House of Commons

Tuesday 22nd January 2019 Commons Chamber

Tuesday 22 January 2019

The House met at half-past Eleven o’clock

Prayers

Tuesday 22nd January 2019 Commons Chamber

[Mr Speaker in the Chair]

Oral Answers to Questions

Tuesday 22nd January 2019 Commons Chamber

The Secretary of State was asked—

[Stephen Timms (East Ham) (Lab)]

1. What recent assessment he has made of the safety and security of human rights defenders throughout the world.

[Lilian Greenwood (Nottingham South) (Lab)]

21. What steps his Department is taking to promote and support human rights internationally.

[The Minister for Asia and the Pacific (Mark Field)]

The UK is committed to the promotion and protection of human rights worldwide and supports the work of the United Nations Human Rights Council in Geneva, the High Commission for Human Rights and the Office of the United Nations High Commissioner for Human Rights. The UK is one of the longest-standing members of the Human Rights Council, as the right hon. Gentleman will be aware. Regrettably, human rights defenders face unprecedented attack in many parts of the world. In 2018 alone, more than 300 such defenders were killed, and thousands more were imprisoned, attacked or tortured around the world.

[Stephen Timms]

I am grateful to the Minister for that answer. There has been a surge of attacks against and repression of human rights defenders around the world. In Saudi Arabia, for example, women’s rights activists, including Samar Badawi, have been detained since last May, and there have been reports that some have been tortured. I welcome Lord Ahmad’s announcement last month that the Department will publish the guidelines for embassies about support for human rights defenders, to aid clarity and consistency. When does the Minister envisage that publication taking place?

[Mark Field]

I do not want to put my ministerial colleague under undue pressure, but this is clearly something that we consider a major priority. Obviously, as Ministers we raise human rights issues with all our overseas counterparts, in both public and private forums. In December, as part of the UK’s commitment to freedom of religious belief, my right hon. Friend the Foreign Secretary, who is sitting to my right, announced an independent global review of the persecution of Christians, which will contain recommendations on practical steps in respect of that persecution. Of course, that applies to religious beliefs of all sorts.

[Lilian Greenwood]

An estimated 1 million Uighur Muslims are being held in detention camps in Xinjiang by the Chinese Government. In the very week that we commit to relearning the lessons of the holocaust, does the Minister share my concern that such human rights abuses and persecution cannot go unchallenged? It is quite disgraceful conduct from a permanent member of the Security Council. What is the Minister doing to protest to the Chinese Government about these issues?

[Mark Field]

May I address this issue up front? I suspect that many Members from all parties have grave concerns about it. We are concerned about what is happening in Xinjiang province, including the detention of, as the hon. Lady says, more than 1 million people without trial in political re-education camps. Not only did British diplomats on the ground visit Xinjiang in December 2018 but we are raising and will continue to raise this issue bilaterally with the Chinese. My right hon. Friend the Foreign Secretary did so most recently in Beijing in the autumn.

[Mr Philip Hollobone (Kettering) (Con)]

Human rights defenders face particular challenges in the Gaza strip, which is controlled by Hamas. Journalists are oppressed, demonstrations are violently put down and public executions take place. What are we doing to support human rights defenders in the Gaza strip?

[Mark Field]

I reassure my hon. Friend that Ministers, particularly my right hon. Friend the Minister for the Middle East, do make clear our concerns about the rights of human rights defenders and the importance of their work in every part of the world.

[Nick Herbert (Arundel and South Downs) (Con)]

Brave human rights defenders are alerting us to a terrible new wave of persecution of lesbian, gay, bisexual, transgender and intersex people in Chechnya. What steps will the Government take to remind the Russian authorities of their responsibilities, including publishing an independent inquiry into this issue? They are signatories to the European convention on human rights and these abuses cannot be allowed to continue.

[Mark Field]

My right hon. Friend is absolutely right. We are and remain deeply concerned by the recent reports of the renewed wave of persecution of LGBT folk in Chechnya. Both the Foreign Secretary and my right hon. Friend the Minister for Europe and the Americas have in the past week made it clear to their Russian counterparts that we must stop such persecution and hold those responsible to account.

[Patrick Grady (Glasgow North) (SNP)]

What discussions about the human rights situation have Ministers had with the Government of Colombia, either directly or through the embassies, following the bombing of the police academy in that country?

[Mark Field]

There are obviously great concerns. As the hon. Gentleman is aware, a number of cadets were killed taking important action as human rights defenders. My right hon. Friend the Minister for Europe and the Americas has raised this issue at a bilateral level, and we will monitor the situation carefully.

[Sir Desmond Swayne (New Forest West) (Con)]

Will the report to which my right hon. Friend has referred focus on the plight of Christian Churches in China?

[Mark Field]

It will indeed. I know that my hon. Friend the Member for Congleton (Fiona Bruce) speaks avidly, repeatedly, and, if I may say, persistently on this matter—and indeed extremely effectively. My right hon. Friend can be assured that we will address that along with other issues about Christian persecution across the world.

[Liz McInnes (Heywood and Middleton) (Lab)]

One of the most chilling aspects of the violence in Zimbabwe in recent days was the statement of the President’s spokesman that this was

“just a foretaste of things to come”.

In the light of that, does the Minister agree that it is time for the UN to revive the Security Council resolution on Zimbabwe that it failed to pass in 2008, and will the UK seek to initiate that discussion?

[Mark Field]

I thank the hon. Lady for her question. This is deeply disappointing to all of us in this House. We all celebrated the demise of the Mugabe regime, feeling and hoping that a new chapter of Zimbabwe history was commencing. We are very concerned about the disproportionate response of the security forces to the recent protests. May I reassure the House that my hon. Friend the Minister for Africa summoned Zimbabwe’s ambassador on 17 January to urge the Government there to show restraint and fully investigate any cases of alleged human rights abuses? Obviously, we will take this up in multilateral forums such as the UN. I do not want to make a firm commitment to what the hon. Lady has said, but she will know that, in this fluid situation, we will keep all our options open.

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

2. What recent discussions he has had with his Iraqi counterpart.

[The Minister for the Middle East (Alistair Burt)]

I spoke to Foreign Minister Alhakim on the telephone on 14 November. I saw him in Rome with President Barham Salih at the end of November, and the noble Lord Ahmad spoke to him in December.

[Martin Docherty-Hughes]

I thank the Minister for his response. Ben Taub reminded us recently in The New Yorker that the murder and rape of women and the brutalisation of children in Iraqi detention camps do not bode well for peace and security. Does the Minister agree that when he next meets his counterparts he should remind the Iraqi state that it should be building peace and reconciliation rather than creating breeding grounds for a new Daesh insurgency?

[Alistair Burt]

That is absolutely right. The future of Iraq, which has real possibilities now following the elections some months ago, has to be built not only on the understanding that all communities in Iraq need a share in government and in the development of the country but on human rights, which can be exploited if they are abused. That forms a fundamental part of the future of Iraq. These issues are indeed raised.

[Alex Chalk (Cheltenham) (Con)]

A successful economy is vital to secure Iraq’s long-term future and the wellbeing of its people, who have suffered so much. What steps are being taken to ensure that British companies can participate in building that better future?

[Alistair Burt]

We have an active and thriving Iraq-UK business council. Baroness Nicholson has been involved for many years in efforts in this area, particularly in the south of the country in Basra. The contracts and opportunities for the rebuilding and the reconstruction of Iraq will be much helped by the international community’s determination to support Iraq and Iraq’s own use of its oil revenues. British companies should be well placed because of their history and expertise.

[Catherine West (Hornsey and Wood Green) (Lab)]

What dialogue has the Minister had with the Government of Iraq on the rights of Kurdish Iraqis and Kurds across the region?

[Alistair Burt]

The Kurdish community is represented through the Kurdish Regional Government, and we keep in regular contact with them. Relationships between Baghdad and Irbil are vital for ensuring that the Kurdish community feels a full part of a united Iraq. Those relations, I think, have been strengthened since the election of President Barham Salih, but the Kurdish people’s future in a united Iraq is fundamental to the future and progress of a united Iraq.

[Mr Khalid Mahmood (Birmingham, Perry Barr) (Lab)]

The Government are supposed to provide the House with an update on the campaign against Daesh every quarter. The last I checked, the duration of a quarter is 92 days, but the most recent Daesh statement was more than 200 days ago, so when will we get the next update, or has the policy changed?

[Alistair Burt]

No, the policy has not changed. The short answer is soon, of course.

[Marsha De Cordova (Battersea) (Lab)]

Soon?

[Alistair Burt]

Yes, soon. It seems the best possible word to use. The definition of quarter has obviously stretched a little bit too far, but it is important both to keep up the relationship with the House on this and to confirm progress in relation to Daesh across Syria and Iraq, which continues to be vital.

[Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)]

3. What assessment his Department has made of the effect on diplomatic co-operation between the UK and the EU of the UK leaving the EU on 29 March 2019.

[The Secretary of State for Foreign and Commonwealth Affairs (Mr Jeremy Hunt)]

Diplomatic co-operation with our partners in the EU over a wide range of areas is excellent, and will continue to be so post Brexit.

[Drew Hendry]

The Secretary of State says that, but the effects of a lack of co-operation are being felt directly in my constituency. A major European car manufacturer was due to invite 40 international journalists per day to a new Inverness hotel. Now the owner, Tony Storey, tells me that that has been cancelled, costing him £400,000 and priceless exposure for the highlands. What does the Secretary of State say to business owners like Tony and others who are being affected by this Brexit shambles?

[Mr Hunt]

If SNP Members want to resolve the uncertainty, it is very simple—vote for the deal that the Prime Minister has negotiated.

[Greg Hands (Chelsea and Fulham) (Con)]

It is possible to welcome yesterday’s announcement of the waiving of the settled status fee, which has gone down very well with EU nationals across the UK, including in Chelsea and Fulham, where I have 11,000 EU nationals. Could my right hon. Friend say something about improving and boosting our efforts in Germany? We currently have only three diplomatic missions in Germany. France has seven; Italy has 11. Our future relationship with Germany will be crucial. We have no representation. We have a very good honorary consul in Frankfurt, but it seems that for the European Central Bank, we need more representation in Frankfurt and Hamburg in particular.

[Mr Hunt]

I defer to my right hon. Friend’s knowledge of Germany, which is second to none. I would like to reassure him that over the past three years we have had, on average, about one Government Minister visiting Germany every single week, so we do give it the highest priority in our foreign relations, and will continue to do so post Brexit. However, I will look into the issue of consulates that my right hon. Friend raises.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

Surely the Foreign Secretary has picked up the fact that morale in the diplomatic corps across Europe is at rock bottom. What will he do to lift the spirits of a corps of professional diplomats who are so disturbed by the lack of leadership from this Government on Europe?

[Mr Hunt]

Of course I recognise that we would all like to resolve the uncertainty around Brexit as soon as possible, but we have significantly expanded the diplomatic corps in Europe. Our representation in Brussels—the UKRep office—has gone up from 120 to 150 and will go up to 180 people; we have upgraded our representation across every EU state to senior ambassadorial level; and we are investing, because it matters.

[Bim Afolami (Hitchin and Harpenden) (Con)]

Recently, the former US Secretary of State, John Kerry, remarked on the fact that the British Government are working closely with other European Governments on the Iran nuclear deal. Could the Foreign Secretary give the House further detail on how that will continue after we leave the European Union on 29 March?

[Mr Hunt]

Absolutely. We have an independent foreign policy now and we will continue, obviously, to have that post Brexit. The Iran nuclear deal was negotiated with the United States and European countries, and has been successful in preventing Iran developing a nuclear programme. It is not perfect, but it has worked, and that is why we continue to support it and work closely with our partners to do so.

[Stephen Gethins (North East Fife) (SNP)]

I am sure all Members will want to join me in congratulating the Dáil in Ireland, which yesterday marked the centenary of its first international address and its message to free nations. Ireland, like every other EU member state, sees the EU as a way of strengthening its independence and sovereignty and increasing its diplomatic clout. Shinzo Abe has called on us to take no deal off the table. The Secretary of State knows the deal will not go through. Can he at least take no deal off the table? No deal would undermine our diplomatic clout.

[Mr Hunt]

The best way to avoid no deal is to find a deal that can pass through this House. If you take no deal off the table, you remove any incentive for the EU to help us do that, which is why it would be a big mistake and actually make no deal more likely.

[Stephen Gethins]

The Foreign Secretary is wrong. If we take no deal off the table, we can talk in a meaningful way with each other and with our European partners.

On 17 January I received a written answer from the Minister for Europe and the Americas, saying that we have 550 officials working on Brexit—hundreds of officials, working on a worse deal for the UK. At a time when the FCO and the public services are struggling for resources, is that not a waste of time, a waste of finances and a waste of the good will that we desperately need at this time in terms of our diplomacy?

[Mr Hunt]

What makes no deal more likely is if parties like the hon. Gentleman’s continue to vote against sensible proposals that this Government bring to the House of Commons. Any Government have to be responsible and prepare for all eventualities, but the best way to make sure that we do not have that eventuality is to do the preparation.

[Emily Thornberry (Islington South and Finsbury) (Lab)]

May I take the Foreign Secretary back to our last debate on Brexit? He gave me an answer that was not exactly convincing, so I thought I would give him another chance. [Interruption.] I am nothing but kindness—it is my new year’s resolution. Four days after the referendum, he said that

“we need to negotiate a deal and put it to the British people, either in a referendum or through the Conservative manifesto at a fresh general election…we will trust the British people to decide on whether or not it is a good deal”.

So can I ask him again why he no longer believes in trusting the British people to decide whether they want the Prime Minister’s deal?

[Mr Hunt]

I do. We have had a general election and over 80% of voters supported parties that wanted to leave the EU and end free movement. I will happily take criticisms of our Brexit policy on the chin the moment Labour actually has the courage to have its own Brexit policy in the first place. This morning, the shadow Business Secretary, on the “Today” programme, could not even say whether Labour supported a second referendum or not. That is not policy—it is politics. I simply say to the right hon. Lady that to play politics with Brexit in a hung Parliament is a total betrayal of ordinary voters.

[Emily Thornberry]

Well, that is not a very convincing answer, is it? It is the same sort of unconvincing answer that we got last time. We always know when Government Ministers are getting a bit desperate when they decide that they need to ask the Opposition what their policy is instead.

The Foreign Secretary said in the very first paragraph of the article that I am quoting that

“we did not vote on the terms of our departure.”

So his entire argument was that we should trust the people to decide the terms on which we would leave. But let me also remind him that in the same article he warned of the danger that

“we could be thrown out with no deal at all.”

So even if he no longer believes that the public should have a say on the final terms of a deal, does he still at least believe that they should have a say if we are risking leaving with no deal at all?

[Mr Hunt]

If the right hon. Lady is worried about no deal, there is a very easy way to stop it, and that is to talk to the Prime Minister. The Leader of the Opposition talks without preconditions to Hamas, Hezbollah and the IRA, but not to the British Prime Minister. The reason is that Labour’s objective is not to have a deal but to have a crisis—and what a betrayal of ordinary families that is.

[Ronnie Cowan (Inverclyde) (SNP)]

4. What recent assessment he has made of the political situation in Catalonia.

[The Minister for Europe and the Americas (Sir Alan Duncan)]

As I have made clear to the House previously, the situation in Catalonia is a matter for Spain. The UK strongly supports the rule of law and is of the view that questions related to the issue of Catalan independence should be resolved within the proper constitutional and legal channels of Spain.

[Ronnie Cowan]

Carme Forcadell was the presiding officer in the Catalan Parliament—a position we would call “the Speaker”. Carme has been in prison without trial for over nine months because she facilitated a debate in a debating chamber. When she is tried, she faces over 16 years in prison. When will the UK Government condemn this outrage and stand up for the process of democracy?

[Sir Alan Duncan]

This is a matter for the Spanish courts. Every democracy has its own rules, laws and procedures. We fully support the proper implementation of the rule of law in Spain, and it is not for us to interfere in the way that the hon. Gentleman suggests.

[Mr Gregory Campbell (East Londonderry) (DUP)]

In any discussions that the Government might have with the Spanish Government, and indeed Governments across the EU, would the Minister be assured that each of those Governments are respectful of the national economic and political integrity of sovereign states across Europe?

[Sir Alan Duncan]

I share the hon. Gentleman’s view and am very grateful to him for expressing it so clearly, so cogently and so sensibly.

[Mr Speaker]

I just very gently say to the hon. Member for Inverclyde (Ronnie Cowan): do not give the Government any ideas.

[Mr Adrian Bailey (West Bromwich West) (Lab/Co-op)]

5. What diplomatic steps the Government are taking to help ensure the safety of the Hazara community in Afghanistan.

[Jessica Morden (Newport East) (Lab)]

18. What recent assessment he has made of the political and security situation in Afghanistan.

[The Minister for Asia and the Pacific (Mark Field)]

The UK remains committed to ensuring that the Afghan national defence and security forces improve their capability to protect all ethnic and religious groups in Afghanistan. British embassy officials regularly meet Hazara representatives to hear their specific concerns at first hand. As the hon. Gentleman will be aware, there have been positive recent developments in Afghanistan’s political and security situation, but the ongoing conflict means that significant challenges remain.

[Mr Bailey]

I thank the Minister for his reply. The Hazara community in Afghanistan is increasingly being targeted by not only the Taliban in Afghanistan, but Daesh infiltrating from Pakistan. What steps are the Government taking to talk to the Governments of both Pakistan and Afghanistan about stopping at source the violent approach from ISIS and other military groups?

[Mark Field]

I very much accept what the hon. Gentleman says. We work closely with our counterparts in both Afghanistan and Pakistan. Peace efforts must focus on supporting attempts to start a credible process. To that end, we will work closely with partners—in particular, US Special Representative Khalilzad—to ensure that international forces that are a factor in the conflict properly address the issue.

[Jessica Morden]

In view of the ongoing security situation, will Ministers do more with Defence and Home Office Ministers to ensure that Afghan interpreters who came here alone under the redundancy scheme can be reunited here with their wives and families, as they clearly face great danger in Afghanistan?

[Mark Field]

I thank the hon. Lady for her question. She is right; local staff, including interpreters, continue to play a vital role in supporting the objectives of the UK and our partners in Afghanistan. As well as paying generous redundancy packages in recognition of service, we will do our level best for those who have made such sacrifices on our behalf, and I will write to my counterparts in the Home Office and the Ministry of Defence to ensure that we do so.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

I pay tribute to the work of the Foreign Office in Pakistan and particularly our high commissioner, Tom Drew. Will the Foreign Secretary lend all his support to the work that Tom is doing alongside Khalilzad on peace negotiations in Afghanistan, particularly to protect the Hazara population but also to stop foreign actors playing silly and dangerous games in Afghanistan, which we have seen for far too long?

[Mark Field]

I thank my hon. Friend for his wise words. He knows this issue well. We are lucky to have such a high-calibre high commissioner in Pakistan in Tom Drew, who is coming to the end of his time there, and in Sir Nicholas Kay and Giles Lever, the chargé d’affaires in Kabul. We have the highest calibre of trusted diplomats, who make a tremendous contribution not only to UK interests but to the interests of civilians in both countries.

[Dan Jarvis (Barnsley Central) (Lab)]

What discussions has the Minister had with his American counterpart about US plans to reduce by half the number of troops in Afghanistan? Does he share my concern that that announcement might encourage the Taliban to play for time, rather than engage in meaningful peace talks with the Afghan Government?

[Mark Field]

That is always an issue. After the White House statement on 28 December that the President had not decided to draw down the US military presence in Afghanistan, we want to try to nail this issue down. Our collective long-term commitment to the objective remains unchanged. We have a long-term intention that NATO and its partners should not reduce their military presence unless conditions on the ground change.

[David T. C. Davies (Monmouth) (Con)]

6. What recent discussions he has had with his US counterpart on lifting US trade restrictions on Cuba.

[The Minister for Europe and the Americas (Sir Alan Duncan)]

As we have said on many occasions, we consider the US embargo to be counterproductive, and we oppose any possible tightening of it in the future. US sanctions and other unilateral Administrative and judicial measures do the opposite of encouraging potential reforms and economic progress, and officials in London and the British embassy in Havana regularly raise our objections to trade restrictions on Cuba with our US counterparts.

[David T. C. Davies]

Free markets and free trade always encourage political freedoms, and therefore I urge the Minister to continue doing everything possible to remind the United States of its commitment to free trade around the world and the importance of that in encouraging freedom and democracy.

[Sir Alan Duncan]

I totally agree with my hon. Friend. We consistently vote in support of UN resolutions to end the US-imposed embargo, but we do more than that because, under the UK Protection of Trading Interests Act 1980, it is illegal for UK companies to comply with extraterritorial legislation such as the US embargo. We continue to work together with our EU partners to provide UK companies with the support they need to be able to trade with Cuba.

[Jeff Smith (Manchester, Withington) (Lab)]

7. What recent diplomatic steps he has taken to secure a resolution to the conflict in Syria.

[The Minister for the Middle East (Alistair Burt)]

The Government support and keep in close contact with the UN-led political process to end the Syrian conflict. We have used our relationships and convening power to encourage progress, including by hosting the then UN special envoy Staffan de Mistura and the Syria small group of like-minded countries. We are also engaging with the new UN envoy, Geir Pedersen, who has our full support.

[Jeff Smith]

Given the sensitivity at the Syria-Turkey border, what specific steps can we take to keep the US engaged in diplomatic solutions, if it is going to withdraw troops, and, crucially, to keep Turkey engaged in finding a diplomatic solution that does not involve attacking the Kurdish forces?

[Alistair Burt]

I think both states are extremely conscious of the impact of any of their decisions on Syria. We have engaged regularly with the United States as it works through its process of withdrawal to make sure it is manageable and to make sure that everyone remains focused on the importance of continuing the global coalition against Daesh. That contact is constant with Turkey and with the United States.

[Theresa Villiers (Chipping Barnet) (Con)]

Will my right hon. Friend condemn the role in Syria of Iran, a regime that is terrorising its people at home and many across the region, including in Syria?

[Alistair Burt]

The actions of Iran in supporting the Assad regime and the way in which it has conducted a civil war against its own people have caused deep concern. Iran can improve its position only if it does not support such a regime and if it encourages a full part in the political process to see a reformed Syria.

[Brendan O'Hara (Argyll and Bute) (SNP)]

19. A stable Lebanon is vital to securing a resolution to the conflict in Syria. I have just returned from Lebanon with Aid to the Church in Need, and we saw there that Lebanon is a country barely able to cope with the pressure it is under, having been without a Government for the past eight months. What has been done to ensure, while a Government are being found, that Lebanon remains stable and secure?

[Alistair Burt]

I met the Prime Minister of Lebanon, as did my right hon. Friend the Foreign Secretary, on his visit to the United Kingdom.[Official Report, 23 January 2019, Vol. 653, c. 4MC.] We work very closely with all parties in Lebanon to encourage the process of Government formation. We are acutely conscious of the pressure of 1.3 million refugees in Lebanon. We would encourage the return of refugees from Lebanon to Syria, but only when it is safe to do so. Support for Lebanon and its economy is a fundamental part of the United Kingdom’s engagement in the region.

[Priti Patel (Witham) (Con)]

The Minister will be aware that countries across the Arab Gulf are now reopening their embassies in Damascus. What work is the Minister doing with some of our Arab allies and partners to do more to get back to rebuilding and to getting peace and consensus across Syria?

[Alistair Burt]

There seems to be a mixed view among Arab states about normalising relations with Syria, and that is certainly not the view of all states. Arab states are understandably worried about the influence of others in Syria, but there is a recognition—certainly by the United Kingdom, the EU and others—that there can be no normalisation of relationships and no return to embassies unless there is clear evidence that the regime in Syria has learned from the terrible costs it has inflicted on the Syrian people and there is a political settlement to demonstrate that.

[Fabian Hamilton (Leeds North East) (Lab)]

Given the huge shifts in policy on Syria emerging from the United States Administration, will the Minister provide some clarity on three related issues: when US troops will be withdrawn, what the preconditions are for that to happen and how America’s Kurdish allies will be protected after that withdrawal?

[Mr Speaker]

Cheeky—three questions, but there is not time for three answers.

[Alistair Burt]

With respect, Mr Speaker, they were good questions all. It is clear that the United States has made a serious appraisal of the impact of its troop withdrawal so as not to affect the global coalition against Daesh, and it is in close contact with its neighbours. We do not know the precise details. It is important that this does not disturb the work against Daesh, but the United States has also made it clear, as have others, that the Kurdish community must not be affected by any untoward incursion by Turkey or any others. It is important that the stability of north-east Syria is not affected by American decisions.

[Nigel Mills (Amber Valley) (Con)]

8. What recent discussions the Government have had with authorities in the (a) overseas territories and (b) Crown dependencies on establishing public registers of the beneficial ownership of companies.

[The Minister for Europe and the Americas (Sir Alan Duncan)]

My noble Friend Lord Ahmad, the Minister responsible for the overseas territories, along with the Prime Minister’s anti-corruption champion, my hon. Friend the Member for Weston-super-Mare (John Penrose), discussed the Government’s approach to the Sanctions and Anti-Money Laundering Act 2018 with overseas territories leaders on 5 December. Government Ministers and officials routinely discuss with the Crown dependencies a range of matters relevant to them, including company registers of beneficial ownership.

[Nigel Mills]

Can my right hon. Friend confirm what date the Government will set in the Order in Council if the overseas territories do not move voluntarily on this issue, and will he confirm that the end of 2023 will be far too late, given that it would be five years after the House voted on it?

[Sir Alan Duncan]

As required by the 2018 Act, we will prepare draft legislation by the end of 2020. All the overseas territories are expected to have fully functioning public registers in place by the end of 2023, as my hon. Friend says, as part of the Government’s call for all countries to make such registers the global norm by that date. The plan is to make 2023 consistent for both.

[Sir Vince Cable (Twickenham) (LD)]

From the vantage point of having introduced the original public register, may I ask the Minister whether he agrees that it is utterly intolerable that British territories and dependencies should be used as a covert conduit for British tax dodgers, and that if they will not reform we should resort to the sanction of direct rule?

[Sir Alan Duncan]

We will stick by the timing, but I think that a lot of work has already been done so that they could perhaps be in place before that date. I am confident that progress is being made as we would wish.

[Helen Goodman (Bishop Auckland) (Lab)]

Over and over again the Government have let the overseas territories off the hook. Now the Government are saying that the territories do not need to have public registers of beneficial ownership until 2023—at a cost, incidentally, of £50 billion to the British taxpayer. The law we passed last May required the Government to act in 2020. Does that not take the Government’s contempt for Parliament to a new low?

[Sir Alan Duncan]

No. I share the hon. Lady’s view that overseas territories with financial centres should meet international standards on tax transparency and anti-money laundering, but most overseas territories are either being evaluated or due to be evaluated by the financial action taskforce and are working to deliver their commitments made to the European Commission to prevent them from being included on the EU’s list of non-co-operative tax jurisdictions.

[Nigel Huddleston (Mid Worcestershire) (Con)]

9. What recent assessment he has made of the effect of renewed rocket fire from Gaza into Israel on the political and security situation in that region.

[Julie Elliott (Sunderland Central) (Lab)]

16. What recent steps he has taken to help secure a lasting peace between Israel and Palestine.

[The Minister for the Middle East (Alistair Burt)]

Rocket fire and attacks on Israel from Gaza remain unacceptable and damaging to any prospect of eventual peace. We continue to urge Israel and the Palestinian Authority to resume direct negotiations towards a two-state solution, and we remain in regular contact with many parties on this important issue.

[Nigel Huddleston]

Last year more than 800 rockets and mortars were fired from Gaza into communities in Israel. Does the Minister agree that we must not forget that Gaza is run by Hamas, who are not our friends but an internationally proscribed terrorist organisation? Will he update the House on what help we are providing to Israel in its fight against terrorism?

[Alistair Burt]

We never forget that Gaza is under the control of Hamas, and that other military groups operate there. As long as there are terrorist attacks on Israel from Gaza, the situation will remain impossible to resolve. We will continue to support very strongly the right of Israel to defend itself.

[Julie Elliott]

What is the Government’s assessment of the report by the UN Office for the Co-ordination of Humanitarian Affairs about the rise in Israeli attempts to delegitimise human rights organisations operating in the Occupied Palestinian Territories, particularly humanitarian non-governmental organisations, and the negative impact that that has on their ability to represent Palestinian rights and organisations?

[Alistair Burt]

Israel, as a democracy in the middle east, has always prided itself on ensuring that those groups have the freedom to operate there, even if they challenge the Israeli Government. It is very important to the United Kingdom that that tradition is maintained, particularly at a time of crisis. The west bank needs those who are able to interpret the situation and speak honestly, both to the Palestinian Authority and to the state of Israel, and the more political space there is to do that, the better it will be all round for the prospects of peace.

[Andrea Jenkyns (Morley and Outwood) (Con)]

What assessment has the Minister made of the effect of the tunnel construction into Israel by Hamas?

[Alistair Burt]

The recent discovery of tunnels from Lebanon into Israel has caused much concern. It is important that they are dealt with on both sides of the border. There is no reason for that work to continue, either by Hamas in the south in Gaza or by Hezbollah in the north in Lebanon.

[Joan Ryan (Enfield North) (Lab)]

Does the Minister agree that Malaysia’s decision to ban Israeli athletes from participating in Malaysian sporting events is shameful and that such attempts to single out the world’s only Jewish state come from a place of deep prejudice does nothing to advance the cause of peace?

[Alistair Burt]

The United Kingdom does not agree with this decision of the Malaysian Government. It does nothing to assist the worldwide recognition of Paralympians. I know that my right hon. Friend the Minister for Asia and the Pacific will take that up directly.

[Bob Blackman (Harrow East) (Con)]

Further to the question of my hon. Friend the Member for Morley and Outwood (Andrea Jenkyns) on materials that are sent to Gaza for building homes, but are being diverted to build terror tunnels, what action is my right hon. Friend taking to ensure that our aid is used to build homes for people in Gaza rather than terror tunnels?

[Alistair Burt]

The principal control of materials flowing into Gaza is of course exercised by the Israelis, with their concerns about dual-use material. We are in regular contact with the United Nations Relief and Works Agency to make every attempt to ensure that such materials are not diverted. Ultimately, there is no future for Hamas and for Gaza unless they stop the terror tactics and the diversion of materials, and respond to the Quartet principles and make peace.

[Andy Slaughter (Hammersmith) (Lab)]

In the past year, 186 Palestinian civilians have been killed on the Gaza border and no Israelis. More than 23,000 Palestinian civilians and 16 Israelis have been injured. Should not the focus be on ending the blockade of Gaza and, indeed, the occupation that has gone on since 1987?

[Alistair Burt]

Virtually every statistic from the area cries out for the need to resolve this issue. We have spoken about it in this House for decades. There are arguments and counter-arguments, but in the main, the misery continues, either for those who feel under attack from terrorist sources or for those who feel the humanitarian impact of political decisions made elsewhere. That is why the United Kingdom is so wedded to—and determined to see—a middle east peace process for all.

[Liz Twist (Blaydon) (Lab)]

10. What recent diplomatic steps he has taken to help secure a resolution to the conflict in Yemen.

[Ruth George (High Peak) (Lab)]

24. What recent diplomatic steps he has taken to help secure a resolution to the conflict in Yemen.

[The Secretary of State for Foreign and Commonwealth Affairs (Mr Jeremy Hunt)]

Last Wednesday, the UN Security Council passed resolution 2452, which establishes a six-month, 75-strong UN mission to monitor the ceasefire in Hodeidah. We obviously wish it every success.

[Liz Twist]

One of the fears about the Swedish agreement and the accompanying UN resolution was that they were too limited in scope and too loose in enforcing compliance. Does the Secretary of State accept that those fears are being realised? Is it not time to consider a broader and more robust UN resolution?

[Mr Hunt]

I understand the hon. Lady’s concerns. I simply say that we wanted to establish a ceasefire—this is the first time that has happened in four years of conflict—and then move on to the next stage, which is a second set of peace talks where we can agree a political settlement. There have been some worrying signs—there have been attacks on both sides—but I was in touch with Martin Griffiths, the UN special envoy yesterday, and broadly the ceasefire is holding. The key thing is to open the road from Sana’a to Hodeidah so that World Food Programme food can be released to the population.

[Ruth George]

In the coming weeks, both Houses of Congress are due to vote on whether the US should continue its support for the Saudi coalition in Yemen. Both are expected to vote that it should not. Will the Government give this House the same opportunity to vote on whether the UK should maintain our support for the war if it continues?

[Mr Hunt]

This House has shown recently its high ability to have votes on anything and everything it wishes to, so I am sure that there are plenty of opportunities to have votes on that. However, to answer directly in response to the point that the hon. Lady is making, breaking off support for the Saudi-Emirati coalition would reduce our influence with those two countries. At the moment, the ceasefire is broadly holding because those two countries are playing ball, and we would not want to change that.

[Kevin Brennan (Cardiff West) (Lab)]

I thank the Foreign Secretary for what he said before Christmas about my constituent Jackie Morgan’s daughter, Safia, who was kidnapped from Cardiff and taken to Yemen in the ’80s. I am glad to report to the House that she, her family and her husband, who are now in Cairo, have been granted the visas to travel to the UK, I hope tomorrow. Will the Foreign Secretary pass on my thanks to the Minister for the Middle East for the efforts that he has made to help in this case?

[Mr Hunt]

I am happy to do that. I thank my right hon. Friend the Minister and all the Foreign Office staff involved in that work.

[Marsha De Cordova (Battersea) (Lab)]

11. What steps he is taking to help ensure the long-term sustainability of UN aid to Palestinian refugees.

[The Minister for the Middle East (Alistair Burt)]

The UN Relief and Works Agency, UNRWA, is a necessary humanitarian and stabilising presence in the region, providing vital services to millions of Palestinian refugees every day. We have increased our funding to UNRWA, providing £65.5 million in 2018.

[Marsha De Cordova]

On 9 January, the Minister said:

“Work is going on to ensure that, in the long term, UNRWA is sustainable.”—[Official Report, 9 January 2019; Vol. 652, c. 349.]

However, UNRWA is already closing health centres, and doubling and trebling shifts at schools to cut costs. If it closes down, what will happen to the 526,000 children in UNRWA schools and the 3.1 million patients of UNRWA health services? Can the Minister set out exactly what is going on?

[Alistair Burt]

We sought to increase our funding, as I mentioned to the hon. Lady, but we also talk to other donors. It is impossible for the United Kingdom to fill the gap created, but the point she makes is extremely pertinent: if the education of those in Gaza and children of Palestinian refugees stops, I wonder what organisation in the region would like to take over the education of impressionable youngsters.

[Stephen Crabb (Preseli Pembrokeshire) (Con)]

Ongoing humanitarian support for Palestinians is vital but, given the track record of Hamas in seeking to abuse and exploit UNRWA, what assurances will the Minister give about protecting the independence and integrity of UNRWA and ensuring that taxpayers’ money is used to good effect?

[Alistair Burt]

I hear my right hon. Friend, but it is really important for the House to be clear that UNRWA is an independent organisation run by the UN. Of course practical pressures are caused in Gaza, because Gaza is run by Hamas, but it is wrong to suggest that UNRWA is in hock to anyone else but those who contribute as donors. It does vital work—health, education and services—and it is essential that that continues, because if UNRWA does not do it—I ask the House—who would step in to provide support, where would the finances come from and what would be done with them?

[Richard Burden (Birmingham, Northfield) (Lab)]

Does the Minister agree that the announcement by the Israeli authorities that they plan to close UNRWA schools in East Jerusalem is a direct attack on the welfare of Palestinian refugees in two refugee camps there, including 3,000 students? I welcome the Minister’s increased funding for UNRWA, but will he commit to support the renewal of UNRWA’s mandate later this year?

[Alistair Burt]

I thank the hon. Gentleman for his question; he knows the area very well. Of course we will continue to support UNRWA, and look hard at the mandate renewal. It is important that it continues its work there because, as I have said, there is concern about what the impact will be if that work is not done. As I said earlier, all this tells us that such disputes and concerns will not change unless there is overall agreement on a settlement between Israel and the Palestinians. Unless that is done, these problems will continue to occur, much to the misery of all involved.

[Sir Nicholas Soames (Mid Sussex) (Con)]

12. What steps he is taking to co-ordinate the use of soft power in British foreign policy.

[The Secretary of State for Foreign and Commonwealth Affairs (Mr Jeremy Hunt)]

According to the Portland Soft Power 30 index, the UK is the world’s leading international soft power country. Post Brexit, this will be a vital asset for us to continue to exploit.

[Sir Nicholas Soames]

I thank my right hon. Friend for that important answer, but does he agree that, like so many things that we do well in this country, we tend to take that for granted? Will he therefore assure this House that he will pay greater attention to the co-ordination of soft power across all Departments?

[Mr Hunt]

I thank my right hon. Friend for making that very important point. I can reassure him that I have presented to Cabinet on the subject of soft power and written to every head of mission across the world to underline its importance and to ask what they are doing about it. I am also in charge of a cross-Government taskforce aimed at making sure we do everything we can in this area.

[Alex Norris (Nottingham North) (Lab/Co-op)]

Soft power can be very effective in places where we have a traditional connection, such as Cameroon. Constituents have recently visited me concerned about the ongoing human rights crisis there. Will a Minister meet me and my campaigners to see what more we can do?

[Mr Hunt]

The Minister for Africa is not here, but I am delighted to say in her absence that she would be delighted to meet the hon. Gentleman.

[Derek Thomas (St Ives) (Con)]

20. Soft power in the form of trade can lift billions of people out of poverty. Does the Foreign Secretary agree that the opportunity of new trade deals with the Commonwealth, which would give those countries an opportunity to prosper, is one that we should pursue?

[Mr Hunt]

I absolutely agree. Just as vital is the UK’s support for the international trading system and our belief in free trade, which we continue to champion.

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

African visitor visas are refused at over twice the average rate, and this has a negative impact on all aspects of soft power, including trade, business, culture, education and academia. This afternoon, the all-party parliamentary group on Africa, which I chair, is holding an open meeting on African visa refusals. Can I tell the meeting that the Foreign Secretary is speaking to his Home Office colleagues about the negative impact that this broken system is having?

[Mr Hunt]

I understand the hon. Lady’s concerns. If she writes to me following this afternoon’s meeting, I will happily pass them on to the Home Secretary.

[David Hanson (Delyn) (Lab)]

13. What recent assessment he has made on the progress of international co-operation on climate change.

[The Minister for Asia and the Pacific (Mark Field)]

Lucky 13 for the right hon. Gentleman! The agreement of the rulebook for the Paris agreement at the 24th conference of the parties in Katowice in Poland last month, which I attended, was a crucial step forward, but all our assessments conclude that the current level of global ambition is not enough to meet the Paris goals of just over three years ago. We need unprecedented and rapid action to reduce emissions and build resilience.

[David Hanson]

I concur with the Minister. For all those reasons, will he ensure that, if the President of the United States visits this country in July, climate change will be central so that we can put it on the agenda of America, which is the power best able to influence world opinion on this issue?

[Mark Field]

I very much hope so. I was at the climate change summit in San Francisco in September, and interestingly it is not just the state of California but other US states that take this very seriously. There is, then, a lot of pressure from within the US, but obviously we will keep up that pressure in every way we can, both bilaterally and in multilateral forums.

[Jo Swinson (East Dunbartonshire) (LD)]

rose—

[Mr Speaker]

We are over time, but we cannot proceed without hearing from the hon. Lady.

[Jo Swinson]

Thank you, Mr Speaker. Does the Minister agree that climate change is a strategic threat to our prosperity and security? If so, why is it no longer mentioned in the 28 objectives in his departmental plan?

[Mark Field]

It is very much an important part of my own plan. As the hon. Lady will appreciate, I attended last year’s meeting of the Pacific Islands Forum in Nauru and will attend the next one in Tuvalu—these issues are existential for many of those Pacific islands. I am sorry she feels that we are not giving this enough attention. I am proud of the work the Foreign and Commonwealth Office is doing with the Department for Environment, Food and Rural Affairs and the Department for Business, Energy and Industrial Strategy, which lead on this issue; we work very closely together in a range of different forums and will continue to do so.

[Alan Brown (Kilmarnock and Loudoun) (SNP)]

T1. If he will make a statement on his departmental responsibilities.

[The Secretary of State for Foreign and Commonwealth Affairs (Mr Jeremy Hunt)]

My colleague the Minister for Africa is not with us today, as she is meeting partners from the African Union. At that meeting, she will be underlining our concern about the issues in Zimbabwe, where we have seen widespread unrest and a heavy security force response over the last week. Yesterday, I called on President Mnangagwa not to turn back the clock. People must have the right to peaceful protest without fear of violence.

[Alan Brown]

Gaza has been described as the biggest open-air prison in the world. Israel continues to plan settlement expansion and demolitions with impunity, and clearly US foreign policy is making things worse. When will the UK set a realistic timeframe to step up and recognise the state of Palestine?

[Mr Hunt]

We have always said that we will recognise the state of Palestine when the time is right—we support a two-state solution—but we want to do it at the moment it will have the most impact on the peace process.

[Tom Pursglove (Corby) (Con)]

T2. Further to the question from the right hon. Member for Enfield North (Joan Ryan), at a time when relations are improving greatly between Israel and many countries around the world, particularly its Gulf neighbours, will my right hon. Friend stress that not allowing Israeli swimmers to participate in the Paralympic qualifiers would be a retrograde step?

[The Minister for Asia and the Pacific (Mark Field)]

We also have strong relations with the Malaysian Government, and I am very disappointed that they have made what I feel is a fundamentally wrong decision. As my hon. Friend has rightly pointed out, those Israeli Paralympic athletes should not be banned from competing. I shall be seeing the Malaysian Education Minister this afternoon—with, I think, a senior representative of the high commission—and I promise to ask for an assurance that this will be dealt with properly, as a matter of urgency.

[Keith Vaz (Leicester East) (Lab)]

T4. I thank the Foreign Secretary for travelling to Stockholm for the peace talks, and for resolution 2452. Yesterday, however, five aid workers were killed in Yemen as they tried to de-mine parts of the country. Will the Foreign Secretary ensure that the safety of aid workers is a priority during the talks? [R]

[Mr Hunt]

Absolutely. In fact, I had an exchange with Martin Griffiths, the Yemen special envoy, yesterday. De-mining the road between the port of Hodeidah and Sana’a so that food supplies can come from the port into the rest of the country is essential, and I think that the whole House will wish to express our admiration for the bravery of the aid workers who are in Yemen right now.

[Damien Moore (Southport) (Con)]

T3. Recently, six underground tunnels built by the Iran-funded Hezbollah terror group were discovered leading into Israel from Lebanon. The deepest tunnel had electricity and a rail system. Does my right hon. Friend share my fear that Hezbollah was building those highly advanced tunnels in order to launch a large-scale invasion of northern Israel, on the watch of the United Nations and the peace- keeping United Nations Interim Force in Lebanon? [R]

[The Minister for the Middle East (Alistair Burt)]

My hon. Friend is right. The discovery of those tunnels has highlighted concerns about a re-armed Hezbollah in Lebanon, and it is essential for them to be dealt with by both UNIFIL and the Lebanese armed forces. They constitute a clear breach of UN Security Council regulation 1701.

[Sarah Jones (Croydon Central) (Lab)]

T7. My constituent Mr Niranjan Rasalingam is currently shackled in a prison in Myanmar, serving a 13-year sentence after being forced to sign a confession in Burmese, a language that he does not understand. Regardless of his guilt or innocence, he is a British citizen being mistreated. I have raised his case in this place before, but I understand that the Foreign Secretary did not make representations on his behalf during a recent trip to the country. May I ask him again please to give more support, and to advocate on behalf of my constituent?

[Mark Field]

I shall be happy to deal with this matter in my role as Minister of State. I hope to go to Burma, or Myanmar, within the next few months, but I will obviously try to deal with it from London at an earlier stage.

[Mr Philip Dunne (Ludlow) (Con)]

T5. What assessment did my right hon. Friend make of the future economic, trade and diplomatic relations with Singapore and Malaysia?

[Mr Hunt]

I had a very good trip in the new year. We have excellent relations with both countries. What I find impressive is the fact that their prosperity has come about through openness to trade. In that regard, our post-Brexit foreign policy, embracing free trade, will be central.

[Helen Jones (Warrington North) (Lab)]

T9. Of the almost 7,000 Yazidi women enslaved by ISIS, there are still very few who have received treatment for their physical and psychological injuries, and many have been unable to return to their homes. What more can the Government do to support those women, and to urge the Iraqi Government and the Administration in Kurdistan to work together to bring about their resettlement?

[Alistair Burt]

That is another good question. When I was last in Iraq I met agencies involved with Yazidi women, and I hope to go there again in the not too distant future to make the same representations. The difficulty of going back to such areas is related to the overall security situation in Iraq. It is essential for the Iraqi authorities to be able to protect everyone, and that work is ongoing in very difficult circumstances.

[Bim Afolami (Hitchin and Harpenden) (Con)]

T10. Will the Foreign Secretary update the House on his assessment of our relationship with China, particularly in respect of financial services in the City of London?

[Mark Field]

The City of London’s connections with China form an essential part of our overall bilateral relationship, and we look forward to proceeding with an ambitious commercial agenda during 2019. As my hon. Friend will know, the City is already the world’s leading offshore trading centre for the renminbi. It engages in more than 40% of global trading, even more than Hong Kong.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

Yanto Awerkion, Sem Asso and Edo Dogopia were among six members of the West Papua National Committee who were arrested in December, when the police and the military took over the group’s secretariat in Timika. The three men were detained on 5 January and later charged with treason, which carries a maximum sentence of life imprisonment in Indonesia. Amnesty International has called for the unconditional release of the activists, because they have only expressed their political views. Will the Minister press his counterpart in Indonesia to release them?

[Mr Speaker]

Order. May I very gently advise Members that, in future, if they have a substantive question that is not reached, they must ask a truncated version of it during topical questions? That is the way it is.

[Mark Field]

Sadly, Mr Speaker, the hon. Gentleman has asked a rather different question, so I cannot just refer to the briefing I have here. May I, however, reassure the hon. Gentleman that the officials at our embassy in Jakarta, including the ambassador, visit Papua and West Papua regularly? We will do our very best in future visits to bring up the specific cases to which the hon. Gentleman refers.

[Peter Aldous (Waveney) (Con)]

With India entering the Open Doors world watch list top 10 and now designated as a country where Christians experience extreme prosecution, what steps is the Foreign Secretary taking to promote the importance of religious freedom in India?

[Mr Hunt]

As my hon. Friend knows, I have just asked Bishop Philip Mounstephen, Bishop of Truro, to do an independent report on what more we can do to support the quarter of a billion Christians across the world facing persecution, but in India the British high commission regularly meets minority communities, including Christian groups, and we have recently enabled training for 900 minority students on faith issues in six universities.

[Ann Clwyd (Cynon Valley) (Lab)]

May I ask about human rights defenders in Bahrain, as we have close links with Bahrain? There is not time to name them now, but they are prominent people and I would like to give their names to the Minister afterwards, and they include Nabeel Rajab and political opposition leaders such as Sheikh Ali Salman, imprisoned for exercising their fundamental rights. What are we doing to get them out of jail?

[Alistair Burt]

As the right hon. Lady knows, all the prominent cases of human rights activists are carefully monitored by the UK representatives in Bahrain. There are independent processes in order to oversee the activities of the courts in Manama, and we urge that there is a consultation and dealings with them. We keep a constant eye on this; it is a matter for progress in Bahrain, and the United Kingdom is very involved in seeing greater progress there.

[Dr Julian Lewis (New Forest East) (Con)]

Will Ministers use the United Nations as a forum where the United States can expose the Russian violation of the intermediate-range nuclear forces treaty so that if America does withdraw, responsibility will lie where it should?

[Mr Hunt]

We are absolutely sure that Russia has been violating the terms of the INF treaty and that the way forward in this is to get back to compliance because it is vital for Europe’s security, but that starts with Russia recognising what it has done wrong.

[Thangam Debbonaire (Bristol West) (Lab)]

What representations are the Government making to the Government of Nepal in relation to the recent case of the death of a woman and her two children who were suffocated while being confined in a poorly ventilated so-called period hut?

[Mark Field]

I thank the hon. Lady for her question. I must confess that I do not have direct knowledge of this case, but I will get in touch with Kathmandu to make sure we make representations on her behalf.

[Stephen Kerr (Stirling) (Con)]

When can we expect the report the Foreign Secretary has commissioned on UK support for persecuted Christians to be published, and will he make a statement at that time?

[Mr Hunt]

Subject to other parliamentary business I will welcome the opportunity to do that, because it is a very important issue. The timetable we are provisionally working to is that the interim report will be published before Easter, which will outline the issues faced by Christians all over the world, with the final report later in the year.

[John Cryer (Leyton and Wanstead) (Lab)]

We were told earlier that the Foreign Secretary has raised the brutal treatment of Muslims in China. I am interested to know what possible excuse his Chinese counterpart came up with for their medieval behaviour.

[Mr Speaker]

Let’s hear it.

[Mr Hunt]

It is fair to say that the responses we got in no way assuaged our concerns about what is happening. We do raise these issues: we raise them in private but we raise them persistently, and it is very important for the Chinese to know about the concern in this House and indeed across the country.

[Mark Menzies (Fylde) (Con)]

Following a further week of violence in Venezuela and a refugee crisis that is overwhelming its neighbours, what conversations have the Government had with the United States and Lima group countries to resolve this crisis?

[The Minister for Europe and the Americas (Sir Alan Duncan)]

We are working very closely with the Lima group. I made a very firm statement in the last few days and indeed only yesterday 25 members of the National Guard revolted against President Maduro’s leadership. We are taking a very robust stand on this and we recognise the legitimacy of the constituent Assembly, as indeed should all countries.

[John Woodcock (Barrow and Furness) (Ind)]

The Minister for the Middle East knows that we normally agree, but what on earth did he mean when he implied that we might normalise relations with the murderous tyrant Assad if he learned his lesson?

[Alistair Burt]

We do agree; there is no normalisation of the relationship with Syria. The point I was seeking to make was that before there can be any recognition of Syria, there has to be an understanding of what has happened there. We are looking for the regime, in its political settlement, to understand that it cannot continue to rule as it did in the past. There are no plans whatsoever for the United Kingdom to normalise any relationship with Syria. Looking at the numbers of deaths, of people killed and of murders committed by the regime, it is very difficult to see what arm of justice could possibly result in normalisation.

[Mark Pritchard (The Wrekin) (Con)]

On the Bishop of Truro’s review of the Foreign Secretary’s review of persecution of the Christian Church, will the Foreign Secretary tell me what human and financial resources the bishop and his team will get to ensure that the report is done thoroughly?

[Mr Hunt]

Before I address that question, I need to correct the record. When the Minister for Europe and the Americas, my right hon. Friend the Member for Rutland and Melton (Sir Alan Duncan), talked about the constitutional assembly, he actually meant the National Assembly in Venezuela. We will extend all the necessary resources to the Bishop of Truro and his team. We have had good discussions about the resources that they need. This is an important review, and we want to ensure that it is done properly.

[Kate Hoey (Vauxhall) (Lab)]

I thank the Secretary of State for his remarks on Zimbabwe. Has he—or the Minister for Africa—spoken directly to the South African Government? If not, he should do.

[Mr Hunt]

I agree with the hon. Lady, who is very wise on these matters. The answer, truthfully, is that I have tried to speak to the South African Foreign Minister and so far I have not been able to find a time that suits.

[Bob Blackman (Harrow East) (Con)]

There is widespread concern among the Muslim, Hindu, Tamil and Christian communities in Sri Lanka about the appointment of alleged war criminals to very senior positions. What representations has my right hon. Friend made to the Sri Lankan Government to prevent this from happening?

[Mark Field]

We welcome the progress that has been made towards a peaceful resolution of the destabilising situation in Sri Lanka that took place from late October onwards. Just last week, I welcomed the Speaker of the Sri Lankan Parliament to the Foreign and Commonwealth Office and commended him for his central role in bringing that about. Clearly the situation in Sri Lanka is very fluid, and I would be happy to take specific representations from my hon. Friend about the particular concern that he has just raised.

[Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)]

On Friday, the skirl of the bagpipes will be heard and haggis, neeps and tatties will be consumed in large quantities all over the world. Have the Government instructed their network of high commissions, embassies and consulates to facilitate the celebration of our Scottish national bard’s work and life all over the world?

[Mr Speaker]

Particularly in Caithness, Sutherland and Easter Ross.

[Mr Hunt]

If we have not, we should.

[James Cleverly (Braintree) (Con)]

I am pleased that the United Kingdom has regained its No. 1 spot in the Portland soft power top 30, particularly because we overtook France in order to do so. Although not every element of our soft power is under my right hon. Friend’s Department’s control, will he ensure that organisations such as the British Council and the BBC World Service are well funded and able to project our soft power globally as we leave the European Union?

[Mr Hunt]

My hon. Friend is right to mention those organisations; they do a very important job. I actually think that the role of the BBC in providing impartial news across the world is very underestimated; that is an area in which we could do much better.

[Chris Stephens (Glasgow South West) (SNP)]

Will Ministers tell us what representations they are making to the Turkish authorities in relation to hunger strikes by Kurdish politicians and activists, and what representations have been made to end the persecution of Kurdish people?

[Sir Alan Duncan]

We are in regular dialogue with the Turkish Government, as is the Minister for the Middle East, specifically in respect of Syria and the Kurds.

[Fiona Bruce (Congleton) (Con)]

Are Ministers aware of reports this week from China Aid that Christian persecution is escalating in China, and that it is now at its worst for 40 years? Thousands of churches have been desecrated and destroyed, and pastors have been imprisoned and are facing trial. Whole sections of society, including children under 18 and students, have been banned from going to church, and those who do attend church are now being filmed and fingerprinted. What can be done to raise this issue internationally?

[Mr Hunt]

I share my hon. Friend’s concern. I read a moving report about a pastor in Chengdu who has suffered greatly. We raised these concerns during the universal periodic review that we did with China in November 2018, and I regularly raise concerns about human rights issues with my Chinese counterpart. One of the reasons for doing the review is to ensure that I am properly informed on matters of religious freedom.

[Ruth Cadbury (Brentford and Isleworth) (Lab)]

Given the Minister for the Middle East’s earlier expression of support for UNRWA and the concern about the alternative education that Palestinian children might receive if UNRWA pulls out, will the UK Government consider filling the vacuum resulting from the withdrawal of US leadership in this important service?

[Alistair Burt]

In reference to the question from the hon. Member for Caithness, Sutherland and Easter Ross (Jamie Stone), I am appropriately wearing my tartan tie to celebrate this week.

As I indicated earlier, we support UNRWA’s work and work hard with the organisation in case reform is needed. In the long term, UNRWA’s future will be about the future of refugees and their final settlement status. In the meantime, we cannot completely plug the financial gap left by the United States, which is why we are working with others, but leadership is vital, as is trying to get it across to the world that UNRWA is doing important work, and the UK will remain a champion.

[Several hon. Members rose—]

[Mr Speaker]

Order. Demand always exceeds supply, but I thank the Foreign Secretary and his team, who have been addressing the House, the nation and, very importantly, the world—the planet!

Petition

Tuesday 22nd January 2019 Commons Chamber

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Tower Blocks: Dangerous Cladding

Tuesday 22nd January 2019 Commons Chamber

12:40

[John Healey (Wentworth and Dearne) (Lab)]

(Urgent Question): To ask the Secretary of State for Housing, Communities and Local Government if he will update the House on the action taken and planned by the Government with respect to high-rise residential blocks with dangerous cladding.

[The Minister for Housing (Kit Malthouse)]

There is nothing more important than ensuring that people are safe in their homes, and we remain determined to ensure that no community suffers again as the community did so tragically and appallingly at Grenfell Tower. Within days of that tragedy, a comprehensive building safety programme was put in place to ensure that residents of high-rise blocks of flats are safe and feel safe now and in the future. Our Department has worked with fire and rescue services, local authorities and landlords to identify high-rise buildings with unsafe cladding and to ensure that interim safety measures are in place until issues are permanently remediated. Measures have included waking watch, which has been put in place in all high-rise buildings with ACM cladding, with the oversight of the National Fire Chiefs Council. As of 31 December last year, interim measures have been in place on all 176 high-rise private residential buildings with unsafe ACM cladding.

Permanent remediation must rightly now be our key focus. On 18 December, we published our plan to implement the recommendations of Dame Judith Hackitt’s independent review of building regulations and fire safety, which will create a stronger regulatory framework and fix the issues for the long term. We have repeatedly called on private building owners not to pass costs on to leaseholders who find themselves in this position through no fault of their own. We have also warned private building owners that, unless they remove and replace unsafe ACM cladding from their high-rise residential buildings now, local authorities have the power to complete the works and recover the costs from the owner. As a result of our interventions, we have secured commitments from owners of 268 privately owned buildings, 212 of whom have either started works, completed them or have commitments in place to remediate. There remain 42 private residential buildings for which the owner’s plans are unclear, so we are maintaining pressure and rule out no solutions.

This is obviously a matter of great importance to many colleagues and, indeed, to many constituents, and that is reflected in the huge amount of activity that is taking place both within the Department, externally within the industry and, critically, in this House. There is an Adjournment debate tomorrow, and I will appear at oral questions and before the Housing, Communities and Local Government Committee on Monday.

[John Healey]

It should be a cause for national shame that, over 19 months after the Grenfell Tower fire, I am having to drag Ministers to the House because there are still buildings in this country cloaked in Grenfell-style cladding and residents who do not know whether their homes are safe, as the Daily Mirror has revealed today. It is shocking that the Government’s own figures show that there were 437 high-rise blocks with the same Grenfell-style cladding and that 370 are yet to have it removed and replaced. It is shocking that the Minister knows every one of those blocks but will not name the landlords or tell the residents. Whatever he says he is doing, it is not working. For over 19 months, any progress made has simply been too slow, too weak and always following pressure from this House and from Labour. If the Government cannot fix problems this serious and urgent, what on earth are they in office for?

Here is a six-point plan to sort out the problems, and this is what we have been arguing for months. First, widen the Government testing programme to cover all suspect cladding, not just ACM cladding. Secondly, set a deadline for all blocks to be made safe. Thirdly, make clear the legal duty for block owners to get this work done, and to pay for it without passing on the bill to hard-pressed leaseholders. Fourthly, set up a loan fund for private blocks. Fifthly, name the landlords and tell the residents so that the public know the safety status of all high-rise blocks. Finally, toughen the sanctions, up to and including taking over blocks to get this vital fire safety work done.

For more than nine months, as the Minister has repeated today, the Secretary of State has said that he is not ruling anything out. It is time to rule things in, and it is time to reverse the refusal to act on all these fronts.

In the days after the Grenfell tragedy, the Prime Minister promised the nation:

“My Government will do whatever it takes to…keep our people safe.”

When will the Minister finally be able to come to this House to tell us and the public that the Government have honoured that pledge?

[Kit Malthouse]

I am sorry that the right hon. Gentleman has sought to make this such an antagonistic exchange in what is a difficult and complicated situation that requires significant amounts of engineering and construction work, which will necessarily take time. He will know that the response from both the Department and the Government in the aftermath of the Grenfell tragedy was immediate and wide-ranging. The commissioning of Dame Judith Hackitt to conduct her inquiry was an important step forward in tackling this issue.

Since then, significant resource and effort have been injected into the need to remove this cladding, but the vital first step was to make sure that people living in high-rise blocks with ACM cladding were safe immediately, and those steps were put in place immediately. We now know, and can tell everyone in tower blocks with this cladding, that they are safe tonight. The Government’s primary focus was to make sure there were enough interim measures in place and that local fire and rescue services were satisfied that the buildings were immediately safe, while at the same time providing the resources, assistance and support—and, yes, cajoling some in the private sector to do their duty and replace this cladding.

That is what we continue to do, and we are making significant progress. However, the right hon. Gentleman is correct that we will get to a point where, for a small number—we are now down to a small number—of owners or contractors who put this cladding on buildings, we will need to consider more assertive measures, and those measures are under active consideration at the moment. All the while, in all of this—he may present himself as an expert, but I am certainly not an expert—we are guided by expert opinion, which includes Dame Judith Hackitt’s review and the independent expert advisory panel that was constituted in the immediate aftermath of Grenfell. We follow their advice in making sure that we can guarantee people’s safety tonight.

[Sir Peter Bottomley (Worthing West) (Con)]

I agree with my hon. Friend that it is not a very bright idea to be partisan about this, given that the majority of the non-private blocks are probably in Labour-controlled councils.

Has the advice on fire and evacuation changed, and is the policy of staying put still right for these blocks? How will my hon. Friend take advice from the representatives of leaseholders? They are the ones who are made to carry the can, but they are regarded as only tenants for most legal purposes.

[Kit Malthouse]

The advice on evacuation procedures is for the local fire and rescue service to determine. Depending on the formulation of the building, advice is given on whether it should be evacuated simultaneously or sequentially, and that advice varies from building to building. In the end, it is for the local fire and rescue service to satisfy itself that there are appropriate evacuation procedures in each building.

My hon. Friend is a well-known and long-standing champion for leaseholders in a number of circumstances, and he will know that we are putting significant pressure on building owners and, indeed, contractors to ensure that leaseholders do not bear the cost of this situation in any circumstance. The Secretary of State has not ruled out any particular measure in making sure that that pertains.

[Alison Thewliss (Glasgow Central) (SNP)]

It is all very well for Ministers to come here and say “never again” after Grenfell, but it is extremely disturbing to hear the news from the X1 Eastbank block in Manchester. Not only did the construction firm apparently neglect to pass on the findings of a failed test, but it appears to have threatened to withhold payment for the test unless the testing company signed a non-disclosure agreement concerning the results. Will the Minister confirm whether the Secretary of State can request that information from the construction firm’s administrators and make sure that it is all handed over?

In the more than 18 months since the Grenfell tragedy, there seems to have been a continued lack of progress and reform. The Royal Institute of British Architects has stated that England lags behind Wales and Scotland, which have in place, or are introducing, regulations to require sprinklers and provide a second means of escape. The Scottish Government-led review of the Scottish fire safety regime by the building and fire safety ministerial working group produced its conclusions and recommendations in December last year. What discussions has the Minister had about that with housing Minister Kevin Stewart in Scotland, and are there recommendations from the group that he could easily implement in England?

Finally, I ask again whether the Government will consider zero rating materials for replacement cladding. That would help to reduce the costs for firms that want to take such remediation measures, and make it easier for them to do so.

[Kit Malthouse]

As I said in my earlier answer to the right hon. Member for Wentworth and Dearne (John Healey), I believe we are making progress on remediation. That is particularly true in the social sector, but we are now seeing signs that significant progress is being made in the private sector with the number of buildings that have been completed, the commitments that have been made and the work that is ongoing.

Regarding the Manchester situation that is on the front page of the paper today, I understand that the local fire and rescue service is satisfied that everybody will be safe in that building tonight, and that temporary measures are in place while the work is being done. There seems to be some complication about getting that work done, but it is being done.

Sadly, I have not met the Minister whom the hon. Lady mentioned, but as she will know, we are reviewing approved document B—the fire safety building regulations —and we would welcome any contribution towards that consultation to help us to get this right.

[Robert Neill (Bromley and Chislehurst) (Con)]

Assertive measures are urgent for my constituents at Northpoint in Bromley, one of the 42 buildings where the owner—in this case Citistead, an offshoot of the Tchenguiz family trust—refuses to meet its obligations and insists that it will use a term in the lease to pass on the costs to the flat owners regardless. The Government need to introduce a legally foolproof mechanism to override those provisions and prevent my constituents and others from being forced to pick up the tab. Words are not enough.

[Kit Malthouse]

My hon. Friend is a fierce advocate for his constituency, and we share his concern about the position of the Northpoint residents. We have been very clear that leaseholders should not bear the cost, and he will be pleased to learn that the Secretary of State has written to the building owner and other parties concerned to make it clear that he expects them to fund the work.

[Mr Clive Betts (Sheffield South East) (Lab)]

The Secretary of State has just written to the Select Committee about the role of local authorities, and local authorities clearly have powers under the Housing Act 2004. When building owners will not act and the local authority acts instead, it may incur costs that it can try to recover from building owners. Can we have an absolute guarantee from the Minister that when local authorities find it impossible to do so, the Government will find that money so that it will not have to be found from hard-pressed local authority budgets?

[Kit Malthouse]

The Chair of the Select Committee raises an important point. We have offered financial assistance to local authorities, and we will work in partnership with them to attempt to recover the money. Where that proves to be impossible, we will try to reach as convenient and financially efficacious an arrangement as possible.

[Greg Hands (Chelsea and Fulham) (Con)]

May I ask my hon. Friend about Hartopp Point and Lannoy Point, two 14-storey blocks in Fulham that are rumoured to face demolition? Residents—including leaseholders who are worried about getting proper compensation —are extremely concerned, and opposition Conservative councillors are calling for an emergency council meeting tomorrow night. Will he join me in urging Hammersmith and Fulham Council to lift the secrecy from its proposals and communicate properly with concerned tenants and leaseholders?

[Kit Malthouse]

My right hon. Friend raises what sounds like an alarming situation. Where people’s homes are concerned—whether it is about safety, the future of their homes or, indeed, demolition—I urge all those in authority to be as transparent as possible. It can be extremely debilitating, concerning and worrying for any resident to have the future of their home mired in uncertainty. I hope that he gets the clarity that his residents need.

[Lucy Powell (Manchester Central) (Lab/Co-op)]

If the Minister was one of my constituents in the X1 block in Manchester, I am sure that, like them, he would have woken up this morning feeling not only worried and scared, but furious—furious at the way in which the matter has come to light, and furious that there is still, after all this time, no accountability, no transparency and no recourse for the people affected. We urgently need legislation, which must also cover leaseholders who, like those in many of the blocks in my constituency, cannot sell their homes because of the fear that they will have to pay the cost of recladding. This has got to stop.

[Kit Malthouse]

The hon. Lady is quite right; given the story on the front of the paper, anyone who lived in that block would be worried. We have reassured ourselves that the Greater Manchester fire and rescue service is satisfied that everybody resident in that block is safe tonight, and that there has been sufficient engagement by the owners and managing agents to make sure that the temporary measures that are in place are adequate to keep residents safe.

We understand that there is work under way. I believe that that work has been contracted, but it is yet to be made clear who will pay. We will put pressure on the owners and managers of that building, as we are doing with all owners and managers, to make sure that it is not the leaseholders who pay. At this stage, we are not ruling out any particular measure for making sure that that is the case.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

The Housing Minister is doing excellent work on the matter, both behind the scenes and out in front. I have spoken to him about it on a number of occasions. Particularly with private sector buildings where there is no obvious freeholder responsible for replacing the cladding, does he consider that central Government should step in and fund the cost of replacement until it can be established who is responsible for it, after which they should reclaim that money?

[Kit Malthouse]

My hon. Friend is quite right, and he points to something that will become an increasingly difficult issue. In a number of cases, the freeholder of a building—essentially, the owner of the building—may well be obscure, overseas, difficult to contact or, indeed, a dormant company. In those circumstances, as the Chair of the Select Committee pointed out, local authorities have the power to enter the premises and do the work. We have offered financial support to make sure that it gets done.

[Emma Dent Coad (Kensington) (Lab)]

I am very concerned to see the Minister treating this like some kind of theoretical exercise. People are genuinely afraid in their beds and it is not really enough for the Minister to say that he is satisfied. Seventy-two of my neighbours—including those who had warned people about their fears—died in the worst possible circumstances, in front of their neighbours. Hundreds were made homeless, and 19 months later many are still homeless. Nearly 700 children have been diagnosed with post-traumatic stress disorder, as have nearly 1,500 adults.

This was all preventable. Look at the cases over the years in which people have died in fires spread by external cladding, including at Summerland leisure centre, Knowsley Heights, Garnock Court and Lakanal House, where the coroner advised specifically how the Government should change building regulations to keep people safe. Nothing has yet changed. The Government are ignoring warnings, and our constituents are going to bed afraid. Current measures are not working. One of the Grenfell survivors said:

“Grenfell 2 is in the post.”

How many more must die before the Government take positive action to keep people safe in their beds?

[Kit Malthouse]

I am sorry that the hon. Lady has not acknowledged the significant amount of work that has since taken place, not least the work of Dame Judith Hackitt, which has been seminal and foundational in our changing of the building regulations for the future. The hon. Lady should be under no illusion about the seriousness with which I take the matter. It has occupied very significant amounts of my time since I was appointed in the summer, including chairing the ministerial taskforce, having regular meetings with the team internally to make sure that we are driving performance and numbers and, critically, engaging with the Grenfell community, as I have done on many occasions, both individually and collectively. That included, movingly, attending the silent walk that took place just before Christmas. We believe this a significant part of our responsibility to make sure that everybody is safe.

As I said earlier in response to the right hon. Member for Wentworth and Dearne (John Healey), our primary concern is to make sure that every resident is safe tonight. Whatever measures are required—whether a waking watch, the retrofitting of heat sensors or smoke alarms, new doors, or whatever else it might be—our primary concern is that every local fire and rescue service can guarantee to the Department that everybody who is in a residential building of more than 18 metres is safe tonight.

The secondary concern of importance is getting the remediation done. We are making significant progress on that and will be accelerating that progress in the next few months.

[Bob Blackman (Harrow East) (Con)]

In evidence to the Select Committee, Rockwool has claimed that there are more than 1,600 high-rise buildings with unsafe cladding, rather than the 397—I think—that the Department claims. That is a clear, massive disparity. Will my hon. Friend make sure before he comes before the Select Committee next Monday that we are given a clear explanation of why there is this wide disparity and that he will take action to make sure that all 1,600 buildings are made safe?

[Kit Malthouse]

My hon. Friend makes an important point of which we should not lose sight: there are types of cladding other than ACM cladding. He will know that the Department issued advice to building owners in December 2017 on how to investigate non-ACM cladding systems on their buildings and remediate them. At the Secretary of State’s request, the expert panel reviewed and updated that guidance in December last year, and it reiterates that the clearest way to ensure safety is to remove any unsafe materials. We have commissioned the Building Research Establishment to conduct a programme of testing on non-ACM materials, and we expect that testing to start shortly.

[Ms Karen Buck (Westminster North) (Lab)]

Will the Minister confirm that however strongly worded the letters that he writes to property owners are, they have no legal status whatsoever, so those owners can legally ignore them? Given that, will he tell us what the timescale is for the decision on when he will proceed to legislation; exactly what factors he will bear in mind when he makes that decision; and at what point property owners will know that if they refuse to act, legal action will be taken to force them to do so?

[Kit Malthouse]

Whatever the status of the work that has been done by the Department and of the letters from the Secretary of State, it is bearing some fruit. A large number of companies have taken their responsibilities seriously and are now funding remediation, some of which is quite elderly, and they are doing it for all the right reasons. We are working on the group who have yet to acknowledge their responsibilities and are hopeful of more success on that. As far as legislation is concerned, the hon. Lady will know that just before Christmas we published the Hackitt implementation plan for consultation, along with several other calls for evidence and consultations. Once they are all in and completed, we will produce the legislative programme.

[Dr Matthew Offord (Hendon) (Con)]

The Minister has mentioned a number of small private developers and, indeed, individual freeholders, but will he write to me about Premier House in Edgware, to ensure that my local leaseholders and constituents do not have to foot the bill for the removal and replacement of materials that are considered dangerous? My constituents have already paid out thousands of pounds to their freeholder, a small independent developer. Although they are grateful for the Minister’s support, the leaseholders want legal clarity and certainty that they will not be forced to pay any additional moneys.

[Kit Malthouse]

My hon. Friend is quite right to raise the interests of his constituents. I am not aware of the particular situation, but I am more than happy to investigate and write to him, as he requests.

[Andy Slaughter (Hammersmith) (Lab)]

It is quite extraordinary that the Minister has just said that testing on non-ACM-clad buildings is about to start. There are around 340 high-rise buildings clad with non-ACM combustible materials, and more than 1,000 high-risk buildings. Will he guarantee, now, that those buildings—like Lakanal House, where six people died 10 years ago—will all be tested and treated in the same way as ACM-clad buildings?

[Kit Malthouse]

In considering what we should do about non-ACM cladding, we have been guided by the expert panel, which includes Dame Judith Hackitt, on how we should proceed, and we are proceeding on the panel’s best advice. As I said, we expect testing on non-ACM cladding to begin shortly, and the conclusions of that work will obviously colour what action is taken next.

[Kevin Foster (Torbay) (Con)]

The Minister and I share a local government background, particularly in relation to the fire service, so he will be aware of the importance of not only how regulations are set up but how they are enforced, and I am sure that he shares my concerns about the changes that were made a decade ago. As part of his review of building regulations, what consideration is he giving to ensuring that they are actually complied with?

[Kit Malthouse]

With his usual acuity, my hon. Friend puts his finger on an important point. As part of her review, Dame Judith Hackitt considered whether there is an inherent conflict of interest for those who are implementing buildings and paying for building regulation and therefore being inspected. That is one of the issues that we will explore with the industry. It is about how we can ensure professional standards and professional independence in safety-critical situations.

[Dame Louise Ellman (Liverpool, Riverside) (Lab/Co-op)]

I have previously raised in the Chamber the situation of my constituents in Heysmoor Heights in Liverpool. They live in a high-rise property owned by the offshore company Abacus Land 4. My constituents have already paid for replacement cladding. The situation in relation to insurance cover is completely confused: constituents were told that it was covered, but are now told that it is not. In view of the Minister’s commitment that private owners should not pass on the cost of replacement cladding to leaseholders, will he intervene in the case of Heysmoor Heights?

[Kit Malthouse]

I am more than happy to look into the specific situation and write to the hon. Lady once I have had a review from the Department.

[Mark Pawsey (Rugby) (Con)]

For a variety of reasons, local authorities with high-rise social housing are in the process of taking it down. That includes Rugby Borough Council, which is about to demolish two blocks at Biart Place, where there are structural concerns, and replace them with a larger number of conventional housing units. Does the Minister agree that this process should be accelerated?

[Kit Malthouse]

It is typical of my hon. Friend to fight for improvements for his constituents. I agree that for buildings built in the 1960s and ’70s—I do not know what period the buildings he refers to are—refurbishment often presents more challenges than demolishing and replacing them. In doing so, the consideration of a different formulation—including streets, squares, low rise and high density—may well be preferable to high rise.

[Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)]

Of course, grave fire risk is no respecter of boundaries within the UK. We heard a wee snippet from the hon. Member for Glasgow Central (Alison Thewliss) on what the Scottish Government are doing about this issue; dare I assume that Her Majesty’s Government and the devolved Administrations are communicating and co-ordinating to establish the safest possible regime throughout the United Kingdom?

[Kit Malthouse]

These are obviously devolved matters, but the hon. Gentleman should be reassured that, certainly in respect of my responsibilities in this country, we will leave no stone unturned and turn away advice from no one if they are getting it right. As I have said, we are currently going through a series of consultations to get this right. If the Scottish or, indeed, Welsh experience can inform our consultation on approved document B —the building regulations—I would be more than happy to consider it.

[Rushanara Ali (Bethnal Green and Bow) (Lab)]

The Minister tries to assure our constituents that they can sleep at night, but I remind him that when he was a London deputy Mayor making fire service cuts and shutting down fire stations, he also assured us that people could sleep at night. Subsequently, we had the Grenfell disaster. I respectfully ask him to take this matter very seriously, or he will not be able to sleep at night because of the prospect of people continuing to live in danger. There are 41 blocks in my constituency that need urgent action; he needs to legislate now.

[Kit Malthouse]

The hon. Lady is quite right to point out that I have spent a significant period in the frontline of public safety policy delivery. I like to think that my record in doing so, particularly on crime, speaks for itself. She will know that during my time at City hall as deputy Mayor for policing, we drove crimes, including teenage murder, down to 20-year lows. We did that by application, dedication and commitment, and I am giving exactly the same to this subject.

[Jack Dromey (Birmingham, Erdington) (Lab)]

Nineteen months on from the Grenfell tragedy and despite all the warm words, not one penny has been forthcoming from the Government to help Birmingham City Council make safe 213 tower blocks in which 10,000 households live. Now the Department has at last written to the council asking whether it has any other “sizeable building safety issues”. That is scandalous. When will the Government accept their responsibility and contribute towards the very significant cost being undertaken by the city council to ensure that our city’s tenants are safe?

[Kit Malthouse]

We have already made a very significant contribution towards supporting remediation in the social sector, and we have already allocated £248 million to remediate 135 buildings out of a fund of £400 million. We are still receiving bids from local authorities, and if Birmingham City Council can make the case, then, of course, we will support it.

[Mrs Madeleine Moon (Bridgend) (Lab)]

Rockwool is in the constituency of my hon. Friend the Member for Ogmore (Chris Elmore), but a number of its workforce live in Bridgend. They have come to see me to reiterate the concerns expressed by the hon. Member for Harrow East (Bob Blackman) that Rockwool’s product, which is fire resistant and has thermal and acoustic properties, is not being promoted in relation to the work that is ongoing. It is non-ACM. Why are we not looking at other products that could also enhance the retrofitting of buildings throughout the UK?

[Kit Malthouse]

I recognise the hon. Lady’s concern, but I am sure that she will agree that it is not for the Government to promote any particular product. The Government’s job is to set the framework in which those who are fundamentally responsible for building safety—that is those who build them and those who own them—are able to make the proper assessment of the safety of the products that they are using. It is quite obvious to everybody that the Grenfell Tower tragedy lifted a big flat rock on the building regulation system and showed that it has not functioned for some time across a number of Governments. We are trying to rectify that and to provide a framework in which developers, building owners and, critically, residents can be sure that the materials used to construct their homes are safe.

[Jim Fitzpatrick (Poplar and Limehouse) (Lab)]

One of the 42 blocks that was mentioned by the Minister is New Providence Wharf, which is owned by Ballymore in my constituency. He repeatedly says that there are measures under active consideration to get these owners to comply. When will we actually see what these measures are?

[Kit Malthouse]

The hon. Gentleman is quite right that the New Providence Wharf situation is one of those that is currently unresolved. We are engaged with Ballymore, which is the owner at the moment, and it is making the case that leaseholders should carry the cost. We have made it clear to it that that is not the case, and we will keep up the pressure and hope for a resolution soon.

[Diana Johnson (Kingston upon Hull North) (Lab)]

The Local Government Association says that it continues strongly to urge the Government to ban the use of any combustible materials on high-rise and high-risk buildings. Rockwool has been in touch with me about two buildings in Hull North: the Bransholme Health Centre and the Allam Medical Building. I am concerned to hear that these buildings have materials that are combustible and could be dangerous. Is the Minister concerned, as I am, about these type of buildings not being part of his proposed plan?

[Kit Malthouse]

I am, of course, concerned to hear that, and the hon. Lady will know that we introduced a complete ban on combustible materials on buildings over 18 metres just before Christmas. That ban is not retrospective. However, all building owners have a duty to ensure that their buildings are safe, and if they believe, after assessing their buildings, that they are not safe, they also have a duty to remediate. It is almost impossible for us, I guess, to tour the country and review every single circumstance, which is why we are stressing that the primary responsibility for this lies with the building owner. If she knows of buildings that she believes are not safe, and the building owner is not taking the action that is required, she should, in the first instance, speak to her local authority colleagues who have the power to intervene. If that fails then, by all means, write to me.

[Chris Elmore (Ogmore) (Lab)]

As has been mentioned, I represent Rockwool, which has its base in my constituency—the only base in the UK. The Minister says in answer to my hon. Friend the Member for Bridgend (Mrs Moon) that it is not Government’s job to legislate on the use of whichever materials a house builder may need and that is down to the house builder. I am sorry, but I do not agree with him. Ministers legislate all the time on health and safety matters. The reality is that we should not have combustible insulation inside tower blocks, hospitals or schools. The Government could legislate on that today for public safety.

[Kit Malthouse]

Perhaps I was not as clear as I should have been. The hon. Gentleman is quite right. We have banned combustible cladding, which includes insulation, from all high-rise buildings. Anything that forms the skin of the wall and is combustible is now banned for new buildings. The point that I was making to the hon. Member for Bridgend (Mrs Moon) is that it is not for us to legislate that a particular company’s product should be used. What we are in the process of doing is a review of approved document B. I urge both him and his constituents to contribute to the consultation on approved document B to make sure that we are getting the standards to which products must adhere right so that people within the industry can make a selection among products that they know have been tested correctly and are at the right standard to show that they are not combustible and can be used safely on high-rise buildings. That is exactly what we are trying to establish at the moment through the review and I urge him and all colleagues who have questioned me today to participate in that consultation.

Proxy Voting

Tuesday 22nd January 2019 Commons Chamber

13:16

[Jo Swinson (East Dunbartonshire) (LD) (Urgent Question)]

To ask the Leader of the House of Commons if she will make a statement on the obstacles to introducing proxy voting in Parliament.

[The Leader of the House of Commons (Andrea Leadsom)]

I am grateful for the opportunity to respond to this urgent question. I thank the hon. Member for East Dunbartonshire (Jo Swinson) for her question. I have great respect for her, particularly for her invaluable work on the steering group to establish the Independent Complaints and Grievance Policy. She has also been a strong voice on the issue of proxy voting and I know that many of us enjoyed seeing her in her place during the previous debate on this matter with baby Gabriel.

I am also delighted that the hon. Member for Hampstead and Kilburn (Tulip Siddiq) welcomed a new baby boy, Raphael, on Thursday. I am sure that the whole House will want to join me in sending our very best wishes. There are a number of Members right across the House who are expecting babies in the coming months and so I know that this matter is, quite rightly, of huge importance to many.

I profoundly believe that all new parents should be able to spend uninterrupted time with their new baby. That is vital both for the physical and mental wellbeing of parents and their babies. Working to give every baby the best start in life has been a passion of mine for many years, and during this time I have had the pleasure of working closely with many hon. and right hon. Members across the House.

I was delighted that the Prime Minister asked me to chair a cross-Government ministerial group in June to explore what more the Government can do to improve the cradle-to-grave effects that result from better support in this critical period of our lives. The group that I chair will make recommendations to relevant Secretaries of State on how the Government can improve the co-ordination and cost-effectiveness of early years family support, and identify gaps in available provision. I am delighted to be visiting Home Start and Sure Start in Manchester this Friday with the hon. Member for Manchester Central (Lucy Powell) to hear directly from parents about their experiences.

I assure the House that I am absolutely committed to making progress on the issue of proxy voting, and I am truly delighted to be able to confirm to the House today that a substantive motion on proxy leave in the case of maternity, paternity and adoption has been tabled today for the House’s agreement on Monday 28 January.

The motion I have tabled will largely follow the helpful recommendations set out in the Procedure Committee’s fifth report of the Session. It will facilitate baby leave for Members of Parliament and implement the House’s decision to agree to proxy voting in instances of baby leave.

The motion and Standing Order changes that I will table deviate in two minor ways from the drafting in the Procedure Committee report. First, the motion will provide for a pilot scheme of one year, with a formal review at the end of that by the Procedure Committee to ensure that it is working well. Secondly, for that reason, the Standing Order is temporary, and in agreement with the Clerks, the ability to make provision for proxy voting in so far as not provided for by the Standing Order was deemed unnecessary for the scheme to be fully workable. Those are the two minor changes.

This is a perfect example of how Parliament can work collaboratively to bring about important change, demonstrating the work of many colleagues from all parties, who have been determined to see this happen. This is a really positive moment for many colleagues across the House. There have been a number of constructive debates about this issue, and ultimately it is clear to me that the balance of opinion is that baby leave is a unique period of time and is crucial for new parents. This is a step forward, removing the choice between parliamentary and parental responsibilities and helping to make Parliament a more modern workplace.

I do hope that the House will be of the same opinion, and that it will fully support the motion next week to bring forward a pilot scheme for proxy voting.

[Mr Speaker]

Splendid.

