(8 years, 9 months ago)
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Baroness Hamwee
“( ) In section 33(1)(a), for “race” substitute “a protected characteristic as defined in Chapter 1 of Part 2 of that Act”.”
Baroness Hamwee (LD)
My Lords, this group of amendments takes us to the provisions in the Bill on the right to rent. The debate and many briefings around the evaluation of the restrictions applied in the West Midlands under the scheme instigated by the 2014 Act, particularly references to discrimination, prompted me to look at that Act. Section 33 requires a code of practice from the Secretary of State specifying what a landlord or agent should do to avoid,
“contravening … the Equality Act 2010, so far as relating to race”.
I confess that I cannot remember why only race is mentioned in that section, not the other so-called protected characteristics, which include age, disability, gender reassignment, marriage and civil partnership, religion and belief, and sex and sexual orientation. I accept that some of these may be unlikely to influence a landlord’s or agent’s attitude, but it can be difficult for some people to distinguish discrimination on the basis of race and religion in practice. So my question to the Minister is: why did we confine this to race? I am implicated in this, after all, as I took part in debating that Bill. In any event, is the matter not due for review?
The other amendments in this group are on the evaluation of the right-to-rent scheme. My Amendment 159 was tabled to come before Clause 13, but it does not matter. I have added my name to Amendment 151, which is about applying criminal sanctions to the provisions in the 2014 Act, making non-compliance into a criminal offence. That obviously requires an evaluation of how the 2014 provisions are going. Amendment 159 would provide that there would be no rollout of those provisions from the West Midlands until the evaluation to which I referred in the amendment. Since then, the Government have laid a statutory instrument to roll out those provisions. I have also tabled a Motion to annul that—quite separately, of course, from today. For a number of reasons, I was very sorry that that was laid, obviously because of the substance of the matter but also because I was really rather proud of this amendment, which, somewhat to my surprise, did not get altered in its passage from my head on to the Marshalled List. The evaluation which Amendment 159 would require would be an independent one by a representative sample of landlords, agents and tenants, looking at the impact both on the lettings market and on the wider local community, as well as on whether the aims of the legislation were achieved. I would give until the West Midlands scheme was in effect for long enough to undertake a good evaluation. I have said five years, but I appreciate that that may be contentious—and I apologise to the West Midlands for continuing to inflict this there. These are all issues that have been identified by those who work in the sector, both the landlords and agents and the various groups which have concerns for immigrants.
The Home Office evaluation of the West Midlands scheme acknowledges that the sample sizes were small—I would say they were very small—and that the findings are indicative rather than definitive. The sample does not claim to be representative. My comments are not intended to be any criticism of those who were tasked with the evaluation. The majority of the tenants surveyed were students, who are clearly not representative of families, older people and people who are in work. It is particularly easy to check on a student’s right to rent, so in that way they are less representative as well. I understand that they were specifically targeted by an information campaign in the area. The majority of tenants did not move property, so there is no experience there. The pointers to discrimination in the period that the scheme was running may have been few, but they are significant in the context. You certainly cannot say that the evaluation shows that discrimination was not an issue. In fact, the evidence showed discrimination.
The aims of the right-to-rent scheme are to reduce the availability of accommodation for people who are illegally in the UK, to discourage those who stay illegally—in other words, to encourage them to leave—by making it more difficult to establish a settled life here and to reinforce action against rogue landlords. I do not believe that the report demonstrates that those aims were met.
I congratulate the Joint Council for the Welfare of Immigrants on the work it did. I shall not quote a great deal from its report as I hope that I have made the points fairly succinctly, but it points out from an independent evaluation it commissioned that 42% of landlords said that the right-to-rent requirements have made them less likely to consider someone who does not have a British passport and more than one-quarter said that they would no longer engage with those with foreign accents or names; at Second Reading, I said that I thought that with my slightly odd name I might find it hard to find rented accommodation. The council also said that 50% of respondents who had been refused a tenancy felt that discrimination was a factor in the landlord’s decision and—I am so naive that I found this shocking—landlords and agents have charged fees in order to undertake the right-to-rent checks. In addition, unscrupulous landlords have passed the potential cost of a fine on to the tenant in the form of increased rent or deposits.
I have also heard from Crisis, as other noble Lords will have done, which comments on the problems arising from the scheme for homeless people, whose documents often get lost or stolen. It says that replacing missing documents is expensive, probably prohibitively expensive, and when the lettings market is very high pressured and fast moving, as we know it is, landlords are not prepared to wait for tenants to produce documents. They will rent to somebody who can provide the evidence immediately and thus provide them with rent immediately.
Crisis also comments on the right-to-rent scheme applying to live-in landlords who take in lodgers and is concerned that it will act as a disincentive to people letting out rooms in their homes given the housing pressures we are experiencing.
I end by quoting from a letter that I received yesterday from the Residential Landlords Association, which says:
“Given that the little data available is at best contradictory and at worst shows that the Right to Rent scheme is … not achieving what the Government wants; and … is leading to discrimination against those unable to clearly unable to identify their nationality, we believe it premature to roll out the scheme across the country … To proceed at this stage runs the very real risk of causing considerable harm to the relationships between landlords and tenants which are so crucial to the smooth operation of the private rented sector”.
I thought it important to include that because it comes from the perspective of landlords, not that of many others from whom we have received briefings.
My name is on the third amendment in this group, but I beg to move Amendment 148.
Lord Kennedy of Southwark (Lab)
My Lords, the amendment in this group in my name and that of my noble friend Lord Rosser would require the Secretary of State to lay before Parliament an evaluation of the national rollout of the 2014 right-to-rent scheme before the offences listed in the clause came into force. Again, this issue was raised at Second Reading, and there is considerable concern about this position. Landlords can find themselves in some difficulties as they are not immigration officers and do not have the expertise to make determinations. The penalties for offences committed under new Sections 33A and 33B are severe: on conviction on indictment, a penalty of up to five years’ imprisonment, a fine, or both; and on summary conviction, a prison term of up to 12 months, a fine, or both.
The amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, have considerable merits. Amendment 159 would stop any orders coming into force other than in the pilot area until the Secretary of State had published an independent evaluation of these sections of the Immigration Act. The noble Baroness, Lady Hamwee, was right to say that we do not have a very long period in which to make a proper evaluation. She also made a valid point about the protected characteristics in Amendment 148.
