Domestic Abuse Bill (Seventh sitting)
Thursday 11th June 2020
(4 years, 6 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 June 2020 - (11 Jun 2020)
The Chair
Good morning. I have to remind people of social distancing. If anyone is uncomfortable with the social distancing, please let me know. It is most important. The other plea is that if you have notes for your speeches, please send them to hansardnotes@parliament.uk. That is a good idea. I have always found that my speeches improve enormously if I send the actual words to Hansard.
Clause 53
Support provided by local authorities to victims of domestic abuse
Jess Phillips (Birmingham, Yardley) (Lab)
I beg to move amendment 67, in clause 53, page 34, line 23, after “area,” insert—
“by all persons affected by domestic abuse regardless of status, duly taking into account the special situation of women and children, with reference to a national needs assessment,”.
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
The Chair
With this it will be convenient to discuss the following:
Amendment 68, in clause 53, page 34, line 24, leave out paragraph (b) and insert—
“(b) prepare and publish a strategy for the provision of such support to meet the needs identified in its area by the assessment referred to in subsection 1(a) above, including sufficient specialist support for all persons affected by domestic abuse regardless of status,
(ba) in preparing and adopting any strategy, take account of any strategy to end violence against women and girls adopted by a Minister or Ministers, and”.
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
Amendment 69, in clause 53, page 34, line 26, after “strategy”, insert
“and publish such evaluation in accordance with subsection (5)(a) and such regulation issued under subsection (8)”.
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
Amendment 70, in clause 53, page 34, line 26, at end insert—
“(1A) The assessment and strategy referred to in subsections (1)(a) and (b) must, at a minimum, address the following matters—
(a) the prevalence of and trends in domestic abuse including that against women and girls, and the demographic of all persons in the area affected by domestic abuse;
(b) the needs for support, protection and safety of those who are affected by domestic abuse in the local population;
(c) the nature and extent of the need for and provision of specialist support in respect of those persons affected by domestic abuse with presenting characteristics including sex, gender, race, colour, language, religion, national or social origin, association with a national minority, sexual orientation, gender identity, age, state of health, disability, or such other relevant status;
(d) the specific needs of vulnerable persons including women and children regardless of status;
(e) the nature and extent of the need for and provision of specialist support to women who are affected by domestic abuse and their children;
(f) the need for and provision of refuge services in sufficient numbers to provide safe accommodation for victims, especially women and their children;
(1B) The relevant local authority shall allocate appropriate financial and human resources for the implementation of the strategy, including the arrangement of such specialist support as is set out in the strategy.
(1C) For the purposes of this section—
“domestic abuse support” means specialist support, in relation to domestic abuse, provided to victims of domestic abuse or their children, who reside in relevant accommodation, by organisations whose organisational purpose is to support victims and/or children and young people impacted by domestic abuse.
“relevant accommodation” means accommodation which is safe for victims and their children of a description specified by the Secretary of State in regulations. This must include refuge services, which are provided in separate or single-sex services within the meaning given in Part 7 of Schedule 3 of the Equality Act and the address of which cannot be made publicly available or disclosed.
“status” includes a status for the purpose of Article 4(3) of the Council of Europe Convention on preventing and combating violence against women and domestic abuse and combined forms of such status.
“national needs assessment” means the needs assessment prepared by the national oversight group referred to in section [National Oversight Group].”
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
Amendment 71, in clause 53, page 34, line 39, after “area,” insert—
“(ba) any person, group or organisation providing support and services with those affected by domestic abuse in the local authority’s area, whether or not they are commissioned by the local authority,”.
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity of what Local Authorities will need to consider when exercising that duty.
Amendment 72, in clause 53, page 34, line 42, after “appropriate” insert—
“to ensure equal representation and meet their equalities duties”.
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity of what Local Authorities will need to consider when exercising that duty.
Amendment 73, in clause 53, page 35, line 1, after “strategy” insert—
“but only further to undertaking a consultation of the kind referred to in subsection (4) above and taking into account the needs identified in the assessment referred to in subsection (1)(a) and any population and support needs changes in the local authority’s area”.
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
Amendment 74, in clause 53, page 35, line 1, at end insert—
“(ba) when undertaking a consultation to review or alter the strategy, must publish the timeframe for the consultation of the kind referred to in subsection (4) well in advance, and involve the person, group or organisation providing support and services in the consultation and review of the strategy, and”
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
Amendment 75, in clause 53, page 35, line 16, after “strategy” insert—
“additional to those identified in subsection (1A)”.
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
Amendment 76, in clause 53, page 35, line 21, after “strategy” insert—
“(f) how complaints about a local authority strategy will be handled;”.
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
Amendment 77, in clause 53, page 35, line 25, after “authorities” insert—
“(ba) persons, groups and organisations providing support and services with those affected by domestic abuse locally, regionally and nationally,
(bb) organisations representing the interests of services providing specialist support for women and children affected by domestic abuse,”.
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
Amendment 78, in clause 54, page 35, line 30, at end insert—
“(1A) The purpose of the board is to establish an equitable partnership that reflects the needs of those affected by domestic abuse in the local area and to deliver quality services that meet the needs of victims in the area identified in the assessment and strategy referred to in subsection (1) (a) and (b) of section 53.”
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
Amendment 79, in clause 54, page 36, line 3, after “area” insert—
“, and (h) at least one person representing the interests of organisations working with or providing specialist support for women and children affected by domestic abuse”.
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity about what Local Authorities will need to consider when exercising that duty.
Amendment 80, in clause 54, page 36, line 3, at end insert—
“(2A) The domestic abuse local partnership board must establish a reference group of organisations delivering specialist support services to victims of domestic abuse and their children, and respond to recommendations made by the reference group in their decision making.”
This amendment strengthens the duty placed on Local Authorities by Part 4 and provides clarity of what Local Authorities will need to consider when exercising that duty.
New clause 19—Secretary of State’s duty to ensure effective protection and support—
“(1) In exercising functions under this Act, the Secretary of State must take steps to ensure equally effective protection against domestic abuse and support for all victims of domestic abuse irrespective of their status, including steps aimed at ensuring that—
(a) domestic abuse is prevented;
(b) all victims of domestic abuse receive protection and access to specialist services;
(c) all perpetrators of domestic abuse are able to access quality assured perpetrator programmes;
(d) awareness of this Act is promoted.
(2) In discharging the duty under subsection (1) the Secretary of State must—
(a) ensure that sufficient funding is provided annually to ensure that relevant public authorities can meet their statutory duties under Clause [Duty to commission specialist domestic abuse support services]; and
(b) take steps to ensure continuous improvement in the outcomes that are achieved.
(3) The outcomes in subsection 2(b) include, in particular, outcomes which demonstrate—
(a) effective steps aimed at ensuring that domestic abuse is prevented;
(b) effective protection and support for persons, including children, against domestic abuse irrespective of their status;
(c) effective services to all adult and child victims of domestic abuse irrespective of their status;
(d) effective access for all perpetrators to quality assured perpetrator programmes; and
(e) effective steps to promote awareness of this Act.
(4) Every three years from the date on which this section comes into force the Secretary of State must prepare, publish and lay before Parliament a strategic plan setting out their objectives, priorities and the measures they propose to take for the purpose of discharging their duty under subsection (1).
(5) In preparing and adopting any strategic plan under subsection (4) the Secretary of State must take account of any strategy to end violence against women and girls adopted by a Minister of the Crown.
(6) In this section—
“quality assured” means meeting standards determined and published by the Secretary of State.
“status” means a status for the purpose of Article 4(3) of the Council of Europe Convention on preventing and combating violence against women and domestic violence, and combined forms of any such status.
“victims of domestic abuse” includes—
(a) persons towards whom domestic abuse is directed, and
(b) persons who are reasonably believed to be at risk of domestic abuse.”
This new clause would establish a clear statutory duty on public authorities in England and Wales to commission specialist support and services for all persons affected by domestic abuse, together with a duty on the Secretary of State to ensure sufficient protection and funding for the implementation of this duty.
New clause 20—Duty to commission specialist domestic abuse support services—
“(1) It is the duty of relevant public authorities in England and Wales to commission sufficient specialist services for all persons affected by domestic abuse regardless of status.
(2) To ensure compliance with the duty under subsection (1) public authorities must—
(a) regularly assess population and support needs changes in their area; and
(b) co-operate to discharge the duty.
(3) The Secretary of State may issue regulations making provision for the resolution of disputes between public authorities relating to the discharge of the duty under subsection (1).
(4) In performing the duty under subsection (1) a relevant public authority must secure sufficient specialist services for (among others) the following persons—
(a) any victim of domestic abuse aged 18 or over;
(b) any child aged under 18 who experiences or witnesses domestic abuse;
(c) any child who is a close relative of a victim of domestic abuse;
(d) any person aged 18 or over who exhibits abusive behaviour towards another person to whom they are personally connected;
(e) any child aged under 18 who exhibits abusive behaviour towards another person to whom they are personally connected.
(5) In this section—
“abusive behaviour” is behaviour that is abusive within the definition in section 1(3).
“close relative” includes a daughter, son, sibling, sibling-in-law, step child, step sister, step brother, foster child, niece, nephew or grandchild.
“domestic abuse” has the meaning given in section 1.
“personally connected” has the meaning given in section 2.
“relevant public authorities” are public authorities with functions relevant to the provision of specialist services for victims of domestic abuse, and include but are not limited to—
(a) Ministers of the Crown and any government department in the charge of a Minister;
(b) any local authority in England and Wales;
(c) NHS Trusts in England and Wales;
(d) Police and Crime Commissioners;
(e) Prison, Police and Probation Service.
“specialist services” include but are not limited to the following when provided in connection with domestic abuse, whether provided by a public authority or any other person or body—
(a) protective measures and action taken to protect persons against domestic abuse;
(b) residential accommodation, including refuge services;
(c) counselling and other support;
(d) advocacy services;
(e) access to welfare benefits;
(f) perpetrator programmes;
(g) financial support;
(h) legal services;
(i) helplines;
(j) services designed to meet the particular needs of a group that shares a status to ensure appropriate and effective service provision, including separate or single-sex services within the meaning given in Part 7 of Schedule 3 the Equality Act, and “communal accommodation” within the meaning given in paragraph 3 of Schedule 23 to the Equality Act 2010.
“status” means a status for the purpose of Article 4(3) of the Council of Europe Convention on preventing and combating violence against women and domestic violence, and combined forms of any such status.
“victims of domestic abuse” includes—
(a) persons towards whom domestic abuse is directed, and
(b) persons who are reasonably believed to be at risk of domestic abuse.”
This new clause would establish a clear statutory duty on public authorities in England and Wales to commission specialist support and services for all persons affected by domestic abuse, together with a duty on the Secretary of State to ensure sufficient protection and funding for the implementation of this duty.
New clause 48—National Oversight Group—
“(1) The Secretary of State must establish a national oversight group to monitor the exercise of local authority functions under section 53.
(2) The members of the national oversight group must include—
(a) The Domestic Abuse Commissioner;
(b) organisations representing providers of specialist support for women and children affected by domestic abuse;
(c) organisations representing providers of specialist support for women and children affected by domestic abuse with protected characteristics;
(d) representatives of local authorities;
(e) representatives of police and criminal justice bodies;
(f) representatives of health bodies;
(g) representatives of health bodies;
(3) The national oversight group must, at a minimum—
(a) undertake a regular national needs assessment for refuge services, including provision for victims and their children with protected characteristics;
(b) undertake ongoing assessment of whether local authorities and local partnership boards are effectively discharging functions under this Part, including monitoring compliance with the Public Sector Equality Duty and implementation of Equality Impact Assessments for relevant commissioning and procurement processes;
(c) ensure that local authorities and local partnership boards are sufficiently and equitably funding services that meet the needs of victims and their children as identified in the national needs assessment, including those with protected characteristics;
(d) provide oversight of local authorities and local partnership boards in funding services that meet quality standards developed by organisations representing providers of specialist support for women and children affected by domestic abuse;
(e) sanction ineffective or inadequate provision and practice by local authorities and local partnership boards as required;
(f) assess compliance with the Council of Europe Convention on preventing and combating violence against women and domestic violence and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.
(g) consult with relevant monitoring bodies including, but not limited to, the Council of Europe Group of Experts on Action against Violence against Women and Domestic Violence and the United Nations Special Rapporteur on Violence Against Women.
(4) the Secretary of State must ensure sufficient funding is provided annually to ensure that national need identified in subsection (3) (a) can be met.”
This new clause establishes a National Oversight Group to monitor the duty placed on the Local Authority by Clause 53.
Jess Phillips
There is a huge number of different proposals in this group. I have tabled two alternative options with respect to part 4 of the Bill, and there is an element of cross-over. Ultimately, however, the purpose of each is different, albeit equally important. Due to the way in which the proposals are grouped, there will be some jumping around, but I will do my best to ensure that it is as easy as possible to follow.
To avoid confusion, I will deal with each option separately. The first serves to strengthen and clarify the existing part 4 of the Bill, and provides for a national oversight group. The second is a brand new broader duty to ensure support and protection from the Secretary of State and to provide for a commission of specialist domestic abuse support services.
I will begin with option one and amendments 67 to 80. These amendments set out to make a number of changes to the current duty on local authorities, dealing with what the Bill currently seeks to do to put a duty on local authorities. It would assess the need for accommodation-based domestic abuse services, prepare and publish a strategy for the provision of such support in the area, and create a local partnership board to oversee those functions.
Currently, the duty provides very little direction or guidance to local authorities in how to assess need for accommodation-based domestic abuse services and develop a strategy to meet their needs. I welcome the duty, for which I have fought for a long time. In fact, it predates the Minister’s elevation to her position, and she seems to have been here forever.
The current problematic trends in local authority commissioning and funding of refuges have led to disparate and inequitable provision across the country. From 2003 to 2011, support in refuges was largely paid for by Supporting People—a programme that was ring-fenced by central Government to local authorities, which funded a range of different accommodation-based support services or refuges. All refuges, my own included, received their funding through the Supporting People funding model.
The ring fence around Supporting People funding was removed in 2009, and in 2011 this funding was rolled into the general local authority revenue support grant. To be clear, this was a centralised funding pot specifically for not only victims of domestic violence, but all accommodation-based services, whether children with disabilities or offenders coming out of prison. They all used to be funded by that. That specialist funding was then rolled into the general revenue grant for local authorities.
The amount of support funding that refuge services receive from local authorities now varies significantly. In 2009 and again in 2011, I recall pointing out that this was going to happen if we removed the support in global funding. Here I am, some 11 years later. In 2019, over one in 10—13%—of refuges stated that they received no local authority funding at all. Many are now only able to deliver life-saving support through charitable funding.
At the same time as these significant changes in the budgets for supporting refuges have been made, there have been significant changes in how those budgets are administered. At the end of the last decade, as domestic abuse began to become a priority for statutory agencies, competitive tendering for service provision began to be used. This has in large part been toxic for specialist refuge services, as those procurement processes favour larger organisations and big contracts above small specialist women’s refuges that are expert in meeting the needs of local survivors.
It was probably the day before yesterday that I referred to Jacky Mulveen, who runs a local domestic violence service in Birmingham. I talked about how in her organisation, which is a three-woman band, she is everything: she is the fundraiser, the manager, the support worker, and she makes the baps when the women need something to eat. Over the past few years, the reality is that the organisations that are definitely best placed to provide these services have been put up against organisations that have teams of people writing commissioning documents. Specialist services run by, and for, black and minority ethnic women are systematically disadvantaged within competitive tendering, which favours larger providers. As a result of those damaging commissioning and funding trends, women are being turned away daily from the support that they need.
In 2019, there were 3,914 refuge spaces for women in England, which according to the Council of Europe recommendation is a shortfall of 30%. Demand for refuge services continues to exceed supply: in 2018-19, 64% of referrals to refuges responding to the Women’s Aid annual survey were declined, with lack of space or capacity to support the survivor cited as the main reason. For anyone who has never had to fill in that annual survey, it is a census of a day in refuge. Hundreds of refuges across the country are part of the Women’s Aid survey, and a whole range of data is collected from it: the refuge gives the number of women and children in its services, and also gives the number of people it has had to turn away. That survey showed that 64% of people who came forward on the day of the census had to be turned away from the service.
Data on bed spaces and demand in isolation masks the significant barriers preventing certain groups of survivors who face intersecting forms of oppression from accessing safety. There are currently just 40 refuges in England that are run specifically for particular groups of women, such as black and minoritised women. As documented by Imkaan, there is a long history of underfunding and political marginalisation of refuges led by and for BME women, which has impacted on the sustainability of their life-saving work. Services led by and for black and minority ethnic women report significant discrimination and disadvantage within commissioning structures and approaches to funding, because their specialism is often unrecognised, misunderstood and devalued.
I will put that in layman’s terms. From the perspective of a nine-bed refuge specifically for women from the south Asian community, if a local authority puts out a commissioning document saying that it wants refuges in the area and is commissioning 80 beds in the borough, what that nine-bed refuge has to offer cannot meet those targets, and it is very rare for such a commissioning document to ask for any specialisation in that particular issue. Next week—I am sure the Minister is looking forward to this—we will discuss some of the barriers to accessing services faced specifically by migrant victims of domestic abuse. This is just another layer. On top of that, the specialist services that cater for those victims are often faced with not being able to take part in more general commissioning rounds.
In 2018, Imkaan reported that just 11% of the income for services led by and for black and minority ethnic women that they surveyed was from local authorities, compared to 40% from trusts and foundations. In London, where the majority of those organisations are based, local authorities are estimated to have cut funding for refuge services led by and for black and minority ethnic women by 50% in the last seven years. The fact that most of those organisations are based in London is nothing to celebrate. It is lucky for London that many such organisations are based there, even though they appear not to be being funded, but the needs for such services outside London are equally great.
Many refuge vacancies are not accessible for women with specific support needs, including those with issues around mental health or drug and alcohol use, those who have children with them, and those have no recourse to public funds because of their immigration status, or lack of clarity about it. Just 5.8% of refuges in England were able to accommodate women with no recourse to public funds. It is essential that the Bill requires local authorities to assess need and develop a funding strategy in a consistent, effective way.
This series of amendments would ensure that local authorities do the following: make arrangements for the provision of all accommodation for all victims, regardless of their immigration status; base their local needs assessment on a national needs assessment for refuge services, which I will discuss the need for later; respond to the prevalence of trends in domestic abuse, including that experienced by victims with protected characteristics, including race, disability and sexual orientation, in the local area; ensure that at there is specialist support to meet the specific needs of women and children experiencing domestic abuse, including refuge services, in sufficient numbers; and provide sufficient funding to implement the strategy, including to specialist support services. Local authorities would meaningfully consult with local specialist domestic abuse and violence against women and girls services in developing, altering or replacing a local strategy. The requirements mirror much of the existing language in the Istanbul convention.
The Bill requires local authorities to establish local partnership boards to oversee how they are delivering their statutory duties. While in some areas strong multi-agency partnership arrangements between specialist services commissioners and other partners are well established, in others there will be significant challenges in setting up collaborative boards that meet the needs of survivors and children. Evidence has been presented to the Government of extremely poor practice in partnership working, including the exclusion of specialist services, particularly those led by and for BME women, in the planning and delivery of services.
The purpose of the amendments is to make it clear that the purpose of the local partnership board is to establish an equitable partnership that reflects the needs of those impacted by domestic abuse in the local area, and works to deliver quality services that meet victims’ needs. They would ensure that local specialist domestic abuse and VAWG services are represented on the board, require the board to establish a reference group of specialist service providers, and ensure that their views and recommendations are responded to in the board’s decision making.
I welcome the boards, but I want to see some safeguards about exactly who will be on them. When I was first elected to Birmingham City Council, the average age of a Birmingham city councillor was around 60. I could not help but be filled with jollity that they were the people who got to decide on youth services in the area. It is important to ensure that the right people are on local partnership boards.
Perhaps confusingly—things will soon become clear—I want to refer back to amendment 70, and particularly the definitions in proposed subsection (1C) that it would insert into clause 53. It is my view that the Bill’s definitions of “relevant accommodation” and “domestic abuse support” do not offer the level of support that the Bill purports to provide.
The Chair
Order. Yes, the Minister should not chunter, but equally I do not think we should widen the debate too far.
Jess Phillips
Absolutely. Sheldon police station is no longer a police station, and there is now a planning application for it to become temporary accommodation. To return to the debate, police stations were often built in communities. My father was born in Sheldon, on the estate that the police station looks over. It is built on a sort of plinth, making it possible to see across the whole community. It can be seen from pretty much everywhere in the Garretts Green Chestnuts estate, as we call it colloquially. It is not hidden; it is not discreet.
The building was sold and, in the planning application that was put in for temporary accommodation, that accommodation was going to be provided for a list of people. One item on the list was victims of domestic abuse. Another was offenders. Another was people with drug and alcohol misuse problems. There was to be no specification about whether there would just be women in the place, or just men. Those people would be housed together. Every single council in the land will have a planning application exactly like this one, through which private landlords seek to make money by turning the property into temporary accommodation for victims of domestic abuse, even though it is completely unsafe. None of us would be happy to place them in such accommodation, but the Bill does nothing to prevent that from happening.
To avoid that situation, the definition must align with definitions established on Routes to Support, which is a UK-wide service directory, partly funded by the Ministry of Housing, Communities and Local Government, relating to violence against women and girls. The only accommodation-based service on the Routes to Support model is a refuge service. I ran refuge services, and it was not just buildings with different flats in them. It was dispersed accommodation. We had about 18 flats in the community that were single-use, for all sorts of reasons, including the need to provide disability space and space for boys over the age of 14. In sex-based, women-only services, as boys become older there are safety issues involved in having males in a women’s refuge. So, for women with teenage boys—my teenage boy is nearly twice my size and he definitely looks like a man—we made sure that dispersed accommodation was available.
We are talking not just about refuges that people might imagine to be a house where lots of women live together. We are talking about refuge accommodation in its broadest terms, including shared houses, self-contained and dispersed accommodation. The amendment seeks to require that the relevant accommodation, as defined in the regulations, must be safe for survivors and their children.
Julie Marson (Hertford and Stortford) (Con)
The hon. Lady mentions the relevant accommodation. I cannot help looking at subsection (2), which notes that
“‘relevant accommodation’ means accommodation of a description specified by the Secretary of State in regulations.”
What the hon. Lady is covering is covered there, and will be specified in the regulations.
Jess Phillips
Hope springs eternal for what I am covering here being in the regulations. Had we seen the regulations, we would not have to debate whether it is going to be in them. Unless the regulations are drawn according to clearly defined grounds, I fear that there is a real risk that people will just say, “Yes, I am a provider for victims of domestic violence.”
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I just draw the hon. Lady’s attention to subsections (9) and (10). Subsection (9) reads:
“The power to make regulations under subsection (8) may, in particular, be exercised to make provision about—
(a) the procedure to be followed by a relevant local authority in preparing a strategy;
(b) matters to which a relevant local authority must have regard in preparing a strategy;
(c) how a relevant local authority must publish a strategy;
(d) the date by which a relevant local authority must first publish a strategy;
(e) the frequency with which a relevant local authority must review its strategy.”
Subsection (10) states that, in making the regulations,
“the Secretary of State must consult—
(a) the Domestic Abuse Commissioner,
(b) relevant local authorities, and
(c) such other persons as the Secretary of State considers appropriate.”
We are trying to be as open and transparent as possible in drawing up these regulations.
Jess Phillips
I absolutely agree, and I have no reason to doubt that there will be transparency in drawing up the regulations. However, I am not entirely sure why we cannot include in the Bill our opposition to that sort of accommodation. The amendment would require that the relevant accommodation, as defined in regulations, must be safe for survivors and their children and that the definition must include refuge services. All I am seeking is assurances that that will be included in the Bill. What is the point of making laws unless we are going to lean on them when things go wrong? We need a document that states that.
Victoria Atkins
Again, by way of safeguarding, the local authorities are doing what is intended by the Bill. I draw the hon. Lady’s attention to clause 55, which states that the local authority
“must submit to the Secretary of State an annual report in relation to the exercise of the authority’s functions under this Part during the year.”
That is how the Secretary of State can ensure that individual local authorities are doing what they should be doing and meeting the expectations of the Bill.
Jess Phillips
I again thank the Minister, but with the greatest respect to the Secretary of State, unless something is written into the Bill, I do not know whether she will agree with what I am saying about what determines safe accommodation. All I seek to do in amending the Bill is a belt-and-braces job to ensure that that is the case—that what is perceived as good refuge accommodation is written into the Bill.
Peter Kyle
Gentle for the Minister is sometimes brutalising for those on the receiving end. Is it not true that a lot of the Bill, in particular at this point, relies on regulations? That means that we will have to rely not only on those Ministers currently in post but on the whim of future Ministers as well. That is why it is important that we nail down the Bill’s intentions. Rather than criticism of the to and fro in Committee, would it not be great to hear Ministers explain the intention, so that the next incumbents of their roles can see properly what the Bill is intended to do?
Jess Phillips
Absolutely. I have talked about my love of section 17 of the Children Act—I love to turn to a law. Had those issues been left to regulation, they would have been the responsibility of any incumbent Government, even when it seemed that literally anything could have happened in our politics over the past 10 years. Had section 17 not been written into law, it would have had to be done by regulation. As the Minister as pointed out, a law can be updated and be subject to annual reviews, but I want something that is protected forever. Just like section 17, I want this to apply always, because I have seen the degradation experienced by victims of domestic abuse as a result of their accommodation.
This is not about the vagaries of language in the Bill. I saw what happened when ring-fenced funding was removed from Supporting People. It was explicit about what kind of accommodation it would fund, and because it had national oversight, we had to fill in all sorts of protocols and forms. Given my long involvement in this particular sector, I am used to the cyclical debates. Looking back, it is funny. When the Supporting People funding was in place, we used to have to fill in forms about the number of bed spaces per 10,000 people. I remember filling in the little forms and sending them off, but what came with them was the idea that local authority areas had a duty to provide a certain amount of spaces through the Supporting People funding. Yet here we are, back again, rightly and honourably putting that duty into law.
When the national oversight was removed and the fund was no longer specifically about that, I saw all sorts of organisations saying, “Yeah, we provide for victims of domestic abuse.” In my constituency, the Holiday Inn could claim to be a refuge. A commissioning round could include Ibis, because people in my constituency and those of all Members present are being accommodated in Ibis hotels. Do we think that that is a refuge?
A council needs to put people where the space is, and the Bill, through this very good clause, seeks to ensure that councils do that better, but only by regulation. All I ask is that the idea of what a refuge is be written into the Bill, because a lot of councils—especially at the moment, my gosh—have a million different things going on. We need to be really prescriptive.
I referred to Ibis. I have to say that, during the beginning of the pandemic, some of those hotel chains absolutely came to the rescue of people like me. However, I do not think that anybody here wants to see domestic abuse victims living in one room, with all their children, and without any cooking facilities—of course, in the coronavirus crisis, they could not even go to the local McDonald’s. They are literally left resourceless. Although the Ibis might provide someone with a roof over their head, it does not provide them with support for their trauma or an understanding of what move-on actually means.
Christine Jardine (Edinburgh West) (LD)
I hope that this does not move us away from the text, but on the hon. Lady’s point, it strikes me that a national overview that allowed women to move to different parts of the country might be particularly relevant for migrant women, who do not have any roots in any particular part of the country. If there were a bed that was appropriate for them in, say, Lincolnshire, Carmarthen or Birmingham, they could go there.
Jess Phillips
Absolutely—the hon. Lady makes an important point. Constituents of mine, because of the accommodation that is provided under the contracts for refugees in this country, have moved overnight to different areas. They have pulled their children out of school and been sent to different areas as part of what we used to call NASS—National Asylum Support Service—accommodation. The terminology changes quicker than the weather in this country. That is absolutely the case and, currently, it is exactly what happens in a different part of the Home Office.
In 2017, a joint report by the Work and Pensions Committee and the Communities and Local Government Committee concluded:
“It is essential that refuges are able to operate as a national network, unrestrained by admission restrictions imposed by individual local authorities and with appropriate coverage across the country.”
That national network of services cannot be assessed, planned, commissioned or funded on the basis of local need alone. I am not for one second saying that local needs assessments are not needed, because they absolutely are, but not on their own, which leaves a deficit in the Bill.
Although the Government have stated that they will establish a ministerial-led national steering group to monitor and evaluate delivery of the new duty, that is not set out in the Bill, and we do not consider it robust enough to oversee this life-saving national network of services. On the point made by my hon. Fried the Member for Hove, I have absolutely no doubt that the Minister would seek to have quarterly meetings on national oversight. The Minister sat in front of me is a diligent one who cares just as deeply as me about those services—of that I have absolutely no doubt—but she may not always be in her post. It is very easy for Ministers, because they have a lot on their plate, to sigh when they see in their calendars that this or that particular meeting is next week. I want it stated in the Bill that those meetings must be in those calendars. Basically, I am blocking Ministers’ calendars—consider the Committee the invite list.
New clause 48 would establish a national oversight group that included the domestic abuse commissioner to undertake a national needs assessment for refuge services, including a review of their provision for victims with protected characteristics. The national oversight group would ensure that local authorities and local partnership boards were effectively discharging their duties, including
“monitoring compliance with the Public Sector Equality Duty and implementation of Equality Impact Assessments for relevant commissioning and procurement processes”.
The group would also oversee the delivery of funding by local partnerships and local authorities and would sanction ineffective or inadequate provision and practice—that is my favourite bit; I like a sanction. It would ensure compliance with the Istanbul convention and the convention on the elimination of all forms of discrimination against women, or CEDAW, as well as ensuring ongoing liaison with relevant monitoring bodies. It is all very well to place a duty on local authorities—it is a good idea—but another issue entirely to ensure that they discharge that duty effectively. There is no provision for that in the Bill. If safeguards are not in place, there is no guarantee that provision will improve. Vulnerable women will remain in precarious situations. The national oversight group is merely a safeguard and I do not think it is a lot to ask.
Christine Jardine
Does the hon. Lady agree that one of the prominent features of our debates on this Bill, over its long life in Parliament, has been the desire on all sides of the House to protect migrant women and to ratify the Istanbul convention? That that has not been done for eight years is a failure that cannot be excused, but these new clauses and amendments could go some way to ensuring that the convention was ratified and that those migrant women, and their children, got the attention that is obviously desired for them by Members across the House and people across the country.
Jess Phillips
I absolutely agree with the hon. Lady from Scotland, which is not currently covered by the Bill. The Home Office is, of course, in charge of the policy that covers Scotland with regard to this area of immigration and the destitution funding that is put in place in those circumstances. She is right that there are hundreds of voices—nay thousands, according to the petitions on this—on one side of the argument, with regard to the need for access to support for all migrant victims of domestic abuse. It seems that there are some in this place, on the other side of the House, who do not agree. However, on Second Reading and in the Joint Committee, every specialist agency, all the commissioners and every expert involved—I have not asked Chris Whitty, but I imagine he might fall on my side about this—stated that the Bill needs to do more and that it needs to look at specific issues around migrant women.
This is not some radical left-wing approach, unless the right hon. Member for Basingstoke (Mrs Miller) could be considered a radical left-winger. Indeed, the issue was raised by the onetime Immigration Minister on Second Reading. We will speak to the issue in far greater detail next week, but without such provision the ability to ratify the Istanbul convention is null and void. I cannot understand why we would put together a Bill about domestic abuse victims that did not explicitly support every single one of them. That is the simple fact about what we have at the moment.
Throughout the amendment runs the thread of non-discrimination, as the hon. Member for Edinburgh West pointed out. We cannot pass a Bill that discriminates or has a blind spot on the effects of domestic abuse on young children. By providing an inclusive and holistic approach—by working with all those affected—we can truly tackle domestic abuse. These new clauses provide an opportunity for us to make changes now, not in 12 months’ time, and ensure that all victims of this horrific crime are supported.
Victoria Atkins
If I may, I will first explain the duty in clause 53, because the amendment is relevant as it is key to what is intended. I want to be sure that everybody understands what clause 53 does.
We are clear that it is critical that victims of domestic abuse are able to access specialist support, in safe accommodation, when they need it. At the moment, nobody has responsibility to provide this support and, as a result, coverage is patchy, as the hon. Member for Birmingham, Yardley set out. That is why I am pleased that we have included part 4 in the Bill, which will put in place duties on tier 1 local authorities in England to ensure a clear framework for needs assessment, commissioning and reporting on outcomes, so that everyone has a chance of accessing the support that they need within safe accommodation.
Clauses 53 to 57 will together ensure a consistent approach to support in safe accommodation for victims and children who are forced to leave home to escape domestic abuse, with national coverage across local authorities. Clause 53 places a duty on each relevant local authority to assess the need for domestic abuse support for victims and their children within its area. Local authorities are best placed to assess the needs of victims in their area, considering the different requirements of all victims, including those with protected characteristics under the Equality Act 2010, as well as victims and their children who may come in from outside the local authority area. The local authority must then prepare and publish a strategy for the provision of support within its area, give effect to that strategy, and monitor and evaluate its effectiveness.
The Chair
Order. As the Minister started in this vein, it would be appropriate to have the stand part debate for clause 53 now. She is already speaking to it.
Victoria Atkins
Thank you, Mr Bone. That is very helpful.
Clause 53 defines “domestic abuse support” as
“support, in relation to domestic abuse, provided to victims of domestic abuse, or their children, who reside in relevant accommodation”.
Such support may include the overall management of the service, the provision of emotional support and practical advice such as on housing options, specialist support for victims with protected characteristics, and children’s support.
The hon. Member for Birmingham, Yardley raised the spectre of Ibis and other hotel chains. To be clear, the duty only covers support within safe accommodation services. In the majority of cases, the costs of rent and eligible services charges will be met through welfare benefits, housing benefit in particular, so this measure is very much focused on the specialist services within safe accommodation.
Jess Phillips
How do we stop—I quote someone’s email—an “HMO daddy”? How do we stop them claiming to offer all of those things? What will we put in place that is beyond what is currently in place to assess use of the housing benefit system, which, I hasten to add, is not working?
Victoria Atkins
Part 4. I will take the hon. Lady through it carefully, so that she understands how we have cross-checking systems in this part, in addition to all the checks in the rest of the Bill, including the commissioner and local authorities.
The Secretary of State for Housing, Communities and Local Government will specify in regulations a description of “relevant accommodation”. That is intended to be a broad definition in recognition of the diversity of housing in which the victims of domestic abuse and their children may live, from refuges to dispersed housing units. That is one of the complexities that we have had to deal with during the covid-19 crisis.
Clearly, people at the beginning stage of fleeing their accommodation will be in a different state of mind, different physical states and a different state of trauma after receiving specialist support in safe accommodation and when looking to enter the next stage of their life. Therefore, that diversity of accommodation must be reflected in the regulations. That will help to ensure that victims get the right support in the right place for them, which includes refuge accommodation, specialist safe accommodation, dispersed units of accommodation, sanctuary schemes, and move-on or second-stage accommodation.
The duty will require each relevant local authority to give effect to its strategy in carrying out its functions. Before publishing the strategy, the local authority must consult the domestic abuse local partnership board established under clause 54. Looking at the membership of that board, the hon. Lady understandably expressed concerns such as whether we were collecting or aware of data from A&E departments, but we have set out that not just tier 2 local authorities should be represented on the board, if appropriate to the local area, but victims of domestic abuse, children of domestic abuse victims, voluntary organisations and charities that work with victims of domestic abuse, persons who have responsibilities in relation to healthcare services in the area, and policing and criminal justice representatives.
We have very much taken on board the requests in the consultation and elsewhere for a multi-agency approach to this problem. That is very much the direction of travel at national level. Through clause 54, we are insisting that it is the direction of travel at local level.
Liz Twist (Blaydon) (Lab)
May I ask the Minister to comment on community services? The references to the provision of accommodation services are welcome, but she will know that there is a concern in the children’s sector in particular—but not only that sector—about the provision of community services, which, as my hon. Friend the Member for Birmingham, Yardley has described, are a large part of the services for children. Will she comment on how that can be secured?
Victoria Atkins
I am going to, but a little bit later in my speech, because I am concerned to ensure that everybody understands the purposes of this part. I sense that there may be a little bit of misunderstanding; I want to make sure we are all clear and will deal with that point later.
The duty will require consultation with the local partnership board—local partnership boards do not exist at the moment; they will be a really important factor in local areas—and will ensure that the local authority draws on the expertise of local domestic abuse services in its area. That provides for local accountability, requiring as it does the consultation.
The strategy that is created by the tier 1 local authority must be kept under review and any alterations, amendments or replacement must be published. That is in lockstep with everything else we are trying to do with the Bill, through the commissioner’s reports, the strategy plans and so on—making sure that this is transparent. At the moment, it will not be very easy in some areas to understand what the local strategy is. We want this section, with all the other parts of the Bill, to make that really clear.
The relevant local authorities have been picked as being tier 1 local authorities because of their larger geographical coverage, which is often coterminous with the footprint of other key partners such as police and crime commissioners, which supports planning of services. Providing support across a wider area will also help those victims who need to move further to stay safe. My own county of Lincolnshire is one of the largest counties in England and is an example of where a tier 1 local authority can help. Someone who lives in one corner of the county may be an hour and a half or two hours’ drive away from my constituency. They have that breadth of service provision and knowledge. That is how we have selected the authority, but we are also clear that tier 2 local authorities, where they exist, must play their part, which is precisely why we want them to be part of the partnership boards.
Of course, tier 1 authorities also have related responsibility in governance arrangements to draw on in leading this work, including their work on adult social care, health and wellbeing boards, community safety partnerships and children’s services.
In London in particular, tier 2 authorities will be critical to the success of this system, because they will have responsibility for housing and in some parts they commission domestic abuse services as well. We are putting the joined-up approach that the hon. Member for Birmingham, Yardley and many others in the sector have been crying out for into the Bill in part 4 at local level.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
I am listening carefully to the Minister, as I did to the hon. Member for Birmingham, Yardley before her. However well-meaning the amendment is—no one can doubt that it is well-meaning—everything the Minister is saying reinforces the impression that the Bill is driving progress and consistency across local government across England. Does she worry, as I do, that the amendment might stymie that progress across local authority areas and prove a block to what we are trying to achieve?