[Jo Swinson]

First, I absolutely share in the congratulations that the Leader of the House is sending—I am sure from the whole House—to the hon. Member for Hampstead and Kilburn (Tulip Siddiq) on the birth of her gorgeous baby boy, Raphael.

I thought that things were pretty bad when, back in June in the heat wave, I was 10 days past my due date, but the Government’s response to the House’s instruction to introduce proxy voting gives a whole new meaning to the word overdue. In all seriousness, I congratulate the Leader of the House on her work and on getting to this stage; she is a genuine advocate. Those of us who have worked hard on this issue—the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the right hon. Member for Basingstoke (Mrs Miller) and those of us who have recently been pregnant or are currently pregnant—know from our meetings with the Leader of the House that she has been seriously helping to drive this initiative within Government, I am sure to her frustration at times, because she is committed to this issue. However, it is shameful that last week the hon. Member for Hampstead and Kilburn was put in the invidious position of having to make a choice—weighing up the potential health risks to her baby against whether her constituents could have their voice heard on the biggest issue of our time. Nobody should be put in such a position.

I would also say, for the record, that I think that it is disgusting that some have suggested that the hon. Lady was just trying to make a point. She was put in an impossible position and she made a choice. The judgment that comes from all corners of parents making choices like that, and all sorts of others, is out of order. We should respect the choice that she made.

Yes, the hon. Lady was offered a pair—that is what some people have said: “She was offered a pair.” but it is the Government’s fault that pairing is entirely discredited as a mechanism to enable pregnant MPs and new parents to discharge their responsibilities. I was nursing my two-week-old baby in July when I found out that the person I was paired with had voted anyway. He had not voted all day; he had voted in just the two Divisions that happened to be very close—one that the Government lost and one that they won. So forgive me if I am a bit sceptical about the assurances that we were given that that was a genuine mistake, because the result of the Chief Whip’s behaviour—as it then turned out, others had been asked to break their pairs too—was to cheat my constituents out of their voice on one of the biggest issues of our time: Brexit. So some Members of the Government—not the Leader of the House—have been dragged kicking and screaming to this position.

I also think we should put on record thanks to Esther Webber of The Times, whose article suggesting that it was the Chief Whip who was blocking this issue is, I suspect, not entirely unrelated to the date at which this announcement has been brought forward today, in response to this urgent question.

However, I ask the Leader of the House, why the delay? It has been nearly a year—five babies born; three more on the way. Does she appreciate the appalling message that that sends out about maternity rights? Fifty-four thousand women a year lose their jobs because of pregnancy and maternity discrimination, and the Government’s response has been completely inadequate. The charade that we have seen in this House just underlines that message.

The baby son of the hon. Member for Hampstead and Kilburn is five days old. We in law do not allow new mothers to work for two weeks after their baby is born, which is why I am delighted that the Leader of the House says that the House will discuss this issue on Monday. May I ask her some practical questions? Will the motion have time allocated to it, so that it is not possible for a single voice to shout “Object!” and stop the debate happening? What discussions has she had with the Speaker’s Office to make sure that all the preparatory work is done, and that a scheme is in place, so that if the House approves the motion on Monday, the scheme can be in place on Tuesday?

Of course, that does not get round the issue of the voice of the hon. Member for Hampstead and Kilburn being heard on Monday for that vote. Perhaps the Leader of the House might like to suggest a pair for the hon. Lady on Monday evening—I do not know what the hon. Member for Shipley (Philip Davies) is doing then, but somebody like him may well appreciate having the night off.

We have waited long enough for this change. Modernising the House of Commons is a slow and laborious process—frankly, it is often quite like childbirth—so let us get on with it. I hope that on Monday night I will walk through the Lobby with the Mother of the House, the Leader of the House and many modernising MPs from all parties to get this done.

[Andrea Leadsom]

I say again that I consider the hon. Lady to be a friend and I entirely understand her frustration. I will respond to her questions in turn.

First, the hon. Lady talks about the hon. Member for Hampstead and Kilburn (Tulip Siddiq). As I said in business questions last Thursday, the hon. Member for Hampstead and Kilburn was offered a pair. She has also received an invitation to be nodded through should she wish her vote to be recorded. That would obviously require her to come to this place at some point during the day before the vote, when her name would be recorded; but in the meantime, she is invited to have a pair. I understand that she had a pair yesterday.

As the hon. Member for East Dunbartonshire (Jo Swinson) knows, until proxy voting is in place, that remains the way in which those with illnesses and those having parental leave are accommodated. She will also be aware, as was said at the time, that the breaking of the pair in her case on, I believe, 17 July was done entirely in error. My right hon. Friend the Member for Great Yarmouth (Brandon Lewis) apologised directly to her, as did my right hon. Friend the Chief Whip on behalf of the Whips Office. I apologise to the House again, but I can assure all Members that it is intended that a pair be provided for the hon. Member for Hampstead and Kilburn should she wish it, as was the case yesterday.

The hon. Member for East Dunbartonshire asks about the delay. She will appreciate that this is a fundamental break with the past in this House. She will also appreciate that I wrote to the Procedure Committee in November 2017, asking it to look into this matter, because it was a significant change for the House, and the Committee raised a number of issues that needed resolution. For example, when should a proxy be used? Could it be just for Government business? Should it be for private business? Should it be for a closure motion? Should it be for life-or-death decisions only? Those were very important questions. Also, who should offer the proxy? Who should be the proxy? Who should provide that role, and what sort of consequences does that offer for the individual who may be voting against their conscience on behalf of another Member? Finally, there is the question of whether proxy should be used only for those on baby leave rather than for those who are ill or who have other priorities.

Those were significant questions and I understand the hon. Lady’s frustration at the time it is taking, but we have had a number of very constructive debates, and I believe that we have concluded that the issue of baby leave is unique, and therefore should have priority. That is why I am able to bring this forward today.

Finally, with the breaking of pairs, I totally understand that in the hon. Lady’s case that was extremely regrettable, but she will appreciate that, as an informal system, there are a number of problems with the administration of pairs. I would very gently point out to her that five Liberal Democrat MPs—almost half of the party’s MPs—have broken their pairs in this Parliament alone. It is not unique to the Government side; a number of pairs have been broken through genuine errors. All hon. Members need to consider the fact that there is a strong commitment to making the informal pairing arrangement work as well as it possibly can.

[Mr Speaker]

I thank the Leader of the House for what she has said. The hon. Member for East Dunbartonshire (Jo Swinson) also asked what discussions the Leader of the House had had with my office, to which the answer is that the Leader of the House and I have discussed this matter from time to time. I have made extremely clear privately, as I have made extremely clear publicly, my desire for progressive change and my impatience with its absence. More particularly, what I would like to say to the hon. Lady and for the benefit of the House is this: I can assure colleagues that if and when the House agrees to the necessary resolution and Standing Order, I will ensure that I have a scheme ready to be activated, so that Members can rapidly—indeed, I think instantly—apply for a proxy vote, and their nominated proxy can then cast that vote the next day. I think colleagues will agree that that is crystal clear.

[Mrs Maria Miller (Basingstoke) (Con)]

I thank my right hon. Friend the Leader of the House not only for her statement but for her personal commitment to supporting, in particular, pregnant and new mothers—and new fathers—in Parliament. I fully support what she has outlined today. She talked about modernising the workplace. Proxy voting is only one aspect of modernising this, frankly, prehistoric workplace in Parliament. So many aspects of Parliament need modernisation, and change, as this issue has shown, is far too slow and fragmented. Where does responsibility for driving forward that change lie? I know that it does not lie with the Government.

[Andrea Leadsom]

I am grateful to my right hon. Friend for her comment and question. I completely agree with her. Many of us—if not all of us—across this House want Parliament to be a more family-friendly place. There have been a huge number of efforts, including by you, Mr Speaker, and by right hon. and hon. Members across the House to change the sitting hours to make them more family-friendly, for example. There are now better childcare facilities on the estate. There is a greater use of technology to make it easier to go about our jobs. We have done a huge amount of work, with cross-party collaboration, to bring in a new behaviour code and a new complaints procedure to make people feel that they can be treated with the dignity and respect that everybody deserves in this place. There is a huge amount more to do. I am committed to working with colleagues to make more progress. My right hon. Friend and I met only yesterday to talk about what more we can do, cross-party, to try to ensure that we have a more family-friendly Parliament that encourages people from all walks of life to want to come here and take up a role representing their constituents.

[Mr Speaker]

The responsibility is shared, but on a point of fact, as I suspect the right hon. Member for Basingstoke (Mrs Miller) knows, responsibility on this matter was manifestly and incontrovertibly that of the Government, as the Procedure Committee recognised. That responsibility has been discharged today by the Leader of the House, and I thank her for it. It is very important that we proceed on the basis of factual knowledge and not of misguided perception.

[Valerie Vaz (Walsall South) (Lab)]

I thank the Leader of the House for her response and congratulate the hon. Member for East Dunbartonshire (Jo Swinson) on securing this urgent question. I think Andrew is the only one of her family not to be in the Chamber. Thank you for granting the urgent question, Mr Speaker, because it has allowed us to get some further information.

It seems that it is not only the Prime Minister who returns frequently to this House and tells us that nothing has changed. It must be catching, as we have been promised yet a further debate. This is the second urgent question on proxy voting for baby leave in the space of six months, the last being on 18 July 2018 in the wake of the shameful events when a pair was deliberately broken by a Government Minister. The Leader of the House honoured her promise of a debate on 13 September. We have had two debates, and yet no further progress, despite there being broad agreement, and the will of the House being known, on the principle of proxy voting for baby leave. This House is debating and voting on one of the most significant issues that this country has faced, and yet last week a Member who was heavily pregnant, but who wanted her vote counted and recorded to fulfil her duties to her constituents, had no other option but to come to the House. It is time that we ensured that this is a modern workplace with modern employment practices for those with baby leave.

I know that the Leader of the House wants urgently to find a way forward and is not the block in the Government to these reforms. Today we hear about the Prime Minister of New Zealand—she knows that there is a work-life balance, even in that position. Everyone can find a way. Both Australia and New Zealand have a system, so there is absolutely no reason why we cannot look at those precedents and come up with our own solution.

I welcome the fact that the Leader of the House has announced not just a motion but a debate. Will it be on a voteable motion? Will there be time for amendments? For how long will the debate take place? Why, given the paucity of the Government’s parliamentary agenda, can the Leader of the House not secure sufficient Government time? She has not actually said how long the debate will be and whether it is on a voteable motion. Will she say, in response to the question by the hon. Member for East Dunbartonshire and to mine, whether we can vote and whether this principle will be secured by a vote on Monday?



As I set out from the Dispatch Box on 18 July and 13 September, Her Majesty’s Opposition—the Labour party—support the principle of proxy voting for baby leave. As I have repeatedly set out, there is a way that baby leave can be introduced today, without the need for a debate, through public agreement by all the parties to nod through those on baby leave for every Division. As I mentioned in a previous debate, there is a way that we could ensure that those voting by this means are denoted with a star. I even offered the idea of a baby emoji—I am sure that someone will come up with that. That will give full transparency to the public as to how Members have voted.

On 13 September, I asked about the evidence that the Leader of the House was going to take. She said that she wanted to take evidence on unintended consequences and various other issues. Has she taken this evidence? When will she report back to the House on it? Could she share that evidence with the House, and at least with the Chair of the Procedure Committee, who is in his place? As I offered on 18 July, will she agree to meet me today to discuss this?

It is vital that we are a modern workplace—that those on baby leave can have their vote recorded and take part in our proceedings as they are elected to do. I appreciate that the Government are putting forward the motion, but it does not guarantee any time for us to debate or give Members a vote to decide on this matter once and for all. Will the Leader of the House please be clear on that? We need to make this Parliament the modern, progressive and equal Parliament that we all want to achieve.

[Andrea Leadsom]

Well, I do not quite know where to start, because the hon. Lady will be aware that, as I have just made quite clear, Members can be nodded through if they request that. If they come to this place, their name can be recorded. They can, equally, request a pair. So she is pointing out something that is self-evident. On her other point, proxy voting does require a motion of this House, so she is actually not correct to say that people can just be offered a proxy vote as of today. That would be to undermine the right of this House to take decisions on its own procedures.

The hon. Lady asks if there will be a debate and a vote. I thought I had made it clear, but perhaps not, that, as I mentioned in my remarks, the motion that I have tabled today will enable the House to take a decision on Monday on whether it wishes to accept the Procedure Committee’s report, as amended, or not. So it will not be a further debate, as she says. We have had a number of debates.

As I also thought I had made clear, the evidence I took was on issues such as what sorts of motions should be eligible for proxy voting, who the proxy vote should be made by, and what sorts of circumstances should merit a proxy vote.

Finally, the hon. Lady asks if I will meet her today. If she looks in her diary, she will see that we are supposed to be meeting this afternoon.

[Andrea Jenkyns (Morley and Outwood) (Con)]

I welcome the Leader of the House’s statement to the House today. I fully support proxy voting. In my experience of having a baby while being an MP, the guilt that you feel, as a mum to a newborn, about having to drag a three-week-old baby across the country is immense. I lost count of the number of times I was called at the last minute to come and vote. I recall one occasion when I jumped on a train, baby in tow, voted, and got back to Yorkshire at 11 o’clock at night, only to receive a call saying that I needed to be back the next day. So I know that feeling of guilt and I am pleased that the Leader of the House mentioned the emotional impact on a new mum as well. We already have a fantastic nursery in Parliament that my little son, Clifford, attends. I understand that that was a pet project of Mr Speaker, so I welcome his bringing that to the House. Does my right hon. Friend agree that proxy voting will safeguard this precious mummy and baby bonding time?

[Andrea Leadsom]

I certainly love looking at my hon. Friend’s Facebook photos of little Clifford. It is great to feel that we get to see him a bit even though he is not often in the Chamber. Yes, I completely agree with her. What proxy voting will do for this place is to enable parents to have that precious bonding time with their new babies.

[Pete Wishart (Perth and North Perthshire) (SNP)]

I thank the hon. Member for East Dunbartonshire (Jo Swinson) for securing what has turned out to be a fruitful urgent question. I very much welcome the Leader of the House’s commitment to ensure that we have the motion on Monday. It has been a long time coming, but I think we are going to get there at last. This episode has been profoundly embarrassing for the Government; I do not know whether the Leader of the House shares that embarrassment. I do not know whether it was the Whips Office trying to block this, but I will take the Government at their word. I welcome you saying, Mr Speaker, that if the motion is passed, proxy voting will be available the day after to Members of the House of Commons. Perhaps the Leader of the House can ensure that that is the case.

What happened to the hon. Member for Hampstead and Kilburn (Tulip Siddiq) shocked the country. Our constituents could not believe that in the place where we design the legislation that deals with safety at work, we were prepared to put one of our colleagues at such risk. Our 19th-century method of voting has totally and utterly failed. The discredited “nod and wink” pairing system is in tatters and lies in disrepute. It has relied on trust, and clearly that trust has been thoroughly and fundamentally broken by what happened to the hon. Member for East Dunbartonshire.

The Scottish National party never believed in that system or trusted it. I am glad that we have been totally vindicated for never participating in pairing. As the right hon. Member for Basingstoke (Mrs Miller), who chairs the Women and Equalities Committee, said, we have to do more to modernise this place. This is a good start, but it is only a start. We have to start to ensure that we look after people in this House who are ill, indisposed or cannot make it to this place of work. We have to start looking at the practice of putting people in cramped Division Lobbies, at risk to their own health. Many of us heard my hon. Friend the Member for Motherwell and Wishaw (Marion Fellows) talking about her claustrophobia in the packed Lobby last Tuesday. We have to get beyond that. We have to start making sure that this place looks like a modern, 21st-century Parliament.

This is good news, and I welcome it. I look forward to discussing this later with the Leader of the House, when we will hopefully get a clear indication about how this will be done. This is good work, but there is more to be done. Let us get a move on and make sure that this place is safe for the people who come to work here.

[Andrea Leadsom]

I am sure that the hon. Gentleman is taking this matter up with the Scottish Parliament, which also has informal pairing arrangements. I am interested to know what steps he is taking to ensure that it comes into the 21st century at the same rate as the Westminster Parliament.

The hon. Gentleman asked about the situation for the hon. Member for Hampstead and Kilburn (Tulip Siddiq). I can confirm that a pair is available for her, or, if she is on site during the day at any point before the vote, she will be nodded through, which means her vote will be recorded. That is the existing arrangement for those who cannot be here due to illness or other reasons. As I said last Thursday, I genuinely do not believe that any of her constituents would honestly require her to turn up here in a wheelchair when it was perfectly possible to receive the normal arrangements for people in this place with conditions. Members with long-term health issues were paired on that day.

I am genuinely delighted that we are making progress on this issue, but I urge all Members to recognise that we had 13 years of a Labour Government, with three female Leaders of the House, and we have had two Liberal Democrat Deputy Leaders of the House, and I do not believe that any of them brought in proxy voting. The Scottish Parliament has not brought in proxy voting.

Let us pause and have a moment of celebration. We are achieving something truly fantastic—[Interruption.] The hon. Member for Walsall South (Valerie Vaz) shouts that this is not my idea. I am certainly not claiming credit for it. I am asking Members to celebrate the House’s achievement and what we can do when we get together and collaborate.

[Mr Charles Walker (Broxbourne) (Con)]

Mr Speaker, I am certainly celebrating the House’s achievement, just as I am celebrating seeing you break into a smile at the same time as the Leader of the House—it was like a parting of the clouds. You should try to do it more often; you work quite well together.

I thank the Leader of the House and the shadow Leader of the House for closely involving the Procedure Committee in their work. This is good news. As Chairman of the Procedure Committee, I would particularly like to thank the Committee’s members for bringing forward a really good report that seems to have the House’s support.

[Mr Speaker]

I want to say—I do not think this is a divisible proposition—that the hon. Gentleman is an all-round wonderful human being.

[Andrea Leadsom]

I find myself entirely agreeing with you on that point, Mr Speaker. I thank my hon. Friend for the excellent and timely work of the Procedure Committee, which has provided a way forward on which I sincerely hope the House will agree on Monday.

[Mr Speaker]

Colleagues, there is a piquancy about the fact that, as we have been debating this important matter, a large number of children and young people have been observing our proceedings. Until a matter of moments ago, to boot, there was a young man up in the Gallery clutching a little baby—[Interruption.] Apparently, it was the baby of the hon. Member for Lancaster and Fleetwood (Cat Smith)—[Interruption.] Ah, on cue! We are grateful to him.

Those watching our proceedings will be pleased to know that the next Member to be called is the person who has done more to champion women and equality in this House than anyone any of us can recall: the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the Mother of the House, elected on 28 October 1982 and still in service here.

[Ms Harriet Harman (Camberwell and Peckham) (Lab)]

Thank you for your kind words, Mr Speaker, but this has been a collective endeavour. First, I would like to pay tribute to the hon. Member for East Dunbartonshire (Jo Swinson), who has been a champion of this for pressing reasons and reasons of principle. I thank her for securing this urgent question, and thank you for granting it, Mr Speaker. You have always been on the side of progress in respect of parents. As the hon. Member for Morley and Outwood (Andrea Jenkyns) said, you were a champion of the crèche here, and she explained why this measure is so necessary.

We must also thank the Procedure Committee and its Chair. As soon as the House passed the motion, the Committee cracked on with it and did a thorough and excellent job. Who knew how exciting the Procedure Committee was? I also pay tribute to the right hon. Member for Basingstoke (Mrs Miller). This is me railing ineffectively, but she had the idea that we should go to the Backbench Business Committee, to enable the Chamber to debate it. I thank the Committee for its role.

It is 31 years too late for me, but I am delighted about this, because it is really important. There are many babies of Members on both sides of the House in the offing. They are blissfully unaware of the Brexit debate, but these Brexit babies cannot wait, so I am delighted that we are getting on with it.

Finally, I pay tribute to the Leader of the House, who I am in no doubt has always been on the right side of the argument. I point out that I, too, was Leader of the House, and I failed to get this through. Whoever succeeds in these long decades of progress and these baby steps into the 21st century, all power to your elbow.

[Andrea Leadsom]

Of course, the right hon. and learned Lady’s baby steps in her day would now be teenage. She demonstrates what a wonderful Mother of the House she is by being so collegiate. I share her delight that this has been a cross-House effort and that we have got to the point where we can take this forward, which will be great news for all those babies. The Parliamentary Secretary, Cabinet Office, my hon. Friend the Member for Norwich North (Chloe Smith), is sitting beside me with her youngster kicking away, obviously signalling some approval.

[Vicky Ford (Chelmsford) (Con)]

As chair of the all-party parliamentary group on women in Parliament, I want to say a great big thank you for this step forward. I would like to see more women in this Parliament, and it is the women who are, biologically speaking, more likely to need to take maternity leave.

As someone who served in a Parliament for eight years that did not have any proxy voting or pairing and who saw women have to fly all across Europe to vote, I urge colleagues not to throw away the pairing system. Pairing offers flexibility, especially if somebody is unwell or has an urgent family matter. It is a really useful system. It needs to be more robust. Let us respect it and keep that option on the table.

[Andrea Leadsom]

My hon. Friend is exactly right; pairing has its uses. It is important that any parent on baby leave can choose to have either a proxy vote or be paired, if, for reasons of ill health or reasons associated with being a new parent, they do not feel in a position to make that decision. It is very important that they have the choice.

[Caroline Lucas (Brighton, Pavilion) (Green)]

I join others in very much welcoming this important motion and the important step that is being taken. In the interests of keeping up momentum on the issue of reform, does the Leader of the House agree that, although this is a first step, what we really need in order to bring Parliament into the 21st century is electronic voting for all? I wonder whether she might explore that option.

May I ask the Leader of the House one question about the motion? I am sorry, but I have not had a chance to look at it yet. I know the Procedure Committee has suggested that there may be some exceptions where proxy voting would not be suitable in its view—for example, a decision on military conflict. I do not think I agree with it about that, but I am interested to know whether that is attached to the pilot that she is proposing.

[Andrea Leadsom]

I can say to the hon. Lady that this is a temporary Standing Order, and it follows the Procedure Committee’s view. I do not want to get this wrong: I know it will not apply to a closure motion, but it will apply to Government and private Members’ business. I suggest that the hon. Lady looks carefully at the Procedure Committee’s report for the finer details of exactly what is included and excluded.

The hon. Lady will obviously appreciate that the reason for making it a temporary Standing Order is so that the Procedure Committee can look at it after a year and decide, in hindsight, whether it is appropriate in scope, who gets to use it and who provides the proxy. In having such a pilot scheme, we will be able to address any residual concerns about its operation.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

As many hon. Friends have said, people may wish to have a pair for other reasons, such as ill health or bereavement. The pairing system and its robustness seem to be in doubt, with an hon. Member coming in because they could not trust the pairing system, which is something none of us wishes to see. Will my right hon. Friend look at making this more robust, perhaps by ensuring that pairs are lodged in writing in advance—with you, Mr Speaker, the Leader of the House or whoever is thought to be appropriate—such that if someone votes in error, their vote can be discounted, thus restoring faith in the pairing system?

[Andrea Leadsom]

I think my hon. Friend makes a very constructive suggestion, and I will of course discuss it with other business managers. However, she will appreciate that the pairing arrangements are informal arrangements to accommodate people with a sudden need to be absent and so on. Therefore, as I said in answer to a previous question, there are occasions where the administration of them can break down. This is an extremely difficult thing to be absolutely 100% robust, but I know that the business managers are absolutely committed to making it as robust and reliable as they possibly can.

[Cat Smith (Lancaster and Fleetwood) (Lab)]

It is a pleasure to be back in the House and to be speaking because, as is quite topical in this discussion, I have just returned from six months away from this place to spend time with my new baby, Eli, who is up in the Public Gallery with my husband, Eli’s dad, Ben. I just want to thank the Government for honouring the pairing arrangements that they gave me during my six months’ leave. I feel I need to say that because that was not always honoured for all my fellow MPs who were also having babies around the same time.

Much has been said about pairing, and I want to put on the record that, while I thank the Government for honouring my pair, I would much rather have had the opportunity to vote—to vote by proxy—perhaps giving my vote to the MP for a neighbouring or nearby constituency who could cast my vote on my behalf, because I was at home and I was following what was going on on BBC Parliament. I remember watching the debate in September, sitting, with baby Eli on my lap, just as my hon. Friend the Member for Hampstead and Kilburn (Tulip Siddiq) is doing right now. Today, she is watching this on BBC Parliament, with baby Raphael, and she knows what is going on, so if there were to be a Division, she could cast her vote.

I stress to the Leader of the House how important it is that proxy voting goes ahead, because I do not think that pairing alone really brings Parliament into what, let us be honest, is the mid-20th century in terms of workplace rights. If we want to get into the 21st century, we have much further to go as a House.

[Andrea Leadsom]

May I welcome Eli and welcome the hon. Lady back to the House? It is great to see her in her place. I completely understand and empathise with what she is saying, and I am delighted that we are bringing forward this motion.

[Rachel Maclean (Redditch) (Con)]

It is absolutely fantastic news that the House has come together to look at these much-needed changes. I pay tribute to my colleagues all across the House who have spoken about their experiences. My children are too old for this to be an issue for me. In my former life, before coming here, I was a human resources director, and I was the person responsible for writing policies. I say to the Leader of the House that I know how difficult it is to be in the position of writing such a policy—we all have the right intentions, but sometimes there are unintended consequences and all sorts of things that we have never thought about. Please will she pay great attention to the pilot study, with the input of the Procedure Committee and everybody from across the House, so that we get a sustainable, long-term solution?

[Andrea Leadsom]

My hon. Friend is absolutely right to raise the importance of making sure that this is correct. That is why it is a pilot scheme for one year. I am confident that the Procedure Committee will do its job in making sure that we review all the positives and negatives during that period.

[Emma Reynolds (Wolverhampton North East) (Lab)]

I would like to put on the record my thanks to you, Mr Speaker, for your personal commitment to the introduction of proxy voting, as well as to the cross-party effort and, of course, to the Mother of the House for pushing this with the passion with which she always pushes quality issues. Thanks so much to the Leader of the House for laying this motion on Monday.

To reiterate what we have already heard in this debate, I want to say from personal experience that pairing may be an option that people want to choose, but for me it was not enough, because my reputation was questioned in a newspaper in relation to why was I not here and why I had the second worst voting record in this Parliament. I want to say to the Leader of the House that the reason why what she is going to do on Monday by laying the motion is so important—I hope we can get on with using this on Tuesday—is that Members should be able to have babies and have their vote registered. That is why proxy voting is such a massive step in the right direction.

[Andrea Leadsom]

I totally agree with the hon. Lady. I know that, in response to her raising this same issue during the debate we had a couple of months ago, the theyworkforyou.com website agreed to change what it was putting on its website about MPs who are on pairing arrangements because of maternity leave, so that it did not indicate that they were incredibly lazy. All of us expressed our disgust at the way she was treated in the press over that. It was a clear misunderstanding, and I hope that the new arrangements will ensure that will not happen in the future.

[Sir David Evennett (Bexleyheath and Crayford) (Con)]

I am pleased to support the comments of the right hon. and learned Member for Camberwell and Peckham (Ms Harman) and my hon. Friend the Member for Broxbourne (Mr Walker), the Chairman of the Procedure Committee, on which I am privileged to serve. I welcome the Leader of the House’s response today, and I thank her for all the work she has done on this important issue. Today is good news indeed. Does she agree that this place has to keep pace with the modern world and that proxy voting will certainly help with this, although there is much more to be done?

[Andrea Leadsom]

My right hon. Friend is absolutely right. I know he did a job share with one of our hon. Friends who was on maternity leave, and it was very good of him to do that. I think all hon. Members are committed to dragging us into the 21st century, and it is quite right that we do that.

[Ellie Reeves (Lewisham West and Penge) (Lab)]

Last year saw a whole range of events in Parliament to mark the centenary of some women getting the right to vote, and this year marks 100 years since the first woman took her seat in Parliament. I was really proud to take part in a lot of those events last year, and I know a lot of progress has been made. Other Members have mentioned the House of Commons nursery, which enabled me to put myself forward for Parliament. I have placed on record my thanks to those who made that happen, particularly you, Mr Speaker. However, when we talk about wanting to have a more diverse Parliament and we have things such as the nursery, is it not a contradiction that we have not yet introduced proxy voting? Does the Leader of the House agree that it is long overdue, and that if we want to break down barriers to women entering Parliament, we do need to take this very swift action?

[Andrea Leadsom]

I completely agree with the hon. Lady, and that is why we are doing so on Monday.

[Dr Julian Lewis (New Forest East) (Con)]

May I perhaps surprise you, Mr Speaker, by suggesting that I think this does not go far enough? I think that if this pilot scheme succeeds, as I hope and believe it will, it will probably pretty soon be extended to people who are unwell, because there are very strong arguments that people who are ill should be able to have a proxy for the same sort of reasoning that correctly underlies this one. However, does the Leader of the House agree that any move to something like electronic voting would be a retrograde step? The reason why we vote in person—there are many reasons why, but one of the principal ones—is that we can get hold of a lot of colleagues, principally Ministers or shadow Ministers, at the same time in the same place every day. That is the reason why we would be cutting our own throats as Back Benchers if we were simply prepared to press a button and leave it at that. Let us do this for the categories that need it, but preserve the rights of Back Benchers to be able to nobble Ministers in the Lobbies, because that is what they need.

[Andrea Leadsom]

My right hon. Friend demonstrates perfectly why some debate was needed before we decided to limit the proposal to baby leave and have a one-year pilot. Some Members argue that proxy voting should have a broader reach and include those who are ill or otherwise incapacitated. Clearly there are different views on how we vote, but those are for another day.

[Several hon. Members rose—]

[Mr Speaker]

I do not wish to promote sibling rivalry, so I call Rachel Reeves.

[Rachel Reeves (Leeds West) (Lab)]

I am the older sister, yet I have been called second today—we will be having words later, Mr Speaker.

I too thank the hon. Member for East Dunbartonshire (Jo Swinson) for asking this urgent question, and the Leader of the House for answering it. May I just check the procedure for Monday? Is the intention to table a motion that we can vote on, or will it be introduced at the end of the day, in which case there is a risk that one Member will shout “Object” and stop the proposal going through? I know that the Leader of the House is trying to do the right thing, but we are all keen to ensure that we have proxy voting in place by the end of Monday.

[Andrea Leadsom]

Having had three kids, I have discovered a very useful piece of information, which I wish now to share with the hon. Lady: the oldest child makes the rules, the second child is the reason the rules are needed, and to the third child the rules do not apply. She is absolutely right to raise this issue. We have debated proxy voting a number of times and want to get on with it, so the plan is to bring it forward for the House to nod through. She is therefore quite right that if somebody objects, I will need to look at further measures, which I will do in very short order. This is the quickest way to get it through. Following that, as you have said, Mr Speaker, you will ensure that the detailed procedures are ready immediately thereafter. That will then need to be signed off by you, the Prime Minister, the Leader of the Opposition and the leader of the Scottish National party’s Westminster team. Once those signatures have been received, it will be possible for proxy voting to take place on the next sitting day.

[Mr Speaker]

I thank the Leader of the House for that useful clarification. For the avoidance of doubt, if it is necessary for me to trog around the offices of the individual party leaders in order to secure those signatures, I shall be happy to do so.

[Chris Bryant (Rhondda) (Lab)]

Trog?

[Mr Speaker]

Well, toddle then.

[Douglas Ross (Moray) (Con)]

I wish you well in your toddling endeavours, Mr Speaker, although I hope that is not necessary. I associate myself with everything the hon. Member for East Dunbartonshire (Jo Swinson) said and welcome the excellent announcement by the Leader of the House. I declare an interest, as my wife and I are expecting our first child in just over six weeks’ time, so I might be making an early application. With regard to the one-year trial, how will that work ahead of a birth? I am keen to take advantage of proxy voting post birth, but for those of us who represent constituencies far from London—if I am in the Chamber after 5 pm, I cannot physically get back to Moray until about noon the following day—will there be an opportunity not only to share the first few days of their child’s life, but to be there for the birth?

[Andrea Leadsom]

I am happy to discuss this with my hon. Friend in more detail, but the idea is that the normal rule will apply so that the two weeks of parental leave for fathers under proxy voting would be available from the birth. However, there is equally an expectation that it might be necessary to take that at another time, so that can also be facilitated, under the terms of the Procedure Committee’s report, which I encourage him to look at in detail. He and I can then discuss the matter further.

[Jess Phillips (Birmingham, Yardley) (Lab)]

I am thrilled and associate myself with all the thanks to all the people who have already been thanked many times, including the Leader of the House. I am certain that someone will try to object on Monday, so I am going to drop what has been quite a pleasant and collegiate discussion so far. Would she like to join me in warning that I will personally make a misery of the lives of anyone who comes in here on Monday and objects, based on their patriarchal, paternalistic, draconian and old-fashioned sensibilities? What does she think is the likelihood of this getting through on Monday? I would also like to say that it will not just be me making their lives a misery; it will be me and my feminist army.

[Andrea Leadsom]

What I can say to the hon. Lady is that I absolutely believe her—I do not think anyone would doubt her for a moment. Anyone who is even considering objecting should beware.

[Sir Greg Knight (East Yorkshire) (Con)]

I welcome this statement. Does the Leader of the House agree that it is right that the absent Member should choose the name of their proxy, rather than the Whips, and that they should have an absolute right to change that name upon giving written notice that they wish to do so?

[Andrea Leadsom]

My right hon. Friend makes a very good point, and that is indeed the intention.

[Alison Thewliss (Glasgow Central) (SNP)]

I am pleased to subscribe to the feminist army of the hon. Member for Birmingham, Yardley (Jess Phillips); I will be a proud member and glad to serve. Will the Leader of the House confirm that if somebody does shout “Object” on Monday, the motion will fall? It is unacceptable that one male Member of this House can override the overwhelming will of everybody else in this place just to get their own way, and on an issue that will not even affect them. Will she give that serious consideration? What will she do to ensure that such Members do not play silly games on Monday night, given that babies are expected sooner rather than later in this place? What else will she do to implement the findings of Professor Sarah Childs’s report “The Good Parliament”, which has been far too long in the implementing?

[Andrea Leadsom]

As the hon. Lady will know, it is for individual Members to examine their consciences and act accordingly. I sincerely hope that all hon. Members will support the motion. It is clear that there is huge support for it across the House. As I have said, in the event that somebody does object, I will look in very short order at what I need to do to bring it back again for the House to reconsider. With regard to Sarah Childs’s report, the hon. Lady will be aware that these matters are not entirely for the Leader of the House: they are matters for the House, and the Commons reference group is a cross-party group. I am always keen to hear from right hon. and hon. Members and would be delighted to discuss it further with her.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

I hope that I can be counted as a member of the feminist army of my hon. Friend the Member for Birmingham, Yardley (Jess Phillips). When I entered the House in 1979, it was a horrible place to have a family. We had about 19 women MPs and it was totally family-unfriendly. It was miserable. I have a large family. As the House will know, I have three daughters and a son—we had four daughters but lost one—and now many grandchildren, four of whom are granddaughters. When I was a young MP, this place was chauvinist and the atmosphere was both undemocratic and unsupportive of those with families. I am just thankful that an army of women came into this place. I remember the dramatic change in 1997, when more women came in than ever before, and they transformed this miserable place into something democratic and warming, and made it a lovely place to come to work. People forget how the arrival of those women not only transformed our democracy but made our politics more pleasant, and I want to put that on the record. I also want to say that I saw a lot of Speakers who could not have cared less about families, women or equality, but you have championed this, Mr Speaker, and I salute you.

[Andrea Leadsom]

I think that the whole House enjoyed and concurred with the hon. Gentleman’s remarks. He does a very good job of showing himself to be a feminist, and those of us who join that brand of feminist determined to make the House a more modern place welcome his views with open arms.

[Diana Johnson (Kingston upon Hull North) (Lab)]

Today is a good day at the office. Although we are taking a small step forward, it is important. I want to push the Leader of the House a little further on the point that the right hon. Member for New Forest East (Dr Lewis) made about whether, after the pilot of a year, other groups may be considered suitable for proxy voting. I think particularly of people who are seriously ill, perhaps with cancer, and undergoing treatment but who want to register their vote in the House. During the pilot year, could work be done on that, ready for the end of the pilot, to see whether proxy voting needs to be extended further?

[Andrea Leadsom]

The hon. Lady raises an important point. As we have discussed in the two debates and several urgent questions on this in recent months, some people believe that proxy voting should be extended, but nevertheless, there is cross-House agreement that the pilot should be restricted to baby leave, which covers a critical and unique period of life. However, I agree that, once the Procedure Committee’s review is under way, we should consider whether other matters should be included.

[Tom Brake (Carshalton and Wallington) (LD)]

I welcome the Leader of the House’s statement. It starts to reduce the perception that the mother of Parliaments is frozen in time, although of course, if a Member shouts “Object” on Monday, that perception will be reinforced. Will she join me and others in all parties who campaign for other reforms, such as ensuring that there is adequate seating in the Chamber for all Members, electronic voting and, indeed, job sharing for Members of Parliament?

[Andrea Leadsom]

I am always interested to hear hon. Members’ views. I would be happy to discuss that with the right hon. Gentleman, but he will realise that such change would require the whole House to concur with his ideas for reform.

[Chris Elmore (Ogmore) (Lab)]

I know that the Leader of the House wants proxy voting to happen. I am a member of the Procedure Committee and I say to all Members that procedure is fun—never more so than in recent months.

[Chris Bryant]

You’re sad!

[Chris Elmore]

Indeed, I am sad.

I ask the Leader of the House, in all sincerity, if, as I fear and perhaps she fears, the proposal does not go through on the nod on Monday, how soon will she bring back a substantive motion with a vote? The following day, we are expecting votes on Brexit legislation, which means that my hon. Friend the Member for Hampstead and Kilburn (Tulip Siddiq), who has a new-born baby, could lose out again. I am sure that the right hon. Lady agrees that that is simply not acceptable.

[Andrea Leadsom]

I have certainly made it clear that the hon. Member for Hampstead and Kilburn (Tulip Siddiq) should be able to spend critical time with her baby, and I sincerely hope that she will avail herself either of nodding through, or a pair in the event that proxy voting is not available. However, as I have said, in the event that somebody regrettably decides to object on Monday, I will table a substantive motion as soon as possible.

[Chris Bryant]

As it happens, I do not have children, although I was told categorically by an eight-year-old in Ton Pentre school last week that I have two sons, aged two and six, which goes to show that the internet is not always accurate. Perhaps it was another Chris Bryant.

All my friends in the House who have children say that the most useful thing for them is certainty about when votes will be held and when the end of the day will come. Of late, we have had a lot of Tuesdays and Wednesdays that have gone later than 7 o’clock and votes at strange times, and we do not have any certainty about whether the proposal will be accepted next Monday. I urge the Leader of the House to think again about whether it is possible to have a 45-minute or hour-long debate on Monday, with a vote at the end so that we have a guaranteed chance of getting this through. While we are talking about certainty, many parents are uncertain because there are rumours that there will no longer be a February recess during half-term. Will the right hon. Lady make it clear whether that will happen?

[Andrea Leadsom]

The hon. Gentleman will know that the House has agreed its recess arrangements in February. It is a matter for the House, but I have no plans to change that. I have tabled the motion for Monday and I sincerely hope that it will be successful.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

May I be another to congratulate the Leader of the House, my hon. Friend the Member for East Dunbartonshire (Jo Swinson) and all others who have finally succeeded in overcoming the forces of reaction? However, in all candour, doing this on a nod or nothing basis on Monday night simply risks affording the dinosaurs the opportunity to bring the Chamber into disrepute one more time. A 90-minute debate is all it would take and surely there must be availability in Government time for that.

This obviously comes too late for my children. My sons were four years and 10 weeks old when I was first elected, and the modern working environment would have made a big difference to us. However, the guilt and the conflicts do not end when we come back from maternity or paternity leave. There is another good 20 years at least to look forward to in that respect. While we have the wind at our back for once on such issues, can we start looking at other ways in which we can make this somewhere that parents can find their place in the nation’s affairs? That should apply not just to parents who choose to raise their family in London, where the question of whether a vote is at 7 or 8 o’clock will make a big difference, but those who choose to raise our families in other parts of the country, especially in relation to sittings in school holidays.

[Andrea Leadsom]

The right hon. Gentleman makes some serious and well-received points. I agree that it is extraordinarily difficult to be a parent in this place. I reiterate that we need to see what more we can do and that I am always delighted to hear from any hon. Member who wants to discuss specific, constructive suggestions that might carry the will of the House to make us a more family-friendly Parliament. It is vital that we enable more people from more diverse backgrounds, particularly with families, who want to express their views and make the world a better place, to be Members of this Chamber.

[John Woodcock (Barrow and Furness) (Ind)]

The Mother of the House also deserves great credit for the way in which she put forward, as the equality Minister in a former Labour Government, a raft of measures to level the playing field between men and women in the workplace, some of which eventually had the support of my former boss, Lord Hutton. Can the Leader of the House suggest ways in which the House could encourage more fathers of new-borns to take up shared parental leave to level the playing field between male and female MPs?

[Andrea Leadsom]

I would like to think that, when the motion is passed, new fathers in this place will want to be role models for other men throughout the country by taking parental leave and demonstrating the importance of fathers in the lives of their new-borns and in supporting new families. I sincerely hope that all male MPs who have new-borns will take advantage of that opportunity.

[Neil Gray (Airdrie and Shotts) (SNP)]

I commend your efforts, Mr Speaker, and those of the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the hon. Member for East Dunbartonshire (Jo Swinson) and my hon. Friend the Member for Glasgow Central (Alison Thewliss) for getting us to this point. I also commend the Leader of the House, who I know has met great resistance from some of her crustier colleagues. We cannot allow those crusty colleagues—we know who they are; the Leader of the House knows who they are—to shout “No” on Monday, so I encourage the Leader of the House to go to them and ensure that much pressure is put on them so that the proposal gets through. I say that as someone who is fortunate in that my son, Finlay, was born in the summer recess, so this would not necessarily have applied to me. Will the Leader of the House explicitly highlight how new fathers will be affected so that we too can take on our responsibilities at home properly?

[Andrea Leadsom]

The hon. Gentleman may know that one of my hon. Friends spoke in one of our earlier debates on proxy voting about timing the birth of her baby in the summer recess. The baby was conceived to be born in the summer recess—fine-tuning the event specifically so that she would not have the problems we have discussed. I absolutely understand the challenges that new families in this place face. The hon. Gentleman asked what will be available to new fathers. It will be proxy voting for the two-week parental leave available to fathers—that is what is proposed for the pilot scheme. For mothers, it will be six months of proxy voting, again in line with the Procedure Committee’s proposals.

[Mr Speaker]

I thank all colleagues and reiterate my thanks to the Leader of the House for her work and commitment, which are apparent to everyone. We are not quite there yet, but we are closer than we were, and we hope that the matter will be resolved on Monday. Let me be the first to say thank you to her from this Chair for what she has done.

Green Deal (Conduct of Home Energy and Lifestyle Management Ltd)

Programme motion: House of Commons & 1st reading: House of Commons
Tuesday 22nd January 2019 Commons Chamber

Motion for leave to bring in a Bill (Standing Order No. 23)

14:20

[Alan Brown (Kilmarnock and Loudoun) (SNP)]

I beg to move,

That leave be given to bring in a Bill to require the Secretary of State to review the conduct of Home Energy and Lifestyle Management Ltd in relation to the Green Deal; to require the Secretary of State to report on the merits of a scheme guaranteed by Her Majesty’s Government to compensate persons mis-sold loans under the Green Deal; and for connected purposes.

This private Member’s Bill should not be required. First, it is a consequence of a Government-backed scheme failing. Equally, since the mis-selling scandal became apparent, had the Government accepted the responsibility to investigate and to compensate victims, this Bill would be redundant. To date, however, the UK Government have turned a deaf ear to such calls, so now I stand here having to reiterate the call for a UK Government review. I pay tribute to the work of others who are pressing for such action, both here and at the Scottish Parliament; additionally, to my constituents such as Isobel McNicol, who started an awareness and campaign group on Home Energy and Lifestyle Management Systems—HELMS for short—and campaigner Irene Harris; and to Citizens Advice, particularly Linda Corbett from the Kilmarnock bureau.

As the title of my Bill suggests, one company in particular has been at the centre of the mis-selling activity: Home Energy and Lifestyle Management Ltd, or HELMS. One individual from HELMS, Robert Skillen, brazenly struts about telling everyone that it was nothing to do with him and all the fault of the UK Government. I know that Robert Skillen will be watching or reviewing this debate, and I have one thing to say to him: do not bother looking through Hansard and coming back to me—I am not interested.

Robert Skillen has already appeared on STV’s “Scotland Tonight” programme, with my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) and my constituent Irene Harris. That night, Skillen convinced no one, and I have now discovered that the very next morning after that TV appearance, he emailed my constituent Irene, looking for her written permission to contact her insurance company on her behalf. Apart from the sheer gall of that, it shows that he has held on to personal details and is surely in breach of data protection laws. Even more alarming is his attempt to masquerade as an expert claims company to help people get compensation for the deals he originally mis-sold them. How many people is he targeting using the personal data that he has held on to?

I will contact the relevant authorities, but that again shows how, had the UK Government taken a lead in investigating the HELMS mis-selling, such antics might have been stopped by now. Considering HELMS was previously fined £200,000 by the Information Commissioner’s Office, that latest activity reconfirms Skillen’s brazenness. I support the ICO call for it to have the power to fine such company directors up to £500,000.

A proper review would flush out Skillen’s claims that he warned the Department for Business, Energy and Industrial Strategy of the flaws in the system. That is an audacious claim, because he is either telling the truth, in which case he did not care about the flaws and continued to make money, or it is just further bluster.

I remind the House of the number of those affected, which in turn underlines the need for wider Government action: 4,262 households in the UK have HELMS solar PV green deals, with 3,054 in Scotland and 142 in my constituency; 93% of the green deal loans are in Scotland, with 97% of my affected constituents having loans in the 20 to 25-year range. With such numbers of households possibly affected, further Government action is obviously required.

I will now cover the main failings and use them to set the terms for a Government review aimed at making recommendations with regard to compensation. First, the length of the loans needs to be considered. I can only conclude that such loans were a cynical manoeuvre by HELMS to reduce the annual repayment figure below the predicted first year savings, as per the golden rule.

We are told that the PV panels should last for 25 years. As a civil engineer, however, I have undertaken whole-life costing exercises, and it was normal to allow for mechanical and electrical equipment to be replaced at a maximum interval of 15 years. It therefore beggars belief that HELMS cowboy installations will last those 25 years. Also, long-term maintenance costs need to be considered. Was any of that factored into the golden rule? I have previously stated that the actual savings need to be assessed against the theoretical savings, now that we have the installations to measure that against. That needs to be done on a year-on-year, whole-life basis, not just on that first year. On the expected savings, sadly, enough HELMS examples show that electricity bills have increased, not decreased, so again why are the Government sitting back on such matters?

As well as the adequacy of long-duration loans—the high volume of which should have been a governance red flag—the review should consider the age profile of those taking loans and their ability to pay back in the long term. Spend-to-save projects should have a payback period of a few years, not a quarter of a century.

We need a proper root-and-branch review into the HELMS installations. How many households do not have the building warrants that HELMS was supposed to procure? Those without warrants should be compensated against the retrospective charges that are set in law. How many installations are wrongly wired to the meter or connected to the wrong meters? Remedial action should be taken, also at no cost to the householders. How many people have insulation cladding with no building warrant? Where necessary, intrusive testing should be undertaken to prove it is suitable and, again, any remedial works should be compensated. Given that this was a Government-backed scheme, it is not surprising that so many people were trusting.

That takes us to the hard sales tactics. Again, the Government need to review that and to take proper evidence. Given the use of the Government logo and no money required up front, it is easy to see how unscrupulous salespeople could easily conflate matters to the extent that the installations seemed to be completely free. Some customers might already have had free insulation through the energy company obligation, which of itself could have added credibility to the free concept. Even for the ECO, however, we actually all pay for it via our energy bills, so that shows the risks of the Government pretending that measures are free—just like the free smart meters, which we all actually pay for.

The review should also check aftercare and assess how many installations are correctly insured. My constituent Irene Harris says that her insurance is no longer valid. How many others are there like that, and what are the associated risks? There has been a blasé attitude about the fact that those loans are against the property and are not personal loans as though somehow that means the length of the loan does not matter. Well, it does matter. The Government should see that 20-plus years of outstanding loans, no insurance and no building warrants mean that those houses cannot be sold. People are trapped in houses that might not suit their long-term housing need. The review must identify the scale of that problem.

We need to know how many people have been defrauded of their feed-in tariff. In answer to a parliamentary question from me, the Government confirmed that they do not have that information on whose tariffs have been transferred to a third party. It is vital to find that out and to find ways to prevent Skillen from continuing to profit from such fraudulent transfers. It is undisputable that people did not realise that they were assigning their tariffs over to his other company. Worse, many people claim that their signatures were forged. The UK Government need to get a handle on that and to ensure that victims get ownership of the tariffs.

The Government might argue that an appeal process is in place, but that is inadequate. People need to know that they have been ripped off. They then need to set that out to the Green Deal Finance Company, which might make an offer which is associated with a non-disclosure agreement, which smacks of divide and conquer. Worse, many of those people will not be in a position to assess the merits of an offer made to them, and they will feel further stressed by the whole situation.

Sure, if people are not satisfied, they can appeal to the BEIS Secretary, but that process is so tortuous. The last data I had stated that the Department had only made decisions on two out of 79 appeals and well over half of those had been in the system for nine months or more. That shows the limbo that people are left in. It has taken 15 months for my constituent Irene Harris to receive an offer, one fewer than for the original made by the Green Deal Finance Company. Where does that leave her? It is further proof that greater transparency is needed.

If the Government do not step up to the plate on those matters, we will never know the real extent of the problem. People will continue to discover at a later stage that they cannot sell their homes; many will not get the feed-in tariffs that they should be getting; others will overpay on their electricity bills, possibly for the rest of their lives; and incorrect installations will remain in place. Some of the Government architects of the flawed scheme have been rewarded with peerages and knighthoods. Are those matters what we want the legacy of the green deal to be, or will the Government step up to the plate, support my ten-minute rule Bill, conduct a review and properly compensate the victims?

Question put and agreed to.

Ordered,

That Alan Brown, Gavin Newlands, Patricia Gibson, Dr Philippa Whitford, Drew Hendry, Stuart C. McDonald, Chris Stephens, David Linden, Alison Thewliss, Ben Lake and Ged Killen present the Bill.

Alan Brown accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 8 March, and to be printed (Bill 322).

Counter-Terrorism and Border Security Bill (Programme) (No.3)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Counter-Terrorism and Border Security Bill for the purpose of supplementing the Orders of 11 June 2018 (Counter-Terrorism and Border Security Bill (Programme)) and 11 September 2018 (Counter-Terrorism and Border Security Bill (Programme) (No.2)):

Consideration of Lords Amendments

(1) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion at 7.00 pm at today’s sitting.

(2) The proceedings shall be taken in the following order: Lords Amendments Nos. 1 to 11, 13 and 16; Lords Amendments Nos. 12, 14, 15 and 17 to 42.

Subsequent stages

(3) Any further Message from the Lords may be considered forthwith without any Question being put.

(4) The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Michelle Donelan.)

Question agreed to.

Counter-Terrorism and Border Security Bill

Ping Pong: House of Commons
Tuesday 22nd January 2019 Commons Chamber

Consideration of Lords amendments

Clause 3

Obtaining or viewing material over the internet

14:31

[The Minister for Security and Economic Crime (Mr Ben Wallace)]

I beg to move, That this House agrees with Lords amendment 1.

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Lords amendment 2.

Lords amendment 3, and amendment (a) thereto.

Lords amendments 4 to 11.

Lords amendment 13.

Lords amendment 16.

I inform the House that the Speaker has selected amendment (a) to Lords amendment 3 tabled in the name of Stephen Twigg.

[Mr Wallace]

After that jovial urgent question on proxy voting, I feel like some purveyor of doom, as the Security Minister, having to break the positive note, for we are dealing here with some of the most serious issues facing our society. At the outset, however, I would like to thank Members across the House for their work to improve the Bill and for their cross-party approach to nearly all parts of it. If our security and counter-terrorism policies are to be successful, they must bring with them as many people as possible.

Many of the Lords amendments follow up on earlier debates on the Bill in this House and accordingly I trust that they will command the support of all Members on both sides of the House. I will focus my remarks on the substantive amendments. Clause 3 updates section 58 of the Terrorism Act 2000 to make it clear that it is an offence for a person to view or otherwise access via the internet information likely to be useful to a terrorist. Although section 58 as currently drafted includes a reasonable excuse defence, the hon. Member for Torfaen (Nick Thomas-Symonds) argued in Committee for greater certainty for those who might have a legitimate reason for accessing terrorist material. The Government had previously offered assurances that those legitimately engaged in journalism or academic research would be covered by the reasonable excuse defence, but to provide further reassurance, Lords amendment 1 makes this explicit in section 58.

Although the designated area offence received widespread support when it was inserted into the Bill on Report in this House, the shadow Security Minister said at the time that it would need further scrutiny in the House of Lords. Their lordships lived up to their role as a revising Chamber and proposed amendments to clause 4. Initially, the Government could not support all of them, but on reflection we agree that they do improve the operation of the new offence. The designated area offence is designed to establish a clear ban on travel to a tightly defined area or areas outside the UK, where such a ban is necessary for the purpose of protecting the public from a risk of terrorism, with a criminal sanction for breaching that ban.

[John Woodcock (Barrow and Furness) (Ind)]

I am pleased that the designated area offence, for which I and others have long been pushing, has survived in some form, but does the Minister not share my concern that some of the get-outs now listed in the Bill could be very easily exploited? For example, how can it be proven that somebody was not going to a designated area to attend a funeral, if that is what they say?

[Mr Wallace]

The hon. Gentleman makes a fair point, but if someone goes to a designated area, their reasonable excuse will have to cover all their activities. If they say they are going as a doctor but also commit a terrorist offence or crime, that reasonable excuse will effectively fall away. Everything they do will have to be covered by the reasonable excuse; they are not de facto lifted out of having committed an offence. It is important to understand that going to a designated area with a legitimate reason, such as aid work, and then engaging in some other activity will not prevent them from being in breach of statute and therefore guilty of an offence.

[Sir Edward Davey (Kingston and Surbiton) (LD)]

I seek clarification. In previous debates, I understood the designated area approach to mean that just being there would create an offence, but in his response to the hon. Member for Barrow and Furness (John Woodcock), the Minister seems to be suggesting that the prosecuting authorities would have to find evidence not just that the individual was there but that they were doing something other than what they said they were doing.

[Mr Wallace]

The original offence always required a reasonable excuse. The right hon. Gentleman will be a supporter of the European convention on human rights. Of course, people have certain rights to travel—to visit family or carry out certain other important activities, for example—and the House would consider the restriction of such activities to be a very serious matter. We have to bear it in mind that people travel legitimately. We are not in the business of drawing a circle around somewhere and saying no one is allowed in. That said, someone would have to have a reasonable excuse and present it so that it can be tested and investigated.

Their lordships have said—and I agree—that there are legitimate reasons for entering war zones. Among others, I am thinking of aid workers and Crown servants working for the UK Government or the United Nations. They would have legitimate reasons for being there, and we do not want to shut those off to people, but we do want to make sure they have a reasonable excuse. As is often the case in legislation, however, there was some concern about whether to have an exhaustive list, and risk missing something, or an indicative list, and we have opted for an indicative list.

Some people are concerned about the delivery of humanitarian aid—an amendment on that has been selected today—but I have made sure that the reasonable excuse of delivering humanitarian aid is tempered by the provision in proposed new subsection (3E) in Lords amendment 3 that

“the reference to the provision of aid of a humanitarian nature does not include the provision of aid in contravention of internationally recognised principles and standards applicable to the provision of humanitarian aid”.

That provision is there because, as we have seen before I am afraid, terrorist groups sometimes use humanitarian aid as cover to go somewhere. Ignoring recognised principles, they pick those to whom they deliver the aid and carry out other offences while doing so. By taking that approach, we preserve the freedoms we believe in while sending a clear message that there are areas we do not want people to go to and that going there could in itself become an offence.

We are all struggling in the west to deal with the emerging threat of foreign fighters as failed state safe areas are becoming the routine. Members on both sides of the House rightly get angry when foreign fighters come back and we cannot prosecute them because gathering evidence of deeper and more complex offences is very challenging. We have looked at the Australian and Danish models and found the designated area offence along with a sunset clause and review—it is not indefinite—to be one of the best ways to send a strong message to our constituents that going off to fight in these places is either a terrorist offence or not to be encouraged.

I do not want young people in my constituency going to fight whether for glory or in the commission of terrorist offences, or for anything else; I want them to realise that, however seductive the grooming on the internet, it would turn into a horror story if they went. Also, we do not want young people going out, being trained in terrorist techniques, coming back and posing a threat. In response to the hon. Member for Barrow and Furness (John Woodcock), I simply say, however, that the offence must reflect the freedoms we hold dear. We instinctively find it a challenge to restrict movement in this country—we do not like it, and why should we? It is a freedom we enjoy.

[Gavin Robinson (Belfast East) (DUP)]

As the Minister will recall, some of the concerns that I expressed during the Bill’s earlier stages turned on the issue of free movement within this country, particularly for UK citizens moving from one port to another. In some cases there had been a casual appropriation of former anti-terrorism provisions whereby no suspicion was required, yet people were challenged and checked as to whether they should be travelling. The Minister honourably indicated that he would engage with me on the issue, and he has done so on two occasions. May I ask him whether he has now formed a conclusion on how we can best protect ordinary UK citizens travelling internally from one port to another, and ensure that they are not being checked under counter-terrorism provisions?

[Mr Wallace]

The hon. Gentleman has made some very valid points. Provisions in schedules 3 and 7 to the 2000 Act relating to intra-UK travel allow people to be stopped and checked without suspicion. I think that one of the best ways in which we can prevent abuse of that tool is to publish figures. I told the hon. Gentleman at a recent meeting that in September I would publish figures showing how many people had been subject to such checks while travelling within the United Kingdom, and I think we can start that process of opening up.

I also think that if any of our constituents are subject to such checks, we must always ensure that the police do their work in a manner which is timely and considerate, and which secures the best results for them and the individual who has been stopped. That is not a matter of legislation, but a matter of handling things sensitively. Perhaps we should also be more efficient when it comes to obtaining information, so that there is time to check people before they leave the country.

One reassuring fact is that the vast majority of checks carried out under schedules 3 and 7 involve people who are returning rather than leaving, so there is less disruption than there is when someone is going off for a holiday, for instance. However, I give the hon. Gentleman an undertaking to ensure that the figures are published in September, and I shall then be happy to discuss the issue with him further.

[Kevin Foster (Torbay) (Con)]

May I briefly return the Minister to the list of reasonable excuses? Will he confirm that it would not be up to the prosecution to prove beyond reasonable doubt that they did not apply, but that a person defending a charge would be required to produce some basic evidence that they did apply?

[Mr Wallace]

Yes. That is important. Someone who claims to be an aid worker or a doctor will be expected to prove that. It is not possible simply to pick one of the excuses and use it as a defence. We should expect it to be necessary for the police to investigate any case in which a person returns from a designated area, to establish either whether that person may pose a risk to the public, or whether they fall outside the offence by virtue of travelling for one of the specified purposes or can otherwise rely on a “reasonable excuse” defence.

[Bob Stewart (Beckenham) (Con)]

If a person from this country were to go to one of the prohibited areas and then come back, would it be automatic for that person to be picked up if he or she had not been given permission to do something there? Is it possible that the security services—which, I presume, fully support this measure—would say, “Let him or her run, because it is more in our interests to watch what they do”?

[Mr Wallace]

As I think my hon. Friend will know, when it comes to intelligence and investigations, such decisions are operational. Should our police or intelligence services suspect that someone has committed an offence but there is nevertheless more to discover, that is a risk that they will have to take. They will take it into consideration and make a decision. Of course, any prosecution under the Crown Prosecution Service must meet a number of thresholds. It must be established, for example, whether the prosecution is in the public interest, or whether there is a likelihood of success. However, if someone does not provide a reasonable excuse, that person is potentially open to prosecution and to being sentenced to up to 10 years in prison.

It is regrettable but a fact of life, given the challenges posed by end-to-end encryption, secure communications, and the ability to obtain evidence from people who we may know from intelligence—but not in evidential space—have been up to no good, that we must seek a way around the current issue. When I attended the G7 in Canada last year, it was clear that every state represented at the table, from Japan to France, faced the same challenges. We must reduce the number of offences of this type, and we hope that the Bill will make a difference. We want it to deliver a strong deterrent to ensure that people are where they are for the right reasons, and to make clear there are other ways to better people’s lives in their communities than going to a designated area for reasons that may turn out to be spurious.

To ensure that the power to designate an area is used proportionately, Lords amendment 5 provides that regulations designating an area will automatically cease to have effect after three years. That will not, however, prevent further regulations from being made to designate the same area should such a designation still be required to keep the public safe from the threat of terrorism.

14:29

In its original form, the Bill extended extraterritorial jurisdiction to four further terrorism offences in order to ensure that individuals could be prosecuted in the UK for crimes committed overseas. During its passage, the Government identified two further terrorism offences to which extraterritorial jurisdiction should be extended, namely the offence of inviting support for a proscribed organisation and the new offence of recklessly encouraging support for a proscribed organisation, provided for in section 12(1) and (1A) of the 2000 Act. Lords amendments 9 and 10 amend clause 6 to that end, while Lords amendment 11 limits the extraterritorial jurisdiction in respect of those offences, and the offence in section 13 of the 2000 Act, to UK nationals and residents. That limitation addresses the concern expressed in the Lords that it would be unjust for a non-UK national or resident to be prosecuted in this country for activity overseas in support of an organisation that was not proscribed in the country where they lived, or where the activity took place.

Lords amendment 13 would require the Home Secretary to establish an independent review of the Government’s strategy for supporting people who are vulnerable to being drawn into terrorism, namely the Prevent programme. The hon. Member for Torfaen has acknowledged the excellent work undertaken under the programme. He and his colleagues in the Lords have argued that it is simply a question of good governance to review regularly whether policies and programmes such as this are working as intended, and are as effective as they can be. Essentially, that is the purpose of the post-legislative reviews that have now been in place for some years.

The review of part 5 of the Counter-Terrorism and Security Act 2015, which provides the legislative foundation for the Prevent programme, is in any event due to take place early in 2020, just 12 months away. Given that, I have decided that the time is now right to initiate a review of Prevent. Communities across the country are behind the policy and are contributing to it because, like us, they want to protect their young people from being groomed and exploited by extremists.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I am pleased to hear what the Minister is saying, and I commend the work of my Front-Bench colleagues—and those in the other place—who have pushed for it. Does he agree that this is also the perfect time to look at, in particular, the issue of far-right and extreme-right groups? Obviously Prevent already addresses it, and does some excellent work—I have regular contact with my local police force about that—but does the Minister agree that we need to do much more to tackle organisations such as System Resistance Network and Radio Aryan, of which he is well aware, and which spew out hate and bile?

[Mr Wallace]

The hon. Gentleman has been a good campaigner on that issue, which he has brought to the attention of the Home Office on a number of occasions. One of the reasons why I think this is the perfect time to review Prevent is that I truly believe that if the public knew how much it does in respect of the far right, there would be more support for it, not less. It is having significant success. Half the Channel cases involve the far right. The work that has been done over the last two years clearly shows that Prevent is not about a particular group or ideology, but is similar to other forms of safeguarding that are carried out every day by our social workers, teachers and police.

[Stewart Malcolm McDonald (Glasgow South) (SNP)]

As far as I can see, those far-right organisations are winning the hybrid war against society. Will the Minister talk a wee bit about what his Department is doing to curb the extremely dark channels of money that are coming in from around the world and funding far-right extremism here in the United Kingdom?

[Mr Wallace]

Terrorist financing, including of the far-right group that was proscribed 18 months ago, is worrying because actually it is not as high as people imagine. In the day of the internet, people can be groomed and inspired for very small amounts of money. Indeed, the five main terrorist attacks of 2017 cost £5,000 in total. That is the reality of a modern-day terrorist attack and the financing behind it. I do not see much evidence of huge swathes of money funding it; what I do see is growing evidence of the impact of the internet in allowing people to join up who in the past had nowhere to go. They may have been the oddball or odd one out in their village, but they now have the ability to live in a fantasy world, indulge their bigoted beliefs, learn how to make bombs and damage and hurt people, and find kindred spirits across the internet. That is what has given one of the big boosts to terrorism, including far-right terrorism.

[Mr Alister Jack (Dumfries and Galloway) (Con)]

What conversations has the Minister had with social media companies to try to get terrorist material removed from the internet?

[Mr Wallace]

The UK was the first country in the world to set up a counter-terrorism referral unit. It is in the Met police and has taken down over a quarter of a million pieces of material from the internet. It has been around for some years now and has been a great success, very quickly getting on to the internet and content service providers. We have also done extensive work alongside them to get them to improve their response, and we are going to go further: the online harms White Paper, a joint Home Office and Department for Digital, Culture, Media and Sport document, will be out imminently and in it we have said that we will look at everything from voluntary measures all the way through to regulation. It is incredibly frustrating as the Security Minister to proscribe a far-right organisation only to find that its hateful website or its allies are spouting rubbish and bigotry from, for example, the United States, protected under one jurisdiction. That is incredibly difficult to have to deal with.

[Sir Edward Davey]

I thank the Minister for the fact that the Government are not opposing amendment 13 made by the Opposition parties in the other place; that is very welcome. He was talking about the review he will undertake as a result of that amendment. Can he tell us a little more about the remit and timescale of the review? Perhaps he was about to do that anyway, but it would be helpful to have that on the record.

[Mr Wallace]

We have not formed the terms of reference. The timescale is six months; within that period we will appoint an independent reviewer. I am incredibly happy to take suggestions on that from all parts of the House, from both the Back Benches and Front Benches, and I will be happy to meet the right hon. Gentleman to discuss his ideas. I am pleased that this will give the critics of Prevent the opportunity to produce evidence, because time and again we have to spend time knocking down allegations without any evidence behind them. I will look forward to them producing that evidence as part of the process.

[Imran Hussain (Bradford East) (Lab)]

The Minister is making some very thoughtful comments. Will he accept that any strategy must not further isolate or alienate any minority communities that continue to face an increase in discrimination and hate crimes? It is therefore particularly welcome that the Government have conceded and we are to have this independent review. Will its findings be brought back to this House for scrutiny, as the Minister pointed out?

[Mr Wallace]

The hon. Gentleman is right: this will be a public review and we will be able to debate its results in the House and ask for contributions from colleagues and members of the public and groups alike.

Prevent was started by the hon. Gentleman’s Government and I believe it is on a successful flight path. It has diverted hundreds of people, both on the right and Islamist extremists, from the Channel programme back into the mainstream. It is not perfect; not everyone responds to the work that is done and they have to volunteer into the Channel programme. It is high risk, and Labour will inevitably be sitting on the Government side one day and they will carry that risk as well. It is not perfect, and it is better received in some communities than others. I do not mean that in terms of religious communities; I represent a seat that covers north Preston, in Lancashire and this programme is having very good success in some parts of the country. It is not always delivered as well as it should be, but colleagues from around the House from all parties come to me asking for Prevent co-ordinators, suppliers and community groups, and other colleagues who come with concerns.

It is the right time to do this. I started publishing statistics as Minister as I was keen to ensure they were out. We have done two years of statistics and they show clearly that it is not a mass spying operation; there have been 7,000 referrals compared with 621,000 for safeguarding, child abuse and domestic abuse. Also, the proportion of people diverted out of the programme are the same as in other safeguarding areas and in the last few years over 300 people have received help on Channel and stopped being a concern in the future. That is 300 people who could have posed a very real risk to our constituents, so I am proud of where we have got to, but am also very open to improving it and moving it forward.

[Stephen Doughty]

Programmes like Prevent and Channel are needed because of the grooming the Minister was talking about a few moments ago. I was pleased to hear what he said about the joint work between his Department and DCMS, particularly with regard to online content, because he will be aware that I am very concerned about online broadcasting and online radio stations, particularly Radio Aryan, which has been exposed by BBC Wales, The Mail on Sunday and the excellent work by Hope not Hate. Will the Minister undertake to look specifically at that issue, because it is producing some vile content that will undoubtedly draw people into far-right and extreme right-wing activity?

[Mr Wallace]

The hon. Gentleman makes a good point. In protecting people from being groomed and exploited, we all have concern about three main areas. In communities, we need to make sure that people are not groomed by radicalisers and not seduced once they have latched on to what they have seen on the internet from online preachers or elsewhere. That is why the Prevent programme is there. There is also the question of the cause of what drives people to feel that they are lesser or outside the support of the state, which is why we need to do a lot more around Islamophobia; we must challenge Islamophobia. It is happening; it happens in Lancashire and around the country, and if we do not tackle it as a Parliament and a Government it will give some cause and grievance that will be used to recruit people. We probably all dealt in the past in our inboxes with ridiculous BNP-sponsored emails about veterans getting less than an immigrant, with photographs of soldiers and comments like “This veteran gets nothing, but the immigrant gets more,” which turned out to be complete fiction. We must work on that, and where there is a genuine grievance we must make sure it is not hijacked by those who want to exploit that into terrorism or violent extremism.

There is also the question of the method of delivery of grievance and grooming, which is the internet. We need to make sure that Ofcom works alongside the Government, but it is of course independent and can make its own judgments. Organisations like Ofcom are there to regulate what is being broadcast to us. The last stage is what part of this legislation does—recognise that where legislation is written for broadcasters and the internet, it moves with the times. Often when Ofcom has banned people they have flipped on to Facebook and launched a broadcast channel, without any controls. So we must be much more agile to do that.

[Sir Mike Penning (Hemel Hempstead) (Con)]

I apologise for not being present for the start of the Minister’s speech. I listened carefully to what the Minister said about how little money there is, but it is plainly obvious that money is being moved around. Some of this terrorism is coming back from organised crime, particularly in the Province of Northern Ireland. While we look at the technical stuff and the nitty-gritty of what goes on to prevent terrorism like that in Londonderry the other night—the bravery of our police and armed forces and security services is there to be seen—the explosion did take place and we need to do more to prevent such explosions.

[Mr Wallace]

My right hon. Friend knows about these challenges from his own experience. In some parts of Northern Ireland terrorism is entirely ingrained in organised crime, with the money and control of the community organised crime seeks to exert. The Criminal Finances Act 2017, which I took through the House about two years ago, brought in measures that will be very useful for combating illicit finance, whether it is being used to finance terrorism or organised crime. That legislation is being extended to cover Northern Ireland, which will allow us to get to grips with some of the godfathers who have helped to fund that terrorism in the first place.

14:59

I look forward to working with the hon. Member for Torfaen and with the rest of the House to get the review of Prevent right. I also look forward to ensuring that the offences in this part of the Bill help to empower our law enforcement and security services to deal with the growing threat of safe spaces abroad. We must send a strong message to those who wish to travel to become foreign fighters that they should not do so and that there are alternatives, such as Prevent, that can help to divert them away from committing those offences, but that if they do commit them, they will be caught and sent to prison.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I am grateful to the Security Minister for his opening remarks, and for his tone and the consensual approach he has taken. We most definitely do not agree on everything, and we have robust exchanges across the Dispatch Box, but we try to work together constructively on these serious matters whenever we can. I am grateful to him for accepting Lords amendment 1 to clause 3, which has caused controversy in the past. The clause deals with a situation in which it was previously illegal to download these terrible recruiting videos but not illegal to stream them. We have to have a situation in which both are illegal. We cannot have a situation in which watching something later on is illegal but watching it at the time is not. This has been difficult to deal with, and there is no perfect way to capture it in legislation.

As the Minister knows, I was also concerned about the three clicks approach, and I am pleased that the Government have dropped it. Dropping it has not, as some suggested, led to a situation in which one click could lead to an offence being committed. The Bill sets out clearly that anyone inadvertently clicking in that way would not be covered by the offence. I was concerned that the reasonable excuse defence mechanism went put on to the face of the Bill, particularly in relation to journalists and academics, and I am pleased that the Government have now accepted those concessions. It is clear that in the years ahead we will have to look at precisely how the clause works in practice, but it is important to send a clear message that streaming these terrible videos is equally as awful as downloading them and watching them later on.

On designated areas, the Security Minister quoted what I said in the Commons because this measure was introduced at a very late stage and I was unable to have that discussion with him in Committee. We do not oppose the overall aim of dealing with so-called foreign fighters, but the clause needed significant work. Again, I am pleased with the work that has been done and I pay tribute to my Labour colleagues in the Lords and those of other parties there who have put in the work and time to improve the clause. I am also grateful to the Minister for accepting the changes.

There was originally a non-exhaustive list of reasonable excuse defences on the face of the Bill. This has essentially been taken and carved into the law itself, so that people do not commit the offence in the first place if they have a particular purpose for travelling. That was important for two reasons. First, someone with a perfectly legitimate reason for doing something would inevitably have been stopped, and would have been able to raise the reasonable excuse defence only further down the line. It is therefore much better in principle that they do not commit the offence in the first place. Secondly, the last thing anyone in this House wants is to deter people with a perfectly reasonable motive from going to areas of conflict. Aid workers are an example, and I know that the Chair of the International Development Committee, my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) has tabled an amendment on that.

For completeness, Lords amendment 3 states that the offence is not committed if one or more of the purposes of the visit is to provide

“aid of a humanitarian nature…carrying out work for the government of a country other than the United Kingdom…carrying out work for the United Nations or an agency of the United Nations…carrying out work as a journalist…attending the funeral of a relative or visiting a relative who is terminally ill…providing care for a relative who is unable to care for themselves”.

That is not meant to be an exhaustive list.

In addition, the reasonable excuse defence is maintained. This relates to the amendment tabled by my hon. Friend the Member for Liverpool, West Derby. The reason is that if no exception is already carved into the law and the purpose of the visit is not included in the list, it could none the less appear as a reasonable excuse defence. In an intervention on the Minister, the hon. Member for Torbay (Kevin Foster) talked about a burden in these cases. With the reasonable excuse defence, there is of course a burden on the defendant to raise it, but the burden to disprove it lies with the prosecution. In the carve-outs in the law that I have suggested, however, these people would not be committing the offence in the first place.

I want to press the Security Minister on how exactly this is going to work in practice. As he knows, there are two models around the world: the Australian model, which I think the sunset clause has been taken from, and the Danish model. The way the Danish model works in terms of not committing the offence in the first place involves an extensive system in which people obtain licences before they go. That is not without its problems, because journalists sometimes like to travel to certain areas without advertising the fact that they are doing so, so I am not suggesting that this would be a silver bullet or a magic solution. However, there will presumably have to be a system whereby we can show clearly that someone has not committed the offence in the first place, as against those situations in which there might be a reasonable suspicion that an offence had been committed and in which the reasonable excuse defence was raised later. Any details from the Minister on how this will work would be appreciated.

The other Lords amendments on these issues are also important. They include the introduction of a sunset clause for the statutory instruments to designate particular areas so that they cease to apply and have to be replaced. This will ensure that the Government regularly make the case to Parliament if they wish to continue with a designation in the long term. Lords amendments 7 and 8 relate to two additional concessions. Lords amendment 7 provides that the Government have to make a statement outlining why they believe an area needs to be designated at the same time as they lay the relevant statutory instrument. Similarly, Lords amendment 8 states that when the Government revoke a designation, the change must be subject to the negative resolution procedure in Parliament in case anyone wishes to object to it. Taken together, the amendments produce a much better clause in relation to the designated areas. It will allow the Government to tackle the problem of so-called foreign fighters, of which we are all conscious, but it now does so in a more balanced, fair way, without deterring those who wish to travel to areas of conflict for perfectly honourable and legitimate reasons. No one in the House would wish to prevent them from doing that.

There are three other broad themes to the amendments in this group. The first relates to extraterritorial jurisdiction, which the Minister will be aware I have raised before in a slightly different context. The Government added extraterritorial jurisdiction to the offence of inviting or recklessly expressing support for a proscribed organisation, and concern was expressed about that by the Joint Committee on Human Rights. The Committee was concerned that the extension of extraterritorial jurisdiction to certain offences was problematic when there was no equivalent offence in the country involved. The safeguard will now ensure that extraterritorial jurisdiction applies only if the offence was committed by a UK national or UK resident. That is in line with what the Joint Committee recommended, and I welcome that change.

Turning to the independent review of the Prevent strategy, I genuinely welcome the Security Minister’s acceptance that a review is required, and I give credit to the shadow Home Secretary, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), who has argued for one for some considerable time. As the Security Minister knows, I have visited Prevent programmes across the country, including in south Wales. My hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) also raised the issue of far-right terrorism, which this House must be conscious of and take action on.

My argument about the independent review of Prevent is that there is a concern that its aims may end up in conflict with or become slightly confused between intelligence gathering, what I would call the more welfarist or safeguarding aspect of Prevent, and community cohesion. There has been an issue around community cohesion, because the facilities that are available to local authorities, for example, are an important part of that. I have had conversations in which it was clear that the pressures on local authority services are really affecting Prevent’s ability to deliver.

There are also aspects or parts of our society—in fairness to the Security Minister, he pointed this out himself—that have lost faith in the programme, and it is time to look at that. We need a programme in which everyone can have faith. None of us wants to see people living a life of violence and hatred that is driven by these kinds of ideologies. We all want to prevent people from doing that, but let us do so in the most effective way. From our conversations, I am hopeful that the Security Minister will be keen to have a wide-ranging review that can deal with such issues.

While I am on the subject of Prevent, I know that the competition to become the new independent reviewer of terrorism legislation has now closed to applications, and I hope that someone new will be appointed soon. I hope, too, that the Minister will be receptive to suggestions about how exactly to construct this independent review, so that we can have the most robust and reliable conclusions possible and, if necessary, make appropriate changes.

Lords amendment 16 is another sensible amendment, relating to bank accounts or terrorist’s bank accounts. There was an issue in the law as originally drafted in that the account would have to be in the name of a particular person. Of course, that did not take into account the fact that people can have control of other people’s bank accounts by their behaviour, and it is important that that was covered in the legislation as well.

Taken together, all the Lords amendments make this legislation far better, and it is pleasing that we end the passage of this Bill on a note of significant consensus.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I echo the comments of the hon. Member for Torfaen (Nick Thomas-Symonds) about the consensual approach taken by the Government during the passage of this Bill and about the concessions already made during earlier stages, including on the likes of the three-clicks provision. As the Scottish National party has said since this process started last June, we welcome the Government amending this important legislation and appreciate the need to combat the constantly evolving threat from international terrorism in the modern age. However, we must be extremely careful how that is executed, and any new powers must be subject to stringent checks and safeguards if we are to maintain a healthy balance of security and civil liberties.

I will deal with the amendments in fairly short order lest I repeat many of the points already made by the Labour spokesman today or points that either of us made during earlier stages. The SNP welcomes the amendments—the improvements—made to the Bill in the other place and, as an SNP Member, I say that through gritted teeth. However, most of the amendments made in the other place were argued for in one way or another by the hon. Member for Torfaen and myself throughout the passage of the Bill in this place. None the less, I am pleased that the Government have dropped their opposition to many of the additional safeguards, and I hope the Minister is as generous in his treatment of the Crime (Overseas Production Orders) Bill on Report and Third Reading next week.

15:14

As we have heard, clause 3 extends section 58 of the Terrorism Act 2000 to make it an offence to view or access material online of the kind likely to be useful to a person committing or preparing a terrorist offence. Such offences are subject to a reasonable excuse defence which, as has been outlined, includes situations in which a person did not know and had no reason to believe that the material that they had accessed was of such a nature. However, Lords amendment 1 is in line with the amendments tabled previously and would provide that a person who views or possesses such material for the purposes of carrying out work as a journalist or for academic research would have a reasonable excuse defence. We may still be criminalising the innocent curious, and there are potential issues with social media and online algorithms that may push content an individual’s way, but we welcome the further protections afforded by the amendment.

Clause 4 provides for a new offence of entering or remaining in a designated area overseas. Again, the offence is subject to a reasonable excuse defence. Lords amendments 2 to 8 seek to introduce several safeguards to the operation of the new offence. In particular, Lords amendment 3 provides that a person does not commit an offence if they enter such an area involuntarily or for providing humanitarian aid, satisfying an obligation to appear before a court, carrying out work for the Government of another country or the UN, working as a journalist, and attending a funeral of a relative, visiting a relative who is terminally ill, or providing care for a relative, all of which are reasons that the SNP can support.

However, at Third Reading on 15 January, the Government were sympathetic to exempting peacebuilding, saying that they consider peacebuilding to constitute a reasonable excuse and suggesting that it could be added in the future if needed. For the record, the SNP supports the amendment tabled by the hon. Member for Liverpool, West Derby (Stephen Twigg), but if the Minister will not accept it, will he confirm for the record that the Government consider peacebuilding activities to be a reasonable excuse for travel to designated areas and that they are therefore exempt from this clause despite not being on the list? Will he commit to confirming that in the policy guidance accompanying the Bill?

Few policies are so watertight as to be beyond review, and that particularly applies to legislation that is as far reaching in its implications as this Bill. The Prevent strategy has proved controversial—far more so south of the border than in Scotland—but the Scottish Cabinet Secretary for Justice, Humza Yousaf, has said that there is much better community engagement in Scotland, citing the police relationship with mosques as a positive element. I am not saying that everything is perfect in Scotland when it comes to the implementation of the Prevent strategy—far from it—but there are lessons to be learned. The delivery of Prevent in Scotland benefits from the positive relationships fostered with our communities that have been built through years of regular engagement. We recognise that communities are our greatest ally in ensuring that our people are safe. Of course, none of this is perfect, but the review should seek to look at what best practice exists across the UK, and I welcome the fact that the review extends to Scotland.

The Minister and others may recall from an earlier stage of this Bill that I spoke of meeting a deeply impressive young detainee at Medway Secure Training Centre. She turned out to be Safaa Boular, now 18 years old, who has been convicted of terrorism offences and given a life conviction after a chaotic home life and online radicalisation. We all accept that no prevention scheme can stop all potential radicalisation, but we must ensure that we do a lot better in that effort than we have up to now, and we owe it to the vulnerable and the young, who are more susceptible to radicalisation, to do just that. It is vital that the review is not watered down by the Government.

[Mr Wallace]

rose—

[Gavin Newlands]

I am not saying that the review will be watered down in any way, but I will give way to the Minister on that point.

[Mr Wallace]

I am grateful to the hon. Gentleman. I would not like him to think that we ordered the review because we do not think that the strategy is safeguarding people. He refers to the fact that we must do much better based on his meeting with Safaa Boular, who by the way was convicted of planning a proper terrorist plot, no matter how nice she may have been in the detention centre. The reality is that the strategy has safeguarded hundreds of people away from violence and has been proving a success, so I would not want him to leave an impression that it has not. Of course, I agree that, like all schemes, it does not work for every single person, but it has had considerable success in all our constituencies.

[Gavin Newlands]

I do not dispute anything that the Minister has just said, but there is a huge clamour for review because of the inadequacies of the Prevent strategy, as seen by many in the community. His points about the terrorist plot, and so on, are well made, and I do not dispute them for one second. I am not arguing that Safaa Boular should not have been punished or put in prison; my point is about the fact that she was radicalised in the first place.

Yes, we need legislation that gives the police everything they need to fight serious crime and terrorism, but the Government should bear in mind that this Bill is, in many respects, deeply controversial. They must get it absolutely right, and that will be impossible without a full, independent review—that review has been hamstrung by the Government before it starts. I ask that the Opposition be consulted on the terms of reference, to which the right hon. Member for Kingston and Surbiton (Sir Edward Davey) alluded earlier, and on the timescale for that consultation.

[Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)]

I rise to speak to amendment (a), in my name, to Lords amendment 3. Two years ago, in the space of just six months, we saw five terrorist attacks here in the United Kingdom: the Westminster attack, Manchester Arena, London bridge, Finsbury Park and Parsons Green. Those attacks killed 36 people and remind us all of the very real and continuing threat of terrorism here in the UK. Indeed, we were reminded of it again just last weekend by the latest terror bombing in Northern Ireland.

We know there are people living in fragile states across the world who face this threat daily. Last week, we saw the appalling attack in Nairobi, which killed 21 people, and in western and central Africa, we have seen the appalling terrorist activities of Boko Haram, notably in Nigeria. Earlier this month, more than 9,000 people had to flee Nigeria for Cameroon after such an attack.

The whole House is united in our condemnation of terror, in extending our condolences to all those who have lost loved ones to terror and in our debt of gratitude to the emergency and security services. These appalling acts, both here and in other parts of the world, underline the need to update existing powers to respond better to the threat of terrorism in the modern age, which is why I support the Bill.

I am grateful for the changes that have been secured, and I pay tribute to the Labour Front-Bench team, particularly my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), to the shadow Home Affairs team and to others on both sides of this House and in the House of Lords. The Bill’s consideration has served to make significant changes that have improved the Bill. I particularly welcome Lords amendment 3, tabled by my noble Friend Lord Rosser and agreed by the Lords, and my amendment (a) relates to that amendment.

As has already been explained, the Government’s original approach was to introduce a “designated area” offence to give the Home Secretary the power to designate all or part of a country as forbidden to UK nationals and residents. If an individual is charged with the offence and they are not able to prove that they have a reasonable excuse for entering or remaining in the designated area, they could receive a sentence of up to 10 years in prison. The only original exemption was for Crown agents, and there was wide concern that that could have unintended consequences for a number of categories of people, including United Kingdom citizens who work as aid workers.

Lords amendment 3 was made to reverse the burden of proof by introducing a number of specified purposes that are excluded from the scope of the new offences. I absolutely accept the urgent need to tackle the real issue of so-called foreign fighters, but in doing so, it would be wrong to have the unintended effect of deterring people with perfectly legitimate purposes from travelling. The amendment refers to those working in the humanitarian field and to journalists, which is a truly significant improvement in protecting UK nationals who have legitimate reasons for travelling abroad. I am particularly concerned that, without this amendment, there might not be sufficient protection for aid workers and for the organisations that employ them, which could have a devastating effect on the provision of vital humanitarian aid.

Non-governmental organisations, led by BOND—British Overseas NGOs for Development—have been urging this House to accept Lords amendment 3 because it exempts individuals involved in the provision of aid of a humanitarian nature. In December 2018, the chief executives of 22 organisations signed a statement calling on the Government to introduce an exemption for aid workers and others with a legitimate reason to travel to a designated area.

I am delighted that the Government, on reflection, are content with Lords amendment 3, but the purpose of amendment (a) is to urge the Minister to go a little further and add a number of additional specified purposes. Lords amendment 3 refers to those working to deliver

“aid of a humanitarian nature”.

I am concerned that, defined narrowly, this could unnecessarily limit the activities that are considered legitimate, which is why my amendment would extend that list. First, it would cover work on a development project or programme. That could be a long-term programme to deliver health or education, or one that promotes women’s economic empowerment. Secondly, and importantly, it would cover work on a peace-building project or programme. Peace building is defined by the United Nations as:

“A range of measures targeted to reduce the risk of lapsing or relapsing into conflict by strengthening national capacities at all levels for conflict management, and to lay the foundation for sustainable peace and development.”

[Mr Jim Cunningham (Coventry South) (Lab)]

My hon. Friend raises an important point. Churches often go on aid missions and peace missions, so it is important that we get the legislation right because otherwise, as he says, it could have unintended consequences. Those are two important points.

15:30

[Stephen Twigg]

My hon. Friend is absolutely right. Church and other faith-based organisations are often involved in peace-building activities.

I will give some examples of the sorts of things that could be covered by peace building. It could include mediation and dialogue activities to negotiate local ceasefires or broker peace talks, support for local communities to strengthen early warning schemes or civilian protection efforts and initiatives to deal with the legacy of violence and promote social cohesion so that peace is built. DFID’s single departmental plan has as one of its five objectives strengthening global peace, security and governance, and DFID seeks to spend about half its investment in fragile states. In November last year, the Department doubled the UK’s commitment to the United Nations Peacebuilding Fund as part of a long-term strategy to build global peace and prosperity by tackling the underlying causes of instability.

[Bob Stewart]

In my experience, a Department such as DFID will sometimes send in a project team to do peace building or peace making, or to build a hospital. Does the hon. Gentleman agree that we might also have to consider bodyguards, because a private military company might be involved in protecting DFID’s people when they go into a war zone? Has he considered that as part of his amendment?

[Stephen Twigg]

The hon. Gentleman is absolutely right. Aid workers—whether directly employed by DFID or other donor countries, or employed by other non-governmental organisations or private contractors—require security arrangements in precisely the sorts of countries that we are discussing. That is an important part of the aid effort, and therefore it is, as he suggests, covered by my amendment.

My concern is that the term “aid of a humanitarian nature” does not explicitly include such peace-building programmes. I fear that without a clear exemption, there is a risk that peace building could be at the mercy of interpretation on what constitutes a reasonable excuse. This is a relatively low-profile area of international activity, so I think there is a risk that it may not be widely understood. I note that, as the SNP spokesman rightly said, on Third Reading in the other place Earl Howe for the Government said:

“In the absence of such an exemption the Government are clear that entering and remaining in a designated area for the purpose of engaging in peacebuilding would constitute a reasonable excuse.”—[Official Report, House of Lords, 15 January 2019; Vol. 795, c. 141.]

That commitment is welcome, but I think the risk remains that were such a case to come to court, juries might not have a full understanding of peace building and might not understand it to be covered by the concept of humanitarian activity. I do not think anybody in this House would want the Bill to have the unintended consequence of deterring NGOs from going into conflict areas or post-conflict areas. I urge the Minister, if he gets the chance to do so in responding to the debate, to give a commitment to the importance of peace building. Ideally, he will do so, as per my amendment, by adding this activity to the list of specified purposes. Alternatively, he could make it explicitly clear today that peace keeping is covered by the term “aid of a humanitarian nature”, and he could reflect that in the policy guidance.

Finally, let me refer to human rights monitoring. Rightly, the Bill now refers to

“carrying out work as a journalist”

but my amendment seeks to extend the provision to cover those who are undertaking human rights monitoring or advocacy. The United Nations defines human rights monitoring as seeking

“to gather information about the human rights situation in a country or region over time through readily available methods, with the goal of engaging in advocacy to address human rights violations.”

That is dangerous and incredibly important work. Without human rights defenders on the ground, injustices too often go unchallenged, and the most marginalised and vulnerable people have little protection from abuses of power. Those who work in the field of human rights monitoring and advocacy often put themselves in grave danger to shine a light on the abuse of power. I believe they have a right to know that when they are conducting that important work, they have protection in UK law that recognises their legitimate reasons for travelling to such designated areas.

I finish by saying that although it is fundamental that we strengthen our legislation to tackle terrorism, it is important to ensure that when we do so, we do not inadvertently undermine the very values that terrorists seek to attack. We have a proud record as an open, outward-looking country that does not turn away when it witnesses injustice. It would be sad if the Bill had the unintended consequence of limiting the contribution of our own citizens to development programmes, peace building and human rights monitoring in some of the world’s most fragile states. Although I will not press my amendment to a Division, I hope that the Minister will consider the points that I and others have made about this and will, even at this late stage, consider accepting my amendment.

[Sir Edward Davey]

It is a real privilege to follow the hon. Member for Liverpool, West Derby (Stephen Twigg). Had he pressed his amendment, I would have voted for it. I agree with everything he said in his general remarks and with what he said about the real challenge being to balance security and the need to tackle people who threaten our way of life with the protection of the values that make our way of life. He made that point specifically by building on the progress that we saw made in the other place with Lords amendment 3, which is very welcome, and I hope the Minister will cover that point in his response to the debate.

This House should thank Members in the other place because, as we heard the Minister say, they strengthened the legislation in several areas. They particularly strengthened it in respect of concerns that I and others had about civil liberties and freedoms, to make sure that innocent people were not inadvertently caught by some of the new offences that will be created. Lords amendment 1 in particular makes it absolutely clear—to be fair to him, I think the Minister had this in mind—that journalists and people doing academic research will have extra special protections.

We have talked about Lords amendment 3, but Lords amendment 13 on the review of the Prevent strategy—I intervened to ask the Minister about it—is really welcome and will support the Prevent strategy in its objectives. Both today and when we have discussed the matter before, the Minister has rightly said that there are a lot of good things about Prevent, and I agree with him. One of my concerns, which was why I supported the case for a review, was that some of the people who criticised Prevent gave valid criticisms, which I hope will be taken on board during the review, and others made the point that whether or not Prevent was doing the right work and whether or not it was successful, it had lost the trust of some communities. I hope the review will support the work that the Government rightly want to do by rebuilding trust. The review can play a positive role in the meeting of the objectives that I think we all share in this House.

One issue that did not find favour in the other place relates to something the Minister said about proscribed organisations. My colleagues in the other place wanted to see whether there could be a relatively regular review of the list of proscribed organisations. Indeed, Lord Anderson, who is well known and has huge experience in this policy area, said he believed that at least six of the organisations on the proscribed list really should not be there. I hope I can tempt the Minister to say, if he feels able to, whether a process of review of proscribed organisations already goes on somewhere and, if not, whether he would favour one, either specified in the Bill or dealt with outside it. I hope he will look into that, because it would be helpful and welcome.

In closing my brief remarks, let me just say that it is good that the Government have either agreed to accept the amendments made in the other place or to come forward with concessions.

[John Woodcock]

Far be it from me to be a discordant voice in this House, but I have real concerns that the House of Lords have not strengthened the Bill and may have fundamentally weakened parts of it, particularly in respect of the terror travel ban, which, as I said earlier, I have been campaigning for the Minister to adopt for well over a year.

I do not know whether you have had a chance to see the British satirical film “Four Lions”, Madam Deputy Speaker, but it recounts the exploits of four hapless British wannabe jihadis from my home city of Sheffield who are determined to wage jihad. The film opens with one of them getting an invitation to attend a wedding in Pakistan. He knows full well that there is no such wedding, and in fact he and his friend are going over there to be part of a jihadi training camp in the Pakistani mountains.

Although that film is fiction and satire, that excuse is commonly used by people who are overwhelmingly suspected of going over to areas with high levels of jihadi activity to train as foreign fighters, with the potential to then bring that training, knowledge and extremism back to British shores. The whole point of the designated area offence was to make that more difficult. I fully endorse the push of my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) to get official recognition for aid workers and journalists. I recognise that there would be a total outcry if someone who verified themselves as a legitimate journalist or aid worker were captured by this legislation. I find it almost impossible to concede that that would happen if they were in fact genuine, but if the measure does give reassurance to development agencies and to members of the fourth estate, I can understand it and agree that it is a good thing.

However, I have real concerns about the list of family excuses, which will surely prove incredibly difficult to disprove once they have been stated. Now that they are up in lights in the Bill, it will become that much harder to bring any prosecutions, and that much harder to deter people from travelling to become foreign fighters, which is, of course, what the legislation is intended to do. It is supposed not to catch people once they are there, but to deter them from travelling in the first place. Clearly, I am in an unusually small minority in this House in expressing that view, but I fear that we will come to rue agreeing such wide-ranging and easy-to-fake excuses in the Bill, and we may need to return to it in future months and years.

Finally, let me just say a word on the review of Prevent. It is of course right that any Government should seek periodically to review flagship parts of any policy. Certainly, in the critical area of preventing extremism and preventing terrorism gaining a grip in our own communities, I very much hope that this review is carried out and is understood in the spirit of remaining robustly in favour of the overall goal of Government, which is to be able to find ways to intervene to stop extremism taking hold. We need a dispassionate analysis of how, in its working, Prevent is able to recognise and potentially to call out the attempts to undermine the programme, which go beyond legitimate concerns, but are, in fact, tools of the very extremist organisations that would fill many young people and British citizens with the hate and terror that can lead to them going abroad to fight jihad, or, in the worst case, bringing terror on to British streets.

[Mr Wallace]

With the leave of the House, I will respond to the points of hon. and right hon. Members. First, let me address the amendment. The hon. Member for Liverpool, West Derby (Stephen Twigg) made a passionate and well-articulated case for adding peace building to the list of reasonable excuses. His example is at the heart of the challenge—peace building is most needed in fragile states, but it is in fragile states that foreign fighters emerge and safe spaces are constructed for that very reason. Effectively, the two sides of this challenge are summarised by peace building. It is therefore important to say that, first, the list is indicative. As long as I have been in this House, there has been debate about whether we have judicial discretion and about not doing too much in primary legislation. Lawyers in this House will be well used to that. The more comprehensive the list, the less room there is for judicial discretion. With no list, there is judicial discretion; holes are found, and we become subject to a different interpretation by judges every time. The word “indicative” is key. This is an indicative list. The major reasons listed are the headline reasons why the vast majority of people go to these places. They are clear, but still broad enough to cover most of the areas that concern us.

15:45

Top of the list of subsection (3B) is obviously paragraph (a)—

“providing aid of a humanitarian nature”.

There are numerous definitions, both at the UN, and no doubt within our own Department for International Development, where humanitarian aid is defined in law, whereas peace building has a broader interpretation. I know that my hon. Friend the Member for Beckenham (Bob Stewart) has been a soldier on a peace building mission. I have been a soldier on operations, where you peacebuild with a gun in your hand. So it is a broad definition. I believe that the indicative list plus “reasonable excuse” should give the hon. Member for Liverpool, West Derby the comfort that peace building—as Earl Howe said in the other place—would be recognised as a reasonable excuse. Peace building would be viewed as a reasonable excuse. But of course, like all the issues listed here, the “reasonable excuse” would have to be proffered and then proved—proved by the prosecution, who would have to prove that someone was not a doctor, or that someone’s idea of peace building was not peace building.

Interestingly, the hon. Member for Barrow and Furness (John Woodcock) used the example of the “Four Lions” film, which is actually tragic rather than a comedy. The tragedy is in the waste of life and so on. When the characters go out for the wedding, they do not go to a wedding. It would not be a hard excuse to disprove; I do not think they actually attended a wedding. It is qualified within the list. The “reasonable excuse” would have to be tested by the prosecution.

[Bob Stewart]

So, if a person wishes to go to a designated area, that person should, perhaps on Foreign Office advice, be told, “That is a designated area; you need to declare it.” If that person declares it prior to his or her going, that is good. If they do not declare it, and they go there and are picked up on the way back—it might be a mistake, but it might not—is that what the Minister anticipates might happen?

[Mr Wallace]

The decision that we took around this offence is that it is not a permission—something that you obtain in advance. As the hon. Member for Torfaen (Nick Thomas-Symonds) pointed out, in the Danish system one effectively gets a licence. The problem with that is that people just get a legitimate licence, and then go and carry out their other mission. It is also administratively burdensome. It also becomes a barrier to travelling for those who are doing so for a genuine reason, because they would have to check in with the state beforehand. We are proposing that people can go, but that if we have a suspicion that they have been doing something, we will test their “reasonable excuse”, and if the “reasonable excuse” fails, they will be guilty of the offence. We believe that to be the best way.

The hon. Member for Torfaen said that journalists would not be able to advertise where they were going. Many are based in theatre and do not know where they are about to go. They might be based in Lebanon and choose to visit—as some have—foreign fighters in detention in Syria. We shall not set up a permissions system; it is simply that you will have to declare it.

To clarify, the list of specified purposes is an exhaustive, not an indicative list, but there is power to add to the list by regulation. To give some reassurance to the hon. Member for Liverpool, West Derby, let me say that we will review the operation of this in conjunction with the Department for International Development and the Foreign Office, to see how it works, and we will of course be open to adding to the list if there were such issues as he represents. I am confident, however, that genuine peace builders would have a reasonable excuse and would not, therefore, be subject to the committing of an offence.

To give the hon. Member for Barrow and Furness some reassurance let me say that these excuses do not exempt a person from committing the offence if all their reasons for being out there are not covered by the “reasonable excuse.” You cannot say, “On Monday I am a peace builder; on Tuesday I am a terrorist.” That will not exempt you from that offence. You have to be there specifically and entirely for a reasonable excuse.

[Stephen Twigg]

I thank the Minister for his response, particularly for what he has said about the potential for review and the ability perhaps to make additions at a later stage. I also thank him for speaking into the record what he has just said about genuine peace builders, which is immensely helpful. I understand that some sort of policy guidance will be issued once this Bill is enacted. May I encourage his Department to look at the reference to peacebuilding in that policy guidance?

[Mr Wallace]

I would be delighted to look at that. I also remind the hon. Gentleman that the Crown Prosecution Service has a role in this. It will test not only the validity but the interest of prosecuting in this area. We do not risk people being wrongly prosecuted by organisations not being on the list as it is, by the time the process has been gone through. While the individuals may not be totally au fait, the prosecutor will be, as will the judge who will test the proposition of the prosecution. I do believe that we should be confident about that. However, I give the hon. Gentleman the undertaking that I will keep it under review.

The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) made a good point about best practice. My experience of visiting Prevent around the whole of the United Kingdom is that it is better received in some areas and better delivered in others. It is absolutely the case that Prevent works very well in some areas, depending on the different communities and who the Prevent champions and community leaders are. He made very good points about community cohesion in Scotland. We are, absolutely, happy to look at that to see what lessons are to be learned. At the heart of his point, he is absolutely right—best practice is going on. I do not want us to throw out Prevent because of a few failing examples, or examples that do not actually exist when tested. We need to build on it and show where it is a success, and we must not be frightened to say, “Look, it is working”, if that is what the reviewer decides. But of course it can be improved. We improve Contest every few years. We do not hold that the Contest strategy overall is absolutely stuck, and therefore we make sure that we move it on.

The right hon. Member for Kingston and Surbiton (Sir Edward Davey) talked about proscription. He will know that Lord Anderson made this suggestion. I met former Lord Chief Justices and a number of Members of the House of Lords on the issues. The Lords, including those on the Labour Front Bench, rejected the amendment. It is quite easy to request that an organisation is looked at and de-proscribed. It only takes a letter from someone to say, “Will you consider de-proscribing this organisation?” In doing so, they are effectively immune from being prosecuted. If they say, for example, “I do not think this organisation should be proscribed because I support it”, and send the letter in, the process starts. That is already open to people.

However, the legislation around proscription is not as straightforward as some people think. We often proscribe groups overseas. In fact, since I have been Security Minister, we have de-proscribed groups that I had frankly never heard of until we did so. They were way overseas somewhere. For example, we de-proscribed one of them so as to assist peace building in a country that was a fragile state so as to allow that process to progress. It is not as straightforward as I think some in the House of Lords had thought it was going to be. A lot of the proscription legislation came around the time of the Northern Ireland Good Friday agreement. We should be mindful about what automatic de-proscription, or automatic reviews, may unlock not so far away.

It is important that we reflected on the issues. We rejected the proposal as there is a solid mechanism already in place whereby people can ask to de-proscribe and call for a review. That is why the House of Lords rejected it, and we are not going to seek to replace it here.

Lords amendment 1 agreed to.

Lords amendments 2 to 11, 13 and 16 agreed to.

After Clause 16

Persons detained under port and border control powers

[Mr Wallace]

I beg to move, That this House agrees with Lords amendment 12.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to consider Lords amendments 14, 15 and 17 to 42.

[Mr Wallace]

This group of amendments relates to the new port and border powers in schedule 3 to the Bill to tackle hostile state activity, as well as to the existing counter-terrorism ports powers in schedule 7 to the Terrorism Act 2000. I will focus my remarks on the substantive amendments.

During the passage of the Bill through this House, the hon. Member for Torfaen (Nick Thomas-Symonds) has pressed the Government on whether there is an alternative to the power exercisable in exceptional circumstances for a police officer to be in the sight and hearing of a consultation between an individual detained under schedule 3 and their solicitor. While the Government were clear that safeguards were needed to prevent the right to consult a solicitor from being abused, thereby potentially putting lives at risk, the hon. Gentleman argued that such a provision would undermine the principle of confidentiality of consultations between lawyer and client.

On Report in September, I undertook to consider the issue further. Where there are concerns about a detainee’s chosen solicitor, Lords amendments 35 to 37, 39 and 40 would allow a senior police officer to direct that the individual consult a different solicitor. In practice, that is likely to be the duty solicitor. This provision is modelled on the Police and Criminal Evidence Act 1984—PACE—code H and reflects the suggestion made by the Law Society in its evidence to the Public Bill Committee in June last year. The change will apply to persons detained under both schedule 3 to the Bill and schedule 7 to the 2000 Act. I hope that the hon. Gentleman will agree that this change adequately addresses the concerns that he raised.

Lords amendment 25 provides for a procedure to enable the urgent examination of a detainee’s property, including confidential journalistic or legally privileged material, in cases where there is an imminent threat to life or significant injury, or where there is an imminent threat of a hostile act being carried out. In such cases, the police must be able to act with immediate effect and, consequently, the usual process whereby any such examination must be approved in advance by the Investigatory Powers Commissioner cannot apply.

These Lords amendments to schedule 3 would instead allow an examining officer, with the approval of a senior officer, to examine a detainee’s property before a decision has been made by the commissioner. Under this exceptional procedure, authorisation would be required to be given or withheld by the commissioner or a judicial commissioner after the event. Where the commissioner withholds authorisation, he would have the power to direct that the property be returned and that information taken from it, including copies, is not used and destroyed.

As with the existing process provided for in the Bill, the commissioner’s decision will be taken after consideration of any representations made by affected parties, and there will also be an opportunity to appeal that decision where it has been delegated to a judicial commissioner. That approach is consistent with the Court of Appeal’s judgment in the case of Miranda, where the Court recognised that there might be a need for

“post factum oversight in urgent cases”.

Further details of the process for examining retained property, including where it contains confidential material, will be set out in the schedule 3 code of practice, which must be debated and approved by both Houses before the provisions in schedule 3 can come into force. These Lords amendments improve the provisions in the Bill, and I commend them to the House.

At present, the schedule 7 code of practice requires that an individual examined under schedule 7 is informed of their rights on first being detained. There is analogous provision in the draft schedule 3 code of practice. The Joint Committee on Human Rights suggested that this protection for detainees is sufficiently important that it should be provided for on the face of the Bill and not left to a code of practice. The Government were content to accept the Joint Committee’s recommendation, and Lords amendments 33, 34 and 38 provide for that.

Lords amendments 41 and 42 respond to a recommendation from the Delegated Powers and Regulatory Reform Committee. The Committee argued that the regulation-making power in paragraph 53 of schedule 3 is too widely drawn. Under that power, the Home Secretary must specify additional categories of persons with whom information acquired by an examining officer may be shared. The Delegated Powers and Regulatory Reform Committee pointed out that this regulation-making power places no limitation on the categories of persons who could be specified for those purposes, including an organisation in the private sector. Lords amendment 41 narrows the schedule 3 regulation-making power so that it can be used only to specify persons carrying out public functions, and Lords amendment 42 makes a similar change to the Terrorism Act 2000. I commend these amendments to the House.

15:59

[Nick Thomas-Symonds]

I again welcome the approach that the Security Minister has taken in reaching consensus on these matters.

First, and this is a very important principle, in this Bill we have maintained and preserved the right to receive legal advice in private. It is a very important principle and, as the Security Minister knows, I pressed him on it at a very early stage of and throughout the proceedings on the Bill. There was a concern either that someone who had been stopped and detained would use the ability to contact a lawyer to communicate the fact that they had been stopped—in other words, to contact someone who was not a lawyer—or, alternatively, that a genuine lawyer was contacted but that the lawyer would then somehow, inadvertently or otherwise, pass on information about the stop. I pressed the Minister on the solution that is now in the Bill at quite an early stage about a kind of duty solicitor scheme that could deal with both of those concerns, but also ensure that we preserved the very important right of legal advice in private. I am pleased that we have reached this stage on the Bill and that the Government have made that concession.

I now turn to a set of Lords amendments, starting with Lords amendment 14, on the urgent procedure for retaining and copying property at the border. I have looked at the Court of Appeal judgment in the David Miranda case. As the Minister says, the judgment, at paragraph 96, identified that there is

“no provision for authorisation by a court or other independent and impartial decision-making body in a case involving journalistic material prior to the use of the Schedule 7 power or, in an urgent case, immediately after the obtaining of the material pursuant to the exercise of the power.”

I fully accept that there are going to be very urgent situations, and this is expressed in terms of an imminent threat of loss of life or of injury. I am pleased to hear what the Minister has said about the code of practice, which we can look at in due course. I previously suggested that there could be situations where a decision maker was available at the end of a telephone line, but I appreciate that there will be truly exceptional cases. The key to this is that, while I fully accept the law needs to be brought into line with what has been suggested in the Miranda case, we have to understand that these must be truly exceptional cases. That is something we can set when we come to debate the code of practice, being very clear that in these particular circumstances there will have to be a genuine, imminent threat that needs to be dealt with. Again, however, bringing the law into line with what the Court of Appeal has suggested is, on the whole, to be welcomed.

I want to speak to two other sets of Lords amendments. I will start with Lords amendments 17, 19, 26, 28 and 29 on the definition of hostile activity. The difficulty is that if this is defined purely in terms of criminal activity, that does not capture other types of hostile espionage activity, which may not necessarily bring into play parts of the criminal law. I did think that there was a danger of this being drawn too broadly, and I am pleased that these amendments narrow the definition, so that when we talk about threatening the economic wellbeing of the UK, we have now added

“in a way relevant to the interests of national security”.

The key is to ensure that we have the powers we need while also being precise about what we consider “hostile activity” to be. It is a welcome amendment that improves the Bill.

Finally, Lords amendments 41 and 42 relate to information sharing. Schedule 3 provides that an officer questioning someone at the border can hand over information to appropriate bodies, as decided by the Secretary of State. I think that narrowing the provision to bodies exercising public functions is to be welcomed, but I have regularly made the point to the Minister during the passage of the Bill that bodies such as local authorities will need the appropriate resources, expertise and support to handle the information, particularly when it is likely to be highly sensitive.

Taken together, I think that the Lords amendments that I have spoken to, covering the four themes I have referenced, make the Bill a better and more effective piece of legislation, although I am keen to engage with the Minister when the codes of practice to which he referred come before both Houses.

[Gavin Newlands]

The House will be relieved to hear that I intend to be even more succinct in my comments on the provisions pertaining to port and border control powers. We have again seen positive movement in this area.

Despite the best efforts of the hon. Member for Torfaen (Nick Thomas-Symonds) and myself, when the Bill reached the other place it restricted access to a lawyer for those detained under schedule 7. Specifically, it restricted an individual’s right to consult their legal representative in private, away from a relevant officer. As I and other Members have said at every stage of the Bill’s consideration, the ability to speak to a legal representative in private is a fundamental right that should not be infringed. Indeed, as the Minister outlined in oral evidence to the Public Bill Committee, both the Law Society of Scotland and Law Society of England and Wales have reinforced that point. Richard Atkinson stated in evidence that the UK’s criminal justice systems have an excellent reputation but that their very

“cornerstone is legal professional privilege…not access to a lawyer”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 30.]

We therefore very much welcome Lords amendments 12, 15, 35 to 37, 39 and 40, which ensure that that right is protected. Our preference would be for anyone detained under these powers to be able to consult legal representatives of their choosing, but I have heard the Government’s case for the power to require a detainee to consult a different solicitor and, although I would prefer not to have that provision, I completely understand the rationale behind it. I only hope that the power is not abused to ensure lesser representation.

On that note, we also very much welcome amendments 33, 34 and 38, which confirm a detainee’s right to be informed of their rights, which will now be in the Bill rather than simply in the draft code of conduct.

We also welcome Lords amendments 17, 19, 26, 28 and 29—I am not used to having so many Lords amendments, Madam Deputy Speaker. As the hon. Member for Torfaen said, the narrow definition of “hostile act”, so that it is an act that threatens the UK’s economic wellbeing, qualifies only if it

“is relevant to the interests of national security”.

We on the Scottish National party Benches are well known for standing up for civil liberties and human rights, but we do understand that keeping people safe and secure is the primary function of government and fully support our services having the appropriate powers to keep us safe. We therefore support an expedited process for retaining and examining property and confidential material where there is an immediate risk of death or serious injury, or of a hostile act being carried out. That relates to Lords amendments 18, 25, 27 and 30 to 32.

I am sorry to have to mention Brexit so close to the end of our considerations, but it will potentially have a huge impact on the effectiveness of much of this legislation. One of the greatest threats to our national security and counter-terrorism capacity is Brexit and the risk of losing seamless access to multilateral information-sharing tools. Terrorism and organised crime will continue to operate after 29 March without care towards the UK’s membership of the EU—I see that the Minister is delighted by the mention of Brexit. Yet without Europol, Police Scotland will no longer have access to information systems, support and expertise that help make Scotland, the rest of the UK and Europe a safer place. We cannot risk having arrangements that dilute the access that we currently have, and any new arrangements must consider Scotland’s distinctive criminal justice system in order to provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts. If we have not made provision to keep our policing effective outside the EU, how can we expect Prevent and everything that has been discussed today to work even after a review?

I thank the hon. Member for Torfaen and the Minister for the manner in which the Bill has been debated throughout its passage and I look forward with joy unconfined to dealing with them again next week on the Crime (Overseas Production Orders) Bill.

[Sir Edward Davey]

It is a pleasure to follow the hon. Member for Paisley and Renfrewshire North (Gavin Newlands). He tempts me to talk about Brexit—[Hon. Members: “Go on!”] In relation to security and counter-terrorism, of course, Madam Deputy Speaker. I share his concerns that that has not been dealt with adequately. The political declaration is far too weak on the subject and that concerns me. If we got that right, it would go much further than the Bill can.

On border security, which the amendments cover, I was slightly amused that some of the points I made on Report, about which the Minister was not happy, had been dealt with in the other place. I pay tribute to my noble Friend Lord Paddick, who, in discussions with the Minister in the other place, clarified a point in the legislation in a very helpful way. I am grateful to the Government for conceding that point. I was concerned about the Bill’s definition of hostile activity to include anything that threatened the United Kingdom’s economic wellbeing. Although I clearly do not want anyone to threaten the United Kingdom’s wellbeing, it seemed a broad and unspecific definition. Some people would say that Brexiteers threatened the United Kingdom’s wellbeing, but I do not want to take that too far because that would be controversial. However, I was pleased that the Government have now qualified the provision with,

“in a way relevant to the interests of national security”.

That may well have been the original intention, but the Bill did not say that. That is why we raised the matter and I am pleased that the Government have seen fit to move on that.

I say gently to the Minister that if we are serious about border security, law is important, but we must have enough Border Force guards. I am worried that we do not have enough people to ensure that our borders are as safe and secure as the House wants. That resource point should not be missed as we legislate.

[Mr Wallace]

With the leave of the House, Madam Deputy Speaker, I will respond.

I am pleased that the hon. Member for Torfaen and I have managed to find a way that accepts his points about ensuring that people have legitimate legal representation, but finds an alternative when the state has concerns that there could be abuse. There will be a code of practice and until it is approved by both Houses, law enforcement officials will not be able to use schedule 3. There will be a public consultation and I am happy to discuss matters with him so that we can ensure that we clarify any further areas about which people may be concerned.

The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) made several points. One reason for discussing hostile state activity is what happened in Salisbury last year. There are hundreds of declared and undeclared foreign intelligence officers in the UK who seek to harm this country. They seek to undermine our values, corrupt our people and our news, carry out espionage and do us serious harm. None could be more serious than what happened in the Salisbury attack, where Novichok, a nerve agent banned by law, was used on our streets. That ended in a tragic death—the murder of a British citizen. That is outrageous and something that we did not really see even in the cold war. We should recognise that while the traditional barriers of the cold war and the 1980s are long gone, even more states are committing hostile acts every day, and we need the powers to deal with that.

16:15

[James Cleverly (Braintree) (Con)]

Does my right hon. Friend agree that it is important that as a society—not just as a Government and a House—we make it clear that the norms of international behaviour that we impose on ourselves are not universally accepted? The willingness to deploy both poisons such as Novichok and fake news, lies and so on might seem beyond reality to us, but is the norm for other regimes in the world. We have to be prepared to deal with such regimes and to push back against them.

[Mr Wallace]

My hon. Friend makes a strong observation about the rest of the world. Now is not the time for us to abandon our belief in the rule of law and, indeed, in the maintenance of our freedoms. In fact, we defeat others by leading by example. As he rightly points out, however, when we are faced by such adversaries, the challenge for any Government is to navigate their way through, to keep people safe while upholding their belief in the values and freedoms that we enjoy in the United Kingdom and maintaining the rule of law.

The stops—the powers under schedules 3 and 7—have been around in the terrorism space since 2000. They are strong powers, and they are limited by being used only at the border. Their use is not open to normal police officers going about their normal business. We do that to ensure that we maintain the freedoms in our society, while at our vulnerabilities, such as at borders, we have that extra layer in order to deal with—

[Sir Mike Penning]

Will the Minister give way?

[Mr Wallace]

No, I will press on to the end. I do not think that my right hon. Friend has been in the debate.

It is important to deal with issues as we look at the legislation. The right hon. Member for Kingston and Surbiton (Sir Edward Davey) used the B word, although I had hoped to get through the whole debate without using it. One of the delights of being the Security Minister is that in the world of intelligence sharing and of law and order, Brexit has often been kept at bay. However, the right hon. Gentleman has raised the issue, and we have taken steps to deal with it through private conversations with Ministers from around Europe and the European Commission and through the withdrawal agreement in the deal, which got us access to nearly all the things that we have now. That is why I was, and am, in favour of the deal—security is incredibly important.

We have recruited hundreds more people in order to strengthen the border and to deal with anticipated changes as we get there. The Government are taking that seriously, and we will plan to deal with it. However, it is at our borders that we will be most vulnerable, which is why this new power will help the police and intelligence services at least to keep our borders safer than they are now. That will not change, whatever our relationship with Europe. The hostile-state power will be for our domestic intelligence services and police, and whether we are in or out of Europe, half in or half out, or whatever we are, this power will be a welcome one that they are willing and wanting to use.

[Julian Knight (Solihull) (Con)]

Obviously, the B word is my favourite word at the moment. On information sharing, does the Minister agree that although we are leaving the EU, we are not leaving Europe? We will be a good neighbour as far as security and information sharing are concerned as we move forward into the future.

[Mr Wallace]

Within the remit of the Bill, we should remember that intelligence is the preserve of the nation state and will continue to be so. That has not changed and will not change. Contrary to what Sir Richard Dearlove, the head of MI6 at the time of the Iraq war, said in a letter that he put out last week, we managed to be full members of the Five Eyes and NATO at the same as we were full members of the European Union, so I do not believe that that will be lessened, whatever our status. We will still be members of the Five Eyes and NATO, whatever our relationship with the EU post 29 March. That is why the Bill is pitched correctly. It deals with the threats we have faced, the lessons we have learned from terrorist attack and from the hostile-state attack by Russia last year, and we are only as good as the lessons we learn. That is why the Bill is important in giving us the powers that we need.

In closing, I thank the Bill team, who have put up with their Minister wanting far too many changes, for helping me to deliver the sort of collaborative working that I used not to see, I am afraid, when I was in opposition a long time ago and for producing a Bill that I think most of the House regard as a good place to be. I am also grateful to their lordships for improving the Bill and to Her Majesty’s Opposition, the Liberal Democrats and the Scottish National party for their changes to the Bill. Thanks to those changes, we have a Bill that truly will help to bring people together and deliver better security.

I also thank the hon. Member for Torfaen for putting up with my struggling pronunciation of his constituency—I hope I got it right, but my Welsh is very poor—the right hon. Member for Kingston and Surbiton and the hon. Member for Paisley and Renfrewshire North (Gavin Newlands). I thank, too, the hon. Member for Barrow and Furness (John Woodcock) for his helpful suggestions and his campaign on the designated areas. He was part of their inspiration, so he can carry some of the blame if it turns out in a few years that they do not work. [Laughter.] I will take some of the blame; so can he.

Finally, I also thank my hon. Friend the Member for Redditch (Rachel Maclean), who performed gallantly as my Parliamentary Private Secretary through Committee, and our usual channel, the Lord Commissioner of Her Majesty’s Treasury, my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard). I also thank you, Madam Deputy Speaker, the Speaker and the other Deputy Speakers for steering the Bill through the House.

Lords amendment 12 agreed to.

Lords amendments 14, 15 and 17 to 42 agreed to.

Business without Debate

Tuesday 22nd January 2019 Commons Chamber

Delegated Legislation

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

Exiting the European Union (Customs) (Guernsey)

That the draft Crown Dependencies Customs Union (Guernsey) (EU Exit) Order 2018, which was laid before this House on 26 November, be approved.—(Jeremy Quin.)

16:22

Division 299

Ayes: 302

---

Conservative: 290
Democratic Unionist Party: 10
Independent: 1

Noes: 263

---

Labour: 217
Scottish National Party: 29
Liberal Democrat: 10
Plaid Cymru: 3
Independent: 2
Green Party: 1

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

Exiting the European Union (Customs) (Isle of Man)

That the draft Crown Dependencies Customs Union (Isle of Man) (EU Exit) Order 2018, which was laid before this House on 26 November, be approved.—(Jeremy Quin.)

16:38

Division 300

Ayes: 304

---

Conservative: 292
Democratic Unionist Party: 10
Independent: 1

Noes: 263

---

Labour: 216
Scottish National Party: 29
Liberal Democrat: 10
Plaid Cymru: 3
Independent: 2
Green Party: 1

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

Exiting the European Union (Customs) (Jersey)

That the draft Crown Dependencies Customs Union (Jersey) (EU Exit) Order 2018, which was laid before this House on 26 November, be approved.—(Jeremy Quin.)

16:53

Division 301

Ayes: 304

---

Conservative: 293
Democratic Unionist Party: 10
Independent: 1

Noes: 262

---

Labour: 215
Scottish National Party: 30
Liberal Democrat: 10
Plaid Cymru: 3
Independent: 2
Green Party: 1

[Madam Deputy Speaker (Dame Eleanor Laing)]

I remind the House that this vote is subject to double majority voting, first of the whole House, then of constituencies in England.

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

Education

That the draft Higher Education (Fee Limits For Accelerated Courses) (England) Regulations 2018, which were laid before this House on 29 November 2018, be approved.—(Jeremy Quin.)

17:06

Division 302

Ayes: 301

---

Conservative: 289
Democratic Unionist Party: 10
Independent: 1

Noes: 223

---

Labour: 217
Liberal Democrat: 2
Independent: 2
Green Party: 1

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

Exiting the European Union (Intellectual Property)

That the draft Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018, which were laid before this House on 27 November 2018, be approved.—(Jeremy Quin.)

17:23

Division 303

Ayes: 303

---

Conservative: 292
Democratic Unionist Party: 10
Independent: 1

Noes: 266

---

Labour: 218
Scottish National Party: 29
Liberal Democrat: 11
Independent: 3
Plaid Cymru: 3
Green Party: 1

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

Capital Gains Tax

That the draft Double Taxation Relief and International Tax Enforcement (Austria) Order 2018, which was laid before this House on 3 December 2018, be approved.—(Jeremy Quin.)

Question agreed to.

[Mr Charles Walker (Broxbourne) (Con)]

On a point of order, Madam Deputy Speaker. During the urgent question on proxy voting and baby leave, I saw you standing behind the Speaker’s Chair, taking a keen interest in the announcement that the House was moving forward in the matter. Was that out of personal interest, or the wider interests of the House and its Members?

[Madam Deputy Speaker (Dame Eleanor Laing)]

That is the most interesting point of order I have ever been asked in my life, and I am grateful to the hon. Gentleman for asking it. First of all, he is absolutely right in having noticed my presence in the Chamber—of course I cannot sit on the Benches when Mr Speaker is in the Chair, but a very important matter was being discussed.

I should make it absolutely clear that my personal interest in proxy voting or baby leave is historical. That is probably rather obvious, but it as well to make the point. I am one of those who dealt with giving birth to my son when there was no such helpful support from the House, the House authorities or anyone else for that matter. I therefore have every sympathy with those who are going through such matters at present. My son was born one week after the 2001 general election, and that was not easy to navigate, because there is no such thing as maternity leave on election day.

The hon. Gentleman was right in the latter part of his point—my interest now is general. It is very important that we make this House work as a reflection of the society that we represent throughout the whole country. That means understanding that producing the next generation is an important and necessary duty, which has to be done by women at the same time as they are doing other things. I am very grateful to him for having noticed my presence, because I thought I was invisible. I should say, while I am waxing lyrical, which I should not be from the Chair, that the hon. Gentleman and his Committee have done a wonderful piece of work on this important matter.

I apologise for the delay. We now come to the petition.

Green Deal Scheme

Tuesday 22nd January 2019 Commons Chamber

17:39

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Apology accepted, Madam Deputy Speaker. I was pleased to hear your comments on that very important issue.

Nearly 300 households in my constituency have been affected by the utterly shameful mis-selling by Robert Skillen’s company, Home Energy and Lifestyle Management Systems—or HELMS, as it is better known—all carried out under the umbrella of the UK Government’s green deal scheme. Far too many people were tricked into signing away their solar energy feed-in tariffs to HELMS’s sister company, PV Solar. In fact, many have not signed them over yet, but PV Solar still collects the tariffs. There is a host of other issues, which I do not have time to go into this evening, but they were outlined by my hon. Friend the Member for Kilmarnock and Loudoun (Alan Brown) when he presented his ten-minute rule Bill earlier today. Suffice it to say that the Government’s response thus far has been utterly woeful and must improve.

The petition states:

The petition of residents of Paisley and Renfrewshire North,

Declares that the Government-backed Green Deal Scheme has adversely affected residents of Paisley and Renfrewshire North both financially and psychologically; further that many residents have, in good faith, invested their life saving or accrued several thousands of pounds of debt to pay for work that was carried out by companies approved by the Green Deal Scheme; further that in some cases the work including the installation of insulation and of solar panels, was incomplete; further that some were sub-standard and in many cases residents were given incorrect information which led them to believe that they would save or make money when in fact they have simply lost money; and further that in other cases the installer did not apply for building warrants and as a result they are unable to sell their properties, or have the peace of mind that their homes are safe to live in, or that the insurance policies residents continue to pay are valid without a building warrant.

The petitions therefore request that the House of Commons urges the Government to compensate financially and protect people who have found themselves suffering in this way after signing up to this Government-backed scheme using Government-approved installers.

And the petitions remain, etc.

[P002301]

Pupil Referral Units

Tuesday 22nd January 2019 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Paul Maynard.)

17:42

[Chris Green (Bolton West) (Con)]

Pupil referral units perform excellent work in my constituency and across the country in complementing mainstream schools. There are two in my constituency, Youth Challenge and Lever Park, and both are run by Bolton Impact Trust. When I met the trust recently, I was made aware of how vital these units are to the pupils who rely on them and how fantastic they are at delivering the service and support they do to those pupils. Both were rated outstanding in their last Ofsted inspections.

It was a particular delight when I visited to hear of the relationship that Youth Challenge had with local business. It is an important fact about these units that often the experience of children is in vocational work and training and that often those are the kinds of careers they go into once they have finished school, whether that is at age 16 or 18. That transition into mainstream employment is very important. The close relationship that the unit has with local business is very good for local businesses, which increasingly understand the value that these children can contribute to their businesses, and also sets a positive direction of travel and gives the children the opportunity and vision to move into good and productive jobs once they leave education.

The services provided by Bolton Impact Trust really do make a difference. That can come in the form of 1:1 teaching support, which a teacher in a mainstream school, perhaps with a class of 30 or so pupils, cannot provide, but it does others things as well. There is one simple, straightforward thing that it does. Teachers often sit with children at lunchtime, and that engagement between adults and children can produce a useful environment that is more relaxed than a formal classroom setting. It also reinforces the support that referral units give to families. Mums and dads often have a very challenging time. Bringing up any children obviously has its challenges, but the support that these units can give by introducing more stable adult figures to children’s lives is very important.

There is concern about funding, as was confirmed by my visit to Bolton Impact Trust. As the Minister will know, the dedicated schools grant is split into four notional blocks, but I want to focus on the high needs block.

[Jim Shannon (Strangford) (DUP)]

The hon. Gentleman has raised a vital issue. Given the importance of helping children who are ill, pupil referral units are an essential tool to retaining access to education that is specifically tailored to them. Should that not be protected at all costs?

[Chris Green]

I agree with the hon. Gentleman. Different schools and different parts of the educational structure serve different groups of children. The work done by referral units and, more widely, by specialist schools is very important, and ought to be protected. There will always be a need for these units, and they ought to be reassured that support will continue. Many of the people who work for them are very specialised and highly trained, and we must maintain that continuity in order to maintain that talent.

High needs funding is essential in helping to meet the educational requirements of pupils. The cost of those additional needs can be as much as £10,000 a year, £6,000 more than the normal average of £4,000. As the Minister is no doubt aware, local authorities determine the budgets for referral units and specialist schools on the basis of the number of places that are required before commissioning those places at £10,000 per place per annum, regardless of whether they are taken up.

In that context, it is important to recognise the difference between specialist schools, where there is a certain continuity, and referral units, where the intake can be slightly more erratic. If a place is taken up, the local authority funds a top-up on a daily and weekly basis. That funding model works very well for specialist schools. They normally experience less in-year movement of pupils, which means that forecasting income is comparatively straightforward. The situation in referral units is much more volatile. For example, in September there were 170 pupils on the roll in Bolton, but by the following June the number had risen to 260. There can be a stark contrast between the numbers at one point and the numbers at a later stage.

We need a responsive system. Because specialist schools have a longer-term relationship with children, there tends to be far more clarity about who will be in those schools, and hence more clarity about access to funding. Moreover, the main aim of referral units is to support pupils so successfully that they are able to return to mainstream schools, and an unfortunate consequence of that success is that a unit will lose between £12,000 and £14,000 per pupil per year. The current funding model provides no incentive for a referral unit to deliver successful outcomes. They will of course be focused on delivering successful outcomes, but there is a clear challenge in the funding model. Certain costs, such as for the building and the staff, are permanent regardless of the number of people in the unit, but the income can significantly vary over a period of time. Would it not make more sense to have a funding model that did not disadvantage referral units for successful outcomes, rather than one that could be seen as an incentive to units keeping hold of children? PRUs that are doing very good work, perhaps better than average, must not lose the money that is coming to them more quickly than the average, because that would be a disincentive.

In addition, there is no consistency in how local authorities determine the level of top-up funding for PRUs, and more broadly for specialist schools, when additional funding is required to support challenging behaviours. Often PRUs are unable to determine the level of a pupil’s needs until they have worked with them for a few weeks. At that point, with the pupil’s needs being met, it can be a challenge for the PRU to obtain additional funding from the local authority because the placement has already been made, and naturally, local authorities who are under a great deal of financial pressure, having decided to give a certain amount of funding, would find it challenging to give more funding; there would be resistance to that.

Does the Minister agree that a system which provided greater consistency and security of funding, whereby services are commissioned in a manner which allowed schools and academies to predict their income accurately, would deliver a better service for pupils? That would also lead to a reduction in the degree of friction between local authorities and providers, and allow greater emphasis to be put on educational standards, rather than needing to focus on volatile funding. Often in units much of the management time is spent on asking, “How do we get the money in? How do we get the funding in? How many meetings do we have? How much pressure do we have to apply?” That time ought to be focused more on the needs of the unit itself.

PRUs provide a vital service both locally and nationally, but we must focus on how we can reward units for success. The units in my constituency have been remarkably successful and are deserving of their outstanding status. How can we remove the financial penalty I have described? What steps can the Minister take to address the concerns of referral units and deliver more consistent funding in such an important part of children’s education?

17:53

[The Parliamentary Under-Secretary of State for Education (Nadhim Zahawi)]

I congratulate my hon. Friend the Member for Bolton West (Chris Green) on securing this important debate. He speaks from experience of his local PRU and the work it does with the local community, businesses and of course families to deliver good outcomes. I am aware that Bolton Impact Trust has been in discussion with the Department about the funding issues and I will write to my hon. Friend on that.

Alternative provision can offer a lifeline to some children and their parents, such as through smaller classes and more tailored support from teachers, helping them flourish, and I thank the hon. Member for Strangford (Jim Shannon) for raising the issue of children who may be very unwell. It is vital that young people in alternative provision, including those in pupil referral units, receive a high-quality education and are able to fulfil their potential. We need to be just as ambitious for pupils in alternative provision as we are for those in mainstream schools.

We have deliberately maintained a flexible approach to the funding of alternative provision, as we understand that local authorities discharge their responsibilities for those who are not in school in different ways. We expect local authorities to explore the most effective arrangements for alternative provision commissioning and funding in their area. They should always take account of the needs of local schools in determining the demand for alternative provision and how it is delivered, and encourage schools to think collectively about their use of AP, including the consequences of the decisions on excluded pupils.

Many local areas have developed strong partnership arrangements that seek to share responsibilities across schools for AP commissioning and funding. Local authorities and schools should be aware of the cost of maintaining good-quality AP in different settings and be able to make placement decisions on the basis of the cost and quality of what is on offer. There should be informed discussions in the local schools forum about how AP is funded. Funding for pupil referral units is normally provided as place funding and top-up funding. Funding of £10,000 per place is supplemented by top-up funding from the commissioner of the place.

[Vicky Foxcroft (Lewisham, Deptford) (Lab)]

Could the Minister outline what funding is provided for pupil referral units and alternative provision in order to provide the important inreach work being done in mainstream schools to support kids so that they do not end up in a pupil referral unit in the future?

[Nadhim Zahawi]

I am grateful to the hon. Lady for that intervention. I hope that my remarks will continue to deal with the issue of funding and how much investment we are making.

As I was saying, the funding of £10,000 per place is supplemented by top-up funding from the commissioner of the place. Both the number of places to be funded and the amount of top-up funding are matters that are decided locally. Top-up funding is the funding that is required in excess of the £10,000 place funding to reflect the full cost of the provision needed, depending on how long the pupil is expected to be in the unit and on other local factors. It can also reflect costs that enable those units to remain financially viable, which goes to my hon. Friend the Member for Bolton West’s point. It is important that places are available when they are needed.

In our operational guidance, we have advised that commissioning local authorities and schools should carefully consider the top-up funding arrangements to ensure that there are no perverse incentives and that the funding achieves the intended outcomes. It is possible to develop a top-up funding system that more closely reflects the achievement of the desired outcomes, as a way of encouraging high-quality AP. For example, an element of the payment could be withheld from the pupil referral unit until the pupil returns to his or her mainstream school or achieves another outcome.

Funding for AP comes primarily from the high-needs block of the dedicated schools grant. Based on local authorities’ reports of their spending, the Department estimates that around 10% of the high-needs budget is spent on AP. The proportion of spend on AP from the high-needs budget has remained roughly stable in the past few years. Last year, local authorities reported approximately £632 million of expenditure on AP, including on pupil referral units. However, schools are also able to commission AP places and services directly, and when a school does this, it is funded from its delegated share of the school block, which the local authority distributes to it through its local formula. Last year, the core schools and high-needs budget was almost £41 billion. This is set to rise to £43.5 billion next year. While more money is going into our schools, including into the high-needs block, we recognise the budgeting challenges that schools face and that we are asking them to do more.

Acknowledging that and the cost pressures on local authorities, and because children only get one chance at a great education, the Government have prioritised and protected schools and high-needs spending even while having to make difficult public spending decisions in other areas. Last month, we announced £250 million of additional funding for high needs over this financial year and the next, bringing the total high-needs allocation to £6.1 billion this year and £6.3 billion in 2019-20. We have listened to the particular concerns expressed by many local authorities and others, including Members of this House, about high-needs budget pressures, and additional investment will help local authorities to manage those pressures.

However, while funding is important, which is why we have protected the core schools budget in real terms per pupil from last year to next, funding is just one part of the story, because what happens to the money and the quality of AP are both important. That is why my Department is committed to reforming alternative provision and set out its plans for doing so in a reform road map last March. The plan for reform set out the aspirations of strengthening partnership arrangements for commissioning and delivering AP and the steps we are taking.

We are providing a stable evidence base for the reforms. The Department contacted Isos Partnership to undertake research into local AP markets. The research, published late last year, looked at the range and efficacy of different AP commissioning and funding models. It sought to engage local authorities, schools and AP across the country and shows that some areas are developing effective commissioning and funding arrangements between local authorities, schools and alternative providers to ensure that suitable provision is made for children with additional needs.

In Bath and North East Somerset, for example, funding from the high-needs block is devolved by the local authority to six behaviour and attendance panels across the area. These panels of primary and secondary heads are responsible for co-ordinating in-year admissions, supporting children at risk of exclusion, and managing referrals into alternative provision. The vast majority of schools in Nottinghamshire belong to schools partnerships, which receive high-needs funding from the local authority for both alternative provision and SEN support. When a school in Nottinghamshire excludes a pupil, the cost of their placement in alternative provision is recovered from the school or partnership in question. That system has resulted in an inclusive school system, with a low incidence of permanent exclusion—less than half the national average.

To build on what we have learnt of such arrangements, the Department announced its intention last month to launch a call for evidence to understand better the financial incentives that can affect decisions within the wider high needs funding system, including decisions relating to alternative provision, as my hon. Friend the Member for Bolton West rightly highlighted. We are also investing £4 million into an innovation fund for AP. This externally-evaluated fund is supporting nine innovative projects, from across the country, to understand more about how to improve outcomes for children in AP. The initiatives focus on supporting children in AP to make good academic progress and successful post-16 transitions, reintegration into suitable mainstream or special school placements, and increasing parental or carer engagement.

We are committed to protecting all children from exploitation and abuse, whether from county lines, gang activity, or sexual abuse, which is why this Government have invested £3.6 million in a new national county lines co-ordination centre as one of the key commitments in the serious violence strategy. The Department is also providing up to £2 million for a new national response unit to help local authorities to support vulnerable children at risk of exploitation by criminal threats. Good discipline in schools is essential to ensure that all pupils can benefit from the opportunities provided by education. The Government absolutely support headteachers in using exclusion as a sanction, where warranted. It is equally important that the obligations on schools are clear and well understood to ensure that any exclusion is lawful, reasonable and fair.

A review of exclusions, led by Edward Timpson, is under way. The review is considering how schools use exclusion and how it affects all pupils, but it is particularly considering why some groups of children are more likely to be excluded. The review will report its findings early this year, with the Department’s response to follow.

[Vicky Foxcroft]

The Minister said that he would return to the point about the inreach work that PRUs do with mainstream education and about how much funding is allocated towards that work. I have listened with great intent, and I do not believe I have heard that question answered.

[Nadhim Zahawi]

I am grateful to the hon. Lady for coming back on that point, which I was about to address. Local authorities can make arrangements for the supply of specialist support for mainstream schools by staff working in pupil referral units. The Department’s innovation fund has funded projects that include such measures and links between AP and schools. If she is unhappy with my response, and if she writes to me about a specific case, I will be happy to look at that as well.

I thank the hon. Member for Lewisham, Deptford (Vicky Foxcroft), my hon. Friend the Member for Bolton West and the hon. Member for Strangford, who is no longer in his seat, for contributing to this debate. I also pay tribute to the hard work of schools and local authorities, which continue to give their best and to raise the standards of our education system.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. Before I put the Question, I must inform the House that there was an error in calculating the number of votes of Members for English constituencies in the Division on motion 7 on the Higher Education (Fee Limits for Accelerated Courses) (England) Regulations 2018. The figures for the England-only vote should not have been announced as: Ayes, 269; Noes, 200. They should have been announced as: Ayes, 269; Noes, 194. The figures for the vote of the whole House are as previously announced, and the result is unaffected.

I appreciate the attention of the House. It is not an exciting announcement, but it is essential to set the record straight.

Question put and agreed to.

18:08

House adjourned.

Draft Interchange Fee (Amendment) (EU Exit) Regulations 2018

Tuesday 22nd January 2019 General Committees

The Committee consisted of the following Members:

Chair: David Hanson

† Badenoch, Mrs Kemi (Saffron Walden) (Con)

Bryant, Chris (Rhondda) (Lab)

† Ellman, Dame Louise (Liverpool, Riverside) (Lab/Co-op)

† Glen, John (Economic Secretary to the Treasury)

Hoey, Kate (Vauxhall) (Lab)

† Knight, Julian (Solihull) (Con)

† Lamont, John (Berwickshire, Roxburgh and Selkirk) (Con)

† Lewer, Andrew (Northampton South) (Con)

† Morris, Grahame (Easington) (Lab)

† Reynolds, Jonathan (Stalybridge and Hyde) (Lab/Co-op)

† Scully, Paul (Sutton and Cheam) (Con)

† Smith, Jeff (Manchester, Withington) (Lab)

† Sturdy, Julian (York Outer) (Con)

† Thewliss, Alison (Glasgow Central) (SNP)

† Tomlinson, Michael (Mid Dorset and North Poole) (Con)

† Walker, Thelma (Colne Valley) (Lab)

† Whittaker, Craig (Lord Commissioner of Her Majesty's Treasury)

Jack Dent, Committee Clerk

† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 22 January 2019

[Mr David Hanson in the Chair]

Interchange Fee (Amendment) (EU Exit) Regulations 2018

08:55

[The Economic Secretary to the Treasury (John Glen)]

I beg to move,

That the Committee has considered the draft Interchange Fee (Amendment) (EU Exit) Regulations 2018.

First, may I say what a pleasure it is to serve under your chairmanship, Mr Hanson? As the Committee will be aware, the draft regulations are part of a programme of legislation that is being undertaken by the Treasury, which will ensure that, if the UK leaves the EU without a deal or an implementation period, the UK will continue to benefit from a functioning legislative and regulatory regime for financial services. They will fix deficiencies in UK law relating to interchange fees applicable to card payments, as well as rules for card schemes, issuers, acquirers and merchants.

The approach taken aligns with that of other statutory instruments being laid under the European Union (Withdrawal) Act 2018, by maintaining the fundamentals of existing financial services legislation at the point of exit while amending it to ensure that it functions effectively in a no-deal context. The SI was debated and approved by the House of Lords last week, on 15 January.

Interchange fees are paid whenever a payment is completed using a debit or credit card. They are typically set by card schemes, for example Mastercard or Visa. They are paid from a merchant’s payment service provider, also referred to as a merchant’s acquirer—typically, the banks of the merchant and the consumer—to a card user’s payment service provider, also referred to as a card issuer.

The 2015 EU interchange fee regulation brought in two main policy interventions. First, it imposed caps on interchange fees for transactions where both the acquirer and the card issuer are located within the European economic area; the caps do not apply where either the acquirer or the card issuer is located outside the EEA. The caps limit interchange fees for such transactions to 0.2% of the total value of the transaction for consumer debit cards, including prepaid cards, and 0.3% for consumer credit cards. Furthermore, the EU interchange fee regulation allows individual member states to apply lower caps for domestic debit and credit card transactions where both the acquirer and issuer are in that country.

Secondly, the EU regulation sets rules on card schemes, issuers, acquirers and merchants. For example, it requires the separation of card schemes and processing entities, such as Worldpay.

In the event of no deal, that EU regulation would no longer include the UK within its scope, and interchange fees would therefore no longer be capped for payments involving a UK acquirer and an EEA card issuer. Higher interchange fees that might result from that could in turn be passed on to UK businesses and consumers, directly or indirectly. Without the change in scope to UK legislation introduced by the draft regulations, caps would still apply to card payments involving an EEA acquirer and a UK card issuer, which would result in asymmetrical obligations on UK card issuers vis-à-vis EEA card issuers.

The draft regulations make the following amendments in order to ensure that retained EU law related to the 2015 EU interchange fee regulation continues to operate effectively. First, they reduce the scope of the UK legislation relating to interchange fee regulation from the EEA to the UK, in line with the general principle as set out in the approach by Her Majesty’s Treasury to financial services legislation under the EU (Withdrawal) Act. That means that interchange fee caps will continue to apply to domestic card payments where both the merchant’s acquirer and the card issuer are located in the UK. The interchange fee caps will no longer apply to cross-border card payments where either the merchant’s acquirer or the card issuer are located outside the UK but within the EEA.

The draft regulations will continue to allow the Treasury to set lower caps on domestic consumer debit and credit card payments by making regulations that are exercisable by statutory instrument subject to the negative procedure. This approach mirrors the EU interchange fee regulation.

Secondly, the draft regulations will transfer from the European Commission to the Payment Systems Regulator the power to make regulatory technical standards regarding the requirements for separation of card schemes and their processing entities. That follows the Treasury’s general approach of delegating responsibility for technical standards to the appropriate UK regulator.

In drafting the regulations, the Treasury has engaged with the PSR and with industry. To maximise transparency to Parliament and industry, we published the regulations in draft on 16 November before laying them before the House. As set out in the accompanying explanatory memorandum, which was re-laid on 19 December, the most significant change is that interchange fee caps will no longer apply where either the merchant’s acquirer or the card issuer are located outside the UK but within the European economic area. Any resulting adjustment to interchange fees would be a commercial decision; such an impact would be a consequence of the UK leaving the EU, rather than of the approach taken in the regulations. The direct costs as a result of the draft regulations will be minimal—hence the de minimis impact assessment.

The draft regulations are necessary to ensure that the UK’s legislative and regulatory regime for financial services remains effective under a no-deal scenario. That will be to the benefit of UK business and consumers. I hope that colleagues from all parties will join me in supporting the draft regulations; I commend them to the Committee.

09:01

[Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)]

Good morning, Mr Hanson; it is a pleasure to see you in the Chair.

Once again, the Minister and I are here to discuss one of the many Treasury statutory instruments that make provision for the financial regulatory framework after Brexit in the event that we crash out without a deal. As he well knows, on each such occasion my Front-Bench colleagues and I have spelled out our objections to the use of secondary legislation in this manner, as well as the challenges of ensuring proper scrutiny of the sheer volume of legislation that passes through Delegated Legislation Committees.

The last instrument that we debated before Christmas related to a sprawling piece of EU financial legislation known as the markets in financial instruments directive. Our repeated requests to debate the instrument on the Floor of the House for 90 minutes were denied, even though there was ample parliamentary time. Such decisions diminish the good will between the Government and the Opposition; given the simple fact that every scenario before us requires some degree of legislative co-operation between us, that is of concern.

The prospect of no deal looms large after the chaotic events of the past week and the Government’s refusal to rule it out, so we must recognise that on 29 March, instruments considered by Delegated Legislation Committees may well become what we rely on—especially given the very real risk that the Government are simply running down the clock. Such instruments could represent real and substantive changes to the statute book, so they need proper scrutiny and in-depth analysis.

As the Minister said, interchange fee regulations on credit and debit cards form an important part of consumer protection. I was therefore very concerned to read in paragraph 2.8 of the explanatory memorandum that

“cross border card payments between the UK and the EEA, where the acquirer or card issuer are based in different jurisdictions, would no longer be subject to the caps established under EU or UK law, and the card issuer could receive higher interchange fees. This means, for example, that if a consumer used a UK-issued card to make a purchase from an EEA-based merchant acquirer, then neither the UK IFR or the EU IFR would apply, because the UK would be a third country vis-à-vis the EU.”

Will the Minister confirm my understanding of that paragraph, which is that no provision has been made to prevent cardholders from having to pay higher interchange fees from acquirers if we crash out without a deal? That seems to carry a very high risk of consumer detriment, given the prevalence of using cards to buy goods from across the EEA. As we are all aware, it is not uncommon for large retailers that operate in the UK and across Europe to channel payments across locations in the EEA—that is certainly the case for many large online retailers. Will the Minister therefore state the Government’s intention for the transposition of payment services directive II, which contains vital provisions to prevent surcharging for card usage?

Secondly, the legislation notes that the technical standards for interchange fee regulations will be transferred to the Payment Systems Regulator in the UK, which published a consultation on the matter in December 2018. The PSR is still a relatively new regulator. Can the Minister explain how the PSR will be sufficiently resourced to cope with that new workload?

The interchange fee regulations have been a large and contentious issue at an EU level for a number of years. They have required extensive engagement with stakeholders and the triangulation of competing interests. It is therefore no small matter to move those functions over to the domestic regulator. I shall be grateful if the Minister provides further detail on those points.

09:05

[Alison Thewliss (Glasgow Central) (SNP)]

It is a pleasure to join you here in Committee again, Mr Hanson. I echo a lot of the concerns that the hon. Member for Stalybridge and Hyde expressed about the scheme.

It seems to me that, as with all things to do with Brexit, we are moving backwards. The EU and the EU Commission have moved over many years to reduce fees to make transactions simpler. What we are doing here, particularly with the statutory instrument and the prospect of a no-deal Brexit in the offing, is going backwards—reducing the benefits that our citizens have, and their ability to carry out transactions, to work, travel and live across different countries and to carry out their business.

I seek a couple of points of clarification. My understanding is that the explanatory information differentiates between credit cards and debit cards, but that differentiation is not within the SI itself, which mentions only credit card transactions—

“0.3% of the value of the transaction for any UK credit card transaction.”

In the explanatory information, debit cards are differentiated from credit cards. I would like to understand from the Minister why that is the case. Obviously, it would be to the detriment of debit card users were they to pay that higher fee because they are not recognised in the legislation.

A briefing that I found on the legal firm Bird & Bird’s website mentions that higher interchange fees could be passed on to consumers, “either directly or indirectly”, as it says in the explanatory memorandum. Bird & Bird says that “indirectly” is perhaps

“a reference to the fact that UK merchants may increase their retail prices in order to recoup the increase in interchange fees.”

Baroness Bowles mentioned in the Lords that before the EU interchange fee was introduced in 2015, the cost passed on to goods across the EU was €9 billion in 2011 alone. I would like to know from the Minister the estimated cost of the fee to ordinary people buying things in shops, because he has not provided explanatory information on the basis that it does not make the £5 million threshold. That might be a cost to business, but what is the cost to consumers? It is unclear from what the Government have provided what the cost will be to consumers of increased interchange fees.

Bird & Bird goes on to say:

“The reference to ‘directly’ would seem to be a reference to surcharging. However it is not clear to us how this would be possible since the Consumer Rights (Payment Surcharges) Regulations 2012 prohibit merchants from surcharging consumer cards altogether (whether in relation to transactions that are subject to interchange fees caps, or not).”

I would be curious to hear from the Minister what “directly” refers to, because it does not seem to me that it is something that is permitted—certainly it is not as far as Bird & Bird is concerned.

Bird & Bird also noted the reference in paragraph (2) of regulation 11, “Final provisions”, to article 16 on universal cards. Bird & Bird says that

“it is proposed to keep the article on ‘universal cards’ under the UK regime—however this article is not relevant to the UK. It is relevant to a situation where consumer credit cards and consumer debit cards are ‘not distinguishable’”.

They definitely are within the UK. Bird & Bird goes on to say that that is

“applied exclusively (or at least primarily) in France.”

Bird & Bird is therefore not quite clear why that is being passed through. I appreciate that the Minister said that the instrument was not about making changes but about transposing things. However, it is transposing something that is not actually relevant. May we have further clarification on that?

May we also have a bit of clarity on how the matter will be monitored in future? The provision is for the event of no deal. We hope very much that that will not be the case, but if it is, the increase in UK-EEA cross-border transaction fees would be set by Treasury regulation. Will the Minister give more clarity on how that oversight of Treasury regulation would be carried out? Is this matter just for the Treasury to go off and decide? When we find that consumers are suddenly being charged more, how do we then question and monitor that in the years ahead? What is the Government’s plan for this area?

It just seems to me that this measure is giving too much power to commercial companies. The Government say that this matter will be a commercial decision for companies, but that will almost certainly be—because these things almost always end up being—to the detriment of our constituents. I would like to see a bit more pressure on the Government to keep a bit more control over these interchange fees, rather than letting the market decide, because as I said and as was pointed out before in the Lords, the market deciding ended up with customers losing out quite a lot.

We can all remember—it was not very long ago, indeed—that if we travelled and tried to make transactions, we would always get a fee on our bills. That fee has been reduced and the situation has improved over time. So I do not see why the Government should allow companies to decide this matter, when it has been EU regulations over the piece that have managed to drive down these fees, to the benefit of all of us in this country.

Finally, I just ask the Minister to rule out no deal, because we do not want to get to no deal. We do not want this piece of legislation that we have been poring over actually to end up being used, because that would be a disaster for all of us, right across these islands, and I hope very much that we do not get to a no-deal situation. It would be useful to hear more from the Minister on that issue.

09:11

[John Glen]

I thank the hon. Members for Stalybridge and Hyde and for Glasgow Central, for their points. I will do my very best to respond to them all.

First, I will address the overall context of where we are. It would be wholly undesirable for us to have a no-deal outcome, but my job is to deliver 63 statutory instruments to ensure that we have a functioning regime in place. Never has so much effort gone in to achieving something that hopefully we will not need.

I acknowledge the rigour and seriousness with which the Opposition Front Benchers have taken to this task, and I take on the points that are repeated each time. All I can say is that I will seek to maintain good will by giving as full an explanation as possible. Where I can, I will follow up with letters if I do not know all the responses that are sought.

Now I will seek to address the points that have been made, in sequence. The hon. Member for Stalybridge and Hyde mentioned the issue that was raised in the Lords concerning, first of all, the scope of this measure and why we are taking action under this mechanism. This SI reduces the scope of the UK legislation relating to interchange fee regulation from the EEA to the UK, and it maintains caps on transactions that involve only UK entities. It is laid under the EU (Withdrawal) Act, which transfers directly applicable EU law to the UK statute book, and it gives the Government the power to amend legislation to fix any provisions. However, it does not allow us to innovate.

Baroness Bowles of Berkhamsted legitimately wanted us to move forward and insert a cap so that we would not be vulnerable in a third-country situation to whatever might come from the EEA, but that is not something that the Government are permitted to do under this legislation. So, the measure is limited just to making those fixes, to restrain the Government from that sort of proactive innovation.

Linked to the point about the payment services directive, I will say that all legislation that is ongoing through the EU will be subject to the in-flight files Bill, which is now going through the House of Lords and will come to the Commons, I believe in February. That will determine the mechanism by which we onshore files that are ongoing.

So, there is a deliberate restraint on innovation during this SI process, which therefore prompts questions. However, what we cannot do in this situation is to assert proactively what sort of third country we want to be to the EU, when the EU has not offered a reciprocal arrangement that would make sense.

[Jonathan Reynolds]

I understand very clearly what the Minister is saying. However, we have sold this process to the public and to our colleagues in the rest of Parliament as a process that continues the status quo. I understand that logically what the Minister is saying is absolutely right; effectively, he is saying that we cannot innovate to provide for the status quo. By transposing this measure, however, we are actually diminishing the position of British consumers, which is of concern.

[John Glen]

I fully recognise that that is a legitimate point to raise, but in addition to this process we have the in-flight files Bill, which determines how we would go about onshoring—or not—provisions of ongoing directives, and we are also working on financial services legislation for the 2019-20 session, which would seek to respond holistically to the challenges that would be presented in a no-deal scenario. We are not passively waiting to be vulnerable, but this is the first stage of a process that we would have to undertake. It would be complex and time-consuming, and there would be a lot of work to be done, but that is where we are.

With respect to the challenge posed by the hon. Member for Glasgow Central about no deal, I really do not want to see a no-deal. There are a lot of observations that a managed no-deal would be okay, but what is not clear to me is how one determines that degree of management. It seems to me to be quite a random set of actions and the consumer detriment in the short term would be considerable.

I have covered the point about why I am using secondary legislation rather than primary legislation, and the constraints under which I have to act. I was asked about the capacity and expertise of the payment systems regulator to deal with these new responsibilities. The payments systems regulator was set up four years ago. It has issued public statements on the actions that it is taking. In the Treasury, we are confident that it will be making adequate preparations and effectively allocating resources ahead of March 2019. It has responsibility for monitoring and enforcing compliance with the new interchange fee regulation and for some regulation of the UK payments systems. We remain confident in its ability to continue to discharge its responsibilities.

The hon. Member for Glasgow Central raised the issue of the de minimis impact assessment. It has been prepared in line with the better regulation guidance, and we consider that the net impact on businesses would be less than £5 million a year. There is potential for limited costs relating to compliance reporting to the payments systems regulator, and that is where that cost comes from. Firms will benefit from the reduction in uncertainty under a no-deal scenario, and without this instrument legislation would be defective and firms would be left to deal with an unworkable and inconsistent framework that would substantially disrupt their businesses.

The hon. Lady made a number of points related to the Bird & Bird legal paper. I have not seen that. To be fair, I would prefer to reflect on that fully and write to her in detail, so I can address some of the concerns raised around different drafting elements of it. She asked whether the SI capped debit card fees. We are maintaining a domestic cap for debit and credit card transactions. Those are referred to in amendments made to articles 3 and 4 by regulations 6(1) and 7(1). However, their derivation applies only to debit card transactions in the existing law.

I was asked about the broader question of monitoring the interchange fee in future, as a third country in a no-deal situation. Clearly, the Government keep all policy under review, but we would need to look proactively as soon as possible at what would be the appropriate arrangement to come to. As has been made clear in the discussion this morning, if we were a third country the 0.2% and 0.3% cap would not automatically be applied, and that would have serious implications.

[Jonathan Reynolds]

I understand what the Minister is saying about the unworkability of the legislation if this does not go through, but from what he is saying it seems that if this SI were not passed, the British consumer would be in a stronger position than if it were passed. When we think about the circumstances of no deal—immediate tariffs, almost certainly some further depreciation of sterling, higher inflationary pressures—I am not sure that we are in a position to say that passing this legislation is in the best interests of the British consumer.

[John Glen]

We have to remember that this is in a no-deal situation; we would be outside and without the scope of the EU regulations of which we are currently a part. We would have no regulations for maintaining the caps within the UK. All we are doing is domesticising that existing provision as far as we can, within a UK environment. In our engagement with industry and with the PSR, it has been recognised that this is necessary but it is not the final solution. That is why there would need to be further innovation and policy work subsequently, as I have set out.

In conclusion, the SI is needed to ensure that the UK continues to have a functioning legislative and regulatory regime for payment card interchange fees in the event of a no-deal scenario. I have reiterated my belief that that should not be the outcome we secure in the end, but I hope I have dealt with the points raised. I will return to the hon. Member for Glasgow Central on her specific concern about the Bird & Bird note, and I shall make that available to the Committee.

[Alison Thewliss]

I thank the Minister for his offer to write and for the welcome letters he has sent after previous inquiries. Does he accept, however, that this is completely inadequate? We came here this morning with serious questions, and we are being asked to approve the SI without any impact assessment. It is great that the Minister will write to us, but that will be after we have voted.

[John Glen]

I draw the hon. Lady’s attention to the de minimis assessment that was passed as per the rules of the House and that sets out the impact of this SI, as well as to the consequences of our engagement with industry and the regulator that suggest that it is necessary in a no-deal scenario. The hon. Lady refers to specific legal drafting, which I am confident can be addressed. There is scope within the SI programme, in the last four or five SIs, for us to address any issues that have been raised, but the regulations have been scrutinised by the Lords Committee and no points were raised. I do not take her concerns lightly, but when referring to legal drafting I do not want to give an ad hoc response when that would clearly be problematic. I hope that members of the Committee have found this morning’s sitting as informative as I could make it, and that they will join me in supporting the regulations.

Question put and agreed to.

09:22

Committee rose.

Draft Equality (Amendment and Revocation) (EU Exit) Regulations 2018

Tuesday 22nd January 2019 General Committees

The Committee consisted of the following Members:

Chair: Sir Graham Brady

† Atkins, Victoria (Parliamentary Under-Secretary of State for the Home Department)

Beckett, Margaret (Derby South) (Lab)

† Bradley, Ben (Mansfield) (Con)

† Butler, Dawn (Brent Central) (Lab)

† Charalambous, Bambos (Enfield, Southgate) (Lab)

Crawley, Angela (Lanark and Hamilton East) (SNP)

† Daby, Janet (Lewisham East) (Lab)

† Duguid, David (Banff and Buchan) (Con)

† Freer, Mike (Lord Commissioner of Her Majesty's Treasury)

† Goldsmith, Zac (Richmond Park) (Con)

† Grant, Mrs Helen (Maidstone and The Weald) (Con)

Hodge, Dame Margaret (Barking) (Lab)

† Maclean, Rachel (Redditch) (Con)

† Quince, Will (Colchester) (Con)

† Reynolds, Emma (Wolverhampton North East) (Lab)

† Thomson, Ross (Aberdeen South) (Con)

† Yasin, Mohammad (Bedford) (Lab)

Medha Bhasin, Committee Clerk

† attended the Committee

Sixth Delegated Legislation Committee

Tuesday 22 January 2019

[Sir Graham Brady in the Chair]

Draft Equality (Amendment and Revocation) (EU Exit) Regulations 2018

14:35

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

I beg to move,

That the Committee has considered the draft Equality (Amendment and Revocation) (EU Exit) Regulations 2018.

It is a pleasure to serve under your chairmanship, Sir Graham. I note in passing that the consisted list is incorrect, so for the record, I re-promote you to Sir Graham.

[The Chair]

You are very kind.

[Victoria Atkins]

I am pleased to present to the House the draft Equality (Amendment and Revocation) (EU Exit) Regulations 2018. The regulations do not introduce any new policy, but in common with others currently passing through Parliament, they are part of the Government’s commitment to delivering a managed exit from the European Union.

The regulations make purely technical changes to the Acts listed, and ensure that our equalities legislation continues to operate effectively after exit day. They are wholly consistent with our commitment to upholding equalities protections across the United Kingdom as we leave the European Union, including those previously conferred by EU law, which have now been incorporated into domestic law through the European Union (Withdrawal) Act 2018.

I am proud to say that the provisions in the Equality Act 2010, to which the bulk of the amendments relate, provide some of the strongest equalities legislation in the world. That includes provisions to provide comprehensive protections from discrimination, harassment and victimisation on the grounds of nine protected characteristics. We are determined to ensure that the 2010 Act will continue to give certainty and continuity to, among others, employees, employers, and service users—creating a stable environment in which the UK economy can grow and thrive. By passing the regulations, Parliament would ensure that those hard-won protections continue to operate after we have left the European Union.

Although I appreciate that hon. Members may not require, or indeed welcome, a detailed description of each of the regulations, I hope that the Committee will find it useful if I set out the legislation that is being amended and use an example for illustrative purposes. The draft regulations amend references to “enforceable EU rights”; references to EU law and the European economic area; and specific EU directives and harmonisation provisions. Those elements will become deficient after EU exit unless they are amended. The draft regulations amend such references in the 2010 Act, the Civil Partnership Act 2004, the Gender Recognition Act 2004, and the Equality Act 2006, which established the Equality and Human Rights Commission and sets out its governance arrangements and powers.

The draft regulations also make minor amendments to the Equality Act 2010 (Amendment) Regulations 2012, which implement a ruling of the Court of Justice of the European Union that sex should not be used as a risk factor in determining individuals’ insurance premiums and benefits, and amend the corresponding Northern Ireland regulations. We have worked closely with the Scottish Government and with the Equality and Human Rights Commission to draft the regulations, and we are pleased that both bodies have helped us with their preparation.

Lastly, two pieces of retained direct EU legislation are being revoked. One is regulation 1922 of 2006, which established the structure and governance of a European Institute for Gender Equality—the research papers for that institute are available on the web. The regulations simply concern the structure of the organisation, which will not be of relevance to us following our exit. The other is decision 771 of 2006, which established the European Year of Equal Opportunities for All of 2007. As the title suggests, it is a little past its sell-by-date.

In conclusion, I hope that I have reassured hon. Members that the sole purpose of the draft regulations is to correct deficient or redundant provisions in the legislation, which we simply want to work as Parliament intended after we have left the EU. That is why we have presented the regulations, which I commend to the Committee.

14:35

[Dawn Butler (Brent Central) (Lab)]

I thank the Minister for outlining the parts of the regulations that have been revoked and the reasons for that. We are inclined to support this technical statutory instrument, but I would like to ask the Minister some questions. On our leaving the European Union under the European Union (Withdrawal) Act 2018, the EU charter of fundamental rights will cease to apply in the UK. I thank the Face Her Future campaign, which is run by a coalition of lots of women’s organisations, for doing great work on this issue.

[Janet Daby (Lewisham East) (Lab)]

Does my hon. Friend agree that if we leave the EU, it is vital that we do so with more rights, not fewer?

[Dawn Butler]

That is absolutely vital, and it feeds into some of the questions that I want to put to the Minister to ensure that we not only maintain our current rights but can improve our rights.

The Minister talked about revoking a couple of pieces of legislation. I need clarification that the regulations do not amend any provision in the equalities legislation or repeal any current legislation. The Prime Minister has previously refused to rule out scrapping the working time directive, the agency directive and the pregnant workers directive. It is imperative that equality and human rights legislation is protected once the UK leaves the EU. Will the Minister give some legislative assurances that these rights will be protected and improved?

I know that the Minister has been working with the Equality and Human Rights Commission, which has found that our rights will be seriously diluted when the charter no longer applies in the UK once we have left the EU. Will she provide some clarification on that? We welcome the inclusion of the European protection orders in the transition period, which is already set in statute. Once we leave, the Government will need to opt in to this protection. Can the Minister confirm that we will opt in? How will the UK replicate the protections and funding currently provided by the EU? Once we leave, obviously that will all disappear.

There is a genuine concern that we will not be able to keep up with the protection of gender equality for UK citizens. We need a broad commitment from the Government, because there are directives currently in play that we will have no access to, such as the directive on work balance for parents and carers. It would be useful to know how we will keep up with those kinds of directives.

The Minister knows that we have discussed on the Floor of the House the number of gaps in the protection of women, on which we urge the Government to take action. As I have this opportunity, I ask the Minister to update us on progress on reinstating section 40 of the Equality Act 2010 to protect against third-party sexual harassment; on amending the regulations to require large employers to provide action plans to tackle their gender pay gap; and on enacting section 106 of the Equality Act to require all political parties to report diversity data on their candidates. Any updated progress on that would be very much appreciated.

I have just a couple more questions. What steps will the Government take to ensure that the UK keeps pace with EU measures that maintain gender, race and LGBT+ equality? Will the Government commit to ensuring that women’s service providers, including women’s refuges and other domestic abuse services, receive stable funding through the UK’s shared prosperity fund? Obviously, we will lose a lot when we leave the EU.

Research by the Migration Observatory identified categories of EU citizens at risk of failure to secure their rights after Brexit. The Prime Minister mentioned yesterday that the charges had been removed, which is very welcome, but the research shows that women and girls are over-represented in groups that will be disproportionately negatively affected, especially EU citizens and victims of domestic abuse and other forms of violence against women and girls. They may find it difficult to access the documentation needed to prove that they have been here for five years. Can the Minister shed any light on whether there will be any flexibility for victims who are unable to prove five years of continuous residency?

It is common knowledge that there is strong evidence that Brexit would have a negative impact on the UK economy overall, with a no-deal scenario being the most damaging. In line with the Women’s Budget Group report last year, which looked at the impact of Brexit on women, are the Government taking any steps to ensure that trade agreements and policies reflect the gender equality objective and do not increase barriers to women’s economic empowerment?

[The Chair]

Before I call the Minister to respond, I remind the Committee of the very narrow scope of the matters before us. I allowed the shadow Minister to range a little wider because, as she said, she was taking an opportunity, and there may be one or two things that the Minister would like to clear up. I hope that the Minister will not digress too much into the wider economic debates about future relationships and that she will bring the debate back to the starting point of today’s business.

14:42

[Victoria Atkins]

I am grateful for that nudge, Sir Graham. I thank the hon. Lady for her response and for her support for the regulations. If I may—taking the Chair’s guidance to heart—I will write to her on matters that I cannot cover in the debate.

The regulations do not cover the charter because we are copying EU law straight into the statute book after exit day. Protections from the European Convention on Human Rights are provided for directly in our domestic law via the Human Rights Act 1998. I will go into more detail on the charter in my correspondence with the hon. Lady.