I hope that the Minister will be in a position either to accept these amendments or at the very least to reflect on them before coming back to this issue on Report. As I have said, the Bill is in a bit of a mess and, unlike the Modern Slavery Act, we have not had the pre-legislative scrutiny required. That is why we are having all these difficulties as we go through Committee.
Will the Minister think about the effect on the rental sector and the injustice that can be done not only to landlords and people who rent out to lodgers but to prospective tenants who may be unable to rent easily just because they are foreign, have an accent or dress differently, or their documents are not understood by lay people because they are in a foreign language? They will suffer unfairly due to the Government’s proposals here not being properly thought through, as the noble Baroness, Lady Hamwee, referred to.
Earl Cathcart (Con)
My Lords, I support the amendment about delaying the rollout of the pilot scheme. This seems to focus on the likelihood of landlords potentially asking all those with foreign names or accents for evidence of their right to rent. I thought that the whole point of a pilot scheme was to ensure that what was being put forward was actually working as intended. However, as mentioned by the noble Baroness, Lady Hamwee, the Joint Council for the Welfare of Immigrants found that two-thirds of landlords had not fully understood the code of practice on preventing illegal immigration or indeed the code of practice on avoiding discrimination, and that 50% of those who had been refused a tenancy felt discriminated against, while 40% of tenants in the pilot area had not been asked for any identity documents. That is hardly a resounding success for the pilot scheme, yet the Government want to roll out this contentious scheme across the country next month. That cannot be the right answer.
Baroness Lister of Burtersett (Lab)
My Lords, I will speak in support of Amendment 151 in particular. The pilot scheme has done nothing to allay all the fears that have been voiced by many organisations that the policy will have unintended, discriminatory consequences, for the reasons given by the noble Earl, Lord Cathcart, and the noble Baroness, Lady Hamwee.
The noble Baroness, Lady Hamwee, referred to the JCWI’s independent evaluation. I would be interested if the Minister could tell us what view the Government take of its evaluation alongside the pilot that they have prayed in aid to suggest that everything is fine.
At Second Reading I made brief reference to concerns raised by the charity Rights of Women about the possible implications for women fleeing domestic abuse. I will quote more extensively from the briefing it sent, because it is important. Rights of Women, as noble Lords may know, is a charity which specialises in supporting women who are experiencing or are at risk of experiencing, gender-based violence, including domestic and sexual violence. It says it is,
“deeply concerned that the ‘right to rent’ scheme will place already vulnerable migrant women who have experienced domestic violence at further risk of harm as a result of a scheme that creates barriers to accessing private … accommodation … Many women, including British citizens, experiencing violence in their relationships will have been deprived of access to important documents, such as passports and biometric residence permits, necessary to prove their right to rent and therefore these provisions will have a disproportionate effect on women fleeing abusive partners or other perpetrators of abuse regardless of their nationality.
Furthermore, women with limited leave to remain in the UK on the basis of their relationship with a British or settled person are dependent on that relationship subsisting for the continuation of their leave; when the relationship ends their immigration leave is at risk and women need to take steps to regularise their status in another category. Women who have fled abusive partners often need time to recover from their trauma before starting to address matters such as regularising their immigration status. It is not uncommon for a woman to find out much later after the breakdown of a relationship due to violence that unbeknownst to her the Home Office has curtailed her leave after her abusive partner informed them of the relationship ending. Without receiving notice of a Home Office curtailment decision, a woman can find herself without leave in the UK, unable to work or access housing.
Many of the vulnerable migrant women we advise on our telephone legal advice line have left or are trying to leave abusive relationships. Of these women a significant proportion are presently undocumented though either have an existing right to reside in the UK under European law or have a strong basis on which they can submit an application to the Home Office for leave to remain. The ‘right to rent’ scheme places these already vulnerable women at further risk by preventing them from accessing their own safe private rented accommodation due to a lack of documentation”.
These women will then be,
“at risk of homelessness, renting from exploitative landlords, returning to abusive partners or being forced into entering exploitative relationships”.
The charity gives a couple of case studies which illustrate the very likely problems that could occur, which I will not cite now given the lateness of the hour. However, I will ask: how does this fit in with the Government’s laudable strategy to end violence against women and girls?
Baroness Sheehan (LD)
My Lords, I lend my support to the remarks made from all sides of the Chamber in support of Amendments 151 and 159, which would provide for a proper evaluation of the right-to-rent scheme before we roll it out nationwide.
I have spent a fair amount of time volunteering with a local charity for homeless people in Wimbledon called Faith in Action. On one occasion I was asked to help a person whose documents had been stolen—an occupational hazard when you are a rough sleeper. It was a lengthy and frustrating morning and afternoon—and quite expensive to boot—and I was not successful in tracing the documents on that occasion. I say this because it is clear to me that homeless people, foreign nationals and those from a black and ethnic minority background who have a right to rent but are not in a position readily to produce the necessary documents will be excluded from the rental market as landlords inevitably become more risk-averse in the face of the harsh penalties that could be incurred.
A number of people have talked about the many different organisations that have put forward their case strongly and well. Crisis—a national charity for single homeless people and a member of the Home Office panel—is one of them. It states that, according to an evaluation of the Immigration Act 2014 in Birmingham, which other noble Lords have mentioned, six of the local charities surveyed said that people they represent have become homeless as a result of the scheme, while interviews with landlords found “potential” for discrimination. They, of course, are not alone in those findings. The Law Society raises similar concerns, as does Liberty. To that list I can add Shelter, St Mungo’s and the JCWI. In fact, any charity that works on the ground with homeless people or supports immigrants’ welfare will say the same.
So I can do no less than lend my support to Amendments 151 and 159. Surely it makes sense to delay implementation of the offences contained in this Bill and the rollout of the right-to-rent scheme until independent evaluations of the associated risks have been carried out.
Lord Deben (Con)
My Lords, I find myself in a very difficult position. I have to say to my noble friend that there are three elements to this aspect of the Bill, which the amendments address, which seem to me incomprehensible. The first is that, if one is running a private business and is going to make a major change in the way it is run, one has a pilot scheme that one evaluates—preferably independently—and then decides whether or not it has worked. I do not understand how a Conservative Government who believe in private enterprise have not learned this from the private sector. It seems to me that you do not behave like this. You have a pilot scheme, you have it independently assessed, you announce the results and then you discuss what those answers mean.