Victoria Atkins
I agree with my hon. Friend that the amendments are clearly coming from the right place, but we share that concern. The system that is being constructed in the Bill has been constructed as a result of intense reflection on consultation and in conversations with our charitable partners, service providers and so on. This is the end of a very intensive exercise of reflection and working out what can best help victims at a local level.
The hon. Member for Birmingham, Yardley also raised a fair point about assessing local need for accommodation-based support when victims may have to flee across boundaries. I am alert to that, and we will be developing a standardised needs assessment form to support local authorities in carrying out their needs assessment. Our statutory guidance will make clear the need for all areas to provide support to victims and their children from outside the area, and to work with other local authorities to allow victims easy movement from one area to another, while ensuring their safety.
There are some services that survey national need, such as dedicated services that support the needs of BAME and LGBT+ victims and people of faith. Our statutory guidance will make it clear that local area needs assessments should take those vital services into account.
Clause 54, as I have said, sets up the local partnership boards. A board will support the relevant authority in undertaking a robust local assessment of the need for domestic abuse support in its area. It will support the relevant authority in developing and publishing a local strategy based on the needs assessment. Through the duty to appoint a board, which must reflect the range of skills and expertise of different local partners—I suspect the local board in Birmingham will look different from that in Cumbria, because they are different areas with different populations and needs, and it is precisely that flexibility and responsiveness that we want throughout the Bill—the clause will help to ensure that an effective local domestic abuse strategy is put in place, informed by a needs assessment that has been tested by those who support victims of domestic abuse and their children day in, day out. Those strategies are not being imposed from Whitehall. They are being drawn up in local areas, where the needs are best understood.
The clause sets out the minimum requirement for board members. I have already outlined who is included in that. However, there is flexibility to appoint others as well. Relevant local authorities will be able to decide whether an existing board can fulfil the requirements or whether to create a new, dedicated board to fulfil the duty. Again, we are trying to be as flexible as possible, because we accept the point that some areas have managed to make much more progress in providing the services than others. Clause 54 is an important provision.
Clause 55 relates to the requirement on tier 1 local authorities to submit an annual report to the Secretary of State on how they are doing. The Secretary of State will make regulations about the form and contents of the report, and so on, but local authorities will be responsible not just to the local partnership board and, as democratically elected councils, the voting public, but to the Secretary of State. I imagine that the commissioner, who herself has reporting requirements under the Bill, will pay close attention to those annual reports.
The hon. Member for Birmingham, Yardley may be reassured to know, although it is not on the face of the Bill, that as part of the annual report there will be a national steering group. It will be led by an MHCLG Minister and established to monitor and evaluate delivery of the new duty. Therefore, there will be the safeguard of the clause 54 requirements, as well as clause 55, and in addition we will set up an expert steering group, on which the commissioner will sit, to consider the analysed information provided by local authorities.
Alex Davies-Jones (Pontypridd) (Lab)
When the Minister talks about a national steering body, could she clarify whether she means England and Wales, or England only?
Victoria Atkins
Of course, it will respect the devolution arrangement. I like the phrase “jagged edge”; it describes it well. The group will work within the devolution arrangement. As has been the case throughout the Bill’s passage, we are happy to compare and work with our Welsh partners to ensure a consistent approach and to ensure that there is learning, and so on. We have taken an open approach throughout the Bill.
The group will review the operation of local needs assessments and the provision of domestic abuse support in safe accommodation across the country, specifically considering specialist provision for those who share relevant protected characteristics and services that serve a national rather than a local need. That will allow best practice to be shared and will highlight areas that may need further support to provide the consistent coverage expected by victims and the Government.
Clause 56 deals with guidance in addition to local partnership boards and the annual reports. The Secretary of State will also issue guidance to local authorities in England on exercising their functions in part 4. The clause places a duty on the Secretary of State to consult with the domestic abuse commissioner, local authorities and other persons considered appropriate by the Secretary of State. Subsection (2) requires local authorities to have regard to the guidance when exercising a function to which it relates. We are pleased to say that the guidance —which has been welcomed by local authorities—is to help them to deliver these vital services at local level. It will clearly outline the Government’s expectations for local authorities in delivering this duty.
We recognise that there is a balance between giving local authorities the flexibility to meet particular local needs and the requirement for a consistent approach to the provision of support within safe accommodation across the country. The guidance will help to provide a standardised approach to enable that to happen. We will make it clear in the guidance how that duty interacts with other duties and requirements on local authorities, such as those relating to homelessness.
I hope that colleagues with particular expertise will understand that the guidance will, I suspect, be quite a weighty document in its own right. It will sit alongside the statutory guidance that we have talked about for the Bill as a whole, precisely because we want it to be a working document for practitioners on the ground. We aim to have the draft guidance published in time for the Lords Committee stage. The report stands to be reviewed as necessary, of course. That sets out the framework of the clauses, and I will go into more detail on some of the points raised by the hon. Member for Birmingham Yardley and her colleague the hon. Member for Blaydon.
Once again, I emphasise that the statutory duty is to provide support to victims and their children within safe accommodation. Our concern is that new clauses 19 and 20 would apply more broadly to local and other relevant public authorities. The Committee may not be aware that responsibility for the provision of victim support services—including services targeted at perpetrators in order to support victims—has sat with police and crime commissioners since 2014. Local authorities will be bound by the new statutory duty to provide support to victims of domestic abuse residing in safe accommodation within their areas, but responsibility for wider victim support and perpetrator programmes will remain with police and crime commissioners.
Since 2014, PCCs have been funded by the Ministry of Justice to support victims of crime in their local areas and to address the specific needs identified in their local communities. That funding totalled some £68 million in 2019-20. PCCs have unique insight into the crime profiles and demographics of their local areas and thus the ability to allocate funding to those victims in need. Their autonomy to fund victim support services to meet local need should be preserved.
To create a duty that is workable and takes advantage of the considerable knowledge of local and public bodies, it must be placed on the specific authority that holds responsibility for particular services. Just as the new duty in part 4 will apply only to tier 1 local authorities, the commissioning of support for victims in the community must remain with PCCs and, in some cases, clinical commissioning groups. Interventions with perpetrators in the community must remain with PCCs, local authorities and, in some cases, CCGs. There is a variety with community-based services that there is not so much with refuge accommodation.
Victoria Atkins
I know that the hon. Lady cited the fact that 13% of refuge accommodation is not commissioned by local authorities. We accept that. We are looking, as I have said, at the overwhelming majority of refuge accommodation.
Jess Phillips
I thank the Minister for picking up that point. The point that I wanted to pick up on was her two uses of the phrase “in some cases CCGs”. Would it not be nice if it were “in all cases”? Does the Minister think there are CCGs in the country that do not have victims of domestic violence living in their areas?
Victoria Atkins
Sorry, I am not quite clear. Every single police and crime commissioner has victims of domestic abuse in their area, clearly, as do local authorities and, where appropriate, CCGs. To my mind, this is part of the diversity of provision of services. In some cases, it will be appropriate for CCGs to provide services, but I would not say it should be CCGs exclusively.
Jess Phillips
Will the Minister elaborate on that point and say in which CCG areas that would not be appropriate? She is saying that certain CCGs, for whatever reason, would not have to provide services for victims of domestic abuse.
Victoria Atkins
I am not going to cite, out of the hundreds of CCGs, the ones that are appropriate and not appropriate. I assume that what the hon. Lady is trying to get to is that this should be viewed as a medical issue as much as a policing and crime issue. I welcome both approaches. That is precisely why we are introducing the multi-agency approach at local level, through local partnership boards, whereby health services will be represented, whereas they are not at the moment. Policing and criminal justice will be represented, whereas they are not at the moment. Children will be represented, whereas they are not at the moment. This is the multi-agency approach that we are trying to achieve.
The Government do, however, recognise the need to explore the provision of community-based services to domestic abuse victims to ensure that those victims are receiving the right support to cope and recover from this terrible crime. Equally, we are clear that if we do not hold perpetrators to account for their actions and challenge them to make real sustainable changes to their behaviour, we will not stop the cycle of violence and abuse.
Before establishing the new statutory duty in relation to accommodation-based support, the Ministry of Housing, Communities and Local Government consulted at length with local authorities, the domestic abuse sector and other organisations involved in supporting victims, to identify the barriers to provision of safe accommodation. That identified the lack of accountability and sustainable funding for the provision of support in safe accommodation as the key issue. Through that detailed engagement, it was possible to design a statutory duty that would tackle that. I am delighted to say that my right hon. Friend the Secretary of State for Housing, Communities and Local Government has confirmed that the new statutory duty will be appropriately funded.
Jess Phillips
I thank the Minister for allowing me to intervene again—this is almost greedy on my part. She was talking about all the organisations that took part and what they said about what the barriers were. Could she enlighten us on what they said the barriers were in relation to migrant women?
Victoria Atkins
I will deal with that later in my speech. The hon. Lady took some 55 minutes—it is not a competition, but I have to do this justice by drawing out the points as we develop the argument. As with clauses 1 and 2, I want to explain the journey that we have taken to arrive at the statutory duty.
I think we would all acknowledge that the current funding arrangements for community-based services are complex. Although responsibility sits with PCCs, services are funded from myriad routes, including PCCs, local authorities, health partnerships and community safety budgets. That is true of both services for victims and programmes targeted at perpetrators, particularly those who have not been convicted. It would not be right to define what should be available by way of services for community-based support, without conducting a similar investigation as took place for support within safe accommodation and consulting the sector on any proposals.
To that end, the domestic abuse commissioner has agreed to lead an in-depth investigation into the current community-based support landscape, and the Government are committed to addressing its findings. We believe that that work needs to come to fruition before we can properly understand how any wider duty should be framed, on whom it should be imposed, and at what cost. It is also right that we fully consult on any expansion of the duties in part 4. I should add—in trying to describe the interlocking and interweaving web of accountability that runs through the Bill—that the commissioner will publish her report under clause 8, and we are required to respond to it within 56 days. The Bill therefore sets a time limit by which the Government are to respond.
In addition, a number of other areas of work across Government are already taking place to improve the experience of victims who seek help, such as the refresh of the national statement of expectations that is due to be published later this year. That will set out the best practice for commissioning all violence against women and girls services. We are also developing a cross-Government victim funding strategy, which is due to be published by the end of the year. Those developments are part of a cross-Government drive to ensure that domestic abuse victims in the community are receiving the support that they need, and that good-quality work with perpetrators is the norm.
I am afraid that I am not persuaded that the general duty on the Secretary of State set out in new clause 19(1) is necessary or helpful at this time. As we have already debated, the Bill establishes in law that the domestic abuse commissioner’s statutory remit will include the encouragement of best practice in the prevention of domestic abuse and the provision of protection and support to victims and others affected by domestic abuse. As part of her remit, she will necessarily look at the availability and quality of perpetrator programmes and make recommendations based on her findings.
On new clauses 19 and 20, it is worth pointing out the jagged edge, as I have called it: the new clauses do not reflect the devolution settlement in Wales. A number of relevant public authorities listed in new clause 20 operate in the devolved sphere, and we would not normally legislate on devolved matters in Westminster without the consent of the Senedd.
The other amendments in the group relate broadly to the existing provisions in part 4. Again, although I appreciate the intention behind the amendments, they would add more detailed requirements to the Bill, thereby reducing the flexibility of local authorities to meet particular local needs and set up a local partnership board in line with local needs and existing partnership arrangements. I do not believe that they are necessary because much of what they seek to achieve will be in the statutory guidance and laid down by regulation.
Clause 53 places a duty on each relevant local authority in England to assess the need for domestic abuse support for victims and their children within its area. In assessing needs, relevant local authorities will consider the differing requirements of all victims, including those with protected characteristics under the Equality Act 2010, as well as victims and their children who come in from outside the local authority area. The local authority will then be required to publish a strategy, which will take effect as I have set out.
The Chair
Order. The Minister is talking about the other amendments; I should point out to the Committee that amendment 77, as printed, refers to line 21, when it should refer to line 25—it is just a typing error. As the Committee knows, we cannot adjourn at 1 pm while the Minister is still speaking; a speech cannot be interrupted.
Victoria Atkins
Sorry, I had thought that we might go on until 2 pm. In that case, I will be very quick; I hope I have set out the framework of the guidance. I am extremely grateful to Mr Bone for that clarification.
We recognise the concerns that the hon. Member for Birmingham, Yardley has set out. I emphasise in relation to new clause 48 that the importance of national oversight is accepted, as can be seen from the setting up of the Minister-led expert steering group. We very much hope that those who are involved in that group will be able to make their views clear and look at the reports with all of the interlocking safeguards we have.
I will sum up by saying that we believe amendment 67 and new clauses 19 and 20 are at best premature, and that the other amendments are unnecessary. We recognise the importance of community-based services for those affected by domestic abuse and the need to address offending behaviour. As I have said, we are committed to investigating, in collaboration with the commissioner, what needs to be done to ensure that victims who stay in their own home, together with their children, are receiving the support they need, and that perpetrators are appropriately challenged and supported to change their behaviour.
Jess Phillips
I will not keep Members for a long time, and I recognise the Minister’s generosity towards other members of the Committee. She has not covered some of the issues that she said she would cover, whether those raised in my speech or through interventions on myself or her. I recognise the reason for that; no doubt we will have plenty of time to debate those issues as the Committee progresses.
I will just pick up on a few small things. The Minister has clarified that the regulations she mentioned will be laid at Lords Committee stage, as opposed to the guidance that she has promised will be laid before the House on Third Reading. As regards the guidance about local authorities’ commissioning of specialist refuge accommodation, the Minister has suggested that some of the things we are suggesting may be premature. I have been having meetings and conversations about these regulations for six years, beginning before I was elected, in the days when MHCLG was still DCLG. I have met with pretty much every housing Minister or MHCLG Minister about this issue, so it does not feel particularly premature to me. However, I look forward to the regulations coming before the Lords Committee.
So much of this regulation is based on trust, and all I was saying to the hon. Member for Cheltenham was that although I like part 4 of the Bill, I think there are areas in which it could be better, clearer and more robust to future-proof it. I will not press amendment 67 or new clauses 19 and 20 to a vote now, because I think the duty on community services is something that the whole House would wish to discuss—and the Lords would certainly wish to see discussed—on Report, and then maybe at the amendment stages in the Lords. I thank the Minister for responding to many of the issues I have raised, which has allayed some concerns, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 ordered to stand part of the Bill.
Domestic Abuse Bill (Eighth sitting)
Thursday 11th June 2020
(4 years, 6 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 June 2020 - (11 Jun 2020)
Jess Phillips (Birmingham, Yardley) (Lab)
I beg to move amendment 81, in clause 56, page 36, line 22, at end insert—
“(2A) Before issuing guidance under this section the Secretary of State must lay a draft of the guidance before Parliament.
(2B) Guidance under this section comes into force in accordance with regulations made by the Secretary of State.”
This amendment requires the Secretary of State to lay any guidance under this section before Parliament and provides that this guidance will come into force in accordance with regulations made by the Secretary of State.
The Chair
With this it will be convenient to discuss amendment 82, in clause 56, page 36, line 28, at end insert—
“(ba) persons, groups and organisations providing support and services with those affected by domestic abuse locally, regionally and nationally, and in particular those working with or providing specialist support services to affected women and children,”.
This amendment sets out additional persons, groups and organisations the Secretary of State must consult.
Jess Phillips
I will not speak for long. We have already gone over lots of what is in this amendment, including in the large and wide-ranging debate we had on part 4 of the Bill. Some of what the Minister has said gives me hope that we will get more detail on how this will be administered. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 56 ordered to stand part of the Bill.
Clause 57
Interpretation of Part 4
Amendment made: 36, in clause 57, page 37, line 1, after “London” insert
“in its capacity as a local authority”.—(Victoria Atkins.)
This amendment clarifies that the reference to the Common Council of the City of London in the definition of “local authority” for the purposes of Part 4 of the Bill is to the Common Council in its capacity as a local authority.
Clause 57, as amended, ordered to stand part of the Bill.
Clause 58
Special measures directions in cases involving domestic abuse
Christine Jardine (Edinburgh West) (LD)
I beg to move amendment 54, in clause 58, page 37, line 32, at end insert—
“(3A) In cases where it is alleged that domestic abuse is involved, Chapter 1 of Part 2 of the Youth Justice and Criminal Evidence Act 1999 (special measures directions in case of vulnerable and intimidated witnesses) applies to proceedings in the family court as it applies to criminal proceedings, but with any necessary modifications.”
This amendment extends statutory eligibility for special measures to the family court in cases where domestic abuse is involved.
The Chair
With this it will be convenient to discuss new clause 45—Special measures (civil and family proceedings): domestic abuse—
“(1) In civil and family proceedings, a witness is eligible for assistance by virtue of this section if they were, or are at risk of being, the victim of domestic abuse from—
(a) another party to the proceedings; or
(b) the family member of another party to the proceedings.
(2) The court’s duty under subsection (1) applies as soon as allegations of domestic abuse are raised after the start of proceedings and continue until the resolution of the proceedings.
(3) In determining the measures to make available to the witness, the court should consider—
(a) whether one or more measures should be made available; and
(b) any views expressed by the witness.
(4) The measures referred to in this section are those which—
(a) prevent a witness from seeing another witness;
(b) allow a witness to participate in proceedings;
(c) allow a witness to give evidence by live link;
(d) provide for a witness to use a device to help communicate;
(e) provide for a witness to participate in proceedings with the assistance of an intermediary;
(f) provide for a witness to be questioned in court with the assistance of an intermediary; or
(g) do anything else provided for in Civil Procedure Rules or Family Procedure Rules.
(5) Rules of court made for the purposes of providing assistance to eligible witnesses shall apply—
(a) to the extent provided by the rules of court, and
(b) subject to any modifications provided by rules of court.
(6) In this section—
“the court” means the family court, county court or the High Court;
“witness”, in relation to any proceedings, includes a party to the proceedings;
“proceedings” means civil or family proceedings;
“live link” means a live television link or other arrangement whereby a witness or party, while absent from the courtroom or other place where the proceedings are being held, is able to see and hear a person there and to be seen and heard by the judge, legal representatives acting in the proceedings and other persons appointed to assist a witness or party.”
This new clause would ensure that victims of domestic abuse have access to special measures in both civil and family proceedings.
Christine Jardine
The Bill extends special measures in criminal courts, such as screens or video links, to include domestic abuse survivors. However, unfortunately, it does not ensure similar protections in civil and family courts. The amendment would extend eligibility for these measures to family courts in cases where domestic abuse is involved.
Special measures were originally implemented in criminal courts by the Youth Justice and Criminal Evidence Act 1999, and are automatically provided to child witnesses, witnesses with mental or physical disabilities, complainants of sexual offences, or victims of serious crime who might also be regarded as intimidated, including victims of domestic abuse. However, in family courts, provision for the use of special measures is not currently based in legislation, but in the Family Procedure Rules 2010. Those rules set out the way in which courts should deal with family proceedings, and include practice directions intended to protect victims. Practice direction 12J sets out the procedure for members of the judiciary and provides for special measures.
In November 2017, the Ministry of Justice introduced a new practice direction setting out the recommended procedure for judges dealing with vulnerable persons in family proceedings, including those with concerns in relation to domestic abuse. It provides for special measures to ensure that the participation and quality of evidence of parties is not diminished. Practice direction 3AA, “Vulnerable persons: participation in proceedings and giving evidence”, states that
“the court may use its general case management powers as it considers appropriate to facilitate the party’s participation.”
According to the 2012 Rights of Women report, however, special measures were not advertised in family court, and were rarely ordered at that time. A more recent report by Women’s Aid in 2018 found that 61% of domestic abuse victims who participated in a survey were not provided with special measures in a family court. I mention these things to draw the Committee’s attention to the fact that, while there might appear to be measures at the moment in family courts, they are perhaps not effective, and many women who appear in the family court in domestic cases are not aware of them. Domestic abuse often surfaces in family law cases dealing with divorce or childcare arrangements. In 2018, 45% of cases in family court were matrimonial matters. Parental disputes concerning the upbringing of children accounted for 20% of cases. Intimate partner abuse has been found to be a factor in around half of child contact cases in England and Wales.
Often, women have been subjected to long-term violent and emotional abuse, and family court proceedings can be a negative experience, in much the same way as criminal ones, where they are offered protection. Such proceedings can even be used as another forum for abuse and control by perpetrators. The all-party parliamentary group on domestic violence and abuse found that victims of domestic abuse reported feeling re-victimised and re-traumatised through the family court process. In 2012, a report by Rights of Women, a women’s charity providing legal information and advice, outlined how victims of domestic abuse suffer intimidation and harassment from their former partners, and that they often feel unsafe during the court procedure in a family court. I cannot imagine what it must be like to be a survivor of domestic abuse, and find myself in a family court in a divorce, which is not easy and can be painful even when it is amicable.
Virginia Crosbie (Ynys Môn) (Con)
Does the hon. Member agree that the Bill, as it stands, will transform the experience of victims of abuse in family courts by banning the cross-examination of perpetrators of domestic and sexual abuse?
Christine Jardine
That is the next clause, I believe. There is no measure we can take in the Bill that goes too far, or that could be regarded as being in any way sufficient, until we can do no more. No length is too great when it comes to protecting women. Banning cross-examination by perpetrators of domestic abuse is valuable, but it must be written in the legislation that special measures are available. It is not just women themselves who will be cross-examined; it might be their children. It is about coming in and out of the court. It is about having to face the person who has abused them—often for decades—in a corridor because they did not have a special entrance. We need to look at all these things. I cannot imagine what that would be like. No step is too far.
In 2018, Women’s Aid found that 24% of respondents had been cross-examined by their abusive ex-partner in the family court, and that was traumatising for them, so I do agree with the hon. Lady. Victims can feel that their experiences have been minimised in proceedings, and if protective measures are not granted by courts, they will be exacerbating that and letting these women down.
Christine Harrison from the University of Warwick has concluded that domestic abuse was and is persistently minimised and dismissed as irrelevant in private law proceedings. Lesley Laing from the University of Sydney in Australia has also found that accounts of engagement with the system often mirror domestic violence narratives. That is known as secondary victimisation, and it is not acceptable.
Resolution, the family justice charity, has said that although there have been changes to the family procedure rules, it is widely recognised that current special measures facilities in family court hearings—such as video and audio link, and screen facilities—are not satisfactory or on a par with the facilities available in the criminal courts. Resolution’s members, who are family lawyers, have raised their concerns.
We have talked about the Bill for three years as landmark legislation—a once in a generation opportunity to tackle domestic abuse. However, if we exclude the family courts from the Bill, we will miss a valuable opportunity to tackle domestic abuse in an area where it has perhaps been minimised and overlooked in the past, which is not acceptable. I therefore ask the Committee to consider the amendment.
Jess Phillips
I will speak to new clause 45, which has been grouped with the amendment. I support everything the hon. Lady has just said. I will not repeat much of what she has said about the number of victims who find they cannot actually access any of the facilities that are said to be available in the family courts. In one recent case—I will not cite the case here, but I have the details in front of me—the victim was denied special measures, even though the perpetrator had been arrested for battery, coercive control and sexual assault by penetration. The victim was also living in a refuge. However, she was denied special measures in the family court.
There is not only an absence of legislative guidance. It is clear, as some of the reports the hon. Lady referred to show, that facilities such as video and audio link are not as readily available as they are in the criminal courts. I absolutely welcome what the Bill attempts to do in formalising in legislation what largely exists in the criminal courts for most criminal court cases. In fact, I think that in every single domestic violence case that I have ever been to court about, special measures have formed a part of proceedings, or at the very least have been on offer. I myself have been offered special measures in cases that I have personally been involved with. Sometimes, victims do not want to use them; they want to sit and face the accused. I cannot remember a case in the criminal courts where special measures were not on offer; sometimes the video links leave a little to be desired, but they were none the less available.
It is great that the Government wish to formalise the special measures in our criminal courts in the Bill, and we support that. We simply wish to see those measures extended to court facilities where family law and civil law matters are discussed.
Stay Safe East, the disability charity that focuses on domestic abuse, has advised us that in the local family courts in its area, only one out of the 12 courtrooms has a video facility. I am sure I am teaching Ministers to suck eggs when I say that someone does not always get to decide which courtroom they go into when they get to court. It is therefore a sort of “luck of the draw” situation at the moment.
Automatic eligibility, which new clause 45 and the amendment would allow for, would place special measures on a statutory footing and ensure that family and civil courts make structural changes to safeguard victims, thereby removing the burden on victims to have to request special measures. We want a situation similar to the criminal courts, where such measures are offered in a very proactive way. In fact, long before someone even knows that they will ever be in court or has been given a court date, they are asked about special measures. The amendments are just about equalising that system across our justice estate, to reduce the variation in judicial approach and provide much-needed predictability for victims.
That is especially important because in lots of the cases we are talking about, victims go through a criminal case and a family case at the same time. It is unusual that they can be in one courtroom on a Tuesday and another on a Wednesday, and have completely different safeguards in place. Their case is exactly the same. The perpetration that they have suffered is exactly the same, yet they are safe in one courthouse and not safe—or do not feel safe—in another. There are, I am afraid to say, some terrible examples of women being attacked by their perpetrators in the toilets of family courts, which were written about in Women’s Aid’s “Nineteen Child Homicides” report for the Child First campaign. We just seek to equalise the situation.
Fay Jones (Brecon and Radnorshire) (Con)
The hon. Lady mentions some improvements that could be made, but does she welcome our election manifesto commitment about integrated domestic abuse courts?
Jess Phillips
Perhaps I am being a bit premature, but I look forward to the progress on that, because the sectors have been crying out for the integration of different court systems for years and years. As we have said about a million times during these debates, the approach of the specialist domestic violence courts have been patchy across the country. In some areas, they have dwindled, but in others they have come to the fore because of the covid-19 crisis. I would very much welcome anything that would standardise the situation in courts for victims of domestic violence, especially in respect of their experience of the courts, whether they be civil, criminal or private.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
It is exactly on that point that I want to talk about special measures. I hope that it is acceptable to the Chair for me to mention some matters on clause 59 as well, because these things will interact. I will not then rise to speak on clause 59. Much of this is to do with the lack of communication between jurisdictions and the experience of victims and survivors as a result. I welcome the opportunity to speak now because, in December 2017, I brought forward a private Member’s Bill on courts and the abuse of process. From the point of view of the victim’s experience, special measures and cross-examination—those two things—are inter-merged.
Back in 2017, my office carried out research into 122 victims of stalking and domestic abuse, which gave us a snapshot of those individuals’ experiences when they went to court. I understand that this was a self-selecting study, but 55% of those people had had court proceedings taken against them by their abusers. It should be noted that all those victims had restraining orders in place. None the less, that was their experience—court proceedings were brought against them. Two thirds of them then had to appear in court, and a third were personally cross-examined by their perpetrator. In only a quarter of those cases did the police view the court proceeding as a breach of the restraining orders on the perpetrators.
At that time, I was trying to limit the capacity of perpetrators, primarily of domestic abuse, stalking and harassment, to use—indeed, to misuse or abuse—the family and civil courts in a deliberate, calculated effort to continue to distress their victims and manipulate their behaviour to exercise deliberate control over their actions.
At the time, what needed to be sought was the means for the court to have the power to dismiss any meritless applications where it was apparent that the purpose of the application by the perpetrator was specifically to distress or harass the victim, in the guise of an appeal to justice in matters relating to civil or family court jurisdiction. Many of us will have come across instances of repeat applications, particularly in the civil court, but also, from the point of view of the perpetrator, to again be able to hold the victim under their control and, within that cross-examination, gain the satisfaction of that aspect of the relationship again.
I will mention what was proposed at the time, because it was felt to be suitable then. The proposal was that the applicant would be obliged to declare any unspent convictions or restrictions in relation to the respondent, or similar convictions against other victims; the respondent would be given the power to inform the court of any relevant convictions or restraining orders in respect of the applicant; and the court then would have a duty to investigate the claims. In such circumstances, if proceedings were permitted to continue, the respondent would be able to request special measures, such as the provision of screens or video links, and of course there would be a possibility of other special measures in relation to cross-examination.
I will just touch on a couple of examples. I do not want to go on forever with case studies, but they do give some colour as to why this point is relevant. One instance that became apparent to us from our research was of a man who had been a victim of stalking for over six years. His stalker had repeatedly brought baseless, vexatious claims against him through the civil court, and he had no option but to represent himself because of lack of funds. Despite the fact that the stalker was subject to a restraining order, he was allowed to continue to cross-examine the victim in the civil court, and neither the police nor the Crown Prosecution Service recognised those vexatious claims to be in breach of the restraining order. It was difficult to come to any conclusion other than that the court procedures themselves were at that time colluding with the applicant and his continued abuse of the respondent.
I will give a second example, just to give a sense of the costs. It involves another respondent to our research. This woman’s ex-partner had also had a restraining order, having been charged also with stalking her. He had taken the woman to court 15 times, in both civil and family courts. That had cost her about £25,000 because, like many people, she was not eligible for legal aid in those circumstances.
I will not rise to speak to clause 59, because I think this discussion does lead us on and there are a few specific points that I would like to make about clause 59, which is where the concerns are.
The Chair
Order. Despite that, I urge the right hon. Lady to stay well within the scope of the clause that we are currently debating.
Liz Saville Roberts
Thank you, Ms Buck. I will wait until the appropriate time.
Julie Marson (Hertford and Stortford) (Con)
I want to touch on my experience in the courts, particularly the specialist domestic violence courts. However harrowing it has been, it has been a genuine pleasure to be able to sit in those courts.
There are some common themes that I have seen in court. It is usually women and children affected. There is always a power and control dynamic; it is never just about the violence, although there usually has been violence. And there is always fear on the part of the victim, even with the special measures that I have seen—the screens and so on. I could still see the victims, and I saw them crying, shaking and trembling. This is so important. What such a measure does is take away some of the power that the perpetrator has to control the victim in the courtroom environment, because they are still trying to control, even right at that moment, with looks, sounds, movements—with everything they can muster at the time. Therefore, I profoundly support special measures across the piece, because I think that they are really valuable in limiting that control right through the justice system.
Peter Kyle (Hove) (Lab)
In the hon. Lady’s experience of dealing with these cases and being able to see the impact on victims, was she aware of the challenges that victims have before they get into the courtroom, because often in family courts it is very difficult to separate victims from perpetrators? Was she aware, in her job at the time, that that was also an issue that needed to be dealt with?
Julie Marson
The hon. Gentleman makes a really important point. Long before I ever see a victim in court, there has been a huge process to get there and to provide the right support. Independent domestic violence advisers and different support mechanisms are in place; there are supporting people who come in and sit with the victim in court, but it is a hugely traumatic experience and support is needed throughout that process.
I would add a point about a common theme among perpetrators. When, in normal criminal cases, shoplifters or burglars or other violent offenders are convicted and sent to prison, there is a shrug of the shoulders—it is a part of their life; a general hazard of the criminality that they are involved in. When I have had—I will use the phrase—the pleasure to convict a perpetrator and send them to prison, it is noticeable that all the power has all of a sudden been stripped away. Their indignance and fury is palpable; you can sense it and see it. That is what makes it a different crime and a different experience, and that is why special measures are important. I speak to that experience.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Will my hon. Friend indulge me for a moment? I take the point that the hon. Member for Hove made about the geography and layout of court buildings. Some we cannot change because they are very old. Has my hon. Friend seen the measures that clever judges can introduce to control when defendants are permitted to turn up according to the conditions of bail? For example, the defendant is not permitted to arrive at court until 20 minutes before the court case starts, so that the victim has time to get into the building and into the witness room, or wherever she will be based, and there is no risk of crossover. Does my hon. Friend agree that little tweaks such as that can make a difference?
Julie Marson
Absolutely; I completely agree. We cannot legislate for everything you can do in a court—every courtroom is set out differently. I have seen a lady with two teenage daughters, with the husband, and some really clever dynamics were needed to keep everyone separate, including in the toilets. In my experience, such measures have been very positive. There have been specialist domestic violence courts. Everyone is keenly aware of what is needed and is trying to think ahead for the kinds of measures that can make justice effective and make sure that justice is done. Such measures are all part of that.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
I am delighted to see you in the Chair once again, Ms Buck. I thank my hon. Friend the Member for Hertford and Stortford for her excellent contribution. It speaks to the strength of the Committee that its members have real-world experience and can apply it to the important matters that we are here to discuss.
Before turning to the amendment and new clause, it is worth taking stock of where we are in terms of the court process and the framework in which the amendment and new clause sit. Over the last 10 years or so—probably a bit longer—the environment for victims and witnesses has been completely transformed. It was not so long ago that a complainant in a case of serious violence or a serious sexual allegation had to turn up at court and eyeball the defendant. It required an extraordinary effort of will, and a lot of people just thought, “This isn’t worth the candle.”
Legislation was introduced that provided the opportunity for screens and giving evidence via live link. At the time, that was considered utterly revolutionary. People were clutching their pearls, saying, “That’s it; justice is dead in our country; there is no opportunity for people to get a fair trial” and so on. The culture has changed. Now, at plea and trial preparation hearings such orders are routinely made and, lo and behold, juries—indeed, benches of magistrates as well—seem to find it perfectly straightforward to make a judgment in the interests of justice on the facts in front of them.
Setting that context helps to bring us up to the situation at the moment. Let us imagine some facts for a moment. The allegation is one of sexual assault on the London Underground. At that early hearing, before the Crown court, long before the trial has even been scheduled, the judge will ask the prosecutor, “Are there any applications for a special measures direction?” The prosecutor will stand up and say, “Yes, there is a complainant in this case and it is an allegation of a sexual nature, so I will be inviting the court to make a special measures direction in the normal way.” That is precisely what will happen, because it will be automatic.
I pause to note one further point. If the complainant says, “Forget this. I don’t want a screen, and I don’t want to give evidence on a live link; I want to be there in the well of the court, because that is how I feel I will get justice”, that will be accommodated as well.
Jess Phillips
The Minister says that the report will be published in the coming weeks. Does he expect that we will see it prior to Report stage of the Bill, or potentially prior to Committee stage in the Lords, as he has leaned on for one particular review? I ask only because I am seeking to understand what will be given to me as I consider whether to push new clause 45 to a Division.
Alex Chalk
I invite the hon. Lady to listen to the end of my remarks. If I can put it in these terms, the words I will use at the end are carefully phrased. I invite her to listen to those and then decide. A huge amount of work has gone into this panel, and getting to a place where we are ready to publish is the stuff of enormous effort. We are moving as quickly as we can, and it will be published as quickly as possible.
On the civil courts, there are no specific provisions in the civil procedure rules that deal with vulnerable parties or witnesses. However, judges have an inherent power, where the court is alerted to vulnerability, to make a number of directions or take steps to facilitate the progression or defending of a claim or the giving of evidence by a vulnerable party.
Liz Saville Roberts
To summarise considerably, I am sure that the Minister is aware that the Civil Justice Council returned earlier this year with the civil procedure rule committee. One of its recommendations was a new practice direction to address vulnerability. I wonder whether he could consider that.
Alex Chalk
The hon. Lady must have a copy of my speech, because I will come to that point in just a moment.
The directions that a civil court can make include, but are not limited to, giving evidence via video link, by deposition, by the use of other technology or through an intermediary or interpreter. On the hon. Lady’s point, following the April 2018 publication of the interim report and recommendations of the independent inquiry into child sexual abuse, the Ministry of Justice commissioned the Civil Justice Council—an advisory body responsible for overseeing and co-ordinating modernisation of the civil justice system—to consider the issues raised by these recommendations, and to compile a report that was not to be restricted only to victims and survivors of child sexual abuse.
The CJC published its report, “Vulnerable witnesses and parties within civil proceedings: current position and recommendations for change”, in February 2020. It made a number of recommendations, as the hon. Lady rightly points out. On special measures, the CJC report concluded that, in the civil jurisdiction, the issue is one of awareness and training, rather than lack of legal powers or framework. This goes back to my point on the role of this place in promoting awareness while recognising that discretion should be available to the court. That was the CJC’s conclusion. Its suggestion was that special measures were best left to the flexibility of court rules. The Government are considering how the recommendations in the independent report should be taken forward.
What is evident from the evidence received by the family panel and the Civil Justice Council is that the current position is unsatisfactory. The question is how best to improve the situation and ensure that vulnerable witnesses in the family and civil courts receive assistance to give their best evidence, in a way analogous to what the Bill already provides for in the criminal courts. We have the report from the Civil Justice Council to guide us but do not yet have the report of the family panel. However, I hope and expect that we will have it shortly, and it is right that we should consider the panel’s findings before legislating.
I am sympathetic to the intention behind these proposals. If the hon. Member for Edinburgh West would agree to withdraw her amendment I can give her and the shadow Minister an assurance that, between now and Report, we will carefully consider both proposals, and how best to proceed. If they are not satisfied with the conclusions the Government reach, they are of course perfectly entitled to bring amendments back on Report.
Christine Jardine
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 ordered to stand part of the Bill.
Clause 59
Prohibition of cross-examination in person in family proceedings
Amendment made: 37, in clause 59, page 39, line 32, at end insert—
“(aa) section 80 of the Sentencing Code;” —(Alex Chalk.)
See the explanatory statement for amendment 31.
Question proposed, That the clause, as amended, stand part of the Bill.
Alex Chalk
Let me say a little about clause 59. In fact, the right hon. Member for Dwyfor Meirionnydd was starting to talk about it, so I will set out some context. The clause contains provisions to prevent unrepresented perpetrators of abuse from cross-examining their victims in person in family proceedings. It also makes provision to give family courts the power to appoint a qualified legal representative to undertake the cross-examination instead, where necessary.
The Joint Committee on the Draft Domestic Abuse Bill, which undertook pre-legislative scrutiny of the draft Bill, recommended that the automatic prohibition of cross-examination be extended so that it would apply when the victim could provide evidence of abuse, as in the legal aid regime. We have accepted the recommendation in full, and the clause now gives full effect to it.