To reassure colleagues who are concerned about ensuring that we keep pace with the EU in maintaining gender equality, we will of course be free to set our own priorities after we leave. I note that we are leaders when it comes to issues such as the gender pay gap and tackling modern slavery, which, as the hon. Lady knows, can have a terrible impact on women who are trafficked for sexual enslavement. We do not see our exit from the EU as reducing our commitment to human rights and, indeed, we are fully committed to the retention of all rights under the Acts and equivalent Northern Ireland provisions.

On the transition period, if the House does not approve a deal, there will be no transition period. We are carefully introducing regulations so that, whenever exit day occurs—regardless of whether there is a transition period—the legislation remains workable and as Parliament intended.

The two pieces of legislation that we are seeking to revoke are frankly way out of date and do not cover what we now consider, 12 years later, as part of our human rights landscape. That is the only reason why we are revoking them. Of course, we remain committed to maintaining human rights. We want the Equality Act 2010 to be absolutely as strong as Parliament intended, which is precisely why we have brought the draft regulations. Unless hon. Members have any other points to make at this juncture, I invite the Committee to support the regulations.

Question put and agreed to.

14:45

Committee rose.

Draft Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, Etc., and Transitional Provision) (EU Exit) Regulations 2018

Tuesday 22nd January 2019 General Committees

The Committee consisted of the following Members:

Chair: Sir David Crausby

† Blackman, Kirsty (Aberdeen North) (SNP)

† Dodds, Anneliese (Oxford East) (Lab/Co-op)

† Eagle, Maria (Garston and Halewood) (Lab)

† Glen, John (Economic Secretary to the Treasury)

† Hayes, Sir John (South Holland and The Deepings) (Con)

† Heald, Sir Oliver (North East Hertfordshire) (Con)

† Herbert, Nick (Arundel and South Downs) (Con)

† Lopez, Julia (Hornchurch and Upminster) (Con)

† McCarthy, Kerry (Bristol East) (Lab)

† McGovern, Alison (Wirral South) (Lab)

† Merriman, Huw (Bexhill and Battle) (Con)

† Metcalfe, Stephen (South Basildon and East Thurrock) (Con)

† Smith, Jeff (Manchester, Withington) (Lab)

† Streeting, Wes (Ilford North) (Lab)

† Swayne, Sir Desmond (New Forest West) (Con)

† Walker, Thelma (Colne Valley) (Lab)

† Whittaker, Craig (Lord Commissioner of Her Majesty's Treasury)

Dominic Stockbridge, Committee Clerk

† attended the Committee

Ninth Delegated Legislation Committee

Tuesday 22 January 2019

[Sir David Crausby in the Chair]

Draft Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018

14:00

[The Economic Secretary to the Treasury (John Glen)]

I beg to move,

That the Committee has considered the draft Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018.

It is a pleasure to serve under your chairmanship, Sir David. As part of our contingency preparations for a no-deal scenario, the Treasury has been undertaking a programme of legislation to ensure that if the UK leaves the EU without a deal or an implementation period, there will continue to be a functioning legislative and regulatory regime for financial services in the UK. To deliver that, we are laying statutory instruments before the House under the European Union (Withdrawal) Act 2018. A number of those instruments have already been debated in this place and in the House of Lords. The draft regulations are part of that programme.

The draft regulations will fix deficiencies in UK law to ensure that regulations on over the counter derivatives, central counterparties and trade repositories continue to operate effectively post exit, following an approach that aligns with that of other instruments laid under the 2018 Act: providing continuity by maintaining existing legislation at the point of exit, but amending it where necessary to ensure that it works effectively in a no-deal context. They are the last of three sets of regulations to address deficiencies in the European market infrastructure regulation—EMIR—and ensure that an effective regulatory framework is in place for over the counter derivatives, central counterparties and trade repositories in a no-deal scenario. They follow two instruments that have already been debated and made: the Central Counterparties (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018 and the Trade Repositories (Amendment and Transitional Provision) (EU Exit) Regulations 2018.

EMIR is Europe’s response to the G20 Pittsburgh commitment made in 2009 to regulate over the counter derivative markets in the aftermath of the financial crisis. It imposes requirements on all types and sizes of entities that enter into any form of derivative contract, including those not involved in financial services, and establishes common organisational, conduct-of-business and prudential standards for central counterparties and trade repositories. It places three main requirements on entities that enter into any form of derivative contract: reporting to a trade repository every derivative contract that they enter into, implementing new risk mitigation standards for uncleared derivative contracts, and clearing through a central counterparty those over the counter derivatives that are subject to a mandatory clearing obligation.

A derivative is a financial contract linked to the fluctuations in the price of an underlying asset or basket of assets. Common examples of assets on which a derivative contract can be written include interest rates instruments, equities and commodities. Over the counter derivatives, which make up the vast majority of the derivatives market, are derivatives that are privately negotiated and not traded on an exchange. Central counterparties stand between counterparties in financial contracts, becoming the buyer to every seller and the seller to every buyer. By guaranteeing the terms of a trade, even if one party defaults on the agreement, they reduce counterparty risk. Trade repositories centrally collect and maintain the records of derivatives and play a key role in enhancing the transparency of derivative markets and reducing risks to financial stability.

In a no-deal scenario, the UK would be outside the European economic area and outside the EU’s legal, supervisory and financial regulatory framework. The draft regulations will therefore address deficiencies in EMIR and related UK legislation to ensure that the UK continues to have an effective regulatory framework for over the counter derivatives, central counterparties and trade repositories in a no-deal scenario.

First, they will provide for a continuation of the key requirements set out in EMIR and transfer the relevant EU functions to UK authorities, ensuring that the UK remains compliant with its G20 commitments and maintains a safe and transparent derivatives market. Those requirements include the clearing obligation—the requirement that certain derivatives contracts be cleared through authorised or recognised central counterparties—and the reporting obligation, which is the requirement that firms report details of their trades to an authorised or recognised trade repository. They also include the margin requirements—the provisions in EMIR that dictate that derivative contracts not cleared through a central counterparty should be subject to higher margin requirements.

The margin requirement compels firms to put forward money to cover the costs associated with trades. To have a framework in place to facilitate these requirements, the relevant functions are transferred from the European Securities and Markets Authority to the UK regulators, namely the Financial Conduct Authority, the Prudential Regulation Authority and the Bank of England.

The responsibility for drafting binding technical standards relevant to EMIR is also transferred to UK regulators. The Bank of England will take responsibility for specifying which classes of over the counter derivatives should be subject to the clearing obligation, and will set the phasing in of new clearing obligations for firms regulated by the PRA, with the FCA setting the phasing in for all other firms. The FCA will assume new supervision and enforcement powers for UK trade repositories and the ability to suspend the reporting obligation for firms for up to a year, in the unlikely scenario where no trade repository services are available. The PRA will take on the function of specifying the over the counter derivative margin requirements for those financial counterparties that are authorised by the PRA, with the FCA responsible for setting the requirements for all other cases.

Secondly, the draft regulations transfer the power of granting equivalence decisions for non-UK trade repositories from the European Commission to the Treasury, and transfer functions for recognising non-UK trade repositories from ESMA to the FCA. They also remove from the equivalence process the requirement for an international data agreement, to take into account the UK position outside the EU financial services framework.

Thirdly, the draft regulations create a temporary intra-group exemption regime. Under EMIR, intra-group exemptions may be granted to allow parts of corporate groups to be exempt from the clearing obligation and certain requirements of the risk management obligations, such as the margin requirements, when trading with each other. In a no-deal scenario, after exit day certain cross-border exemptions granted before exit day will no longer apply to the UK. The regime will ensure that intra-group transactions that are exempt from the EMIR requirements before exit day or currently will continue to be so after exit day, to avoid any unintended additional cost and burden on UK firms. The regime will last three years from exit day to allow time for the FCA to determine a permanent exemption, and can be extended by the Treasury if necessary. Under the MiFID II—the second markets in financial instruments directive—legislation, there is an exemption from clearing and margining for certain energy derivative contracts and this exemption is maintained in the draft regulations.

Finally, changes are made to ensure that redundant EU processes that will no longer apply after exit, are removed and replaced with relevant UK processes. Under EMIR, EU trade repositories are authorised and supervised by ESMA and follow the EU's processes of appeal. However, following the transfer of functions from the trade repositories SI, it will be the FCA rather than ESMA who will authorise and supervise trade repositories operating in the UK after exit. EU central counterparties are supervised by colleges, which are groups of EEA regulators that oversee the jurisdiction in which central counterparties and their members are based. After exit day, the UK will be independent from EU jurisdiction and will no longer be required to comply with the EU college system; that regulatory oversight will instead be provided by the Bank of England.

Provisions relating to obligations of member states to share information with ESMA will also be omitted as after exit the UK will no longer be part of the EU supervisory framework. That will not preclude the regulators co-operating with each other in future, as appropriate.

The Treasury has been working closely with the FCA, the Bank of England and industry bodies. The statutory instrument was published in draft form, with an explanatory policy note on 5 December 2018, to maximise transparency to Parliament, industry and the public ahead of laying. Regulators and industry bodies have generally been supportive of, and welcomed, the provisions in this SI. The Government believe that the proposed legislation is essential for ensuring the UK continues to have an effective regulatory framework for over the counter derivatives, central counterparties and trade repositories if the UK leaves the EU without a deal or an implementation period. I hope that colleagues will join me in supporting the draft regulations and I commend them to the Committee.

14:39

[Anneliese Dodds (Oxford East) (Lab/Co-op)]

It is a pleasure to serve on the Committee with you in the Chair, Sir David. It is a pleasure to once again sit across from the Minister. I am grateful to him for his opening comments.

We are yet again in Committee to discuss a Treasury statutory instrument that makes provision for the financial regulatory framework after Brexit in the event that we crash out of the EU without a deal. On each such occasion, I and my Labour Front-Bench colleagues spell out our objections to the use of secondary legislation in this manner, as well as the challenges of ensuring proper scrutiny of the sheer volume of legislation passing through Committee. The frustration that we must spend time and resources—£4.2 billion—creating a framework that might never be used has already been expressed in Committee. I am sure that hon. Members are aware that yesterday there a Committee divided because of ambiguities over customs arrangements for our Crown dependencies. Just before Christmas, we sought a debate on the Floor of the House concerning the transposition arrangements for MiFID, but were rebuffed by the Government. Today, we are yet again being asked to pass legislation without any impact assessment having been provided and with many aspects of the legislation going unexplained. That is just not good enough.

Because of the dangerous game being played by the Prime Minister and her party, instruments being passed through Committee may well not disappear into the ether on 29 March. They could represent real and substantive changes to the statute book, so they need proper and in-depth scrutiny. Equally, we must bear in mind the stress that financial markets would be under were the Government to allow the no-deal scenario to be realised. This instrument must be considered through that lens.

As the Minister explained, the main purpose of the instrument is to transfer responsibilities from EU institutions to the Bank, PRA and FCA and to establish a temporary intra-group exemption regime. That regime will initially last three years, to ensure that intra-group transactions can continue to be exempted from EMIR requirements. Colleagues will be aware that the EMIR system was created in the wake of the financial crisis to ensure that over the counter derivatives would be logged and cleared—conducted through central clearing counterparties in many cases, as the Minister explained—and, where necessary, that margin would be posted. That was required to provide more market transparency and to prevent the kinds of contagion that were in evidence during the financial crisis. EMIR has not been a completely uncontentious technical package of legislation—quite the opposite. There has been controversy about its scope. When I was a Member of the European Parliament, I was involved in discussions about its scope when applied to non-financial firms.

We must act to secure the future of UK derivatives clearing services. Those services play an important role in helping to increase the resilience of our financial system by decreasing the risk of trading. A no-deal Brexit could pose significant risks to access by European traders to services in the UK, as well as vice versa, so although many elements of these measures would be necessary in the event of no deal, we need to know that there would be reciprocation from the rest of the EU. That means working with our partners in the EU to guarantee that we will be granted equivalence rights for UK clearing services in the case of no deal if the Government insist on not ruling that out. I hope that the Minister will inform us of any assurances that he has received from ESMA and others on that point.

As was echoed in the Minister’s comments, the explanatory memorandum for this instrument states that it is aimed at making

“derivatives markets safer and more transparent”

in the event of no deal, but I have questions about the drafting that I hope the Minister can answer. The first and most significant point is that, yet again, we are in Committee without an impact assessment for the instrument. That contradicts the claim on the first page of the explanatory note for these measures, which states:

“An impact assessment of the effect that this instrument, and other instruments made by HM Treasury under the 2018 Act”—

the European Union (Withdrawal) Act—

“at or about the same time…is available from HM Treasury…and is published alongside this instrument at www.legislation.gov.uk.”

I wasted quite a bit of time looking for the impact assessment. Incidentally, I also looked for the instrument; it is not on that website, either, from what I can see. Later on in the text of the explanatory memorandum I understood why. Section 12.5 states:

“An Impact Assessment has been prepared and will be published alongside the Explanatory Memorandum on the legislation.gov.uk website, when an opinion from the Regulatory Policy Committee has been received.”

[Maria Eagle (Garston and Halewood) (Lab)]

Does my hon. Friend agree that such statements, whether they were drafted when the intention was to publish a proper impact assessment, as it states, are misleading to the Committee? I have every sympathy with staff rushing to prepare all kinds of statutory instruments, but the fact is that it completely undermines the capacity of the Committee properly to scrutinise this instrument.

[Anneliese Dodds]

I strongly agree. My hon. Friend is absolutely right that our civil servants are being placed under enormous pressure. None of us underestimates the enormous challenge they face, but equally, as Members of this House, we need to be able to scrutinise legislation properly. That requires knowing when we will have those kinds of documents available to us or otherwise.

I am aware that the Minister said to me at the last such Committee that I attended that the Regulatory Policy Committee was looking at a number of the no-deal related Brexit SIs in the round, in terms of impact assessment, but that its processes take some time to work through and we should receive the assessment soon. I understand the challenges facing the Regulatory Policy Committee—it is facing an almost impossible task—but we need those assessments. When does the Minister expect the Regulatory Policy Committee to be finished with its task? Was it the right decision for it to lump together a number of different SIs and conduct the impact assessment collectively? Is that approach being taken to other bodies of legislation? I know that financial services are particularly complex, but presumably we have similar complex constellations in other areas of no-deal planning. Committee members need to have some degree of certainty that more information will become available. Hon. Members are deeply concerned about that.

Secondly:

“Part 2 of this instrument also introduces a power for the FCA to suspend the reporting obligation for a period of up to one year and with the agreement of HM Treasury, in a scenario where there is no registered or recognised UK TR available.”

I was not able to find out before the sitting whether that provision exists within EMIR itself—that the reporting obligation would be suspended if there was no recognised or registered TR at EU level—but it would be helpful to hear from the Minister in what scenario the Government envisage that a UK trading repository would not be available. He said in his comments that this was unlikely, but if this has been identified as a potential issue and if gaps in provision are possible, we should be making provisions now for equivalence, so that there would not be any risk of detriment to UK market participants, but there does not seem to be anything in this SI, which aims towards that.

Five of the registered trading repositories seem to my eye—admittedly non-expert—to have at least some kind of a presence in London, whereas only two of them are based entirely outside the UK, in Poland and Sweden. Therefore, the converse question also applies. What will happen to the EU’s EMIR regime if UK-based trading repositories cannot provide a service to EU27-based traders? I ask specifically about this because it is surely essential that the reporting obligation is maintained so that transparency continues to be a feature of both UK and EU27 derivatives trading. This is a highly internationalised activity.

Thirdly, the statutory instrument states:

“Provisions relating to TR appeals, fines, supervisory fees, penalties and other supervisory requirements are being omitted and replaced with provisions that align with those already contained in the Financial Services and Markets Act 2000 (FSMA) concerning supervision and enforcement”.

However, no indication is provided here of whether these are more or less onerous. Can the Minister enlighten us on that score? Again, there is no clear indication here of the additional resourcing that might be required. That is something we talked about a lot in this Committee until now. This is occurring in a context where the FCA has never before had responsibility for dealing with the supervision of EMIR-related functions.

Finally, the draft regulations transfer powers from the European Commission to the Treasury and from ESMA to the FCA, as with MiFID no-deal transposition, which has already been passed. Most equivalence decisions will be made by the FCA, but as the Minister just confirmed again, those on central counterparty clearing houses will ultimately be made by the Bank of England, so this will not be occurring through the collegiate system that applies currently at the EU level. Will the Minister give us more background? Why is it happening? It sounds like a policy judgment, but we have not been provided with a rationale. As the Opposition have pointed out before in Committee, the Government are effectively trying to transpose the Lamfalussy process into the UK institutional context, but the Commission and ESMA do not interact in the same way as the Treasury interacts with the FCA. There is a different relationship. It is surely inappropriate to port the powers over without any change to supervision. I hope the Minister will give us some assurance on that point. Also, we really need clarity on when the impact assessment will be available if we are to be willing to allow this SI to pass.

14:51

[Kirsty Blackman (Aberdeen North) (SNP)]

I am not the Scottish National party’s most regular contributor to this Committee, so I have some learning to do before I get to the level of knowledge that many people in this room have. I have a few questions in relation to the information that has been provided to us and also some of the information that has not been provided to us.

My first question is about the lack of consultation on this statutory instrument. The explanatory memorandum says clearly that no consultation has been undertaken on the instrument, although it says that the Government have been interacting with the Bank of England and the FCA in relation to the drafting of this regulation, which I appreciate. I am pleased that the Treasury put it online back in October so that people could access it. It would be useful to understand how many people engaged with that process. Were representations made by individuals and companies or those who use these regulations and are governed by them? If the Government put them online and only four people see them, there seems little point in doing so. The Government should publicise the fact that the regulations are online for people to comment on. Also, it would be useful for people who might want to comment to know that the Government take comments on board and might actually make changes to the draft instrument before it comes to Committee. Even the Minister’s making a statement to that effect would be useful for the people who think, “Is there a point in me spending my time writing a submission on this SI when the Government are just going to ignore me, anyway?” If the Government were willing to say that they would take on board representations, it would be helpful.

My second question is about the intragroup regime and the period of time when it will happen, which is a three-year period with the possibility for extensions, as the Minister mentioned. The explanatory notes state that

“equivalence decisions will be sought, allowing for the establishment of new permanent exemptions.”

I am not clear about the exact process for those equivalence decisions being made, as mentioned by the hon. Member for Oxford East. Are such decisions difficult to achieve or relatively smooth? If we have the three-year time period, will there be sufficient time for equivalence decisions to happen, and in adequate ways so that the legislation equivalence rules that we have going forward are appropriate? Does the Minister foresee that being a smooth or a difficult process, and, to allow those things to happen, will it require input from lots of people whom we have no control over?

My next point relates to no deal. The explanatory memorandum states that the Government do not anticipate no deal happening, although, since it was written, things look a little different from the Government’s point of view. I am still not particularly clear on any of the statutory instruments that come forward. A lot of them seem to be things to do with no deal as well as things to do with deal. I am not always entirely clear which bits relate to no deal and which bits relate to deal. Not necessarily for this instrument, but going forward, it might be better for the Government to be clearer in the explanatory memorandum about which parts of any SIs would be necessary in all outcomes for Brexit: which ones would be necessary in a no-deal scenario and also which ones would be necessary in a deal scenario, but not until the end of the implementation period. There are all these different outcomes, and I do not have the level of clarity needed. Given that we have quite a packed parliamentary agenda, it is difficult to spend a huge amount of time on legislation.gov.uk trying to find out all these bits of information.

The last point was in relation to the impact assessment. I managed to find the SI online. If you look on the back page there is a direct link to legislation.gov.uk—probably you never thought to look on the back page, but it is there. That takes you through the statutory instrument. I do not know whether it has got the explanatory memorandum there. On that web page, which I checked before I came here, it says that no impact assessment has been prepared for this SI—which is directly contradicted by the information that we have in the explanatory memorandum, which says that an impact assessment has been prepared—[Interruption.] I absolutely agree that it is a mess. I do not understand why, if the Government have prepared an impact assessment, we need to wait until the Regulatory Policy Committee sees the impact assessment before we can see it. Surely it could come to hon. Members, with the caveat that it has not been through that Committee? Then we would be in a position to make better decisions.

One of the lines in the explanatory memorandum says:

“It is difficult to quantify the size of the market affected as the instrument covers both the financial sector and non-financial counterparties”.

I would expect the impact assessment to cover that information and provide Committee Members with the information included. If the information is not there for the explanatory memorandum, I am concerned about how good the impact assessment must be—if it does not include proper information about the financial impact on various types of companies and organisations. The way this has been put together is not great. I am particularly concerned about the lack of an impact assessment. As I said, MPs do not have a huge amount of time right now. If we had been provided with the impact assessment at the outset, this meeting would have been a lot quicker, given that we would have been able to read all the information before coming here and easily have it to hand.

The fact that the shortened web address is written throughout the explanatory memorandum and the actual address is only at the very back is not particularly helpful. It means that MPs are wasting time trying to find these things, when the full web address could have been provided throughout the text of the explanatory memorandum.

To push on the point that the hon. Member for Oxford East made, if the Minister can give the Committee today a date when the impact assessment will come, or, at least, some kind of timeline, that would give us a level of comfort. Going forward, though, it is totally inappropriate for MPs to be asked to consider statutory instruments when an impact assessment has been written and is required, yet we are not provided with it until after we have considered the statutory instrument—at which point it is too late for us to make any changes to it. If the Minister could give some comfort and, going forward, look at any other SI Committees so that this shambles does not happen again, that would be incredibly helpful.

[Maria Eagle]

I rise to support my hon. Friend the Member for Oxford East on the points she made, and on some of the points made by the hon. Member for Aberdeen North. I was appointed to this Committee last week. I do not normally spend my time considering derivatives of the over-the-counter version—or any other kind. However, having spent many years as a Minister—and therefore knowing how to look at legislation—I found, when I looked at this instrument, something else that I would like to raise with the Minister. When I was a Minister I used to spend my time, before I came to Committees, making sure that my officials would bring along to the Committee all instruments referred to in the regulations, to enable the Committee, if it wished to look in detail at some wording, to be able to understand what that meant. I thought that having the other instruments in the Committee room was the norm. What we have here is an instrument that refers in terms, for example in part 2, to regulations from 2013, and then sets out:

“In regulation 2, in paragraph (1), for the definition of ‘the EMIR regulation’ substitute—

‘“the EMIR regulation” has the meaning given in section 313 of the Act;’.”

To understand the meaning of that, one has to have the regulation to hand. I do not see any copies of the regulation that the instrument refers to here. It was always the practice when I was in Government, and I am sure it was the practice of some Conservative members of the Committee who have been in Government in their time too, to have in Committee all the regulations referred to and being amended, so that if somebody had a particular point to make about a particular part we could see clearly what was being changed, what the implementation of that change would mean, and whether the wording appeared appropriated.

Here, we are left with nothing, in practice, but the explanatory memorandum. We have to take on trust—not that I am saying that I do not trust the Minister—that what we are being told in the explanatory memorandum is in fact being done by the wording that we see in the instrument. I think it is poor practice, if I might say so, and I hope that he will take this back to his Department, to come to Committee with instruments that effectively alter other regulations without making them available in the room. Any officials who had left me in that position as a Minister would have known about it. In fact, I used to ensure that such things were correct in Committee.

I know that there is a big burden of statutory instruments at present, and I understand that Ministers are hard pressed, but it is not right in terms of proper scrutiny for us not to be able to understand the meaning of the regulations. Regulations under the European Union (Withdrawal) Act 2018 are more complex than many because they often simply refer to amendments to primary legislation. Here we have a suite of three regulations, but I was not on the Committees that considered the other two.

It makes it increasingly difficult for an ordinary, intelligent person to understand what the hell is going on. That is not good for scrutiny, for the Minister, for the Government, or for good governance, and it leads us to the impression that what is happening is rushed, has not been thought through, and may be defective. If it is, it will not be possible for members of the Committee to pick up the defects. That is a real problem for proper parliamentary scrutiny.

My hon. Friend the Member for Oxford East referred to part 2. When I was reading the explanatory memorandum, one of the things that jumped out at me, as it clearly jumped out at her, was in paragraph 7.16, on page 6:

“Part 2 of this instrument also introduces a power for the FCA to suspend the reporting obligation for a period of up to one year…in a scenario where there is no registered or recognised UK”

trade repository. I immediately wondered in what circumstances that might be the case. The Minister made a reference to that, and said that it would be highly unlikely—but it is not so unlikely that steps are not being taken in the instrument to deal with it.

Can the Minister tell me how many UK-registered trade repositories there are, and in what circumstances—unlikely though they might be—he envisages that this part of the instrument might have to come into force, or that the powers specified might have to be used? As he said, the whole purpose of the regulations, whether they are operated by EU institutions or by the Treasury, the Bank and the Financial Conduct Authority, is to try to prevent the disaster of the global financial crisis that resulted last time from insufficiently prudent, untransparent regulation of such trades. Will he give us a bit more detail about why he has felt it necessary to include such a provision in the regulations?

I agree with the remarks made thus far by my hon. Friend the Member for Oxford East and others about the lack of any kind of impact assessment. It struck me that there is not even a guesstimate of the cost. Will the Minister tell us what trades we are talking about? If the regulations were referring to a couple of hundred thousand pounds a year, we would not worry as much about it as we would if we were dealing with the equivalent of a quarter or a half of our GDP. Will he tell us what level of financial dealings the regulations relate to?

[Kirsty Blackman]

I am struck that in these Committees, the Government do an impact assessment for more than £5 million of costs to businesses, but not for under £5 million of costs to businesses. If that is all the information we have to go on, that is sketchy, at best.

[Maria Eagle]

The hon. Lady makes a good point, and perhaps the Minister would like to comment on that as well.

The other point I would like to make is about the financial and resource burdens that the transfers made through the regulations will put on those who inherit the obligations and functions that used to be carried out by the EU institutions. That appears to be the Bank and the Prudential Regulation Authority part of it, the Financial Conduct Authority and, of course, the Treasury. There is nothing I can see that suggests that extra resources will be passed on to the FCA and the PRA part of the Bank for dealing with the additional obligations that the regulations place upon them. While they may well have experts in such instruments and this kind of trading already on their staff, the work that they are going to be expected to do as a consequence of the regulations, if they have to be used, would be different to the work they are already doing.

What financial provision are the Government making to ensure that the FCA and the Bank have the relevant staff and resourcing to do this very important job that he is asking us to bestow on them? There does not seem to be any information about the impact on those who will acquire the extra burdens of doing this work, or the likely cost to the Government, the Bank, the FCA and any other authorities, of carrying it out in a way that will work as well as their current arrangements.

15:08

[John Glen]

I thank the hon. Members for Oxford East, for Aberdeen North and for Garston and Halewood for their clear questioning. I shall try very hard to answer the points raised.

I hear the frustration on the volume and the time that this scrutiny process is taking. All of the 63 statutory instruments we are bringing forward are under the terms of the European Union (Withdrawal) Act that we have previously debated.

The hon. Member for Aberdeen North referred to the issue of equivalence and what would happen with respect to the EU’s assessment of the UK. Clearly we cannot determine that unilaterally. We have as deep a dialogue as we can, but these are provisions for no deal. We have sought to engage deeply with the industry and all the different industry players to achieve an outcome that is as optimal as can be in the circumstances. That is why I put on record my absolute commitment to ensuring that we get a deal. I feel very keenly the frustration of the speeches on the process, and I acknowledge that it is not as it would be under normal circumstances.

In terms of the consultation with industry, we have engaged with stakeholders, including the financial services industry, while drafting the SIs. They are strictly limited by the enabling power, and therefore have limited policy choices within them. In some of the areas I cannot go further than what I said in my opening remarks, which is that we are transferring things over and dealing with deficiencies. However, I shall in a moment address the points raised.

We published a document in June, which set out the approach. We have been publishing draft legislation in advance of laying it to maximise transparency, and securing industry knowledge from TheCityUK and others along the way. We discuss EU exit preparations regularly with industry, which has helped us to understand the impact of the SI. We shared a draft version of the SI to allow stakeholders to familiarise themselves with aspects of it.

As to the key question raised in all three Opposition speeches, about impact assessment, I am conscious of the need to publish the relevant impact assessments as soon as possible and want to reassure the Committee that I am doing everything I can to make that happen. I met officials last week and this morning to try to expedite that and complete the necessary clearance processes. We will publish it as soon as possible.

[Maria Eagle]

Why does the explanatory memorandum say that it has been published?

[John Glen]

Because at the time it was printed it was anticipated that it would have been published by then.

As ever, I must stress that some firms would incur some costs adjusting to the changes made by the SIs, if they come into effect, but those costs are significantly outweighed by the benefit that is provided by ensuring that the legislation transferred by the European Union (Withdrawal) Act operates effectively after exit. Without the amendments made by the SIs firms would face far greater disruption to their businesses.

[Anneliese Dodds]

The Minister is being generous with his time and none of us doubts his commitment to ensuring that the process works properly, but will he enlighten us as to the blockages that are preventing that? Is it a matter of resources or policy issues that have to be dealt with? It would be helpful for us to understand, because although it is wonderful to hear he is trying so hard to get it sorted out, the Committee needs more.

[John Glen]

I am happy to give clarification. Essentially the process of gaining approval for the impact assessment demands that we share certain information and provide it in an adequate form. Because of the unusual nature of the process and the volume of material, it is difficult to line up. As I said to the hon. Lady in the last Committee in which we served opposite each other, we submitted a group of SIs together, and are working as hard as we can to resolve that.

As Miles Celic, the chief executive of TheCityUK, said in a letter in November, these are exceptional circumstances, which require a unique response. We are doing everything to reach that, but I would not want the process to be truncated. We have not yet had an impact assessment that does not give us a green rating, and I want to make sure that that is how things will end up. However, I fully accept that the situation is not an optimal one. I take on board the observations of all three hon. Ladies, and all that I can say is that I am doing everything I can. I understand that that is inadequate in itself, and wish I could give a date, but it is not possible.

[Maria Eagle]

Given that it has not proved possible to do what the explanatory memorandum says has been done, why has not the Minister republished and corrected it?

[John Glen]

Because I wanted the opportunity to explain face to face in the Committee and, given the need to secure the SIs for industry, as I made clear in the quotation from TheCityUK, it is not the perfect process. [Interruption.] I understand the point that the hon. Lady makes but I think I have responded to it as reasonably as I can.

[Kirsty Blackman]

Lastly, although the Minister has not said it, it appears to me that the issue might be with the Regulatory Policy Committee not getting through the impact assessments that are sent to it. Given that we are going to have an awful lot of SIs and, presumably, an awful lot of impact assessments, that is likely to become more of a problem. Is it necessary for the assessment to go to the Regulatory Policy Committee? Is there a way we could see it without it going to the RPC?

[John Glen]

The responsibility rests ultimately with me and my officials, and I have to take it on board. It is for me to be accountable for the impact assessments—I am not blaming anyone else. I will continue to do everything I can over the coming hours and days.

The hon. Lady mentioned impact. The draft regulations will not place new regulatory burdens on UK firms. We expect a one-off familiarisation cost for legal experts to examine the draft regulations, which we estimate will have an impact on just over 400 firms and cost £350,000 in total.

The regulatory requirements for trade repositories as defined in title VII of EMIR, will remain largely unchanged. The FCA has been given the power to supervise trade repositories against those requirements, but it has been in close engagement with trade repositories to ensure that their transition is as smooth as possible. Trade repositories will have to familiarise themselves with changes to the supervision and enforcement procedures under the UK regime, but we do not anticipate that that will be burdensome or that the familiarisation costs will be high.

The hon. Member for Oxford East asked how likely the FCA is to use the power to suspend the reporting obligation. It is almost certain that it will not need to use that power because the trade repositories regulations enable it to process advance applications for new trade repositories, or convert authorisations for existing UK trade repositories, to ensure that the UK has operational trade repositories from exit day.

[Sir John Hayes (South Holland and The Deepings) (Con)]

As I read it, part 2 makes it clear that, should the obligations be suspended, the FCA will retain the power to decide when any trades conducted through the period of suspension are made known. The a priori assumption that businesses should retain information and be willing to report it during the period of suspension provides considerable reassurance.

[John Glen]

I concur.

The hon. Member for Oxford East asked whether the regulator has adequate resources to cope with its new powers to supervise trade repositories. The Treasury has worked closely with the regulator to prepare the legislation, and we are confident that it is making adequate preparations ahead of exit day and that it has the resources to manage its task. I should point out that, at the end of December 2018, the FCA had a total of 158 full-time employees working on Brexit—an increase from 28 in March 2018. It will publish its 2019-20 plan in the spring, setting out its work for the coming year. When I met Andrew Bailey, head of the FCA, for an hour last week, he did not raise the matter—he has the resources in place.

The hon. Lady asked what would happen in a scenario in which the Treasury provided a temporary regime for intra-group transactions that was not reciprocated by the EU. The Government can address only deficiencies in UK firms, not the issues for EU-based entities—that is why we want to get a deal and get the equivalence process signed off six months before the end of the implementation period, as was set out in the political declaration. The Commission has adopted a temporary equivalence decision for UK CCPs, and in the central counterparties regulations we put in place a reciprocal temporary recognition regime in the UK for EU CCPs.

The hon. Member for Garston and Halewood made a point about the publication of appropriate documents for the Committee. I can only apologise to her. I will examine immediately whether our approach needs to change.

The hon. Member for Oxford East asked why the EMIR provisions on trade repository appeals, fines, supervisory fees and penalties are being replaced with provisions in the Financial Services and Markets Act. The current EU provisions on those matters will no longer be effective under a UK regime, so it is appropriate to replace them. The FSMA provisions that currently apply to FCA supervision of authorised persons will be applied, with appropriate modifications, to its supervision of trade repositories. The new provisions on trade repositories will be equivalent to those to which they are currently subject.

The hon. Member for Aberdeen North asked whether the draft regulations will apply in a no-deal scenario only. This legislation is being implemented to ensure that in the event of no deal we have a fully functioning regime. It will not come into effect in March 2019 in the event of an implementation period on securing a deal, which would be delivered through a separate piece of legislation—the EU withdrawal agreement Bill. However, it could be amended to reflect an eventual deal on the future relationship or a no-deal scenario at the end of the implementation period.

I think I have dealt with all the points raised. I believe that the draft regulations are essential to ensuring that the UK continues to have an effective framework in place for over the counter derivatives, central counterparties and trade repositories if the UK leaves the EU without a deal or an implementation period. I hope the Committee has found this afternoon’s sitting informative and will support the draft regulations.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018.

15:21

Committee rose.

Draft Transfrontier Shipment of Radioactive Waste and spent fuel (EU Exit) Regulations 2018

Tuesday 22nd January 2019 General Committees

The Committee consisted of the following Members:

Chair: Sir David Amess

† Afriyie, Adam (Windsor) (Con)

† Bacon, Mr Richard (South Norfolk) (Con)

† Bruce, Fiona (Congleton) (Con)

† Burden, Richard (Birmingham, Northfield) (Lab)

† Burghart, Alex (Brentwood and Ongar) (Con)

† Cadbury, Ruth (Brentford and Isleworth) (Lab)

† Chapman, Douglas (Dunfermline and West Fife) (SNP)

Coffey, Ann (Stockport) (Lab)

† Hands, Greg (Chelsea and Fulham) (Con)

† Harrington, Richard (Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy)

† Harris, Rebecca (Lord Commissioner of Her Majesty's Treasury)

† Jones, Mr David (Clwyd West) (Con)

† Kyle, Peter (Hove) (Lab)

Phillipson, Bridget (Houghton and Sunderland South) (Lab)

† Smith, Nick (Blaenau Gwent) (Lab)

† Whitehead, Dr Alan (Southampton, Test) (Lab)

† Whittingdale, Mr John (Maldon) (Con)

Harriet Deane, Adam Evans Committee Clerks

† attended the Committee

Fifth Delegated Legislation Committee

Tuesday 22 January 2019

[Sir David Amess in the Chair]

Draft Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2018

14:30

[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Richard Harrington)]

I beg to move,

That the Committee has considered the draft Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2018.

I do not have to tell you this, Sir David, because you know it is true, but it is a pleasure to serve under your chairmanship. I have pointed that out on other occasions, but I reiterate my previous comments on the subject.

[Mr Richard Bacon (South Norfolk) (Con)]

May I point out that not only is it an enormous pleasure for us all to be here under your chairmanship, Sir David, but that it is an unbridled pleasure for us all to be here once again with the Minister?

[Richard Harrington]

I am, unusually, speechless; I say only that if all parliamentary business were like the Statutory Instrument Committees we have sat on in the past couple of weeks, we would all be able to have a much longer break in February.

It is my duty and pleasure to introduce the draft regulations, which were laid before the House on 28 November. They are made under powers set out in section 8 of the European Union (Withdrawal) Act 2018 and address specific inoperabilities arising from the UK’s withdrawal from Euratom. They will come into force on exit day, only in the event of there being no deal between the UK and the EU. I shall not comment further on that.

As I have said in the House, we are seeking a wide-ranging nuclear co-operation agreement with Euratom while putting in place the necessary measures to ensure that the UK industry can operate in all scenarios. The draft regulations are one such measure. They revoke and replace the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008, which will become inoperable once the UK is no longer a member of the EU. The draft regulations introduce broadly equivalent procedures for the import, export and transit of radioactive waste and spent fuel into and out of the UK, but they reflect the UK’s independence of the Euratom community in such circumstances and apply to the whole UK.

The draft regulations set out a regime to ensure that radioactive waste and spent fuel are not shipped into or out of the UK without prior authorisation from the relevant competent authorities. They are vital to protect the public and the environment from the dangers of ionising radiation when radioactive waste and spent fuel is shipped into or out of the UK. They allow for the continuation of crucial nuclear activities such as the decommissioning of legacy sites and the return of radioactive waste to the relevant country of origin following the reprocessing of other nations’ spent fuel.

I will say just a few words about the background to the draft regulations. To put them in perspective, I should say that every year we make about 400 shipments of radioactive waste to Euratom member states. The majority of those shipments are of contaminated metals for treatment in Germany and Sweden. Hon. Members may be aware that we have ceased reprocessing other nations’ spent fuel, but we will need to return high-level waste arising from the last of the reprocessing contracts to its countries of origin—Australia, Japan, Germany and Italy. The draft regulations will allow for the return of that high-level waste, and they are of strategic importance to the UK’s fulfilling its reprocessing contracts and supporting the decommissioning and clean-up mission at Sellafield.

The 2008 regulations introduced a set of regulatory procedures for transfrontier shipments within Euratom and a separate set of procedures for shipments entering or exiting the community. When we leave the EU and Euratom, those regulations will become inoperable because they treat the EU as a single bloc that includes us. To ensure there is an operable regime after exit day, the draft regulations treat Euratom member states and all other countries in the same way.

There will be three operational changes for our operators shipping to and from Euratom member states. First, they will need to request authorisation from the relevant authority when importing a shipment from Euratom. The competent authorities are the Environment Agency, Natural Resource Wales, the Scottish Environment Protection Agency and the Northern Ireland Environment Agency.

Secondly, UK operators will need to notify the relevant competent authorities when the shipment is completed. Thirdly, when importing from a Euratom state, UK operators will need to provide evidence that they have made an arrangement with the exporter that has been accepted by the exporter’s competent authority. That arrangement would oblige them to take back the radioactive waste or spent fuel if the shipment cannot be completed in accordance with the regulations.

To put the changes into context, I should say that they do not affect the entire nuclear industry, and at present only six UK operators have authorisations in place to ship radioactive waste. Were these not formal proceedings, I would ask you, Sir David, and others to estimate the total costs to all affected industry from these additional steps—they are far less than I thought. My Department’s officials have estimated that they are between £1,700 and £6,000 every three years, as well as a minor familiarisation cost for operators of £100 to £900 each.

The guidance for the regulations will be published online prior to coming into force, and our officials have been engaging regularly with the operators that will be affected to ensure that there is minimum disruption. As I say, it is de minimis, but it still needs to be done properly.

For the record, the instrument was drafted collaboratively between the officials in our Department, the devolved Administrations, the UK’s environment agencies, the Office for Nuclear Regulation and the Nuclear Decommissioning Authority. Although the legislative competence is reserved, we have been very collaborative about it. I thank the devolved authorities and all other partners for the help that they have given. Further engagements have taken place through stakeholder workshops, the Euratom industry forum and other industry events.

The regulations are vital to the success of our decommissioning programme and to the completion of our last few reprocessing contracts. The regulations will allow the UK to maintain the highest nuclear safety standards, while ensuring that the relevant UK operators can continue to operate, even in the unlikely event of a no-deal scenario.

14:37

[Dr Alan Whitehead (Southampton, Test) (Lab)]

It is a pleasure to serve under your chairmanship, Sir David. I will leave it at that, because I am concerned about the spread of so-called “pleasure creep”, where one has to put a number of nouns, adjectives and adverbs in front of the word “pleasure” to indicate that it really is a pleasure. I will be straightforward and stick to what I have just said.

The statutory instrument is essentially a very sensible piece of work to ensure that after exiting the EU we have in place the authorisation, certification and all other necessary arrangements to allow radioactive waste to transit properly—the Minister mentioned some 300 shipments a year. Previously, that was all done essentially under the aegis of Euratom; the question of having those arrangements, certainly as far as transfer to Euratom countries was concerned, did not come before us.

The Euratom arrangements also applied to trans-shipments that were not to Euratom countries but were under the aegis of Euratom as far as such trans-shipment arrangements were concerned. Trans-shipments to Japan, Australia and various other places were effectively covered by the fact that Euratom had an arrangement with those countries; we did not need a separate one. Now, we will have to have separate arrangements under all those circumstances, which is what this SI effectively does. It does so by revoking the 2008 regulations, and then—as is stated in the explanatory memorandum—largely replicates them

“by laying down broadly equivalent procedures”.

My comment to the Minister, which I have made on a number of other occasions when we have had these discussions about similar SIs, is that the broadly equivalent procedures seem to replicate quite well what would have happened under Euratom, given how the regulations are written. I would like the Minister to confirm that he is satisfied that that is the case. Obviously, I have not been able to compare regulation with regulation, but I assume that that is the basis of the “largely replicates” quote.

[Richard Harrington]

I confirm, as the shadow Minister has asked me to, that he is absolutely right: the new regulations broadly replicate the 2008 regulations, and there is no material difference at all.

[Dr Whitehead]

I thank the Minister for that. That is exactly what I had anticipated he would say, and I am grateful that he was able to say it.

The second issue relates to the quantity and concentration of consignments that trigger the need to define a shipment as a transfrontier shipment under the terms of the SI. I am sure that the Minister will have been party to the translation of regulations determining that: those regulations have been changed from a 2008 Euratom Council directive to a more recent directive in order to get those definitions right. In so doing, at least some reference to Euratom Council directives appears to have been preserved, but I assume that reference is only for purposes of definition, not of jurisdiction. I guess that the Minister will be able to put my mind at rest on that point as well.

[Richard Harrington]

I confirm that the hon. Gentleman’s mind should be at rest on that point.

[Dr Whitehead]

I thank the Minister for that. My final brief point follows from the one the Minister made about the total cost of these arrangements, which is indeed very modest: as he has said, it is between £1,700 and £6,000 every three years. Those extra costs arise from the fact that, on occasions, transfrontier shipments will have to accede to both the existing Euratom regime and the new regime being created in this country. If a cost went from Euratom to the new transfrontier shipment arrangements, then there would be no net cost; that additional cost arises only when the cost is being doubled up. That is my understanding of the situation.

[Richard Harrington]

That is my understanding of the situation as well. As usual, the shadow Minister has nailed this. That is exactly the case.

[Dr Whitehead]

That is good. My observation—I think I am still under five minutes—is that the cost could be mitigated were we to make some kind of associate arrangement with Euratom in the future, perhaps in the long term. Obviously, the SI is predicated on the fact that we will have no arrangement with Euratom post 31 March, but if there is a longer associate arrangement—as was discussed a little while ago during the passage of the Nuclear Safeguards Act 2018—those costs would presumably not arise and that very modest additional cost would therefore be dissolved. That is just an observation about the future. I hope the Minister will be able to encourage the idea that we might have a future closer arrangement with Euratom, even though we will no longer be members of Euratom. I have just discussed one of the minor things that would be facilitated by such an arrangement.

I think hon. Members will have gathered from those remarks that we do not oppose the draft regulations. Indeed, we wish them success and hope they can be applied in the most expeditious way possible.

14:45

[Mr John Whittingdale (Maldon) (Con)]

I reassure colleagues that I do not intend to detain the Committee for long. I just want to put on the record that for my first 12 years in this place I represented an operational nuclear power station at Bradwell-on-Sea. In the past 10 years, that power station has been being decommissioned, and that work has just successfully been completed. I pay tribute to all those who worked so hard to achieve that.

I do not think that power station required a great deal of transfrontier shipment, but there may be cause for that in the future. I remain strongly supportive of the Bradwell B project for a new nuclear power station. We have had a bit of a setback in the past few days with the news about the Japanese investment at Wylfa, but as far as I am aware—I went to the China General Nuclear reception a couple of days ago—Bradwell B remains very much on track, so there may be a need for transfrontier shipments there in the future.

I very much welcome the draft regulations. I just wanted to use this opportunity to say that I remain very supportive of a future generation nuclear programme in the UK.

14:46

[Douglas Chapman (Dunfermline and West Fife) (SNP)]

I thank the Minister for outlining the draft regulations so well, but we are concerned that we are breaking our link with Euratom. Some things in the EU seem to work very well, and that competence and collaboration will be sadly missed—but so be it.

Let me pose a few questions about the position in Scotland. Will the radioactive waste management policy currently under the auspices of the Scottish Government remain intact? Will the Scottish Government and the Scottish Parliament retain their current devolved competences? Will the draft regulations have effect from day one? I think that will be 1 April—probably timely for some people, given that it is April Fool’s day. Again, we need to deal with that.

Is the Minister in a position to outline future plans, beyond Euratom, to ensure the safe transfer of radioactive materials and technologies? That will affect all parts of the UK, including services such as the NHS. Will those plans be subject to meaningful negotiations and consultation with the Scottish Government and other devolved Administrations?

14:47

[Adam Afriyie (Windsor) (Con)]

I rise very briefly to observe that Lakeside Energy from Waste in my constituency disposes of quite a lot of radioactive material. It seems to me important that, as a commercial business, it is able to accept goods from overseas rather than just from the NHS. I wonder whether the transportation of radioactive materials that result from hospital and laboratory activities is covered by the draft regulations, or whether that is outwith their scope.

14:48

[Richard Harrington]

I thank right hon. and hon. Members for their contributions. On the general point about Euratom, I hope the charges will disappear if we have the closest possible associate membership of Euratom, which, as the shadow Minister knows very well, is what we hope to have. That of course is all for negotiation. It is my sincere hope that we will have such close associate membership that there will not be a question of costs, but I cannot say that. If only we could say that the cost generally of our leaving the EU without a deal were as little as £6,000. The cost in this case is pretty small—it is symbolic, really—and we hope to have the closest possible future relationship.

I endorse what my right hon. Friend the Member for Maldon said about Bradwell. I sincerely hope not only that the nuclear tradition there continues but that the site has a great future in providing employment and energy security for the country. I completely support what he said.

I reassure the Scottish National party spokesman, the hon. Member for Dunfermline and West Fife, that we introduce the draft regulations in a spirit of complete co-operation with the Scottish Government and other devolved authorities, and that will continue. There is no change in jurisdiction, but some things extend beyond jurisdiction to our having a good working relationship in this field, and we have that. He made a specific point about the management of radioactive waste, which remains devolved. Nothing will change in that regard, although I must say, just so there is no confusion, that that is a separate issue from the frontier shipment of waste, which is what the draft regulations deal with. However, he made his point very reasonably, and luckily I was able to answer it.

My hon. Friend the Member for Windsor asked about the medical side of things—radioactive waste from hospitals and so on. The draft regulations cover only radioactive waste and spent fuel; they do not concern medical radioactive material, so I can satisfy him on that point.

I think I have answered all the questions that were raised. I thank the shadow Minister for his support for this brief but important piece of delegated legislation.

Question put and agreed to.

14:51

Committee rose.

Draft Civil Legal Aid (Amendment) (EU Exit) Regulations 2019

Tuesday 22nd January 2019 General Committees

The Committee consisted of the following Members:

Chair: Sir Henry Bellingham

† Ali, Rushanara (Bethnal Green and Bow) (Lab)

† Foxcroft, Vicky (Lewisham, Deptford) (Lab)

† Frazer, Lucy (Parliamentary Under-Secretary of State for Justice)

† Goodwill, Mr Robert (Scarborough and Whitby) (Con)

† Hair, Kirstene (Angus) (Con)

† Harper, Mr Mark (Forest of Dean) (Con)

† Hepburn, Mr Stephen (Jarrow) (Lab)

† Johnson, Dr Caroline (Sleaford and North Hykeham) (Con)

† Keegan, Gillian (Chichester) (Con)

† Kinnock, Stephen (Aberavon) (Lab)

† McFadden, Mr Pat (Wolverhampton South East) (Lab)

† Milling, Amanda (Cannock Chase) (Con)

† Powell, Lucy (Manchester Central) (Lab/Co-op)

† Qureshi, Yasmin (Bolton South East) (Lab)

† Twigg, Derek (Halton) (Lab)

† Warman, Matt (Boston and Skegness) (Con)

† Watling, Giles (Clacton) (Con)

Mems Ayinla, Committee Clerk

† attended the Committee

Eighth Delegated Legislation Committee

Tuesday 22 January 2019

[Sir Henry Bellingham in the Chair]

Draft Civil Legal Aid (Amendment) (EU Exit) Regulations 2019

14:29

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

I beg to move,

That the Committee has considered the draft Civil Legal Aid (Amendment) (EU Exit) Regulations 2019.

It is a pleasure to serve under your chairmanship again, Sir Henry. The draft regulations form part of the Government’s preparations for the possibility of the UK leaving the EU without a deal. They will provide clarity to citizens and lawyers in the event of a no-deal outcome.

The draft regulations relate to EU directive 2003/8/EC, the EU legal aid directive, which creates reciprocal rights and obligations across member states. The directive’s application is limited to civil and commercial matters; it applies to cross-border disputes in which an individual domiciled or habitually resident in an EU member state requires legal services in relation to proceedings in another member state or enforcement of a decision or authentic instrument in another member state.

In a no-deal scenario, we would not benefit from any reciprocity from other member states in that context. The draft regulations will therefore remove the legislation that implements the EU legal aid directive, which will no longer apply to the United Kingdom. As a result, individuals domiciled or habitually resident in an EU member state who require legal services in relation to proceedings in England and Wales or Northern Ireland, or who wish to enforce a decision or authentic instrument in England and Wales or Northern Ireland, will be subject to the same scope, means and merits requirements as those domiciled or habitually resident in England and Wales, Northern Ireland or third countries.

After EU exit, legal aid provision for those domiciled or habitually resident in the UK who participate in proceedings in an EU member state will fall to each member state’s particular legal aid framework. Repealing the legislation that implements the EU legal aid directive will ensure legal certainty and clarity on legal aid entitlement. In addition, we will avoid a unilateral arrangement under which those domiciled or habitually resident in EU member states are treated more favourably than those domiciled or habitually resident in the United Kingdom or third countries.

The draft regulations will make a number of small technical amendments to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Access to Justice (Northern Ireland) Order 2003. References to “enforceable EU rights” will be amended to refer to “retained enforceable EU rights”; the term will be defined with reference to rights retained in domestic law by operation of the European Union (Withdrawal) Act 2018. This will enable the proper functioning of the exceptional case funding frameworks in England and Wales and Northern Ireland and, under LASPO, provision of foreign legal advice.

The draft regulations will also make some procedural amendments, one of which relates to whether an applicant for controlled work needs to attend a legal provider’s premises in person. At present, it is not necessary for an individual who is seeking legal aid for controlled work in England and Wales to attend a legal provider’s premises in person if they are present in or reside in the EU, if they cannot attend for good reason and if they can authorise someone to attend on their behalf. The draft regulations will change the exception so that those who reside within the EU will now be required to meet the same criteria that those who reside in third countries are expected to meet when they apply for controlled work and are not present in the UK.

A further amendment relates to licensed work. Again, those who reside within the EU will now be required to meet the same criteria that those who reside in third countries are currently expected to meet when they apply for licensed work and are not present in England and Wales.

The draft regulations will make provision for transitional arrangements for certain live matters under the repealed or amended legislation at the time of EU exit. Those matters will continue to operate under the same rules as before.

I should highlight the limited application of the draft regulations. In 2017 there were only 27 cross-border applications made between England and Wales and central authorities in other EU member states, of which 20 were from EU residents seeking legal aid in England and Wales. Although it is not possible to estimate precise amounts, we expect that any implications for the legal aid fund will be considerably small. In addition, a number of legal aid applications that are in scope as a result of the EU legal aid directive may have been made directly to the Legal Aid Agency or providers, not via central authorities, and it is not possible to identify those cases. Officials at Northern Ireland’s Department of Justice have confirmed that, although applications under the EU legal aid directive are not centrally recorded for statistical purposes, it has established that an estimated three applications were made in the last two years.

This SI is necessary in order to correct deficiencies in legal aid legislation in England, Wales and Northern Ireland that arise from the UK’s exit from the EU, including LASPO, the Access to Justice (Northern Ireland) Order 2003 and subordinate legislation. The Scottish Government are separately taking forward any required amendments to legal aid legislation. This legislation will simply enable us to continue going forward without the reciprocity that we have previously enjoyed and will not be afforded in the future. I commend the draft regulations to the Committee.

14:36

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Henry. As the Minister has explained, this regulation will repeal a 2003 directive that was designed

“to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid”

for cross-border disputes over family, commercial and civil matters, which are obviously important issues that need to be dealt with properly. As the Minister has outlined, a cross-border dispute is defined as

“one where the party applying for legal aid in the context of the directive is domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced.”

In practical terms, this is relevant for individuals who are domiciled or habitually resident in an EU member state and require legal services for proceedings in other member states, or who wish to enforce a decision or an authentic instrument in another member state.

Although it is acknowledged that some of the provisions in this regulation are procedural in nature, there is one substantive provision that will have a massive impact on access to legal aid by removing paragraph 44 of part 1 of schedule 1 in LASPO. When this statutory instrument was discussed in the other place, Lord Thomas of Gresford said that the current framework

“provides predictability and certainty for citizens and businesses”

and that

“judgments and orders obtained will be recognised and enforced…as is the case now.”—[Official Report, House of Lords, 15 January 2019; Vol. 795, c. 191.]

Those benefits were recognised in the Government’s 2017 paper, “Providing a cross-border civil judicial cooperation framework”. Paragraph 7 stated:

“This framework provides predictability and certainty for citizens and businesses from the EU and the UK about the laws that apply to their cross-border relationships, the courts that would be responsible, and their ability to rely on decisions from one country’s courts in another State.”

An important feature of civil judicial co-operation at present is the mutual provision of legal aid. The legal aid directive sets minimum common rules relating to legal aid in order to improve access to justice in cross-border disputes. It applies to all such disputes over civil and commercial matters, but particularly to family law—the disposal of assets and access to children, especially across borders. This provision was incorporated into English law by LASPO, and its purpose is to ensure that people domiciled or habitually resident in EU member states are not treated more favourably after we leave the European Union than those who reside in England, Wales and Northern Ireland. EU residents who require legal services in relation to proceedings in our courts, or who wish to enforce an overseas judgment, will no longer have a right to legal aid for matters within the scope of the EU directive.

The statutory instrument uses the Henry VIII powers in section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to revoke the legislation implementing the European Union directive in UK domestic law. As far as we can ascertain, the statutory instrument would prevent European Union residents from seeking legal aid for exceptional cases that are not normally within the scope of UK domestic legal aid, but where not providing it would be a breach of retained enforceable European Union rights. Can the Minister tell us whether, after Brexit, EU residents will be able to apply for legal aid in the ordinary way for cases involving children across borders in an English court, for example, and whether legal aid would be granted if the ordinary tests of merits and means were satisfied? Does domicile or residency in the European Union disqualify an applicant who applies for legal aid in the normal way?

One of our many concerns is that the Government have not properly planned for reciprocal justice arrangements after we leave the European Union. That failure could have very damaging consequences for the people who rely on those arrangements, including those resolving complex family law cases. There are concerns across Parliament, including on the Justice Committee, that the Ministry of Justice has provided little detail or certainty about how co-operation on justice will be managed after we have left the European Union. In October, the Chair of the Lords EU Justice Sub-Committee wrote to the Lord Chancellor to set out a number of the Sub-Committee’s concerns about the impact of the Government’s handling of the Brexit negotiations on judicial co-operation, warning about the

“‘profound and damaging’ impact of a no-deal Brexit on the UK’s family law system and those that these courts seek to protect”.

The civil judicial co-operation framework that I referred to earlier on, which was issued by the Government, was found by the Lords EU Justice Sub-Committee to contain little detail on how the Government’s aims for co-operation would be achieved, and noted that

“a worrying level of complacency has taken hold in the Government that assumes that we can leave the EU without alternatives in place and that other international arrangements will fill the void left by this important EU legislation.”

It is in that context that we express concern that the provisions in the statutory instrument could begin to undo the existing legal framework without yet having an agreed replacement in place. That is a risky approach that would be avoidable were it not for the Government’s failure so far to secure comprehensive agreements on future co-operation in justice matters. The Lords EU Justice Sub-Committee is not alone in noting that. The matter was raised in two debates in Westminster Hall last year, which focused generally on judicial co-operation post Brexit, not only for legal services but for our judicial and civil relationships.

The statutory instrument does not come with a clear explanation, which is another concern expressed by the Lords. The Government’s failure to plan properly for reciprocal justice arrangements could have damaging consequences for people who rely on such co-operation. Earlier, I asked whether European Union residents could apply in the ordinary way for legal aid for UK courts post Brexit in cases of children across borders, for example, and whether that aid would be granted subject to means and merit tests. No answer has been given. I would be grateful if the Minister gave us some facts and figures about which applications for legal aid might be accepted. It is well known that the Law Society has indicated its concerns to the Ministry of Justice about the provisions and the problems that they may cause. For those reasons, we will vote against the statutory instrument.

14:44

[Lucy Frazer]

I will make three points: two relate to the SI and the third is more global. First, it is extremely disappointing that, in opposing the regulations, the Opposition will not enable us to provide for a smooth transition by ensuring that our statute book is fit for purpose if we leave the EU without a deal.

Secondly, I am very disappointed by the suggestion from my friend, the hon. Member for Bolton South East, with whom I work very well, that the regulations will have a massive impact. What we are doing with the legislation is simple: we are ensuring that, as we leave the EU, its member states do not receive preferential treatment vis-à-vis other third countries. Under World Trade Organisation trade terms, we are not allowed to give preferential treatment to one portion of the world. We are ensuring that we do not give a more favourable position to EU member states. Under the SI, as with all the SIs introduced by the Ministry of Justice, individuals from those member states will still be able to get the same treatment as EU nationals in this particular provision of legal aid. They will still be able to get legal aid under the same conditions as our residents under LASPO, as long as the matter for which they are claiming is in scope and subject to means and merits.

Thirdly, the hon. Member for Bolton South East made a very broad point about other matters not relevant to the statutory instrument. We will debate those matters in due course. She mentioned the important point of civil jurisdiction and the enforcement of judgments, for which another SI will be introduced. She also mentioned family law. We, like the EU, think it is extremely important for us and the EU to get a deal to ensure that we have a reciprocal arrangement on family law. Indeed, a reciprocal arrangement on family law is one of the areas of mutual interest that the EU has identified and that it is willing to negotiate within a future framework. The matter under discussion, however, is a no-deal scenario.

[Rushanara Ali (Bethnal Green and Bow) (Lab)]

May I remind the Minister that it is extremely disappointing that her Government are still leaving the prospect of a no-deal situation over us? That is irresponsible and she should be concerned about that. My hon. Friend the Member for Bolton South East raised legitimate concerns about British nationals who will continue to live in the EU. The Minister needs to focus on that. Thinking simply in terms of WTO rules is not appropriate because British nationals will still live in other countries, and in that context, we will need partnerships that allow them to have access to justice.

[Lucy Frazer]

The best way to protect the citizens whom the hon. Lady talks about is to ensure that we have a deal. The Prime Minister’s deal will allow us an implementation period to negotiate the very points that the hon. Lady identifies. One of those points is an agreement in relation to families, on which we would be able to get a reciprocal arrangement in future.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Does my hon. Friend share my surprise that the shadow Minister, the hon. Member for Bolton South East, did not vote for that deal, especially given that 58.3% of people in Bolton voted to leave the European Union? The only way that we can guarantee that it will happen is to get the deal over the line.

[Lucy Frazer]

That is a very good point. I am sure hon. Members would like to continue discussing the very important SI before us, but I will commend it to the Committee.

Question put.

Division 1

Ayes: 9

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Conservative: 9

Noes: 8

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Labour: 8

Resolved,

That the Committee has considered the draft Civil Legal Aid (Amendment) (EU Exit) Regulations 2019.

14:53

Committee rose.

Mental Capacity (Amendment) Bill [ Lords ] (Fifth sitting)

Tuesday 22nd January 2019 Public Bill Committees

The Committee consisted of the following Members:

Chairs: Mark Pritchard, † Ian Austin

† Afolami, Bim (Hitchin and Harpenden) (Con)

† Chalk, Alex (Cheltenham) (Con)

† Cunningham, Alex (Stockton North) (Lab)

† Debbonaire, Thangam (Bristol West) (Lab)

† Dhesi, Mr Tanmanjeet Singh (Slough) (Lab)

† Dinenage, Caroline (Minister for Care)

† Keeley, Barbara (Worsley and Eccles South) (Lab)

† McCabe, Steve (Birmingham, Selly Oak) (Lab)

† Moore, Damien (Southport) (Con)

† Morris, James (Halesowen and Rowley Regis) (Con)

† Morton, Wendy (Aldridge-Brownhills) (Con)

† Norris, Alex (Nottingham North) (Lab/Co-op)

† O'Brien, Neil (Harborough) (Con)

† Sherriff, Paula (Dewsbury) (Lab)

† Syms, Sir Robert (Poole) (Con)

† Whately, Helen (Faversham and Mid Kent) (Con)

† Williams, Dr Paul (Stockton South) (Lab)

Adam Mellows-Facer, Committee Clerk

† attended the Committee

Public Bill Committee

Tuesday 22 January 2019

(Morning)

[Ian Austin in the Chair]

Mental Capacity (Amendment) Bill [Lords]

09:25

[The Chair]

Welcome back, everyone. Can we all make sure our phones are on silent?

Schedule 1

Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

Amendment proposed: 27, in schedule 1, page 18, line 31, leave out paragraph 30(b).—(Barbara Keeley.)

This amendment makes provision for the responsible body to take on all functions relating to renewal of deprivation of liberty in cases relating to care homes.

Question put, That the amendment be made.

Division 17

Ayes: 6

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Labour: 6

Noes: 9

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Conservative: 9

[Barbara Keeley (Worsley and Eccles South) (Lab)]

I beg to move amendment 45, in schedule 1, page 19, line 34, at end insert—

“(2) In varying an authorisation, the responsible body may also consider—

(a) whether the cared-for person’s capacity is likely to fluctuate, and

(b) whether any restrictions imposed are necessary to prevent harm to the cared-for person and proportionate to the likelihood of that harm, and are likely to continue to be necessary for the duration of the authorisation.”

This amendment enhances safeguards around the variation of conditions by the responsible body. It indicates that the responsible body should consider whether the person’s capacity may fluctuate, and whether the restrictions which are proposed should be in place for the duration of the authorisation.

It is a pleasure to speak under your chairmanship again, Mr Austin. At least we do not have a boiling hot room to contend with.

The amendment deals with the way fluctuating conditions are addressed under the liberty protection safeguards system. The concept of fluctuating capacity is not expressly addressed or provided for in the Mental Capacity Act 2005, including the deprivation of liberty safeguards. The Mental Capacity Act code of practice recognises the steps that should be taken to support a person with fluctuating capacity to take their own decisions—choosing the time of day at which they are most alert, for instance. However, it does not indicate what should happen where an assessment is required of a person’s ability to make decisions on an ongoing basis about a particular matter. As such, the Law Commission did not consult on fluctuating capacity. However, when it launched its consultation, it received a large number of submissions on the topic.

It is clear that individuals with fluctuating capacity represent a major challenge under the current system. That is unsurprising, as capacity to consent is not a black and white issue. Everyone has varying capacity from day to day and from issue to issue. It is not reasonable to categorise people as entirely having or lacking capacity in all cases. My hon. Friend the Member for Dewsbury gave an example of how that can go wrong in practice.

Our amendment 32 would have required an assessment to be made of whether a cared-for person’s capacity was likely to fluctuate. That would have laid the ground for our amendment 45, which would allow the responsible body to take account of fluctuating conditions in varying an authorisation.

Under the current system, a deprivation of liberty safeguard must be terminated if a person regains the capacity to consent; the Mental Capacity Act makes no mention of what should happen if a person is likely to regain capacity only for a short period. That is not changed in the Bill. Under paragraph 26 of new schedule AA1, the authorisation will end if

“the responsible body believes or ought reasonably to suspect that any of the authorisation conditions are not met.”

That includes the person regaining capacity for any length of time.

There are two ways the issue can be dealt with. The first is that a new authorisation will have to be sought every time someone regains and then loses capacity, but that would dramatically increase the number of applications made. It would place more pressure on approved mental capacity professionals and on the cared-for person, who would be undergoing regular identical assessments. I understand that one aim of the Bill, as we have discussed, is to reduce the backlog of applications for deprivation of liberty. Requiring regular repeated applications for the same individual would not help to achieve that.

The second outcome is that the liberty protection safeguards will not be used properly. For example, in the case of older people with dementia whose condition fluctuates, such assessment might need to be hourly. It would simply not be practical to reapply for an authorisation every time they lost the capacity to consent. A person cannot give advance consent to be deprived of their liberty, so either they will be inappropriately deprived of their liberty through a blanket application or they will not receive the safeguards in the system because no application will ever be made. I reiterate that it does not matter, under the current system, whether a person is perfectly happy with arrangements when they have capacity. The moment that they no longer have capacity to consent, that consent is invalid. They cannot consent to any future arrangements.

Both outcomes leave responsible bodies potentially liable for breaching people’s rights under article 5 of the European convention on human rights. The Law Commission report states:

“it is not acceptable for the legislative framework simply to ignore fluctuating capacity. That exposes health and social care professionals and those authorising a deprivation of liberty to significant legal risk. It is therefore vital that the Liberty Protection Safeguards provide for fluctuating capacity expressly.”

However, the Bill the Government have brought forward makes no provision for fluctuating capacity. Our amendment is aimed at addressing that.

Amendment 45 would allow the responsible body to consider whether the arrangements it is authorising need to be in place for the entire duration of the authorisation it is granting. That would allow authorisations to be granted with specific provision for the arrangements to be suspended while a person has regained capacity. We will return later to what deprivation of liberty means, but that is relevant here. It may be that while someone has capacity, they are free to come and go as they please, with no supervision. But when they do not have capacity, they must be accompanied at all times for their own safety. There is no need for arrangements to require that they be accompanied at all times, regardless of their capacity. Instead, it should depend on their condition on a given day.

This comes back to the amendment moved by my hon. Friend the Member for Birmingham, Selly Oak. In it, he called for arrangements to be authorised only if there were no less restrictive alternatives available. If care providers treat capacity as something that, once lost, remains lost, people will inevitably be subject to unnecessarily restrictive arrangements—not all the time, but for the periods when they have regained capacity. That approach also fails to recognise that people’s capacity can vary without crossing the legal line in the sand. There will be days when someone with dementia can, with a certain amount of support, make the decision that they want to go out for coffee with an old friend, but it may be that, because they cannot make such a decision normally, there is no provision in the arrangements for them to go out. I am sure that the Minister would agree that we do not want over-zealous care managers, concerned about the danger of litigation, to end up unduly restricting a person’s liberty purely because they are treating capacity as a constant. Instead, we must establish a system that recognises the way capacity changes and what that can mean for the cared-for person, and that system should be described in the Bill.

The current system deals with fluctuating capacity through the code of practice. I will be concerned if the Minister says in her response that the Government mean that to continue to be the case. The Law Commission was clear, in its assessment of this legislation, that the code of practice was simply not an appropriate place to deal with this issue. I remind the Minister of the Law Commission’s comment that

“it is not acceptable for the legislative framework simply to ignore fluctuating capacity.”

Bringing individuals with fluctuating conditions within the scope of the Bill would not require them to be deprived of their liberty when that was not appropriate. An authorisation is not an order or injunction to detain the person, and professional discretion should of course be exercised—for example, as to when to take or not take steps to ensure that the person is not allowed to leave, or to bring about their return if they do leave.

Will the Minister cast her mind back to 14 March 2018, the day she published the Government’s response to the Law Commission review of the Mental Capacity Act 2005? On page 6 of the response, she accepted the Law Commission’s recommendations about fluctuating capacity. I should like her to clarify why she accepted them if she had no intention of taking on board the commission’s advice that they be contained in the statutory framework.

The amendment would require a consultation to be carried out before arrangements can be varied to account for fluctuating conditions. In some cases, where capacity fluctuates for short periods, that would be an onerous requirement, but it would also mean arrangements could not be made more restrictive when that might not be appropriate. The amendment does not go as far as the Law Commission wanted to on this topic, so it could be seen as a compromise.

In its draft Bill, the Law Commission set out provision for people to consent in advance of being deprived of their liberty. That would have meant that a cohort of people with degenerative conditions, who foresaw the requirement to deprive them of their liberty, would be removed from the system altogether. The Law Commission also said that

“the giving of consent should generally be regarded as an ongoing state of mind which is required in order for a confinement not to amount to a deprivation of liberty. There will be some who will lack capacity to give such consent for such a substantial proportion of the period covered by the proposed authorisation, and regain it for such brief periods, that it is right to regard them as, overall, lacking capacity to give or withhold consent to the arrangements.”

That is in line with the provisions in the current code of practice. It would codify them in statute, ensuring that the group in question would be adequately covered by the liberty protection safeguards. I do not understand why the Government have not yet taken those suggestions on board. They would ensure that people whose conditions fluctuate are properly dealt with by the new liberty protection safeguards, and close up one of the most glaring holes in the current Act. It seems clear that detaining someone while they have capacity would, at the moment, be a breach of the Act. We need real amendments to the Bill to make sense of the system, rather than yet more promises about a code of practice that we have not yet seen. I acknowledge that the Minister has sent us a list of its contents—but that is not the code of practice.

[The Minister for Care (Caroline Dinenage)]

It is a great pleasure, once again, to serve under your chairmanship, Mr Austin.

I thank hon. Members for raising an important point. We agree that the likelihood of fluctuating capacity should be addressed by the mental capacity assessment. We also expect fluctuating capacity to be considered when the responsible body is deciding to give an authorisation and setting the length of authorisation and frequency of reviews.

I think I set out in my comments on amendment 32 that I am tempted by some of the hon. Lady’s suggestions. However, they do not quite encapsulate the “What then?” of the issue: fluctuating capacity should be considered, but what then? That is why I have concerns. Fluctuating capacity is a complex, fact-specific matter that deserves in-depth, detailed guidance. That is why we will include details of it in the code of practice. We consider that a much better way, allowing examples and real guidance to be set out. That will include the issue of where a person with fluctuating capacity meets or does not meet the authorisation condition of lacking capacity to consent to the arrangements, and whether the authorisation continues in force or ceases to have effect.

The backdrop to the matter is the fact that courts have been considering whether decision makers can take a long-term view in some cases of fluctuating capacity. We expect a judgment from the Court of Appeal soon, in the case of Royal Borough of Greenwich v. CDM. Hopefully, that will give legal guidance on how decision makers should deal with fluctuating capacity. That, of course, will be reflected in the code.

With those assurances in mind, I hope the hon. Lady will feel able to withdraw the amendment.

[Barbara Keeley]

The Minister says she is tempted by the amendment. It is about time, because she accepted the recommendations when she accepted the Law Commission’s report, and I have even read out the date when she did that. The Law Commission was clear in saying that fluctuating capacity is not something that can be dealt with adequately in the code of practice.

Despite the Minister’s having said that she would accept the recommendations, the Government have made no attempt to deal with fluctuating conditions on the face of the Bill. There is a real danger that breaches of the Act will be encouraged because responsible bodies and care practitioners have no proper avenue to pursue if a cared-for person has a fluctuating condition. It is open to the Minister to move an amendment on Report, but we will be putting our amendment to a vote this morning.

Question put, That the amendment be made.

Division 18

Ayes: 8

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Labour: 8

Noes: 9

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Conservative: 9

Amendment proposed: 43, in schedule 1, page 20, line 34, leave out

“if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so”.—(Barbara Keeley.)

This amendment varies the role of the AMCP so that they must meet with the cared-for person in making their determination.

Question put, That the amendment be made.

Division 19

Ayes: 8

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Labour: 8

Noes: 9

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Conservative: 9

Amendment proposed: 41, in schedule 1, page 20, line 40, at end insert—

“(d) determine whether an application to the Court of Protection is required; and

(e) notify the responsible body, cared-for person, the appropriate person and any IMCA of that decision.”—(Barbara Keeley.)

This amendment requires an AMCP to determine whether an application to the Court of Protection is required, and notify the responsible body, cared-for person and others of this decision.

Question put, That the amendment be made.

Division 20

Ayes: 8

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Labour: 8

Noes: 9

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Conservative: 9

[Barbara Keeley]

I beg to move amendment 46, in schedule 1, page 21, line 42, leave out sub-paragraphs (1) and (2), and insert—

“39 (1) The responsible body must take all reasonable steps to appoint an IMCA to represent and support the cared-for person if—

(a) sub-paragraph (2) provides that an IMCA should be appointed, and

(b) sub-paragraph (6) does not apply.

(2) An IMCA should be appointed if—

(a) the cared-for person makes a request to the supervisory body to instruct an IMCA;

(b) there is no appropriate person to represent and support the cared-for person;

(c) the cared-for person is 16 or 17 years old;

(d) there is an appropriate person to support and represent the cared-for person in relation to this Schedule and they make a request to the supervisory body to instruct an IMCA; or

(e) there is reason to believe that the appropriate person would be unwilling or unable to assist the person in understanding or exercising the relevant rights under this Schedule without the support of an IMCA.

(3) A person is not an appropriate person to represent and support the cared-for person unless the responsible body is satisfied that the person—

(a) is a suitable person to represent and support the cared-for person;

(b) consents to representing and supporting the cared-for person;

(c) will maintain contact with the cared-for person;

(d) will represent and support the cared-for person in matters relating to or connected with this Schedule; and

(e) is not engaged in providing care or treatment for the cared for person in a professional capacity.

(4) A person is not an appropriate person if there is reason to believe that the cared-for person does not wish, or would not wish, to be supported and represented by the proposed appropriate person.

(5) The ‘relevant rights’ under this Schedule include—

(a) rights to request a review by an Approved Mental Capacity Professional;

(b) rights to request a review under paragraph 35;

(c) rights to information about the authorisation, assessments and its effects;

(d) rights to apply to the Court of Protection under s21ZA.

(6) An IMCA should not be appointed if—

(a) there is reason to believe that the cared-for person does not wish to be supported by an IMCA; and

(b) there is reason to believe that the cared-for person does not wish to exercise rights to apply to the Court of Protection under s21ZA.

(7) The responsible body must keep under review whether an appropriate person is undertaking their functions. If the responsible body finds that the appropriate person no longer fulfils the required functions, the responsible body must appoint another appropriate person or IMCA.”

This amendment would amend the requirements for an IMCA to be appointed, so that advocacy is the default position. It also makes provision for appropriate persons to be appointed subject to certain conditions relating to how they discharge their role.

Throughout the proceedings on the Bill, we have talked about the rights of the cared-for person and the protection that must be put in place to prevent inappropriate deprivation of liberty. In reality, many people who have suffered under the Mental Capacity Act will not be able to act on those rights. Instead, they require support and assistance from somebody else. Without that support, there is a real chance that somebody will be deprived of their rights, simply because they do not know what their rights are or how to enact them.

Before we discuss the amendment in depth, I will give the Committee some examples of why advocacy is so important to a person subject to the Act. The first is the case of Mrs L, a 67-year-old woman with Korsakoff syndrome who was placed in a care home on a temporary basis following a hospital stay as this was the only place she could receive appropriate support in the short term. A decision was needed as to whether Mrs L was to remain at the current care home long term or whether efforts would be made to return her home. There was a possibility that Mrs L could return to her own home if her legs improved sufficiently. She seemed happy to be at the current care home, but she kept asking when she could go home. Professionals were inclined to recommend that Mrs L was kept in the care home in the long term.

Mrs L was given the support of an independent mental capacity advocate at this point. The IMCA worked to understand what was the least restrictive option available to support Mrs L. As part of that, the IMCA requested an reassessment of Mrs L’s capacity to make decisions on the matter, as she was clearly expressing a preference to return home. Without the intervention of an IMCA before a deprivation of liberty authorisation was applied for, Mrs L may have been kept in the care home against her wishes.

09:45

Let me give another example of the intrinsic value of advocacy. VoiceAbility provides advocacy services to countless vulnerable people across the country. Sam was referred to VoiceAbility’s advocacy service in 2017. Sam is 57 years old and has a diagnosis of Korsakoff disease. Sam was discharged from hospital in 2005 and placed in a long-stay specialist residential unit. Sam was known to have made several attempts to abscond and return home. Sam was described as unco-operative with care providers, and would choose to stay in bed sleeping for the best part of the day. Sam was known to express negative feelings about living in the unit and not being free to leave.

Sam’s mother and extended family struggled to maintain contact with Sam due to the location of the unit and the time involved in travelling. When the relevant person’s paid representative—the advocate—met Sam in 2017, it was evident that Sam had been objecting for some time and had felt isolated and unsupported. When the RPPR explained to Sam the right to challenge the ruling in the Court of Protection, Sam requested that the RPPR initiate such a challenge as soon as possible. During the process the RPPR represented Sam and maintained regular contact with the legal team managing the case. Although Sam’s family were supportive, they expressed concern to the RPPR and other professionals that if Sam were to leave the unit, a return to past negative lifestyles would be inevitable, placing Sam at risk. The family therefore felt unable to support the challenge in the courts.

In 2018, the Court of Protection decided that Sam could move from the residential unit. Sam was placed in supported accommodation and was reported to have settled in well. Sam now enjoys community activities, and is rekindling previous hobbies and interests. In addition, Sam no longer sleeps for long periods and engages well with the new care providers. The location of Sam’s new accommodation has meant that Sam’s mother and family can have more regular contact. The family told Sam’s advocate and legal representative how pleased they were with the outcome for Sam, stating that they did not think it possible. Such cases show that advocacy can deliver the kind of outcomes that we all want for cared-for people, and help them to regain confidence, independence and quality of life.

The Bill proposes a rather convoluted system for deciding whether an advocate should be appointed. I hope that colleagues have had time to read the evidence submitted to the Committee by Lucy Series. Lucy is a lecturer in law at Cardiff University and is widely held to be an expert on the Mental Capacity Act 2005. Page 15 of her evidence includes a helpful guide to the system that the Bill proposes for assigning advocates, and the flowchart shows that the proposed system is complex and difficult to navigate. A number of different caveats must be worked towards, with the potential for applying a best interest test to be used at various stages. If Members have not had the chance to see the flowchart —I know we are not supposed to use visual aids in Committee—it makes it easy to see that the proposed system is complicated, and I suggest that they take a look.

The best interest test has been particularly opposed by stakeholders. At a recent stakeholder roundtable on the Bill, almost every organisation that attended expressed deep concerns about the provision. A best interest test should play no part in access to those essential safeguards, as that would interfere with a person’s right of appeal and compromise that crucial safeguard against the powers given to health and social care professionals under the Mental Capacity Act 2005.

Our amendment proposes significant changes to the system and seeks to remove some of the issues with the Bill, while maintaining the parts that work. It is important to discuss some of those important provisions. The version of paragraph 39(2) proposed in the amendment lays out the different circumstances in which an independent mental capacity advocate should be appointed, and only one of those conditions needs to be met for such an appointment. The cumulative impact of those conditions means that advocacy should be the default position. It simplifies the system proposed in the Bill, and ensures that people are not denied advocacy based on a best interest test.

Proposed new sub-paragraph (2)(a) provides an unqualified right to request an advocate. Regardless of all other considerations, if the cared-for person wants an advocate, they will get one. Unlike in the Bill, that would be true regardless of a person’s capacity. It is a move back towards the safeguards contained in the Mental Capacity Act. Under the deprivation of liberty safeguards, cared-for people have an unrestricted right to request that they be supported by an advocate. I cannot understand why the Government have not simply reapplied the current provision to the Bill, as we seek to do.

Proposed sub-paragraph (2)(b) would ensure that an IMCA is appointed in all cases where there is not an appropriate person to support the cared-for person. In the Bill, that provision is conditional on a best interest test. The Opposition feel that that is far too broad. When read in conjunction with sub-paragraph (6), this would ensure that the only cases where a cared-for person had neither an appropriate person nor an advocate to represent them were where they did not want such representation. We cannot see why it should ever be in somebody’s best interest not to have advocacy available. We recognise, as the Minister in the Lords has said, that there may be cases where a person does not want advocacy, but it should not be in the power of the responsible body to decide whether an advocate is appropriate. That should be a decision for the cared-for person or those who are supporting them.

Proposed sub-paragraph (2)(c) would require an advocate to be appointed in all cases where the cared-for person is 16 or 17 years old. Earlier in the Committee’s deliberations, I spoke about the need for greater protections to be put in place where 16 and 17-year-olds are deprived of their liberty under the Mental Capacity Act. The reason for requiring an IMCA is bound up with that: 16 or 17-year-olds may have an appropriate person or persons to support them in the form of their parents. We have also discussed how parents can find it hard to stand up to authority, even when it is what their child wants and needs. We should not assume that they will all be able to carry out that role robustly enough. As we heard in the case of S, which I mentioned in a previous sitting of the Committee, parents do not always agree with their children what the best course of action should be. In the Government’s Bill, it seems likely that almost no 16 or 17-year-olds would have access to an IMCA unless their parents requested it. That is clearly unacceptable.

Proposed sub-paragraph (2)(d) simply seeks to replicate the provision in the Bill that an appropriate person can request the support of an IMCA. As I said earlier, that would be particularly important in cases where the right to appeal to the courts may be engaged. An appropriate person is unlikely to be an expert in mental capacity law or have the expertise to take a case to court without an IMCA’s involvement.

Proposed sub-paragraph (2)(e) relates to what happens when there is an appropriate person, but they are either unable or unwilling to assist the cared-for person in understanding and exercising their rights. We should not allow a cared-for person to be deprived of their rights because an appropriate person cannot assist them properly. In such cases, it seems the best course of action is to appoint an IMCA to support them in addition to the appropriate person.

Proposed sub-paragraph (7) sets out an obligation on the responsible body to monitor how an appropriate person carries out their role and to appoint an IMCA to support them if needed. That means an appropriate person will not be left alone if they do not have the time or expertise to advocate for the cared-for person to the best of their abilities. An example of where that might be useful is in maintaining contact with the cared-for person—a crucial but possibly time-consuming task. This is an important provision, as is demonstrated by a case study that was supplied to me by POhWER, an organisation that provides advocates to people who have no one else to support them.

[James Morris (Halesowen and Rowley Regis) (Con)]

The hon. Lady is laying out an interesting case. I wanted to ask a quick question about the amendment. Proposed sub-paragraph (2)(e) states that

“there is reason to believe that the appropriate person would be unwilling”

and proposed sub-paragraph (7) states:

“The responsible body must keep under review”.