So I have a problem of comprehension to start with. It is an important problem, because the second difficulty I have is that I find it pretty unacceptable in this country that people should have to prove that they are suitable for renting a flat before they are allowed to do so. I do not find that very attractive. I am one of those who have always believed in identity cards, which I think would be convenient for everyone. But this Government do not believe in identity cards and have tried to argue all the time that they are not necessary. However, we are now creating a sector, a section of the community, which in fact has to have an identity card. I object in principle to the concept that some should have it and others should not.
Central to that is the issue that, however one likes to dress it up, it is likely that landlords will be more suspicious of people of an ethnic minority or with a foreign accent than they will be of those who speak correct English with the crystal accents heard in this House. I do not think that many of us who have spoken today, even those with self-confessed “odd” surnames, would be refused rented accommodation, because landlords would not expect us to be unable to prove our suitability for that flat.
Lord Best (CB)
My Lords, I disagree with an awful lot of what the noble Lord, Lord Deben, said, and in particular his comments on the so-called bedroom tax. But we will not go into that at this hour of the night.
During the passage of the Immigration Bill 2014 through the House of Lords, the noble Lord, Lord Taylor of Holbeach, made some important concessions from the original drafting. One of those was to set up the pilot scheme that turned out to be in the West Midlands. I was subsequently asked to chair the consultative group that would follow the pilot scheme and see whether all was well or everything fell apart as a result of this measure. I jointly chair this with the Immigration Minister, James Brokenshire, and we have been meeting monthly or bi-monthly for the past year or so following the story as it has unfolded.
This has not been a trivial exercise. I assumed when I was joint chair with the Minister that he would come in at the beginning of the meeting, shake everyone’s hand and then clear off. It has not happened like that at all. The Minister has attended every meeting from beginning to end. My role has been very subservient to that, but it has given me an insight into how this pilot has worked out. I have also been to the West Midlands, met various landlords and talked to them about how they worry about these things. From that perspective, let me therefore report back on the pilot and the things have been going on in the Home Office.
There has been quite a considerable investment in this. A YouGov survey was carried out in the fairly early stages of the pilot. It was not awfully large, but then none of the surveys has been very large. It definitely indicated that landlords were saying how reluctant they were to get involved, that it was a nuisance, a bureaucratic nightmare and how they were more likely to turn people away if they suspected something from their accent or whatever. They said all those things. “Grumpy landlords” was the message coming back.
To take an important ingredient of that, discrimination, the pilot set up by the Home Office looked at the area of the West Midlands where the right to rent was being implemented and also looked at a comparison area elsewhere. I am not meant to say where the other area was. We kept it a secret so that the people there did not know they were being looked at in this particular way. But we had a series of mystery shopping exercises in which people phoned with funny accents or with the Oxford English referred to by the noble Lord, Lord Deben, and saw how they compared. In the comparison area, the discrimination existed as well as in the right-to-rent area. I am afraid that this does indeed prove that people—landlords and agents—take discriminatory attitudes towards the people whom they might accept as tenants. But it did not show that where right to rent had been introduced, the landlords behaved any differently than in the comparator area.
We did discover that some of the documentation that could prove that you were indeed entitled to be in this country was hard for landlords to understand and get their heads around. At the end of the process—and we only just have the final version—we developed a right-to-rent guide with pictures showing how documents relating to various aspects of identity from different countries looked for real. You would have to be pretty stupid not to be able to find in the guide the document that you are checking, if it exists. If landlords doubt whether the documentation is indeed genuine, they should—it would be unwise not to—phone the Home Office helpline.
We have asked Home Office officials what kind of resources are going into this helpline and how real it is. They have been extremely fast about answering calls, often within minutes. But if the scheme goes national, is the Home Office going to be able to fulfil the commitment that if a landlord or agent has not had a definitive response within 48 hours, the answer will have to be, “Yes, you can go ahead”? The Home Office is given 48 hours to say whether a particular person is here legally or not. If it does not get around to giving that answer because it is too busy, after 48 hours a landlord is absolutely in the clear to let to that individual. We wanted to make sure that the staffing was up to muster and that the helpline was properly serviced—and it is.
The steering group includes representatives from the landlord organisations who have been on both the main group and on sub-groups which have been looking at the discriminatory code and our code of conduct as well as at the evaluation exercise. We have had people from the Residential Landlords Association, the National Landlords Association and bodies that represent tenants’ interests. Shelter has joined, while Crisis has been there since the beginning. We have the GLA and the four local authorities in the West Midlands. These have been big and articulate meetings where people have been able to make the case and say the things they wanted to say.
We have been concerned throughout that the message would not get through. We need to communicate the fact that there is a right to rent and that both landlords and tenants have got to expect this little process to happen, as indeed it does for employers. Let us remember that this is only a parallel to employers being required to check the status of people who come to them for a job. We wanted to know that the communications exercise has been undertaken seriously. There has been a respectable budget for this work. A pretty good website has been set up so that people can see pictures of all the documents they need. There is social media networking using the landlords associations and showing the codes of conduct. Here I declare my interest as chairman of the Property Ombudsman. We have changed our code and we are publicising that. We have to get it out through the landlord networks, which have been co-operative.
From the beginning to the end, absolutely no one, either landlords or tenants, has welcomed this scheme. It is an imposition on them. But it has been an imposition since the passing of the 2014 Act and people are getting used to the idea that it is part of what you do before you undertake a letting. Landlords already need to take references because they want to know that people are going to be able to pay the rent into the indefinite future. They want to know that people really are who they say they are. Passports are regularly required by letting agents, so someone would already not get much further without one. The extra documentation may make life a bit easier for people now that it is clear what designates an individual as being in this country legally or illegally.
When we get to the penalties for offences, I am again interested because rogue landlords are a major problem in all of our big cities. There are people who exploit the tenants who come to them, and in particular they can exploit those who are not here legally. So far, these landlords have not been deterred from doing all kinds of horrendous things, so I welcome the Home Office having joined in and taking an interest as a major additional enforcement agency when it comes to knocking on the doors of landlords who are letting appalling properties at high rents and definitely exploiting the occupiers of those properties. The Home Office has been joining in with local authority enforcement officers, who have often felt rather bereft of the powers they need. They have found that landlords who have been behaving very badly come away from the magistrates’ court having been fined £500 and writing that off as a business expense because they are taking £5,000 a month for a house that is grossly overcrowded and where people are being treated abysmally.