Some of the most vulnerable members of society come before the family courts, and we are determined to offer them every protection and to ensure that every vulnerable victim or witness coming to the family courts has confidence that the court will not be used to perpetrate further abuse against them. Currently, family judges have a range of powers to make sure that difficult courtroom situations are handled sensitively for vulnerable witnesses. In proceedings where both parties are litigants in person and concerns of domestic abuse have been raised, that may include carrying out cross-examination by way of the judge or the justices’ legal advisers putting questions to the parties themselves. Alternatively, the judge can decide that an alternative form of evidence, such as pre-recorded cross-examination from criminal proceedings, is sufficient.
However, there are cases in which those alternative forms of evidence or cross-examination will not be sufficient to test the evidence in the case thoroughly. We must recognise that for the judge to step into the arena to ask those questions is often—how can I put it politely?—suboptimal. In those instances, the court currently has no power to appoint an advocate to carry out the cross-examination in place of the parties themselves. That can lead to situations in which the court is powerless to prevent a victim from being cross-examined in person by their abuser.
I am sure we would all feel uncomfortable about a situation in which evidence was not challenged. The whole point of an adversarial process is to tease out inconsistencies and omissions in the evidence. If that is not happening, the proceedings are not fair, so it is important that there should be scope within the trial process for frailties in the evidence to be ruthlessly exposed.
We recognise that the issue has been the subject of close attention in the House and among experts in the field. Victims have told us that being subject to cross-examination in person in this way can be retraumatising, and judges have told us that the situation is an impossible one for them to manage. I entirely sympathise. We are determined that the court should never be used as a forum to perpetuate further abuse, and that it should have sufficient powers in all cases to prevent abuse from being perpetrated through court processes.
The purpose of the clause is therefore to introduce a prohibition on victims being cross-examined in person in specified circumstances. In addition, the clause gives the court the power to appoint an advocate, paid for from central funds, for the purpose of cross-examination where there are no satisfactory means to cross-examine the witness or to obtain the evidence, where the party does not appoint a legal representative or themselves to do so, and where it is necessary in the interests of justice to do so.
Jess Phillips
I welcome what the Minister is saying, but on the specific instances he is outlining of who exactly would be able to assess this, does he foresee an element of the judge’s discretion also allowing them to go to central funds where they believe enough that cross-examination would cause distress, regardless of whether there may previously have been a conviction or an order in place? As we all know, there is a disparity between conviction and order rates on the one hand, and domestic violence rates on the other.
Alex Chalk
Courts have a common law discretion to manage their own proceedings, but it will be important for us to assist the them as much as possible by setting out the categories that should trigger the exemption. Although courts can act of their own motion, it is none the less important to prescribe to an extent that the provision applies in circumstances where somebody has been convicted, charged or cautioned. I will develop that point in the following passage.
In the light of the recommendation from the Joint Committee on the Draft Domestic Abuse Bill, the clause now makes provision that the automatic ban will also apply in other cases where a witness has adduced specified evidence of domestic abuse. The evidence will be specified in regulations and, as recommended by the Joint Committee, we intend for this evidence to broadly replicate that which is used to access civil legal aid. That is probably the point that the hon. Lady was driving at.
The prohibitions also apply reciprocally, to prevent a victim from having to cross-examine their abuser in person. Where the automatic ban does not apply, the clause also gives the court a discretion to prohibit cross-examination in person where it would be likely to diminish the quality of the witness’s evidence or cause significant distress to the witness or the party. That is the point about a court’s discretion: the judge has the individuals in front of them, can hear from them and can make a decision based on that.
In any case where cross-examination in person is prohibited, either under the automatic prohibition or at the discretion of the court, the judge must consider whether there is a satisfactory alternative means by which the witness can be cross-examined or the evidence can be obtained. That would include means that already fall under the judge’s general case management powers, such as putting the questions to the witness themselves or via a legal adviser, or by accepting pre-recorded cross-examination. I suppose one might imagine cases where the things that need to be cross-examined on are so narrow in scope that it would not be worth the aggravation of instructing independent counsel if the judge can do it and do justice in that way. It is important that the court can act of its own motion and flexibly, and the clause retains that flexibility.
If there are no satisfactory alternative means, the court must invite the prohibited party to appoint a legal representative to carry out cross-examination on their behalf. If they choose not to, or are unable to, the clause gives the court the power to appoint a legal representative—an advocate—for the sole purpose of conducting the cross-examination in the interests of the prohibited party. The court must appoint an advocate where it considers this to be necessary in the interests of justice.
There could be circumstances where it is not possible to protect the prohibited party’s rights to access to justice and/or a family life without the appointment of such an advocate. This might be in circumstances, for example, where the evidence that needs to be tested by cross-examination is complicated, because it is complex medical or other expert evidence, or because it is complex or confused factual evidence, say from a vulnerable witness. The clause also confers power on the Secretary of State to issue statutory guidance in connection with the role of that advocate.
The clause also confers power on the Secretary of State to make regulations about the fees and costs of a court-appointed advocate to be met from central funds. We understand the particular skill and care that is needed to carry out cross-examination of a vulnerable witness effectively. We will be designing a full fee scheme to support these provisions, in consultation with the sector and interested parties, prior to the implementation of the Bill.
This clause seeks to ensure that, in future, no victim of domestic abuse has to endure the trauma of being questioned in person by their abuser as part of ongoing family proceedings. It makes a big difference, and I commend it to the Committee.
Peter Kyle
It is rare but pleasing when one agrees so fully with the person one shadows, and I am grateful to him. I do not want to shock the Minister—I do not want him to be clutching his pearls as I say such words—but it is certainly the situation we find ourselves in on this clause. We are not opposing or seeking to amend the clause; we agree fully with it and what it seeks to achieve.
However, I want to spend a bit of time explaining how we got to where we are, because it is important. It is important that we make sure the record reflects the situation that this clause seeks to rectify and the impact that the cross-examination by perpetrators of victims has had on people. In so doing, I speak on behalf of a great number of advocates, both in Parliament and outside, over a great period of time. I can speak for myself on this issue, but I am very aware of the fact that I am also speaking on behalf of a lot of other people.
I had personal experience of this issue very soon after getting elected in 2015. Soon after the election, I was sitting on the floor of my campaign office among the detritus of a very vigorous campaign, sorting through things and trying to figure things out, when a very fragile, very vulnerable and very damaged woman suddenly appeared in the doorway. She came in to see me, and said, “Are you the new MP?” I said yes, and she said, “I saw your leaflets. You look like a friendly person. I am now going to flee my relationship, and I will only speak to you about it.” We sat in the corner of the office, and this woman was bruised and bleeding. She had literally escaped from the relationship, and I, as an MP of a few days, was thinking on the inside, “Oh my God, what do I do in this situation? How do I help this extraordinarily vulnerable person?” I just did the best I possibly could, and that involved brokering a relationship between her and the police, about which she was terrified. She was scared of the authorities because the authorities had let her down so many times, repeatedly. I supported that woman, and she went into a protective programme. She now has a new identity and a new life, and although she will never ever be able to escape the horrors of what she went through, she certainly has an opportunity to discover new, more fruitful aspects of life, which she was prevented from doing before.
One of the aspects I experienced very soon after the process of supporting her began was the experience of the family court. I could not believe what I heard when she came to see me after some hearings in the family court, where she was made to share the space of the person she had fled. Having seen her on the day she fled her relationship, it was horrendous to hear that she was forced into the same waiting room as this person, had to be in the same space when their relationship was discussed and, crucially, was cross-examined by him.
At the same time, another constituent came to see me in my surgery. She had just been cross-examined by her abusive partner for the third time. She had previously been hospitalised; the perpetrator had broken more than a dozen or her bones and repeatedly raped her. On the third appearance in the family court, she was shaking so violently that she needed assistance to get to the taxi afterwards. On the journey home, the taxi driver had to stop and help her out of the taxi so that she could vomit on the pavement.
That was happening to people who I was sitting with and who I represented in Parliament. I could not understand that the very institutions that existed to protect people like them were facilitating the abuse—in front of judges, in a room with police officers, abuse was happening, and nobody was offering support. To my shame, I could not quite believe that this was possible in 21st-century Britain. When I came back to Parliament, I sought out my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) and asked him about it. I said, “I am hearing this thing, but I can’t believe it is possible.” He, as the former Director of Public Prosecutions, said, “It is happening, and there is a big campaign out there to try and change it.”
I could not believe that it was still happening, so I went to speak to Ministers. Repeatedly, Minister after Minister told me that a cultural change was needed in the criminal justice system, not a legislative change. I could not accept that. Having gone to speak to judges to understand why change was not happening, and having repeatedly spoken to Ministers, I found it incredibly hard to believe that the Government were not seeing or understanding the abuse. Of course, they were seeing it, but they were refusing to change. There are many lessons here, and I hope Back Benchers realise that persistence is one of them.
On 15 September 2016, I secured a Backbench debate that was led by Angela Smith, the then Member for Penistone and Stocksbridge. We had gone with a cross-party group to get a Backbench debate. There were several Tories in the group, and we worked as a formidable team. My hon. Friend the Member for Birmingham, Yardley was not part of the group that went to the Backbench Business Committee, because she sat on the Committee and was supposed to be impartial, but it was clear from her facial expressions where she stood on the issue.
During the debate itself, I was able to put on record the most shocking example of this abuse that I have ever come across. In the eight or nine months leading up to the debate, I met dozens of women who had gone through such abuse. The most shocking case was that of Jane Clough—some people in this room will be aware of her case. I am not the sort of person who normally quotes himself, but in going through all the different debates that have taken place in Parliament in the last five years on this issue, I read some of the examples I put on record, and I want to quote directly from one debate. My reason for doing so is that I want Members to realise, and I want the record to reflect, that this example has been on the House of Commons record for almost four years.
Jess Phillips
Is one reason why Lobby journalists and other journalists did not believe it potentially because of the deep secrecy about what occurs in family courts? In the case of the Cloughs, while they were going through the court, they would have been forbidden from speaking about it.
Peter Kyle
I am grateful to my hon. Friend, who makes an important point. She is right about the secrecy of family courts. In a subsequent urgent question that I was granted on cross-examination, I asked for a full review of practices in family courts with that very much in mind. Since then, some journalists have been allowed into family courts, but it is heavily regulated to the point where it still stymies the process, work and operation of the family court. It might interest Members to learn that in that quote from Hansard, I used parliamentary privilege. I broke the regulations of the family court to even describe the process that occurred in that exchange in the family court with the Clough family. That is how heavily restricted the processes of family courts are at times, and that is what has led to the lack of reform in comparison with other parts of the criminal justice system. Everything that we are discussing in this clause is already the case in criminal courts.
If the press and the media had been able to scrutinise, and if we had known what was happening in some of those cases, it would have been dealt with some time ago. That is another important point, because The Times splashed the story twice on its front page over Christmas 2016. On 5 January 2017, it again placed the story on the front page, but at that point with an off-the-record briefing from a source in the Ministry of Justice who said that they were going to review and take action on it.
What frustrated me at that point was the equal opposite to what elated me. I was absolutely punching the air that there was going to be movement. What frustrated me, as a parliamentarian, was that we had given the Government half a dozen opportunities in the previous six months on the record in the Commons using the right procedures to get the change that we needed, but it took getting the media involved to deliver it.
We all know that, no matter who the Speaker is, every Speaker will go through the roof when they see an off-the-record briefing making announcements to the media. I immediately asked Speaker Bercow for an urgent question, which I was granted on 7 January to discuss cross-examination in family courts. The Minister who responded to it on 9 January was the right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald), who was characteristically decent and wholehearted in his response and who engaged with the issue head on. He said:
“Is it necessary to change the law? The answer is yes it is. Primary legislation would be necessary to ban cross-examination…work is being done at a great pace to ensure that all these matters are dealt with in a comprehensive and effective way—the urgency is there…My feeling is that what is required is pretty straightforward: a ban, and then the necessary ancillary measures to allow cross-examination without the perpetrator doing it.”—[Official Report, 9 January 2017; Vol. 619, c. 27.]
Hon. Members can imagine that that was a big moment.
As an aside, I refer to the exchange that just took place between the Minister and my hon. Friend the Member for Birmingham, Yardley. When she intervened on him and asked, “When will it be done?”, he replied saying, “As soon as possible.” There was a guarantee to sort out cross-examination almost four years ago—the right hon. and learned Member for North East Hertfordshire said on the record, “the urgency is there”—so when we hear such things from Ministers, we sometimes have that experience, which is why we often seek to probe and get things on the record about timings.
We had a huge opportunity for change. We had the commitment of the Government. At one point the then Minister, the right hon. and learned Member for North East Hertfordshire, giddily galloped across the Chamber to put the amendment that he sought to move to the Prison and Courts Bill in my hand and said, “There it is. We’re going to do it.” Then, of course, we fell into the 2017 general election. Repeated attempts to get it fixed in the subsequent period also fell to the challenges of the time. Then, of course, we had the Bill that fell before the 2019 general election.
After the UQ of January 2017, I received over 1,000 messages from around the world—mostly women, but some men—who had experienced this in their own lives and felt an incredible need to share their experiences. I had underestimated the degree to which this is a community of people who have suffered, survived and are connected in various ways to share their stories. I had to take on a team of volunteers just to cope with their specific correspondence. Every single person who contacted me had such stories of pain and suffering, as well as persistence and fortitude to a degree that is almost unimaginable for someone who has not experienced it, that I believed every single one of them deserved a personal response.
What united every single message was gratitude that change was coming and a sense of relief that other people would not go through what they went through. That is why the delay of four years has been so difficult for very many people to stomach. Although the numbers have declined because courts have become more aware of the challenge, even one victim and survivor of domestic abuse experiencing a fraction of what we have just heard about would be one too many. So when my hon. Friend the Member for Birmingham, Yardley, members of our Front-Bench team and I read in clause 59:
“In family proceedings, no party to the proceedings who has been convicted of or given a caution for, or is charged with, a specified offence may cross-examine in person a witness who is the victim, or alleged victim, of that offence.”—
believe, me, I want to jump up and down screaming, “Hallelujah!” This is a very important moment. I wish it had come sooner, but it takes away none of the excitement, elation and gratitude that it is actually coming now. This is a good day and a good moment for very many people.
Some representative organisations and campaigning groups have been in touch with a request to amend the clause. They have concerns that still, within the letter of the law, it would be possible for a perpetrator, or alleged perpetrator, to nominate somebody close to them—a friend or a family member—to do the cross-examination on their behalf who might well act in their interests in terms of carrying on the abuse. I do not believe, from reading the Bill, that that is in the spirit of the proposed law or is something I believe a court would countenance. However, I seek reassurance from the Minister that they are aware of that, and that should it ever happen in court they will not wait six months, a year or four years before fixing it, but do everything in their power, including bringing something to the Floor of the House, to deal with it if that is what it takes.
Liz Saville Roberts
I too very much welcome the drive behind the clause. The hon. Member for Hove expressed so well the sense that victims have been grist to the mill in the past and this measure will re-set the balance to a degree. I very much agree with the spirit of the amendment to the clause, but there are a couple of points I would like to raise to bring to the attention of the Minister potential loopholes that may need attention in future.
Alex Chalk
Before turning to the specific point, I listened carefully to what the hon. Member for Hove said, and it was clear that he has taken a close interest in the issue. I thank him for the energy that he has clearly applied to it. As I was listening to him, I heard about Bills that had fallen, elections that had come and UQs that had happened, and I was reminded of Otto von Bismarck, the German Chancellor, who said: “Laws are like sausages; it is best not to watch them being made.”
That is absolutely right and I felt it about this. Inevitably—not inevitably, but not uncommonly—it can take time to get there, but we are absolutely delighted with where we have arrived at with this important legislation. It is important to note, too, that it takes place in the context of other important legislation that it was possible to get over the line earlier, such as on coercive control or modern slavery. The Bill sits within that wider context in which we take some pride.
I will first address the issue of spent convictions, friends and so on, and that will allow me to go back to a point made by the hon. Member for Birmingham, Yardley, when she in effect said, “What happens in circumstances where it is not necessarily a conviction or a caution, but something else?” If hon. Members turn to page 40 of the Bill, that is the relevant part of clause 59, which deals with how the Matrimonial and Family Proceedings Act 1984 will be amended. The clause having dealt specifically with issues of conviction and caution, proposed new section 31U—“Direction for prohibition of cross-examination in person: other cases”— states:
“In family proceedings, the court may give a direction prohibiting a party to the proceedings from cross-examining…a witness in person if…none of sections 31R to 31T operates to prevent the party from cross-examining the witness”—
that relates to people protected by injunctions, convictions or other matters—and
“it appears to the court that—
(i) the quality condition or the significant distress condition is met, and
(ii) it would not be contrary to the interests of justice to give the direction.”
In other words, it would be open to the party to indicate to the court: “Yes, I don’t automatically qualify, but I’m going to provide a statement that indicates that it would adversely affect the quality of the evidence I can give were I to be cross-examined by the other party.” I hope that that will give the courts confidence that flexibility is deliberately built into the system.
Liz Saville Roberts
To return to my concern about the lack of communication between jurisdictions, on spent convictions we are going quite a long way down the road as to what communication is necessary. Is the Minister confident that there is sufficient communication, or that there will be in the wake of the legislation, to ensure that such situations are safeguarded against?
Alex Chalk
Yes, I am confident, but it goes back to the earlier point that we were making about culture. If, by dint of the legislation, the family judges, when deciding whether to make one of the orders, are alive to the fact that they will need to consider whether someone has a conviction or a caution, that will, in and of itself, encourage and require the co-operation of the police. In other words, the court will have to find out what is on the police national computer in respect of the other party.
I am confident that courts will see their way to ensuring that those lines of communication are in place. Quite apart from anything else, if a judge finds himself, or herself, in a situation where he cannot make the order because he has not been provided with the information he needs, we can be very sure that he is likely to say something about that. That will, I am sure, elicit change in the fullness of time, so the short answer to the hon. Lady’s question is yes.
Question put and agreed to.
Clause 59, as amended, accordingly ordered to stand part of the Bill.
Clause 60 ordered to stand part of the Bill.
Clause 61
Offences against the person committed outside the UK: Northern Ireland
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 61 extends the jurisdiction of the criminal courts in Northern Ireland in the same terms as clause 60 extends the jurisdiction of the criminal courts in England and Wales. We did not go into clause 60 in any detail, but that is what it is about.
Clause 61 gives effect in Northern Ireland to our obligations under article 44 of the Istanbul convention, as it applies to article 35, which covers physical violence, and article 39, which covers forced abortion and forced sterilisation. Like clause 60, it does so by extending extraterritorial jurisdiction to certain offences against the person, including actual or grievous bodily harm and murder and manslaughter, in circumstances where the courts do not already have such jurisdiction. That will mean that a UK national or a person habitually resident in Northern Ireland who commits one of the offences outside the UK can, exceptionally, stand trial for the offence in Northern Ireland.
Question put and agreed to.
Clause 61 accordingly ordered to stand part of the Bill.
Clause 62
Amendments relating to offences committed outside the UK
Question proposed, That the clause stand part of the Bill.
Alex Chalk
The clause simply reintroduces schedule 2, which contains amendments relating to offences committed outside the UK. As with clauses 60 and 61, the amendments are necessary to ensure compliance with article 44 of the Istanbul convention. Part 1 of schedule 2 contains amendments to provide for extraterritorial jurisdiction over certain offences other than those set out in clause 60 under the law of England and Wales. Part 2 of schedule 2 contains amendments to provide for extraterritorial jurisdiction over certain offences under the law of Scotland. Part 3 of schedule 2 contains amendments to provide for extraterritorial jurisdiction over certain offences not including those set out in clause 61 under the law of Northern Ireland.
Schedule 2 contains amendments to a number of enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. Together with clauses 60 and 61 and provisions in the Domestic Abuse and Family Proceedings Bill currently before the Northern Ireland Assembly that give extraterritorial effect to the new domestic abuse offence in Northern Ireland, schedule 2 will ensure that the UK complies with the jurisdiction requirements of article 44 of the Istanbul convention.
Part 1 of the schedule covers England and Wales and gives effect to the UK’s obligations under article 44 as it applies to article 33, which covers psychological violence, article 34, which covers stalking, and article 36, which covers sexual violence, including rape. It does so by extending extraterritorial jurisdiction to offences under sections 4 and 4A of the Protection from Harassment Act 1997, sections 1 to 4 of the Sexual Offences Act 2003 where the victim of the offence is aged 18 or over, and section 76 of the Serious Crime Act 2015, which is about coercive control. It will mean that a UK national or a person habitually resident in England and Wales who commits one of these offences outside the UK can, exceptionally, stand trial for the offence in England and Wales. Where the offence involves a course of conduct, the offence may be committed wholly or partly outside the UK.
Part 2 of the schedule covers Scotland and gives effect to the UK’s obligations under article 44 as it applies to articles 33 to 36 and article 39. It does so by extending extraterritorial jurisdiction to the common law offence of assault, to offences under sections 1 to 4 of the Sexual Offences (Scotland) Act 2009 where the victim of the offence is aged 18 or over, and to the offence of stalking under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010.
That will mean that a UK national or person habitually resident in Scotland who commits one of these offences outside the UK can, exceptionally, stand trial for the offence in Scotland. Where the offence involves a course of conduct, the offence may be committed wholly or partly outside the UK.
Part 3 of the schedule, as the Committee will be cottoning on to by now, covers Northern Ireland and gives effect to the UK’s obligations under article 44 as it applies to article 34 and 36. It does so by extending extraterritorial jurisdiction to offences under article 6 of the Protection from Harassment (Northern Ireland) Order 1997 and part 2 of the Sexual Offences (Northern Ireland) Order 2008, again where the victim of the offence is aged 18 or over. It will mean that a UK national or person habitually resident in Northern Ireland who commits one of these offences outside the UK can, exceptionally, stand trial for the offence in Northern Ireland. Where the offence involves a course of conduct, the offence may be committed wholly or partly outside the UK.
Jess Phillips
I simply want to welcome specifically the terminology of “habitual resident” within the UK. The Minister and I have met a number of different families over the years who have suffered violence, and I am afraid to say that those cases we get to see usually involve murder in a different country. Where the perpetrator of the crime was back here in Britain and was not a British citizen but was habitually resident in this country, the authorities had found that their hands were tied. While the measures seem perfunctory and were a lot of words for the Minister to say, to families they mean a huge amount, so I welcome them.
Question put and agreed to.
Clause 62 accordingly ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 63
Polygraph conditions for offenders released on licence
Question proposed, That the clause stand part of the Bill.
Alex Chalk
This clause is about polygraph conditions. It is an important clause that relates to conditions for offenders released on licence. It is one of a number of measures in the Bill directed at strengthening the effective management of domestic abuse perpetrators. It allows the Secretary of State for Justice to introduce mandatory polygraph examinations as a licence condition for offenders convicted of a relevant domestic abuse-related offence. The relevant offences include murder, specified violent offences and the offence of controlling or coercive behaviour under the Serious Crime Act 2015. Necessarily, this is a new departure to some extent, but it is kept within tight limits, as members of the Committee would expect.
Jess Phillips
I beg to move amendment 52, in clause 64, page 47, line 15, at end insert—
“(1A) Before issuing guidance under this section, the Secretary of State must undertake a comprehensive assessment of the contribution of the disclosure of police information to the prevention of domestic abuse, drawing on disclosures made by chief officers of police prior to this section coming into force.
(1B) Disclosures of police information for the purposes of the prevention of domestic abuse may only be made—
(a) where reasonable, necessary, and proportionate,
(b) with regard to the best interests of children likely to be affected by the disclosure, and
(c) after ensuring there is an operational plan to support the recipients of such disclosures.”
The Chair
With this it will be convenient to discuss amendment 53, in clause 64, page 47, line 17, at end insert—
“(2B) Each chief officer of police of a police force must annually review—
(a) the compliance of their own force with any guidance issued under this section, and
(b) the overall contribution of the disclosures under that guidance to the prevention of domestic abuse in their force area.”
An amendment to demand review from police of how the Domestic Violence Disclosure Scheme policy is working, and to clarify the ‘pressing need’ test.
Jess Phillips
The domestic violence disclosure scheme, which I will refer to from this moment forward as Clare’s law, was introduced in 2014 after Clare Wood was murdered by her ex-boyfriend, George Appleton. For those who are unfamiliar with the case, Clare Wood had made several complaints to the police about George Appleton before her death. Those complaints included criminal damage, harassment, threats to kill and sexual assault. A panic room had been installed in her house following an attempted rape.
Clare was unaware that George Appleton had a history of violence against women and had been jailed for three years in 2002 for harassing another woman, and for six months a year earlier after breaching a restraining order. However, he was still able to enter Clare’s home, strangle her and set her on fire. The Independent Police Complaints Commission concluded that Clare had been let down by individual and systematic failures by Greater Manchester police.
Clare’s law was designed to set out procedures that could be used by the police in relation to disclosure of information about previous violent, abusive and offending behaviour by a potentially violent individual towards their partner where that might help to protect that partner from further violent and abusive offending. There are two procedures for disclosing information: the right to ask, which is triggered by a member of the public applying to the police for a disclosure, and the right to know, which is triggered by the police making a proactive decision to disclose information to protect a potential victim. Disclosures are made when it is deemed that there is a pressing need for the disclosure of the information to prevent further crime.
While there is no doubt that Clare’s law was introduced with entirely good intentions—I am not here to challenge that at all—there is some concern that this well-intentioned piece of legislation is currently not operating as it should be, and concern about some alarming instances where, as it operates currently, it could be causing more harm.
First, Clare’s law has had limited use since its creation in 2014. According to data from March 2018, there were 4,655 right to ask applications, resulting in 2,055 disclosures, and 6,313 right to know applications, resulting in 3,594 disclosures, so it can be seen clearly that disclosures are not made in every case. In comparison, in the same time period there were just shy of 1.2 million recorded domestic abuse cases in England and Wales, so we are talking about a very small number of cases that seem to be using the scheme. That in itself is not necessarily evidence that it is not working, but I think it is descriptive of where it may work in some places and not others.
In addition, there appears to be a postcode lottery regarding disclosures. It is assumed that that variation is due to the vague nature of the pressing need test that currently exists in the law. For example, in 2019 Kent had an 8.5% disclosure rate for right to ask disclosures, while Hampshire had a 99.5% rate. That is worrisome, but what is of even greater concern is that the average time taken for each disclosure is 39 days. I imagine all will agree that in cases of domestic abuse, that mitigates quite a lot of the potential prevention and could potentially heighten a victim’s risk.
In addition, while there was a review of the initial pilot phase of Clare’s law and a review one year on, those reviews were procedural and did not consider the impact of the scheme on domestic abuse or analyse the scheme’s value for money. There is therefore no evaluation of whether the disclosures made have any benefit to the person they are made to. In fact, one survey indicated that 45% of early-wave recipients of information went on to be victimised by the partner they warned about. In normal language, that means that 45% of the people who have been given the information following one of the variety of requests under this law went on to be victimised and abused by that person.
One such example is Rosie Darbyshire, who was murdered with a crowbar by her partner Ben Topping. Having made an application for information under Clare’s law on 28 January, she was killed just over a week later on 7 February. She was left unrecognisable after sustaining more than 50 injuries.
Other concerns include the impact of coercive and controlling behaviour where women are unable to contact the police or where contact from the police would only serve to make matters worse. At the beginning of a relationship—I think we can all understand this, and it applies not just to women but anyone—women are often not alive to the risk of domestic abuse. Only when it is too late are they advised of their partner’s past.
Gemma Willis from Teesside, reporting to the BBC, was only advised of Clare’s law after her partner was arrested following smashing her head into a window, slashing her neck with a trowel, hitting her with hammers and threatening to kill her family. Also reporting to the BBC, Dr Sandra Walklate from the University of Liverpool said of the scheme:
“We have no real way of knowing whether it’s working or not”.
While clause 64 operates to place Clare’s law on a statutory footing, the proposed amendments are designed to safeguard against circumstances and the case studies outlined above. The amendments would mean that police should evaluate whether disclosures made under Clare’s law are having a positive impact on the safety and empowerment of victims. I am not seeking for police forces just to do a paper-shuffling exercise: “A request has come in. What will we do with this request? Does it meet the tests as set out in the law?” I am rather seeking for police forces to run some manner of risk assessment on the impact of this disclosure being made, not on the perpetrator but on the victim.
The amendments would also require police to undertake an exercise to establish the efficacy of the disclosures that have been made in the past few years, to simply have a look over how well it is working. The pressing need test, which I have already referred to, would be refined and clarified to create uniformity with future disclosures. Based on information set out, it cannot be argued that my amendments are anything less than essential for the Government, if they want to ensure that Clare’s law is as good as it could be and that the protective effect it was intended to have does not, in some cases, cause harm.
Victoria Atkins
I would like to take a moment to reflect on the extraordinary campaigns, charities and local efforts, through which families, such as the Wood family, often find the strength and resilience somehow to campaign and carry on when they have suffered a devastating loss in their family. We have heard why Clare’s law is called Clare’s law: her family felt that had she been aware of her murderer’s background, she would have been able to stop the relationship earlier.
There are so many efforts in the world of looking after and helping victims of domestic abuse, both at the national and local level, where people have done the most extraordinary things. I want to put that on record, because I am very conscious of it as we work through the Bill and our non-legislative work.
We absolutely acknowledge that there is much more to be done to raise awareness of the scheme, primarily with the public, but also with the police. We want to increase the number of disclosures and ensure that the scheme is operated consistently across all police forces.
Jess Phillips
I am indeed content. I look forward to working with the Minister to ensure that the law—it bears somebody’s name and is their legacy—truly does what Clare’s family wish it to do. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 64 ordered to stand part of the Bill.
Clause 65
Grant of secure tenancies in cases of domestic abuse
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Part 7 of the Bill is a collection of important measures, although there is perhaps not a common theme running through them other than that. The clause relates to secure tenancies and contributes towards the Government’s wider aim to support victims of domestic abuse to leave their abusive circumstances, and to ensure that they and their families have the stability and security they need and deserve.
Clause 65 does two things. First, it will ensure that victims of domestic abuse who have or had a lifetime social tenancy, and who have had to flee their current home to escape abuse, will retain the security of a lifetime tenancy in their new social home where they are granted a new tenancy by a local authority. The provisions apply to all local authorities in England and protect all lifetime social tenants in such circumstances, regardless of whether they hold a secure local authority tenancy or an assured tenancy with a private registered provider of social housing—usually a housing association.
Secondly, the clause will safeguard domestic abuse victims who hold a joint lifetime tenancy and who want to continue living in their home after the perpetrator has moved out or been removed from the property. It does this by providing that, if the local authority grants them a new sole tenancy, it must be a lifetime tenancy. The provisions apply when the tenant is a victim of domestic abuse, and they extend to situations where a member of the household—for example, a child—has suffered domestic abuse. In the year to the end of March 2019, nearly 1,500 local authority lettings were made to social tenants who cited domestic violence as the main reason they left their former social home. Although that is a small proportion of new tenants overall, the provisions would protect more than 1,000 households affected by domestic abuse.
The measures largely mirror current provisions in the Secure Tenancies (Victims of Domestic Abuse) Act 2018. That Act, which delivers on a 2017 manifesto commitment, ensures that when the mandatory fixed-term tenancy provisions in the Housing and Planning Act 2016 are brought into force, the security of tenure of victims of domestic abuse will be protected. After listening carefully to the concerns of social housing residents, the Government announced in August 2018 that we had decided not to implement the mandatory fixed-term tenancy provisions at that time. In order to ensure that victims of domestic abuse are protected, we also announced that we would legislate to put in place similar protections for victims of domestic abuse where, as is the case now, local authorities offer fixed-term tenancies at their discretion; the clause gives effect to that commitment. The clause also amends the definition of “domestic abuse” in the 2018 Act to bring it in line with the definition in this provision.
Question put and agreed to.
Clause 65 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Rebecca Harris.)
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Fourth sitting)
Thursday 11th June 2020
(4 years, 6 months ago)
Public Bill CommitteesRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 View all Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 June 2020 - (11 Jun 2020)
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 3, in clause 4, page 2, line 34, leave out “, or in connection with,”
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee in connection with the equivalent Bill introduced in the last session of Parliament.
Amendment 20, in clause 4, page 2, line 35, leave out “this Part” and insert “Schedule 1”
This amendment seeks to limit the scope of the power in Clause 4 to matters concerning the ending of retained EU law rights that currently preserve free movement and immigration-related rights.
Amendment 21, in clause 4, page 2, line 35, at end insert—
‘(1A) The power to make regulations under subsection (1) may only be exercised within the period of one year from the day on which this Act is passed.
(1B) Regulations made under subsection (1) shall cease to have effect after a period of two years from the day on which this Act is passed.”
This amendment would restrict the use of the Henry VIII powers contained in Clause 4 to a period of one year from the date of the Act being passed; and would prevent any changes to primary legislation made by exercise of these powers having permanent effect unless confirmed by primary legislation.
Amendment 4, in clause 4, page 3, line 6, leave out subsection (5).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee in connection with the equivalent Bill introduced in the last session of Parliament.
Amendment 15, in clause 4, page 3, line 8, at end insert—
‘(5A) The Secretary of State may make regulations under subsection (1) only if satisfied that the regulations would have no detrimental effect on the children of EEA and Swiss nationals resident in the United Kingdom.
(5B) Before making regulations under subsection (1) the Secretary of State must lay before Parliament, and publish, a statement explaining why the Secretary of State is satisfied as mentioned in subsection (5A).”
Amendment 22, in clause 4, page 3, line 8, at end insert—
‘(5A) Regulations under subsection (1), in relation to persons to whom the regulations apply under this Act, shall be made in accordance with the following principles—
(a) Promotion of family life, particularly that between children and their parents and that between partners;
(b) That persons in the United Kingdom should have a right of appeal to the First-tier Tribunal against any decision to refuse leave remain, to curtail leave to enter or remain or to make a deportation order;
(c) that where leave to remain is given—
(i) on account of a person’s long residence in the United Kingdom; or
(ii) to a person whose continuous residence in the United Kingdom includes five years of that person’s childhood; or
(iii) to a child who has lived in the United Kingdom for a period of seven continuous years;
that leave is given for an indefinite period;
(d) that leave to enter or remain given to a person for the purpose of establishing or continuing family life in the United Kingdom is not subject to a condition restricting work, occupation or recourse to public funds; and
(e) ensure that no change to immigration rules or fees is made—
(i) unless sufficient public notice has been given of that change to ensure any person affected by the change who is already in the United Kingdom with leave to enter or remain has reasonable opportunity to adjust their expectations or circumstances before the change takes effect; or
(ii) that would require a person given leave to enter or remain for the purpose of establishing or continuing family life in the United Kingdom to satisfy more restrictive conditions for the continuation of their stay than were required to do so at the time the person was first given leave for this purpose.”
This amendment seeks to ensure that exercise of the delegated powers in clause 4(1) is guided by certain principles.
Amendment 12, in clause 8, page 5, line 40, at end insert—
‘(4A) Section 4 and section 7(5) expire on the day after the day specified as the deadline under section 7(1)(a) of the European Union (Withdrawal Agreement) Act 2020.”
The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)
It is a pleasure to serve under your chairmanship this afternoon, Mr Stringer. This group of amendments raises important issues about the scope of the regulation-making power in clause 4. I would like to thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for speaking to his amendments and for the effort he has put into them. I know that he has a strong interest in the use of the power in clause 4, as he had when the Bill was previously in Committee, in 2019. However, despite the explanations given to him then, he appears still to be misinformed about how the Government are planning to use this power, and I hope that my response will help. A lot has been said today and in the evidence sessions about this power granting Ministers a blank cheque. That is not the case, and if you will permit me, Mr Stringer, I will set out how we intend to use the power and respond to the hon. Member’s amendments as I do so.
The power is intended to enable three broad things via regulations. The first is to ensure that our laws operate coherently once freedom of movement ends and the relevant provisions in schedule 1 are repealed. There are references across the statute book to EEA citizens, their free movement rights and their status under free movement law, which need to be addressed through regulations made under this power.
For example, regulations made under section 126 of the Nationality, Immigration and Asylum Act 2002 list the documents that must be provided in support of various types of immigration application. One type relates to applications under the Immigration (European Economic Area) Regulations 2016, which implement the free movement directive. That reference needs to be removed because those regulations are revoked by schedule 1, so there will no longer be applications under them. It is therefore important that the power is wide enough to ensure that all references to the EU and free movement rights in primary and secondary legislation can be amended appropriately as a consequence of, or in connection with, the ending of free movement.
That is why the Government do not and cannot accept amendments 2 and 3, as they would prevent us from meeting our manifesto commitment of ending free movement and introducing a new, fairer points-based immigration system. We also do not want the provision drafted so narrowly as to lead to challenge and uncertainty about whether an amendment is “appropriate” or “necessary” “in connection with” or “in consequence of” the end of free movement. Such an amendment would enable those who oppose the principle of ending free movement, which I accept the Scottish National party does, to seek to achieve that through the courts by challenging these regulations, since they were not able to achieve it at the ballot box in December.
The second reason that the power is important is to align the immigration treatment of EEA and non-EEA citizens for those who arrive from 1 January 2021, after the end of the transition period. That will enable us to deliver the new global points-based immigration system under which everyone is treated equally—for example, by removing EEA citizens’ exemption from the immigration skills charge. We also intend to use the power to align the rules on access to benefits, so that EEA citizens and non-EEA citizens are treated the same under the new global points-based system. It is worth me clarifying that the detailed requirements for the future points-based immigration system will be set out in the immigration rules made under the Immigration Act 1971 and subject to parliamentary scrutiny of those changes, not through regulations made under clause 4. Control has been taken back by Parliament and will be there.
Thirdly, the power will enable savings and transitional provisions to be made—for example, to protect EEA citizens’ existing appeal rights under the EEA regulations. That is in addition to the protections to be delivered for EEA citizens resident in the UK by the end of the transition period through statutory instruments, which the Government will bring forward under the European Union (Withdrawal Agreement) Act 2020.