I wonder how she envisages that process working in practice. What would the review process be that the responsible body would undertake to determine whether they thought an appropriate person was capable of undertaking their functions? It sounds a bit like a procedure where somebody has power of attorney, which then has to be frequently reviewed. How does she envisage that process working?

[Barbara Keeley]

Obviously, it is an extensive amendment. There are two issues, and I will go on in a moment to talk about how important it is to keep in contact with the cared-for person. It is clear to anybody who knows anything about care homes, or independent hospitals in particular, that some people end up without visitors and without having contact with anybody. The Bill allows renewal periods of three years. We can envisage a situation, given the examples I have given, where a cared-for person is hundreds of miles away from their family. In the example I gave of Sam, the family were not in contact due to the distance of travel.

With regard to review, a responsible body would keep an eye on the situation of a person who never receives any visits or contact. In those situations, it really is up to the care home, the independent hospital or the hospital. Those are the most vulnerable people. The amendment says that it should be a person’s right and the default to have an advocate. It is a matter of how to get the mechanism working towards that. The idea of a review is that the responsible body should be looking out for people who have had no contact with anybody else.

My next example is a powerful one. It was supplied by POhWER, an organisation that provides advocates to people who do not have anyone else to support them. POhWER’s advocate had been visiting an older lady in her care home for a few months. He described his work with her as follows:

“This was supposed to be a two-monthly visit but I felt monthly visits were more appropriate. I carried out mainly unannounced visits due to some of my concerns…

She had been living within the home for over a year. When speaking to the client, she wasn’t really aware where she was living and either referred to it as a temporary placement or a hospital. She didn’t state any unhappiness within the placement, but visually there appeared to be some neglect. There was inconsistency in the way she was described by staff and her documentation was also unclear…

After a few visits I noted her clothes were not appropriate for her skin condition. I was significantly alarmed by her swollen weeping legs and tight trousers that were wet from the fluid. I raised this with the managers immediately. She was then dressed in appropriate clothes. They spoke about the client having choice about what she wants to wear. I explained issues with her statement and the difference between choice and best interests for someone who lacks capacity and for someone who is not aware of the risk.

I asked them to identify this in various care plans, but there was nothing suitable in place…

My following visit saw some changes and this was now reflected in paperwork, but when speaking to the nurse in charge she wasn’t aware of the protocol in place. The client was in a better condition than in my previous visits which was comforting to see. Again I fed back to management about the communication in the team being unclear and was assured by the care home management this would be addressed.

I carried out another unannounced visit and saw my client in a nightie with blood stains. I had seen her legs which looked in extremely poor condition. I asked staff and management how her skin on her legs was and was informed there were no issues and they were following the protocols in place.

My client’s legs were weeping and covered in blood stains. I reported this to the managers of the home. This was also highlighted in my email and reported to the supervisory body and I was advised to contact the safeguarding team.

All my details and findings were reported to the safeguarding team and to the quality standards team. Since the involvement of the safeguarding team my client no longer resides at the home, has changed accommodation and is enjoying living there.”

The only reason the advocate was able to pick up on the poor treatment being received by the cared-for person in that case was because they visited her several times over the course of several months. Had they been involved solely with the authorisation process but then not visited until a scheduled review or renewal, which, as I mentioned earlier, might be three years later, it seems unlikely that the multitude of errors documented would have been seen. Ultimately, that would have led to the cared-for person receiving a much lower standard of care. That is why we want to see an appropriate person or advocate who will keep in touch with the cared-for person, and support to do that should be provided if it is needed.

Paragraph 39(5), which is proposed by the amendment, outlines some of the rights that the IMCA or the appropriate person should support the cared-for person to understand and exercise. I hope that the code of practice sets out in more detail the way in which IMCAs or appropriate persons should carry out their role, but we feel that the rights outlined in proposed sub-paragraph (5) are the most important for the cared-for person to understand. They include the ability to trigger an independent review of the application or authorisation, and I believe that they should be in the Bill. We have not seen the code—we have seen a list of what is going to be in the code—and we have not seen the guidance that will be issued to IMCAs. In the absence of those, we want to ensure that certain key rights are protected in the legislation.

10:00

Proposed sub-paragraph (6) is about the very specific circumstances in which an IMCA should not be appointed. If this sub-paragraph is met, the provisions of sub-paragraph (2) are overruled. Both conditions must be met for an IMCA not to be appointed. The first condition is that

“the cared-for person does not wish to be represented by an IMCA”,

and the second is that the cared-for person does not wish to exercise their right of appeal to the Court of Protection.

This proposal would mean that the cared-for person’s objection to an IMCA could be overruled if—and only if—they wanted to appeal to the Court of Protection. This is not without precedent. There have already been cases of the mental health tribunal appointing a lawyer to a case, despite the person’s objection, because the case would not be effective without the appointment of a lawyer. When I proposed amendments 40 and 41 on access to the Court of Protection, I talked at length about the challenges that an appropriate person can face when trying to take a case through the court system. It can be an overwhelming amount of work for a layperson. It is crucial that an IMCA be appointed in such cases to ensure that the cared-for person is fully able to realise their right to appeal.

I hope that I have given hon. Members an idea of what we aim to achieve with the amendment. It would ensure that an appropriate person truly is appropriate to support the cared-for person. If they are not, either a different appropriate person or an IMCA would be appointed. Most importantly, it would make the provision of an advocate the default position. That should not be dependent on best interest tests or the capacity of the cared-for person.

I would like to give one final example of how important advocacy can be. This is the case of Ethel, an 85-year-old woman with a diagnosis of dementia that she refuses to accept. She is unable to mobilise due to problems with her hip, and was admitted to a nursing home following a lengthy stay in hospital. Neither the local authority nor the care home additionally identified the need for a deprivation of liberty safeguard. It was only after Ethel had been in a nursing home for a year that an application to authorise deprivation of liberty was made. This is concerning, since Ethel had continued to request a return to her own flat throughout that year.

As part of the authorisation of deprivation of liberty, Ethel was appointed an advocate. This advocate reread the best interest assessment, and found that the best interest assessor had recommended that certain conditions be placed on the authorisation. This had not happened. When this was raised with the care home and the local authority, they disclosed the fact that they did not read the reports at all during their first visit. The advocate discussed this with Ethel and determined that an application was to be made in the Court of Protection. This was done, and the conditions were attached to the authorisation.

Without the involvement of the advocate, Ethel would not have been able to enact her right of appeal to the courts, and would not have had her care adjusted to meet her needs. That had been the original intention. Conditions that had been attached originally had not been enacted. That small example demonstrates the importance of advocacy. Our amendment seeks to ensure that nobody is denied this vital service, and I hope that in the spirit of consensus and to improve the Bill, the Minister will accept it.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Austin.

I rise to support my hon. Friend the Member for Worsley and Eccles South and to state that advocates are extremely important. They should be provided by default, with cared-for persons having the right to decline such representation if they wish. To illustrate my point, I will refer to a case study from POhWER, an organisation that provides advocacy support. Its advocate supported a cared-for person to go to court and stopped the local authority’s attempts to sell his home. Thankfully, the client then returned home.

The disconcerting scenario is as follows. The POhWER advocate, or the relevant person’s paid representative, visited a client in a care home where he was able to state that he did not want to be there, and wanted to go back to his own home. A discussion took place about requesting a review, accessing the court or liaising with a social worker. There were no conditions attached to the DoLS, but there was a lot of evidence and many statements confirming that the client did not want to be in the care home.

The cared-for person asked his advocate to have a chat with the social worker initially. The advocate contacted them to discover that although the client had not been in the placement for a long period, the local authority had placed his home on the market with the intention of funding his placement with the proceeds. That is an absolutely ridiculous scenario. It could happen to anyone here: unbeknown to us, the local authority could, without advocacy support, place our house on the market to fund a care placement with the proceeds of its sale. The client had no knowledge of this and there was no evidence at all that he had been consulted. He was very upset and wished to access court.

The court process determined that the cared-for person had substantial personal funds and a home that could easily be adapted for any mobility issues, with numerous bedrooms for live-in staff, whom he could afford to pay for himself. Thankfully, the judge ruled that he was to return home, in line with his wishes, given that he would have chosen that for himself if he had had full capacity to do so. Before the client moved back home, the new social worker who was appointed involved him in selecting the carers, who would live with him on rotation, and he had trial visits including some overnights. The return home was successful and the DoLS ended.

I hope that that example illustrates to the Minister and to Committee members that, without advocate intervention, the cared-for person’s home would have been sold without his knowledge, and his wishes and feelings would have been completely discarded and ignored. That is why it is very important that advocacy should be there by default.

[Dr Paul Williams (Stockton South) (Lab)]

It is a pleasure to serve under your chairmanship again, Mr Austin.

Like other hon. Members, I would like to share some cases to do with the issue of appropriate advocacy. Briefly, I will describe a simple intervention by an advocate who challenged assumptions made by care home staff and improved the quality of life of a person living with dementia. A relevant person’s paid representative was appointed for a woman who, it was reported, had been financially abused by her child following her diagnosis of dementia. She had been placed in a care home by the local authority because of safeguarding concerns.

Visits from the RPPR identified that the woman appeared to be happier now that she was not subject to the conduct and behaviour of her child. However, she had none of her own clothes, photographs or personal artefacts with her. When she was asked about that, she said that that made her feel sad. The RPPR made representations and said that if she had those possessions, she might be happier. Contact was made with her child. The intervention resulted in her child bringing items of clothing and photographs to the care home and also having some supervised contact with her mother. The woman told the representative that she was happy for that to continue.

The care home staff had initially provided information that the woman was content and did not need anything further, but the difference in her demeanour when she was wearing her own clothing and surrounded by personal artefacts was remarkable. She even wrote a note to her advocate, thanking her for supporting her and helping to get her child back in her life. Later on, her child wished to take her out of the care home, but the RPPR listened to the woman, who said she wanted to stay where she was, and supported her to make the decision to remain where she felt safe and comfortable.

That case illustrates why appropriate advocacy must be available to all who need it. The new legislation must ensure the right of the person to object to and challenge arrangements if they wish and to have the support and representation to do so. Support from an IMCA should not depend on a person’s best interests, as defined by other people. It should be a right that everyone is able to access an advocate, and people can then choose to opt out. That would improve the Bill by offering clarity to the cared-for person and the responsible body. I am happy to support the amendment.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I, too, want to support amendment 46. I would like to draw on a case study that has been provided by the organisation POhWER, which concerns an arranged marriage. I wish to draw the Committee’s attention to it because this occurs in the Birmingham area with remarkable frequency.

The case concerns a young woman who, for the purposes of the debate, I will call Layla. The authorities were contacted by her sister and advised that she was about to be taken to the airport and flown overseas for an arranged marriage. Her sister was extremely concerned that Layla did not understand what was happening and did not have the capacity to consent to sexual relations—many similar cases have been reported in the press. Having been alerted, the authorities decided on this occasion to step in, and Layla was given an emergency placement with a deprivation of liberty order while the matter was properly investigated. Following that, POhWER arranged for an advocate to be made available.

As the shadow Minister said, this is about the level of contact, because details are sometimes revealed during subsequent visits or after some time. During the advocate’s initial visit things seemed fairly straightforward, and the young woman did not express anxiety about being detained at the care home. She did not say she was unhappy, and there was no reason to suppose there was any great problem. During subsequent visits, however, it became clear that she was very bored and isolated, largely because most of the other residents were elderly, and although she was safe, she was in quite an inappropriate place.

The other day I spoke to a friend in Birmingham who works at a care home, and she told me a remarkably similar story. Because of the pressure on places and funding, it is not always possible for people—particularly if placed as a result of an emergency situation—to be given an ideal placement. It is therefore common for people to find themselves in a place that is safe, but that most of us might regard as not that appropriate in terms of its potential to allow them to improve or develop.

On this occasion, the advocate made representations to social services about the young woman’s ability to access a college place. Again, that request was initially ignored—throughout the Bill, we have spoken about the pressure on various authorities and the danger that if someone subject to a detention order is regarded as being in a safe place, attention will switch to the next emergency or crisis. By pursuing advocacy, we will ensure that we do not stop at that point and that we continue thinking about what is best for the person involved and what will improve their chances.

The advocate continued to make representations, and eventually the conditions of the DoL order were changed to require the young woman to be able to access a college place. As a consequence, she made phenomenally rapid progress and learned to read and write. She became better able to comment on what had happened with her family and to understand the nature of the arrangements under the DoL order. The end point of this was that, at a subsequent assessment and review, she was judged to have sufficient capacity to live independently by herself with minimal support, and she went on to gain paid employment.

10:16

We started with a situation where she could have ended up in an arranged marriage overseas. She could then have ended up, essentially, being warehoused, vegetating in a care home where her physical needs might have been adequately dealt with and she might have been safe, to the extent that she was not in danger of immediate harm, but where the quality of her life had virtually disappeared. The intervention of the advocate resulted in that young woman having a quality of life that could not previously have been imagined.

That seems the perfect argument for the case my hon. Friend the Member for Worsley and Eccles South seeks to make. I ask the Minister to think about the variety of people we are asked to look after when applying this legislation. They may not all be elderly people; some may be quite young people, such as Layla, and may have a very long life ahead of them. Our duty is not just to offer them immediate protection, but to ensure that we do everything in our power to maximise their potential for the years ahead.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to see you in the Chair again, Mr Austin.

As I reflect on what my hon. Friend the Member for Birmingham, Selly Oak was saying, I recollect that we were getting stories some years ago about people—possibly like that young person—who were suffering the fate that could have befallen her. In some cases, their only crime—the only thing they had ever done wrong—was to get pregnant; they were locked away in what, in those days, were called “mental institutions” because they got pregnant. We heard story after story, not so many years ago, of people coming out of those places having lived 30 or 40 years there, when there had been no mental capacity issues or anything like that at all—just something way back in their past. If people in that situation had had an advocate, we might never have had that situation or heard those stories of people being deprived of their liberty, particularly unlawfully, for decades.

To illustrate the case for this amendment—if my hon. Friend’s story does not do so—I want to use real-life examples provided by the advocacy provider POhWER, to which I am grateful. Imagine someone is in a care home; their same-sex partner of more than 30 years has passed away, but the care home staff have denied them the right to look at photographs of their partner, because the relationship they enjoyed over all those years went against God’s will. The staff are depriving that person of their liberty, unauthorised. The person is experiencing homophobia, and they are distressed, as they are not allowed to look at photographs of the person they spent their life loving. In time, however, they get an advocate; their distress is clear to the advocate, yet they smile and laugh when, at last, they are handed a photograph of their late partner. Situations such as that have happened, and are still happening.

Another case in the same care home centred on a cared-for person being prevented from attending the local mosque, because the care home manager, for some bizarre reason, felt the weekly visit from a Christian priest was sufficient to meet everyone’s religious needs. Having seen them operate in hospitals and all manner of places, I know that good priests, rabbis, imams or other religious leaders visiting care homes or hospitals do not discriminate; they will speak to anyone and spend time with them. They do that because their faith is driven by compassion and care, and they have a genuine desire to minister to people regardless of their faith, or even if they do not have a faith at all. However, that is no reason for a person to be denied the right to attend the building that serves them in their faith, but that, too, happened in this care home.

A one-size-fits-all arrangement across the wide range of services provided in a care home is not sufficient, and it certainly does not work with faith and sexuality. The people in those examples were helped in their respective plights, thanks to an advocate—someone who could help to put matters right, who ensured those people had what they needed and who, perhaps more importantly, had the capacity, skills and knowledge to point out the rights of the person in care and to make the point that the actions I described are discriminatory and could be unlawful.

Last week, the Minister rightly spoke in praise of care home managers, and I have made it clear that I believe the vast majority do a good job and are genuine carers. But they too are ingrained; they are stuck in the day-to-day running of their care home, and we cannot expect them to function as an assessor, an advocate or anybody independent whom a cared-for person needs. Even if they did have that responsibility, that would have failed to protect the two people in the two examples I gave.

The default position in the Bill should be that every person gets an advocate unless they actively refuse one after they have been given one. As I and others said earlier, it should be an opt-out rather than an opt-in—my hon. Friends have covered that in some detail. It is much better for a person to decide that they do not want an advocate than for them to be unfairly treated because they did not have anybody to speak up for them.

I agree with Mencap, which argued:

“The new scheme must ensure the right of the person to object to and challenge arrangements if they wish, and have the support and representation to do so”.

If the person in the case I spoke about at the start of this speech had had the support and representation to challenge arrangements, she may not have been so distressed because she was denied access to photographs of her partner. She may have had a better emotional quality of life and, leading from that, probably a healthier physical life as well. Instead, she was let down by care home staff, and her rights to express her sexuality were denied. She was denied her liberty.

Age UK has also backed this amendment, saying:

“Support from Independent Mental Capacity Advocates should not depend on a person’s ‘best interests’ as it is currently drafted in the Bill. Instead everyone should be able to access an advocate and a person who chooses not be represented can then opt out.”

[James Morris]

Obviously, everyone would agree that having advocates is a good idea, but I want to press the hon. Gentleman on the point about the circumstances where there might be a need for a best interest test before an advocate is appointed. Does he accept that the number may be limited, but there may be circumstances in which the particular condition of an individual—the nature of their condition—might mean that their having an advocate might not be appropriate?

[Alex Cunningham]

I understand the hon. Gentleman’s point. Unfortunately, we have to cover everybody with an amendment such as this, otherwise we end up with exclusions left, right and centre. We cannot afford to have exclusions. If an advocate is in place, there is no additional problem associated with that. At least the person has some chance of representation.

[Steve McCabe]

I think the Minister covered the point made by the hon. Member for Halesowen and Rowley Regis when she cited the small number of situations she thought could be distressing or problematic—I presume that is what the hon. Gentleman was thinking about. That is exactly the sort of thing that the code of practice is supposed to cover. Is that not exactly what we would expect? On the one hand, the Bill clearly legislates in broad terms for what is and is not acceptable, and on the other hand, the code of practice gives the back-up information for professionals, so that they can recognise the sort of situation to which the hon. Gentleman refers.

[Alex Cunningham]

That is most certainly the case. I go back to my Second Reading speech. This is about the individual. This is about one of the most serious things we can do as a nation to somebody—take away their liberty. We should do anything and everything we can do to ensure that they have every single piece of support before that decision is taken, effectively, to lock them up. I agree with my hon. Friend.

I was quoting Age UK, which believes that everybody should have access to an advocate and that a person who chooses not be represented can then opt out. The quote continues:

“This will greatly improve the Bill and give clarity to the cared for person and the responsible body.”

Mencap believes, as I do, that independent advocacy is vital to help vulnerable people to understand and exercise their rights under the law. We have had several examples of that this morning.

Rethink Mental Illness is also on board with the amendment. I appeal to the Minister to provide an opt-out approach, which would greatly improve this Bill, as others have said, and give clarity to service users and providers.

I mentioned care home managers, but the risk of independent hospitals being responsible for assessments is another concern about the Bill, and as we said the other day, we hope the Minister will ramp up the assurances in this area. I have another real-life example for her. A man was held in hospital for almost a year—with no advocate for 10 months. He was angry because he wanted to go back to his two-bedroom home, but the local authority wanted him to move into accommodation with 24-hour support and to not return home. The reason given was that the brother had moved into the spare room at the cared-for person’s home and there had to be a spare room for any overnight carer, should the man return home.

What did the advocate find out by talking to the cared-for person? They found that, when he had been living at home, he had been sleeping in a chair in the lounge while his brother had his room and his carer had the spare bed. Then he had fallen and not been found for two days, as a succession of carers had failed to attend. The cared-for person’s statements were not taken into account by the social worker involved. If they had been, the process might have been very different. The man needed an advocate from day one.

The case eventually went to court, and the judge accepted evidence from the advocate and ordered the cared-for person to be returned home—[Interruption.] Bless you!

[Alex Chalk (Cheltenham) (Con)]

I wonder how Hansard records a sneeze.

[Mr Dhesi]

That is now a matter of record.

[Alex Cunningham]

The Committee is going to get this example whether it wants it or not. The case went to court, and the judge accepted the evidence and ordered that the cared-for person be returned home and that the sibling be evicted so that the live-in or an overnight carer could be accommodated. The gentleman in question returned home successfully and was later assessed as having regained capacity.

That is the power of an advocate, and it proves the necessity of an advocate in all cases, so I hope that the Minister takes these comments on board and ensures that she helps to enhance the quality of life for vulnerable people by including this amendment in the Bill. It would probably also ensure that she plays an important role in getting people who can be supported in the community the right result for their lives, rather than their being effectively locked up in a place where they do not want to be.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to follow so many colleagues making so many eloquent points about just how important advocacy is. I think that all of us in this room recognise that. An individual up against powerful organisations, across all sectors, is in a very uneven power relationship. If we then add in perhaps a lack of knowledge of how systems and services work, they might need support. Certainly, when they do not have capacity either, there is a clear need for some sort of support.

Sometimes we might read, whether in our postbags or online, that we in this place do not get it on an issue. On this issue, we definitely get it, because every day all of us at some point are battling the local council, the health service or the Home Office—that feels like a regular one—in advocating, as Members of Parliament, for people who do not know the system the way we do. They might look at something and think, in a natural justice way, “Hey, this isn’t right” or “I’m not happy about this,” and we provide extra support and learned knowledge to try to help them through that.

We do get it, and I hope that we can layer that into this very important legislation. We know the sensitivities of the individuals we are talking about. The whole purpose of the Bill, of our being here for the third day and of the time in the Chamber as well, is to take a system that, at the moment, does not work in terms of system capacity and has in the past created outcomes for people that we would not wish for ourselves, our loved ones or anybody, and to try to get something that does work and is robust. Fundamentally, we would always want to know that, as a result of what is decided by Parliament in this legislation, people living in Nottingham, Bristol or Birmingham, with relatively similar circumstances, would have similar outcomes, irrespective of the fact that the person in Nottingham had an adult child who was very active or even a DoLS specialist and the person in Bristol had no one. We would want, irrespective of those circumstances, that those people got consistent outcomes, because that is what a fair system means.

If we take away advocacy as a default, we get into the fundamental question of whether families, including active families, would even know to know that they could have an advocate. If the quality of the engagement with the responsible authorities is not good, for whatever reason—that has sometimes happened in the past—would the family know that they could ask for an advocate, or that there might have been a best interest assessment and a judgment that, given that the family were around, advocacy was not necessary?

10:30

To follow that idea for one more step, we have heard from the Government on previous amendments that it is not enough just to rely on the family. Sometimes the heart can rule the head in families. They might make the judgments that they would want to be best for their loved ones, but those judgments might not actually be best for them. Again, some independence and experience in the system would seem to be an improvement.

I will illustrate my point with an example, kindly provided by VoiceAbility, the advocacy service. An individual, Jo, was referred to VoiceAbility in 2016. She was 56 and a lone parent, and had a diagnosis of alcohol-related dementia. She had been in hospital for detoxification and was discharged in 2015 into a nursing care unit. At the time of that admission, she was extremely agitated and anxious, and reluctant to engage. She spent long periods sleeping, was lethargic and had little motivation. It was obvious to the advocate who then became involved that Jo objected to living in the setting. Her case was of course subject to DoLS.

Jo was at that time the youngest resident of the nursing home, and did not have the same complex needs as her fellow residents. She informed the advocate that living in the home had led to decreased contact with her family. She felt that that was because of the environment that she was living in, and she wanted that to be taken into consideration. The advocate informed Jo about her right to make a challenge in relation to DoLS, which she was keen to do, and supported the process, helping Jo to understand what was going on, initiating the section 21A challenge, and continuing to engage with Jo and help her engage with her legal representative to make the best case.

In 2017, the case was heard at the Court of Protection and a decision was made for Jo to move from nursing care to supported accommodation. She was able to see her potential new home before moving, and was supported by the advocate and by family and friends. On getting a back payment of benefits, she was able to purchase new items for the accommodation to make a home there. The advocate visited her after the move and learned that she was happy. Family were coming, Jo was getting more access to the community, and staff were supporting her to cook meals and go to the shops. She was also being supported to take up hobbies and increase her fitness.

That is one person’s case and it was transformative in her life. The impact of the advocate was extraordinary. The circumstances may be specific to the individual, but we can understand how that story could happen. We have been talking about how people with diminished capacity, caused by things that have happened in their life, can present as agitated, awkward, passive or lethargic in a way that would make someone say, in the moment, “This person is not very engaged or interested.” The purpose of the amendment is to ensure that in such cases—where at the time of the best interest judgment someone appears too awkward to deal with, or not interested, or as wanting only to stay in bed all day—a judgment is not made that then means the person is forgotten about for the rest of their life.

That is the root and substance of the measure. We need some extra independence in the system—someone who has the responsibility to go in to help, to talk and to try to engage the person, even if they are a bit lethargic. The advocate did that for Jo, and numerous Members have given accounts of that happening. There is a compelling case for switching the default from a best interest judgment to an “everybody” judgment, unless there is a strong reason why the person in question would not want one.

[Caroline Dinenage]

We are, largely, starting on the same page. We all agree that advocacy is of the utmost importance for the cared-for person. The Bill is clear that everyone has a right to an advocate, whether an appropriate person, an IMCA or, in some cases, both. The Bill sets out clearly that, if no appropriate person is available or able to represent and support a person, the responsible body must take all reasonable steps to appoint an IMCA, if the person has capacity and requests an IMCA and wherever a person lacks capacity, unless in very rare cases it is not in their best interest, as my hon. Friend the Member for Halesowen and Rowley Regis mentioned.

I thank hon. Members for recognising in the amendment the wishes of the cared-for person as a condition for appointment, as we would not wish to force advocacy on anyone. The Bill already allows an appropriate person to request the support of an IMCA. However, I am concerned about the way in which that best interest has been discussed today. Best interest is the standard that governs decision making under the MCA. I am concerned that the Opposition are disregarding that in relation to IMCAs. I apologise if I have misinterpreted what hon. Members have said. The core aspect of best interest is the person’s wishes and feelings. That has to be the primary consideration when it comes to rights and IMCAs.

[Barbara Keeley]

Given that the Minister has just expressed her view on how we are presenting our views on best interest, I hope I can summarise the examples that we have given and the view that we are putting forward that it is a subjective judgment. There is a difference with a cared-for person being allowed to have an advocate, as a default arrangement, unless they do not want that, as in some of the cases we have mentioned. The best interest test is at best a subjective judgment. There are many examples where somebody’s best interests have been ignored. That is why we have given many cases; those cases illustrate how incorrectly this test can be applied and how wrong it can go.

[Caroline Dinenage]

I thank the hon. Lady for that clarification. I am really grateful for all the interesting case studies and examples set out today. They show the incredible variety of cases, experiences and issues that the Bill needs to encompass, and the challenges of getting it 100% right. That is why we have to be incredibly careful with carte blanche.

We think it would only be in very rare cases that it would not be in the person’s best interest to have an IMCA or appropriate person representing them. Of course, the default is that they would. If the appropriate person is not fulfilling their duties, there should be an alternative appropriate person in place, or an IMCA should be appointed by the responsible body.

There is a presumption in a case where a person lacks capacity. They have the right to request an advocate, if they have capacity, and that best interest test is to avoid overriding their wishes and feelings in cases where they do not. Families of those who lack capacity have told us that they often feel left out of the process. Allowing them to act as appropriate persons enables them to be involved and provide support. I am sure hon. Members agree that that is a good thing.

The role of appropriate person is an important way of involving those who are close to a person, but is not necessarily a matter of either/or. An appropriate person can request support from an IMCA if they wish, and that will include access to challenge in court. We are expanding rights to IMCAs. Currently they are available only to people in hospitals and care homes. The liberty protection safeguard would expand that to those in the community and supported living.

We have set out the fundamental requirements of who can act as an appropriate person and the code of practice will give further detail. I know there were concerns that an IMCA would make a one-off visit and, once everything was settled, they would never be seen again, but it is clear that an IMCA must keep up ongoing contact outside of review times to ensure that the person’s rights continue to be protected and respected.

[Barbara Keeley]

The Minister said that that is clear. How is it clear? It is not clear anywhere in the Bill that there have to be constant visits. Where is that provision in the Bill?

[Caroline Dinenage]

It is clear in our minds, and it will be clear in the code of practice that hon. Members can approve.

[Alex Cunningham]

Will the Minister indicate what the code of practice will say in that respect?

[Caroline Dinenage]

I cannot give the exact wording because, as I have said, we are engaging with stakeholders and we wish to get the provision exactly right. If I were to provide the wording it would be just the opinion of a politician, and we will all agree that we need the voices of experts, and that the views of those with lived experience of having to support people should be taken into consideration.

[Alex Cunningham]

Will the Minister give way?

[Caroline Dinenage]

I will in a moment, but I also wish to consider those parts of the amendment with which I fundamentally disagree, as that is important. The amendment would require all 16 and 17-year-olds to have an IMCA as well as an appropriate person. I feel strongly that automatically appointing an IMCA for a 16 or 17-year-old would risk freezing out parents from providing representation and support, and parents are often best placed to take such a role.

The hon. Member for Worsley and Eccles South often talks about the desperately distressing case of Bethany and countless others, where parents’ wishes and concerns are not listened to or heeded. We have been clear about giving families a strong role in this model, and we do not want to risk that. As with an appropriate person, a parent or family can request the support of an IMCA, or for their role to be performed by an IMCA.

[Barbara Keeley]

I am surprised that the Minster seems to be referring to an advocate as someone who will get in the way of the parents. When I have met parents—I have met Bethany’s father—a great deal of advocacy is going on. Stakeholders in the Bill help with the provision of advocates—indeed, they themselves provide advocacy and legal support. I know for a fact that Bethany’s father would not have got very far because, as the Minister knows, an injunction against him by his local council tried to prevent him from even speaking about his daughter’s case. People need professional support—parents need it, as do other carers—and I hope the Minister will not categorise the support of an advocate as somehow “getting in the way”. The professionals who make decisions have to be challenged, not advocates who are there to support people and their parents.

[Caroline Dinenage]

The hon. Lady slightly misrepresents what I am trying to say. Of course we have seen numerous examples of how important advocacy can be—it can literally make the difference between people living a happy life that suits their needs, or being kept in a place where they feel unhappy and that does not fulfil those needs. I agree that people should be able to access advocacy, that advocates should be able to work alongside parents, and that if parents feel that they cannot take on such a role, advocates should do that work instead of parents. I also feel, however, that if parents feel that they want to do this on their own and not take on additional advice they should not be forced to, and that is probably the fundamental difference between the Government and Opposition positions. People should be allowed to make decisions for themselves if they wish, and they should not continually be forced to take advice if they do not want to.

We want to make this model person-centric—that is key—and base it on the needs of individuals. By mandating the conditions for IMCA appointments in primary legislation we would once again be prescribing a one-size-fits-all approach that does not consider someone’s individual circumstances, or the wishes and feelings of those involved and their family and loved ones. I hope hon. Members agree and will withdraw the amendment.

10:44

[Barbara Keeley]

The Minister seemed to imply—I think she used similar words—that appointing an IMCA will be the default, but that is not the case in the Bill. The Bill states that an IMCA should be appointed if the responsible body is satisfied that being represented and supported by an IMCA is in the cared-for person’s best interests. There is a best interest test there, which will potentially get in the way. With the wrong sort of process going through in independent hospitals, it will be subject to that best interest test. That is how people can end up ignored, festering in situations where they do not want to be.

[Caroline Dinenage]

I am struggling with this, because the hon. Lady is giving the impression that best interest should not be taken into consideration. “Best interest” is basically code for the wishes and feelings of the individual. Is she honestly saying that because a person may be lacking capacity their wishes and feelings should be totally ignored, and they should be given what everyone else thinks is best for them?

[Barbara Keeley]

The Minister knows that that is not an accurate interpretation of what I am saying. We spent a fair amount of time talking about independent hospitals, which are still a massive worry and concern. There is still great concern about the potential role of care home managers, because of the conflict of interest in the case of both independent hospitals and care home managers. There are too many actors in this process who could get in the way and be the people deciding whether a best interest test is met.

Were the best interest assessors the people who are used to this and have been doing this job in local authorities, I would be more comfortable. The Government are trying to give power over the process to care home managers and independent hospitals as responsible bodies, and we disagree with that profoundly, because of the cases that I have brought to the Minister’s attention. I think she and the Government are wrong to put faith in bodies where there is a conflict of interest. That is why I feel so strongly about this.

[Steve McCabe]

I was going to put a similar point to my hon. Friend. The danger in the Minister’s assertion is that she puts all her faith in the official position, in the position of the responsible authorities. As we have already discussed in the Committee, because of the pressures on those people, they may have other interests and other demands on their attention. If we want to represent properly the best interest of the person and make sure that they are at the centre of the process, we need a balancing mechanism, to ensure that all the issues that the authorities will take into account will be balanced against the best wishes of the person. That is why there is an argument for independent advocacy being set aside from the interest of the responsible organisations.

[Barbara Keeley]

That is very much the case. To summarise the debate, on the Labour Benches we have given some very powerful examples of the value of advocacy. I have been very impressed by the selection of cases and I thank my hon. Friends for their speeches.

Advocacy is one of the most important safeguards in a mental capacity Bill. It is—perhaps we do not like to use the word these days—a final backstop against improper deprivation of liberty. Our amendment makes it clear that the provision of advocacy must be the default position and I do not resile from that being the right thing to do. There are a few limited exceptions, but the provision of an advocate should go ahead, so that cared-for people are able fully to enact their rights. Without that support they will not be able fully to enact their rights.

We have heard powerful examples about getting people out of inappropriate settings and preventing someone’s home being sold when they did not want it to be sold, so that they could return to it. We should not underestimate—Labour Members do not underestimate—how vital advocates are. I know it is a wide-ranging amendment, but it seeks to improve the Bill in a number of ways, primarily guaranteeing an advocate for anybody who wants one.

Question put, That the amendment be made.

Division 21

Ayes: 8

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Labour: 8

Noes: 9

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Conservative: 9

[Caroline Dinenage]

I beg to move amendment 11, in schedule 1, page 24, line 3, at end insert “in a hospital”.

This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.

[The Chair]

With this it will be convenient to discuss Government amendments 12 and 13.

[Caroline Dinenage]

Amendments 11 and 12 are technical and tidy up the provisions in part 7 of new schedule AA1 to the Mental Health Act 1983 that set out the interface with that Act. They provide that liberty protection safeguards cannot be used to recall to a hospital a person who is subject to the Mental Health Act and is residing outside a hospital. If someone is subject to a community power under the Mental Health Act and needs to be recalled to a hospital, that should be done through the Mental Health Act. That is already the case under the current DoLS system, and the amendments ensure that the Bill replicates that. The Bill is already clear that an order made under the liberty protection safeguards cannot conflict with an order made under the community provisions of the Mental Health Act, so if someone is required to reside at a place under a community treatment order, they cannot be required to live somewhere else under the liberty protection safeguards.

Amendment 13 ensures that that principle also applies to other legislation with a similar effect to the community powers of the Mental Health Act. That means that if someone is required to reside in a particular place under equivalent enactments that extend to England and Wales, they cannot be required to be placed somewhere else under liberty protection safeguards. The amendments effectively ensure that liberty protection safeguards are not used inappropriately to complete functions that should be completed using the Mental Health Act, and clarify what we all know: that a person cannot be required to be in two places at once. I hope the Committee supports the amendments.

[Barbara Keeley]

I understand that the amendments are designed to address the interface between the Mental Capacity Act and the Mental Health Act, and to keep that interface exactly the same as it is now. I think this is the point to say that this is not the course we wanted the Bill to take. Amendment 52, tabled in my name and to be discussed later, would delay the implementation of the Bill until the Government have given proper thought to how that interface ought to work. We will not oppose amendments 11 to 13, because I can see that they are intended as technical, drafting amendments and we will treat them as such, but I think this is a missed opportunity.

There is a considerable grey area between the Mental Capacity Act and the Mental Health Act, and in his recent review, Sir Simon Wessely made some valuable recommendations on how that divide could be clarified. At this stage, the Government have not tabled amendments to enact those recommendations, but through these amendments they will instead maintain a deficient set of arrangements. I fall back on what I have said before: I call on the Government to pause the Bill until they have given proper consideration to the interface between the two Acts and can produce a Bill that will not require near-immediate amendment and generate a lot of court cases, as we think this Bill will do.

Amendment 11 agreed to.

Amendments made: 12, in schedule 1, page 24, line 10, at end insert “in a hospital.”

This is to provide that only arrangements to enable medical treatment for mental disorder in a hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded from being authorised under the new Schedule AA1.

Amendment 13, in schedule 1, page 27, line 16, at end insert—

“(g) anything which has the same effect as something within any of paragraphs (a) to (f), under another England and Wales enactment.”—(Caroline Dinenage.)

If arrangements conflict with requirements, conditions or directions imposed or given under certain provisions of the Mental Health Act 1983 those arrangements cannot be authorised under the new Schedule AA1 of the Mental Capacity Act 2005. This amendment provides that arrangements which conflict with requirements, conditions or directions arising from an England and Wales enactment having the same effect as the provisions of the Mental Health Act listed in paragraph 54 also cannot be authorised under the new Schedule AA1.

Schedule 1, as amended, agreed to.

Clause 2

Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

[Barbara Keeley]

I beg to move amendment 16, in clause 2, page 2, line 12, at end insert—

“for a maximum period of 14 days”.

This amendment will limit the duration of an emergency authorisation to 14 days.

This amendment and the next to be debated deal with the proposed system for emergency authorisations of deprivation of liberty. In most cases, emergency authorisations should not be needed. An authorisation can be made up to 28 days before the arrangements are due to come into force, and with proper care planning that should mean that liberty protection safeguards are applied for and enacted before someone is deprived of their liberty. That is also the case under the current system, in which applications can be made 28 days in advance—indeed, it is expected that applications will be made before arrangements need to come into force, if at all possible. None the less, data from NHS Digital shows that last year more applications were made for urgent authorisations than for standard ones, which suggests that care homes and hospitals are either unable or unwilling to apply for a deprivation of liberty safeguard until the point at which such deprivation must occur immediately.

I know that the Minister will want all applications to be made and decided in advance, to ensure that people receive the proper protection but, as one DoLS lead said to me recently, simply wanting it will not make it happen. Under the new liberty protection safeguards, there will be no system for urgent applications. Either a standard application will have to be made or the person will be held under an emergency authorisation. That is worrying, given that emergency authorisations come with far fewer safeguards than full authorisations. Amendments 16 and 17, therefore, aim to strengthen the safeguards applied to emergency authorisations, to prevent their misuse.

Amendment 16 would limit the time during which an emergency authorisation can be in place. I do not think that anyone on the Committee would be sad to see the end of urgent authorisations, and I am sure that the Minister agrees that it was unacceptable that care providers were able to self-certify that deprivation of liberty was both acceptable and required. We must do everything in our power to prevent a repetition of that, so I am glad that urgent authorisations have been taken out of the Bill. However, as in all our work on the Bill, we must ensure that we do not implement a flawed process purely because what came before was worse. We should strive to create a genuinely better system.

The Law Commission shares the view that the system of urgent safeguards no longer works, which is why it proposed the change to emergency authorisations. Although that still allows a degree of self-certification, it requires a far higher bar to be cleared. No longer will an organisation be able to self-certify a deprivation of liberty purely because it believes it is urgently needed; instead, the power will be available only when doing otherwise would have a fatal impact on the cared-for person. There will of course be occasions when that is necessary—scenarios that could not have been foreseen—and in such cases it is important that people are not denied treatment because of the legal requirements, but it does not mean that we should ignore the vital safeguards that people must be entitled to.

The principle is clear: deprivation of liberty should normally be authorised through the proper processes, as set out in schedule 1. The only exception is where there is no way to get the relevant permission in time to deliver life-saving treatment. To ensure that the power is used for only the shortest possible periods, the amendment would put a time limit on it. Under the current deprivation of liberty safeguards, an urgent authorisation can last for seven days and can be renewed for a further seven; at the end of that 14-day period, the only way to continue to deprive someone of their liberty is to apply for, and be granted, a standard authorisation. That provides an important check. It means that a care provider can deprive someone of their liberty for a maximum of 14 days without the involvement of external assessors.

Under the Government’s proposals in the Bill, there is no such check. Instead, an emergency authorisation can run indefinitely, subject to two checks. The first check is that the arrangements are still needed to provide life-sustaining treatment. In the case of someone who requires a respirator or drip-fed medication, that could easily carry on beyond a few days—it could last for years. The second check is that a further decision is being sought from either the courts or the responsible body. However, a recent study by Cardiff University found that appeals under section 21A of the Mental Capacity Act 2005 took a median of five months to be heard. Even if cases relating to emergency authorisations are heard quickly, we are still likely to be talking about months, rather than days, before a case is decided.

One of the Law Commission’s reservations about imposing a time limit on emergency authorisations was the concern that responsible bodies might not always be able to arrange assessments quickly enough. There is a simple solution to that, which does not water down people’s rights. If we want responsible bodies to be able to deliver the scheme, or indeed any other scheme, we need to resource them properly. If they have the resources and staff they need, there is no reason why we cannot ask them to complete assessments in a timely manner.

10:59

The Law Commission also said that it was concerned that a maximum authorisation period for emergency authorisations would become the target for assessing the cared-for person, and we have a similar concern. Without an end date to the authorisation, what incentive would the responsible body have to expedite the assessment process? With no hard deadline by which to complete it, there is a danger that other cases would take priority. Given that anyone subject to an emergency authorisation has few, if any, safeguards, we cannot allow this to happen. Through this amendment, we are seeking to ensure that nobody is deprived of their liberty for long periods of time while waiting on a court or other assessment. I hope that the Committee accepts the amendment.

[Alex Cunningham]

I find it incomprehensible that any emergency authorisation would need to last longer than 14 days. An emergency is just that: it is a serious, unexpected and often dangerous situation requiring immediate attention. That is my online dictionary definition. Once that emergency has been dealt with and the dangerous situation averted, the normal approach should then be adopted. Why on earth would the authorities need to detain a person for many weeks on end without carrying out that full assessment under the law? I suspect the Minister agrees that emergency authorisations would not need to be in place for very long, so everything would be fine and there would be no risk to the person involved. Sadly, nothing in this Bill nails that down. I hope she will have no problem providing us with a guarantee, or supporting this amendment—the real guarantee—to limit that duration of emergency authorisation to 14 days.

We must always take every opportunity to make sure that every precaution is there to ensure that those under emergency authorisations have safeguards and protections. We have been talking about it for days on end. Those authorisations are to be in place so that a person cannot face an indefinite order against them. Not just those of us on the Opposition Benches think that. No fewer than 200 people from my constituency have either commented on this Bill or have signed a petition through 38 Degrees calling for the kind of safeguards in the Bill for which we have been arguing. They are worried about the further erosion of an individual’s rights by the clause if it is not amended.

At every point in this Bill I have posed myself this same question: what does it mean to younger people—the 16 and 17-year-olds—who are captured by it? As I read it, a young person could be detained under these emergency powers. We have talked about insufficient safeguards for young people and parents under the Bill. Who knows how long it could be before they are fully assessed, even when the views of their parents or others were taken into consideration?

According to the Law Society, the Bill

“gives wide-ranging powers for depriving a person’s liberty through emergency authorisations for unlimited periods of time where a ‘vital act’ is deemed necessary. We believe this is unlawful.”

What action will the Minister take to ensure that such actions are not unlawful, as suggested by the Law Society? Although she said that the risks being taken in the care of vulnerable people are simply not there, she needs to convince us or support the amendment. The Law Society goes on to support the amendment in its evidence submission, saying that a

“time limit of 14 days is essential to prevent abuse in accordance with case law”.

Members have spoken at length and given full examples of how the Bill and proposed amendments could play out or have played out in the real world. It is also vital that we take note and address the issues that may arise outside this place in regards to any legislation introduced by us. Imagine the danger we could be unwillingly putting vulnerable people in if we do not pass the 14-day authorisation limit. A person under such an authorisation could be left for months and denied their freedom with no one having carried out a full assessment, perhaps because it is in the best interests of the person that has assessed them or not assessed them—a care home manager or an independent hospital director. Whatever it is, we have a duty of care over those deprived of their liberty under the measures. The Bill falls short of ensuring that we properly protect and safeguard them.

We have debated authorisation renewals. This measure falls into a similar category in that we should provide adequate checks to ensure that people are not needlessly deprived of their liberty for any unnecessary time. I am not convinced we are there yet. Within those 14 days there is an expectation that an adequate, comprehensive assessment will be carried out to determine whether the cared-for person meets the authorisation conditions. If it is more than 14 days, who is going to tell us when it will happen?

[Steve McCabe]

I do not know whether I am being a bit paranoid about this, but is there a danger that this could become the easy get-out clause? It will be a bit complicated to get all the parties together and carry out a proper assessment, but it will not be as difficult to get someone to say, “Ah—there’s an emergency.” That way, they have dealt with the paperwork in one fell swoop and they have the person where they want them. If there are no safeguards, it will become the clause that will bypass the rest of the legislation, because this is where people will go when they do not want to put in the work or they feel too hard pressed to do it.

[Alex Cunningham]

I share my hon. Friend’s paranoia. I do not understand why we would put any barriers at all in the way of people’s having a proper assessment within a reasonable time. Detaining someone for 14 days is effectively locking them up for 14 days. It means depriving them of their liberty and there may be no real necessity. An assessment, as quickly as possible, is essential.

Of course, if we allow those authorisations to go on for longer than 14 days or any other reasonable timeframe, we are putting people at risk of abuse, as the Law Society has said. I say to the Minister that we must put vulnerable people first. We must always put the individual first. We must have the safeguards in place, because to do anything else is to risk their liberty, and that is a risk I am not prepared to take. I hope she accepts the amendment.

[Caroline Dinenage]

Clause 2 allows caregivers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition. The clause enables a care home to place restrictions on the person for their own protection ahead of an authorisation being approved. That interim legal cover will be decision-specific and it will be targeted to life-sustaining treatment and care or to a vital act. Once those acts are completed, the conditions no longer apply and legal cover for depriving someone of their liberty ends.

In that way, the clause replicates clause 4B of the Mental Health Act 2005, already in DoLS. The emergency authorisation system applies in exactly the same way when a court application being made relates to a deprivation of liberty. There is no evidence at this time that it would lead to any lengthy deprivation of liberty, and the provision of the Bill builds on an existing and well-understood provision. The previous system also included an urgent authorisation. That has gone because it was used too often and its time limit was ineffectual.

Under the Bill, the legal cover is provided simply for as long as the life-sustaining care is needed and no longer. It is therefore a limited power and a better safeguard. An emergency is defined as a situation where there is an urgent need to act and it is not “reasonably practicable” to make an application under the liberty protection safeguards to the Court of Protection or under part 2 of the Mental Health Act. It was carefully considered by the Law Commission, which looked at the inclusion of a time limit and decided against it. We agree with its conclusion that a time limit could encourage care providers to aim for the time allowed rather than to adhere to best practice for that case and that person, which is certainly what we have seen in some urgent cases.

Given the seriousness of depriving someone of their liberty, it should be limited to the shortest possible timescale and should reflect the huge range of causes that it can be required to cover. The amendment would create a blunt, one-size-fits-all approach, rather than allowing us to reflect the different approaches called for.

[Steve McCabe]

The Minister cites the Law Commission, but is it not the case that the Law Society recommended this very type of safeguard?

[Caroline Dinenage]

I do not know about the Law Society. The Law Commission was tasked with reviewing the measure—it took three years to do so. The commission took evidence from across the sector and we have used its recommendations as the basis for this provision.

[Barbara Keeley]

It is interesting that the Minister is being so selective about which of the Law Commission’s recommendations she is accepting. I challenged her earlier about a recommendation that she had accepted at the time it was made and which has not been taken further in the Bill. This is a five-clause Bill, which Opposition Members have had to battle our way through. It is not the fifteen-clause draft Bill that the Law Commission brought forward, which had been consulted on. It is rather rich of the Minister at this point, when it suits her, to be quoting the Law Commission’s recommendations and adopting them when she has not accepted them on many other occasions, including the one on which I moved an amendment this morning.

[Caroline Dinenage]

The reason for that is quite simple. The Law Commission’s draft Bill had a whole lot more scope and took into it things that we have not been able to look at as part of this particular revision of DoLS, on which we want to focus. We are painfully aware of the fact that 125,000 people are still in a backlog, waiting for DoLS. They do not have the protections that they need; the families do not have the reassurance; and the people caring for them do not have the protection of the law. That is why, necessarily, this had to be a very narrow Bill. Where possible, though, we have taken the words of the Law Commission to its very heart.

[Barbara Keeley]

I am astonished that the Minister thought it was okay not very long ago this morning to not accept a Law Commission recommendation and then, in her very next speech, put forward such a recommendation as the main reason for turning down an amendment. There is an astonishing lack of logic.

Opposition Members believe that it cannot be right that emergency authorisations have no time limit. There is a concern that it could become easy to drop into using the provision given that there is no time limit on it. We can see how, given how systems are designed, people can get into going to the easiest place. If it is the easiest place to deprive someone of their liberty, that situation can become dangerous.

By failing to include a time limit, the Bill fails to incentivise local authorities and the courts to hear emergency authorisation cases promptly. There is no time pressure on them—they can take as long as they like. Applications can already take too long to process and, without a hard end date, they could drag on for weeks or months. The emergency authorisations contain far fewer safeguards than full authorisations, and as such Opposition Members believe that they should be used only sparingly and for brief periods.

Question put, That the amendment be made.

Division 22

Ayes: 8

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Labour: 8

Noes: 9

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Conservative: 9

[Barbara Keeley]

I beg to move amendment 17, in clause 2, page 3, line 4, at end insert—

“(10) Where this section is relied on to deprive a cared-for person of his liberty, the person relying on this section must—

(a) inform the cared-for person and any person with an interest in the cared-for person’s welfare of that fact;

(b) keep a written record of the reasons for relying on this section;

(c) supply a copy of the written record of reasons to the cared-for person and any person with an interest in the cared-for person’s welfare within 24 hours of the deprivation of liberty commencing; and

(d) if any of the following apply, make an application to the Court of Protection immediately—

(i) the cared-for person objects to being deprived of his liberty;

(ii) a person with an interest in the welfare of the cared-for person objects to the cared-for person being deprived of his liberty; or

(iii) the donee of a lasting power of attorney or a court-appointed deputy objects to the cared-for person being deprived of his liberty.”

This amendment will ensure that information is shared with the cared-for person and any person of interest in the cared for person’s welfare and sets out when an application to the Court of Protection must be made immediately.

Amendment 17 builds on the comments I made in relation to amendment 16. Throughout the two amendments, our concern has been that people subject to emergency authorisations do not currently have the same protections as others who are detained under the liberty protection safeguards. We recognise that there might be a need in certain rare cases to circumvent full assessment for a short period, but it is not acceptable that the Bill provides almost no surety against the system being misused, as we discussed in the debate on amendment 16. That amendment dealt with the length of time for which an emergency authorisation could be in force. Amendment 17, on the other hand, deals with the rights of a person who is subject to an emergency authorisation. Our aim is to ensure that a person’s rights to information and appeal are not watered down because they are subject to an emergency authorisation.

11:14

Before I discuss the amendment in detail, I want to give hon. Members an example of why the process for urgent authorisations needs reform. The Minister and other Members will have heard the case of Oliver McGowan, which I have raised before in Committee. Oliver was autistic, had a mild learning disability and had full life expectancy. Indeed, he was fit, active and training to be an Paralympian athlete. He was admitted to A&E for absence-type seizures. He was not psychotic or mentally ill. Despite this and despite his parents raising their concerns, he was given a type of anti-psychotic medication to which he had previously had adverse reactions. He suffered a serious adverse reaction to the anti-psychotic medication which eventually killed him.

It is deeply concerning that Oliver’s parents had to cope not only with this tragic and seemingly avoidable death, but with the fact that the processes surrounding his death were so faulty. I know that the Minister is concerned about this case, but it is worth looking at what happened. Despite all the difficulties surrounding consent to the use of medication in Oliver’s case, the urgent authorisation form was completed on 26 October, a full five days after he was first admitted to Southmead Hospital. Despite being named on the DoLS form, Oliver’s mother Paula was not consulted in the DoLS process, and she tells me that later processes for investigating Oliver’s early death raised concerns about the lack of a best interest decision meeting.

In earlier discussions, the Minister seemed to rely on a best interest assessment process and believed that professionals would always take best interest into account. In this case, there was a dispute about Oliver’s treatment. A best interest decision meeting did not take place and Paula says that his parents were not listened to. Shamingly, the DoLS application was made the day after the fatal anti-psychotic medication was administered to Oliver. This means that the medication was administered at a time when he may have been deprived of his liberty without due process. The processes that should have been followed—assessing his best interests, consulting with his family—were not followed. Indeed, Paula McGowan only discovered that a DoLS application had been made for Oliver when the coroner raised it in a review a year after he died.

Our amendment seeks four specific safeguards that should be put in place where an emergency authorisation is granted. First, the cared-for person and anyone with an interest in their welfare should be informed of what is happening. This seems obvious, but there is nothing in the Bill to ensure that that will happen. It will be entirely possible for a person to be deprived of their liberty under an emergency authorisation, and for them or people interested in their welfare not to be told that this is the case. That is exactly what happened in the case of Oliver McGowan. In high pressure environments, such things may be forgotten, but we should not allow this to happen. An active duty in the Bill to provide this information means it cannot be something that falls by the wayside.

The second duty is that a written record be kept of the reasons for relying on an emergency authorisation. This will be important if a decision is challenged in the courts, because it provides a safeguard for the cared-for person and practitioners. When a case is appealed to the Court of Protection, as will happen from time to time, there needs to be a record of why certain decisions were made. If there is not, the court will inevitably have to embark on a lengthy process, relying on fallible recall to determine what the intentions were at the time. This would put practitioners at risk of their intentions being misinterpreted.

Producing such a written record should also clarify in the mind of a practitioner whether they are doing the right thing. There is a common saying that if you cannot explain something, you do not really understand it. By requiring practitioners to explain in writing why they have made certain decisions, we can make sure that they understand why they are making them.

The third requirement goes back to the right of the cared-for person and those close to them to know what is happening, and why certain decisions have been made. If they do not have this information, they have no access to their rights. We have settled for 24 hours as the period to provide such information so that it is done as quickly as possible. It is an urgent situation when there is an urgent authorisation. If this had been done in Oliver McGowan’s case, it might have allowed his parents to object to his deprivation of liberty and stop the administration of the anti-psychotic medication that killed him.

The fourth requirement relates to applications to the Court of Protection. I have already spoken about the importance of not expecting the cared-for person and their family to make an application to court unaided. That is particularly important in cases where an emergency authorisation is relied upon. The timescales on which arrangements are put in place are far shorter, so the window for applying to a court before arrangements are carried out is so slim as to hardly exist.

Under extreme pressure, when the cared-for person is undergoing life-sustaining treatment, I do not feel it is reasonable to expect them or their family to make an application to the courts. That would be a stressful situation, and court applications are confusing and time consuming at the best of times. That is why we want the duty to make a referral to court to be placed on the body carrying out the arrangements. That is likely to be a hospital and, as such, it will have far greater capacity to make such an application.

The proposal would also make it clear that there is a right to apply to the Court of Protection where an emergency authorisation has been granted. That is something that must be included in the Bill. Otherwise, the legal process for applying to the Court of Protection will be further prolonged. It may not be clear to a cared-for person or those close to them that such a right exists. If that is the case, they are unlikely to realise that there is a point in objecting, let along in engaging such a right.

We have pinned the criteria in the amendment on objection. If someone objects to a standard application for a liberty protection safeguard within certain limits, they will be referred to an approved mental capacity professional, but there is no provision for AMCPs to work on emergency authorisations. Indeed, it might not suit their skillset to do so. We have used the same criteria to determine whether the court should be engaged.

The amendment simply seeks to ensure that emergency authorisations do not create a second-class deprivation of liberty. The fact that it is an emergency should not mean that we disregard the rights of the cared-for person, as has happened in the past with fatal consequences for that young man, Oliver McGowan. I am sure that the Minister would agree that that is the case. As such, I hope she will accept our amendment.

[Caroline Dinenage]

The ability to deprive someone of their liberty for a short period of time prior to an authorisation being in place or in an emergency is an important part of this model, as we have discussed. That can be done only to provide the person with life-sustaining treatment or to prevent a serious deterioration in their condition.

I spoke on amendment 16 about how this provision is limited to emergency and life-sustaining treatment or a vital act, and to the time limit that is legally enforced. We agree that the provision of information to the cared-for person and those who care for them is extremely important to help them understand the process and exercise their rights. I have committed in respect of other clauses to look again at information and how quickly and early it is disseminated and distributed. I agree in principle with the information part of the amendment.

My only reservation is that, given the nature of the situation, medical professionals have to work urgently in a short period of time, so the amendment might not be practical in practice. However, I agree 100% with the hon. Member for Worsley and Eccles South that information needs to be given out and that people need to understand what is happening to them and their loved ones, so I will commit to look again at this matter.

We agree, and I confirm that, when people are deprived of their liberty, records will need to be kept and those will need to be available after the event. We will outline the details in the statutory code of practice, including how that information should be shared with others.

The amendment outlines circumstances when objections to deprivation of liberty for the provision of life-saving or sustaining treatment should be referred immediately to the Court of Protection. Under the Bill, all people in those cases will have the ability to challenge emergency authorisations in the Court of Protection via section 16 of the Mental Capacity Act, and it is unnecessary for that to be made explicit again in the Bill. The applications will also operate alongside a full authorisation made under new schedule AA1 where appropriate and, of course, there will be full recourse to the court to challenge those authorisations too. For that reason, the Government cannot support the amendment.

[Barbara Keeley]

I am disappointed that the Minister will not accept the amendment because I have given her a very powerful example of why she should. I had not understood, until I engaged with Paula McGowan recently, how defective the processes were. I know that the Minister has been engaged in that case, so I ask her to think about how it adds to the burden of grief and bereavement for the parents that the processes that should have protected a young person such as Oliver were not engaged properly.

The point about information is important; the McGowans were not informed of their rights or listened to. There was no best interest meeting for Oliver. Had that happened, his parents could have pointed out the danger of the anti-psychotic medication. The Minister has just said that medical and care professionals are busy. That is the problem, is it not? That is how these cases happen—in the busyness of urgent care. The warnings about the medication were just ignored. That is why we very much need information to be given.

11:25

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.

Mental Capacity (Amendment) Bill [ Lords ] (Sixth sitting)

Tuesday 22nd January 2019 Public Bill Committees

The Committee consisted of the following Members:

Chairs: † Mark Pritchard, Ian Austin

† Afolami, Bim (Hitchin and Harpenden) (Con)

† Chalk, Alex (Cheltenham) (Con)

† Cunningham, Alex (Stockton North) (Lab)

† Debbonaire, Thangam (Bristol West) (Lab)

† Dhesi, Mr Tanmanjeet Singh (Slough) (Lab)

† Dinenage, Caroline (Minister for Care)

† Keeley, Barbara (Worsley and Eccles South) (Lab)

† McCabe, Steve (Birmingham, Selly Oak) (Lab)

† Moore, Damien (Southport) (Con)

† Morris, James (Halesowen and Rowley Regis) (Con)

† Morton, Wendy (Aldridge-Brownhills) (Con)

† Norris, Alex (Nottingham North) (Lab/Co-op)

† O'Brien, Neil (Harborough) (Con)

† Sherriff, Paula (Dewsbury) (Lab)

Syms, Sir Robert (Poole) (Con)

† Whately, Helen (Faversham and Mid Kent) (Con)

Williams, Dr Paul (Stockton South) (Lab)

Adam Mellows-Facer, Committee Clerk

† attended the Committee

Public Bill Committee

Tuesday 22 January 2019

(Afternoon)

[Mark Pritchard in the Chair]

Mental Capacity (Amendment) Bill [Lords]

Clause 2

Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act

Amendment proposed (this day): 17, in clause 2,  page 3, line 4, at end insert—

“(10) Where this section is relied on to deprive a cared-for person of his liberty, the person relying on this section must—

(a) inform the cared-for person and any person with an interest in the cared-for person’s welfare of that fact;

(b) keep a written record of the reasons for relying on this section;

(c) supply a copy of the written record of reasons to the cared-for person and any person with an interest in the cared-for person’s welfare within 24 hours of the deprivation of liberty commencing; and

(d) if any of the following apply, make an application to the Court of Protection immediately—

(i) the cared-for person objects to being deprived of his liberty;

(ii) a person with an interest in the welfare of the cared-for person objects to the cared-for person being deprived of his liberty; or

(iii) the donee of a lasting power of attorney or a court-appointed deputy objects to the cared-for person being deprived of his liberty.”—(Barbara Keeley.)

14:00

Question again proposed, That the amendment be made.

[The Chair]

Good afternoon, everybody. I call the shadow Minister to resume her speech.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

As I said, emergency authorisations do not come with the same protections that are built into standard authorisations. Those safeguards include advocacy, independent reviews and independent assessments.

This amendment is designed to add some safeguards to the emergency authorisation process. They would kick in after the authorisation has been granted, and outline how and when it should be escalated. In particular, it would make it absolutely clear when an application to the court should be made.

Given that there is no provision for advocacy under emergency authorisations, this responsibility is falling on whoever makes emergency authorisations. The provisions mean that we are not reliant on family members, who may be under enormous stress, to make the referral. That said, we will be pushing this amendment to a Division.

Question put, That the amendment be made.

Division 23

Ayes: 7

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Labour: 7

Noes: 8

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Conservative: 8

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

[The Minister for Care (Caroline Dinenage)]

It is a pleasure to serve under your chairmanship once again, Mr Pritchard. Clause 2 relates to the authorisation of steps necessary for life-sustaining treatment or vital acts. This clause is incredibly important. It allows care givers, in limited situations, to deprive someone of their liberty for a short period of time prior to an authorisation being made or in an emergency. This can be done only to provide a person with life-sustaining treatment or to prevent serious deterioration in their condition.

The clause replaces the urgent authorisations that exist under the current deprivation of liberty safeguards system. Urgent authorisations last for up to 14 days in a situation where the need to deprive someone of liberty is urgent. However, providers are left without legal cover when the authorisation runs out and, due to the backlog, the council has not completed the necessary assessments.

We of course want to ensure that there is adequate oversight and that the measure will not be misused to push through unjust deprivations of liberty. Records will need to be kept and provided after the event. The regulators—which, in England, we expect to be the Care Quality Commission and, in Wales, to be Healthcare Inspectorate Wales and Care Inspectorate Wales—can use this to monitor whether adequate care is being given. With that in mind, I recommend that clause 2 stand part of the Bill.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Powers of the court to determine questions

[Barbara Keeley]

I beg to move amendment 18, in clause 3, page 3, line 14, leave out

“whether Schedule AA1 applies to the arrangements”

and insert

“any issue in relation to the application of Schedule AA1”.

This amendment seeks to clarify that all relevant issues pertaining to Schedule AA1 can be addressed by the Court of Protection, for example whether an IMCA should be appointed or an AMCP involved.

It is a pleasure to serve under your chairmanship in this part of the Committee, Mr Pritchard. Amendment 18 may appear to be minor, but it could have significant consequences for the proposed system of liberty protection safeguards. The Bill removes the section of the Mental Capacity Act 2005 that deals with court appeals for deprivation of liberty, and clause 3 proposes a new section in its place.

The Government have made few substantive changes to the power of the Court of Protection. We believe that this is a missed opportunity. The Law Commission said in its report:

“significant reforms should be made to the Court of Protection to ensure that it works for the people who apply to it.”

The fact that the Government have refused to consider this as part of the Bill is another sign, I am sorry to say, that this Bill is being rushed through. Rather than considering this issue in the round, they are simply seeking to reproduce the current deficient system. The people who are subject to the Mental Capacity Act deserve better, so when the Minister replies, can she reassure us that the Law Commission’s comments are being taken on board and that a full review of the Court of Protection will be forthcoming?

At the moment, the Bill gives the Court of Protection a limited set of powers. It can determine whether the liberty protection safeguards apply to the case; it can determine the length of authorisation; it can rule on the arrangements the authorisation relates to; and it can determine whether the authorisation conditions are met. So that hon. Members are clear on that final point, let me remind them what the authorisation conditions are. Paragraph 12 of schedule 1 reads:

“The authorisation conditions are that—

(a) the cared-for person lacks the capacity to consent to the arrangements,

(b) the cared-for person has a mental disorder, and

(c) the arrangements are necessary to prevent harm to the cared-for person and proportionate in relation to the likelihood and seriousness”

of that harm. When the court is asked to rule on whether a liberty protection safeguard should have been granted, those are the only things that it can determine.

The court cannot determine whether a cared-for person should have been given access to an independent mental capacity advocate—we had a very full debate this morning about the role of advocates. It cannot determine whether the case should have been reviewed by an approved mental capacity professional. It cannot determine whether any of the assessors had a conflict of interest that should have precluded them from carrying out an assessment. It cannot determine whether the consultation has been properly carried out. It cannot determine whether the person was given the information that they should have been given. In short, it cannot determine whether any of the safeguards that we have discussed in this Committee were properly applied.

In some cases, the process will be every bit as important as the outcome, and I remind hon. Members of a case I mentioned previously. Ethel, an 85-year-old woman living in a care home, wanted to leave the care home and return to her own home. She was subject to a deprivation of liberty safeguard. With the help of an advocate, she appealed her case to the Court of Protection. Although the court ultimately ruled that Ethel should remain in the care home, the advocate found during the appeal process that the conditions placed on her authorisation had not been read and were not being applied until the Court of Protection made sure those conditions were attached to the authorisation. If the process is carried out improperly, it may be that less restrictive options for the person’s care are not considered. It may be that a strong objection from a close family member, which could have altered the decisions made, is not expressed.

These concerns are widely shared. The Law Society has supported this amendment, as has a wide range of stakeholders, including Mind and Learning Disability England. It is my hope that the Government did not intend to exclude all the vital areas that I have just discussed, but I simply cannot understand why we would not want to give the Court of Protection the widest possible remit in this case. The court is intended to be the final safeguard against deprivation of liberty being used incorrectly or inappropriately, and if we restrict the issues that it can rule on, we blunt its effectiveness. The Opposition do not want to hear, a year or two down the line, of cases in which the responsible body has clearly not followed the correct process but the courts find themselves unable to do anything about it. Our amendment is designed to avoid such a situation ever arising, and I hope the Government will accept it.

[Caroline Dinenage]

I understand that hon. Members want the Court of Protection to consider matters such as whether an IMCA is appointed or an AMCP is involved. That would mean that the court was considering procedural matters regarding the liberty protection safeguards process. The hon. Member for Worsley and Eccles South has asked me about the review of the role of the Court of Protection; she will be aware that the Ministry of Justice is currently reviewing courts in the round, and that review will of course include the regionalisation of the Court of Protection. However, the Bill is clear that the pre-authorisation review must be completed by an approved mental capacity professional in cases in which an objection has been raised. That provides a clear route for arrangements to be considered if that is something the person wishes to happen.

Government amendment 9 is clear that, in independent hospital cases, an approved mental capacity professional must complete that review—that is a duty—and if an independent hospital as a responsible body fails to do that, it would be in clear breach of its responsibilities and could be subject to legal challenge.

With regard to IMCA appointments, the Bill introduces an effective presumption that an IMCA will be appointed by the responsible body if there is not an appropriate person in place, which ensures access to representation. With that in mind, I hope that I have provided reassurances that the system will be robust regarding IMCA appointments and access to AMCPs. I therefore hope that hon. Members are willing to withdraw the amendment.

[Barbara Keeley]

As I said, the amendment seeks to clarify the role of the Court of Protection. It broadens the narrow set of responsibilities in the Bill, giving the court the explicit right to rule on any matter relating to the new liberty protection safeguards. It ensures that the process, as well as the outcome, of authorisations is covered by the court.

Question put, That the amendment be made.

Division 24

Ayes: 7

---

Labour: 7

Noes: 8

---

Conservative: 8

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

[Caroline Dinenage]

Clause 3 sets out that the Court of Protection can hear challenges in relation to liberty protection safeguard authorisations. The court already considers challenges under the current system, and the Law Commission recommended that it continue to do so under liberty protection safeguards, pending the outcome of a Government review.

In designing the new system, we put safeguards in place to ensure that arrangements would be considered fairly and independently. We know that most people want to avoid courts and tribunals if possible, so it is important that they can access protections without needing to go to the Court of Protection. However, it is also important to us that people who want to challenge their authorisations in court are able to do so, which is why the right to non-means-tested legal aid will be maintained under the liberty protection safeguards system. Cost will not be a barrier to a person’s ability to access the court.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Clause 4

Consequential provision etc

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

[The Chair]

With this it will be convenient to discuss the following:

Government amendments 14 and 15.

That Schedule 2 be the Second schedule to the Bill.

[Caroline Dinenage]

With your leave, Mr Pritchard, I will speak about amendments 14 and 15 before moving on to the clause stand part debate.

The amendments amend section 36 of the Mental Capacity Act 2005 to ensure that regulations about the functions of independent mental capacity advocates can make provision for advocates appointed under the LPS to support the new role of appropriate person. Amendment 14 also amends sections 38 and 39 of the 2005 Act.

Broadly, the provisions require an IMCA to be appointed when an NHS body or local authority proposes to accommodate a person in a hospital, care home or long-stay residential accommodation and there is no one else to consult about what would be in that person’s best interest. The amendments continue the position under DoLS, so that the duties to appoint an IMCA in sections 38 and 39 will not apply if one has already been appointed under the LPS in relation to the same accommodation. That is to avoid a person having two IMCAs carrying out similar roles. Amendments 14 and 15 also make consequential amendments that reflect the change from the deprivation of liberty safeguards to the liberty protection safeguards.

Clause 4 gives the Secretary of State and Welsh Ministers a regulation-making power to make provision that is consequential to the Bill, including changes to existing legislation. The power will be used to make any necessary consequential changes as a result of the LPS coming into force—for example, to update references to schedule A1, which contains the existing deprivation of liberty safeguards, to references to schedule AA1, where the liberty protection safeguards will be set out.

Finally, clause 4 will introduce schedule 2, which will make minor and consequential amendments that update other legislation to reflect the change from deprivation of liberty safeguards to liberty protection safeguards. I commend the clause and the schedule to the Committee.

14:15

[Barbara Keeley]

Government amendments 14 and 15 will alter the power to make regulations under the Mental Capacity Act 2005. It is fair to call them drafting amendments to fill an obvious gap in the Bill that would have left the Government with no way to instruct an independent mental capacity advocate in how to represent an appropriate person. It is a sufficiently large omission for me to wonder how the Government failed to notice it earlier, but I understand that things are missed when a job is being rushed, as the Bill certainly is. However, I am glad to see that the Government are remedying the situation. We support the amendments.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Schedule 2

Minor and consequential amendments

Amendments made: 14, in schedule 2, page 28, line 22, at end insert—

“3A (1) Section 36 (functions of independent mental capacity advocates) is amended as follows.

(2) In subsection (2)(a) leave out “(“P”) so that P” and insert “or support so that that person”.

(3) In subsection (2)(c) leave out “P’s wishes and feelings” and insert “the wishes and

feelings of the person the advocate has been instructed to represent (“P”)”.

(4) After subsection (2)(d) insert—

“(da) in the case of an advocate instructed to support an appropriate person where paragraph 40 of Schedule AA1 applies, supporting that person to ascertain—

(i) what the wishes and feelings of the cared-for person who that appropriate person represents and supports would be likely to be and the beliefs and values that would be likely to influence the cared-for person;

(ii) what alternative courses of action are available in relation to the cared-for person who that appropriate person represents and supports;”.

3B (1) Section 38 (provision of accommodation by NHS body) is amended as follows.

(2) For subsection (2A) substitute—

“(2A) And this section does not apply if—

(a) an independent mental capacity advocate is appointed under paragraph 39 of Schedule AA1 to represent and support P, and

(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the hospital or care home referred to in this section.”

(3) In subsection (3), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.

(4) Omit subsection (10).

3C (1) Section 39 (provision of accommodation by local authority) is amended as follows.

(2) For subsection (3A) substitute—

“(3A) And this section does not apply if—

(a) an independent mental capacity advocate is appointed under paragraph 39 of Schedule AA1 to represent and support P, and

(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the residential accommodation referred to in this section.”

(3) In subsection (4), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.

(4) Omit subsection (7).”

This amends the regulation making power in section 36 of the Mental Capacity Act 2005 to ensure that equivalent provision can be made for advocates who support a cared-for person’s “appropriate person” as for other advocates. It also makes other changes to that Act consequential on amendments made by Schedules 1 and 2 to the Bill.

Amendment 15, in schedule 2, page 28, line 23, at end insert—

“4A In section 40 (exceptions)—

(a) in subsection (1), for “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)” substitute “or 39(4) or (5)”;

(b) omit subsection (2).”—(Caroline Dinenage.)

This amendment is consequential on the amendments made to the Mental Capacity Act 2005 by Schedules 1 and 2 to the Bill

Schedule 2, as amended, agreed to.

Clause 5

Extent, commencement and short title

[Barbara Keeley]

I beg to move amendment 52, in clause 5, page 4, line 16, at end insert—

“(3A) Before the Secretary of State makes any regulations under subsection (3)(b) above, the Secretary of State must publish his or her consideration of the conclusions of the Independent Review of the Mental Health Act relevant to the deprivation of liberty in accordance with the provisions of the Mental Capacity Act 2005, and in particular Schedule AA1 of that Act.”

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has responded to the findings of the Independent Review of the Mental Health Act, specifically the interface between the Mental Health Act and the Mental Capacity Act.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 53, in clause 5, page 4, line 16, at end insert—

“(3A) Before the Secretary of State makes any regulations under subsection (3)(b) above, the Secretary of State must—

(a) publish a full implementation strategy, outlining how local authorities and other responsible bodies will be resourced to process applications under this Act; and

(b) publish an updated Impact Assessment on the impact of the provisions of this Act.”

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published an updated impact assessment, and set out an implementation strategy for the new system.

Amendment 54, in clause 5, page 4, line 16, at end insert—

“(3A) The Secretary of State may not make any regulations under subsection (3)(b) above, unless—

(a) the Secretary of State has—

(i) consulted on the Code of Practice,

(ii) published a Code of Practice,

(iii) laid that Code of Practice before Parliament, and

(b) that Code of Practice has been approved by a resolution of each House of Parliament.”

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published a new Code of Practice, which has been approved in a vote in each House of Parliament.

[Barbara Keeley]

The amendments would impose a condition that the Bill should not be implemented until the Government have responded to the findings of the independent review of the Mental Health Act 1983 and dealt specifically with the interface between that Act and the Mental Capacity Act; published an updated impact assessment; and published a new code of practice approved by a vote in each House of Parliament.

I said on Second Reading that

“reform of the Mental Capacity Act 2005 requires methodical planning”.—[Official Report, 18 December 2018; Vol. 651, c. 732.]

The issues that the Committee has discussed over the past two weeks have far-reaching implications for as many as 2 million people who may lack capacity. I am pleased that the tone of our debate has risen to the magnitude of the issue, but I feel that the difference in the depth of contribution, depending on which side of the debate we are on, has been marked. That is important because the debate has been a discussion of the fundamental rights of some of the most vulnerable people in our society. I thank hon. Friends who have given proper scrutiny to the Bill and its impact on the liberty of very vulnerable people. Cared-for people deserve no less.

The Bill remains deeply flawed in a host of areas. It is very disappointing that the Minister has been so stubborn in rejecting all our amendments out of hand. We entered Committee in a spirit of co-operation, but I feel that that has not been matched by the Government. Our amendments were not a Christmas list of things that would be nice to have; they were the minimum reforms needed to make the Bill fit for purpose. The fact that so many remedial amendments were needed shows that the Bill has been put together in anything but a methodical way. The reality is that the Government are pushing ahead at breakneck speed, contrary to all the warnings from a wide group of concerned stakeholders. That is not a proper way to treat an issue of such importance.

A key concern raised by stakeholders relates to the interface between the Mental Health Act and the Mental Capacity Act. The two are deeply intertwined; indeed, the existing interface is so complex that a senior judge has noted:

“When you write a judgment on them, you feel as if you have been in a washing machine and spin dryer”.

The Acts provide different legal frameworks for treating someone without consent and depriving them of their liberty by detaining or confining them in a hospital or care home. The Mental Capacity Act can be used only when a person lacks capacity to consent to their confinement; where it is used, professionals must use deprivation of liberty safeguards to authorise detention and protect a patient’s rights. At the moment, if someone has capacity and objects to their admission or treatment for a mental disorder, the Mental Health Act must be used because they are being compulsorily detained against their will.

Professor Sir Simon Wessely wrote in his final report that the review’s intention was to take the use of the Mental Health Act

“back to the position that it can only be used for people who are obviously objecting to treatment.”

That is key. The Mental Health Act should not be used simply because someone lacks the capacity to consent to their admission. Troublingly, the review found that the Mental Health Act had been used, at least in some cases, because it is easier to use than DoLS. Furthermore, it found a significant number of cases where the Mental Health Act had been used for patients with dementia because of doubts or disputes as to whether the person was objecting to their admission.

While that cannot be confirmed with the data available, the Care Quality Commission observed an increase in the numbers of people over 65 detained under the Mental Health Act. In one older-adult ward that the CQC visited, the increase was from 15% to 85% of residents between 2013-14 and 2016-17.

The confusion as to which statute to use arises from the issue of whether someone without capacity is objecting to their treatment. It means that either the Mental Health Act or the DoLS can be used, depending on where the decision is being taken, and on the cared-for person. Professor Sir Simon noted that it is unhelpful to have two different options for the patient who cannot consent but who is also not objecting. His review argued:

“The patient is facing a lottery between two different legal positions. Whilst at first it may be attractive to use the MHA because, generally, it is considered to have greater safeguards than the MCA, it is also extending the reach of compulsory powers.”

The review recommended that

“the law should be amended so that only the MCA framework”—

specifically the liberty protection safeguards—

“can be used where a person lacks capacity to consent to their admission or treatment for mental disorder and it is clear that they are not objecting.”

We are aware that objection is not always easy to identify—we have had some excellent case study material today around the issue of whether a patient is objecting. An objection can be very difficult to identify, especially in people with cognitive impairments. The Mental Health Act review noted that

“whilst it may be relatively easy to determine whether or not someone is objecting to treatment in a psychiatric hospital, it will not be so easy when the patient is in a general hospital but treatment for a mental disorder is being considered. However... objection is the term that is currently used in both the MHA and MCA, and is a familiar enough concept not just for professionals, but for anyone.”

The review said that that was “the right dividing line” between the Mental Health Act and the Mental Capacity Act. However, it recommended that

“clear guidance will be required as to what objection looks like in practice in both the MHA and MCA...and what practitioners should do where a person who was previously objecting is no longer doing so (and the other way around).”

The Law Society has reinforced that recommendation, pointing out that it is not feasible to expect care home managers to navigate the complex interface between the two pieces of mental health legislation. It is concerned that it would be difficult to reach a conclusion on whether a liberty protection safeguard would be excluded, due to the operation of part 7 of the Bill, for many capable people. We have yet to see any guidance or a full code of practice, which is why we are seeking assurances through this amendment.

More broadly, there seems to be little evidence of any consideration of that interface. That is because the Bill was introduced before the final recommendations of the independent review of the Mental Health Act were published, which happened in December. That is problematic because the Bill replicates the complex interface, which will persist until the Mental Health Act is amended. I am afraid that, given the complex relationship between the two Acts, this is another example of the Government’s careless approach to reform of the legislation.

A whole host of stakeholder organisations—including, most prominently, Liberty—has called for a pause in the Bill process, in order to consider the implications of the Mental Health Act review. The amendment reflects the depth of stakeholder concern and requests that the Bill does not take effect until a response has been given to the Mental Health Act review. The purpose of some form of pause before enactment would be in part to allow time to develop a clear and workable interaction in the Bill, which would need to be understood by those subject to liberty protection safeguards and their families, as well as those who are operating them.

Turning to amendment 53, one concern that stakeholders have raised repeatedly since the Bill completed its passage through the House of Lords is the issue of the Government’s impact assessment. The Government published an impact assessment on the Bill on 29 June 2018, although an equality impact assessment was published only one day before Second Reading in the House of Commons on 18 December.

There are several problems in the overall impact assessment, which sets out a number of cost assumptions for the review of the liberty protection safeguards system. First, many of the calculations appear to be based on those drawn up by the Law Commission and included in its own impact assessment, which accompanied its draft Bill. Of course, the measure we are debating is not that draft Bill. As we have said many times, this is a cut-down version of an earlier Bill.

I will take as one example the total cost of advocacy—a key aspect of the Bill on which we had a good debate this morning. The Government’s impact assessment says advocacy will cost a total of £23.08 million. This appears to be calculated by multiplying the average cost of advocacy per authorisation, £76, by the number of applications in the new system, 304,132. Why has the Government’s impact assessment calculated the average cost of advocacy per authorisation? Under the proposed liberty protection safeguards, many cared-for people will not receive a paid advocate—something on which we urged the Minister to take action this morning.

Would it not be better to calculate the figures according to the actual cost of providing advocacy, based on the total number of advocates that are expected to be used in these cases? Will the Minister say how much that would be? It would surely be a more logical way of calculating this figure and its impact.

Further costs need clarification, including those that depart from the Law Commission’s assertion, such as the cost of administration in the form of desktop reviews. That will cost a total of £47 million and will be borne by local authorities. It is calculated as the number of applications per year under the preferred model—the figure I gave earlier of 304,132 multiplied by the cost of administration of £155.

In calculating that, the Government’s impact assessment took the cost of administration of the current DoLS system from the Law Commission’s impact assessment, but then inexplicably halved the cost to £155 to account for the fact that it would be less intensive than under DoLS at present. Will the Minister explain how the calculation in the impact assessment was arrived at? How have we quantified how much less intensive the system will be? What is the methodology behind that?

Secondly, a number of assertions in the impact assessment are woefully out of date, given the changes made to the Bill in the House of Lords that have made several key cost estimates entirely redundant. For example, the impact assessment assumes no net change in cost to providers of authorisations and administrations. It was assumed that providers would no longer need to complete an existing form of comparable length and complexity to request an assessment or deal with uncertainty and delay as a result of the assessment being provided by an under-resourced system.

The Minister has assured us that in many cases local authorities will carry out authorisations. Why does this not affect the cost of authorisations in the impact assessment? The issue of the resourcing of local authorities has been raised by Labour Members a number of times and is absolutely key.

I could point out further examples of inconsistencies. The cost of approvals by approved mental capacity professionals is assumed to be £10.5 million a year. However, that figure does not take into account the cost of AMCP approvals for cases in independent hospitals in the light of amendments to the Bill made by the Committee. The Government tabled amendments in relation to AMCPs and independent hospitals. Were cost estimates made of this change, and what is the additional cost?

There have been a number of expressions of concern about training. The total cost of doctor and social worker training in the new system is apparently £780,000 or £23 per doctor or social worker. That seems a rather miserly amount. What will the training constitute and how long will it last? The impact assessment calculates the number of doctors and social workers needing training as 10% of the total number of doctors and social workers. How have the Government arrived at that figure?

A key figure is the cost of familiarisation, which is put at £1 million. That is based on care home managers undergoing half a day’s training in this entirely new system. Does the Minister think that is a reasonable cost estimate of the amount of time care home managers need to become literate in a new system of liberty protection safeguards? How was it calculated? Given our debate on the role of the care home manager, how realistic does the Minister think that that figure is? This is absolutely crucial. We have tried by tabling amendments to remove the impact of the role of care home managers. To assume that they will get by with half a day’s training on this new system is very worrying.

14:30

These examples show that there are still glaring inconsistencies between the Bill and the existing impact assessment. What is missing entirely—and is important for the Bill overall—is an indication of the cost of reducing the backlog of DoLS applications, which, as I described earlier, has got out of control because of the Government’s decision to starve local authorities that are processing the applications of funding. There are key questions relating to the implementation of the Bill that need to be answered urgently. What calculations have been made by the Department of Health and Social Care about how much it will cost to reduce that backlog? How long will it take to reduce the backlog, and what will happen to cared-for people whose applications have yet to be processed? What guarantees can the Minister give that no one will fall between the cracks of the two systems?