Having the Home Office there adds another dimension to this. It is a powerful extra ally for those of us who are very much opposed to rogue landlords up and down the country, and I welcome its presence. This partnership between the Home Office and local authorities is now a hallmark. When people from the different local authorities in the West Midlands were asked how they felt the exercise had gone at the end of our last meeting, the comment was that there is now a new kind of partnership between the Home Office and local authorities at the local level in areas where they have been targeting rogue landlords.
The Minister of State, Home Office (Lord Bates) (Con)
After the remarks made by the noble Lord, Lord Best, I am tempted to say that I invite the noble Baroness to consider withdrawing her amendment at this stage. The noble Lord gave an authoritative and insightful perspective on the process. As this is the first time that we have come to residential tenancies, for the benefit of the Committee I should put on the record that my wife owns properties that are rented in the private sector. It is not something that is required to be listed in the register but, out of courtesy to the Committee, I make your Lordships aware of that.
Amendment 148 would extend the existing requirement on the Secretary of State to issue a code of practice that specifies what a landlord or agent should or should not do to avoid contravening the Equality Act 2010. It would then relate to all protected characteristics set out in the Equality Act. Amendment 151 would require that, before the offences of leasing premises in this Bill are commenced, the Government should lay before Parliament a report of the impacts of the restrictions on illegal migrants accessing the private rented sector which were introduced in the Immigration Act 2014 in relation to discrimination and the ability of those lawfully residing in the UK to access rented accommodation where they have neither a passport nor a driver’s licence.
Amendment 159 would require an evaluation to be made of the effect of the measures in the first phase area. This would have the effect of delaying any extension of the right-to-rent measures in the Immigration Act 2014 from the first phase area in the West Midlands until at least 1 December 2019. The Government take their duties to have due regard to the need to eliminate all forms of discrimination very seriously. The Government have published the policy equality statement and the evaluation of the right-to-rent scheme. The evaluation found no hard evidence of discrimination where the right-to-rent scheme had been commenced, or, indeed, when that area was compared against others, as the noble Lord, Lord Best, outlined. The evaluation also found no evidence that people who lacked a passport or driver’s licence suffered additional barriers.
The Government have given the fullest consideration to the findings of the evaluation and worked with the landlords consultative panel to ensure that the rollout is taken forward, bearing in mind the lessons learned. There is a list of acceptable documents for the right-to-rent checks, which sets out a broad and comprehensive set of options. This can be used by prospective tenants who do not possess a passport or driving licence to provide evidence of their right to rent. It has recently been revised further in consultation with bodies representing landlords, agents, local authorities and the housing charities Crisis and Shelter.
The code of practice that has been published addresses the concerns raised when the Immigration Act 2014 was passed that the right-to-rent scheme might inadvertently result in increased discrimination on the grounds of race. It provides guidance to landlords and agents in avoiding such discrimination. The Government do not believe that there is potential for the right-to-rent scheme to result in increased discrimination on other equality grounds.
Amendment 159 is at variance with the Government’s concerns that the measures should be implemented across the country with the minimum of delay. The Government are already committed to extending the scheme across England on 1 February and the order extending the scheme from that date has already been laid before Parliament.
In implementing the scheme, the Government have engaged with a panel of experts comprising representatives of landlords’ and agents’ associations, homelessness groups and the Equality and Human Rights Commission, as well as local authorities in the areas concerned. We are confident that we have designed measures that will meet the intended objectives.
Having put those remarks on the record, I come to the points raised in the course of the debate.
Baroness Sheehan
Would the Minister talk about whether he thinks a sample size of 23 people who are visibly from an ethnic minority is a sensible basis on which to base this evaluation?
Lord Bates
I will of course come to that. I realise that there are some very detailed questions and I am certainly not skipping past them, but I wanted to put on record the Government’s response to the amendments before turning to the matters raised in the debate.
There are some interesting points here, the first of which is that, while this scheme has been rolled out into the private sector, the requirement to prove identity has been in operation in the social sector. It was introduced by the Labour Government in the Immigration and Asylum Act 1999. It provides a duty on local authorities to check that those entering social tenancies have a right to be in the UK. Indeed, it goes further and places a duty on local authorities to notify the Home Office where they come across people who do not have a right to be in the UK. What is new is that that requirement is being applied to the private sector.
On the criticism of the independence of the office of evaluation—a point made by my noble friend Lord Deben and a number of noble Lords—the Home Office Science evaluation had scrutiny of the consultative panel co-chaired by the noble Lord, Lord Best. It might be helpful for the Committee to have on record the members of the landlords consultative panel, co-chaired by James Brokenshire and the noble Lord, Lord Best. The representatives included: the Association of Residential Letting Agents; the UK Association of Letting Agents; the Residential Landlords Association; the National Landlords Association; the Royal Institution of Chartered Surveyors; the Department for Business, Innovation and Skills; the Department for Communities and Local Government; the Equality and Human Rights Commission; the boroughs of Sandwell, Dudley and Walsall; the National Approved Letting Scheme; Birmingham and Wolverhampton city councils; Universities UK; and Crisis.
Lord Deben
I did not criticise this as not being an independent group. My point was that the work should go on for longer before it is assessed, perhaps by the same group. It is not a question of complaining about the independence of the group; I fear that there has not been sufficient time to be able to draw the kind of conclusions which have been drawn. I think that is precisely what the noble Lord, Lord Best, indicated—that it would have been better to have had a longer period. All I was suggesting was that if you had a longer period and then had the independent assessment that would be better, given what a serious matter this is.
Earl Cathcart
I have a reservation. The Minister said that this is being done at the social housing level. However, it is relatively easy to get the message across to that sector because you just write to all the councils and tell them what it is. You cannot write to all the landlords because nobody knows who all the landlords are. There is no national register of landlords. I believe that is where the confusion has arisen in the pilot area, where 65% of landlords—two-thirds—do not understand the code of practice on preventing illegal immigration or the code of practice on avoiding discrimination. The message has not got to the landlords. When the Government roll this out, I wonder how the Minister proposes to get the message out to all landlords right across the country.
Lord Bates
I am very happy to take that further. First, it is worth pointing out that landlords already undertake a number of checks. It is standard for them to check people’s identity to determine whether they are who they say they are. They take up credit references. It is standard to take up references from previous landlords to determine whether the tenants are suitable people. They require proof of employment. Therefore, a number of checks are already required. Establishing that somebody has a right to be in the UK and has the appropriate documents should be done already under best practice. However, I shall address some of the practical points about how we communicate this change.