I understand that clause 4 is a complex, technical power. That is why the Government have already produced information to help the Committee understand the power, through the factsheet published on gov.uk. I have also given examples of changes that we intend to make under the regulations. It is absolutely right that Parliament pays close attention to delegated powers such as these. I noted the recommendations of the Delegated Powers and Regulatory Reform Committee in the report on the Bill in the previous Parliament.
Amendment 4 would remove the provision to make changes in relation to fees and charges. Regulations made under this power may only modify legislation relating to the imposition of immigration fees and charges where that is as a consequence of or connected with the provision in part 1. That enables the application of fees and charges to EEA citizens, who are currently exempt from them, such as the immigration skills charge, which is paid by the employer.
Amendments 20, 21 and 22 would further limit the scope of the regulations made under clause 4. Let me set it out again that we need this power to ensure that our laws operate coherently once free movement ends, to align the immigration treatment of newly arriving EEA citizens and non-EEA citizens from 1 January 2021, and to make relevant savings and transitional provisions for resident EEA citizens that cannot be made under powers in the European Union (Withdrawal Agreement) Act 2020.
Amendment 20 would prevent the regulations from being used to make amendments that are in consequence of or in connection with clause 2, which protects the unique position of Irish citizens in the UK once free movement ends. I understand the queries about that point. To be absolutely explicit, we intend to use that power in a very limited way to amend provisions in the Immigration Act 1971 that cover entering the UK via the common travel area. We will not use them for wider changes. As I said this morning, the Belfast agreement is fundamental international law, as well as a fundamental part of our constitution.
Amendment 21 is intended, first, to sunset the power in clause 4 by setting a deadline for its use of one year after the Bill is passed and, secondly, to ensure that regulations made under the power expire after two years. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is, I suspect, aware, regulations will need to be made under clause 4 to coincide with the repeal of free movement law by part 1. We have endeavoured to ensure that they make all the changes required by primary and secondary legislation, to come into effect by the end of the transition period. Beyond that, I assure him that we would make further changes under the power only if that were required, and Parliament will be fully engaged whenever it is used.
The power cannot be used to make amendments relating to the consequences of exiting the EU more generally; it can be used only in consequence of or in connection with ending free movement and the clarified status of Irish citizens. Changes cannot be made indefinitely, as they would not be in consequence of or in connection with that purpose. For example, the powers cannot be used to amend future primary legislation or general immigration policies.
The second limb of amendment 21 provides that any regulations made under clause 4 would expire after two years. That would mean that the legislation that had been amended reverted to its former state, creating confusion for the public and leading to a partial revival of elements of free movement, which I suspect is the outcome that the hon. Gentleman is partly hoping for. This is not an outcome that we can accept.
Amendment 22 would require that regulations made under the power in clause 4 complied with a specified set of principles. It would have the effect of continuing to treat newly arriving EEA citizens differently from non-EEA citizens. That is not consistent with establishing a new global points-based immigration system focused on the skills and contributions that people have to offer the UK, not where their passport is from.
Amendment 12, which was tabled by the hon. Member for Torfaen (Nick Thomas-Symonds), is also intended to sunset the power in clause 4 by setting the end date for its use as the day after the end of the grace period, on 30 June 2021, by which time EEA citizens and their family members resident in the UK by the end of the transition period must have applied for status under the EU settlement scheme unless, as we constantly repeat, there are reasonable grounds for missing the deadline.
I hope that I have reassured hon. Members concerning the important limitations on the use of the power in clause 4. I emphasise that it cannot be used to make amendments that relate to the consequences of exiting the EU more generally, but only in consequence of or in connection with ending free movement and the clarified status of Irish citizens provided by clause 2.
We will endeavour to make all the changes required to primary and secondary legislation in the forthcoming regulations to be made under clause 4 later this year. However, should we identify the need to make further regulations related to part 1, it is important that we have the power to do so, subject to the full scrutiny and approval of both Houses.
When a power to make regulations expires, so do any regulations made under it, so if the amendment were passed legislation that had been amended would revert to its former state, creating confusion for the public and leading to a partial revival of elements of free movement, which may have been the intention. However, that is not an outcome that the Government can accept.
Amendment 15, which was tabled by the hon. Member for Stretford and Urmston, would ensure that children of EEA and Swiss citizens resident in the UK were not adversely affected by the ending of free movement rights. She asked specifically about numbers, and I had an opportunity over the break to get the figures for the period up to 31 March 2020—they are published quarterly. Of the under-18s who have applied to the European settlement scheme, and where a decision has been taken, by 31 March, 261,880 were granted settled status and 150,940 were granted pre-settled status. That compares with just 20 refusals of applications from applicants aged under 18. Those refusals may well be on grounds purely of eligibility—that is, not having proof of living within the United Kingdom.
Given the hon. Lady’s specific query, I thought it would be helpful to give that clarity. It is not possible to say exactly how many people may be eligible, because free movement rights and rights relating to those who become eligible to apply to the European settlement scheme still operate up to 31 December. It is impossible to say exactly who will arrive tomorrow, for example, and be entitled under the withdrawal agreement to apply to the European settlement scheme. I hope that gives her some reassurance on where we are. It is worth saying that the overall level of applications to the European settlement scheme is now over 3.5 million and the number of decisions taken is over 3 million, which puts the numbers we are talking about into context.
Amendment 15 would create a two-tier system of family migration, with one set of requirements for the children of EEA and Swiss citizens and another for children of non-EEA citizens. It would lead to EEA citizens potentially being given preferential treatment inconsistent with the new points-based immigration system and with our aim of having a new single approach to migration rules, regardless of where a passport comes from.
The Home Office has, as the hon. Lady touched on, a very clear statutory obligation to take into account the need to safeguard and promote the welfare of children in the UK when carrying out immigration functions. That extends to all children, not just the children of EEA or Swiss citizens. This is contained in section 55 of the Borders, Citizenship and Immigration Act 2009. That, together with article 3 of the UN convention on the rights of the child—part of international law, as she pointed out—means that consideration of the child’s best interests must be a primary consideration in immigration decisions affecting them.
The amendment could create a separate and preferential family migration system for the family members of EEA or Swiss citizens compared with the family members of non-EEA citizens. The proposed condition under clause 4—that the Secretary of State is satisfied that there would be no detrimental impact on the children of EEA or Swiss citizens—could lead to non-EEA citizens with children and the children themselves being treated less favourably for no reason other than their nationality and with no justification for that, given that the United Kingdom has now left the European Union. This is not a basis on which a new global immigration system can be founded.
The Bill’s core focus is to end free movement. The design of the new points-based immigration system will be developed consistent with our international and domestic obligations to safeguard and promote the welfare of children. For that reason, as set out in our published policy equality statement on the immigration measures in the Bill, we have committed carefully to consider all equalities issues, including the impact on children, as these policies are being developed, but not on the basis of a two-tier approach between non-EEA and EEA children.
It is important to debate the appropriate use of delegated powers, and I welcome this, but the Government are committed to ending free movement now that we have left the EU and this clause is an essential part of delivering that. It will be used to deliver a clear and coherent statute book and level the playing field for future migration by removing the preferential treatment of EEA citizens and their family members under EU freedom of movement rules.
In future, the UK’s immigration system will be firmer, fairer and global, rather than one based on where someone’s passport comes from. I suspect that I might not have been able to fully reassure Opposition Members on the power under clause 4, but I ask them not to press their amendments, which the Government cannot accept.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to see you in the Chair, Mr Stringer. I am grateful to the Minister for his extensive response, but he is right in one thing, which is that he has not fully satisfied me about the need for these powers. Much of what he said related to how the Government propose to use these powers or what they are planning to do, but that is not how we should go about assessing whether the scope of the powers is appropriate. We need to assess what the scope of these powers would, in theory, allow the Government to do, and that goes way beyond what he set out.
We do not hand powers to the Government on the basis of assurances that they are going to do only a, b and c. Listening to the list of proposals the Minister made, I am utterly unconvinced that that could not be done very simply with a much more narrowly drawn clause and power. Nothing in any of these amendments would stop the Government bringing free movement to an end—sadly.
The Minister alluded to the fact that some of this is about trying to limit the scope for judicial oversight. I am trying to keep MPs in a job here scrutinising legislation, but I am also trying to make sure the judiciary is not excluded from the proper review of the use of Executive power. The House of Lords Delegated Powers and Regulatory Reform Committee said that these are “significant” powers and also used the word “disturbing” at one point, so I am afraid I cannot accept the Minister’s explanation that they are justified.
On amendment 22, I am disappointed that the Minister did not engage with the principles themselves, because other amendments have been tabled with respect to the principles of immigration law and we are constrained by the scope of this Bill to limiting these amendments to dealing with EU, EEA and Swiss nationals. Although that does not mean we think we should be confined in this way to them, it is in the Government’s gift to extend this much more broadly, so I am very disappointed that he did not engage with what those principles are. I hope we will have a fuller debate when we come to other amendments. On that basis, I shall press amendment 2 to a vote.
Question put, That the amendment be made.
Holly Lynch (Halifax) (Lab)
I beg to move amendment 13, in clause 4, page 3, line 8, at end insert—
“(5A) Regulations under subsection (1) must provide that EEA nationals, and adult dependants of EEA nationals, who are applying for asylum in the United Kingdom, may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within six months of the date on which it was recorded.”
May I say what a pleasure it is to serve under your chairmanship again this afternoon, Mr Stringer? The amendment would give European economic area and Swiss nationals who apply for asylum in the UK the right to apply to the Secretary of State for permission to work if a decision has not been taken on the applicant’s asylum application within six months of the date on which it is recorded as having first been made.
The amendment is the legislative outcome of the Lift the Ban campaign, a movement headed up by Refugee Action and with the support of more than 200 organisations, including the likes of Oxfam and the British Red Cross; trade unions, including the National Education Union, Unison and the TUC more broadly; industry players such as Ben & Jerry’s and the Confederation of British Industry; and organisations such as the Adam Smith Institute. We worked on the drafting of the amendment with Refugee Action, as well as with legal professionals, and we are of course truly grateful, as ever, to the Committee Clerks. The proposal is limited to EU nationals to ensure that it falls within the scope of the Bill.
This amendment was tabled by my hon. Friend the Member for Stretford and Urmston in the Bill Committee on the previous version of this Bill during the 2017-19 Parliament. At that point, the Government argued that the UK is allowed to treat an asylum claim made by a citizen of an EU country as automatically inadmissible unless exceptional circumstances apply, and that a claim made by a non-EU EEA national would be considered on the basis that it is likely to be clearly unfounded. The implication was that there would be no one who would benefit from the amendment, and in any case treating asylum seekers from the EEA differently from those from the rest of the world on the grounds of their nationality was not only illogical but discriminatory.
The Minister and I know, though, that the amendment sets out the proposal in principle, within the bounds of what is permissible in respect of the scope of the Bill. It gives us the opportunity and the platform to outline the case for change, and I am delighted that it also has the support of SNP Members.
In August and September 2018, the Lift the Ban coalition conducted a survey with a group that had direct experience of the asylum process and found that 94% of all respondents said they would like to work if they were given permission to do so. We have all met asylum seekers: they are people not dissimilar to ourselves who have often had to flee their own countries when faced with immediate danger. They are often skilled, able to work and want to work. Rose is one example. She is currently in the asylum system, so I appreciate that she is not an EU national, but hers is the experience that we could start to change and transform if the Government accept the merits of the amendment.
Rose has been waiting for a decision on her asylum claim for three years. Not having the right to work while she waits for a decision on her asylum claim is not only putting pressure on her family life but damaging to her children, who are unable to understand why she cannot work. She said:
“Not being able to work, it cripples you…As a parent, you feel that you are not good enough…When you have kids, their daily needs—there are things that you need to give them. If I were working, I would not have to go to charity shops all the time to get hand-me-downs for my kids.”
Rose wants to be given the opportunity to be productive and show what she is capable of. She said:
“I want to work so I can prove myself to my children.”
The amendment would give people in the future asylum system from EEA countries the opportunity to use their skills and make the most of their potential. It would improve the mental health of people such as Rose in the asylum system by giving them a sense of worth and purpose, and it would enhance the opportunities for integration into their new communities, as well as allowing them to satisfy the strong work ethic that Rose clearly has and wants to pass on to her children.
The impetus for this change has only been intensified by the coronavirus pandemic. The brilliant campaigning and advocacy from the group Freedom from Torture has shone a light on the pittance that asylum seekers receive in support rates. At present, people in the asylum system receive a little over £5 a day per person in allowances. While at the onset of the crisis the Chancellor increased universal credit by £20 a week to “strengthen the safety net”, no proportional measures have yet been introduced for asylum support rates.
The uncertainty and rise in demand for specific items due to the pandemic has only exacerbated the difficulty faced by asylum seekers in finding the supplies they need to keep themselves and their families healthy and safe. Even before the onset of coronavirus, 52% of Refugee Action survey respondents reported having to use a food bank at some point within the last 12 months. If the Government are not minded to increase asylum support rates, it is both moral and logical to grant asylum seekers the right to work after six months. To forbid both options is to back some of the most vulnerable people in our society into an unescapable corner.
The Government could transform the financial health of a vast number of asylum seekers by accepting the amendment. Additionally, it would allow asylum seekers to play an active role in getting the British economy moving again, following the immense disruption caused by the pandemic. Refugee Action estimates that this change in policy could benefit the UK economy through net gains for the Government of £42.4 million. This would also be an overwhelmingly popular policy. Refugee Action carried out a survey of the public where 71% agreed that people seeking asylum should be allowed to work.
Accepting the amendment would help to fix the structural and deeply entrenched problems that exist with the current system. People seeking asylum in the UK can only apply for the right to work after they have been waiting for a decision on their asylum claim for over a year. The UK is the global outlier in time taken to give people in the asylum system the right for work. Ireland, Hungary, France, the United States and Poland, to name just a few, all have a much swifter process.
Even then, the few people who are granted such permission are rarely able to work in practice because their employment is restricted to the list of professions included on the Government’s shortage occupation list. This is the equivalent of putting square pegs in round holes, and disregards the skills and potential of many people in the asylum system. Refugee Action found that 74% of survey participants had secondary level education and 37% had an undergraduate or postgraduate degree. People in the asylum system can and should work in a wide variety of jobs that are hugely beneficial to both the UK economy and public wellbeing.
My involvement with the campaign is largely thanks to two amazing women in my own constituency. I pay tribute to Veeca Smith and Florence Kahuro, who set up the wonderful and incredibly effective local campaign group Sisters United. I am sure they would be delighted to meet the Minister in the not-too-distant future—I am sure he would struggle to get a word in edgeways. They are absolutely brilliant. They both sought asylum in the UK and founded the group to offer peer support to others in their situation and campaign for simple things such as accommodation that is not plagued by health and safety issues, and the right to go out and earn for themselves.
I hope that the Minister will appreciate the broad consensus that exists behind this amendment and accept the multitude of benefits that adopting the amendment would bring. It is time we treated people in the asylum seekers with dignity and as people with unrecognised potential to contribute to our society.
Taiwo Owatemi (Coventry North West) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stringer.
I rise in support of amendment 13 and lifting the ban. As with any legislation, there is a requirement to strike a balance between addressing the issue at hand, in this case our withdrawal from the EU, while also being practical and compassionate to ensure that people are not hard done by. The reality is that thousands of asylum seekers in the UK who came here for refuge are unable to work—unable to properly provide for themselves and their children and possibly loved ones, and unable to make what has been a difficult life a reasonable and normal one. Instead, as the Refugee Council highlights, these people must live on as little as £5 a day, which many of us here in this Room could not even countenance. That is £5 a day to feed themselves and loved ones, buy toiletries, pay for transport to go about their everyday lives, and do any other thing that a normal person would do.
Stuart C. McDonald
I echo entirely the comments of both Members who have spoken so far, the hon. Members for Halifax and for Coventry North West. In short, people who apply for refugee status in this country should not as a result be trapped in poverty for months on end, if not years, simply because they made that claim, but that is the situation that far too many asylum seekers find themselves in.
All the arguments in favour of lifting the ban have been set out very well. We all know that an absence from the job market for several months, if not years, can be hugely detrimental to people’s long-term prospects, regardless of all the other challenges that asylum seekers face in terms of integration. This change would provide a route out of poverty, saving money for the Government, given the savings that they would make on asylum support. It is a popular proposal among the public as well and would bring this country into line with many other countries in Europe and beyond.
This proposal should also be popular with MPs right across this House, and I think there are MPs in every single party who support it. While I do not expect the Government to make any major announcements today, I would be interested to hear the Minister say at least something about his thinking on this issue and whether he and his colleagues are giving serious consideration to doing something to stop people being left for months on end without any prospect of work or being able to get themselves out of poverty.
Kate Green (Stretford and Urmston) (Lab)
I, too, endorse the speeches we have heard in relation to this amendment. I only want to make two points to the Minister. First, the long delays in processing asylum applications and then appeals is, I think we can agree, a real concern for everybody in this House. The problem with having a ban on asylum seekers working is that there is very little incentive for the Home Office to make rapid progress in dealing with those cases. Indeed, given that 45% of appeals now succeed, it seems that we are taking a very long time to fail to give the chance to work to people who will ultimately obtain it.
Secondly, I want to ask the Minister a question that follows on from the one asked a few moments ago about his personal attitude towards lifting the ban on asylum seekers’ right to work. In the last Parliament, the previous Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), undertook to carry out a review of the policy and to give consideration to whether it needed to be revised. I do not think we ever heard the outcome of that review. It would be helpful to know whether the Home Office continues to conduct that review, when we might hear the outcome of it and whether evidence to support such a review is being sought from civil society and from parliamentary colleagues who might wish to submit ideas. It has been a long time since that commitment was made to the Home Affairs Committee, and it would be good to hear the status of that review.
Kevin Foster
I could make this a very quick response by saying that EEA citizens’ asylum claims are inadmissible, but given the constructive nature of Opposition Members’ speeches, I will respond more fully than the strict wording of the amendment allows me to. To my knowledge, there is literally no one with an outstanding asylum claim from an EEA country because they are inadmissible and therefore would not have to wait six months for a determination.
To be clear, our rules on the inadmissibility of asylum claims from EU citizens derive from the so-called Spanish protocol—part of the treaty of Amsterdam, dealing with this specific issue—which allows EU member states to treat an asylum claim by a citizen of another EU country as automatically inadmissible, unless exceptional circumstances apply. Those will, by their nature, be very rare. Claims from EEA citizens who are not part of the EU are considered by the UK, but on the basis that they are likely to be clearly unfounded. All EEA citizens, including those not in the EU, are considered to be from safe, democratic countries and are highly unlikely to suffer a well-founded fear of persecution or serious harm there. For those reasons, and because we do not foresee a change in these circumstances given the nature of the countries concerned, we intend to continue our policy on inadmissibility for EU citizens and rules regarding EEA citizens post the transition period. As a consequence, amendment 13 would be inconsistent with our broader policy on asylum claims from EU and EEA citizens.
Turning to Members’ wider remarks, our current policy allows asylum seekers to seek permission to work in the UK if their claim has been outstanding for 12 months through no fault of their own. Those permitted to work are restricted to jobs on the shortage occupation list—to use one example cited by the hon. Member for Coventry North West, a doctor—which is based on expert advice from the independent Migration Advisory Committee. We have recently commissioned the MAC to advise us on the shortage occupation list under the new points-based system. As Members will know, the required skill level is going from RQF6, graduate, to RQF3, A-level, which will potentially expand the number of posts that are available. Given the type of countries and education systems, it is likely that we will have more, for example, skilled chefs, who would be considered to be at level RQF3 and not RQF6.
Holly Lynch
I am grateful to the Minister for the constructive tone of his response. We heard in evidence from the Migration Advisory Committee earlier this week that there is quite a significant delay in determining which jobs are on the shortage occupation list. We may well have skills that could be put to good use but have not yet found themselves on that list. Is there not a more dynamic way that we can have another look at that?
Kevin Foster
I appreciate the sentiment. Traditionally the MAC has only operated on commission, when the Home Secretary or the Immigration Minister asks it to look at something. We are in the process of appointing a new chair of the Migration Advisory Committee, and we are looking at how it can work on a more predictable cycle. The call for evidence on the shortage occupation list is open, and with the skills threshold changing, we need to update the list for 1 January 2021. I would certainly encourage any organisations that the hon. Member is in contact with to make submissions, given the quite significant change, which will allow a wider range of practical skills, not just the purely academic skills that the list inevitably reflects by setting the bar at degree level. Senior careworker is a good example of a position that we expect to be between RQF3 and RQF6, rather than not qualifying, and it is worth remembering that that list will apply on a global basis.
Returning to the amendment, it is important to distinguish between those who need protection and those seeking to come here to work, who can apply for a work visa under the immigration rules. Our wider immigration policy could be undermined if there was an incentive for individuals to try to bypass the work visa rules by lodging wholly unfounded asylum claims in the United Kingdom.
Secondly, unrestricted access to employment opportunities may also act as an incentive for more people to choose to come here illegally, rather than claiming asylum in the first safe country they reach, particularly within the European Union. We cannot have a policy that increases that risk, even though it has to be said that clearly an EEA citizen would not be fleeing war or persecution.
Kate Green
I understand the fear that the Minister is expressing, but does he accept that all meta-analysis of countries that offer asylum seekers a right to work shows that they experience no increase in asylum-seeking, or no relatively higher rate of asylum-seeking, than countries that do not offer such a right?
Kevin Foster
As I touched on, there is some ability to work for those whose claims have been delayed for a significant period of time, but we are not satisfied, given what we have seen with past attempts to use parts of the migration system to avoid the restrictions or avoid having to come through the appropriate process to work here, that what the hon. Lady said would not be the case. We cannot readily dismiss the impact that removing such restrictions would have, nor its impact on our capacity to support genuine refugees who are in need of our protection, given that our system also has to deal with those claims that are unfounded and are more about intending to acquire a right to work in the United Kingdom.
I will take this opportunity to make it clear that I acknowledge the well expressed concerns of Opposition Members. The Government are committed to ensuring that asylum claims are considered without unnecessary delay, to ensure that individuals who need protection are granted asylum as soon as possible and can start to rebuild their lives. As the hon. Member for Halifax will know, once someone is granted asylum they are given immediate and unrestricted access to the labour market.
I heard the points that were made eloquently by the hon. Members for Coventry North West, and for Stretford and Urmston about the time that it can take to make some of these decisions. That is also a concern for me as a Minister and for the Government, because if people have a founded claim, we want it brought to a resolution as quickly as possible, so that they can move on and rebuild their lives. Similarly, if a claim is wholly unfounded or based on—if I might put it this way—inaccurate information being provided by the applicant, we want to come to a speedy decision to facilitate their removal from the United Kingdom, to ensure that our system is fair as well as firm.
The new service standard for asylum applications, which is intended to try to bring back some balance to the system, is currently being developed. UK Visas and Immigration is engaging with stakeholders as part of these plans and considering any insight that those stakeholders offer as it tries to shape a new service standard, which was touched on by the hon. Member for Coventry North West, as a start in attempting to tackle some of these issues.
Finally, the hon. Member for Stretford and Urmston asked about the review commissioned under a previous Home Secretary. We are in the process of reviewing the right-to-work policy, with officials looking at the body of evidence available. Therefore, it would be inappropriate for me to comment further until that review is complete, other than to say that that process is ongoing.
Having made those comments, the Government cannot accept the amendment and we hope that it will be withdrawn.
Holly Lynch
I am grateful for the Minister’s constructive response, but as I am sure he will appreciate, I am also a little disappointed by it.
I pay tribute to my hon. Friend the Member for Coventry North West and congratulate her on what I think was her maiden Bill speech, which was an excellent contribution. [Hon. Members: “Hear, Hear.”] Very well done.
We accept that the spirit of the amendment would not be able to be delivered as intended through this particular measure. However, we will continue to work with Members across the Benches, in coalition, to move towards the change that we would very much like to see. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 15, in clause 4, page 3, line 8, at end insert—
“(5A) The Secretary of State may make regulations under subsection (1) only if satisfied that the regulations would have no detrimental effect on the children of EEA and Swiss nationals resident in the United Kingdom.
(5B) Before making regulations under subsection (1) the Secretary of State must lay before Parliament, and publish, a statement explaining why the Secretary of State is satisfied as mentioned in subsection (5A).”—(Kate Green.)
Question put, That the amendment be made.
Stuart C. McDonald
I beg to move amendment 5, in clause 4, page 3, line 9, leave out subsection (6).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
The Chair
With this it will be convenient to discuss the following:
Amendment 6, in clause 4, page 3, line 14, leave out “other”.
This amendment is consequential on Amendment 5.
Amendment 9, in clause 4, page 3, line 14, leave out from “(1)” to “is”.
This amendment, along with Amendment 8 will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.
Amendment 8, in clause 4, page 3, line 18, leave out subsection (8).
This amendment, along with Amendment 9 will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.
Stuart C. McDonald
We are back to the nuts and bolts of delegated legislation. This time, rather than considering the scope of the powers, we are looking at the procedures that should be used when they are exercised. Amendment 5 is designed to keep MPs in a job: we should be ensuring that we maximise our role in scrutinising what the Government do with their power to make laws.
Clause 4(6) to (10) sets out the procedures for making these regulations. I apologise in advance, Mr Stringer, if I get some of the terminology wrong. Even after five years in this place, I still regularly confuse my made affirmative, affirmative and negative procedures. As I understand it, the most extreme made affirmative procedure is allowed for the first set of regulations that would be made under the clause. That means that the Government would be able to bring rules into force immediately, before MPs had the chance to scrutinise the proposals. MPs would then have 40 days to pass an affirmative resolution to keep the rules in place. No good parliamentarian should ever be comfortable allowing the Government to bring rules into force before we even have the chance to look at them.
The more usual affirmative procedure would apply to subsequent draft statutory instruments through which the Government were amending Acts of Parliament. That too is a really drastic power, but it would mean that nothing came into force until we positively approved it. Although I object to Henry VIII powers for rewriting Acts of Parliament, if they must exist, that should be the method for regulation making here.
Other regulations that do not directly impact on Acts of Parliament would use the much less satisfactory negative procedure. Although a draft of those regulations would still be tabled before they came into force, they would almost inevitably do so unless, exceptionally, Parliament prayed against that negative resolution. All these amendments do is ensure that MPs have their say, and have a proper role in scrutinising the Government before regulations come into force, which is important given the very important subject, and the effect that these provisions could have on immigration law. I hope the Committee will be sympathetic to what we argue for.
Holly Lynch
As the SNP spokesperson says, this group of amendments, like most of those in the previous group, continues to seek to limit the transfer of powers to the Executive and away from Parliament. We have gone over the arguments against such sweeping Henry VIII powers in principle at length, so I will not repeat those. This group largely seeks to ensure that regulations made under clause 4 are subject to the affirmative procedure, and to leave out subsection (6).
Martin McTague from the Federation of Small Businesses was I think the only witness who said in his evidence on Tuesday that he actually did see some merit in the powers in clause 4, yet when asked further, he was keen to stress that
“the Home Secretary will be answerable to Parliament about the decisions that she or he has made. That would be a way in which Parliament could ensure there was proper scrutiny.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Public Bill Committee, 9 June 2020; c. 14, Q29.]
However, as the Bill stands, proper scrutiny will be missing.
As has been said, proper scrutiny is exactly what we are in the business of in this place. It is why the Government say they have thrown caution to the wind in returning to a physical Parliament when we could have been undertaking our duties from home, as is still the public health advice. If the Leader of the House is such a big fan of parliamentary scrutiny, why are we going to such lengths to avoid it with these powers? Putting changes through the affirmative procedure has to be the way forward if we are to shape legislation for the better and deliver on parliamentary democracy. That is why we support this group of amendments.
Kevin Foster
I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for speaking to his further amendments on clause 4. Amendments 5, 6, 8 and 9 deal with the parliamentary procedure for regulations made under the clause 4 powers, as has been outlined. The made affirmatory procedure is needed in the event that there is a short window between the Bill’s Royal Assent and the end of the transition period on 31 December 2020. This is why the provision for the affirmative procedure that the hon. Gentleman and the hon. Member for Halifax have suggested would not work. Free movement must end on 31 December at the end of the transition period, and it is important to ensure that regulations made under this power align the treatment of European economic area and non-EEA citizens who arrive in the UK from 1 January 2021.
To clarify, under the made affirmative procedure, Parliament will be asked to approve the regulations within 40 days of their being made to enable them to continue in force, so Parliament does have scrutiny of the use of this power. If either House does not approve the regulations, they will cease to have effect, but subsection (10) preserves the effect of anything done under these regulations before that point to ensure legal certainty—in essence, for someone who is granted immigration leave after applying under a rule that would come into effect on 1 January.
Using this power does not mean avoiding parliamentary scrutiny. The secondary legislation to be made under this power is still subject to full parliamentary oversight under the established procedures, although I expect the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East may actually be disappointed at just how limited and benign they end up being. It is important to debate the appropriate use of delegated powers, but the Government are committed to ending free movement now that we have left the EU, and this clause is an essential part of delivering that and ensuring that it can be done, with the new system in place, on 1 January 2021. We therefore cannot accept these amendments.
Stuart C. McDonald
I am grateful to the Minister for his explanation. I am not convinced that there will be a time problem between the Bill coming into force and the end of the transition period, so I insist on pressing amendment 5 to a vote.
Question put, That the amendment be made.
Stuart C. McDonald
I beg to move amendment 1, in clause 4, page 3, line 28, at end insert—
“(11) Regulations made under subsection (1) must make provision for admission of EEA nationals as spouses, partners and children of UK citizens and settled persons.
(12) Regulations made under subsection (1) may require that the EEA nationals entering as spouses, partners and children of UK citizens and settled persons can be ‘maintained and accommodated without recourse to public funds’ but in deciding whether that test is met, account must be taken of the prospective earnings of the EEA nationals seeking entry, as well as an third party support that may be available.
(13) Regulations made under subsection (1) must not include any test of financial circumstances beyond that set out in subsection (12)”.
This amendment would ensure that UK nationals and settled persons can be joined in future by EU spouses and partners and children without application of the financial thresholds and criteria that apply to non-EEA spouses, partners and children.
The Chair
With this it will be convenient to discuss new clause 34—Visa requirements for certain family visas: coronavirus—
“Section E-LTRP.3.1 of Appendix FM of the Immigration Rules will not apply to persons who have lost free movement rights under section 1 and schedule 1 until the Coronavirus Act 2020 expires as set out under section 89(1).”
This new clause is designed to ensure EEA and Swiss nationals are not prevented from qualifying to remain in the UK as partners, merely because they cannot meet financial requirements in the Immigration Rules during the coronavirus pandemic
Stuart C. McDonald
I have put amendment 1 at the top of my list because the subject is very close to my heart. It is on a huge issue with our so-called family migration rules. I call them anti-family migration rules, because they have been responsible for splitting apart tens of thousands of families; they have some of the most draconian requirements in the entire world. I cannot believe that most Conservative MPs are not at least uncomfortable with the rules, if not downright embarrassed and ashamed. Theirs is the party of the family, for goodness’ sake.
By imposing the financial threshold on our constituents, we say to many of them—half the population, in fact—“You do not earn enough money to live in your home country with your family if you were to marry somebody from outside the EU,” and in future it will be anybody outside the common travel area. We are saying to them: “You have to choose between your country and your family.” That is absolutely barbaric. The impact of the rules will grow every year if we pass this Bill as it is, because the rules that apply to those in relationships with non-EEA nationals will for the first time extend to those in relationships with EEA nationals.
I want to start with a neat summary of the issue in a statement made by Bishop William Nolan and Bishop Paul McAleenan, the lead bishops for migrants and refugees from the Catholic Bishops’ Conferences of Scotland and of England and Wales respectively:
“The minimum income threshold for family visas unjustly separates tens of thousands of couples, parents and children. Without reforms, the end of free movement will result in even more families being kept apart by this policy. Some key workers who have played a vital role during the Covid-19 pandemic are among those who cannot be reunited with their families because they do not meet the minimum income threshold. This separation not only has serious implications on family life, but also has a direct impact on the development and wellbeing of children who are isolated from their parents in another country.”
That is the issue in a nutshell. There are other egregious features of the rules that I will come to in a minute.
The Children’s Commissioner for England prepared a report called “Family Friendly? The impact on children of the Family Migration Rules”, which is a review of the financial thresholds that the amendment and the new clause focus on. It was published in 2015 and it concluded:
“the financial requirements introduced in 2012 have been responsible for the separation of thousands of British children from a parent.”
Such requirements
“cannot be met by almost half of adult British citizens, including many in full-time work, particularly the young, the retired, women, ethnic minorities and those living outside London and the South East.”
What we usually get back by way of defence from the Government is, “We asked the Migration Advisory Committee and it came up with the threshold of £18,600.” It is true that that committee was tasked with a bit of work, but it was not asked to come up with a general view of how the family migration rules should be formulated. It was asked to come up with a figure at which it could be said that people could support a family without becoming a burden on the state; that is how it was put. That is a perverse way to pose the question, given that when people come here on family visas, they are not allowed to become a so-called burden on the state because they are prohibited from accessing public funds.
As the MAC made clear, in doing its work, it was not in any way making recommendations that gave consideration to what is required of the UK under its international and domestic human rights obligations to respect private family life or consider the best interests of children.
Holly Lynch
We are enormously sympathetic to all the points that the Scottish National party spokesperson has just made on amendment 1, but I want to focus my comments on new clause 34, which we support. It would ensure that EEA and Swiss spouses of UK nationals were not ineligible for visas because of job cuts and furloughs resulting from the coronavirus. For many families, the coronavirus crisis has already led to loss of livelihood and prolonged separation. Now, families of British citizens with EU spouses fear that they will be permanently separated if their partner cannot secure a visa because their job security has been affected by coronavirus and they no longer meet the income threshold to settle in the UK.
We feel strongly that we should at this time give families as much security as possible. In the crisis, unemployment has crept up significantly, and there are limited work prospects. A recent publication for the Institute for Public Policy Research, using data from the labour force survey, found that migrants to the UK are far more likely to be working in industries affected by the crisis, including accommodation and food services. Migrants are also more likely to be self-employed and in temporary work, which puts them at particular risk of losing income, or having diminished income, as a result of the crisis.
We can foresee a ruthlessly competitive job market in the aftermath of the crisis. The new clause seeks only an appropriate grace period for the duration of the crisis on the minimum income requirement, for those who were working hard to ensure that they met it. It seems entirely appropriate to use the expiration of the Coronavirus Act 2020, as set out in the new clause, to set that.
A constituent of mine who worked at McDonald’s needed to meet the threshold so that his wife could stay in the country, and will fall short, having been furloughed. Another woman who contacted me has a one-year-old and is pregnant with her second child. Having been furloughed, she has had to get a second job to top up her income, to meet the minimum income requirement for her partner to join her. A raft of visa issues have been exacerbated by coronavirus, and I do not think that I am being unreasonable in saying that the Government have not been particularly swift in offering clear, effective advice about the status of citizens throughout lockdown. That is causing huge additional and unnecessary anxiety for affected families at what is already a worrying time.
We have heard that there has been ambiguity about information on the Government website this week. The Home Office issued information for those on furlough, announcing on 9 June that if someone had earned enough to meet the minimum income requirement in the six months before March 2020 but their salary had dropped on being furloughed, they could still apply as if they were earning 100% of their income. That is welcome, but are the Government minded to extend consideration to those who lost their jobs entirely, and to grant them a grace period of some kind?
I should be grateful if the Minister responded to those points and considered the new clause as a way not to pile further worry and uncertainty on to families who are looking to reunite.
Kevin Foster
I appreciate the intention behind amendment 1, which is to create a means whereby, in future, EEA citizens would be able to join a spouse, partner or parent in the UK who was either a British citizen or settled here, without being subject to the current and established financial requirements for family migration. I also appreciate the intention behind new clause 34, which is to extend the concessions that the Government have already put in place for people subject to the minimum income requirement who are affected by covid-19 and the measures necessary to tackle it.
So that those subject to the requirement will not be unduly affected by circumstances beyond their control, a temporary loss of income during the pandemic will be disregarded. I hope that members of the Committee will appreciate that it would be difficult, and probably not appropriate, for me to go through an exhaustive list of circumstances that we might consider. However, new guidance is certainly online; I have just checked. I have summarised some of the details at least in one answer to a parliamentary question this week. It is my clear understanding that if someone is furloughed and, under their contract of employment, their potential earnings at 100% would be over £18,600—there are a couple of caveats to that, but we will stick with £18,600 for now—but the 20% furlough effect takes them below that figure, that drop in income will be disregarded. It is their substantive income that we will take into account, if they are still in their job and able to return to it when furlough comes to an end. For convenience, I will write to the Committee setting out the guidance we have given so that Members have it to hand, given the concern and interest that has been shown.
Let me be clear from the outset that the effect of amendment 1 and new clause 34 would be to create a separate and preferential family migration system for EEA and Swiss nationals and their families when compared with the situation of British or settled people’s family members who are non-EEA citizens. That is the intention of the amendments. That would lead to a perception that non-EEA family members were being discriminated against for no reason other than their nationality and would likely be regarded as unlawful for that reason, given that we have now left the European Union and the basis for having a two-tier immigration system has fundamentally been removed. I accept that Members would argue that they would like to change the rules overall, not just for EEA citizens, but the focus of the Bill is EEA citizens; it is not a general migration Bill.
Holly Lynch
Does the Minister not accept, however, that the difference for British citizens in EU countries is that when they took decisions to form relationships and families elsewhere in Europe, they did not envisage that the rules would change and that free movement rights would be taken away from them? The immigration rules have changed for them in a way that they have not for other British citizens in other countries around the world.
Kevin Foster
When anyone takes the decision to go and live abroad, there is no guarantee that migration rules will not change while they are living abroad; rules have changed over the years for British citizens living outside the EEA. However, we have put in place a longer transitional period, which I think will be to 2022—it will be nearly six years after the referendum by the time that is implemented—for those who have moved abroad on freedom of movement. Even then, they will still have the ability to move back under the family migration rules, the same as UK citizens living anywhere else.