It is precisely because the Government have so far failed to answer those questions in their haste to get the legislation through Parliament that we have felt it necessary to table amendment 53, which requires the Government to publish an impact assessment and an implementation strategy before they can enact the provisions of the Bill. Opposition Members will not take on trust the Government’s assertions that the costs will be lower and the system more efficient. There must be a clear plan of action and a revised estimation of costs for the Bill to have any credibility.

In the same vein, I want to address the subject of amendment 54, which aims to ensure that the Government publish a code of practice. We have heard on many occasions in Committee that the Government will put many finer details about their provisions in a code of practice. If we have heard anything in the Committee, we have heard about the code of practice, which is an important accessory to legislation where non-legal people are using a law directly. No one expects non-legal people to read or necessarily understand a statute, so a code is provided. Such a code follows what is in statute and sets it out in lay terms and at length. However, as I have said previously, statutory codes do not exist without a statute, and the majority of laws do not have a code of practice. I have previously mentioned the 2018 case of an NHS Trust and others (Respondents) v. Y, in the Supreme Court, and it is salutary to raise it again.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

We have referred to the code of practice, or the Minister has, on several occasions. We have consistently asked for it to be published. Surely the provisions would be nonsensical without it given we are being referred to it in relation to so many of the provisions we are arguing for. If a code of practice does not exist, where does that leave us in this whole scenario?

[Barbara Keeley]

Indeed. It is salutary to use the following quotation again:

“Whatever the weight given to the Code by section 42 of the Mental Capacity Act 2005, it does not create an obligation as a matter of law to apply to court in every case.”

We have wanted to know what is in the code of practice. We think knowing what is in it is important in deciding our position on what is in the Bill. The Government have declined to put too many aspects in the Bill and have instead favoured the code of practice. When legislation and codes of practice exist together, they are drawn up together and published together. That has not happened in this case and it is the wrong approach. We cannot leave crucial details about how a new system of protections would work, including what resources will be given to it, to a code of practice that has not been drawn up yet, but that is what the Government have done.

On the first day of this Committee the Minister said that she would supply Committee Members with a list of what should be contained in the code of practice, and I thank her for doing so last night. Unfortunately, that does not answer many of our concerns. For instance, we raised concerns about the length of authorisations. It is welcome that there will be guidance in the code of practice, but we still do not know what it will say. Similarly, the Minister’s letter says that the code of practice will contain

“guidance on the necessary separation and operation independence from any independent hospital an AMCP is conducting a review in”.

Again, I am glad that there will be guidance, but we still do not know what it will be. Nothing prohibits any of the relationships we are concerned about and have discussed at length: it simply says that some relationships may be prohibited. That is simply not good enough at this stage. As such, the Minister’s letter does not answer the concern of my hon. Friend the Member for Slough. We remain worried that there will not be proper oversight of this code of practice. Without seeing the full code, we cannot be certain that its contents are sufficient or appropriate.

Overall, the Government’s approach of constantly mentioning the code of practice as being the place where whatever is not in the Bill will be plays fast and loose with the rights and liberties of cared-for people. It further reinforces the mess that the Government have made of the Bill by rushing it through Parliament. Had they done the sensible thing and paused the process, they would have had time to draw up a draft code of practice so that we could consider it alongside the Bill, as is commonly the case. They have given reassurances that many of the concerns can be addressed in subsequent regulations and the code of practice, but that is simply unacceptable to those of us on the Opposition Benches. To that end, we have tabled the amendment to ensure that the Bill cannot be enacted until a code of practice has been published and approved by votes in both Houses, rather than just published.

An important principle that I want to discuss briefly is that legislation can begin in the House of Lords where it is deemed to be non-controversial. That was not the case with the Bill. It is not simply a reproduction of the Law Commission’s draft Bill, which was widely consulted on. As the recent media coverage in places such as The Guardian has shown, the Bill is not without controversy. The code of practice should not be passed through a negative resolution procedure in secondary legislation on the grounds that it is non-controversial. The Minister has indicated that the code of practice will have a real vote in both Houses. Let us see whether that will be a meaningful vote.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Pritchard.

On amendment 52, a great deal of concern was expressed in the written evidence submitted to the Committee about how the Bill interacts with the Mental Health Act 1983. In fact, that the Government have not thought that through enough was one of the many reasons why it was felt that they should not be rushing to push the Bill through. They have not made any statements even to claim that everything will be fine. Due to the overlapping nature of the two pieces of legislation, we must take additional precautions to ensure that they work together. To do that, we must know what the Government’s response to the independent review is prior to the provisions coming into force.

It is regrettable that neither this Committee nor the Committee in the Lords took any oral evidence. It is all the more important therefore to get some of the written evidence before the Committee so that everyone is aware of what organisations have been saying. Such organisations as Mencap have added their voices to the concern about the complex interface between the Mental Health Act and the Mental Capacity Act. I will quote from what Mencap said at some length not only because it is worth listening to, but because it is right. It said:

“Sir Simon’s review proposes to redraw the dividing line between when a person should be detained under the MHA and when they might instead fall under the MCA…The proposed dividing line is objection, so that if a person without capacity does not object to admission or treatment they should be placed under the MCA…The proposed new dividing line of objection needs thorough and broad consultation, possible pilot testing, and pre-legislative scrutiny—none of which are possible under the timescales set by Government for this Bill…Given that Sir Simon Wessely’s review has only just been published, there is a strong case for looking at the interplay between this Bill and the recommendations around the MHA. To not do so, risks creating legislation which fits together poorly.”

Does the Minister disagree with Mencap’s assessment and concerns about the interface between the two Acts? Does she accept that much needs to be done before the Bill’s provisions are brought to bear on our vulnerable people?

[James Morris (Halesowen and Rowley Regis) (Con)]

I have a lot of sympathy with the hon. Gentleman, but will he recognise that one of the central drivers for the Bill is the delay in assessments that has built up over time because of the issue identified in Chester? Obviously there is a timing issue, but does he agree that, ultimately, whatever legislation comes out of the independent review will mark a major change in how we approach the detention of people under the Mental Health Act? There probably will need to be more synergy between the two pieces of legislation, but the timing imperative is driving the need to get this legislation on the statute book.

[Alex Cunningham]

I think the imperative is the other way around. It is important for us to have the understanding of what the Government are proposing and their attitude to the review, so that we can understand how the legislation will work and how the two Acts will work together.

I believe the Government would be reckless to plough ahead with implementing the provisions in the Bill while that piece of legislation relating to it is still being reviewed. The Challenging Behaviour Foundation has also added its weight to the concern of the interface of the Bill with the Mental Health Act review. Providing written evidence to the Committee, it said:

“The current confusion in the use of Deprivation of Liberty within the MCA and the MHA often means the needs of people with learning disabilities are not being met in a timely and appropriate fashion…The independent review of the MHA has considered this and made recommendations around when a person should be detained under which Act around objection…The Mental Health Act Review makes the recommendation that the Code of Practice for the MHA and for the MCA make clear in what circumstances professionals should consider whether or not someone has capacity to make decisions…We also think that both Codes should make clear who should carry out capacity assessments in these situations. This needs to be explored further and needs to be considered under this Bill to ensure both legislations work together.”

That is very clear evidence from the sector. Perhaps the Minister will share with us her perspective on the interface between the Bill and the Act. There is a theme running through the written evidence submissions that we have received. The conclusion they come to is that the Government are rushing this Bill through.

[Mr Dhesi]

I thank my hon. Friend for raising the concerns of organisations such as Mencap. Does he agree that the likes of Mencap not only enhance our understanding through national policy formation but, as I have learned from my experience as a member of the Gravesend and district Mencap society, they also work on the ground? People such as Linda and Chris Norris and other volunteers, through their work, help their national organisations in policy formation. As parliamentarians we would be very wrong to ignore their recommendations.

[Alex Cunningham]

I very much commend the work of organisations from the grassroots right through to the national level. The reason I sat down with people from my local authority before the start of this Bill Committee was so that I could understand what was happening at the grassroots. That grassroots work that feeds all the way through the system informs us and it is important that we take account of it.

My hon. Friend the Member for Slough will know that, with the amount of written evidence submitted to the Committee, we could have stood here and made three-hour speeches ensuring that we raised the issues that they wanted raised. Some of us are a little more kindly and will be relatively brief.

This is not a matter to be pushed through with little consideration because the consequences of getting it wrong are significant. I ask the Minister to think carefully, not just about the comments made by hon. Members but about the evidence that has come from the sector. We raise that evidence out of concern that the Government might be making the wrong move. We need to tread carefully and understand the implications.

Amendment 53 seems sensible and proportionate. How can we possibly pass legislation that would have an undue impact on local authorities and other responsible bodies without giving them the resources to carry out the functions required? I have spoken in previous sittings about care home managers and the impact provisions in the Bill would have on them. Not only do I believe that they do not have the adequate skills to carry out assessments. I am also concerned that they have a severe conflict of interest if they are expected to be involved in the assessment of those who reside in their care.

14:45

On resources, we know that care homes and local authorities have tight budgets and that costs are rising. If the Government do not publish an updated impact assessment and a strategy for implementing the new system, the cared-for persons will lose out. I asked the Minister during the debate on a previous clause what assessment she had made of the potential cost that will fall on care homes for their extended role in the process. I also asked what data she had received from the sector on costs and whether she would publish it.

I am keen to understand who will pick up those costs. Will it be the person being detained, the clinical commissioning group, the private hospital or the care home? I did not receive an answer then, so I hope the Minister can tell us now who will be responsible for the new costs in the system. Surely she should publish that assessment so that we can understand the additional financial burden being placed on the sector before the measures of the Bill come into force. As colleagues know—I have said it before—we have received a significant amount of written evidence, and many organisations and individuals share a concern over funding. The Leicestershire County Council DoLS service is concerned that there

“remains a huge potential…that we end up with another underfunded system that prevents responsible bodies from meeting their statutory duties to the detriment of citizens and their rights.”

My hon. Friend the Member for Worsley and Eccles South has gone into the resources and training in some detail. I agree with the Royal College of Nursing, which states:

“All health and care staff should be educated to understand the deprivation of liberty processes and the impact that this Bill will have on the patients they care for…Without adequate education, healthcare professionals cannot make provision for the best interests of the person in care.”

Does the Minister agree? The RCN is at the sharp end. If she agrees, will she ensure that care professionals have the resources to carry out this vital training?

The care sector is under-resourced—I will not repeat what I said last week. All jobs websites show dozens of adverts for care assistant jobs involving long hours and minimum pay. The Minister seems content to make it harder for bodies such as care homes to cope with the pressures. That is before we get on to the subject of local authority funding and pressures which, again, I will not repeat. Surely we must ensure that the provisions are not enacted until a full implementation strategy is published. I would ask the Minister: when are we going to see it?

On amendment 54, much of the detail debated during the Committee will be addressed in the code of practice. We have raised our concerns over and over again. Does the Minister agree that legislators, healthcare staff, assessors and advocates—the list goes on—should be fully informed and aware of the code of practice prior to the revisions in the Bill being implemented to give them a fighting chance to prepare? I am concerned that any code of practice will not be subject to the scrutiny that both Houses provide for other pieces of legislation, particularly as this Government do not have a good track record of welcoming scrutiny from other Members or from outsiders. Perhaps the absence of an oral evidence session demonstrates that. There is concern that the code of practice will contain significant flaws and gaps. This morning, the Minister was not even prepared to talk about it in general terms, and said that we would have to wait for the detail and the views of experts and further consultation. I accept that, but we could still have some sort of comment on the general terms of the code.

[Caroline Dinenage]

The hon. Gentleman might be slightly misquoting me. I have spoken in general terms about the code of practice, and have indeed circulated a draft of what will be included in it among hon. Members, as well as what we have committed to including in it as part of the discussions in the House of Lords and during this Committee.

[Alex Cunningham]

It is never my intention to misrepresent anyone. All I am concerned about is that we should have clear detail as soon as possible in order for us to understand what will happen. It is not just for us to understand—it is also for people outside in the world who have to deal with this on a day-to-day basis. The Minister just answered the question I would have posed at the end, so I will not bother asking it.

[Caroline Dinenage]

I thank hon. Members for initiating this discussion. Amendment 52 would delay the introduction of liberty protection safeguards until the Department has fully responded to the report of the independent review into the Mental Health Act.

The hon. Member for Worsley and Eccles South said that I was stubborn. I am sure that a number of people, not least my husband, would agree with that sentiment. I think she would agree that I have committed to looking again. A number of issues have been raised during the Bill’s passage through Committee, not least ensuring that people get information as early as possible—I agree with her on that—and how we can maximise protection for those being cared for in an independent hospital. I am sure she would agree that I would be being equally stubborn if I were to take the amendments on board without giving them careful and due consideration, and without checking the legal ramifications and making sure that we are offering all the protections that we need to. I am sure that the hon. Lady, other Opposition Members and stakeholders will forgive me for making sure that we consider everything thoroughly and properly.

On amendment 52, I welcome Sir Simon Wessely’s landmark report and I am sure that it will very much set the direction for improving the way the Mental Health Act works for thousands of vulnerable people. The Government have already committed to bringing forth mental health legislation when parliamentary time allows, taking that very important report into account. We have already accepted two important recommendations, which will give service users more choice and control, but it will take time for us to consider the rest of the recommendations, of which there are 152. We will respond to the remaining recommendations in due course, but Sir Simon said that the Government would need to consider the “practical implications” of the interface recommendations, and that it would be “problematic” to introduce those recommendations in this Bill.

Hon. Members will be aware that the reforms in the Bill are desperately needed—I cannot repeat often enough that we cannot wait any longer to improve the situation of the backlog of more than 125,000 people who have been deprived of their liberty without authorisation. As much as there are concerns among stakeholders—I have met a number of stakeholders and we will continue to consult them, to take their views on board and to make sure that we work with them at every step of the way when it comes to the code of practice—they also share our concern that 125,000 people have been deprived of their liberty without authorisation, that their loved ones have been deprived of peace of mind and that their care providers have been deprived of legal protection.

[Barbara Keeley]

I have two points to make to the Minister. I remind hon. Members that we have heard examples of authorities—they include mine, that of my hon. Friend the Member for Stockton North and some London boroughs—where there is no backlog and where the local authorities have dedicated enough resource to the situation. Despite the number of DoLS applications increasing since the Cheshire West case, they are dealing with it. Let us not talk in Committee as if it is the same everywhere; it is not. Some local authorities are coping perfectly well with the backlog, and there is no pressure in those local authorities to change to a worse system that will cause a problem.

Secondly, I asked the Minister about the cost of dealing with the backlog, and I hope she will touch on that. She has raised the backlog again and again as a reason for rushing the Bill through. It is not a reason for rushing through a new piece of legislation that is this important. I hope that she will come on to say exactly how the backlog is to be dealt with and what resources will be available to deal with it, because that is an important issue. If the backlog is the reason for doing things this way, how is the backlog going to be dealt with?

[Caroline Dinenage]

Yes, of course I will go on to talk about the transition between the two systems and the backlog. I also say gently to the hon. Lady that she and others may be in the fortunate position where their local authorities have got to the stage where they do not have a backlog—in many cases, that is due to a political decision to prioritise it—but I think all those local authorities would recognise that there is duplication and cost in the system that they could do without. They have had to take very tough decisions to prioritise this issue over other things that they could be spending their money on, when money is tight. I do not think the attitude of, “I’m alright, Jack, there’s no backlog in my constituency,” is a very good one, when 125,000 other people are waiting.

[Alex Cunningham]

I do not have a particular problem with what the Minister is saying—local authorities do want to see reduced costs and to ensure that responsibilities are carried out—but she used the expression I used last week. It was a “political decision” by local authorities such as Stockton to take money from other services and invest them in this matter. Surely local authorities should not have to face that choice. The Government should properly fund our whole social care service, never mind the issues around the Bill.

[Caroline Dinenage]

I agree with the hon. Gentleman—the whole of the health and social care system needs funding, and that is where the additional money for the NHS comes in. The Government have given councils access to more than £10 billion over this three-year period. The fact that they are still struggling shows the scale of the problem. We do not want to waste money on duplication when that money could be valuably spent elsewhere. The desire to streamline the system to avoid unnecessary duplication, which drives costs but does not offer any further protection, is what this is all about.

[Alex Cunningham]

It is has been estimated that the Minister will save about £200 million as a direct result of the changes in the Bill. What will that money be used for?

[Caroline Dinenage]

We have to be careful not to conflate our language. There is no intention to save money on the process. We know that if DoLS were implemented correctly all across the country, as they are in the hon. Gentleman’s constituency, the cost would be £2 billion. However, we are not looking to save money here; we are looking to ensure that it is spent more wisely—not on duplication, but in a way that offers people the protections that they need. This is not a cost-saving exercise; it is about ensuring that money is spent wisely and effectively to offer that protection.

Amendment 53 would delay the introduction of liberty protection safeguards until the Department has published an updated impact assessment and implementation strategy. I thank hon. Members for reminding us of those items, which are important for the successful implementation of the Bill. We are in the process of preparing the updated impact assessment to reflect the amendments made in the Lords. We are keen to make the Bill as successful as possible and to listen to the concerns of those in the other place. We will shortly publish the impact of the amendments made there, and the Government have also made changes to the Bill in this House that will require us to update the impact assessment further.

The noble lord, Lord O’Shaughnessy—I am not sure whether I am allowed to name him—has committed to publishing a training strategy before the Act comes into force. With regard to training, we will work closely with the sector, local authorities and NHS organisations on implementation as part of our strategy, and we welcome Members’ contributions. I completely agree with hon. Members that adequate training for health and social care staff is vital. Ahead of the implementation, we will consider the most appropriate way to ensure that everybody is appropriately equipped.

We have considered training costs as part of the updated impact assessment that we will publish shortly. We know that there will be an impact on transitional costs. We will support the sector and we will deliver training through a workforce development model delivered by and in partnership with Skills for Care, as we do for other things.

With regard to the implementation, ahead of day one we will work with local, national and Welsh DoLS networks in partnership with the Local Government Association and the Association of Directors of Adult Social Services to clear the existing backlog of applications. Those who remain in the backlog on day one will have their applications handled under LPS—a streamlined system that minimises duplication. Existing assessments can be used, if appropriate. For example, there may be no need to commission a doctor to do a new mental health assessment. That efficiency will allow local authorities and other responsible bodies to tackle the backlog effectively.

Cared-for persons who have an existing DoLS authorisation on day one will remain under that authorisation until it expires, after which a new application will need to be made under the new system. Those in settings that newly fall under LPS, such as those in the community, who may have an authorisation from the Court of Protection, will remain under that authorisation until it ends. A new application will then need to be made under LPS. We will work closely with responsible bodies and care providers to ensure that the transition period is as smooth as possible, and that vulnerable people are protected.

Amendment 54 would require the code of practice to be approved and published before the introduction of liberty protection safeguards. That statutory guidance is essential. It will outline the details of how the system should operate and will be a valuable tool for practitioners. The Government are required by section 43 of the Mental Capacity Act to consult when preparing the code of practice.

We are already in the first stages of developing the code. We will work with the sector to co-produce it. I am happy to commit to publishing the code of practice before the scheme comes into force. I also commit to laying the code in draft before Parliament, giving both Houses the opportunity to resolve not to approve it, as section 43 of the Mental Capacity Act also requires.

I hope that I have been able to provide reassurance and that the hon. Member is able to withdraw the amendment.

14:59

[The Chair]

Before I call the shadow Minister, the Minister was perfectly in order to say Lord O’Shaughnessy and the next time she wants to, there is a variety of options for referring to the other place. That is perfectly in order.

[Barbara Keeley]

I only realised recently that we have changed the way that we refer to the House of Lords. We do not have to keep saying “the other place”. We can say the House of Lords and use names.

[The Chair]

We have modernised, finally.

[Barbara Keeley]

Going back to amendment 52, the process of bringing the Bill forward has been disappointing. It has been rushed and stakeholders feel that their views have not been taken on board. How do we know that that is the case? A letter was published in The Times today under the headline “Mental Capacity Bill Attracts Criticism” from a group of organisations including Liberty, Mind, Alzheimer’s Society, the National Autistic Society, POhWER—to which we have referred a number of times in our debates—the British Institute of Human Rights, Sense, Compassion in Dying, YoungMinds, Learning Disability England, Voluntary Organisations Disability Group and Headway—a very comprehensive list of organisations. They say:

“It is with dismay that we note the lack of improvement within the Mental Capacity (Amendment) Bill. The bill would replace existing deprivation of liberty safeguards with an entirely unfit new system of protection. To avoid the risk of exploitation and abuse it is vital that there are robust safeguards in place.

Alarmingly, the bill proposes to triple the time that people can be deprived of their liberty without review…while not doing enough to guarantee that all patients have access to independent and impartial advocates.”

This is what we have been debating.

The letter continues:

“The bill also creates a worrying conflict of interest for care home managers, giving them a greater role in the assessment process. Many vulnerable people will find it hard to express their concerns to a person providing them with care. The result is a rushed, incomplete and unworkable bill that will replace one dysfunctional system with another”.

That encapsulates everything that we have been trying to say.

[Alex Norris (Nottingham North) (Lab/Co-op)]

My hon. Friend lists a range of the most eminent and significant organisations in the field that we are discussing. They use words such as “dismay”, “rushed” and inadequate. Should that not be a big, flashing red light for hon. Members to say that perhaps this course of action is not the right one to be taking?

[Barbara Keeley]

Absolutely, I agree with my hon. Friend. On Second Reading, I said that the Bill should be paused, while we wait for the Government’s response to the Mental Health Act review. Every time I mention this, there is a groan from the Government Benches. We should not be rushing these complex areas. Even senior judges find the interface between the two pieces of legislation very difficult. We should not be introducing legislation that will be out of date almost immediately.

The impact assessment was produced over six months ago and it is now out of date. We have no idea how much the proposals in the Bill will cost or how much they will help to reduce the backlog of applications. We are being asked to debate and vote on the Bill now, and it is difficult with a six month old, out of date impact assessment. Even in the original impact assessment, it was unclear where some of the costs came from. The Government have not adequately explained the cost of their proposals. In the last sitting, I asked a series of questions about implementation. I would be grateful if the Minister could write to me with responses to those important questions.

We have heard constantly in our debates about how things will be included in the code of practice. On the first day of Committee, the Minister said that she would supply an outline of what it will contain. We only saw that document last night. An outline of what areas will be covered does not give us the full idea of what the code will contain. To some extent, it is better than nothing, but we have no idea of the detail. We cannot be asked to agree to a new system when so much of the detail is yet to be published. We need Parliament to approve the code of practice, rather than it being taken through by a method that is near impossible to stop. If there are problems with the code of practice, we should be examining the Bill and the code of practice side by side. We will press the amendment to the vote.

Question put, That the amendment be made.

Division 25

Ayes: 7

---

Labour: 7

Noes: 8

---

Conservative: 8

Amendment proposed: 53, in clause 5, page 4, line 16, at end insert—

“(3A) Before the Secretary of State makes any regulations under subsection (3)(b) above, the Secretary of State must—

(a) publish a full implementation strategy, outlining how local authorities and other responsible bodies will be resourced to process applications under this Act; and

(b) publish an updated Impact Assessment on the impact of the provisions of this Act.”—(Barbara Keeley.)

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published an updated impact assessment, and set out an implementation strategy for the new system.

Question put, That the amendment be made.

Division 26

Ayes: 7

---

Labour: 7

Noes: 8

---

Conservative: 7
Labour: 1

Amendment proposed: 54, in clause 5, page 4, line 16, at end insert—

“(3A) The Secretary of State may not make any regulations under subsection (3)(b) above, unless—

(a) the Secretary of State has—

(i) consulted on the Code of Practice,

(ii) published a Code of Practice,

(iii) laid that Code of Practice before Parliament, and

(b) that Code of Practice has been approved by a resolution of each House of Parliament.”—(Barbara Keeley.)

This amendment ensures that the Government cannot enact the provisions of this Bill until such a date as it has published a new Code of Practice, which has been approved in a vote in each House of Parliament.

Question put, That the amendment be made.

Division 27

Ayes: 7

---

Labour: 7

Noes: 8

---

Conservative: 8

[Caroline Dinenage]

I beg to move amendment 1, in clause 5, page 4, line 25, leave out subsection (9).

This amendment removes the privilege amendment inserted by the Lords.

[The Chair]

With this it will be convenient to discuss clause 5 stand part.

[Caroline Dinenage]

Parliamentary procedure requires a privilege amendment to be included in a Bill that starts in the House of Lords and has financial implications. It is then removed in the House of Commons as a standard procedure.

Clause 5 sets out the territorial extent of the Bill, which is England and Wales. This clause sets out that clause 4, except subsection 6, and clause 5 come into effect immediately on the Bill being passed. The rest of the Bill comes into force on a day nominated by the Secretary of State. Different days may be appointed for different purposes or different areas of the Bill. Clause 5 also gives the Secretary of State a power to make transitional arrangements by regulations. I recommend the clause to the Committee.

[Barbara Keeley]

Government amendment 1 is, of course, entirely uncontroversial. We cannot implement a new system until the Government are authorised to pay for it. I have a question for the Minister, following our conversation about the financial impact of the Bill: in the light of the changes that have been made to the Bill in the past few months, will she give us an estimate of how much expenditure we are being asked to agree?

We will not oppose the amendment, but I feel that members of the Committee should have an idea of what they are agreeing. We definitely need to have the updated impact assessment as soon as possible and certainly before Report stage. It is not acceptable to have an impact assessment that is six months out of date. We want to know how much the new system will cost before the Bill concludes its passage through the House. Only if that happens will we be confident of the amount of expenditure agreed to.

On clause 5 more generally, I am disappointed that the Minister has opposed all our amendments. In particular, I remain concerned about the code of practice, when it is finally produced. I counsel her against trying to rush it through the House, with little opportunity for Members to provide feedback. We have tried valiantly on this Bill Committee to bring up issues of great importance in the Bill, and they need to be listened to.

The Government have said that the new system will not come into force until the code of practice has been published, so there is no real reason not to agree to have the code of practice approved by each House before the Bill is enacted.

I hope the Minister will reflect carefully on what has been said in our debate on the Bill. As is evidenced by the letter from all those organisations in The Times today, the Bill contains significant flaws. It would not be unreasonable for some of our concerns to be addressed before the Government even try to bring in the new system. With that, we will not oppose clause 5 stand part, but we hope the Minister will use the powers in the clause to ensure that the Government get the system right before they roll it out.

Amendment 1 agreed to.

Clause 5, as amended, ordered to stand part of the Bill.

New Clause 1

Meaning of deprivation of liberty

“(1) After section 4 of the Mental Capacity Act 2005 insert—

‘4ZA Meaning of deprivation of liberty

(1) In this Act, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention and, accordingly, a person is not deprived of liberty in any of the circumstances described in subsections (2) to (4).

(2) A person is not deprived of liberty in a particular place if the person is free to leave that place permanently.

(3) A person is not deprived of liberty in a particular place if—

(a) the person is not subject to continuous supervision, and

(b) the person is free to leave the place temporarily (even if subject to supervision while outside that place).

(4) A person is not deprived of liberty if—

(a) the arrangements alleged to give rise to the deprivation of liberty are put in place in order to give medical treatment for a physical illness or injury, and

(b) the same (or materially the same) arrangements would be put in place for any person receiving that treatment.

(5) A person is free to leave a particular place for the purposes of subsections (2) and (3) even if the person is unable to leave that place provided that if the person expressed a wish to leave the person would be enabled to do so.’

(2) In section 64(5) of that Act (interpretation) for the words from ‘same’ to the end substitute ‘meaning given by section 4ZA.’”—(Caroline Dinenage.)

This New Clause provides the meaning of “deprivation of liberty” for the purposes of the Mental Capacity Act 2005.

Brought up, and read the First time.

[Caroline Dinenage]

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

The new clause provides statutory clarification in relation to the meaning of deprivation of liberty for the purposes of the Mental Capacity Act. The Mental Capacity Act defines a deprivation of liberty by reference to article 5 of the European convention on human rights. The proposed new clause adopts the same fundamental approach, by anchoring the meaning of deprivation of liberty to article 5.

As Committee members will be aware, the 2014 Supreme Court Cheshire West case changed what was commonly thought of as a deprivation of liberty, resulting in an eighteenfold increase in people entering the DoLS system, and applications are still growing year on year. That resulted in a significant rise in resource use for local authorities and the care sector, resulting in a backlog of over 125,000 people waiting for their applications to be authorised, as I have mentioned on numerous occasions during our debates.

The Law Commission was against a definition of a deprivation of liberty, but noble peers, stakeholders and the Joint Committee on Human Rights have all called for a definition to be included in the Bill, to bring proportionality to this situation and ensure that liberty protection safeguards are appropriately applied. The new clause does that by bringing clarity to prescribing circumstances, or exceptions, that are not a deprivation of liberty. If a person meets the conditions in one of its subsections, they are not being deprived of their liberty and so do not fall under the liberty protection safeguards. These subsections are drawn from case law.

The Department has decided not to include a full definition of a deprivation of liberty because primary legislation needs to be extremely clear and precise, and case law is constantly evolving. That makes it difficult to draft a definition that will remain sufficiently precise, given that the definition may change as case law develops. For that reason, we must be extremely wary of the unintended consequences of including a full definition in relation to such a complex matter. By taking this exclusionary approach, we will enable the definition to remain valid as new cases come forward, as there should be sufficient flexibility within the clause for case law to develop in parallel.

An important point to make Committee members aware of is that the clause would be accompanied by detailed statutory guidance and case studies within the code of practice. Here we would set out scenarios as workable examples of the subsections, to assist practitioners as they determine whether someone is being deprived of their liberty. I would like to assure colleagues that these supporting materials will give the detail and depth required for those in the sector, and local authorities, to identify a deprivation of liberty. We are working with stakeholders already to gather these scenarios in a wide range of settings, including care homes, private domestic settings and supported living. The clause would apply to 16 and 17-year-olds, as the rest of the Bill does, but we recognise that the circumstances of this vulnerable group of people can be different, and that will also be reflected in the guidance.

The inclusion of a clause in relation to consent has been carefully considered, but one has not been included. That is for several reasons. First, to give valid consent, an individual would need capacity, as set out by the Mental Capacity Act. If they have capacity and are consenting to the arrangements, then that automatically cannot be a deprivation of liberty. Secondly, there is not enough in case law to support the validity of de facto consent—that is, consent given by someone without capacity—and I am concerned that it would not be compatible with the Human Rights Act 1998. Above all, we must protect the rights of cared-for people.

The new clause will clarify issues post Cheshire West, it will determine when the LPS should and should not apply, and it will support those planning care in considering the least restrictive options to enable greater freedom for those in their care.

15:15

[Barbara Keeley]

Over the last few sessions, we have talked at great length about when it is appropriate to deprive somebody of their liberty and how can we prevent this being done inappropriately. We have talked about the safeguards that could be put in place to protect the cared-for person. I regret to say that, as we speak now, the Bill contains fewer and weaker safeguards than the Opposition would have liked.

However, we are not quite finished yet. We have one substantial amendment left to discuss. There is one question that anyone watching these proceedings will no doubt have been asking themselves: what precisely do we mean when we talk about depriving somebody of their liberty? In practice, what does that legal term mean? As the Minister said, the term itself comes from the European convention on human rights. Article 5 says:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases in accordance with a procedure prescribed by law”.

One of those cases is that of

“the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”

It is the provision relating to “persons of unsound mind” that we are discussing in this Bill. I am glad to say that the Bill itself no longer uses the somewhat stigmatising phrase “unsound mind” and instead talks of having a “mental disorder”. That may not be to the letter of article 5, but it is preferable.

As always with the European convention, the terms used do not give us an immediate definition of what counts as deprivation of liberty. That task is frequently left to the courts. In 2014 the Supreme Court ruling in the case of Cheshire West and Chester Council v. P drew a far broader definition of deprivation of liberty than had previously applied. We have referred to that case on a number of occasions during the Committee. This broadening led to the number of applications for deprivation of liberty safeguards increasing by a factor of 17, rising from around 13,000 in 2013-14 to over 225,000 in 2017-18. That is a major reason for the backlog of applications discussed in this Committee.

Cheshire West and Chester Council v. P set out an acid test that should be followed when deciding if somebody is deprived of their liberty. Unfortunately, that acid test is not as clearcut as might have been desired. In her judgment, Lady Hale referred to “complete supervision and control” and the person being “not free to leave”. For Lord Neuberger, the crucial conditions were

“continuous supervision and control and lack of freedom to leave”,

as well as the

“area and period of confinement”.

Lord Kerr went further, and focused on the duration for which a person is restricted.

When the Government set out their plans to reform the deprivation of liberty safeguards, there were calls for them to include a statutory definition of deprivation of liberty. As the Minister said, there were many calls in the House of Lords. A definition would provide practitioners and cared-for people with greater surety as to whether deprivation of liberty was taking place.

I am glad the Government have listened in this one case, but there are issues with the definition we have, and some matters on which I hope the Minister can provide us with clarity. There are two strands of objection to the Government’s proposed definition, both of which have been strongly put to me by stakeholders.

The first major objection is that it is not clear how the proposed definition would interact with case law. The Minister has referred to this, but we need to be clearer. Not only is there the case of Cheshire West and Chester Council v. P, but there are a number of judgments handed down by the European Court of Human Rights. My question to the Minister is, is this deliberate or accidental? If it is deliberate, why does she feel that a brief definition—on which there has not been wide consultation—is better placed to define deprivation of liberty than an extensive body of case law? We had a meeting with stakeholders, and half the people in the room had not seen the definition at that point—it had not been circulated. If the change is accidental, then I look forward to hearing how the Government will rectify the situation.

One of the immediately apparent issues in the definition is proposed new subsection (3)(b). This holds that a person is not deprived of their liberty if

“the person is free to leave the place temporarily”.

In the case of Cheshire West, MIG, MEG and P frequently left their accommodation to go on outings with support, yet the Supreme Court held that they were still deprived of their liberty. Given this, will the Minister confirm whether her definition does not properly describe the case law, or is she seeking to overrule the Supreme Court through this new clause?

It is not just the Supreme Court that has disagreed with this principle. One of the landmark cases heard by the European Court of Human Rights in relation to mental capacity is Stanev v. Bulgaria. Mr Stanev was a man with learning disabilities who lived in an isolated care home in rural Bulgaria. He was permitted to go on trips and outings on his own. However, to do so he had to ask permission from the care home where he was resident. When he tried to leave for longer than was expected, the care home took steps to force him to return. The European Court of Human Rights was clear that that amounted to a deprivation of his liberty.

Other cases have been raised in evidence to this Committee that show how temporary outings from a setting do not mean that someone has not been deprived of their liberty. In both DD v. Lithuania and K v. Poland, the individuals were allowed outside the residential establishment, but only with permission, and under the control and supervision, of the management of the facility.

It is clear that both the Supreme Court of the United Kingdom and the European Court of Human Rights feel that being able to leave temporarily is not a guarantee that somebody is not deprived of their liberty. Yet the Government are proposing the opposite. I cannot understand how they think this definition will withstand challenge in the courts.

I also raise a concern about the phrase “continuous supervision”, as used in proposed new subsection (3)(a). In Cheshire West and Chester Council v. P, both Lady Hale and Lord Neuberger referred to continuous supervision and control. That is a crucial difference.

I hope the Minister can provide clarity. Is her amendment failing to describe adequately the case law, or is it seeking to overrule the judgment handed down by the Supreme Court? That would create a number of issues. The first, and most serious, is that the new liberty protection safeguards will fail to protect all the people who need them. An ambiguous definition of deprivation of liberty risks seeing people excluded when they should not be.

The second issue is more mundane. If I can see a number of tensions between case law and the Government proposal, I am sure there will be numerous lawyers who specialise in this topic who will have done the same. That will result in further costly litigation in future. I am sure the Government did not intend to create a hefty legal bill for responsible bodies, but I am afraid that may well be what the Bill does.

It has been suggested to me that one reason the definition is so tightly drawn is to reduce the number of people who are subject to the liberty protection safeguards. I feel sure that was not the Minister’s intention, but when a statutory definition seeks to define deprivation of liberty more tightly than the courts do, she will understand that people draw their own conclusions.

We must be careful that we do not resolve the issue in front of us by sweeping it under the carpet. Reducing the backlog should not be achieved by redefining which groups of people are covered. That runs the risk of people who need the protections of a liberty protection safeguard being denied them.

The second major objection to this definition is that it is not sufficiently clear as to be useful. I have seen examples that I think illustrate that particularly well, and I will share some of them now. I should stress that, although they are based on real cases and on the views of care home managers on how they interact with the proposed definition, some details have been changed to protect the cared-for people. I would like to thank Care England—the representative body for care homes—for assisting with the preparation of these examples.

The first case is that of Jimmy, who lives with an alcohol-related dementia in a specialist care home that allows no access to alcohol. He was admitted having had an extremely squalid lifestyle and was found to have advanced cirrhosis of the liver. If he drinks alcohol, it will kill him very rapidly and unpleasantly. He lacks capacity to consent to remain and was admitted from hospital after treatment for a broken hip, which he could not explain.

Jimmy has been in the care home for five years, successfully abstinent, except for one episode when he was permitted to go out alone. When he goes out, it is with staff, so he cannot drink. He says he “quite likes” the care home and the food and that the staff are kind, but he is obsessed with living alone in a flat in the community, and is open about the fact that that is only so he could drink.

The local authority is clear that it could not fund the necessary staffing to prevent him from drinking in the community and provide the help he needs with daily living. So is Jimmy deprived of liberty? It would certainly seem so. He wants to move somewhere else, but that request has been denied. It might be in his best interests to remain, but it is not his preference. Under the Government’s amendment, he would not be seen as deprived of his liberty. He is not subject to continuous supervision while in the care home, and he is able to go on outings with supervision. Either of those would exclude him from the Government’s proposed definition.

In reality, this case is based on that of DM in 2017. DM was enabled by article 5 to challenge the authorisation of a deprivation of liberty safeguard. The case went to court, where a judge eventually ruled that the least worst option was for him to stay in the care home for the duration of the authorisation. Both the judge in DM’s case and the Official Solicitor were clear that DM was deprived of his liberty. Which is to take precedence—the Government’s definition or previous decisions of the courts, as in this case? If we pass this definition, will DM suddenly cease to be deprived of his liberty?

A second case is that of Sara, who is 21 and has a learning disability. She was moved from her family home to a care home following a safeguarding alert caused by bruising that was thought to be the result of physical abuse by a family member, but evidence swiftly emerged that she had been seen to punch herself when arguing with another young person on an outing. The local authority refused to return her to the family home, stating that she was settled in the care home and showed no signs of wanting to return. Her parents visit her and take her out with her siblings. Within the care home she has privacy in her bedroom, so she is not regarded as being under continuous supervision. Sara has no verbal communication, but carers and others noted that when her visitors were leaving she would take her clothes off their hangers, put them in a bag and then drag the bag to the door while holding the hand of the visitor.

According to the Government’s proposal, Sara is not deprived of her liberty; she is not subject to continuous supervision and she is allowed to go on outings. Furthermore, the local authority says that she is happy in the care home and has not expressed any desire to leave. On this basis, the local authority says, there is no deprivation of liberty. It is clear that if Sara wanted to move, she would be enabled to. Because Sara is not seen as being deprived of her liberty under the proposed definition, she and her parents would be powerless to enable her to access the rights that article 5 would give her.

In that case, the disproportionate response to the original bruising, which had in fact been satisfactorily explained, and the nature of Sara’s objection to being forced to live away from her home being non-verbal were only noted as part of the investigation by the Court of Protection. This happened only when Sara’s representative challenged a deprivation of liberty safeguard authorisation on her behalf. If she was not recognised as being deprived of her liberty, this could not happen. The court was appalled that her unhappiness and wish to be at home were not recognised.

The purpose of any definition is to provide absolute clarity to practitioners and, perhaps more importantly, cared-for people and their families. It exists to tell people when they are deprived of their liberty and thus have certain rights that can be engaged. As such, it is of little use if people cannot use it to make such a determination. At the moment, the definition does not serve this purpose. Had P read this definition, they would almost certainly have concluded that they were not deprived of their liberty, and their case would never have gone to court.

I know that the Government have said that their code of practice will contain far more detail on how this definition will be applied. Once again, the Minister is asking us to accept assurances that everything will be fine, when we have no evidence to suggest that this will be the case. A detailed code of practice would not in and of itself prevent this definition from being ruled incompatible with the European convention on human rights. The law is what it says, and a code of practice exists only to provide guidance on its interpretation.

I hope that I have explained why we have deep reservations about the definition that the Government have put forward. We have not tabled any amendments that seek to alter the Government’s proposed definition of deprivation of liberty, but let me be clear that that is not because we feel that it is fit for purpose. This is an issue of immense importance and complexity and should be treated as such. The reality is that the Government have done no such thing. Their definition was introduced late on and stakeholders had very little time to make their views known.

This is a fundamental pillar of our human rights system. A definition that attempts to distil and seemingly alter a huge body of case law is not a straightforward insertion and it cannot be rushed through. If we get this wrong, we will be letting down tens of thousands, if not hundreds of thousands, of people who are deprived of their liberty and need access to the safeguards of the LPS system.

Our view on what should happen now is clear. The Government should withdraw their new clause, put their proposed definition out to a wide public consultation and listen to what experts have to say. Once they have done that and produced a definition that carries broad support, they should introduce it on Report. If they remain determined to rush the Bill through, they should introduce it at a later date. If they do not do so, they risk creating a legal mess.

On Second Reading I said that nobody wants to create a Bill that requires amendment some months or years down the line. This new clause would do just that. It is pitted against decisions of the Supreme Court and the European Court of Human Rights.

15:29

[Caroline Dinenage]

Is the hon. Lady suggesting that there should not be a definition?

[Barbara Keeley]

No, I welcomed the fact that the Government were trying to put in a definition, but this definition is not fit for purpose. The problem is that, as with everything else in the Bill, it was rushed. At the meeting I had with stakeholders not very many weeks ago, almost everyone in the room had fears about it. Many of them had not even seen it. The process has been wrong.

I made it clear to the Minister what I think the Government should do. They should withdraw new clause 1 and not put it to a vote. They should put the definition out to consultation, and not introduce it again until those involved with the definition are happy with it. Then we can be clear. Pitting a Government decision against decisions of the Supreme Court and the European Court of Human Rights is not wise; it is a knotty problem. I am not a lawyer myself, but I have listened enough to people who are experts in this area to know that it is a problem.

Perhaps I can encapsulate the problem in one final question to the Minister. On the front of the Bill the Secretary of State certifies that he feels it is compatible with the European convention on human rights. Given some of the points that I have just raised about the definition, is the Minister confident that the Bill would still be compatible if we agreed to the new clause?

[Alex Norris]

Liberty, Mind, the Alzheimer’s Society, the National Autistic Society, POhWER, Parkinson’s UK, the British Institute of Human Rights, Sense, Compassion in Dying, YoungMinds, Learning Disability England and Headway all say that this is “rushed, incomplete and unworkable”, and that in general they feel the whole exercise is entirely unfit. It is well within the prerogative of the Government of the day to say that they are right and that all those organisations are wrong, but it is, dare I say it, quite a brave thing to do. For the benefit of the Committee, and of everybody else who has taken an interest in these proceedings, it might be worth explaining why the Government feel that they are right and the Bill is fit for purpose, and that the new clause, which very much puts the cherry on top of the Bill, is worth standing part of it.

[Mr Dhesi]

Does my hon. Friend agree that that is an indictment of the whole process, and of the rushed manner in which the Bill has been introduced? To have one organisation from among those 13 eminent organisations come forward in The Times today and use words such as “rushed”, “incomplete”, “unworkable”, “unfit” and “dysfunctional” would be bad enough; to have all 13 do so makes the entire process look like complete folly.

[Alex Norris]

I completely agree. To me it is a big, blinking red light that says that perhaps we need to pause and think again. Nothing typifies that more than new clause 1. It is helpful to have a definition in the Bill, and there is broad support for that. I also have some sympathy for its being exclusionary, rather than put in a positive manner, because we know, irrespective of what ends up in the Bill, that it will end up in court.

This is a hotly contested area of case law. It feels a bit like what it must be like to be an American legislator—we are almost waiting for what we do to be tested in court to see if it is okay. I have no doubt, with things as they are currently comprised, that we will be back. I do not know whether it will be a couple of months down the line or a couple of years, but if we carry on we will certainly be back.

The approach laid out by my hon. Friend the Member for Worsley and Eccles South is sensible and proportionate, and it might give us an opportunity to resolve the issue, by sending the new clause, which has appeared between stages, to the sector and asking, “How do you feel about this?” in order to get some engagement. That would give us more time for the lawyers to do their thing too. That seems quite sensible.

It would also give us a chance to take a breath on the whole Bill, and a little more time to see whether we can resolve some of the issues that we have discussed over the last two weeks. Many of the things we as an Opposition have put forward have had merit; perhaps our approach has not always been perfect, but to find better ways to try to address those things would be good for us all.

I will move on to my second concern. If new clause 1 becomes part of the Bill and the Bill becomes an Act, the smoke will come out of this place and send a clear signal: “We know that DoLS doesn’t work and hasn’t worked for a long time. Here is what is going to come next. Here is what we mean by ‘deprivation of liberty’ and here is what you can expect.” I maintain my anxiety that we will have only solved half of the problem, or one of two problems, because it is entirely possible for a big problem—in this case DoLS, the backlog and people’s experiences of that process—to be multifactorial.

No one has contested the fact that the DoLS system did not work and ought to be replaced, but there is a big, yawning and currently unanswered question of resources. I was concerned to hear the Minister say that they are the result of political decisions. I have been in that chair, as the local adult services lead on my council for three years, wrestling with DoLS. Is it a political decision? Yes, maybe it is, in the sense that we are basically trying to juggle whether to deal with assessing new people on their social care needs, assessing whether the needs of people currently in the social care system have gone up or down or, indeed, areas such as DoLS, all of which carry enormous risk to an individual, a local authority and a community as a whole.

In the sense that it is a political choice, it is like saying, “Your house is on fire; are you going to put out the lounge or the kitchen first?” You would just grab the bucket of water and chuck it at it, frankly. There is no political decision in that, or certainly not one of due prioritisation. Ultimately, if we are going to include this new clause in the Bill to set up the new system and legislation to set the new way, we must have absolute clarity that the finances are going to be met. Otherwise, the system will fail and we will, certainly with new clause 1, have elevated people’s expectations. At the moment people expect to be disappointed, because they know the system does not work. Now we are going to tell them that we have a new system that works, and then it will not. I suspect that is why all those eminent organisations have said that it is where it is.

On this point and on others, I feel that we on the Opposition Benches have made strong arguments about ways of improving the Bill, but it is not just us. It is not just partisan knockabout; it is not political. It is not a case where the Government say one thing so therefore the Opposition oppose. We should look at the organisations that are also saying, with flashing lights, “Please stop and have a think about this.” Otherwise, as I say, we will be back.

[Caroline Dinenage]

I think it would be helpful if I began by setting out how we got to where we are, for the sake of clarity, although I know that many hon. Members know this. The case of MIG and MEG and P widened the understanding of the scope of deprivation of liberty safeguards with the Supreme Court decision that:

“A gilded cage is still a cage”.

Even though the cared-for person was happy in their situation, it was still a deprivation of liberty and required a safeguard. The acid test set out by Baroness Hale in Cheshire West had two limbs: first, is the person subject to continuous supervision and control, and secondly, is the person free to leave? We can see that test running through this clause. We cannot directly challenge or go against Cheshire West, as it is the Supreme Court’s articulation of article 5, and our Bill must be compliant with the European convention on human rights. That is why deprivation of liberty continues to be defined by reference to article 5 of the ECHR.

We are confident that the exceptions in subsections (2) to (4) represent existing case law. The clause defines deprivation of liberty in that way, and the subsections are consistent with and drawn from existing case law—for example, as I have detailed, subsections (2) and (3) are based on the Cheshire West acid test. It is unlikely that there will be a mismatch between our clause and the High Court’s view; it may be that the clause is subject to litigation in future, but we are confident that the Government’s approach of providing for situations that would not constitute a deprivation of liberty will give sufficient flexibility for the meaning of the clause to develop alongside case law as that evolves.

Much of the discussion has emphasised how incredibly complex a legal matter this is; the clause must be drafted incredibly carefully to ensure that it is legally compliant. We have worked with other Government Departments such as the Ministry of Justice to develop the clause. We listened to stakeholders and peers during the progress of the Bill through the House of Lords to understand their requirements for a definition and drafted the new clause in a way that would achieve what they wanted legally. Since drafting it, we have shared it with stakeholders to explore its impact. We are consulting a wide variety of organisations to gather case studies, which we will use in the statutory guidance.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I wonder whether the Minister can explain how, if there was consultation with stakeholders, my hon. Friend the Member for Worsley and Eccles South has that impressive list of organisations with such grave reservations. That suggests the consultation was a bit inadequate.

[Caroline Dinenage]

The decision to put the definition in the Bill was made in the House of Lords. We had to work carefully on the definition. That information has been shared with stakeholders only in the past couple of weeks. The definition is where we have been working most latterly.

Stakeholders have agreed to work with us and to bring forward case studies that we can put in the statutory guidance that will make it very clear how the Bill will work in every instance and for all the different types of vulnerable people we have discussed. That is what we need to provide clarity. Those case studies will demonstrate how the exceptions will apply in different settings and scenarios, provide clarity, and aid practitioners in identifying when one of the exceptions applies. We are working with stakeholders to co-produce that guidance to ensure that it is clear, unambiguous and of real help to those who use it. It would not be appropriate to include that kind of detail in primary legislation. As I have tried to articulate, the new clause needs to be precise and to fit with evolving case law.

[Barbara Keeley]

I constantly get the feeling when I listen to the Minister that she is describing a happy situation that, unfortunately, the evidence suggests does not exist. The notion that she is co-producing the definition with stakeholders is not what stakeholders say. My hon. Friend the Member for Nottingham North and I read out the list of organisations that object to the Bill and the severe comments they have made about it. If the Minister were in fact co-producing parts of the Bill and the definition with stakeholders, they would not be writing to The Times describing the Bill in that way.

[Caroline Dinenage]

We are talking about the definition. I am not saying we have co-produced it with stakeholders, but we have given a copy of it to stakeholders, asked for their feedback and asked them to supply case studies. Some have welcomed it and see it as absolutely necessary to provide the clarity we are looking for.

The Law Commission report shows that overly cautious application of DoLS is unnecessary, but we want an effective system with access to safeguards, as required by article 5 rights. The hon. Lady raised a number of case studies, including Stanev v. Bulgaria, in which Mr Stanev needed permission to leave. We will make it very clear in the code that a person is not free to leave if they require approval or permission. That is also clarified in subsection (5) of proposed new section 4ZA of the Mental Capacity Act.

We intend to set out in the statutory guidance, by reference to case studies, how that should be interpreted. For example, we understand that in care homes, cared-for people are often left unsupervised for many hours of the day yet may still be regarded as being deprived of their liberty. We do not intend to exclude those people without discretion. We will set out in the guidance the circumstances in which someone should be regarded as not being under constant supervision, such as how frequently they are checked and the monitoring that is present. We are also conscious that “continuous supervision” means different things in different settings, and I welcome the contribution of my hon. Friends towards that.

There is also a sliding scale of situations we expect to be excluded by subsection (3)(b) of proposed new section 4ZA. We will expand on that in the guidance in consultation with stakeholders. For example, the place must be one to which the person has a wish to go rather than one solely of staff’s choosing. It is worth pointing out that both limbs of subsection (3) must be met for a person to be excluded by it. For example, if a person is not continually supervised in a care home but is not free to leave temporarily, the subsection does not apply.

Although we aim to bring clarity, we recognise that every case is different. I hope I have articulated that this will be a person-centric system. We do not want a one-size-fits-all approach, which is the problem with the system that we have now. That approach is no longer fit for purpose for such a vastly different and vulnerable group of individuals. With that in mind, I ask that new clause 1 stand part.

15:45

[Barbara Keeley]

I gave some good examples of cases where the Government’s definition clashes with case law, which is why I think it will run into problems very soon. It is still the Opposition’s view that the Government should withdraw the new clause. As we said, they should put the proposed definition out to wide public consultation—passing it round a few individual stakeholders is not the way to do it—and listen to what experts say. Once they have done that and produced a definition that carries broad support, which they do not have at the moment, they should introduce it on Report, which needs time. If the Government are thinking of rushing to Report stage while so much is left in an unsatisfactory and poor situation—if they remain determined to hurry the Bill through—it should be introduced at a later date. The Opposition’s view is that the Government risk creating a legal mess should they not do that.

Question put, That the clause be read a Second time.

Division 28

Ayes: 8

---

Conservative: 8

Noes: 7

---

Labour: 7

New clause 1 read a Second time, and added to the Bill.

Question proposed, That the Chair do report the Bill, as amended, to the House.

[Barbara Keeley]

May I thank you, Mr Pritchard, and Mr Austin? In our first sitting, we not only had a horrible sauna of a room, but a number of us had not sat on a Bill Committee or, in my case, had not done so recently. There has been excellent chairing, supported very ably by the Clerk who we have had working with us. Everyone has done a wonderful job. The Hansard Reporters always do a wonderful job of making sense of what we churn out, and we have kept the Doorkeepers busy with many votes.

I said at the outset that we would proceed in the spirit of co-operation, which I think we have. The Opposition have treated this subject with respect for the required depth of scrutiny. It is only a short Bill and we have scrutinised it well, which is nothing less than cared-for people, who will be affected by it, deserve.

Given that they have worked very hard, I offer my sincere thanks to my hon. Friends, who have contributed so thoughtfully and carefully to this important debate. My hon. Friend the Member for Birmingham, Selly Oak has been assiduous at getting to the heart of the Bill. My hon. Friend the Member for Stockton North brought his critical eye—he tells us it comes from being a journalist—to this very complex Bill, and he explored the issues with great humanity.

My hon. Friend the Member for Nottingham North brought to our proceedings his immense knowledge of DoLS from his time as a councillor, and his other insights have been very useful. My hon. Friend the Member for Stockton South, who is not in his place at the moment, brought valuable insights from the perspective of a medical practitioner—that is always useful to have, as medical practitioners will have a role in the proposed system. My hon. Friend the Member for Slough made a number of interventions and gave a very good speech this morning, holding the Government to account in his debut on a Bill Committee. Our hard-working and wonderful Whip, my hon. Friend the Member for Bristol West, worked with the Government Whip to ensure that proceedings ran smoothly. My hon. Friend the Member for Dewsbury made some excellent contributions in her first appearance on a Bill Committee.

I thank the many stakeholders and practitioners who have written to us to express their concerns about the Bill, and who have worked with us. I also thank everybody who submitted evidence to the Committee—it must have been a real rush for people to get that evidence in. They are too many to name, but I will mention a few. Lucy Series has done sterling work in unpicking the legal ramifications of the Bill. POhWER and VoiceAbility provided many of the excellent case studies that have been used to demonstrate the importance of advocacy in caring and to highlight some of the issues facing the Government’s proposed definition of deprivation of liberty, which we just discussed.

I hope the Government will reflect on what we have discussed. Many areas of the Bill are still deficient, and the concerns of stakeholders have not been addressed. We will continue to work in a constructive spirit in order to build a system that protects the liberties of all cared-for people in our country.

[The Chair]

Before I put the Question, I thank the hon. Lady for her thanks. It is always wise to thank the Government and Opposition Whips. I had not noticed that it was the first time on a Committee for so many colleagues. It has been an absolute delight, because everybody has conducted the business so professionally. I put on record my thanks to my co-Chairman, the hon. Member for Dudley North—Dudley is a marvellous place and very close to my constituency—and to Adam, who has done a sterling job as the Clerk, keeping us on the straight and narrow. I join the hon. Lady in thanking the Doorkeepers, who do a great job—particularly opening the windows in the sauna that we had for a few days. I thank the Hansard Reporters and officials for their excellent work. Lastly, I thank all of you for being so well behaved. You are the best Bill Committee that I have served on, and I thank you very much indeed.

Question put and agreed to.

Bill, as amended, accordingly to be reported.

15:52

Committee rose.

Written evidence reported to the House

MCAB63 Leicestershire County Council DoLS Service

MCAB64 Royal College of Nursing

MCAB65 Nigel Hodder, Best Interests Assessor for DoLS

MCAB66 Liz Gale, Mental Capacity Act Lead, Bi-Borough Adults Social Care and Public Health, Royal Borough of Kensington and Chelsea and Westminster City Council

MCAB67 Devon County Council

MCAB68 Doughty Street Chambers Court of Protection Team

MCAB69 Dr Amanda Thompsell (Chair, Faculty of Old Age Psychiatry, Royal College of Psychiatrists), Dr Hugh Series (Consultant old age psychiatrist), and Dr Sharmi Bhattacharyya

MCAB70 Adrian Watts

MCAB71 Dr R. L. Symonds

MCAB72 Liz Spires, social worker

MCAB73 Penny Calthrop

MCAB74 Tom Grace

MCAB75 Challenging Behaviour Foundation

MCAB76 Wendy and Graham Enderby

MCAB77 Association of Directors of Adults Social Services (ADASS)

MCAB78 Catherine Brewin

Westminster Hall

Tuesday 22nd January 2019 Westminster Hall

Tuesday 22 January 2019

[James Gray in the Chair]

Water Industry

Tuesday 22nd January 2019 Westminster Hall

09:30

[Gareth Thomas (Harrow West) (Lab/Co-op)]

I beg to move,

That this House has considered the future of the water industry in England and Wales.

Customers and employees should be helped to take back control of the companies providing our water and taking away our sewage. The people of England should once again be front and centre of their water industry. Democratic, publicly owned businesses operating in the private sector, regulated with vigour by a more effective Ofwat is the Co-operative party’s vision of the future of the water industry. I am proud to chair that political party. I am grateful to the Backbench Business Committee for the opportunity to explore that agenda through this debate.

Nationwide, John Lewis, the Co-operative Group, the Royal London insurance company and NFU Mutual are just five successful examples of people-run businesses—mutuals—where profit is sought not to line the pockets of wealthy investors, but to reward customers and employees, and to invest in local communities. Such businesses are inspiration for reform of the water industry.

Margaret Thatcher’s decision 30 years ago to privatise our water industry has created an expensive, unaccountable and unfair system. No other country has a fully privatised system of water and sewage services with so little competition. The resulting monopoly businesses are overseen by a woefully weak water regulator. Unsurprisingly, the consumer voice in England carries little weight against the interests of distant investors, whose decisions have seen water bills rise by 40% above inflation since privatisation.

[Daniel Zeichner (Cambridge) (Lab)]

Does my hon. Friend agree that the rather poor practices of some water companies have led to widespread public disillusionment? When I worked for Unison a few years ago, an excellent report was published showing some remarkably creative accounting, which seemed to suggest that money was being diverted not to investment, but to shareholders.

[Gareth Thomas]

My hon. Friend and the trade union movement in general have pointed that out on a number of occasions. I will come on to one of the trade union movement’s particular campaign issues.

Water companies have become a desirable global financial commodity, bought and sold by big banks, international infrastructure investors, pensions and sovereign wealth funds. Since privatisation, as my hon. Friend just pointed out, dividend payments have been very high, at an average of £200 million a year per company, and £2 billion a year in total. Over the past 30 years, at least £48 billion has gone directly to shareholders.

Analysis by Greenwich University suggests that the more than 40% increase in household bills in that time was driven mainly by the need to finance growing interest payments on debt—a point that the trade union movement in particular has highlighted. That analysis shows that accelerating debt levels are the result of the high dividend payments paid by water companies to their shareholders, which exceeded the privatised companies’ cash balances in every year bar one since 1989. Indeed, it is striking that total payments to shareholders are very similar to the total outstanding debt burden of privatised water companies, with at least £48 billion in payments in the past 30 years and at least £51 billion in total debt.

The Leader of the Opposition and, in particular, the shadow Chancellor deserve considerable credit for highlighting the lower cost of water bills in Scotland, where Scottish Water is publicly owned. While bills in Scotland are 2% less in real terms than they were 18 years ago, English water bills increased by some 13% in real terms over the same period.

Privatisation has not meant more investment. Indeed, annual investment in water supply infrastructure was lower in 2018 than it was in 1990 and has fallen by about 10% in the past 10 years. All of the capital investment made since privatisation could have been covered using only the money generated by customer bills. Instead, much of the income generated by water bills appears to have been used to pay the interest on debt built up by the privately owned water companies, in turn to fund dividend payouts.

Despite similar levels of capital investment, we are now in a situation in which, according to research by the University of Greenwich, consumers in England are paying £2.3 billion a year more for their water and sewerage bills under the current privatised system than if the utility companies had remained in state ownership.

[Darren Jones (Bristol North West) (Lab)]

Does my hon. Friend agree that this is an excellent opportunity to bring consumers into the conversation with businesses, in a way that mutualisation allows, so that we can learn from customers as well as talk about the ownership of utilities?

[Gareth Thomas]

My hon. Friend makes a good point. I will come on to how mutuals would allow customers to have a lot more say over—indeed, they would give them ownership of—the water services on which we all depend.

Turning to one specific company, Thames Water was owned for 11 years by a complicated string of holding companies and offshore businesses, all ultimately owned by Macquarie bank, receiving returns of between 15.5% and 19%. Research by the Financial Times suggests that between 2006 and 2016, Macquarie and its fellow investors paid themselves £1.6 billion in dividends, while Thames Water was loaded with £10.6 billion of debt and ran up a pension deficit of some £260 million.

Dividend, debt and pension deficit were not the only things to increase under Macquarie’s control of Thames Water; customer bills and complaints also soared. The only thing that went down during this period was customer satisfaction, which is now ranked 22nd out of 23 in the Consumer Council for Water league table.

[Jim Shannon (Strangford) (DUP)]

I thank the hon. Gentleman for bringing this debate. Ofwat imposes no penalties on managers who break their commitments. Does he agree that legislation must be put in place to ensure that—after loading Thames Water with debt and flooding the Thames valley with excrement—the water body faces more than just a fine that is less than the amount it would take to dispose of the water in the appropriate way? In other words, the fines do not match the crime.

[Gareth Thomas]

The hon. Gentleman makes an extremely good point. Given that we are in the middle of the latest pricing review, if Ministers had the gumption they could put pressure on Ofwat to use its existing powers to bear down on those exact issues. I agree with the hon. Gentleman’s general point that we need a full review of the powers available to Ofwat. I am sure that they need to be increased.

Thames Water’s credit rating is the worst in the industry, according to Standard & Poor’s. Thames Water’s tax bill also declined during the period in question, as it regularly paid no corporation tax on its £1.8 billion turnover. Thames Water is, by its own admission, failing to meet targets to reduce the number of properties experiencing chronic low water pressure; failing to reduce the number of complaints; and wasting almost 700 million litres of water annually through leakage. It is failing to meet basic standards in 17 out of 41 key areas. That dismal record also includes record fines for poor performance.

In comparison, Scottish Water, which is publicly owned, has debt levels 5% lower than 17 years ago; its interest payments have remained consistent; and, with no dividends having been paid out, all the profit has been reinvested. It is worth pointing out that, adjusted for leakage per kilometre of pipes, Scottish Water performs just as well as an average English company, with 10.2k litres of leakage per kilometre as opposed to 22.1k for Thames Water, 10.8k for United Utilities and 9.5k for Yorkshire Water.

Thames Water is not alone in poor performance. In truth, more than 20% of all water is currently lost through leakages from water pipes. In total, it is estimated that some 7.5 trillion litres of water has been lost through leakage, which is equivalent to the total volume of water currently in Loch Ness.

[Rebecca Pow (Taunton Deane) (Con)]

The hon. Gentleman is making a powerful case against the water companies. The issue of leakage seriously needs to be addressed. Something like 1,273 Olympic-size swimming pools-worth of water is leaked daily because water pipes have not been addressed. The Secretary of State for Environment, Food and Rural Affairs has rattled the cages of the water companies, to improve their performance, and they have set out in a new plan that they will reduce leakage by 16%. Does the hon. Gentleman agree that that should not be done voluntarily and that there should potentially be stronger regulation?

[Gareth Thomas]

I find myself in the slightly unusual position of agreeing almost completely with the hon. Lady. Leakage is a huge problem. Much tougher regulation by Ofwat in particular, and ultimately an increase in the regulator’s powers, are required to bear down on the shocking levels of leakage, not least because the Environment Agency has said publicly that England and Wales could suffer major water shortages by 2030. The agency also noted that enough water to meet the needs of 20 million people is lost every day through leakage, which surely further supports her significant point.

To be frank, in the past Ofwat has not demanded enough investment from water companies, given the scale of the rise in customer bills. It appears to have been asleep at the wheel under various leadership teams. The Public Accounts Committee, which looked at regulation of the water industry as far back as 2015, criticised Ofwat for overestimating costs and poor benchmarking of efficiency, resulting in higher bills for customers.

The hon. Lady also made the point that even the Secretary of State for Environment, Food and Rural Affairs suggested in March last year that water companies have not been acting in the public interest. Granted, the Secretary of State’s criticism came a month after a detailed critique of the water industry by the shadow Chancellor; nevertheless, the Secretary of State’s criticism is welcome.

As I indicated earlier, the latest price review is under way and already the Consumer Council for Water is concerned that Ofwat’s grand promises are unlikely to be met, with

“companies bidding for significant rewards for performance levels that aren’t particularly stretching”.

In part, prices are decided by the cost of equity and the cost of debt, plus investors’ expected UK tax burden. In my view, Ofwat should reduce the cost of equity in its calculations while maintaining fair treatment on debt finance for genuine capital investment. In short, Ofwat should drive down the profit that the owners of water companies make. It should also scrutinise the tax behaviour of those owners, to crack down on tax avoidance, and demand that owners do not use tax havens to receive the profits from our water companies. Lastly, every English water customer should see their bills reduced after 30 years of being used as cash cows by the owners of water companies. It is time that consumers and their pockets were treated better.

In October last year, the Select Committee on Environment, Food and Rural Affairs suggested that an independent review to determine whether the water industry was fit for purpose was required. The Chartered Institution of Water and Environmental Management went further, suggesting that such a review needed to examine the ownership of water companies. The Select Committee also raised concerns about the powers available to Ministers and Ofwat to improve governance and prevent pollution. With climate change approaching and a creaking infrastructure, the Committee argued that the need for change was urgent.

For some of the reasons that I have set out, there is growing concern about the ownership model in the water industry, and there are alternatives to the current privatised system. Long-term alternatives that the Government should consider include, in particular, a mutual approach, with democratic public ownership by consumers and employees, modelled on the success of Welsh Water and inspired by other similar success stories. Welsh Water, or Glas Cymru, does not pay dividends to shareholders, and yet it operates in the private sector. It has an ownership model that forces it always to operate in the interest of its customers and it has changed the way in which it raises finance, in order to reduce the cost of credit.

Welsh Water now has the strongest credit ratings in the water industry, which reduces its financing costs and allows for even more future investment in its infrastructure and services. Customer bills have been reduced steadily in real terms and so far it has returned about £180 million to customers in the form of customer dividends. In addition, it has provided some £10 million of support for vulnerable and low-income customers, through social tariffs and an assistance fund.

The first step on that path for the water industry in England, so that it can match and then go further than Welsh Water, would be the formation of consumer and employee trusts. These trusts would have the power to appoint non-executive directors to water company boards, and they would have access to independent advice from management, so that they can make well-informed and independent decisions.

Ofwat should discourage investment in the water industry that requires a fast return to the owners of expensive equity. Instead, it should steer water companies towards the lower-cost debt market, with responsible investors such as public sector pension funds, whose interests are aligned with those of the water sector and whose investment could help to ensure that there is a modern, resilient water infrastructure.

Over the longer term, as equity investors seek to sell up because they recognise that they can no longer make a fast buck, consumer and employee trusts could use bond issues to buy those equity investors’ stakes in the business. These trusts would need to be underwritten by a buffer, or internal equity reserves, to borrow against. That could be achieved through a Government guarantee on loans or debt, to ensure that any large unexpected investment needs will be met, and to ensure that if anything should go awry, lenders are in a first loss position. Similar initiatives already take place in other areas of Government policy. Government guarantees could be replaced over time through the accumulation of non-distributed reserves, or of retained profit, by the trusts.

As the ownership of water companies changes, legislation should be passed to embed the not-for-profit principle. The new not-for-profit water companies would also require protection, with an asset lock to prevent demutualisation in the future. Consumer and employee trusts—like those at Nationwide, John Lewis and other mutuals—would enable customers and the workforce to have an active role in the key decisions taken by their organisation. The board would include employee and customer directors, and the trust membership would enable members—including consumers—to vote for board members, and to agree audit, remuneration and company governance decisions, as well as how profits are invested or distributed.

Ofwat should be given new powers to ensure that water companies encourage employee and customer participation in the democratic process. The new employee and consumer trusts should also have a role in the scrutiny and decision making of Ofwat, with a scrutiny panel that reviews the operations of the regulator, led by consumers, and also playing a role in Ofwat’s appointments to its board.

In conclusion, comparisons of public ownership and private ownership of the water industry do not come out favourably for England’s privatised water companies. They do not look like they are committed to environmental investment and the other challenges facing the water industry. The latest price review should herald the beginning of the transformation to new not-for-profit owners—the very consumers and employees who depend on the services of the water industry. Public ownership works in Scotland and the model for mutual transformation of the rest of the water industry works in Wales. It is time that there was new ownership of the water companies in England, and I commend the mutual model to the House.

09:48

[Richard Benyon (Newbury) (Con)]

If hon. Members check my entry in the Register of Members’ Financial Interests, they will see that I chair an organisation called the UK Water Partnership. As the Leader of the Opposition claimed that I was some sort of stooge for the water companies, I put on the record that the UK Water Partnership is a public-private partnership, and that I was asked to chair it by the Department for Environment, Food and Rural Affairs. It brings together industry, policy makers and the research community to try to provide the key to unlocking a $500 billion global marketplace, as well as tackling water security issues through a strategic approach to research innovation and global clients. It effectively works right across the water sector, helping British companies to do better in a global marketplace. I very much do not speak for water companies.

As the water Minister who introduced more competition, changed Ofwat’s prioritisation of environmental protection, introduced the catchment approach to upstream water management and oversaw the Thames Tideway tunnel in its initial phase, I have a fair degree of insight into how private water companies work and what they deliver for customers.

I appreciate the hon. Member for Harrow West (Gareth Thomas) bringing this matter to the House. I suppose it all depends on which end of the telescope we look down. It is easy to pray in aid companies and organisations that fail, and so give a malign picture of the whole operation of our water sector. I will try to give a more balanced view, but I totally accept some of the points made, as there are good players and bad players in every sector.

As in any field that involves a number of organisations, we will of course come across ones that are good and others that are bad, but I am absolutely certain that we have benefited from privatisation. It is wrong to turn the clock back and pretend that there was some halcyon era of cheap water, exemplary customer service, massive investment and great environmental activity by companies in the days when they were publicly owned. To those who say, “Ah, but we would do it better this time,” I say that that is the Venezuela defence. Socialists say that Venezuela has not done socialism right and that they would do it differently here, that nationalisation would be different from in the past. Those years of bad service, under-investment and environmental degradation must not happen again.

[Gareth Thomas]

I am enjoying the trip to Venezuela that the right hon. Gentleman is taking us on. May I draw him back to my remarks about the mutual model of democratic public ownership, which would see the water companies remaining in the private sector, albeit run by their customers and employees, a bit like at John Lewis and Nationwide?

[Richard Benyon]

I can come on to talk about suggestions that I think have some virtue, particularly employee share ownership schemes. As with everything, there is no perfect right or absolute wrong; there is a massive area of grey, and I will explore some of the nuances, on which I think we can perhaps find some agreement.

On the model of nationalisation I have heard certain individuals speak about at Momentum rallies, I think about the head of a nationalised utility company going to see the Chancellor to plead for more infrastructure investment funds, only to be told, “Get in the queue behind the NHS, welfare, policing and schools”—the long list of public spending priorities that come before something that is now funded privately and by institutional investors. Let us consider some facts. Since privatisation, water companies in England and Wales have spent about £150 billion on improvements to the water service. That is infrastructure that had been absolutely ignored by public expenditure before it was put into the private sector. The companies now spend about £8 billion a year continuing with those improvements.

When I was water Minister, I met institutional investors and saw that the regulated utility sector is an extremely popular place for people to invest, including for pension funds—the people who pay the pensions of people in the public sector. I welcome the fact that sovereign wealth funds and overseas investors want to invest in the United Kingdom. They do so because it is a stable and relatively low-yielding but relatively secure investment.

[Rebecca Pow]

Does my right hon. Friend agree that water companies are already getting involved in good environmental projects, to clean the water, work with landowners and make it so that the water needs less treatment? With that interest in sustainability and many more people wanting to engage in green investment, does he foresee the opportunities expanding, particularly as under the Agriculture Bill we will be paying for public services, the public good and the need to protect our land more?

[Richard Benyon]

As water Minister, I pushed the concept of payment for ecosystem services, which was against Ofwat’s institutional view at the time, though I am happy to say that it has moved on. It liked the idea of a regulated asset—of measuring the quality of the water coming in at one end and going out at the other, and judging whether the asset was working. I would say, “Try to let a thousand flowers bloom.” Some of them would fail, but building that relationship between a water company and land managers upstream, and paying them to help to produce better quality water, is the sort of thing I am glad to say is now becoming the welcome norm across the sector.

[Rebecca Pow]

I meant to mention an excellent project I have visited. Upstream Thinking, run by South West Water, is a phenomenal example of exactly how that is working.

[Richard Benyon]

My hon. Friend is absolutely right to mention that project, which was initially developed around Dartmoor. It is an extraordinary scheme that is really working, and that I hope will become even more mainstream in the near future.

[Daniel Zeichner]

The right hon. Gentleman’s points are similar to those brought to my attention by Anglian Water, which services my region. I do not think that anyone disputes that good work is being done, but the unhappiness is with some of the extraordinarily labyrinthine financial arrangements that sit behind the companies. Does he agree that if that could be resolved, in many of the ways my hon. Friend the Member for Harrow West (Gareth Thomas) suggested, it would solve some of the dilemmas? No one is challenging the good work that is being done.

[Richard Benyon]

There has absolutely been bad practice. I have had my concerns about Thames Water in the past, but today the company has capped its dividend payments, is investing more in resilience and is doing a whole new range of different activities, and my concern is that we risk cutting off an enormous amount of infrastructure investment if we do not get this right. I think there is a way forward, and I will touch on it in a moment.

Compared with 30 years ago, customers are now five times less likely to suffer from supply interruptions, eight times less likely to suffer from sewer flooding and 100 times less likely to have low water pressure. The hon. Member for Harrow West talked about Welsh Water; he is right that people sometimes suggest that it is a mutualised organisation, when it is a private company. Welsh Water loses 121 litres per property in leakage, which is more than nearly every other water company. Its average combined water and sewage bill is £439, which is 8% higher than the average English and Welsh bill, at £405. It is higher than the bill in six English companies, and that is in a country where there is no shortage of water. I come from the Thames Water region and we are short of water there, but in Wales they are not so I cannot understand why the bills are so high. In Welsh Water, the average number of minutes lost due to supply interruptions is 43 minutes, which is about 400% higher than in most other companies, where fewer than 10 minutes are lost.

The picture is not universally wonderful, and there occasionally needs to be a bit of balance in the subject. Water companies have reduced leakage by a third since the 1990s. We are about to see an incredible increase in innovative methods of detecting leakage, and it is right that in the current price review round there is an enormous driver on those companies to crack down on it further.

On the environment, standards have dramatically risen, with the welcome return of wildlife to rivers that had been biologically dead since the industrial revolution. Otters rely on healthy rivers and were thought to be on the verge of being wiped out 30 years ago, yet they are now seen in every county in England.

The average domestic water bill is just over £1 a day—that is £1 a day to get all the water we need into the household, and all the sewage and waste water out. Although bills went up immediately after privatisation to help deal with decades of under-investment when the industry was owned and run by the Government, bills have stayed pretty much the same in real terms since 1994 after inflation, and are set to fall in real terms over the next few years. By 2025, bills will have fallen in real terms for a decade. The industry’s independent regulator Ofwat—which has just come in for some stick—has calculated that bills are £120 lower than they would have been if the combination of privatisation and tough independent regulation had not happened. Bills would have been £120 more per household if the industry had remained in public ownership.

On the subject of customer satisfaction, the hon. Member for Harrow West has said that people are terribly dissatisfied with their water companies. I went on the internet last night to look at what Ofwat, the Consumer Council for Water and individual water companies are saying, and customer satisfaction levels for water and sewerage services are around 90%. As politicians, would we not love to have a bit of that, particularly at the moment?

[Gareth Thomas]

I wonder whether the right hon. Gentleman would comment on two things. The first is the National Audit Office’s calculations, which suggest that there has been a 43% increase in real terms in water bills since privatisation, and the second is the significant difference in water prices between publicly owned Scottish Water and the privatised water companies in England, which I mentioned.

[Richard Benyon]

I do not know the circumstances in Scotland, so I can only speculate, but that is another country that is not short of water, as many parts of this country are. I just think that we need to look at what the customers are saying, and my impression is that customers are not shrinking violets. When I came into this House in 2005, my inbox was overflowing with complaints about Thames Water’s customer service, which made me realise that water is an absolute necessity of life. It is the first thing that people will complain about; it is something that we perhaps rely on too much, and use too much of, in the area of the country in which I live. However, the idea that customers are somehow not involved in and concerned with raising these issues is wrong. When they are asked about them, they give quite interesting responses.

[Rebecca Pow]

Will my right hon. Friend give way?

[Richard Benyon]

Let me just finish this point. A recent ComRes survey shows that 86% of customers trust their water company overall, with 89% trusting it to provide good-quality water and 87% trusting it to provide a reliable service. Those are levels of satisfaction that we as a political class can only dream of.

Will my hon. Friend the Member for Taunton Deane (Rebecca Pow) be very quick? I know that other Members want to speak.

[Rebecca Pow]

Does my right hon. Friend think that there is still a role for customers in reducing their water consumption? Water is a precious resource, and we are probably using more than we ought to.

[Richard Benyon]

Yes, we need to do more. When compared with other European countries, we are absolute laggards: we use much too much water, wash our cars with potable, drinking-quality water, and do all kinds of things that we should not. We have to change our lives, and I hope the Minister will be able to inform us about what will be happening in that area in the future.

On the topic of dividends, which is a key point, Ofwat says that each company’s licence requires it to declare or pay dividends

“only in accordance with a dividend policy which has been approved by its Board and which complies with both of the following principles.

The dividends declared or paid will not impair the ability of the company to finance the regulated water and sewerage business.

Under a system of incentive regulation, dividends reward efficiency and the management of economic risk.”

In the past, some companies have certainly played a bit fast and loose with those principles, and have developed levels of gearing that I, as a manager of a small business when I entered DEFRA, found quite eye-watering. However, the hon. Member for Harrow West does tend to pick on the bad players, and in talking about Thames Water, he was perhaps not talking about the Thames Water of today. He might have been talking about a model that applied under previous ownership, and I urge him to look more closely at what Thames Water is trying to achieve today.

We should encourage companies to look at employee share ownership schemes. That whole concept of finding ways to democratise capital is a huge, rich seam that we could collectively work on. Water companies are good places to encourage not just employees, but customers, to develop a higher interest in the ownership of that company, which is a better way to get more people involved without damaging any investment potential. I worry about Labour’s proposals for nationalisation right across the sector. It recently published its plans in a publication called “Clear Water”, but stopped short of explaining how the big challenges faced by the water industry, such as climate change and an increasing population, would be addressed by its substantial re-organisation of structures and ownerships. That publication makes no attempt to acknowledge the many improvements made since privatisation in 1989, let alone the further benefits such as falling bills, improved services and increased investment that companies have set out for the future.

If water is nationalised, it could seriously damage the service and quality of water in England. It could create a future in which decisions are driven primarily by short-term political expediency rather than the needs of customers, and in which the high levels of investment needed to improve services are not sustained. The result would be bad for customers, bad for the environment, and bad for the economy.

10:06

[John Grogan (Keighley) (Lab)]

It is a great pleasure to follow the right hon. Member for Newbury (Richard Benyon), who has displayed his knowledge of not just the water industry but Momentum rallies, Venezuela and so on. His remarks put our party and our Front Benchers on notice that we have to get the detail of this policy right. It is a very radical policy, and I support changes in the water industry, but we will hear many mentions of Venezuela and Momentum rallies in any election campaign in which this is an issue. It is also a great pleasure to follow my hon. Friend the Member for Harrow West (Gareth Thomas), who opened the debate in a typically urbane and knowledgeable way. He is a great loss to our Front Bench, and I hope that one day he will be a Minister again in a future Labour Government.

[Gareth Thomas]

A £5 note is on its way.

[John Grogan]

I do not know whether that is a “thank you” or a bet.

I will speak briefly, but perhaps a little explicitly. I think that part of my hon. Friend’s speech was directed at our party’s own Front Benchers. At the moment, we are consulting on our plans for the water industry, and I hope nothing is set in stone. In developing our policy, we need to learn as much from Scotland, Wales and—if I may say so—Northern Ireland as we do from experts who reside in the north of London. My hon. Friend referred to the Secretary of State for Environment, Food and Rural Affairs and the shadow Chancellor competing, about a year ago. It was last spring—spring was in the air—and one of those gentlemen said:

“Far too often, there is evidence that water companies—your water companies—have not been acting sufficiently in the public interest.”

It could have been either of them; in this instance, it was the Secretary of State. On that occasion, he was as cruel and as vehement in his speech about the water industry as he was about the Opposition last week, so this is an open goal for the Opposition.

I will not repeat the statistics that my hon. Friend referred to when opening the debate, except for the basic statistic that the privatised water industry has taken out about as much in dividends as it has put in as investment, so the idea that the privatised water industry has brought new investment into the industry that would not have been made otherwise is wrong. However, what should be a Labour Opposition’s policy on changing ownership? I hope that the shadow Minister, my hon. Friend the Member for Plymouth, Sutton and Devonport (Luke Pollard), can confirm that the submissions that my hon. Friend the Member for Harrow West has made will be considered very carefully in our current review of policy in this area.

I share with the right hon. Member for Newbury a love of employee share ownership schemes, particularly if they involve the whole of the company. I chaired such a scheme, which ran Hatfield, one of the last two deep mines in our industry. It has a different feel from any other form of capitalism. I hope we will consider that. I hope we will also consider the role of regulation, because any reference to external regulators seems to have gone from our paper. I do not want civil servants making all the decisions on the regulation of the water industry. It is a specialist role.

In Scotland, there is a publicly owned industry, but there is also an independent regulator. Incidentally, there is also competition in the business retail market in Scotland, which exists alongside public ownership of the industry. We have had some debate already about the precise form of ownership, but as I understand it, in Wales it is not employee-owned, but a not-for-profit model. I understand that the cost of debt for the Welsh industry is less than for any other industry in the public or private sector in the whole United Kingdom. I hope we learn from Wales, too.

If we are to take some of the water industry at least into the nationalised sector, why not let a thousand flowers bloom? I hope our Front Benchers will consider that. Why not have some on the model that my hon. Friend the Member for Harrow West mentioned and some where there is demand in the public sector? That would be one way of doing it, but it will be more costly to have all the water industry in the nationalised sector, as compared with my hon. Friend’s suggestion. We have to face up to the question of compensation. It is not good enough for an academic in north London to refer to how the banks were taken in distress into the public sector. Certainly they were, but they had virtually no value in their assets, and that would not be the case with the water industry.