I return to the point about the robustness of the research because that was raised by a number of noble Lords. A wide range of research tools have been used, including 17 online surveys with 539 responses. They were just part of the exercise. There were 12 focus groups and 36 one-to-one interviews. In addition, a total of 332 mystery shopping encounters were completed. The evaluation has been overseen by the consultative panel to which I referred. The Home Office has not made claims about how representative the tenants’ survey was as it was administered via mailing lists and web links, and therefore we do not hold detailed responses on that. Research was carried out with landlords’ letting agents. The landlords’ survey had 137 completed responses, 114 of which related to landlords with properties in the phase one area. The tenants’ survey had 70 completed responses, 68 of which related to tenants in the phase one area. As regards the robustness of the research, multiple methodologies were used to understand the impact of the scheme in its first six months between 1 December 2014 and 31 May 2015. It reached multiple stakeholder groups—I know that is the concern of my noble friend Lord Cathcart—of landlords, letting agents, housing associations and other voluntary and community sector organisations, including local authorities. I can also provide further details about the research if that would be helpful.
Lord Deben
Can I come back to single rooms that are let in a house? I have said to the Minister that I am perfectly happy to go along with him if I could know that we have looked at this particular issue. As far as I understand, we have not got very much evidence about the interaction between this legislation and people letting rooms in their own house. Do we know how many people have been interviewed on this? Do we know that it does not have the effect that I fear it has? If he can show that to me I will withdraw entirely but I just want to know and I am not sure that the evidence is there.
Baroness Lister of Burtersett
To save the noble Lord from jumping up and down, our concern is that this could affect some people who have a perfect right to be here, such as British citizens—this is part of the point that the noble Baroness was making about people who are homeless. Vulnerable and disadvantaged groups—I talked about women fleeing domestic violence—may simply not have the evidence. A landlord who is in a hurry, and if there is great competition for space, is more likely to take the person who has all the documentation right at hand. It is not just between people who are not supposed to be here and people who are, because actually other groups are vulnerable to the unintended discriminatory consequences as well.
Lord Bates
I hear that. I am making the point that private sector landlords, in doing their due diligence on the person they are renting to, will already require a great deal of detail or proof of who they are and that they have a right to be here. It would surely be in their own interests. If they were letting out their property to someone who had no legal right to be here, they might find that that person disappears and they are left out of pocket. This is eminently sensible in terms of due diligence on the behalf of landlords, as well as being widely consistent with making it more difficult for individuals who are here illegally to operate, in terms of bank accounts, driving licences and employment. The evaluation found very little evidence that British citizens with limited documentation were experiencing problems as a result of the scheme.
With regard to the unacceptable burden of checks, landlords are being asked to take responsibility for ensuring that prospective tenants have a right to rent in the UK by carrying out simple document checks; where necessary, in a small number of cases, making a report to the Home Office. This supports the work of the Government to make it more difficult for illegal migrants to reside here unlawfully and to stop them accessing services to which they are not entitled.
The noble Baroness, Lady Lister, mentioned domestic abuse. She said that victims who do not have documents will struggle. In August 2015 the noble Baroness, Lady Williams of Trafford, announced a £3 million fund for 2015-16 to address any gaps in the provision of specialist accommodation-based support for victims of domestic abuse.
The noble Lord, Lord Deben, asked who should be checked. The answer is any adults who will be taking up the accommodation as their main or only home in the UK. This means all adult occupants, not just those who may be the named tenants.
The noble Baroness, Lady Sheehan, asked about evidence of stolen documents. If a document is stolen, a letter from a UK police force confirming that the holder is the victim of a crime and personal documents have been stolen, stating the crime reference number and issued within the past three months, would be acceptable.
I have covered the point on domestic violence. The Home Office will be aware of who is applying for leave to remain under paragraph (289A) of the Immigration Rules as a victim of domestic violence. It will refer to the national referral mechanism to ascertain who has been the victim of human trafficking. Permission to rent will not be denied to such persons.
In answer to another point made by the noble Lord, Lord Deben, the landlords’ survey included a broad range of landlords with different sizes of properties and portfolios. Focus groups also included small-scale, informal landlords, including those renting a single room. I was asked about fees. The report noted:
“However amongst the focus groups with informal tenants it was suggested that the charging of fees by some agents was common practice. This was not due to the Right to Rent scheme, but had been a long-standing practice—especially in areas where demand exceeds supply”.
I think that I have covered the points about homelessness and students. I say to the noble Baroness, Lady Sheehan, that we have worked with Crisis and Shelter in developing the list of acceptable documents for the right-to-rent checks.
Baroness Sheehan
I want to put more about the evaluation on record. We have heard a lot from the noble Lord, Lord Best, about his experience on the evaluation committee, but Crisis was also a member of that Home Office panel, and its assessment is very different. It is very concerned that,
“the harsh penalties for landlords who fail to evict tenants who don’t have the correct immigration status will compound the effect of the previous Immigration Act and make landlords much more ‘risk averse’ and less likely to rent to people who may not have easily recognisable documentation such as homeless people, as well as leading to increased discrimination against foreign nationals and people of black and minority ethnic backgrounds”.
I also had a meeting with the Residential Landlords Association, which said that its fears had been allayed. It was really quite concerned about its members who rented to students and that large student accommodation would be exempt. So while I know that landlords’ concerns have mostly been put to rest, let us please not forget the concerns of people who are dealing with the more vulnerable groups, such as the homeless and the not so well-off immigrants.
Lord Bates
That is an important point. Students are of course exempt because their right to be in the UK will have been checked by their university in granting them accommodation. The fact that they are exempt is because those checks are happening, and the social sector is exempt because the checks are happening there. All we want is for those checks to happen in the private sector as well.
Lord Kennedy of Southwark
Can the Minister say a bit more about who is doing the evaluations? The points that the noble Baroness, Lady Sheehan, and the noble Lord, Lord Best, have made clearly could not be further apart.