It is also worth noting that someone who might apply for a spousal visa could also apply under tier 2. To touch on the point about potential earnings in this country, someone who qualified for a skilled work visa would be able to apply through that route if they were not able to apply through the spousal visa route. They would not, for example, be barred from settling with a UK citizen here because they were on a tier 2 visa rather than a spousal visa. Actually, under some of the provisions, particularly if they were a healthcare worker, they would potentially be quicker to settlement overall if they took that opportunity. I know that is a point that has been raised about those who might have an earning potential.
Let me go into some of the details of why we do not think amendment 1 is the right approach. The amendment seeks to replace the minimum income requirement for British citizens and settled persons to sponsor EEA family members with a test that has three separate components: being able to maintain and accommodate the family without recourse to public funds; taking account of the prospective earnings of the EEA nationals seeking entry; and taking into account any third-party support available. Let me address those in turn.
The first component—the simple ability to maintain and accommodate without recourse to public funds—would take us back to the policy that was in place before the minimum income requirement was introduced in 2012. It was partly because the test for whether a family could maintain and accommodate themselves without recourse to public funds was difficult to apply consistently that the minimum income requirement was introduced. The minimum income requirement provides certainty to all by ensuring that family migrants are supported at a reasonable and consistent level that is easy to understand. As Opposition Members have alluded to, the minimum income requirement has been based on in-depth analysis and advice from the independent Migration Advisory Committee.
I turn to some of the points about differentials across the United Kingdom. The Migration Advisory Committee found no clear case for differentiation in the level of the minimum income requirement between the UK’s countries or regions. A single national threshold provides clarity and simplicity. Data also show that the gross median earnings in 2018 exceeded the minimum income requirement in every country and region of the United Kingdom.
Stuart C. McDonald
I am very grateful to the Minister for his response. I will not press either amendment 1 or new clause 34 to a vote, but for slightly different reasons. On new clause 34, I am grateful for the assurances with regard to the impact of the coronavirus shutdown on incomes, and I look forward to the Minister’s letter, which I will obviously look at closely, and the scheme that is being put in place. We will no doubt return to that issue in the weeks and months ahead.
I will not press amendment 1 to a vote because I may wish to revisit it on Report. I do not think that people fully grasp the impact that this issue is having on families out there. The tier-2 alternative is not realistic for lots of families. My recollection of the test of maintaining and accommodating one’s family without recourse to public funds was that it worked perfectly well but, as I said in my original submissions, there are other ways in which we could do it: we could have a lower threshold, such as the minimum wage or the living wage. We could do things differently and still provide certainty.
On the subject of certainty, it is no reassurance to someone if their only certainty is that they cannot live in this country with their loved ones. The Minister said that the threshold had been set at a suitable level, but it excludes almost half of the country from being able to be joined by their husband, wife or partner from overseas—in Northern Ireland, I think, it even excludes more than half, because of the different wage levels.
The so-called “exceptional circumstances” route just does not work; that was the bare minimum that the Home Office had to put in place because of a Supreme Court challenge about how awful these rules were. In terms of public confidence, I think that the more members of the public find out about these rules, the more they will be horrified at how the UK Government treat UK citizens.
These are miserable rules. I hope people will go away and think again, even if they do not want to go back wholesale to the position as it was before 2012. We cannot let this continue—more than that, we cannot let it escalate. Tens of thousands of families are already impacted, and in the next decade there will be tens of thousands more. They will all come to our surgeries. The Government have been warned. But I will keep that point for Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald
I beg to move amendment 14, in clause 4, page 3, line 28, at end insert—
“(11) Regulations made under subsection (1) must make provision enabling UK citizens falling within the personal scope of the Withdrawal Agreement, the EEA EFTA separation agreement or the Swiss citizens’ rights agreement to return to the UK accompanied by, or to be joined in the UK by, close family members with whom they lived while residing in the EEA or Switzerland.
(12) Regulations under subsection (1) may not impose any conditions on the entry or residence of close family members which could not have been imposed under EU law relating to free movement, as at the date of this Act coming into force.
(13) References in subsection (11) to the Withdrawal Agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement have the same meaning as in the European Union (Withdrawal Agreement) Act 2020.”
This amendment would mean UK citizens who had been living in the EEA or Switzerland but wish to return to the UK, could continue to be accompanied or joined in the UK by close family members who would otherwise lose their rights (under the Surinder Singh route) because of this Act.
I am being kept busy this afternoon. I am pleased to move amendment 14. Once again, it is all about family. We are talking about what became known as the Surinder Singh route, because of a judgment of the European Court of Justice. I talked in my previous contribution about the unfairness of separation that immigration rules can cause; in the case of the Surinder Singh families, that is coupled with a real sense of unfairness and the loss of a legitimate expectation.
We are talking about UK citizens who have gone to live somewhere in the EEA at a time when the rules were quite clear that the UK was part of the European Union, so there would never be any conceivable difficulty about being able to return to this country with family that they may have settled down with in another EU country.
To my mind, we should say that they had a legitimate expectation when they left that they would be able to return to this country at the appropriate moment with their EU family members. The problem now arises that if they return after the transition period that the Government have put in place—it is better than nothing; that is absolutely true—they will face the £18,600 threshold, which I previously alluded to.
There are folk over there with huge dilemmas to address. The briefing we have had from British in Europe sets out a very typical example. Sarah is a 48-year-old British national living in Germany with her 52-year-old German husband and children. She is the only child of an elderly mother in the UK. Career and schooling reasons mean that she cannot realistically return to the UK by March 2022. What happens if Sarah’s mother becomes so frail or ill that she needs the care of her daughter in five years’ time? Sarah will have a huge decision to make: either to uproot her family at a hugely disruptive and inconvenient time, to come back to look after her mother, or to leave her family behind and come back to look after her mother. Alternatively, she will just have to hope that her mother is able to cope.
Sarah was not negligent in going abroad without taking this future prospect into account when she made the decision to travel and live in Germany, because it just did not arise. We were part of the EU and free movement was always going to be there.
I am grateful for and welcome the fact that the Government have reviewed the immediate cut-off, but 2022 does not give enough time. Why do we not have an open-ended cut-off for the people from this country who have made their lives in other parts of the European Union or the EEA, and let them return here under the regime that was in place when they left? That is the purpose of amendment 14, and I hope it will have a sympathetic hearing.
Holly Lynch
Once again, we are very sympathetic to the amendment. As we have already heard, it is not dissimilar to amendment 1, and it would offer reassurance to the 1.2 million British nationals who live in EU countries. Failure to implement measures such as those proposed in the amendment would show the Government’s indifference to British citizens who decided to make their homes and lives in Europe and, as in the example we have just heard, could force people to choose between loved ones there and loved ones here.
The example provided by British in Europe paints a picture of something that is affecting thousands of people and has the potential to affect thousands more in future, as family members age and their circumstances change. The amendment characterises the significance of forming laws and policies; what is discussed and decided on in this building has far-reaching implications and consequences affecting vast swathes of people in their day-to-day lives.
Until March 2022, any citizen going to live in an EU 27 country did so with the security of knowing that if they were to form a relationship and/or have a family, they would have the right to return to the UK with their partner and family, with no or very few conditions attached. That was the point I made to the Minister in challenging and seeking further clarification on some of his points about differences being potentially discriminatory against returning UK citizens and spouses from other parts of the world, not just EEA countries.
As I am sure we can all appreciate, families and relationships can be complex. The provisions afforded to British citizens through freedom of movement would allow any citizen to return to the UK with their partner and family if a situation arose where they needed to do so, potentially at quite short notice. If the UK citizen returned to be either employed or self-employed, there would be no conditions on their return; if they returned to be a student or to be non-economically active, they would have to have sufficient resources not to become a burden on the social assistance system of the UK, and have comprehensive health insurance.
In comparison, under the proposed new immigration rules, spouses and partners who wish to enter the UK with their British partner will have to meet the minimum income requirement of £18,600, and the figure is increased if the family have children. That is a wholly restrictive requirement that will severely deter families from returning and coming to the UK. In some cases, it may stop British citizens returning to the UK altogether.
As highlighted in evidence by Jeremy Morgan, the right of citizens to return with their families to their country of origin was deemed outside the scope of the UK-EU withdrawal negotiations, resulting in a serious inequality between UK citizens in the EU and EU citizens in the UK. Bizarrely, the UK Government are discriminating against their own citizens in this instance, since nationals continue to enjoy their right to return to their countries of origin with their non-EU family members.
Furthermore, EU citizens resident in the UK and covered by the withdrawal agreement also have an unconditional lifelong right to bring in family members, including non-EU members, to the UK, provided that the relationship existed before the end of the transition period. The amendment tabled would address that discrepancy.
The coronavirus pandemic has only heightened the need for the Government to carry out their basic duty to support UK citizens living abroad. What if the pandemic had occurred after 29 March 2022? As countries began lockdown, British citizens in Europe would have been faced with the unenviable choice of remaining or hastily returning to the UK. The minimum income requirement would have meant that many British citizens and their families would have been simply unable to return, despite both global and personal crises.
Kevin Foster
I again thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and his colleagues for tabling amendment 14 and allowing us to have this discussion. As the hon. Gentleman has said, the amendment would require the Government to include in regulations, made in consequence of this Bill ending EU free movement law, lifetime rights for UK nationals to bring their close family members to the UK on EU free movement terms, where the UK national was resident in the EEA or Switzerland in accordance with EU law by the end of the transition period at the end of this year. Those family members would thereby continue indefinitely to bypass the immigration rules that otherwise apply to family members of UK nationals.
I will set out the Government’s policy for this cohort of family members before I explain our reasons for rejecting the amendment. In certain circumstances, family members of UK nationals who have resided together in the EEA or Switzerland are able to come to the UK under EU free movement law. That applies where a UK national has exercised free movement rights in the host state—as a worker or self-employed person, for example—for more than three months. That is sometimes referred to as the “Surinder Singh route”, after the relevant judgment of the Court of Justice of the European Union.
Surinder Singh family members are not protected by the withdrawal agreement, as was said. None the less, as a matter of domestic policy, the Government decided that UK nationals resident in the European Economic Area or Switzerland under EU free movement law until the end of the transition period, which is the end of this year, will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, durable partner, child or dependent partner—to the UK on EU law terms. The family relationship must have existed before the UK left the EU on 31 January 2020 unless the child was born or adopted after that date, and it must continue to exist when the family member seeks to come to the UK, for obvious reasons.
Stuart C. McDonald
I am grateful to the Minister for his response. I will have to go and look at the drafting of my amendment. While it may not be technically correct, I absolutely stand by the principle of what it is trying to achieve.
The Minister and the Department have listened to UK nationals living in Europe and the EEA, which is why they put in place the transition period and the cut-off point of March 2022. However, I listen to those very same people, who say to me that that will leave an awful lot of them with a huge dilemma. I just do not understand why the UK Government insist that it has to happen like that. There is no need for a balance to be struck or for any cut-off point.
This is not, as the Minister expressed, a question of people bypassing domestic immigration rules. The aim of the amendment is to help people who moved abroad and formed family relationships in good faith at a time when there was no prospect of their right to return to this country with a family being impeded; they could have done so at that time, on the basis of free movement rules. With your leave, Mr Stringer, I will withdraw the amendment. In the meantime, I will go away and work on it, but I stand by the principle and intention behind it.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald
I beg to move amendment 16, in clause 4, page 3, line 28, at end insert—
“(11) Subject to subsection (13), regulations made under subsection (1) must make provision for ensuring that all qualifying persons have within the United Kingdom the rights set out in Title II of Part 2 of the Withdrawal Agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement and implementing the following provisions—
(a) Article 18(4) of the Withdrawal Agreement (Issuance of residence documents);
(b) Article 17(4) of the EEA EFTA separation agreement (Issuance of residence documents); and
(c) Article 16(4) of the Swiss citizens’ rights agreement (Issuance of residence documents).
(12) In this section, “qualifying persons” means—
(a) those persons falling within the scope of the agreements referred to; and
(b) those eligible under the residence scheme immigration rules, as defined by section 17(1) of the European Union (Withdrawal Agreement) Act 2020.
(13) Notwithstanding subsection (11), regulations must confer a right of permanent, rather than temporary, residence on all qualifying persons residing in the UK prior to 5 March 2020.”.
This amendment would mean that EEA and Swiss citizens residing in the UK would automatically have rights under Article 18(4) of the Withdrawal Agreement (and equivalent provisions in the EEA EFTA and Swiss citizens rights agreements) rather than having to apply for them, and ensure that for the overwhelming majority, that status is permanent.
I feel a little like somebody who has been banging his head against a brick wall, and I am sure other hon. Members feel the same. This is a return to the debate about whether the European Union settlement scheme should be a constitutive or a declaratory scheme. That sounds quite technical, but it is not really. The Government say, “We’ll give you a right to remain, and you can retain your rights, if you apply.” That will inevitably mean a—hopefully small—percentage missing out and losing their rights in this country. Scottish National party Members say we should put it into the Bill that EU and EEA nationals automatically have these rights. Doing so would fulfil a promise made by the Prime Minister, the Home Secretary and, indeed, the Chancellor of the Duchy of Lancaster during the referendum campaign, when they said quite expressly that everybody would retain their right to be in this country, and that there would be no need for any application at all.
Before we go too far into the debate, I want to say that Ministers quite often stand up and tell us about the success, and fairly so, of the settlement scheme so far. Opposition MPs obviously asked questions, such as about why it was not working on the Apple iPhone or whatever else, how the numbers were progressing or why so many people were given pre-settled status. However, I am happy to say, as I have many times before, that it has exceeded my expectations. The Home Office has reached more EU and EEA nationals than I anticipated. It does not have a wonderful record with IT over the last 10, 15 or 20 years, but on this occasion it has done a decent job.
However, the fact remains that—with the best will in the world, even if the Home Office gets to 95% of its target crowd—that still leaves hundreds of thousands of people who will fail to apply in time. I have asked repeatedly what estimate the Home Office has made of how close to 100% it will get, and what the implications of that are, in terms of dealing with the 100,000 folk who will overnight be without rights this time next year. We really need to get to the nub of this.
Other amendments offer alternatives, exploring different cut-off points and different solutions as to how to treat applicants who come to the Home Office after the cut-off date, but we still insist that the much simpler solution would be to say, in this or another Bill, that if someone meets the criteria, they retain their rights, even if they do not apply.
The Home Office seems to suggest that folk will not apply. In fact, during an evidence session on Tuesday, the Minister asked a question on how looked-after children would prove that they had rights. It is simple: they would apply to the EU settlement scheme. We are not saying, “Just ditch all the work that has gone on for the past 18 months to two years.” We are saying, “Keep that work, but make it so that it is not the digital whatever you get that gives you the rights, but that the rights come from the legislation, and you get that document”—if we have our way—“or a digital code to prove your rights.”
Probably the best way to explain this would be with reference to British citizenship, which is the most obvious example I can call to mind of another declaratory system. No one in this room gets their rights as a British citizen from their passport or from any other document; we have our rights to British citizenship declared in law, in the British Nationality Act 1981. It does not cause us difficulties if for the first few years of our lives we do not have proof of that; indeed, if we do not go abroad on holiday, we can actually go through until we are perhaps 14, 15 or even 18 years old without having to access that proof. That is not a problem.
That works perfectly well for British citizenship—it becomes convenient for lots of people, at a certain time, to get a passport or wherever else to prove that they can exercise their rights—and it would be exactly the same with the EU settlement scheme. All these people will want to work or to access social security or housing, if they are subject to the right-to-rent scheme, so they will still have every incentive to apply to the EU settlement scheme. The amendment would just mean that if, for whatever reason, they did not apply, their rights were protected.
Douglas Ross (Moray) (Con)
Would the hon. Gentleman consider whether perhaps one reason some people, particularly in Scotland, would not apply for the scheme is because, despite his having praised it today and said it has exceeded his expectations, SNP politicians in Scotland have encouraged people not to apply? I raised this issue when he and I were members of the Home Affairs Committee. The messaging that comes out should be far clearer. Does he accept that, whether or not he agrees with the scheme, the advice not to apply that some SNP politicians are giving is unhelpful?
Stuart C. McDonald
I have had that intervention before, and I think I answered it. There is one individual who would be expected to apply to the scheme but at some point in the past—I am not sure what his current position is—he said that as a point of principle he does not want to apply. I have said previously that I do not agree with him, but the hon. Gentleman cannot possibly accuse the Scottish Government or the SNP of not being clear about the messaging—they have invested considerable sums of their own money in outreach and in attempting to get as many folk as possible to sign up to the scheme. For that reason, I do not accept the premise. I disagree with that one colleague, but I absolutely reject the premise that we have been anything other than clear in encouraging people to sign up.
The reasons folk will not sign up are not related to the position of an individual politician. Folk will not sign up because they are vulnerable, as we have spoken about—care leavers; children; elderly people who perhaps were settled and had permanent residence under the old EU scheme; and people who quite simply just do not understand that they have to do it.
There are really complicated questions involved. For example, lots of folk will think, “Well, I was born in the United Kingdom, so I am British,” but in actual fact whether or not they are British depends on a million different things. It depends on the marital status of their parents, depending on when they were born. It depends on their date of birth. It might even depend on when a particular country joined the EU, as that can have an impact on the conferring of nationality. There are millions of different issues.
It is beyond doubt that on 1 July next year we are going to wake up in a United Kingdom that has 100,000 people who do not have the right to be in this country. We have to be constructive and come up with a solution, but we do not yet have enough from the Government on what they want to do. We get told, “We’ll be reasonable,” but that really does not cut. We need to do better than that, which is why we have tabled other amendments to push the Government to be much more explicit about how they are going to treat folk who apply after the deadline, for whatever reason.
The simple point, which is consistent with all the work that has gone before and does not undermine it in any way, is to turn around now and say, “Right, we are doing well, but we are just going to say that everybody has these rights. Continue to apply so that you can go about living your lives without being refused renting or a job or whatever else, but you have these rights.” It is a simple matter and would avoid a tremendous headache that would make Windrush look almost insignificant. That was cataclysmic; this situation risks being considerably worse.
Holly Lynch
Yet again, I rise to echo a great deal of what has already been said by the SNP spokesperson. The Opposition have spoken consistently in favour of a declaratory approach, and the Home Affairs Committee has also tabled an amendment outlining its preference for that approach, so, while we have sought to deal with the scheme in front of us by way of our amendments and new clauses, should he push amendment 16 to a vote, he would certainly have our support.
In our 2019 manifesto, we committed ourselves to ending the uncertainty created by the EU settlement scheme by granting EU nationals the automatic right to continue living and working in the UK. This new declaratory system would allow EU nationals the chance to register for proof of status if they wished, but they would no longer have to apply to continue living and working in this country. This would help to secure reciprocal treatment for UK citizens living in the EU, prevent a repeat of the shameful Windrush scandal and avoid unnecessarily criminalising hundreds of thousands of EU nationals.
Kevin Foster
This has been a useful debate. As has been pointed out, amendment 16 would require the Government to establish a declaratory system for those eligible for residence rights under the withdrawal agreement or the immigration rules for the EU settlement scheme. That was touched on by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, who speaks for the SNP. It is a familiar argument we have been having over the last couple of years, and I suspect we will continue having it over the next year or two.
As the hon. Member alluded, EEA and Swiss citizens resident in the UK by the end of transition period and their family members can secure their rights here through the EU settlement scheme and through applications that are free of charge to make. So far, more than 3.5 million applications have been received and more than 3.2 million concluded, despite the efforts of one or two people to encourage people not to take part, as my hon. Friend the Member for Moray highlighted. This is with still more than a year to go before the deadline for applications on 30 June 2021 for those resident here by the end of the transition period on 31 December.
It is worth pointing out that the UK’s immigration system has long been predicated on individuals applying to the Home Office to be granted leave to enter or remain, under what we call a constitutive system. The Government have repeatedly made it clear that the constitutive system, introduced through the EU settlement scheme, is the best approach to implementing the citizens’ rights elements of the withdrawal agreements. It provides EEA citizens and their family members with clarity about what they need to apply for and by when, and with the secure evidence of their status that they need.
A requirement to apply for individual status by a deadline provides a clear incentive for EEA citizens living here to secure their status in UK law and obtain evidence of this, whereas a declaratory system, under which individuals acquire an immigration status under an Act of Parliament, would significantly reduce the incentive to obtain and record evidence of status. Indeed, the amendment does not include any requirement to do that, so in decades to come it could result in some of the issues we saw in the Windrush scandal: people with a status that has been granted, but for which there is no clear or recorded evidence.
Stuart C. McDonald
I am happy to take on board what the Minister says and redraft the amendment to include, for example, a £50 fine if somebody does not have a document proving their settled status. That would be much less serious than leaving them without any right to be in this country at all. Would he consider a declaratory system on that basis?
Kevin Foster
Well, I do not think I would. Like I said, we would be reasonable in accepting late applications—for example, if somebody did not have EU settled status because they were a child in care or mentally incapable at the time when they should have applied. I suspect that when we publish the guidance those two situations will be among the list of reasonable reasons for late applications. It would be rather odd, however, to then issue them with a £50 fine. We think it right that at some point a line be drawn, although we would be reasonable in respect of the circumstances of a late application. Certainly, in the early stages after the deadline, it is likely that the bar to cross will be fairly low, in terms of what is a reasonable reason for not having made the deadline.
As was touched on, we are up to more than 3.5 million applications already. It has been a very successful scheme. It is slightly ironic that the organisation representing EU citizens in the UK calls itself the3million, because the Home Office has already found 3.5 million and there is still a good stream of applications coming in every day, as there has been throughout the recent period. The Government are confident that we have already found many more than 3 million, and all of them are our friends and neighbours. We want them to stay, and we welcome the fact that they have taken the opportunity to apply to the European settlement scheme to guarantee their rights.
The Government are adamant that we must avoid a situation where, years down the line, EEA citizens who have built their lives here find themselves struggling to prove their rights and entitlements in the UK. That is why we have set up this system. I fundamentally believe that changing a system that is working well would have the opposite effect to that which the amendment is intended to achieve. It would reduce the certainty of a grant of status under the EU settlement scheme, which has already been given to more than 3 million EEA citizens and their family members.
The amendment provides that a right of permanent residence would be automatically acquired by EEA citizens resident here before 5 March 2020—when the Bill was introduced—regardless of how long they had been continuously resident in the UK. I do not wish to speculate about why the amendment is designed to exclude people who arrived on 6 March, or about why the Bill being introduced is a more significant moment than the end of the transition period or the day that Britain left the European Union. The general requirement under the EU settlement scheme to have been continuously resident here for five years before becoming eligible for a right of permanent residence—settled status—reflects the rights under the free movement directive, which are protected by the withdrawal agreement. To reassure hon. Members that we are talking to people who work with the EUSS, there will be efforts put in place, using the contact details provided to the EUSS, to prompt people should they be approaching the five-year period.
It is right that someone should demonstrate sufficiently long residence in the UK, in line with our current EU law rights, before being eligible for all the benefits and entitlements that settled status brings, including access to those provided by public funds. The amendment would mean that any length of residence in the UK prior to 5 March 2020, however short, would be sufficient. I do not believe that is the right approach. It is a rather strange date to choose, even though it is the introduction. Why would that be logical? It is worth explaining why someone was not covered on 6 March but was covered on 5 March. I therefore suggest to the Committee that we should not accept the amendment; we should stick with a system that is working and doing a great a job at getting those who are our friends and neighbours the status they need for the long term and the surety that brings. I therefore suggest that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw his amendment.
Stuart C. McDonald
Again, I am grateful to the Minister for his reply. The amendment would not negate the good work that has happened in managing to process applications from EU nationals and provide them with digital proof of their status; it would build on it.
The Minister always insists that such a system would give people less of an incentive to apply, but that is just not the case. We would not say to anyone who was a victim of the Windrush fiasco that they did not have an incentive to apply for documentary proof. In fact, all the Windrush citizens had the right to be in this county, but that was not enough. They had to get documents, and the result of not being able to access documents was that they went through absolute hell. That is a lesson that we must learn. If we make the system declaratory, people will still apply because they need digital proof of their status to access work, social security, education and whatever else.
I do not accept the Minister’s explanation of why we retain the constitutive system. If he wants to talk about incentives, there is a big problem for anyone who misses the deadline of 30 June 2021. When they find out that they have missed it, they suddenly think, “I thought I was British, but I am not. I thought I had rights here because I had status under the old EU system, but it turns out I don’t.” Those hundreds of thousands of people will be absolutely petrified of applying to the Home Office because they have no assurance that they will be granted status here. There are vague words about being reasonable, but that did not really cut it for the Windrush generation, and this is a much bigger problem. I will press the amendment to a vote.
Question put, That the amendment be made.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Third sitting)
Thursday 11th June 2020
(4 years, 6 months ago)
Public Bill CommitteesRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 View all Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 June 2020 - (11 Jun 2020)
The Committee divided: - Ayes: 8 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 5 - Question accordingly agreed to.
The Chair
Before we begin, I have a few preliminary points. Please switch your electronic devices to silent. Tea and coffee are not allowed during sittings, although I might turn a Nelsonian blind eye if I see any. I remind Members about the importance of social distancing—as if you did not know already. The main body of the Committee Room has capacity for a maximum of 11 Members. If more than 11 Members are present, the remainder will have to sit in the Public Gallery, which I am pleased to see some Members are doing already. I will suspend the sitting if I think anyone is in breach of social distancing guidelines. The Hansard reporters would be most grateful if Members emailed copies of their notes to hansardnotes@parliament.uk.
Today, we will begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue. Decisions on amendments take place not in the order they are debated, but in the order they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause that the amendment affects.
I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules, following the debates on the relevant amendments. Obviously, if we spend a long time on the amendments, we cover all the ground and so it may not be necessary to have a stand part debate, but I will take advice from the Opposition on that. I am anxious to be helpful to them and to the Government. I hope this explanation is helpful.
I have talked to Graham Stringer, my fellow Chair, about one further point. The Bill is very important but quite narrowly focused. Therefore, I do not really want to have long speeches about how terrible it is to leave the European Union or how wonderful is that we are leaving the European Union. We will just leave that on one side. We are going to focus on the amendments that we have in front of us. Generally, if you focus on the amendments, and if speeches are not discursive, the Committee can hold the Government to account in a better way. I hope you do not mind me saying that, but I had a word with Graham Stringer and we agreed that we should make that clear.
Clause 1
Repeal of the main retained EU law relating to free movement etc.
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)
It is a pleasure to serve under your chairmanship, Sir Edward, and I will take on board the comments you have just made. If you will permit me, I would like to make a few introductory remarks—at the start of Committee proceedings and before we begin to debate the detail—on the purpose of the clauses.
The Bill delivers the ending of free movement of people and lays the foundations for introducing a fairer, firmer skills-led immigration system. The coronavirus pandemic is the biggest crisis we have faced in our lifetime. We need people, regardless of nationality, to continue coming together, using their skills and expertise to support the United Kingdom’s recovery.
As you will know, Sir Edward, legislating is not an academic exercise; there must be a point to it. The point is that we will introduce a new system by ending preferential treatment for EEA citizens. That will mean a system that prioritises the skills people have to offer and how they will contribute to the United Kingdom, not where their passport comes from.
The Government recognise the tremendous contribution people are making to keep vital services running during this incredibly difficult time and the dedication shown by millions demonstrates to employers the skills and work ethic we have here. Colleagues may well recall that this Bill was introduced in the previous Parliament. There have been no substantial changes to the content since it was previously considered. The only changes made are minor drafting clarifications in places and updates to the list of retained EU law to be repealed.
We remain committed to delivering a points-based immigration system that benefits the whole UK from January 2021. We will open key routes from autumn 2020, so people can start to apply ahead of the system taking effect on 1 January 2021. I want to clarify that the details of the future system will be set out in the immigration rules and not in the Bill, as is the case now for the non-EEA immigration system and has always been the case under previous Governments. The rules will be laid before Parliament later this year.
Turning specifically to clause 1, this introduces the first schedule to the Bill, which contains a list of measures to be repealed in relation to the end of free movement and related issues. The clause fulfils a purely mechanistic function to introduce the schedule.
Holly Lynch (Halifax) (Lab)
It is a pleasure to serve under your chairmanship, Sir Edward, as we start line-by-line scrutiny of this particularly important legislation in these highly unusual times.
I thank the Minister for his opening speech on clause 1 and schedule 1. Early in proceedings, I want to put on the record my thanks to the Clerk of the Bill Committee. He has been absolutely invaluable to all Committee members with assistance on the amendments and new clauses before us.
I also want to put on the record—I am sure that the Minister will join me, in the spirit of some early unity, as might you, Sir Edward—an expression of our disappointment about the audio arrangements for Tuesday’s evidence session. The poor sound quality was problematic not only on the day, as on occasion exchanges between Members and witnesses were seriously restricted, but for Hansard during the afternoon sitting. Colleagues worked incredibly hard to make that Hansard report available, but, unfortunately, it was not published until after 11 o’clock last night. That made preparations for today’s line-by-line scrutiny based on that evidence incredibly difficult.
That said, I turn to clause 1 and schedule 1. As the Minister is aware, we voted against the Bill on Second Reading, and the clause is the Bill in a nutshell. We will go on to discuss in great detail the various clauses and to outline our reservations at the different stages, but, ultimately, we fear that the Bill—right now, and in this form—holds none of the answers to the problems facing the country and actually stands to exacerbate them.
It is not difficult to see how implementation of the Bill could have severe consequences for the health and social care sector, a point made by several of the witnesses on Tuesday. The sector will require special consideration. The policy statement published in February on what comes after clause 1 specifically comes into effect simply saying to those earning less than £25,600:
“We will…end free movement and not implement a route for lower-skilled workers.”
Many of the people on the frontline fighting the coronavirus earn less than that. We need them now, and we need them to recover. The policy paper and the Minister state that they are looking to the domestic workforce to plug those gaps, but on Tuesday we heard from the Migration Advisory Committee—we can all see and feel this—that systemic failures underpin the problems in social care, and those will not be resolved by January. If we put a hard stop on free movement without having resolved some of those issues, there will be consequences when the country can least afford that.
Concerns about the clause fall into two distinct groups: ensuring that we have done the right thing by the some 3.5 million EU citizens who are already here under free movement rules when those come to an end, and certain groups in particular, and looking ahead to the future impact of restricted migration flows. Since the Bill’s predecessor was presented to the House in the 2017 to 2019 Parliament, the EU settlement scheme has come into effect to give European citizens who reside in the UK a pre-settled and a settled status.
The numbers coming through the scheme are positive, but there are concerns about certain groups, some with specific vulnerabilities. Eligible children in care, for example, are one cohort that we will return to under the new clauses. The impact of coronavirus on Home Office capabilities alone, in addition to its impact on applicants, inevitably has heightened our concerns that some groups will need more support than ever to access the scheme.
Turning to the impact that ending free movement will have on migration flows in key sectors, the Bill provides more questions than answers. It is incredibly narrow in scope, as we have discussed, which is extraordinary given that it will create the biggest change to our immigration system in decades. Instead of putting forward a new immigration system, which Parliament could discuss, debate, amend and improve, the Bill grants powers to Ministers to introduce whatever system they like with extensive Henry VIII powers.
The Government’s February 2020 policy statement indicated what such a system might be like. Properly debating most of that new system will be deemed out of scope for this Bill and this Committee, but we will do what we can within scope to set out principles and solutions for when clause 1 comes into effect.
A number of the witnesses on Tuesday were critical of the Government’s planned £25,600 threshold—not just on health and social care—and transitioning on to a visa system and sponsorship routes will cause headaches and shortages for a range of businesses, exacerbating economic uncertainty. For example, the Bill fails to address the UK’s need for migrant workers to allow the agriculture sector simply to function, which is another issue that we will explore when we debate the new clauses.
To be clear, Labour has no problem with an immigration system that treats all migrants the same, no matter where they come from, but that is not the system the Government propose. A points-based immigration system could be effective. However, it would be predicated on receptive analysis of occupation shortages, parallel education and skills strategies that seek to fill long-term job gaps with domestic talent, and a pragmatic yet empathetic Border Force. The Bill fails to do any of that, and we will seek to remedy this, within the bounds of its scope, through our amendments and new clauses.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to serve under your chairmanship, Sir Edward, albeit at a longer distance than we are accustomed to. I thank the Clerks for dealing with what were probably some horrendously drafted amendments by the bucketful during the last couple of weeks.
I am pleased to have the opportunity to take part in our detailed line-by-line scrutiny of the Bill. It will be with a sense of déjà vu that I am sure the hon. Member for Stretford and Urmston also feels, having sat in the same Public Bill Committee this time last year. The real shame is that, this time last year, nobody listened to a thing that we said, and this Bill is in the same form as it was back then. Looking around the room, however, I see a much more discerning Committee this year, so I am filled with optimism that we may indeed be able to deliver some change.
We have serious concerns; we do not just make things up. As Opposition MPs, we have lots of concerns that stakeholders have raised with us. My preliminary point is that the two previous Immigration Acts that passed all the way through Parliament, in 2014 and 2016, contributed in a very serious and significant way to the Windrush scandal. In her review of what happened, Wendy Williams highlighted all the warnings that came from the same stakeholders about the problems that those Bills would cause. Indeed, she quoted from some of the contributions made by Opposition Members during the passage of the Bills. Hon. Members might not agree with everything we say, but sometimes we are worth listening to, even if we do not manage to achieve change in this Committee. I plead with the Home Office and members of the Committee to engage seriously with the concerns that we are flagging up.
At the weekend, the former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), wrote that
“the Home Office has yet to implement the process of root and branch cultural change necessary in the aftermath of Windrush.”
I hope that, during the passage of the Bill, we receive some signals that the cultural approach of the Home Office, and its attitude to listening, is changing.
Clause 1 is the Bill in microcosm. I will not repeat my entire stage 2 speech, which I am sure hon. Members followed very closely indeed, but I take your advice on scope, Sir Edward. I am sad to say again that the SNP totally opposes clause 1, because it brings to an end what we regard as a valuable, simple and well-functioning immigration system of free movement. As a result, it extends what is a complex, expensive and unjust domestic system to EEA nationals. That is bad for the individuals caught up in it, who will face prohibitive fees, complicated procedures, broken families and diminished rights, but it is also bad for the economy. I do not think that any hon. Member present who paid attention to the evidence that we heard on Tuesday can remain 100% enthusiastic about the Government’s proposals for the immigration system come January. It will be an abject nightmare for many industries that have already been totally decimated by the coronavirus shutdown. We did not even hear from the tourism and hospitality industries, which are at the forefront of facing the challenges.
Clause 1 is also bad for Scotland—for our population growth, demographics, economy and tax base. If the task had been to design an immigration system for Scotland alone, nobody in their right mind would have come up with this one. The same is true—probably even truer—of Northern Ireland, with its land border with a country where free movement will continue. We will explore all these issues as we go through the Bill in more detail and discuss the amendments and new clauses that have been tabled. From my point of view, there is nothing much to celebrate and lots to regret about clause 1, and indeed schedule 1, and we oppose them both.
Kevin Foster
I will reply briefly. I recognise the position of the Scottish National party on the Bill and on these particular proposals. There is a fundamental difference, but I assure the hon. Gentleman that he is always worth listening to, even when we disagree. He laments the absence of the tourism and hospitality industries on Tuesday. Regardless of our views on the Bill, we all look forward to an era when those industries will be able to think about recruiting again, rather than being in the position that we expect them to be in of significant job losses, including in my constituency, over the coming weeks and months, given the impact of recent weeks.
To turn to the comments of the hon. Member for Halifax, I was listening on Tuesday to the evidence from Professor Brian Bell, interim chair of the MAC, particularly on social care, and I cannot remember him saying that a general route for employers in the social care sector to recruit abroad at or near the minimum wage would be good news for the social care sector. In fact, I think he said precisely the opposite. To be clear, the general salary threshold is being reduced to £25,600, but where an occupation is deemed to be in shortage, it will be subject to a lower salary level of £20,480 a year.
It is also worth pointing out that for more than 20 categories of healthcare professional and allied healthcare professional, their eligibility will be based on the national salary scales paid in the NHS, rather than the general salary scales set out in the wider immigration rules. That is linked to the creation of what we are looking at as a healthcare visa to give fast-track access and reduced fees to people under that scheme. It is important that we keep placing those facts on the record so that people are aware of them, given some of the not very well informed commentary we have seen in the media, such as the claim that nurses will not be eligible, when in fact they will be fast-tracked and prioritised under our system.
Holly Lynch
I am concerned that the Minister has put words in my mouth in relation to what the MAC said about social care. What we did hear loud and clear from a number of witnesses, however, was that there is no plan to address workforce issues in social care when free movement ends. Is he minded to have specific remedies for social care in his future plans, before we end free movement?
Kevin Foster
Again, if people think, from what we have seen in the last few weeks, that the remedy for social care is to recruit more people at or near to the minimum wage from abroad, that is an odd conclusion to draw.
Kevin Foster
We will certainly talk to the Employment Minister. Again, I am conscious of the scope of the Bill and not going off more widely into our labour market strategies.
One conversation I recently had with the Employment Minister was about how, sadly, a lot of people in my constituency, and I am sure in the hon. Lady’s constituency as well, need to find new employment opportunities. Social care, and the healthcare sector more widely, will be part of providing some of those opportunities, not just through entry level jobs, but by ensuring that education, colleges and others are training people towards skilled jobs and providing real career progression.
For me, that is the solution for social care, rather than looking to the migration system as the overall labour market solution. I am sure we all share the sentiment, whatever any of us thinks of ending free movement, that the sector needs to be more invested in and more valued, and that there need to be clearer paths of career progression that people can see when they are deciding what they want to do for a job and a career.
I am conscious, Sir Edward, of what you said about the scope of the Bill. We could have an interesting discussion about the overall labour market strategy, but for now, this is a focused debate about why clause 1 is important and delivers the core of what the Bill is about.
Question put, That the clause stand part of the Bill.
Stuart C. McDonald
I beg to move amendment 18, in schedule 1, page 7, line 26, leave out paragraph 4(2).