Some of the water industry shares are owned by the workers of the water industry, and some are owned by the pensioners. I have had an interesting dialogue with an organisation called We Own It, which is contributing to the field. When I asked it about this question, it said—I paraphrase—that it did not really believe in compensation, but that it recognised that workers and pensioners somehow have to be looked after. We have to do better than that if we are to stand up with a general election campaign.

[Richard Benyon]

The hon. Gentleman makes a very good point. Polls are often cited to say that an enormous percentage of people want to take the companies back into national ownership. Of course, it depends on which way the question is asked. When it is phrased, “In order to do that, the Government would have to spend £90 billion of taxpayers’ money. Do you not think that could be better spent on other areas of the public sector?”, they nearly always agree. It depends on the question.

[John Grogan]

It does, but obviously if a Labour Government went down that road, they would then have assets on the public sector books to match that spend, as the right hon. Gentleman is well aware. The arguments are not black and white, as he admitted in his speech. We do have to think out the policy very carefully. I am a great believer in radical policies. I voted from the Back Benches in favour of some of them under the last Labour Government when those were perhaps not the flavour of the month. We have to get it right.

I will mention one other issue and then finish. The Environment, Food and Rural Affairs Committee, of which I am a member, did a report on the water industry. I commend some of the detail of that, and one detail in particular. The overflows from combined sewers owned by the water industry are a national disgrace. We have cleaned up our beaches in the past two or three decades, largely, dare I say it, because of European regulation.

We now need to clean up our rivers. Ilkley in my constituency is a great tourist destination, with swimmers in the Wharfe all the time. It connects downstream with the constituency of my hon. Friend the Member for Leeds North West (Alex Sobel) at Otley. We should not have sewage being discharged on a very regular basis. While I understand that various other things are going on in Parliament next Tuesday, I will be concentrating on the afternoon drop-in session of the chief executive of Ofwat and the Environment Agency. I hope they will address the issue of sewage and commit to cleaning up our rivers, just as we have cleaned up our beaches.

10:14

[Darren Jones (Bristol North West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Gray. I congratulate my hon. Friend the Member for Harrow West (Gareth Thomas) on securing this important debate and on making the important distinction between co-operatives and mutualisation, and industries nationalised via the state. That distinction is often missed in these debates.

I will talk about the future of the water industry from the perspective of the fourth industrial revolution and the digitisation of our networks. On that basis, I declare my interests in relation to the various works I do in the technology sector, as set out in the Register of Members’ Financial Interests.

Last Friday, I met with the team at Bristol Water, which supplies drinking water to more than a million customers, including all of my constituents in Bristol North West. I had expected the meeting to be run of the mill, but I was somewhat surprised, because Bristol Water turned out to be far more advanced in its digitisation of the water network than many other water utility companies.

Many Members will know that British industry is lagging behind in the digitisation of our businesses, which is a priority if we are to unlock the productivity challenge in the British economy and help meet our climate change objectives. At Bristol Water, sensors have been installed across the entire network and big data analytics have been deployed. Those are new words for many sections of the water industry. In Bristol, we get our water from lakes and reservoirs around the Mendip hills and from the River Severn via the Gloucester and Sharpness canal. Water from the River Severn needs to be pumped into Bristol, which requires large amounts of energy. Water from the Mendips requires less energy due to gravity. Bringing together data on real-time energy prices with real-time water consumption requirements has allowed Bristol Water to build algorithms that decide when to pump water from where to where and at what time, helping to reduce over-pumping and generating significant savings on its electricity bill.

Those efficiency savings will allow Bristol Water, subject to Ofwat’s agreement, to pass on price reductions to Bristol Water customers, which I know many of my constituents will welcome. As we have heard from my hon. Friends, that is an unusual thing from a utility company in the past few years. I am sure Bristol Water itself would say that it is a new positive turn, as it was in something of a bother with Ofwat a few years ago for not being able to agree price rises. I welcome that positive U-turn from Bristol Water for my constituents.

In a very Bristol way, Bristol Water brought in sensors, big data analytics and algorithms through collaboration. It set up a start-up incubator in Bristol where, for example, a big data entrepreneur, Hackett Consulting, has been able to go from being a Bristol start-up of one to a scale-up business from the things it has learned at Bristol Water. It is now able to sell that as a service to other industries across the country.

Beyond the algorithms, sensors have been installed across the network, meaning that leakages can be dealt with more efficiently and accurately. Instead of waiting for someone to call up and say, “There has been a leak of water at the end of the street”, field engineers’ iPads bleep at them when there are leaks, and they know exactly where to go to try to fix them. That reduces the number of customers affected by the closing off of pipes and decreases the time it takes to fix the leak.

Reduced energy consumption and better management of leaks, alongside helping customers to reduce their water consumption, all make extremely valuable contributions to our climate change objectives. As a member of the Science and Technology Committee, I have been troubled to hear from Lord Deben, the chairman of the Climate Change Committee, about how far we are falling behind as a country in meeting our climate change objectives.

The Government must take the easy wins to ensure we get back on track to decarbonising our economy. Bristol Water’s approach seems to be an important and useful way to do that. I was therefore thrilled to hear about the work being undertaken in my constituency. I encourage the Government, Ofwat and other water companies to look at how we have digitised the network to improve efficiency and to contribute to decarbonising the economy in Bristol. I hope the Minister will tell the House how she is helping regulators and water companies to move in that important direction.

10:18

[Alex Sobel (Leeds North West) (Lab/Co-op)]

It is a pleasure to serve under your chairship, Mr Gray. First, I thank my hon. Friend from my namesake constituency, the Member for Bristol North West (Darren Jones). He gave a great technical speech and we all learned a lot about how we can improve the data analytics and dynamics of the water industry.

I also thank my hon. Friend the Member for Keighley (John Grogan), who made a number of important points on which I will elaborate. Most informatively, he said that we should not rely on expert academics and opinions from north London. Perhaps in this debate we will hear some expert advice from west Yorkshire that the Labour Front-Bench spokesman and the Minister can act on. Lastly, I thank my hon. Friend the Member for Harrow West (Gareth Thomas) for securing this debate. He chairs the Co-operative Party with some panache. We have been waiting for this debate for some time, and I declare an interest as a Co-operative Member of Parliament.

I want to commend the publicly-owned Scottish Water, which, over the past 16 years, has managed to save consumers an average £42 a year when compared with English consumers, and is ranked as one of the UK’s most trusted companies. I also want to highlight the success of Welsh Water, as many others have. Glas Cymru, established under the then Labour Government, has managed to return £180 million to customers in the form of customer dividends, while providing £10 million to assist low-income families and individuals by offering them lower tariffs.

An increasing body of support shows that the Tories’ ideological obsession with privatisation, which the right hon. Member for Newbury (Richard Benyon) is a great exponent of, has done nothing to improve services and has only raised the cost to consumers. Water is water, whether you are English, Welsh, Scottish or Irish. But under the English privatised system it is more costly, even though both Scotland and Wales have very difficult topography and are sparsely populated in large areas.

When English people turn on their taps, they pour money down the drain—except that it is not down the drain, but into the pockets of the wealthy and into the wealth funds of foreign investors in countries such as Canada, Australia and Singapore. That makes up the £6.5 billion of dividends paid out to shareholders in the past five years: the same amount of money that goes into the pockets of the people of Wales. Do we really think that is good enough? Do we really agree that in our Union there should be a two-tier system for our most fundamental services? And do we think that an individual or family should pay more for water because they live in one part of the Union and not another?

The ideological mindset of those obsessed with the privatisation agenda is such that this Government cannot see the evidence in front of their eyes. Privatisation does not necessarily, as promised—

[Richard Benyon]

Will the hon. Gentleman give way?

[Alex Sobel]

I give way to the right hon. Gentleman, who I am sure will defend privatisation.

[Richard Benyon]

I am very fond of the hon. Gentleman. He and I agree on other things, but I cannot resist responding to being attacked for being ideological when I feel I am combating an ideology here. We have a system that works and it is being attacked by ideology.

On another point, of course 380 or 400 quid a year is a lot of money to people on low incomes and we have systems to support them, but for people on average incomes, compared with other costs in their lives, getting water that is 99% drinkable and of good quality and getting sewage away for about £1 a day is quite a good deal for most people, particularly if we protect the poor.

[Alex Sobel]

I was not completely embodying all the faults in the right hon. Gentleman’s arguments. To repeat his point, it is good value, but why is it better value in Scotland and Wales than it is in England? We should surely aim for best value.

At this crucial time, when living standards across the UK are being decimated and individuals and families are struggling to stay afloat, we need to reassert both sense and our fundamental obligation to the people we represent. We need to assert that the market has limits, that not everything in this world should be up for grabs, and that privatisation does not necessarily equal value for money. The market has its place as a means of exchange for goods and services, but a basic selling principle of marketisation is the offer of genuine choice, lower costs and better services. I am a customer of Yorkshire Water. The only way I can get Harrogate water is to buy it in a bottle. I cannot get it through the tap and cannot change provider as I can in other utility markets. None of those things apply to the case of England’s regional water companies, so I suggest it is time to look at the example of our Welsh and Scottish compatriots and to change our—literally—leaking system.

With no competition and no realistic prospect of withdrawing consumption, water bills can be best conceptualised as a tax, because everybody needs to have water through the tap. Indeed, other systems, such as that in Scotland, account for water within council tax. It is not a matter of theory, but of practice in Scotland. Under our system, however, there is no differentiation between households. Our flat, regressive tax hits those on low and medium incomes hardest, particularly those on medium incomes who have no redress. Shareholders skim a dividend from UK taxpayers who have no choice but to purchase water from monopolistic regional providers.

We have only to look to Welsh Water, which operates on a not-for-profit basis within the private system, to see how well a mutual approach can work. The company serves 3 million people every day and has the strongest credit rating in the industry, as we have heard from my hon. Friends, as well as sector-leading levels of customer satisfaction. Its success does not benefit a few wealthy shareholders. As I have said, £180 million has been returned to customers.

The idea that a select few own and profit from something that falls literally from the sky—something that makes up 70% of our bodies—is absurd. The arguments for privatisation of our most basic assets and infrastructure have been lost. It is not about competition, which implies choice. No, it is the same faith in the market that means people in this country pay through the nose for their gas, electricity and train travel, often receiving a worse service where it is privatised than where it is in the public sector.

Last summer, as my hon. Friend the Member for Keighley mentioned, Yorkshire Water allowed sewage to flow through the River Wharfe, which starts in his constituency and flows right through mine in Otley and Pool. As was said, swimmers in the River Wharfe had to swim through the sewage. Private companies do not face the level of accountability that the system demands.

For mutualisation to happen, the water companies must first be taken into state ownership and the shareholders compensated, and then the companies can be put into the hands of consumers. Our basic infrastructure can be truly owned by the public without the need for direct state ownership, which MPs of all parties should support. Then we come to the question of governance. Wales has a company limited by guarantee. It has no shareholders, so its corporate governance functions are the responsibility of its board, which has a majority of independent non- executive directors, and its members, around 70 individuals, are appointed following a process undertaken by an independent membership selection panel. Those 70 people are the customers: the people of Wales.

There are alternative forms of governance, with a water company in a defined geography, as we have in England, being a good fit for a consumers’ co-operative model. Consumers’ co-operatives utilise the co-operative principle of democratic member control—or, as we call it in the Labour party, one member, one vote. Most consumers’ co-operatives have a board of directors elected directly by and from the membership. Unfortunately, water in England drips with right-wing ideology, draining the public purse and rinsing out our most valuable resources, while drowning customers in debt. That money-making monopoly and the two-tier UK system must end. We must instead look west to Wales and replicate a model that brings water—the most basic of human needs—back into the hands of the public.

10:27

[Deidre Brock (Edinburgh North and Leith) (SNP)]

It is a pleasure to serve under your chairship, Mr Gray. I do not have long, so I cannot dwell too much on some of the valuable contributions made by hon. Members, but I commend the hon. Member for Harrow West (Gareth Thomas) for securing this debate. He raised very important points, and I am delighted that they are being addressed in this forum. There was quite a contrast between some of his comments and those of the right hon. Member for Newbury (Richard Benyon), who painted a glowing picture of water privatisation that I find it difficult to recognise.

The right hon. Member for Newbury admitted that he knew little of what was happening in Scotland, which is a surprising admission for a former water Minister, who should surely be prepared to learn best practice from wherever it can be found. After all, we are only up the road, geographically speaking. I hope he will be interested to hear some details in my speech. He also spoke of water being a necessity of life, and I wholeheartedly agree. It is far too important to be subject to a privatised system that gives, as we have heard, a worse service, and that seems to be largely driven by right-wing ideology, rather than what is best for customers.

There has been a lot of enthusiastic talk in this place about taking back control. That sounds strange coming from people who are, by and large, wholehearted supporters of stripping democratically elected Governments of control over the delivery of public resources, instead preferring essential services to be fractured and put into the hands of the private sector. Taking back control of England’s water supplies is an argument that makes a lot of sense to me. People are rightly scunnered by a system that services debt and pays disproportionate dividends through increasing bills for customers. There should be an outcry over the findings of the recent Greenwich University research, which suggested that a staggering £56 billion in dividends was funded through £51 billion, or potentially more, in debts.

Supporters of the privatisation cannot even claim real competition benefits, with most of the water companies operating as regional monopolies. The leakiest pipe in England’s domestic water supply is seemingly one that drains money away to a private stream. A public company, run for the public good, is the best way to end that scandalous rip-off. I welcome the contribution of the campaign led by We Own It to make that happen.

Luckily, as has been mentioned, there is a model close to hand that is working very well—I appreciate the hon. Member for Harrow West mentioning it often—which the UK Government would be very welcome to emulate. As with so many other public services being delivered under devolved Government control, such as the running of prisons or the procurement of NHS contracts, Scotland has chosen a more sensible path wherever it has the powers to do so.

We did not privatise domestic supplies of water, and Scottish Water was established in 2002 as a publicly owned company answerable to Scottish Ministers. Under the Scottish Government’s watch, there has been a focus on driving up standards and keeping charges affordable. We are now reaping the benefits in drinking water quality, environmental performance and customer service.

[Richard Benyon]

One thing I know about Scottish Water is that its leakage level is way above that of the rest of the United Kingdom—I think just shy of 40% of water is lost, compared with about a fifth in England. I wonder whether the hon. Lady would like to comment on that.

[Deidre Brock]

It is interesting. We are, of course, spending considerable amounts of money on addressing that. As I understand it, and I will speak about this later, our service performance is now comparable to the leading UK water companies; on some measures, we outperform them. As we continue to invest, water loss will be driven down. English water companies are having to resort to debt; that is what their investment in infrastructure is largely based on.

[Gareth Thomas]

Far be it from me to help the Scottish National party out, but as I understand it, from analysis done by Greenwich University, the levels of leakage per kilometre in Scotland are better than for many English water companies, and are certainly in line with the average at worst.

[Deidre Brock]

I was quite surprised by the contribution made by the right hon. Member for Newbury, as that is not my understanding. Perhaps I should quote the Scottish Water Commission, which noted in 2013:

“It is now more than a decade since Scottish Water was established. In that time the company has transformed itself as an organisation. It has caught up with the top performing companies in England and Wales on cost efficiency and levels of service and has regularly reached—and outperformed—its targets.”

I expect more of that in the future.

As Greenwich University research found,

“the public-owned sector in Scotland delivers the service just as efficiently, albeit at a lower cost to consumers.”

In Scotland, bills are 2% lower in real terms than they were 18 years ago, while over the equivalent period in England they increased by 13%. Drinking water continues to be at record levels of compliance, and there were no failing waste water treatment works in 2017, compared with more than 70 in 2002.

Scottish Water has reduced energy consumption and increased renewable power generation. It has cut carbon emissions by more than 30% since it first reported in 2006-07. Driven by the Scottish Government’s ambitious renewable heat and carbon reduction targets, the amount of renewable energy the company generates is now more than double its electricity consumption. Ageing facilities are being replaced through major investment in projects such as Glencorse water treatment works outside Edinburgh. That energy-efficient plant was delivered on schedule and under budget, and now supplies cleaner, safer water to around half a million people in the capital, while having sustainability at the core of its operations. A hydro-turbine provides almost half the facility’s own energy needs, helping to keep water charges low for customers.

Scottish Water’s service performance, as I mentioned, is now comparable with that of the leading UK water companies; on some measures, it outperforms them, while still keeping the bills down. Even where it can be said that the leading English companies perform better, at the current pace of investment by Scottish Water, and without the spend on dividends, that position is set to change over the next decade.

The myth that private profiteers are required to deliver things better has been dispelled. Indeed, the We Own It campaign points to the move towards public ownership internationally, with 235 cities in 37 countries taking water into public ownership in the last 15 years. Public ownership of public water supplies is already working in Scotland. That may seem clear, but it is worth reminding the Labour party of that fact, given that the Scottish leader, Richard Leonard, argued recently that they should be taken back into public hands. There was a wee bit of confusion there, but I will certainly draw his attention to helpful comments made by his colleagues down here today.

Scotland is rightly famous for its water. It is a reliable natural asset that serves our health, our wellbeing, our environment and our economy well. It is right that public supplies of domestic water have remained a public asset, delivered in the public interest. It should be so in England too.

10:30

[Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)]

I congratulate my hon. Friend the Member for Harrow West (Gareth Thomas). As a Labour and Co-operative Member of Parliament, I listened intently to what he had to say with great interest and much nodding. He has been a real champion of the Co-operative movement over many years. My hon. Friend the Member for Leeds North West (Alex Sobel) and I, as young Co-operative MPs in this place, have a lot to learn about the championing of the Co-operative cause from the Obi-Wan Kenobi of the Co-op party— my hon. Friend the Member for Harrow West.

This debate has long been due. As someone who has worked for a water company, I believe we do not talk enough about water policy in this place; we need to talk more about it if we are to meet our Paris climate change commitments to create a fundamentally sustainable water industry, in terms of water usage, the chemicals used in it, and the contribution to the natural world.

Clearly, some serious and genuine concerns are being raised by members of the public and Opposition Members about the way that our privatised water system is run. The privatisation of water has not worked to deliver the benefits that it should in 2019. Too much money is being paid out in dividends and not enough investment is being made in fixing leaks and reducing water usage. Not enough is being spent on climate change mitigation or fundamentally fixing the broken system. We need better water resilience and better value for money for our customers.

The water companies are only part of that. My hon. Friend the Member for Keighley (John Grogan) was right when he talked about the need to look at regulation as well. I am certain that he and the right hon. Member for Newbury (Richard Benyon) will read carefully the water policies that I hope to publish, as Labour’s shadow water Minister, in the next couple of months. They will describe how we should deal with the fact that we need a better, reformed system, and additional policy levers to address climate change.

[Richard Benyon]

Can the hon. Gentleman give us a taster of those policies by saying whether he will compensate shareholders for the £90 billion that they own, and where he will find the money?

[Luke Pollard]

I thank the right hon. Gentleman for that. As his intervention came only on page 1 of my 12-page speech, perhaps he is pre-empting some of it. I suggest that he looks at the proposals that the shadow Chancellor, my right hon. Friend the Member for Hayes and Harlington (John McDonnell), and the shadow Business Secretary, my hon. Friend the Member for Salford and Eccles (Rebecca Long Bailey), have published that talk about replacing the share capital ownership with bonds. There are already details of that available.

It is important to consider the debate in context, because large parts of the UK, as well as the rest of the world, are experiencing a water crisis. We like to think of England as a notoriously damp place where water is plentiful, but that is not the case for large parts of the country. We need to recognise that England is in fact in the lower quartile globally of available water resource per capita. More people are living in areas of water stress, and more population growth and house building is planned in areas of water stress—especially in the east of England, London and the south-east of England; we will need to not only reduce water use but transfer more water there. That suggests that we need a different system to handle some of those challenges.

As my hon. Friend the Member for Keighley hinted, droughts cause hundreds of millions of pounds of damage, and have led to hundreds of thousands of fish dying from over-abstraction and to serious decline in our wetland species. Sewage has also been pumped into our rivers. It is worth saying that thankfully that is less common than it was. Indeed, when I was a boy growing up in the west country, at one of our glorious beaches, swimming past floating turds was commonplace. It is not anymore, thanks to the investment that has been made, but more needs to be done on that with regard to our rivers. [Interruption.] The right hon. Member for Newbury throws his hands in the air, but bill payers in the far south-west know about that investment, because we paid for it with what for many years were the highest bills in the entire country—not just a wee bit higher, but double the nearest amount. We have paid for what has gone out in dividends, as well as for what has gone into the system.

We need better water resilience, because there is simply more demand. The latest statistics show that there will be 4.1 million more people in the south-east by 2045, and by 2080 there could be an extra 10 million. We need to think about how to deal with the amount of water used, where it comes from and how it is treated, to ensure that we minimise the effect on our climate. We are also facing increased flooding. That context is really important; it is why we need more debates about the structure and operation of our water industry, and why today’s debate is so important.

I have to say that we have seen moves in the right direction under this Government, but they frequently come from DEFRA press office announcements rather than from policies being fully implemented. I do not think that Ministers are cranking the handle sufficiently to achieve the change that could be delivered to our water industry if we showed greater concern about pricing and about investment in climate change, flood and drought mitigation. We know that more can be done, because in the latest round of price reviews and business plans, companies have published proposals that hint at a slow move in the right direction. One such proposal, which I am sure my hon. Friend the Member for Harrow West will have seen, is in the south-west: South West Water has proposed an element of mutual shareholding as part of its wider ownership base. If it can be done in the west country, it can be done elsewhere, so that could be encouraged as part of the wider debate.

Labour’s water proposals are pretty clear—and pretty popular, as it happens. Some companies have engaged in good practice, but not enough; as the right hon. Member for Newbury says, there are bad players and bad behaviour in our industry. Thames Water is the poster child for such bad behaviour, but sadly it is not the only one. We need better regulation and better ownership, so Labour has set out plans to take our water companies back into public ownership.

I pay tribute to my right hon. Friend the Member for Hayes and Harlington and my hon. Friend the Member for Salford and Eccles for putting together Labour’s clear water proposals, which set out our plan for public ownership of water companies. As our September 2018 booklet “The Green Transformation” states,

“Labour will…bring water back into democratic public ownership, lowering bills and providing levels of investment needed to drastically reduce leakage and tackle major sewage pollution incidents, which are still rising.”

I absolutely agree with the right hon. Member for Newbury that we need to guarantee the investment stream. There is a role for investment in our water companies, but our proposal is that the role of private ownership should come to an end.

Our “Clear Water” plan states:

“To ensure maximum openness, transparency and scrutiny, RWA boards will have a statutory duty to make information widely available and hold monthly public meetings in different locations each month. Meetings will also be broadcast live on the internet and all papers will be made public.”

Many good lessons can be learned from the operation of mutuals about how customers and employees can be brought into running better businesses. My hon. Friend the Member for Leeds North West said it well: we need better value from our water industry. We also need to look at regulatory responsibility. Our plan further states:

“Regulatory responsibility…will be absorbed into Defra, which will form a new public regulatory system in the form of a National Water Agency responsible for economic and performance standards and capacity-building.”

As we get closer to publishing further details, more information will become available.

Labour is suggesting that our new water system needs to consider sustainability and the public interest, not just private profit. The shadow DEFRA team is exploring what other water policies should accompany our proposal, so that we can tackle climate change, flooding, water scarcity, water usage, water pollution from plastics and microplastics, lead pipes—an issue of particular interest in some parts of England—and water affordability. When the next election comes—many suspect that that will be very soon—our manifesto will offer a full suite of policies not only on public ownership, but on a better system.

I am aware that the Minister needs to sum up soon. This has been a good debate, and I hope there will be many more to come as we make our case. The hon. Member for Taunton Deane (Rebecca Pow), who is no longer in her place, spoke very well about the need to address personal water consumption—one of the reasons I carry around my own water bottle, rather than using the House of Commons’s supply of bottled water. Indeed, it seems ironic that in a debate about the water industry, we are still using bottled water in this place, so perhaps the House authorities could look at that. We can all do things to address the challenge in our water industry. Ownership, management and our own consumption are all part of the mix.

10:45

[The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dr Thérèse Coffey)]

It is a pleasure to serve under your chairmanship, Mr Gray. I congratulate the hon. Member for Harrow West (Gareth Thomas) on securing this debate through the Backbench Business Committee, and I thank Mr Deputy Speaker for selecting it.

The hon. Gentleman and many others raised a huge number of points, which I intend to address. However, I think I will have to edit my reply to add a few facts about dividend payments, leakage and other matters, because there seems to be a complete lack of understanding and an attempt to use averages everywhere. I appreciate that that may be beneficial at times, but we need to get into the granularity of these points as well.

Water is key to life, which is why it features so prominently in our 25-year environment plan. The long-term view for the industry is clear, including on matters of supply, leakage, demand, consumption, environment and the necessary investment in infrastructure. Those matters are well set out, and companies have to consider the 25-year environment plan when producing their own future plans.

The Government support a private water sector model, underpinned by strong, independent economic regulation. It has been 30 years since the privatisation of the water industry in England and Wales, but the industry has continued to evolve and has always been underpinned by regulation through Ofwat—particularly as the provision of water, unlike that of other utilities, was not opened up to the market for consumers. We have introduced competition for business customers, but all the evidence that I have seen as water Minister predicts that opening up the market causes bills to go up rather than down, at least initially. One of the reasons we support the model as it is—which is not to say that policy may not change in future—is to ensure that Ofwat continues to effectively challenge water companies. Back in 2009, Welsh Water was challenged by the regulator to reduce its bills, and indeed it did—it reduced its operating costs by 20% to make that happen.

Since privatisation, approximately £140 billion has been invested in infrastructure. That is equivalent to £5 billion per year—almost double the level prior to privatisation. Customer satisfaction levels have risen to about 90% and customers are now five times less likely to suffer interruptions to their supply, eight times less likely to suffer from sewer flooding, and 100 times less likely to experience low flow pressure than in the days when water was a nationalised industry. As my right hon. Friend the Member for Newbury (Richard Benyon) points out, they pay just over £1 a day on average for water to be delivered, treated and returned to the environment in a good state.

I recognise that bills increased significantly, especially in the first 10 years after privatisation. A lot of that was to gather the necessary investment. Average bills have remained flat over the past two decades, however, and are planned to fall by 4% in England by 2025. Some companies, such as Yorkshire Water, are keen to increase prices because they want to invest considerably more from an environmental angle, but that is a decision for Ofwat to agree or disagree to.

We are not complacent. I am very conscious that too much water still leaks out from our system. Significant investment is needed to improve the resilience of our water supply, and corporate and financial behaviours need reform. We have therefore challenged and will keep challenging the industry to continue to improve for customers and for the environment, as well as for shareholder returns.

People talk about dividends, but I am very conscious that the average dividend paid out has fallen: in 2008-09, under a Labour Government, I think it was £2.5 billion, whereas in the past year it was less than £1 billion. We are often accused of being ideological, but—dare I say it—when Labour was in charge, returns to shareholders were a lot more. We have taken action against that.

The hon. Member for Harrow West focused in particular on changing the ownership model of water companies. Although he did not seek to suggest that we nationalise the water industry, he is clearly a supporter of social enterprise and mutual organisations. I am very conscious of the experience he has had with Thames Water, particularly on dividends paid out and with the former owners. The owners have changed and I believe there has been a significant step change in approach, which is most welcome.

A lot has been said about what is happening in Wales. Following the original privatisation, the company covering Wales, which was called Hyder, had expanded into other sectors. After the new Labour Government’s windfall tax in the late 1990s—and other economic challenges—the company effectively collapsed and was acquired by Western Power Distribution. That focused the business and it sold the water division to the two founders of Glas Cymru for £1, with £1.85 billion of debt, and that resulted in Welsh Water.

As has been pointed out, the key difference for that company was that it was created by a small number of people. It does not have shareholders but is limited by guarantee and funded by the bond market, so it still has external financing. One of the ways in which it has adjusted its gearing is to hold very high cash reserves, which helps reduce borrowing. However, I do not think that we necessarily get better value for customers just through every provider having a not-for-profit system. I think it was the hon. Member for Islwyn (Chris Evans) who complained to Ofwat a few years ago that customers across the border in Herefordshire, who were supplied by Severn Trent, were paying a lot less for their water bills than people in Wales. While I am conscious that there is not the same pressure on water supply, I am aware that there are particular challenges in the network when it comes to sewerage. It is important to recognise the different catchments, river basins and sources of water on which different water companies rely. Some rely more on water that is gifted from the clouds; others, such as those in the east of England, extract more water. Getting that balance on what is needed right will vary around the country.

As the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard) was correct to point out, traditionally South West Water has had the largest bills, which is a reflection of the amount of ongoing investment that that area still needs.

[Richard Benyon]

The Minister is making an extremely good point. People in the south-west had been pleading for years about the cost of cleaning up beaches and other infrastructure problems, but of course the Labour Government ignored those pleas. It was the coalition Government who got a £50 reduction for every single bill in the west country, which was extremely valued by water customers in the south-west.

[Dr Coffey]

My right hon. Friend is correct, and that has been considered. The balance is very important. However, we need to continue to challenge South West Water to make sure its investment is effective. The hon. Member for Keighley (John Grogan) talked about the challenges on sewage, and there are particular challenges in the south-west on aspects of combined overflows. We continue to press the company to make sure that it is maximising the investment on improvements.

[Gareth Thomas]

Will the Minister comment on two points? I mentioned in an earlier intervention that, since Scottish Water was set up in its current form, the price of water is 2% lower in real terms, while water bills in England have gone up by an average of 13% in real terms. Secondly, in the current price review, does the Minister intend to require Ofwat to significantly lower the cost of capital, which is included in the amount that Ofwat allows water companies to charge?

[Dr Coffey]

I am not aware that I have the power to direct Ofwat on exactly how it comes up with its cost of capital. My understanding is that it has reduced what it assumes to be appropriate for the weighted average cost of capital, but I expect the price review to be published shortly. I am due a briefing from Ofwat within the next week on that particular issue.

On prices, Severn Trent’s average bill is still lower than that of Scottish Water. I want to bring some facts into the debate. The need for ongoing investment in the water industry will vary around the country, as will what water companies put forward as necessary for the changes we require.

Ofwat has highlighted the benefit of modernising licence modification powers, after the Secretary of State asked it to look into what further powers it felt it needed. We are currently consulting publicly on that proposal and will make a final decision after the consultation. If we decide to proceed, we hope to bring that forward in a legislative vehicle in the next Session.

The Government’s strategic policy statement in 2017 set out the need to improve protections for vulnerable customers. To help water companies achieve that, the Government introduced data-sharing provisions in the Digital Economy Act 2017 to better identify those who may need help with their bills. Companies have responded positively to that challenge in their draft business plans. Between 2020 and 2025, they have pledged to reduce dividends and bills, increase investment to £50 billion, improve transparency on executive pay and increase the uptake of social tariffs by nearly 90%. Welsh Water’s level of investment is nowhere near as high as that of the average water company in England.

I am pleased that many water companies have set out how they will share profits with customers either directly or through community benefit schemes. They have set challenging targets to extend their support to vulnerable customers, including a commitment from Northumbrian Water and South West Water to eradicate water poverty in their regions.

The industry plans to reduce leakage by 16% by 2025 and has set the ambitious target of a 50% reduction by 2050. Companies also plan to reduce individual water use by 2045, targeting 83% metering penetration and a per capita consumption of 123 litres, which would be a significant improvement on today’s average of 141 litres in England. We will hold them to account on those plans and we will take action ourselves. In our water conservation report, which was published just before Christmas, I said that we would carry out a call for evidence and a consultation on the measures we can take to reduce demand.

Even though we expect that leakage will fall and demand will drop, water supply still needs to be increased. To ensure key infrastructure can be delivered on time, we are consulting on a draft national policy statement for water resources infrastructure, which will streamline the planning process for new large water infrastructure projects, such as reservoirs, desalination plants and water transfers. We expect companies to collaborate with one another on regional water resource plans that transcend company boundaries, to identify the most cost-effective solutions for each region and for the nation. That includes water companies considering other water users in their plans and working together where appropriate. The Environment Agency’s national framework for water resources will support that work.

It is important to recognise the regulators of the water industry, namely the Drinking Water Inspectorate, the Environment Agency and DEFRA, which itself continues to regulate on a small number of matters. They all have good powers to protect consumers and the environment.

The work of the Consumer Council for Water has been referred to. As the consumer body, its role is to hold the water companies to account on behalf of customers. It acts for both residential and business customers. We want to see a water industry that puts customers at the heart of the business, contributes to society and protects our precious natural environment. We will continue to push the sector and to hold it to account, to ensure that it achieves those objectives.

10:59

[Gareth Thomas]

I am grateful to the Backbench Business Committee, to you, Mr Gray, for chairing the debate, and to my hon. Friends and other hon. Members for taking the time to take part. I think the mutual route to democratic public ownership offers significant advantages over the current privatised system. Customers and employees would be in charge of the very services they depend on. There would be no cost to the taxpayer involved in the change of ownership. Profits would be reinvested in the business and continued borrowing for investment would be feasible. On that basis, this has been a very useful debate.

Question put and agreed to.

Resolved,

That this House has considered the future of the water industry in England and Wales.

Cashless Transactions

Tuesday 22nd January 2019 Westminster Hall

09:00

[Matt Warman (Boston and Skegness) (Con)]

I beg to move,

That this House has considered cashless transactions.

It is a pleasure to serve under your chairmanship in a debate that is already better attended than I had suspected it might be, Mr Gray. It used to be said that cash is king, but in reality that is no longer the case. Politicians used to talk of the pound in your pocket, but today just three out of 10 transactions use cash, whether coins or notes; in 2008, it was six out of 10. The Access to Cash report sponsored by, but independent of, LINK, estimates that just one in 10 transactions will use cash by 2033. I do not intend to call for that to be slowed down, but rather to be sped up. Although 98% of adults in the UK have a debit card and the opportunity to use a cashless or digital transaction, some 46% of them still do not like the idea of a cashless economy, even though there is clear evidence that the vast majority of people would be better off in a cashless world.

The so-called poverty premium costs each of our constituents hundreds of pounds a year. Those hit hardest by using cash and sticking to the tried-and-tested methods are disabled people who live in medium-size market towns, where it is estimated to cost over £500 a year not to take advantage of the better tariffs and so forth available online. There is a huge premium on people who are not taking full advantage of the latest digital technology and contactless cards.

There are 2.2 million people who say that they rely day to day on cash. Only 2.5% of those in higher income groups say they do, compared with 15% of those earning under £10,000 a year. There is a clear sense that the greater number of people relying on cash in their everyday life would benefit most from not using it so much. That is why I am calling on the Minister to speed up the Government’s bid to increase the use of the cashless economy, which has not yet yielded the results that we might want to see.

[Jim Shannon (Strangford) (DUP)]

I thank the hon. Gentleman for bringing this issue to Westminster Hall; I am very aware of it in my rural constituency. Does he agree that it is essential that we ensure the viability of cash transactions due to continuing cyber-security issues? This is especially true in the case of rural areas such as my constituency of Strangford, where people cannot rely on the availability of digital means at all times. In other words, cash is king in my constituency and it cannot be ignored.

[Matt Warman]

The hon. Gentleman is currently right, but we will all be better off if we hasten the transition, so that people do not have to rely on cash and all of our constituents can use more secure and efficient digital means, whether they live in rural areas such as my constituency and his, or in big cities.

[Darren Jones (Bristol North West) (Lab)]

I declare my interest in this issue. Does the hon. Gentleman agree that the increasing amount of online fraudware—for example, one of my constituents was defrauded of £40,000 by telephone fraud using her online banking—and the use of crypto-assets for online cashless transactions means that we need more regulation from the Government, so that consumers can trust the system to enforce the rules? Do we not need to give police more powers to tackle those who use cashless transactions for criminal purposes?

[Matt Warman]

I completely agree. Much of this is about trust. It is true, as I said, that 46% of people do not trust a cashless society, whether that involves crypto-currencies—although I suspect most of those 46% are not wholly familiar with every detail of that—or simply contactless cards. Part of this is about regulation; much of it is about trust.

It is worth examining in a small amount of detail why people want to continue to use cash. About 20% say it makes them feel more in control, 16% say it helps them with budgeting, and 3% want to hide their guilty pleasures—perhaps we had best not dwell on those. Some 5% do not trust online transactions at all, and 3% just do not trust the banks. That is a real issue if this trend is to be mitigated for vulnerable groups where needed and if the broader society is to take advantage of cashless transactions.

Countries such as Sweden already have twice the level of cashless transactions as we have in the UK, and their authorities have taken conscious action to slow down the pace of cashless-ising, to ensure that vulnerable groups are not left behind. It is also reported that 4,000 people in Sweden have had chips inserted under their skin, so that they do not even have to use cards—I am not sure that I would go quite that far, although I know the Minister might want to consider it as a personal experiment.

We are at risk of ending up with two cultures: those who embrace a wholly digital way of living, and those who do not. There has been an 8.5% decline in the use of ATMs in London, but just a 2% decline in Northern Ireland and a 2.9% decline in my area of the east midlands. There are very different views on what is important for people and on the pace of change.

It is instructive to look at what people use cash for. Figures from the LINK report show that just 13% of people pay their rent in cash—disproportionately those on lower incomes. Some 85% said that they use cash to pay for taxis, which is a particularly instructive example. That is obviously a nationwide figure rather than a conversation about London taxis, on which we could perhaps spend many hours. Taxis are a particularly interesting example because the giving of cash to a driver makes them more vulnerable to theft and to being a target for crime. It also means that they are responsible for ensuring that they have change, so they have to carry a float even before they have taken any cash. It is of course true to say that it would be naive in today’s society to get into a cab outside London and expect the driver to take a card transaction. This is a complex landscape.

Some four out of five people say that they pay their gardener—if they have one—in cash. I am sure that neither the Minister nor I wish to cast aspersions on gardeners, but there is a suspicion that there are parts of the economy where cash is used to avoid the taxation that I know he is very eager to collect at every possible opportunity. There are a whole host of reasons to promote cashless transactions, whether it is ensuring that people are at less risk of the crime that goes with cash or that businesses are at less risk of the increasingly expensive costs of handling cash.

[Jim Shannon]

I am mindful that in my constituency of Strangford, where we have a fishing sector, there is a tradition of boat owners paying their crewmen in cash. There has been a reduction in the number of banks across the whole of the Ards peninsula. Seasonal workers are also paid in cash. I put forward to the hon. Gentleman that one size does not fit all and that there are exceptions. We need to be aware of that, as does the Minister.

[Matt Warman]

I agree. In a sense, I make the same point that I made before, which is that currently there are a large number of exceptions and it would actually be in the interests of the many seasonal, low-paid and often zero-hours contract workers in my constituency to be paid digitally, because they would be less at risk of crime and the businesses that they work for would have less of the handling costs associated with cash. We are already at the point where the declining ATM network that those people rely on is struggling to make a viable business case to those who use it with such diminishing enthusiasm.

[Darren Jones]

The case study of First Bus in Bristol—I would not speak accurately on behalf of my constituents if I said it was a cheap network—demonstrates that the use of digital payments has allowed a reduction in the cost of tickets because cash is no longer handled on the bus network. Does the hon. Gentleman recognise that that must be a positive for consumers, whether or not they use cash?

[Matt Warman]

I agree. That is an example of where digital payments are in the interests of both the business and the consumer—not simply in terms of convenience, but, in the case the hon. Gentleman mentioned, in terms of the viability of the bus route. Companies such as Square have tried to encourage marketplaces to embrace digital technology in such a way that businesses that often operate at the very limit of viability are able to find new and innovative ways of changing their business models slightly. Of course, it is no good for a business to accept cards only when people wish to show up and pay in cash. The London bus network experienced some controversy when it moved to using a card-only payment mechanism, and I suspect that the hon. Gentleman may have experienced the same in his constituency.

As the hon. Member for Strangford said, it comes back to ensuring that a one-size-fits-all force is not exerted either by Government or by business, but that a number of things are done to encourage businesses to understand that there are huge advantages, and to encourage consumers to understand that there are very limited opportunities for fraud when it comes to contactless cards or, indeed, chip and pin. We should be careful not to stoke those sorts of fears unnecessarily.

There are costs associated with handling cash and there are associated costs for consumers—socioeconomic risks for those who are often most reliant on cash but would benefit most from digital payments, for example. We therefore need to ask the Minister for a number of things from the perspective of Government. The first would be to consider whether action should be taken to encourage shops and businesses to go cashless and whether there should be a safety net to ban them from becoming entirely cashless, as has happened in some states in America. I would argue that in most circumstances, a retailer of any kind is perfectly entitled to make that decision for itself. We should not sleepwalk into a cashless society, however; we should understand the risks and the benefits.

With that in mind, my single largest request to the Minister is not that we try to invent some system in which, as someone proposed, a business rates scheme encourages cashless-ising in town centres, to encourage businesses to become more viable and eliminate costs to which they might be sentimentally attached, but simply to build on the success that Britain has already shown both in FinTech and in technology more generally. That means putting the governmental shoulder to the wheel and recognising that ultimately, the cost of taking cash is already very close—if not over the line—to outweighing the benefits. We are certainly already at the point where many businesses looking at that in detail would think very hard about whether taking cash was in their interests at all. Clearly, the moment when far more businesses go over that line is fast approaching.

We need to do two things. The first is to consider much more carefully the impact that eliminating cash can have on vulnerable groups in certain circumstances. Then, we must say what we can do to help those groups to embrace a cashless economy with much greater enthusiasm. Some of that means reassuring people about their concerns on the risks of fraud, while another part means defining—as the hon. Member for Strangford mentioned—what can always be paid in cash, at least for a long time into the future.

Would the Minister consider setting out a roadmap for the future proportion of cash in the economy, to reassure us that it has been entirely considered and that its impact has been thought through? If I had my way, I would set a target for the elimination of cash from the economy, in much the same way that—in an ideal world—I would think carefully about when cheques might be eliminated entirely from the economy. I appreciate that setting any type of target in that regard is probably down to the market as much as it is to Government, but whether or not there is a target, the trajectory is ultimately very clear: there will be less and less cash in the economy and that will mean certain things for vulnerable groups. Our job as politicians is to provide some leadership and tell people and businesses that it is economically advantageous for there to be less cash in the economy, however sentimental some people might feel about where we are in today’s society.

I will leave that gentle request there, rather than demand anything more of the Minister, but I would say that the direction of travel is clear: cash was king, but it is now coming towards the end of its reign.

11:09

[The Exchequer Secretary to the Treasury (Robert Jenrick)]

It is a pleasure to serve under your chairmanship, Mr Gray, and to respond to the debate secured by my hon. Friend the Member for Boston and Skegness (Matt Warman). I thank him for his suggestion that I get a chip implanted in my arm—I have only just started paying with my Apple watch, so that might be some way off. I will suggest it to the Chancellor as something that he might like to do.

As my hon. Friend laid out, all the evidence suggests that people are increasingly turning to digital payment methods. In 2017, debit cards overtook cash as the most frequently used payment method in the UK. The Government support digital payments, which, as we have heard in the debate, can offer consumers and businesses convenient, tailored and flexible ways of purchasing goods and services. Increasingly, they can also offer additional services, such as ways to help budget, keep a record of transactions and manage financial affairs, which can play an important role for those who, traditionally, would be considered more vulnerable and harder to serve.

As my hon. Friend also mentioned, the public support and trust our historic currency in cash and notes—perhaps to a surprising extent. We have seen that over the course of the past 12 months, with campaigns to save the penny and for a Brexit coin, and the Royal Mint sees it every day with the demand for collector’s coins, both on its website and at its south Wales shop. The pace of technological change has never been faster, and it will never seem so slow again as it continues to accelerate. Like my hon. Friend, we want the UK to be at the forefront of technological change, to embrace the opportunities and, as we have heard from the tenor of the debate, to ensure that that change works for as many people in society as possible. That includes taking a lead in supporting the Competition and Markets Authority’s open banking initiative, which aims to make it cheaper and easier for innovative new firms to provide financial products.

Building on that, the Government have tried to lead on FinTech with our FinTech sector strategy, which was published last year and sets out our plans for ensuring that the UK remains the best place in the world to start and grow a FinTech firm. Nearly 100,000 people in the UK now work in the FinTech sector; almost none of those jobs existed just 10 years ago. The UK genuinely is a market leader in this field. We have already heard examples of those firms, which are transforming the financial services sector. TransferWise, which set up in London eight years ago, is another. It now serves more than 4 million customers and transfers more than £3 billion of funds every month.

The wider payments industry is also embracing new technology. For example, as a result of legislation brought in by this Government, UK banks and building societies have been able to introduce cheque imaging. That innovation offers people the additional option of paying in a cheque through their smartphone rather than having to go to a bank. That benefits people who are harder to serve, such as those my hon. Friend mentioned—people in rural areas and those with limited mobility.

As my hon. Friend said, digital payment technologies offer considerable opportunities for everyone, including vulnerable people. Ensuring that the UK leads in this area offers opportunities for new FinTech businesses and jobs, and exports, which I just mentioned. It also provides extra flexibility and convenience for businesses and consumers, such as those who travel by bus or taxi in London or, as we heard, by bus in Bristol. If we get the technology right and ensure it is sufficiently competitive, it may provide lower transaction costs for consumers and small businesses. As we heard, it also offers us the opportunity to lower the tax gap, which would mean lower taxes for all the rest of us who pay our fair share of taxes, and there will be public safety benefits if we can ensure correct enforcement and increased public trust. A number of shops and music festivals have suggested they may go cash free to reduce criminality.

[Darren Jones]

I referred to my constituent who was defrauded via an online method. She contacted the police, Action Fraud and the bank, but no one was able to help her and she lost her money. Will the Minister set out what his Department is doing with the Home Office to ensure that the police are properly equipped and resourced to tackle these issues?

[Robert Jenrick]

We work closely with the Home Office on economic crime. In fact, last week the Chancellor and the Home Secretary launched a new taskforce on economic crimes, which will include cyber-security and digital payments. Of course, we work across the full range of financial institutions and authorities to ensure that they take this issue seriously. The Government’s cyber-security strategy, in which we have invested almost £2 billion, is designed to increase capability and awareness among financial institutions and police forces across the country. Police forces need to take this issue very seriously as crime changes.

It is also worth mentioning the societal benefits of developments in other parts of the world, particularly in Africa and the developing world, where organisations and companies that have taken the lead on mobile payment services, such as M-Pesa, have been truly transformational in opening up new opportunities for entrepreneurship and person-to-person payments. We have seen that happen in those parts of the world, and we want it to happen in this country, too.

We heard about some of the challenges associated with the increase in digital payments and the falling use of cash. It is worth noting that cash payments fell from 61% of all payments in 2007 to 34% in 2017. However, 34% is still a significant proportion, and about 2.7 million people in the UK remain entirely reliant on cash. We must ensure that those who rely on cash are not excluded as digital payments become more prevalent. We can of course play a role in guiding them to see some of the benefits and opportunities of digital payments. My hon. Friend the Member for Boston and Skegness mentioned examples of people for whom digital payments may be very useful indeed, such as those on lower incomes and migrant workers.

We launched a call for evidence last year to better understand the role of cash and digital payments in the new economy, to explore questions such as how we can maintain access to cash for those who need it, and to better understand the trajectory of cash use. We concluded that although we are probably heading towards a cashless society, we should seek to facilitate and encourage that. Cash—our coins and notes—will be with us for a long time to come, so its continued availability in all parts of the country for all groups needs to be planned carefully by the Government, financial institutions such as the Royal Mint and the Bank of England, and the payments industry.

We are working closely with the industry, which recognises the challenges. Last year, LINK, the UK’s ATM network, announced an independent review of access to cash, chaired by Natalie Ceeney, in response to some of the concerns and criticisms raised over the course of 2018 about the decline in the number of ATMs, particularly in rural areas. It is true that there are probably too many ATMs in some of our urban areas, but there is real concern about the number of ATMs in smaller market towns, on the smaller high streets of larger cities such as Bristol, and particularly in villages. The review is exploring the risks of leaving people behind as we increasingly utilise digital payments. As we heard, its interim report found that many consumers still value having cash.

The wholesale cash industry is also considering the infrastructure required to continue to service cash use as it declines. That will be a serious challenge in the years to come, and we want to be prepared for it. How can we ensure that every shop, restaurant, post office and community in every part of the country, including rural areas, continues to be able to obtain the cash it needs? How can that business model be either profitable or supported by the rest of the economy? In addition, the payments industry is progressing initiatives such as Request to Pay, which can help increase and promote financial inclusion. The Request to Pay service aims to give payers more control over outgoing payments and to help people avoid the cliff edges that can be created by irregular incomes or unexpected bills.

The rise in digital payments has been remarkable. It is not unique to this country; it is happening in all parts of the world, including in perhaps unexpected places such as Africa and the developing world. Contactless payments in this country grew by 99% in 2017, and we expect that trajectory to continue. We welcome proposals to enable the UK to embrace that change. There are no simple solutions, but we look at international examples, such as Singapore, Hong Kong and other parts of the world that are particularly engaged with this question. Hon. Members from across the House with proposals and ideas are very welcome to come to see me or other Treasury Ministers as we consider how we can continue to engage with this issue and drive the sector forward.

We need to consider the impact of the increasingly digital world on society and our economy and find ways to overcome the challenges it presents. Cash use remains important, with more than one third of payments in the UK made in cash. However, like my hon. Friend the Member for Boston and Skegness, we want to guide the economy and the public through the undoubted and probably irreversible journey to a cashless society, and we want to ensure that the UK is at the forefront of new technology while protecting the most vulnerable in our society.

Question put and agreed to.

11:28

Sitting suspended.

Mental Health: Assessment

Tuesday 22nd January 2019 Westminster Hall

[Joan Ryan in the Chair]

09:19

[Angela Crawley (Lanark and Hamilton East) (SNP)]

I beg to move,

That this House has considered mental health and the benefits assessment process.

It is a pleasure to serve under your chairship, Ms Ryan. I thank the hundreds of people who wrote to me via the call for evidence on the House of Commons Facebook page, as well as the digital support team at Parliament.

Many of the stories shared by people from across the country were harrowing and difficult to read, simply because of how badly they felt they had been treated. I cannot do justice to the subject without reading out some of the words that they used. The main themes that came out of the online contributions were that the process seemed to be making mental health issues worse; that people did not think that the assessors were qualified; that the amount of money awarded was simply not enough to live on; that the process was inappropriate and poorly conceived; and that people were often declared ineligible despite having mental health diagnoses, as well as support and evidence from their doctor.

One woman specifically said that she thought the process was “confrontational, intimidating and unsupportive”, and that

“frankly it is outright cruelty and very distressing.”

Another said that it was “degrading, embarrassing and exhausting”. She said:

“My assessment left me in tears and feeling suicidal because I’d spent all week getting ready, and not a single questions was asked about my mental health.”

Another person said that they did not have enough to live on and were

“trying to have one meal every two days.”

They could not afford a new suit to go to a job interview and the money that they were receiving was only enough to pay the rent, the electricity and their phone bill.

Another person said that as someone who had suffered from suicidal ideation, they did not know why the assessors thought that asking them about that would somehow transform or change the experience. They said it was “barbaric, pointless and unnecessary.” Many people said that charities helped them the most, not the jobcentre or even the NHS. It was local charities, which in many cases were funded by the EU, that were able to give them the support they needed. That is just some of the feedback from the online contributions.

[Gloria De Piero (Ashfield) (Lab)]

A young man from Ashfield—it is relevant that he is young—had severe anxiety and his doctor wrote to support his case. On the day that he was supposed to have his face-to-face interview at his house, the assessor did not turn up. The young man was so anxious about it that he suffered a heart attack. Is this not a disgraceful and sick way of treating people who are in need?

[Angela Crawley]

Absolutely, and I am sorry to hear about that constituent’s experience. It is harrowing. The assessment process has a detrimental impact on the lives of people who are already vulnerable and already not in control of their circumstances in many regards. For them to be put through a harrowing process and feel that way is simply unacceptable.

[Andrea Jenkyns (Morley and Outwood) (Con)]

Does the hon. Lady agree that the number of forms that people suffering with mental health conditions have to complete is a real problem? It can cause unnecessary stress during difficult times, especially when many of the forms are duplicated.

[Angela Crawley]

I could not agree more. During last week’s debate on fibromyalgia, she explained how the process and the application forms simply do not pay respect to mental health conditions. I champion her calls to the Government to change that process.

I urge the Minister to look through the comments, to get an idea of how the policies really impact people and to understand what they have gone through. Standing here and reading out the comments does them no justice; it is only by reading them that she will get an understanding of their point of view.

[Laura Pidcock (North West Durham) (Lab)]

The hon. Lady’s stories are a perfect depiction of the fact that the process is not adequately designed to assess mental health and wellbeing. Instead, it is a functionality test that lacks understanding of the nuances and fluctuation of mental health. If anything, the process actually exacerbates mental illness, meaning that people drop out of the cruel system to avoid and end acute worry. Let us hope that the Minister will not try to individualise the problems by saying, “Come and see us about these cases,” and that she will acknowledge the systemic failure of the assessment process.

[Angela Crawley]

I completely agree. I know that the Minister is always receptive and keen to understand and learn more. I am not going to harp on and give her a hard time about this. I am simply trying to change a process that I think we all want to see improved.

[Paul Blomfield (Sheffield Central) (Lab)]

Will the hon. Lady give way?

[Mr Jim Cunningham (Coventry South) (Lab)]

Will the hon. Lady give way?

[Angela Crawley]

I would like to make some progress first.

I am grateful to everyone who contacted me and took the time to comment, both on Facebook and through email, especially those who were brave enough to come forward and share their story. It is vital, given the needs of people with mental health issues, that the Government take time to listen to them.

Over the past few years there have been a great many public understanding and national awareness campaigns on mental health. Where mental health was once kept a secret from family, friends and colleagues, more and more people feel able to come forward and openly discuss their experiences of mental illness and get the necessary help. That recognition is largely due to the tireless work of national campaigns such as the Scottish Association for Mental Health, Mind and many others.

On 10 October last year, the Prime Minister held a reception to celebrate World Mental Health Day and to make a policy announcement, which included the creation of a Minister for suicide prevention. The Prime Minister said,

“we are not looking after our health if we are not looking after our mental health...we need that true parity between physical and mental health, not just in our health systems but elsewhere as well—in our classrooms, our workplaces, in our communities too.”

I agree with all of those points, but I would add that one of the biggest and most positive changes would be parity of esteem between mental and physical health in Government Departments themselves. That would be the place to start.

The highest number of people who seek my support are those who have been denied access or assistance by the Department for Work and Pensions. A common theme of the complaints I hear is that the constituent’s mental health needs have been ignored during work capability assessments for universal credit, employment support allowance and the personal independence payment. Most of those people have a genuine claim and have been incorrectly assessed. That is because the majority of decisions brought to me are ultimately overturned at the mandatory reconsideration and appeals stage.

[Mr Jim Cunningham]

I congratulate the hon. Lady on securing this important debate. On Friday night I met a number of people with mental health problems. Their issue is that the doctor says that they are not fit to work, but the benefits assessor says that they are, which leaves them in limbo. It is also a problem that employers do not always recognise mental illness. Does the hon. Lady agree that the Minister should do something about that?

[Angela Crawley]

I thank the hon. Gentleman for his intervention and I am sorry that I did not take it earlier. Each and every day, our constituency offices deal with situations where there has been an issue with the Department for Work and Pensions. It is our staff who work day in, day out to get those decisions overturned. If we have to do that, and if decisions are being repeatedly overturned, there is obviously a flaw in the system.

[Several hon. Members rose—]

[Angela Crawley]

I will let the hon. Member for Sheffield Central (Paul Blomfield), who tried to intervene earlier, speak first.

[Paul Blomfield]

I thank the hon. Lady for giving way. Clearly, there is competition for interventions because this is such an important issue. On the question of process, a constituent of mine scored zero on an employment and support allowance assessment despite having numerous and well-documented physical and mental health problems. The decision was overturned on appeal. The appeal was a gruelling process to go through but the decision was readily overturned, because there was a basic factual error in the first stage. Does the hon. Lady agree that the process would be much more effective if claimants had the option of their assessments being recorded, as recommended by Paul Gray, the independent reviewer? Does she share my hope that the Minister will update us on the pilot announced last June and confirm that her Department will go ahead with the recording of interviews?

[Angela Crawley]

I agree that there are issues with the service and the process.

[Ged Killen (Rutherglen and Hamilton West) (Lab/Co-op)]

I congratulate the hon. Lady on securing this debate. She will have seen, as I have, the number of people who visit constituency surgeries after having had an initial assessment for a physical health problem but then ending up with a mental health issue as a result of how they were treated and having their support incorrectly withdrawn. Does she agree that that needs to be looked at very seriously?

[Angela Crawley]

I wholeheartedly agree, and that is the point of this debate. If the system worked well and we did not have any complaints about it, we would not be here today, but the fact is that the system is not working as it should, nor as it was probably intended to work in its initial design or concept. It is simply not working in practice. If we were to amend that system and make it work better, we would probably spend less time going through administrative appeals and mandatory reconsiderations, which should incentivise the Government to get it right the first time.

Returning to my earlier point, it is my staff who deal with constituents’ cases every day, and I would like to say thank you to each and every one of them. Rhona, Josh, David, John, Mary-Jane, Carmen and, of course, Georgia—I have quite a few staff and think I have covered them all—work hard every day to have those cases overturned, because they can see the constituent before them and can see that person who is crying out for help and needs support.

Perhaps the assessors are just not getting that full picture of someone, and perhaps we are being unfair to all the staff who work at DWP, but there is a flaw in the process, which I will turn to now. The assessments are carried out by contractors of Maximus and Atos according to guidelines set by the Department for Work and Pensions. I know there have been changes and adaptations, but ultimately they are still not working. Turning to the administrative process administered by DWP, those assessment reports are then filtered into descriptors set by the policies of this Government. I do not believe that the assessors are given the correct level of training or resources to deal with mental health issues. I have written to the Department about that on a number of occasions and I have been assured that assessors are getting adequate training, but if that is not the experience on the ground, there is obviously a flaw or an issue there.

I do not believe that the criteria for assessments give enough credence to the crippling effects that mental ill health can have on people’s lives. As the hon. Member for Rutherglen and Hamilton West (Ged Killen) has outlined, that turns into a detrimental effect on people’s mental health, even if it did not start out that way. Indeed, many of my constituents complained that their mental health problems do not fit neatly into the assessment forms because the form is not designed to assess disability resulting from mental ill health, a point that the hon. Member for Morley and Outwood (Andrea Jenkyns) also covered.

One of my constituents from Hamilton, whose daughter has bipolar disorder and was denied personal independence payments, said,

“we see mental health brought up everywhere—in adverts, in TV soaps—and the advice is to speak out. But if you tell the DWP, they ignore you and do nothing to help, they have fallen behind the times and are not keeping up to the standard.”

In the assessment reports, indicators of mental ill health bear little relation to the advice of mental health charities and are at best unhelpful for diagnosis. The assessors will make wide-reaching assertions based on outdated ideas of mental health and often irrelevant judgments on the person’s appearance: “Was the person rocking in a chair? Were they trembling? Were they sweating? What was the person wearing? Had they washed or were they wearing make-up?” That is institutional stereotyping of people suffering from poor mental health. The fact that someone turned out that day and made the effort, even if it perhaps took them hours and days to prepare themselves for that experience, only to then have it marked against them, seems arbitrary and frankly ridiculous.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

I am sympathetic to a number of the points the hon. Lady makes, although, for an experienced medical professional, one component of assessing somebody who is unwell is looking at how they appear, because that may be a symptom of distress, self-neglect or other issues, notwithstanding the points she has made. One of the challenges she raised is that of those patients with fluctuating conditions such as bipolar disorder, who can be well for periods and then become quite unwell. Does she agree that the system does not have adequate assessments in place to allow for patients who can become very rapidly unwell, and that those patients in particular can become distressed by the system and how it is put into practice by assessors?

[Angela Crawley]

I agree with the second part of the hon. Gentleman’s intervention, but I return to my original point, which is that we are talking about a tick-box exercise that does not recognise the fluctuating nature of mental ill health—I think that is the point he is trying to make. Why should someone have the fact that they put make-up on that day, or made the effort to turn up and be there for the assessment, marked against them? It seems completely arbitrary and unnecessary.

The constituent I mentioned earlier has a nervous compulsion and, as a result, she picks at her nails. She has chosen to wear acrylic nails so that she will not unconsciously pick at her hands due to her nervous disposition. That was taken by the healthcare professional as an indicator that she was well kept and therefore mentally stable. It did not seem to matter that it was a form of self-harming and that she had had suicidal thoughts, which she outlined to the person. Those are Victorian and antiquated measures through which to identify someone with mental ill health, and they come up time and again. My constituent Donna from Carluke recently had a personal independence assessment. She acknowledged that she had two options: she could present as someone who had a mental illness and

“Present as they expect someone who has a mental illness to i.e and I quote here from your own assessment documentation ‘rock, shake, sweat, unkempt, poor eye contact and look unwell and troubled’”,

or she could present as she was on the day,

“which was apparently none of the above.”

That does not negate the fact that she has a mental health condition; it simply does not tick the markers on that sheet. The DWP tick-box system does not seem to account for that at all, nor for people who live with long-term chronic health conditions that fluctuate between good days, bad days and unimaginable days.

Donna has faced an extremely difficult few years trying to cope with severe depression. She has outlined that on one day she can be great and on another she is simply not. I take the point that the hon. Member for Central Suffolk and North Ipswich (Dr Poulter) made; I know it comes from a position of experience, and I greatly appreciate his expertise, but the fact is that Donna has been working in the mental health sector, so she has huge insight into her condition. She knew the only way she would get better would be by taking time and allowing herself to heal, which has taken longer than she had hoped, but now that she has returned to work, she has to fight to keep her personal independence payment, which has allowed her to stabilise her life.

I mentioned this case in a debate last week. Donna recently went back to work on very reduced hours, and through the personal independence payment, she was able to effectively self-manage her condition, meaning that she can lead a meaningful and purposeful life, return to work and provide for her family. Given the presence of her symptoms, that is only possible through the personal independence payment, which she is now being denied because the fact that she returned to work has been held against her. She exactly fits the purpose of those benefits and the criteria set out, but her claim was reassessed and, as a direct result of returning to work, she is no longer entitled to them.

It seems that all the valuable support Donna received over the last three years, combined with her self-determination, is now in jeopardy because, on the day of her PIP assessment, she was:

“well kempt, behaved normally, maintained eye contact and had good insight into my illness”.

Those are the assessor’s marks. They have decided against the criteria that she is no longer eligible for a personal independence payment, despite the fact that, as I am outlining, she relies on it and it has helped her to get back to work, which I believe is ultimately what the Government want. It is counter-intuitive. Healthcare professionals appear to be carrying out assessments without prior knowledge of how mental ill health works.

[Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)]

My hon. Friend is making some extremely valid and excellent points, and I thank her for securing the debate. Does she agree that there is a real issue for people whose mental ill health, and perhaps some of the symptoms of it, such as paranoia or severe depression, mean that it is extremely difficult for them to even go to an assessment, because they feel the system might be against them, or they are just not well enough to get there? They are then penalised, and have their benefits taken away when they are very much in need of them, and have been very ill for a long time.

[Angela Crawley]

I could not agree more with my hon. Friend, and with the comments from the hon. Member for Ashfield (Gloria De Piero) about the individual who prepared themselves for an assessment, only for the assessor not to turn up. These assessments are really distressing, and they do not take into account the condition that the person being assessed has, or the impact that the assessment might have. Another of my constituents, Denise from Hamilton, was denied assistance for bipolar disorder because, as the report repeatedly stated, she is not manic all the time or on most days. How does one assessor even know that?

The idea of requiring assistance during periods of mania completely misses the point about the problems that Denise faces. The report ignores the depressive cycles that follow, and her struggles to find a measure of stability. That is a reckless approach, as she would be sent into a manic state if she were not supported, or if she tried to live the way many of us without a disability take for granted. Some of the things that have triggered a manic state in my constituent over the years would wash over most of us without her condition, but that is why the condition is extremely harrowing and distressing for those who have it. Simple things such as preparing for Christmas or a family wedding, stressful news events such as the Grenfell Tower incident, wider health issues such as the menopause, and changes to Denise’s medication for bipolar disorder are all things that have exacerbated her condition. Additionally, she has sometimes entered into mania for no apparent reason. In other words, the condition is out of her control.

I have heard many reports of assessors using very inappropriate language during assessments for people with mental health problems. Several people, including constituents I have mentioned, have told me that when discussing suicidal thoughts, they have been asked bluntly, “Why didn’t you kill yourself?” I do not know what that adds to the assessment, or what it does to a person to be asked that, but this point has been repeated by many of my constituents. When they have discussed suicidal ideation, they have been asked by the assessor, “Well, why didn’t you kill yourself?” I cannot say why they have been asked that.

[Dr Poulter]

Will the hon. Lady give way?

[Angela Crawley]

I will if the hon. Gentleman is going to say something useful.

[Dr Poulter]

I thank the hon. Lady for giving way; she is being very kind. In relation to getting a full picture of suicidality, there are sometimes protective factors that stop people wanting to take their own life. For example, they may have children. There may be other factors in their life that mean that they would not want to go through with the act of ending their life, even though they are having fleeting suicidal thoughts. It is relevant to a clinical examination or history of a person to work out what protective factors there may be, and why it was that, even though they were feeling very bad, very low, and having those thoughts, they did not want to follow them through. I just wanted to make that clinical point to the hon. Lady; it may be helpful for her constituents.

[Angela Crawley]

That would be absolutely fine if the assessor had that level of medical qualification and experience. The point is that they do not. It is fine for a doctor to say that they would ask those questions, and of course any doctor reasonably would, but that is not how this has been delivered. It has not been asked by a trusted medical professional such as a doctor, psychologist, psychiatrist or other professional with the correct experience and understanding of how to handle the situation, the follow-up aftercare or anything that comes with it. The assessor is an individual sitting with a form; it is not the same experience, so I appreciate the hon. Gentleman’s point, but that is just not how it works in reality.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

The hon. Lady is making a very powerful speech. Are not DLA and its successor, PIP, meant to be about supporting disabled people with the extra costs that they face, which are about £560 a month? This system fails to recognise the real injustice that disabled people are experiencing, and unfortunately the Government are just not addressing that.

[Angela Crawley]

I completely agree. The point is that mental illness is a disability—that is what we have argued in previous debates—and should be recognised as such and handled appropriately. I am grateful for the point made by the hon. Member for Central Suffolk and North Ipswich, but we are not having this debate because there is an issue with the healthcare system; I am arguing that there is an issue with the practitioners in the Department for Work and Pensions.

The question to which I have referred has been asked without any follow-up, without any understanding and without the qualification and experience to handle it appropriately. I just cannot understand how it is appropriate or why it is necessary for the assessor to ask that. The ultimate fact is that it can be devastating for people with suicidal depression to have to justify such a dark thought; it can shake the foundations of their wellbeing and make them question their worth. It is not uncommon to hear from people that their personal independence payment or work capability assessments have made them feel worthless. It is not uncommon to hear that from my constituents; indeed, it is all too regular. That is why I am raising this matter with the Minister.

Since 2011, assessors are meant to have had, as part of the assessment process, access to a mental function champion or mental health champion for support and training. I am not sure whether that is working in practice, which is why I urge the Minister to look at it. In not one of the cases that I have dealt with regarding mental health problems has a mental function champion been used. That prompts the question: if the training and capacity are there, why is that not being used by the local DWP jobcentre staff? Why is it not being used to assess people appropriately? Why are assessors not using the support that is available to them if it is in fact there, provided by the Department for Work and Pensions?

I have made challenges in a number of cases in which some support for the assessor on mental health issues would have been appropriate, yet such an intervention has never been used. I have had trouble trying to find concrete figures for how many mental function champions there are across the service and what their role is. I would be grateful if the Minister could enlighten us on exactly what the mental function champions are supposed to do, what role they are supposed to play in the assessments, and how their effectiveness is being measured, because ultimately I was unable to get relevant or accurate statistics from the Department outlining how well that function is being used. If it is there and not being used, it seems that assessors are doing a disservice to the individuals who come face to face with them every day.

When someone is found fit for work but in fact is not, they need to go through the arduous process of appeals. For people with a depressive or other mental illness, that process is extremely difficult and can exacerbate their symptoms. For some, the process is too daunting and they will simply go without the support that they need. I can only imagine the number, because we will not have accurate statistics for how many people go without as they are unwilling to go through that process. I do not believe that that is the right approach to mental illness—or to public expenditure; it would save the Government time and money if assessments were correct, and the correct benefits were awarded at the first stage, in the first instance. The fact that people are having to go through the appeals process and decisions are being overturned at the mandatory reconsideration stage tells us that there is something wrong with the system that could be fixed.

Not only is this a waste of resources for the Department for Work and Pensions and our courts system, but it depletes the mental resources of people who do not have the energy to spare to go through the process. I believe that, ultimately, discrimination against mentally ill people is built into the whole culture of this system. If people disagree with that, they can just ask the High Court. The Government were found in 2018 to have discriminated against mentally ill people in the High Court ruling on regulations that meant that people who were unable to travel for reasons of psychological distress were debarred from the enhanced rate of the mobility component of personal independence payment.

I do not even know where to start with that. If someone has identified under the previous, legacy system that they are unable to travel or have limitations, and then that is undermined in the new system, that seems counter-intuitive. There is surely a better way of operating. The transition from DLA to personal independence payment has been anything but smooth; in fact, there are still flaws and errors in the system. That is all that I am trying to get to here. I really want the system to work better for people, because ultimately I would rather not have to deal with individuals having this horrible experience every day. They should not have to come to me to get things improved; the system should just work better.

The regulation to which I referred was introduced in March 2017 without any stakeholder consultation. I urge the Minister to reconsider that. There are mental health charities and experts outside the House who would be able to provide the relevant and necessary information to the Minister, if she were willing to hear it. That civic engagement would get things correct for those who have used the service and had an adverse experience; it could only enhance and improve the experience.

The High Court ruling represents just a small part of the benefits system, but I think that it represents well the Government’s approach to people with mental health problems. The personal independence payment system, contrary to the Government rhetoric, was designed so that fewer people would be eligible for it than were for the legacy benefit of DLA. If the entire concept and design of a system is to get more people out of the system, it is not really doing what it was designed for, which was to help people. It just seems ridiculous that we are working to these arbitrary targets; that is the only way I can understand this. If we are trying to reduce the number of people on the benefit, even if there is no reduction in the number of people who need the support, ultimately we are just letting people fall through the net. That is a dereliction of our duty of care to the people we serve.

One quarter of people claiming DLA for mental health conditions do not qualify for PIP when reassessed, so they lose the support that they need.

[Andrea Jenkyns]

I welcome a lot of the comments that the hon. Lady has made. I do feel that, as a society and as a Government, we still have a long way to go. However, does she acknowledge that mental health funding has reached record levels? We are talking about £12 billion of funding. Does she at least welcome the fact that the Government have now made big commitments to mental health funding?

[Angela Crawley]

On the one hand, I wholeheartedly agree that any additional funding for mental health will always be welcomed, because we are more aware of the condition and its lifelong effects, but ultimately why are we throwing money against the wall, when at the other end of the process people have to undergo a horrible and unnecessary experience? Join the dots: to improve the health service, improve the service in another Department that gives people the financial support they need. If improvements can be made through one Department, that should be done for another. I have spoken for longer than I intended, and a lot of other hon. Members want to speak, so I will press on.

The Government need to rethink their approach to the needs of people making benefit claims. They must be cognisant of the effect of mental health. Assessments must be more in line with best practice on mental health, so I ask the Minister to meet charities and organisations calling for reform of the benefits system.

I do not know how else to convey to the Government how much I just want to make the system better. I am not trying to make political points for the sake of it. There are flaws in the system, and I would like to improve it. I would like to give as many hon. Members a chance to speak as possible, so I end by quoting from the film “I, Daniel Blake”, because I think it captures this issue perfectly.

“I am not a client, a customer, nor a service user… I demand my rights. I demand you treat me with respect… I…am a citizen, nothing more, nothing less.”

In this day and age, and in this process, it is easy to refer to people as constituents, clients, service users or customers, but we forget that they are just people who ultimately rely on our support. Most people would not chose to rely on that support, especially under the arbitrary measures of the system, which are completely off-putting and attempt to reduce their reliance. People do not tend to want to rely on the state. Every day, my constituents are left feeling demoralised, degraded and ignored. These people elected us to represent them, and we must do more and do better, because at the moment it is simply not good enough. I want to do the best I can for my constituents, and I would not be doing that if I did not call on the Minister to improve this service.

14:59

[Peter Grant (Glenrothes) (SNP)]

I am grateful for the chance to contribute to this debate. I commend my hon. Friend the Member for Lanark and Hamilton East (Angela Crawley) for securing this debate, for her excellent speech, and for the tireless work she is doing on behalf of her constituents and many others.

In my constituency office we have the equivalent of a full-time employee doing nothing but fixing mistakes made by the DWP in assessments. I have no reason to believe it is any better in other constituencies. We could be talking about an army of people funded by the taxpayer just to sort out the mess created by a Government Department. During my three and a half years in this place, one significant area that has generated a lot of work has been the appalling treatment of constituents if they have assessments based on mental problems or a combination of physical disability and mental health problems.

In theory and in principle, I agree with what the Government claim to be trying to do through the benefits system. In practice, what they are really doing is completely wrong and I cannot support it at all. Having said that, I will not hear one word of criticism against the people who work in my local jobcentres, because they are fantastic. They do everything possible to help people, but they are trammelled by the regulations that they have to work under. They are clearly restricted as civil servants, in that sometimes they cannot say publicly what they appear to feel privately. The support they tried to give to every constituent we have contacted them about has been outstanding, so I want to place on record the fact that the people in our local jobcentres are doing a great job, but they cannot do the job they want to do, because the rules will not let them.

[Mr Gregory Campbell (East Londonderry) (DUP)]

The hon. Gentleman is addressing the nature and complexity of the changes. Many of us support the long-term objective. However, the number of times issues have been delayed and roll-outs have been put back, and the number of changes, amendments and adjustments all indicate a fundamental flaw at the heart of the concept. Does he agree that we need to address that, rather than tinker at the edges?

[Peter Grant]

My view is that the fundamental flaw was built into the system from day one, when the entire review started from the bottom line of financial saving and everything else was built on top of that. A benefits system cannot be built on a price tag, especially a price tag significantly lower than the current cost of the benefits system. That will guarantee that a significant number of people will be left a lot worse off than they were. A system has never been invented that ensures that the tiny minority of people who play the system are called to account and those who need to benefit are protected. Far too often, the system hits the easy targets rather than the ones who should be stopped from abusing the system.

What are the assessments for people with mental health problems in the benefits system supposed to do? They are supposed to give additional support to anyone living with a disability that makes it dearer for them to have the basic essentials of life. They are supposed to provide financial support for people who cannot get into work and help those who will be able to get into work to get there. We must recognise that some people will never be able to carry out enough work to support themselves financially. For those facing that reality, the system is supposed to help.

Instead, our system makes the situation worse for somebody with mental health problems that prevent them from working. We are talking about things that on their own might not seem that severe, such as anxiety, which can be made worse if they keep getting knocked back or psychologically beaten about. These people struggle just to carry on the usual social contact that some of us take for granted and lack the simple social skills that are essential to survive in the workplace.

For people struggling with those problems due to mental illness, which can be exacerbated by the way they are being treated, the worst thing we can do is force them through a system that makes them feel even less worthwhile than before they went in, even worse about themselves and even more anxious about their next assessment.

We would not assess a blind person with a paper form and we would not assess a deaf person over the phone, unless there was somebody at the other end to interpret for them. Why should it be any different when assessing somebody whose difficulties are related to severe anxiety and the inability to cope with going out the door and taking a bus on their own? They are told to go to an address they have never heard of, in a place they have never been to, to find their way there by a bus that they do not know exists, by a time set by the assessors, and to pay their own way there. By the time they get there, if they are lucky, an assessor will carry out the interview, but if the assessor does not turn up, that is okay. However, if the claimant does not turn up, they get their benefit stopped. Then we wonder why people think the system is rigged against them.

The whole work capability assessment is lengthy and demeaning. It treats people as numbers—as statistics. Sometimes it treats people as problems, instead of as human beings who need the support of a caring and civilised society. For example, most of my constituents are quite surprised, if not astonished, when they discover that it is not routine for the DWP to ask for a report from their GP or community psychiatric nurse, if they have been getting support from a nurse. They will sometimes ask for it, if the claimant themselves insists on them asking for it, but why do they not do it routinely? Surely the person’s own GP and the health professionals—those with qualifications in psychology or psychiatry—who have worked with this person, sometimes for years, have something important to say about their ability to work now and the realistic prospects of them getting back into work in the future.

Tomorrow, it will be exactly a year since I asked an urgent question in the Chamber about changes to personal independence payment assessment criteria. That followed a Government defeat in a case in the High Court where, in essence, the Court ruled that the assessment process the Government had put in place was illegal, because it discriminated between people with mental health problems and people with physical disabilities. On 23 November last year we received an update on that case: 140,000 cases had had to be reviewed and £4.5 million in benefits had been paid back to 1,000 people. I know that the succession of Ministers we have had in the DWP like to quote statistics about the percentage of people who like the result and the percentage of people who do not. In that case, 1,000 people were owed the money, which they needed just to have a decent standard of life. This Government had unlawfully withheld that money from them. We still do not know how many more people are due to get money back once the full review has been carried out. These are not the actions of a caring society.

Some of my constituents have turned up at assessments that were difficult and stressful to get to and found that the assessment had been cancelled. They had paid the cost of getting there, sometimes borrowing money to pay the bus fare, and the assessment was cancelled. At other times they have turned up and the paperwork had been lost or the person who had read the paperwork had phoned in sick. A different assessor had no idea who the person coming in to be assessed was. It is no wonder it creates the impression that, “The system really does not care about me. It does not see me as a human being. It sees me as a problem instead of as a human being with intrinsic value and the same rights to be treated properly as anyone else in our society.”

[Debbie Abrahams]

The hon. Gentleman is making a powerful speech. Is he as concerned as I am about the York University report that came out today, which states that people with mental health conditions are two and a half to three and a half times more likely to have their PIP claim reduced or stopped than people with physical health conditions? Does he share the view of the Royal College of Psychiatrists that if there is parity of esteem for mental health and physical health conditions in the health service, there should also be parity of esteem in social security?

[Peter Grant]

I am grateful for the hon. Lady’s comments. I have not seen the report, but my impression has been that people with significant mental health problems do not always help themselves and act in their own best interest. As a society, we have not got a balance about how far we allow someone to be who they want to be and live their own life. At what point do we step in and say, “You are not doing yourself any favours”? I have met far too many people whose initial problem started with a letter saying they had to go for an assessment, but, because they were scared of an assessment, they did not go, and from then on the problems multiplied.

I had one recent case of a constituent whose behaviour admittedly sometimes was completely unacceptable. One of the ways that he responds to the fact that he cannot cope is by getting aggressive. In at least one instance, he caused damage in a DWP office. I cannot condone that, but it turned out that one of the things he was annoyed about was the fact that his benefit had been substantially reduced. He did not think he had seen a letter telling him why it had been reduced, and we could not find anything, either. It turned out the DWP had decided that because he might react badly to being told that, it cut his benefit, but decided not to tell him what it had done. So that information was kept in a part of the system that assessors could see, but he could not. The assessor was supposed to try to help him get back into the workplace. The DWP thinks he is capable of doing some work, so it thinks he is capable of all the stresses and strains and upsets that go with going out to work in the morning, or in the afternoon, but he cannot be trusted with information about his own claim in case he reacts to it in the wrong way.

I do not think anybody here would like to sit down and design the perfect benefits system from scratch. I do not suggest that I have all the answers, and there will always be difficult judgments to be made. There will always be cases when someone has to decide, “Is this somebody who knows how to work the system and is chancing it, or is this somebody who really needs help?” I would much rather the system was biased a little more towards accepting that a tiny minority of people can play the system in order to make sure that nobody who needs the support of the system is left behind, but the experience of my constituents is that it is very much loaded in the opposite direction. In numerous cases that I have raised with various Secretaries of State for Work and Pensions—more than six since I was elected—after a few months, the answer has come back that the person has abandoned their appeal and is not going through with the latest stage in the process. Some in the DWP see it as a success every time someone does not carry through an appeal, because that means they have accepted the result. They do not think it means they have given up because they simply cannot win against a system that they feel, and sometimes I feel, is designed to stop people getting what they are entitled to get.

If we look at what has been happening since some of the benefits system was devolved to the Scottish Government, they were criticised for not moving quicker, but the first thing they did was to embark on a major consultation and engagement process not only with the usual suspects, but with people who had been through previous processes. They went out and actively looked for people who had either got successful claims or had lost out under the previous system to find out from them what they thought the system should be like.

The Scottish Government have given an assurance that any benefits assessments they are responsible for will not be carried out by private companies, so any suspicion that there is something in it for the private assessor who says no instead of yes is immediately taken out. The DWP will always say that that is not the case, but if a private company hopes to get the contract in a few years’ time, there will always be that suspicion, especially in the minds of those who do not get the result that they want.

We need to go back to the basics of what people are entitled to get either from the benefits system or from any other part of the state. The Scottish Government have said from day one that their system will be based on fairness, dignity and respect. Every one of our citizens deserves that, whether they are dealing with a benefits application to the DWP or in any other interaction with the Government. At the moment, far too many of my constituents do not feel they are being treated fairly. They do not feel they are being respected as human beings and they definitely do not feel that they come out of the process with the dignity that each and every one of us is entitled to. Until that changes, I cannot support the system. I want to see it fundamentally changed or scrapped altogether so that we go back and start again.

[Joan Ryan (in the Chair)]

We have two more Back-Bench speeches. I intend to move to the Front Bench at 3.30pm, so I suggest the two Members wishing to speak help each other and take about seven minutes each.

15:16

[David Linden (Glasgow East) (SNP)]

It is a great pleasure to serve under your chairmanship, Ms Ryan. I warmly congratulate my hon. Friend the Member for Lanark and Hamilton East (Angela Crawley) on securing the debate. It is also good to see the Minister in her place. She knows how much I respect and value the close working relationship that we have, particularly given my constituency caseload. I therefore hope that my remarks today, based on that constituency casework experience, are reflected upon in the Department for Work and Pensions and that action can be taken to build a social security system that is truly underpinned by respect, dignity and human rights.

At the weekend, and in anticipation of today’s debate, I asked constituents to share their thoughts with me. Indra from Tollcross said:

“I asked if they”—

the assessor—

“knew anything about my genetic condition—they didn’t but said it didn’t matter. I asked if they had worked in mental health treatment and again was dismissed.”

Indra went on to say:

“I left feeling worse off, and totally demoralised instead of supported.”

I guess that brings me to the first concern that I have about the assessment process, which was something I highlighted during my own debate on work capability assessments back in December 2017. It is a source of great regret that we are back today discussing the same issue a year or so on.

There is a concern, which is echoed by the Rethink Mental Illness report, that staff who perform assessments have an incredibly poor understanding of mental health. To illustrate the point, during the December 2017 debate I told the House how my constituent was asked if her son still had autism. That was an absolutely shocking thing to learn. The fact that that is something we can hear from a constituent should send an alarm signal to us. We have also seen examples where assessments have been carried out by physiotherapists for those with a mental health condition. That is like asking a chef to do the work of a car mechanic.

The second issue relates to vulnerable constituents who might have anxiety. Too often we ask people who struggle with the most basic tasks to complete long, convoluted forms riddled with jargon and difficult questions, a point made eloquently by the hon. Member for Morley and Outwood (Andrea Jenkyns). Just yesterday morning, while meeting the manager of Easterhouse CAB, I heard the story of a man who had started filling out his universal credit application over Christmas but found it so overwhelming that he did not complete it. The mess that that has caused the citizens advice bureau, which is now having to clear it up, is considerable.

We also know from experience that constituents who perhaps fail at the initial assessment and submit their mandatory reconsideration are left for weeks on end, worrying about the outcome of the appeal. That is simply not helpful for people with poor mental health.