Lord Bates
In that respect I might suggest that the partial solution which we came across for our last debate, which was on overseas domestic workers, was to look at organising a meeting in between Committee and Report. However, it would probably be more useful for the House to have the noble Lord, Lord Best, at such a meeting if he were willing to meet with colleagues on that basis. We would certainly be happy to facilitate one to explain more about the process, but we have tried to be as transparent as possible about this. It has been a long trial and there has been a thorough evaluation. It will also continue to be under review because this is not the completion of the process; we are simply talking about moving to the next stage of rollout, which is to England. There will be further opportunities for evaluation thereafter. I hope that, with those suggestions, I might have prevailed upon the noble Baroness to withdraw her amendment at this stage.
Baroness Hamwee
My Lords, I will want to go back and read what the Minister had to say about protected characteristics, so I will not spend time on that. I am not surprised that he does not agree with my Amendment 159—that is self-evident.
I would not for a moment accuse the Government of not being transparent on this. It is no secret at all that his party, in the last Government, did not want to have a pilot but to roll the scheme out right across the country immediately. We have information which has been the basis of the argument against rolling it out further. The points made by the noble Lord, Lord Deben, are unanswerable.
Lord Howard of Rising
“( ) The landlord does not commit an offence under subsection (1) if the landlord—
(a) has taken reasonable steps to verify the identity and immigration status of the person or people with whom the landlord has concluded the residential tenancy agreement; and(b) has no reasonable cause to believe that any other person who meets the first and second conditions is residing at the property.”
Lord Howard of Rising (Con)
My Lords, I will also speak to Amendments 150 and 150A. I declare an interest as the owner of properties which are let to long-term tenants.
I find it a bit rich that landlords should risk imprisonment for housing an illegal immigrant when it is the Government’s failure in their duty to protect the borders of this country that has resulted in the illegal immigrant being here in the first place. I fully understand the difficulties in controlling our borders, which will inevitably lead to errors, but should the person responsible for the error go to prison? If those responsible for allowing illegal immigration should not go to jail, why should a landlord? I am afraid that I do not share the optimism of the noble Lord, Lord Best, that the power will not be abused at some stage.
New Section 33A says that if any illegal immigrant resides in a property, it will be a criminal offence by the landlord regardless of whether or not that individual was the person to whom the premises were let. Amendment 148A seeks to restrict the criminal offence to those checks which would be reasonable for a landlord to carry out and which are set out in the Landlords’ Guide to Checking Immigration Documents, issued by the Home Office. I can understand that landlords should check the person taking the property, but can the Minister say how in practical terms it is possible for a landlord to check on each person residing in the property once it has been let? Is the landlord supposed to keep a permanent watch? What about the case where a house with a number of bedrooms has a drive and trees and is thus concealed from view?
Can the Minister suggest what reasonable steps could be taken to ensure that the person who has legally rented the premises is not allowing illegal immigrants to stay in the house? Any person renting a house legally who then wishes to house illegal immigrants is hardly likely to announce their intention when taking the property. It will be totally impractical for any landlord to monitor the ongoing use of the property and whether the person renting it has illegal immigrants to stay.
Proposed new Section 33A(7) states that a post-grant contravention is an offence. Essentially, this says that if a person becomes disqualified it is an offence for that person to continue to occupy the premises. How is the landlord expected to know if a person has become disqualified? Will the authorities notify the landlord?
Amendment 150A is to avoid Clause 13 from being retrospective. The draft right-to-rent code of practice issued by the Home Office clearly states at paragraph 3.2:
“The Scheme applies only to residential tenancy agreements first entered into on or after the date on which the Scheme is implemented in the area where the property is located.
A landlord is not required to take any action in relation to residential tenancy agreements entered into before that date, or which are renewed after that date if the renewed agreement will be between the same parties and there has been no break in the tenant’s right to occupy the premises”.
Amendment 150A would bring the Bill into line with the guidance being issued by the Home Office and avoid the unfairness of retrospective legislation.
The issue of discrimination has been mentioned this evening, and I come back to it only in relation to Amendment 148A. It is touched on in the draft right-to-rent code of practice, where it states:
“Whether or not a person … has permission to stay in the UK and has a right to rent is a matter of fact that can be verified. Only the listed documents should be used to reach a decision on whether the person has a right to rent”.
How does this apply to persons who might come to stay at the property unbeknown to the landlord? If my amendment is not included, to prevent a landlord being guilty of a criminal offence without being aware of it, the Bill will create the bias towards discrimination that has been talked about this evening.
The checking service is a method of confirming whether documents are correct—again, this has come up this evening. Can the Minister indicate the likely response time for the service and whether there will be charges for those using it, as the noble Lord, Lord Best, asked?
If it was simple for landlords to do what is being asked, why are the authorities not already monitoring illegal immigrants more effectively? It is not unreasonable for landlords to play their part in helping with the problem of illegal immigration, but what they are asked to do should be reasonable and proportionate. Landlords being subject to imprisonment for something over which, in practical terms, they can have little or no control is not reasonable. I point out that the people most affected by this will be that huge army of very small landlords who do not have agents to act for them, and who will be unable to follow what is happening to a property that they have rented out which may be in a completely different part of the country. I beg to move.
Earl Cathcart
My Lords, before I speak to my Amendment 150, supported by my noble friend Lord Howard, I would like to support his two amendments. The first is Amendment 148A. As drafted, the Bill has no defence for a landlord who has done their best to check the immigration status of a tenant, or for a landlord who is caught out by an unscrupulous tenant. They are merely reliant on the Home Office not prosecuting them in such circumstances. They will still have committed the offence, which will put them in breach of many mortgage companies’ conditions. I therefore support the amendment, as it will provide greater protection for landlords who are deemed to have committed a criminal offence even if they have done all that they can to confirm the status of the tenant.
My noble friend’s Amendment 150A is important because the Government have not yet been clear on whether the right-to-rent checks apply to existing tenancies. Checks part-way through or on renewal of a tenancy will leave landlords and agents with tenants who may then be deported; this will probably lead to a large number of random reports if tenants ignore correspondence or decline to provide documents. I support this amendment, as it provides clarity about when landlords will be expected to undertake the checks.
Amendment 150 in my name is supported by my noble friend Lord Howard and reads:
“A person does not commit an offence under subsection (1) or (7) where they are proceeding diligently to evict an adult who is disqualified as a result of their immigration status from occupying the property of which that person is a landlord”.
As we have already heard, Clauses 13 to 15 make it an offence for a landlord to fail to check the immigration status of tenants who are subsequently found to be in the country illegally. In such circumstances, landlords face being fined up to £3,000 or imprisoned for up to five years. This builds on the Immigration Act 2014, which requires landlords to check the immigration status of their tenants; the 2014 Act contained only the threat of civil penalties for landlords, and it is the Government’s plan for the checks to be rolled out across the country from February this year. That was debated at length under the previous grouping.