I am moving this amendment because, as we heard on Tuesday from Adrian Berry, the drafting of paragraph 4(2) —there are similar paragraphs in schedule 1—is far from satisfactory.
In tabling this amendment, we are asking the Minister, how is it that this paragraph is supposed to work? Why must we leave it to ordinary citizens to work out whether they still have certain rights by checking back whether these provisions are inconsistent with or could impact on the interpretation of decades of immigration laws, both Immigration Acts and legislation made under them? Why has the Bill not done that job for them? As Mr Berry said, the Home Office must know how these rights interplay with earlier provisions of immigration legislation. Why is that not set out in the Bill?
As we just heard, schedule 1 does the heavy lifting of repealing large parts of retained law in relation to free movement of people. Over three parts, schedule 1 lists, in considerable detail, the various bits of primary and secondary legislation of retained EU law that are to be omitted and revoked.
For large parts, the schedule is pretty clear. For example, it says:
“Article 1 of the Workers Regulation is omitted.”
I do not like that, but I cannot complain that it is lacking in clarity. As Adrian Berry pointed out, however, elsewhere the drafting lets people down. Even with the help of immigration lawyers like Mr Berry, it will be incredibly difficult for people to know whether other rights that they have under the workers regulation are still effectively in force.
Other articles in the workers regulation are important. These are not trivial matters. They include, for example, the right to equal treatment in various spheres, such as education, employment rights and family rights. It will be important for folk to know, in a straightforward manner, whether they still enjoy these rights, but schedule 1 totally fudges this question.
The offending paragraph states that these provisions
“cease to apply so far as—
(a) they are inconsistent with any provision made by or under the Immigration Acts (including, and as amended by, this Act), or
(b) they are otherwise capable of affecting the interpretation, application or operation of any such provision.”
I find that very difficult to understand, as a parliamentarian and somebody who many years ago was an immigration lawyer.
For example, is a protection offered against discrimination on vocational grounds in paragraph 6, contrary to the Immigration Acts or any provision made under them? The Immigration Acts are a specific list of provisions. Again, as Mr Berry pointed out, it would not be unreasonable to think that the Home Office knew exactly which workers regulation articles were not impacted at all and which were, and to what extent.
That should be in the Bill, so that folk know where they stand. It is as simple as that. Otherwise, the consequence would be endless confusion and litigation. The query and question for the Minister is, why is the Bill still drafted in this way?
The Chair
Before I call the Minister, does anybody else wish to speak? In that case, over to you, Minister.
Kevin Foster
Thank you, Sir Edward. I just thought I would be courteous, in case there was another hon. Member who wished to speak.
Amendment 18, which stands in the name of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and his colleagues, would remove paragraph 4(2) from schedule 1 to the Bill, which disapplies provisions of the workers regulation, which conflict with domestic immigration law. This would mean that the UK remained bound by EU law in relation to the rights of EEA citizens to access the UK’s job market, which might in part be the hon. Gentleman’s intention, given his well-known view on that subject.
The Government, therefore, cannot support this amendment, because it would effectively result in free movement rights for workers and their families continuing after the end of the transition period. The Government are committed to ending the free movement of people now that we have left the EU, so therefore this proposal is incompatible with that. The Government are committed to ending the free movement of people now that we have left the EU, so therefore this would be incompatible with that.
We have made it clear that we will bring free movement to an end on 1 January, and introduce an effective and fairer points-based immigration system that takes into account the needs of the whole of our United Kingdom and works for the whole of our United Kingdom. It will be a system that reflects the skills and contributions that someone has to offer, not where the person comes from.
Stuart C. McDonald
The Minister is right that I would love to see all these rights retained, but that is not the motivation behind this amendment. I accept that the Government want to go about repealing some rights, but the Bill does not really do that. It says, in a peculiar way, that the rights are “sort of repealed” and one has to check back through immigration legislation for decades to work out to what extent. Why has it been done in this way rather than setting out specifically which rights are retained and which are not?
Kevin Foster
The answer is partly that it is not possible to draw up an exhaustive list of directly affected law in terms of the EU because court judgments will affect that. One reason for the wording is to make it clear that it relates to the Immigration Act 1971 and does not create a wider enabling power around the workers regulation. I am also clear that those who are subject to the withdrawal agreement are covered by those provisions.
During the passage of the European Union (Withdrawal Agreement) Act 2020 we discussed in great detail the provisions for protecting the rights of EEA citizens resident in the UK by the end of the transition period, which is 31 December this year. The EU settlement scheme, which was fully opened on 13 March 2019, was specifically introduced for this purpose. One of the rights protected by the status granted under the scheme is equality of access to employment, benefits and services, in the manner outlined by the workers regulation.
Retaining sub-paragraph (4)(2) of schedule 1 will in no way compromise our commitments to upholding the rights of resident EEA citizens already working in the United Kingdom. It will simply ensure other provisions of the workers regulation, which are not specific to immigration, do not have ongoing effects on UK immigration law, but continue to have their effects for other purposes, hence the wording of the sub-section. Otherwise the UK would be required, for example, to provide all EEA citizens with an offer of employment as though they were British citizens, meaning they could not be subjected to any restrictions on access in the UK labour market, directly undermining the new points-based immigration system, which will not provide preferential treatment for EEA citizens.
The changes made by sub-paragraph (4)(2) only relate to immigration aspects of the workers regulation and will not affect any other rights provided by that regulation. For example, the right to equal treatment in respect of positions of employment and work, and the right to join a trade union are unaffected by the provision, because this Bill is not the appropriate vehicle in which to consider them or to look for a power to alter or amend them.
It is less than six months since the British people voted to take back control of our borders and introduce a new points-based system to control immigration, which will deliver for the UK for years to come. This provision, ending the immigration rights provided by the workers regulation, is one the steps needed to pave the way for the new system. For those reasons, the Government cannot support this amendment and I ask the hon. Gentleman to withdraw it.
Stuart C. McDonald
I thank the Minister for his explanation. I absolutely understand what the Government are trying to achieve and that some of the rights in the workers directive have been put in legislation, including in the European Union (Withdrawal Agreement) Act 2020. However, that is not the point that this amendment is trying to make. The point is about how the Bill is—or is not—going about repealing the workers directive.
It is essentially a point about the rule of law. When I intervened, the Minister said that it would not be possible to draw up an exhaustive list of exactly how these rights were affected by Immigration Acts and other provisions. If the Government cannot do that, how on earth is the ordinary citizen supposed to be able to tell what their rights are? I think we should take this paragraph out of the schedule and, if the Government are unhappy with the implications that has in leaving things on the statute book, they should come back on another occasion with a clear list and fix it that way. I would like to push the amendment to a division.
Question put, That the amendment be made.
Kate Green (Stretford and Urmston) (Lab)
It is a pleasure to serve under your chairmanship, Sir Edward. I would like to ask the Minister some questions about paragraph 6 of schedule 1, which potentially disapplies any retained EU law relating to the immigration context. It is a similar set of questions to those we were discussing a moment ago in relation to amendment 18, but with a different focus. It arises from evidence that was given to us on Tuesday afternoon by Adrian Berry on behalf of the Immigration Law Practitioners’ Association, which I thank for its help in preparing for this Committee.
I apologise that it was not possible to get an amendment tabled on this paragraph. As my hon. Friend the Member for Halifax pointed out, we have been doing a number of things in relation to this Bill at a rush, and we did not have the transcript of Tuesday afternoon’s sitting until last night. I am very grateful to the Hansard writers for the work they have been doing—I know they have a lot of Bills on—but that has caused part of our problem.
My concern is that the breadth of the wording in paragraph 6 could lead to the repeal of legal protections that go far beyond the realm of free movement, which is the purpose of this Bill. I hope the Minister may be able to put some assurances on the record in relation to my concerns about the Government’s future intentions. As we heard a few moments ago, certain provisions of EU law, as retained EU law, have been brought within UK law by a number of different instruments—some EU law has been brought into domestic law through statutory instruments and so forth. They are saved by section 2 of the European Union (Withdrawal) Act 2018. Direct EU legislation is saved as retained EU law by section 3 of the 2018 Act. It is explicitly defined and does not include treaties or directives; it is things such as EU regulations with direct applicability.
Any other powers, liabilities, obligations, restrictions, remedies and procedures that could be enforced in the UK because of EU law are carried over by section 4 of the 2018 Act. That includes things like treaties and directives that are directly effective. It is, however, important to note that section 4(2)(b) limits the enforceability of directives to the extent that retained EU law is only the rights, powers, liabilities, obligations, restrictions, remedies or procedures arising under an EU directive that are of a kind that have been recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before the end of the transition period.
Paragraph 6 of schedule 1 disapplies those provisions of EU law to the extent that they are either inconsistent with or otherwise incapable of affecting the interpretation, application or operation of any provision made by or under the Immigration Acts, or otherwise capable of affecting the exercise of functions in connection with immigration. The problem is that the carve-out basically all EU immigration law retained by virtue of paragraph 4, because
“capable of affecting the exercise of functions in connection with immigration”
could basically mean just about anything. The question I am asking the Minister is what EU law that paragraph applies to. What exactly are the Government trying to target?
We get some help from paragraphs 68 and 69 of the explanatory notes to the Bill, which suggest the Government may be trying to affect what we have come to call derived rights cases, in the free movement context. For example, cases of so-called Zambrano carers. These are situations where the European Court has recognised that, because of rights within the European treaties available to European nationals, certain rights must be given to those nationals and their family members or carers in order to ensure that the European national can actually enjoy their EU rights. I accept that, if one is trying to get rid of free movement, as the Bill is, these categories would need to be removed from UK law. That is exactly what ending free movement means, but if that is the scope of the Government’s intentions, it should be much clearer in the Bill.
Unfortunately, paragraph 6 goes much wider than that, addressing not only provisions made under the Immigration Acts, as the Minister suggested a few moments ago, but any matter capable of being seen as in connection with immigration. That could include, for example, the anti-trafficking directive, which prohibits removal of a victim of trafficking if they never received sufficient support and assistance under article 11 of the directive. Other directives that could be caught under involving the exercise of functions in connection with immigration include the reception conditions directive, which supports asylum seekers, the EU victims’ rights directive, and potentially others.
One way of protecting all these directives would be simply to say that paragraph 6 of schedule 1 does not affect directives that form part of retained EU law. After all, the Government’s own explanatory notes do not identify any directives that they wish to disapply in the immigration context, even though I accept that the list in paragraph 69 is described as non-exhaustive. Alternatively, the Government could list the directives specifically to be protected, as set out in the explanatory notes, directly within schedule 1 of the Bill.
I have to say that if the Government do not follow either of those paths, vital protections for vulnerable people could be at risk of becoming collateral damage in the ending of free movement. I am absolutely not suggesting that the Government intend to remove those protections, but if they do not intend that, I hope the Minister can give us clear assurances to that effect today and explain why they appear to fall within the scope of the Bill as drafted.
As things stand, the breadth of the language in paragraphs 6 and a lack of sufficient objective parameters to ascertain its intended targets make it impossible to accurately predict which areas of retained EU law could be affected by the Bill. That is exactly the problem we were discussing a moment ago in relation to paragraph 4. It raises fundamental legal concerns. Migrants and their representatives, Home Office caseworkers and judges must be able to ascertain with a reasonable degree of certainty what the law is. Indeed, that is one of the core lessons learned from the Windrush review carried out by Wendy Williams. I do not believe that this provision meets that standard.
Kevin Foster
I thank the hon. Lady for her speech and her interest in this section of the Bill. To be clear, paragraph 6 disapplies the directly effective rights deriving from the EU law that will form part of retained EU law at the end of the transition period if they are inconsistent with immigration legislation or affect immigration practices. They are being repealed so that people cannot in the future attempt to rely on such directly effective rights to bypass the system to enter and reside in the UK, other than under the points-based system. We have been clear that provision will be made in the EU settlement scheme for those currently exercising their EU derivative right of residence in the UK, and that has now been provided, as I touched on.
Some people have asked for examples of rights that paragraph 6 would disapply. They include the rights of Turkish nationals to preferential immigration treatment under the European Economic Community-Turkey association agreement. They also include, as the hon. Member for Stretford and Urmston said, derivative rights of residents under EU law such as Zambrano carers, and the Chen, Ibrahim and Teixeira cases, which will cease from the day that paragraph 6 comes into force. Those rights stem directly from the treaty on the functioning of the EU and need to be disapplied because otherwise people could continue to cite and rely on them to bypass the future immigration system.
The Government do not intend to use the provisions to avoid our responsibilities under international law. We are very clear that our system of protection routes will continue to operate separately from the system of migration rules, as they always have. Family migration will not form part of the points-based system; it will be based on the family migration rules. The wording has to be the way it is so that the paragraph is not too wide in scope. This is about citing it in relation to immigration—trying to cite an EU right to work in the UK rather than applying the provision in a situation where we would, for example, be breaching our international obligations. As I said during the evidence session on Tuesday, under statutory instruments and regulations, Ministers cannot act against international law. We could have a long constitutional debate about whether Parliament can still pass primary legislation in relation to international law, but that is probably not relevant to this particular schedule.
In essence, the schedule is about being clear that it will not be possible to use a range of rights to undermine the points-based immigration system that we are putting in place. We want to make it clear that EEA and non-EEA citizens should look to migrate under the points-based system.
Question put, That the schedule be the First schedule to the Bill.
Kevin Foster
I do not expect this clause to be controversial, but given some of the evidence that we heard, it may be useful to set out one or two responses, especially the Government’s long-standing policy on deportation of Irish nationals. As Committee members will know, clause 2 protects the status of Irish citizens in the UK when free movement ends. British and Irish citizens have enjoyed a unique status and specific rights in each others’ countries since the 1920s as part of the common travel area arrangements.
Under clause 2, when free movement ends, Irish citizens will continue to be able to come to the UK without permission or restrictions on how long they can stay. British citizens, as you are probably aware, Sir Edward, enjoy reciprocal rights in Ireland, again reflecting the unique historical position of the Republic of Ireland and the UK.
The clause provides legal certainty and clarity for Irish citizens by inserting a new section 3ZA into the Immigration Act 1971. New section 3ZA will ensure that Irish citizens can enter and remain in the UK without requiring permission, regardless of where they have travelled from. This is already the position for those entering the UK from within the common travel area, but Irish citizens travelling to the UK from outside the common travel area currently enter under EEA regulations. This clause will remove that distinction by giving Irish citizens a clear status once free movement ends. While that may not have been impactive, it is there in a technical, legal sense, which is why this clause is necessary.
Holly Lynch
I am grateful to the Minister for a lot of the clarification in his opening remarks. We welcome clause 2, and its content is indeed necessary. We will, however, be asking for some further assurances through new clause 27, largely to reaffirm what the Minister has just said. That new clause asks the Secretary of State to
“publish a report detailing the associated rights of the Common Travel Area”.
We heard from both Alison Harvey and Professor Ryan that although clause 2 is welcome and offers a degree of clarity as free movement rights are stripped away from both Irish and British citizens, as well as those in Northern Ireland who identify as both, there are some outstanding areas that require further clarification, including the scope of reciprocal rights under the common travel agreement. Clause 2 shows that many of the rights granted to Irish citizens through the common travel area are facilitated through freedom of movement. If not in the present Bill, do the Government plan to legislate to enshrine the provisions of the common travel area as reciprocal rights, rather than purely as changeable administrative arrangements, and, if so, when?
As Professor Ryan highlighted on Tuesday, more must be done to clarify the status of acquisition of British nationality, for British-born children, children born to Irish parents and Irish citizens wanting to naturalise. At the moment it is incredibly hard to ascertain the exact immigration status of those individuals and to know, for example, whether they have time limits on their visas or have ever breached immigration laws. If the Government truly want to redefine the British immigration system, they must answer those questions to clear up the ambiguity surrounding British citizenship law.
I am sure that the Minister will understand some of the nervousness about deportations. He referred to it in his opening remarks on the clause. To give the Committee some context to work with, I asked Professor Ryan at column 35 in the evidence sitting on 9 June whether he was aware of examples in recent history when an Irish citizen had been deported, either because a court had recommended deportation on sentencing, or because a Secretary of State had concluded, owing to the exceptional circumstances of the case, that the public interest required deportation. If I am not mistaken, the Scottish National party spokesperson also put a similar question to Alison Harvey. No specific examples could be provided. If the Minister is aware of any, I should welcome it if he would share them with the Committee to support the discussion.
We still do not know the Government’s proposed threshold for deportation of Irish citizens. It would be helpful if that could be clarified. Ideally, the Government would enshrine that in legislation or at least make a commitment during the passage of the Bill to state explicitly how deportation and exclusion will be used for Irish citizens in future. Professor Ryan has said that owing to the arrangements in the common travel area the threshold for deportation and exclusion of Irish citizens is notionally higher than that of other nations. Seemingly, it is more rarely, if ever, exercised.
As I have mentioned, the Good Friday agreement allows people born in Northern Ireland the right to identify exclusively as Irish or British, or as both. Irish citizens are referred to in the Bill, so can we assume that that reference includes Northern Ireland-born citizens who do not identify as British? If so, will the Minister make it clear in the Bill that people in Northern Ireland who identify exclusively as Irish, per the Good Friday agreement, are exempt from deportation and exclusion?
Without such a commitment, there is inevitably some anxiety. Alison Harvey made a case for mitigating the risk through the right to abode. If that were implemented, it would guarantee a raft of citizenship rights, so I welcome feedback from the Minister on that approach. As well as clarifying the status of Northern Irish citizens who identify solely as Irish, the right to abode would also alleviate the loophole through which someone with an Irish passport is not granted protections on arriving in the UK, because they have travelled from a country outside the common travel area.
We are supportive of the clause and will not oppose it, but will return to some of its content in debate on new clause 27.
Stuart C. McDonald
Given what the Minister and shadow Minister have said, I can, I hope, be helpfully brief. I am grateful to the Minister for clarifying the position on deportation, but the shadow Minister raises a reasonable point. The Minister has clarified the policy— but why not put it on the face of the Bill? I very much welcome the Minister’s confirmation of how Irish nationals will be able to come from outside the CTA with family members. It is a welcome clarification.
I want briefly to refer to the broader issue of common travel area rights. We are often told about the historic common travel area, and the fact that the rights go back many decades. That is true, but in recent years most of those rights have become embedded in and entangled with free movement rights. In the Bill, we are repealing those rights but not replacing them with common travel area rights. The Government keep talking about reciprocal rights, but we need them to be set down in statute.
So far, as the Minister said, there seems to be a non-binding memorandum of understanding with the Government of Ireland, and a Government position paper, setting out the fact that there will be rights to work, study, social security and healthcare access, and vote. For the Irish Human Rights and Equality Commission, essentially those CTA rights are “written in sand” and for the Committee on the Administration of Justice the CTA can be characterised by loose administrative arrangements of provisions that can be altered at any time. So we need to return to this issue of when we will actually see a detailed scheme of rights for the common travel area.
There is some urgency about this matter, because at the moment, for example, there are people in Northern Ireland who choose to be Irish citizens and who have the option of applying under the EU settled status scheme, but they will have to make that decision without really knowing how the benefits of the EU settled status scheme compare with the benefits of the common travel area scheme, because that has not been spelled out in great detail yet. There are practical issues that have been flagged up by the organisations I have mentioned about cross-border rights to access healthcare and education, and so on. All these questions need to be answered, and fairly urgently.
Finally, I will echo what the shadow Minister said about Alison Harvey’s evidence on the right of abode, and I would be interested to know whether the Government are considering achieving some sort of resolution of these issues by using the right of abode. However, we will return to these issues when we debate the new clause that the shadow Minister has tabled.
I welcome clause 2, but we still have a considerable way to go in making sure that the common travel area persists and works properly, and that folk know where they stand.
Kevin Foster
I thank the SNP and Labour spokespersons for their overall support of the clause. I think I have been clear that there is a very strong commitment to the common travel area. Elements of its operation are inevitably required due to the provisions of the Belfast agreement, which is actually international law; it is a treaty between the United Kingdom and the Republic of Ireland, so it is not something that can just be amended on a whim. Far from it—it is underpinned by the strong consent of both communities, north and south, as expressed in referendums at the time it went through.
The commitment of both Governments to the common travel area has persisted for decades and will continue to do so. Irish citizens can apply to the European settlement scheme. I do not see any detriment that would come to them from doing so, but neither is there a requirement for them to do so, given the clarity that the clause brings to their rights within the United Kingdom. To be absolutely clear, the clause looks to remove that difference in the technical definition between an Irish citizen who has arrived in the United Kingdom on, for the sake of argument, the Eurostar from France, as opposed to arriving in the United Kingdom on a plane from Dublin.
It is probably worth saying that it would be interesting to work out how that definition could have actually affected someone’s life, apart from some of their more theoretical rights. However, I will be clear on that front that the Bill removes that difference. For an Irish citizen within the United Kingdom, it applies regardless of which country they travel from—whether they have travelled to the United Kingdom from within the common travel area or, for example, from the United States of America—[Interruption.] I am glad that the hon. Member for Halifax was reassured by that.
Effectively, Irish citizens become identified —I accept that this is perhaps a slightly controversial thing to say in the context of people’s identity—as British in our system of migration. Effectively, their Irish passport becomes equivalent to a UK national’s passport.
As for the provisions around deportation, I was asked whether there was a particular example. My officials in the Home Office have spent some time over the last week or two trying to find an example under current legislation —not under legislation, perhaps, from previous eras—of someone being deported from the United Kingdom to the Republic. We struggled; so far, I cannot find a specific example. I do not see any Member of the Committee who is about to jump up and give me an example, in order to contradict me on that point.
In particular, we are not aware of there ever having been, even at the heights of the troubles, a particular stream of deportation from Northern Ireland into the Republic. Partly, that is because we would all have to question the practical effect of deporting someone from County Londonderry to County Donegal; how on earth would anyone effectively enforce that in any way? Also, however, the spirit between the two Governments has been very much that we respect the rights of those who are there and, to be clear, that is set out in a 2007 written ministerial statement. That was not done under a Government formed by my party. The written ministerial statement has been there for 13 years. I wrote to the Irish Government about the fact that the provisions were in the Bill, and we have not received negative representations. The minimum threshold would have to be an offence that carried a 10-year prison sentence, so we are talking about very serious criminal offending, or the court would have to recommend it.
Kevin Foster
The clause is minor and technical in its nature, but it is important for the implementation of the Bill and for a fully functioning statute book. Effectively, it states that the Bill will be one of the Immigration Acts. I commend the clause to the Committee.
Holly Lynch
There is so little in clause 3 that we will not make a contribution to it.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Consequential etc. provision
Stuart C. McDonald
I beg to move amendment 2, in clause 4, page 2, line 34, leave out “appropriate” and insert “necessary”
This amendment would ensure that the Secretary of State may only make regulations which are necessary rather than those which the Minister considers appropriate.
The Chair
With this it will be convenient to discuss the following:
Amendment 3, in clause 4, page 2, line 34, leave out “, or in connection with,”
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee in connection with the equivalent Bill introduced in the last session of Parliament.
Amendment 20, in clause 4, page 2, line 35, leave out “this Part” and insert “Schedule 1”
This amendment seeks to limit the scope of the power in Clause 4 to matters concerning the ending of retained EU law rights that currently preserve free movement and immigration-related rights.
Amendment 21, in clause 4, page 2, line 35, at end insert—
‘(1A) The power to make regulations under subsection (1) may only be exercised within the period of one year from the day on which this Act is passed.
(1B) Regulations made under subsection (1) shall cease to have effect after a period of two years from the day on which this Act is passed.”
This amendment would restrict the use of the Henry VIII powers contained in Clause 4 to a period of one year from the date of the Act being passed; and would prevent any changes to primary legislation made by exercise of these powers having permanent effect unless confirmed by primary legislation.
Amendment 4, in clause 4, page 3, line 6, leave out subsection (5).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee in connection with the equivalent Bill introduced in the last session of Parliament.
Amendment 15, in clause 4, page 3, line 8, at end insert—
‘(5A) The Secretary of State may make regulations under subsection (1) only if satisfied that the regulations would have no detrimental effect on the children of EEA and Swiss nationals resident in the United Kingdom.
(5B) Before making regulations under subsection (1) the Secretary of State must lay before Parliament, and publish, a statement explaining why the Secretary of State is satisfied as mentioned in subsection (5A).”
Amendment 22, in clause 4, page 3, line 8, at end insert—
‘(5A) Regulations under subsection (1), in relation to persons to whom the regulations apply under this Act, shall be made in accordance with the following principles—
(a) Promotion of family life, particularly that between children and their parents and that between partners;
(b) That persons in the United Kingdom should have a right of appeal to the First-tier Tribunal against any decision to refuse leave remain, to curtail leave to enter or remain or to make a deportation order;
(c) that where leave to remain is given—
(i) on account of a person’s long residence in the United Kingdom; or
(ii) to a person whose continuous residence in the United Kingdom includes five years of that person’s childhood; or
(iii) to a child who has lived in the United Kingdom for a period of seven continuous years;
that leave is given for an indefinite period;
(d) that leave to enter or remain given to a person for the purpose of establishing or continuing family life in the United Kingdom is not subject to a condition restricting work, occupation or recourse to public funds; and
(e) ensure that no change to immigration rules or fees is made—
(i) unless sufficient public notice has been given of that change to ensure any person affected by the change who is already in the United Kingdom with leave to enter or remain has reasonable opportunity to adjust their expectations or circumstances before the change takes effect; or
(ii) that would require a person given leave to enter or remain for the purpose of establishing or continuing family life in the United Kingdom to satisfy more restrictive conditions for the continuation of their stay than were required to do so at the time the person was first given leave for this purpose.”
This amendment seeks to ensure that exercise of the delegated powers in clause 4(1) is guided by certain principles.
Amendment 12, in clause 8, page 5, line 40, at end insert—
‘(4A) Section 4 and section 7(5) expire on the day after the day specified as the deadline under section 7(1)(a) of the European Union (Withdrawal Agreement) Act 2020.”
Stuart C. McDonald
I am pleased to speak in support of the amendments. At this stage I expect to get the Government Members excited because I am urging them to take back control, by which I mean take back control of immigration policy from the Home Office and keep MPs in a job. Like most hon. Members I have become familiar with the broad powers of delegated legislation and sweeping Henry VIII powers in recent years through both immigration legislation and more recently through Brexit. The Government are taking increasingly more and more powers to rewrite not only subordinate legislation but primary Acts of Parliament with very little constraint. I do not think that anyone here would dispute that in certain circumstances such powers can be sensible and useful, but they should be exceptional and limited. Instead, the practice has become so routine that if it goes on we might as well shut down Parliament or end its role as a legislator.
I am grateful to the witnesses who spoke on Tuesday and to the organisations that provided briefings, including the Law Society of Scotland, Amnesty International, the Immigration Law Practitioners’ Association, Justice, Liberty, the Equality and Human Rights Commission and others. There are big concerns about this clause.
In tabling the amendments I have also relied on the report of the House of Lords Delegated Powers and Regulatory Reform Committee and its 46th report in the last Session, which was an analysis of the predecessor Bill. It is fair to say that their lordships were not impressed with clause 4. It is noticeable that they went out of their way to prepare the report in advance of Committee stage so that we could benefit from their advice. I regret that the Home Office is still not listening to that sage advice at all.
The sweeping power is set out first in clause 4(1), where the Home Secretary can make any provision that she thinks “appropriate” in relation to the whole of part 1 —in other words, related to free movement. Clause 4(2) makes it clear that this can include amending any Act of Parliament as well as retained EU legislation. There are various subsections about the procedures that would be required to be used when exercising those powers, which is something that I suspect we will return to later.
The word that appears several times in the House of Lords report is “significant”. Their lordships had significant concerns about significant delegation of powers from Parliament to the Executive on such a significant issue that concerns a significant number of people. Amendments 2, 3, 20, 21 and 4 are designed to cut those powers done to size and to keep MPs in a job. It is quite informative to look at the explanatory memorandum to the same Bill from this time last year. The memorandum explains, for example, how the powers would be used to set up appeal rights for EEA nationals. All those things have already been taken care of in the year that has passed, yet nothing has changed in the formulation of clause 4. The Government still say they need such powers, even though they have done everything that they envisaged using those powers for in the explanatory memorandum from this time last year.
The European Union (Withdrawal Agreement) Act 2020 was passed at the start of the year, and it contains a whole part on citizens’ rights of residence, frontier workers, deportation appeals, non-discrimination and so on. It includes extensive powers of delegated legislation as well, but at least they are constrained by the requirement that they should be exercised in order to implement the provisions of the withdrawal agreement that relate to citizens’ rights. As I say, a lot of what the Government originally envisaged they would use these powers for has already been accomplished.
Amendment 2 refers to an argument that we have had many times before. It is about requiring use of the powers to be “necessary” rather than merely considered appropriate by the Minister. Again, there is no genuine objection to being able to make rules if we suddenly have to make changes for a deal or a no-deal situation in the future relationship, but that should not just be at the whim of Ministers deciding what is appropriate and what is not. Their lordships and various stakeholders have recommended a test of necessity, and that is what is in amendment 2.
Amendment 3 is probably the most critical amendment and takes out the words “in connection with”. I refer again to the House of Lords Committee report, which said:
“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations”.
So their lordships are not very happy at all with what the Government propose.
Amendments 20 and 21 come from the House of Lords Committee report, but there have been perfectly sensible suggestions from Amnesty International, with similar ideas from other stakeholders. Amendment 20 would limit the scope of powers so that regulations cannot be made in relation to any old provision in part 1; they must relate specifically to schedule 1. Again, I emphasise that it can be acceptable to have limited powers in order to tidy up the statute book and the detailed list of provisions in the schedule. As matters stand, however, clause 2 means that we could have sweeping changes made to the rights of Irish citizens on the whim of the Secretary of State. Indeed, on the face of it, delegated powers could be used to alter clause 4 in order to increase the Executive’s powers yet further. That cannot be acceptable.
Amendment 21 would put a simple sunset clause of one year on the use of these powers. Should the Government have not tidied up the statute book by this time next year, something seriously wrong will have happened. Alternatively, something seriously positive will have happened and we will have extended the transition period by a couple of years. In either case, there will be plenty of time to legislate afresh. Everyone gets the argument that sweeping powers should not be left on the statute book forever; hence the sunset clause.
Amendment 22 puts a sunset clause on changes made by subordinate legislation. If the Minister really thinks there is such a rush that he cannot proceed by primary legislation, he should make the regulations. He should then come back to the House of Commons with a proper Bill, so that we can do our job as legislators and decide whether to keep those provisions in force or let them lapse.
In some ways, I am just sticking up for MPs. I want us to be able to continue to be the primary legislators in the field of immigration law and that we should start taking back some control from the Home Office.
Holly Lynch
I rise to speak to amendment 12, as well as demonstrate support for amendments 2 to 4, which also have our full support. With your permission, Sir Edward, I will focus my comments on the amendments relating to the transfer of powers in clause 4, and my hon. Friend the Member for Stretford and Urmston will speak specifically to amendment 15, which is part of this group but is on a slightly different issue and relates to the impact that this legislation will have on children.
It is a pleasure to follow the SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, who made an articulate speech on the concerns about the Henry VIII powers. The reason we are all here physically today and not fulfilling our duties from home is this Government’s commitment to parliamentary scrutiny. Unfortunately, this transfer of powers seems to be inconsistent with that approach.
The arguments were incredibly well rehearsed on Second Reading during the previous Parliament, in Committee and in the House of Lords Delegated Powers and Regulatory Reform Committee, as we have already heard. That is why it is so disappointing that the Government have not reflected on that feedback and adapted their approach.
Clause 4 as it stands confers an extremely wide power on the Home Secretary to make whatever legal amendments they consider appropriate in consequence of, or in connection with, any provision of the immigration part of the Bill. That includes the ability to amend primary legislation. I am sympathetic to the Government’s stated intention behind the clause—namely, that it will ensure coherence across the statute book following the substantial changes brought about by the ending of free movement, and deliver the required tweaks to legislation. However, clause 4 is drafted so widely that it could relate to almost any aspect of immigration law, and given that there is no time restriction on the clause or the powers within it, the concern is that there is potential for those powers to be used far beyond the aims of this Bill.
Adrian Berry of the Immigration Law Practitioners’ Association, whom we heard from earlier this week, commented on the powers referenced in the Bill, including in clause 4(5). During that evidence session, he said:
“How is the ordinary person, never mind the legislator, to know whether the law is good or not…if you draft like that? You need to make better laws. Make it certain, and put on the face of the Bill those things that you think are going to be disapplied because they are inconsistent with immigration provisions. There must be a…list in the Home Office of these provisions and it would be better if they are expressed in the schedule to the Bill.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 52, Q106.]
He went on to confirm that any responsible Opposition would have to table the amendments in this group in the absence of that list.
As we have heard, amendment 2 would replace the word “appropriate” with “necessary” in clause 4, line 34 on page 2 of the Bill, and amendment 3 would leave out “, or in connection with,” on the same line. With amendment 4, we seek to leave out subsection (5) altogether. We are also supportive of amendment 20.
On the specific proposed changes, as has already been said, the Lords Delegated Powers and Regulatory Reform Committee considered the almost identical version of the Bill in the 2017-19 Parliament. It said:
“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations”.
The Committee expressed significant concerns about subsection (5), recommending that it be removed altogether, which is exactly what we are seeking to do,
“unless the Government can provide a proper and explicit justification for its inclusion and explain how they intend to use the power.”
The reason is that
“it confers broad discretion on Ministers to levy fees or charges on any person seeking leave to enter or remain in the UK who, pre-exit, would have had free movement rights under EU law.”
I argued on Second Reading that this approach is bad not just for parliamentary democracy, but for our public services and for the economy—a sentiment shared by the London Chamber of Commerce and Industry in an evidence session this week. Parliamentary scrutiny is the most effective way for stakeholders to work with MPs to shape legislation to respond to the needs of the country, and they are being denied that opportunity with the transfer of powers in this clause. The Immigration Law Practitioners’ Association, the British Medical Association, London First, Universities UK, the National Union of Students, trade unions and the Children’s Society are just a sample of the cross-section of organisations that have all expressed concerns that this transfer of powers to the Executive is not the way to develop quality and robust legislation.
During the attempted passage of the Bill in the last Parliament, the then Minister, the right hon. Member for Romsey and Southampton North (Caroline Nokes), set out a number of reasons why the powers in clause 4 were necessary. As the SNP spokesperson has already said, a number of those reasons have since been addressed, yet the powers remain.
Since then, almost all those powers have been rendered irrelevant by the passage of other pieces of primary and secondary legislation. I will rebut just a couple of arguments. The then Minister said:
“In the unlikely event that we leave the EU without a deal, the power will enable us to make provision for EEA nationals who arrive after exit day but before the future border and immigration system is rolled out”.
There is now a deal on citizens’ rights in place, so they will not be affected by negotiations on the future relationship.
The then Minister also said that the clause would allow the Government to
“align the positions of EU nationals and non-EU nationals in relation to the deportation regime”.—[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 26 February 2019; c. 183-84.]
However, regulation 17 of the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 makes amendments to deportation thresholds, so it is unclear why any further transfer of power is necessary in the Bill.
Kate Green
Amendment 15, tabled in my name and those of my hon. Friends, aims to place the welfare of children at the heart of the way in which Ministers exercise their powers under clause 4. Children’s wellbeing is of central importance, both in UK law and to comply with our international obligations. We are a signatory to the UN convention on the rights of the child and to the global compact on migration, which contains 38 paragraphs on the welfare and treatment of children.
Domestically, the Children Act 1989 sets out the principle of the paramountcy of the welfare of children in matters relating to their care. Section 55 of the Borders, Citizenship and Immigration Act 2009 provides that immigration functions must be discharged with regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. With all that in place, the Committee may feel that we already have a framework that adequately protects children’s interests in immigration matters. However, the powers conferred on Ministers by clause 4 are very broad, and the way in which they are exercised could have a significant impact on children, whose best interests could be overlooked.
My amendment would embed protection against that happening as freedom of movement is ended. It would ensure that policies and rules introduced under the provisions of clause 4 can have no detrimental effect on the children of EEA and Swiss nationals who are resident in the United Kingdom, and would require the Secretary of State to publish and lay before Parliament a statement to explain why he or she is satisfied that that is the case.
The loss of free movement rights in the Bill means that some EEA national children will inevitably fall within the ambit of immigration legislation in the future. Some will be new arrivals to the UK, and others will have been here already but failed to secure the status to which they are entitled, becoming undocumented and subject to the compliant environment as a consequence.
Let me say a word briefly about the children who are at risk of being detrimentally affected, starting with those already in the UK who may none the less have failed to secure status. The number of such children could be substantial. The Refugee and Migrant Children’s Consortium estimates that there were as many as 751,000 non-Irish EEA and Swiss national children in the UK in 2019, but only 415,140 grants of status were made to children under the EU settlement scheme as at the end of March this year. Some of those children will be very vulnerable. My hon. Friends and I tabled new clause 58, which would secure status for looked-after children and young people leaving care, and I hope the Committee will have the opportunity to debate it in the days to come.
The impact of the Bill’s provision on those eligible for status who fail to apply is not limited to looked-after children alone. For example, parents may not understand whether their UK-born children are automatically British, whether they need to apply to register as British, or whether they should apply to the EU settlement scheme. The complexity of the system and the lack of access to advice means that some children may miss out on getting status or fail to obtain the highest status to which they are entitled. Some may be granted only pre-settled status and will need to be reminded to apply for settled status after five years or risk losing their right to remain in the UK.
Another group of children about whom I am concerned is those who have been in custody. Like adults, children applying to the EU settlement scheme are affected by time spent in custody. As well as not counting towards the five-year qualification period for settled status, periods in custody also reset the clock. Any child who spends time in custody will have to recommence their journey to qualify for settled or pre-settled status upon their release. That represents a troubling anomaly in the treatment of children who offend. Our criminal justice system generally takes the view that juvenile criminal behaviour should be treated differently from adult criminal behaviour, but that is not the case in relation to the EU settlement scheme. Is the Minister able to say how many children have been or may be unable to secure settled status as a result of that provision?
