasing him. I love him really; he is a great man. Perhaps he is one of these sinister forces we hear so much about. Seriously though, it has been a good Bill. The fact that we have finished only an hour early shows, as the Minister said, that we have given it a good going over. We have done our job and held the Government to account. All Committee members should be proud of their efforts.
Does anyone want to say anything more?
Chris Stephens
This was my first Bill Committee and it has been a most interesting experience. In any event, I have come to the conclusion that it is no way to run a country. In future, consideration should be given to having more evidence sessions, because some of them were crammed in. I am just putting that out there in general terms as the views of a new Member on proceedings.
I thank you, Sir Edward, and Sir Alan. You have both been very encouraging and explained the processes as they arose. I thank the Clerks, who have been very helpful and talked us through tabling amendments. I agree that we have tried to maintain good humour; I tried myself with cultural references to “Star Wars”, “Game of Thrones” and, I think, “Rainbow” in one instance. I thank all Committee members. The Labour Members have done themselves proud in providing opposition to the Bill, while the Conservative Members have tried to justify it as best they can. I look forward to continuing the debate on Report.
The Chair
On these happy occasions I always feel like I am at a count—I feel like I should thank the returning officer and the policemen. Thank you for all being so fraternal in the best traditions of our trade union movement.
Bill, as amended, to be reported.