As the Bill is drafted, when a landlord is notified by the Secretary of State that a sitting tenant does not have the right to rent in the UK, that landlord is deemed to have committed a criminal offence even before the 28 days that the Bill allows a landlord to evict such tenants have ended. It could well be that this was the result of a landlord being caught out by forged documents that they could not possibly have been expected to detect. It could well be that those same forged documents enabled the illegal immigrant to get into the country in the first place, as my noble friend said, but I do not believe that the immigration officers who allowed the immigrant into the country are deemed to have committed a criminal offence or are fined £3,000 or imprisoned for up to five years—so why the landlord? As a landlord, I do not see how I can possibly spot a forged document if immigration officers cannot, with all their sophisticated equipment.
Lord Green of Deddington (CB)
Is the noble Earl aware that most illegal immigrants in Britain came legally and therefore that there is no reason why they should have been detected on arrival? They came legally and have overstayed.
Earl Cathcart
No, I am not aware of that.
I understand that previously the Government have said that they want common sense to prevail. However, landlords, fearful of the potential consequences of getting something wrong, need further assurances. A simple amendment to the Bill can rectify this and make it clear that landlords will not commit a criminal offence where they have done everything possible to verify the status of the tenant and are in the process of evicting a tenant whom they have been notified does not have the right to rent within the 28-day window that the Bill permits.
It is important to note that while a prosecution might not be taken out against a landlord seeking to evict a tenant without the right to rent, simply deeming him to have committed a criminal offence can cause extensive difficulties, especially with mortgage lenders and insurers. The fact that no prosecution has been taken does not mean that the landlord has not committed an offence. Most contracts relating to property contain a prohibition on using the property unlawfully.
While an amendment would be the clearest way of addressing this issue, in addition, clear guidance should be issued by the Director of Public Prosecutions outlining: first, that prosecutions will not take place where a landlord who has been informed that their tenant does not have the right to rent has done everything possible to check the status of that tenant and is within the 28-day eviction period; secondly, that landlords will not be prosecuted where they have fallen victim to forged documents from a prospective tenant that they could not reasonably have been expected to recognise as false; thirdly, that landlords will not be prosecuted where they were unable to receive a letter from the Secretary of State notifying them that the tenant did not have a right to rent due to hospitalisation or other reasonable measure that might prevent them reading and acting on a notice; and fourthly, how he intends to proceed with the Government’s commitment that landlords will not be prosecuted for a first offence.
This amendment is supported by the Residential Landlords Association, which looks after the interests of more than 40,000 landlords, and by the Association of Residential Letting Agents. Its managing director, David Cox, commented:
“It would be unjust and inequitable for a landlord to be in breach of the law through no fault of their own, irrespective of whether the Government has outlined it will not prosecute in such circumstances. Being in breach of legislation will cause landlords great concern, and therefore, we request these technical amendments be incorporated into the Bill to ensure the spirit of the legislation is reflected in the wording of the Bill”.
I could not have put it better myself.
Baroness Hamwee
My Lords, I am conscious of the time, but we need to spend just a few more minutes on this. I shall not take too long. Noble Lords who have spoken have identified very serious drawbacks in the legislation, even if one ignores the thrust of these provisions, as I do not wish to do. If they are to be implemented in the way in which the Government wish, the points that have been made are very well made, and I am sorry that we kept the two noble Lords so late in order for them to be able to make them.
I have my name to a number of amendments in the names of the noble Lords, Lord Rosser and Lord Kennedy. I think the noble Lord, Lord Kennedy, is about to speak to them.
On Amendment 152, I want to make a point that once again has come from Crisis, which says that there are a number of situations where a claim for asylum fails but the person is unable to return to his country because there is no stable state to return to, or it is unclear where they should return to—we are familiar with these problems, of course. It says that at the very least the Home Office should clarify these people’s status with regard to the new eviction process.
Lord Kennedy of Southwark
My Lords, this group of amendments contains some very sensible protections for landlords, who could find themselves in difficulties and at risk of prosecution and a fine, imprisonment or both, although they have taken all reasonable precautions and have no intention of breaking the law. Landlords, as has been said before, are not immigration officers. One of the concerns about this section of the Bill is that people will take reasonable precautions but will still find themselves in difficulties and possibly at risk of prosecution.
The amendment in the name of the noble Lord, Lord Howard of Rising, is both simple and effective, and he has made a compelling case here today: the landlord would not commit an offence if they had taken reasonable steps and there was no reasonable cause not to believe that other persons who met the first and second conditions were residing at the property.
Amendment 149 seeks to afford landlords protection when they are prohibited from evicting a tenant under new Section 33D(4), and Amendment 150, in the name of the noble Earl, Lord Cathcart, would protect landlords who were acting diligently to evict people who were disqualified as a result of their immigration status. Again, the noble Earl has made a compelling case as to why the amendment should be supported.
I have no issue with Amendment 153 in the name of the noble Lord, Lord Bates. The remaining amendments are in the names of my noble friend Lord Prosser, myself and the noble Baroness, Lady Hamwee. These important amendments would ensure that individuals and families could be evicted only following due legal process, by removing from the Bill the provisions to grant new and extensive powers to landlords outside the oversight of the courts. I say to the Minister that the Government really are creating a very difficult situation here. This whole part of the Bill puts significant pressure on landlords, with tough penalties and little protection, along with extensive new powers with no oversight by the courts.
There is a real risk here, as has been said by other noble Lords, that landlords will just not rent the property to anyone who looks as though they might be more of a risk, and great injustices could take place. To make it worse, the courts are to be excluded from the process of evicting people if they are resident in a property. This is not right, and the Government are going to have to make some movement on these matters again. I hope the Minister will agree to meet Peers who are interested in these matters and campaigners before we come back on Report.
Lord Bates
My Lords, I shall speak to Amendment 153 in my name and respond to the amendments spoken to by noble Lords. Government Amendment 153 provides powers for the Secretary of State to prescribe the form of the notice that the landlord must serve in relation to the eviction powers in new Section 33D, and the manner in which it is served. This amendment provides clarity and consistency to landlords, tenants and High Court enforcement officers about the circumstances in which High Court enforcement officers will be permitted to enforce a notice. The Secretary of State may prescribe the form or forms to be used by order, subject to the negative procedure.