The examples I have cited are just that: examples. Any EEA and Swiss national children who do not secure status—those who were born here and those arriving in the future—could be affected by rules that may be introduced under the powers in clause 4. Hon. Members have already identified a number of potential harmful effects on EEA nationals, including children, as a result of the abolition of free movement and the imposition of new or more stringent rules. Some are reflected in the amendments and new clauses we have tabled and include the impact of fees and charges on citizenship applications; data-sharing policies; the application of income thresholds for the admission of family measures, including parents and children; no recourse to public funds conditions, which can affect children; the position of unaccompanied asylum-seeking children; and provisions relating to detention, deportation and removal. As we discussed earlier, schedule 1 may disapply certain provisions of EU law or EU-derived rights, and that, too, could affect children in some cases, such as those who are victims of crime or trafficking.
In all those circumstances, my amendment would provide assurance that the impact of any rules made using the powers in clause 4 would be subject to the requirement that they have no detrimental effect on the children of EEA and Swiss nationals resident in the UK, whatever led them to be here and whatever their status while here.
The second limb of my amendment refers to the requirement to produce a report to Parliament, which would impel the Home Office to develop processes to undertake a systematic assessment of the impact on children of any planned new immigration rules, which does not appear to happen routinely at the moment. Such an approach would also underpin a best interests approach to the application of immigration rules in individual decisions, buttressing the provisions of section 55 of the Borders, Citizenship and Immigration Act. Again, there is little sign that a systematic approach to children’s best interests is embedded in Home Office decision making, and the requirement for immigration rules to protect children’s rights and interests must be supported in the design of decision-making processes and appropriate staff training. I hope the Minister will accept my amendment.
Stuart C. McDonald
I apologise, Sir Edward, but in my excitement over the Henry VIII clause and various other delegated powers, I forgot to speak to amendment 22, so I will speak to it briefly. It is slightly different from the amendments I spoke to earlier, which sought to rein in the powers the Home Office is trying to give itself in clause 4. Amendment 22 is more about setting out some guidance as to how those powers should be used, and to set out some principles. I, and I dare say any MP, could come up with 10 or 20 principles by which we would like the Home Office to abide. I have discussed these proposals with Amnesty International and they are good examples of the sort of framework we should provide at the Home Office, rather than giving it a blank cheque to introduce whatever system it sees fit.
The first of the amendment’s five principles is that these rules should be exercised to promote family life. Why have we allowed the Government to deliver tens of thousands of what England’s Children’s Commissioner called “Skype families”, separated by some of the most draconian anti- family migration rules in the world? Why did we watch as the Home Office simply withdrew the concession that generally allowed families with children who had been here seven years to settle permanently? The amendment would lay down a principle that would guide the Home Office to exercise its delegated functions in a way that promotes family life rather than undermining it.
The second principle relates to appeal rights. Everyone in this room believes in the rule of law, a facet of which is that a person should have a ready and accessible means of challenging their removal from the country in which they have made their home. To disagree with that simple proposition would be to ignore some of the key lessons from Windrush.
Thirdly, we need to stop putting so many people through a tortuous process before they have security of residence in this country. If people have been here for years on end, especially during childhood, why are we charging them many thousands of pounds over a 10-year period, with application after application after application? It is a disaster for the families affected and a total waste of Home Office time and resource. Let people move on.
Fourthly, if people are here for family reasons and fall on hard times, do we really want to say that they will just have to suffer and that the safety net we provide for others in a similar situation should not be available to them? If people are here to accompany family, why are we saying to them that they have to put their lives on hold and that they cannot seek work? These features of our immigration system are regressive, counter-productive and, frankly, prehistoric.
Finally the fifth principle is about treating people fairly and not pulling the rug from under their feet once they are here. Of course, rules and policies will change from time to time, but it is highly regrettable that we allow people to come to the UK on a particular visa route and then change the rules so that they apply not just to new people coming in but to those who are already here, making it difficult, if not impossible, for them to remain. A perfect example was the change to the financial threshold for tier 2 visa holders seeking settlement. Imagine if someone has been here for three or four years and met all the salary requirements, only for the Home Office to then say, with a year to go, “This was the salary threshold you had before, but actually we have upped it by £5,000 or £6,000 or £7,000.” That is a retrospective rule change, and it is totally unfair to operate it in that way.
I could have added many more principles to those I would like to see guiding the Home Office. These principles say that if we are going to give the Home Office these powers, we want them to be exercised in the interests of family, the rule of law and stability, protecting against retrospective rule changes and providing financial security. For too long, the Home Office has disregarded those principles. It is time that we as MPs say that it should stop doing that.
Finance Bill (Sixth sitting)
Thursday 11th June 2020
(4 years, 6 months ago)
Public Bill CommitteesRead Full debate Finance Act 2020 View all Finance Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 June 2020 - (11 Jun 2020)
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Chair
With this it will be convenient to discuss the following:
Clauses 52 to 55 stand part.
That schedule 7 be the Seventh schedule to the Bill.
The Financial Secretary to the Treasury (Jesse Norman)
Clauses 51 to 55 come under the broad heading of a duty to submit returns in relation to the digital services tax. Having established that a group has DST revenues above the thresholds, it is appropriate for a group member, the responsible member, to provide Her Majesty’s Revenue and Customs with the necessary information to assess the tax. That is a sensible way of requiring groups to administer the tax. They need to submit a return to Her Majesty’s Revenue and Customs only when there is a potential liability, and they can stop doing so when it is clear that there will not be a future liability.
The group will be required to continue to submit a single return for each accounting period until an officer of HMRC provides a direction for the group to stop. The direction to stop will be given only when it appears that the threshold conditions will not be met. Put simply, the responsible member will be the point of contact between HMRC and the rest of the group. The effect is to make administering the new tax easier for the groups that will be liable for DST and for HMRC. It means that only a single return for HMRC will need to be produced when a group assesses its DST liability.
Clause 51 sets out which members of the group can be the responsible member and what can prevent a company from being a responsible member. Those are sensible precautions to reduce the burden of the tax as much as possible, recognising that it is intended to be a temporary tax. As we have already noted in Committee, groups are dynamic with members joining and leaving all the time. The best choice as the responsible member for a group at one stage may no longer be the best choice later. It is therefore necessary for groups to have the ability to change the responsible member, but where that happens, it is important that nothing is lost by the change of company, which is achieved by clause 52.
Clause 53 sets out the duty for a group to notify HMRC when it has met the DST threshold conditions set out in clause 45. Groups will have 90 days from the end of the accounting period in which they meet the threshold conditions to make the notification. It is important to say that we have listened to businesses in requiring notification after the period to which the notification relates, which gives groups the opportunity to collect the fullest information possible before making contact with HMRC to notify it of any liability.
As I have mentioned, groups are organic and details will change. Clause 54 sets out the duty for a group to notify HMRC when there is a change to the details registered under clause 53. Finally, clause 55 sets out the obligation of the responsible member to submit a return of information to HMRC.
The clause also introduces schedule 7, which provides further details about the obligations of the group and HMRC in relation to the return and ensures by that means that the figures and the return are complete and accurate. As the tax is new, a new set of rules is required to ensure that HMRC has the powers necessary to ensure that the correct amount of tax is paid by those from whom it is due. The new rules borrow and draw from existing concepts that will be familiar to many tax practitioners. The schedule does not grant HMRC any further powers in relation to the tax that do not already apply to other existing taxes. It grants companies the protections from those powers that they would expect from a fair and balanced tax administration. With that in mind, I commend the clauses and the schedule to the Committee.
Bridget Phillipson (Houghton and Sunderland South) (Lab)
We have no real issue with the clauses, as they are understandable in the context of the overall measures proposed.
I will draw the Minister’s attention to some technical concerns raised by the Institute of Chartered Accountants in England and Wales, which I hope he can address. In September 2019, it wrote:
“Given the complexities which a business could encounter in identifying and quantifying DST revenues, we are concerned that notification within 90 days of the accounting period is unhelpful. It would make sense to tie this notification into the deadline for filing accounts—6 months for a plc or 9 months otherwise”.
The institute also states that there should not be a need to notify HMRC in advance of the payment deadline, as
“businesses will require more time to review their accounting records, analyse and quantify revenues to decide whether they are”
required to pay under the tax. It recognises that such obligations would not pose a problem for larger digital companies, but would be more problematic for marginal cases requiring “advice and review”, so
“the notification deadline should be aligned with the payment date.”
Regardless of whether we believe that the measures go far enough, or whether the tax is set at an appropriate rate, we believe that its implementation and administration should be fair, to give businesses—in particular those that fall on the margins of the scope of the measure—adequate time to provide accurate calculations of what they should be paying. I invite the Minister to respond to those points to provide some clarification.
Robin Millar (Aberconwy) (Con)
As much as we have heard excellent contributions on matters of delivery and on technical matters, which are far beyond my knowledge of accounting and such, it strikes me that, as we are talking about the introduction of a new tax, this is the moment at which we should reflect on its meaning and on the purposes behind it.
The phrase that caught my eye is in clauses 53 and 54 —“Duty to”. My sense is that tax should not be, or should not only be, a catch-up exercise—chasing after developments in industry and the disruption brought to different sectors. Nor should it be about how much money we gather, although that is clearly of keen and close interest to us. It is also about the privilege of membership of a community and of participation in the UK economy. I find it interesting that it falls to a Conservative Government to introduce a tax such as this, which I consider to be progressive in its nature and intent.
In support of that, I pray in aid consideration of the principle of permanent residence, for example. Permanent residence was traditionally attached to the ability to trade in a nation, and tax therefore followed. If not trading in—that is, without that permanent residence—someone would be trading with, so coming under a different regime. Now, we have disruption in the digital economy, which means that we are trading in even though there is no permanent residence.
I also point to the development in the understanding of value over the years. At one point, value was measured in amounts of gold, so the question was one of setting a price, or offering gold in return for something; that was in essence a measurement of weight. The free trade argument slugged that one out with the mercantilist over many years, but the free trade argument won because it made the case effectively that the value of gold could be expressed in terms of the labour required to extract it. Discussions of value therefore moved from a physical object to the notion of labour.
As the Financial Secretary to the Treasury mentioned earlier, we are now talking about user-generated value. The notion of value itself has changed, and there are many debates about what value is and how it is best measured and captured. I suggest that they are extremely relevant to a discussion of tax, especially the introduction of a new one.
To look at tax solely in terms of being punitive, a “fair share” or a certain quantum, is to miss the point. Returning to the issue of leadership that was mentioned this morning, tax properly administered is surely more than a statement of how much money we can collect. It is more a statement of what we are trying to become—tax used as an instrument of government. What kind of society do we wish to become? It is not even, as might be suggested, a statement of how well we can co-ordinate with other nations. For this Government—I am interested in whether the Minister agrees with me—it is a statement of leadership, of what we are trying to become as a nation and, in particular, how we are trying to capture value through the proper encouragement of those industries as they participate in our economy.
Jesse Norman
Let me start with the interesting remarks made by my hon. Friend the Member for Aberconwy. I think he is absolutely right to notice and bring to public attention the question of the basis of tax. He is absolutely correct to call upon an idea of tax as a privilege and obligation associated with membership of a community, and to highlight that that notion of tax, which in some sense has always been implicit in the idea of tax, is being drawn upon in this wider sense of a UK user contribution. He is absolutely right about that.
All government derives from the consent of the governed, as the cliché goes; but in order to give that consent, the governed must feel not merely that the tax is fair and equitable in its own right, but that it springs from a conception of government that fundamentally puts the wellbeing of society at its heart. In that sense, it is about not just an economic or fiscal change, nor necessarily who we want to become, but, as my hon. Friend said, who we are. It will come to no surprise to members of the Committee that I think Edmund Burke—one of my great heroes—put this well when he spoke about a nation as a moral idea. That is why the nation has historically been the basis of taxation: the nation provides the consent and, therefore, the guarantee of future taxation, which can underlie effective long-term public spending.
Going slightly beyond that point, it is notable that when crisis hits a country, that country and its Government must draw on that moral capital in pulling the alarm cable and using the power of taxation to secure future borrowing or future public spending that may be required to address the crisis. There is a very deep way in which my hon. Friend is getting to the centre of a very important fact about human life in democratic society, so I thank him for that.
On the more mundane and practical, but none the less vital points that the hon. Member for Houghton and Sunderland South made about notification periods, I will simply say this: these are businesses that keep this data in real time. Of course, it is by no means only UK companies that are caught by this tax. The whole point of a UK user contribution is to capture companies’ revenue sources that might be derived from UK users and from that sense of community my hon. Friend the Member for Aberconwy mentioned, but without being resident as such in a formal tax sense in this country.
The data is immediate. The tax does not merely apply to UK companies. It does apply from the end of an accounting period—90 days after the end of an accounting period. We think that is a proportionate, appropriate and internationally recognised way of levying this tax.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clauses 52 to 55 ordered to stand part of the Bill.
Schedule 7 agreed to.
Clause 56
Meaning of “group”, “parent” etc
Jesse Norman
This group of clauses is again of a rather technical character and deals with some of the more detailed technical requirements of the new tax.
Clause 56 sets out the definitions of the terms “group” and “parent”, which are used to define the companies and revenues that will be taxable for the purposes of the digital services tax. It should be read along with clause 57, which makes it clear that the definition of “group” will be the same as that used for accountancy purposes. The choice of using accountancy definitions to define the group is, again, to reduce the burden of this new tax and to make it as straightforward and comprehensible as possible. Wherever possible, the Government are seeking to minimise the burden of administering the tax by using concepts that already exist and are in common use, if for other purposes.
Clause 58 sets out the conditions that determine if a group has remained the same in different time periods. That will be relevant when members of a group change through acquisition, disposal or otherwise over time. Like the changes to the responsible member, these everyday business transactions of companies joining and leaving groups should not prevent the tax operating correctly and this clause ensures that these changes do not prevent the tax from applying.
Finally, clause 59 sets out the treatment of two or more entities that are treated as stapled to each other and are subsidiaries of a “deemed parent”. This is a technical measure designed to enable the tax to work as intended in the widest possible circumstances. I therefore commend these clauses to the Committee.
Bridget Phillipson
These clauses are technical in nature and we have no questions to ask of the Minister.
Jesse Norman
No, I am entirely content with the summary that has been given by the hon. Lady.
Question put and agreed to.
Clause 56 accordingly ordered to stand part of the Bill.
Clauses 57 to 59 ordered to stand part of the Bill.
Clause 60
Accounting periods and meaning of “a group’s accounts”
Question proposed, That the clause stand part of the Bill.
Jesse Norman
These clauses, which are again of a thoroughly technical nature, provide more details on some of the aspects we have been discussing already in relation to the digital services tax.
Clause 60 sets the time period over which a group will account for revenues from relevant business activities for DST. This will usually be the period of account of the parent company of the group, which reduces the administrative burden as far as possible for these groups. They will be able to use figures they collect for other purposes wherever possible.
Clause 61 sets out how revenues and expenditure will be apportioned when a group’s period of account does not coincide with an accounting period. For example, many groups make up their accounts to 31 December each year. For 2020, their accounts will be for the 12 months to 31 December. However, for DST, their accounting period will only be nine months, from 1 April 2020 to 31 December. There is a mismatch in periods, and this clause enables the accounting figures to be used for DST by taking the correct proportion of those accounting figures.
Clause 62 sets out what is meant by
“revenues arising, or expenses recognised, in a period”
for the purposes of the DST legislation. Both of those terms mean the figures recognised in accordance with the applicable accounting standards for that period. Again, this demonstrates that the Government are seeking to minimise the burden of administration as much as possible by using figures that already exist for other purposes. Finally for this group, clause 63 sets out the definition of various terms relating to accounting standards for the purposes of the legislation. I commend these clauses to the Committee.
Bridget Phillipson
Once again, these clauses are technical in nature, and we have no further comments for the Minister in this area.
Question put and agreed to.
Clause 60 accordingly ordered to stand part of the Bill.
Clauses 61 to 63 ordered to stand part of the Bill.
Clause 64
Anti-avoidance
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 65 stand part.
That schedule 8 be the Eighth schedule to the Bill.
Clauses 66 to 69 stand part.
That schedule 9 be the Ninth schedule to the Bill.
Clause 71 stand part.
Jesse Norman
These clauses and schedules, again technical in nature, are also essential to the effective working of the digital services tax. Clause 64 sets out anti-avoidance provisions for the tax, and I make clear that the digital services tax has not been introduced to counteract avoidance of other taxes by digital groups. It is not about targeting particular businesses; it is a temporary measure designed to address failings in international tax rules. This clause provides HMRC with the power to counteract arrangements that may be designed or used to reduce the amount of DST that a group may have to pay. There are also safeguards within the clause that ensure the counteraction provisions do not apply when the tax advantage obtained was within the spirit of the rules.
Clause 65 sets out the process by which HMRC can collect unpaid DST liabilities from other members of the same group. This is particularly relevant to DST, as the companies liable to the tax may not be resident in the UK. Therefore, to assist HMRC in collecting unpaid debts, it will be possible for it to issue a notice to other members within a group it intends to collect the debt from.
Schedule 8 is introduced by clause 65, and provides further detail about how the notices operate. The combined effect of clause 65 and schedule 8 is to ensure that unpaid debts are collected wherever possible.
Clauses 66 and 67 set out at which rate, and when, interest will be due or required on DST payments that are made early or late, as the case may be. This will mirror the rates and timings found in corporation tax, and will therefore be familiar to many practitioners.
Clause 68 sets out that any DST liability is recoverable as a debt due to the Crown, the effect of which is to ensure that HMRC can collect any amount of DST that goes unpaid.
Clause 69 simply introduces schedule 9, which sets out provisions for minor consequential amendments in other enactments that are required as a result of the introduction of the DST. Primarily, these relate to interest rates, penalties and other tax administration processes.
Clause 71 sets out the meaning of various key terms used in the Bill relating to DST, and I commend the clauses and schedules to the Committee.
Bridget Phillipson
We have no substantial issue with these clauses, and obviously we welcome the inclusion of an anti-avoidance provision. As has been evident throughout the course of the discussions in Committee on this section of the Bill, it is a complex area, and we know that many large digital companies use intricate methods with considerable skill in order to reduce their tax liability. I mentioned earlier that some stakeholders have referred to the need for extra capacity at HMRC to make sure that this tax is properly administered and its impact properly accounted for. How confident is the Minister that anti-avoidance strategies will be adequately detected when the overall difficulties in administering the tax are taken into consideration?
Moreover, the Government’s website states that HMRC must counteract such arrangements by making such adjustments as are just and reasonable. The Minister touched on this in some of our earlier discussions, but I would be grateful if he could elaborate on exactly what a just and reasonable adjustment for tax avoidance arrangements entails. As I have already set out earlier today and in other debates we have had, the scale of tax avoidance practices by digital multinational enterprises is large and the methods that they adopt are intricate. The Government’s record so far in this area does not inspire a great deal of confidence on the Opposition Benches, and I would be grateful if the Minister could allay some of our concerns in this area.
Jesse Norman
I am grateful to the hon. Lady for raising those questions.
The first question she raised was about extra capacity. I think we touched on this already, but it is worth just saying that HMRC already has a digital services team in place. The tax requires, in the first instance, companies to come forward with a process of self-assessment, which HMRC can then assess and view. From that point of view, this is a tax that is designed to minimise administrative burdens, not merely on the groups being taxed but on HMRC itself.
It is also worth saying that one of the extraordinary aspects of the past few months has been that HMRC has been able to show itself remarkably flexible in the way it has operated, and this might be a moment to pay due tribute in respect of that. Although it is an enormous organisation, it has been very flexible in several different areas. The first was in reconfiguring its business to be able to deal with staff absence in the face of coronavirus, which has been extremely effective. The second has been in being able to configure its services in order to match the evolving demand. A classic example would be that many services that were being handled by telephone interactions are increasingly being handled by text interactions or chats. Many services that were being handled through office phone interactions are being handled through phone interactions at home.
HMRC has been very flexible in that regard. Almost the most salient aspect is that it has been able to bring a succession of schemes into play, such as the furlough scheme, the self-employment scheme and the statutory sickness pay scheme. That flexibility of organisation has allowed it to move incredibly quickly to put those schemes in place and thereby support the lives and livelihoods of millions of people. If someone had asked me at the beginning of year whether I would be publicly accountable for an organisation that would end up supporting the lives and livelihoods of some 10 million to 11 million people, I would have been very surprised indeed, but that is what has happened. I pay great tribute to the officials and staff at HMRC, and of course the Treasury, for their public spirit and service.
The hon. Lady asked how confident I am about anti-avoidance. Of course, anti-avoidance is an ever shifting and evolving pattern, and it is right to raise that question. If the past is any guide to the future, there will prove to be aspects of avoidance that are not contemplated at the moment and against which we may have to take future care, but the Bill provides a very broad capacity for HMRC to counteract arrangements that are designed to reduce the amount of tax that the group may have to pay through the digital services tax.
Bridget Phillipson
I beg to move amendment 7, in clause 70, page 53, line 8, leave out “before the end of 2025” and insert “within a year of Royal Assent and annually thereafter”
This amendment would require the Government to report on the DST annually.
The Chair
With this it will be convenient to discuss new clause 11—Digital Services Tax: review of effect on tax revenues—
(1) The Chancellor of the Exchequer must make an assessment of the net effect on tax revenues of the introduction of the Digital Services Tax and lay a report of that assessment before the House of Commons within six months of the passing of this Act.
(2) This review must also include an assessment of the revenue effect of the Digital Services Tax on tax payable by the owners and employees of Scottish Limited Partnerships.
This new clause would require a Government assessment of the effect on tax revenues of the DST, and in particular the change in revenues associated with Scottish Limited Partnerships.
Bridget Phillipson
Clause 70 would require the Treasury to conduct a review of the digital services tax before the end of 2025. Our amendment 7 would require a report to be provided annually. It has become clear from our debates in Committee today that the tax poses a number of different challenges to businesses and Government alike. That is why we have tabled an amendment that calls for a yearly report on the tax.
Earlier in our discussions, I highlighted that there is a substantial gap between the revenues of multinational digital companies and their tax liabilities, and that they are ultimately estimated to be underpaying on what is required. Even the Government’s modest predictions of what the tax will generate are in question. I appreciate that, as we discussed earlier and this morning, it can be difficult to arrive at such estimates with any degree of certainty. That said, the figures for the amounts that the Government intend the digital services tax to generate are quite modest.
I refer again to the OBR’s assessment of the Government’s costings methodology in 2018. It said:
“Every stage of this costing is uncertain. We have assigned uncertainty around data as ‘high’, uncertainty around behaviour as ‘medium-high’ and, given the complex multi-stage costing methodology, uncertainty around modelling as ‘very high’.”
Part of that is due, the OBR states, to behavioural responses, which could include
“reclassifying revenue currently in scope as being out of scope, particularly for groups with mixed business models; altering business models to generate new revenue streams that are out of scope; and profit shifting. The costing allows for attrition rising to 30 per cent by 2023-24.”
It is clear that the already limited takings of this tax could be reduced further by the practices of digital companies to reduce their liabilities. Yearly reporting would confirm whether such concerns are justified and would highlight what more the Government need to do to ensure that such companies pay a fair and appropriate amount of tax. A detailed yearly report would also help us to understand the distributional impact of this tax—whether, as the Chartered Institute of Taxation notes, it under-taxes businesses with high profit margins and over-taxes those with low profit margins.
The merits for regular reporting are also made clear in the Government’s response to their consultation in July of last year. They noted that respondents to the consultation believed that thresholds for the tax should be reviewed and potentially increased over time, given that the digital sector is characterised by rapid growth. Again, as we heard from Government Members, the pace of change in technology requires us to be fleet of foot in our response. Does the Minister not agree that the arguments put forward in his own Government’s consultation make the case for more regular reporting, and even a review of these measures?
Despite the strong justification for regular and transparent reporting, the Government have committed only to a review by 2025. We find it strange that they are unwilling to consider a more regular review of what is, to put it quite lightly, a contentious tax, even if one accepts the principles underlying it, as Opposition Members do.
As I have said throughout the debate, the times we are living through demand much more ambitious action. It is imperative that those with the broadest shoulders—including the digital giants, who are doing pretty well out of this crisis—bear a responsible amount of the burden. I am sure that the Minister would acknowledge that that reflects public sentiment on this issue, which has shifted over time; that is why the Government felt capable and confident about bringing forward this tax in the first place.
Perhaps the Government’s unwillingness to report regularly on the tax is a case of managing expectations, as highlighted by the Chartered Institute of Taxation, which says that the measure is not
“aimed at stopping profits arising in the UK being shifted by multinationals out of the UK to tax havens”,
adding that
“it is unlikely to raise amounts that materially affect the country’s finances, particularly in the context of the amounts being spent on COVID-19 measures.”
Therein lies the importance of yearly reporting, so that we can see how much these companies pay in tax, and whether more needs to be done.
That brings us to some wider issues around tax transparency and the Government’s approach to supporting companies during this crisis. We appreciate that the Government had to respond with real speed in making sure that people stayed in work and that our companies remained afloat in order to emerge from this period. However, at the same time, there can be no excuse for the level of tax avoidance in the UK in recent years. The vast majority of businesses do the right thing, including the many on our high streets that are so well respected and are very much regarded as part of the community, providing a much broader service to the public. I think there will be a growing public expectation that businesses should see that there is fairness within the system.
That is why we have also been urging the Government, in the measures brought forward both here and more broadly, to consider issues around fair tax practices, environmental standards and preventing share buy-backs where pandemic-specific Government and public support is offered to particular industries. One need only look at the action taken by the Labour Government in Wales to understand that it is possible for the Government to bring forward additional measures to safeguard public money, so that we do not see abuse in this area and that we see fair and just tax practices.
We discussed international co-operation and the need for a multilateral response. The Minister will be aware that my hon. Friend the Member for Liverpool, Walton (Dan Carden), who is also a member of our Front-Bench team, has raised with him in parliamentary questions some issues around building support at an international level for comprehensive and effective reform of the taxation of multinationals, instead of advocating partial patch-up measures targeting only the very large, highly digitalised companies, while continuing to adopt unilateral measures such as the diverted profits tax.
The issue around tax transparency specifically is that the UK will not allow the OECD to publish aggregate country-by-country data. I am aware that the Minister said in response to my hon. Friend that that was because of technical deficiencies within the system. I would be grateful if he said more about that. We all want to understand any efforts being made by some of these multinationals to avoid paying their fair share, and we all want to make sure, at this time of national crisis, that our public services can rely on the funding they need to get through this time.
If the takings of the tax turn out to be as limited as some might fear, it would of course further the argument that we need to implement more wholesale and ambitious measures to tax multinational digital enterprises. That is the approach that the Opposition will continue to call for.
I also want to highlight a concern raised by many stakeholders, including the Chartered Institute of Taxation, that there is no sunset clause in the legislation. Does the lack of such a clause suggest that the Government are willing to maintain this measure indefinitely, despite its imperfections; or will they continue to keep it under review? If the latter is the case, it strengthens the argument for annual reporting.
Finally, the new clause tabled by the SNP appears constructive. In many ways, it is similar to our amendment on assessing the effect of the tax, although perhaps within a timeframe within which its impact will not have been fully felt. Although we are sympathetic to the proposal, I should be grateful to hear a bit more about the aspect of the new clause that relates to Scottish limited partnerships.
Jesse Norman
I very much appreciate the hon. Lady’s comments. I will speak to the amendment and to clause 70, as well as to the SNP’s new clause 11.
Clause 70 requires the Government to review the DST and submit such a review to Parliament in 2025. It is a Government priority to secure an appropriate global solution to the corporate tax challenges posed by the digital economy, as we have discussed. As we have also said, once such a solution is in place, the DST will be removed.
Should the DST remain in place in 2025, the review will consider whether it continues to meet its objectives and whether international reform means that it is no longer required. However, it remains our strong preference to agree and implement an appropriate global solution, and to remove the DST as soon as possible.
The hon. Lady raised a point about the absence of a sunset clause. The 2025 review allows a context in which the Government can have an in-the-round consideration of whether this tax—were it, unexpectedly, still on the statute book—was doing its job and if it is, how it could be improved, and if it is not, where it could be tweaked to further advantage.
The amendment would require the Government to produce a review of DST annually rather than in 2025. It is not clear what the hon. Lady means by a review, but there are already very substantial processes in place. HMRC regularly reports on the taxes that it is responsible for collecting and DST will be no exception to that. It will be possible for parliamentarians and the public to scrutinise what tax has been collected by this measure. It is a new tax, so there may be some variety or it may come in higher or lower than expectation.
A review in 2025 as a backstop ensures that, should the DST remain in place at that point, its continuing relevance can be considered against the relevant circumstances at the time. However, the Government keep tax policy under continuous review through the annual budget process and, as I have said, it is our strong preference to agree and implement an appropriate global solution.
Bell Ribeiro-Addy (Streatham) (Lab)
The Minister said that tax policy was constantly under review and that if things changed, so would the legislation. What is the logic against an annual review? Is that not more flexible than waiting until 2025?
Jesse Norman
A review in the formal sense is a substantial undertaking. It is something that is done periodically to assess the viability or effectiveness of taxes. Given the amount of scrutiny that exists on existing tax, and given the fact that this is a new tax, that scrutiny will be carefully exercised. No doubt it will be scrutinised in Parliament as well, through the usual channels.
The case for a review comes when there has been a period of time in which one can establish and look at the track record and effectiveness of the tax. As I have said, however, we do not expect it to be on the statute book, because processes are under way internationally through the OECD that we expect to bring about a global solution that will be satisfactory to us and to the other countries involved.
Bell Ribeiro-Addy
I am trying to understand what the Government’s understanding of temporary is. How long is temporary—five years? The Minister has said that it is a temporary measure. I understand what he is saying about a review being a substantial undertaking, but if the measure is meant to be temporary, do the Government have set guidelines about what they think temporary is?
Jesse Norman
It is not often that I am invited to engage in philosophical speculation on the nature of time. Temporary, as far as I am aware, does not have a definition in law. We are framing the measure in the context of currently existing practices and discussions within the OECD. We expect those to come to fruition in the next five years.
As a long stop date, we have left a review in 2025 in place, but of course the Treasury may decide to vary that, or indeed the Government may decide to take it off the statute book, if such a process is forthcoming. The hon. Lady will be aware that taxes have a tendency to mutate. When the income tax was introduced by William Pitt, it was allegedly temporary, but it was temporary only for a while and then came back. It is a good point, however.
I will turn to a couple of wider points mentioned by the hon. Member for Houghton and Sunderland South. She talked about tax avoidance, and she will be aware that, as I have touched on, the Government have done a great deal to tackle and address tax avoidance; there are several such measures in the Bill, which I thank the Opposition Front-Bench team for supporting. Indeed, it is worth noting that the tax gap has continued to fall, which reflects the excellent work of successive Administrations. That is over and above the passage of a variety of measures designed to cut down on tax avoidance and evasion and, of course, an anti-promoters strategy, which is currently the subject of consultation with the public and which we hope to bring to fruition later this year. A series of initiatives is already under way, in addition to much previous work in that area.
On the issue of country-by-country reporting, the hon. Lady will be aware that we already, with the strong encouragement and support of the Government and our predecessors, have private country-by-country reporting, which was an important move forward. The difficulty is that public country-by-country reporting requires a measure of international consensus. If it does not have that, it runs the risk of setting all kinds of incentives that might actually have the effect of undermining the policy and the transparency that we move to, so it is an evolving position in this country, as in the OECD. We hope that the general move towards more integrated global solutions and greater transparency is one that we can reach in all those areas.
The SNP new clause 11, which would require the Government to report to the House within six months of the Act passing—
The Chair
Order. I am sorry to interrupt, but unfortunately I did not see Stephen Flynn indicate that he wanted to speak. Would the Minister mind if I brought him in first?
Stephen Flynn (Aberdeen South) (SNP)
Thank you, Ms McDonagh, and I thank the Minister for allowing me the opportunity to speak to new clause 11, of which there are two parts. The first relates directly to the digital services tax and the second relates to Scottish limited partnerships in relation to the DST. I shall come to that in due course, to address, I hope, the concerns of the hon. Member for Houghton and Sunderland South.
With direct reference to the new clause and DST, the Minister has taken great pains to stress that this is a new tax, and because of that we need to take things slowly. However, I feel there will still be a strong element of cynicism in the public domain about how effective the tax will be, which his why we have tabled new clause 11. Such cynicism would certainly be justified. Earlier we heard about Amazon as an example of a large multinational corporation that benefited from the lack of direct taxation. For instance, last year I believe it paid £220 million in direct taxation in the United Kingdom, despite revenues in excess of about £11 billion. That is neither sustainable nor fair.
As to fairness, we heard at great length earlier about online retail’s impact on high streets across the United Kingdom. We need not go far to see that many shop fronts are now derelict because of the change in consumer habits. I suggest that those habits are unlikely to change, particularly for people in the younger generations who have become accustomed to sitting in the comfort of their home ordering what they want, and getting it delivered in a day or two.
That being the case, we need to create an element of fairness, which will allow revenue to be gained and income put back into the system. I imagine Members can think of many avenues for spending that revenue, but perhaps it could be spent to provide local authorities with the finance they require to invest in city centres and transform them into something better. The issues relating to DST have perhaps never been as relevant as they are now, given the prevalence of online retailing.
We also need to be mindful during the pandemic of the fact that many companies in Scotland and the United Kingdom face an extremely bleak future, and will still have to pay their fair share, as they have always done. It is unacceptable for us to be in such a situation. That is why I welcome the measure, although it could perhaps have been dealt with in a way that sought to bring in more revenue. Many companies will be in extremely challenging circumstances, through no fault of their own, and we must have a system that provides fairness, as they would expect.
Netflix was discussed earlier. I understand, as do Members on both sides of the Committee, that it might not have the same financial burden of payment as Amazon. I did not ever think I would use this phrase in the Houses of Parliament, but rather than “Netflix and chill” the expression should surely be “Netflix pay your bill.” The reality is that it has coined it and has not had to pay back. No fair-minded person can support that.
I appreciate the Minister’s comments and understand his position: we need to see where the OECD is coming from in its approach. Ultimately we need a global, sustainable position on online taxation; everyone recognises that, but the Government have been slow in getting to the point where they are now, and they could have gone further. The new clause allows them to reflect on where they will be. As I have said, public cynicism will continue to be rife.
That brings me to the second element of the new clause, which relates to Scottish limited partnerships. As all those present are aware, the future of SLPs has been contentious. My colleagues in the Scottish National party have on numerous occasions suggested to the UK Government that changes need to be made, and that SLPs need to be brought under control. After all, they are not taxable in the UK if none of their members is resident there. There is a concern—a justifiable concern—that SLPs may be used to avoid DST. That is the crux of where we are coming from and it is an extremely reasonable concern, given the propensity of SLPs to be used for tax evasion in the past.
I do not wish to suggest that Amazon or the like will follow the pathways that many of the organised crime groups have in trying to funnel money through SLPs, because that is obviously not the same argument to be having, but the reality is that SLPs and the framework that they provide would allow for avoidance to take place, and we should all want to do everything that we possibly can to limit that.
Up to now, I think it was reasonable to say that the Government’s record on SLPs has not been good enough, to put it mildly and candidly. I hope that a recognition of our proposal in new clause 11 with regard to SLPs will be taken on board, out of a commitment to end the sorry practice of those partnerships.
Jesse Norman
I thank the hon. Gentleman for his contribution to the debate on this clause and for the points he has made.
It is worth pointing out a couple of things. First, I have talked a little about the Government’s record on issues of avoidance. The hon. Gentleman talked about cynicism. What is interesting is that the public are perhaps more discerning than he thinks, and I do not think that there is cynicism about this issue. In fact, although I have not looked at any polling on this issue, I think the public are generally highly supportive of this measure. It is not a tax on retail; it is a tax on user-generated content. However, the understanding that there was a problem in the application of international tax rules and that it needed to be addressed is widespread, and I think there is a recognition—for those who would get their heads around this tax—that this measure is part of a response to that problem, as indeed is the wider OECD programme.
Stephen Flynn
I perhaps did not convey it correctly, but I think the cynicism will derive from the fact that the public will not regard the levels that are being put in place as sufficient to bring in the revenue that they should. These companies have benefited exponentially in recent years, and the figures that the Government expect in terms of revenue pale into insignificance compared with the revenue that these companies ultimately bring in. I think that is where the cynicism will arise.
Jesse Norman
There are two points here. One is the question of what the right level is. As we have discussed, this tax is designed to raise what by any other standard would be a pretty substantial amount of revenue— £2 billion over five years—and at the same time to establish a category of taxation that, in and of itself, is an important category. We have talked about some of the wider philosophical implications of that with my hon. Friend the Member for Aberconwy as well, so I think there is recognition of it.
Of course, it is also worth saying that, in relation to Scottish limited partnerships, the Government have recognised the problem, we have consulted and considered, and we are framing a legislative response to it. So there is also recognition of that problem.
The effect of the new clause would be to require the Government to report to the House, within six months of the Bill’s passing into law, the effect of the DST on tax revenues, and in particular the effect on the tax payable by the owners and employees of Scottish limited partnerships. Of course, this is a tax on groups, not a tax on individuals, whether those individuals are employees or owners; therefore, that is where the tax will fall.
In addition, DST payments will not be required until after the end of the relevant accounting period for each liable group, and thus payments will not be required until 2021. So the report that the hon. Gentleman describes would not contain any useful information. The DST’s reporting deadlines mean that very few groups would have needed to register and no groups would have been required to send in their return by that point. The report would not provide useful information about DST receipts.
We have talked about the importance of reporting and reviewing, but the effect of the new clause would be to pass a requirement to report with very little information and with very little purpose to it. I therefore commend clause 70 to the Committee and urge it to reject amendment 7 and new clause 11.
Bridget Phillipson
I would like to press amendment 7 to a vote.
Question put, That the amendment be made.