[Hugh Gaffney (Coatbridge, Chryston and Bellshill) (Lab)]

Does the hon. Gentleman feel, as I do, that some of those people are being tested and tried before being given their benefits? That brings on anxiety. Last week’s Demos report is important in reviewing the issue. People should not be tested to get some money.

[David Linden]

I agree. The hon. Gentleman will have seen that in his constituency caseload and in surgeries. I am sure that all Members see it in surgeries.

I want to mention fibromyalgia. I attended the recent debate on the subject, as did my hon. Friend the Member for Lanark and Hamilton East (Angela Crawley) and the hon. Member for Morley and Outwood (Andrea Jenkyns). Fibro campaigners raise the legitimate concern that the DWP does not recognise the significance of mental health in fibromyalgia, which spans anxiety and depression. What work is under way in the Minister’s Department to explore what further training and support can be given in that area, including to work coaches?

There is much more to be done to ensure that the most vulnerable people can go about their lives in the knowledge that the process of assessing them for benefits will be underpinned by dignity, respect and human rights. The current system does not get that right, with the result that the British Government are failing the most vulnerable in society. I think we would all agree that we can and must do better.

Because of the respect I have for the Minister, I believe she is the Minister who can take the matter forward. We look to her for encouragement when she replies. There is strong cross-party consensus that we want to work together to protect our most vulnerable constituents. I look forward to supporting the Minister as she takes the matter forward.

15:21

[Jim Shannon (Strangford) (DUP)]

It is a pleasure to speak in the debate, and to follow those who set the scene. The hon. Member for Lanark and Hamilton East (Angela Crawley) made a significant contribution, as did my colleagues and friends left and right. We may not agree on the constitutional position of Northern Ireland or the United Kingdom, or Scotland and Wales, but we agree on the important issue we are debating.

The Minister attending this debate is one who responds. Her comments to me in the Chamber, and whenever we meet, are soft-spoken words, which are always taken in the light in which they are meant. I thank her for her help and the interest she shows in the issues I bring to her attention. My comments today are not meant to be aggressive or harsh, but they are factual. Before I go on with those comments, I want to say how much I appreciate the Minister’s compassion and her interest in a job that she does extremely well.

We set up this social state to enable those in genuine difficulty to live, and not simply survive in poorhouses and the like. We determined that it was fair to ask those who could to help others, through tax and national insurance contributions. That has set us apart from many countries. I believe we are here to help the ill and the most vulnerable in society. Those suffering from mental health issues are more in need of our help today than ever before. The hon. Member for Glenrothes (Peter Grant) mentioned staff, and I have staff in my office who work on nothing but benefits—reviews, appeals, applications and advice. They work on those issues full time, to give the correct advice and assistance that it is our job to give as elected representatives. All my other staff are trained and, in fairness, the Government have set up training classes for our staff so that they can be versed in universal credit issues. I thank the Minister for that. We take advantage of it, and make sure our staff are trained.

In the UK, 20.3 million families receive a form of benefit, and 8.7 million of those are pensioners, which is about 30% of the population. For some families, the benefits they receive make up more than half their income. If an individual suffers with a mental health condition that has a long-term effect on their normal day-to-day life, it is considered a disability as defined under the Equality Act 2010. People with mental health conditions are less likely to receive any form of universal credit.

Between October 2013 and October 2016, 193,000 people with mental health conditions were reassessed, and of those 39% were awarded more money. However, 14% were given the same amount, 22% were awarded less money and 25% no longer received the benefits they once had. I say it very gently, but the benefits assessment process needs to be amended, as it is clearly not fitting for those who suffer with serious mental health problems that result in an inability to work. There was a debate in the Chamber on Thursday about mental health first aid in the workplace, with a good level of participation. In Northern Ireland, the legacy of the troubles is a considerably higher frequency of mental health problems than here on the mainland. The figures are extreme: 25% higher than on the mainland. That is the legacy of a 30-year terrorist campaign that affects not just those involved but the families—wives, daughters, sons, mums and dads.

[Dr Cameron]

The hon. Gentleman is making an excellent speech. Will he join me in commending the excellent work of psychologists in Northern Ireland who hosted a successful international trauma conference last year that is putting Northern Ireland on the map as a leader in international expertise on trauma?

[Jim Shannon]

I thank the hon. Lady for that intervention, and congratulate her on all she does, and on her interest in the issue.

Mental health issues have caused 300,000 people to lose their jobs because they cannot cope with the stress of their career. In Northern Ireland, one in five adults show signs of mental illnesses in their lifetime. We can see clearly that more funding needs to go towards helping those who cannot work because of mental health problems. People who cannot hold down a job owing to such problems must be treated with compassion and understanding. I have had several meetings with Capita. As the hon. Member for Glenrothes said, the staff are excellent and work hard. Frances, the manageress of the social security office in Newtownards, is extremely supportive and helpful, as are all the staff when anyone phones about an issue. However, that does not stop the problems that we are having. In my meeting with Capita, I outlined some cases where benefits were withdrawn, but in conjunction with its staff, we were able to overturn the decisions. I was glad that those constituents had come to see me and my staff, and that we could use medical evidence, supplied by doctors, to persuade Capita of the adverse effect on their mental health, wellbeing and, at times, physical safety. Things must change.

[Paul Girvan (South Antrim) (DUP)]

The point that my hon. Friend is making relates to the fact that some people are so depressed that they do not want to contact anyone who could help them. They fall through the gaps. When people are willing to go forward, we have a high success rate for overturning decisions on appeal, but unfortunately some of the neediest bury their heads in the sand, as they do not have the will or drive to go ahead, or the support behind them.

[Jim Shannon]

I agree wholeheartedly. What my hon. Friend described is the reason why we are charged, as elected representatives, with delivering our views, in debates such as this and in offices.

People suffering long-term mental health issues should be supported financially because of the challenges that they bring in their career. Those with severe and enduring mental illnesses are exposed to premature mortality of up to 15 to 20 years; the situation affects their health, wellbeing and the length of time they will be in this world. Those people need support. We should not assume their health will improve over time, as it will improve only with rest and coping mechanisms, and the ability to work in a place where there is understanding of the needs of people with mental health issues, and a preparedness to work with them. Such jobs are few and far between. The question is how to achieve that, which is why the debate has been brought forward today.

Changes are needed in society, and I do not think anyone in the House would deny that. However, they must begin with a recognition that mental health issues are not an excuse not to work. They are a tunnel of darkness. What my hon. Friend the Member for South Antrim (Paul Girvan) and the hon. Member for East Kilbride, Strathaven and Lesmahagow (Dr Cameron) said about this is very relevant, for each and every one of us here. We are here because we have a passion for our people and want to put that over in the debate.

That tunnel of darkness is brightened only by the light of love and compassion, and I believe that governmental dealings with those in need of help must change in a compassionate way. We ask the Minister to do that, first because we know that she appreciates, understands and has an interest in these issues, and also on behalf of our people, who beseech her to make those changes.

[Several hon. Members rose—]

[Joan Ryan (in the Chair)]

Order. If Front-Bench speakers could limit themselves to nine minutes, that will allow the hon. Member for Lanark and Hamilton East (Angela Crawley) to wind-up the debate.

15:30

[Chris Stephens (Glasgow South West) (SNP)]

It is a pleasure to see you in the Chair, Ms Ryan, and I join others in paying tribute to the tour de force that we heard at the beginning of the debate from my hon. Friend the Member for Lanark and Hamilton East (Angela Crawley). She was right to start by mentioning staff members, because one of her staff members—Mary Jane Douglas—is also one of mine, and she contacted me to make sure that I mentioned her name. I also wish to mention other members of the casework team: Dominique Ucbas, Tony McCue and my office manager, the great Roza Salih. They all deal with the benefits and assessment system and have delivered some success. Interestingly, when I interviewed recently for a caseworker, one of the successful candidates I mentioned today, and other candidates, explained how they had helped family members, and others acting on behalf of relatives, who were trying to navigate their way through the benefits process.

The UK Government’s tick-box exercises for disability assessment are woefully inadequate when it comes to mental health conditions. The Work and Pensions Committee, on which I sit, considered a report from last year that contained a damning indictment of the Government’s assessments for the personal independence payment and employment and support allowance. It highlighted that assessments can be emotionally draining for people, and that is doubly awful for those who have mental health conditions. Indeed, such conditions can sometimes be exacerbated by the process and the stress of undergoing an assessment, or by a feeling that the health professional making the assessment is not accurately recording the impact of a condition.

The Government’s follow-up on the report’s criticisms were described by the Committee as “regrettably slow”. One example of their attitude was the contempt that they showed towards people with psychological conditions who require additional support under PIP. As has been said, in 2016 the Government introduced regulations that specifically excluded people with psychological conditions from receiving higher points in their disability assessment for PIP, until the Department was defeated in the courts for what was described as “blatantly discriminatory” legislation. That shows that the Government have absolutely no regard for the impact of psychological conditions, and it completely flies in the face of the commitment made by the Prime Minister on the steps of No.10 to create parity between physical and mental health conditions. We urgently need a complete overhaul of the PIP and ESA assessment process, to ensure that individuals with mental health conditions are treated with respect and dignity.

A huge amount of evidence from both claimants and stakeholder groups suggests that the system of disability assessment is failing people with mental health conditions. The Committee pointed out that there was an “unprecedented response” from claimants to its inquiry into PIP and ESA assessments. Rethink Mental Illness has said that many assessors do not have the necessary expertise in mental health conditions to carry out assessments, and that is exacerbated by the fact that ESA and PIP assessments are not designed to take account of the full impact of someone’s condition on their day-to-day life.

Mencap is

“concerned that assessors often do not have a full understanding of learning disability as exemplified in the stories we hear from individuals and their families.”

Mind and the Scottish Association for Mental Health have said that they hear

“frequently from people with mental health problems who have been assessed by healthcare professionals who lack a basic understanding of mental health. Often in these cases the problem is not that assessors lack specific clinical knowledge, but that they do not have good understanding of what it’s like to have a mental health problem or do not ask sensitive questions about how someone’s mental health affects them.”

That point came across clearly in the inquiry. We asked the contractors Atos and Capita how many qualified doctors they had in their organisations to carry out assessments. Atos said that it had two, as did Capita, and they described the rest of their assessors as “occupational health practitioners”.

I remember specifically asking a senior figure from Atos—this became one of those videos that are widely shared within minutes on social media—who someone with multiple sclerosis and depression would see in their organisation, and I was advised that they would see an occupational health practitioner. When I asked that senior figure whether he understood why people are cynical about the process, he nodded his head.

One recommendation in the Committee’s report was for audio and visual recording, because around 80% of successful appeals are based on verbal information that was provided at the original assessment. Will the Minister update Members on that recommendation?

[David Linden]

My hon. Friend is spot on. Does he, like me, believe that this issue is such a problem partly because it has been contracted out to private companies that cut corners in all ways, meaning that our constituents get such a bad service? It comes down to the issue of privatisation; that is why the service is so poor.

[Chris Stephens]

My hon. Friend makes an excellent point. My next question to the Minister is about acceptable reports. The contractors have never hit Government targets for acceptable reports. If any other contractor were to conduct its business in such a way and failed to meet Government targets, it would no longer have its contract. How are the contractors now performing with regards to acceptable reports?

Will the Minister explain the mandatory reconsideration process, and confirm the rule that eight out of 10 mandatory reconsiderations—80% of them—should result in failure? That instruction was given to staff. I think the Government said it was guidance, but some of us believe it was an instruction. Will the Minister say whether it has been rescinded, so that mandatory reconsiderations can be dealt with in a fairer way? Will she provide statistics on the number of successful appeals made by those with mental health conditions? I recently wrote to her about people who are blind or have a visual impairment, as that issue has had some press scrutiny in Scotland, but can she provide similar figures for individuals with mental health conditions?

The removal of implied consent under universal credit will have a particularly detrimental impact on those with psychological disorders or learning difficulties. Under the legacy system, implied consent allowed family members, support services and benefits advisers easily to represent claimants when making claims to the DWP. That seems to be changing under universal credit, because a claimant now has to give explicit consent for such representation. For claimants who are severely sick or disabled, and especially those with mental health conditions or learning difficulties, the ability to rely on implied consent was important. The stress and pressure of having to interact with the benefits system and provide explicit consent is a real concern, as it may force claimants to jump through new hoops to get support in making their claim or resolving any problems with it.

I will conclude with the Scottish Government’s approach to the social security system. The Scottish Government will have some devolved power over the PIP process, and they are building the necessary infrastructure to deliver that. Disability benefit assessments will be carried out not by the private sector, but by Scotland’s public sector healthcare professionals. The approach taken by the Scottish Government will mean that the system is evidence-based and uses healthcare professionals, and that important step has been welcomed by many third-sector organisations in Scotland. It is vital to put the needs of the individual at the centre of the social security system by providing choice, flexibility and control. I thank you, Ms Ryan, and I look forward to the Minister’s response.

15:38

[Marsha De Cordova (Battersea) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Ryan.

I start by congratulating the hon. Member for Lanark and Hamilton East (Angela Crawley) on securing this debate and on making a truly powerful speech, in which she shared some of the evidence that she has received as a result of the call she put out for accounts of people’s harrowing experiences of their mental distress and of accessing the social security system. She highlighted that it was actually down to a number of voluntary sector organisations—charities and other bodies—to help those individuals through the claim process, and many of those organisations rely on funding they receive from the European Union.

The hon. Lady said that what is lacking in the whole process is adequate training of the healthcare professionals involved. It is vital that they be trained adequately. We know that there are meant to be mental distress champions, but ultimately their influence is not being felt by those going through the assessment.

Many Members, in speeches or interventions, spoke about the appeals process. It is recognised that there is concern about it, as there is such a high success rate for appeals, which I will come to later.

The hon. Lady absolutely hit the nail on the head when she talked about the change from the disability living allowance to the personal independent payment, and the impact that change has had on so many claimants. My hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) highlighted in an intervention the report published today by York University, which shows that people with psychological conditions were 2.4 times more likely than claimants without such a condition to have their DLA award stopped when they were being assessed for PIP, so there is clearly a problem. Many people assume that the policy intention behind PIP was to reduce the number of people in receipt of such support. There should be parity of esteem for those with physical conditions and those with mental health conditions, because PIP is there to contribute towards the extra costs of living with such an illness or condition.

We know that disabled people, particularly those who experience mental distress, have been let down by the assessment framework. Many people would say that the framework is innately flawed. As of May 2017, half of those claiming ESA and a third of those claiming PIP were described as having “mental or behavioural disorders”.

The Department for Work and Pensions has spent more than £1 billion on outsourcing the assessments for these benefits to providers such as Capita and Atos. However, those providers are falling woefully short of the DWP’s own performance standards. More than half of the assessment reports by Capita have been graded as unacceptable, so we know that there are clear problems with the way that the assessment framework is being used by these providers, which has obviously had a great impact on those experiencing mental distress.

Many Members have today shared—as Members have done constantly throughout their time in Parliament—the heart-wrenching accounts of constituents whose assessment left them in deep despair and distress. If anyone has not heard such accounts, they should think back to February last year, when the Work and Pensions Committee received an unprecedented amount of evidence from individuals sharing their experiences of the PIP and ESA assessment and framework, and of the distress that they caused them.

There have even been reports of people who have admitted being suicidal being asked why they had not killed themselves yet. Like the hon. Member for Lanark and Hamilton, I do not know how an assessor could ask somebody that. I would like to think that the Minister will ensure that that does not happen again; it really should not.

There have been reports of assessors overlooking someone’s mental distress, and asking inappropriate and offensive questions. I will give just one example. An individual diagnosed with borderline personality disorder, depression and anxiety lost his job and had a mental-health breakdown, so he applied for PIP twice, but was turned down twice. Obviously, the process began with his filling out the claim form, collecting all the medical evidence requested of him, and finally having to endure the humiliating face-to-face assessment. The process of trying to claim PIP caused that individual—David—great anxiety. He spiralled out of control into self-harm, and eventually overdosed on drugs.

No assessment for essential social security support should lead to anyone spiralling toward self-harm. The Minister will agree that we have to consider whether it is right for the burden of providing medical evidence to fall on the claimant. Will she commit to removing the burden of collecting medical evidence from the person claiming PIP and ESA?

When David went to a tribunal, he was awarded PIP, based on the same evidence that the DWP had previously deemed insufficient. However, we know that David’s story is not a one-off; it is all too common. Since 2013, 71% of PIP decisions have been overturned on appeal, which is a clear indication that there is inaccuracy and poor decision making in the assessment process. Denying more than 100,000 disabled people PIP will obviously have a negative impact on whether people can go on and live independently. The DWP spent over £100 million in administering reviews and appeals between 2016 and 2018. Much of the evidence would have been “inadmissible” in a normal court of law; that was said by a senior judge.

The Minister must consider all recommendations, particularly those of the Social Security Advisory Committee around mandatory reconsiderations, decision making, and ensuring that assessments are recorded. The High Court last year ruled that the negative changes regarding those who experience psychological distress were unlawfully discriminatory. Obviously, that has led to the review of 1.6 million PIP awards.

When does the Minister anticipate that the reviews of the system will be completed, and has a timetable for them been published, so we can see that they are completed? It will be important to know that all those people have got their back payment in a timely fashion.

The DWP is undergoing seven reviews of disabled people who are wrongly being deprived of social security. Five of those reviews are of flawed PIP and ESA assessments. So it is really important that the DWP gets this right. The failings of the assessment framework go way beyond discrimination; they contribute to, or even cause, individuals’ mental distress. In the words of one person,

“Going through the WCA process is the biggest source of worry in my life”.

That is how we are treating some of our most vulnerable people in society.

Labour recognises that there needs to be a radical overhaul of the assessment framework. It was labelled “superficial” and “dismissive” by the UN special rapporteur on extreme poverty. It should be replaced by a holistic, personalised and tailored single assessment, which would treat all disabled people, whether they have a physical or mental health condition, with the dignity and respect that they so desperately deserve.

15:47

[The Minister for Disabled People, Health and Work (Sarah Newton)]

It is a pleasure to serve under your chairmanship, Ms Ryan.

I begin by my adding my praise to that of other Members for the hon. Member for Lanark and Hamilton East (Angela Crawley), both for securing this debate and for the way in which she addressed the House. She and others are absolutely right: I am utterly determined to make sure that we improve the system by which we assess people for employment and support allowance, the personal independence payment and of course universal credit. I am just as ambitious as everybody else in the room to ensure that we treat everyone in society with respect and dignity, and really promote their human rights.

On independent assessments, people who go on this journey—I do not want to call them claimants or customers; that was a good point well made by the hon. Lady—through the system give the approach that we have taken to both ESA and PIP a satisfaction rating in the high 80s. That is the vast majority of people applying for these benefits. This is not something we measure internally; it is properly independent research that we publish and is open to scrutiny. One poor experience is one too many. We are utterly determined to improve the experience at every stage of the journey, and really put the person at the centre.

PIP was introduced to ensure that mental and physical health conditions have parity of esteem. Many more people are benefiting from it than ever did from disability living allowance, and are getting the higher rates of support, for both their daily living and their mobility. Broadly, therefore, it is working, but as we have heard, there are some absolutely horrendous and terrible cases of unacceptable behaviour, where things are going wrong. I thank all hon. Members who have come along today. It is clear that everyone here wants to do the best they can for their people and to work with me to absolutely get this right, and I welcome that.

I want to answer questions, but I have been given very little time to respond; that is the nature of these debates. As always, I will write to hon. Members on any questions that I do not have time to address. I start with the invaluable work of the Work and Pensions Committee. It is great to have one of its members here speaking up for that. The Committee gathered a huge amount of evidence, and I looked through all the research findings and the Committee’s recommendations thoroughly. We have agreed to implement all those recommendations, and we are carefully working our way through every single one of them. I want to reassure hon. Members that I work very closely with SSAC. It is an invaluable body. Everyone in the Department always thoroughly considers its reports and recommendations, and whenever possible we seek to implement them.

A few hon. Members mentioned video recording, which, when I came from the Home Office to take up this position, I thought was a really good idea. One of the fundamental problems we face with people claiming benefits is a lack of trust. Unfortunately, too many people are worried. We have today heard eloquent contributions about people being really worried about having to go through the process. In spite of the fact that most people have a really good experience, most of them are worried before they enter the process. I obviously want to eliminate that, as does everyone in the Department.

I want people to fill in the forms confidently, and pick up the phone or go into their jobcentre thinking, “There will be compassionate people who will help me”. That is what we are all striving to achieve. I believe that video recording the assessments will play an incredibly important role in regaining people’s trust in the whole process. Hon. Members will know that audio recordings are already available, but they are not done with the most up-to-date equipment. It can be a clunky and difficult experience, and I want to make it as easy as possible.

Throughout the summer we did a lot of work both with people who are claiming benefits and with healthcare professionals. All assessments are undertaken by fully qualified healthcare professionals. They are mostly nurses, but they all have experience and they have additional training in how to undertake the functional assessments. They are highly motivated and trained individuals, and it was important to consider how they felt about the video recording, just as much as how people coming in to be assessed felt about it. Having taken all that into consideration, we have started a pilot, which is going well. It is voluntary, because we wanted to ensure that people felt really confident about having their assessments videoed.

The strength of the pilot will be that lots of people take up the opportunity. There is no point coming up with a videoing possibility if people are not prepared to say, “Yes, I would like my assessment to be videoed”. We have been working carefully on the pilot and will review the findings to see how and when we can roll the initiative out. There is an absolute determination and commitment to doing that, because it will build the trust and confidence in the system that we want.

We have also been looking at every single stage of the process. I really want to assure hon. Members that I regularly meet our stakeholders—the large charities and disability rights organisations. We have a PIP forum and a stakeholder team working with us on improvements to the work capability assessment, and disabled people are really getting alongside us and working with us on improving the process. I have already commissioned an independent review of the PIP application process. We have been looking carefully and in detail at every single part of the claimant journey—the person’s journey—through the system to see what more we can do, right through to how we can improve our mandatory reconsideration process. At the same time, as I said, we have been implementing the very helpful findings of the Work and Pensions Committee.

Going back to comments about what happens in the assessment, we will make a decision based just on the application, without sending someone to a face-to-face assessment, if we can gather enough information from the person applying for the benefit, and if they provide information from healthcare professionals, whether they be consultants, GPs or community mental health nurses. We will use that information whenever possible. A lot of our work over the summer was engaging with healthcare professionals to try to understand the barriers to their providing us with information. Relatively small numbers of people go to appeal, and relatively small numbers have decisions overturned. Most often, decisions are overturned because more information has become available by the time of the appeal. I am determined to see what we can do to have the information provided up front by healthcare professionals, so that we can make more paper-based assessments, without the need for face-to-face ones.

Hon. Members will know that we have introduced a set of new criteria called the severe conditions criteria, for employment and support allowance and now for PIP. If people have severe mental or physical health conditions that, sadly, are not going to improve, we put them into a category where they do not have to be reassessed, apart from a very light-touch reassessment after 10 years, just to ensure that their circumstances have not changed. That means that fewer people will be reassessed, and I hope that everyone here can commend that.

On some of the other observations on face-to-face assessments, we have had quite a discussion about the mental health questions. The questions that the assessors use and the training they receive is all approved by the National Institute for Health and Care Excellence. I think hon. Members were referring to the mental state examination questions. As my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter), who has left the room and is a doctor, said, this is the best practice of the medical profession. It is really important that the Department takes its duty of care very seriously—and we do. Right through from our job coaches in Jobcentres Plus to people in our telephony services, we have a really good process to ensure that anyone expressing suicidal thoughts is supported. For example, everyone in our jobcentres is going through mental health training to ensure that they feel able to chat to someone with suicidal ideation and keep them safe and in front of them while their colleagues secure additional support from the NHS. We take that extremely seriously and are led by the best evidence—

[Debbie Abrahams]

Will the Minister give way?

[Sarah Newton]

I have so few minutes and so many questions to answer.

I want to reassure hon. Members that our work in this area is led by the best possible clinical input. The deputy chief medical officer, Professor Doctor Gina Radford, oversees all this work, because keeping people safe is just as important as treating everyone with respect and dignity and ensuring that their human rights are upheld.

I will conclude, so that I can give the hon. Member for Lanark and Hamilton East a few moments to wind up. I am absolutely determined to carry on our work on fibromyalgia and on all the issues she has mentioned. I have invited people into the Department for weekly meetings, so that together we can make the changes we want to see.

14:00

[Angela Crawley]

I thank the Minister for her kind and compassionate words. It always comes across as if she genuinely cares, and I believe she does, but what I say to her is this: do not be another Minister who passes through the Department and does not address these problems. They need to be dealt with. It is fine saying that on paper the stats look good and people are fine with them, but if one person goes through the process and does not get the support they need, it can be life-changing or life-ending for them, and I want to see that it is life-changing, not life-ending.

Question put and agreed to.

Resolved,

That this House has considered mental health and the benefits assessment process.

Grassroots Football Funding: Wembley Stadium

Tuesday 22nd January 2019 Westminster Hall

[Mr Philip Hollobone in the Chair]

[Mr Philip Hollobone (in the Chair)]

Order. Would those who are inexplicably not staying for the next debate about Wembley Stadium please be courteous enough to leave quickly and quietly?

16:00

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I beg to move,

That this House has considered the future of Wembley Stadium and the funding of grass roots football.

It is a pleasure to serve under your chairmanship, Mr Hollobone. Football, as we know, is our national sport. We invented the modern game and have the most popular league in the world, viewed by millions around the globe. I grew up playing and watching the game, and while I still play and watch when I can, I also have an interest in ensuring that our national sport can be enjoyed and participated in by as many people as possible at all levels.

Members will recall last year’s controversial proposals to sell Wembley Stadium to the American businessman, Shahid Khan. At the time, the Prime Minister rather dismissively told me that the proposed sale was a private matter. I have to say that I consider the sale of the national football team’s stadium—the home of the FA cup final and countless other important matches—to be a matter of some considerable public interest.

The deal did not go through in the end, but we need to talk about the consequences. The sale falling through has left a hole where the grassroots strategy was. The main justification put forward by the Football Association for the deal was that it would have enabled the release of hundreds of millions of pounds to fund grassroots football. Although I was a little bit sceptical about the deal and what it would mean in the long term, because sale and lease-back agreements often do not work well in the long run, it was beyond doubt that it would have enabled significant investment in grassroots football. It is important for us to discuss how to replace that funding.

[Jim Shannon (Strangford) (DUP)]

One of the greatest footballers who ever graced the football field in this world, certainly in my lifetime, was Geordie Best. Pelé, another of the greatest footballers in the world, said that his favourite footballer was George Best. Geordie Best was a product of local academies, played his football in the back streets of Belfast and became a world star. Does the hon. Gentleman agree that those are the sort of people we want to encourage?

[Justin Madders]

As a Manchester United fan, I would say that, if we can encourage more George Bests, I will certainly be very pleased to see that. I will talk a little more about how we can encourage more youngsters to participate a little later.

Football in this country is in a very strong position. The premier league is the envy of the world. Most of the world’s top players come here, and England’s youth teams have enjoyed unprecedented levels of success in recent years. Whether those kids who have enjoyed great success with the national team recently get to play at the highest level remains to be seen. We should be concerned about the declining number of home-grown players, such as George Best, coming through the leagues, although I am sure someone with that talent would still make it today.

About 35% of players who started games in the premier league last season were English, on average. That represented a huge reduction on the 69% of English players who started games in the inaugural season of the premier league in 1992-93. There are huge questions about how professional clubs operate and about how our younger players can hope to get a chance against the huge influx of imported superstars, and I also sometimes wonder about the effect of giving a 17-year-old who has never played for the first team 10 grand a week—what does that do to their chances?—but that is probably outside the scope of today’s debate.

What we can do today is discuss how to improve the game below elite level. One in six grassroots matches were cancelled last year, and I recall my own kid’s games getting repeatedly cancelled over the winter period, although I do not think it was a particularly extraordinarily bad winter. Cancellations have a detrimental effect on both an individual’s and a team’s development, and we need to encourage that development. There are of course plenty of distractions and reasons why kids may find something else to do rather than play football, but we should do what we can to support it by encouraging a little bit more of the wealth that flows through the game to trickle down to the grassroots. We cannot expect the superstars of tomorrow to emerge if we are not prepared to invest in them.

One thing we can and, in my view, must do is improve the standard of facilities for younger players of all abilities, and for everyone involved in grassroots football. We should not tolerate second-rate facilities in our national sport. We know the pressure local authorities are under to balance the books and how there is little left for discretionary spending on improving sporting facilities. Pitches are often in poor condition, with poor drainage and areas of the pitch that are more mud than grass. Many pitches have little or no changing facilities connected with them.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

My hon. Friend is making a wonderful case for grassroots football. A club in my constituency, Otley Town, wrote to me to outline its concerns about facilities. It said:

“The key issue that we have is the quality of training facilities in winter. Most junior and senior clubs need access to all weather pitches so they have good environments to train in.”

They went on to talk about the need for funding for girls football, veterans football and disability football, to ensure that everyone can enjoy the game. Should we not ensure that the money trickles down from the billionaire owners to the grassroots?

[Justin Madders]

My hon. Friend is absolutely right. A whole range of groups are participating in football that possibly traditionally did not, and we need to encourage them as well.

I am not saying that there is no investment. Since 2000, the Football Foundation, funded by the FA, the Premier League and Sport England, has invested more than £600 million in projects. My constituency has recently benefited from such investment, with fantastic facilities at the Vauxhall Sports and Social Club, where two new fourth generation pitches, which I occasionally grace, have been opened alongside a fantastic new clubhouse. About half the money for that came from the Premier League and the FA facilities fund, but the other half had to be raised locally, and I pay tribute to the incredible work done by Dave Edmunds and Tony Woodley, in particular, who really fought to get those facilities off the ground.

[Dr Rosena Allin-Khan (Tooting) (Lab)]

We see hundreds of grass pitches close each year because of cuts. Although the football world does its bit to invest in the grassroots, more could always be done, especially given the billion-pound TV deals. Does my hon. Friend agree that we need the Government to get tough if we are to see any action?

[Justin Madders]

My hon. Friend is right. As the shadow Sports Minister, she will know far more about the challenges than I do. When we compare our facilities with other countries, we are lagging behind. We have half the number of third generation pitches that Germany has and, shockingly, only one in three grass pitches are of adequate quality. Some 5 million playing opportunities were lost last year because of inadequate facilities. With the NHS struggling, schools facing a funding crisis, and the challenge of affordable housing, it is fair to say that we cannot expect the taxpayer to find the resources for this. However, as my hon. Friend said, there are huge opportunities for the grassroots in terms of the cash that is washing around the game.

[Mr Clive Betts (Sheffield South East) (Lab)]

There are some really good examples. The Sheffield junior football league is the largest junior football league in Europe. The Isobel Bowler Sports Ground in my constituency is part of the Parklife project, funded by the FA and the Football Foundation. It has a great artificial pitch and a wonderful gym, where Disability Awareness with Sport runs facilities for disabled people. That is all wonderful and very positive—as is Mosborough rugby football club, where the Rugby Football Union has come in with support—but let us contrast the £300 million that local authorities spend on pitches in parks with the more than £200 million that the premier league’s clubs spent on agents’ fees alone in the last financial year. Is that not a contrast that we simply should not accept?

[Justin Madders]

I thank my hon. Friend for his contribution and for his excellent work with the parliamentary football club and with the Football Foundation. He is absolutely right about the cost: £200 million on agents’ fees, more than £1 billion in transfer fees every year now, and the direction of travel is only upwards. I know a levy operates at the moment on transfer fees, but a significant amount of that goes to players’ pensions and academies. There is nothing wrong with that, but that is for the professional side of the game and we are talking about the grassroots. I believe a small levy or a redistribution of existing funds could do an awful lot more for grassroots football.

[Ben Bradley (Mansfield) (Con)]

My constituency benefited recently from half a million pounds from the Football Foundation for new training facilities at Mansfield Town, which will be a huge benefit for the constituency. The hon. Gentleman is talking about the money involved in football. Obviously, the success of the premier league drives up wages and prices in that market, but premier league clubs and players pay something in the region of £3.5 billion a year in tax to the Chancellor, and there is even more tax revenue as we filter down through the Football League. I am interested in whether the hon. Gentleman thinks there is an opportunity there to ring-fence some of that money to be reinvested back in the grassroots of the game.

[Justin Madders]

That is an interesting point. Of course, we can debate ring-fenced taxes all day—there have been discussions about that in the context of the NHS, for example—but I think we can divert some of the other money, particularly agents’ fees. I go back to what my hon. Friend the Member for Sheffield South East (Mr Betts) said about that, because I believe that people in that arena, particularly agents, are getting an awful lot of money from football for very little effort.

I do not want to turn this speech into a tirade against agents, but Mino Raiola is reported to have earned—using the word “earned” in the loosest possible sense—about £20 million when Paul Pogba transferred to Manchester United. That is £20 million for advising on one transfer; that is money that is going out of the game, and we need to look at getting some of it back in. I am not saying that we need to get rid of agents’ fees altogether, but that case demonstrates that these sums are going through the game and do not benefit the players, do not benefit the clubs, and certainly do not benefit the wider game in this country. A small levy on fees could generate significant funds and would not distort the transfer market. That idea was highlighted by Gary Neville in his excellent evidence to the Select Committee on Digital, Culture, Media and Sport, when he proposed a 25% levy on agents’ fees. On that note, I will give way to a member of said Committee.

[Ian C. Lucas (Wrexham) (Lab)]

I am grateful; my hon. Friend is very prescient and ahead of the game. One of the issues that has come up again and again is the difficulty posed by the multiplicity of agencies involved in football: we have the Premier League, the Football Association, the Football League and others. Does my hon. Friend agree that a levy is a tool to get those organisations to work together and come up with results, encouraging our young people to play more football on decent surfaces?

[Justin Madders]

I thank my hon. Friend for his intervention; that is what I was trying to convey. There are lots of agencies involved, there is lots of money there, and Government need to guide, advise and maybe even compel those organisations to do more to help the grassroots. There is also the issue of prize money, which totals £2.5 billion; even a fraction of that amount could be put into grassroots football. I passionately believe that a modest level of redistribution would not destroy the premier league’s allure, but it might just enable the millions of people who enjoy playing our national sport to do so in slightly better conditions.

[Sir David Crausby (Bolton North East) (Lab)]

Does my hon. Friend accept that there is lots of money in the game of football, with footballers on as much as £500,000 a week? Should we not be tapping deeper into the billions of pounds that come in as a result of television deals before football clubs get hold of that money?

[Justin Madders]

I thank my hon. Friend for his intervention. That is one of a number of ways in which we can harness the wealth that is in the game to better effect, and as I say, that is something I encourage Government to look at closely.

While we are here, I will say a few words about the future of Wembley. Obviously, the proposed sale split public opinion, and I, like many others, had concerns. I do not know whether another offer will come along, but I understand that the Government will have a say over whether any sale goes ahead, so if that does come to pass, I ask the Government first to consider what we have discussed today about harnessing that money. Secondly, I ask the Government to consider whether safeguards could be put in place so that important domestic and international games always take precedence at that stadium; what measures we could put in place to meet the needs of fans, in terms of kick-off times and the availability and price of tickets; and what assurance there would be that any future purchaser beyond the initial one could be held to any agreements that were made on initial sale with the FA. As I say, we are not in that place now, but I would be interested to hear the Minister’s thoughts on that.

Finally, I will take this opportunity to say a few words of thanks to the thousands of people who give up their time to voluntarily run the teams, organise the fixtures, paint the lines, mow the pitches, put up the nets, and all the other jobs. Without those people, grassroots football would not exist. Their love of the game means that millions of people up and down the country get to participate, and their dedication gives youngsters opportunities to emulate their heroes. They often have to do so while getting changed in car parks in the freezing cold, facing frequent cancellations and bobbly pitches that are mud baths, so it is not surprising that kids sometimes prefer to spend their time playing football on the Xbox, rather than in real life. We all know about the need to encourage healthy living and exercise, and we all know about the many distractions kids have that do not involve them getting off their couches, so we need to make the playing experience as genuinely enjoyable as possible. There are probably not many pastimes that bring as much pleasure as scoring the winning goal in the last minute of an important game, but we know those occasions are few and far between, so we need to make sure that when kids play, they are encouraged; they are comfortable; and most of all, they enjoy themselves.

Football is more than just a game, and certainly more than just a business. It is an integral part of our culture, something that needs nurturing and protecting, and I firmly believe that the fruits of this golden age in the professional sport should be used to help secure its future so that everyone can enjoy it.

[Mike Wood (Dudley South) (Con)]

rose—

[Mr Philip Hollobone (in the Chair)]

The debate can last until 4.30. The hon. Member is standing.

[Mike Wood]

Sorry, I had understood that it was a 60-minute debate. I will sit down.

[Mr Philip Hollobone (in the Chair)]

Thank you. We now move on to the very sporty Sports Minister for her to respond.

16:09

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Mims Davies)]

It is an honour to serve under your chairmanship, Mr Hollobone. I am grateful to the hon. Member for Ellesmere Port and Neston (Justin Madders) for securing this debate and for his insightful contributions, and to other Members for the points they have made.

[Mike Wood]

rose—

[Mims Davies]

I am happy to be interrupted by my hon. Friend if he has something equally as insightful to say, which I am sure he does.

[Mike Wood]

I thank the Minister for giving way. I would not claim to be particularly insightful, but I know how much Ministers enjoy being urged to enter into negotiations with Treasury colleagues. Will she urge them to look at the UK guarantee scheme and how it relates to educational facilities, and whether that could be used to provide financial guarantees for bodies wishing to invest in community sports facilities?

[Mims Davies]

I thank my hon. Friend for that point. As we head towards the spending review, our Department is consistently urged to hold conversations with the Treasury.

The hon. Member for Ellesmere Port and Neston raised issues relating to volunteers. I echo his love for the game. People in our communities give so much to the grassroots, and that should be encouraged because of what it gives to our children and to the game as a whole. My father-in-law did exactly that as a football ref in Wales for many years, and he also organised games for homeless youngsters. It is important that we recognise the volunteering that takes place up and down the country. It is absolutely vital. Football is not just a business; it has a responsibility to the grassroots, as we all do.

I absolutely hear the message regarding the safeguards for Wembley ticket pricing, future purchase and controls. I will come on to some of those issues further into my speech, but as we heard earlier Wembley is iconic in terms of what it means to football and to us as the public. It is important that we have a national stadium that is able to host the biggest sporting events; Wembley has delivered that over many years, and we want it to continue to do so. UEFA’s decision to hold seven matches, including the semi-finals and finals of next year’s European championship, is proof that Wembley remains a top-class venue, hosting some of the world’s biggest and most important sporting events. If we are to bid for any future major sporting tournaments—Members might know what I am alluding to—we will need to make sure that we have the right stadium for World cup finals, one that resonates with the rest of the world. That is essential.

Last year, when the FA said that it was considering selling Wembley Stadium as a means of generating extra funds to re-invest in the grassroots, the Government were, naturally and rightly, keen to listen. Nobody would argue that a sport with more than 2 million regular participants could fail to be further helped by the promise of such additional funding. However, at the same time we recognised that Wembley has a special place in the heart of football fans. When listening to the proposal, the Government’s prime consideration as a public funder of the stadium was to protect the public interest, as is absolutely right. Going back to the hon. Gentleman’s point, custodianship of it would be absolutely important in any future new arrangement, no matter who owned Wembley stadium. The stadium should always be protected for future needs. The fact that the FA executive was considering the sale of its most prized asset raised more than a few eyebrows. In its response, the executive was clear in its view that the sale would free up funds to help provide greater financial support, which it felt was needed to help the sport from the bottom up.

[Jim Shannon]

I thank the Minister for her response to the debate secured by the hon. Member for Ellesmere Port and Neston (Justin Madders). Does she not feel, as some of us do, that we should not sell our national stadium and that it should be retained because of its importance? What we could do—I believe the hon. Gentleman referred to this—is take a revenue from transfer fees. That would create some money that could then be used for the grassroots football we want to see. There are ways of achieving things without having to sell the national jewels.

[Mims Davies]

I absolutely see the point that the hon. Gentleman is making. Ultimately, we have a stake in the matter and we will very much be keeping it on the radar. We are not in the place he suggests at the moment, but I will continue to make the case I have made so far in my speech. Whatever the FA does, we have a stake in ensuring that it is absolutely right for football as a whole.

We have heard some of the headline statistics. Only one in three grass pitches is of adequate quality and one in six matches is, sadly, called off due to pitch quality. England has only half as many 3G pitches as Germany. Where there is an opportunity to see more coming into the game, it is absolutely right to take it. We should look at the active lives survey and recognise that what has been cancelled this season may impact on the opportunities our youngsters have to participate. The statistics are a harsh reminder that, despite the unrivalled success of our domestic football at the elite level—we cannot forget the premier league, which is the wealthiest and most globally popular league—there is still a way to go in ensuring that we replicate that consistent success in what we provide at the grassroots level. We must and will provide playing opportunities across our towns and cities so that current and future generations can enjoy football.

[Ben Bradley]

I am sorry to interrupt the Minister. I recognise that the job of Sports Minister often tends to be to drag different Departments together to manage things more effectively and to find funding. Can more be done within her brief to bring together such bodies as Sport England with governing bodies? Sport England’s remit these days is more focused on grassroots activity and the community. Are there opportunities not only to invest in football, but to work with Sport England to invest in brilliant community facilities, too?

[Mims Davies]

I thank my hon. Friend for that point. In asking me to do this role, the Prime Minister—[Interruption.]

[Mr Philip Hollobone (in the Chair)]

Order. I am so sorry to interrupt the Minister, but a Division has been called in the House. I understand that there may be more than one. If there is one, we will return in 15 minutes. If there is more than one, we will return 10 minutes after the last Division is called.

16:22

Sitting suspended for Divisions in the House.

17:33

On resuming—

[Mr Philip Hollobone (in the Chair)]

The sitting is resumed. The finish time will be 5.41 pm and the Minister has eight minutes left.

[Mims Davies]

As I was saying, before we were interrupted to do our absolute duty, we must and we will provide playing opportunities, to be enjoyed by people now and by future generations, across our towns and cities. I want clarity for grassroots football and balanced provision of local assets, as well as a good pathway for our next generation of stars.

The figures appear to suggest that the grassroots are somewhat underfunded compared with the investment going into professional clubs, but the professional game rightly cares about the grassroots, as demonstrated by the funding it provides. As the Minister for Sport, however, I will always champion the grassroots and focus on them, examining the commitment given to them and providing challenge.

The Premier League is investing £100 million each year into football participation programmes and local facilities. That is a significant amount and is in addition to the other areas that it funds and supports in football, at all levels of the game, including vital payments to the English Football League and national league clubs.

[Justin Madders]

I am grateful to the Minister for picking up so well from where she left off, all that time ago. The central thrust of what I was saying, which I think most Members agree with, is that we do not dispute that the professional game puts money into the grassroots, but we think there ought to be a little more. Does the Minister agree with that analysis?

[Mims Davies]

I thank the hon. Gentleman for raising that important point: we must absolutely keep a focus on the grassroots. In Parliament today there has been constituency-wide MP engagement with the Premier League. He mentioned the existing levy of 4% on Premier League clubs and the fact that the money goes to all tiers of the game, supporting welfare and pensions.

Grassroots will always be an absolute focus for my Department and me, so those partnerships with clubs and that commitment to all the broader activities that address health, education, crime and other difficult social issues that football, alongside Government Departments, can reach, are vital. Those programmes add value and must be seen in conjunction with the grassroots opportunities, to ensure that we continue to champion the sport and that we consider the facilities and the wider community value of football.

The league funds also provide a voice for fans and help to fund new stadiums, which we enjoy visiting from time to time—or, hopefully, regularly—and which, as I mentioned, will perhaps help to bring back the World cup to these shores. The FA is not far behind in investing in the way that we would hope, with £70 million going into the grassroots cause, and I will continue to work closely with it, engaging with the new FA management in a time of change but also, I think, of opportunity. The Government will not be shy, either. We recognise the need to continue to support the national game. We are currently investing £25 million each year, including £18 million for facilities, £2 million for grassroots coaches and £5 million for the FA’s participation programmes, which provide vital support for the women’s game and disability football.

This Government, in partnership with the FA and the Premier League, are investing more money than ever before into the grassroots football programmes and facilities. From this year, we will contribute a combined £70 million to provide new and improved facilities through the Football Foundation charity, which we heard about earlier. Since 2000, the partnership has invested about £615 million through the foundation, which has resulted in 700 new and improved 3G pitches, 3,500 grass pitches and 1,000 new and improved changing rooms. I acknowledge that we must continue that work—there is more to be done—but simply throwing money at a problem is not always the answer. We must ensure that investment continues to go into the right areas and that we are having the right local and necessary impacts.

How are we doing that? We are working with our partner, Sport England, which is working on behalf of the Government to create new local football facility plans for every local authority in England. Over the next 12 months, we will know exactly the best places to invest in football on a supply and demand basis. That will include further artificial and grass pitches, school mini pitches and Parklife hubs—a new programme aimed at developing a sustainable model for supporting local football facilities. Some hon. Members may have visited the hub sites in Sheffield and London, with state-of-the-art artificial grass pitches available to people of all ages and abilities. We hope to deliver increases in football participation in every city. New hubs are on the horizon: hubs in Liverpool and, close to my constituency, in Southampton will open this year, with further cities in the pipeline.

The new local football plans will align with the new national football strategy, working together to ensure that we take stock of the facilities over the next 10 years and get closer to the number of facilities that I think we would all like to see. We must ensure that the Football Foundation is the right delivery model, that we have the right mechanisms and that there is sufficient capacity in place to deliver the increase in local investment. We must recognise that there is ongoing and increased demand for local facilities, so we need those local football plans.

Although the proceeds from a Wembley sale would have no doubt accelerated investment into facilities, we are not simply standing still on this issue, despite the changes to that potential deal. Shortly, I will shortly meet the EFL, the FA and the Premier League, looking to them to reaffirm their commitment to working with Government to significantly improve the provision and quality of football facilities, and focusing on participation levels across all demographics. I will also discuss with them whether the levels of investment are sufficient to meet the expected demand, and to address some of those statistics I mentioned earlier. I will ask key questions about what needs to be done and where it will be done. I will be there to champion the grassroots.

I am alive to the fact that there are other issues of concern in football, and I fully intend to work with the sport to address them. Only last week, I responded to a debate about the alarming problems with the ownership of Coventry City. We need to address the other side of football, and I will work with the authorities to do that. The so-called fans who cause discrimination incidents continue to make the headlines. We do not want football to return to its worst days. I will discuss that and ensure that the football authorities and all relevant stakeholders know that further decisive action can and must be taken.

Time is against me, so let me summarise. This has been a very useful debate. I reaffirm the Government’s commitment to strengthening grassroots football. It is absolutely right that the continued commercial success of elite football is reflected in the support it gives all levels of football, and I will champion that. I do not want grassroots football to continue to be seen as a poor relation, and I will work with the football authorities and all stakeholders in the coming weeks.

Motion lapsed (Standing Order No. 10(6)).

Freehold Estate Fees

Tuesday 22nd January 2019 Westminster Hall

17:41

[Helen Goodman (Bishop Auckland) (Lab)]

I beg to move,

That this House has considered freehold estate fees.

It is a pleasure to see you in the Chair, Mr Hollobone. The residents of Hazelbank in Canney Hill in my constituency first brought this issue to my attention. I am grateful to them and to homeowners in the Burton Woods, Durham Gate, Grangefields, Merrington Park, Middridge Vale and Moorcroft developments who have shared their experiences with me. I also thank Cathy Priestley and Halima Ali from the national Homeowners Rights Network—HorNet—campaign group.

[Catherine McKinnell (Newcastle upon Tyne North) (Lab)]

I congratulate my hon. Friend and north-east colleague on securing this important debate and on her Freehold Properties (Management Charges and Shared Facilities) Bill, which I am pleased to co-sponsor. I am also pleased to add my thanks for the work of my Great Park constituent Cathy Priestley, whom my hon. Friend rightly mentions. I commend Cathy, who has worked tirelessly to raise awareness of these issues. Does my hon. Friend agree with me and Cathy that one of the key concerns for private homeowners in such developments is the sheer lack of transparency about what they are paying for?

[Helen Goodman]

My hon. Friend is absolutely right. The lack of transparency is a significant problem across the country. I did a survey, which I thought would be for people in Bishop Auckland, but I got responses from Ulster to Plymouth, which shows what a massive problem this is.

If offered the choice between a leasehold property and a freehold property, most prospective homebuyers would opt for freehold. Who would not want the permanent and absolute tenure of their property, with all the freedom and security that promises? However, the large property developers—Barratt, Bellway, Persimmon and Taylor Wimpey—sell properties that are not free from hold but come with financial obligations and restrictive covenants administered by property management companies such as Greenbelt, Gateway, FirstPort and Trinity Estates, which take ownership of communal spaces once the developer has moved off the site.

[Mr Adrian Bailey (West Bromwich West) (Lab/Co-op)]

I congratulate my hon. Friend on securing the debate. She mentioned Greenbelt. I have a problem in my constituency that goes back 16 years, when a group of people purchased houses from Bellway. The adjoining land is administered by Greenbelt. Since then, those people have paid fees every year for the very basic administration of that land, but the company has failed to take the remedial measures necessary to prevent the area from becoming a centre for antisocial behaviour. The residents have complained; one went to court but lost their case. Does my hon. Friend agree that there needs to be more transparency when freeholders buy their property from developers? Secondly, does there need to be a cheap adjudication system to ensure that the balance of interest between the freeholders and the companies is far more even than it is at the moment?

[Helen Goodman]

Yes, of course. There needs to be more transparency and a system of redress, as my hon. Friend says. There also need to be some rules of the game about the standard to which the estates are built in the first instance. The management companies charge residents an inflated annual fee—in exchange, apparently, for tending to grassy areas, shrubs and other facilities on the estate. That is on top of their council tax.

This is a scandal. There has clearly been mis-selling. The public perception of freehold is deliberately exploited by the property companies in their sales materials. Many homebuyers are not made aware of the arrangements for the management of open spaces until the completion of the sale. One of my constituents reported that the first they had heard of their management company, which was Greenbelt, was a threatening late payment letter. They had not received a bill, let alone a welcome pack.

There is no room in the glossy brochure for an outline of the legal arrangements, but there always seems to be plenty of space for images of parks, playgrounds and woodland areas, backed up by verbal assurances from the sales rep that they are planned for the estate. Those promises are then broken and the land is passed or sold on to the maintenance company.

For example, at DurhamGate, a large housing development in Spennymoor in my constituency, the plans promised a “green spine” running through the centre of the site. Several years in, and with the site still under construction, residents are being hit with a full-price fee of £120 a year. Another of my constituents reported receiving a maintenance bill for a parking area that did not exist. The fees charged to residents for the maintenance of their estates are high, rising, uncapped and completely unregulated.

In Bishop Auckland, the annual fee for each household is somewhere between £100 and £200 a year, depending on the site. At first that does not sound too onerous, but when we consider that 278 neighbours on the estate are also paying the fee, it is obviously a grossly excessive £30,000 just for mowing some grass. In other parts of the country, in line with higher house prices, fees can be up to £400 or £600; I have even heard of fees of £800 a year. There is no limit to price increases and residents frequently report an annual leap in the fee. As my hon. Friends have said, there is no transparency and little accountability.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I thank my hon. Friend for securing the debate. I draw a comparison between the fees that councils ordinarily charge for communal services and the kind of fees she is talking about. Does she agree that if councils were so opaque and unreasonable, they would rightly be held to task by their electorate?

[Helen Goodman]

My hon. Friend makes a very good point. We need more transparency and greater accountability, and I will come on to how we might secure those things. One of the things that homeowners have noted is their frustration that they do not have any control over who the managing agent is. The relationship between the big builders and their favourite management companies and the processes for acquiring these communal spaces are shrouded in mystery. The fees appear to be plucked from thin air. In some cases, a vague “administration” category accounts for up to 70% of the total bill.

What do homeowners get in exchange for their fee? Of the 200 people who completed my survey, only one indicated a very good standard of maintenance. That was perhaps an optimistic assessment. The person went on to explain that

“the grass is cut regularly, but…we were promised a play park and village green with a pond. None have materialised.”

Others complained of dead or dying trees, poorly maintained shrubberies, wastelands, fly-tipping, broken or absent street lighting, playgrounds awaiting repair and a general absence of the management company, aside from requests for payment. Specific complaints included how Greenbelt was using a strimmer within a dedicated nature park set up to protect newts; in another case, a community hedgerow project was destroyed.

Homeowners in freehold properties currently have no way to challenge unfair fees or poor service; the power is almost entirely in the hands of the management company. My constituents have faced threats to block the on-sale of their properties, and they have been threatened with bailiffs and court action if they do not adhere to the demands of the management company.

[Mary Glindon (North Tyneside) (Lab)]

I congratulate my hon. Friend, as everyone else has, on securing this really important debate. Something that really frightened me about the case of one of my constituents was that she did not realise that if she defaults on her rent charge, the rent charge owner can repossess her property and enjoy the same rights as if she had never had the transfer of the freehold in the first place. I am sure my hon. Friend will agree that that is petrifying.

[Helen Goodman]

What my hon. Friend says is absolutely right. That is a misuse of the Law of Property Act 1925. That is why we are looking to the Government to make some legal changes. This is not just bad behaviour; this is clearly a deliberate strategy and the company has obviously taken very expensive legal advice in order to develop that strategy. To stop them, we will need some legal change.

I heard from somebody who lives in the west midlands—I do not know whether it was a constituent of my hon. Friend the Member for West Bromwich West (Mr Bailey)—who said that he had had a 17-year battle with Greenbelt and that he was charged legal fees of £25,000. Obviously, the ordinary homeowner cannot afford to shell out on legal fees like that.

Despite their name, property management companies appear to have no interest in actively managing the land they acquire. On the website of London and Economic Properties Ltd, a Wiltshire-based firm that manages the Middridge Vale development in Shildon in my constituency, property is listed under its “investments” section. The company boasts of its

“enviable track record, investing across the property spectrum to deliver profits for shareholders.”

There is no mention of homeowners. It says of the land at Shildon that it

“benefits from grant income from the Forestry Commission as well as a housing levy from the adjacent housing development which…will provide an annual payment in perpetuity of £100 from each of the 278 houses”.

There is no mention of the company’s obligations as the caretaker for the site. Ultimately, that is the problem: these extortionate fees and poor service are the result of a culture that sees housing as an abstract investment, rather than the foundations of our families and communities.

This is a massive scam. The House of Commons Library gave me figures that suggest that perhaps half a million people have been affected by this problem in the last 10 years. That means that somebody or some people are coining in about £100 million a year.

What change is needed? The Government have outlined their commitment to reform the process for those buying a new build home to obtain redress. They intend to bring forward legislation to require all developers to belong to a new homes ombudsman. They have also said that they hope to offer freeholders the same rights as leaseholders to challenge the reasonableness of charges at a property tribunal. Can the Minister say when that will be done? When will he bring forward these measures?

Legislation to improve access to dispute resolution is helpful, but it does not tackle the root problem. The Freehold Properties (Management Charges and Shared Facilities) Bill, which I introduced in November, recommended three changes for homeowners who are already caught in this trap. First, it would cap and regulate estate maintenance fees, to give homeowners financial stability and allow them to buy and sell their homes knowing that costs cannot increase indefinitely. Secondly, it would introduce measures to ensure that shared spaces are maintained to a proper standard, perhaps through something similar to the new homes ombudsman. Thirdly, it would contain provisions for residents if they chose to opt out of their management company and to self-manage, if that was what they wanted to do.

For estates yet to be built, the planning regulations need to be tightened, to require them to be built to an adoptable standard. Local authorities are currently often willing to adopt spaces in exchange for an agreed sum from the developer to cover upkeep for a fixed period. For example, Durham County Council asked for 15 years’ worth. That is a reasonable ask of an industry that can afford to pay its chief executive officer bonuses of £75 million.

Many of these estates were built with support from the Government’s Help to Buy scheme, financed by taxpayers. I would like the Minister to tell us this afternoon that the Government are going to stop providing support to any development using that model. Will the Minister also refer the mis-selling aspect of this to the Financial Conduct Authority to investigate, and to the Law Society, to strike off lawyers who have worked unethically in the interests of property dealers while taking fees and purporting to work for homebuyers?

A situation has arisen whereby the private estates model is rapidly becoming the norm for new developments, with those who have saved hard for their homes bearing an unfair burden and builders treating them as a cash cow. Homeowners do not want sympathy and understanding. They want action, and they would like to see action now. I hope the Minister will be able to make a clear, timetabled commitment this afternoon. I am looking forward to hearing his response.

[Several hon. Members rose—]

[Mr Philip Hollobone (in the Chair)]

Order. The debate lasts one hour and the finish time is 6.41 pm. I am obliged to call the Front-Bench spokesman for the Opposition no later than 6.19 pm, but until then it is Back-Bench time. Four Members are seeking to contribute, but I will need to impose a time limit on speeches of five minutes. The first speaker will be Preet Kaur Gill.

17:57

[Preet Kaur Gill (Birmingham, Edgbaston) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I thank my hon. Friend the Member for Bishop Auckland (Helen Goodman) for securing this debate and for the work she is doing with her Bill to regulate freeholders and to ensure that freeholders have sufficient rights.

Under section 19 of the Leasehold Reform Act 1967, the creation of schemes of management allows landlords or scheme managers to receive and require fees from management charges. I welcome the work to support new builds, but the Government should go further than that—I wonder whether my hon. Friend agrees—and strengthen the legal position of all freeholders so that they have access to information about where the money they are being forced to pay is going and what it is being spent on.

As it stands, the balance of power is not appropriate or fair. Freeholders are not able to ask for details of where the money they are charged as part of estate management schemes goes. However, management companies are able, by law, to use enforcement agents to collect the money. Does that seem like a reciprocal relationship?

I have residents in my constituency who are freeholders but who are still obligated to pay management fees, separate and additional to service charges. Residents are concerned about the lack of transparency, and they have a feeling of helplessness when trying to find out where the money is being spent, or how much money is left in the pot. Despite paying into this opaque fund, the freehold residents are entirely powerless to compel enforcement of the management scheme.

Freehold residents are unable to ensure enforcement of the scheme that they pay into and cannot hold anyone to account over expenditure. We need transparency, for them to be able to hold it to account. I understand that the Government are legislating to give freeholders the equivalent rights to leaseholders when it comes to challenging service charges. Will the Minister extend that to management charges as well? If not, will he explain what the difference is?

17:59

[Mark Tami (Alyn and Deeside) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I congratulate my hon. Friend the Member for Bishop Auckland (Helen Goodman) on securing this debate.

I am old enough to remember when developers would build estates that were brought up to adoptable standards, a bond was put down and the council would adopt and take responsibility for generally doing what we all expect to be done around our homes. A lot has changed. Councils now do not have much money and are probably keen to pass that responsibility on. As my hon. Friend the Member for Bishop Auckland said, developers have found another money-making exercise—a bit like leasehold, really—to squeeze even more money out of their sales.

In my own area, companies such as Persimmon in Buckley, Taylor Wimpey in Penyffordd and Bloor Homes in Broughton have passed that maintenance requirement on to maintenance companies: my hon. Friend has mentioned Greenbelt, and Trinity is another one of the big players. A person needs only to look on the internet and Google those companies to see what the average resident thinks of the service they are providing.

When people move in, perhaps the charge is only £100 a year at first; it does not seem too much and people are not that bothered about it. The lawyers have perhaps not pointed it out because, as my hon. Friend the Member for Bishop Auckland has said, they may well be close to the people selling the properties.

By year two, that charge may have risen to £200, and by year three, it may be £300 and so on. There is very little explanation of exactly what the charge is for, or indeed what the tendering process is for the people supposedly doing the work, when the work is actually done in the first place. These are not luxury London developments that have a swimming pool, a gym, and perhaps someone sitting on the front desk. The charge is for cutting the grass and, in some cases, maintaining a play area and maybe a nature area as well.

On top of the standard charge, there are things that are not covered—a very vague category. Greenbelt, in its nice, glossy little brochure showing happy, smiling people who are no doubt delighted to be paying the fees that the company charges, has a list of services. One of those is fencing, and under “What is covered?” it says “Fences will be checked as part of the routine supervisory inspections. The condition of the fence will be monitored and any repairs instructed as and when required.”

If we move on to things that are not covered but are chargeable, we find “fencing works”, which “will be identified as part of the routine supervisory inspections. The conditions of the fence will be monitored and any works instructed as and when required.” Now, to the ordinary person, those sound very similar, yet people are being charged extra for the work that is not covered.

Indeed, the list of things that can be charged for in these circumstances is a very open one; as I have said, residents in many cases are not aware of what they are being charged for. When people move in, certainly in their first year, there does not appear to be any breakdown of the charges. As my hon. Friend the Member for Bishop Auckland said, when a breakdown is provided, it appears that half of that charge—if not more—is the management fee. In my experience, that management fee is never broken down, and it is never explained exactly how that large sum of money comes about.

[Catherine McKinnell]

I see a lot of similarities in the speech that my hon. Friend is making. Does he agree that there is frustration not only about the charges being levied, but about the fact that the standards being maintained are often not as good as they would be had those estates been adopted? I know of some cases in which children have practically lived in a home, left that home and gone to university before they have the basics, such as pavements, on their estates.

[Mark Tami]

My hon. Friend is right. The issue of how estates are left is a broader one: quite often, the moment the last house is sold, the developer does not want to know. As for the standard of work that is being carried out by the maintenance companies, I have heard from loads of people who say that they go out themselves and cut the grass in the communal areas, because those are left in such a terrible state.

Many people have described the charges as like a second council tax. They are now reaching a level that is not the £100 that people started off with; it is a much higher figure, particularly for something that most people thought was covered by the council tax that they pay in the first place. Freeholders who face those charges are now coming to me and saying they are increasingly worried that they could affect the saleability of their property in the future, just as leaseholders are telling me that sales are falling through because people look at a property and say, “I am not going to buy that.” That is just not acceptable.

At the moment, there are effectively no legal protections for people. Leaseholders have some, but they are very weak. My constituency has a lot of mixed estates where, between two houses next to one another—often both exactly the same—one is leasehold and one is freehold. What they have in common is that they both have to pay management charges.

I will summarise because I know other hon. Members wish to speak. People feel abandoned. They feel that the law does not actually protect them and that they do not have any redress. I welcome what the Government have said about leaseholds. My concern is that that relates only to people building houses, selling them and moving on. What about the people already affected by the arrangements, just as leaseholders are? We need to look after them and ensure that they have fair redress against unfair charges. Residents should have the ability—where they want to—to form their own management companies, run their own maintenance and put out tenders. The council might want to tender for some of that work and could provide it at a considerably cheaper cost. The charges are unfair. We really need to get to grips with the issue because otherwise we will store up huge problems for people in the future.

18:06

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to serve under your chairmanship once again, Mr Hollobone. I am delighted to follow my constituency neighbour, my hon. Friend the Member for Alyn and Deeside (Mark Tami). We may be on separate sides of national boundaries, but our constituents clearly have many issues in common, not least the terrible way that exploitation has seeped into what should be a well-regulated and secure investment.

I congratulate my hon. Friend the Member for Bishop Auckland (Helen Goodman) on securing the debate and on her work to address these issues through her private Member’s Bill. Hon. Members will be aware that I have also introduced my own Bill, to usher in a fairer, more streamlined and transparent system to enable the purchase of freeholds by leaseholders. On many occasions, both in this Chamber and the main Chamber, I have listed the abuses perpetrated by freeholders in the current feudal system. My hon. Friend the Member for Bishop Auckland gave an excellent explanation of the issues in the management of such properties, and after listening to it, I believe that there are many parallels between the two measures.

Regulation is long overdue. Homeowners have been subjected to unjustified extra costs and there is a distinct lack of transparency. It is clearly another example of homeowners falling foul of greedy developers and the more insidious practices that they have adopted in recent years. We have seen that happen with ground rents and consent fees for leasehold properties, whether flats or houses, where developers have become ever more adept at squeezing cash out of homeowners for the provision of grounds maintenance and other communal services.

As my hon. Friend the Member for Bishop Auckland highlighted, we now see “fleecehold” estate fees. Freeholders and residents on private housing developments find themselves facing escalating costs when the developers from which they purchased their homes in good faith sell off the grounds maintenance to private providers. In blocks of flats, the practice of spurious service charges has developed. In my constituency, a management company that managed only four flats in a block suddenly increased the service charge from around £50 a year to £911 a year. Many of those charges were questionable and the insurance charge in particular stood out, because the insurer seemed to be very well connected and had the same name as the management company. That would simply not be allowed for any other consumer purchase, so why it is allowed in this instance?

As hon. Members have said, the idea of the developer paying the local authority a commuted sum to cut the grass and maintain the common parts has had its day. I am unclear whether the blame for that lies with cash-strapped local authorities asking for too much or with developers being unprepared to cough up more funds in advance. The net effect of that is that more and more homeowners are being asked to pay twice for the maintenance of open spaces: once through a management fee and once through their council tax.

Council tax pays for lots of things, but something as visible and obvious as grounds maintenance leads people to ask a pertinent question: why are they facing a double whammy? My suspicion is that developers will always be tempted to save themselves the expense of paying an up-front sum to the local authority by instead letting their customers pay further down the line, long after they have fled the scene. Of course, someone buying their first home—probably with Help to Buy—will, in reality, have nowhere else to go and will have to accept those arrangements whether or not they genuinely consent to them.

What is wrong with just building and selling family homes? Why are buyers being subjected to covert efforts to squirrel in extra income? Is the sector so avaricious that it has to squeeze every last penny out of young families who have to scrimp and save just to get on the housing ladder? As with ground rent, consent fees and leaseholds, our plc house builders have had £8 billion of help through the Help to Buy scheme. They have trousered that assistance to rip off customers in their own schemes. Developers simply cannot be trusted to play fair with their customers, or with us, as wider taxpayers.

We have a huge shortage of housing. There are significant barriers to buyers getting on to the housing ladder, and a handful of huge companies are responsible for the vast majority of housing delivery. That reliance on a small group of developers has been a very poor deal for the taxpayer, and was the backdrop against which the leasehold scandal emerged.

It cannot be right that the companies that are guilty of the industrial-scale rip-offs that we have heard about regarding both leaseholds and the issue being discussed today are the same ones that we end up relying on to get out of our very real and damaging housing crisis. There is an over-reliance on the market—a market that, to me, is broken—to deliver the new homes that we desperately need.

The net effect is that there is little protection for homeowners. People deserve far more protection than they currently get. Sadly, I have seen very little evidence to suggest that developers will act responsibly and adopt fair and reasonable practices on a voluntary basis. The whole system needs a shake-up, and it needs it now.

18:11

[Julie Elliott (Sunderland Central) (Lab)]

As ever, it is a pleasure to serve under your chairmanship, Mr Hollobone. I, too, thank my hon. Friend the Member for Bishop Auckland (Helen Goodman), who is a close neighbour, for securing this debate on such an important issue, which affects every constituency in the country, and certainly many of my constituents in Sunderland Central.

In my years as an MP, numerous constituents have come to me about the subject of freehold properties and management costs. They come with real issues regarding the environment around their properties and the lack of care by companies. They often pay large sums of money that increase without much notice or any relation to cost. They are paying the money—often hundreds of pounds a year—that they agreed to and not getting the services or the maintenance that they are paying for. In an area such as Sunderland, which is a low-wage area, it is often a large proportion of the money coming into people’s homes every week. They are keeping their side of the contract, but the companies are not keeping theirs.

I would like to highlight a couple of things that have happened to my constituents. A light in a communal area took six months to get fixed, and when it was fixed the light was unsuitable for the job it had to do, and was not to the standard of the one before. That led to all sorts of issues to do with safety and all the other problems, including antisocial behaviour, that come when areas are not lighted.

Another example was people coming to do a grounds maintenance job sitting in the van all day because there was nobody to direct them or instruct them about what to do. Not only is paying people to sit in a van not knowing what to do an absolute waste of the company’s resources, it wastes the hard-earned money of my constituents, who pay fees for a job that should be done.

I endorse the points that have been made by my colleagues, and I will not repeat them. Sadly in the current climate, many people would like local authorities to take over maintenance issues, but in Sunderland we have had cuts to our local authority budgets of some £250 million since 2010, so financially it is simply not an option. Councils are struggling to maintain their frontline services, and they do not have the funds to put aside to take over that responsibility.

Effective and intelligent regulation can ensure that this does not happen again. Transparency needs to be brought into the system, and the Government need to act. It is not good enough simply to act in future on new properties; we have had many years of problems building up. In some cases, it is making houses unsellable, which needs to be addressed. The Government need to look very carefully at what they can do to mitigate the problems of people who already live in and own their own properties, and are paying these very unscrupulous, completely not transparent fees.

18:14

[Sarah Jones (Croydon Central) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I congratulate my hon. Friend the Member for Bishop Auckland (Helen Goodman) on securing the debate and on her substantial work on the topic.

As we have heard, homeowners on private estates across the country are being fleeced through a system of spiralling fees, shoddy service, lack of choice and zero accountability. We know it is an issue that affects up to 1.3 million households and it is a problem that mirrors the exorbitant service charges and draconian standards facing leaseholders. It is a problem that the Government have had years to fix, but they have yet to do so.

We heard in colleagues’ eloquent speeches just how obscure some of the charges are. My right hon. Friend the Member for Alyn and Deeside (Mark Tami) told us about the fence that would be looked at but not actually fixed. My hon. Friend the Member for Sunderland Central (Julie Elliott) told us about the light that took six months to replace, but which was not replaced correctly. My hon. Friend the Member for Birmingham, Edgbaston (Preet Kaur Gill) spoke powerfully about people’s sense of feeling helpless and powerless. We heard from my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) about how developers are finding additional ways to fleece people and charge more and more. The Government have failed on a number of levels. I hope that today we can take a positive approach to the issues and take action on them.

My hon. Friend the Member for Bishop Auckland made some very good suggestions. Homeowners have been raising the issue for a while. In 2016, the HomeOwners Alliance said that

“this new model has crept in without democratic scrutiny or discussion and over the past 10 years or so has become the industry standard.”

Back in 2017, the Government said that this was a problem and that they would introduce changes to the law. It is not enough to accept that there is a problem—we need to act.

The second problem is that, as discussed, when the Government published proposals to fix the problem, they did not go far enough. The Government say that they will give freeholders the right to challenge the reasonableness of charges or appoint a new manager, via tribunal, in the same way as leaseholders currently can. We know from the Government’s own repeated consultations on fixing the leasehold sector that the system currently in place for leaseholders is not working. People are not going to trial because they fear the complexity and potential cost of the process. Property companies turning up with teams of lawyers make an imbalance and a mockery of the system.

My hon. Friend the Member for Poplar and Limehouse (Jim Fitzpatrick) has previously calculated that the overcharging of leaseholders through extortionate service charges is up to £1.4 billion per year. Why are the Government presenting access to tribunals as the solution when that has abjectly failed to stop abuses in the leasehold sector? The Government admit that failure and in April last year they accepted that managing agents needed independent regulations. I understand that a working group under Lord Best is designing the new regulatory regime to cover aspects such as leaseholder service charges. Will the Minister confirm whether freehold estate management will be covered by the new independent regulator, and if not, why not?

The proposals set out by my hon. Friend the Member for Bishop Auckland are much more likely to tackle the abuse of homeowners, with caps on estate charges, minimum standards and powers for residents to take over management of communal areas. That last proposal would mirror the system of commonhold for shared residential property. I hope the working group currently designing the regulatory system will consider those proposals.

The third failure of Government is that they have let a system develop whereby roads, green spaces and other public spaces are effectively privatised. Even those who are not being ripped off are effectively paying twice, as has been pointed out. They pay council tax, which contributes to maintaining communal areas under council control, and then they pay again for the private maintenance of their own areas. The Government could stop that all together—they should act. We have discussed who is at fault; I do not think we can blame councils, because of the 50% cuts in local authority funding under this Government and the £7.8 billion predicted black hole in local services by 2024-25.

Overall, the Government have been too slow, too weak and lacking in ambition. Today’s debate shows that the Opposition could do better across the board. The Government talk a lot about their credentials on home ownership, but today’s debate is just another example of their failing people who have worked hard to buy their own home. Eight years of Conservative failure on home ownership is exacerbated by this very contentious issue, which affects many people and on which the Government could act.

I want to end by quoting the hon. Member for Bishop Auckland, who said that housing is being seen as an abstract investment rather than as the foundation of our families and communities. Homeowners want action and they want it now, and I very much agree with them.

18:20

[The Minister for Housing (Kit Malthouse)]

It is a great pleasure to serve under your wise and sanguine chairmanship once again, Mr Hollobone. The hon. Member for Bishop Auckland (Helen Goodman) and I shared many thrilling meetings of the Select Committee on the Treasury, and I congratulate her on securing this debate. I know that she is promoting a ten-minute rule Bill, and I thank her for the opportunity to debate an issue that affects not only her constituents but mine.

This Government are committed to making the housing market work. We aim to increase house building to an average of 300,000 net new homes a year by the mid-2020s. It is vital that as housing supply increases, the quality of new developments continues to improve. We expect all housing developers to deliver good-quality housing and estate facilities, to deliver it on time, and to treat house buyers fairly. Fairness includes making house buyers aware of arrangements for the upkeep of communal facilities and any fees for which they may be liable.

As hon. Members have pointed out, many freeholders must pay charges towards the maintenance or upkeep of communal areas on an estate. The obligation to pay these charges might be provided by a deed of covenant or through an estate rent charge that forms part of the purchase contract. These charges can include contributions towards the upkeep of open spaces on an estate, or for the maintenance of roads and other infrastructure that is not adopted by the relevant authorities. Hon. Members have quite rightly raised concerns about the lack of redress should a freeholder disagree with these charges, and there have been disputes about who should be responsible for, and control, the maintenance of communal areas. In many cases, contracts do not specify, limit or cap those freeholder charges. This lack of transparency leaves homeowners in a vulnerable position.

Leaseholders have a whole suite of protections and rights that enable them to hold management companies to account. Freeholders have no such equivalent, even though they might be paying for the same or similar services. The current situation is unfair to freeholders, and we are committed to introducing legislation to plug that gap. We set out our proposed approach to implementing these measures in the recent leasehold reform consultation, which closed on 26 November. We intend to create a new statutory regime for freeholders that is based on the rights enjoyed by leaseholders. This would ensure that maintenance charges must be reasonably incurred and that services provided are of an acceptable standard, and it includes a right to challenge the reasonableness of charges at the property tribunal.

[Mark Tami]

As with leaseholders, it should be relatively easy to sort out the problem. The issue is that people are already in these arrangements. We should ensure that they can do something about it, so that they do not feel that they are not covered or that no one cares about them.

[Kit Malthouse]

The right hon. Gentleman raises a valid point. We are also considering whether freeholders should have a right to change the provider of maintenance services by applying to the tribunal for the appointment of a new manager, which might be useful for existing freeholders if they are dissatisfied with the service they receive. The Government intend to introduce legislation to implement the changes as soon as parliamentary time allows. The hon. Member for Croydon Central (Sarah Jones) quite rightly challenged us on when that might be; she will know that we have an exciting and packed legislative timetable at the moment, but our aspiration is that the legislation will be introduced within the next 12 months. I realise that there are many impatient freeholders out there, but we have to deal with the small matter of national destiny before we get on to equally pressing matters on the domestic agenda. I assure her that we will give it our attention as soon as we can.

It is absolutely right that consumers should have fair, quick and easy ways to get things put right when they have problems. In October we announced our intention to introduce legislation to require all developers to belong to a new homes ombudsman. Last year, we consulted on how we could improve redress for residents across all housing sectors, and we will publish our response to that consultation shortly.

It has been argued that local authorities should be compelled to adopt all communal facilities on a new estate. At this point it is worth pausing to consider planning arrangements and how they support new developments. When a new development is granted planning permission, local authorities can use conditions, or a section 106 planning obligation, to secure a commitment from developers to provide and maintain open and communal space. This means that the local authority does not have to adopt or maintain the land at its own expense.

It is up to developers and the local planning authority to agree appropriate funding arrangements as part of those commitments. Conditions and planning obligations cannot, however, currently be used to compel local authorities to do something. The local authority has powers to ensure that developers build and maintain communal facilities to the standards and quality set out in the planning permission. In terms of roads, local highways authorities are responsible for the maintenance of local public roads in England. A decision on whether to adopt a road is a matter for the local highway authority and the Government have no direct role in that process.

It has been suggested that freeholders who pay these charges should receive a rebate in their council tax. We think that argument is misplaced. The amount of council tax due from each of us is not adjusted to reflect the specific level of services we receive as residents of the area. Instead, the level of council tax helps the authority to deliver a broad range of services to the wider community in its area. It is open to local authorities to offer council tax discounts to individuals or groups of taxpayers. This is an entirely local decision.

In the end, all these matters have to be paid for. There is only so much money that can be extracted from a particular housing development. It is therefore at the discretion of local authorities to decide the balance of 106, the cost to them of adopting measures, and where and when maintenance should fall on residents rather than on the local authority.

It should always be clear to potential purchasers what the arrangements are for the upkeep of open space and the maintenance of roads. However, we do not think that requiring local authorities to adopt all communal facilities on new developments is the right approach. It removes local flexibility and, in our view, sends the wrong message to developers about their responsibilities.

I do agree with the hon. Member for Bishop Auckland regarding redress. Consumers must have effective ways to get things put right when they have a problem with their housing. That is why we are committed to legislate, so that freeholders have a right to challenge the reasonableness of any maintenance charges for which they are liable. That is why we will establish a new homes ombudsman to protect the interests of homebuyers and hold developers to account when things go wrong.

The hon. Member for Croydon Central asked four specific questions. First, I am certainly willing to consider the suggestion to use Help to Buy as a lever to improve standards. Secondly, on mis-selling, it is open to any hon. Member to make a reference to the regulatory authorities, whether that be the FCA or the Senior Salaries Review Body. Is the hon. Member for Bishop Auckland still on the Treasury Committee?

[Helen Goodman]

indicated dissent.

[Kit Malthouse]

Well, the hon. Lady knows the FCA well, so if she wants to make a reference, then by all means she should. She asked me about the legislative timetable. Our aspiration is for some time in the next 12 months. The terms of reference have not been decided for Lord Best’s review of leasehold and whether those lessons could be transferred across the field. We will certainly consider that suggestion as part of the process.

In conclusion, it is certainly the case that as a constituency MP I have experience of exactly the issues that have been raised, and I have been in discussion, shall we say, with the developers concerned in my own constituency, so I am well aware of the issues that have been aired this afternoon. I am grateful to the hon. Lady for bringing such focus to the matter. I assure her that we will take action as soon as we can.

18:28

[Helen Goodman]

We have had an important and worthwhile debate. I am grateful to all my colleagues for their contributions. I was overwhelmed with offers for sponsorship from across the House when I introduced the ten-minute rule Bill.

I think we are creeping forward—or, rather, the Minister is. There will be legislation—perhaps in 2019, perhaps not. He has accepted that we need a new right of redress. He has not, however, agreed to any system for regulating the fees or ensuring transparency. I think that will be a disappointment to many of my constituents. However, I shall do as he suggests and take it up with the Financial Conduct Authority. That will be the next act in my campaign, to make some progress. It is clear that the issue affects hundreds of thousands of people and we need change fast.

Question put and agreed to.

Resolved,

That this House has considered freehold estate fees.

18:30

Sitting adjourned.

Written Statements

Tuesday 22nd January 2019 Written Statements

Tuesday 22 January 2019

ECOFIN: 22 January 2019

Tuesday 22nd January 2019 Written Statements

[The Chancellor of the Exchequer (Mr Philip Hammond)]

A meeting of the Economic and Financial Affairs Council (ECOFIN) will be held in Brussels on 22 January 2019. The Council will discuss the following:

Early morning session

The Eurogroup President will brief the Council on the outcomes of the 21 January meeting of the Eurogroup, and the European Commission will provide an update on the current economic situation in the EU. Following this, the Romanian presidency will hold a discussion on the priorities for the next EU institutional cycle.

InvestEU

The Council will hold a policy debate on the InvestEU programme.

European system of financial supervision review

The Council will hold a policy debate on the review of the European system of financial supervision.

Current financial services legislative proposals

The Romanian presidency will provide an update on current legislative proposals in the field of financial services.

Presidency work programme

The Romanian presidency will present its work programme for January to June 2019, followed by an exchange of views.

European semester 2019

The Council will be invited to adopt Council conclusions on the 2019 annual growth survey and the Council conclusions on the 2019 alert mechanism report. The Council will also be asked to approve a Council recommendation on the economic policy of the euro area.

Economic and monetary union

The presidency will provide an update following the euro summit in December 2018.

[HCWS1262]

Surveillance Camera Commissioner: Annual Report

Tuesday 22nd January 2019 Written Statements

[The Minister for Policing and the Fire Service (Mr Nick Hurd)]

My right hon. Friend the Home Secretary is today laying a copy of the 2017-18 annual report of the Surveillance Camera Commissioner before the House, as required by section 35 of the Protection of Freedoms Act 2012.

The Surveillance Camera Commissioner is an independent role appointed under section 34 of the Protection of Freedoms Act 2012.

The annual report covers the exercise of the Surveillance Camera Commissioner’s statutory functions over the year to 31 March 2018 and provides a comprehensive update on the progress made against the “National Surveillance Camera Strategy for England and Wales”, which the commissioner published in March 2017.

[HCWS1261]

Dartford-Thurrock River Crossing Charging Scheme

Tuesday 22nd January 2019 Written Statements

[The Minister of State, Department for Transport (Jesse Norman)]

The Dartford-Thurrock crossing charging scheme account for 2017-18 is published today under regulation 3(1)(d) of the Trunk Road Charging Schemes (Bridges and Tunnels) (Keeping of Accounts) (England) Regulations 2003. A copy of the accounts will be placed in the Libraries of both Houses.

[HCWS1259]

Contingent Liability Notification

Tuesday 22nd January 2019 Written Statements

[The Parliamentary Under-Secretary of State for Work and Pensions (Guy Opperman)]

Today I will lay before Parliament a departmental minute describing a contingent liability of £329 million associated with the National Employment Savings Trust (NEST) Corporation.

Confidence in the long-term stability of the pension system is a prerequisite for effective participation and achieving secure incomes in retirement, which are at the core of Government policy in this area. For this reason, there is a distinct body of legislation about private pensions and a number of public bodies play important roles, including the NEST.

NEST was established by Government to support the policy of all employers being obliged to automatically enrol their eligible staff into a workplace pension scheme. NEST ensures that all employers have access to a low cost, high quality pension scheme.

The Pension Schemes Act 2017 introduced the definition of a “master trust” and the introduction of a robust new authorisation and supervision regime to ensure that master trusts being used for automatic enrolment are safe for the nearly 10 million people now saving in these schemes.

To be able to operate in the pensions market as a master trust, schemes, of which NEST is one, are required to meet five authorisation criteria prescribed in the Pension Schemes Act 2017.

One of the criteria is that the scheme must be financially sustainable and that in the event of a triggering event, an event that would put the scheme at risk of needing to wind up, the scheme must hold sufficient financial reserves to cover its gradual closure without putting these additional costs on to the scheme members.

As NEST is currently funded through a Government loan and, therefore, holds no financial reserves, the Pensions Regulator, which oversees the authorisation process, has suggested a “letter of comfort” from Government could provide a solution, which for Government accounting purposes is described as a contingent liability.

The letter confirms that, in the remote possibility of a triggering event occurring, Government would fund NEST through to closure and meet any one-off associated closure costs. This gives a remote contingent liability of £329 million. The expected loss as calculated by the Department is £16.45 million (based on the liability multiplied by risk).

DWP as sponsoring Department will manage the governance and risk associated with the contingent liability.

[HCWS1260]