I understand the concern that has been expressed thoughtfully and passionately, particularly by my noble friends Lord Howard of Rising and Lord Cathcart, that reputable landlords who have made a mistake or been deceived would be committing an offence immediately when they receive a notice from the Home Office that a tenant is disqualified from renting. However, I reassure them that the focus of these measures is on the minority of rogue landlords who deliberately flout the law. They are the intended target of the legislation, as the noble Lord, Lord Best, said in his excellent summary on the previous amendment. They are not intended to be used against reputable landlords who may have made a genuine mistake. In fact, if we look at the Bill in its present form, new Section 33A(3) says that the condition for an offence to be committed,
“is that the landlord knows or has reasonable cause to believe that the premises are occupied by an adult who is disqualified as a result of their immigration status”.
That threshold of proof, “knows or has reasonable cause to believe”, is very high.
The offences in the Bill are to do with landlords and agents knowingly renting to illegal migrants or doing so when they have reasonable cause to believe that they are doing so. They are not strictly about a failure to evict. While a desire to safeguard the position of responsible landlords is understandable, it would not be right to afford a grace period of 28 days to the worst offenders, such as the one that would result from Amendment 149. Such landlords deliberately rent to and may also exploit illegal migrants. Likewise, it would be difficult to be certain in any particular case what would constitute “proceeding diligently” for the purposes of Amendment 150. I am concerned that this would also provide rogue landlords with a way to avoid prosecution.
Amendment 148A is unnecessary because, under the right-to-rent scheme introduced by the Immigration Act 2014, the landlord should perform document checks to a reasonable standard. Should they do so, they will not be liable to a civil penalty, nor will they be subject to prosecution under this legislation unless they are explicitly notified or become aware when they undertake subsequent checks that an occupant is an illegal migrant.
Lord Kennedy of Southwark
Nobody here wants to protect the rogue landlords—all these amendments are about protecting the good landlords and they relate to genuine concerns about that. It would not be the first time that mistakes were made; people get things wrong, officials get things wrong. We are trying to ensure that we protect the good landlords, not the rogue ones.
Lord Bates
I accept that, and the noble Lord is making a genuine point. Certainly that is the intent, as we have said, behind the legislation. If evidence comes to light during the passage of this legislation through this House that that may not be the case, clearly the Government will want to take note of that, because it is explicitly not the intent to catch the vast majority of genuine landlords. There are a small number of rogue landlords.
Earl Cathcart
I am sorry to interrupt again. I understand the issue about rogue landlords, and of course one wants to catch them and not the good landlords. Will the Minister say whether he will consider my idea of clear guidance from the Director of Public Prosecutions? To that effect, I listed four things that he might consider.
Lord Bates
The Home Office will investigate this and present cases to the Crown Prosecution Service for a decision about whether to prosecute, and resources will be targeted at the most serious offenders. The intention behind the measures, which is that they should be used only against those landlords who deliberately and consistently flout the law, has been stated unequivocally by Ministers during the passage of the Bill. However, I give an undertaking that I will be very happy to meet my noble friend, officials and other interested Peers to discuss whether there are gaps or particular remedies as regards guidance that could be brought forward.
Lord Howard of Rising
I very much welcome the chance to meet my noble friend to discuss this. I point out, with regard to the guidance—the Explanatory Notes—my noble friend keeps talking about landlords doing the checks, but it specifically says in the guidance to the Bill that it,
“applies where any adult is occupying the premises, regardless of whether the adult is a tenant under or is named in the agreement”.
We are not saying that there is a problem where people have been able to do checks, but that where somebody comes in, the guidance specifically says that those people have to be monitored—and I do not know how my noble friend expects landlords to monitor them. We are not a police force. That is a really important point. The other thing is that whatever anybody says—the noble Lord or my noble friend Lord Best—I cannot think of any legislation that is not abused sooner or later by somebody.
Lord Bates
We need to avoid creating an unintentional loophole that effectively says, “We’ll ask no questions and we won’t contravene the proposals in this legislation”. That cannot be right. I would imagine that most landlords would want to know who was occupying their property. In the event that a property is the subject of subletting agreement, at that point there would of course be a liability to carry out the background checks, which would fall to the people who have made the decision to sublet. However, making a general exemption in those circumstances could create an unwelcome loophole.
Lord Howard of Rising
I thank the noble Lord for his comments and for agreeing to a meeting; that is very gracious of him, and I look forward to that. Depending on it, I may wish to return to this subject, but in the mean time I beg leave to withdraw the amendment.
Lord Bates
Baroness Hamwee
Baroness Hamwee
I will move Amendment 158 very briefly. This amendment came about as a result of the report of the Delegated Powers and Regulatory Reform Committee. I will not explain the detail of the clause because I am aware that the Minister intends to make a full response to the DPRR report—as I understand it, before Report. I am moving this amendment in order to ask that we get that response in reasonable time just in case we do not agree with what the Government have to say. If that is the case, we may want to use Report stage as the last opportunity to put down an amendment similar to this one. I beg to move.
Lord Bates
My Lords, Clause 16 gives the Secretary of State the power to make such regulations as are appropriate to extend the residential tenancies provisions, as set out in the Immigration Act 2014, to Wales, Scotland and Northern Ireland. It is entirely right that there is provision to make such an extension throughout the United Kingdom as the residential tenancy provisions in this Bill are for the purposes of immigration control, which is a matter reserved to the UK Government.
Amendment 158 seeks to remove the provision for regulations under Clause 16 to confer functions on any person. In order to make appropriate provision that applies in Wales, Scotland and Northern Ireland, it may be necessary to confer functions on a person—for example, the Secretary of State for the Home Department or an immigration officer—under those regulations. The provision in the Bill is helpful as it makes it clear what can be done under these regulations. Removing the provision would serve no useful purpose and would lead to an unhelpful lack of clarity.
I note that the Delegated Powers and Regulatory Reform Committee’s 17th report of Session 2015-16 has drawn attention to some aspects of the Bill but not to this specific provision. As the noble Baroness has asked us to do, we will certainly provide a full response to the committee’s report and also, of course, make sure that Members of your Lordships’ House have a copy of the response before Report. I therefore ask the noble Baroness to consider withdrawing the amendment but to note the further consideration being given by the Government to the points raised by the Delegated Powers and Regulatory Reform Committee.