Finance Bill (Fifth sitting)
Thursday 11th June 2020
(4 years, 6 months ago)
Public Bill CommitteesRead Full debate Finance Act 2020 View all Finance Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 June 2020 - (11 Jun 2020)
The Chair
I remind Members to please respect social distancing guidance. As you are aware, tea and coffee are not permitted in Committee rooms. Please ensure mobile phones are turned off or switched to silent during the sitting. As I have said before, the Hansard reporters will be grateful if Members email their speaking notes to hansardnotes@parliament.uk.
Clause 38
Digital services tax: introduction
Question proposed, That the clause stand part of the Bill.
The Financial Secretary to the Treasury (Jesse Norman)
Thank you, Mr Rosindell. I am grateful to all members of the Committee for joining us this morning; I am also grateful it is not too hot outside. It is a rare moment in Parliament when one gets to introduce a new tax—the digital services tax—on to the statute book. With the clauses grouped together, it is appropriate to spend some time in my opening remarks outlining the overall architecture of the tax and how it is designed to work; then we can pick up specific details in the clauses as we come to them.
Clauses 38 to 44 introduce legislation to enact the digital services tax, and they set the scope of this legislation. DST will levy a 2% charge on the revenues that groups receive from providing specific digital services to UK users. The specific services in scope of the charge are search engines, social media, and online marketplaces. I will explain later why those three services are in scope of the new tax. DST will apply only to groups with annual global revenues from services of more than £500 million. It will then be charged on the revenues only where they are attributable to UK users, and only on amounts above £25 million.
An exemption will exclude online financial services marketplaces from the definition of an online marketplace. Businesses making low profit margins on their in-scope activity will be able to pay the tax at a reduced rate, while loss makers will pay nothing; that will minimise the distortions that a tax on revenues can create. To further reduce those distortions, a relief for certain cross-border transactions is also included. It will reduce by half the revenues subject to DST where those revenues are derived from an online marketplace transaction between a UK user and a user from a jurisdiction that also levies a DST. As this is a new tax, there are also extensive provisions to ensure the framework of the tax works as intended. These draw on many existing tax concepts to reduce the burden of implementing the new tax for what we hope will be a limited time.
The digital services tax was announced at Budget 2018 as a response to changes brought about by the rapid development of our digital economy. That economy brings many benefits, but it has posed a significant challenge for international corporate tax rules. Under current rules, digital businesses can derive significant value from UK users, but in many cases they pay little UK tax because international corporate tax rules do not recognise the user-generated value when allocating the right to tax profits between jurisdictions, so undermining the fairness and sustainability of our tax system. It is therefore now widely accepted that the rules require updating.
The Government remain at the forefront of international efforts to secure a comprehensive long-term solution to the issue, and we are fully engaged in discussions with OECD and G20 partners. Although we welcome recent progress towards a global solution, there remain important and difficult issues to resolve, so the Government are acting now to address those widely held concerns in a fair and proportionate manner. DST is a temporary measure, until appropriate global reform is in place.
As a temporary measure, DST is targeted at those business models that rely most significantly on user-generated value and that place the greatest strain on current corporate tax rules. It is the Government’s judgement that these services are search engines, social media platforms and online marketplaces. Of course I recognise that a broad range of digital services could be said to derive value from their users, and I am aware that some hon. Members have called for the scope of DST to be extended to include services such as media streaming. However, the services in scope of this tax are those that rely most significantly on user participation in the creation of value: for example, while media streaming platforms may utilise user contributions in the form of reviews or recommendations, users of a social media platform often create the content that is shared across the platform, and users of an online marketplace provide the market liquidity required for the marketplace to function. Also, while we are engaged in OECD discussions about finding a long-term global solution and exploring the case for broader reform, we judge that it would not be appropriate to implement a temporary tax on a broader basis.
DST follows the recommendations of the OECD’s 2018 interim report. Targeting DST at those services that derive the greatest value from their users minimises the distortive consequences of a tax on revenues and minimises the risks of introducing a temporary measure before global reform is agreed. That will ensure that DST is proportionate, while still raising up to £2 billion over the next five years. That in addition to the UK taxes that digital businesses already pay and, as I have said, reflects the value they derive from UK users.
I will now summarise the clauses that form this part of the Bill—clauses 39 to 44. Clause 39 sets out that DST will apply to all revenues that arise in connection with in-scope digital service activity. That is deliberately a very broad test; it ensures that however these businesses make money from their in-scope activity, that revenue will be subject to the tax. The clause also sets out that revenues should be apportioned on a just and reasonable basis when they are not wholly in connection with an in-scope activity.
Once a group’s digital services revenues have been established, the next step is to determine how much of those revenues is attributable to UK users. Clauses 40 and 41 set out the five cases where revenues are attributable to UK users. The first three cases deal with the specific types of revenue that online marketplaces may receive. The first case concerns the revenues that a marketplace earns from facilitating transactions between users; this will include a marketplace’s commission, for example. These revenues are attributable to UK users whenever a UK user is a party to the transaction. It does not matter whether the UK user is the buyer or the seller, or which user paid the revenue; where there is a cross-border transaction between a UK user and a non-UK user, all of the marketplace’s revenue from that transaction is regarded as attributable to UK users, although this may be subject to cross-border relief.
The second case concerns revenues that arise in connection with accommodation and land in the UK—for example when a user books a holiday let on a marketplace. These revenues are attributable to UK users when the property is in the UK. Where the property is overseas, the revenue will only be UK digital services revenue when the purchaser is a UK user. Some marketplaces charge users to list individual items for sale; under the third case, those revenues will be treated as attributable to UK users whenever the user listing the item is a UK user.
The last two cases apply to social media services and internet search engines, as well as to online marketplaces. The fourth case deals with online advertising revenues. These revenues are attributable to UK users when the advertising was viewed by a UK user; the focus is on the viewer of the advertising, not on who paid for it. The fifth and final case is a catch-all, to include revenue that is not trapped by any of the other rules but that is received in connection with UK users. This will cover any other type of revenue earned by social media services and search engines—for example, subscription fees.
Clause 42 defines each of the services in scope of DST. The tax will be charged on the revenues that businesses earn from providing a social media platform, search engine or online marketplace to UK users. The definitions are designed to be targeted and as clear as possible. They have been carefully drafted after extensive consultation periods with business to ensure that they apply as intended. Alongside the three named services, some businesses facilitate online advertising on other websites. The clause ensures that revenues from that source would also be subject to DST when the advertising service derives a significant benefit from operating one of the three named services.
Clause 43 clarifies the meaning of “user” and “UK user” for the purposes of DST legislation. Clause 44 sets out the exclusion of online financial marketplaces from the definition of online marketplaces. The highly regulated nature of financial services limits their ability to engage with users in the ways that other marketplaces do. As such, the clause ensures that they are not subject to DST.
Together, clauses 38 to 44 set out the scope of DST. The digital services tax is a clear signal of the Government’s commitment to ensuring that tax rules reflect the development of our modern economy. Ultimately, as I have said, our strong preference is for a global solution, which will be the most comprehensive and enduring way to address concerns about the current corporate tax rules. Until such a solution is in place, however, DST will ensure that digital businesses pay UK tax that reflects the value they derive from UK users. I therefore commend the clauses to the Committee.
Bridget Phillipson (Houghton and Sunderland South) (Lab)
It a pleasure to see you in the Chair, Mr Rosindell. Like the Minister, I will use this opportunity to lay out our broad views and concerns about the operation of the digital services tax. We will pick up some of the technical issues with the clauses as they emerge later.
We welcome the principle behind the introduction of a digital services tax. It is regrettable, if not unsurprising, that it has taken the Government so long to get to such a measure, given the wider inertia when it comes to making sure that multinational companies pay their fair share of tax. The gap between the profits that digital companies derive from UK users and how much they pay in tax is stark. That fact has been evident for some time and is recognised by Labour Members, which is why for years we have consistently pressed for a far more ambitious approach.
It is not right that, at a time when high street shops are struggling in an unprecedented way, the likes of Amazon have been allowed to pay a much lower tax rate than British bookstores and other businesses of a comparable nature. Our local high streets are incredibly important; they are the backbone of our local economies. Many family-run businesses have found this time incredibly difficult, but they also have many long-standing problems because of the way they have been undercut by some of these big players, which do not have the same overheads or level of corporate responsibility and do not make the same impact in our communities. During this crisis, many of our local businesses—our small businesses on the high street—have adapted to do all they can to make sure that vulnerable people receive deliveries and support, and that they are open as much as they can be within the guidelines. It is only right that we make sure that the bigger players with large profits make a contribution too.
There is still much unfairness built into the system. As constituency MPs, we only have to visit the businesses on our high streets that have been operating for many decades to appreciate the scale of disillusionment that many of those family-run firms feel about the lack of fairness in the system and the need for change. The economic crisis we are facing only strengthens the call for action because it has compounded the impact on our high streets, which have struggled and will continue to struggle. It is such a shame that, in many of our communities, affluent and perhaps less affluent, there are clothes shops that had their shutters down even before we felt the impact of the lockdown.
Vibrant local high streets are central to a sense of pride in the community and to making sure that we can support local jobs and businesses. We want to do everything we can to support that, but hand in hand with the pressures facing many small businesses during this time, there has been an unexpected boon for digital and tech giants, as we have all had to adapt to life in different and difficult circumstances during the lockdown. It is only right that we ensure that those with the broadest shoulders help to bear the cost of the recovery that we must now achieve as a country. It is more important than ever to make sure that those big players are taxed properly, reasonably and fairly.
Abena Oppong-Asare (Erith and Thamesmead) (Lab)
I completely agree with my hon. Friend’s comments. Does she agree that large companies such as Amazon are unlikely to be substantially affected? The Bill aims to support start-up companies, but it does not go to the heart of addressing big digital companies that get away with not paying enough tax.
Bridget Phillipson
My hon. Friend makes an important point. That is one of many concerns raised by stakeholders, and an issue that I will be raising further with the Financial Secretary during the course of my contribution. As the he outlined, the measure does not capture media streaming services either, and I intend to say a bit more about that in due course.
The broad campaigning support that we have seen right across the House on issues of tax transparency, led primarily by my right hon. Friend the Member for Barking but with considerable support from Government Back Benchers, demonstrates the appetite both within this House and outside for greater transparency in this area. Tremendous work has been done by the all-party parliamentary group and by the Public Accounts Committee, led previously by my right hon. Friend the Member for Barking and subsequently by my hon. Friend the Member for Hackney South and Shoreditch (Meg Hillier), which has continued to press the need for greater transparency in this area. It wants the Government to act, but it also recognises the need for greater multilateral action. I know the Financial Secretary touched on that point and I will come back to it later.
The Opposition understand the difficulties with multilateral action, but we think that the Government should provide a greater degree of leadership in seeking to resolve the problem. Another reason why the yield as outlined might be so low is the rate at which it is being set: it is among the lowest in Europe. I invite the Financial Secretary to explain why the Government have adopted such a cautious approach when other countries are going further. How did he arrive at the figure? How did he and the Government determine the level of the tax? What assessment was made not just of the yield and the difficulties with determining it, but of whether it is an appropriate level? Have other stakeholders and groups made representations on the level at which the tax has been set?
The modest nature of the measure becomes clear when we consider what some of the tech giants might actually have to pay under the tax. The Minister may well be aware of the research by TaxWatch UK, which estimates that Facebook would face an increased tax bill of £39 million despite estimated UK venues of almost £2.3 billion. Google would pay slightly more: around £168 million, based on estimated UK revenues of £9.3 billion.
Beyond the small impact on the companies to which the tax applies, there is the question of which companies will not be affected by the tax. That comes to the point made by my hon. Friend the Member for Erith and Thamesmead. Many digital businesses such as Amazon, which blend their activities, will be unaffected by the measure outlined by the Minister; nor, as TaxWatch UK has illustrated, will it apply to Apple’s hardware business, Microsoft or Cisco Systems, none of which involve social media platforms, search engines or online market places.
As I said earlier, my right hon. Friend the Member for Barking has done so much work in this area. I am aware that she pressed the Financial Secretary earlier this year to extend the scope of the digital services tax to include streaming services such as Netflix, which are not included in the measure, and he set out some of the Government’s concerns about broadening its scope. I want to provide a bit of background on the operations of Netflix, on which many of us have come to rely in a much greater way during the lockdown period. Many online streaming services have no doubt seen a real boost at a time when we are all trying to find ways to spend many an hour and entertain our children in the absence of any form of proper childcare.
Netflix’s estimated revenues from UK subscribers was £860 million in 2018, based on analysis from TaxWatch UK, which provides an analysis of Netflix’s corporate structure showing that the company has implemented a similar tax avoidance structure to those used by many other multinational companies operating in the digital sphere. Revenues are not collected in the country where they are made; instead, customers are charged from an offshore company, and profits are then moved from the hub company to a tax haven through the use of an intra-company transaction. Netflix’s historically low profit margins mean that the scale of any tax avoidance will be much lower than that of many other well-known companies that employ similar tactics. TaxWatch UK has argued that it is relatively easy to calculate the revenue of Netflix in the UK: there are surveys of TV usage that tell us how many subscribers it has in the UK, and Netflix publishes data on average revenue per subscriber, which is something that I imagine has grown considerably during this time.
That returns us to the issue of fairness. Despite receiving support from Government, many high street businesses have struggled and will continue to struggle for a prolonged period, while other companies have potentially seen a big increase in their revenues during the crisis. The Opposition urge the Government to consider whether the measure is adequate. As argued by my right hon. Friend the Member for Barking, extending the scope of the tax could feasibly bring other streaming platforms, such as video game streaming platforms, under the ambit of the tax. That would improve its takings and ensure that all companies pay their fair share.
The pattern of profit shifting displayed by Netflix, which I just outlined, reflects practices adopted by others. It is clear that the current system for taxing streaming services is not working. The proposed measure would go at least some way to resolving this, but it is not adequate.
I am aware of the Financial Secretary’s response earlier this year to my right hon. Friend the Member for Barking, disputing the practicability of widening the scope of the tax, but I urge him to look again at the issue, or at the very least to consider other means at the Government’s disposal to ensure that all companies pay an appropriate amount of tax. We will discuss the scope and the yield later when debating Opposition amendments, but I urge him to consider how we can be confident that this measure is working as intended—not only whether it is deriving the income that we need in order to provide support for our frontline services at this difficult time for the country, but whether the digital services tax is operating as it should.
I will also highlight some of the technical issues relating to clauses 38 to 44. Clause 39 indicates that revenue should be apportioned on a just and reasonable basis when not wholly attributable to a digital services activity. Does the Minister accept that there may be a risk in taking businesses at their word here? There may well be some issues in how that is applied, and I would be grateful if he could offer some reassurance in this area. Asking businesses to apportion revenue on a just and reasonable basis may lead them to structure their operations or disaggregate their costs in a certain way to avoid higher liabilities. In the absence of public country-by-country reporting measures to create full transparency, oversight of this will be essential. Can the Minister confirm what will be done to ensure that this has been calculated in a fair and open manner?
A related point is capacity within HMRC. As we have all acknowledged in earlier discussions on the Bill, HMRC and Treasury staff are doing tremendous work at this difficult time for our country, and we all commend them for their dedication and hard work. I imagine it must be a challenging environment in which to work, responding quickly to changes in policy and with the need to support businesses and taxpayers alike, but given the challenges faced, can the Minister assure us that HMRC will have the resources and staffing it needs to make sure that this tax is being applied properly and that revenues are being secured? Some stakeholders have suggested putting in place a dedicated digital services tax team, and I wonder what consideration the Minister and officials have given to that.
Since the legislation was first announced and consulted on, several stakeholders expressed throughout the consultation period concerns around whether the definitions the Government use in these clauses are clear enough and watertight. For instance, there is uncertainty around whether online gambling platforms will fall under the scope of this tax, as set out by the Chartered Institute of Taxation. I appreciate that the legislation has been modified since it was first announced, but I would be grateful if the Minister could clarify the position.
On Clause 43, concerns have been expressed about the difficulty in identifying a “UK user”. The use of virtual private networks presents an obvious difficulty in this regard. The process of monitoring users may also raise concerns around GDPR compliance. I will be grateful if the Minister could set out whether that is the case, and whether there may be difficulties in this area.
I will now touch on the international context in which this measure has been put forward, drawing in part on the Minister’s remarks on the need for both UK action but also global action, as companies work across country boundaries and jurisdictions. The international tax system is fundamentally not fit for purpose: it has not kept pace with the changing nature of technology and many of the changes that we have seen in our economy and the global economy. It was modelled on the trade in goods, rather than services. The challenge of how we respond to the digitisation of the global economy continues, and goes far beyond this measure and other measures that the Government are considering, but the OECD has been pressing on the issue for years, as the Minister acknowledged.
Anthony Browne (South Cambridgeshire) (Con)
I am generally a low-tax Conservative. I prefer lower, simpler taxes, but I thoroughly welcome this new tax. It is clearly welcomed across the House. The public are frustrated at seeing these big technology companies and other multinational corporations not paying their fair share of tax.
I have a few observations and then one question for my right hon. Friend the Financial Secretary. It is absolutely welcome that he is co-ordinating globally on this. I have led tax talks with the OECD on things like common reporting standards, and they take a very long time, so it is welcome that he has come forward with a national measure aligned with what we expect from the international measures, and we are not waiting for the international measures to come into place.
I notice that the shadow Chief Secretary says that the measure has not gone far enough, but it is still one of the first in the world and it also breaks the mould in being a turnover tax, which the UK Government have always resisted. As globalisation continues apace, the arguments for turnover taxes as opposed to profit taxes get a lot stronger and we now have one in the UK on digital services. I suspect that in years to come there will be arguments made for expanding turnover taxes to other sectors.
The case was made that the tax is modest in terms of revenue, but all taxes start out modestly. When we look at the history of value added tax, stamp duty or income tax, they started out modestly and tended to increase as we saw what their impact was. The digital services tax is an entirely new tax on a sector where we do not really know the dynamics. The data has not been collected by the companies, so it is absolutely right that we see what the impact is before deciding in what way to extend it.
When I was chief executive of the British Bankers’ Association, I was involved in many discussions with the Treasury on new bank-specific taxes. With a new tax, it is always the case that we do not know what revenue we will get. There is always a high amount of uncertainty because people have not collected the data for that tax. It is inevitable that for the digital services tax there will be a degree of uncertainty, as has been pointed out.
My question for my right hon. Friend the Minister is about enforcement and implementation. The digital services companies will have to collect a lot of data that they might not have been already collecting. HMRC will be dependent on them for providing the data because it will not have direct access to all their internal accounts and that level of detail. I want to know what work is being done with HMRC to make sure that it can get the right data and have confidence that the companies are paying the amount of tax that they should be paying and not playing games, as they are sometimes wont to do.
Andrew Jones (Harrogate and Knaresborough) (Con)
I am also not usually somebody who likes to find new ways to tax people in the UK. The digital services tax is totally new, but it is the right thing to do. The clauses detail the scope and the mechanisms for the tax and its collection. We even have a clause with an algebraic formula, which should certainly raise an eyebrow. [Laughter.]
The main thing to note is that the economy is changing fast and the tax is a part of that change. The Government’s response is to work internationally as we plot the course to a digital economy. Such economies are by definition international, so it is right to respond in a multinational way. I also know that it is very hard and takes a long time to achieve the objectives, so it is clearly right to proceed in the short term with this measure. Digital firms must pay their fair share.
It is increasingly hard for Governments to raise revenue from their traditional routes. The Government obviously have to raise revenue to fund the public services that we want. There is therefore an underlying, fundamental challenge for the Treasury. Work and consumption patterns change. I recognise that I possibly view this through the prism of somebody who has had responsibility for raising Government revenue—once a Treasury Minister, always a Treasury Minister—but this tax and the thinking behind it are the shape of things to come. Tax has to evolve to reflect the way the economy evolves.
The rise of the digital economy means different things for different companies. The opportunities for productivity and environmental gains are absolutely immense, so we must do all that we can to encourage the shift into a digital economy. Most people encounter it through social media search engines and online retail, which are the target areas for the tax. The growth of online retail has placed ever greater pressure on traditional high street retail businesses: a trend compounded, as colleagues have said, by the current crisis.
There have been concerns about the nature of competition and whether there has been a level playing field between online and offline: the argument between bricks and clicks. We should make every effort to level the playing field and the tax is a part of that. High streets have a role beyond their traditional economic role. They have a social role and bring people together. They create hubs for communities, but they also have to evolve to reflect the changing nature of competition, and a more level playing field in taxation will help give them the space to evolve.
I had some concerns that the tax may discourage digital start-ups; we have seen a good period for start-ups in the UK and I think that we have led Europe in this sector. However, I think those concerns have been dealt with by the threshold at which the tax becomes payable, which will only capture the very largest of businesses.
So, we have a very interesting new area for taxation, which I do not think any Government can enter into lightly. The Minister is an old friend—we have worked together for many years—and I commend him, because this is not easy stuff; it is pioneering for the UK and indeed for the world. But we have found a way forward that updates our taxation system and introduces more fairness to it, and through the operation of the new system we will learn how future taxation may work. So, as we go through further clauses in detail today, perhaps he could comment on how any learnings from this tax might influence and develop future taxation thinking.
Jesse Norman
All I can say to my colleagues on the Government Benches who have made their speeches is,
“soft, what light through yonder window breaks? It is the east”—
and my hon. Friends the Members for South Cambridgeshire, and for Harrogate and Knaresborough. What could be finer? I thank them very much for their interventions. If I may, I will start by responding to those interventions and then come on to the very detailed thrust of commentary from the shadow Chief Secretary.
My hon. Friend the Member for South Cambridgeshire rightly made the point that taxes are, of their nature, potentially distortive, and revenue taxes, of their nature, in particular. It is therefore appropriate to proceed with a degree of caution in considering how to introduce a tax, and to acknowledge that. He also made the point that many taxes start modestly. I could not possibly comment on the future direction of this tax, but I will say that I do not think that £2 billion is a trivial sum of money to raise from a new tax. I think the tax has been set at an appropriate level, and officials and the Government believe that, too.
My hon. Friend also asked whether businesses affected by the tax will have to collect a vast array of new information, and whether that may be burdensome to them. This is one area where, on reflection, he may be able to take a degree of comfort, because we are only talking about very large businesses, and about businesses for whom tracking users and extracting revenue from them is what they do for a living. So, it is not our expectation that there should be any enormous additional informational burden; there may be a selection process of pulling information out, but not an enormous informational burden.
I will also point out that the approach taken is one of self-assessment, which is to say that we expect businesses that have UK user-generated content revenue to come forward and self-assess. In a way, that relates to the question put by the hon. Member for Houghton and Sunderland South about whether HMRC has enough resources. I am pleased to tell her that it already has a digital team in place, whose job is to monitor this process of self-assessment. And as with other taxes, I have no doubt that they will become increasingly expert in doing that and evaluating the submissions that are made; of course, submissions will vary in their quality and I am sure that evaluating them will be, in turn, an educative process for tax officials at HMRC.
My hon. Friend the Member for Harrogate and Knaresborough, a beloved former Treasury Minister, made a couple of important points. Of course, he is absolutely right that we are talking about a dynamic market or sector. All markets are intrinsically dynamic and we are talking about an intrinsically highly dynamic sector of activity, perhaps never more so than at this particular moment in our history, when we are seeking—internationally and nationally—to find a whole range of new solutions to support people and maintain the economy. So, it is a very dynamic sector.
My hon. Friend is also right to highlight—in a way entirely unscripted and unprepared with me—the “pioneering” nature of this tax. It is a new form of tax, which seeks to tax UK user-generated content. Therefore, it is an important démarche in our history to consider whether this is an appropriate way in which to tax. I believe it is, and I believe that Parliament will think it is, but we will of course continue to review and take feedback on it. I point out that there have been two sets of consultations on this already—an original, principal set and then a more technical one.
Jesse Norman
I appreciate that, of course. I am grateful to the hon. Lady for welcoming the principles behind this, as she is right to do. For the same reasons I described to my hon. Friends, I do not think it appropriate to think of this as in any sense delayed. We are at the forefront of a developing area of tax law. We have not thought it appropriate to wait for international procedures. I am sure that, on reflection, she would prefer that we not have waited, both because of the revenue generated for public services but also because we deem it important—I have no doubt that the Labour party feels the same way—to try to make progress in this important area, removing what we see as ineffective rules or improving the working of the rules within the tax code.
I think it is fair to say, without blowing the Government’s trumpet too hard, that whether it is the diverted profits tax, work on base erosion and profit-shifting, corporate interest restriction rules or, indeed, on private country-by-country reporting rules, the Government have been at the forefront of much of the most progressive tax changes of the past few years, which is entirely appropriate.
The hon. Lady raises the question about the relationship with high streets. No Member of Parliament does not feel the concern about the high street, because they go back to their constituencies every week and see the effects of change. It is important to be aware that this tax is about addressing changes, or the way in which the tax rules are not fully capturing the value that is being generated. The high street is a rapidly evolving entity, as has been pointed out. Many high street businesses—even quite small ones—have online businesses of their own, which are effective supplements to what they do. They will not be caught by this tax, because in many cases their activity will be too small. However, it is in those hybrid models, which are evolving, where I think much of the future of the high street may lie.
It is not by any means obvious that the effect of the pandemic has been solely to privilege the online versus the offline. Plenty of online businesses have been clobbered by the pandemic in a way that many offline businesses have as well.
Bell Ribeiro-Addy (Streatham) (Lab)
The Minister raises a valid point about this tax generally creating more revenue. However, he mentions the pandemic, and I am clear that we are heading for one of the worst recessions in history. Does the Minister not think that we would do best to do what European countries are doing, with a much higher rate of tax? The £1.3 billion that we will potentially lose is no small fee. The public coffers need that money. Does he not agree?
Jesse Norman
I thank the hon. Lady very much for her question. As I said, the estimate by the independent OBR is of £2 billion over a five-year period. Our estimate is certainly £2 billion over a five-year period. I do not think that is a trivial amount. As has been discussed, we of course recognise the importance of generating revenue, but we also think it important to introduce a tax that is sustainable and that lays a framework that can be effective while it is in operation. There are countries that have had higher taxes, and we have offsetting rules regarding the interaction with those taxes in order to create equity as between the different jurisdictions, so it is a perfectly fair question, but we have taken the view that 2% is an appropriate level for a new tax. As I said, it is a tax that we will be very happy to take off the statute book as and when the OECD process starts to yield effective results, which it may well do before too long.
Bell Ribeiro-Addy
What I cannot seem to understand is why—the Minister mentioned sustainability—if other countries in Europe see it as sustainable and we have no evidence to the contrary, we have decided that it is not sustainable to have a higher rate.
Jesse Norman
That is, of course, a proper question to ask, but we have taken the view that this is a tax that we would like to take off the books in due course, when there is an OECD agreement. That agreement may take a variety of different forms; it may raise more tax or less. Different countries have different overall tax systems and seek to address different forms of corporate behaviour in deriving revenue. In the UK, there are plenty of businesses deriving revenue from user-generated content. Some of them will be over the thresholds that we are talking about, and those are the ones that are within the scope of the tax.
It is absolutely open to other parties to disagree about how they would put it, but the Government have taken the view that this is the appropriate level for a new tax—it is on revenue and, as I have said, is therefore potentially distortive. We have had feedback and consultations that reflect concerns on both sides of the issue.
Andrew Jones
My right hon. Friend makes a valuable point about the multi-channel operations of many retailers. I came to Parliament from a business background that had a mixture of high street and online retailers. From a business perspective, the key thing is to reach customers in the way that is right for them. By choosing either the high street or online, businesses miss out. Customers are open to trading in whichever way is convenient for them, as this crisis has shown.
I want to make a comment about the taxation. Higher taxation rates do not necessarily mean higher tax collected. We also have to recognise that having a tax environment that is conducive to creating a business-friendly environment is a critical part of the economic growth that we have seen over the past few years. We should certainly be looking around the world to see how other countries operate their tax systems, but drawing comparisons with countries that are not creating wealth or jobs might not be the way forward.
Jesse Norman
I thank my hon. Friend for that comment. In a way, he leads me on to my next remarks in response to the hon. Member for Streatham. He is right. The dynamic market that we are seeking to tax is one where revenues are not absolutely predictable; they may be higher or lower than estimated. The tax therefore stands in contrast to a well-established tax such as VAT, because we can be much more certain about how much that tax will raise.
It is also important to understand that this is not a tax designed to penalise certain companies. The strength of our online sector in the UK has been a very important part of the response to coronavirus, as I have mentioned. There is no attempt to pick out companies and target them with the tax. There is a concern about failings in the international tax rules, and that is what the Government seek to address.
The hon. Member for Houghton and Sunderland South raised the issue of multilateral action and asked whether adequate leadership had been exercised. It has been recognised that the OECD has made some good progress in this area recently, which has been achieved with a lot of urging and support from this country. Ultimately, we all agree that international and corporate tax needs to be addressed in a global and inclusive way. That would be the Government’s strong preference, but we have not waited—I do not think the hon. Lady would want us to wait—because we think it is important to take a lead.
It is also important to say that when we have done that, we have tried—as one might expect with a new tax—to target an area where there is a very clear rationale or justification for the tax that is being levied. UK user-generated content is a strong basis on which to levy a tax. There is a contrast with, for example, media streaming. The hon. Lady talks about how much she has enjoyed various media streaming services, and I welcome that, but we can all be relatively certain that she has not contributed a lot of UK user content to them—[Interruption.] Unless delight and shock are forms of UK-generated content.
I want to reassure the hon. Lady a bit about the apportionment of revenue. She is absolutely right that, as the history of base erosion and profit shifting around the world shows, many companies have found it only too easy to move the effective location where tax is generated. In part, this tax, by taxing revenue overall, is designed to sidestep a lot of the temptations that might exist to work round the edges. A very wide definition of revenue has been adopted, and we can go into that in more detail. As I said earlier, we require companies to do it. It is a self-assessment scheme, and we ask companies to designate, evidence and disclose the UK user-generated revenue of the different kinds that we have touched on.
On GDPR, which is the relative question, the legislation has been written so that businesses are expected to use information that they already have to make the determination. We believe that it is compatible with GDPR, and that it draws on data that is already collected. We are not inviting the groups to collect new information that might be in some sense at odds with people’s rights or in contravention of the law, and of course they will have their own GDPR processes to follow. As I have said, many of them collect a great deal of information, including IP addresses, delivery addresses, billing addresses and so on. To come to a point that the hon. Lady made earlier, that is another reason why the use of virtual private networks is more of an in-principle worry than an actual worry, because famously, so much other information is collected about the users of those services from multiple sources. That should help them to make those disclosures.
The hon. Lady asked about double taxation. It is true that some businesses will pay both UK corporation tax and the digital services tax. For reasons of international law, we are not capable in law of discriminating in favour of UK businesses, and we are not going to. The point, though, is to design a proportionate tax with a low rate, and another reason why we have chosen that rate is that we do not wish to be any more distortive or invoke any more double taxation than is absolutely necessary. As I said, our preference is to move to a global solution.
The hon. Lady talked about international leadership. We look forward to a day when the OECD will be able to pass an agreed set of rules with multinational support that give a proper basis for the levying of tax. As she is aware, a number of proposals are under discussion. They and the processes that generated them are well described in the House of Commons Library note, and I encourage any Members who want more detail to look at that. The Government are clear that we will maintain this tax until the OECD passage of agreement—there may be other supervening factors—causes us to remove it. I commend the clause to the Committee.
Question put and agreed to.
Clause 38 accordingly ordered to stand part of the Bill.
Clauses 39 to 44 ordered to stand part of the Bill.
Clause 45
Meaning of “the threshold conditions”
Jesse Norman
We now come to clauses 45 to 50. The last discussion was quite a long one, but hopefully it was helpful in framing the overall legislation within which we can now discuss the more specific elements, so we may not need to dwell as long on these parts.
Clauses 45 to 50 set out how the digital services tax charge will be calculated. The Government have sought to ensure that the DST is proportionate and charged only to those businesses that are best able to generate significant value from their users. As such, it will apply only to groups with annual global revenues from the named services of over £500 million. DST will be charged only on those revenues where they are attributable to UK users and only on amounts above £25 million.
Clauses 45 and 46 set out the thresholds and the allowance, and they set the rate of the charge at 2%. A DST tax rate of 2%, as we have discussed, ensures that digital businesses will make a fair and proportionate contribution to our public finances. Clause 46 also sets out how each member of a group should calculate their DST liability.
The Government recognise that some businesses have concerns about levying a tax on revenues rather than profits. That is why our strong preference is for a long-term profits-based global solution. That can be implemented only following an international agreement, however, so although the DST applies to revenues, the alternative basis of charge will reduce the charge for businesses with low profit margins or losses on their chargeable UK activity. Clauses 47 and 48 therefore set out the alternative basis of the DST charge and how DST liability should be calculated on that basis.
Online marketplace transactions will occur between two users, and those users may be based in different jurisdictions. Where one of those users is a UK user, revenues attributable to the transaction will be subject to the UK DST. Where the other relevant jurisdiction also levies a DST, however, there is a risk that the revenues could be taxed twice. Clause 49 sets out the relief for certain cross-border transactions, minimising that risk by ensuring that, in such cases, only 50% of the relevant revenues will be subject to the UK DST. Finally, clause 50 sets out when DST payments are due and payable.
Together, the clauses mean that the DST charge is proportionate while ensuring that digital businesses pay a UK tax that reflects the value they derive from UK users. Overall, as I have noted, the tax is expected to raise up to £2 billion over the next five years in a proportionate and responsible way.
Bridget Phillipson
As the Minister said, we have discussed at length the broader implications and the necessary measures set out in the clauses, but I have some technical issues relating to them.
On clause 46, the Institute of Chartered Accountants in England and Wales has said that,
“given the potential compliance burdens imposed by the DST, it is important to ensure that smaller digital businesses are not burdened by DST, so the inclusion of a £25m allowance looks reasonable but should be kept under review.”
On a similar but more general note, the Chartered Institute of Taxation has warned that some businesses will be undertaxed while others may be overtaxed. As we have said before, it is our position on the Opposition Benches that in these challenging times, those with the broadest shoulders should bear more of the load. Can the Minister confirm that he will keep the measure under review to ensure that companies, particularly smaller companies, do not pay more than their larger counterparts, to avoid the distortions that he talked about emerging all the time?
There are perhaps more substantial concerns around clauses 47 and 48 on the so-called safe harbour provision. As HMRC has stated, that is intended to ensure that the tax does not have a disproportionate effect on business sustainability in cases where a business has a lower operating margin from providing in-scope activities to UK users. Its inclusion is obviously well-intentioned, but some assurances will be welcome. It is clear that multinational companies are often adept at structuring their operations in a way that reduces their tax liabilities. Are there safeguards in place to ensure that the safe harbour provision is not used for such a purpose?
Clause 48, for instance, contains a list of excluded expenses that cannot be deducted from a company’s net profit, which goes on to form the basis of the alternative charge. The list, however, does not include royalties, and I am grateful to TaxWatch UK for drawing attention, through the research that it has done, to the implications that that might have, because royalties are at the heart of tax avoidance practices perpetrated by some digital tech companies. It describes how most of those companies’ profits are attributable to various types of intellectual property that they have developed.
By artificially locating the intermediate and ultimate legal ownership of the intellectual property in avoidance-facilitating jurisdictions and tax havens, those companies can avoid tax on UK royalties, and ultimately reduce their taxable profits in the UK. Why, therefore, are royalties not included on the list of excluded expenses? Surely the Minister would accept that that is a potential failure to adequately tackle the use of royalties to reduce tax liabilities, and might further incentivise the use of the safe harbour provision by larger tech companies, which will in turn be able to reduce their taxable profits through their practices with regard to royalties.
More broadly on the safe harbour provisions, the Institute of Chartered Accountants in England and Wales has also said that in spite of those, it is still concerned that low-margin businesses could face a very high rate of tax on UK-allocated profits. Will the Minister address those concerns?
On clause 49, the Chartered Institute of Taxation has highlighted that the interaction with other national tax regimes, including broadly similar but subtly different unilateral taxes in other countries, will still mean some double taxation, which the Minister talked about in our earlier debate. It describes this as a rough and ready way of reducing such instances by reducing the revenue chargeable by 50% if it arises from a transaction where a user in respect of a marketplace transaction is normally located in a country that operates a similar tax to the DST. Does the Minister agree with its assessment? What analysis has been done in that area? Has consideration been given to other possible approaches to reduce the risk of double taxation?
Jesse Norman
I thank the hon. Lady for her questions. She asks whether the £25 million threshold has the effect of clobbering small businesses. Our view is that the purpose and effect of the thresholds is to levy the tax on the businesses that are best able to afford it, and that to have a global revenue base of £500 million and revenue attributable to UK users above the £25 million threshold is in itself a basis that excludes a vast number of small start-ups—which might turn out to be wildly successful and effective unicorns. We do not believe that the threshold will inhibit growth. If this is a direction in which tax will be going over time, as I rather think it is and as colleagues have suggested, an awareness of how tax will bear on future revenues and profitability is in itself an important part of any business’s market development.
The hon. Lady raised a concern about the safe harbour alternative charge arrangements. That is designed to ensure that the DST is not punitive for businesses with low profit margins or losses, and I think that is appropriate. At the margin, there is a risk that some businesses might try to reconfigure their activities to qualify for that, but I think it will be relatively clear to the Revenue from self-assessment when a business that is intrinsically high-margin is disguising that or is, essentially, seeking to utilise the alternative charge unfairly. It is worth saying that the alternative calculation applies only to in-scope UK activity, so businesses will not be able to reduce profit margins by using out-of-scope or non-UK activity. That is an important safeguard.
The hon. Lady asked about royalties. The tax is designed to work based on the consolidated figures of groups as groups. The concern about royalty payments is that, typically, royalties are used within groups to move revenues around, so, from a gross standpoint, they tend not to fall within the scope of the revenue charge, and they should not. Of course, from a tax-principle perspective, there are perfectly legitimate royalty uses and payments that one would want to continue to allow in any case. The alternative charge takes into account only expenses in the consolidated accounts, and is not therefore principally touched by the concern about intra-group royalties, for the reasons that I have described.
Question put and agreed to.
Clause 45 accordingly ordered to stand part of the Bill.
Clauses 46 to 50 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(David Rutley.)